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l. Appeal No. 2095 of 1968.
16 Appeal from the judgment and order dated September 17, 1968 of the Mysore High Court in Writ Petition No. 1889 of 1968.
D. Narsaraju, M. C. Chagla, R. V. Pillai, Subodh Markendya and M. Narayana Reddy, for the appellant.
M. C. Setalvad, B. R. L. Iyengar and section P. Nayar, for respondents Nos. 1 to 3.
M. K. Nambyar, Shivaswamy and R. Gopalakrishnan, for respondent No. 4.
The Judgment of the Court was delivered by Bachawat J.
This appeal raises the question of the legality of the cancellation of the sale to the appellant of the exclusive privilege of retail vend of toddy and arrack for the year 1968 69 in a group of 1168 shops in Raichur and Gulbarga districts under the Mysore Excise Act, 1965 and the Mysore Excise (Disposal of Privileges of Retail Vend of Liquors) Rules, 1967.
On May 10, 1968 the excise commissioner of Mysore published a notice stating that the exclusive privilege would be sold by tender cum auction by the divisional commissioner, Gulbarga on May 28 and inviting tenders by May 27.
On May 27, the appellant made a tender offering Rs. 9,99,999/ towards the monthly rental of the shops and deposited the requisite earnest money amounting to Rs. 1,85,168/ as required by r. 7(f).
Respondent No. 4 K.V. Niranjan made a tender offering Rs. 9,69,999/ towards the monthly rental.
The appellant was the only bidder present at the auction on May 28.
His offer being the highest was accepted by the divisional commissioner, Gulbarga, under r. 17(1).
The appellant deposited another sum of Rs. 8,14,831/ which together with the earnest money made up one month 's rent as required by r. 17(5).
On June 4, the divisional commissioner, Gulbarga, confirmed the sale under r. 17(1).
On June 6, the deputy commissioner, Gulbarga, issued a notice asking the appellant to make deposits according to r. 19 immediately and to obtain licences from the concerned tahsil officers after completing other formalities.
Under r. 19(2) the appellant was required to deposit another one month 's rent within 15 days from the date of the sale.
By June 15, the appellant deposited in all Rs. 39,99,996/ amounting to 4 months ' rent.
By a letter (exhibit B 1) the appellant informed the excise commissioner that he had deposited 4 months ' rent as required by circular No. EXE.
1. 15 7 5 issued by the excise commissioner on December 12, 1967 and asked for permission to obtain licences from the deputy commissioners of Raichur and Gulbarga.
On June 18/19 he applied to the divisional commissioner, Gulbarga, for the issue of licences.
June 19, the divisional commissioner, issued a 17 notice to the appellant stating that as he had not submitted a solvency certificate of his property or the property of his sureties he was required to deposit the balance to make up six months ' rent as required by r. 19 (3 ) (i) and to furnish security for six months rental or sureties as require by r. 19(3) (ii) and (iii) by June 25, and that in default action would be taken under r. 20(2).
A notice to the same effect was given orally on June 19, when he met the divisional commissioner at Bellary.
On June 22, he presented a petition under section 62 to the, state government asking for the issue of licences, as he had complied with the conditions of the circular.
In view of the subsequent writ petition the government did not pass any orders on this petition.
The notice dated.
June 19 was received by the appellant on June, 23.
On June 25, he wrote to the divisional commissioner stating, that he had complied with the conditions of the rules read with the, circular and was entitled to the licences, that he had reason to believe that necessary orders would be passed by the state: government on his petition under section 62 and that if necessary, the terms for compliance with the requirements of r. 19 be extended.
by two months.
On the same date the divisional commissioner, rejected the application for extension of time, and issued a notice to the appellant asking him to show cause before June 26,why in view of the non compliance with the notices dated June 6 and 19, the sale should not be cancelled and the deposits already made should not be forfeited to the government.
The notice was served on his advocate on June 25 at 7.40 p.m.
On June 26, the.
appellant submitted a petition to the divisional commissioner stating that he had complied with the terms of r. 19 and the circular, that abrupt cancellation of the sale would result in irreparable injury and that in any event the time to deposit the balance two, months ' rental be extended for a reasonable time.
By an order dated June 26, (exhibit J), the divisional commissioner rejected the application for extension of time and cancelled the sale starting that (1) the appellant did not "at one& ' apply in writing, for licences in accordance with r. 19(1); (2) though he deposited two months ' rent as required by r. 19 (2), he did not file a statement of his immovable properties in accordance with r. 19(1); and should therefore be, considered as a person of doubtful solvency; (3) he was, therefore, required to deposit another 2 months ' rent under r. 19 (3) (i) and to furnish securities for six months ' rental or surety under r. 1 9 ( 3 ) (ii) and (iii) ; (4) he failed to comply with r. 19 in spite of notices dated June 6 and ' June 19; (5) the circular issued by the excise commissioner was opposed to r. 19 and could not be acted upon; (6) that even under the circular he was required to give two months ' collateral security in addition to 4 months ' cash deposit if he was a person, of doubtful solvency; and (7) that the sale conducting,officer has no power to extend the time for compliance with the formalities. 18 On June 28, the appellant filed writ petition No. 1889 of 1968 against the State of Mysore and others in the High ,Court of Mysore for quashing the order dated June 26, (exhibit Jr) and for the grant of licences to him to vend liquors in the combined groups of shops in Raichur and Gulbarga ,districts and for other reliefs.
The appellant submitted that (1) he had complied with the rules read with the cir cular; (2) he did not file any statement of his immovable properties under r. 19(1) as he had immovable properties in Andhra Pradesh; (3) as there was no inquiry nor, finding by any tahsildar ,that he was of doubtful solvency r. 19(3) was not attracted; (4) ,the divisional commissioner, Gulbarga, was not competent to ask for deposits and security under r. 19(3), nor was he competent to pass an order cancelling the sale; and (5) r. 19(3) was violative of articles 14 and 19 of the Constitution.
On June 28, the High Court admitted the writ petition and ,directed the state government to stay further proceedings and to issue licences to the appellant.
Subsequently the High Court ,confirmed the stay order on condition that the appellant would deposit another two months ' rent.
The appellant deposited about Rs. 20,00,000/ in accordance with the order.
On June 30, the divisional commissioner granted licences to him.
On July 1, he commenced his business in all the 1168 shops.
Thereafter he ,duly deposited about Rs. 30,00,000/ on account of rent for the months of July, August and September.
The state government, the excise commissioner and the divisional commissioner filed separate affidavits disputing the appellant 's contentions.
The rival tenderer, K. V. Niranjan was added as respondent No. 4 in W.P. No. 1889 of 1968 on his own application under an order of the High Court dated July 7.
K. V. Niranjan filed an affidavit stating that the appellant was a benamidar for other persons and the acceptance of his tender was forbidden by r. 12.
K. V. Niranjan also filed W.P. No. 2088 of 1968 for quashing the orders of the divisional commissioner dated May 28, and June 4, whereby the appellant 's tender was accepted and for a mandamus directing the acceptance of his next highest tender under r. 17(4).
The two writ petitions were heard together and were dismissed by the High Court by a common judgment delivered on September 17.
The High Court held that (1) the appellant did not comply with the mandatory requirements of r. 19; (2) r. 19(3) was not ultra vires the rule making power under section 71 nor violative of articles 14 and 19, and the appellant was estopped from challenging it; (3) the circular of the excise commissioner could not modify r. 19; the appellant could not rely on the circular as he came to know of it long after the sale, nor had he complied with its terms by depositing the entire four months rent before 19 June 12;(4) the appellant was a benamidar for other person or persons and in view of r. 12 was incompetent to bid and (5) the, order dated June 26 (exhibit J) was valid.
On these findings the High Court dismissed W.P. No. 1889 of 1968.
With regard to W.P. No. 2085 of 1968 the High Court said that as the sale to the appellant had been cancelled by exhibit J, it was not necessary to set aside the order accepting and confirming his bid.
The High Court held that under r. 17 (4) it was not obligatory on the officer conducting the sale to accept the next highest offer of respondent No. 4.
The High Court, however, said "in the circumstances of the case, it is necessary to observe that the authorities concerned will consider the advisability of accepting the bid of the fourth respondent, subject to his complying with all the requirements of the Act and the Rules.
" With these observations the High Court dismissed W.P. No. 2085 of 1968.
By a telegram dated September 18, the excise commissioner instructed the divisional commissioner, Gulbarga, to direct the tahsildars of Raichur and Gulbarga to issue licences to respondent No. 4 on his complying with certain conditions.
On the same date licences were issued to respondent No. 4.
On September 19, the High Court dismissed an application for stay of operation of its order dated September 17, and on the same day granted to the appellant a certificate under article 1 3 3 ( 1 ) (b) of the Constitution.
On September 25, the appellant filed a stay application in this Court.
On September 27, the Court passed an order restraining the respondents from forfeiting the deposits made by the appellant.
It is convenient at this stage to refer to the relevant provisions of the Mysore Excise Act, 1965 and the Mysore Excise (Disposal of Privileges of Retail Vend of Liquors) Rules, 1967.
Section 3(1) of the Act provides that the excise commissioner, "shall be the chief controlling authority in all matters connected with the administration of this Act." Section 15(1) provides that "no intoxicant shall be sold except under the authority and subject to the terms and conditions of a licence granted in that behalf." Under section 15 (2) a licence for sale can be granted (a) by the deputy commissioner if the sale is within a district or (b) by the excise commissioner if the sale is in more than one districts Section 17 ( 1 ) (b) empowers the state government to lease to any person, on such conditions and for such period as it thinks fit the exclusive or other right of selling by the wholesale or by retail any Indian liquors within any specified area.
Contravention of the Act or any Rules made thereunder is punishable under section 32.
Section 71 empowers the state government to make rules.
Rule 3 of the Mysore Excise (Disposal of Privileges of Retail Vend of Liquors) Rules, 1967 provides that the right of retail vend of liquors shall 20 be disposed of by tender or by auction or by tender cum auction.
The auction is conducted by the deputy commissioner or the divisional commissioner under r. 5 and the tender has to be made to them under r. 7 (1).
The tenderer is required by r. 7 (f ) to deposit as, earnest money an amount equal to 1/4 of the shop rental of the previous year of the shop or groups of shops.
The appellant complied with the requirement of r. 7 (f ).
Rule 10 requires an intending bidder or tenderer to furnish a certificate of his solvency or two sureties having similar certificates or bank guarantee or cash deposit to cover four times the earnest money fixed under rule 7(f).
It is not disputed that the appellant made sufficient cash deposits in compliance with r. 10.
Rule 12 read & : "Benami bids not allowed.
No person except a power of attorney holder shall be entitled to bid for another person.
" The sale to the appellant was not cancelled on the ground that he bid for another person.
Rule 17 regulates the procedure at sales.
Rule 17(1) empowers, the officer conducting the auction to accept the highest offer.
The acceptance is subject to the condition of confirmation by the deputy commissioner or by the divisional commissioner.
The confirmation is effective unless revised by the excise commissioner or the government.
Rule 17(2) empowers the excise commissioner or the government to revise the order of confirmation.
Rule 17(4) provides that if the officer conducting the sale rejects the highest bid or offer, he may either accept the next highest bid or offer or re sell the shop.
Rule 17 (5) requires the person whose bid is accepted to make a further deposit which together with the earnest money would make up one month 's rent.
The appellant made the deposit required by r. 17(5).
His bid was accepted and was later confirmed by the divisional commissioner.
Neither the excise commissioner nor the state government passed any order under r. 17(2) revising the decision confirming the acceptance of his bid.
Rule 19 provides as follows : "19 Successful bidder to apply for licence: Every person to whom the right of retail vend of liquors is sold or whose tender in respect thereof has been accepted under these rules and who has made deposits as hereinbefore provided shall (1) at once apply in writing for licence for such shop confirmed in his name and within a week thereafter furnish to the Tahsildar the, details of boundaries of the site selected by him for the location of the shop and a statement in the prescribed form annexed to the notification showing details of the immovable property possessed by him or in which he has an interest together with accurate and full details of encumbrances, if any, thereon; 22 (5) The purchaser shall get the bond and the mortgage deed registered under the Indian at his expense.
(6) The purchaser or his surety shall produce an encumbrance certificate in cases where immovable property is mortgaged to the Governor of Mysore.
" It is not alleged that the appellant did not furnish the details of the shop sites as required by r. 19 sub.
r. (1) within 15 days of the date of the confirmation of the sale.
The appellant made a deposit of two months rent as required by r. 19 sub r.
The appellant did not furnish a statement of immovable properties under r. 19 sub r.
(1) nor did not he furnish security or sureties under r. 19 sub r.
It is also alleged that he did not apply for licences at once as required by r. 19 sub r.
Rule 20(2) provides : "On failure to comply with the provisions of rr.
17 and 19 the deposits already made shall be forfeited and the right of retail vend of liquors in such shop or groups disposed of in such manner under these rules, as the Excise Commissioner may direct".
No order was passed by the excise commissioner under r. 20(2).
In our opinion, the provision of r. 19sub.
r.(1) requiring the successful bidder to furnish a statement of his properties to the Tahsildar and the provisions of r. 19 sub rr.
(3) and (4) do not apply where the shops in respect of which the right of retail vend is sold is situated in more than one tahsil.
The opening part of r. 19 sub r.(1) requires the purchaser to furnish to "the tahsildar" the location of the shops and the boundaries of the shop sites.
The expression "the tahsildar" is not defined, but it is reasonable to think that the details regarding the shops should be furnished to the tahsildar within whose tahsil the shops are situated.
If the shops are situated in more than one tahsil, the details can be furnished to several tahsildars.
But it is not possible to give effect to the last part of sub rule (1) and the provisions of sub rr.
(3) and (4) in cases where the shops are situated in more than one tahsil.
The statement of immovable properties under the last part of sub r.
(1 ) can be furnished to, only one tahsildar so that he can peruse the same and on such perusal or on independent inquiry ascertain under sub r.
(3) whether or not the purchaser is of doubtful solvency and satisfy himself under sub r.
(4)whether or not the value of the immovable properties tendered as security is adequate.
Sub rr.
(3) and (4) do not contemplate findings by more than one tahsildar nor do they provide any machinery for resolving the conflict of opinion, if any, between two or more tahsildars.
In our opinion, the last part of sub r.
(1) and the provisions of sub rr.
(3) and (4) do not apply where the shops are situated in two or more tahsils.
23 The right of retail vend sold to the appellant is in respect of shops situated in 19 Tahsils in the districts of Raichur and Gulbarga Consequently, those provisions were not attracted to this sale and the appellant was not required to comply with those provisions.
The divisional commissioner, Gulbarga, could not record a finding under r. 19 sub r.
(3) that the purchaser was of doubtful solvency.
Even a tahsildar could not record such a finding without making an independent inquiry where no statement regarding.
immovable properties was furnished under sub rule (1).
No independent inquiry under sub r.
(3) was made by any tahsildar For this reason also the appellant cannot be regarded as a person of doubtful solvency and he was therefore not required to comply with the provisions of sub r.
The appellant has so far deposited about Rs. 90,00,000/ and it is impossible to believe that he is a person of doubtful, solvency.
The remaining charge is that the appellant did not "at once" ' apply for licences.
Rule 20(2) provides for the forfeiture of the deposits on failure to comply with the provisions of r. 19.
Under the Mysore Excise Licences (General Conditions) Rules, 1967 a licensee is required to commence his business on July 1.
The purpose of the Act and the Rules is achieved if the application for licence is made within sufficient time so as to enable the issue of licences before July 1.
Having regard to the object of the Act and the Rules the expression "at once" in r. 19 sub.
(1) means within a reasonable time before July 1.
It could not have, been intended that the deposits would be forfeited where the purchaser applies for licence within a reasonable time.
The appellant sufficiently complied with r. 19 sub r.
(1) by applying under exhibit B, to the excise commissioner for permission to obtain licences and by applying to the divisional commissioner on June 18 for the issue of licences.
The divisional commissioner, Gulbarga was not competent to pass the impugned order (Ex, J) cancelling the sale.
Only the excise commissioner or the state government could under r. 17(2) revise his previous order confirming the sale and on such revision cancel the sale.
The divisional commissioner, Gulbarga was not authorised by r. 17(2) to revise his own order or to cancel it.
In hi ,, notice dated June 19, the divisional commissioner, Gulbarga, stated that he would take action under r. 20(2).
In his notice dated June 25, he asked the appellant to show cause why the sale should not be cancelled and why the deposits already made should not be forfeited to the government.
But he did not pass any order forfeiting the deposits.
Nor was he competent to pass any order under r. 20(2).
Only the excise commissioner could pass such an order.
24 It follows that the High Court was in error in holding that the appellant committed breaches of r. 19.
The finding of the divisional commissioner, Gulbarga, that the appellant committed such breaches is erroneous, nor was he competent to record the finding or to pass an order cancelling the sale.
In view of this conclusion it is not necessary to consider whether r. 19 sub r.
(3) offends articles 14 and 19 of the Constitution and we express no opinion on the question.
We cannot agree with the proposition that the appellant is estopped from challenging the constitutionality and vires of the sub rule.
It is true that .r.
24 provides that the purchaser shall be bound by all the rules.
But if r. 19 sub r.
(3) offends articles 14 and 19 it is non est and there can be no question of the appellant being bound by a rule which does not exist.
Though we express no opinion on the vires ,of the sub rule, we must observe that r. 19 is clumsily drafted, its import is not clear, its tight time schedule works hardship and its ,procedure is cumbersome.
The government should immediately ,consider the question of re drafting r. 19.
It may be noted that Mr. Narasaraju conceded that r. 19 is not beyond the rule making powers of the state government.
The appellant relied on the circular No. EXE.1.1575/67 (exhibit E) dated December 12, 1967.
Exhibit E is a letter from 'the excise commissioner to the deputy commissioner, Bangalore, ,,on the subject of securities to be furnished by the excise contractors.
The letter stated that the procedure of r. 19 was number some and not clear, that several deputy commissioners sought clarifications on 'the subject and that the state government had been moved to clarify and simplify the matter.
The excise commissioner directed that pending receipt of the government order the following procedure should be followed : In addition to obtaining two months ' cash deposits, (1) two months cash security might be accepted and in the absence of cash security four months ' collateral security might be insisted; (2) if the deputy commissioner/tahsildar was doubtful about the solvency of the contractor he could insist on six months ' collateral security and (3) while accepting the collateral securities care should be taken to see that "the contractor executed the necessary mortgage bond.
Admittedly, similar instructions were issued to other deputy commissioners and were enforced in several districts.
There is a dispute on the ,question whether the circular was sent to the districts of Gulbarga and Raichur.
In so far as the circular attempted to modify r. 19 it was in effective.
The excise commissioner, had no power to abrogate or modify a rule framed under section 71.
On behalf of the appellant it was argued that as the chief controlling authority the ,excise commissioner could frame regulations under section 3 read with r. 24 and could issue general instructions on the subject of taking 25 security in cases not covered by r. 19.
We express no opinion on this question, as the government has already withdrawn the circular.
But we must observe that relying on this circular the appellant deposited two months ' rent as required by the circular in addition to the two months ' rent as required by r. 19 sub r.
(2) and that such deposits were duly made within 15 days from the date of the sale.
However, it is not necessary for the appellant to rely on the terms of the circular.
He has complied with the provisions of r. 19 and the sale in his favour cannot be cancelled.
On behalf of respondent No. 4 it is argued that the appellant bought the right of retail vend as benamidar for some other person, that his benami bid was opposed to r. 12 and could not be accepted and that as the sale of liquor by the real buyer without a licence in his favour was illegal in view of sections 15 and 26, the appellant was not entitled to any relief in view of the decision in Venkata Subbayya vs Attar Sheik Mastan(1).
The onus is upon the respondent to prove that the appellant made a benami purchase.
It appears that the appellant is a retired inspector drawing a pension of about Rs. 75/ per month.
He is not an income tax or a wealth tax assessee, He does not own any property in Mysore State.
The appellant says that he owns immovable properties in Andhra Pradesh but he did not file the title deeds in respect of them.
However, the appellant was in possession of a large amount of ready cash.
Before June 25, he deposited about Rs. 40 lakhs and thereafter deposited about Rs. 50 lakhs.
There can be no doubt that the appellant has the backing of powerful financiers.
There is no specific charge that some named person is the real purchaser.
From the materials on the record it is not possible to record a finding that the appellant is a benamidar and that that some other person is the real purchaser.
The purchase is not illegal merely because the appellant obtained the necessary funds from some financiers.
The government never alleged that the appellant 's bid was a benami bid and opposed to r. 12.
His bid was accepted and such acceptance was subsequently confirmed.
Under r. 17(1) the confirmation is effective until revised by the appropriate authority.
It is neither alleged nor proved that sonic person other than the appellant had been managing the shops and selling liquor in contravention of section 15.
Respondent No.4 has failed to establish contravention of either r. 12 or section 15.
The High Court was in error in holding that the appellants bid was opposed to r. 12.
Having regard to the fact that the appellant had already deposited about Rs. 40 lakhs the divisional commissioner, Gulbarga, acted rather precipitately and harshly in cancelling the sale.
(1) A.I.R. 1949 Mad. 252.
Sup CI/69 3 26 For the reasons already given ,the order of cancellation (Ex.J) is invalid.
The order must be set aside and a writ of mandamus must issue for the grant of licences to the appellant.
Some complication arises out of the fact that the licences have been granted to respondent No. 4 after the disposal of the, writ petitions by the High Court.
Licences cannot be given to both the appellant and respondent No. 4 for retail vend of liquors in respect of the same groups of shops.
In order to give effect to our order for the issue of licences in favour of the appellant it is necessary to give the further direction that the licences issued to respondent No. 4 should be cancelled.
We can give this direction as respondent No. 4 is a party to this appeal.
While holding that r. 17 sub r.
(4) did not compel the officer conducting the sale to accept the next highest offer of respondent No. 4 the High Court observed that the authorities concerned should consider the advisibility of accepting his bid.
This observation is not in accordance with law and has given rise to unnecessary complications.
Rule 17(4) provides that "if the officer conducting the sale rejects the highest bid or offer, he may either accept the next highest bid or offer or re sell the shop.
" The sub rule cannot be invoked if the officer conducting the sale has accepted the highest offer.
In the present case, the officer accepted the appellant 's highest offer and later confirmed it.
The confirmation is still effective under r. 17(1).
If for some reason the confirmation is subsequently revised or set aside, the officer cannot act under r. 17(4).
In such a case there must be a fresh disposal of the right of retail vend of liquor in accordance with the Rules.
It follows that the bid of respondent No. 4 could not be accepted under r. 17(4) after the disposal of the writ petitions on September 19.
It is rather surprising that the Government acted so hastily and issued licences to respondent No. 4 on or about September 18.
It is not quite clear how licences in respect of 1168 shops could be issued on a single day.
The effect of this precipitate action on, the part of the government was that the appellant could not on the next day obtain a stay of the operation of the High Court 's order.
There is ground for suspecting that the government was favouring respondent No. 4.
In the result the appeal is allowed with costs in this Court and in the High Court.
The order passed by the High Court is set aside.
Writ Petition No. 1889 of 1968 is allowed.
The order dated June 26, 1968 (exhibit J) is set aside.
Respondents 1 and 2 ;ire directed to grant immediately licences to the appellant to vend liquors in the combined groups of shops in Raichur and 27 Gulbarga districts for the remaining period of the year 1968 1969.
Respondents 1 and 2 are also directed to cancel forthwith the licences issued to respondent No. 4 in respect of the aforesaid groups of shops.
Y.P. Appeal allowed.
| IN-Abs | The appellant was the highest bidder for the exclusive privilege of retail vend of toddy and arrack for the year 1968 69, in a group of 1168 shops situated in 19 tehsils in the districts of Raichur and Gulbarga.
He made the deposits of money required under rr. 7(f) 'and 10 of the Mysore Excise (Disposal of Privileges of Retail Vend of Liquors) Rules, 1967 made under section 71 of the Mysore Excise Act, 1965.
The highest bid of the appellant was accepted and confirmed by the Divisional Commissioner of Gulbarga under r. 17(1) on June 4, 1968.
Thereafter, the appellant made further deposits required by rr.
17(5) and 19(2).
In all he deposited about Rs. 40 lakhs by June 15.
On June 18 he applied to the Divisional Commissioner for the issue licence.
He however, did not comply with r. 19(1) and (3) which required that a statement of immovable Properties should be furnished and that he should furnish security or sureties, respectively.
The Divisional Commissioner Gulbarga issued a notice to the appellant to show cause why the sale should not be cancelled and the deposits already made forfeited under r. 20(2).
The appellant prayed for two months time for compliance with the requirements of r. 19, but the Divisional Commissioner rejected the application and cancelled the sale.
He did not pass any order forfeiting the deposits.
The appellant filed a writ petition in the High Court for quashing the order and under directions of the Court deposited another Rs. 50 lakhs.
The 4th respondent, who was the next highest bidder applied to be made a party to the petition and contended that the appellant was a benamidar for other persons and so acceptance of his tender was forbidden by r. 12.
The High Court dismissed the writ petition holding (1) that the appellant did not comply with the mandatory requirements of r. 19 in that he did not furnish the statements and apply 'at once ' for licences as required by r. 19(1); (2) the appellant was a benamidar; and (3) the authorities should consider the advisability of accepting the bid of the 4th respondent.
On the very next day after the judgment of the High Court, the respondent State issued licences in respect of 1168 shops to the 4th respondent.
In appeal to this Court.
HELD : The licences issued to the 4th respondent should be cancelled and a writ of mandamus should issue for the grant of licences to the appellant.
[26 A] 15 (1)(a) The opening part of r. 19(4) requires the purchaser to furnish to 'the tehsildar ' the location of shops and the boundaries of the shop sites that is to the tahsildar within whose tehsil the shops are situated.
If the shops are situated in more than one tehsil, the details can be fur nished to the several tahsildars, but in such a case it is not possible to give effect to the last part of the sub rule and also to the provisions of sub rr.
(3) and (4).
The statement of immovable properties under the last part of sub r.
(1) can be furnished to only one tahsildar so that he can peruse the same; and on such perusal or on independent inquiry ascertain under sub r.
(3) whether or not purchaser is of doubtful solvency and satisfy himself under sub r.
(4) whether or not the value of the immovable property tendered as security is adequate.
Sub rr.
(3) and (4) do not contemplate findings by more than one tahsildar nor do they provide any machinery for resolving the conflict of opinion, if any, between two or more tahsildars.
The last part of sub r.
(1) and sub rr.
(3) and (4) do not apply where the shops are situated in two or more tahsils.
Consequently, those provisions were not attracted to the sale in the present case and the appellant was not required to comply with those provisions.
[22 E] (b) In the absence of 'an independent enquiry under sub r.
(3), the appellant could not be regarded as a person of doubtful solvency.
(c) Under the Mysore Excise Licences (General Conditions) Rules, 1967, a licencee is required to commence his business on July 1.
The expression 'at once ' in r. 19(1), means within a reasonable time before July 1.
In the present case, the appellant sufficiently complied with subrule.
[23 D E] (d) Under r. 17(2) it is only the excise commissioner or the State Government that could revise the order of the divisional commissioner confirming a sale and the divisional commissioner himself was not authorised to revise his, own order or cancel it.
[23 G] Therefore, the High Court was in error in holding that the appellant committed breaches of r. 19.
[Rule 19 is clumsily drafted, its import is not clear, its tight time schedule works hard ship and its procedure is cumbersome.
The Government should immediately consider the question of redrafting the rule.] [24 C D] (2) The appellant was a retired inspector drawing a pension of about Rs. 75 per month and, is not an income tax or wealth tax assessee.
He evidently has the backing of powerful financiers, but the purchase is not illegal merely because the appellant obtained necessary funds from some financiers.
The onus of proving that appellant was a benamidar was on the 4th respondent and from the materials on record it is not possible to hold that he is a benamidar for some other person.
[25 D] (3) Under r. 17(4), it is only when the highest bid is rejected that the next highest bid may be considered.
Where there is an acceptance of the highest offer and 'if for some reason it is revised, r. 17(4) cannot be invoked.
In such a case there must be a fresh disposal of the right of retail vend of liquor in accordance with the Rules.
Therefore, the High Court erred in observing that the 'authorities should consider the advisability of accepting the 4th respondents bid.
[26 E]
|
iminal Appeal No.138 of 1966.
Appeal by special leave from the judgment and order dated March 22, 1966 of the Allahabad High Court, Lucknow Bench in Criminal Appeal No. 82 of 1965.
S.P. Sinha and M. I. Khowaja, for the appellant.
O.P. Rana, for the respondent.
The Judgment of the Court was delivered by Shah, J.
The appellant Healy was an employee of the NorthEastern Railway and was posted in March 1959 as a platform Inspector at Gorakhpur Railway Station.
The appellant told Ghammoo a sweeper working under him that unless he was paid a bribe of Rs. 15 Ghammoo would be marked absent.
Ghammoo 950 at first demurred but later agreed to pay the amount demanded and to give a bottle of liquor, and thereafter made a report to the R.S.O., Special Police Establishment at Gorakhpur about the demand made by the appellant.
Arrangements were made to set a trap.
On March 27, 1959, Ghammoo went.t to the office of the appellant and paid Rs. 15 in currency notes which had been duly marked by the Special Police Establishment Officers and half a bottle of liquor.
The appellant.
after receiving the currency notes assured Ghammoo that he "would not be harassed any more." Thereafter the police officers and the witnesses who were watching the appellant rushed into his office and recovered the currency notes and the bottle of liquor from him.
The appellant was prosecuted for offences under section 161 I.P. Code and section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947, after obtaining the sanction of the Deputy Chief Commercial Superintendent.
It was discovered during the course of the trial that the Deputy Chief Commercial Superintendent was not competent to sanction the prosecution of the appellant.
The Special Judge, at the request of the public prosecutor, by order dated May 27, 1960, quashed the proceeding.
Thereafter a fresh sanction was obtained from the Chief Commercial Superintendent, North Eastern Railway, Gorakhpur and the proceeding was again started against the appellant on a charge for offences under section 161 I.P. Code and section 5(1)(d) read with s, 5(2) of the Prevention of Corruption Act, 1947.
The appellant was convicted by the Special Judge and was sentenced to suffer rigorous imprisonment for two years on each count, the sentences to run concurrently.
The order was confirmed in appeal by the High Court of Allahabad.
The appellant has appealed to this Court with special leave.
The evidence of Ghammoo, and J.K. Mehta and V.P. Chaturvedi officers of the Special Police Establishment, and two panchas Krishna Lal and Gandhi Singh was accepted by the Special Judge and by the High Court, the Special Judge held that the appellant had under a threat compelled Ghammoo to give him Rs. 15 and half a bottle of liquor.
The marked currency notes were found on the person of the appellant when the police officers rushed into his office immediately after he received the currency notes from Ghammoo.
The story of the appellant that Ghammoo had been instrumental in filing a false prosecution due to enmity was discarded.
His story that the currency notes and the bottle of liquor were brought by Ghammoo voluntarily and had been placed on his table without any demand by him was also rejected.
There is therefore clear evidence to establish the case for the prosecution that the appellant received a bribe from Ghammoo as a motive for forbearing to show in the exercise of his official functions disfavour against Ghammoo.
951 Counsel for the appellant, however, raised three contentions in support of the appeal: (1 ) The trial by the Special Judge was without jurisdiction because the appellant had been previously tried and had been acquitted in respect of the same offence.
In support of this contention counsel contended that the sanction given by the Deputy Chief Commercial Superintendent for prosecuting the appellant under the Prevention of Corruption Act was a valid sanction, and the order passed by the Special Judge on May 27, 1960, quashing the proceeding at the request of the public prosecutor amounted in law to an order of acquittal and the ,appellant could not again be tried for the same offence.
By virtue of section 6(c) of the Prevention of Corruption Act, 1947, a Court may take cognizance of an offence punishable under section 161 I.P. Code or under section 5 (2) of the Prevention of Corruption Act in the case of a public servant not employed in connection with the affairs of the Union or the affairs of a State, only with the previous sanction of the authority competent to remove him from office.
Cognizance was taken of the offences for which the appellant was tried at the first trial with the sanction of the Deputy Chief Commercial Superintendent, North Eastern Railway, Gorakhpur.
On May 27, 1960, the public prosecutor applied for withdrawal of the case of the prosecution on the ground that the sanction was ineffective.
The Special Judge granted the request and ordered that the proceeding be quashed.
Thereafter a fresh sanction was obtained from the Chief Commercial Superintendent, North Eastern Railway, Gorakhpur.
It is contended that the Deputy Chief Commercial Superintendent was competent to sanction the prosecution of the appellant and the order quashing the trial operated as an order of acquittal.
The appellant was appointed by the Traffic Manager of the O.T. Railway in 1947.
After the amalgamation of that Railway with the North Eastern Railway the office of Traffic Manager was abolished and the powers of that Office were thereafter exercisable by the Chief Commercial Superintendent of the North Eastern Railway.
Under r. 1705 cl.
(c) of the Indian Railway Establishment Code no railway servant is liable to be removed or dismissed by an authority lower than that by which he was appointed to the: post held by him substantively.
This rule in substance gives effect to article 311 (1 ) of the Constitution.
Since the appellant was appointed by the Traffic Manager of the O.T. Railway, after amalgamation of that Railway, the power to remove the appellant could be exercised by the Chief Commercial Superintendent.
Counsel for the appellant urged that under cl.
(i) of r. 1704 of the Indian Railway Establishment Code, the authorities specified in column 3 of Sch.
I appended to the Rules in Ch.
XVII of the State Railway Establishment Code Vol. 1, may impose the penalties specified in column 4 upon the classes of railway servants shown in column 952 2 of that Schedule, and Sch.
I which occurs in Appendix III confers upon the Deputy Heads of Department "full powers" of removal from service.
Consequently, it was said, the Deputy Chief Commercial Superintendent had the power to remove the appellant from service, and was competent to grant sanction under section 6 of the Prevention of Corruption Act for the prosecution of the appellant, and that the order passed by the Special Judge quashing the proceeding on May 27, 1960, amounted to an order of acquittal.
But r. 1704 is subject to the provisions of r. 1705, and by r. 1705 it is expressly provided that a railway servant shall not be removed or dismissed by an authority lower than that by which he was appointed to the post head by him substantively.
The powers exercisable under r. 1704(i) being subject to cl.
(c) of r. 1705, and also to the provisions of article 311 of the Constitution, the Deputy Chief Commercial Superintendent could not remove the appellant from service.
It follows therefore that the Deputy Chief Commercial Superintendent had no power to grant sanction for prosecution of the appellant, since he was an officer inferior in rank to the Officer who had appointed the appellant as a railway servant.
The Court may take cognizance of an offence against a public servant for the offences set out in section 6 of the Prevention of Corruption Act only after the previous sanction of the specified authority is obtained.
The Special Judge who had taken cognizance of the.case on a sanction given by the Deputy Chief Commercial Superintendent was incompetent to try the case, and an order of acquittal passed by a Court which had no jurisdiction does not bar a retrial for the same offence.
It is unnecessary, therefore, to consider whether the order quashing the proceeding amounted to an order of acquittal.
(2) The facts necessary to ,appreciate the second contention about the irregularity of the procedure followed by the Special Judge are these: J.K. Mehta and V.P. Chaturvedi were examined as witnesses for the prosecution before Mr. Fakhrul Hasan, Special Judge.
Their evidence was recorded in accordance with section 356 Code of Criminal Procedure under supervision of the Special Judge, and record of the evidence was made in Hindi and an English memorandum of the evidence was also maintained by the Special Judge.
The statements of the witnesses were read over to them 'and were signed by them in acknowledgment of their correctness.
But Mr. Fakhrul Hasan died before he could append his signature thereto.
Before the successor of Mr. Fakhrul Hasan, J.K. Mehta and V.P. Chaturvedi were recalled and their evidence which was previously recorded was read over to them.
They confirmed its correctness.
The Special Judge 'also offered to counsel for the appellant opportunity to cross examine the witnesses, but the offer was declined.
No objection was raised to the reading over of the evidence to the witnesses.
It was not suggested 953 that the witnesses should be re examined.
The Special Judge thereafter subscribed his signature to the record of the statements of the witnesses, and to the English memoranda of evidence.
There is no suggestion of injustice actual or possible arising from the failure to comply strictly with the statute: it is contended that failure to observe the letter of the law invalidated the trial.
Section 356( 1 ) of the Code of Criminal Procedure provides: "In all other trials before Courts of Session and Magistrate . the evidence of each witness shall be taken down in writing in the ,language of the Court, either by the Magistrate or Sessions Judge with his own hand or from his dictation in open Court or m his presence and hearing and under his personal direction and superintendence, and the evidence so taken down shall be signed by the Magistrate or Sessions Judge ,and shall form part of the record." Evidence of the witnesses was recorded in the presence and hearing and the personal direction and superintendence of Mr. Fakhrul Hasan.
Mr. Fakhrul Hasan died before he could subscribe his signature.
It is true that the Legislature has enacted that "the evidence so taken down shall be signed by the Magistrate or Sessions Judge".
As observed by Lord Campbell in the case of the Liverpool Borough Bank vs Turner(1): "No universal rule can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience.
It is the duty of Courts of Justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.
. . in each case you must look to the subject matter, consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act, and, upon a review of the case in that aspect, decide whether the matter is what is called imperative or only directory.
" Section 356 deals with the mode of recording evidence.
The object of the section is to maintain a correct record of the testimony of the witnesses.
The section occurs in Ch.
XXV of the Code, 'and deals with the mode of taking and recording evidence in inquiries and trials.
To ensure a fair trial it is provided that the evidence shall be recorded in the presence of the accused, or where his presence is dispensed with in the presence of his lawyer, (1) ; 954 (section 353 ): in cases tried before the Court of Session, or Magistrates other than Presidency Magistrates, the evidence shall be taken down in writing in the language of the Court either in his own hand by the presiding officer or under his direction in open Court, or in his presence and hearing and under his personal supervision, and shall be signed by him, (section 356): the evidence shall after it is completed be read over to each witness, in the presence of the accused or his lawyer, and it may, if necessary, be corrected, Is. [360(1)]: if the evidence is taken down in 'a language different from the language in which it is given, and the witness does not understand the language in which it is taken down, it shall be interpreted to him Is.[360(3)]: if the accused does not understand the language in which the evidence is given, it shall be interpreted in the language understood by him: and the statement of the accused shall be recorded in the form of questions and answers, Is.
[364(1)], whereas the evidence of witnesses shall unless otherwise directed be taken in narrative form.
Compliance with the provisions is insisted upon in the larger interest of justice, but every departure from the strict letter of the law will not affect the validity of the trial.
The object of the provisions being to ensure that a correct record is maintained of what is said in Court ' by witnesses, so that it may be available at a later stage of the trial and in 'appeal, if the Court is satisfied that in a given case the record notwithstanding any departure from the provisions is correct the irregularity may be ignored if no injustice has resulted therefrom.
A rule relating to.the appending of the signature of the Judge on the record of the evidence does not go to the root of the trial.
Section 537 Code of Criminal Procedure is intended to meet situations in which the strict letter of the law is not complied with.
The section, insofar as it is material, provides: "Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction, shall be reversed or altered under Ch.
XXVII or on appeal or revision on account (a) of any error, omission, or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceeding before or during trial or in any inquiry or other proceeding under this Code, or Explanation.
In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice.
the Court shall have regard to the fact whether the objection could and 955 should have been raised at an earlier stage in the proceedings.
" There was irregularity in maintaining the record of the evidence at the trial, because the evidence was recorded before one Judge and another Judge subscribed his signature to the record of that evidence.
There was, therefore, no strict compliance with the provisions of section 356(1) Code of Criminal Procedure.
But no ground for holding that the trial is vitiated is made out merely because instead of the Judge who heard the evidence, his successor had signed the record.
In Abdul Rahman vs King Emperor(1), at the trial of a person accused of a charge for abetment of forgery the deposition of witnesses were read over to them while the case otherwise proceeded, and the evidence of some other witnesses was handed over to them to read to themselves.
There was violation of section 360 Code of Criminal Procedure which provided that deposition of each witness should be read over to him in the ' presence of the accused or his pleader.
An objection was raised as to the validity of the order of conviction on the ground that the requirements of section 360 of the Code of Criminal Procedure were not complied with.
No inaccuracy in the deposition was suggested, but only failure to comply with the strict requirements of section 360 was made the ground on which the trial was contended to be vitiated.
The Judicial Committee observed that there had been no actual or possible failure of justice.
According to the Judicial Committee reading over of the depositions of the witnesses while the case was otherwise proceeding was not a violation of section 360 of the Code, and that giving of depositions to witnesses to read to themselves was rightly treated by the High Court as an irregularity curable under section 537 of the Code of Criminal Procedure.
Failure to record the evidence of witnesses J.K. Mehta and V.P. Chaturvedi again in the presence and under the superintendence of the Judge who signed may be a regrettable irregularity, but it does not vitiate the trial.
Counsel for the appellant, however, invited our attention to the judgment of the Privy Council in Nazir Ahmad vs The King Emperor(2), and contended that where the Legislature has prescribed a method in respect of a certain thing, it means that that is the only method in which the thing must be done or not at all.
Counsel said that the method of recording the evidence and of maintaining the record is prescribed by section 356 of the Code of Criminal Procedure and no substitute is permissible.
In our judgment, the principle of Nazir Ahmed 's case(2) has no application here.
That was a case in which the appellant who was charged with dacoity and murder was convicted on the strength (1) L.R. 54 I.A. 96.
(2) L.R. 63 I.A. 372.
956 of a confession said to have been made by him to a magistrate of the class entitled to proceed under the provisions of section 164 of the Code of Criminal Procedure relating to the recording of Confessions.
The confession was not recorded according to the procedure prescribed by section 164 of the Code of Criminal procedure and the record of the confession was not therefore available as evidence.
The Magistrate however appeared as 'a witness and gave oral evidence about the making of the confession.
The Judicial Committee held that the oral evidence of the Magistrate of the alleged confession was inadmissible.
According to the Judicial Committee the effect of sections 164 and 364 of the Code of Criminal Procedure, construed together, is to prescribe the mode in which confessions are to be dealt with by magistrates when made during an investigation.
The rule that where a power is given to do a certain thing in a certain way the thing must be done in that way, to the exclusion of all other methods of performance, or not at all, was applicable to a magistrate, who is a judicial officer, acting under section 164.
In that case, in the view of the Judicial Committee, the only manner in which a judicial confession could be recorded is the one prescribed by section 164 of the Code of Criminal Procedure and if it is not so corded no evidence of the making of that confession was admissible.
The reasons for that view were explained by the Judicial Committee.
A judicial confession in a trial is of greater sanctity because it is recorded before an independent Judicial Officer after taking full precautions to ensure that the accused making the confession is free from all police or other influence and after the accused has had sufficient opportunity of considering whether he should or should not make confession and that there is no compulsion upon the accused to make a confession.
The law requires that the accused must be explained that he is not bound to make the confession.
A confession obtained in such circumstances has great probative value in considering its voluntary character.
Section 164 prescribes stringent rules as to the manner in which the confession has to be recorded.
If the rules are not complied with, there is no guarantee that the confession has been voluntarily made.
It is in the context of these provisions that the Judicial Committee held that confession which is not recorded in the manner prescribed by section 164 of the Code of Criminal Procedure cannot be deposed to by a Magistrate as if it was an extra judicial confession.
The Judicial Committee observed that when the Legislature has prescribed the method of recording the confessions under section 164 and section 364 it would be an unnatural construction to hold that any other procedure was permitted than that which is laid down with such minute particularity in the sections themselves.
They further observed: "As 'a matter of good sense, the position of accused persons and the position of magistracy are both to be 957 considered.
An examination of the Code shows how carefully and precisely defined is the procedure regulating what may be asked of or done in the matter of examination of, accused persons, and as to how the results are to be recorded and what use is to be made of such records.
Nor is this surprising in a jurisdiction where it is not permissible for an accused person to give evidence on oath.
So with regard to the magistracy: it is for obvious reasons most undesirable that magistrates and judges should be in the position of witnesses in so ,far as it can be avoided.
Sometimes it cannot be avoided, as under section 533; but where matter can be made of record and therefore admissible as such there are the strongest reasons of policy for supposing that the Legislature designed that it should be made available in that form and no other.
In their Lordships ' view, it would be particularly unfortunate if magistrates were ,asked at all generally to act rather as police officers the as judicial persons, to be by reason of their position freed from the disability that attaches to police officers under section 162 of the Code; and to be at the same time freed, notwithstanding their position as magistrates, from any obligation to make records under section 164." No such considerations apply to the record of evidence of witnesses given in open court made in the presence and under the personal supervision of a Judge and in the presence of the accused, and his lawyer.
(3) It was then urged that the investigation was made by an officer who had no 'authority to investigate the offence.
After Ghammoo made his complaint sanction of the Additional District Magistrate (Judicial) was obtained for investigation of the case by a police officer below the rank of a Deputy Superintendent of Police.
Section 5A(1 )(d) of the Prevention of Corruption Act, 1947, provides: "No police officer below the rank of a Deputy Superintendent of Police shall investigate any offence punishable under section 161, section 165 or section 165A of the I.P.C. or under section 5 of this Act without order of a Presidency Magistrate or a Magistrate of the First Class, as the case may be, or to make any arrest therefore without a warrant . " The Legislature has provided that ordinarily investigation of a case against a public servant should be made by an officer not below the rank of a Deputy Superintendent of Police in connection with the charge of bribery and related offences.
But the Legis 958 lature has expressly provided that an Officer below the rank of a Deputy Superintendent of Police may investigate those offences with the order of a Presidency Magistrate or a Magistrate of the First Class.
In the present case the order of the Additional District Magistrate who held the office of a First Class Magistrate was obtained authorising an Officer below the rank of a Deputy Superintendent of Police to investigate the offence.
No objection is raised to the regularity of the proceeding before the Additional District Magistrate, nor is there any ground that for an oblique motive, services of an officer below the rank of a Deputy Superintendent of Police were used in making the investigation against the appellant.
The third contention must also fail.
The appeal fails and is dismissed.
R.K.P. section Appeal dismissed.
| IN-Abs | The appellant, who was a Platform Inspector employed by the North Eastern Railway was prosecuted for offences under section 161 I.P.C. and section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947 for accepting a bribe from another subordinate railway employee.
The prosecution was commenced after obtaining the sanction of the Deputy Chief Commercial Superintendent but it was discovered during the trial that this officer was not competent to sanction the appellant 's prosecution.
The trial Judge, at the request of the Public Prosecutor, quashed the proceedings.
Thereafter.
sanction was obtained from the Chief Commercial Superintendent and in fresh proceedings for the same offences, the appellant was convicted and the order of conviction was confirmed in appeal by the High Court.
In appeal to this Court it was contended on behalf of the appellant: (i) that in view of the provisions of cl.
(i) of r. 1704 of the Indian Railway Establishment Code, the Deputy Chief Commercial Superintendent had the power to remove the appellant from service, and was competent to grant sanction under section 6(c) of the Prevention of Corruption Act for his prosecution; the sanction given by the Deputy Chief Commercial Superintendent for prosecuting the appellant was therefore valid and the order passed by the Special Judge quashing the proceeding amounted in law to an order of acquittal so that the appellant could not again be tried for the same offence; (ii) that in relation to the evidence of two witnesses for the prosecution, the provisions of section 356 Cr.
P.C. had not been complied with in that, the evidence of these witnesses was recorded in the presence of one trial Judge and the record of the evidence had been signed by his successor in office, after the death of the former; and (iii) that the investigation was made by an officer who.
in view of the provisions of section 5A(1)(d) of the Prevention of Corruption Act, 1947 had no authority to investigate the offence as he was a Police Officer below the rank of a Deputy Superintendent of Police.
949 HELD: Dismissing the appeal, (i) The powers exercisable under r. 1704 (i) being subject to cl.
(c) of r. 1705 of the Indian Railway Establishment Code and also to the provisions of article 311 of the Constitution in the present case the Deputy Chief Commercial Superintendent could not remove the appellant from service and, therefore had no power to sanction his prosecution.
the trial judge who had taken cognizance of the case on a sanction given by the Deputy Chief Commercial Superintendent was incompetent to try the case, and an order of acquittal passed by a court which had no jurisdiction did not bar a retrial for the same offence.
[952 C E] (ii) There was irregularity in maintaining the record of the evidence at the trial because the evidence was recorded before one Judge and another Judge.
subscribed his signature to the record of that evidence, and on that account there was nOn compliance with the provisions of section 356(1) Cr.P.C., but this was an irregularity curable under section 537 Cr.
P.C. and did not vitiate the trial.
[955 B. E] The object of the provisions in the Code relating to the recording of evidence is to ensure that a correct record is maintained of what is said in court by witnesses, and the record may be available at a later stage of the trial and in appeal.
If the court is satisfied that in a given case the record notwithstanding any departure from the provisions relating to maintenance of the record is correct the irregularity may be ignored if no injustice has resulted therefrom.
[954 D] Liverpool Borough Bank vs Turner, ; , referred to.
Abdul Rahman vs King Emperor, L.R. 54 I.A. 96, distinguished.
(iii) By section 5A(1)(d) the legislature has expressly provided that an officer below the rank of a Deputy Superintendent of Police may conduct the investigation with the order of a Presidency Magistrate or a Magistrate of the First Class.
In the present case such are order of the Additional District Magistrate who held the office of a First Class Magistrate was obtained and there was compliance with the provisions of section 5A(1)(d).
[957 H]
|
minal Appeal No. 190 of 1966.
Appeal by special leave from the judgment and order dated February 4, 1966 of the Patna High Court in Government Appeal No. 14 of 1963.
B.P. Singh and S.N. Prasad, for the appellant.
A.S.R. Chari and U.P. Singh, for the respondent.
The Judgment of the Court was delivered by Mitter, J.
The main question involved in this appeal is, whether the statement of the appellant recorded by a village Mukhiya before he was handed over to the police is admissible in evidence; and if so, whether the court could reject a part thereof and rely on the remainder along with other evidence adduced to hold him guilty of an offence he was charged with.
The evidence against the appellant was all circumstantial and there can be no doubt that if the statement before the Mukhiya is to be left out of consideration, the appellant cannot be held guilty.
The appellant who was a student of a school in Jhajha was charged with the murder of a fellow student of the same school and robbing him of the sum of Rs. 34 On October 12, 1961.
The Additional Sessions Judge, Santal Parganas acquitted the appellant of both the charges but, in appeal, the High Court found him guilty of the charge of murder and sentenced him to imprisonment for life.
The appellant has come up to this Court by special leave.
The case of the prosecution leading to the discovery of the murder and arrest of the appellant is as follows.
When the Barauni Sealdah passenger reached Madhupur station at about 3.52 p.m. on 12th October 1961 the dead body of a person was discovered in the lavatory of a first class compartment of that train.
One Anil Kumar Roy who wanted to board the said compartment at Jasidih station (in between Jhajha and Madhupur) could not get the door opened and had to board another compartment.
The dead body was found with the neck cut and besmeared with blood.
Blood was coming out from the veins of the neck and there was plenty of it on the floor of the lavatory.
The clothes of the deceased and his belongings like a comb, handkerchief were also blood stained and there were finger marks in the lavatory.
Photographs of the deceased were taken and later the body was identified as that of Jai Prakash Dubey, a student of class X B Science of Jhajha High School.
The post mortem report showed that there were no less than six incised injuries caused by some sharp cutting weapon.
The injuries were homicidal and death was caused by bleeding and shock 1035 The appellant was noticed by one Ram Kishore Pandey (P.W. 17) washing blood stained clothes with soap in the river patro about one hour before sunset on 12th October 1961.
Pandey noticed that the left hand of the appellant was cut and he questioned the appellant as to how he had got ' his clothes bloodstained.
The appellant 's version was that when he was coming from the side of Gangamarni a cow boy had assaulted him and cut his finger with glass and snatched away his money.
Reaching his house in village Saptar, Pandey mentioned this to Shiv Shankar Pandey, P.W. 25.
Shiv Shankar Pandey learnt from his eider brother, Basdeo that a murder had been committed in the Barauni train and the murderer was missing.
They suspected that the appellant might be the murderer and decided to go and search for him.
All the three along with Pathal Turi and one, Ayodhya Turi, two chowkidars went to the bank of that river but could not find the appellant.
There they were told by Jaganath Mahto and Rameshwar Mahto (P.Ws. 19 and 20) that they had noticed a man with wet clothes asking the way to Deoghar.
Proceeding further, this group of persons found the appellant about a mile from Titithapur going behind a bullock cart.
On being accosted the appellant said that he was going to village Roshan to his sister 's place and that he had not committed any murder.
The appellant was then wearing a pair of trousers and a shirt and had with him some books.
an exercise book, a chhura (knife) besides a pair of trousers and a shirt which were both wet.
They apprehended the appellant and took him to village Saptar.
They called on the Sarpanch of the village who directed them to take the appellant to the Mukhiya not making any enquiry himself The Mukhiya 's place in Lorajore was at a distance of about a mile from Saptar.
The party reached there at about 9 O ' clock at night and stayed there for 2 or 3 hours.
At about midnight on 12th October 1961 the Mukhiya took down the statement (exhibit 6) of the appellant and directed the party to take the appellant to the police station.
The party reached Madhupur police station at about 5 a.m. on October 13, 1961.
Brij Bihari Pathak, Sub Inspector of Police (P.W. 39) seized the articles which the appellant had with him in the presence of two witnesses and prepared a seizure list.
The articles seized from the accused included a shirt, a pair of trousers, a leather belt, a pair of shoes, 4 bloodstained copy books, two books, pages of one being blood stained.
He also prepared an injury report of the appellant and sent him to a doctor for examination.
The officer in charge of the Railway Police Station Madhupur, Gorakh Prasad Singh (P.W. 511) proceeded with the investigation, took charge of various articles found in the compartment of the Barauni passenger, received the post mortem report, examined witnesses and sent all the material exhibits to the Chemical Examiner for examination and report.
The report of the Chemical Examiner showed that among the 1036 articles found with the appellant Nishi Kant Jha and sent up for examination the following were stained with human blood: (1) leather belt cutting (2) cuttings of underwear, trousers and shirt (3) pair of chappal (4) portion of a shoe (5) one big knife and (6) several books, papers and an exercise book.
The report also showed that sample of blood found on the deceased was of the same group as that of the appellant.
The appellant pleaded not guilty.
Before taking a note of his statement under section 342 of the Code of Criminal Procedure, it will be useful to reproduce his statement exhibit 6 recorded by Mukhiya at Lorajore before he was handed over to the police.
The statement reads: "I am Nishi Kant Jha, son of Nilkanth Jha, resident of Baburpur, P.S. Jasidih sub division Deoghar, District Santhai Parganas.
To day 12 10 61 at about 12 midnight, chowkidars Pathal Turi and Ayodhya Turi of village Saptar and Sheo Shankar Pandey, Ram Kishore Pandey and Basudeo Pandey of the same village arrested me and brought me.
My statement is that when I boarded the first class compartment in Barauni passenger at Jhajha, an unknown person was sitting in it when the train reached near Simultala and when it stopped there, Lal Mohan Sharma, resident of Deoghar, P.S. Deoghar, district Dumka entered into that compartment.
I had been knowing him from before.
When the train stopped at the Jasidih station and when I went to get down, Lal Mohan Sharma who had boarded the train at Simultala, did not allow me to get down at the Jasidih station.
When the train moved ahead of Jasidih station, in the meanwhile Lal Mohan Sharma took that outsider into the lavatory and began to beat him.
At this I caught hold of his hand, as a result of which my left fore finger got injured with knife.
Thereupon he asked me to be careful.
Then, on being afraid, I sat quietly in that very compartment.
He further said that I should not open the door and window of the compartment and if would do so I would be inviting death.
At that very time, he killed him.
When the train was reaching near Mathurapur, he jumped down from the running train and fled away.
Lal Mohan Sharma fled away.
also jumped down on the other side of Patro river near Madhupur and fled away in order to save my life, because I apprehended that I would be the only person who would be arrested.
Thereafter, I came to the village Ratu Bahiar lying by the side of Patro river and afterwards I took my clothes to Patro river and washed them with a soap.
Mean 1037 while a bullock cart was going to Deoghar.
Therefore I sat on that very bullock cart and started for Deoghar.
After I had covered about a mile, Pathal Turi, Shanker Pandey, Ram Kishore Pandey, Ayodhya Turi, the chowkidar and Rameshwar Mahto got me down from the bullock cart and brought before you.
I know their names after enquiring the same from them.
" At the end of the statement there was an endorsement reading: "On my understanding my statement, I affix my signature.
" The signature appearing thereunder was admitted by the appellant to be his beating date 12th October 1961.
From the said statement the following emerge: (1 ) The appellant had boarded a first class compartment in Barauni passenger at Jhajha already occupied by a person not known to him.
(2) When the train reached Simultala one Lal Mohan Sharma, resident of Deoghar entered that compartment (3 ) When the train proceeded further and stopped at Jasidih station, the appellant wanted to get down but was prevented from doing so by Lal Mohan.
(4) After the train moved out of Jasidih Lal Mohan caught hold of the first occupant of the compartment and took him into the lavatory and started beating him.
(5) The appellant wanted to prevent this and in trying to catch hold of the assailant 's hand he was injured by a knife.
Thereafter he took no further steps to prevent the commission of the crime.
(6) Lal Mohan Sharma threatened him with death in case he wanted to open the door or the window of the compartment and killed the stranger.
(7) When the train was reaching Mathurapur Lal Mohan jumped out of it and ran away.
(8) The appellant also jumped out of the train after it had crossed the river Patro near Madhupur and fled away to save his life because he was apprehensive of being arrested as the only person left in the compartment.
(9) He went to the village Ratu Bahiar near the river Patro and washed his clothes in the river with a soap.
(10) Thereafter he took a tide in a bullock cart going to Deoghar but after covering a mile or so he was apprehended by Pathal Turi, Shanker Pandey, Ram Kishore Pandey, Ayodhya Turi, the chowkidar and Rameshwar Mahto.
1038 On the face of it the statement goes to show that the appellant was present in the compartment when the murder was committed by Lal Mohan Sharma, that he did not know the victim, that the murder was committed after the train had left Jasidih station, that he himself was prevented from getting out of the train at Jasidih, that he suffered an injury on his left fore finger from the knife of the assailant and that he jumped out of the train near the river Patro.
He did not mention having been accosted by Ram Kishore Pandey while he was washing his clothes in the river nor did he make any statement to the effect that he had received the injury as a result of a scuffle with a cow boy.
At the trial evidence was adduced by the Headmaster of the school that Jai Prakash Dubey, the victim, was an old student while the appellant had joined that school in the month of March 1961.
They belonged to the same standard but were not in the same section inasmuch as one was in the arts section while the other was in the science section.
The headmaster deposed to the fact that both of them used to play football and that no enmity was known to exist between the two.
In his statement under section 342 Cr.
P.C. the appellant said that he could not identify the photographs of the victim as those of Jai Prakash Dubey and that he did not know Jai Prakash Dubey.
He did not board a first class compartment of Barauni passenger at Jhajha, that he did not jump off the train when it was nearing Madhupur.
He admitted having washed his blood stained clothes in the river Patro near the village of Ratu Bahiar and that a person had enquired of him the reason for his clothes being stained with blood.
He did not admit that he had told anyone that while coming from the side of Gangamarni he had been assaulted by some herdsman and cut his finger with glass and said that his reply to the query was that he had an altercation with a herdsman on his asking about the way when the latter wanted to assault him with a sharp edged knife and on his catching hold of it he had cut his hand.
He denied having enquired of anybody about the way leading to Deoghar and he also denied that he was arrested while he was a mile ahead of village Titithapur following a bullock ' cart.
He admitted having held in his hand clothes which had been washed in the river and blood stained 'books and copy books, pages of some of the books being blood stained.
He did not admit that he had with him a knife when he was arrested.
He admitted having been taken to the house of the Mukhiya, Sudama Raut but his version was that when he reached there they all began to beat him and told him that he must make a statement as suggested by them.
With regard to exhibit 6 his version was that it was not his statement but that he had been made to put his signature on a piece of ' blank paper which was later made use of as his statement.
He denied that the writing of the 1039 endorsement ascribed to him was his.
His account of the activities.
on that day was 'as follows.
He had boarded a third class compartment in Toofan Express on 12th October 1961 intending to pay a visit to his father 's sister 's daughter at Roshan and thereafter going to his native place.
He had reached Madhupur at about 12.30 p.m. and left for Roshan.
He had lost his way after some distance and enquired of some herdsmen about the way to the village.
, These herdsmen started to abuse him for having lost his way.
On his remonstration, a scuffle took place.
At this point of time another herdsman appeared with a lathi which was shining like glass and wanted to assault him with this.
On his catching hold of the lathi he got his hand cut which was bleeding.
His clothes and books also got stained with blood whereupon the herdsman ran away.
He purchased a soap and went to wash his clothes in Patro river and take his bath.
People who met him there had asked.
him about his injury and he had given them the version just now mentioned.
Thereafter when he was nearing the village, Roshan a number of persons came and apprehended him on a charge of murder.
They took him to the Mukhiya 's house at 8.30 p.m. in the night and kept him there assaulting him with lathis and slaps.
The Mukhiya had asked him to confess his guilt and give a statement and on his refusing to do so, he was again assaulted and threatened with death.
Through fear he had affixed his signature on a blank paper.
On the evidence the High Court found that the train had left Jasidih at 3.23 p.m. its next halt being Madhupur where it reached at 3.52 p.m.
The door of a first class compartment was found closed at Jasidih and could not be opened.
In the view of the High Court the murder was committed in the lavatory of the first class compartment between Jasidih and Madhupur.
On a close scrutiny of the evidence adduced, the High Court found the following incriminating circumstances against the appellant : (a) Only about two hours after the murder i.e. between 5 to 6 p.m. he was seen washing his blood stained ,,clothes on the bank of the river Patro.
(b) At the time of his apprehension by Ram Kishore Pandey and others he was holding blood stained exercise books, and other books some of the pages being blood stained.
(c) He also had with him at that time a knife 'the length of the blade and the handle of which was about 9".
(d) According to the medical evidence the injuries.
of the victim could have been caused by that knife ,which was in the possession of the, appellant .
One of the horizontal '.
incised inJuries i.e. injury No. 6, was 5" x 2" x '3/4 ' '.
6 Sup.
CI/69 15 1040 (e) The left hand of the respondent was noticed with a cut injury at the bank of the said river.
The marks of other injuries on the body of the appellant were compatible with a scuffle with the victim in the compartment of the train.
(f) The explanation of the appellant with regard to the possession of blood stained clothes and articles and the injury on his body,was not acceptable.
In the light of the above incriminating circumstances culled from the evidence, the acceptance of the statement of the appellant in exhibit 6 that he had travelled together with an unknown person, later identified as the victim Jai Prakash Dubey in the same compartment would be conclusive to prove the guilt of the appellant if his further statement in exhibit 6 about the part played by Lal Mohan Sharma be rejected.
The appellant had admitted his presence on the scene of the murder, but it was his version that the crime was committed by someone else while he himself was a helpless spectator.
When the assailant jumped off the train he followed suit being apprehensive of arrest on the charge of murdering the unknown person.
He had done so near the river Patro.
Some portions of the statement were not found to be acceptable.
It is not possible to believe that if Lal Mohan Sharma wanted to commit the murder he would prevent the appellant from getting off the train at Jasidih so as to have a witness who knew his name and address and testify to his commission of the crime.
Lal Mohan Sharma was not in the train at Jhajha and no details were given about any quarrel between him and the victim which might lead the former to make the attack on Jai Prakash.
Apparently there was no motive for Lal Mohan Sharma 's commission of the crime.
Again it is not possible to believe that Lal Mohan Sharma should not have tried to do away with the appellant also.
The version of the appellant receiving the injury on his left hand in the railway compartment was also unbelievable.
So was his story of a scuffle with the herdsman and cutting his hand as a result thereof.
The cause for the herdsmen abusing the appellant and his remonstrance followed by an attack on his person all appear to be imaginary.
The only incised injury which the appellant had suffered was skin deep and it is impossible to accept the story that the bleeding was so profuse as to have necessitated his washing his shirt and trousers in the river.
Nor does such an injury account for the other articles like his belt, shoes and books being stained with blood which was sought to be removed by washing.
The contention urged on behalf of the appellant that the statement was not voluntarily made and as such could not be admitted in evidence was rightly rejected by the High Court,.
The High.
1041 Court noted that no suggestion had been made to any one of the persons who had taken the appellant to the Mukhiya and had been tendered for cross examination that any of them had assaulted the appellant nor was any suggestion made that the appellant had been coerced or threatened with dire consequences if he did not make the statement.
The appellant 's own version that he was made to give his signature on a blank ' piece of paper cuts at the root of his case that he made a statement as a result of a threat or assault, for in that case, all that was necessary was to get his signature.
A point was sought to be made by counsel for the appellant ,that the footprints and finger prints in the lavatory of the first class compartment taken at Madhupur station were found to be different from those of the appellant and that this went to show that the appellant could not have been the murderer.
The High Court turned down this contention on the ground that before the police took charge of the situation many people had entered the compartment of the train and the above difference therefore was not a factor on which any reliance could be placed.
The High Court found that the appellant 's version that he did not know the victim unacceptable.
His version in exhibit 6 as to how he came to sustain his cut injury was entirely different from that given in his statement under section 342.
The High Court also could not accept his version that he had lost his way to his sister 's village at Roshan and that he had suffered an injury in the way suggested by him in his statement under section 342.
But however grave the incriminating circumstances against the appellant as summarised by the High Court may be, they were not enough to fasten the guilt on the accused unless a portion of his statement exhibit 6 is pieced together with them.
It is only this statement which contains an admission that he was travelling by the Barauni passenger in a compartment where he saw a murder committed and that he had jumped out of the train near the river Patro before getting to Madhupur and the entire evidence minus the unacceptable portion of exhibit 6 lead to the irresistible conclusion of the appellants guilt.
It was contended before us by learned counsel for the appellant that if the statement is to be considered at all, it must be taken as a whole and the Court could not act upon one portion of it while rejecting the other.
Counsel sought to rely on three judgments of this Court in aid of his contention that a statement which contains any admission or confession must be considered as a whole and the Court is not free to accept one part while rejecting the rest.
In our view, the proposition stated so widely cannot be accepted.
As Taylor puts it in his Law of Evidence (11th edition) article 725 at page 502 that with regard to the general law of admissions, the first important rule is that 1042 "the whole statement containing.
admissions must be taken together; for though some part of it may be favourable to the party, and the object is only to ascertain what he has conceded against himself, and what may therefore be presumed to be true, yet, unless the whole is received, the true meaning of the part, which is evidence against him, cannot be ascertained.
But though the whole of what he said at the same time, and relating to the same subject, must be given in evidence, it does not follow that all the parts of the 'statement should be regarded as equally deserving of credit; but the jury must consider, under the circumstances, how much of the entire statement they deem wo rthy of belief, including as well the facts asserted by the party in his own favour as those making against him.
" With regard to criminal cases, ,Taylor states: "In the proof of confessions as in the case of admissions in civil causes the whole of what the prisoner said on the subject at the time of making the confession should be taken together.
But if, after the entire statement of the prisoner has been given in evidence, the prosecutor can contradict any part of it, he is at liberty to do so; and then the whole testimony is left to the jury for their consideration, precisely as in other cases where one part of the evidence is contradictory to another.
Even without such contradiction it is not to be supposed that all the parts of a confession are entitled to equal credit.
The jury may believe that part which charges the prisoner, and reject that which is in his favour, if they see sufficient grounds for so doing.
If what he said in his own favour is not contradicted by evidence offered by the prosecutor, nor is improbable in itself, it will be naturally believed by the jury; but they are not bound to give weight to it on that account, being at liberty to judge of it, like other evidence, by all the circumstances of the case.
" In Roscoe 's book on Criminal Evidence (16th Edition, page 52).
the statement of law is much to the same effect.
Roscoe also cites a decision in Rex vs Clewes(x) where the confession of the prisoner charged with murder 'that he was present at the murder but that it was committed by another person and that he took no part in it, was left to be considered by the jury with a direction that the jury might, if they thought proper, believe one part of it (1) 4 Car. &.P, 221. 1043 and disbelieve another.
According to Archbold 's Criminal Pleading, Evidence and Practice (Thirty sixth Edition, page 423): "In all cases the whole of the confession should be given in evidence; for it is a general rule that the whole of the account which a party gives of a transaction must be taken together; and his admission of a fact disadvantageous to himself shall not be received, without 'receiving at the same time his contemporaneous assertion of a fact favourable to him, not merely as evidence that had made such assertion, but admissible evidence of the matter thus alleged by him in his discharge .
It has been said that if there be no other evidence in the case, or none which is incompatible with the confession, it must be taken as true; but the better opinion seems to be that, as in the case of all other evidence, the whole should be left to the jury, to say whether the facts asserted by the prisoner in his favour be true.
" In this case the appellant 's statement in 'exhibit 6 on which reliance is placed to show that the appellant could not be guilty of the crime was found wholly unacceptable.
His version of Lal Mohan Sharma 's commission of the crime, his being prevented from getting down from the train at Jasidih, Lal Mohan apparently committing the crime forcing the appellant to be a witness to it and the latter 's version of the manner in which he received the injury were unacceptable to the High Court and we see no reason to come to any different conclusion.
The other incriminating circumstances already tabulated, considered along with the appellant 's statement that he was present in the compartment when the murder was committed, that he, jumped from the train near the river, that he gave a different version as to how he had received his injury, his statement that he had lost his way to the village Roshan being unacceptable, all point conclusively to having committed the murder.
There is nothing in the judgments of this Court to which reference was made which.
can help the appellant.
In Hanumant vs The State of Madhya Pradesh(1) the facts were 'as follows.
On a complaint filed by the Assistant Inspector.
General of Police, Anti Corruption Department, two persons by name Nargundkar and.
Patel, were tried for the offence of conspiracy to secure a contract of Seoni Distillery by forging the tender exhibit P 3A and for commission of the offence of forgery of the ,tender and of another document exhibit P 24.
The ' Special Magistrate convicted both the appellants on all the three charges.
The Sessions Judge quashed the conviction of both the appellants under the first Charge of (1) [1952] s.c.
R. 1044 Criminal conspiracy but maintained the convictions and sentences under section 465 I.P.C. on the charges of forging exhibit P 3A and P 24.
Both the appellants went up in revision to the High Court without any success.
Examining the evidence in the appeal by special leave, this Court held that the peculiar features relied on by the courts below in exhibit P 3A should be eliminated from consideration and it was held that there were really no circumstances inconsistent with exhibit P 3A being a genuine document.
In respect of the charge regarding exhibit P 24 the trial Magistrate and the Sessions Judge used the evidence of experts to arrive at the finding that the letter exhibit P 24 was typed on article A which had not reached Nagpur till the end of December 1946 and therefore the letter was antedated.
The High Court although of the view that the evidence of the experts was inadmissible proceeded nevertheless to discuss it and place some reliance on it.
The lower courts held that the evidence of experts was corroborated by the statements of the accused recorded under section 342.
In rejecting this conclusion it was observed by this Court: "If the evidence of the experts is eliminated, there is no material for holding that exhibit P 24 was typed on article A.
The trial Magistrate and the learned Sessions Judge used part of the statement of the accused for arriving at the conclusion that the letter not having been typed on article B must necessarily have been typed on article A.
Such use of the statement of the accused was wholly unwarranted.
It is settled law that an admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him.
An admission must be used either as a whole or not at all.
If the statement of the accused is used as a whole, it completely demolishes the prosecution case and, if it is.
not used at all, then there remains no material on the record from which any inference could be drawn that the letter was not written on the date it bears . . we hold that there is no evidence whatsoever on the record to prove that this letter exhibit P 24 was antedated and that being so, the charge in respect of forgery of this letter also fails.
" Learned counsel for the appellant sought to rely on the above statement of law in aid of his Contention that the statement in exhibit 6 should either be taken as a whole or rejected altogether.
In our view that was not the ratio decidendi in Hanumant 's case(1).
As was pointed out by this Court, with the elimination of the evidence of the experts, there was no material for holding that exhibit (1) [1952] s.c.
R. 1045 P 24 was typed on article A and consequently the only evidence on the subject being in the statement of the accused a part of it could not be relied on leaving apart the exculpatory part.
This is made more clear in the next case which was cited by learned counsel.
In Palvinder Kaur vs The State of Punjab(x) 'the appellant was tried for offences under sections 302 and 201, Indian Penal Code in connection with the charge of 'murder of her husband.
She was convicted by the Sessions Judge under section 302 but no verdict was recorded regarding the charge under section 201.
On appeal, the High Court acquitted her of the charge of murder but convicted her under section 201 I.P.C. With regard to this, the High Court held that the most important piece of evidence in support thereof was the confession made by the appellant which though retracted was corroborated on this point by independent evidence so as to establish the charge.
This Court held that there was no evidence to establish affirmatively that the death of the appellant 's husband was caused by poisoning and that being so the charge under section 201 I.P.C. also must fail.
According to this Court, the High Court in reaching a contrary conclusion not only acted on suspicions and conjectures but on inadmissible evidence.
,With regard to the alleged confession of the appellant, it was held that the High Court not only was in error in treating the same as evidence in the case but was further in error in accepting a part of it after finding that the rest of it was false.
In that case, the evidence showed that the body of the appellants husband was found in a trunk and discovered in a well and that the accused had taken part in the disposal of the body but there was no evidence to show the cause of his death or the manner and circumstances in which it came about.
Referring to the decision of Hanumant 's case(2) it was reiterated that the Court cannot accept the inculpatory part of a statement and reject the exculpatory part.
The Court also referred to the observations of the Full Bench of the Allahabad.
High Court in Emperor vs Balmakund(3) and fully concurred therein.
In the Allahabad case the question referred to the Full Bench was, whether the court could accept the inculpatory part of a confession which commended belief and reject the exculpatory part which was inherently incredible.
On reference to a large number of authorities cited the Full Bench observed that these authorities actually established no more than this that (a) where there is other evidence, a portion of the confession may in the light of that evidence; be rejected while acting upon the remainder with the other evidence; and (b) where there is no other (1) [1953].S.C.R. 94.
(:2) [1952] S.C.R. Allahabad 1011.
1046 evidence and the exculpatory element is not inherently incredible ;, the court cannot accept the inculpatory element and reject the exculpatory element.
According to the Full Bench of the Allahabad High Court the two rules above stated had been applied during the last one hundred years and the Full Bench answered the reference by holding "where there is no other evidence to show affirmatively that any portion of the exculpatory element in the confession is false, the court must accept or reject the confession as a whole ,and cannot accept only the inculpatory element while rejecting the exculpatory element as inherently ' incredible.
" Relying on the above statement of the law it was said by this Court in Palvinder Kaur 's case(1) that no use could be made of her statement contained in the alleged confession to prove that the death of her husband was caused by poisoning or as a result of an offence having been committed and once this.
confession was excluded altogether, there remained no evidence for holding that her husband had died as a result of the administration of potassium cyanide.
The last decision of this Court referred to by counsel, viz.
Narain Singh vs The State of Punjab(2) does not add anything which need be taken note of to the propositions of law laid down in the above mentioned case.
In this case the exculpatory part of the statement in exhibit 6 is not only inherently improbable but is contradicted by the other evidence.
According to this statement, the ' injury which the appellant received was caused by the appellant 's attempt to catch hold of the hand of Lal Mohan Sharma to prevent the attack on the victim.
This was contradicted by the statement of the accused himself under section 342 Cr.
P.C. to the effect that he had recceived the injury in a scuffle with a herdsman.
The injury found on his body when he was examined by the doctor on 13th October 1961 negatives both these versions.
Neither of these versions accounts for the profuse bleeding which led to his washing his clothes and having a bath in the river Patro, the amount of bleeding and the washing of the bloodstains being so considerable as to affact the attention of Ram Kishore Pandey, P.W. 17 and asking him about the cause thereof.
The bleeding was nora simple one as his clothes all got stained with blood as also his books, his exercise book and his belt and shoes.
More than that the knife which was discovered on his person was found to have been stained with blood according to the report of the Chemical Examiner.
According to the postmortem report this knife could have been the cause of the injuries on the victim.
In circumstances like these there (1) [1953] S.C.R.94.
(2) 1047 being enough evidence to reject the.
exculpatory part of the statement of the appellant in exhibit 6 the High Court had acted rightly in accepting the inculpatory part and piecing the same with the other evidence to come to.
the conclusion.
that the appellant was the person responsible for the crime.
The appeal therefore fails and the conviction and sentence are upheld y.p.
Appeal dismissed.
| IN-Abs | The appellant was charged for the murder of a fellow student in a railway compartment.
The appellant was noticed washing blood stained clothes, and bathing in a river.
He was taken to the village Mukhiya, where he made a statement and signed it.
In this statement, he admitted his presence at the scene of murder but stated that the crime was committed by someone else, that he was injured by the knife of assailant when he tried to prevent the crime, and that when the assailant jumped off the train he 'followed suit being apprehensive of arrest on the charge of murder.
Thereafter, the appellant was handed over to the police.
A blood stained knife, which could be the cause of the victim 's injuries, was found on his person.
Only an incised skin deep injury, which could not account for the profuse blood stains on the clothes was found on him.
In his statement under section 342 C.P.C. the appellant denied all connections with the crime stating that he was injured at another place in a scuffle blood staining his clothes, books etc.
he admitted being taken to the Mukhias house, and stated that he had signed a blank paper there on being assaulted and threatened, but he denied making the statement in writing ascribed to him.
In appeal to this Court, the appellant contended that the statement ' recorded by the village Mukhiya before handing over the appellant to the police was inadmissible in evidence; and if admissible, the statement had to be taken as a whole, and one portion of it could not be acted upon while rejecting the other.
Dismissing the appeal, HELD: (i) The contention that the statement was not voluntarily made and as such could not be admitted in evidence must be rejected.
No suggestion had been made to any one of the persons who had taken the appellant to the Mukhiya and had been tendered for cross examination that any one of them had assaulted the appellant.
nor was any suggestion made that the appellant had been coerced or threatened with dire consequences, if he did not make the statement.
The appellant 's own version that he was made to give his signature on a blank piece of paper cuts at the root of his case that he made a statement as a result of a threat or assault, for in that case, all that was necessary was to get his signature.
[1041 E G] (ii) In the circumstances of this case, the exculpatory part of the statement made before the Mukhiya being not only inherently improbable but also contradicted by the other evidence was rightly rejected and the inculpatory part was rightly accepted.
[1047 D] Rex vs Clewes, ; ; Hanumant vs 'The State of Madhya Pradesh, [1952] S.C.R. 1091; Palvinder Kaur vs The State of Punjab, , Emperor vs Balmakund, I.L.R. 52 All.
1011 and Narain Singh vs The State of Punjab, ; referred to. 1034
|
Appeal No. 105 of 1966.
Appeal from the judgment and order dated February 3, 1961 of the Calcutta High Court in Civil Revision No. 2755 of 1957.
D. Narsaraju, R. M. Mehta and section P. Nayar, for the appellant.
Ganpat Rai, for respondent No. 1.
The Judgment of the Court was delivered by SHAH, J.
G. W. Browne was an employee of the East India Railway and was a subscriber to the State Railway Provident Fund.
He elected to be governed by the Provident Fund Sterling Accounts Rules, whereunder payment of the provident fund credited in his account in rupees was on retirement to be made in sterling.
On August 26, 1947, Browne addressed a letter to the Financial Adviser and Chief Accounts Officer, East India Railway, requesting that the provident fund payable to him on retirement may be remitted to him by Bank Draft on the District Bank, Water Street, Liverpool.
After Browne retired from service, the Deputy General Manager, Eastern Railway, wrote a letter on July 27, 1955, to the Chief Accounts Officer, communicating the sanction of the General Manager for payment of the special contribution to provident fund to Browne in sterling in terms of r. 1410(1) of the Railway Establishment Code.
Another communication was received from Browne (who had apparently by then migrated to the United Kingdom) on February 22, 1956, by which he requested that the amount standing to his credit in the Provident Fund Account be remitted to the Westminster Bank, Birmingham.
The Railway Administration then drew two cheques one for Rs. 14,428 8 9 and another for Rs. 23,018 11 10 in favour of the Reserve Bank of India with instructions to the Reserve Bank to convert amounts covered by the cheques into sterling and to transmit the fund in sterling to the bankers of Browne in England.
The respondent Radha Kissen Agarwalla had obtained a money decree against Browne and he applied to the 3rd Court of the Subordinate Judge at Alipore for execution of that decree, and obtained an order for attachment of the cheques lying with the Reserve Bank.
The cheques were attached and under orders of the executing court the cheques were encashed and the amount realized was deposited in the executing court.
30 The Union of India claimed immunity from attachment of the cheques on the ground that they represented provident fund money which by section 3 of the , was immune from attachment.
The execution application filed by Radha Kissen Agarwalla was struck off on December 7, 1956.
On the next day Radha Kissen Agarwalla started another execution application and applied for and obtained an order for attachment of the money lying in the executing court in the execution case which had been struck off.
The Union of India again applied for removal of attachment on the ground that the money represented provident fund money and was immune from attachment under the law and that the attachment was "illegal and without jurisdiction".
The executing court overruled the objection observing "that the attachment issued by the Court on December 8, 1956, was perfectly in order. the moneys attached by the Court lost their character as Provident Fund moneys long before they were attached and hence they were not immune from attachment, as claimed by the objector".
The Union of India then applied to the High Court of Calcutta in revision.
The High Court confirmed.
the order passed by the executing court.
Rule 1413 of the Provident Fund Sterling Accounts Rules, insofar as it is relevant, provides : "(1) Where under these Rules any payment is to be made to the subscriber in sterling (a) the subscriber, prior to the date on which payment is to be made, shall send written instructions to the Accounts Officer intimating the place at which payment is to be made, such place being in a country where the rupee is not legal tender; (b) the Accounts Officer, on receipt of the, written instructions referred to in the preceding clause shall remit the amount through a bank for payment at the place at which payment is required." Accounts Officer for payment of the amount standing to his credit in a Provident Fund Account in sterling if the country in which it is to be paid, the rupee is not legal tender.
Browne had given intimation before he retired of his intention to receive the provident fund amount due to him at the foot of the Provident Fund Account in sterling in the United Kingdom.
After retirement of Browne, in order to carry out that obligation, the Accounts Officer of the Railway made out two cheques in the name of Browne and sent them to the Reserve Bank for conversion of the amount in sterling.
The Reserve Bank was the only authority which could permit such conversion in view of the 31 currency restrictions imposed by the Government of India.
For purpose of conversion and transmission of the amount to Browne, the Reserve Bank of India was the agent of the Railway Administration.
Until the money was converted into sterling and was transmitted by the Reserve Bank to Browne, the money remained at the disposal of the Railway Administration.
The Railway Administration was in respect of the provident fund money in the position of a trustee for Browne and it had undertaken to discharge its obligation by arranging to have the amount converted into sterling and to remit it to Browne.
Under section 60 (1) (k) of the Code of Civil Procedure, 1908, read with section 3 of the , the compulsory deposit in any recognised Provident Fund Account is exempt from attachment in execution of a decree of a civil court.
Section 3 ( 1 ) of the , provides : "A compulsory deposit in any Government or Railway Provident Fund shall not in any way be capable of being assigned or charged and shall not be liable to attachment under any decree or order of any Civil, Revenue or Criminal Court in respect of any debt or liability incurred by the subscriber or depositor, and neither the Official Assignee nor any receiver appointed under the Provincial insolvency Act, 1920, shall be entitled to, or have any claim on, any such compulsory deposit.
" The Reserve Bank was, as already stated, the agent of the Railway Administration for conversion of the amount into sterling and was not the agent of Browne to receive the amount on his behalf.
So long as the money remained under the control of the Railway Administration as provident fund money, it was exempt from attachment.
Clause (b) of r. 1413 (1), which we have already noted, imposed upon the Accounts Officer an obligation to send the amount through a bank for payment at the place at which Payment was required, and the payment was required either under the first intimation at Liverpool by bank draft or under the later intimation by payment to the bankers of 'Browne at Birmingham.
The High Court relied upon illustration (d) to section 50 of the Indian Contract Act in support of the view that by sending the two cheques to the Reserve Bank of India in performance of the manner of Payment prescribed by Browne, the debt was discharged, and the money must be deemed to have been paid out to the subscriber Browne.
Section 50 of the Contract Act provides "The performance of any promise may be made in any manner, or at any time which the promise prescribes or sanction 32 It enacts the elementary rule relating to the performance of a promise under a contract : performance has to be in the manner and at the time which the promisee prescribes or sanctions.
Browne had not authorised the Reserve Bank to receive payment of the money on his behalf, nor had he sanctioned payment to the Reserve Bank in discharge of the liability of the 'Railway Administration.
Illustration (d) to section 50 of the Contract Act on which reliance was placed by the High Court reads : A, desire B., who owes him Rs.100, to send him a note for Rs. 100 by post.
The debt is discharged as soon as B, puts into the post a letter containing the note duly addressed to A." The illustration only covers cases in which a creditor has directed the debtor to send him the amount owed by the, debtor in a certain manner.
Browne asked the Railway Administration by the first intimation to send the amount by bank draft and later to the Westminster Bank, Birmingham.
Only after the direction of Browne regarding transmission of the fund was complied with, the obligation of the Railway Administration could be discharged and not till then.
In our view, the High Court was in error in holding that the money in the hands of the Reserve Bank of India had ceased to be provident fund money and was liable to be attached.
It was somewhat faintly suggested that the Union of India had no interest in maintaining an application for removal of attachment.
But the Union of India was a trustee for the subscriber of the money.
When the amount lying with the Reserve Bank as the agent of the Railway Administration was attached the Union had clearly an interest to maintain the application for removal of attachment.
The order of attachment of the amount into which the two cheques drawn by the Railway Administration were converted on encashment was contrary to the terms of section 3 of the .
The appeal is therefore allowed and the order passed by the High Court is set aside.
There will be no order as to costs.
R.K.P.S. Appeal allowed.
| IN-Abs | B was an employee of the East India Railway and a subscriber to the State Railway Provident Fund.
He elected to be governed by the Provident Fund Sterling Account Rules, according to which payment of his provident fund on retirement was to be made in sterling.
B 'addressed letters to the Railway Accounts Officer in August 1947 and again after his retirement in February 1956 requesting that the amounts standing to his credit in the provident fund account be remitted to his bank in the United Kingdom.
The Railway administration drew cheques in respect of B 's provident fund in favour of the Reserve Bank of India and instructed that bank to convert the amount into sterling and to transmit it to B 's Bank in the United Kingdom.
The respondent had obtained a money decree against B and upon applying for execution of that decree obtained an order for attachment of the cheques lying with the Reserve Bank.
The cheques were encashed and the amount realised was deposited in the executing court.
The appellant claimed immunity from attachment of the cheques under section 3 of the and the respondent 's execution application was thereupon struck off.
On filing a second execution application, the respondent obtained an order for attachment of the money lying in the executing court.
A further application by the applicant claiming immunity from attachment was rejected by the executing court on the ground that the monies attached by the court lost their character as Provident fund monies long before they were attached and were not therefore immune from attachment.
The High Court in revision confirmed the order of the executing court.
On appeal to this Court, HELD : Allowing the appeal The order of attachment passed by the executing court was contrary to section 3 of the .
The Railway administration was in respect of the provident fund money in the position of a trustee for B and it had undertaken to discharge its obligation by arranging to have the amount converted into sterling and to remit it to B. The Reserve Bank was the agent of the Railway administration for converting and remitting the amount on its behalf.
Until the money was converted and transmitted by the Reserve Bank to B, it remained at the disposal of the Railway administration.
So long as the money remained under the control of the Railway administration as provident fund money, it was exempt from attachment under section 60(1)(k) (PC read with section 3 of the Provident Funds Act, 1925.[131 B F] 29 The High Court was in error in relying on illustration (d) of section 50 of the Contract Act.
B had not authorised the Reserve Bank to receive payment of the money on his behalf, nor had he sanctioned payment to the Reserve Bank in discharge of the liability of the Railway Administration.
[32 A B]
|
minal Appeal No. 51 of 1967.
Appeal by special leave from the judgment and order dated October 3, 1966 of the Bombay High Court, Nagpur Bench in Criminal Revision Application No. 168 of 1966.
R. K. Garg, section C. Agarwala, G. V. Kalikar, section K. Dhingra and M. section Gupta, for the appellants.
W. section Barlingay and A. G. Ratnaparkhi, for respondent No. 1.
H. R. Khanna and section P. Nayar, for respondent No. 2.
The Judgment of the Court was delivered by Shah, J.
The Nagpur District Land Development Bank Ltd. is registered as a society under the Maharashtra Co oPerative Societies Act, 1960. 'One Narayan Tanbaji Murkute applied for membership of the Bank as a "non borrowing member".
At a meeting of the Bank held on June 30, 1964, the application of Murkute and of 94 others were granted and they were enrolled as members.
But in the list of members entitled to take part in the General Meeting dated June 30, 1964 the names of Murkute and others were not included.
Murkute and others then applied to the Registrar Co operative Societies for an order declaring that they were entitled to participate in the election of office bearers and for an injunction restraining the President and the Secretary from holding the 187 annual General Meeting.
The Registrar referred the dispute for adjudication under section 93 of the Maharashtra Co operative Societies Act, 1960, to H. V. Kulkarni, his nominee.
The nominee decided the dispute on May 7, 1965 and held that Murkute and other applicants were members of the Bank.
In the proceeding before the nominee certain documents including the minutes book of the Bank were produced.
It is claimed by Murkute that those 'books were fabricated by the President and the Secretary with a view to make it appear that Murkute and other persons were never elected members of the Bank.
On August 7, 1965, Murkute filed a complaint in the Court of the Judicial Magistrate, First Class, Nagpur, charging the President and Secretary of the Bank with committing offences under sections 465 and 471 I.P. Code.
It was alleged in the complaint that the two accused had dishonestly and fraudulently introduced a clause in Resolution No. 3 appearing in the minutes book with the intention of causing it to be believed that the clause was part of the original.
Resolution passed by the Board of Directors in the meeting held on June 30, 1964, whereas it was known to them that at that meeting no such clause was passed.
The two accused raised an objection that the Magistrate had no jurisdiction to take cognizance of the complaint without the previous sanction of the Registrar of Co operative Societies under section 148(3) of the Maharashtra Co operative Societies Act, 1960.
The Trial Magistrate rejected the contention.
The order was confirmed by the Court of Session and the High Court of Bombay.
In this Court counsel for the accused raised two contentions that (1) that, the nominee of the Registrar appointed under section 95 of the Maharashtra Co operative Societies Act, 1960, was a "court" within the meaning of section 195 Code of Criminal Procedure, and a complaint for offences under sections 465 and 471 I.P. Code alleged to have been committed by a party to any proceeding in respect of a document produced or given in evidence in such proceeding, cannot be entertained except on a complaint in writing of such court, or of a court to which it is subordinate; and (2) that offences charged in the complaint fell within the description of the offence under section 146(p) of the Maharashtra Co operative Societies Act, 1960, and without the sanction of the Registrar the complaint was not maintainable.
Section 195 Code of Criminal Procedure insofar as it is relevant provides : "(1) No Court shall take cognizance(a) (a) (b) 188 (c) of any offence described in section 463 or punishable under section 471 .
when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such court, or of some other Court to which such Court is subordinate.
(2) In clauses (b) and (c) of sub section '(1), the term "Court" includes a Civil, Revenue or Criminal Court, but does not include a Registrar or Sub Registrar under the Indian Registration Act, 1877." Murkute complained that the President and the Secretary of the Bank who were parties to the proceeding before the nominee of the Registrar had committed offences under sections 465 & 471 I.P. Code in respect of documents produced or given in evidence at the trial.
If the Registrar 's nominee is a Court within the meaning of section 195 Code of Criminal Procedure the Magistrate could not take cognizance except on the complaint in writing by the Registrar 's nominee or of some court to which he was subordinate.
To determine whether the Registrar 's nominee is a court, it is necessary to refer to the relevant provisions of the Maharashtra Co operative Societies Act, 1960, relating to the functions of the nominee and the powers with which he is invested, counsel for the appellants urges that by the Maharashtra Co operative Societies Act the power of the Civil Court to entertain disputes with regard to certain matters concerning cooperative societies is expressly excluded from the jurisdiction of the Civil Court, and the Registrar or his nominee is alone competent to determine those questions; thereby the Registrar and his nominee are invested with the judicial power of the State and they are on that account "courts" within the meaning of section 195 of the Code of Criminal Procedure.
Section 2(2) of the Maharashtra Co operative Societies Act, 1960, defines "arbitrator" as meaning "a person appointed under this Act to decide disputes referred to him by the Registrar and includes the Registrar 's nominee or board of nominees.
" Section 91 and the following sections which occur in Ch.
IX relate to disputes and arbitration.
By section 91, insofar as it is material, it is provided : "(1) Notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution, election of the office bearers, conduct of general meetings, management or business of a society shall be referred by any of the parties to the dispute. . . to the Registrar, if both the parties hereto are one or other of the following 189 (a) (b) a member, past member or a person claiming through a member, past member or a deceased member of a society, or a society which is a member of the society.
(c) (d) (e) (2) When any question arises whether for the purpose of the foregoing subsections matter referred to, for decision is a dispute or not, the question shall be considered by the Registrar, whose decision shall be final.
(3) Save as otherwise provided under sub section (3) of section 93 no Court shall have jurisdiction to entertain any suit or other proceedings in respect of any dispute referred to in sub section (1).
" Section 93 provides : "(1) If the Registrar is satisfied that any matter referred to him or brought to his notice is a dispute within the meaning of section 91, the Registrar shall, subject to the rules, decide the dispute himself, or refer it for disposal to a nominee, or a board of nominees, appointed by the Registrar.
(2) Where any dispute is referred under the foregoing sub section, for decision to the Registrar 's nominee or board of nominees, the Registrar may at any time, for reasons to be recorded in writing withdraw such dispute from his nominee or board of nominees, and may decide the dispute himself, or refer it again for decision to any other nominee, or board of nominees, appointed by him.
(3) Notwithstanding anything contained in section 91 the Registrar may, if he thinks fit, suspend proceedings in regard to any dispute, if the question at issue between a society and a claimant or between different claimants, is one involving complicated questions of law and fact, until the question has been tried by a regular suit instituted by one of the parties or by the society.
If any such suit is not instituted within two months from the Registrar 's order suspending proceedings, the Registrar shall take action as is provided in subsection 190 Section 94 provides for the procedure of settlement of disputes and power of the Registrar, his nominee or the board of nominees.
It provides, insofar as it is material : "(1) The Registrar, or his nominee or board of nominees, hearing a dispute under the last preceding section shall hear the dispute in the manner prescribed, and shall have power to summon and enforce attendance of witnesses including the parties interested or any of them and to compel them to give evidence on oath, affirmation or affidavit and to compel the production of documents by the same means and as far as possible in the same manner, as is provided in the case of a Civil Court by the Code of Civil Procedure, 1908.
(2) Except with the permission of the Registrar or his nominee or board of nominees, as the case may be, no party shall be represented at the hearing of a dispute by a legal practitioner.
" Sub section (3) of section 94 authorises the Registrar, his nominee or the board of nominees to join or substitute new parties.
Section 95 authorises the Registrar or his nominee or board of nominees to pass an order of attachment and other interlocutory orders.
Section 96 provides "When a dispute is referred to arbitration the Registrar or his nominee or board of nominees may, after giving a reasonable opportunity to the parties to the dispute to be heard, make an award on the dispute, on the expenses incurred by the parties to the dispute in connection with the proceedings, and fees and expenses payable to the Registrar or his nominee or, as the case may be, board of nominees.
Such an award shall not be invalid merely on the ground that it was made after the expiry of the period fixed for deciding the dispute by the Registrar and shall, subject to appeal or review of revision, be binding on the parties to the dispute.
" Section 97 provides "Any party aggrieved by any decision of the Registrar or his nominee or board of nominees under the last preceding section, or an order passed under section 95 may,. . . appeal to the Tribunal.
Section 98 provides that every order passed by the Registrar or his nominee or board of nominees or in appeal therefrom shall, it not carried out, on a certificate signed by the Registrar, be deemed to be a decree of a civil court, and shall be executed in 191 the same manner as a decree of such court or be executed according to the law and under the rules for the time being in force for the recovery of arrears of land revenue.
By section 99 a private transfer or delivery of, or encumbrance or charge on, property made or created after the issue of the certificate of the Registrar under section 98 shall be null and void as against the society on whose application the certificate was issued.
Jurisdiction of the Civil Court by section 91(3) to entertain a suit in respect of any dispute referred to in sub section
(1) of section 91 is expressly excluded and the dispute is required by law to be referred to the Registrar or his nominee.
Against the decision of the Registrar 's nominee an appeal lies under section 97 and the order made for payment of money is enforceable as a decree of the Civil Court.
The Registrar or his nominee called upon to decide the dispute are bound to hear it in the manner prescribed and they have power to summon and enforce attendance of witnesses and to compel them to give evidence on oath, affirmation or affidavit and to compel production of documents.
The effect of these provisions, according to counsel for the Appellants, is that the judicial power of the State to deal with and dispose of disputes of a civil nature which fall within the description of section 91(1) is vested in the Registrar 's nominee and he is on that account made a "court" within the normal connotation of the term.
Section 195(2) of the Code of Criminal Procedure enacts that the term "court" includes a Civil, Revenue or Criminal Court, but does not include a Registrar or Sub Registrar under the Indian Registration Act, 1877.
The expression "court" is not restricted to courts, Civil, Revenue or Criminal; it includes other tribunals.
The expression "court" is not defined in the Code of Criminal Procedure.
Under section 3 of the Indian Evidence Act "Court" is defined as including "all Judges and Magistrates, and all persons, except arbitrators, legally authorised to take evidence".
But this definition is devised for the purpose of the Evidence Act and will riot necessarily apply to the Code of Criminal Procedure.
The expression "Court of Justice" is defined in the Indian Penal Code by section 20 as denoting "a Judge who is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially".
That again is not a definition of the expression "Court" as used in the Code of Criminal Procedure.
The expression "Court" in ordinary parlance is a generic expression and in the context in which it occurs may mean a "body or organization" invested with power, authority or dignity.
In Halsbury 's Laws of England, 3rd Edn., Vol. 9, article 809 at p. 342 it is stated : "Originally the term "court" meant, among other meanings, the Sovereign 's place; it has acquired the 192 meaning of the place where justice is administered and, further, has come to mean the persons who exercise judicial functions under authority derived ' either immediately or mediately from the Sovereign.
All tribunals, however, are not courts, in the sense in which the term is here employed, namely, to denote such tribunals, as exercise jurisdiction over persons by reasons of the sanction of the law, and not merely by reason of voluntary submission to their jurisdiction, Thus, arbitrators, committees of clubs, and the like, although they may be tribunals exercising judicial functions, are not "Courts" in this sense of that term.
On the other hand, a tribunal may be a court "in the strict sense of the term although the chief part of its duties is not judicial.
Parliament is a court.
Its duties are mainly deliberative and legislative : the judicial duties are only part of its functions.
" In article 810 it is stated "In determining whether a tribunal is a judicial body the facts that it has been appointed by a nonjudicial authority, that it has no power to administer an oath, that the chairman has a casting vote, and that third parties have power to intervene are immaterial, especially if the statute setting it up prescribes a penalty for making false statements ; elements to be considered are (1) the requirement for a public hearing, subject to a power to exclude the public in a proper case, and (2) a provision that a member of the tribunal shall not take part in any decision in which he is personally interested, or unless he has been present throughout the proceedings.
A tribunal is not necessarily a court in the strict sense of exercising judicial power because (1) it gives a final decision; (2) hears witnesses on oath; (3) two or more contending parties appear before it between whom it has to decide; (4) it gives decisions which effect the rights of subjects; (5) there is an appeal to a court; and (6) it is a body to which a matter is referred by another body.
Many bodies are not courts, although they have to decide questions, and in so doing have to act judicially, in the sense that the proceedings must be conducted with fairness and impartiality, such as the former assessment committees, the former court of referees which was constituted under the Unemployment Insurance Acts, the blenchers of the Inns of Court when considering the conduct of one of their members, the 193 Disciplinary Committee of the General Medical.
Council when considering questions affecting the conduct of a medical man, a trade union when exercising disciplinary jurisdiction over its members, or the chief officer of a force exercising discipline over members of the force.
" A body required to act judicially in the sense that its proceedings must be conducted with fairness and impartiality may not therefore necessarily be regarded as a court.
Counsel for the appellants however invited our attention to a number of decisions in support of his contention that wherever there is a dispute which is required to be resolved by a body invested with power by statute and the body has to act judicially it must be regarded as a court within the meaning of section 195 of the Code of Criminal Procedure.
Counsel asserted that every quasi judicial authority is a court within the meaning of section 195 (2) of the Code of Criminal Procedure.
The contention is inconsistent with a large body of authority of this Court to which we will presently refer.
By section 195 of the Code of Criminal Procedure, it is enacted that certain offences amounting to contempt of lawful authority of public servants i.e. offences falling under sections 172 to 188 I.P; Code, offences against public justice under sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offences are alleged to have been committed in or in relation to, any proceeding in any Court, and offences described in section 463 or punishable under sections 471, 475 or 476, when such offences are alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, cannot be taken cognizance of by any court, except in the first class of cases on a complaint in writing of the public servant concerned, and in the second and third class of cases on the complaint in writing of such Court or some other Court to which it is subordinate.
An offence ordinarily signifies a public wrong : it is an act or omission which is a crime against society : it may therefore be brought to the notice of the Court by any person, even if he is not personally aggrieved by the act or omission.
To that rule there are certain exceptions which are specified in sections 195, 196, 197, 198, 198A of the Code of Criminal Procedure and other special statutes.
Authority of courts to entertain complaints in respect of the offences so specified is barred in view of the special nature of the offence which vitally affect individuals only or public bodies and in the larger interest of society it is deemed expedient to exempt them from the general rule.
194 The nominee of the Registrar acting under section 96 performs the functions substantially of an arbitrator to whom a dispute is ,referred for adjudication.
The Registrar may appoint a single nominee or a board of nominees and may at any time, for reasons to be recorded in writing, withdraw such dispute from the nominee or 'board of nominees, and may decide the dispute himself, or refer it again for decision to another nominee, or board of nominees, appointed by him.
Under sub section
(3) of section 93 it is open to the Registrar to suspend proceedings in regard to any dispute, if the question at issue between a society and a claimant or between different claimants, is one involving complicated questions of law or fact.
The jurisdiction of the nominee or board of nominees arises by reason not of investment by statute, but by appointment made by the Registrar who exercises control over the proceeding.
The nominee therefore derives his authority from his appointment by the Registrar : the Registrar is entitled to withdraw his authority; and the Registrar may fix the time within which a dispute shall be disposed of : his adjudication is again called an award.
The nominee is even entitled to make a provision for the 'expenses payable to the Registrar or to himself.
It is true that the procedure of the nominee is assimilated to the procedure followed in the trial of a Civil proceeding.
The nominee has the power to summon witnesses, to compel them to produce documents and he is required to hear the dispute in the manner prescribed by the Code of Civil Procedure.
Thereby he is required to act judicially i.e. fairly and impartially : but the obligation to act judicially will not necessarily make him a court within the meaning of section 195 of the Code.
The position of a nominee of the Registrar is analogous to that of an arbitrator designated under a statutory arbitration to which the provisions of section 47 of the , apply.
The authorities to which our attention was invited by counsel for the appellants may now be considered.
It may be sufficient here to observe that the tests laid down by this Court in certain cases to be presently noticed make many of the cases relied upon of doubtful authority.
In Thadi Subbi Reddi vs Emperor(1) it was held by a single Judge of the Madras High Court that the Registrar before whom a Co operative Society files its suit, or its claim for enforcing a bond, is a "Court" within the meaning of section 195 of the Code of Criminal Procedure, for the Registrar to whom a dispute touching a debt due to a society by a member is referred has power to administer oaths, to require the attendance of all parties concerned and of witnesses, and to require the production of all books and documents relating to the matter in dispute, and the Registrar is required to give a decision in writing, and when it is given the decision may be enforced on application to the Civil Court having jurisdiction as if it were a decree of the Court.
2 00 deface, or secrete or attempts to secrete any document which is or purports to be a will, or an authority to adopt a son, or any valuable security, or mischief in respect of such document.
section 477A penalises falsification of accounts by a clerk, officer or servant or by a person employed in the capacity of a clerk, officer or servant.
The offence of forgery and its allied offences may be committed if a false document is made with intent to cause damage or injury to public or any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, (section 463).
In order to attract section 463 I.P. Code there must therefore, be making of a false document with the intention mentioned in that section.
By 464 it is provided : "A person is said to make a false document First.
Who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or ,,makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed, or at a time at which he knows that it was not made, signed, sealed or ,executed; or Secondly Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a, document in any material part thereof, after it has been made or executed either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document, knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or the nature of the alteration." Making of a false document by a person in all the three clauses must be done dishonestly or fraudulently and with the necessary intention or knowledge contemplated by the three clauses.
Section 146 of the Maharashtra Co operative Societies Act, 1960, does not make any such intention as is referred to in sections 463 and 464 I.P. Code an ingredient of the offence: it also renders a person who is merely privy to the destruction, mutilation, alteration, falsification or secreting or to the making of any false or 201 fraudulent entry in any register, book of account or document belonging to the society liable to be punished.
under section 146 (p) The offence may be committed under section 146 only by an officer or member past or present of the society.
Even destruction or secreting of a document or security is penalised under section 146 of the Act.
We are unable to accept the contention that these two sections section 146(p) of the Maharashtra Co operative Societies Act and section 465 P. Code, are intended to deal with the same offence.
It is true that certain acts may fall within both the sections.
For instance, tampering with or altering or falsifying any, register, book of account or security, or making any false or fraudulent, entry in the register, book of account or document belonging to the society, may when done with the requisite intention mention ed in section 464 read with section 463 I.P. Code be also an offence under section 146(p) of the Maharashtra Co operative Societies Act.
But that, in our judgment, is not a ground for holding 'that section 465 I.P. Code and the related offences were intended to be pro tanto repealed by the enactment of section 146(p) of the Maharashtra Cooperative Societies Act.
When the Indian Penal Code seeks to impose in respect of offences under As, 477 imprisonment which may extend to imprisonment for life, or with imprisonment upto a period of seven years for an offence under section 477A it would be difficult to hold that when committed by an officer or a member of a society the maximum punishment which can be imposed by virtue of section 146(p) would be three years rigorous imprisonment only.
This Court in Om Prakash Gupta vs State of Uttar Pradesh(1) held that the offences under section 409 I.P. Code and section 5(1)(c) of the Prevention of Corruption Act, are distinct and separate offences and section 409 I.P. Code is not repealed by section 5(1) (c) of the Prevention of Corruption Act.
In a recent judgment of this Court in T. section Balliah vs T. section Rengachari(2) we had occasion to consider whether section 177 I.P. Code was repealed by section 52 of the Indian Income tax Act.
It was pointed out that in considering the problem the Court must consider the true meaning and effect, of the two Acts, and unless there is repugnancy or inconsistency between the two enactments or that the two enactments cannot stand together they must be treated as cumulative.
It is clear from a perusal of section 146 (p) of the Maharashtra Co operative Societies Act, 1960, and sections 463 and 464 I.P. Code.
that they are two distinct offences which are capable of being (1) [1957] S.C.R.423.
7 Sup C 1/69 14 (2) ; 202 Committed with different intentions by different sets of persons and it, could not be contemplated that the Legislature of the State of Maharashtra intended to repeal pro tanto the provisions of section 465 I.P. Code by enactment of section 146 of the Maharashtra Co operative Societies Act.
It is unnecesary in the circumstances to consider the question whether the Maharashtra State Legislature was competent to repeal the provisions of section 465 I.P. Code.
The law relating to Co operative Societies may be enacted in exercise of the power under List II Entry 32 of the Seventh Schedule to the Constitution, but if section 146 is directly intended to trench upon a provision ,of the Indian Penal Code falling within List 11 Entry 1, sanction of the President under article 254(2) would apparently be necessary.
Both the contentions raised by counsel for the appellants fail.
The appeal is dismissed.
G.C. Appeal dismissed.
| IN-Abs | The Nagpur District Land Development Bank Ltd. was registered as a society under the Maharashtra Cooperative Societies Act, 1960.
There was dispute as to whether one 'M ' had been elected as a member of the Bank at a meeting of the Board of Directors.
The Registrar of Cooperative Societies referred the dispute to a nominee.
Certain documents including the minutes book of the Bank were produced before the nominee. 'M ' filed a complaint against the President and Secretary of the Bank charging them with offences under sections 465 and 471 I.P.C. for having forged the minute book and producing it before the nominee.
The two accused raised an objection that the magistrate had no jurisdiction to take cognizance of the complaint without the previous sanction of the Registrar of Cooperative Societies under section 148(3) of the Maharashtra Cooperative Bank Act, 1960.
The trial magistrate rejected the contention.
The order was confirmed by the Court of Session and the High Court Of Bombay.
In appeal before this Court the following contentions were urged on behalf of the accused appellants : (i) That the nominee of the Registrar appointed under section 95 of the Maharashtra Cooperative Societies Act, 1960, was a 'court ' within the meaning of section 195 of the Code of Criminal Procedure and a complaint for offences under sections 465 and 471 Indian Penal Code alleged to have be en committed by a party to any proceeding in respect of the document produced or given in evidence in such proceeding, cannot be entertained except on a complaint in writing of such court, or of a court to which it is subordinate, (ii) That the ingredients of the offence of forgery punishable under section 465 I.P. Code 'and of the offence under section 146(p) of the Maharashtra Cooperative Societies Act are the same, and the general provision is on that account pro tanto repealed, and in any event in view of section 148(3) of the Maharashtra Act no prosecution could be initiated in respect of the offences charged otherwise than with the sanction of the Registrar.
HELD : (i) The nominee exercising power to make an award under section 96 of the Maharashtra Cooperative Societies Act, 1960, derives his authority not from the statute but from investment by the Registrar in his individual discretion.
The power invested is liable to be suspended and may be withdrawn.
He is not entrusted the judicial power of the State : he is merely an arbitrator authorised within the limits of the power conferred to 'adjudicate upon the dispute referred to him.
He is not a court within the meaning of section 195 of the Code of Criminal Pro 'Sup.
CI/69 13 18 6 Thadi Subbi Reddi vs Emperor, , Velayuda Mudali & Anr.
vs Co operative Rural Credit Society & Ors., , Y, Mahabaleswarappa vs M. Gopalaswami Mudaliar, A.I.R. 1935 Mad. 673, Nand Lal Ganguli vs Khetra Mohan Ghose, I.L.R. , Jagannath Prasad vs State of Uttar Pradesh, ; , Lalji Haridas vs State of Maharashtra & Anr., ; , Shri Virindar Kumar Satyawadi vs State of Punjab, [1955] 2 S.C.R. 1013, Brajnandan Sinha vs Jyoti Narain, ; , Hari Pandurang & Anr.
vs Secretary of State for India in Council I.L.R. , Thakur Jugal Kishore Sinha vs Sitamarhi Central Co operative Bank Ltd. ; and Malabar Hill Co operative Housing Society Ltd. Bombay vs K. L. Gauba & Ors.
A.I.R. 1964 Bom.
147, considered.
(ii) Section 146(p) of the Maharashtra Cooperative Societies Act, 1960 and sections 463 and 464 I.P.C. are two distinct offences which are capable of being committed with different intentions by different sets of persons and it could not be contemplated that the Legislature of the State of Maharashtra intended to repeal pro tanto the provisions of section 465 I.P.C. by enactment of section 146 of the Maharashtra Cooperative Societies Act.
The prosecution in the present case not being under the Maharashtra Act sanction of the Registrar under section 148 thereof was not necessary.
[201 H 202 A] Om Prakash Gupta vs State of Uttar Pradesh, [1957] S.C.R. 423 and T. section Balliah vs T. section Rengachari, ; , applied.
|
l Appeals Nos. 1174 of 1965 and 1935 of 1966.
Appeals from the judgment and decree dated October .14, 1959 of the Madras High Court in Appeal No. 471 of 1955.
H. R. Gokhale, P. section Padmanaban and D. N. Gupta, for the appellant (in C.A. No. 1174 of 1965) and respondent No. 1 (in C.A. No. 1935 of 1966).
V. P. Raman, Shyamala Pappu, Vineet Kumar, P.S. khera and R. Nagaratnam, for the appellants (in C.A. No.1935 of 1966) and respondents Nos.
1 to 4 (in C.A. No. 1174of 1965).
C.B. Agarwala and R. Gopalakrishnan, for respondent No. 12 (in C.A. No. 1935 of 1966).
206 The Judgment of the Court was delivered by Bachawat, J.
One James Henry Wapshare owned several estates including Naduvattam in the Nilgiris known as the Ouchterlony Valley Estates, having tea, coffee, cardamom and cinchona plantations.
He lived in Naduvattam and Ootacamund with his wife Nellie, daughters Violet and Dorothy and sons James and Edward.
In 1927 he formed a limited company known as the Ouchterlony Valley Estates limited,having a share capital of Rs. 15 lakhs and conveyed the estates to the company.
All the shares of this company, sometimes referred to as the "old company" were held by him and the members of his family.
The company borrowed Rs. 10 1/2 lakhs from the Imperial Bank of India against the issue of debentures.
The loan was secured by a mortgage of the estates under a debenture trust deed dated May 13, 1927 and was repayable on May 15, 1937.
In default of payment within November 15, 1937 the trustee under the debenture trust deed was authorised to enter into possession of the estates and sell them.
By an agreement dated August 16, 1936 Peirce Leslie & Co. Ltd., referred to as the appellant company, was appointed as the secretary of the old company.
On April 15, 1937 the old company was served with a notice.
that in default of payment of the loan within November 15, 1937 the trustee for the debenture holders would take possession of the estates and sell them.
On May 18, 1937 James Henry Wapshare died leaving behind him his widow and his sons and daughters.
In November 1937 after prolonged negotiations between the Wapshares and the appellant company it was settled that the company would purchase all the estates except Naduvattam for Rs. 10 lakhs.
On December 29, 1937 formal agreements were executed providing that the old company would convey to the appellant company all the estates except Naduvattam for Rs. 10 1/2 lakhs and the appellant company would convey Naduvattam to Mrs. Nellie Wapshare for Rs. 50,000 and would at the same time advance Rs. 50,000 on the hypothecation of Naduvattam crops.
By January 10, 1938 the appellant company paid the entire purchase price and took possession of the estates and the entire dues of the Imperial Bank of India were liquidated.
On March 30, 1938 the old company passed a special resolution for its voluntary winding up and appointed Capt.
F. Murcutt as its liquidator.
The appellant company promoted a new company known as Ouchterlony Valley Estates Ltd., for the purpose of acquiring the ' estates.
The new company was incorporated on September 5, 1938.
Fifty per cent of its shares were held, by the appellant company.
Formal conveyances of the Naduvattam estate in favour of Mrs. Nellie Wapshare and of the other estates in favour of the new company were executed by the old company between January and May 1939.
On the execution of the con 207 veyances the new company entered into possession of the estates conveyed to them.
, As soon as the affairs of the old company were wound.
up the liquidator made ,up the final accounts of tile winding up and called the final meetings of the company and its creditors.
On or about November 29, 1939 a copy 'of the final accounts and the return of the holding of the meetings were filed with the registrar of joint stock companies and were registered under 'section 209H of the Indian Companies Act, 1913.
In view of section 209H(4), the old company stood dissolved with effect from March 1, 1940.
On December 21, 1950 Mrs. Nellie, Violet, Dorothy, James and Edward Wapshares instituted the present suit against the appellant company, impleading the appellant company as defendant No. 1, 12 persons said to be its directors and officials as defendants 2 to 13, Capt.
F.A. Murcutt as defendant No. 14, the new company as defendant No. 15 and the old company as defendant No. 16.
The plaintiffs prayed for a decree declaring that the old company had not been wound up in accordance with law and was still in existence as a corporate personality, a declaration that the old company was the real owner of the aforesaid properties and the new company held them in trust for the old company, a decree vesting or re transferring the properties to the old company and alternatively to the plaintiffs and accounts.
The plaintiffs alleged that the appellant company as the secretary and manager of the old company was bound in a fiduciary character to protect its interest and by availing itself of this character gained pecuniary advantage by purchase of the properties from the old company in 1939, that the agreement for sale and conveyances in respect thereof were induced by fraud, fraudulent concealment, misrepresentation, undue influence an improper means, that the new company was controlled by the appellants that all the defendants were privy to the fraud, that the winding up of the old company was procured by the defendants fraudulently,, that the plaintiffs discovered the fraud in September 1949, and the plaintiffs were the only shareholders of the old company and as such were entitled to maintain the suit.
Defendants 4, 11 and 14 died during the pendency of the suit.
The defunct old company impleaded as defendant No. 16 did not appear but the other defendants contested the suit.
The Subordinate Judge, the Nilgiris, Ootacamund, dismissed the suit.
, He held that (1) there was no fiduciary relationship between the appellant and the old company; (2) the impugned agreements and conveyances were not induced by fraud, fraudulent concealment, undue influence or improper means and were valid and binding on the old company and the plaintiffs; (3) the suit was barred by limitation; (4) the old company was dissolved in ,accordance with law and was not in existence and (5) the plaintiffs had no locus standi to maintain the suit .
The plaintiffs filed an appeal from the decree.
The Madras High Court allowed 208 the appeal in part and passed a decree asking the appellant to pay to the plaintiffs Rs 1,50,000.
The High Court held that (1) there was a fiduciary relationship between the appellant and the old company, (2) the appellant by availing itself of its fiduciary character gained a pecuniary advantage of Rs. 1,50,000 and to the extent of this unjust 'enrichment was bound to reimburse the plaintiffs; (3) the suit was not barred by limitation and (4).
in spite of the dissolution of the old company the plaintiffs were entitled to maintain the suit.
Aggrieved by this decree the appellant company filed C.A. No. 1174 of 1965 and the Wap shares have filed the cross appeal C.A. No. 1935 of 1966 on the strength of certificates granted by the High Court under Act.
133(1)(c) of the Constitution.
The following three questions arise in these appeals (1) was there a fiduciary relationship between the appellant and the old company and if so, did the appellant company by availing themselves of this fiduciary character gain a pecuniary advantage of Rs. 1,50,000.
(2) is the suit barred by limitation; and (3) are the plaintiffs as shareholders of the old company entitled to maintain the suit.
It is a settled rule of equity that any person bound in a fiduciary character to protect the interests of another person should not put himself in a position where his interest and duty conflict.
If by availing himself of his fiduciary character or by entering into any dealings under circumstances in which his interests are ,or may be adverse to those of such other person he gains for himself a pecuniary advantage, he must hold for the benefit of such other person the advantage so gained, see Trusts Act,s.88.
But there is no rule which incapacitates a trustee from dealing with a cestui que trust.
In Coles vs Trecothick(1) Lord Eldon said : "a trustee may buy from the cestui que trust, provided 'there is 'a distinct and clear contract, ascertained to be such after a jealous and scrupulous examination of all the circumstances, proving, that the cestui que trust intended, the trustee should buy; and there is no fraud, no concealment, no advantage taken, by 'the trustee of information acquired by him in the character of 'trustee.
I admit, it is a difficult case to make out, wherever it is contended that the exception prevails.
" As stated in Kerr on ,Fraud and Mistake, 6th Ed. page 192 "Thus a trustee for sale may purchase the trust estate, if the cestui que trust fully and clearly understands with whom he is dealing and makes no objection to the transaction, and the trustee fairly and honestly (1) 9 Ves.
June.234,247;32E.R.592,597. 209 discloses all that he knows respecting the property and gives a just and fair price, and does not seek to secure surreptitiously any advantage for himself.
The onus however, rests upon the trustee, and he is bound to produce clear affirmative proof that the parties were at arms ' length, that the cestui que trust had the fullest information upon all material facts, and that having this information he agreed to and adopted what was done.
" The appellant company was the secretary of the old company, was in charge of its correspondence and accounts and was actively engaged in assisting it and its shareholders in selling the estates.
In course of its employment the appellant acquired intimate knowledge of the income, prospects and the market value of the properties.
We agree with the High Court that the appellant stood in a fiduciary relationship towards the old company and was bound to protect its interests.
The appellant entered into an agreement with the old company for the purchase of the properties.
It promoted the new company to which the properties were subsequently conveyed.
Fifty per cent of the shares of the new company were held by the appellant company and the new company was managed and controlled by it.
The onus is upon the appellant company to establish affirmatively that the transaction was righteous and that it did not gain any pecuniary advantage by availing itself of its fiduciary character.
We are inclined to think that the appellant company has discharged this difficult burden of proof.
Since 1931 the Wapshares were keen on selling the estates.
From time to time there were offers from intending buyers but none of them materialized.
In 1936 there was a 'slump in tea and coffee prices.
There was a possibility that the tea restriction scheme would be abolished and there would be a further slump in tea prices.
The old company was indebted to the Imperial Bank of India for Rs. 10 1/2 lakhs against the issue of debentures secured by an English mortgage over all the estates.
The Bank was pressing for the payment of its dues.
There was every likelihood that in default of payment by November 15, 1937 the trustee for the debenture holders would enter into possession of the estates and sell hem without intervention of court.
The old company was not in a position to liquidate the debt without selling the estates, In April 1937 M/s. Kuruvilla Bros. agreed to purchase the properties.
On May 18, 1937 James Henry Wapshare died.
In July 1937 the deal with Kuruvilla Bros. fell through.
The Wapshares and the old company tried their best to raise loans and for that purpose issued advertisements and contacted several banks and insurance companies but they were unable to raise any loan.
In the beginning of November 1937, 210 the Wapshares had before I them a firm offer from Arbuthnot Lathem & Co. for purchase of the estates for Rs. 14 lakhs.
But the Wapshares were not willing to sell Naduvattam.
The bungalow at Naduvattam was the home of the Wapshare family.
Naduvattam was the highest altitudinal estate, grew the best tea in the area and had a very good name in the London tea market.
The appellant had previously offered to buy all the estates, for Rs. 111/2 lakhs only.
The Wapshares wanted the appellant to make an offer which would enable them to retain Naduvattam and at the same time to liquidate the Bank 's dues.
At the insistence of the Wapshares interviews were arranged at Calicut on November 4, and November 6, 1937 between Dorothy and Robert representing the Wapshares and Mr. Thorne representing the appellant.
Mr. Thome could not offer more than Rs. 10 lakhs for all the estates excluding Naduvattam.
He told the Wapshares that they should accept the, offer of Arbuthnot Lathem & Co. as they would get Rs. 14 lakhs by selling all the estates.
The Wapshares were anxious to retain Naduvattam and were inclined to accept the appellant 's offer.
They took some time for consideration and at the same time asked the Arbuthnots for time till, November 10, for consideration of their offer.
On November 10, Dorothy sent a telegram to the appellant company informing them that the family was agreeable to their new proposal.
The draft agreement was sent by the appellant on November II.
In the beginning of November Mrs. Wapshare was ill and was in a hospital in Bangalore.
But on November 10, she was well enough to discuss the appellant 's proposal.
On November 12, she came to Ootacamund and on November 13 she went to her lawyer Gonsalves, discussed the matter, with him and gave her consent.
Gonsalves was approached to put the bargain in a legal form.
He took exception to the draft agreement, but found the formal agreements to be free from blemish.
At a meeting held on November 18, 1937 the shareholders of the company unanimously accepted the proposal.
Mrs. Wapshare, Dorothy, Robert and Edward were present at the meeting.
The meeting was also attended by E.W. Simcock, chairman of the company, H. M. Small, the director, nominated by the Imperial Bank of India and C. K. Pittock.
All the Wapshare 's were sui juris ' Dorothy was a shrewd young lady and the best business brain in the family.
The Wapshares knew the value of the properties intimately.
They knew that Naduvattam if sold separately would not fetch more than Rs. 2 lakhs.
Yet they chose to retain Naduvattam and sell their estates for Rs. 10 lakhs instead of selling all the estates for Rs. 14 lakhs.
The reason was that there was no other, buyer willing to pay more than Rs. 10 lakhs for the other estates.
They had decided not to sell Naduvattam and they were satisfied that ft. 10 lakhs was a just and fair price for the other estates sold separately from Naduvattam.
The appellant 's offer enabled them 211 to keep Naduvattam and at the same time to liquidate the Bank 's dues.
The deal was satisfactory to them in every way.
They obtained all necessary legal advice.
The documents were in proper legal form.
There was no fraud, no concealment and no undue influence.
No advantage was taken by the_ appellant of any information acquired by them in their character as secretary.
The Wapshares clearly understood that they were, dealing with the appellant company, had the fullest information about all material, facts and that having this information they agreed to sell.
They made no complaint about it for 12 years.
Their long acquiescence 'in the sale is evidence that the transaction was fair in all respects, see Parks vs White(1).
On the whole and especially having regard to the long acquiescence we hold that the transaction was just and fair and that the appellant did not gain any pecuniary advantage by availing themselves of their fiduciary character or under 'circumstances in which their interests were in conflict with those of the old company.
In saying so we must not be understood to say that we encourage transactions of this type.
Having regard to their fiduciary character the appellant company might well have avoided entering into the transaction.
The next question is with regard to limitation.
The convey ances in favour of the new company were executed on January 14, 1939 and May 15, 1939.
Simultaneously with the execution of the conveyances the new company entered into possession of the properties.
Even before that date by January 10, 1938 the appellant company had taken possession of the properties.
The suit was filed on December 21, 1950 when the Indian Limitation Act, 1908 was in force.
The plaintiffs cannot claim relief on the ground of fraud and consequently article 95, has no application.
Section 10 does not apply as the properties are not vested in the new company for the specific purpose of making them over to the old company or to the plaintiffs.
Article 144 does not apply for several reasons.
In the plaint there is no prayer for recovery of possession.
The plaintiffs claim declaratory reliefs, a decree vesting or re transferring the properties to the old company or to the plaintiffs and accounts.
Such a suit is governed by article 120.
The High Court passed a decree for money and not for recovery of immovable properties.
A suit for such a relief would be governed by article 1 20.
Even if the suit is treated as one for recovery of possession of the properties it would be governed by article 120 and not by article 144.
The old company could not ask for recovery of the properties until they obtained a reconveyance from the new company '.
The cause of action for this relief arose in 1939 when the properties were 11 Ves.
June. 209,226; ,1074.
212 conveyed to the new company.
A suit for this relief was barred under article 120 on the expiry of six years.
After the expiry this period the old company could not file a suit for recovery of possession.
In Rani Chhatra Kumari Devi V. Prince Mohan Bikram Shah(1) the Privy Council held that in a case where the property was not held by the trustee for the specific purpose of making it over to the beneficiary 'and the trust did not fall within section 10, a suit by the beneficiary claiming recovery of possesSion from the trustee was governed by Art 120.
Sir George Lowndes said. "The trustee is, in their Lordships ' opinion, the owner of the trust property, the right of the beneficiary being in a proper case to call upon the trustee to convey to him.
The enforcement of this right would, their Lordships think, be barred after six years under article 120 of.
the Limitation Act, and if the beneficiary has allowed this period to expire without suing, he cannot afterwards file a possessory suit, as until conveyance he is not the owner.
" It follows that the suit is barred by limitation.
The third question relates to the maintainability of the suit.
The plaintiffs sued to recover properties belonging to the old company.
The company went into voluntary liquidation and was wound up.
As already stated the company stood dissolved on March 1, 1940 under section 209H of the Indian Companies Act, 1913.
No application was made within 2 years to declare the dissolution to be void under section 243.
Apart from s.243 the dissolution might possibly be set aside in a suit on the ground of fraud, but the plaintiffs failed to establish any fraud affecting the dissolution.
The dissolution has put an end to the existence of the company.
In these circumstances, the appellant contends that all the properties and the rights of the old company.
if any, have vested in the Government by escheat or as bona vacantia and the plaintiffs cannot sue for the recovery of its properties.
The plaintiffs dispute the right of the Government to take the properties by escheat or as bona vacantia, and they contend that on the dissolution of the old company, its assets have now vested in its shareholders.
The common law of England recognises the right of the Crown to take property by escheat or as bona vacantia.
Escheat proper was the lord 's right of re entry on real property held by a tenant dying intestate without lawful heirs.
It was an incident ,of feudal tenure and was based on the want of a tenant to perform the feudal services, see Halsbury 's Laws of England, vol.
16, (1) L.R. 58 I.A. 279.
213 art 830 On the tenant dying intestate without leaving any lawfull heirs his estate came to an end and the lord was in by his own right and not by way of succession or inheritance from the tenant, see: Attorney General of Ontario vs Andrew F. Mercer(1).
In most cases, the land escheated to the Crown as the lord paramount, in view of the gradual elimination of intermediate or mesne lords since 1290 The Crown takes as bona vacantia goods in which no one else can claim a property.
In Dyke vs Walford(2 ) it was said that "it is the right of the Crown to bona vacantia, to property which has no other owner.
" The right of the Crown to take as bona vacantia extends to personal property of every kind, see: In re.
Wells, Swinburne Hanham vs Howard(3).
Escheat of real property of an intestate dying without heirs was abolished in 1925 and the Crown now takes all his properties as ,bona vacantia.
On the dissolution of a company the Crown took its real property by escheat and its personal property as bona) vacantia.
Technical escheat of the property of a dissolved company was abolished in 1929 and now under section 354 of the English Companies Act, 1948 all the property and rights of a dissolved company is deemed to be bona vacantia and accordingly belongs to the Crown.
The right of the Government to take by escheat ' for want of an heir or successor or as bona vacantia for want of a rightful owner has been recognised in our country for a long time.
Statute 16 & 17 Victoriae, C. 95, section 27, an Act to provide for the government of India asserted that "all real and personal estate within the said territories escheating or lapsing for want of an heir or successor, and all property within the said territories devolving as bona vacantia for want of a rightful owner, shall (as part of the revenues of India) belong to the East India Company in trust for Her Majesty for the service of the government of India." By section 54 of the Government of India Act, 1858 the existing provision was continued in force and was construed as referring to the Secretary of State in Council in place of the company.
Section 20(3) (iii) of the Government of India Act, 1915 provided that the revenues of India received for His Majesty would include "all movable or immovable property in British India escheating or lapsing for want of an heir or successor, and all property in British India devolving as ' bona vacantia for want of a rightful owner.
" Section 174 of the Government of India Act, 1935 provided : "Subject as hereinafter provided, any property 'in India accruing to His Majesty by escheat or lapse or as bona vacantia for want of a rightful owner, shall, if it is (1) 8 A.C. 767, 772.(2) ; ,496;13E.R.557,580.
(3) [1933] 1 Ch.29,49.
214 property situate in a Province, vest in His Majesty for the purposes of the government of that Province, and shall in any other case vest in His Majesty for the purpose of the, government of the Federation.
" Article 296 of the Constitution now provides "Subject as hereinafter provided, any property in the territory of India which, if this Constitution had not come into operation,, would have accrued to His Majesty or, as the case may be, to the Ruler of an Indian State by escheat or lapse, or as bona vacantia for want of a rightful owner, shall if it is property situate in a State, vest in such State, and shall, in any other case, vest in the Union.
" These enactments show that in this country the Government takes by escheat immovable as well as movable property for want of an heir or successor.
In this country escheat is not based on artificial rules of common law and is not an incident of feudal tenure.
It is an incident of sovereignty and rests on the principle ,,of ultimate ownership by the State of all property within its jurisdiction.
"Private ownership not existing, the State must be owner as ultimate lord", see: Collector of Masulipatam vs C. Vencata Narainapah(1).
The rules of English feudal law relating to mesne lords are not applicable, and consequently the zamindar could not take by escheat the land of a tenant dying without heirs.
The right of escheat belongs to the Government only, see Ranee Sonet Kowar vs Mirza Himmut Bahadoor(2).
The Government has the right to take all property within its jurisdiction by escheat for want of an heir or successor and as bona vacantia for want a a rightful owner, see : Bombay Dyeing & Manufacturing Co. V. State of Bombay("), Legal Remembrancer vs
Corporation of Calcutta (4),.
Consequently the property of an intestate dying without leaving lawful heirs, and the property of a dissolved corporation passes to the Government by escheat or as bona vacantia.
The property taken by escheat or as bona vacantia belongs to the Government, subject to trusts and charges, if any, previously affecting it.
As already stated, technical escheat of the real property of a dissolved company was abolished in England in 1929 and section 354 of the Companies Act 1948 now provides that all property and rights of a dissolved company shall be deemed to be bona vacantia and shall accordingly belong to the Crown.
There was no statutory provision like section 354 before 1929.
In the absence of such a provision, the Crown took the real property of a company dissolved before 1929 by escheat 'and its personal property (1) 8 M. I. A. 500, 525.
(3) ; ,1146.
(2) L.R. 3 I.A. 92, 101.
(4) 215 as bona vacantia, except in so far as its right, was cut down by statute, see : In re.
Wells(1).
Likewise in this country, the Government, took by escheat or as bona vacantia all the properties of a company dissolved under the Indian Companies Act, 1913 except in so far as its right was cut down by that Act.
P. B. Mukherjee, J. expressed a similar opinion In re U.N. Mandal 's Estate (2).
Accordingly the shareholders or creditors of the dissolved company cannot maintain any action for recovery of its assets.
No effective relief can be given in such action, as the company is ' not a party and the assets cannot be restored to its coffers.
On this ground in Coxon vs Gorst(3) an action by creditors for recovery of moneys due to the dissolved company was dismissed, and in.
In re.
Lewis & Smart Ltd. (4) it was held that a pending misfeasance summons abated on the dissolution of the company.
The plaintiffs ' contention that the properties of a dissolved company passed to its shareholders is based upon American law, which is stated in American Jurisprudence, 2d, Corporations, aft.
1659 thus : "Apart from statutory provisions which frequently embody the following rule also, the general equitable rule now followed in this country is that upon the dissolution of a corporation, the property and assets of the corporation constitute a trust fund 'for the benefit of its creditors and stockholders.
This rule necessarily displaces and makes obsolete the early common law rules as to the reverter If real estate and the escheat of the personal estate of corporation in such a case, and practically makes obsolete the doctrine as to the extinguishment of the debts owing by and to the corporation in such cases.
Stated in another way, the rule is that after the dissolution of a corporation, its property passes to its stockholders subject to the payment of the corporate debts.
The inherent jurisdiction of equity over trusts embraces the power to administer the assets of a dissolved coloration.
" The subject of dissolution of corporations is discussed in articles 1628 to 1696 of the book.
The corporation is dissolved by a judgment of court (article 1645).
For the purpose of complete winding up of its affairs, statutes provide that even after dissolution the corporation shall continue to exist and may sue or be sued for a limited period, see articles 1662, 1668, 1669, 1671, 1673, Statutes also provide for appointment of a trustee for the dissolved corporation and their effect is to convert its properties into 'a trust fund and to abrogate the common law rule of escheat, articles 1676, 1677.
The stockholders of the dissolved corporation can accordingly maintain an action against the trustee for distribution (1) ,49.(3) (2) A.T.R. , 498.(4) 216 of the surplus assets after payment of the debts.
of the corporation, see Bacon vs Robertson (1).
The law in our country is very different.
Here the winding up precedes the dissolution.
There 'is no statutory provision vesting the properties of a dissolved company in a trustee or having the effect of abrogating; the law of escheat.
The shareholders or creditors of a dissolved company cannot be regarded as its heirs and successors.
On dissolution of a company, its properties, if any, vest in the government.
In Coxon vs Gorst(2) page 78 Chitty, J. summarily rejected the contention that a chose in action vested in a company passed on the dissolution to its creditors.
He said : "This supposed vesting in the creditors of the company 's closes in action is a mere fiction with nothing in the statute to support it, and is in the teeth of the provisions of the statute.
follows that the plaintiffs are not entitled to maintain this suit.
A question may arise whether the Government takes the pro perty of a dissolved insolvent company subject to a trust for payment of its debts, see in this connection, In the matter of Chandbali S.S. Co.,(3) and In Re Wells(4 ) at pages 38 and 50.
But that question does not arise in the present case and we express no opinion on it.
In the result, C.A. No. 1174 of 1965 is allowed, the decree passed by the High Court is set aside and the decree passed by the Trial Court is restored.
C.A. No. 1935 of 1966 is dismissed.
There will be no order as to costs in this Court and in the High Court.
C.A. No. 1174/65 allowed.
v.p.s.
C.A. No. 1935/66 dismissed.
(1) 15 Law ed.
(2) (3) , 284 286.
| IN-Abs | One W owned several tea, coffee and other.
plantations.
In 1927, he formed a limited company and conveyed his estates to the company.
All the shares of the company were held by him and the members of his family.
The company borrowed Rs. 10 1/2 lakhs from the Imperial Bank of India 'against the issue of debentures secured by an English mortgage.
The loan was repayable on March 15, 1937.
In default of payment within November 15, 1937 the trustee under the debenture trust deed was authorised to enter into possession of the estates and sell them.
The appellant company was appointed as the secretary of the company.
Since 1931, the family was keen on selling the estates, but none of the offers materialised.
In 1936, there was a slump in tea and coffee prices and there was a possibility of a further slump.
The Bank was pressing for the payment of its dues and the company was not in a position to liquidate the debt without selling the estates.
The family 'tried unsuccessfully to raise loans.
In the beginning of November 1937, the family had a firm offer from A.L. & Co. for the purchase of all the estates for Rs. 14 lakhs, but the family wag anxious to retain one of them.
The appellant company offered Rs. 10 lakhs for all the estates excluding the estate which the family wanted to retain.
The family knew that this estate, if sold separately, would not fetch more, than Rs. 2 lakhs and yet they chose to retain it and to accept the appellant 's offer.
At a meeting all the shareholders (members of the family) unanimously accepted the, proposal.
There all sui juris and had business acumen.
They knew the value of he properties and accepted Rs. 10 lakhs as a just and fair price.
The offer enabled them to retain the estate which they wanted to retain and at the same time enabled them to liquidate the Bank 's dues.
They had legal advice and the documents were in proper legal form.
The meeting was also attended by the chairman of the company and the director nominated by the Imperial Bank.
After the transfer, the company went into voluntary liquidation and it stood dissolved on March 1, 1940, under section 209 H of the Companies Act, 1913.
The appellant took possession of the properties on January 10, 1938 and promoted a new company to which the properties were transferred by conveyances dated January 14, 1939 and May 15, 1939 50 % of the shares of the new company were held by the appellant company which managed and controlled the new company.
The members of the family made no complaint about 'the transaction for 12 years, but, on December 21, 1950, they instituted a suit against the appellant and others alleging that the old company had not been wound up in accordance with law and was still in existence, that the old company was the real owner of the properties and the new company held them in trust for the old 204 company, that the appellant took advantage of its fiduciary capacity and gained pecuniary advantage and that the various sales and conveyances were vitiated by fraud, and prayed for 'a decree vesting or retransferring the properties to the old company or the family.
The trial court dismissed the suit, but the appeal to the High Court was allowed in part.
In appeal to this Court, on the, questions : (1) (a) Whether there was a fiduciary relationship between the appellant and the old company, and (b) Whether the appellant gained a pecuniary advantage by availing itself of the fiduciary character; (2) Whether the suit was barred by limitation; and (3) Whether the members of the family as shareholders of the old company were entitled to maintain the suit, HELD : (1) (a) The appellant company was the secretary of the old company, was in charge of its correspondence and accounts and was actively engaged in assisting it and its share holders in selling the estates.
In the course of such employment it acquired intimate knowledge of the income, prospects and market value of the properties.
Therefore, the appellant stood in a fiduciary relationship towards the old company and was bound to protect its interests.
Having regard to its fiduciary character, the appellant should have avoided entering into the transaction.
[209 B D; 211 D] (b) But, there is no rule, which incapacitates a trustee from dealing with a cestui que trust, provided there was no fraud and no advantage was taken by the trustee of any information acquired by him in the character of a trustee.
The onus, however, is upon the trustee to establish affirmatively that the transaction was righteous and that he did not gain any pecuniary advantage by availing himself of his fiduciary character.
in the present case, the appellant had discharged this difficult onus.
The transaction was just and fair and the appellant did not gain any pecuniary advan tage by availing itself of its fiduciary character, nor was there any conflict between its own interests and those of the old company.
, No advantage was taken by the appellant of any information acquired by it in its character as secretary and, the circumstances ,how that there was no fraud, no concealment and no undue influence.
The long acquiescence of the members of the family in the sale is also evidence that the transaction was fair in all respects.
E; 211 E D] Coles vs Trecothick, ; , 247; ; , 597 and Parks vs White, , 226; , 1074, applied (2) The suit was barred by limitation.
[212 D] A suit by a beneficiary, claiming recovery of possession from the trustee is governed by article 120 of the Limitation Act, 1908.
The plaintiffs had not established fraud and consequently article 95 of the Limitation Act has no application.
Section 10 of the Act also does not apply, because, the properties were not vested in the new company for the specific purpose of making them over to the old company or to the plaintiffs.
In the plaint there was no prayer for recovery of possession.
The old company could not ask for recovery of the properties until they obtained a reconveyance from the new company.
The suit is not there fore governed by article 144 of the Limitation Act and since the ' period under article 120 is 6 years from the date of cause of action and the cause of action in the present case arose in 1939 when the conveyances were executed, the suit was barred.
[211 F H] 205 Rani Chhatra Kumari Devi vs Prince Mohan Bikram Shah, L.R. 58 I.A. 279, applied.
(3) The plaintiffs were not entitled to maintain the suit.
[216 C] As the plaintiffs failed to establish any fraud affecting the dissolution of the company, the dissolution has put an, end to its existence.
On the dissolution of the company, its properties, if any, Vested in the Government The right of the Government to take by escheat for want of an heir or successor or as bona vacantia for want of a rightful owner has been recognised in our country.
The various Government of India Acts and the Constitution show that the Government takes by escheat immovable as well as movable property for want of an heir or successor.
It is an incident of sovereignty and rests on the principle of ultimate ownership by the State of all property within its jurisdiction.
Unlike the law in the United States, winding up 'under the Indian Law precedes dissolution and there is no statutory provision vesting the properties of a dissolved company in a trustee or having the effect of abrogating the law of escheat.
The shareholders or creditors of a dissolved company cannot be regarded as its heirs or successors.
Therefore, the Government took by escheat or as bona vacantia all properties of a company dissolved under the, Indian Companies Act,. 1913, except in so far as its right was cut down by that Act.
Accordingly, the shareholders or creditors of the dissolved company cannot maintain arty action for recovery of its assets As the company was not a party and the assets could not be restored to its coffers, no effective relief could be given in such an action.
D E; 214 C D, F; 215 B C; 216 A B] Collector of Masulipatam vs C. Vencata Narainapah, 8 M.I.A. 500, 525, in re.
Wells , 49, Coxon vs
Gorst, and In re.
Lewis and Smart Ltd. , applied.
Bombay Deying and Manufacturing Co. vs State of Bombay, ; , 1146 and Legal Remembrancer vs Corporation of Calcutta; , , 204, followed.
In re.
U. N. Mandal 's Estate, A.I.R. 1959 Cal.
493, 498, approved.
|
Appeal No. 2431 of 1966.
Appeal by special leave from the Award of the Industrial Tribunal, Gujarat in Reference (IT) NO. 88 of 1962.
176 A. section R. Chari, M. K. Ramamurthi, Shyamala Pappu, Vineet Kumar, P. section Khera and Bindra Thakur, for the appellants.
I. N. Shroff, for the respondent.
The Judgment of the Court was delivered by Bhargava, J.
This appeal, by special leave, is directed against an Award of the Industrial Tribunal, Gujarat, in an industrial dispute referred to it by the Government of Gujarat at the instance of the appellants who are 466 workmen of the Gujarat Electricity Board, Baroda (hereinafter referred to as "the Board") represented by the Saurashtra Vidyut Kamdar Sangh (hereinafter referred to as "the Sangh").
The dispute referred to related to two matters.
One was the demand made in respect of rates of dearness allowance to be paid to the workmen.
The second demand was that those of the workmen, to whom Contributory Provident Fund or Employees Provident Fund scheme was appli cable, should be granted gratuity equal to 15 days wages for every year of service in addition to the provident fund benefits, while those workmen, who were entitled to pension according to the pensionary scheme in force, should have their pension calculated after adding 50 per cent of the dearness allowance to the basic pay.
The facts needed to explain the second demand may first be stated.
The supply of electricity in the State of Saurashtra, prior to the year 1954, was being carried out departmentally by the Government of Saurashtra and the workmen employed in the power houses were, consequently, Government servants.
On 1st July, 1954, a Saurashtra Electricity Board was constituted to run the power houses and the employees of the Electricity Department of the Government were sent to work with the Saurashtra Electricity Board on deputation.
On 1st November, 1956, Saurashtra became a part of the Bombay State, hereafter the Saurashtra Electricity Board was dissolved with effect from 1st April, 1957 and its assets, liabilities, and employees were taken over by the Bombay State Electricity Board.
The employees, who were originally in the service of the Saurashtra State Government were entitled to the pensionary scheme of the Saurashtra Government, while the Bombay State Electricity Board had a Provident Fund Scheme.
The Saurashtra State Government servants, on being taken over by the Bombay State Electricity Board, were given the option of either continuing in their pensionary scheme, or of joining the Provident Fund Scheme of the Bombay State Electricity Board in which case the gratuity already accrued to them and the equivalent of pensionary benefits were credited to their accounts.
Some of the employees opted for the Provident Fund Scheme, while others continued under the pensionary 177 scheme.
Thereafter, on 1st May, '1960, the State of Bombay was bifurcated and a separate State of Gujarat was constituted; and, with effect from the same date, the Board came into existence.
The Board ;took over all the electricity, power houses ,and electricity schemes in the State of Gujarat from the Bombay State Electricity Board, including the workmen who are the appellants in this appeal.
The assets and liabilities of the Bombay State Electricity Board were divided between the Board, and the Maharashtra Electricity Board which was constituted for the State of Maharashtra which came into existence on bifurcation of the Bombay State.
The Board continued both the Pensionary Scheme as well as the Provident Fund Scheme for the employees in the manner they were in force when the employees were working under the Bombay State Electricity Board.
The employees, who were originally servants of the State Government, had ceased to be government servants with effect from 1st April, 1957 and later on 1st May 1960, became the employees of the Board, so that they were no longer entitled to the rights which the State Government might subsequently grant in respect of pension under the rules applicable to the government servants.
The result was that even improvements granted in the pensionary scheme by the State Government to its employees did not enure to the benefit of the appellants.
In these circumstances, the Sangh put forward the claim that the pension of employees, who were governed by the pensionary scheme, should be calculated not on the basis of basic salary, but after adding 50 per cent of the dearness allowance to it.
In respect of employees, who were governed by the Provident Fund Scheme, a second benefit of gratuity was claimed.
The demand for dearness allowance was that it should be linked with the scale prescribed for the Ahmedabad Millowners ' Association.
The workmen demanded that employees, drawing up to Rs. 50 as basic pay, should be given dearness allowance at the scale applicable to Ahmedabad Millowners ' Association, those drawing between Rs. 50 to Rs. 100, D.A. at that scale plus Rs. 5, and those drawing above Rs. 100, dearness allowance at that scale plus Rs. 10.
This demand was put forward before the Board originally on behalf of all the 9,208 employees of Class III and Class TV and some employees of Class I and Class II whose salary was below Rs. 300 per mensem, who were working either in the Gujarat Region or the Saurashtra Region.
These employees were represented by seven different Unions, one of which was the Sangh who represented about 3,000 employees working in the Saurashtra region.
The six Unions representing the employees working in the Gujarat region amicably settled these disputes with the Board by entering into agreements.
The 17 8 Board gave some increase in dearness allowance retrospectively with effect from 1st October, 1961, while the second demand relating to gratuity and calculation of pension after adding 50 per cent of the dearness allowance was given up.
The Sangh declined to accept this settlement, whereupon the Board offered terms in accordance with the settlement to all the employees in the Saurashtra region individually.
Out of the total of 3,042 in the Saurashtra region, 622 signed General Standing Order 56, under which the Board had made its offer to individual employees ,on the basis of the settlements arrived at before the reference to conciliation.
1152 signed before the date of the failure report by the Conciliation Officer; 2058 signed before the reference and 518 signed after the reference.
Thus, the dispute, after the reference, became confined to the remaining 466 employees who did not, on individual basis, accept the offer made by the Board.
The Tribunal considered this dispute relating to the dearness allowance raised by these employees through the Sangh as also the other demand relating to gratuity and calculation of pension, and, by the impugned Award, rejected these demands.
Consequently, the workmen have come up in this appeal through the Sangh.
The main ground for rejecting these demands, on which the Award is based, is that the Board does not have the capacity to meet the additional expenditure that would have to be incurred if these demands are acceded to Before the Tribunal, this aspect of the case was sought to be met by the Sangh by urging that the total wage packet, including the dearness allowance claimed by them in the demand, would only satisfy the requirement of a minimum wage, so that the Board 's capacity to pay was irrelevant; but the award shows that the Sangh completely failed to provide any material to prove that the total wages, including the dearness allowance as offered by the Board on the basis of the settlements, are less than the minimum wage.
This Court, in Hindustan Antibiotics Ltd. vs The Workmen & Others(1), recognised the three concepts of minimum wage, fair wage, and living wage by quoting the following passage from the decision in The Hindustan Times Ltd. vs Their Workmen(2), and stating that it briefly and neatly defined the three concepts : "In trying to keep true to the two points of social philosophy and economic necessities which vie for consideration, industrial adjudication has set to itself certain standards in the matter of wage fixation.
At the bottom of the ladder, there is the minimum basic (1) (2) [1964] 1 S.C.R. 234. 179 wage which the employer of any industrial labour must pay in order to be allowed to continue an industry.
Above this is the fair wage, which may roughly be said to approximate to the need based minimum, in the sense of a wage which is "adequate to cover the normal needs of the average employee regarded as a human being in a civilised society".
Above the fair wage is the "living wage" a wage 'which will maintain the workman in the highest state of industrial efficiency, which will enable him to provide his family with all the material things which are needed for their health and physical well being, enough to enable him to qualify to discharge his duties as a citizen." These decisions make it clear that, if the claim be for a minimum wage, the employer must pay that wage in order to be allowed to continue the industry; and, in such a case, the capacity of the industry to pay is irrelevant.
However, if the industry is already paying the minimum wage, and the claim is for fair wage or living wage, the capacity of the industry to pay is a very important factor, and the burden above the minimum wage can only be justifiably imposed if the industry is capable of meeting that extra burden.
On this principle, in the present case, if the appellants had succeeded in showing that they were not receiving even the minimum wage on the basis of the offer made by the Board in line with the settlements arrived at with the other Unions and individual workmen members of the Sangh, there would have been full justification for granting additional dearness allowance, ignoring the inability of the Board to meet that extra expenditure.
The finding of the Tribunal, however, is that the demand of the workmen is not confined to minimum wage, but that, as a result of the demand, the wages will be above the minimum wage.
Learned counsel appearing for the appellants before us did not try to contend that the wages which were being paid by the Board, were lower than the minimum wage, so that the claim for the additional dearness allowance cannot be considered without taking into account the capacity of the Board to meet the expenditure.
So far as the question of capacity of the board to pay is concerned, there is a clear finding by the Tribunal that the Board is running at heavy losses, so that it is not in a position to meet the extra expenditure of about Rs. 49 lakhs a year which will be involved if the dearness allowance is fixed as claimed by the Sangh.
The Tribunal has found that the Board, when constituted on 1st May, 1960, inherited an accumulated deficit 'of over Rs. 2 crores from the Bombay State Electricity Board.
In its own working, the Board sustained a loss of over Rs. 29 lakhs between 1st May, 1960 and 31st March, 1961, and in 180 the two succeeding years 1961 62 and 1962 63, the losses in curred were in the region of Rs. 39 lakhs and Rs. 41 lakhs.
The Tribunal, thus, held that the total loss was to the tune of Rs. 31 millions; and since the Board had undertaken a further liability of over Rs. 6.75 lakhs a year under the settlements and the offer to individual workmen, it could not possibly undertake the further burden of paying about Rs. 49 lakhs per year as increased dearness allowance.
The Tribunal was also of the opinion that, considering this financial condition of the Board, there was no justification for introducing a gratuity scheme for workmen governed by the Provident Fund Rules, nor was there any justification for calculation of pension on the basis of adding 50 per cent of the dearness allowance to the basic pay.
Mr. Chari, counsel for the appellants, challenged this decision of the Tribunal on two grounds.
The first ground was that the Tribunal was wrong in judging the capacity of the Board to pay after taking into account the deficit of over Rs. 2 crores which it had inherited from the Bombay State Electricity Board; and the second ground was that the financial capacity of the Board should be judged only on the basis of its commercial undertakings, excluding the activities of the Board which were in the nature of national duties.
So far as the first point is concerned, we think that there is some force in the submission made by learned counsel.
The deficit inherited by the Board from its predecessor cannot be treated as are venue loss which will have bearing on its paying capacity.
Such inherited deficit should really have been treated as capital loss; but even this loss cannot be completely ignored, because the paying capacity of an employer has to take into account even capital losses.
However, even if this accumulated deficit of over Rs. 2 crores is ignored, it is clear that, during the three years after its formation, the Board itself incurred heavy losses which totaled to about Rs. 110 lakhs.
Consequently, even if that accumulated deficit is not taken into account, it cannot be held that the Board will have the capacity of bearing the additional financial burden to the tune of Rs. 49 lakhs a year, if required to pay dearness allowance at the rates claimed by the Sangh.
On the second point, we are unable to accept the submission made by learned counsel.
The Board was constituted under the Electricity (Supply) Act No. 54 of 1948, and section 18 of that Act lays down the duties of the Board.
By its very constitution, the Board is charged with the general duty of promoting the coordinated development of the generation, supply and distribution of electricity within the State in the most efficient and economical manner, with particular reference to such develop 181 ment in areas not for the time being served or adequately served by any licensee.
In particular, the duty of the Board is to prepare and carry out schemes with the objects mentioned above; to supply electricity to owners of controlled stations and to licensees whose stations are closed down under this Act; and to supply electricity as soon as practicable to any other licensees or persons requiring such supply and whom the Board may be competent under this Act so to supply.
When the Board was constituted to carry out these duties, its capacity to bear the burden of paying wages to its employees has to be worked out after taking into account all the activities which the Statute requires it to carry on.
The running of Power Houses is only one of the branch of those activities.
The profit that the Board can be held to have earned can only be worked out after including in the accounts all the expenditure incurred by it on all its schemes for distribution of electricity to licensees or to consumers, whether in urban areas or in rural areas.
In fact, there is not even an assertion on behalf of the appellants workmen that they were employed solely in connection with a profitable undertaking of the Board and had nothing to do at all with the other activities which the Board is actually carrying on.
No doubt, learned counsel is right in urging on the basis of the decision of this Court in Hindustan Antibiotics Ltd() that the circumstance that the Board is an industry in the public sector does not exempt it from application of principles which apply to an industry in private sector, and the Board must also be made to pay wages on the same basis as Private sector employers.
This, however, does not advance the case of the appellants, because, even in a private sector, additional burden over and above a minimum wage can only be justifiably imposed in industrial adjudication, if the employer has the capacity to meet that burden.
In this case, the Tribunal has refused to grant the demand of the appellants not on the ground that the Board is an industry in public sector, but on the ground that it does not have the capacity to pay.
That capacity has rightly been judged on the basis of all the undertakings being worked by the Board.
The Tribunal, after holding that there was no justification for granting the demands of the workmen because the Board had no capacity to bear the additional burden, proceeded further to examine whether the Board 's existing scheme of payment of dearness allowance was reasonable and took into account various factors for arriving at its finding that it could not be held that the terms offered by the Board were unreasonable.
In this connection, reliance was placed on behalf of the appellants on the fact that two Electric Supply Companies were paying wages which (1) [1967]1 S.C.R.652.
182 were much higher than the wages being paid by the Board, and there was no justification for refusing the demand for additional dearness allowance which would place the employees of the Board on par with the employees of those Electric Supply Companies.
One of those Electric Supply Companies is the Ahmedabad Electricity Co. Ltd., Ahmedabad, in whose case wages were fixed by an Award published in 1956 Industrial Court Reporter at p. 746.
The other is the Viramgam Electric Supply Co. Ltd., Viramgam, the Award relating to which is published in 1968 Industrial Court Reporter at p. 1010.
The argument was that wages paid by the Board should not be lower than those paid by these two Electric Supply Companies which were engaged in the same line of business of production and supply of electricity.
The Tribunal brushed aside these example by stating that they were not comparable with the Board.
In taking this view, we do not think that the Tribunal committed an error.
In Williamsons (India) Private Ltd. vs Its Workmen(1), this Court clearly laid down what criteria had been established for considering what are comparable concerns when dealing with a question of wage fixation.
It was held : "This Court has repeatedly observed that, in considering the question about comparable concerns, tribunals should bear in mind all the relevant facts in relation to the problem.
The extent of the business carried by the concerns, the capital invested by them, the profits made by them, the nature of the business carried on by them, their standing, the strength of their labour force, the presence or absence and the extent of reser ves, the dividends declared by them and the prospects about the future of their business these and all other relevant facts have to be borne in mind.
" In the present case, it is clear that, if these various factors are taken into account, neither the Ahmedabad Electricity Co. Ltd., nor the Viramgam Electric Supply Co., can be held to be a concern comparable with the Board.
As we have indicated earlier, the activities carried on by the Board are not only production of electricity and direct distribution in some areas, but also include preparation of schemes for development of supply of electricity in areas not served so far and for supply of electricity to licen sees.
The two concerns at Ahmedabad and Viramgam merely generate and supply electricity to consumers in the cities or towns served by them.
The Board, according to the Act constituting it, has primarily to supply electricity to licensees, and not confine its supply to direct consumers like these two concerns.
The (1) [1962] 1 L.L.J.302.
183 supply to consumers is only undertaken where there are no licensees to undertake the distribution of electricity generated by the Board, and this activity of direct supply to consumers is primarily carried on in rural areas where the population is sparsely distributed as compared to the cities or towns served by the other two concerns.
Then, there is the important factor that the Board is running at a huge loss every year.
The workmen did not provide figures to show what was the profitability of the other two concerns, though the Awards in their cases seem to indicate that both of them are running at a profit.
In these circumstances, we cannot hold that the Tribunal committed any error in ignoring the wages being paid by these two concerns, when dealing with the question of payment of dearness allowance by the Board.
In this connection, a request was made by learned counsel that we may remand the case to the Tribunal in order to enable the Sangh to produce evidence to the satisfaction of the Tribunal that these two concerns are comparable, or to cite examples of other undertakings in the same industry in the Saurashtra region, or, it there be no such undertakings available, of undertakings in other industries in the Saurashtra region so as to enable the Saingh to claim wages on parity with those undertakings.
We do not think that there is any justification for remanding the case for such a purpose at this stage.
It was open to the Sangh to produce material before the Tribunal when the dispute was first investigated by it, and no reason is shown why the Sangh did not do so.
Further, as we have indicated earlier, the very circumstance that the Board does not have the financial capacity to meet the additional burden of the demands made by the workmen justifies the order made by the Tribunal.
The further request that the remand would enable the Sangh to show whether the losses brought to the notice of the Tribunal by the Board were, in fact, net losses has also no force, be cause, when the losses were proved before the Tribunal by production of an affidavit on behalf of the Board and the deponent appeared in the witness box, no attempt was made on behalf of the Sangh to cross examine the deponent in order to establish that the losses had not been correctly represented.
We do not think that, in these circumstances, any remand of this case is called for.
It does appear that the Tribunal in its award committed the error of comparing the Board with the Maharashtra Electricity Board and similar Electricity Boards in other States and thus acted against the principle that wages should be compared on industry cum region basis; but that mistake does not justify any interference with the award which is otherwise correct and justified.
The Tribunal was quite right in rejecting the demands made by the Sangh, particularly in the light of the further fact relied upon by the Tribunal that all the employees of 184 the Board in the Gujarat Region as well as large majority of over 2500 employees even in the Saurashtra Region had accepted the existing rates based on the settlement and only 466 employees had come forward with this demand without establishing that the demand wag restricted to bringing up their wages to the level of minimum wages.
The appeal is dismissed, but we make no order as to costs.
R.K.P.S. Appeal dismissed.
| IN-Abs | Over 9,000 employees of the Respondent Board, represented by seven Unions, demanded an increase in the dearness allowance payable to them, the payment of gratuity to some employees, and the calculation of pension payable to other employees after adding 50% of the dearness allowance.
Six of the Unions representing the employees amicably settled the disputes with the Board which granted increases in dearness allowance on the other demands being given up.
The seventh Union declined to accept the settlement and the dispute was eventually referred for adjudication by the Industrial Tribunal.
Before the Tribunal took up the reference, all except 466 of the employees individually accepted the settlement.
At the hearing of the reference it was contended by the remaining employees through the seventh Union that the total wage packet including the dearness allowance claimed by them would only satisfy the requirement of a minimum wage and the Board 's capacity to pay the increases demanded was, therefore, irrelevant; furthermore, although the Board was an industry in the public sector, it must also be made to pay wages on the same basis as private sector employers; two electric supply companies in ",the area were paving wages which were much higher and there was no justification for refusing the demand for additional dearness allowance which would place the employees of the Board on par with the ,employees of those companies.
The Tribunal in its award rejected all the workmen 's demands.
It found that the demand for increased dearness allowance was not confined to achieving a minimum wage but as a result of its acceptance the wages would be above the minimum wage.
The Tribunal also found that the Board having inherited an accumulated deficit of over Rs. 2 crores from its predecessor, the Bombay State Electricity Board, having sustained heavy losses in its working and having undertaken a further liability to pay increased dearness allowance, it had no capacity to undertake the further burden of paying about Rs. 49 lakhs per year as increased dearness allowance or to meet the other demands.
The Tribunal held that the position in the other two electric supply companies was not comparable 'with the Board.
In appeal to this Court against the award it was contended inter alia, that the Tribunal was wrong in judging the capacity of the Board after taking into account the deficit of Rs. 2 crores which it had inherited from its predecessor; and that the financial capacity of the Board should 174 175 have been judged only on the basis of its commercial undertaking excluding the activities of the Board which were in the nature of national duties.
HELD : The Tribunal had rightly rejected the demands of the appellants.
(i) As the appellants had failed to show that they would not be receiving the minimum wage with their basic pay and the increased dearness allowance offered by the Board, the financial capacity of the Board for acceding to the demands made became a relevant consideration.
Hindustan Antibiotics Ltd. vs The Workmen & Others, ; and The Hindustan Times Ltd. vs Their Workmen, [1964] 1 S.C.R. 234 referred to.
Although the deficit inherited by the Board from its predecessor could not be treated as a revenue loss for determining the Board 's financial capacity and was in the nature of a capital loss, even this loss could not be completely ignored.
Apart from this, it was clear 'On the facts that during three years after its formation the Board had incurred heavy losses of about Rs. 110 lakhs and it did not, therefore, have the capacity of bearing the additional financial burden involved in meeting the appellants ' demands.
[179 D F; 180 E] (ii) When the Board was constituted under the Electricity (Supply) Act No. 54 of 1948 and was, by its constitution, charged with the general duty of promoting the coordinated development of the generation, supply and distribution of electricity within the State, its capacity to bear the burden of paying wages to its employees had to be worked out after taking into account all the activities which the statute required it to carry on.
The running of power houses was only one of the branches of those activities.
The profit that the Board earned could only be worked out after including in the accounts all the expenditure incurred by it on all its development and other schemes for distribution of electricity to consumers in urban and rural areas.
[181 B D] While an industry in the public sector was not exempt from application of principles which apply to an industry in the private sector and the respondent board must also be made to pay wages on the same basis as private sector employers the additional burden in either sector for paying anything above a minimum wage can only be justifiably imposed in industrial adjudication if the employer bad the capacity to meet that burden.
[181 E F] The Tribunal had rightly held that neither of the other two electric companies were comparable with the Board.
These two companies merely carried on the activity of direct supply of electricity to consumers in the towns and cities whereas the functions of the Board included the development and execution of schemes for supply of electricity to new areas.
Williamsons (India) Private Ltd. vs Its Workmen , referred to.
|
Appeal No. 1438 of 1968.
Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated April 22, 23, 1968 of the Gujarat High Court in Election Petition No. 22 of 1967.
I.M. Nanavati, P. M. Raval, D. N. Mishra and J. B. Dada chanji, for the appellant.
H.R. Gokhale, K. G. Vakharia, K. L. Hathi and Atiqur Rahman, for respondents Nos. 1 and 2.
The Judgment of SIKRI and BACHAWAT, JJ. was delivered by BACHAWAT, J. HEGDE, J. delivered a separate opinion.
Bachawat, J.
This appeal is directed against a judgment of single judge of the Gujarat High Court setting aside the election of the appellant from the Banaskantha Parliamentary constituency.
At the last general election to the Lok Sabha from the ' Banaskantha constituency in Gujarat there were three contesting candidates.
The appellant, the Swatantra party candidate, secured 110,028 votes.
Respondent No. 2, the Congress party candidate secured 1,05,621 votes.
Respondent No. 3, an independent candidate secured 14,265 votes.
The appellant was declared elected.
The election petition was filed by respondent No. 1, an elector in the constituency.
Respondent No. 1 alleged a number of corrupt practices on the part of the appellant or his election agents, but at the trial, he pressed only the charge of corrupt practice under section 123 (2) proviso (a) (ii) of the Representation of the People Act, 195 1.
In the petition the charge was that several persons with the consent of the appellant or his election agents induced or attempted to induce the electors to believe that if they voted for the congress party candidate they would become the objects of divine displeasure and spiritual, censure.
In the particulars of this charge it was alleged that in the public meetings held at Amirgadh, Ikbalgadh, Wav, Laxmipura, Tharad Bhabhar and other places one Shambhu Maharaj told the electors that if they voted for the congress candidate they would commit the sin of cow slaughter and urged them in the name of mother cow to take a vow not to vote for the congress candidate with the result that several members of the audience publicly took the vow.
At a late stage of the trial on March 7, 1968, the High Court gave leave, to respondent No. 1 to, amend the petition by adding fresh particulars of the corrupt practice.
The substance of the new charge was that at those meetings Shambhu Maharaj 220 induced or attempted to induce the electors to believe that their religious head Jagadguru Shankracharya had commanded them not to vote for the congress and that contravention of his Command would be a sin and would be visited with spiritual censure and divine displeasure.
The High Court found that the aforesaid practice was committed by Shambhu Maharaj with the Consent of one Punambhai, the election agent of the appellant, and declared the appellant 's election to be void.
The appellant challenges the legality of the order passed by the High Court on March 7, 1968 allowing the amendment.
The election petition was filed on April 10, 1967.
The appellant filed his written statement on June 1; on September 9, the High Court gave leave to respondent No. 1 to amend the petition, by adding the charge that certain persons were threatened that they would commit the sins of go hatya, Brahma hatya and Sadhuhatya, if they worked for the congress candidate.
The order disallowed amendments seeking to introduce, charges of appeal to voters in the name of religion under section 123 (3).
The appellant filed his additional written statement on October 19.
Issues were framed on November 30.
Respondent No. 1 filed his list of witnesses on January 11, 1968.
On February 21, the trial started and P.W. 1, P.W. 2, P.W. 3 and P.W. 4 were examined.
P.W. 4, Ram Swarup was a witness with regard to the meeting at Amirgadh.
The issues were amended on March 1, so as to make it clear that there was no charge of any corrupt practice under section 123(3).
On the same date, respondent No. 1 was examined as P.W. 5.
On March 2, P.W. 6, P.W. 7, P.W. 8 and P.W. 9 were examined.
P.W. 7 and P.W. 8 spoke about the meetings at Palanpur and Bhabhar.
P.W. 9 Bhogilal spoke about the meeting at Ikbalgadh.
On March 4, P.W. 10 and P.W. 11 were examined and spoke, about the meetings at Wav and Laxmipura.
On the same day, P.W. 12 section P. Pandya, a sub inspector of police at Palanpur, and P.W. 13, C.B. Barot, a short hand writer were examined.
The examination of Barot was concluded on March 6.
Barot proved that he, took shorthand notes of the speeches of Shambhu Maharaj at Ikbalgadh, Amirgadh, Bhabhar, Laxmipura, Wav and Tharad and sent reports of the speeches to section P. Pandya.
On March 6, P.W. 14 and P.W. 15 were examined.
On March 5, respondent No. 1 filed, an application for leave to amend the petition by adding portions of the speeches which referred to the command of Shankracharya not to vote for the congress and the consequences of not obeying the command.
The application was allowed on March 7, 1968.
The trial was, then adjourned and started again on April 8.
Between April 8 and April 15, P.W. 17, P.W. 18, D.W. 1 and, D.W. 2 were examined.
, The judgment was delivered on April,22 and 23.
221 The first question is whether the trial judge should have allowed the amendment.
Section 83(1)(b) provides that "An election petition shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement ;as possible of the names of the parties alleged to have committed such corrupt practice and the date, and place of the commission of each such practice".
The section is mandatory.
Where a corrupt practice is charged against the returned candidate the election petition must set forth full particulars of the corrupt practice so as to give the charge a definite character and to.
enable the court to understand what the charge is.
The charge must be substantially proved as laid and evidence cannot be allowed to be given in respect of a charge not disclosed in the particulars.
On a charge, of telling the electors that by giving their vote to the Congress candidate, they would commit the sin of go hatya, evidence cannot be led to prove the charge of telling them that they would commit a sin of Brahma hatya or the sin of disobeying the command of their religious leader.
Section 86(5) allows amendment of the particulars,.
It provides that "the High Court may, upon such terms.
as to, costs and otherwise as it may deem fit, allow the particulars of any corrupt ' practice alleged in the, petition to, be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice, not previously alleged in the petition.
" In Harish Chandra Bajpai vs Triloki Singh(1) the Court held that though under the English law the petitioner was not obliged to give, the particulars of the corrupt practice in his petition the difference was a matter of form and not of substance and that under section 83(3) as it stood before 1955 the Court could allow an amendment introducing fresh instances of the corrupt practice alleged in the petition.
Referring to the English practice the Court observed at page 382 : "it is sufficient if the particulars are ordered to be furnished within a reasonable time before the commencement of the trial".
Section 83(3) has been repealed and is now replaced by section 86(5) which forbids any amendment introducing particulars of a corrupt practice not previously alleged in the petition.
Assuming that the amendment of March 7, 1967 was permissible under section 86(5), the question is whether the High Court rightly allowed it.
Normally an application for amendment under section 86(5) should be made within a reasonable time before the commencement of the trial.
The Court has power to allow an amendment even after the commencement of the trial, but as a rule leave to amend at a late stage should be given in exceptional cases where the petitioner could not with (1)[1957] S.C.R. 371.
222 reasonable diligence have discovered the new facts earlier.
Leave to amend will not be given if the petitioner is not acting in good faith or has kept back the facts known to him before the trial started.
According to respondent No. 1 Shambhu Maharaj committed corrupt practice at election meetings held at Ikbalgadh where P.W. 9 was present, Amirgadh where P.W. 4 Was present and at Wav where.
one Chotaji Bhattji was present and that he came to know of the, corrupt practices from those persons.
All the meetings are referred to in the election petition.
If Shambhu Maharaj had told the electors that Sri Shankracharya had commanded them not to vote for the congress candidate and that disobedience of his command would be sinful, P.W. 4 and Chotaji Bhattji must have informed respondent No. 1 of this corrupt practice before April 10, 1967 when the election petition was filed.
No explanation is given as to why respondent No. 1 withheld this information in the petition.
Respondent No. 1 now says that on April '17, 1967 he applied for certified copies of the reports of C. B. Barot to the Deputy Inspector General of Police, C.I.D., Ahmedabad but the application was rejected on May 14, 1967.
Assuming that he could not get certified copies of the reports, he could set forth in the petition ' the substance of the charge with regard to the command of Sri Shankracharya from the information supplied by his informants.
He knew of the reports of C. B. Barot before April 17, 1967.
Immediately after filing the election petition he could subpoena the reports and under orders of the Court he could inspect them long before the trial started.
He was aware that the charge of telling the electors that they would commit the sin of go hatya was quite different from the charge of telling them that they would commit the sin of Brahma hatya or the sin of disobeying the command of their religious leader Sri Shankracharya.
On September 25, 1967, he obtained an order giving him leave to amend the petition by adding the charge with regard to the sins of Brahma hatya and Sadhu hatya, but he deliberately refrained from adding the charge with regard to the sin of disobeying the command of Sri Shankracharya.
The, trial commenced on February 29, 1968.
On that date P.W. 4 said that at the Amirgadh meeting Shambhu Maharaj told the electors that he had brought a mandate from Jagadguru Shankracharya.
On an objection being raised by the appellant 's counsel Mr. Mehta, counsel for respondent No. 1, agreed that the statement of P.W. 4 would not be treated as part of the evidence on the record.
Thereafter the trial proceeded and 11 more witnesses were examined on the footing that respondent No. 1 would not rely on the charge with regard to the, command of Jagadguru Shankra charya.
On that footing the appellant 's counsel adopted a definite 223 line of cross examination.
On March 4, he consented to the marking of the full reports of the speeches of , Shambhu Maharaj as exhibits and on March 5, he extracted an admission from Barot that the witness had taken verbatim notes of the speeches of Shambhu Maharaj.
Counsel adopted this line of cross examination because he took, the stand that the speeches did not prove the corrupt practice alleged in the petition.
The application, for amendment was filed on March 5 and was allowed on March 7.
The order allowing the amendment has resulted in manifest injustice to the appellant.
His counsel could not thereafter take the stand that the reports had been fabricated at the instance of the congress party , Respondent No. 1 moved the application for amendment in bad faith at a very late stage of the trial.
He deliberately refrained from taking the new charge earlier.
Under section 116A an appeal lies to this Court on any question whether of law or fact from the order of the High Court.
The procedure in appeal is regulated by section 116C.
All the provisions of the Code of Civil Procedure including section 105 apply to the appeal, and any error in an order of the Trial court affecting the decision of the case may be taken as a ground of objection in the appeal.
In an appeal under section 116A the whole case is within the jurisdiction of this Court.
Normally the Court does not interfere with the Judge 's discretion in granting amendments except on grounds of law but where, as in this case, the order has resulted in manifest injustice, the Court has the power and the duty to correct the error.
In Evans vs Bartlam(1) Lord Atkin observed "Appellate jurisdiction is always statutory : there is in the statute no restriction upon the jurisdiction of the court of appeal: and while the appellate court in the exercise of its appellate power is no doubt entirely justified in saying that normally it will not interfere with the exercise of the judge 's discretion except on grounds of law, yet if it sees, that on other grounds the decision will result in injustice being done it has both the power and the duty to remedy it.
" We, therefore, hold that the order of the trial judge allowing the amendment was erroneous and must be set aside.
Respondent No. 1 proved six speeches of Shambhu Maharaj.
He did not rely in the trial court on the speeches at Laxmipura, Bhabhar and Tharad.
Mr. Gokhale stated that he did not rely on these 'speeches for any purpose whatsoever.
Accordingly, those speeches were not read in this Court.
There is no charge (1) [1937] A.C.473,480 481 224 against the, appellant on the ground of appeal to the electors ,on the ground of religion.
The only.
charge against him is that in his speeches at lkbalgadh, Amirgadh and Wav, Shambhu Maharaj with the consent of his election agent Punambhai told the electors that "if they voted for the congress party candidates the voters would commit the sin of cow slaughter (gaumata vadh).
" Respondent No. 1 has not proved the charge that the electors were urged in the name of mother cow to take a vow not to vote for the congress party candidates, with the ,result that several members of the, audience publicly took the vow.
The Ikbalgadh speech (exhibit B1) and the Amirgadh speech (exhibit B3) were delivered on February 8, 1967.
The Wav speech (exhibit B4) was delivered on February 9, 1967.
There was then an acute political controversy with regard to the total ban on cow slaughter.
Section 5(1) of the Bombay Animal Preservation Act, 1954 (Bombay Act No. LXXII of 1954) as amended by Gujarat Act No. XVI of 1961, there was a total ban on cow slaughter in Gujarat.
But there was no absolute ban, on cow slaughter in several other States.
The Swatantra party was agitating for a total ban on cow slaughter throughout India.
Public criticism of the Congress party for not abolishing cow slaughter throughout the country was permissible and legitimate.
But the criticism ceases to be legitimate if the speaker commits the corrupt practice of undue influence under section 123(2), that is, if he interferes or attempts to interfere with the free exercise of electoral right.
Under. section 123(2) proviso (a) cl.
(ii) there is such undue influence if any person with the consent of the candidate or his election agent induces or attempts to induce a candidate or an elector to believe that be, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure.
" The actual effect of the speech is not material,.
Corrupt practice, is committed if the speech is calculated to interfere with the free exercise of electoral right and to leave no choice to the: electors in the matter, see Ram Dial vs, San; Lal & Others(1).
In considering the speeches the status of the speaker and the character of the audience are relevant considerations.
Shambhu Maharaj was a kirtankar of repute and well known and respected for his lectures on Hindu religion.
The audience consisted mostly of illiterate and orthodox Hindus of the rural areas, adivasis and rabaris belonging to the scheduled tribes and scheduled castes.
In this background, let us now consider the speeches.
Respondent No. 1 charges corrupt practice in respect of 4 passages in the Ikbalgadh speech (exhibit B1), passages in the Wav speech (exhibit B4) and 3 passages '.
in the Amirgadh speech (exhibit B3).
(1) [1959] Supp. 2.
S.C.R. 748, 758, 760.
225 The learned trial judge found that the corrupt practice was not committed by the 1st and 2nd passages in exhibit B1, the 1st, 2nd and 3rd and 6th passages in exhibit B4 and the 1st passage in exhibit B3.
But the learned Judge held that 3rd and 4th passages in exhibit B1 and the 4th and 5th passages in exhibit B4 amounted to corrupt practice as the electors were told that Sri Shankracharya had commanded them not to vote for the congress and that if they disobeyed his command they would incur divine displeasure and spiritual censure.
We have disallowed the amendment introducing this charge and we must therefore set aside the finding of the learned judge with regard to those passages.
We find that the passages do not show any corrupt practice as alleged in the petition.
In the 2nd passage, in the, Amirgadh speech (exhibit B3) the speaker referred to the ban on cow slaughter in Pakistan, Afghanistan and Madhya Pradesh and said that the Swatantra Party had promised to ban slaughter of cow progeny and exemption of land revenue.
He also said : "Sun rises and twenty two thousand cows are slaughtered .
In Ahmedabad there is a prohibition oh cow slaughter but the slaughtering of calf and ox is continued.
The earth took the form of a cow and if the said 'Gaumata ' or ox is slaughtered how can earth be satisfied and so long as the earth is not satisfied how can there be fertility in the earth.
" In the third passage (exhibit B3), the speaker said: "In the year 1942 sixteen lacs and in.
1946 twenty four lacs and in 1947 after India became separate and at present about 1 crore cows are slaughtered.
You say whether to vote for congress is to become partner in sin or anything else.
If you give cooperation for good cause you may get good fruit and if you cooperate in committing a sin you become a partner of sin.
Why you become a partner of sin by giving votes to congress ?" He then referred to the command of Sri Shankracharya that the electors should not vote for the Congress party.
But even apart from the command of Sri Shankracharya the electors are distinctly told that though there was a ban on cow slaughter in Ahmedabad, the congress was permitting the slaughter of crores of cows elsewhere in India and was committing the sin of gohatya and those who vote for the congress would be partners in the sin.
The dominant theme of the speech was that those who commit the sin of go hatya would be visited with divine displeasure.
Having regard to the character of the audience, the speech was calculated to interfere with the free exercise of 226 electoral right.
In Narbada Prasad vs Chhagan Lal & Ors.
Hidayatullah, C.J., observed : "It is not necessary to enlarge upon the fact that cow is venerated in our country by the vast majority of the people and that they believe not only in its utility but its holiness.
It, is also believed that one of the cardinal sins is that of go hatya.
Therefore, it is quite obvious that to remind the voters that they would be committing the sin of go hatya would be to remind them that they would be objects of divine displeasure or spiritual censure." In Encyclopaedia of Religion and Ethics, edited by James Hastings, vol. 4, pp. 225, 226, it is stated: "A well known verse (Mahabharata, xiii.
74.4) says : 'All that kill, eat and permit the slaughter of cows, rot in hell for as many years as there are hairs on the body of the cow so slain. "Reverence for the cow has not diminished in modem times.
It is well known that the Hindus of the present day 'are filled with horror at the slaughter of the cow, which is therefore prohibited in native States under treaties with the English.
" According to B. N. Mehta 's Modern Gujarati English Dictionary, vol. 1, page 480, gohatya (go, a cow+hatya, killing) means in Gujarat "slaughter of a cow; killing a cow, being one of the five great sins according to Hindu scriptures which can be atoned for only with capital punishment." Accordingly, the offending passages in the Amirgadh speech fell within section 123 (2) proviso (a) (ii).
We are satisfied that Shambhu Maharaj spoke at the Amirgadh meeting with the consent of Punambhai, the election agent of the appellant.
Punambhai was present at the Amirgadh meeting.
He addressed the meeting before Shambhu Maharaj spoke.
Shambhu Maharaj addressed several other election meetings of the Swatantra party.
Punambhai issued a pamphlet calling one of the meetings.
P.W. 10 proved that he was asked by Punambhai to call Shambhu Maharaj for addressing another meeting as the voters were uneducated and had deep belief in religion.
Punambhai accompanied Shambhu Maharaj from one place to another.
On February 8, 1967 he went with Shambhu Maharaj to the meeting at Ikbalgadh (1) [1969] S.C.E. 499.
227 and thereafter went to Amirgadh.
On February 9, he went with Shambhu Maharaj to the meeting at Wav.
The offending passages of the speech at the Amirgadh meeting are integral parts of the dominant theme of the sin of cow slaughter.
They cannot be regarded as stray words spoken by Shambhu Maharaj without Punambhai 's consent.
Punambhai did not raise any objection to the impugned speeches at the 'meeting.
He gave evidence in Court but did not say that he was not a consenting party to the offending passages.
We hold that the corrupt practice under section 123(2) proviso (a) (ii) was committed at the Amirgadh meeting on February 8, 1967 with the consent of the election agent of the appellant.
In the result, the appeal is dismissed.
There will be no order as to costs.
Hegde, J. I have had the advantage of reading the judgment just now read out by Bachawat, J.
I agree that the appeal should be dismissed.
But I am unable to agree that the amendment complained of was not properly allowed.
The learned trial judge has given good reasons in support of his order.
In my opinion no case is made out to interfere with that order.
I am also of the opinion that each and everyone of the speeches made by Shambhu Maharaj which are the subject matter of this appeal, read as a whole as we should do, fall within the vice of proviso a(ii) of section 123(2) of the Representation of the People Act, 1951.
Nothing so bad as those speeches I have come across in election cases.
They are fanatical outpourings and a direct challenge to the concept of a secular democracy.
Appeal dismissed.
| IN-Abs | The appellant, the Swatantra party candidate, was declared elected to the Lok Sabha as against the Congress party candidate.
On April 10, 1967, the first respondent, an elector in the constituency filed an election petition.
In the petition he charged the appellant with corrupt practice under section 123(2) proviso (a) (ii) of the Representation of the People Act, 1951.
The allegation was that one: S.M., with the consent of the appellant or his election agents, told the electors in speeches that if they voted for the Congress candidate, they would commit the sin of cow Slaughter and would become objects of divine displeasure.
On September 25, 1967 the first respondent 'obtained 'an order giving him leave ,o amend the petition by adding a charge with regard to the sin of Brahma hatya and Sadhu hatya.
On February 29, 1968 the trial commenced and one of the witnesses said that he heard S.M. giving a speech on February 8, 1967, where S.M. told the electors that Sri Shankaracharya had commanded them not to vote for the Congress and that a contravention of the mandate would be visited with spiritual censure.
On an objection being raised by the appellant 's counsel, the first respondent agreed that the statement of the witness should not be treated as part of the evidence.
The trial proceeded, 11 witnesses were examined and the appellant agreed to the marking of the full reports of the speeches of S.M. as exhibits and adopted a definite line of cross examination on the footing that the first respondent would not rely on the charge with regard to the command of Sri Shankaracharya.
However on March 5, 1968, the first respondent 'applied for an amendment of his petition to include a charge of corrupt practice based on the command of Sri Shankaracharya and the High Court allowed the amendment.
The, High Court set aside the 'appellants election on its finding that the corrupt practice in relation to the command of Sri Shankaracharya was proved.
In appeal to this Court on the questions (1) Whether the High Court should have allowed the amendment; and (2) Whether the appellant was guilty of any corrupt practice, HELD : The appellant 's election was rightly set aside.
(Per Bachawat, J.) : (1) The High, Court erred in allowing the amendment.
When a corrupt practice is charged against the returned candidate the election petition Must set forth full particulars of the corrupt practice so as to give the charge a definite character and to enable the Court to understand what the charge is.
It must be substantially proved as laid and evidence cannot be allowed to be given in respect of a charge not dis 7Sup CI/69 15 218 closed in the particulars.
Section 86(5) of the Act, however, allows amendment of particulars, but the Court shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition, and normally, an application for amendment should be made within a reasonable time.
Though the Court has power to allow an amendment even after commencement of the trial, leave to amend would not he granted if the petitioner was not acting in good faith or had kept back facts known to him.
[221 B D, G H; 222 A B] In the present ease, the first respondent knew of both items of corrupt practice ' from his witnesses who were present at the speeches made by S.M.
If S.M. had told the electors about the mandate of Sri Shankaracharya, the witnesses must have given information to the first respondent, and no explanation was given by the first respondent as to why he withheld the information at the time of filing the petition or when he first amended his petition.
He was aware of the difference between the two charges of telling the electors about the sin of gohatya and that of telling the electors about the sin of disobeying the command of their religious leader.
But the :first respondent deliberately refrained from taking the new charge earlier and moved the application for amendment in bad faith at a very late stage of the trial.
Ordinarily, in an appeal under section 116A of the Act, this Court would not interfere with the discretion of the High Court in granting amendments, but since the order of the High Court has resulted in 'manifest injustice, this Court has the power and duty to correct the error.
[222 B D, F H; 223,A E] (Per Hegde, J.) The High Court has given good reasons in support of its order allowing the amendment and no case was made out to interfere with it.
[227 D] (2) (Per Bachawat, J.) There is ' no absolute ban on cow slaughter in several states in India and the Swatantra party was agitating for such a total ban.
Public criticism 'of the Congress party for not abolishing cow 'Slaughter was permissible, but the criticism ceases to be legitimate if the speaker commits the corrupt practice of undue influence under section 123(2) of the Act.
Under section 123(2), proviso ( a) el.
(ii), there is such undue influence if any person, with the consent of the candidate or his election agent, attempts to induce an elector to, believe that he will be tendered an object of divine displeasure or spiritual censure.
[224 D F] In the present case, S.M. spoke at the meeting on February8, 1967 with the consent of the election agent of the appellant.
S.M.was a Kirtankar of repute and well known and respected for his lectures on Hindu religion, while his audience consisted mostly of illiterate and ortho dox Hindus of rural areas who are filled with horror at the slaughter of a cow.
The dominant theme of the speech was that those who commit the sin of gohatya would be visited with divine displeasure.
Therefore, even apart from the charge relating to the command of Sri Shankaracharya, the speech was calculated to interfere with the free exercise of electroral right.
The corrupt practice was thus committed at the meeting on February 8, 1967, with the consent of the election agent of the appellant.
[224 G H; 225 G H; 226 F G 227 B C] Narbada Prasad vs Chhagan Lal, ; , followed.
(Per Hegde, J.) Everyone of the speeches made by S.M., read as a whole, are fanatical outpourings and a direct challenge to the concept of a secular democracy, and fell within the vice of the proviso (a)(ii) of section 123(2) of the Act.
[227 E] 219
|
No. 328 of 1968.
Petition under article 32 of the Constitution of India for a writ in the nature of habeas corpus.
R. K. Garg, for the petitioners.
Debabrata Mukherjee, P. K. Chakravarti and G. section Chatterjee, for the respondents.
The Judgment of the Court was delivered by Grover, J.
This is a petition under article 32 of the Constitu tion by Sushanta Goswami and 46 others for a writ in the nature of Habeas Corpus challenging the detention of the petitioners under the provisions of the , hereinafter called the "Act".
Petitioner No. 4 Krishna Mondal and Petitioner No. 21 Madhu Kanjilal are stated to have been released.
No orders need he 139 made with regard to them.
As regards petitioners Nos. 2, 8, 9, 15, 22, 24, 32, 41 and 47 their matters will be taken up for consideration later as the State has been directed to file further affidavits.
We now proceed to dispose of the cases of the other petitioners.
Petitioner No. 1 (Sushanta Goswami) This petitioner was detained by an order of the District Magistrate 24 Parganas dated July 30, 1968.
His detention was directed under section 3(2) of the Act on the ground that it was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
The grounds were supplied to him and he made a representation to the Advisory Board which, after hearing the petitioner and considering his representation, expressed its opinion that there was sufficient cause for his detention.
Consequently the detention order dated July 30, 1968 was confirmed on September 20, 1968 by the Government of West Bengal.
The grounds for detention have been perused by us.
According to the first ground the petitioner had been committing offences of forming unlawful assembly, assaulting the police and peaceful inhabitants, snatching away cash and valuables, teasing school girls and criminal intimidation.
The instances which were given are seven out of which it is necessary to mention only the following which are typical " (ii) That on 14 11 66 at 21.15 hrs.
, you with your associates formed an unlawful assembly on Dum Dum Road in front of the Fire Brigade Office and assaulted Shri Pranab Bose of P 18 Matijheel Avenue and you snatched away a fountain pen worth Rs. 10 from his pocket.
(vi) That on 18 3 68 at 19.30 hrs.
, you with your associates closely followed Sm.
Sipra Kundu (18) from Satgachi crossing on Jessore Road and uttered indecent language towards her, as a result of which she got terrified and ran away to save her modesty.
" Ground No. 11 is to the effect that as a result of the petitioner 's nefarious activities prejudicial to the maintenance of public order he has become a nuisance to the society and there have been disturbances and confusion in the lives of peaceful citizens of Dum Dum police station and the inhabitants thereof are in constant dread of disturbance of public order.
We do not consider that the above grounds are relevant to public order and if some of the grounds which are given are irrelevant the order of detention cannot be upheld because the court cannot predicate what the subjective satisfaction of the authority would have been on the exclusion of those reasons; vide Dwarka 140 Das Bhatia vs The State of Jammu & Kashmir(1), and the recent decision of this Court in Pushkar Mukherjee vs State of West Bengal (2) .
There the order of detention is hereby set aside.
Petitioner No. 3 Panchu (Gopal Mondal).
This petitioner was detained by an order of the District Magistrate 24 Parganas dated March 23, 1968 made in exercise of the power conferred by section 3 (2) of the Act on the ground that the detention was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies essential to the community.
He was supplied with the grounds and he made a representation.
It was sent to the Advisory Board which,, after hearing him and considering all the material placed before it, expressed, ' its opinion that there was sufficient cause for his detention.
The Government of West Bengal confirmed the detention order on July 17, 1968.
We have perused the grounds of detention and we find that most of them relate to matters for which penal or other action could be taken under the relevant statutes.
For instance ground No. 1(ii) is as follows : "That on 12 1 68 at 11.30 hrs.
you were found operating your husking machine at puraton Bongaon and on demand by S.I.S. Chatterjee of S.E.B. (7) you could not produce the requisite license or permit.
That though you were prosecuted for operating your husking machine on 12 1 68, you carried on further operation with it as it was left on your bond of production, violating again the provisions of West Bengal Husking Machine (Control of Operation) Amendment Order 1967.
" The fact that the petitioner could not produce the requisite licence or permit can hardly be regarded as relevant for detention on the ground of activities prejudicial to the maintenance of supplies essential to the community.
For the aforesaid reasons this petitioner is also entitled to be released.
Petitioner No. 5 (Debendra Nath Das) This petitioner was detained by an order dated May 9, 1968 made by the District Magistrate 24 Parganas under section 3(2) of the Act.
His detention was considered necessary for preventing him from acting in any manner prejudicial to the maintenance of public order His representation was sent to the Advisory Board which, after hearing him personally and, considering all the materials, expressed an opinion that there was sufficient cause for the petitioner 's detention.
His detention was confirmed by the Government of West (1) [1956] S.C.R.945.
(2) ; 141 Bengal by an order dated July 17, 1968.
The grounds of detention have been considered by us and we are of the opinion that they relate mainly to the question of law and order and are not relevant to public order.
Moreover there are allegations of offences under the Indian Penal Code for which prosecution could be launched.
As has been observed in Pushkar Mukherjee & I Ors.
vs State of West Bengal(1) the contravention of any law always affects order but before it can be said to affect public order it must affect the community or the public at large.
A mere disturbance of law and order leading to disorder is not necessarily sufficient for action under the Act but a disturbance which will affect public order can alone justify detention under that head.
Ground No. 1 (viii) which is typical may be specifically mentioned: "That on 26 2 68 at about 09.00 hrs.
you and your associates stabbed Constable Bhupendra Nath Chakraborty of Gouripur T.O.P. under Dum Dum P.S. near Birati Railway Level Crossing gate and stole away his wrist watch.
" We are satisfied that the petitioner could not have been detained on the grounds which are before us.
He is, therefore, entitled to be released.
Petitioner No. 7 (Abdul Waheb).
He was detained by an order dated May 27, 1968 of the District Magistrate 24 Parganas under section 3(2) on the ground that his detention was necessary for preventing him from acting in a manner prejudicial to the maintenance of public order.
He was supplied the grounds on which he made a representation to the Advisory Board which heard him personally and after considering all the material an opinion was expressed that there was sufficient cause for his detention.
The Government of West Bengal confirmed the detention order on August 21, 1968.
We have perused the grounds for the petitioners ' detention.
They relate mostly to the question of law and order and are not relevant to public order.
Consequently the petitioner is entitled to be released.
Petitioner No. 6 (Anil Das).
This petitioner was detained by an order of the District Magistrate, Howrah dated May 18, 1968 made under section 3(2) of the Act, the detention being considered necessary in order to prevent him from acting in any manner prejudicial to the maintenance of public order.
The representation made by the petitioner was forwarded to the Advisory Board which considered all the material before it and was of the opinion (1) [1969]2 S.C.R. 635. 142 that sufficient cause for his detention existed.
On July 29, 1968 the Government confirmed the order of detention.
Most of the grounds are not at all relevant to maintenance of public order.
Ground No. 1 (a) is that on August 12, 1966 at about 10.00 hrs.
"you being drunk demanded Rs. 2 from Shri Santi Das. . near the betel shop of Shalta Lal. and threatened him with murder when he refused to pay you the said money" We are satisfied that the petitioner 's detention cannot be upheld and it is hereby set aside.
Petitioner No. 10 (Dilip Kr.
Chakraborty @ Konkan) This petitioner was detained by an order dated June 13, 1968 made by the District Magistrate 24 Parganas under section 3(2) of the Act on the ground that his detention was necessary in order to prevent him from acting in any manner prejudicial to the maintenance of public order.
One of the grounds, namely, 1 (ii) is .
"That on 13 3 67 you with your associate Debu Biswas assaulted one Paresh Nath Koley of Ghosepara with fists and blows".
Such a ground cannot possibly relate or be relevant to public order.
In view of our previous decisions mentioned before we are of the opinion that the petitioner is entitled to be released.
It may be mentioned that this petitioner had also filed a petition under article 226 in the Calcutta High Court but his counsel has undertaken to withdraw that petition.
Petitioner No. 12 (Ashoka Kumar Mukherjee).
This petitioner was detained by the order of the District Magistrate, 24 Parganas, dated May 25, 1968 made under section 3(2) of the Act; the reason for his detention being the prevention of activities prejudicial to the maintenance of public order.
The grounds were supplied to him and he made a representation which was considered by the Advisory Board which, after giving a personal hearing, expressed an opinion that his detention was justified.
The Government confirmed the 'original order of detention on August 8, 1968.
We have examined the grounds and they suffer from the same infirmity as in the case of petitioner No. 7 (Abdul Waheb).
Ground No. 1 (i) may be reproduced : "That on 3 6 67, you assaulted one Nabalchandra Saha a hawker, with knife." This petitioner is also entitled to be released.
Petitioner No. 13 (Ram Kamal Dhar @ Leda) This petitioner was detained by an order dated July 30, 1968 passed by the District Magistrate, 24 Parganas, under section 3 (2) of the Act on the ground that his detention was necessary with a view 143 to preventing him from acting.
in any manner prejudicial to the maintenance of public order.
The grounds of detention.
disclose the same infirmities which are to be found in the case of petitioner No. 7 (Abdul Waheb) and Petitioner No. 10 (Dilip Chakraborty @ (Konkan).
For instance one of the grounds, No. 3 is in these terms : "On 1 5 68 at about 12.35 hrs.
you along with your two associates being armed with daggers, snatched away a wrist watch worth Rs. 130 from the person of the Kulak Chandra Sarkar S/o Late Sahadeb Sarkar of Madhab Nibas Colony, P. section Titagarh, Dist.
24 Parganas near Dum Dum South home signal at the point of dagger causing bleeding injury.
You were arrested with property red handed.
" Therefore the petitioner is entitled to be released.
Petitioner No. 14 (Gopal Show).
This petitioner was detained by an order dated July 11; 1968 made by the District Magistrate Howrah on the ground that his detention was necessary with a view to prevent him from acting in any manner prejudicial to the maintenance of public order.
The grounds were supplied to him, on which he made a representation which was considered by the Advisory Board by which he was also personally heard.
On the report of the Advisory Board that there was sufficient cause for his detention the original order was confirmed by the Government of West Bengal on October 7, 1968.
This case falls very much in the same group as that of the petitioners Nos. 7, 10 and 12 above mentioned.
According to one of the grounds the petitioner had, on Octo ber 12, 1967 along with his associates committed a daring burglary in Howrah Tobacco Store by breaking open 6/7 padlocks and removed Cigarette cases worth Rs. 10,000.
He is thus entitled to be released.
Petitioner No. 16 (Makhan Lal Saha).
This petitioner was., detained by an order dated March 23, 1968 made by the District Magistrate 24, Parganas, under section 3 (2) of the Act on the ground that his detention was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
The grounds were supplied to him on which he made a representation which was sent to the Advisory Board.
After hearing him personally and considering all the materials, the Advisory Board reported that there was sufficient cause for his detention.
Thereupon the Government confirmed the original order of detention on July 29, 1968.
An examination of the " grounds shows that they relate mostly and are relevant to the head " maintenance of supplies and services essential to the community".
144 For instance ground No. 1 (i) is that on March 28, 1968 the petitioner together with his associate committed theft of over head traction wires including contact wire disrupting the train services in Bongaon Section for more than 7 hours.
The grounds may have been relevant to the other head but none of them appears to be relevant to "maintenance of public order".
It is somewhat surprising and altogether incomprehensible how any District Magistrate or even the Government could have missed seeing that the ,detention of this petitioner might have been justified under the head "maintenance of supplies and services essential to the com munity" but not the "maintenance of public order".
Therefore the detention order cannot be sustained and must be set aside.
Petitioner No. 17 (Sk.
Yunus Ali).
This petitioner was detained by an order made by the District Magistrate, Howrah, on March 7, 1968 under section 3(2) of the Act on the ground that his detention was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
He was supplied the grounds and he made a representation which was considered by the Advisory Board.
The Board heard him personally and made a report that there was sufficient cause for his detention.
Thereupon the Government confirmed the order of detention on July 3, 1968.
The grounds suffer from the same infirmity as in the cases of petitioners Nos. 7 and 10.
For instance ground No. 1 (b) is : "That on 12 3 67 at about 06 00 hrs.
, you and your associates showed ugly gesture and posture to some women vendors of vegetables in platform No. 6 of Uluberia Rly.
Station and started whistling in mouth on seeing those women.
RPF head Rakshak K. C. Chandra of Santragachi Crime Branch objected to such indecent behaviour towards women by you all when Shri Chandra was physically assaulted with slaps by you and was threatened with dire consequences by you and your associates.
" The detention of this petitioner cannot be upheld and is hereby set aside.
Petitioner No. 18 (Gaddu Ghosh).
This petitioner was detained by an order of the District Magistrate, Malda, dated June 3, 1968 made under section 3 (2) of the Act with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
The grounds were supplied to him and he made a representation which was considered by the Advisory Board.
The Board after hearing him personally and considering all the materials before it, expressed an opinion that there was sufficient cause for his detention.
Thereupon the Government of West Bengal ,confirmed the order of his detention.
Practically all the grounds 145 do not appear to be relevant to public order.
Ground No. 2 (a) is typical and may be reproduced : "That on the midnight of 21 7 67 you grazed your 17 heads of cattle on maize plants in the land of Amal Roy of Kbasbari P. section English Bazar.
You threatened Amal Roy with further mischief for impounding your cattle." His detention cannot be upheld and is hereby set aside.
Petitioner No. 19 (Ratanlal Kairi).
This petitioner was de tained by an order of the District Magistrate, 24 Parganas, dated April 19, 1968; his detention being considered necessary in order to preventing him from acting in any manner prejudicial to the maintenance of public order.
His representation was referred to the Advisory Board which considered it along with the other material and expressed an opinion that there was sufficient cause for his detention.
The Government made an order on July 10, 1968 confirming the order of detention.
The grounds have been perused by us and they appear to be relevant.
The activities which are mentioned therein show that they are of such a nature that they relate to public order.
We would therefore decline the prayer for setting aside the order of detention.
Petitioner No. 20 (Farid Ali Naskar).
This petitioner was detained by the order of the District Magistrate, 24, Parganas, dated July 30, 1968 Made under section 3 (2) of the Act on the ground that it was necessary to detain him in order to prevent him from acting in any manner prejudicial to the maintenance of public order.
His representation was sent to the Advisory Board which considered it along with the other materials but made a report against him.
The Government thereupon confirmed the order of detention on September 19, 1968.
We have seen the grounds of detention and they appear to relate mostly to removal of rice bags in a clandestine manner.
These activities might have some relevance to the head "maintenance of supplies and services essential to the community but by no stretch of reasoning can they be regarded as relevant to public order.
The detention of the petitioner therefore is set aside.
Petitioner No. 23 (Sk. Makbul).
The petitioner was detained by the order dated March 8, 1968 made by the District Magistrate, Howrah, under section 3 (2) of the Act on the ground that his detention was necessary with a view to preventing him from acting in a manner prejudicial to the maintenance of public order.
On receiving the grounds of his detention, he made a representation to the Advisory Board which, after considering the same and giving 146 him a personal hearing, reported that there was sufficient cause for his detention.
Thereupon the Government of West Bengal confirmed the detention order.
The grounds disclose the same infirmity as in other cases e.g. Petitioner Nos. 7 and 10.
Ground No. 1 (a) is typical and may be reproduced : "That on 10 2 67 at about 21.50 hrs.
you and your associates threatened R.P.F. Head Rakshak Prakash Chandra Mitra of CID Kharagpur at Andul Railway Station with stabbing when Shri Mitra objected to your passing of indecent remarks at a lady passenger." Consequently the detention order is set aside.
Petitioner No. 25 (Uday Chand Namadas).
This petitioner was detained by an order of the District Magistrate Jalpaiguri, dated the 11 th July 1968 made under section 3 (2) of the Act on the ground that his detention was necessary in order to prevent him from acting in any manner prejudicial to the maintenance of public order.
On receiving the grounds he made a representation which was considered by the Advisory Board.
The Board gave a personal hearing and after considering all the materials reported that there was sufficient cause for his detention.
Thereupon the Government of West Bengal confirmed the detention order.
Ground No. 1 is altogether vague and may be reproduced : "That you have been for a long time engaged in anti social, illegal and high handed criminal activities and in the course of such activities you have on different occasions held out threats to different persons and that you have associated yourself with anti social elements.
Whenever the peace loving citizens questioned your bona fide and protested against your activities and whenever they offered themselves as witnesses to your activities you threatened to burn down their houses.
" The detention of this petitioner cannot be sustained because of the existence, of the above ground which is so vague that the petitioner could not possibly have made any representation with regard to it.
In view of our previous decisions referred to his detention is set aside.
Petitioner No. 26.
(Abdul Bari Karikar).
This petitioner was detained by the order made by the District Magistrate, Murshidabad, on July 6, 1968 under section 3 (2) of the Act on the ground that the detention was necessary in order to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order.
On receiving the grounds he made a representation to the Advisory Board which was considered by it.
The Board, after giving a personal hearing and considering all the materials expressed an opinion that there was sufficient cause for detention.
147 The Government of West Bengal confirmed the order of detention on September 12, 1968.
We have read the grounds and we consider that some of them are so irrelevant that it is incomprehensible how any order of detention could have been made on those grounds.
For instance ground No. 1 is "On 26 8 65 you were committed to trial before the court under section 406 of the Indian Penal Code on a charge of deceitfully misappropriating the cycle belonging to Bishu Khan of village Chonya Pathan Para." Ground No. 4 is equally irrelevant.
It has been stated that "On 19 5 67 at about 7.30 a.m. you threatened Karim Sheikh of village Chonya Pathan Para with assault as he had instituted a case against you.
" If such grounds can be considered to be relevant to public order it would be open to the authorities to detain citizens without a trial for such petty matters as have been mentioned in these grounds.
Moreover the first ground is also not reasonably proximate in time.
It relates to some incident which happened in the year 1965 whereas the detention order was made on July 6, 1968.
The detention of the petitioner cannot possibly be upheld and is hereby set aside.
Petitioner No. 27 (Nagendra Nath Saha).
This petitioner was detained by an order dated April 19, 1968 made by the District Magistrate, 24 Parganas, under section 3 (2) of the Act; the grounds of detention being the prevention of activities prejudicial to the maintenance of public order.
On receiving the grounds he made a representation to the Advisory Board which reported that there was sufficient cause for his detention.
On July 10, 1968 the Government of West Bengal confirmed the detention order.
Two of the grounds may be reproduced : "2 (c) That your complicity transpired during investigation of Sealdah GRPS Case No. 181 dt.
26 3 65 u/s 379 I.P.C. and you were reasonably suspended in the case.
(d) That your complicity transpired during investigation of Sealdah GRPS Case No. 180 dt.
26 3 65 u/s 379 I.P.C. and you were reasonably suspected in the case.
" These cannot possibly have any relevance to "maintenance of public order", the proper implications of which expression have been fully discussed in the decisions of this Court including the recent decision in Pushkar Mookherjee & Ors.
vs The State of 148 West Bengal(1).
The petitioner 's detention cannot therefore be upheld and it is hereby set aside : Petitioner No. 28 (Habibullah Khan).
This petitioner was :detained by an order dated February 17, 1968 made by the District Magistrate, 24 Parganas, under section 3(2) of the Act in order to prevent him from acting in any manner prejudicial to the maintenance of public order.
On receiving the grounds he made a representation to the Advisory Board which expressed an opinion in favour of his detention.
The Government of West Bengal confirmed the detention on April 17, 1968.
We have perused the grounds of detention which do not relate to public order; for instance one of the grounds If iv) is to the following effect : "that on 27 12 67 at about 03.30 hrs ' you and your associates committed theft of signalling and telecommunication materials from location box No. L 60 worth about Rs. 3,000." His detention is consequently set aside.
Petitioner No. 29.
(Naba Kumar Ghosh).
This petitioner was detained by an order of the District Magistrate, 24 Parganas, dated July 13, 1968 made under section 3(2) of the Act on the ground that it was necessary to detain the petitioner in order to prevent him from acting in any manner prejudicial to the maintenance of public order.
Ms representation was considered by the Advisory Board which made a representation that there was sufficient cause for his detention.
On September 19, 1968 the detention order ,was confirmed by the Government.
Some of the grounds are not at all relevant to maintenance of public order; for instance ground No. 1 (ii) is "That on 1 3 68 at about 02.00 hrs.
, you and your associate Ram Nehore Kouri were seen to conceal your presence by the side of a wagon standing at Chitpur yard with a view to commit theft from standing wagons.
Being chased, you and your associate,,,, were arrested by the (1) on duty RPF staff and prosecuted.
" The detention of the petitioner cannot be upheld and is set aside.
Petitioner No. 30 (Abdul Main Mirza).
This petitioner was detained by the order of the District Magistrate, Howrah, dated March 7, 1968 on the ground that his detention was necessary in order to prevent him from acting in any manner prejudicial to the maintenance of public order.
His representation was considered by the Advisory Board which reported that there was sufficient ,cause for his detention.
On June 12, 1968 the Government confirmed the detention order.
Most of the grounds are not relevant (1) ; 149 to the maintenance of public order.
For instance ground No. 1 (a), is : "That on 24 2 67 at about 21.26 hrs.
you and your associates abused C.I.B. Head Rakshak 3646 Hara Kumar Mukherjee of Shalimar and also threatened him with dire consequences at Andul Rly.
Station when Shri Mukherjee objected to the passing of indecent remarks at a lady passenger of 358 Dn.
(Midnapur Howrah Passenger) train.
" The detention of this petitioner cannot be upheld and is hereby set aside.
Petitioner No. 31 (Nripen Chakraborty).
This petitioner was detained by an order made by the District Magistrate, 24 Parganas on April 4, 1968 on the ground that his detention was necessary in order to prevent him from acting in a manner prejudicial to public order.
His representation was sent to the Advisory Board which on considering the same with other material reported that there was sufficient cause for the detention.
The detention order was consequently confirmed by the Government on June 12, 1968.
Most of the grounds do not appear to be relevant to maintenance, of public, order.
Ground No. (ii) may be reproduced : "That on 7 10 66 you pulled the alarm chain of the train at Bongaon Ranaghat Section while you were bringing rice for sale from Ranaghat to Bongaon, without having booked them and without having any ticket." His detention cannot therefore be upheld and it is hereby set aside.
Petitioner No. 33 (Nanda Kishore Rabi Das).
This petitioner was detained by an order dated April 25, 1968 made by the District Magistrate 24, Parganas under section 3(2) of the Act on the ground that his detention was necessary for preventing him from acting in any manner prejudicial to the maintenance of public order.
He made a representation to the Advisory Board which after considering all the materials reported that there was sufficient cause for his detention.
The detention order was consequently confirmed by the Government of West Bengal on July 2, 1968.
The grounds for detention in the case of this petitioner appear to be relevant to maintenance of public order.
He has apparently been acting with a large number of associates and committing acts which could have led to disturbance of public order.
His detention is therefore upheld.
Petitioner No. 34 (Samiron Sarkar).
This petitioner was de tained by an order dated August 2, 1968 made by the District Magistrate 24, Parganas under section 3(2) of the Act on the ground that his detention was necessary to prevent him from acting in any 150 manner prejudicial to the maintenance of public order.
His representation was forwarded to the Advisory Board which reported that there was sufficient cause for his detention.
Thereupon the Government confirmed the order of detention on October 9, 1968.
His case is similar to that of many others inasmuch as most of the grounds are not relevant to the maintenance of public order.
By way of example ground No. 1 (ii) is reproduced "That on 30 9 67 at about 21.00 hrs.
you with your associates Amal Karali, Bapu, Tripti and others forced Shri Dulal Chandra Kundu, Abdul Jabbar and Gobinda Das Roy Choudhury of Barisha to go to the shop of Nilan Maity inside Sakher Bazar and you forcibly took away Rs. 65 from the pocket of Gobinda Das Roy Choudhury, one wrist watch, a gold ring and cash Rs. 18 from Abdul Jabbar and Rs. 70 and 20 packets of cigarettes from Dulal Chandra Kundu.
" His detention cannot be upheld and is set aside.
Petitioner No. 35 (Ashwini Kumar Karmakar).
This petitioner was detained by an order dated July 30, 1968 of the District Magistrate 24 Parganas made under section 3(2) of the Act, the detention being considered necessary with a view to prevent the petitioner from acting in a manner prejudicial to the maintenance of public order.
His representation was sent to the Advisory Board which, after considering all the materials, reported that there was sufficient cause for his detention.
Thereupon the Government confirmed the order of detention on September 19, 1968.
The activities which have been alleged in the grounds are again of at type, which cannot be relevant to public order.
For instance ground No. 1 (c) which is in these terms : "That on 6 10 67 at about 06.30 hrs.
you and your associates were seen to remove sugar bags from a sealed wagon of a goods train and to despatch the same by hand pulling car while the train stopped at Bagmari Rly.
Bridge for red signal.
" His detention cannot be upheld and is set aside.
Petitioner No. 36 (Sri Panchanan Das).
The District Magis trate, 24 Parganas, made an order dated June 13, 1968 directing under section 3(2) of the Act petitioner 's detention with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
His representation was sent to the Advisory Board which, after considering all the materials, reported that there was sufficient cause for his detention.
Thereupon the Gov ernment confirmed the detention order on August 29, 1968.
Most of the grounds are not at all relevant to the maintenance of public ,order; see for instance ground No. 1 (c) which is in these terms : 151 "That on 18 2 68 at about 11.30 a.m. you and your associates were found to remove rice from a running Railway wagon by breaking seal of the wagon door at Bagmari Rly.
pool and overhead Chitpur Bridge.
" His detention cannot be upheld.
Petitioner No. 37 (Indrajit Debnath).
This petitioner was detained by an order of the District Magistrate 24 Parganas dated May 23, 1968 made under section 3 (2) of the Act on the ground that his detention was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
His representation was considered by the Advisory Board along with the other materials.
The Board reported that there was sufficient cause for his detention.
Thereupon the Government confirmed the order of detention on August 1, 1968.
Most of the grounds contain allegations of theft of overhead traction wire.
They cannot possibly be relevant to maintenance of public order.
The detention order cannot be upheld and is hereby set aside.
Petitioner No. 38.
(Surjit Singh).
This petitioner was detained by the order of the District Magistrate, 24 Parganas under section 3 (2) of the Act on April 4, 1968; the detention being considerd necessary to prevent him from acting in any manner prejudicial to the maintenance of public order.
His representation was considered by the Advisory Board along with the other materials and the Board reported that there was sufficient cause for his detention.
Thereupon the Government confirmed the detention order on June 29, 1968.
Some of the grounds cannot possibly relate to maintenance of public order.
Ground No. 1 (viii) is in these terms : "That on 16 2 68 you fled away from the R. G. Kar Hospital while you were undergoing treatment under police guard." His detention consequently cannot be upheld and is hereby set aside.
Petitioner No. 39 (Badal Pal).
This petitioner was detained by an order, dated July 30, 1968 made by the District Magistrate 24 Parganas under section 3(2) of the Act, his detention being considered necessary to prevent him from acting in any manner prejudicial to the maintenance of public order.
His representation was considered by the Advisory Board with other materials which reported that there was sufficient cause for his detention.
Thereupon the Government confirmed the order of detention.
Some of the grounds have absolutely no relevance to the maintenance of public order.
See for instance grounds Nos. 1 (d), (e) and (f).
His detention cannot, therefore, be upheld and is set aside.
152 Petitioner No. 40 (Sona Karmakar) .
This petitioner was de tained by an order of the District Magistrate dated July 30, 1968 made under section 3 (2) of the Act on the ground that his detention was necessary for preventing him from acting in any manner prejudicial to the maintenance of public order.
His representation was considered by the Advisory Board with the other materials but the Board reported that there was sufficient cause for his detention.
On September 18, 1968 the Government confirmed the order of detention.
Some of the grounds cannot possibly be regarded as relevant to maintenance of public order.
See grounds Nos. 1 (b) and (c).
His detention cannot be upheld and is hereby set aside.
Petitioner No. 42 (Jaganath Goila).
This petitioner was de tained by an order of the District Magistrate,, 24 Parganas made under section 3 (2) of the Act on the ground that it was necessary to detain him in order to prevent him from acting in any manner prejudicial to the maintenance of public order.
His representation was considered by the Advisory Board together with the other materials.
The Board reported that there was sufficient cause for his detention.
On October 7, 1968 the detention order was confirmed.
A perusal of the grounds shows that most of the grounds are not relevant to maintenance of public order and in this connection reference may be made to ground Nos. 1 (ii) and (iii).
The detention of this petitioner cannot, therefore, be upheld and is hereby set aside.
Petitioner No. 43 (Shyamal Pal).
This petitioner was detained by an order of the District Magistrate, 24 Parganas made unders.
3 (2) of the Act on the ground that it was necessary to detain him in order to prevent him from acting in any manner prejudicial to the maintenance of public order.
On receiving the grounds of detention the petitioner made a representation which was considered by the Advisory Board together with the other materials.
The Board reported that there was sufficient cause for his detention.
On May 17, 1968 the Government confirmed the order of detention.
We have examined the grounds of detention.
Most of them do not relate to or are relevant to maintenance of public order.
The activities mentioned cover acts of theft, robbery etc.
but they cannot be considered relevant for the purpose of public order, in view of our previous decisions.
The detention is consequently set aside.
Petitioner No. 44 (Suvranghshu Mitra).
This petitioner was detained by an order dated April 20, 1968 of the District Magis 153 trate, 24 Parganas, made under section 3 (2) of the Act on the ground that it was necessary to detain him with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
His representation was forwarded to the Advisory Board which gave an opinion that there was sufficient cause for his detention.
Thereupon the Government of West Bengal confirmed the order of detention on June 28, 1968.
Some of the ,grounds are wholly irrelevant to maintenance of public order.
For instance ground No. 1 (i) is "That on 11 10 67 at about 11.45 hrs.
you assaulted Shri Narayanchandra Das of 6A, Baikuntha Ghose Road, Calcutta 42 with fists and blows.
" He is therefore entitled to be released.
Petitioner No. 45.
(Madan Mohan Mandal).
This petitioner was detained by an order of the District Magistrate, 24 Parganas, dated January 16, 1968 on the ground that it was necessary to detain him in order to prevent him from acting in any manner prejudicial to the maintenance of public order.
His representation was considered by the Advisory Board which gave an opinion that there was sufficient cause for his detention.
Thereupon the Government of West Bengal confirmed the order of detention on May 1, 1968.
Some of the grounds of detention do not appear to be relevant to maintenance of public order.
See for instance ground No. 1 (iv).
Consequently he is entitled to be released.
Petitioner No. 46.
(Rangalal Debnath).
This petitioner was detained by an order dated March 16, 1968 passed by the District Magistrate, 24 Parganas, under section 3 (2) of the Act on the ground that it was necessary to detain him in order to prevent him from acting in any manner prejudicial to the maintenance of public order.
On receiving the grounds he made a representation to the Advisory Board which gave an opinion that there was sufficient cause for his detention.
The Government of West Bengal confirmed the order of detention on June 10 1968.
His case is similar to others inasmuch as most of the grounds are not relevant to the maintenance of public order.
See for instance ground No, 1 (iv).
The detention of the petitioner, therefore, cannot be upheld and is hereby set aside.
G.C. Petitions allowed.
| IN-Abs | The petitioners were detained under the .
They filed a petition for Habeas Corpus under article 32 of the Constitution.
The Court considered their cases individually in the light of the grounds of detention supplied to them.
HELD :(i) If some of the grounds which are given are irrelevant the order of detention cannot be upheld because the court cannot predicate what the subjective satisfaction of the authority would have been on the exclusion of those reasons.
[139 H] Dwarka Das Bhatia vs The State of Jammu & Kashmir, and Pushkar Mukherjee vs State of West Bengal, ; , applied.
(ii) The grounds supplied to most of the petitioners were not relevant to the 'maintenance of public order '.
The contravention of any law always affects order but before it can be said to affect public order it must affect the public or the community at large.
A mere disturbance of law and order leading to disorder is not necessarily sufficient for action under the Act but a disturbance which will affect public order can alone justify detention under that head.
[141 B C] (iii) Citizens must not be detained under the Act for petty matters and the grounds must be reasonably proximate in time.
[141 D]
|
Appeal No. 150 of 1953.
Appeal by Special Leave from the Judgment and Order dated the 30th April, 1953, of the Election Tribunal, Jabalpur, at Nagpur in Election Petition No. I of 1952.
B. Sen, T. P. Naik and I. N. Shroff for the appellant.
R. M. Hajarnavis, J. B. Dadachanji and Rajinder Narain for respondent No. 1. 269 1954.
May 19.
The Judgment of the Court was delivered by MUKERJEA J.
This appeal, which has come before us on special leave, is directed against the judgment and order of the Election Tribunal, Jabalpur, at Nagpur dated the 30th April, 1953, whereby the Tribunal declared the election held on the 29th December, 1951, for the double member Lakhnadon Legislative Assembly Constituency, to be wholly void under section 100(1)(c) of the Representation of the People Act (hereinafter called "the Act").
To appreciate the contentions that have been raised by the parties to this appeal, it would be necessary to state briefly the material facts.
The Lakhnadon Legistive Assembly Constituency in Madhya Pradesh is a double member constituency, one of the seats in which is reserved for Scheduled Tribes.
The appellant and respondents Nos. 1, 3, 5 and 7 were duly nominated candidates for the general seat in the said constituency, while respondents Nos. 2, 4 and 6 were nominated for the reserved seat.
No objection was taken before the Returning Officer in respect of the nomination of either the appellant or respondent No. 2, Vasant Rao.
Out of these eight candidates, respondents Nos. 5, 6 and 7 withdrew their candidature within the prescribed period under section 37 of the Act and the actual contest at the election was between the remaining five candidates, namely, the appellant and respondents Nos.
I to 4.
The votes secured by these five candidates at the polling were found to be as follows : (1) The Appellant (General). 18,627 (2) Respondent No. I (General)7,811 (3) Respondent No. 2 (Reserved)14,442 (4) Respondent No. 3 (Reserved)7,877 (5) Respondent No. 4 (General)6,604 Accordingly the appellant and respondentNo.
2 were declared elected to the general and reserved seat respectively, under section 66 of the Act, and the results were duly published in the Madhya Pradesh Gazette on 8th of February, 1952.
On the 14th of May, 1952, the 270 respondent No. 1, Raghuraj Singh, filed an election petition against the appellant and the other respondents, under section 81 of the Act, praying that the said election to the Lakhnadon Legislative Assembly Constituency be declared wholly void or in the alternative the election of Vasant Rao and/or that of the appellant, Durga Shankar Mehta, be declared void.
There was a string of allegations made in the petition accusing the appellant of various corrupt practices in the matter of securing votes but none of these are material for our present purpose, as the Tribunal, by a majority, held these allegations to be unfounded and not supported by proper evidence.
The substantial ground upon which the petitioner sought to assail the validity of the election was, that the respondent No. 2, Vasant Rao, who was declared duly elected to the reserved seat in the said constituency was, at all material times, under 25 years of age and was consequently not qualified to be chosen to fill a seat in the Legislative Assembly of a State under article 173 of the Constitution.
This allegation was found to be true by the majority of the Tribunal and by its judgment dated the 30th of April, 1953, the Tribunal came to the conclusion that the act of the Returning Officer in accepting the nomination of Vasant Rao, who was disqualified to be elected a member of the State Legislature under the Constitution, amounted to an improper acceptance of nomination within the meaning of section 100(1)(c) of the Act and as the result of the election was materially affected thereby, the whole election must be pronounced to be void.
It is the propriety of this decision that has been challenged before us in this appeal.
Mr. Hazarnavis, appearing for the respondent No. I before us, took a preliminary point challenging the competency of the appeal.
It is contended by the learned counsel, that article 329(b) of the Constitution ousts the jurisdiction of all ordinary Courts in election disputes and provides expressly that no election to either House of Parliament or to either House of the Legislature of a State shall be called in question, except by and an election petition presented to such authority a in such manner as may be provided for by or 271 under any law made by the appropriate Legislature.
It is urged that there can be no challenge to the validity of an election except by way of an election petition, and the authority to which, and the manner in which, such petition is to be presented, have been embodied in the Representation of the People Act which has been enacted by the Parliament under article 327 of the Constitution.
Section 80 of the Act, which is worded almost in the same manner as article 329(b), provides that "no election shall be called in question except by an election petition presented in accordance with the provisions of this Part"; and section 105 says that "every order of the Tribunal made under this Act shall be final and conclusive.
" It is contended by the learned counsel that the jurisdiction that is created in the Election Tribunal is a special jurisdiction which can be invoked by an aggrieved party only by means of an election petition and the decision of the Tribunal is final and conclusive.
These arguments, though apparently attractive, appear to us on closer examination to be untenable.
We agree with the learned counsel that the right of seeking election and sitting in Parliament or in a State Legislature is a creature of the Constitution and when the Constitution provides a special remedy for enforcing that right, no other remedy by ordinary action in a Court of law is available to a person in regard to election disputes.
The jurisdiction with which the Election Tribunal is endowed is undoubtedly a special jurisdiction ; but once it is held that it is a judicial Tribunal empowered and obliged to deal judicially with disputes arising out of or in connection with election, the overriding power of this Court to grant special leave, in proper cases, would certainly be attracted and this power cannot be excluded by any Parliamentary legislation.
The non obstante clause with which article 329 of the Constitution begins and upon which the respondent 's counsel lays so much stress debars us, as it debars any other Court in the land, to entertain a suit or a ' proceeding calling in question any election to the Parliament or the State Legislature.
It is the Election Tribunal alone that can decide such disputes, and the proceeding has to be initiated by an election petition 272 and in such manner as may be provided by a statute.
But once that Tribunal has made any determination or adjudication on the matter, the powers of this Court to interfere by way of special leave can always be exercised.
It is now well settled by the majority decision of this Court in the case of Bharat Bank Ltd. vs Employees of the Bharat Bank Ltd. (1) that the expression "Tribunal" as used in article 136 does not mean the same thing as "Court" but includes, within its ambit, all adjudicating bodies, provided they are constituted by the State and are invested with judicial as distinguished from purely administrative or executive functions.
The only Courts or Tribunals, which are expressly exempted from the purview of article 136, are those which are established by or under any law relating to the Armed Forces as laid down in clause (2) of the article.
It is well known that an appeal is a creature of statute and there can be no inherent right of appeal from any judgment or determination unless an appeal is expressly provided for by the law itself.
The powers given by article 136 of the Constitution however are in the nature of special or residuary powers which are exercisable outside the purview of ordinary law, in cases where the needs of justice demand interference by the Supreme Court of the land.
The article itself is worded in the widest terms possible.
It vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing appeals, by granting of special leave, against any kind of judgment or order made by a Court or Tribunal in any cause or matter and the powers could be exercised in spite of the specific provisions for appeal contained in the Constitution or other laws.
The Constitution for the best of reasons did not choose to fetter or circumscribe the powers exercisable under this article in any way.
Section 105 of the Representation of the People Act certainly gives finality to the decision of the Election Tribunal so far as that Act is concerned and does not provide for any further appeal but that cannot in any way cut down or affect the overriding powers which this Court can exercise in the matter of granting special leave under article of the Constitution.
(i) [195o] S.C.R. 459, 273 This overriding power, which has been vested in the Supreme Court under article 136 of the Constitution, is in a sense wider than the prerogative right of entertaining an appeal exercised by the Judicial Committee of the Privy Council in England.
The prerogative of the Crown can be taken away or curtailed by express legislation and even when there are no clear words in a particular statute expressly taking away the Crown 's prerogative of entertaining an appeal but the scheme and purpose of the Act show unmistakably that there was never any ' intention of creating a Tribunal with the ordinary incident of an appeal to the Crown annexed to it, the Privy Council would not admit an appeal from the decision of such Tribunal.
This is illustrated by the decision of the Privy Council in The berge vs Laudry(1) upon which Mr. Hozarnavis places considerable reliance.
In that case the petitioner having been declared duly elected a member to represent the electoral district of Montmanier, in the Legislative Assembly of the Province of Quebec, his election was afterwards, on petition, declared null and void, by judgment of the superior Court under the Quebec Controverted Elections Act, 1875, and he himself was declared guilty of corrupt practices.
He applied for special leave to appeal to His Majesty in Council.
The application was refused and Lord Cairns in delivering the judgment of the Board held, that although the prerogative of the Crown could not be take in away or limited except by express words and the relevant section of the Quebec Controverted Elections Act of 1875 providing that "such judgment shall not be susceptible of appeal" did not mention either the Crown or its prerogative, yet the fair construction of the above Act as also of the previous Act of/1872 was that it was the intention of the Legislature to create a Tribunal for the purpose of trying election petitions in a manner which would make its decision final for all purposes and should not annex to it the incident of its judgment being reviewed by the Grown under its prerogative.
This decision in our opinion does not assist Mr. Hazamavis.
In the first place article 136 is a (I) 274 constitutional provision which no Parliamentary legislation can limit or take away.
In the second place the provision being one, which overrides ordinary laws, no presumption can arise from words and expressions declaring an adjudication of a particular Tribunal to be final and conclusive, that there was an intention to exclude the exercise of the special powers.
As has been said already, the non obstante clause in article 329 prohibits challenge to an election either to Parliament or any State Legislature, except in the manner laid down in clause (2) of the article.
But there is no pro hibition of the exercise of its powers by the Supreme Court in proper cases under article 136 of the Constitution against the decision or determination of an Election Tribunal which like all other judicial, tribunals comes within the purview of the article.
It is certainly desirable that the decisions on matters of disputed election should, as soon as possible, become final and conclusive so that the constitution of the Legislature may be distinctly and speedily known.
But the powers under article 136 are exercisable only under exceptional circumstances.
The article does not create any general right of appeal from decisions of all Tribunals.
As regards the decision of this Court in Ponnuswami vs Returning Officer, Namakkal Consistituency, and Others (1), to which reference has been made by the learned counsel, we would only desire to point out that all that this case decided was that the High Court bad no jurisdiction, under article 226 of the Constitution, to interfere by a writ of certiorari, with the order of a Returning Officer who was alleged to have wrongly rejected the nomination paper of a particular candidate.
It was held that the word "election" in article 329(b) of the Constitution had been used in the wide sense to connote the entire process, culminating in a candidate 's being declared elected and that the scheme of Part XV of the Constitution was that all matters which had the effect of vitiating election should be brought up only after the election was over and by.
way of an election petition.
The particular point, which arises for considers.
tion here, was not decided in that case and was expressly (I) ; 275 left open.
In our opinion therefore the preliminary point raised by Mr. Hazarnavis cannot succeed.
Coming now to the appellant 's case, Mr. Sen who appeared in support of the appeal, has pressed only one point for our consideration.
He plainly stated that he could not challenge the propriety of the finding, arrived at by the majority of the Tribunal that respondent, Vasant Rao, was below 25 years of age at all material times.
This, he concedes, is a finding of fact and being based on evidence, is not open to challenge before us in an appeal by special leave.
His contention in substance is, that there has been no improper acceptance of nomination in the present case, as has been held by the Tribunal and consequently the provision of section 100(1)(c) of the Act would not be attracted to it and the entire election could not have been declared void.
It is, true, says the learned counsel, that on the finding of the Tribunal there has been a violation of or non compliance with the provision of article 173 of the Constitution and as respondent No. 2 suffers from a constitutional disability by reason of his under age and is not qualified to be chosen to fill a seat in the Legislative Assembly of a State, his election can undoubtedly be declared void under section 100(2)(c) of the Act, but there was no justification for pronouncing the whole election, including that of the appellant, to be void.
The whole controversy thus centres round the point as to whether, upon the facts admitted and proved, the present case comes within the purview of sub section (1)(c) of section 100 of the Act or of sub section (2)(c) of the same section.
The relevant portions of section 100 of the Act so far as are material for our present purpose may be set out as follows: "100.
Grounds for declaring election to be void (1) If the Tribunal is of opinion (a) . . . . . . . . . (b) . . . . . . . . (c) that the result of the election has been materially affected by the improper acceptance or rejection of any nomination, the Tribunal shall declare the election to be wholly void.
276 (2) Subject to the provisions of subsection (3), if the Tribunal is of opinion (a). . . . . (b). . . . . (c) that the result of the election has been materially affected by the improper reception or refusal of a vote or by the reception of any vote which is void, or by any non compliance with the provisions of the Constitution or of this Act or of any or orders made under this Act or of any other Act or rules relating to the election, or by any mistake in the use of any prescribed form, the Tribunal shall declare the election of the returned candidate to be void.
" The first point for our consideration is whether the nomination of Vasant Rao was improperly accepted by the Returning Officer and that has materially affected the result of the election.
It is not suggested on behalf of the respondent that the nomination paper filed by Vasant Rao was in any manner defective.
It is admitted that the names and electoral numbers of the candidate and his proposer and seconder as entered there were the same as those entered in the electoral rolls.
It is also not disputed that the nomination paper was received within proper time as is laid down in section 33, sub section (4) of the Act.
Section 36 of the Act provides for scrutiny of nominations and under subsection (2) the Returning Officer has got to examine the nomination papers and decide all objections that may be made to any nomination and he may either on such objection or oh his own, motion, after such summary enquiry, if any, as he thinks necessary, refuse any nomination on any of the grounds which are specified in the different clauses of the sub section.
The ground mentioned in clause (a) of the sub section is, that the candidate is not qualified to be chosen to fill the seat under the Constitution or the Act.
The contention of the respondent No. 1 is that the nomination of Vasant Rao should have been rejected on this ground and as the Returning Officer did not do that, his act 277 amounted to an improper acceptance of nomination within the meaning of section 100(1)(c) of the Act.
We do not think that this contention is sound.
If the want of qualification.of a candidate does not appear on the face of the nomination paper or of the electoral roll, but is a matter which could be established only by evidence, an enquiry at the stage of scrutiny of the nomination papers is required under the Act only if there is any objection to the nomination.
The Returning Officer is then bound to make such enquiry as he thinks proper on the 'result of which he can either accept or reject the nomination.
But when the candidate appears to be properly qualified on the face of the electoral roll and the nomination paper and no objection is raised to the nomination, the Returning Officer has no other alternative but to accept the nomination.
This would be apparent from section 36, subsection (7) of the Act which runs as follows: "(7) For the purposes of this section (a) the production of any certified copy of an entry made in the electoral roll of any constituency shall be conclusive evidence of the right of any elector named in that entry to stand for election or to subscribe a nomination paper, as the case may be.
unless it is proved that the candidate is disqualified, under the Constitution or this Act, or that the proposer or seconder, as the case may be, is disqualified under sub section (2) of section 33.
" In other words, the electoral roll is conclusive as to the qualification of the elector except where a disqualification is expressly alleged or proved.
The electoral roll in the case of Vasant Rao did describe him as having been of proper age and on the face of it therefore he was fully qualified to be chosen a member of the State Legislative Assembly.
As no objection was taken to his nomination before the Returning Officer at the.
time of scrutiny, the latter was bound to take the entry in the electoral roll as conclusive ; and if in these circumstances he did not reject the nomination of Vasant Rao, it cannot be said that this was an improper acceptance of nomination on his part which 278 section 100(1)(c) of the Act contemplates.
It would have been an improper acceptance, if the want of qualification was apparent on the electoral roll itself or on the face of the nomination paper and the Returning Officer overlooked that defect or if any objection was raised and enquiry made as to the absence of qualification in the candidate and the Returning Officer came to a wrong conclusion on the materials placed before him.
When neither of these things happened, the acceptance of the nomination by the Returning Officer must be deemed to be a proper acceptance.
It is certainly not final and the Election Tribunal may, on evidence placed before it, come to a finding that,* the candidate was not qualified at all.
But the election should be held to be void on the ground of the constitutional disqualification of the candidate and not on the ground that his nomination was improperly accepted by the Returning Officer.
In our opinion Mr. Sen is right that a case of this description comes under sub section (2)(c) of section 100 and not under sub section (1)(c) of the section as it really amounts to holding an election without complying with the provisions of the Constitution, and that is one of the grounds specified in clause (c) of subsection (2).
The expression " non cgmpliance with the provisions of the Constitution " is in our opinion sufficiently wide to cover such cases where the question is not one of improper acceptance or rejection of the nomination by the Returning Officer, but there is a fundamental disability in the candidate to stand for election at all.
The English law, after the passing of the Ballot Act of 1872, is substantially the same as has been explained in the case of Stowe vs Jolliffe(1).
The register which corresponds to our electoral roll is regarded as conclusive except in cases where persons are prohibited from voting by any statute or by the common law of Parliament.
It is argued on behalf of the respondent that the expression" non compliance as used in subsection (2)(c) would suggest the idea of not acting according to any rule or command and that the expression is not quite appropriate in describing a mere lack of (1) 279 qualification.
This, we think, would be a narrow way of looking at the thing.
When a person is incapable of being chosen as a member of a State Assembly under the provisions of the Constitution itself but has never.
theless been returned as such at an election, it can be said without impropriety that there has been noncompliance with the provisions of the Constitution materially affecting the result of the election.
There is no material difference between " non compliance " and " non observance " or " breach" and this item in clause (c) of sub section (2) may be taken as a residuary provision contemplating cases where there has been infraction of the provisions of the Constitution or of the Act but which have not been specifically enumerated in the other portions of the clause.
When a person is not qualified to be elected a member, there can be no doubt that the Election Tribunal has got to declare his election to be void.
Under section 98 of the Act this is one of the orders which the Election Tribunal is competent to make.
If it is said that section 100 of the Act enumerates exhaustively the grounds on which an election could be held void either as a whole or with regard to the returned candidate, we think that it would be a correct view to take that in the case of a candidate who is constitutionally incapable of being returned as a member there is non compliance with the provisions of the Constitution in the holding of the election and as such sub section (2)(c) of section 100 of the Act applies.
The result therefore is that in our opinion the contention of the appellant succeeds.
We allow the appeal in part and modify the order of the Election Tribunal to this extent that the election of respondent No. 2 Vasant Rao only is declared to be void; the election of the appellant however will stand.
We make no order as to costs of this appeal.
Order accordingly.
| IN-Abs | Article 136 of the Constitution is worded in the widest terms possible.
It vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing appeals by granting special leave against any kind of judgment or order made by a Court or ' Tribunal in any cause or matter and the powers can be exercised in spite of the specific provisions for appeal contained in the Consti tution 'or other laws.
The powers given by the article are, however, in the nature of special or residuary powers which are exercisable outside the purview of ordinary law, in cases where the needs of justice demand interference by the Supreme Court.
The non obstante clause in article 329 of the Constitution which debars the Supreme Court as well as any other Court in India from entertaining a suit or a proceeding calling in question any election to Parliament or the State Legislature and section 105 of the Representation of the People Act which gives finality to the decision of the Election Tribunal so far as that Act is 268 concerned and does not provide for any further appeal, do not cut down or affect the overriding powers which the Supreme,Court can exercise in the matter of granting special leave under article 136 of the Constitution.
The overriding power vested in the Supreme Court under article 136 of the Constitution is wider than the prerogative right of entertaining an appeal exercised by the Judicial Committee of the Privy Council in England because the prerogative right of the Grown can be taken away or curtailed by express legislation but the Constitutional provision in article 136 cannot be limited or taken away by any Parliamentary legislation and this Constitutional provision overrides ordinary laws and no presumption can arise from words and expressions declaring an adjudication of a particular Tribunal to be final and conclusive that there was an intention to exclude the exercise of the special power.
Where on the finding of the Tribunal there has been a viola tion of or non compliance with the provision of article 173 of the Constitution because the candidate suffers from a Constitutional disability by reason of his under age the case falls under sub section (2) (c) of section 100 of the Representation of the People Act and not under sub section (1) (c) of section 100 of the Act and election should be held to be void on the ground of the Constitutional disqualification of the candidate and not on the ground that his nomination was improperly accepted by the Returning Officer and therefore the 'election of that candidate only should be declared void and not the whole election.
The expression " non compliance with the provisions of the Constitution " in clause (c) of sub section (2) of section 100 of the Act is sufficiently wide to cover such cases where the question is not one of improper acceptance or rejection of the nomination by the Returning Officer but there is a fundamental disability in the candidate to stand for election at all.
Bharat Bank Ltd., vs Employees of the Bharat Bank Ltd. ([1950] S.C.R. 459), Theberge vs Laudry ( [1876 771 2 A.C. 102), Stowe vs Jolliffe and Ponnuswami vs Returning Officer, Namakkal Constituency and Others ( ; referred to.
|
Appeal No. 339 of 1966.
Appeal by special leave from the judgment and order dated December 12, 1962 of the Bombay High Court in First Appeal No. 436 of 1967.
G. L. Sanghi, and A. G.Ratnaparkhi, for the appellants.
section T. Desai and I. N. Shroff, for the respondents.
The Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought by special leave from the judgment of the Bombay High Court dated 12th December, 1962 in First Appeal No. 436 of 1958 by which the High Court dismissed the appeal and allowed the cross objections filed by the respondents in the said appeal.
247 The relationship of the parties will appear from the following pedigree Neneppa Gowdwppa=1.
Kashibai Apparaya=Sidgangawa II 2.Sigangawa I (died on (Widows of Gowdappa) 20 12 53) (wife of Apparaya time of Apparaya Gangabai Neneppa II Neneppa II Revgowda Subhadra (widoed daughter (adopted in =Sidgangawa bai(daug of Gowdappa) 1930 died in III(wife of Reveg ter of Appellant No. 1944) owda Respodent No. Apparaya 5in 1944) 2 Appellant No. 3.
Neelagangawa=Mudigowda (daughter of (alleged to Neneppa II) have been Ramchandra(adopted Appellant No. adopted by to Revegowda by 2.
Gowdappa in Sidgangawa III) 1948; and became Respodent No. the husband of 1.
since deceased.
Neelagangawa Appellant No.1.
Goudappa had one daughter by name Gangabai, while Apparaya had three children (i) Nenappa II, (ii) Ravagowda and (iii) Subhadrabai.
In 1930 Nenappa 11 was given in adoption to Goudappa.
He had two wives Kashibai and Sidgangawa.
Revagowda 'Married another Sidgangawa.
In 1938 Revagowda was murdered.
Thereafter Goudappa and Apparaya purported to effect a partition between themselves.
At the time of the death of Nenappa 1, six plots of lands belonged to the joint family.
Five of these plots are survey Nos. 43, 59, 65, 66 and 69 measuring 137 acres and 15 gunthas and assessed at Rs. 126/12/ and are located in Borgi Khurd.
The other plot survey No. 77 which was in Borgi Budruk measured 14 acres and 24 gunthas and was assessed at Rs. 16/14/ .
The total area of the ancestral lands was, therefore, 151 acres and 27 gunthas assessed at Rs. 143/. Between 1911 and 1940, 12 other pieces of lands in both these villages measuring 137 acres and 39 gunthas and assessed at Rs. 18/10/ were acquired in various names.
After Nenappa II 248 was murdered in 1944, both the brothers denied his adoption by Goudappa and purported to effect a partition on 28th April, 1944.
After the partition deed was executed various alienations were made by the two.
brothers.
On 25th September, 1944 by exhibit 161 Goudappa gifted section Nos. 61 and 62 of Borgi Budruk and Survey No. 45 of Borgi Khurd to defendant No. 4, Subhadrabai.
By exhibit 162, dated 1st October, 1946 Goudappa made a gift of plot survey Nos. 62 and 63 of Borgi Khurd and Survey No. 11/3 of Borgi Budruk to defendant No. 3 who is the daughter of Nenappa H.
On 20th April, 1948 by exhibit 159 Apparaya sold survey Nos. 77 and 43 to defendant No. 3 for a sum of Rs. 50001.
On the same day by exhibit 160 Goudappa sold survey No. 79 for Rs. 1,000/ to Apparaya.
Again on 17th May, 1948, by exhibit 158 Goudappa made a gift of plot survey Nos. 59 and 60 of Borgi Khurd to defendant No. 3.
By exhibit 117, dated 7th December 1948 Gou dappa by a Vardi transferred survey No. 66 of Borgi Khurd, to defendant No. 6 his widowed daughter.
On 15th December, 1948 Goudappa gave a portion of plot No. 96 to Sidgangawa, wife.
of Apparava for maintenance.
By exhibit 166, dated 25th May, 1950, Goudapa and defendant No. 1 together sold to defendant No. 5 portion of survey No. 23 for a sum of Rs. 3,000/. Finally on 19th November, 1953, Apparaya executed his last will which is exhibit 168 whereby he bequeathed survey No. 79 to, defendant No. 4 and one house to his daughter defendant No. 4.
The plaintiff 'claimed to be the adopted son of Revagouda and brought the present suit on 10th June, 1954 challenging the partition deed as fraudulent.
He alleged that it was intended to defeat the rights of the widows, that it was never acted upon and that the family continued to be joint.
The defendants contested the suit on the ground that the partition deed exhibit 157 was a genuine transaction and was acted upon, that Apparaya and Goudappa became separate in status and managed their properties separately.
The defendants supported all the alienations as being genuine and effective.
The trial court came to the conclusion that the 12 pieces of lands which were acquired between 1911 and 1940 formed part of the joint family properties, that the partition deed exhibit 157 was not intended to be acted upon but was executed to defeat the rights of the widows.
The trial court held that none of the alienations except the sale deed exhibit 159 executed by Apparaya in respect of survey plots Nos. 43 and 77 in favour of defendant No. 3 was binding on the plaintiff.
The trial court accordingly made a decree for partition with appropriate directions.
The defendants took the matter in appeal to the High Court.
The plaintiff also filed a cross. objection with regard to the sale deed exhibit 159.
By its judgment dated 12th December, 1962, the High Court dismissed the appeal of the defendants and allowed the cross objection of the.
plaintiff holding that the sale deed exhibit 159 regarding survey plots Nos. 43 and 77 was also not binding upon the plaintiff.
249 The first question to be considered in this appeal is whether the partition.
deed executed by Goudappa and Apparaya on 28th April, 1944 was a sham transaction and not intended to be effective.
Both the trial court and the High Court have reached a concurrent finding after an elaborate examination of the evidence that the partition deed was not genuine, and that it was effected for an ulterior purpose in order to defeat the rights of the widows in the joint family.
It is manifest that the finding of the lower courts upon this question is essentially a finding upon a question of fact, and in an appeal by special leave it is the normal practice of this Court to accept such a concurrent finding of fact as correct.
It was, however, contended by Mr. sanghi that the finding of the lower courts is vitiated in law because there was no evidence in support of that finding.
In our opinion, there is no justification for this argument.
In the partition deed it is recited that the lands were partitioned with the help of Panchas but the names of Panchas are not mentioned in the document and none of the Panchas has signed it.
As to the division of the properties, Goudappa has been given 101 acres and 39 gunthas while Apparaya has been given 50 acres and 10 gunthas only.
The total assessment of lands given to Goudappa is Rs. 82/3/ while the assessment of the lands given to Apparaya is Rs. 61/7/ .
There appears to be no division of the house at all, since nothing is mentioned in the partition deed about the house.
The unequal division of the lands in the so called partition deed is a strong circumstance which indicates that the transaction was not genuine.
It should also be noticed that at the time of the partition deed there were widows of two sons in the family, Nenappa the second and Revagouda.
At about this time, after Nenappa 's death, the adoption of Nenappa by Goudappa was denied.
The scheme of the partition was, therefore, to deprive the two widows of any claim for maintenance out of the joint family properties but to limit their rights to about 50 acres of land given to Apparaya.
There is also evidence that after the partition deed, the two brothers continued to be in joint possession of the lands and they lived joint in the same house as before.
It appears that the two brothers had a joint mess even after the date of partition.
It was contended by Mr. Sanghi that there,was no evidence that the two brothers continued to be in joint possession of the lands.
But if is not possible to accept this argument as correct.
On a perusal of the evidence it is apparent that P.Ws. 1 to 4 all supported the case of the joint possession of the two brothers and their evidence has been believed by both the lower courts.
There is another circumstance which strongly lends support of the plaintiff 's case on this point.
It was at one time supposed that the doctrine of Mitakshara law was that if the last surviving coparcener died and the property passed to his heir, such as a widow or a collateral, the power of the widow of a predeceased Sup.
CI/69 17 250 coparcener to.
adopt was at an end.
(Chandra vs Gojarabai and Adivi Suryapnakasarao vs Nidamarty Gangaraju (2).
The cases on this point were considered in 1936 by the Full Bench of the Bombay High Court in Balu Sakharam Powar vs Lahoo Sambhaji Tetgura(3).
It was 'held in that case that where a coparcenary exists at the date of the adoption the adopted son becomes a member of the coparcenary, and takes his share in the joint property, but where the partition takes place after the termination of the coparcenary by the death, actually or fictionally, of the last surviving coparcener, the adoption by a widow of a deceased coparcener has not the effect of reviving the coparcenary and does not divest property from the heir of the last surviving coparcener (other than the widow) or those claiming through him or her.
But the decision of the Full Bench of the Bombay High Court was expressly over ruled by the Judicial Committee in Anant V. Shankar(4) It was held that the power of a Hindu widow does not come to an end on the death of the sole surviving coparcener.
Neither does it depend upon the vesting or divesting of the estate, nor can the right to adopt be defeated by partition between the coparceners.
The rights of the adopted son relate back to the date of the adoptive I father 's death and the adopted son must be deemed by a fiction of law to have been in existence as the son of the adoptive father at the time of the latter 's death.
If, therefore, there was a coparcenary in existence when the adoptive father then whether it came to an end by the death of the last surviving coparcener or by subsequent partition among the remaining members, an adoption validly made by the widow of the deceased coparcener would have the effect of divesting the estate in the hands of the heir to the last surviving coparcener in the first case and of putting an end to the partition in the second case and enabling the adopted son to claim a share in the family properties as if they were still joint.
The decision of the Judicial Committee in Anant vs Shankar(4) was unexpected and revolutionary in character.
It is likely that in view of the fluid and un certain state of the law on this point the two brothers Goudappa and Apparaya decided to execute a bogus deed of partition in order to avoid any legal consequence which may follow if either of the widows should take a son in adoption.
We are accordingly of 'the view that there is proper evidence to support the concurrent finding of the lower courts and there is no reason to disturb that finding.
it was also contended on behalf of the appellants that even though the partition deed was bogus there was in law a severance of joint family status and the family could not continue to be joint (1) I.L.R. (3) A.I.R. 1937 Bom.
(2) I.L.R. (4) A.T.R. 251 after 20th April, 1944 which was the date of the partition deed.
In other words, the argument was that there was a declaration by the coparceners of their intention to separate and that declaration was sufficient to put an end to the joint family.
status of the two brothers.
In our opinion, there is no substance in this argument.
It is now well established that an agreement between all the copar ceners is not essential to the disruption of the joint family status, but a definite and unambiguous indication of intention by one member to separate himself from the family and to enjoy his share in severalty will amount in law to a division of status.
It is immaterial in such a case whether the other members assent or not.
Once the decision is unequivocally expressed, and clearly intimated to his co sharers, the right of the coparcener to obtain and possess the share to which he admittedly is entitled, is unimpeach able.
But in order to operate as a severance of joint status, it is necessary; that the expression of intention by the member separating himself from the joint family must be definite and unequivocal.
If, however., the expression of intention is a mere pretence or a sham, there is in the eye of law no separation of the joint family status.
See for instance the decision of the Judicial Committee in Merla Ramanna vs Chelikani Jagannadha Rao & Ors. '(1).
We pass on to consider the next question arising in this appeal,, viz. whether the High Court was right in holding that the 12 pieces of lands were joint family properties and were not the self acquisition of Goudappa.
The case of the appellants was that these lands were self acquisition of Goudappa, but the respondents contended that they were joint family properties.
The law on this aspect of the case is well settled.
of course there is no presumption that a Hindu family merely because, it is joint, possesses any joint property.
The burden of proving that any particular property is joint family property, is, therefore, in.
the first instance upon the person who claims it as coparcenary property.
But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property.
This is.
however, subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired.
It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims, the property as self acquisition to affirmatively make out that the property was acquired without any aid from the 'family estate.
In Appalaswami vs Suryanarayanamurti(2), Sir John Beaumont observed as follows "The Hindu law upon this aspect of the case is well settled.
Proof of the existence of a joint family does (1) A.I.R. 1941 P.C. 48.
(2) I.L.R.(1948)Mad. 440.(P.C.) 252 not lead to the presumption that property held by 'any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact.
But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family property.
See Babubhai Girdharlal vs Ujamlal Hargovandas(1), Venkataramayya vs Seshamma(2) and Vythianatha vs Varadaraja(3).
In the present case, both the lower courts have found that there was an adequate nucleus of joint family properties from which the acquisitions could have been made.
It is admitted that when Nenappa I died, the joint family was possessed of 151 acres and 27 gunthas of land assessed at Rs. 143.
It is further admitted by defendant No. 1 that out of the four ancestral lands, one land was Bagayat land.
Witnesses on behalf of 'the plaintiff assessed the income between Rs. 5,000 to Rs. 6,000 before the first world war.
It is also conceded that the family had between 8 to 12 bullocks for the purposes of cultivation and most of the lands were cultivated personally by the family members.
Between 1911 and 1940 12 other pieces of lands measuring 137 acres and 39 gunthas assessed at Rs. 18/10/ were acquired in various names.
The total price of the sale deeds is Rs. 4800 spread over a period of 30 years.
In view of this evidence, we see no reason to differ from the finding of the lower courts that the income from the nucleus was more than sufficient for the purchase on the different dates.
The respondents alleged that these properties belonged to the joint family, and unless it is shown by the appellants that Goudappa carried on any other business and that these pro perties were acquired out of that income, the appellants must fail.
The case of defendant N6.
1 was that Goudappa made these acquisitions out of his business.
D.W. 1 did not however state the nature of the business.
In cross examination he said that Goudappa was trading in cotton and this information he had got from Goudappa after his adoption.
D.W. 1 was however unable to say with whom Goudappa had dealings in cotton.
If Goudappa was doing cotton business it should not have been difficult for the ,defendants to have produced more direct evidence of persons with whom he had business dealings.
The High Court has rejected the evidence of D.W. 3, Imamsaheb as worthless.
It is manifest that there is no proof that Goudappa had any separate income of his (1) I.L.R. Born.708.
(2) I.L.R.[1937] Mad. 1012.
(3) I.L.R. 253 own out of which he could have acquired the 12 pieces of land. 'Me lower courts were, therefore,right in reaching the conclusion that the 12 pieces of lands belonged to joint family and that the plaintiff was entitled to a share thereof in the partition.
It was lastly contended on behalf of the appellants that in any case the High Court should not have allowed the cross objection of the respondents with regard to 'survey plots Nos. 43 and 77.
Reference was made to paragraph 5 of the plaint in which there was no specific mention of the sale deed executed by Apparaya in favour of defendant No. 3 of survey plots Nos. 77 and 43.
But paragraph 4 should be read along with paragraph 7 of the plaint in which the plaintiff challenged the alienations made in favour of the several parties to the suit and had claimed relief in respect of all the lands mentioned in the schedule to the plaint.
Survey plots Nos. 77 and 43 are expressly mentioned in the schedule.
It is, therefore, not possible to accept the contention of the appellants that the plaintiff had not challenged the sale deed exhibit 159 with respect to survey plots Nos. 77 and 43.
The High Court has pointed out that defendant No. 3 was a minor at the time of sale, that Goudappa had acted as her guardian and that defendant No. 3 had no property of her own.
The High Court therefore rightly held that the sale must be held to be without consideration and not genuine and was, therefore, not binding on the plaintiff.
For these reasons we hold that the, judgment of the Bombay High Court dated 12th December, 1962 is correct and this appeal must be dismissed with costs.
V.P.S. Appeal dismissed.
| IN-Abs | A joint family consisting of two brothers G and A and their wives, sons and daughters was possessed of joint family properties.
Between 'the years 1911 and 1940 several other properties were acquired.
In 1930, the son of A was taken in adoption by G. The adopted son died in 1944, and both the brothers denied the adoption and purported to effect a partition.
In the partition deed the lands were unequally divided between the brothers, G getting twice as much as A, but the brothers continued to be in joint possession of the lands.
There was no division of their house at all and the brothers had a joint mess even after the date of partition.
After the partition deed was executed the two brothers executed various alienations.
The first respondent, claiming to be the adopted son of another son of A, filed a suit in 1954 after the death of G and A, challenging the partition deed as fraudulent, that it was never acted upon and was only intended to defeat the rights of two widows in A 's family.
The appellant , contested the suit and supported all the alienations.
The trial court decreed the suit except with respect to one sale deed, and the High Court, in appeal, held in favour of the first respondent even with respect to that item.
In appeal to this Court, it was contended that : (1) The partition deed was not a sham transaction; (2) 'Even if the partition deed was bogus, there was in law a severance of joint family status; (3) The later acquisitions between the years 1911 and 1940 were not joint family properties but belonged exclusively to G; and (4) The High Court should not have reversed the decree of the trial court with respect to the sale deed, because it was not challenged in the plaint.
HELD : (1) The scheme of the partition was to deprive the widows .
in A 's family of any claim for maintenance out of the joint family properties but to limit their rights to the smaller share :given to A.
In view of the state of law before the decision in Anant vs Shankar, A.I.R. 1943 P.C. 196 the two brothers decided to execute a bogus deed of partition in order to avoid any legal consequences which may follow if either of the widows should take a son in adoption.
Therefore, the deed was not genuine.
[249 D G; 250 F G] 246 (2)In order to operate as a severance of joint status, it is necessary that the expression of intention to separate himself, by the 'particular member must be definite and unequivocal.
If the expression of the intention is a mere pretence or sham, there is, in the eye of law, no separation of the joint family status.
[251 C D] Merla Ramanna vs Chelikani Jagannadha Rao, A.I.R. 1941 P.C. 48, applied.
(3)There is no presumption that a joint Hindu family, because it is joint, possesses any joint family property or if there was a nucleus, any acquisition made by any member of the joint family is joint family property.
It is only after the possession of an adequate nucleus is shown that such a presumption is drawn and the onus shifts on to the person who claims the property as a self acquisition to make out his claim.
In the present case, the income from the nucleus was more than sufficient for the purchase of the various items acquired later, and there was no proof that G had any separate income of his own out of which he could have: acquired those items.
Therefore, the later acquisitions were also joint family properties.
[251 E G 252 C D, E F] Appalaswami vs Suryanaravanamurti, I.L.R. applied.
(4)The first respondent challenged all the alienations in the plaint and the High Court was right in holding that the sale without consideration and hence was not genuine and was not binding on the first respondent.
[253 D E]
|
Appeals Nos. 847 and 848 of 1966.
388 Appeals by special leave, from the judgment and order dated January 20, 1965 of the Allahabad High Court, Lucknow Bench in Writ Petitions Nos. 108 and 109 of 1962.
section C. Manchanda and section section Shukla, for the appellant (in both 'the appeals).
C. B. Agarwala and K. P. Gupta, for the respondents (in both the appeals).
The Judgment of the Court was delivered by Bachawat, J.
These appeals are directed against orders of the Allahabad High Court (Lucknow Bench), quashing the im.
Position of a water rate imposed by the Municipal Board Sitapur.
Section 126(1)(x) of the U.P. Municipalities Act, 1916 (U.P Act No. 2 of 1916) empowers the Board to impose a water tax on the annual Value of buildings or lands or of both.
Sections 131 to 135 lay down the procedure for imposing the tax.
The High Court held that the levy was invalid as the Board did not comply with this procedure.
A municipal board desiring to impose the tax is required by section 131 sub section
(1) to pass a special resolution framing the preliminary proposal for the tax.
The Municipal Board, Sitapur, passed a special resolution on January 24, 1956 framing the proposal for the levy of water tax at the rate of 12% per annum on the annual value of buildings and lands and exempting buildings and lands whose annual value was Rs. 24 or below.
Section 131 sub section
(2) requires the Board to prepare a draft of t he rules in respect of the proposed tax.
The Board duly prepared the necessary draft rules.
Section 131 sub &.
(3) requires the Board to publish in the manner prescribed in section 94 the proposal and the draft rules along with a notice in the form set forth in Schedule III.
The draft rules along with the notice was published in the Rashtra Sandesh, a local paper published in Hindi.
The proposal was not separately published.
But the proposal was to be found in the draft rules published in the local paper.
Objections against the proposal were filed by the inhabi tants of the municipality.
The Board duly considered the objections and passed orders thereon under section 132 sub section
After considering the objections and the recommendations of the prescribed authority under section 133 sub section
(1) the Board decided to modify the original proposal by reducing the tax to 10% on the annual value and by exempting all lands and buildings whose annual value was Rs. 36 or below.
Section 132 sub section (2) requires the Board to publish the modified proposal along with a, notice indicating that it is in modification of the original proposal, and section 132 sub section
(3) provides that the objec 389 tions to the modified proposal shall be dealt with in the manner prescribed by sub section
The modified proposal was not published as required by section 132 subs.
The prescribed authority acting under section ' 132 sub section
(2) duly sanctioned the final proposal and made the necessary rules in respect of the tax.
It may be noted that the Commissioner, Lucknow Division, was the prescribed authority.
On receipt of the order of sanction and the copy of the rules, the Board acting under section 134 sub section
(2) pas sed a special resolution on April 23, 1957 directing the im position of the tax with effect from October 1, 1957.
This special resolution was not published in the manner prescribed by section 94.
On receipt of the special resolution the prescribed authority acting under section 135 sub section
(2) notified in the official gazette dated August 3, 1957 the imposition of the tax from the appointed date.
Section 135 sub section
(3) provides that, "a notification of the imposition of a tax under sub section (2) shall be conclusive proof that the tax has been imposed in accordance with the provisions of this Act.
" The respondents raised three objections against the validity of the imposition of the water tax : ( 1 ) omission to publish the preliminary proposal separately in the manner prescribed by section 131 sub section
(3) read with section 94; (2) non publication of the modified proposal in accordance with section 132 sub section
(2); and (3) non publication of the special resolution directing the imposition of the tax in accordance with section 94.
The procedure laid down by the Act was, not strictly complied with before imposing the tax ' But all the procedural defects in the imposition of the tax are cured by section 135 sub section
(3), where, as in this case, the Municipal Board has the power to levy the tax and has passed the special 'resolution necessary for the imposition of the tax and the defects are not of a fundamental character.
The procedural defects cannot be regarded as fundamental or as invalidating the imposition, if no substantial prejudice is caused thereby to the, inhabitants of the municipality.
The issue of the notification under section 135 sub section
(2) is conclusive proof that all necessary steps for the imposition of the tax have been taken in accordance with the provisions of the Act.
In Municipal Board vs Raghuvendra(1) the Court held that the defect of non publication of the special resolution proposing the tax in a local Hindi paper and omission to publish the draft rules as required by section 131 sub section
(3) read with section 94 sub section
(3) was cured by section 135 sub section (3) and that the publication of the special resolution by affixing a copy of it on the notice board and by beat of drum was sufficient.
In Bland Sugar vs Municipal Board(2) the Court held that the publication of the pro (1) ; (2) ; 390 posals and ;the draft rules in Hindi in a local Urdu paper was sufficient compliance with section 131 sub section
In Berar Swadeshi Vanaspathi vs Municipal Committee, Shegaon,(1) the Court held that in view of the similar provisions of section 67 sub section
(7) of the C. P. and Berar Municipal Act, 1922, the validity of imposition of the octroi tax could not be challenged on the ground that the objections were not considered on the merits.
As to the first objection we find that there, was substantial compliance with section 131 sub section
The draft rules were published in the Rashtra Sandesh.
They incorporated the preliminary proposal and mentioned the special resolution dated January 24, 1956 by which the proposal was framed.
There was thus sufficient publication of the proposal.
The proposal was not separately published in the prescribed form, but the omission to do so was a mere irregularity.
The inhabitants of the municipality had due notice of the proposal.
The object of the publication under section 131 sub section
(3) is to inform the inhabitants of the proposal so that, they can file their objections to it.
That object was fully achieved by the publication in the Rashtra Sandesh.
As to the second objection, we, find that the original proposal was to levy water tax at the rate of 12% per annum on the annual value.
The inhabitants had full opportunity to raise objections to the rate of the tax and to submit whether the rate should be 12% or 10% or less.
After considering their objections, the Board proposed to levy the tax at the reduced rate of 10% per annum on the annual value.
No prejudice was caused by not inviting fresh objections to the modified proposal of levying the tax at the reduced rate.
It is interesting to notice that the U.P. Municipalities (Amendment) Act, 1964 (U.P. Act No. XXVII of 1964) inserted in section 132 sub section
(2) the following proviso : "Provided that no such publication shall be necessary where the modification is confined to reduction in the amount or rate of the tax originally proposed.
" This proviso was not in force.
on January 24, 1956.
But it does indicate that it is unnecessary to publish a modified proposal reducing the rate of tax originally proposed.
The original proposal exempted all buildings and lands whose annual value was Rs. 24 or below.
The modified proposal raised the exemption limit and provided that all buildings and lands whose annual value was Rs. 36 or below would be exempted.
The inhabitants of the municipality had full opportunity to raise objections as to the exemption limits as originally proposed and to submit whether buildings and lands of the value of Rs. 24 or Rs. 36 or more should be exempted.
No prejudice was caused by not inviting fresh objections to the (1) 391 modified proposal raising the exemption limit.
The inhabitants submitted all objections which they could possibly I raise both with regard to the rate of tax and the exemption limit.
In our opinion, the non publication of the modified proposal was a mere irregularity, and the defect was cured by section 135 sub section
As to the third objection it is to be observed that section 134.
section (2) does not provide for the publication of the special resolution passed under it.
Assuming that this special resolution had to be published under the general provisions of section 94, we think that the non publication was a mere irregularity.
The inhabitants had no right to file any objections against the special resolution.
They had clear notice of the imposition of the tax from the notification published in the official gazette on August 3, 1957.
The defect of the non publication of the special resolution in the manner prescribed by section 94 was cured by section 135 sub section
The High Court was in error in quashing the imposition of the water tax.
In the result, the appeals are allowed with costs in this Court and in the High Court, the order of the High Court is set aside and the writ petitions are dismissed.
There will be one hearing fee.
| IN-Abs | The Municipal Board Sitapur took various steps to levy water tax as authorised by section 126(1)(x) of the U.P. Municipalities Act, 1916, and the special resolution imposing the tax with effect from October 1, 1957 was passed on April 23, 1957.
The High Court held the levy to be, invalid.
In appeal filed by the Municipal Board this Court had to consider the effect of (i) the omission to publish the preliminary proposal separately in the manner prescribed by section 131(3) read with section 94, (ii) the nonpublication of the modified proposal in accordance with section 132(2) and (iii) the non publication of the special resolution directing the imposition of the tax in accordance with section 94.
HELD: The High Court was in error in quashing the imposition of the water tax.
(i) Procedural defects in the imposition of the tax are cured by section 135(3).
Such defects cannot be regarded as fundamental or as invalidating the imposition, if no substantial prejudice is caused thereby to the inhabitants of the municipality.
The issue of the notification under section 135(2) is conclusive proof that all necessary steps for the imposition of the tax have been taken in accordance with the. provisions of the Act.
[389E F] Municipal Board vs Raghuvendra, ; , Buland Sugar V. Municipal Board, ; and Berar Swadeshi Vanaspathi vs Municipal Committee, Shegaon, , applied.
(ii) In the present case there was substantial compliance with section 131(3).
The proposal was not separately published in the prescribed form but the omission to do so was a mere irregularity.
The object of the publication under section 131(3) is to inform the inhabitants of the proposal so that they can file their objections to it.
That object was fully achieved by the publication in the local newspaper.
[390 B D] (iii) The inhabitants submitted all objections which they could possibly raise both with regard to the rate of tax and the exemption limit.
Noprejudice was caused by not inviting fresh objections to reduction of the rate of tax or the exemption limit.
The non publication of the modified proposal was a mere irregularity and the defect was cured by section 135(3).
[390 E] (iv) Section 134(2) does not provide for the publication of the special resolution passed under it.
Assuming that it had to be published under the general provisions of section 94, the non publication was a mere irregularity cured by section 135(3).
[391 C]
|
iminal Appeal No. 14 of 1968.
Appeal by special leave from the judgment and order dated April 20, 1967 of the Calcutta High Court in Criminal Revision No. 502 of 1966.
B. Sen and P. K. Chakravarti, for the appellants.
A. section R. Chari, B. P. Maheshwari and Sobhag Mal Jain, for respondent No. 1.
The Judgment of the Court was delivered by Shah J.
In the course of investigation of offences under sections 420, 467, 471 and 120 B.I.P. Code the Officer in charge of the investigation submitted an application before the Chief Presidency Magistrate, Calcutta, for an order that a warrant for the arrest of Jugal Kishore More and certain other named persons be issued and that the warrant be, forwarded with the relevant records and evidence to the Ministry of External Affairs, Government of India, for securing extradition of More who was then believed to be in Hong Kong.
It was stated in the application that More and others "were parties to a criminal conspiracy in Calcutta between May 1961 and December 1962 to defraud the Government of India in respect of India 's foreign exchange", and their presence was required for trial.
The Chief Presidency Magistrate held an enquiry and recorded an order on July 19, 1965, that on the materials placed before him, a prima facie case was made out of a criminal conspiracy, 32 3 was "hatched in Calcutta" within his jurisdiction, and More was one of the conspirators.
He accordingly directed that a nonbailable warrant in Form 11 Sch.
V of the Code of Criminal Procedure be issued for the arrest of More, and that the warrant be sent to the Secretary Home (Political) Department, Government of West Bengal, with a request to take all necessary steps to ensure execution of the warrant.
A copy of the warrant was sent to the Commissioner of Police, Calcutta, for information.
In the warrant More was described as Manager, Premko Traders of 7, Wyndhan Street and 28, King 's Road, Hong Kong.
The Chief Presidency Magistrate forwarded to the Government of West Bengal, the warrant with attested copies of the evidence recorded at the enquiry and photostat copies of documents tendered by the prosecution in evidence "in accordance with the procedure laid down in Government of India, Ministry of External Affairs, letter No. K/52/ 6131/41 dated 21st May, 1955".
The warrant was forwarded by the Government of West Bengal to the Ministry of External Affairs, Government of India.
The Ministry of External Affairs forwarded the warrant to the High Commissioner for India, Hong Kong, who in his turn, requested the Colonial Secretary, Hong Kong, for an order extraditing More under the Fugitive Offenders Act, 1881, (44 and 45 Vict., c. 69), to India for trial for offences described in the warrant.
The Central Magistrate, Hong Kong, endorsed the warrant and directed the Hong Kong Police, "pursuant to section 13 of Part 11 and section 26 of Part IV of the Fugitive Offenders Act, 1881", to arrest More.
The order recited : "WHEREAS I have perused this warrant for the apprehension of Jugal Kishore More, .
accused of an offence punishable by law in Calcutta, Republic of India, which warrant purports to be signed by the Chief Presidency Magistrate, Calcutta, and 'is sealed with the seal of the Court of the said Magistrate, and is attested by section K. Chatterjee,.
Under Secretary in the Ministry of External Affairs of the Republic of India and sealed with the seal of the said Ministry; AND WHEREAS I am satisfied that this warrant was issued by a person having lawful authority to issue the same; AND WHEREAS it has been represented to me that the said Jugal Kishore More . is suspected of being in the Colony; AND WHEREAS Order in Council S.R. and 0.
No. 28 of 1918 by virtue of which Part 11 of the Fugitive Offenders Act, 1881, was made to apply to a group 324 of British Possessions and Protective States including Hong Kong and British India, appears to remain in full force and effect so far as the law of Hong Kong is concerned.
Now therefore under section 13 of the Fugitive Offenders Act, 1881, I hereby endorse this Warrant and authorise and command you in Her Majesty 's name, forthwith to execute this Warant in the Colony to apprehend the said Jugal Kishore More, .
wherever he may be found in the Colony and to bring him before a Magistrate of the said Colony to be further dealt with according to law.
" More was arrested on November 24, 1965.
By order dated April 4, 1966, the Central Magistrate, Hong Kong, over ruled the objection raised on behalf of More that the Court had no jurisdiction to proceed in the matter under the Fugitive Offenders Act, 1881, since the Republic of India was no longer a "British Possession".
On May 16, 1966, Hanuman Prasad father of More moved in the High Court of Calcutta a petition under section 439 of the Code of Criminal Procedure and article 227 of the Constitution for an order quashing the warrant of arrest issued against More and all proceedings taken pursuant thereto and restraining the Chief Presidency Magistrate and the Union of India from taking any further steps pursuant to the said warrant of arrest and causing More to be extradited from Hong Kong to India.
The petition was heard before a Division Bench of the High Court.
A. Roy, J., held that the warrant issued by the Chief Presidency Magistrate was not illegal and the procedure followed for securing extradition of More was not irregular.
In his view the assumption made by the Central Magistrate, Hong Kong, that for the purpose of the Fugitive Offenders Act, India was a "British possession" was irrelevant since that was only a view expressed by him according to the municipal law of Hong Kong, and by acceding to the requisition for extradition and surrender made upon that country by the Government of India in exercise of sovereign rights the status of the Republic of India was not affected.
In the view of Gupta, J., the warrant issued by the Chief Presidency Magistrate and the steps taken pursuant to the warrant were without jurisdiction, that the request made to the Hong Kong Government by the Government of India was also without authority in the absence of a notified order under section 3 of the , and the High Court could not ignore the "laws of the land, even to support a gesture of comity to another nation," that 325 what was done by the Hong Kong authorities pursuant to the request made for the surrender of More was "not an instance of international comity but was regarded as the legal obligation under the Fugitive Offenders Act under which the Central Magistrate, Hong Kong, regarded India as a Colony or Possession of the British Commonwealth".
The case was then posted for hearing before R. Mukherji, J.
The learned Judge held that the.
Chief Presidency Magistrate had no power to issue the warrant of arrest in the manner, he had done, a manner which in his view was "unknown to the Code of Criminal Procedure", since the Fugitive Offenders Act, 18 8 1, had ceased, on the coming into force of the Constitution, to be part of the law of India and could not on that account be resorted to for obtaining extradition if offenders from another country; that the instructions issued by the Government of India by letter No. 3516 J dated June 14, 1955, laying down the procedure to the followed by the courts for securing extradition 'of offenders from the Commonwealth countries should have been ignored by the Chief Presidency Magistrate, and that the 34 of 1962 did not authorise the Chief Presidency Magistrate to issue a warrant and to send it to the Secretary, Home (Political) Department, Government of West Bengal; that there "was no legal basis for the requisition made by the Central Government to Hong Kong" for extradition or surrender of More or for the issue of the warrant by the Chief ' Presidency Magistrate; and that the demand made by the Government of India to the Government of Hong Kong by making a requisition to Hong Kong for the arrest of More "was not a political act beyond the purview of law and judicial scrutiny" and being inconsistent with the law was liable to be rectified.
He observed that the Central Government had the power under section 3 of the , to issue a notification for including Hong Kong in the list of countries from which offenders may be extradited, but since the Government had not issued any notification under that clause in exercise of the executive power, the Government could not attempt in violation of the statutory procedure seek extradition which the law of India did not permit.
The learned Judge accordingly ordered that the warrant of arrest dated July 30, 1965, issued by the Chief Presidency Magistrate, Calcutta, against More and all subsequent proceedings taken by the Chief Presidency Magistrate and the other respondents be quashed.
The State of West Bengal has appealed to this Court with special leave.
Extradition is the surrender by one State to another of a person desired to be dealt with for crimes of which he has been accused or convicted and which are justiciable in the courts of the other State.
Surrender of a person within the State to another 326 State whether a citizen or an alien is a political act done in pursuance of a treaty or an arrangement ad hoc.
It is founded on the broad principle that it is in the interest of civilized communities that crimes should not go unpunished, and on that account it is recoginised as a part of the comity of nations that one State should ordinarily afford to another State assistance towards bringing offenders to justice.
The law relating to extradition between independent States is based on treaties.
But the law has operation national as well as international It governs international relationship between the sovereign States which is secured by treaty obligations.
But whether an offender should be handed over pursuant to a requisition is determined by the domestic law of the State on which the requisition is made.
Though extradition is granted in implementation of the international commitments of the State, the procedure to be followed by the Courts in deciding whether extradition should be 'granted and on what terms, is determined by the municipal law.
As observed in Wheaten 's International Law, Vol. 1, 6th Edn., p. 213 : " 'The constitutional doctrine in England is that the Crown may make treaties with foreign States for the extradition of criminals, but those treaties can only be carried into effect by Act of Parliament, for the executive has no power, without statutory authority, to seize an alien here and deliver him to a foreign power.
" Sanction behind an order of extradition is therefore the international commitment of the State under which the Court functions, but Courts jealously seek to protect the right of the individual by insisting upon strict compliance with the conditions precedent to surrender.
The Courts of the country which make a requisition for surrender deal with the prima facie proof of the offence and leave it to the State to make a requisition upon the other ,State in which the offender has taken refuge.
Requisition for surrender is not the function of the Courts but of the State.
A warrant issued by a Court for an offence committed in a country from its very nature has no extra territorial operation.
It is only a command by the Court in the name of the sovereign to its officer to arrest an offender and to bring him before the Court.
By making a requisition in pursuance of a warrant issued by a ,Court of a State to another State for assistance in securing the presence of the offender, the warrant is not invested with extra territorial operation.
If the other State requested agrees to lend its aid to arrest the fugitive the arrest is made either by the issue ,of an independent warrant or endorsement or authentication of 'the warrant of the Court which issued it.
By endorsement or 327 authentication of a warrant the country in which an offender has taken refuge signifies its willingness to lend its assistance, in implementation of the treaties or international commitments and to secure the arrest of the offender.
The offender arrested pursuant to the warrant or endorsement is brought before the Court of the country to which the requisition is made, and the Court holds an inquiry to determine whether the offender may be extradited.
International commitment or treaty will be effective only if the Court of a country in which the offender is arrested after enquiry is of the view that the offender should be surrendered.
The functions which the Courts in the two countries perform are therefore different.
The Court within whose jurisdiction the offence is committed decides whether there is prima facie evidence on which a requisition may be made to another country for surrender of the, offender.
When the State to which a requisition is made agrees consistently with its international commitments to lend its aid the requisition is transmitted to the Police authorities, and the Courts of that country consider, according to their own laws whether the offender should be suffendered the enquiry is in the absence of express provisions to the contrary relating to the prima facie evidence of the commission of the offence which is extraditable, the offence not being a political offence nor that the requisition being a subterfuge to secure custody for trial for a political offence.
Prior to January 26, 1950, there was in force in India the Indian 15 of 1903, which as the preamble ex pressly enacted was intended to provide for the more convenient administration of the Extradition Acts of 1870 and 1873, and the Foreign Jurisdiction Act of 1881 both enacted by the British Parliament.
The Act enacted machinery in Ch.
II for the surrender of fugitive criminals in case of Foreign States i.e., States to which the of 1870 and 1873 applied and in Ch.
II for surrender of fugitive offenders in case of "His Majesty 's Dominions".
The Extradition Acts of 1870 and 1873 sought to give effect to arrangements made with foreign States with respect to the surrender to such States of any fugitive criminals Her Majesty may by Order in Council, direct and to prescribe the procedure for extraditing fugitive offenders to such foreign states.
As observed in Halsbury 's Laws of England Vol.
16, 3rd Edn., para 1161 at p. 567 : "When a treaty has been made with a foreign State and the Extradition Acts have been applied by Order in Council, one of Her Majesty 's principal Secretaries of State may, upon a requisition made to him by some person recognized by him as a diplomatic representative of 328 that foreign State, by order under his hand and seal, signify to a police magistrate that such a requisition has been made and require him to issue his warrant for the apprehension of the fugitive criminal if the criminal is in or is suspected of being in, the United Kingdom.
" The warrant may then be issued by a police magistrate on receipt of the order of the Secretary of State and upon such evidence as would in his opinion justify the issue of the warrant if the crime had been committed or the criminal convicted in England.
The procedure for extradition of fugitive offenders from "British possessions" was less complicated.
When the was applied by Order in Council unless it was otherwise provided by such Order, the Act extended to every "British possesSion" in the same manner as if throughout the Act the "British possession" were substituted for the United Kingdom, but with certain modifications in procedure.
Under Part I of the Fugitive Offenders Act 1881 a warrant issued in one part of the Crown 's Dominion for apprehension of a fugitive offender, could be endorsed for execution in another Dominion.
After the fugitive was apprehended he was brought before the Magistrate who heard the case in the same manner and had the same jurisdiction and powers as if the fugitive was charged with an offence committed within the Magistrate 's jurisdiction.
If the Magistrate was satisfied, after expiry of 15 days from the date on which the fugitive was committed to prison, he could make an order for surrender of the fugitive on the warrant issued by the Secretary of State or an appropriate officer.
There was also provision for "inter colonial backing of warrants" within groups of "British possessions" to which Part I of the Fugitive Offenders Act, 1881 has been applied by Order in Council.
In such groups a more rapid procedure for the return of fugitive offenders between possessions of the same group was in force.
Where in a "British possession", of a group to which Part II of the Act applied, a warrant was issued for the apprehension of a person accused of an offence punishable in that possession and such term is or was suspected of being, in or on the way to another British possession of the same group, a magistrate in the last mentioned possession, if satisfied that the warrant was issued by a person having lawful authority to issue the same, was bound to endorse such warrant, and the warrant so endorsed was sufficient authority to apprehend, within the jurisdiction of the endorsing magistrate the person named in the warrant and to bring him before the endorsing magistrate or some other magistrate in the same possession.
If the magistrate before whom a person apprehended was brought was satisfied that the war rant was duly authenticated and was issued 329 by a person having lawful authority to issue it, and the identity of the prisoner was established he could order the prisoner to be returned to the British possession in which the warrant was issued and for that purpose to deliver into the custody of the persons to whom the warrant was addressed or of any one or more of them, ,and to be held in custody and conveyed to that possession, there to be dealt with according to law as if he had been there apprehended.
This was in brief the procedure prior to January 26, 1950.
The President of India adapted the Extradition Act 1903, in certain particulars.
The Fugitive Offenders Act, 1881 and the Extradition Act, 1870, in their application to India were however not repealed by the Indian Parliament and to the extent they were consistent with the constitutional scheme they remained applicable.
In order to maintain the continued application of laws of the British Parliament, notwithstanding India becoming a Republic, the British Parliament enacted the India (Consequential Provision) Act 1949 which by section 1 provided : "(1) On and after the date of India 's becoming a republic, all existing law, that is to say, all law which, whether being a rule of law or a provision of an Act of Parliament or of any other enactment or instrument whatsoever, is in force on that date or has been passed or made before that date and comes into force thereafter, shall, until provision to the contrary is made by the authority having power to alter that law and subject to the provisions of sub section
(3) of this section, have the same operation in relation to India, and to persons and things in any way belonging to or connected with India, as it would have had if India had not become a republic.
(3)His Majesty may by Order in Council make provision for such satisfaction of any existing law to which this Act extends as may appear to him to be necessary or expedient in view of India 's becoming a republic while remaining a member of the Commonwealth, and sub section
(1) of this section shall have effect in relation to any such law as modified by such an order in so far as the contrary intention appears in the order.
An Order in Council under this section (a)may be made either before or after India becomes a republic, and may be revoked or varied by a subsequent Order in Council ', and 330 (b)shall be subject to annulment in pursuance of a resolution of either House of Parliament." In 1954 this Court was called_upon to decide a case relating to extradition to Singapore, a British Colony, of a person alleged to be a fugitive offender The State of Madras vs C. G. Menon and Another(1).
In that case Menon and his wife were apprehended and produced before the Chief Presidency Magistrate, Madras, pursuant to warrants of arrest issued under the provisions of the Fugitive Offenders Act, 1881.
Arrests were made in pursuance of requisition made by the Colonial Secretary of Singapore requesting the assistance of the Government of India to arrest and return to the Colony of Singapore Menons under warrants issued by the Police Magistrate of Singapore.
Menons pleaded that the Fugitive Offenders Act, 1881, under which the action was sought to be taken against them was repugnant to the Constitution of India and was void and unenforceable.
The Chief Presidency Magistrate.
referred two questions of law for decision of the High Court of Madras (1) Whether the Fugitive Offenders Act, 1881, applies to India after 26th January, 1950, when India became a Sovereign Democratic Republic; and (2)Whether, even if it applied, it or any of its provisions, particularly Part II thereof, is repugnant to the Constitution of India and is therefore void and or inoperative.
The High Court held that the Fugitive Offenders Act was in consistent with the fundamental right of equal protection of the laws guaranteed by article 14 of the Constitution and was void to that extent and unenforceable against the petitioners.
In appeal brought to this Court it was observed : "It is plain from the. . provisions of the Fugitive Offenders Act as well as from the Order in Council that British Possessions which were contiguous to one another and between whom there was frequent inter communication were treated for purposes of the Fugitive Offenders Act as one integrated territory and a summary procedure was adopted for the purpose of extraditing persons who had committed offences in these integrated territories.
As the laws prevailing in those possessions were substantially the same, the requirement that no fugitive will be surren dered unless a prima facie case was made against him was dispensed with.
Under the Indian Extradition (1)[1955] 1 S.C.R. 280. , also a similar requirement is insisted upon before a person can be extradited.
The situation completely changed when India became a Sovereign Democratic Republic.
After the achievement of independence and the coming into force of the new Constitution by no stretch of imagination could India be described as a British Possession and it could not be grouped by an Order in Council amongst those Possessions.
Truly speaking, it became a foreign territory so far as other British Possessions are concerned and the extradition of persons taking asylum in India, having committed offences in British Possessions, could only be dealt with by an arrangement between the Sovereign Democratic Republic of India and the British Government and given effect to by appropriate legislation.
The Union Parliament has not so far enacted any law on the subject and it was not suggested that any arrangement has been arrived at between these two Governments.
The , has been adapted but the Fugitive Offenders Act, 1881, which was an Act of the British Parliament has been left severely alone.
The provisions of that Act could only be made applicable to India by incorporating them with appropriate changes into an Act of the Indian Parliament and by enacting an Indian Fugitive Offenders Act.
In the absence of any legislation on those lines it seems difficult to hold that section 12 or section 14 of the Fugitive Offenders Act has force in India by reason of the provisions of article 372 of the Constitution.
The whole basis for the applicability of Part II of the Fugitive Offenders Act has gone : India is no longer a British Possession and no Order in Council can be made to group it with other British Possessions. . . .
The political background and shape of things when Part II of the Fugitive Offenders Act, 1881, was enacted and envisaged by that Act having completely changed, it is not possible without radical legislative changes to adapt that Act to the changed conditions.
That being so, in our opinion, the tentative view expressed by the Presidency Magistrate was right.
After this judgment was delivered, the Government of India, Ministry of External Affairs, issued a notification on May 21, 1955, to all State Governments of Part A, B, C & D States.
It was stated in the notification that : ".
in a certain case of extradition of an offender, the Supreme Court of India recently ruled that in 332 the changed circumstances, the English Fugitive Offenders Act, 1881, is no longer applicable to India.
There can therefore, be no question of issuing a warrant of arrest, addressed to a foreign police or a foreign court, in respect of persons who are residing outside India except in accordance with the Code of Criminal Procedure, 1898.
2.In the circumstances, to obtain a fugitive offender from the United Kingdom and other Commonwealth countries, the following procedure may be adopted as long as the new Indian Extradition law is not enacted and the Commonwealth countries continue to honour our requests for the surrender of the fugitive offenders notwithstanding decisions of the Supreme Court; (a)The Magistrate concerned will issue a warrant 'for the arrest of the fugitive offender to Police officials ,of India in the usual form prescribed under the Code of 'Criminal Procedure, 1898.
(b)The warrant for arrest, accompanied by all such, documents as would enable a prima facie case to be established against the accused will be submitted by the Magistrate to the Government of India in the Ministry of External Affairs, through the State Government concerned.
3.This Ministry, in consultation with the Ministries ,of Home Affairs, and Law, will make a requisition for the surrender of a fugitive offender in the form of a letter, requesting the Secretary of State (in the case of dominions, the appropriate authority in the dominion) to get the warrant endorsed in accordance with law.
This letter will be addressed to the Secretary of State, (or other appropriate authority in case of Dominions) through the High Commissioner for India in the United Kingdom/Dominion concerned and will be accompanied by the warrant issued by the Magistrate at (a) of para 2 above and other documents received therewith.
" The Chief Presidency Magistrate Calcutta made out the warrant for the arrest of More pursuant to that notification and sent the warrant to the Secretary, Home (Political) Department, Government of West Bengal.
Validity of the steps taken in accordance with the notification by the Chief Presidency Magistrate is questioned in this appeal.
To complete the narrative, it is necessary to refer to the Extradition Act 34 of 1962.
The Parliament has enacted Act 34 333 of 1962 to consolidate and amend the law relating to ' extraction of fugitive criminals.
It makes provisions by Ch.
II for extradition of fugitive criminals to foreign States and to commonwealth countries to which Ch.
HI does not apply Chapter III deals with the return of fugitive criminals to commonwealth countries with extradition arrangements.
By section 12 it is provided "(1) This Chapter shah apply only to any such commonwealth country to which, by reason of an extradition arrangement entered into with that country, it may seem expedient to the Central Government to apply the same.
(2)every such application shall be by notified order, and the Central Government may, by the same or any subsequent notified order, direct that this Chapter and Chapters 1, IV and V shall, in relation to any such commonwealth country, apply subject to such modifications, exceptions, conditions and qualifications as it may think fit to specify in the order for the purpose of implementing the arrangement.
" Section 13 provides that the fugitive criminals from common wealth countries may be apprehended and returned.
Chapter IV deals with the surrender or return of accused or convicted persons from foreign States or commonwealth countries.
By section 19 it was provided that (1)A requisition for the surrender of a person accused or convicted of an extradition offence committed in India and who is or is suspected to be, in any foreign State or a commonwealth country to which Chapter III does not apply, may be made by the Central Government (a)to a diplomatic representative of that State or country at Delhi; or (b)to the Government of that State or country throughthe diplomatic representative of India in that State or country; and if neither of these modes is convenient, the requisition shall be made in such other mode as is settled by arrangement made by the Government of India with that State or country.
(2)A warrant issued by a magistrate in India for the apprehension of any person who is, or is suspected to be, in any Commonwealth country to which Chapter III applies shall be in such form as may be 'prescribed.
8 Sup CI/69 3 334 BY cl.
(a) of section 2 the expression "commonwealth country" means 'a commonwealth country specified in the First Schedule, and such other commonwealth country as may be added to that Schedule by the Central Government by notification in the Official Gazette, and includes every constituent part, colony or dependency of any, commonwealth country so specified or added :".
But in the Schedule to the Act "Hong Kong" is not specified as one of the commonwealth country and no notification ,has been issued by the Government of India under section 2(a) adding to the First Schedule "Hong Kong ' as a commonwealth country.
It is common ground between the parties that the provisions of the , could not be resorted to for making the requisition for surrender of the fugitive offender from Hong Kong, and no attempt was made in that behalf.
Validity of the action taken by the Chief Presidency Magis trate must therefore, be adjudged in the light of the action taken pursuant to the notification issued by the Government of India on May 21, 1955.
Counsel for the respondent More urged that the warrant issued by the Chief Presidency Magistrate was intended to be and could in its very nature be a legal warrant enforceable within India : it had no extra territorial operation, and could not be enforced outside India, and when the Central Magistrate Hong Kong, purported to endorse that warrant for enforcement within Hong Kong he had no authority to do so.
But this Court has no authority to sit in judgment over the order passed by the Hong Kong Central Magistrate.
The Magistrate acted in accordance with the municipal law of Hong Kong and agreed to the surrender of the offender : his action cannot be challenged in this Court.
It may also be pointed out that Form II of the warrant prescribed in Sch.
V of the Code of Criminal Procedure only issues a direction under the authority of the Magistrate to a Police Officer to arrest a named person and to produce him before the Court.
It does not state that the warrant shall be executed in any designated place or area.
By section 82 of the Code of Criminal Procedure a warrant of arrest may be executed at any place in India.
That provision does not impose any restriction upon the power of the Police Officer.
The section only declares in that every warrant issued by any Magistrate in India may be executed at any place in India, execution of the warrant is not restricted to the local limits of the jurisdiction of the Magistrate issuing the warrant or of the Court to which he is subordinate.
In Emperor vs Vinayak Damodar Savarkar and Ors.
(1) the Bombay High Court considered the question whether a person who was brought to the country and was charged before a Magis (1) I.L.R. 335 trate with an offence under the Indian Penal Code was entitled to challenge the manner in which he was brought into the country from a foreign country.
Savarkar was charged with conspiracy under sections 121, 121A, 122 and 123 of the Indian Penal Code.
He was arrested in the United Kingdom and brought to India after arrest.
under the Fugitive Offenders Act, 1881.
When the ship in which he was being brought to India was near French territory Savarkar escaped from police custody and set foot on French territory at Marseilles.
He was arrested by the police officers without reference to the French police authorities and brought to India.
It was contended at the trial of Savarkar that he was not liable to be tried in India, since arrest by the Indian police officers in a foreign territory was without jurisdiction.
Scott, C.J., who delivered the principal judgment of the Court rejected the contention.
He observed : "Where a man is in the country and is charged before a Magistrate with an offence under the Penal Code it will not avail him to say that he was brought there illegally from a foreign country.
" It is true that Savarkar was produced before the Court and be raised an objection about the validity of the trial on the plea that he was illegally brought to India after unlawful arrest in foreign territory.
In the present case we are concerned with a stage anterior to that.
The respondent More though arrested in a foreign country lawfully, by the, order of the Central Magistrate, Hong Kong, had not been surrendered and the invalidity of the warrant issued by the Chief Presidency Magistrate is set up as a ground for refusing to obtain extradition of the offender.
But on the principle of Vinayak Damodar Savarkar 's case(1) the contention about the invalidity of the arrest cannot affect the jurisdiction of the Courts in India to try More if and when he is brought here.
The 15 of 1903 which was enacted to provide for the more convenient administration of the English Extradition Act, 1870 & 1873 and the Fugitive Offenders Act.
1881, remained in operation.
But after January 26, 1950, India is no longer a "British Possession." In C. G. Menon 's case (2) it was decided by this Court that application of sections 12 and 14 of the Fugitive Offenders Act, 1881, for surrendering an offender to a Commonwealth country in pursuance of a requisition under the Fugitive Offenders Act, 1881, is inconsistent with the political status of India.
It is somewhat unfortunate that the Court hearing that case was not invited to say anything about the operation of the India (Consequential Provision) Act, 1949.
But C. G. Menon 's case(2) was a reverse case, in that, the Colonial Secretary of Singapore had made a requisition for (1) I.L.R. (2) ; 336 surrender of the offender for trial for offences of criminal breach of trust in Singapore.
Whether having regard to the political status of India since January 26, 1950, the Fugitive Offenders Act, 1881, insofar as it purported to treat India as a "British Possession" imposed an obligation to.
deliver offenders in pursuance of the India (Consequential Provision) Act 1949.
is a question on which it is not necessary to express an opinion.
By the declaration of the status of India as a Republic, India has not ceased to be a part of the Commonwealth and the United Kingdom and several Colonies have treated the Fugitive Offenders Act, 1881, as applicable to them for the purpose of honouring the requisition made by the Republic of India from time to time.
In Re. Government of India and Mubarak Ali Ahmed(1) an attempt to resist in the High Court in England the requisition by the Republic of India to surrender an offender who had committed offences in India and had fled justice failed.
Mubarak Ali a native of Pakistan was being tried in the Courts in India on charges of forgery and fraud.
He broke his bail and fled to Pakistan and thereafter to England.
He was arrested on a pro ' visional warrant issued by the London Metropolitan Magistrate on the application of the Government of India.
After hearing legal submissions the Metropolitan Magistrate made an order under section 5 of the Fugitive Offenders Act, 1881, for Mubarak Ali 's detention in custody pending his return to India to answer the charges, made against him.
Mubarak Ali then filed a petition for a writ of habeas corpus before the Queen 's Bench of the High Court.
It was held that the Fugitive Offenders Act, 1881, was in force between India and Great Britain on January 26,,1950, when India become a republic and it was continued to apply by virtue of section 1 (1) of the India (Consequential Provision) Act, 1949, and, therefore, the Magistrate had jurisdiction to make the order for the applicant 's return.
Pursuant to the requisitions made by the Government of India,, Mubarak Ali was surrendered by the British Government.
Mubarak Ali was then brought to India and was tried and convicted.
One of the offences for which he was tried resulted in his conviction and an appeal was brought ' to this Court in Mobarik Ali Ahmed v, The State of Bombay(2) There are other cases as well, in which orders were made by the British Courts complying with the requisitions made by the Governments of Republics within the Commonwealth, for extradition of offenders under the Fugitive Offenders Act, 1881.
An offender from Ghana was ordered to be extradited Pursuant to the Ghana (Consequential Provision) Act, 1960, even after Ghana became are public Re.
Kwesi Armah(3).
On July 1,1960, Ghana while remaining by virtue of the Ghana (Consequential (1) (3)[1966] ; 2 All E.R. 1006.(2) 3 37 Provision) Act, 1960, a member of the Comon wealth became a Republic.
Kwesi Armah who was a Minister in Ghana fled the, country in 1966 and took refuge in the United Kingdom.
He was arrested under a provisional warrant issued under the Fugitive Offenders Act, 1881.
The Metropolitan Magistrate being satisfied that the Act of 1881 still applied to Ghana and that a prima facie case had been made out against the applicant in respect of two alleged contravention of the Ghana Criminal Code, 1960, by corruption and extortion when he was a public officer,commited Kwesi Armah to prison pending his return to Ghana to undergo trial.
A petition for a writ of habeas corpus before the Queen '& Bench Division of the High Court was refused.
Edmund Davies, J., was of the view that the Act of 1881 applied to the Republic of Ghana, in its new form, just as it did before the coup d 'etat of February 1966.
The case was then carried to the House of Lords; Armah vs Government of Ghana and Another(1).
The questions decided by the House of Lords have no relevance in this case.
But it was not even argued that a fugitive offender from a republic which was a member of the Commonwealth could not be extradited under the Fugitive Offenders Act, 1881.
There is yet another recent judgment of the House of Lords dealing with repatriation of a citizen of the Republic of Cyprus Zacharia vs Republic of Cyprus and Anr.
(2) Warrants were issued against Zacharia on charges before the, Courts in Cyprus of offences of abduction, demanding money with menaces and murder.
Under the orders issued by a Bow Street Magistrate under section 5 of the Fugitive Offenders Act, 1881, Zacharia was committed to prison pending his return to Cyprus.
An application for a writ of habeas corpus on the ground that the offences alleged against him were political and that the application for the return of the fugitive was made out of motive for revenge was rejected by the Queen 's Bench Division and it was ordered that Zacharia be repatriated.
The order was confirmed in appeal to the House of Lords.
Merely because for the purpose of the extradition procedure, in a statute passed before the attainment of independence by the former Colonies and dependencies, certain territories continue to be referred to as "British Possessions" the statute does not become inapplicable to those territories.
The expression "British Possession" in the old statutes merely survives an artificial mode of reference, undoubtedly not consistent with political realities, but does not imply for the purpose of the statute or otherwise political dependence.
of the Government of the territories referred to.
It is not for the Courts of India to take umbrage at expressions used in statutes of other countries and to refuse to give effect to Indian laws which govern the problems arising before them.
(1) (2) ; 338 It is interesting to note that by express enactment the Fugitive.
Offenders Act, 1881, remains 'in force as a part of the Republic of Ireland : see Ireland Act, 1949 (12, 13 and 14 Geo.
6 c. 41).
In Halsbury 's Laws of England, 3rd Edn., Vol.
5 article 987, p. 433 in dealing with the expression "Her Majesty 's Dominions" in old statutes, it is observed : "The term 'Her Majesty 's dominions, means all the territories under the sovereignty of the Crown, and the territorial waters adjacent thereto.
In special cases it may include territories under the protection of the Crown and mandated and trust territories.
References to Her Majesty 's dominions contained in statutes passed before India became a republic are still to be construed as including India; it is usual to name India separately from Her Majesty 's dominions in statutes passed since India became a republic." In foot note (1) on p. 433 it is stated, British India, which included the whole of India except the princely States; and the Government of India Act, 1935 as amended by section 8 of the India and Burma (Miscellaneous.
Amendments) Act, 1940, formed part of Her Majesty 's dominions and was a British possession, although it was not included within the definition of "colony".
The territory comprised in British India was partitioned between the Dominions of India and Pakistan (Indian Independence Act, 1947), but the law relating to the definition ' of Her Majesty 's dominions was not thereby changed, and it was continued in being by the India (Consequential Provision) Act, 1949 (12, 13 & 14 Geo.
6 c. 92), passed in contemplation of the adoption of a re publican constitution by India.
India is now a sovereign republic, but that by itself does not render the Fugitive Offenders Act, 1881, inapplicable to India.
If the question were a live question, we would have thought it necessary to refer the case to a larger Bench for considering the true effect of the judgment in C. G. Menon 's case(").
But by the Extradition Act 34 of 1962 the Extradition Act, 1870 and the latter Acts and also the Fugitive Offenders Act, 1881, have been repealed and the question about extradition by India of fugitive offenders under those Acts will not hereafter arise.
We are not called upon to consider whether in exercise of the Power under the Fugitive Offenders Act a Magistrate in India may direct extradition of a fugitive offender from a "British Possession", who has taken refuge in India.
It is sufficient to observe that the Colonial Secretary of Hong Kong was according to the law applicable in Hong Kong competent to give effect to the warrant issued by the Chief Presidency Magistrate, Calcutta, and the Central (1)[1955] 1 S.C.R. 280.
339 Magistrate, Hong Kong, had jurisdiction under the Fugitive Offender& Act, and, after holding inquiry, to direct that More be surrendered to India.
The order of surrender was valid according to the law in force in Hong Kong, and we are unable to appreciate the grounds on which invalidity can be attributed to the warrant issued by the Chief Presidency Magistrate, Calcutta, for the arrest of More.
That the Chief Presidency Magistrate was competent to issue a warrant for the arrest of More against whom there was prima facie evidence to show that he had committed an offence in India is not denied.
If the Chief Presidency Magistrate had issued the warrant to the Commissioner of ' Police and the Commissioner of Police had approached the Ministry of External Affairs, Government of India, either through the local Government or directly with a view to secure the assistance of the Government of Hong Kong for facilitating extradition of More, no fault can be found.
But Gupta, J., and Mukherjee, J., thought that the notification issued by the Government of India setting out the procedure to be followed by a Magistrate, where the offender is not in Indian territory and his extradition is to be secured, amounted to an invasion on the authority of the Courts.
We do not think that any such affront is intended by issuing the notification.
The Fugitive Offenders Act,, 1881, had not been expressly repealed even after January 26, 1950.
It, had a limited operation: the other countries of the Commonwealth were apparently willing to honour the international commitments which arose out of the provisions of that Act.
But this Court on the view that since India had become a Republic, held that the Fugitive Offenders Act could not be enforced in this country, presented to the Government of India a problem which had to be resolved by devising machinery for securing the presence of offenders who were fugitives from justice.
The notification issued was only in the nature of advice about the procedure to be followed and did not in any manner seek to impose any executive will upon the Courts in matters judicial.
Observations made by Mukherji, J., that the notification issued by the Central Government authorising the Chief Presidency Magistrate to issue the warrant in the manner he had done, came "nowhere near the law" and "to a Court of law it is waste paper beneath its notice" appear to proceed upon an incorrect view of the object of tile notification.
The Chief Presidency Magistrate had the power to issue the warrant for the arrest of More, because there was prima facie evidence before him that More had committed certain offences which he was competent to try.
The warrant was in Form II of Sch.
V of the Code of Criminal Procedure.
If the warrant was to be successfully executed against More who was not in India, assistance of the executive Government had to be obtained.
It is not an invasion upon the authority of the Courts when they are informed that certain procedure may be followed for obtaining 340 the assistance of the executive Department of the State in securing through diplomatic channels extradition of fugitive offenders.
In pursuance of that warrant, on the endorsement made by the Central Magistrate, Hong Kong, More was arrested.
The warrant was issued with the knowledge that it could not be enforced within India and undoubtedly to secure the extradition of More.
Pursuant to the warrant the Ministry of External Affairs, Government of India, moved through diplomatic channels, and persuaded the Colonial Secretary of Hong Kong to arrest and deliver More.
Issue of the warrant and the procedure followed in transmitting the warrant were not illegal, not even irregular.
One more argument remains to be noticed.
It is true that under the Extradition Act 34 of 1962 no notification has been issued including Hong Kong in the list of the Commonwealth countries from which extradition of fugitives from justice may be secured.
The provisions of the , cannot be availed of for securing the presence of More for trial in India.
But that did not, in our judgment, operate as a bar to the requisition made by the Ministry of External Affairs, Government of India, if they were able to persuade the Colonial Secretary, Hong Kong, to deliver More for trial in this country.
If the Colonial Secretary of Hong Kong was willing to hand over More for trial in this country, it cannot be said that the warrant issued by the Chief Presidency Magistrate for the arrest of More with the aid of which requisition for securing his presence from Hong Kong was to be made, was illegal.
We are unable to agree with the High Court that because of the enactment of the 34 of J962 the Government of India is prohibited from securing through diplomatic channels the extradition of an offender for trial of an offence committed within India.
There was, in our judgment,, no illegality committed by the Chief Presidency Magistrate, Calcutta, in sending the warrant to the Secretary, Home (Political) Department, Government ,of West Bengal, for transmission to the Government of India, Ministry of External Affairs, for taking further steps for securing the presence of More in India to undergo trial.
The appeal must therefore be allowed and the order passed by the High Court set aside. 'Me writ petition filed by More must be dismissed.
Y.P. Appeal allowed.
| IN-Abs | After this Court held in State of Madras vs C. G. Menon, ; that the Fugitive Offenders Act, 1881, was inconsistent with article 14 of the Constitution and was on that account unenforceable after 26th January 1950, the Government of India, Ministry of External Affairs issued a notification on May 21, 1955 indicating the procedure for securing the presence of a fugitive offender in India from the United Kingdom and other Commonwealth countries.
Under the Notification, the Magistrate concerned is to issue a warrant of arrest of the fugitive offender under the Criminal Procedure Code, 1898, and the warrant is to be sent to the Government of India, Ministry of External Affairs through the concerned State Government.
Thereafter, the Ministry is to address the appropriate authority in the Commonwealth country through the High Commissioner for India for the surrender of the fugitive offender.
In 1962, the Indian Extradition Act was passed, but as Hong Kong was not included in the First Schedule, that Act could not be resorted for the surrender of the respondent who was a fugitive offender residing in Hong Kong.
Action was therefore taken in the present case, pursuant to the notification.
The Chief Presidency Magistrate Calcutta issued a warrant under the Criminal Procedure Code for the arrest of the respondent and the warrant was forwarded by the Government of West Bengal to the Ministry of External Affairs, Government of India.
The Ministry forwarded the warrant to the High Commissioner for India, Hong Kong, who in his turn requested the Colonial Secretary, Hong Kong, for an order extraditing the respondent under the Fugitive Offenders Act 1881 (44 & 45 Vict Ch. 69).
The Central Magistrate, Hong Kong, endorsed the warrant and directed the Hong Kong police to arrest the respondent referring to the Republic of India as a British possession to which the Fugitive Offenders Act was applicable.
On the questions : (1) Whether the Chief Presidency Magistrate had no power to issue the warrant as it would have extraterrestrial operation; (2) Whether the Fugitive Offenders Act, having ceased to be part of the law of India, could be resorted to for obtaining extradition of fugitive offenders; (3) Whether the instructions of the Government of India for obtaining extradition are an invasion upon the authority of courts; and (4) Whether the , operates as a bar to the requisition made by the Ministry of External Affairs for the extradition of the ,respondent, HELD : (1) The Courts of the country which make a requisition for surrender proceed upon prima facie proof of the offence and leave it to the State to make a requisition upon the other State, in which the offender has taken refuge.
Under section 82 of the Criminal Procedure Code, when a warrant is issued by a Magistrate in India, it can be executed anywhere 321 in India and has no extra territorial operation.
By making a requisition to another State, in pursuance of such a warrant, for assistance in securing the presence of the offender, the warrant is not invested with extraterritorial operation.
If the other State requested Agrees to lend its aid to arrest the fugitive, the arrest is made by the issue of an independent warrant or endorsement or authentication of the warrant of the court which issued it.
By such endorsement or authentication the State expresses its willingness to lend its assistance in implementation of treaties or international commitments to secure the arrest of the offender.
The offender arrested pursuant to the warrant or endorsement is brought before the Court of the country to which requisition is made and that court holds enquiry to determine whether the, offender may be extradited.
[326 F327B] Courts in India have no authority to sit in judgment over the order passed by the Hong Kong Magistrate.
He acted in accor dance with the municipal law of Hong Kong and agreed to surrender the offender : his action cannot be challenged in this Court even if it is wrong.
The invalidity of the arrest in Hong Kong, if any, cannot affect the jurisdiction of Indian Courts to try the respondent if and when he is brought here.
[334] Emperor vs Vinayak Damodar Savarkar, I.L.R. , approved.
(2)But, in fact the Colonial Secretary of Hong Kong was, according 0 the law applicable in Hong Kong, competent to give effect to the warrant issued by the Chief Presidency Magistrate, Calcutta and the Central Magistrate, Hong Kong had jurisdiction under the Fugitive Offenders Act to direct that the respondent may be surrendered to India.
Whatever may he the position in India after it has become a Republic the United Kingdom and several Colonies have treated the Fugitive Offenders Act is applicable for the purpose of honouring the requisition made by the republic of India.
Merely because, for the purpose of the extradition procedure, in a statute passed before the attainment of independence by the former colonies and dependencies, certain territories continue to be referred as 'British Possessions ' the 'statute does not become inapplicable to those territories.
The expression 'British Possessions ' in the old statutes merely survives as an artificial mode of reference.
Though it is not consistent with the political realities, it does not imply political dependence of the Governments of the territories referred to.
The order of surrender passed by the Magistrate in Hong Kong was valid according to.
the law in force in Hong Kong.
[338 H; 337G] Re.
Government of India and Mubarak Ali Ahmed, , Re.
Kweshi Armah , Zacharia vs Republic of Cyprus, ; and Halsbury 's Laws of England 3rd edn.
5 article 987, p. 433, referred to.
(3) This Court, by holding in C. G. Menon 's case that since India became a Republic the Fugitive Offenders Act could not be enforced in his country, presented the Government of India with a problem which had to be resolved by devising a machinery for securing the presence of fenders who, were fugitives from justice.
The notification was issued only in the nature of advice about the procedure to be followed and was not in any manner intended as an affront to the Courts or to impose any executive will upon the courts in judicial matters.
[339 E F] In the present case, the Chief Presidency Magistrate, Calcutta, had power to issue the warrant for the arrest of the respondent because there was prima facie evidence against him.
If the warrant was to be success 322 fully executed a against the.
Respondent, who was not in India, the assistance of the executive government had to be obtained.
Therefore, the issue of the warrant and the procedure followed in transmitting it were not illegal and not even irregular.
(4)Extradition is the surrender by one State to another of a person desiredto be dealt with for crimes of which he had been accused or convicted.
Such a surrender is a political act done in pursuance of a treaty or an ad hoc arrangement, and founded upon the principle that it is in the interest of all civilised communities that criminals should not go unpunished.
While the law relating to extradition between independent States is based on treaties, whether an offender should be handed over pursuant to a requisition is determined by the domestic law of the State on which the requisition is made.
Therefore, the fact that the , could not be availed of for securing the presence of the respondent for trial in India, did not operate as a bar to the requisition made by the Ministry of External Affairs, Government of India, if they were able to puksuade the Colonial Secretary, Hong Kong, to deliver the respondent for trial in this country.
if the Colonial Secretary was willing to do so, it cannot be said that the warrant issued by the Chief Presidency Magistrate, Calcutta, for the arrest of the respondent with the aid of the requisition for securing his presence from Hong Kong in India, was illegal.
[325 H; 340 C F]
|
iminal Appeals NO. 158 and 197 of 1968.
Appeals by certificate/special leave from the judgment and order dated November 3, 1967 of the Punjab and Haryana High Court in Criminal Appeal No. 602 of 1967 and Murder Refer ence No. 45 of 1967.
J.P. Mitter, J. C. Talwar and R. L. Kohli for the, appellant (in both the appeals).
Kartar Singh Chawla and R. N. Sachthey, for the, respondent (in both the appeals).
The Judgment of the Court was delivered by Ramaswaini, J.
The appellant Piara Singh and one Nand Lal Sehgal were tried together by the Sessions Judge of Kapurthala, who by his judgment dated 1st July, 1967 convicted the appellant under section 302 I.P.C. and sentenced him to death.
The appellant was also Convicted and sentenced to 5 years ' rigorous imprisonment under section 3 of the Explosive Substances Act and to 5 years ' rigorous imprisonment under section 326 of the Indian Penal Code.
Nand Lal Sehgal was sentenced to life imprisonment under section 302 read with sections 109 and 113, I.P.C. and to 5 years ' rigorous imprisonment under section 4 of the Explosive Substances Act.
Both the convicted persons filed appeals in the.
Punjab and Haryana High Court, viz. Criminal Appeal No. 602 of 1967 and 601 of 1967.
The State of Punjab also filed a criminal revision No. 1006 1967 for enhancement.
of sentence of Nand Lal Sehgal.
By a of common judgment dated 3rd November, 1967, the High Court dismissed the appeal of the appellant and confirmed the sentence of death imposed upon him.
The High Court, however, acquitted Nand Lal Sehgal by allowing his appeal and dismissed the revision petition filed by the State of Punjab.
These are two appeals one by certificate and the other by special leave on behalf of the appellant Piara Singh against the judgment of the Punjab and Haryana High Court dated 3rd November, 1967.
The case, of the prosecution was that one Ram Sahai P.W, 19, who was the organising Secretary of Jagatjit Kapra Mills.
Mazdoor Union, Phagwara, had proceeded on hunger strike from 1st October; 1966 in front of the gate of the Jagatjit Textile Mills, Phagwara (hereinafter called the Mills) in order to compel the management to accept certain demands of that Union regarding dearness allowance, gratuity.
for re employment of the labourers who had been turns out of service and the like.
The hunger strike of, Ram Sahai was supposed to last till death or the acceptance of the 238 demands by the Mills whichever was earlier.
A tent had been fixed outside the gate of the Mills and Ram Sahai used to sit on a cot under the tent.
On 4th October, 1966, at 1.45 p.m. Ram Labhaya, Postman, P.W. 31 came there with a registered parcel addressed to Ram Sahai.
On the parcel being opened, a bomb inside it exploded, as a result of which Radhey Sham, Shadi Lal and Charanjit Lal died and P.W. 1 1 Chanan Singh, P. W. 14 Moti Lal, P.W. 16 Madhu Parshad, P.W. 17 Tara Singh, P.W. 18 Ram Dass, P.W. 20 Muni Lal and P.W. 21 Naunihal Singh received injuries.
It is alleged for the prosecution that tile parcel had been despatched by the appellant from Amritsar at the instance of Nand Lal Sehgal and that the approver Mohinder Singh had helped the appellant in preparing the parcel containing the bomb.
The first clue in connection with the crime was obtained by the police on 8th October, 1966 when at about 4.00 p.m., P.W. 25 Amrik Singh, a resident of Amritsar appeared before Sub Inspector Mohinderpal Singh.
P.W. 59 and made a statement that he had known Piara Singh before and was friendly with him, that on 3rd October, 1966, Piara Singh who was carrying a Jhola, which appeared to contain something bulky, met him and.
in response to an invitation for tea, told Amrik Singh that he was in a hurry to go for some work.
Three or four days later, Amrik Singh read in a newspaper regarding explosion of a bomb near the Textile Mills Phagwara On the 7th October, 1966, Sri Niwas, P.W. 27 who ', is a deed writer, met him and told him that Piara Singh had despatched a parcel from Amritsar.
The most important witness in the case, is Mohinder Singh, P.W. 8 who was tendered pardon under section 337 of the Code of Criminal Procedure by the District Magistrate, Kapurthala.
The evidence of approver is to the effect that he was working in the Mills since 1951 and three or four years later Piara Singh also joined service in that Mills and was working as his subordinate.
Piara Singh developed cordial relations with Nand Lal Sehgal and used to assist him in breaking up labour strikes.
One and a half months before the occurrence, Piara Singh came to the approver 's residence and told him that Sehgal wanted one Ram Singh who Was employed in the Textile Mills.
Ganga Nagar, to be killed, Piara, Singh suggested the device of sending a bomb in a parcel to the victim and when the parcel would be opened, the bomb would explode.
About 15 days before the incident, Piara Singh again came to the approver and told him that he had secured a bomb and he wanted to get prepared two wooden boxes, one smaller in size.
than the other.
The approver and Piara Singh thereafter went to the shop of Nazar Singh P.W.22 a carpenter of Phagwara, who made the box.
Later in the evening they went to of Gian Singh, P.W. 23 a carpenter of village Chachoki,which is said to be half a mile from Phagwara.
Piara Singh got prepared 239 from him six pieces of phaties of raw wood.
After it had become dark, Piara Singh brought to the approvers house these articles as also a bomb saying that he had removed the fuse of the bomb so that if it should fall, it may not explode.
On 2nd October, 1966 Piara Singh came to the approver 's house at 10 pm.
and informed him of Sehgal 's intention that the bomb should now be sent so as to explode at Ram Sahai who was the leader of the strikers at Phagwara.
Piara Singh thereafter prepared a wooden box from the six pieces ' of phaties.
The, approver described the arrange ment, for packing the bomb as follows: "Placing the fuse in the bomb after removing the pin and placing a wire in its place, we placed it in that ,box.
Then the box was closed and the lid was placed on it with Kabza and Kundi.
In that Kundi a nut was placed and a bolt was fitted in it so that the box may not open.
Then the box was also tied with strings so that the Phaties may not give way on account of the pressure of the lever.
Then from the hole, which was on one side of the box corresponding to, the wire fitted in the bomb, the wire was pulled out.
Then that wooden box was placed in the bigger box.
Piara Singh accused had brought with him a piece of Khaddar cloth and a parcel was made of the bigger box in that cloth.
The pieces of Khaddar which were spare placed in between the two boxes so that the smaller box may not move inside the bigger box.
Because of the spare pieces of cloth were not sufficient so I gave two shirts of my children to Piara Singh.
Those shirts were of Poplin of blue colour.
Piara Singh tore one shirt into pieces and placed those pieces also in between those boxes.
Before the parcel was prepared in the Khaddar cloth the bigger box was secured with nails.
" At, about 1 a.m. the approver and Piara Singh went to the house of Sehgal and explained to him how they had prepared the parcel.
Piara Singh told Sehgal that when Ram Sahai would open the parcel the bomb would explode and he would die.
made over a sheet of paper to Piara Singh on which was written the address of Ram Sahai.
Sehgal also gave Rs. 40/ to Piara Singh for expenses and instructed him that the parcel had to.
be sent through the Post Office at Amritsar.
Next day on 3rd October, 1966 Piara Singh came to the approver in the morning carrying a Jhola in which he placed the parcel containing the wooden box.
The approver took Nara Singh to the Railway Station Phagwara.
In the evening Piara Singh returned at about 6 p.m. and told the approver that he had got the parcel despatched as directed by Sehgal from Am where he a so met Amrik Singh.
Both of them then went to the house of Sehgal and 240 Piara Singh banded over the registration receipt to him saying that it should be destroyed.
At about 2 p.m. on the next day, i.e, 4th October, 1966, the approver learnt about the explosion of the bomb, The High Court considered that the statement of the approver Was sufficiently corroborated by the evidence of Nazar Singh P.W. 22, Gian Singh P.W. 23, Sardara Singh P.W. 24, Amrik Singh P.W. 25 and Sri Niwas P.S. 27 so far as the appellant was 'Concerned.
The High Court accordingly held that charges under Ss. 302 and 326, I.P.C. and section 3 of the Explosive Substances Act were established against the appellant.
As regards Nand Lal Sehgal the High Court took the view that there was no independent corroboration of the approver 's evidence which could reasonably lead to the inference that Sehgal was instrumental in the commission of the crime.
The High Court, therefore, acquitted Nand Lal Sehgal.
In support of his appeal Mr. Mitter contended, in the first place, that by reason of the acquittal of Nand Lal Sehgal the evidence given in the case concerning Nand Lal Sehgal must be totally rejected.
It was contended that the evidence of the approver so far as it concerns Nand Lal Sehgal must be eliminated.
In other words, the argument was that the effect of acquittal of Nand Lal Sehgal was to weaken if not to destroy the approver 's evidence so far as it concerns the appellant also In this connection Mr. Mitter relied upon the principle of issue estoppel and referred to the decision of the Judicial Committee in Sambasivam vs Public Prosecutor, Federation of Malaya,(1), and the decision of this Court in Pritam Singh vs State of Punjab,(2) and Manipur Administration vs Thokchom Bira Singh(").
In our opinion, there is no justification for this argument.
It is true that Nand Lal Sehgal was acquitted by the High Court which took the view that the evidence of the approver was not corroborated so far as Nand Lal Sehgal was concerned.
But there is no finding of the High Court that the approver had implicated Nand Lal.
Sehgal falsely.
The High Court considered that there was no legal corroboration of the approver 's evidence as regards Nand Lal Sehgal and in the absence of such corroboration it was not safe to upheld the conviction of Sehgal.
That is a different thing from saying that the Court found that the approver 's evidence regarding the participation of Nand Lal Sehgal is false.
In any event, the principle of issue estoppel has no application to the present case.
It should be stated that the principle ' of issue estoppel is different from the principle of double jeopardy or autre fois acquit as embodied in section 403 of the Criminal Procedure Code.
The prin (1), [1950] A.C.458.
(2) A (3) ; 241 ciple of issue estoppel is a different principle, viz. where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accuses is tried subsequently even for a different offence which might be permitted by the terms of section 403(2), Cr.
P.C. Speaking on the principle of estoppel Dixon, J. said in King vs Wilkes(1) "Whilst there is not a great deal of authority upon the subject, it appears to me that there is nothing wrong in the view that there is an issue estoppel, it it appears by record of itself of as explained by proper evidence, that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in view on a second criminal trial of the same.
prisoner.
that seems to be implied in the language used by Wright, J. in R. vs Ollis which in effect I have adopted in the foregoing statement.
There must be a prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner.
The allegation of the Crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding.
But if such a condition of affairs arises I see no reason why the ordinary rules of issue estoppel should not apply.
Such rules are not to be confused with those of res judicata, which in criminal proceedings are expressed in the pleas of autre fois acquit and autre fois convict.
They are pleas which are concerned with.
the judicial determination of an alleged criminal liability and in the case of conviction with the substitution of a new liability.
Issue estoppel is concerned.
with the judicial establishment of a proposition of law or fact between parties.
It depends upon.
well known doctrines which control the reltigation of issues which are settled by prior litigation.
" In a subsequent case Marz vs The Queen(2), Dixon, C.J. stated as follows : "The law which gives effect to issue estoppels is not concerned with the correctness or incorrectness of the finding Which amounts to an estoppel still less with the processes of reasoning by which the finding was reached in fact. .
It is enough that an issue or issues (1) ; a, pp. 518 519.
(2) ; 242 have been directly raised and found.
Once that is I done, then, so long as the finding stands, if there by any subsequent litigation between the same parties, no allegations legally, inconsistent with the finding may be made by one of them against the other, Res judicate pro veritate accipitur.
And . this applies in pleas of the Crown.
" Again in Brown vs Robinson(1) Herron and Maguire, JJ. said "Before issue estoppel can succeed in a case such as this there must be prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner .
It depends upon an issue or issues having been distinctly raised and found in the former proceeding".
The principle of issue estoppel has received the approval of this Court in Pritam Singh vs State of Punjab (2) and Manipur Administration vs Thokchom Bira Singh (3) and several later decisions.
But the principle cannot be invoked in the present case because the parties are different and the decision upon any issue as between State and Nand Lal Sehgal in the same litigation cannot operate as binding upon the State with regard to present ' appellant.
For issue estoppel to arise there must have been distinctly raised and inevitably decided the same issue in the earlier proceedings between the same parties '. 'In our opinion, mr. Mitter is unable to make good his argument on this aspect of the case.
It was then contended on behalf of the appellant that there was no corroboration of the approver 's evidence so far as he was concerned.
An accomplice is undoubtedly a competent witness under the Indian Evidence, Act.
There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious taint in his evidence and Courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent, evidence.
It would not, however, be right to expect that such independent corroboration should cover the whole of the prosecution case or even all the material particulars of the prosecution case.
If such a view is adopted it will render the evidence of the accomplice wholy superfluous.
On the other hand, it will not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental, details because, in such, a case, corroboration does not afford the necessary assurance that the (1) [1960] S.R.(N.S.W.)297,301.
(2) A.I.R. 1956 S.C. 415.
(3) [1964]7 S.C.R. 123.
243 main story disclosed by the approver can be, reasonably and safely accepted as true '.
It is well settled that the appreciation of approver 's ',evidence has to satisfy a double test.
His evidence must show that he is reliable witness and, that is a test which is common to all the witnesses.
If this test is satisfied the second test, which still remain to be applied is that the approver 's ' evidence must receive sufficient corroboration.
(See Sarwan Singh vs State, of Punjab) (1).
In the present case the High Court has rightly applied this, principle and reached the conclusion that the approver 's evidence was materially corroborated so far as the appellant was concerned.
In the first place, the approver, said that while going from his house when he fled from Phagwara, he had thrown the remaining pieces of the shirt in a cluster of sarkandas.
As a result of search A.S.I. Pritam Singh recovered torn pieces of cloth Exs.
P.9/ 11 to P. 9/ 3 from a bush about 150 yards, from the Mill.
The testimony of the expert Mr. Longia P.W. 7 shows that Exs.
P. 9/1 to P. 9/3 were parts of the same cloth as pieces Exs.
P. 10/1 to P. 10/3 which were used for Dacking the bomb between the inner and the outer boxes.
If the approver was not a participant to the packing of the hand grenade, he could not possibly be in possession of the pieces.
of cloth Exs.
P. 9/1 to P. 9/3.
In the second place, the evidence of Nazar Singh, P.W. 22 indicates that he made the outer box for Piara Singh and was paid Re. 1/ by him.
Gian Singh, P.W. 23 also said that he had been asked by Piara Singh to make Phaties about 4" in length for the preparation of the box.
Amrik Singh, P.W. 23 has also given corroborative evidence.
Piara Singh had met him at Amritsar on 3rd October 1966 and told him that Piara Singh had despatched the parcel.
The testimony of Sri Niwas, P.W. 27 is crucial in this case.
He has corroborated the statement of the approver.
in important particulars.
The evidence of Sri Niwas was criticised on behalf of the appellantas Sri Niwas made his statement to the police after some delay viz., on the 17th October, 1966.
On this point Sub Inspector Mohinderpal Singh explained that earlier on 9th October, 1966, he tried to contact Sri Niwas, but the latter was not found in his seat in Phagwara Chowk.
He made another effort to trace him on 13th October, 1966, but it was equally fruitless.
It is true that the Sub Inspector could have made more strenuous efforts to trace out Sri Niwas, but he was going to other places also in connection with the investigation.
The High Court has held that merely on account of this delay the statement of Sri Niwas could not be rejected.
On the contrary the High Court has found the evidence of Sri Niwas to be true and reliable.
It is manifest that there is sufficient corroboration of the evidence of the approver so far as the appellant is concerned and the argument of Mr. Mitter must be rejected on this aspect of the case.
(1) ; 244 Lastly, it was contended that the hand grenade could not be arranged in the manner stated by the approver, but that the hand grenade was intact and when the parcel was opened, some one may have caused it to explode.
In this connection Mr. Mitter referred to the evidence of expert Mr. Murti P.W. 6.
According to Mohinder Singh, only one hole was made in the inner box through which the wire fitted in the grenade in place of the safety pin was taken out.
The argument of the appellant was that,two holes should have been made in the inner box, but according to the approver only one hole Was made.
It was also said that according to the report of the expert, bent steel wire was found in the first parcel which was sent to him.
It was argued that the report of the expert was not consistent with the evidence of the approver who said that the safety pin of the wire had been removed.
It was suggested that Mohinder Singh would have probably thrown the safety pin and not kept it in the box.
The High Court has examined in detail the argument of the appellant on this point and reached the conclusion that the statement of the approver with regard to, the packing, of the hand grenade should be accepted as 'true.
The question involved is one of appreciation of evidence and not a question of law.
In any event, we see no sufficient reason for taking a view different from that of the High Court in this matter.
For, these reasons we hold that there is no merit in these appeals which are accordingly dismissed.
Y.P. Appeals dismissed.
| IN-Abs | The appellant and S were, charged for an offence under section 302 I.P.C: and under the Explosive Substances Act.
The prosecution relied upon the evidence of the approver.
The approver 's statement was corroborated, (a) by the recovery of a piece of cloth which was part of the same cloth used in the clime, (b) by the evidence of that the box was made for the appellant, and (c) by the evidence regarding despatch of the parcel by the appellant.
The Sessions Judge convicted the appellant and S, against which both appealed.
The conviction of the appellant was upheld by the High Court, as it considered that the statement of the approver was corroborated by the evidence of other witnesses so far the,appellant was concerned.
But the High Court acquitted S being of the view that there was no independent corroboration of the approver 's evidence which lead to the inference that S was instrumental in the commission of the crime.
In appeal to this Court, the appellant contended that (i) the affect of acquittal of S was to, weaken, if not to destroy, the approver 's evidence so far as it concerned the appellant, relying on the principles of issue estoppel; and (ii) there was no corroboration of the approver 's evidence so far as the appellant was concerned.
Dismissing the appeal, HELD : (i) For the principle of issue estoppel to arise, there must have been distinctly raised and inevitably decided the same issue in the earlier proceedings between the same parties.
But the principle cannot be invoked in the present case because the parties are different and the decision upon any issue as between State and S, in the same litigation cannot operate as binding upon the 'State with regard to the present appellant.
[242 D E] Pritam Singh vs State of Punjab, A.I.R. 1956 S.C. 415.
and Manipur Administration vs Thokchom Bira Singh, ; , followed.
Sambasivam vs Public Prosecutor, Federation of Malaya, , King vs Wilkes, ; at pp.
518 519, Marz vs The Queen, ; , Again in Brown v, Robinson, , 301, applied.
(ii)The application of approver 's evidence has to satisfy a double test.
His evidence must show that he is a reliable witness and that is a test which is common to all the witnesses.
If this test is satisfied the second test which still remains to be applied is that the approver 's evidence must receive sufficient corroboration.
It would not however, be right to expect that such independent corroboration should cover the whole of the prosecution case.
In the present case, the High Court had rightly applied this Principle and reached the conclusion that the approver 's evidence was materially corroborated so far as the appellant was concerned.
[243 A C] 237 Sarwan Singh vs State of Punjab, ; , followed.
|
Appeal No. 873 of 1966.
Appeal by special leave from the judgment and order dated March 26, 1965 of the Calcutta High Court in I.T. Ref.
No. 107 of 1960.
Sukumr Mitra and D. N. Mukherjee, for the appellant.
Niren De, Attorney General, section C. Manchanda and R. N. Sachthey, for the respondent.
It was stipulated internal that the lessee could assign the lease with the consent of the lessor.
He could after the structures on the premises so as, to convert them into a cinema if necessary.
After expending Rs. 35,000/ on some alterations to the premises the assessee felt the necessity of having some more money in order to convert the building into a cinema.
He entered into a lease on February 23, 1946 with three persons, namely, Nani.
Gopal Dutt, Makhan Lal Dutt and Shiv Kumar Khanna.
By this lease, the building which was called 'Khanna Cinema house ' at 157, Upper Circular Road, Calcutta was demised to the lessees for a period of 30 years.
The lessees agreed to pay under the indenture of lease Rs. 55 200/ to the lessor towards the cost of erecting the said cinema.
The rent which was agreed to be paid was Rs. 2,100/ per month.
It was payable with effect from June 1, 1946.
It is necessary to set out the relevant portion of the lease "And whereas the lessor obtained sanction from the Corporation of Calcutta and other necessary authorities and commenced the erection of a Cinema House the estimated total cost of which is about Rs. 1,00,000/(Rupees one lac).
And whereas the lessees agreed to pay to the lessor a sum of Rs. 55,200/ (Rupees Fifty five thousand and two hundred) towards the cost of the erection of the said cinema house according to their suggestion and other charges and expenses 464 incurred therefore by the lessor.
And whereas the construction of the said Cinema House is almost complete and is expected to be completed by the end of March, One Thousand Nine Hundred and Forty six and whereas the lessee have called upon the lessor to grant to them a lease of the said Cinema House which the lessor has agreed to do upon payment by the lessees of the said agreed sum of Rs. 55,2,00/ (Rupees fifty five thousand and two hundred), towards the costs of building the said Cinema House and whereas the lessees have paid to the lessor the said sum of Rs. 55,200 (Rupees Fifty five thousand and two hundred) for which separate receipt has been granted by the lessor." After the Cinema House had been completed the lessees entered into possession and started exhibiting shows there.
For the assessment year 1947 48 the corresponding account ing year being the financial year ending March 31, 1947, the Income tax Officer sought to treat the sum of Rs. 55,200/ received by the assessee as his income.
The contention of the assessee was that the aforesaid amount should be treated as capital receipt.
Alternatively if it was to be treated as salami (premium) and was to be taxed as a revenue receipt it should be distributed evenly over the entire term of the lease i.e. 30 years.
The Income tax Officer did not 'accept either of the contentions of the assessee.
It was held by him that the lease was pot permanent but was temporary and that the salami had been fixed as an advance payment of rent and not as payment for transfer of the lease hold interest.
According to him the system of accountancy for this source of income being on, cash basis the whole of the receipt of salami was liable to be taxed as one year 's income in the year of the receipt.
The assessee appealed to the Appellate Assistant Commissioner who agreed with the Income tax Officer.
In his view the lessees were under no legal obligation to contribute towards the cost of construction of the cinema house and the sum of Rs. 55,200/ constituted payment of advance rent.
The assessee appealed to the Tribunal which held that the receipt of the aforesaid amount was in the nature of advance payment of rent since the assessee was short of funds at the time the lease was entered into and that the lease was for a short term and that the amount in question represented consolidated rent for thirty years paid in advance.
The High Court answered the question which was refer red in the affirmative and against the assessee.
According to the High Court the only object of the payment of the sum of Rs. 55,200 could be to advance the cost of construction or to meet the existing liabi lities of the assessee for completing the cinema house.
It was observed: 465 "Further it should be noted that the period of lease is only for 30 years and the assessee 's investment on the Cinema is about Rs. 60,000/ , Rs. 35,000/ being the costs of construction and Rs. 25,000/ being costs of machinery with a liability to pay Rs. 750/ rent to the owner of the plot.
As a result of this lease he has got a rent of Rs. 2,100/ for a term of 30 years.
Thus there is no question of payment of any salami as no further inducement for grant of the lease was necessary.
It is obvious that if the cost of construction of the Cinema House would have been met in its entirely by the assessee and thereafter if the assessee would have granted the lease to the lessee, the rent would certainly have been much higher.
Thus, the said sum of Rs. 55,200/ in the absence of a different recital can only be deemed to have been paid as an advance rent in respect of the said Cinema House.
" On behalf of the appellant assessee it has been urged that he sum of Rs. 55,200/ was paid to the lessor in lump for completing the cinema house without which the lessee could not have used the building for the purpose of exhibiting cinematograph films.
According to the recitals in the deed which must be given due effect the lessees agreed to give this amount towards the cost ,if erection of the cinema house according to their suggestion and 'or defraying other charges and expenses.
The payment of rent was expressly stipulated at the rate of Rs. 2,100/ per month and there was no indication whatsoever that any different or higher rate of rent was agreed to.
It is further submitted that there was no material or evidence on which it could be found that the cinema would have fetched, any higher rent, the admitted cost of construction being about Rs. 1,00,000/ .
Alternatively the sum of Rs. 55,200/ could be regarded only as payment of salami (premium) and could not be treated as revenue receipt, the payment being of a non recurring nature.
It seems to us that the departmental authorities as well as the High Court were in error in treating the amount of Rs. 55,200/as advance payment of rent.
The lease by which the cinema house was demised did not contain any condition or stipulation from which it could be inferred that the aforesaid amount had been paid by way of advance rent.
The transaction embodied in the indenture of lease was clearly business like.
The lessees wanted the building for running it as a cinema house and the lessor agreed to give it to them but apparently represented that he did not have enough money to complete it in accordance with the suggestions and requirement of the lessees.
The lessees agreed to pay him the aforesaid amount by way of a lump sum without 466 making any provision for its adjustment towards the rent or repayment by the lessor.
The essential question, however, is whether on the terms of the lease and in the absence of any other material or evidence could it be hold that the sum of Rs. 55,200/was paid by way of advance rental ? The view which has been expressed by the Tribunal as also the High Court that the lease was for a comparatively short period of thirty years and that the aforesaid amount had to be spread over that period by way of rent in 'addition to a rental of Rs. 2,100/ per month cannot be sustained as no foundation was laid for it by any cogent evidence The departmental authorities can well be said to have based their decision on mere conjectures as there was nothing whatsoever to substantiate the suggestion that the real rental value of the cinema house was in the region of Rs., 2,250/ per month and not Rs, 2,100/ which was the agreed rent.
It can equally well be said that the payment of the amount in question to the appellant was in the nature of a premium (salami).
In the words of Lord Greene M. R. in Henriksen V. Grafton Hotel Ltd.(") "A payment of this character appears to me to fall into the same class as the payment of a premium of a lease, which is admittedly not deductible.
In the case of such, a premium it is nothing to the point to say that the parties if they had chosen, might have suppressed the premium and made a corresponding increase in the rent.
No doubt they might have.
done so, but they did not do so in fact.
" Fazl Ali J.,(as he then was in Commissioner of Income tax, Bihar & Orissa vs Viswesh war.
Singh(2) referred to the distinction between a single payment made at the time of the settlement of the demised property and recurring payments made during the period of its enjoyment by the lessee .
This distinction, according to the learned Judge, is clearly recognised in section 105 of the Transfer of Property Act which defines both premium and rent.
This is what was observed at page 545 "It is obvious that if the premium represents the whole or part of the price of the land it cannot be income.
As pointed out by Sir George Lowndes in the Commissioner of Income tax, Bengal vs Messrs. Shaw Wallace & Company,: income in the Indian Income tax Act 'connotes a periodical monetary return, coming in 'with some sort of regularity or expected regularity from definite sources.
The premium of salami which is paid once for.
all 'and is not recurring payment, hardly satisfies this test.
I concede that in some cases ' where the rent is ridiculously low and the premium abnormally high, it may be possible to argue that the premium includes advance rent. . (1) 24 T. 453.
(2) 467 It has not beep even remotely suggested in the present case that the rent of Rs. 2100 per month was ridiculously low as compared with the, amount of Rs. 55,200 paid in lump sum.
It is true that the question whether premium is a capital, or a revenue receipt cannot be decided as a pure question of law.
Its decision necessarily depends upon the facts and circumstances of each case.
It would not, however, be wrong to say that prima facie premium or salami is not income and it would be for the income tax authorities to show that facts exist which would make it a revenue receipt.
There is another factor which is of substantial importance in the present case.
According to the terms of the lease the payment of rent was to commence not from the date of the lease which was February 23, 1946, but with effect from June 1, 1946.
It is also not disputed that the lessees entered into possession after the cinema house had been completed which was subsequent to the date of the lease.
these facts coupled with the payment of a lump sum which was of a non recurring nature showed that the amount in question had all the characteristics of a capital payment and was not revenue.
This would be.
in accord with the principles laid down by this Court in Member for the Board of Agricultural Income tax vs Sindhurani Chaudhu.
rani & Others(1) which was a case of settlement of agricultural land but in which the principles governing the payment of premium or salami have been fully discussed.
For the reasons given above we hold that the question which was referred to the High Court ought to have been answered in the negative and in favour of the assessee.
The appeal is accordingly allowed.
with costs in this Court and the High Court and the answer returned by the High Court is hereby discharged.
G.C. Appeal allowed.
| IN-Abs | On July 19, 1945 the assessee took an lease certain premises in Calcutta on a monthly rental.
He made some alterations in the premises so as to convert it into a cinema house but found himself short of money.
As permitted by the terms of his lease he leased the premises on February 23, 1946 to certain parties.
According to the terms of the indenture the lessees agreed to pay him Rs. 55,2GO towards construction of the cinema house which would on completion be let to them at a monthly rental of Rs. 2,100 payable with effect from June 1, 1946.
The Income tax authorities treated the sum of Rs. 55,200 thus received as taxable ;and the High Court on reference held the same.
in appeal by the assessee this Court had to consider whether the receipt was taxable.
HELD : (i) The departmental authorities as well as the High Court were in error in treating the amount of Rs. 55,200 as advance payment of rent.
The lease by which the cinema house was demised did not contain any condition or stipulation from which it could be inferred that the aforesaid amount had been paid by way of advance rent.
The transaction embodied in the indenture of lease was clearly business like.
The lessees wanted the building for running it as a cinema house and the lessor agreed to give it to them but apparently represented that he did not have enough money to complete it in accordance with the suggestions and requirement of the lessees.
The lessees agreed to pay him the aforesaid amount by way of a lump sum without making any provision for its adjustment towards the rent or repayment by the lessor.
On the terms of the lease and in the absence of any other material or evidence it could not be held that the sum of Rs. 55,200 was paid by way of advance rental.[465 G 466 B] (ii) The question whether premium is a capital or a revenue receipt cannot be decided as a pure question of law.
Its decision necessarily depends upon the facts and circumstances of each case.
It would not however be wrong to say that prima facie premium or salami is not income and it would be for the income tax authorities to show that facts exist which would make it a revenue receipt.
[467 B] According to the terms of the lease, in the present case ' the payment of rent was to commence not from the date of the lease which was February 23, 1946 but with effect from June 1, 1946.
The lessees entered into possession after the cinema house had been completed which was subsequent to the date of the lease.
These facts coupled with the payment of a lump sum which was of a non recurring nature showed that the amount in question had all the characteristics of a capital payment and was not revenue.
[467 C D] Henriksen vs Grafton Hotel Ltd., , Commissioner of Income tax, Bihar & Orissa vs Visweshwar, [1939] 7 I.T.R. 536 and 463 Member for the Board of Agricultural Income tax vs Sindhurani Chaudhurani & Ors., , applied.
|
Appeal No. 834 of 1966.
Appeal by special leave from the judgment and order dated March 2, 1965 of the Allahabad High Court in Second Appeal No. 1271 of 1962.
C. P. Agarwala and O. P. Rana, for the appellants.
E. C. Agrawala, section R. Agrawala and P. C. Agrawala, for the, respondent.
The Judgment of the Court was delivered by Sikri, J.
This appeal by special leave is directed against the judgment of the High Court of Judicature at Allahabad dismissing the appeal filed by the State of Uttar Pradesh and Others, appellants before us, against the judgment and decree passed by the Additional District Judge, Varanasi, setting aside the judgment and decree passed by the Trial Court and decreeing the plaintiffs suit.
The plaintiff, ' Harish Chandra Singh, had brought a suit against the State of Uttar Pradesh and some Police Officers for a declaration that the order of removal of the plaintiff from the Police Service was void, illegal, ineffective and inoperative, and that the plaintiff still continued to be in Uttar Pradesh Police Service as Station Officer in Charge of a Police Station and that he was entitled to his full pay and emoluments with increments as they fell due.
He had also prayed for recovery of Rs. 7,453 as full emoluments and s alary from June 27, 1956 up to the date of the suit.
In order to appreciate the points raised before us it is necessary to set out the relevant facts.
On December 13, 1942, the plaintiff was appointed as Platoon Commander in the Civil Guards.
In 1945 there was a notification regarding the absorption of civil guards in the Police and on November 6, 1945, the plaintiff was selected by the Deputy Inspector General, Police Headquarters, Allahabad, for admission to the 1946 Session of the Police Training College, Moradabad.
On January 8, 1947, the result of the Civil Police Cadets for 1946 Session was announced, and in the extract of the Police Gazette it is stated in the last column 394 under the heading 'where posted ', against the name of the plaintiff, 'Azamgarh '.
This result sheet was issued by order of the Inspector General of Police, United Provinces.
We have mentioned these facts because the learned counsel for the plaintiff contends that the plaintiff was in fact appointed by the Inspector General of Police and not by the Deputy Inspector General of Police.
Following three charges were framed against the plaintiff under section 7 of the on February, 6, 1956: "1.
A case Cr.
No. 92 u/s 324 IPC was registered at P. section Mariahun which on receipt of the injury report on 6 11 55 at the P. section was found to fall within the purview of section 326 IPC and yet this S.I. did not in vestigate the case in accordance with law and failed even ,,to comply with the orders of the Dy.
S.P. (then acting as S.P.) given by him on 19 11 55. 2.
On 21 11 55 a written report of burglary was made over to him by one Lalji Singh r/o Jamua who came to the P.S. alongwith Ramdeo and Ganesh but he failed to record that report and register a case in contravention of the provision of paragraph 97 of the Police Re gulations.
A case Cr.
No. 101 u/s 457/380 PC was, 'however, registered by him on 5 12 55 'although he had been to the scene of occurrence on 27 11 55 and had conducted some investigation on that date.
He did not prepare any case diary for the investigation carried out ,on 27 11 55 and even after the registration of the case on 5 12 55 he deferred proper investigation until 22 12 55.
A report of burglary on the night of 17/18 10 55 ' was handed over to this S.I. personally by complainant Raj Bahadur Singh but no action was taken on that report nor any entry was made in the General Diary to this effect.
On receipt of a complaint the C.I. was asked to enquire into the matter who directed him to register a case and accordingly a case was registered on Cr. No. 100 section 457/380 I.P.C. on 2 12 55.
Even after the registration of this case this S.I. deferred proper investigation until 17 12 55.
" The Superintendent of Police gave a report on February 27, 1956, but the Inspector General ordered a fresh enquiry on March 6, 1956; On April 30, 1956, the Superintendent of Police gave his report.
He held the plaintiff guilty of the charges framed against him.
Towards the end of the report, the Superintendent of Police observed: 395 "S.I. Harish Chandra Singh is an enlistment of 29 1 47 when he seems to have started his service satisfactorily.
In 1950 he was placed under suspension and was dismissed from service from 2.1 6 1951 while he was in district Azamgarh.
On subsequent consideration he was reinstated and he reported for service in January 1952.
He was, however, reduced to the lowest scale of a S.I. for a period of three years.
His character roll indicates that he was again placed under suspension from 20 8 54 but reinstated on 30 9 54.
Soon after he was again placed under suspension with effect from 4 11 54 and was proceeded against u/s 7 of the as a result of which he was reduced from Rs. 162 p.m. to Rs. 144 p.m. for a period of one year from 8 2 55 and reinstated in service.
Subsequently he was awarded a misconduct entry for a non registration of dacoity case while posted in district Basti.
On the other hand he has also earned some rewards and is at present posted as II Officer P.S. Mirganj.
This record of service does not appear encouraging at all.
In respect of the various items of charge u/s 7 of the framed against him he has been.
held guilty and considering the seriousness of these charges I do not think any leniency is called for in his favour.
He has clearly disobeyed the lawful orders of his superior officers and has failed to comply with the mandatory provisions of law and Police Regulations.
A S.I. acting in this manner is not in my opinion fit to discharge his responsibilities as a police officer.
Since, however, no dishonesty has been attributed to him in the various items of the charge framed against him, I think it will meet the ends of justice if he is only removed from police service.
Accordingly finding him guilty u/s 7 of the I propose that he may be removed from the Police Service and submit this finding to the D.I.G. Eastern Range in accordance with paragraph 490 sub paragraph 8(a) of the Police Regulations.
" On May 16, 1956, a show cause notice was served on the plaintiff and a copy of the findings of the Superintendent of Police was enclosed .
In the show cause notice it was stated that the plaintiff could send his written representation within 10 days of the receipt of the show cause notice, and after checking his explanation he would be called to appear before the Deputy Inspector General of Police, E. Range.
He appeared before the Deputy Inspector General of Police and answered various questions put by the D.T.G.
Towards the end he stated that he had no complaint with regard to the departmental proceedings against him.
396 The Deputy Inspector General agreed with the findings of the Superintendent of Police, and at the end of his order he observed: " S.I. Sri Harish Chandra Singh was enlisted on 29 1 1947.
In 1950 he was placed under suspension and he was dismissed from service from 21 6 51.
He was, however, later reinstated and joined his duty in January 1952.
He, was also reduced to lowest Scale of S.I.s,for a period of 3 years vide orders (torn) 'El dated 25 4 51.
In 1955 he was dealt with u/s 7 of the for having contracted illicit connection with Shrimati Mina Devi who was ultimately recovered from (torn) the C.I. and he was reduced for 2 years.
He (torn) entry in 1955 for having failed to (torn) of dacoity.
Against this black record, the (torn) 15 rewards and commendations.
The party is undisciplined and unreliable and he does not deserve (torn) in the police service.
The charges proved against him (torn) very serious and there is no room for me to show him any (torn) in the award of punishment.
Agreeing with the proposal of the S.I., I order that S.I. Harish Chandra Singh be removed from service with effect from the date that this order is communicated to him.
" The plaintiff then filed an appeal to the Inspector General Of Police, who rejected the appeal, and after.
taking into consideration his previous record confirmed the order of removal.
He observed : "In fact the D.I.G. has taken a lenient view in (torn) removing him from service especially in view of his past (torn)." The High Court held that no opportunity was given to the plaintiff to offer any explanation on the question of his past record which was taken into consideration by the Deputy Inspector general of Police in arriving at his decision to remove the plaintiff from service.
The High Court relied on the following passage from the judgment of this Court in State of Mysore vs K. Manche Gowda (1) : "We, therefore, hold that it is incumbent upon the authority to give the Government servant at the second stage reasonable opportunity to show cause I against the proposed punishment and if the proposed punishment is also based on his previous punishment or his previous bad record, this should be included in the second notice so that he may be able to give an explanation." (1) ; , 548. 397 The learned counsel for the State,.
contends that on the facts of this case it is clear that, the Plaintiff 'had notice that his record Would be taken into considerations because the Superintendent of Police had mentioned it towards the end of his order, a copy of which was supplied to the plaintiff.
In the alternative he contends that if the record is taken into consideration for the purpose of imposing a lesser punishment and not for the purpose of in creasing the quantum or nature of punishment, then it is not necessary that it should be stated in the show cause notice that his past record would be taken into consideration, It seems to us that the learned counsel is right on both the points.
The concluding para of the report of the Superintendent of Police, which we have set out above, clearly gave an indication to the plaintiff that his record would be considered by the Deputy Inspector General of Police and we are unable to appreciate what more, notice, was required.
There is also force in the second point urged by the learned counsel.
In State of Mysore vs K. Manche Gowda(1) the facts were that the Government servant was misled by the show cause notice issued by the Government, and but for the previous record of the Government servant them Government might not have imposed the penalty of dismissal on him.
This is borne Out by the following observations of Subba Rao, J., as, he then was: "In the present case the second show cause notice does not mention that the Government intended to take his previous punishments into consideration in proposing to dismiss him from service.
On the contrary, the said notice put him, on the wrong scent, for it told him that it was proposed to dismiss him from service as the charges proved against him were grave.
, But, a comparison of Paragraphs 3 and 4 of the order of dismissal shows that but for the previous record of the,Government servant, the Government might not have imposed the penalty of dismissal on him and might have accepted the recommendations of, the Enquiry officer and, the public .
Service Commission.
This order, therefore indicates that the show cause notice did not give the only reason which influenced the Government to dismiss the respondent from service." (P. 549) We may mention that on the charges against the plaintiff and as observed by the Inspector General of Police, the plaintiff had been dealt with leniently.
The learned counsel for the plaintiff, in reply urges before us that there has been breach of article 31 1 (1) of the Constitution because although the plaintiff was appointed by the Inspector Gene. (1) [1964]4 section C.R. 540, 548.
C.I./69 7 398 ral of Police he had been removed by the Deputy Inspector General., Range E.
The learned Additional District Judge, after examine the evidence and para 406 of the Police Regulations, came to the conclusion that the plaintiff had been appointed by the Deputy Inspector General of Police.
This is a finding.
of fact and binding on us.
But apart from that the only document relied ,on by the learned counsel for the plaintiff is the result sheet dated January 8, 1947.
This has no relevance to the question of his appointment as Sub Inspector.
We must, therefore, overrule this contention.
The last point urged by the learned counsel for the plaintiff is that the plaintiff should have been tried under section 29 of the before he was charged under section 7.
Sections 7 and 29 of the read thus: "7.
Subject to the provisions of article 311 of the Constitution, and to such rules as the State Government may from time to time make under this Act, the Inspector General, Deputy Inspector General, Assistant Inspectors General and District Superintendents of Police may at any time dismiss, suspended or reduce any police Officer of the subordinate ranks whom they shall think remiss or negligent in the discharge of his duty, or unfit for the same, or may award any one or more of the following punishments to any police officer of the subordinate ranks who shall discharge his duty in a careless or negligent manner, or who by any act of his own shall render himself unfit for the discharge thereof, namely: (a) fine to any amount not exceeding one month 's pay.
(b) confinement to quarters for a term not exceeding fifteen days with or without punishment drill, extra guard, fatigue or other duty; (c) deprivation of good conduct pay; (d) removal from any office of distinction or special emoluments.
section 29.
Every police officer,who shall be guilty of any violation of duty or wilful breach or neglect of any rule or regulation or lawful order made by competent authority, or who shall withdraw from the duties of his office without permission, or without having given previous notice for the period of two months or who, being absent on leave, shall fail, without reasonable cause,, to report himself for duty on the expiration of such leave, or who shall engage without authority in any employment ,other than his 'police duty, or who shall be guilty of 399 cowardice, or who shall offer any unwarrantable personal violence to any person in his custody, shall be liable on conviction before a Magistrate to a penalty not exceeding three months ' pay, or to imprisonment, with or without hard labour, for a period not exceeding three months, or to both.
" We are unable to appreciate why it is necessary that a police officer should be prosecuted under section 29 before departmental, proceedings can be taken under section 7 of the .
It may be that a police officer is also liable to be prosecuted under section 29, but it is not necessary that in every case which falls within section 7, the police officer should first be prosecuted under section 29 before he can be proceeded against under section 7.
Section 7 deals with dis ciplinary proceedings while section 29 makes certain breaches criminal offences.
Section 29 does not in any way limit the operation of section 7.
In the result the appeal is allowed, judgments and decrees of the High Court and the Additional District Judge set aside and the suit dismissed with costs throughout.
Y.P. Appeal allowed.
| IN-Abs | The respondent, was selected by the Deputy Inspector General of Police for admission to the Police Training College, and the result declaring him successful was issued by the order of the Inspector General of Police, and his appointment announced in the police Gazette.
While the respondent was serving as a Sub Inspector of Police, charges were framed against him, under section 7 of The .
The Superintendent of Police gave a report mentioning his past record, and recommended his removal from service.
Notice to show cause, enclosing the findings of the Superintendent of Police was served on the respondent.
The Deputy Inspector General, hold the enquiry, and agreed with the findings of the Superintendent of Police.
The respondent filed an appeal to the Inspector,General of Police, which was rejected.
In their order, both the Deputy Inspector General and Inspector General, took into consideration the past record of the respondent.
The respondent filed a suit for a declaration that his removal was illegal and ineffective.
The trial court dismissed the suit, but the High Court decreed the suit holding that no opportunity was given to the respondent to explain his past record which was taken into consideration.
in appeal to this Court, the State contended that the respondent had notice that his past record would be taken into consideration, and alternatively, if the past record was taken into consideration for imposing lesser penalty, it was not necessary to mention in the show cause notice that the past record would be considered.
The respondent contended that there has been breach of article 311(1) of the Constitution as he was appointed by the Inspector General of Police and removed by the Deputy Inspector General of Police and that he should have been tried under section 29 of the , before he was charged under section 7.
HELD : The suit must be dismissed.
(i) The respondent had notice that his past record would be taken into consideration because the Superintendent of Police had mentioned it 'in his, order, a copy of which was supplied to him.
Further, on the charges against the respondent, he had been dealt with leniently and if the record was taken into consideration for the purpose of imposing a lesser punishment and not for the purpose of increasing the quantum or nature of punishment, then it was not necessary that it should be stated in the show cause notice that his past 'record would be taken into consideration.
[397A; G H] State of Mysore vs K. Manche Gowda, ; , 548, referred to.
(ii) The first appellate court 's conclusion that the respondent had been appointed by the Deputy Inspector General of Police, was a finding of fact and was binding on this Court.
But apart from that the only document relied on by the respondent was the result sheet declaring him 393 successful after training and this had no relevance to his appointment as.
Sub Inspector of Police.
[398 A G] (iii) A Police Officer may also be liable to be prosecuted under section 29 of the but it is not necessary that in every case which falls within section 7 the Police Officer should first be prosecuted under section 29 before he can be proceeded under under section 7.
Section 7 deals with disciplinary Proceedings makes certain breaches criminal offences.
Section 29 does not in any way limit the operation of section 7.
[399 C]
|
Appeal No. 979 of 1968.
Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated December 5, 1967 of the Gujarat High Court in Election Petition No. 3 of 1967.
section T. Desai, A. K. Verma, A. L. Barot, and J. B. Dadachanji, for the appellant.
Purshottamdas Trikamdas and I. N. Shroff, for respondent No. 1.
403 The Judgment of Sum and BACHAwAT, JJ. was delivered by SIKRI, J. HEGDE, J. delivered a separate Opinion.
Sikri, J.
This appeal under section 116 A of the Representation of the People Act, 1951, is directed against the Judgment and order of the High Court of Gujarat in Election Petition No. 3 of 1967, setting aside the election of Kanti Prasad Jayshankar Yagnik, appellant before us, to the Gujarat State Assembly from Mehsana State Assembly Constituency under section 123(2), section 123(3) and section 100(1)(b) of the Representation of the People Act, 1951hereinafter referred to as the Act.
The High Court held that certain speeches made by Shambhu Maharaj, with the consent of the appellant, amounted to 'corrupt practices ' within the meaning of sections 123(2) and 123(3) of the Act.
Since we are in agreement with some of the conclusions arrived at by the High Court it is not necessary to deal I with all the speeches made by Shambhu Maharaj, but only with the speeches which the High Court held to amount to 'corrupt practices ' within the meaning of sections 123 (2) and 123 (3).
Before we set out the impugned passages from the speeches we may give a few preliminary facts.
The poll for the election was taken on February 21, 1967, and the result of the election declared on February 22, 1967.
Purshottamdass Ranchoddas Patel, the petitioner in the High Court and respondent before us, secured 16,159 votes whereas the appellant_secured 23,055 votes.
The other candidates, who were respondents to the petition secured 720 votes, 1,017 votes and 454 votes, respectively.
The petition out of the which this.
,appeal arises was filed on April 5, 1967, and the petitioner prayed for the relief that the election of the appellant be declared void and further prayed that he be declared duly elected to the Assembly ' Various grounds were urged in the petition but we need only deal with the ground that the appellant and his agents arranged public meetings of Shri Shambhu Maharaj on February 18, 1967, at various villages which were part of the Mehsana Assembly constituency, and Shambhu Maharaj made a systematic appeal in his speeches to a large section of the electors to vote for the appellant on ground of religion, caste, and community, and the electors were told that it would be an irreligious act to vote for the petitioner who was a Congress candidate as Congress allowed slaughtering of cows and bullocks.
It was also alleged that Shri Shambhu Maharaj had used undue influence and interfered with the free electoral rights of electors by inducing or attempting to induce them to believe that they would become object of divine displeasure or spiritual Censure by his speeches.
404 The petitioner sought to prove the speeches by producing members of the Police Force, as witnesses, who had under instructions of Government taken down notes of the, speeches and reported them to their officers.
The High Court relied on the reports of these members of the Police Force and held that their reports were correctly recorded and fairly represented the speeches made by Shambhu Maharaj.
In this connection, the High Court discarded the testimony of the petitioner 's witnesses (P.W.s 25 to 33) on the ground that it would be safe not to accept the evidence of artisan witnesses unless it was corroborated by independent witnesses.
The learned counsel,for the appellant, Mr. section T. Desai, con tends, first, that the reports made by the members of the Police Force are not admissible in evidence, and secondly, that in the circumstances of the case no weight should be attached to these reports.
We may first deal with the question of the admissibility of, the evidence before we set out the speeches.
The learned counsel contends that under the Indian Evidence Act written reports of speeches can only be used in two ways; one, to refresh a witness 's memory under section 159, and secondly, under section 160 after satisfying two conditions : (1) that the witness has no specific recollection of the facts themselves and (2) the witness says that he is sure that the facts were correctly recorded in the document.
He urges that in this case the reports were not used to refresh any witness 's memory, and that the conditions requisite under section 160 had not been satisfied.
it is true that these reports have not been ' used for the purpose of refreshing the memory of any witness under section 159, but these have been used under section 160.
We may, here set out sections 159, 160 and 161 of the Indian Evidence Act.
"section 159.
A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory.
The witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct.
Whenever a witness may refresh his memory by reference to any document, he may, with the permission ,of the Court, refer to a copy of such decument 40 5 Provided the Court be satisfied that there is sufficient reason for the non production of the original.
An expert may refresh his memory by reference to professional treatises.
section 160.
A witness may also testify to facts mentioned in any such document as is mentioned in section 159, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the, document.
section 161.
Any writing referred to under the provisions of the two last preceding sections must be produced and shown to the adverse party if he requires it; such party may, if he pleases, cross examine the witness thereupon.
" In this case it is clear that the reports were written by the witnesses themselves at the time of the speeches or soon afterwards when the speeches were fresh in their memory.
It seems to us that it is not necessary that a witness should specifically state that he has no specific recollection of the facts and that he is sure that the facts were correctly recorded in the document, before the document can be used under section 160.
It is enough if it appears from his evidence that these conditions are established.
In this particular case the witnesses were giving their testimony in Court after a lapse of nearly nine months and one would have to have super human memory to specifically recollect the details of the speeches, especially when the witness may have attended and reported many similar meetings as a part of his duty during the election campaign.
It may be implied in this case that the witnesses had no specific recollection of the facts.
The second requirement would be satisfied if the Court comes to the conclusion that the witness was in a position to correctly record the facts in the document.
Are then the requirements of section 160 satisfied in this case ? As an example we may consider the evidence of P.W. 7, who testified regarding the speech, exhibit J., delivered at village Motidav.
He stated that Shambhu Maharaj addressed the meeting at Motidav at about 5.30 p.m. on February 18, 1967, and the appellant was present at that meeting; Maganlal A. Patel was also present at the time when Shambhu Maharaj was speaking; while the speeches were being delivered he was making notes of what was being spoken; in this manner he had written out a report regarding all that had happened at the meeting; after returning to Mehsana he submitted his report of the meeting to P.S.I. Choudhary.
He was shown two reports about the meetings at Motidav, and he stated 406 Both these reports, part of 'X ', are in my handwriting.
I wrote out the contents of these two reports at Motidav when the meetings were going on." (The two reports put in and marked exhibit "J" collectively).
In cross examination questions were directed to establishing that the reports were not exact reports.
He stated that he was taking down all the speeches of Shambhu Maharaj who was speaking at medium pace and he wrote whatever Shambhu Maharaj spoke.
He further stated that he was writing down from memory immediately after the words were spoken by Shambhu Maharaj.
He admitted that "it is true that every word spoken by Shambhu Maharaj was not taken down by me in my report but what I have taken down was in fact spoken by him." He, however, added that "it not true that what I have written out in exhibit 'J ' was not written down at Motidav village.
" On this evidence it seems to us that it is quite clear that both the conditions required by section 160 have been compiled with.
While the speech was delivered on February 18, 1967, he was giving his evidence on November 7, 1967.
It is implicit that he had no specific recollection of the speeches, and the second condition is also satisfied because he made notes and then made out the report from his notes.
It may be that the counsel would have been well advised to have read out exhibit 'J ' rather than produce it as an exhibit, but this is apparently done in some Indian Courts to save.
time and it is now too late in the day to condemn such practice, specially as it is a difference without any substance.
It is true that the report is, strictly speaking, not substantive evidence as such, and the document can only be used as a part of the oral evidence sanctified by the oath.
The position seems to be the same in some States in U.S.A., vide Wigmore on Evidence (Third Edition; Vol.
III pp.
97 98, extracted below : "1871, Per Curiam in Moots vs State, 21 Oh.
St. 653: The entry in the book and the oath of the witness supplement each other.
The book was really a part of the oath, and therefore admissible with it in evidence." "1879, Earl, J., in Howard vs McDonough : After the witness has testified, the memorandum which he has used may be put in evidence, not as proving anything of itself, but as a detailed statement of the items testified to by the witness.
The manner in which the memorandum in such a case may be used is very much in the discretion of the trial Judge." 407 "1882, Cooley, J., in Mason vs Phelps, , , 837 : After she had testified that she knew it to be correct, she might have read the entries or repeated them as her evidence.
Showing the book was no more than this". "1886, Smith, C.J., in Bryan vs Moring, 94 N.C. 687 : The memorandum thus supported and identified becomes part of the testimony of the witness, just as if without it the witness had orally repeated the words from memory.
" There is much to be said for the modern doctrine in some of the States in the United States, which "seems to be that such documents are admissible evidence and that the Court will not go through the useless ceremony of having the witness read a document relating to a fact of which he had no present recollection, except that he knew it was correct when made." (see McCormick on Evidence; p. 593; footnote 3).
The learned counsel relied on the dissenting judgment of Sankaran Nair, J., in Mylapore Krishnasami vs Emperor(1) where he observed : "If therefore the constable has not recorded correctly the words used by the speaker but only his impression, then the notes would be inadmissible under section 160 of the Indian Evidence Act to prove the words used.
They may be admissible to prove the impression created in the mind of the constable, which is very different.
" We are unable to appreciate how this passage assists the appellant.
If it is proved that the constable did not correctly record the words, a fortiori one of the conditions of section 160 has not been satisfied and the writing cannot be used to prove the words.
The learned counsel also referred to the decision of the Madhya Pradesh High Court in Mohansingh Laxmansingh vs Bhanwarlal Rajmal Nahata(2).
The High Court seems to have held that on the facts, the statements prepared by the witness in that case did not become primary evidence of the speech said to have been delivered by the speaker and cannot be used as such.
Later on the High Court seems to have held that the notes were taken down for a particular purpose, to wit, for an election petition, and raise a reasonable suspicion that what the witness recorded was not a correct record of the speech.
If the High Court meant to say that Ex P 12 (the notes in that case) could not be used (1) ; 395.
(2) A.I.R. 1964 M.P. 137,146.
408 under section 160 we must hold that the case was wrongly decided, but if the High Court meant to say that there was suspicion that the speech was 'not a correct record then nothing can be said against the decision on this point.
Blacker, J. in Sodhi Pindi Das vs Emperor(1) held, relying on Jagan Nath vs Emperor(2) that it is essential that the witness must state orally before the Court that although he had no specific recollection of the facts themselves, he was sure that the facts were correctly recorded in the document.
We are unable to agree with this interpretation.
As we have already stated, if the requisite conditions can be satisfied from the record, the lack of an express declaration by witness does not make the evidence inadmissible.
In Public Prosecutor vs Venkatarama Naidu(3) Mockett, J., rightly dissented from the judgment of the Lahore High Court in Sodhi Pindi Das vs Emperor(1).
In England the Law of Evidence has been changed and many of such documents made directly admissible (see Phipson on Evidence, Tenth Edition, Ch. 22).
It seems to us that on the facts the report, exhibit J., was properly used under section 160 of the Indian Evidence Act.
The question of the weight to be attached to the various reports of the speeches is another matter and we will deal with the question presently.
The High Court has found three speeches to constitute " corrupt practices".
The following three passages in exhibit 'J 'speech delivered by Shambhu Maharaj at village Motidav on February 18, 1967 were complained of by the learned Counsel in the High Court : "(1) I will say one fact and that is that at present the Congress is stating everywhere that nobody else will make the people happy except themselves.
But I say that apart from God no other Government either Congress or Swatantra Party can make people happy.
An agriculturist may have one bigha of land (about half an acre) and he might have sown wheat but if there is heavy frost or locusts or if one bullock worth Rs. 1000/ dies, Government may give him money, may give him bullock, but I do not think that that man can be happy; but nature can make him happy.
Today in our India, everyday 33,000 cows are being slaughtered throughout the country.
Ten to eleven lacs of bullocks are being slaughtered during the year and in Ahmedabad Town alone 10,000 bullocks are slaughtered.
(1) A.I.R. 1938 Lah.
(3) I.L.R. 3.
(2) A.T.R. 409 (2) This unworthy Congress Government has cut, the nose of Hindu Society.
Sant Fateh Singh, the religious preceptor of the Sikhs, fasted for 10 days; where as Jagadguru fasted for 73 days, still this Government is not even thinking of opening negotiations.
This un worthy Government accepted the contention of the Sikhs after the fast of IO days; whereas in spite of the penance undertaken by Jagadguru by his fast of 73 days, the Government has not considered any topic in this connection.
Your Jagadguru had full confidence that, except for ten crores who are the followers of the Congress, twenty to thirty crores from the Hindu Society would help him.
(3) For example, if any Maulvi from Mucca had fasted for 73 days and had given such a mandate to our Muslim brothers, then would they have voted for the Congress.
That you have to consider.
In the same manner, if Fateh Singh, the religious leader of Sikhs, had fasted for 73 days, would they (Sikhs) have voted for the Congress ? In the same manner if there were Parsis or Christians, then they also would vote for their religious preceptor.
This is what you have to consider.
The mandate of your religious preceptor is that do not cast your vote for anyone, the mandate of the Jagadguru is that let cows be slaughtered, let bullocks be slaughtered.
In Gujarat State though there is ban, still bullocks are allowed to 'be slaughtered, the bullocks which give every individual happiness throughout the life.
This Government asks for votes in the name of the 'bullocks (the Congress Party election symbol being a pair of bullocks with yoke on) and I am, therefore, having an experience.
Do not vote for the Congress and by putting the mark of vote on the symbol of bullocks amounts to cutting the throat of a bullock by a knife symbolized by your vote.
It is my mandate that you should not do this dastardly act.
" The High Court did not find the first two passages to constitute "corrupt practices".
The third passage was held by the High Court to constitute "corrupt practice" on the ground that "though there is no proof that Shankaracharya had any religious following as such in this particular constituency, there is ,no mandate in writing from the Jagadguru and there is no direct address to his followers by the Jagadguru, Shambhu Maharaj has clearly appealed to the Hindu voters as such not to vote for the Congress Party lest they might be betraying their religious leader, particularly when he had fasted for 73 days ' in a cause which had some basis in the religious beliefs of the Hindus.
" 410 We are unable to agree with the High Court in this respect.
The decision of this Court in Ram Dial vs Sant Lal(1) is clearly distinguishable because there it was held by this Court that Shri Sat Guru wielded great local influence among the large number of Namdharis who were voters in the Sirsa constituency.
In the present case there is no proof that Jagadguru Shankaracharya of Puri was the religious head of the majority of the electors in this constituency or exercised great influence on them.
It cannot be held on the facts of this case that an ordinary Hindu voter in this constituency would feel that he would be committing a sin if he disregarded the alleged directive on the Jagadguru.
One other ground given by the High Court is that "there can be no doubt that in this passage (passage No. 3) Shambhu Maharaj had put forward an appeal to the electors not to vote for the Congress Party in the name of the religion.
" In our ,opinion, there is no bar to a candidate or his supporters appealing to the electors not to vote for the Congress in the name of religion.
What section 123(3) bars is that an appeal by a candidate ,or his agent or any other person with the consent of the candidate or Ms election agent to vote or refrain from voting for any person ,on the ground of his religion, i.e., the religion of the candidate.
The following four passages in exhibit K, a speech delivered by Shambhu Maharaj at Kherwa after midnight of February 18, 1967, were objected to : "(1) The Congress says that it has brought happiness and will give happiness in future; but even a father cannot give happiness to his son, nor can a son give happiness to his father.
Giving happiness rests in the hands of God.
But God gives happiness where there is religion. 'He does not give happiness to the irreligious.
(2) Formerly there were no famines.
Possibly once in 100 years there might be one famine.
As against that nowadays every year there is some natural calamity like a famine.
Either there is no rain or there is frost or there is visitation of locust or there is some disease in the crops and some calamity or the other is constantly visiting us.
The reason for this is that Congress permits slaughter of 33,000 bullocks everyday.
When slaughter of cows is banned, bullocks are allowed to be slaughtered.
In Gujarat 12,000 bullocks are being slaughtered.
(3) Nobody would sit till 12 30 at night to listen to any talks by the Congress walas.
But I have come (1) [1959] Supp. 2 section C. R. 748. 411 to tell the public, which is fond of its religion, to elect the Swatantra Party, so that the slaughter of bullocks might be stopped and all people who are fond of their religion are also keeping away till 12 30 at night.
(4) Vijaykumarbhai has gone.
A Brahmin minister must be there and hence Kantilalbhai is going to be a minister, hence vote for him.
We must have at least one minister who is a Brahmin.
Hence vote for Kantilalbhai.
At the same time vote for Bhaikaka and H.M. Patel by putting your voting mark on the star.
" The High Court held the first two passages read together to constitute "corrupt practice" on the ground that "they amounted to interference with the free exercise of the electoral right of voters by holding out threats of divine displeasure and spiritual censure.
" The High Court held that in these passages there was a direct causal relationship between the cow slaughter and the natural calamities and this clearly showed that the: voters were told that if they did not want such natural calamities to visit them they should not vote for the Congress Party and thug avoid the divine displeasure which was responsible for these natural calamities.
It seems to us that this is not a fair reading of these two passages.
Cow slaughter is not mentioned in these passages except to say that sow slaughter is banned in Gujarat.
The causal relationship, if any, exists between slaughter of 33,000 bullocks every day and natural calamities.
This, in our view, cannot amount to constitute "corrupt practice" within section 123 (2) proviso (a) (ii) 'Me law does not place any bar on describing a party as irreligious or saying that because that political party is irreligious natural calamities have resulted because of its disregard of religion.
We do not find anything objectionable in the third passage because here again it is only an appeal to elect the Swatantra Party because the people in that party are fond of their religion.
The last passage in exhibit 'K ' clearly fell within the mischief of section 123(3).
The High Court in this connection observed: .lm15 " The reference to Vijaykumarbhai is to Vijaykumar Trivedi, who was a Brahmin and was a minister in the Gujarat Government till March 1967, and when this speech was delivered.
The reference to Kantilalbhai is to the first respondent, who is also a Brahmin and the reference to Bhaikaka is to Bhailalbhai Patel, leader of the Swatantra Party and H.M. Patel is another leader of the Swatantra Party and what Shambhu Maharaj was asking in this connection was that it was necessary that there should be one Brahmin in the Gujarat State Ministry and if one Brahmin, 412 Vijaykumar Trivedi, was to leave the ministry, another Brahmin Minister, viz., the first respondent should be first elected so that he might get a seat in the Legislature and thereafter become a minister, and thus it is clear that in the passage, Shambhu Maharaj was asking the people to vote for the first respondent because he was a Brahmin by caste.
It has been stated as a categorical statement that there must be at least one Minister, who was a Brahmin.
Under section 123 (3) of the Act, an appeal by any person to vote for any person on the ground of his caste or community is a corrupt practice, provided, of course, that such person has made such appeal with the consent of the candidate concerned.
I will come to the question of consent a bit later on, but it is clear that in this particular passage an appeal was being made to the electors to cast their votes for the first respondent because the first respondent is a Brahmin and also because of the promise, which had been put forward in this passage, that there should be at least one Brahmin Minister in the Ministry.
I may point out that so far as the petitioner is concerned, the petitioner is a Patidar and it is in the context of this background that an appeal is made in the name of caste of the first respondent and the people are asked to vote for the first respondent, because he was a Brahmin.
" It seems to us that the High Court is correct in drawing the inference that Shambhu Maharaj was asking his voters to, vote for the first respondent, because he was a Brahmin.
Shambhu Maharaj is reported to have adopted the same theme in exhibit 'P ' when he said that "Vijaykumarbhai had gone out and Kantilalbhai is going to be the Minister.
" Following three passages were objected in exhibit 'P ', a speech made at Dangerwa: "(1) The time of election has arrived.
The Congress Party is carrying on its propaganda desparately but what I want to say is that if Swatantra Party comes into power then it will (not turn your roof tiles into gold.
Only God gives happiness.
There is frost, there is rust in the crops, there is excess of rains, there is a famine all these are due to the workings of God.
Every day twenty four crores of cows are being slaughtered, then how God will tolerate that and how will you get happi ness ? 413 (2) Look at the Congressmen who are destroyers of Hindu Religion.
(3) Every year we get cow or the other natural calamity like excessive rain, or failure of rain or earthquake.
This happens because they ask for votes in the name of live bullocks, whereas they get the bullocks slaughtered.
The symbol should be of butcher and except ruthless and hard hearted Congress nobody else will get bullocks slaughtered.
" It seems to us that the first and the third passages, read together, constitute an attempt to induce the electors to believe that they would become objects of divine displeasure if they voted for the Congress and thereby allowed cow slaughter to be continued.
Hidayatullah, C.J., in Narbada Prasad vs Chhagan Lal(1), observed : "It is not necessary to enlarge upon the fact that cow is venerated in our country by the vast majority of the people and that they believe not only in its utility but its holiness.
It is also believed that one of the cardinal sins is that of gohatya.
Therefore, it is quite obvious that to remind the voters that they would be committing the sin of, gohatya would be to remind them that they would be objects of divine displeasure or, spiritual censure.
" In the first and third passages of exhibit 'P ', therefore there is clear implication that if you vote for the Congress who are responsible for 24 crores of cows being slaughtered then God will be displeased; in other words there will be divine displeasure and the voters will not get happiness.
The second passage does not seem to be objectionable and the High Court has not found it to be so.
The learned counsel for the appellant contends that very little weight should be attached to the speeches because the reports were not taken in shorthand but from notes and it is very difficult to be certain of what were the ' exact words used by Shambhu Maharaj.
The High Court examined the speeches, Exs. 'I ', 'J ' 'K ', 'L ', and 'P ', in connection with this question and came to the conclusion that common topics, common language and common approach existed in all the speeches, and this indicated that Shambhu Maharaj did deliver the speeches.
Further., according to the High Court, the reports were submitted by different constables at different times and to different Police Station and the learned Judge found that there could possibly be no consultation between the Various police constables who took down the state (1) ; 8 Sup.
C.I./69 8 414 ments, and that the totality of the effect emerging from different reports made the reports credible.
We agree with the conclusions arrived at by the High Court.
It is true that the exact words were not taken down by the various police constables, but the similarity of approach, appeal and the attack on the Congress is remarkable and in these circumstances it must be held that the police constables correctly reproduced the substance of the speeches.
It is pot necessary in these cases that exact words must be reproduced before a speech can be held to amount to "corrupt practice".
The learned counsel further contends that the appellant 's consent to these speeches had not been proved.
We agree with the High Court that there is no force in this contention.
The High Court observed : "As shown in the handbill setting out the pro gramme, the manuscript of which was written out by the first respondent himself in consultation with Maganlal Abram Patel, this tour programme had been arranged to bring success to the first respondent in his election contest.
Shambhu Maharaj was touring these villages specifically so that the first respondent might succeed in his contest.
Further it would be natural on the part of the first respondent to take advantage of being seen in the presence of a good speaker like Shambhu Maharaj.
Some of the meetings of Shambu Maharaj appear to have been well attended.
It is highly probable that the first respondent accompanied Shambhu Maharaj.
To my mind, therefore, it is clear that the first respondent had accompanied Shambhu Maharaj and was present in each of the meetings at MotiDav, Kherwa and Dangerwa when Shambhu Maharaj delivered speeches at these three villages. .
In the instant case also, the first respondent, according to the conclusion that I have reached, was present at the meetings which were addressed by Shambhu Maharaj at MotiDav, Dangerwa and Kherwa and in each of these three meetings at least, according to the conclusions reached by me, Shambhu, Maharaj in the course of his speeches had committed breaches of the provisions of section 123(2) and section '123(3) of the Act. .
Under these circumstances, it is clear to my mind, judging by the manner in which the first res pondent was touring with Shambhu Maharaj.
the manner in which tour programme was arranged and judging from the fact that this tour was specially arranged to bring success to the first respondent, that the first respon 415 dent did consent to the commission of the breaches of the proviso of section 123(2) and section 123(3) of the Act by Shambhu Maharaj.
" We may add that many police witnesses depose that the appel lant was present and it has not been shown to us that he dissociated himself with any of the remarks in the speeches.
In the result the appeal fails and is dismissed with costs.
Hegde, J. I agree that the statements contained in Exh.
P amount to a corrupt practice under section 123(2) of the Representation of the People Act and also agree that those statements were made with the consent of the returned candidate.
Hence this appeal has to be dismissed but I am unable to agree that before a statement can be considered as an attempt to induce an elector to believe that he will be rendered an object of spiritual censure if he acts in a particular manner that statement must have been made by a person who is a religious head of the majority of the electors in the constituency concerned.
What section 123(2) requires is to induce or attempt to induce "an elector" which means even a single elector that he will be rendered an object of spiritual censure if he exercises or refuses to exercise his electoral right in a particular manner.
But undoubtedly the inducement or an attempt to induce complained of should be such as to amount to a direct or indirect interference or attempt to interfere with the free exercise of electoral right.
Whether a particular statement comes within section 123 (2) or not depends on various factors such as the nature of the statement, the person who made it and the persons to whom it is addressed.
No doubt the nature of the statements in question is of utmost importance.
They may exploit well accepted religious beliefs but that is not the only thing that comes within the mischief of section 123(2).
A respected religious preacher may induce or attempt to induce the illiterate and superstitious voters who form the bulk of our voters that they will become the object of divine displeasure if they do not exercise their franchise in a particular manner.
His statements may not have any support from the religious books but yet they may amount to a corrupt practice in law.
I see no justification to cut down the scope of section 123 (2).
It will not be in public interest to do so.
I am unable to agree that the appeal to vote (in Exh.
K) for the appellant on the ground that he is likely to be a Minister as according to Shambhu Maharaj there should be at least one Brahmin Minister in the cabinet is an appeal to vote on the ground of the appellant 's caste.
There is no use hiding the fact that communal and regional representations in all our political institutions have become a must.
Shambhu Maharaj merely gave expression to that fact from public platforms.
One may not appreciate his 416 campaigning for that point of view but I am unable to agree that his statements in that regard amount to corrupt practice under section 123 (3).
Those statements cannot be considered as an appeal to vote on the basis of the appellant 's caste.
The caste of the appellant has come into the picture incidentally.
V.P.S. Appeal dismissed.
| IN-Abs | The poll for election to the Gujarat State Assembly from Mehsana State Assembly constituency was taken on February 21, 1967.
On February 18, 1967 one S.M. addressed public meetings at various villages which were part of the constituency.
The appellant who was the successful candidate was present at those meetings and did not dissociate himself from any of the remarks in the speeches.
Police con tables, under instructions of the Government, took down notes of the speeches and reported to their superior officers.
These police constables did not take down every word spoken by S.M. but whatever was taken down was spoken by S.M.; and in the reports, though the exact words were not reproduced the substance of the speeches was correctly reproduced.
These reports showed that S.M. made the following statements in his speeches (i) He appealed to the Hindu voters as such not to vote for the Congress Party lest they might be betraying their religious leader (Jagadguru Sankaracharya of Puri), particularly when he had fasted for 73 days in the cause of preventing cow slaughter; (ii) He put forward an appeal to the electors not to vote for the Congress Party but to vote for the Swatantra Party in the name of religion; (iii) He said that a relationship of cause and effect existed between the slaughter of 33,000 bullocks every day and natural calamities like famine and flood; (iv) He asked his voters to vote for the appellant because he was a Brahmin; and (v) He said that if the voters voted for the Congress who are responsible for 24 crore of cows being slaughtered then God will be displeased.
On the questions : (1) whether the reports made by the police constables were admissible in evidence; (2) Whether any weight should be attached to them; and (3) Whether they showed that the appellant was guilty of corrupt practice within the meaning of section 123(2) and (3) of the Representation of the People Act, 1951 HELD (Per Sikri and Bachawat, JJ.) (1) The reports were properly used under section 160 of the Evidence Act, 1872, and were admissible in evidence.
[406 C D] 401 Before a witness testifies to facts stated in a document, under section 160 of the Evidence Act two conditions must be satisfied namely : (a) that the witness bad no specific recollection of the facts themselves; and (b) the witness says that he is sure that the facts were correctly recorded in the document.
For satisfying the conditions it is however not necessary that the witness should specifically state that he has no specific recollection of the facts and that he is sure that the facts were correctly recorded in the document.
It is enough if it appears from the evidence of the witness that those conditions are established.
[405 C E] In the present case, it could be implied from the Circumstances that the conditions of section 160 were satisfied.
The witnesses were giving their testimony in Court after a lapse 'of 9 months after the speeches were made and it is implicit that they could have no specific recollection of the speeches, especially when they attended and 'reported many similar meeting as part of their duty during.
the election campaign.
The second condition is also satisfied because, the witnesses made notes on the spot and made out reports from those notes when the speeches were fresh in their memory.
The reports are, strictly not substantive evidence as such and could only be used as part of the oral evidence on oath.
The reports should therefore have been read out in Court and not marked as exhibits.
But the practice of marking such a report as in exhibit is well established and avoids the useless formal ceremony of reading it out as part of the oral evidence.
[405 E G; 406 D E] Wigmore on Evidence (Third Edn.
III pp.
97 98), Mylapore Krishnaswami vs Emperor, , 395 and Mohan Singh Laxmansingh vs Bhanwarlal Rajmal Nahata, A.I.R. 1964, M.P. 137, 146, referred to.
Public Prosecutor vs Venkatarama Naidu, I.L.R. [1944], Mad. 113, approved.
Jagannath vs Emperor, A.I.R. 1932 Lah.
7 and Sodhi Pindi Das V. Emperor, A.I.R. 1938 Lah.
629, disapproved.
(2) Though the reports were not taken down in short hand nor were the exact words spoken by S.M. taken down by the various police constables.
the reports show a remarkable similarity of approach, appeal and attack on the Congress Party; and in those circumstances it must he held the police constables correctly reproduced the substance of the speeches.
It is not necessary that the exact words must be reproduced before a speech can be held to amount to corrupt practice.
[414 A C] (3) (i) This statement does not amount to corrupt practice, because, there was no proof that the Jagadguru was the religious head of the majority of the electors in this constituency or that he exercised great influence on them, and so, it could not be held that an ordinary Hindu voter of the constituency would feel that he would be committing a sin if he disregarded the alleged directive of the Jagadguru.
[410 A C] Ram Dial vs Sant Lal, [1959] Supp. 2 S.C.R. 748, distinguished.
(Per Hegde, J. dissenting) : The statement amounted to corrupt practice.
What section 123(2) requires is to induce or attempt to induce 'an elector ' which means even a single elector that he will be rendered an object of spiritual censure if he exercises or refuses to exercise his electoral right in a particular manner.
While undoubtedly the inducement or attempt 40 2 to induce complained of should be such as to amount to a direct or indirect interference with the free exercise of the electoral right it is not in the public interest to cut down the scope of the sub section.
Whether a particular statement comes within it or not depends on various factors such as the nature of the statement, the person who makes it and the persons to whom it is addressed.
Therefore, when a respected religious preacher induces or attempts to induce the illiterate and 'superstitious voters who form the bulk of the voters that they will become objects of divine displeasure if they do not exercise their franchise in a particular manner, though his statements are not supported by religious books and he himself may not be a religious head of the majority of electors, the statements may yet amount to a corrupt practice in law.
[415 C G] (Per Sikri, and Bachawat, JJ.) : (ii) There is no bar to a candidate or his supporters appealing to the electors not to vote for the Congress in the name of religion, or appealing to vote for the Swatantra Party because the people in that party are fond of their religion.
What section 123(2) of the Representation of the People Act bars is that a candidate or his agent or any other person with the consent of the candidate or his agent should appeal to the voters to vote or refrain from voting for any person on the ground of his religion, that is the religion of the candidate.
[410 C D; 411F] (iii) This statement does not amount to corrupt practice within s.123(2) proviso (a)(ii), because, the law does not place any bar on describing a party as irreligious or saying that because that political party is irreligious natural calamities had resulted on account if its disregard of religion.
[411 E F] (iv) Asking the voters to vote for the appellant because he was a Brahmin, fell within the mischief of section 123(3).
[411 F G] (Per Hegde, J. dissenting).
: When he stated that there should be at least one Brahmin Minister in the Cabinet, S.M. was merely giving expression to the fact that communal and regional representations in our political institutions have come to stay and was not appealing to the voters to vote on the basis of the appellant 's caste.
[415H] (By Full Court) : (v) As this statement constitutes an attempt to induce the electors to believe that they would become objects of divine displeasure if they voted for the Congress and thereby allowed cow slaughter to be continued, and as in the circumstances of the case, it must be deemed to have been made with the appellant 's consent, the appellant was guilty of corrupt practice within the meaning of section 123(2) proviso (a) (ii) [413C; 415B C] Narbada Prasad vs Chhagan Lal, ; followed.
|
Appeal No. 130 of 1966.
Appeal from the judgment and decree dated December 13, 1961 of the Allahabad High Court in Special Appeal No. 217 of 1958.
C. K. Daphtary, B. Sen, J, P, Goyal and A. Banerjee, for the appellants.
C. B. Agarwala and O. P. Rana, for respondents Nos. 1, 2, 3 and 8.
T. A. Ramachandran and R. N. Sachthey, for respondent No. 4.
M. C. Chagla, G. D. Srivastava, B. Datta and J. B. Pada chanji, for respondents Nos. 5 and 6.
The Judgment of the Court was delivered by Shah, J.
The Padrauna Rajkrishna Sugar Works Ltd.hereinafter called 'the Company carried on the business of manufacture and sale of sugar and supply of electricity.
The Company was in financial difficulties in 1954 and was unable to meet its obligations.
The principal liabilities of the Company in July 1955 were Rs. 81,821 2 0 due as income tax provisionally assessed for the assessment year 1952 53 in respect of which an order for recovery was made under section 46(2) of the Income tax Act, 1922; Rs. 5,64,301 14 9 due as sugarcane cess under section 29 of the Sugar Factories Control Act, 1938, for the years 1952 53 to, 1954 55: and Rs. 1,92,053 12 3 due by the Company to the Co operative Development Union Ltd. as arrears of cane price for the year 1954 55. 470 By order dated July 14, 1954, issued under the Essential Supplies (Temporary Powers) Act, the Government of U.P. appointed the Collector, Deoria as the Authorised Controller of the Company.
On August 8, 1955 the Land Reforms Commis sioner sanctioned the proposal submitted by the Collector, Deoria, to sell the holdings and the property of the Company for realizing Rs. 8,38,176 13 0.
Sardar Jagjit Singh, Chief Engineer, Indian Institute of Sugar Technology, Kanpur, valued the movables belonging to the Company i.e. tools and workshop plant, mill stores, spare parts and furniture at Rs. 7 , 64,817/ ,and the lands and the factory at Rs. 23,75,000/ .
Thereafter a sale proclamation was issued on October 4, 1955, for recovery of the total amount of Rs. 8,38,176 13 0.
The sale was fixed for November 8, 1955.
In the first instance only the movables were put up for sale by the Collector, Deoria, but the highest bid offered was Rs. 2,75,000/ .
The Collector then put up for sale the immov able property for which a bid of Rs. 13,50,000/ was made and accepted.
The movables were then put up for sale, and the highest bid for Rs. 2,75,000/ was accepted.
The purchasers of both the lots were the Cawnpore Sugar Works Ltd., through their managing agent Tulsidas Mundra respondent No. 7 in this appeal.
On December 6, 1955, the Company moved an application before the Commissioner, Gorakhpur Division, under r. 285 1 of the U.P. Zamindari Abolition and Land Reforms Rules praying that the sale be set aside.
The Commissioner rejected the peti tion, observing that an application under r. 285 1 of the U.P. Zamindari Abolition and Land Reforms Rules, 1952, to set aside a sale on the ground of material irregularity or mistake in publishing or conducting a sale may be granted only if the applicant proves to the satisfaction of the Commissioner that he has sustained substantial injury by reason of such irregularity or mistake, and that no material irregularity or mistake was proved to be committed in publishing or conducting the sale, far less, a mistake or irregularity which could have caused substantial injury to the applicant.
The sale was confirmed by order dated July 2, 1956, by the Land Reforms Commissioner.
On, July 30, a petition was moved by the Company in the High Court of Allahabad for a writ in the nature of certiorari quashing the order dated June 25, 1956, of the Commissioner, Gorakhpur Division.
The petition was dismissed by Oak, J.
In appeal under the Letters Patent the order was confirmed by the High Court.
Mukherji, J., was of the view that section 286 of the U.P. Zamindari Abolition and Land Reforms Act did not oblige the Collector to exhaust the processes prescribed by, cls.
(a) to (e) in section 279 of that Act before resorting to the sale of immovable property of the Company and that it was not proved that 471 there was any material irregularity or mistake_ in publishing or conducting the sale or that any substantial injury had resulted to the Company., Jagadish Sahai, J., was of the view that section 2861(2) of the U.P. Zamindari Abolition and Land Reforms Act provides that where an amount is recoverable as arrears of land revenue, the Collector has first to attempt under cls.
(a) to (e) of s.279 to recover the amount due, and if he is unable to recover the amount,, he may proceed to sell the immovable property of the defaulter.
But the learned Judge was of the opinion that the provision was merely directory and not.
mandatory.
He observed: ". . the provision relating to the exhaustion of the processes contemplated by clauses (a) to (e) of section 279 of the Act is merely directory.
In view of the provisions of the various Acts which make the realization of sums becoming due under those Acts as arrears of land revenue and in view of the provisions of the Act the, Collector has got a duty and a statutory obligation to realise those sums.
He has no discretion in the matter.
Consequently I read the words "may realise the same from the interest of the defaulter in any immovable property" in sub section (1) or "may be recovered from any immovable property of the defaulter" in sub section (2) as meaning that if the Collector does not succeed in recovering the amount by having recourse to the processes mentioned in clauses (a) to (e) of section 279 of the Act he shall sell immovable property of the defaulter.
" The learned Judge also observed that the Collector acted inviolation of the statutory provision contained in section 286(2) of the Act in selling the immovable property before selling the movable property, but the sale could not be set aside, because substantial injury was not shown to have been caused.
The Company has appealed to this Court against the order passed by the 'High Court confirming the order passed by Oak, J.
In this appeal, it is urged in the first instance, that the Company possessed stocks of sugar of value exceeding the liability for payment of Rs. 8,38,000/ odd.
But the stocks of sugar were not mentioned in the Collector 's report to the Land Reforms Commissioner : they were not included in the sale proclamation as property put up for sale, nor were they valued in the report of Sardar Jagjit Singh.
The Company asserted in the petition ,before the High Court that it possessed stocks of sugar worth Rs. 9 lakhs.
which had not been, attached earlier, but no such.
contention was advanced in support of the application for setting.
472 aside the sale before the Commissioner, nor was any argument advanced before the High Court.
It appears that the stocks of sugar were mortgaged separately and the amount for which they were mortgaged was not included in the claim, made for which the property of the Company was to be put up for sale.
It was then urged that under section 286(2) of Act 1 of 1951, the Collector, was bound in the first instance to exhaust, the processes for recovery of arrears prescribed by cls.
(a) to (e) of section 279 of the Act and he could not attach and sell immovable property of the Company until those processes were exhausted.
It was urged that section 286(2) of the Act was mandatory and the Collector not having sold the movables in the first instance, the sale must be declared void.
The amount for the recovery of which the sale of the assets of the Company was held, included income tax dues, sugarcane cess and the amount due for cane supplied to the Company.
This amount was recoverable as arrears of land revenue because of the provisions of the Indian Income tax Act, 1922, the U.P. Sugar Factories Control Act, 1938, and the .
Section 286(2) of the U.P. Zamindari Abolition and Land Reforms Act provides: "Sums of money recoverable as arrears of land revenue, but not due in respect of any specific land, may be recovered by process under this section from any immovable property of the defaulter." Though the amount for which the property was put up for sale was recoverable as arrears of land revenue, no part of it was due in respect of any specific land.
The amount could prima facie be recovered from the immovable property of the defaulter.
But relying upon the expression "under this section" in section 286(2) of Act 1 of 1951 it was contended that the immovable property of the Company could be attached and sold only after the processes prescribed in section 279 cls.
(a) to (e) were resorted to and the Collector was unable to recover the dues.
It was urged that this is the true effect of section 286(1) and section 279 of Act 1 of 1951.
Section 286(1) provides : "It any arrears of land revenue cannot be recovered by any of the processes mentioned in clauses (a) to (e) of Section 279, the Collector may realize the same by attachment and sale of the interest of the defaulter in any other immovable property of the defaulter." Section 279 of the Act set , out the procedure for recovery of land revenue.
The section as it stood at the.
date of We provided 473 An arrear of land revenue may be recovered by any one or more of the following processes : (a) by serving a writ of demand or a citation to appear on any defaulter, (b) by arrest and detention of his person,.
(c) by attachment and sale of his movable property including produce, (d) by attachment of the holding in respect of which the arrear is due, (e) by sale of the holding in respect of which the arrear is due.
(f) by attachment and sale of other immovable property of the defaulter.
" Section 280 deals with the mode of recovery prescribed by cl.
(a) of section 279; section 281 with the mode prescribed by cl.
(b) i.e. by arrest and detention; and section 282 with the mode prescribed by cl.
(c) i.e. by attachment and sale of the movable property including produce.
Section 284 sets out the procedure for sale of the holding in respect of which the arrear was due and section 286(1) deals with the power to proceed.
against the interest of the defaulter in other immovable property.
For recovery of arrears of land revenue, the Collector is bound to resort to one or more of the processes mentioned in section 279 read with sections 280, 282, 284 & 285 of the Act, before he attaches and sells the immovable property of the defaulter, other than the holding in respect of which the land revenue is due.
That clearly follows from the terms of sub section
(1) of section 286.
Subsection (2) of section 286 makes the same process applicable for recovery of sums of money which are recoverable as arrears of land revenue.
But the liability to pay the amount so recoverable arises by virtue of the provisions of other Acts and is not due in respect of any holding of the defaulter.
It is only recoverable as arrears of, land revenue by virtue of the provisions of the Act under which the liability has arisen.
Since U.P. Act 1 of 1951 provides by section 286(2) that sums of money recoverable as arrears of land revenue may be recovered from any immovable property of the defaulter, the procedure prescribed by the Act applies to such recovery.
Because of the use ' of the expression "under this section" in sub section
(2) of section 286 it is not intended that the Collector must resort in the first instance to the processes prescribed by cls.
(a) to (e) before he resorts to cl.
(f), of section 279.
(d) & (e) of section 279 have no application, where income tax dues and sugarcane cess or cane price are recoverable from the defaulter : and cl.
(b) is inapplicable where the defaulter is an artificial person like a Company.
Power to recover arrears of land reve 414 nue from a defaulter is governed by the processes mentioned in section 279 cls.
(a) to (e), and section 286(1) places certain restrictions upon the power of the Collector to recover land revenue by attachment and sale of lands other than the holding in respect of which the land revenue is due.
But the restrictions on the power of the Collector operate only when land revenue is in arrears.
Restrictions if any upon the power of the Collector to recover dues under other statutes, as arrears of land revenue arise from the statute which is the source of the liability and not from Act 1 of 1951 which merely sets out the processes for recovery of the dues.
To hold that sub section
(2) of section 286 requires the Collector in the first instance to recover out of the movable property or by arrest and detention of the defaulter before immovable property of the defaulter is attached and sold is to amend the substantive provisions of the Acts under which the liability for money due is recoverable as land revenue.
For instance , under section 46 (2) of the Indian Income tax Act, 1922, it is provided "The Income tax Officer may forward /to the Collector a certificate ' under his signature specifying the amount of arrears due from an assessee, and the Collector, on receipt of such certificate, shall proceed to recover from such assessee the amount specified therein as if it were an arrear of land revenue.
: Provided that without prejudice to any other powers of the Collector in this behalf, he shall for the purpose of recovering the said amount have the powers which under the Code of Civil Procedure, 1908 (V of 1908), a Civil Court has for the purpose of the recovery of aim amount due under a decree.
The power exercisable, by the Collector in recovering arrears of income tax which are recoverable as arrears of land revenue are, it is clear, not restricted to the Land Revenue Code: the Collector is entitled to exercise all the powers of a Civil Court for the purpose of recovery of an amount due under a decree under the Code of Civil Procedure, and the Code of Civil Procedure imposes no obligation to recover the dues by sale of movables or by arrest and detention of the defaulter before, immovable property may be attached.
Section 51 of the Code of Civil Procedure provides: "Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree holder, order execution of the decree (a) by delivery of any property specifically decreed; (b) by attachment and sale or by sale without attachment of any property; 475 (c) by arrest and detention in prison; (d) in such other manner as the nature of 'the relief granted may require Provided. . . .
By virtue of 0. 2 1 r. 30(e) of the Code of Civil Procedure simultaneous execution both against the property and person of the judgment debtor is allowed.
To hold, therefore, that in seeking to recover income tax dues the Collector is in the first instance, by virtue of sub section
(2) of section 286, restricted to the recovery of arrears by attachment and sale of movables or by arrest and detention in prison of the defaulter and it he cannot recover the amount then and then only to have recourse to the immovable property of the judgment debtor is to seek to amend both the, Income tax Act, 1922, as well as the Code of Civil Procedure.
The U .
P. Legislature is competent to alter the provisions of the Income tax Act.
We are, therefore, unable to agree with the opinion expressed by jagadish Sahai, section, that the use of the words "under this ,section" points to the applicability of the whole section i.e. subsection (1) in the recovery dues recoverable under sub section (2) of section 286, and "that the two sub sections have got to be read together and the effect of sub section (2) is that even in connection with the recovery of miscellaneous dues as arrears of land revenue it is permissible to sell immovable property of the defaulter but subject to what is provided for in sub section (1)".
We are also unable to agree with the observations made by the learned Judge that ". . if sub section (2) of section 286 of the Act were to be read in isolation and detached from subsection (1) it would become impossible to administer the same.
Sub section (2) only provides that the arrears of miscellaneous dues may be recovered from any immovable property of the defaulter without specifying the manner in which they are to be recovered, that is to say, without indicating whether it would be recovered from the usufruct of the property or by its sale or by mortgage or lease.
" The provisions of the Act which authorise recovery of sums of money as arrears of land revenue do not require the Collector to follow any sequence of the processes for recovery: it is competent to the Collector to 'resort to any process prescribed by section 279 in aid of recovery of the dues which are recoverable as arrears of land revenue.
It is unnecessary in the circumstances to 476 consider whether the provisions of section 286(1) are mandatory or directory.
It was urged in the alternative that after selling the immovable property which realized more than Rs. 23,50,000/ the Collector should not have sold the movable property, for the claim for which the properties of the Company were put up for sale, was only Rs. 8,38,176 13 0.
At first blush there is force in this argument.
Why the Collector thought it necessary to sell the movables after the immovable property was knocked down to the Cawnpore Sugar Works Ltd. for Rs. 23,50,000/ was never explained.
After the immovable property belonging to the Company was knocked down to the purchasers for an amount of Rs. 23,50,000/ it was apparently not necessary to hold the auction for sale of movables valued at Rs. 7,64,817/ and to accept a bid of only Rs. 2,75,000/ .
The argument that the movables were of no use to any person other than the purchaser of immovable property is without substance.
The movables sold we 're the tools and workshop plant, mill stores, spare parts and furniture, and it is difficult to accept the contention that these movables were of no value except to the purchaser.
But the Company raised no contention in this behalf before the Commissioner, nor in the petition before the High Court.
The question was also not argued before the High Court in that form.
We cannot at this stage investigate the reasons why movables valued at Rs. 7,64,817/ were put up for sale and sold when it was not necessary to sell them to realise the dues.
It was then urged that the Income tax Officer had, by intimation dated December 11, 1954, asked the Collector to stay the sale proceeding for recovery of income tax dues amounting to Rs. 81,821 2 0.
For some reason, which is not clear from the record, the Collector ignored the intimation given by the Income tax Officer and proceeded to put the property to sale.
He included the amount in the sale proclamation, overruling the protests of the Company, and sold the properties for recovery of a consolidated amount which included Rs. 81,821 2 0 due as income tax.
But on that account the sale is not illegal or irregular.
An amount exceeding Rs. 7 lakhs was recoverable for the sugarcane cess and the cane price and the immovable property of the Company could have been put up for sale for recovery of those dues.
The sale is not proved to be vitiated on the ground of any material irregularity or mistake in publishing or conducting it, and it is therefore not liable to be set aside.
It was finally con that the Company was prevented from exercising its right under r. 285 H of the rules framed under U.P. Act 1 of 1951, because the purchaser at the sale was appointed, by order of the Central Government, Authoriged Con 477 troller of the factory of the Company, and all the properties of the 'Company were put in +.he possession of the purchaser, and that the Company was unable to raise the requisite amount to be deposited under r. 285 H. Under r. 285 H any person whose holding or other immovable property has been sold under the Act may, at any time within thirty days from the date of sale, apply to have the sale set aside on his depositing in the Collector 's office (a) for payment to the purchaser, a sum equal to 5 per cent.
of the purchase money; and (b) for payment on account of the arrear, the amount specified in the proclamation in Z.A. Form 74 as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been paid on that account; and (c) the cost of the sale.
If the deposit is made, the Collector shall pass an order setting aside the sale.
It was open to the Company under r. 285 H even after the bids were accepted to deposit 5 per cent.
of the sum realised by sale of the immovable property and to pay the amount due for the recovery of which the sale was ordered and the cost of the sale.
But no attempt was made to deposit the amounts mentioned in cls.
(a), (b) & (c) of r. 285 H.
The contention that the Company was unable to make the deposit under Rule 285 H because the purchaser was appointed Authorised Controller was also not raised before the Commissioner and the High Court.
The argument that if the movable property had not been sold, the Company may have raised the amount liable to be deposited under cls.
(a), (b) & (c), but by sale of those properties and purchase of the same by a person who was shortly after the purchase appointed the Authorised Controller prevented the Company from exercising the right under r. 285 H is hypothetical.
Again even that argument was not raised before the Commis sioner, nor in the petition, nor in the arguments before the High Court.
Evidently, the Company was required to comply with the provisions of r. 285 H for having the sale set aside to deposit an amount of Rs. 9,50,000/ besides the cost of the sale.
Even if the movables had not been sold, and assuming that they were of the value of Rs. 7,64,817/ the movables were not sufficient to enable the Company to raise the amount required for deposit under r. 285 H. The contentions raised by the Company fail and the appeal is dismissed.
We are, however, of the view, especially because of the action of the Collector in putting the movables to sale even Sup CI/69 12 478 after the immovable property realised an amount very much in excess of the dues, and ignoring the intimation sent by the Income tax Officer to stay the sale proceeding, which has involved the Company in loss of property of substantial value, that the parties should bear their own costs throughout.
Y.P. Appeal dismissed.
| IN-Abs | The amount of dues under the Indian Income tax Act, 1922 the U.P. Sugar Factories Control Act.
1938 and the were recoverable as arrears of land revenue.
Section 286(1) of the U.P. Zamindari Abolition & Land Reforms Act provides that if any arrears of land revenue could not be recovered by any of the processes mentioned in cls.
(a) to (e) of section 279, the Collector may realise the same by attachment and sale of the interests of the defaulter in any other immovable property of the defaulter, and section 286(2) provided that money recoverable as arrears of I" revenue, may be recovered by process "under this section" from any immovable property of the defaulter.
As the appellant company was unable to meet its liabilities in respect of income tax dues, sugar cess and the amount due for cane supplied to it, the immovable property of the company were sold to meet the dues.
The appelant challenged the sale contending that (i) the immovable prop" of the company would be attached and sold only after the processes prescribed in cls.
(a) to (a) of a. 279 ie.
by the age of movable properties were resorted to; (ii) the sale was illegal or irregular as the Collector ignored the intimation of the Income tax Officer staying the sale for recovery of income tax; and (iii) the appellant was prevented from raising funds for making the deposit as provided by r. 285H (of the rules framed under the Act) for setting aside the sale as the purchaser was appointed as the Authorised Controller and put in possession of all the properties of the appellant.
Dismissing the appeal this Court, HELD : (i) Power to recover arrears of land revenue from a defaulter is governed by the processes mentioned in cls.
(a) to (e) of section 279 of the Act and section 286(1) places certain restrictions upon the power of the Collector to recover land revenue by attachment and sale of lands other than the holding in respect of which the land revenue is due.
But the restrictions on the power of the Collector operated only when land revenue is in arrears.
Restrictions, if any, upon the p ower of the Collector to recover dues under statutes, as arrears of land revenue arise, from the statute which is the source of the liability and not from the U.P. Zamindari Abolition & Land Reforms Act, which merely sets out the processes for recovery of the dues.
To hold that sub section
(2) of section 286 requires the Collector in the first instance to recover out of the movable property or by arrest and detention of the defaulter before immovable property of the defaulter is attached and sold is to amend the substantive provisions of the Acts under which the liability for money due is recoverable as land revenue.
For instance, under a. 46 of the Income tax Act, 1922, the powers exercisable by the Collector in recovering arrears of income tax, which are recoverable as arrears of land revenue are not restricted to the Land Revenue Code; the Collector is entitled to exercise all the powers of ' a Civil Court for the purpose of recovery of an amount due under a decree under the Code of Civil Procedure, an the Code, of Civil procedure im 469 poses no obligations to recover the dues by sale of movables or by arrest and detention of the defaulter before immovable property may be attached.
The provisions of the Act, which authorise recovery of sums of money as arrears of land revenue, do not require the Collector to follow any sequence of the processes for recovery; it is competent to the Collector to resort to any process prescribed by section 279 in aid of recovery of the dues which are recoverable as arrears of land revenue, [473 H 474 D; 475 H] (ii) The sale was not illegal or irregular for the reason that the Collector ignored the intimation of the Income tax Officer staying the sale for recovery of income tax dues.
The immovable property could have been put up for sale for recovery of sugar cane cess and the cane price which were many times more than the income tax dues.
[476 G] (iii) There was no force in the contention that the appellant was unable to raise funds and make the deposit under r. 285H because the purchaser was appointed the Authorised Controller, who took possession of all the properties of the Company.
The appellant could not comply with the provision of r. 285H for having the sale set aside as the movables were not sufficient to enable the appellant to raise the amount required for deposit under r. 285H. [476 H]
|
Appeal No. 812 of 1966.
Appeal by special leave from the judgment and order dated May 13, 1965 of the Rajasthan High Court in D.B. Civil Ref.
No. 18 of 1963.
M. C. Chagla and K, Baldey Mehta, for the appellants.
Sanpat P. Mehta, 0.
P. Mathotra, J. B. Dadachanji and 0.
C. Mathur, for the respondent.
The judgment of the Court was delivered by Shah, J.
The respondent carries on the business of fabricating steel doors, windows, sashes and other goods".
On April 20, 1957, the respondent submitted in pursuance of an invitation by the Executive Engineer, Ajmer Central Division, its tender for providing and fixing " S.H. Windows 'W ' Type", "S.H. Windows 'W1 ' Type" "T.H. Windows" and "Composite Windows" of certain sizes "in accordance with the specifications, designs, 'drawing and instructions".
The tender wag accepted and the respondent carried out the contract.
The Sales Tax Officer 'B ' Circle, Jaipur City included in the taxable turnover of the respondent Rs. 23,480/ received under the contract.
He held that the contract with the Executive Engineer was one of sale of goods and the respondent had with a view, to promote sales of goods manufactured by it "voluntarily offered to fit" the goods and had made no separate charge for that service.
The Deputy Commissioner Excise & Taxation in appeal held that from the acceptance of the tender, two contracts resulted : one for providing doors and windows and another for "fixing" those doors and windows in a specified building, and that the price of, the supplied but not the charge for service, was taxable.
He accordingly remanded the case with a direction to assess tax on.
the price for sale of materials only.
The Board of Revenue exercising revisional power confirmed the order passed: by the Deputy Commissioner observing that the contract undertaken by the respondent was not a contract of service.
The following question was referred by the Board of Revenue to the High Court of Rajasthan "Whether on the proper interpretation of the contract between the applicant and the Executive Engineer, C.P.W.D.,.
Ajmer, regarding; the providing and fix ' of the steel windows to the Accountant General 's 507 Office, Jaipur, and looking to the terms of the transaction of the, type undertaken by the applicant the Board were justified in holding that the contract was,, divisible between two parts representing the sale of the window, , and the labour charges in fixing the same and thus partly liable to sales tax ?" The High Court held that the contract between the respondent and the Executive Engineer was a "building contract" and the amount received by the respondent was not taxable.
The relevant terms of the tender which was accepted by the Executive Engineer were : "Item Rate tender for Works I/We hereby tender for the execution for the President of India of the work specified in the under written memorandum within the time specified in such memorandum at the rates specified therein, 'and in accordance in all respects with the specifications, designs, drawing, and instructions in writing referred to in Rule 1 hereof and in Class 11 of the conditions of contract and with such materials as are provided for by and in all other respects in accordance with such conditions so far as applicable." This recital was followed by a memorandum setting out the general description,, of the building in respect of whichthe window leaves, were to be supplied the estimated cost of thecontact and the description and the number of items of work offered to be done ' The items of work offered to be done were "providing and fixing" four different types of windows.
The relevant conditions were "1.
The work shall be executed.
as per the specifications attached.
The work is to be completed in, 6 months from the date: of award of works.
The windows, are to be fitted with rawl plugs in cut stoneworks.
Work will be executed either by plain glass or ground glass as may be decided by the Engineer in Charge,.
Note 1. 2.
We are offering windows which will be glazed with plain glass only.
If at a later date it is 508 desired to have windows glazed with ground glass, the difference in cost of glass will have to be Paid by you.
3. 4. 5.
The quotation is based on the current prices of mild steel billets fixed by the Government.
Should there be any change in the controlled price of billets supplied to us, proportionate revision in the cost of rolled sections used in the fabrication will be made in the quotation.
Sales Tax or any other tax is applicable will be extra.
Work will be completed in 6 months from the date of order.
" These were followed by, specifications relating to the steel to be used in the fabrication, glazing, fittings and finish of the windows.
The respondent offered to execute and complete the "work" mentioned in the written memorandum according to the specifications and conditions.
In the view of the High Court the contract was for work, in the execution of which some movable property passed : it was not a contract for sale of windows and for rendering service in connection with the fixing of those windows.
Counsel for the State of Rajasthan contends, that the respondent carried on the business of fabricating and selling window and door leaves and sashes etc.
and entered into a contract for "sale of windows", and to promote sale of its manufactured goods, undertook to fix the windows without demanding any charge for that service, and the High Court was in error in holding that the contract was one of service in the execution of.
which property in the materials supplied by the respondent passed.
Counsel urged that the terms of the tender were not decisive and the Court was entitled to ascertain the true effect of the contract as disclosed by the nature of the work, and the "invoice" for payment made out by the respondent.
Counsel submitted that it is usual for manufacturers or dealers in specialized articles to arrange to "fix and "service" the articles.
sold by them and on that account the contract does not acquire the character of a contract of service.
He gave instances of sale of motor tyres, luggage carriers, air conditioning units, refrigerators and contended that in undertaking to install or fix these units or articles the sellers do not enter into a works contract merely because they undertake to install or for the articles sold.
so as to make them fit for immediate service.
But whether a particular contract is one for sale of goods or is 509 a contract for service depends upon the main object of the parties gathered from the terms of the Contract, the circumstances of the transaction, and custom of the trade, and no universal rule applicable to all transactions may be evolved.
As observed in Halsbury 's Laws of England, 3rd Edn., Vol.
34 article 3 at p. 6 A contract of sale of goods must be distinguished from a contract for work and labour.
A contract of sale is a contract whose main object is the, transfer of the property in, and the delivery of the possession of, a chattel as a chattel to the buyer.
Where the main object of work undertaken by the payee of the price is not the transfer of a chattel qua chattel, the contract is 'one for work and labour.
The test is whether or not the work and labour bestowed and in anything that can properly become the subject of sale; "neither the ownership of the materials, nor the value of the 'skill and labour as compared with,the value of the materials is conclusive, altho ugh.
such matters may be taken into consideration in determining, in the circumstances of a particular case, whether the contract is in substance one for work and labour or one for the sale of a chattel.
" What did the respondent agree to do when it offered its tender ? Did the respondent agree to sell the window leaves as described in the tender or did it,, as part of a works contract, agree to "fix" windows of certain Specifications in the building intended to be used for the offices of the Accountant General ? On a consideration of all the circumstances, We are of the view that the object of the respondent was to enter into a works contract.
That clearly appears from the terms of the tender and its acceptance.
The windows were to be fabricated according to the specifications with glass plain or ground as decided by the Engineer in Charge, and were to be "fixed" within six months from the date of its acceptance "to the building with rawl plugs in cut stone work.
" The rate quoted by the respondent was based on the current price of mild steel billets, and the price was to be revised in the light of cost revision of the controlled price of steel supplied to the respondent.
The contract undertaken by the 'respondent was to prepare the window leaves according to the specifications and to fix them to the building.
There were not two contracts one of sale and another of service.
"Fixing" the windows to the building was also not incidental or subsidiary to the sale, but was an essential term of the contract; The window leaves did not pass to the Union of India under the terms of the contact as window leaves.
Only on the fixing of the windows as stipulated, the contract Sup.
C1169 14 510 could be fully executed and the property in the windows passed on the, completion of the work and not before.
It was said by this Court in The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd.(1) that in a building contract which is one.
entire and indivisible, there is no sale of goods.
In the case of a building contract the property in materials used does not pass to the other party to the contract as movable property.
In the absence of an agreement to the contrary, the materials in the construction of a building become the property of the other party, to the contract only on the theory of accretion.
In The Government of Andhra Pradesh vs Guntur Tobaccos Ltd.(2) this Court pointed out (at p. 255): "A contract for work in the execution of which goods are used may take one of three forms.
The contract may be for work to be done for remuneration and for supply of materials used in the execution of the works for a price; it may be a contract for work in which the use of materials is 'accessory or incidental to the execution of the work; or it may be a contract for work and use or supply of materials though not accessory to the execution of the contract is voluntary or gratuitous.
In the last class there is no sale because though property passes it does not Pass for a price.
Whether a contract is of the first or the second class must depend upon the circumstances; if it is of the first, it is a composite contract for work and sale of goods; where it is of the second category, it is a contract for execution of work not involving sale of goods.
" The contract in question in this case is of the second variety.
Counsel relied upon Patnaik and Company vs State of Orissa(3) and Mckenzies Ltd. vs The State of Maharashtra.
(4) But in both these cases the Court held on a consideration of the terms of the contract and the circumstances that the assessees had agreed to and did supply "motor bus being one for sale of chattels, they were liable to pay sales tax.
Our attention was also invited to Commissioner of Sales Tax, Maharashtra State, Bombay vs Arun Electrics.(5) In that case a firm of electrical contractors undertook the job of installing electrical fittings in the houses of their customers, which involved the supply and fixing of goods, such as wire, brass clips, wall brackets 'and tube lights with accessories.
The assessees charged (1) 9 S.T.C. 353.(3) 16 S.T.C. 364 (S.C.).
(2)16 S.T.C. 240 (S.C.).(4)16 S.T.C. 518 (S.C.).
(5)16 S.T.C. 385.
511 their customers consolidated rates for the materials consumed and labour involved, in carrying out the contracts.
The Sales Tax Officer charged to tax under the Bombay Sales Tax Act, 1959, the value of materials supplied in carrying out the contracts.
It was held by the High Court of Bombay that the transaction of the assesses with their customers was not a pure works contract, but a combination of two distinct and separate contracts, one for the supply or the sale of goods for consideration, and the other for the supply of work and labour, and only that part of the contract, which consisted.
of supply of goods for consideration, was liable to tax under the Sales Tax Act.
That case was brought in appeal to this Court at the instance of the assessees.
This Court in Arun Electrics, Bombay vs Commissioner of Sales Tax, Maharashtra State(1) discharged the answer recorded by the High Court, holding that the conclusion recorded by the Deputy Commissioner and the Tribunal were based on no evidence, and the High Court could not record, on the facts found, an answer to the question referred.
The Deputy Commissioner had proceeded only upon the terms of the invoice in which a charge was made for supplying and "fixing" the materials and providing light points complete with 1/8 CTS wire, brass clips, tapes and all approved accessories.
The conclusion of the departmental authorities was not based on any intention of the parties as disclosed by the evidence, but plainly on the terms of the bill which was ambiguous.
In The State of Madras vs Richardson & Cruddas Ltd. (2 ) the assessees without a formal contract agreed to supply fabricate and erect steel structures for a sugar factory.
The assessees completed the contract.
A bill was submitted by the assessees for charges for fabrication, supply and erection of steel structures at certain rates.
The High Court of Madras on a consideration of the evidence held that there was a stipulation for a consolidated lump sum Payment of Rs. 1,160/ per ton for fabricating, supplying and treating at site all steel work etc; there was no stipulation for passing of property in the goods to the factory before actual completion of the erection work; there the contract did not contemplate dissecting the value of the goods supplied and, the value of work and labour bestowed in the execution of the work; and the predominant idea underlying the contract was the bestowing ,of special skill and labour by the experienced engineers and mechanics of the assessees.
This Court agreed with the High Court and held that the contract was a works contract and not a contract for sale.
Our attention was invited to a judgment of the Court of Appeal in Love vs Norman Wright (Builders) Ltd. (3) In that case the (1) 17 S.T.C. 576.
(3) (2) 21 S.T.C. 245.
512 respondents contracted With the Secretary of State for War to do the work and supply the material mentioned jot the Schedules to the contract, including the supply of 'black out curtains, curtain rails and battens and their erection at a number of police stations.
It was held by, the Court ' of Appeal that the respondents were liable to pay purchase tax.
Reliance was placed upon the observations made by Goddard, L.J. at p. 482: "If one orders another to make and fix curtains at his house the contract is one of sale though work and labour are involved in the making and fixing, nor does it matter that ultimately the property was to pass to the War Office under the head contract.
As between the plaintiff and the defendants the former passed the property in the goods to the defendants who passed it on to the War Office.
" We do not think that these observations furnish a universal test that whenever there is a contract to "fix" certain articles made by a manufacturer the contract must be deemed one for sale and not of service.
The test in each case is whether the object of the party sought to be taxed is that the chattel as chattel passes to the other party and the services rendered in connection with the installation are under a separate contract or are incidental to the execution of the contract of sale.
In the present case, the specifications of the windows were set out in the contract.
The primary undertaking of the respondent was not.
merely to supply the windows but to "fix" the windows.
The service is not rendered under a separate contract nor is the service shown to be rendered customarily or normally as incidental to the sale by the person who supplies window leaves.
The "fixing" of windows in the manner stipulated required special technical skill.
If the windows were not properly "fixed" the contract would not be complete, and the respondent could not claim the amount agreed to be paid to it.
We agree with the High Court that it was only upon the "fixing" of the window leaves and when the window leaves had become a part of the building construction that the property in the goods ' passed under the terms of the contract.
The appeal fails and is dismissed with costs.
Y.P. Appeal dismissed.
| IN-Abs | The respondent, a fabricator of steel windows, submitted a tender for 'Providing and fixing ' window leaves in a building.
The window leaves.
were to be fabricated according to the specifications in the contract and.
were to be fixed within six months from the date of acceptance to the: building with rawl plugs in cut stone work.
The 'rate quoted by the respondent was based on the current price of mild steel billets and the price was to be revised in the light of cost revision of the controlled price of steel.
The tender was accepted and the respondent carried out the contract.
The Sales Tax Officer levied sales tax on the amount received. under the contract holding that the contract was for sale of goods and to promote its sale the respondent undertook to fix the windows without demanding any charge for that service.
But in appeal the Deputy Commissioner Exercise & Taxation held that two contracts resulted : one for Providing windows and the other for fixing them in the building, and that the price of goods supplied, but not the charge for service was taxable.
The Board of Revenue confirmed the order passed by the Deputy commissioner observing that the contract was not a contract of service.
On reference, the High Court held that it was a building contract and amount received was not taxable.
In appeal, this Court, HELD : It was a contract for rendering service and the amount received by the respondent was not taxable.
Whether a particular contract is for sale of goods or is a contract for service depends upon the main object of the parties gathered from the.
terms of the contract, the circumstances of the transaction, and the custom, of the trade, and no universal rule applicable to all transactions can be evolved.
[509 A] In this case, the primary undertaking of the respondent was not merely to supply the windows but to 'fix ' the windows.
This service was not rendered under a separate contract, nor was shown to be rendered customarily or normally as incidental to the sale by the person who supplied ' window leaves.
The fixing of the windows in the manner stipulated required special technical skill.
If the windows were not properly 'fixed ' the contract would not be complete, and the respondent could not claim the amount agreed to be paid to it.
It was only upon the 'fixing ' of the window leaves and when the window eaves had become a part of the building construction that property in the goods passed under the terms of the contract.
[512 E G] The State of Madras vs Gannon Dunkerley & Co. (Madras ) Ltd. 9S.T.C. 353; The Government of Andhra Pradesh vs Guntur Tobaccos Ltd., 16 S.T.C. 240: (S.C.); Patnaik and Company vs State of Orissa, 16 S.T.C. 364 (S.C.); Mckenzies Ltd. vs The State of Maharashtra, 16 S.T.C. 518 (S.C.); Commissioner of Sales tax, Maharashtra State, Bombay vs Arun.
, 506 Electrics 16 S.T.C. 385; Arun Electrics, Bombay vs Commissioner of Sales Tax, Maharashtra State, 17 S.T.C. 576; The State of Madras vs Richardson Cruddas Ltd., 21 S.T.C. 245; Love vs Norman Wright (Builders) Ltd., [1944] 1 K.B. 484, referred to.
|
Appeal No. 1621 of 1967.
CI/69 15 526 Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated August 4, 7, 8, 1967 of the Mysore High Court in Election Petition No. 2 of 1967.
B. section Patel, section Paramila and R. B. Datar, for the appellants.
A. K. Sen, section section Javali and M. Yeerappa, for respondent No. 1 Shyamala Pappu and section P. Nayar, for respondent No. 2.
The Judgment of the Court was delivered by Bhargava, J.
This appeal under section 116A of the Representation ofthe People 's Act, 1951 (hereinafter referred to as "the Act") has been filed by two appellants whose election petition for setting aside the election of respondent No. 1 has been ,dismissed by the High Court of Mysore.
Appellant No. 1 was one of the candidates who filed his nomination for election to the Mysore Legislative Assembly from Shiggaon Constituency in the District of Dharwar.
Appellant No. 2 was a voter in that constituency.
The notification fixing the time schedule for the elections was issued on the 13th January, 1967, fixing 20th January, 1967 as the last date for filing nominations, 21st January, 1967 as the date of scrutiny, and 23rd January, 1967 as the last date for withdrawal of candidature.
According to the appellants, only eight candidates filed their nominations within time up to 20th January, 1967.
One of them was appellant No ' 1.
Respondent No. 1 was not included amongst the seven other candidates and his nomination paper was subsequently introduced amongst the records of the Returning Officer on behalf of respondent No. 1 with the aid of the Returning Officer.
The Returning Officer is respondent No. 2 in the appeal, having been impleaded as respondent No. 2 in the election petition also.
It was further pleaded that, even if any nomination paper was filed by respondent No. 1, it was not accompanied by the relevant portion of the electoral roll in which the name of respondent No. 1 appeared as a voter which was necessary, because respondent No. 1 was not a voter in this constituency, but in a different constituency.
No deposit as required by section 34 of the Act was made in time; and, further still, respondent No. 1 was not qualified to be chosen to fill the seat in the Legislature, because he had not made and subscribed before the person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule to the Constitution as required by Article 173 (a).
It was alleged that, despite all these defects.
respondent No. 1 was declared elected unopposed on the date of scrutiny on the incorrect ground that all other candidates had withdrawn their candidature.
The appellants accepted the 527 genuineness and validity of the withdrawals by the seven other candidates, leaving appellant No. 1 as the sole contesting candidate.
The further case was that, in order to have respondent No. 1 returned unopposed, corrupt practices were committed to obtain a withdrawal form signed by appellant No. 1 and it was filed illegally before the Returning Officer.
The version relating to the commission of corrupt practices and to the filing of the withdrawal forms of appellant No. 1 may now be stated.
The appellants allege that the whole manoeuvring was done by one Patil Puttappa, Member of Parliament, who was a staunch supporter of respondent No. 1, and by Mahalinga Shetty, the son in law of respondent No. 1.
These two persons caught hold of two other persons, Hotti Peerasabnavar Chamensab Ghudusab (hereinafter referred to as "P. W. 3"), and Nadaf Mohamad Jafar Saheb (hereinafter referred to as "P. W. 4"), and through them, attempted to induce appellant No. 1 to withdraw his nomination by promising to get him a long awaited huller licence and also to get him better patronage for his book selling business and for receiving other aid and support for his material prosperity.
The appellants allege that this inducement was offered without disclosing that respondent No. 1 's candidature was spurious.
For this purpose, on 20th January, 1967, at about 8.30 p.m., while appellant No. 1 was sitting at the shop of one Joshi, a car arrived from which P.W. 4 got down, came to appellant No. 1 and told him that Patil Puttappa was calling him and requesting him to go with him.
Appellant No. 1 went with P. W. 4 towards the car in which Patil Puttappa was sitting.
The latter asked appellant No. 1 why he should further trouble himself with election matters when he had enough work in connection with the shop, flour mill and his garden lands.
He added that it will be to the advantage of appellant No. 1 to withdraw his nomination, promising that he would assist him in his trade, assist him an agency for paper and would help him to secure a licence: for his huller which, he said, he had heard he was trying to obtain without success.
Appellant No. 1 replied that he had filed his nomination with a view to contest the elections as his candidature had been sponsored by many people and he was not willing to withdraw his nomination.
In spite of requests having been made two or three times, appellant No. 1 refused.
At a later stage, when he asked why be should withdraw his nomination, Patil Puttappa told him that they desired uncontested return of respondent No. 1, and that was the reason why they were making that request.
Appellant No. 1 then objected saying that respondent No. 1 bad not filed his nomination, whereupon Patil Puttappa stated that every necessary arrangement would be made to secure the uncontested return of respondent No. 1.
At the time, of this talk, Mahalinga Shetty was a so sitting in the car.
When appellant No. 1 continued to be hesitant, Patil Puttappa asked him to go with him in the car and, in, this 52 8 suggestion, P. Ws. 3 and 4 Supported him.
Appellant No. 1 first declined to do so because he was not prepared to accede to the request for Withdrawing his nomination, but, on Patil Puttappa 's persistence, he agreed to go along, provided appellant No. 2 also accompanied him.
Appellant No. 1 then went to the shop of appellant No. 2 and, thereafter, both of them got into the car and were taken to the house of one Hanumanthagouda Ayyangouda Patil (hereinafter referred to as "R. W. 3").
Patil Puttappa, Mahalinga Shetty and the two appellants all went inside the house of R. W. 3 and sat there when Patil Puttappa once again made a request to appellant No. 1 to withdraw his nomination.
Appellant No '.
1 refused, while appellant No. 2 also supported him by stating that appellant No. 1 had full support of the Muslims of the locality and that there was every chance of his success, so that there was no point in his withdrawing the nomination.
Thereafter, Patil Puttappa changed his tactics and told appellant No. 1 that it would neither be good nor safe for him to continue to refuse his request and threatened him by asking whether he would like to go on with the, election or prefer to live in safety.
He added that he was a Member of Parliament and, therefore, he could do anything to appellant No. 1He also produced a blank printed form and two blank sheets ofwhite paper and asked appellant No. 1 to sign them, giving thethreat that he will not be allowed to go, unless he affixed his signatures to them.
When appellant No. 1 looked for support to appellant No. 2, the latter was also similarly threatened, whereupon he said that there was no escape and, consequently, appellant No. 1 should sign the papers as desired by Patil Puttappa.
Against his will and submitting to the pressure of Puttappa, appellant No. 1 signed the papers which were taken away by Puttappa who left asking R. W. 3 not to permit the two appellants to go away, unless Puttappa himself told him ' to let them go.
The two appellants, according to them, were kept confined in the house of R. W. 3 throughout the night of 20th January and again throughout the day and night of 21st January,, 1967.
They were only allowed to leave the house at about 4 30 a.m. on 22nd January, 1967, when a servant of R. W. 3 woke them up and told them that they could go away.
The charge put forward on the basis of these facts was that an attempt was made to bribe appellant No. 1 to withdraw his nomination by offering him help in obtaining the licence for the huller and in getting him agency for paper, with the further charge that signatures on the withdrawal form were obtained by undue influence.
It was further pleaded that that withdrawal form was filed before the Returning Officer by some one other than appellant No. 1 or his election agent.
The case put forward in the election petition, thus, was that the withdrawal from candidature of appellant No. 1 was attempted to be obtained by offering inducements and by subjecting him to threats and by exercise of undue influence in 529 which assistance of the Returning Officer was procured.
In the 'Commission of these corrupt practices, there was consent of respondent No. 1, so that the election of respondent No. 1 was void.
In order to prove the consent of respondent No. 1 to the commission of the corrupt practices, the case put forward was that, subsequent, to the alleged withdrawal of candidature by all the other candidates including appellant No. 1, leaving respondent No. 1 as the sole candidate, respondent No. 1 met P. Ws. 3 and 4 and gave them an assurance that the promises which had already been made to assist appellant No. 1 will be honoured.
The further version put forward on behalf of the appellants, subsequent to their release from 'the house of R. W. 3, is that, when they came out of the house towards the ' Poona Bangalore Road, they felt ashamed to show their faces in their own town of Shiggaon and, consequently, decided to go to Hubli for a few days.
A truck happened to pass there.
carrying some goods and, since they had some money, they took a lift in the truck and went to Hubli.
They went to a canteen for refreshments and on the table they found an issue of a newspaper 'Samyukta Karnataka ' in which appeared a news item stating that respondent No. 1 had been returned uncontested at Shiggaon.
Appellant No. 1 felt surprised, because be had not withdrawn his nomination,, He consulted appellant No. 2 and the two of them, after thinking over, realised that advantage must have been taken against them of the papers which appellant No. 1 had been made to sign at the ,house of R. W. 3.
They, therefore, decided to see a lawyer and selected Sadashiv Shankarappa Settar (hereinafter referred to as "P. W. 2") because, besides being a lawyer, he was also a candidate in the election.
They went to his house twice at about 9 a.m. and again at about 12 30 or 100 p.m., but he was not at home.
They waited on, the second occasion until about 2 30 p.m. when he returned and, after taking his meals, he ultimately talked to them at 3 p.m.
As a result of the consultation P. W. 2 drafted a telegram which was despatched by the appellants at about 4 35 p.m. to the Returning Officer.
In the telegram, it was mentioned by appellant No. 1 that he had read in a newspaper that he had withdrawn which was false as he had not withdrawn and the withdrawal form was not presented by him.
He added that he did not know who had filled in the contents of the withdrawal form and who had presented it and, consequently, wanted the Returning Officer to treat it as invalid, adding that he was still contesting the election from the Shiggaon constituency.
The Returning Officer received it on the same evening, i.e., on 22nd January, 1967, but noted on it that, since it was a telegram, it could not be acted upon or considered.
Thereafter, appellant No. 1 addressed a meeting late at night in a locality called 'Durgada Bailu ' in Hubli where election propaganda was going on.
After taking further steps next day, the appellants continued to stay in 530 Hubli for 2 or 3 days and they ultimately returned to Shiggaon on the 25th January, 1967.
On these pleadings, the case put forward was that appellant No. 1 had never with drawn his candidature and that, since respondent No. 1 had never filed his nomination paper and all other candidates had withdrawn, appellant No. 1 was entitled to be declared elected unopposed.
In the election petition, therefore, in addition to the relief for declaration of the election of respondent No. 1 as void, appellant No. 1 also claimed a declaration that he was the duly elected candidate from the Shiggaon constituency.
The point that was put in the fore front by Mr. B. section Patil, learned counsel for the appellants, and was argued first.
relates to the challenge of the validity of the election of respondent No. 1 on the ground that he was disqualified for failure to make or subscribe an oath or affirmation in accordance with the provisions of article 173 (a) of the Constitution.
In the election petition, it was pleaded that the oath or affirmation should have preceded the filing of the nomination paper, so that, even if any oath or affirmation was made subsequent to the filing of the nomination paper, it would be invalid and would not avoid the disqualification.
On behalf of respondent No. 1, the reply in the written statement was that respondent No. 1 did, in fact, make an affirmation before the Returning Officer of this very constituency of Shiggaon on the date of the scrutiny, viz., 21st January, 1967, before the Returning Officer scrutinised the nomination paper of respondent No. 1.
Evidence was also led to show that, on 21st January, 1967, respondent No. 1 did arrive, at the office of the Returning Officer just before the scrutiny of his nomination paper was being taken up and he immediately proceeded to make the affirmation.
Prior to his arrival, his nomination paper for another constituency Kundagaol was rejected by the Returning Officer on the ground that no affirmation had been made and respondent No. 1 was disqualified under article 173 (a).
It may be mentioned that this Returning Officer was functioning as such for three different constituencies, Shiggaon, Kundagol andShirahatti, though his Headquarters were temporarily located atShiggaon.
Since the affirmation was made before the ReturningOfficer by respondent No. 1 prior to the scrutiny of his nomination paper for Shiggaon Constituency, the Retuning Officer held that respondent No. 1 was not disqualified under article 173(a), and declared his nomination as valid.
These facts were accepted by the High Court in this case and the High Court upheld the view of the Returning Officer that the affirmation made prior to the scrutiny of his own nomination paper by respondent No. 1 was full compliance with the requirements of Article 173(a).
The High Court repelled the argument advanced on behalf of the appellants that the affirmation should have been made before the 531 filing of the nomination paper.
In the course of arguments on this point before us, however, neither party stuck to the position that was taken up by it before the High Court.
On behalf of the, appellants, the alternative legal position relied upon was that, in any case, the affirmation should have been made before the date of scrutiny, so that, in the present case, it should have been latest by the midnight between 20th and 21st January, 1967.
This plea for challenging the validity of the election of respondent No. 1 was not taken either in the pleadings or even at any later stage: in the High Court.
In fact, it was taken here for the first time on the basis of a decision of this Court in Pashupati Nath Singh vs Harihar Prasad Singh.(1) In that case, this Court has clearly held that the effect of the provision contained in section 3 6 (2) (a) of the Act is that the oath or affirmation must be before the date fixed for scrutiny, so that the candidate possesses the qualification under article 173(a) of the Constitution on the whole of the day on which the scrutiny of nomination has to take place.
Even though this ground was not raised in the High Court, we consider that we cannot.now ignore it and we have to hold that the High Court was incorrect in rejecting the plea of the appellants on the ground that a valid affirmation had been made by respondent No. 1 on 21st January, 1967 just before the scrutiny of his nomination paper.
In view of this position taken up on behalf of the appellants, Mr. A. K. Sen, learned counsel for respondent No. 1, put forward the alternative plea that respondent No. 1 was not disqualified under article 173(a) of the Constitution, because he had validly made affirmations at two other places on the 19th and 20th January, 1967.
For this purpose, reliance was placed on the statements made by respondent No. 1 when he was cross examined on behalf of the appellants.
Respondent No. 1 at one stage stated that he filed his nomination at Bagalkot on the 19th January, 1967 between 2 and 3 00 p.m. in the afternoon.
On further cross examination came his statement that, at Bagalkot he subscribed to the affirmation on the very day on which he presented his nomination paper and he also confirmed that he was in a position to affirm on personal knowledge that he had filed his nomination at Bagalkot on the 19th January, 1967.
Similarly, he also stated that he filed his nomination for the Hoovinahadagali Constituency at Hospet and, though he could not give the exact date on which he filed the nomination paper, he remembered that he subscribed to the affirmation there on the night of 20th January, 1967.
It was urged by Mr. Sen that, having made affirmation once either at Bagalkot or at Hospet in accordance with the requirements of law, respondent No. 1 became qualified under article 173 (a) of the Constitution to be a candidate for the Legisla (1)A.I.R. 532 tive Assembly and, therefore, it was immaterial that he did not again make an affirmation in time before the Returning Officer of Shiggaon Constituency.
This claim was resisted by.
Mr. Patil on two grounds.
The first point urged 'was that this was a new case being set up on behalf of respondent No. 1 for the first time in this Court and it should not, therefore, be taken into account.
The second was that, in any case,.
the affirmation at Bagalkot or Hospet could not enure to the benefit of respondent No. 1 for holding him to be qualified under article 173 (a) of the Constitution to stand as a candidate from Shiggaon Constituency.
On the first Point, we consider that, in view, of the position noticed by us earlier, respondent No. 1 is fully justified on relying on this alternative case in this Court, even though it was not put forward during the trial in the High Court.
While the case was being tried in the High Court, the plea put forward by the appellants themselves was different from the plea on the basis of which the affirmation made by respondent No. 1 at Shiggaon on 21st January, 1967 is being held to be insufficient for compliance with the requirements of article 173(a).
In the High Court, that affirmation was challenged solely on the ground that it should have been made prior to the filing of the nomination paper; and that ground, of course, had no force, because the form of affirmation given in the Third Schedule to the Constitution itself makes it manifest that the affirmation must be made after the nomination paper has been filed.
Now that we have permitted the appellants to raise a new ground and rely on the decision given by this Court in Pashupati Nath Singh 's case(1), there is no justification for debarring respondent No. 1 from putting forward the alternative case on the basis of the affirmations made at Bagalkot and Hospet.
The fact of affirmations having been made by respondent No., 1 at those two places before the Returning Officers of those Constituencies was elicited by the counsel for the appellants themselves in the cross examination.
The facts, having come on record, cannot be ignored, so that reliance has rightly been placed on those facts on behalf of respondent No. 1.
On the second point, the argument has proceeded primarily on the language of the notification issued by the Election, Commission in pursuance of clause (a) of article 173 of the Constitution.
Article 173(a) is as follows "173.
A person shall not be qualified to be chosen to fill a seat.
in the Legislature of a State unless he (a)is a citizen of India, and makes and sub cribes before some person authorized in that behalf by the Election Commission an oath or affirmation accord (1) ; 533 ing to the form set out for the purpose in the Third Schedule.
" The notification issued by the Election Commission, which is No. 3/130/65(2), dated 2nd January, 1965, is to the following effect : "In pursuance of clause (a) of Article 173 of the Constitution, and in supersession of its notification No. 3/130/63 (2), dated the 15th November, 1963, the Election Commission hereby directs (a) that candidate for election to the Legislature of a State by an assembly I constituency, or a council constituency, shall make and subscribe the oath or affirmation according to the form set out for the purpose in the Third Schedule to the Constitution, before the Returning Officer or an Assistant Returning Officer for that constituency; and (b)that a candidate for election to fill a seat or seats in the Legislative Council of a State by the members of the Legislative Assembly of the State, shall make and subscribe the said oath or affirmation before the Returning Officer or the Assistant Returning Officer for that election Provided that if any such candidate is at the time confined in a prison or under preventive detention, he may make and subscribe the said oath or affirmation before the Superintendent of the prison or Commandant of them detention camp in which he is so confined or under such detention.
" The controversy between the parties has arisen because of the language used by the Election Commission, in this notification.
The notification requires that a candidate for election to a Legislature, of a State by an Assembly Constituency or a Council Constituency must make and subscribe the oath or affirmation before the Returning Officer or an Assistant Returning Officer for that Constituency.
Mr. Sen urged that this notification can be interpreted in two ways.
The first interpretation sought to be put on it was that, according to this notification, if a person is a candidate for election to the Legislature of a State by an Assembly Constituency, all that it requires is that the affirmation must be made before the Returning Officer of an Assembly Constituency, while, if he is seeking election to a Council Constituency, then the affirmation must be made before the Returning Officer of a Council Constituency.
In putting this interpretation, learned counsel wants us to hold that the expression "Returning Officer for that Constituency" refers to any Returning Officer of a Legislative Assembly or a Legislative Council, as the 1 case may be.
We do not think that this interpretation can be accepted by us.
534 In using the expression "that Constituency", it is clear that the intention of the Election Commission was that, the affirmation must be made before the Returning Officer of that particular constituency from which the candidate is seeking election to the Legislature of the State, whether it be an Assembly Constituency or a Council Constituency.
This was the second interpretation which Mr. Sen himself accepted as a possible one.
This is also the interpretation which was sought to be put on this notification by Mr. B. section Patil on behalf of the appellants.
We think that this interpretation is correct, so that, in order to get over the disqualification laid down in article 173 (a), a candidate must make an affirmation before the Returning Officer or an Assistant Returning Officer of that particular constituency from which he is a candidate.
Mr. Sen 's case is that, even on this interpretation, respondent NO. 1 had qualified to be a candidate, because, when he made the affirmation before the Returning Officer at Bagalkot, he was already a candidate nominated for election from that constituency.
Similarly, when he made the affirmation before the Returning Officer at Hospet, he had already been nominated as a candidate for the Hoovinahadagali Constituency.
The argument was that, once respondent No. 1 had made an affirmation, as required by article 173(a) of the Constitution, before one of the persons authorised by the Election Commission, he had fully complied with the requirements of article 173(a) and, thereupon, he became qualified to be a candidate for election to the Mysore Legislative Assembly.
There was no requirement that that qualification ' must be acquired separately in respect of each constituency from which respondent No. 1 was seeking election.
We are of the view that this submis sion must be accepted.
The purpose of article 173(a) is to ensure that any person,, who wants to be a member of a Legislature of a State, must bear true faith and allegiance to the Constitution of India as by law established and undertake to uphold the sovereignty and integrity of India, and, to ensure this, he must make an oath or affirmation.
Once such an oath or affirmation is made before a competent authority in respect of one constituency, he becomes bound by that oath or affirmation even if he gets elected to the Legislature from a different constituency, so that there is no necessity that he must make oath or affirmation repeatedly on his being nominated from more than one con stituency.
The language of article 173(a) also makes this very clear, because all that it requires is one oath or affirmation in accordance with the form set out in the Third Schedule to the Constitution so as to remove the disqualification from being a candidate for election to the Legislature of the State.
The Article does not mention that the making of oath or affirmation is to be preliminary to the validity.
of candidature in each constituency, and 535 recognises the fact that, once the necessary qualification is obtained, that qualification removes the bar laid down by that Article.
In these circumstances, this ground of disqualification.
for challenging the validity of the election of respondent No. 1 fails and must be rejected.
We may next take up the question of the charges of corrupt practices alleged to have been committed with the consent of respondent No. 1 relating to bribery, undue influence and obtaining of assistance, from a Government servant, viz., the Returning Officer.
In support of these charges, only six witnesses were examined on behalf of the appellants.
Two of them, P. W. 5 and P. W. 6, are appellant No. 2 and appellant No. 1 respectively.
Two other witnesses are Chaman Sab, P. W. 3, and Mohammad Jaffar Saheb, P. W. 4; and the fifth witness is Sadashiv Shankarappa Settar, P. W. 2.
We have already referred to all these witnesses when giving the version put forward on behalf of the appellants.
The only other witness who remains to be mentioned is Hanumanthasa Pawar, P. W. 1, a photographer, who came forward to state that he took a photograph in the office of the Returning Officer at about 5 p.m. on the 21st January 1967, when respondent No. 1 and the Returning Officer were sitting close to each other after the scrutiny of the nomination papers.
He was examined primarily to show the close connection between respondent No. 1 and the Returning Officer, respondent No. 2.
As against these witnesses examined on behalf of the appellants, respondent No. '1 examined five witnesses.
R. W. 1 is respondent No. 1 himself, and R. W. 5 is Hanumanthappa Shivabasappa Hosamani, respondent No. 2, who was the Returning Officer.
A third witness for the respondents is Gadigeppagouda Channaba sanagouda Patil, R. W. 2, who wag first put forward as the official candidate by the Congress from this Shiggaon Constituency, but who himself took active part in persuading respondent No. 1 to PO be a candidate on behalf of the Congress from this Constituency.
The next witness examined is Hanumanthagouda Ayyangouda Patil, R. W. 3, who was the proposer of respondent No. 1 in the nomination paper filed in this Constituency and in whose house, the appellants alleged, they were kept confined from the night of 20th January up to the early hours of the morning of 22nd January, 1967.
The fifth witness is Gurupadappa Basappa Mahalinga Shetty, R. W. 4, the son in law of respondent No. 1.
The High Court, in assessing the value of the evidence given on behalf of the two parties, has expressed the opinion that all the witnesses examined by either side are persons interested in the two rival candidates, except the Returning Officer, R. W. 5, in whose case the High Court has not accepted the charge of partiality brought by the appellants in the election petition.
The High Court, therefore, preferred to rely on the evidence of R.W. 5, and 536 attached very little value to the evidence.
of the other witnesses examined by the two sides.
We are inclined to agree with the High Court with regard to the assessment of the value of the evidence of the witnesses examined by both sides and, even with regard to the evidence of the Returning Officer, R. W. 5, we have the feeling that his evidence must also be accepted with great caution, because 'it cannot be said that he was totally disinterested and independent.
So far as the witnesses examined on behalf of the appellants are concerned, the two appellants themselves are the election petitioners and, very clearly, their testimony has only the value that can be attached to evidence of contesting parties themselves who 'are bound to speak in support of their case.
Mr. Patil particularly relied on the evidence of P. Ws 3 and 4 who, according to the part played by them envisaged in the version put forward on behalf of the appellants, were in a position to state to facts showing that there was offer of bribery to appellant No. 1 and undue influence was also exercised against them.
These witnesses are also admittedly highly interested.
Appellant No. 1 in his statement has come forward with the plea that P. W. 4, Mohammad Jaffar, was one of the persons who was sponsoring his candidature for this election, so that there was a close bond between them.
In fact, the appellants ' further case itself was that appellant No. 1 was approached by Patil Puttappa through P. W. 4 because of the close relations between them.
P. W. 3 also, according to appellant No. 1, was brought in by Patil Puttappa because he was a great friend of P. W. 4 and was expected to influence him in his attempts to persuade appellant No. 1 to withdraw.
Thus, in putting forward their own case, the appellants have shown that P.Ws. 3 and 4 are not independent persons.
P. W. 2 was the lawyer engaged by the appellants for the purpose of putting forward their case that the withdrawal of his candidature by appellant No. 1 was not genuine and had been manoeuvred by persons acting on behalf of respondent No. 1.
Being their lawyer,he cannot be held to be beyond the influence of the appellants.
So far as P.W. 1, the Photographer, is concerned, the High Court has found that there is material in his own evidence indicating that he is not a very reliable person and we find no reason at all to differ from the view taken by the High Court on this point.
Similarly, amongst the witnesses examined on behalf of respondent No. 1, R. W. I is respondent No. 1 himself and, consequently.
the view we have expressed with regard to appellants 1 and 2 will equally apply to him.
R. W. 2 was the official Congress candidate.
He withdrew his candidature and took an active part in persuading respondent No. 1 to be a candidate in his place.
He was, therefore, clearly a person interested in the candidature of respondent No. 1.
R. W. 3 was the proposer 53 7 who nominated respondent No. 1 as the candidate in this Shiggaon Constituency and this manifests his interest in the candidature of respondent No. 1.
R.W. 4 is the son in law of respondent No. 1 who also took active part in arranging that the official candidate R.W. 2 withdrew from candidature and respondent No. 1 was made the candidate on behalf of the Congress in this, Constituency in his place.
None of these four witnesses can,.
therefore, be said to be independent.
So far as the Returning Officer, R. W. 5, is concerned, he was a Government servant and was acting in his official capacity as Returning, Officer in this Constituency.
In assessing, the value of his evidence, however, one fact prominently brought out is.
that he was in the service of the Government of the State of Mysore, while respondent No. 1 was the Chief Minister of the State.
R. W. ' 5 himself admitted that, earlier, when he was posted at Bagalkot as Assistant Commissioner in July, 1963, he, had collected gold for the National Defence Fund and on the occasion of a visit, Smt.
Indira Gandhi and the Chief Minister respondent No. 1, were weighed against gold collected for the" purpose of National Defence Fund.
The weighment of the Chief Minister against gold indicates the attempt made by this witness to please the Chief Minister.
Then, there seems to be Some force the suggestion made that, on the day of scrutiny, them Returning Officer delayed the scrutiny of the nomination paper of respondent No. 1 for the Shiggaon Constituency probably at the suggestion of the workers of respondent No. 1 in order to, give as much time as possible to respondent No. 1 to come and make an affirmation as required by article 173(a), under the, impression that such an affirmation made even on that day would ' be valid and would remove the disqualification under that Article.
On that day, scrutiny of nomination papers of all the three Con stituencies, for which R. W. 5 was the Returning Officer, was top take place.
The scrutiny was begun not at the time fixed for it, but at a later hour and, even in that scrutiny, the nomination papers for Shiggaon Constituency were taken up last of all.
It is true that he rejected the nomination paper of respondent No. 1 for the Kundago Constituency, because respondent No. 1 did not arrive be fore the scrutiny of his nomination paper for that Constituency in Order to make the affirmation; but even that does not show that the Returning Officer was not trying to assist respondent No. 1 as far as possible.
Then, there is the circumstance that respondent No. 1 and this witness were photographed ' together by P. W. 1.
of course, the photographs produced by P. W. I are not of a very reliable character, because the negatives or the original sized Photographs have not been Produced by the Photographer.
The suggestion by Mr. Sen on behalf of respondent No. 1 was that the photographs were actually taken of a numb& of people who happened to be in the office of the Return 538 ing Officer by this photographer, but, for the purpose of urging the argument of close contact between R. W. 5 and respondent No. 1, only a small part of that photograph was enlarged and has been put forward as Exhibit in this case.
The part of the photograph brought before the Court is confined to that in which respondent No. 1 and the Returning Officer appeared, while ,others on both sides of them were excluded.
The photographer, in order to justify his evidence that his photographs included only these two persons, had per force to give an explanation for :non production ' of the negatives and the original sized positives which might have been prepared by him, because the negatives and those prints would have clearly shown other persons also in the photographs.
Despite these facts, we still think that the photographs do givesome indication that the Returning Officer was showing special consideration to respondent No. 1 because he was, the Chief Minister and at least gave him a seat close to himself inside his office.
In all these circumstances, it is not possible to hold that the Returning Officer is a totally independent witness; but, in our opinion, these few circumstances 'not justify our rejecting the evidence of this witness in toto.
The evide nce will have to be scrutinised carefully and must be accepted at least to the extent to which it may be supported by circumstantial evidence.
In connection with the examination of witnesses, great emphasis was laid by Mr. Patil on the fact that Patil Puttappa, who, according to the appellants, was the chief architect in manoeuvring the unopposed return of respondent, No. 1 from 'the Shiggaon Constituency, was not examined as a witness.
It appears that the appellants themselves first summoned Patil Puttappa to produce certain documents for the purpose of show , ing that he was under great obligation to respondent No. 1 making it likely that he might have resorted to all kinds of practices in order to ensure uncontested return of respondent No. 1 to the Legislature.
Patil Puttappa produced a statement showing the income that he received from advertisements given on behalf of the State Government during the period from 1962 63 to 1966 67.
Patil Puttappa was running two papers Viswavani ' and 'Prapancha ' during this period.
For the newspaper 'Viswavani ', the total advertisement charges paid to him 'by the Government in the first year 1962 63 were in the region of Rs. 27,000.
The 'amount progressively increased in the next four years; and in the last year 1966 67, it rose to about Rs. 8 1,000.
It was urged that this shows that he ' had been receiving patronage from the Government of Mysore of which, during this period, respondent ' No. 1 was the Chief Minister.
Further , he was elected as a Member of the Rajya Sabha and was an active worker of the Congress.
The argument was that, 539 in these circumstances, when the charge in the.
election petition was that Patil Puttappa was the main instrument in the commission of corrupt practices, he should have been examined as a witness.
The appellants themselves, no doubt, summoned him to produce the statement of accounts, as mentioned above, but they could not examine him as a witness, because he would have.
been clearly hostile and, by examining him as their witness, the appellants would have conceded to the counsel for respondent No. 1 the advantage of being legally entitled to cross examine him.
Respondent No. 1 also cited Patil Puttappa as one of the witnesses in the list of witnesses filed, but, later, gave him up and ,did not examine him as a witness.
After this failure on the part of respondent No. 1 to examine him, the appellants moved an application to the Court to take his evidence under 0.16, r. 14 of the Code of Civil Procedure as a Court witness.
This application was not accepted by the High Court and, after a long discussion as to the motives which had impelled the appellants to move this application, the High Court rejected it.
Mr. Patil, in this connection, relied on a decision of the Assam High Court in Nani Gopal Swami vs Abdul Hamid 'Choudhury and Another(1) to urge that, though the burden, of proof in the present case in respect of the corrupt practices was initially on the appellants, respondent No. 1 was not altogether absolved from his responsibility to assist the Court by producing the best evidence available after the appellants had tendered their own evidence.
It was urged that, on the failure of respondent No. 1 to examine Patil Puttappa, an adverse inference should be drawn against him.
Reference was also made to a recent decision of this Court in Dr. M. Chenna Reddy vs V. Ramachandra Rao and Another(2) where the non examination of the best person who could have come and given evidence in favour of the candidate who was charged with corrupt practice was taken as one of the circumstances justifying the belief of witnesses examined to prove the corrupt practice on behalf of the opposite party.
This inference was, however, drawn by this Court on the basis that the, Court first found the testimony of witnesses examined against the successful candidate as acceptable, so that the , initial burden which lay on, the election petitioner was discharged to the satisfaction of the Court.
The third case, to which reference was made, is also a recent decision of this Court in R. M. Seshadri vs G. Vasantha Pai(3), where this Court dealt with the question of the exercise of power by the Court trying the election petition to examine a witness as court witness.
It was held that the Court has the power to summon a court witness if it thinks that the, ends of justice require or that the case before it needs that kind ,of evidence.
It was explained that the policy of election law (1) A.I.R. 1959 Assam 200.
(3) (2) (1969) S.C.R. 540 to be that, for the establishment of purity of elections, all allegations of malpractice, including corrupt practices at elections, should be thoroughly.investigated.
On these principles, the Court held that the trial Judge of the High Court had Properly exercised the power of summoning and examining some persons as court witnesses.
On the basis of these cases, it was argued that it was the duty of respondent No. 1 to examine Patil Puttappa in this case because he was in the best Position to deny the allegations which had been made, in respect of the corrupt practices, by the appellants and that, in any case, the Court should have summoned him as a witness, when an application was presented in that behalf by the appellants invoking the power of the Court under O.16, r. 44, C.P.C.
It appears that, in this case, respondent No. 1 considered it unnecessary to produce Patil Puttappa as a witness because of the view that the evidence, which had been given on behalf of the appellants to prove the corrupt practices, was of a very unsatisfactory nature and that even circumstantial evidence ' was available to show that the version put forward could not be true.
The High Court also considered it unnecessary to summon Patil Puttappa as a court witness for similar reasons.
In this connection, we may cite further remarks made by this Court in the case of R. M. Seshadri(1) to the following effect: "Although we would say that the trial should be at arms length and the Court should not really enter into the dispute as a third party, but it is not to be understood that the Court never has the power to summon a witness or to call for a document which would throw light upon the matter, particularly of corrupt practice which is alleged and is being sought to be proved.
If the Court was satisfied that a corrupt practice had in fact been perpetrated, may be by.
one side or the other, it was absolutely necessary to find out who was the author of that corrupt practice.
" It was on this principle that this Court upheld the course adopted by the High Court by summoning court witnesses in order to satisfy itself that the corrupt practice had in fact been committed.
In the present case, as we shall presently show, there was plenty of circumstantial evidence indicating that the version put forward on behalf of the appellants could not be true and the High Court could justifiably take the view that it had not been proved to its satisfaction so that there was no compelling reason for the High Court to examine Patil Puttappa as a court (1) ; 541 witness or even to draw any inference against respondent No. 1 for his failure to examine Patil Puttappa as a witness.
We proceed to indicate our reasons for the view that the version relating to the commission of corrupt practices has been rightly rejected by the High Court.
The story that has been put forward on behalf of die.
appellants has already been described by us in detail when giving the facts of the case.
The appellants alleged that they were taken to the house of R.W. 3 in the early hours of the night of 20th January, 1967 and were kept 'in confinement till the morning of 22nd January, 1967.
According to the appellants, though they were kept at the house of R. W. 3 and were told that they would not be allowed to leave, there was actually no use of force at all against them.
In fact, the version given by the two appellants of their confinement in the house of, R. W. 3 is that they remained there throughout the night of 20th January and throughout the day hours of 21st January, 1967, without making any attempt to leave the house of R. W. 3.
They expect the Court to believe that no such ' attempt was made by them simply because, at one stage, Patil Puttappa had said , that appellant No. 1 had the option of either remaining a candidate for election, or of continuing to live.
Apart from this verbal threat, there is no suggestion that any act was committed by any one there which could put the appellants in fear of their life or of being hurt if they tried to leave the house of R. W. 3.
According to their version, they quietly stayed in the house without even making a presence of leaving it simple because Patil Puttappa, when going away, had told R. W. 3 not to let them go until he gave permission.
The first attempt, according to them, was made some time late in the night of 21 st January and that attempt was foiled because of the barking of a dog.
Even, when relating this part of their story.
, the appellants did not say that the dog was ferocious or tried to bite them, or that any of the servants woke up and came to stop them from going away.
In fact, the initial story that like simpletons these two persons, one of whom was a candidate for membership of a legislature, entered the car of Patil Puttappa and quietly went with him to the residence of R.W. 3 appears to be highly improbable.
Their conduct, after their release from the alleged confinement, also seems to be highly improbable.
According to them, they did not go back to their village because they were feeling ashamed.
Why there should have been any feeling of shame is incomprehensible.
If they were kept in confinement under threats of injury, there would have been no shame in going home and disclosing this circumstance.
In fact, according to appellant No. 1, his candidature had been sponsored by quite a large number of influential persons of Shiggaon and, consequently, it would have been quite natural for him to go to Shiggaon, as soon as he was 8SupCI/69 16 542 released from confinement, and seek their assistance against whatever course might have been adopted in order to defeat his candidature.
Having been absent from their houses from the night of 20th January until the early hours of 22nd January, it would have been natural for them to go back to their homes and relieve the anxiety of the members of their families who must have been wondering where they had gone away.
According to the appellants, they did not return to their village until the 24th of January and sent no message to their houses that they were safe And were in Hubli.
The whole conduct appears to be very improbable.
Apart from this, there are admissions made by the witnesses of the appellants themselves and some documentary evidence which show that the appellants could not have been in confinement in the house of R. W. 3 from the night of 20th January up to the morning of 22nd January, 1967.
P. W. 3 in his examination in chief itself, when relating the incident of 21st January, 1967, stated that on that day respondent No. 1 sent for him and P. W. 4 and told them that whatever promises had been made by Patil Puttappa would be fulfilled and they could give that information to appellant No. 1.
Thereafter, they went to the house of appellant No. 1 and passed on this information to him.
Thus, P. W. 3 admitted that appellant No. 1 was at ' his house on the evening of 21st January which completely negatives the case that he and appellant to. 2 were both in confinement at the house of R. W. 3.
When this statement was made by this witness, counsel for the appellants intervened and put a question whether appellant No. 1 was at home and what happened after they went to his house.
When answering these questions, the witness realised that he had given a statement negativing the appellants ' case and, therefore, he changed his statement and said that the mother of appellant No. 1 told him that appellant No. 1 was not in the house.
We are inclined to agree with the High Court that this witness, in fact, gave away the truth inadvertently disproving the appellants ' case when he stated that he and P. W. 4 had gone to the house of appellant No. 1 on the 21st January, 1967 and informed him of what respondent No. 1 had told them.
In this connection, there is the circumstance that another witness examined by the appellants themselves also supports the version that appellant No. 1 must have been at his house on the evening of 21st January.
That witness is P. W. 1, the photographer.
He was asked in his cross examination as to when appellant No. 1 had taken the photos from him, and his answer was that it was on the same day when the photograph was taken.
He had earlier stated that the photograph was taken in the office of the Returning Officer at about 5 p.m. on 21st January, 1967.
543 This answer given by this witness also belied the case put forward on behalf of the appellants about their confinement in the house of R. W. 3.
At the stage of this answer given by the witness, the counsel for the appellants had also intervened and suggested that the witness had been pointing to the Returning Officer who was sitting in Court and not to appellant No.1.
The Court thereupon repeated the question to the witness and the note by the Court shows that the witness was quite clear that the copies which were retained by him in his Studio were taken by appellant No. 1 whom he identified by sight in Court.
It appears that he also got a hint at this stage and, therefore, added that he was not sure of the exact date on which appellant No. 1 took the copies from him.
This attempt of the witness to get out of the admission made by him contradicting the case put forward by the appellants has rightly been disregarded by the High Court, and the conclusion follows that P. W. 1 has also given evidence which shows the falsity of the story of confinement put forward by the appellants.
Another circumstance that points in the same direction is that the appellants, if they were in fact kept in illegal confinement, made no attempt at all to file any complaints either with the Police or before a Magistrate so as to seek redress against this criminal offence committed against them.
Even on 22nd January, 1967, when appellant No. 1 addressed the meeting at 'Durgada Bailu ' in Hubli, he did not tell the people, about his illegal confinement and the corrupt practice committed by the workers of respondent No. 1 in order to obtain his withdrawal.
The most telling circumstance, however, which leaves no room for doubt that the version of the appellants about their confinement in the house of R. W. 3 until the early hours of 22nd January, 1967, is false, is that an item appeared in the newspaper 'Vishal Karnataka ' in the morning issue of 22nd January, 1967, saying that one only out of the five candidates who had withdrawn their candidature had been made to withdraw his nomination paper by use of force and great threat; and it was learnt that, as against this, 'a notice had been caused to be given through a Pleader.
Appellant No. 1 himself admitted.
that this newspaper is a daily morning paper so that this particular issue came out on the morning of 22nd January, 1967.
According to the version given by appellants 1 and 2, they were kept in confinement at the residence of R. W. 3 until released at about 4 30 a.m. on 22nd January whereafter they proceeded to Hubli and, for the first time, gave their version of confinement to 'their lawyer, P. W. 2, at about 3 p.m.
According to them, they did not mention their confinement and use of force or of threats against them to anyone else until they were able to consult P, W. 2 At about 3 p.m.
If this evidence, was true, it is 544 incomprehensible how the news of obtaining withdrawal of a nomination paper by use of force and great threat could appear in the morning issue of 22nd January, 1967 which came out several hours earlier.
Mr. Patil, learned counsel for the appellants, tried to explain away this news by comparing it with another item of news appearing in an issue of the newspaper 'Prajavani ' published from Bangalore on the morning of 22nd January, 1967.
The news item in it purports to be dated 20th January, 1967 and is to the effect that the Chief Minister is about to bring about the first and the most important success to the Mysore Pradesh Congress by his uncontested election from the Shiggaon Assembly Constituency.
It mentions that, as the other contestants had withdrawn their candidature, only the candidature of respondent No. 1 was remaining in Shiggaon Constituency and he was going to be declared elected uncontested on the 23rd January, 1967, which was the last date fixed for withdrawal of candidature.
From the fact that this news item was published as an item of 20th January, it was argued that there must have been a pre arranged plan to manoeuvre the withdrawal of all candidates from the Shiggaon Constituency for the purpose of achieving uncontested return of respondent No. 1, because there could not be and there were no withdrawals on 20th January which was the date for filing nominations, and the evidence also proves clearly that the withdrawals, in fact, took place on 21st January, 1967, which was the date of scrutiny.
It, however, appears to us that, in this newspaper, the date January 20 as the date of the news item is incorrect.
If, in Bangalore, this news item had been received by the newspaper on 20th January, it would surely have been published in the issue of 21st January.
The very fact that it was published in the issue of 22nd January shows that this news must have been received by the newspaper on 21st January and the date January 20 printed in it is an error in printing.
No newspaper would unnecessarily delay such a news item by full 24 hours.
On the 21st January, according to the evidence given by the Returning Officer and other witnesses examined on behalf of respondent No. 1, all the withdrawals had taken place by about 3 to 4 p.m. of course, thereafter, this news about withdrawals could have been flashed to Bangalore and received there later in the evening of 21st January, so that it could be published in the morning issue of 'Prajavani ' of 22nd January, 1967.
The publication of this news is, therefore, not at all comparable with the publication in Vishal Karnataka, to which we referred earlier.
It is significant that the newspaper Vishal Karnataka, which is published at Hubli, was interested in appellant No. 1.
This is clear from the circumstance that, after printing this news item about use of force and great threat to induce a candidate to withdraw his nomination, this very newspaper published a number of 54 5 appeals to raise funds in order to support the case of appellant No. 1 for challenging the uncontested election of respondent No. 1.
The publication of these appeals in subsequent issues of Vishal Karnataka has been admitted by appellant No. 1.
The subscriptions were to be sent to Vishal Karnataka Office.
In these circumstances, an inference clearly follows that, in fact, appellants No. 1 and 2 were not kept in confinement at the residence of R. W. 3 and they deliberately made out this story to challenge the uncontested election of respondent No. 1, some time on the evening of 21st January, 1967.
Having decided that the election 'should be challenged on such a ground, they gave out this news item to Vishal Karnataka; but they did not realise that the publication of this news item would itself betray them and make it clear that they could not have been kept in confinement up to the early hours of 22nd January, 1967, which was the version they decided to put forward against respondent No. 1.
Mr. Patil, learned counsel for the appellants, also tried to suggest that this news item might refer to the withdrawal of candidature of some candidate other than appellant No. 1, but we can see no basis for such a suggestion.
No witness has made any statement indicating that any candidate other than appellant No. 1 had the grievance that the withdrawal of his nomination had been obtained by use of force or threats.
None of the witnesses of the appellants, including P.W. 2, S.S. Sattar, their legal adviser, have stated that any other candidate was made to withdraw in that manner.
On the other hand, in the election petition itself, the appellants have come forward with the case that the withdrawals of all other candidates, except his own, were voluntary and valid.
This plea was put forward in order to claim the seat for appellant No. 1 himself on the election of respondent No. 1 being declared void; but this pleading clearly negatives any possible suggestion that there was some other candidate who was also subjected to threats and use of force to induce him to withdraw his candidature.
Obviously, this news item could refer to no one else, except appellant No. 1 and it could only appear in the morning issue of 22nd January, because the appellants were not under confinement on die 21st January, 1967.
This piece of evidence, thus leaves no room for doubt that the entire story of use of inducements, threats and illegal confinement has been concocted by the appellant so that the witnesses examined in support of it cannot be at all relied upon.
In these circumstances, we hold, as we have indicated earlier, that the High Court was justified in not insisting on the production of Patil Puttappa as a witness on behalf of respondent No. 1 or in not examining him as a court witness.
The version put forward by the appellants was I controverted in his evidence by R. W. 4, Mahalinga Shetty who, according to the appellants, was in the company of Patil Puttappa at both stages 546 when bribe was offered to appellant No. 1 and, later, when he was induced by threats and illegal confinement to withdraw his candidature.
Further, R. W. 3, was examined to controvert the version of the incident alleged to have taken place at his residence during the illegal confinement of the appellants.
Such evidence being available and the version put forward on behalf of the appellants having been shown to be false by various circumstances indicated by us above, there could be no need for the Court to take the step of examining Patil Puttappa as a court witness.
The High Court was fully justified in holding that the charges of corrupt practices of undue influence and bribery had not been proved against respondent No. 1.
The additional charge of obtaining assistance from a Govern ment servant, viz., the Returning Officer, respondent No. 2, is also linked up with the same version of the appellants which we have above held to be false.
Respondent No. 2 was said to have assisted in illegally obtaining the withdrawal of the candidature of appellant No. 1 by being a party to a faked withdrawal form being accepted by him.
The case was that the withdrawal form of appellant No. 1 was not presented either by appellant No. 1 himself or by his election agent having been obtained in the circumstances indicated by the appellants in their version.
Respondent No. 2 has, however, clearly stated that this withdrawal form of appellant No. 1 was presented by appellant No. 1 himself, and we find no reason to disbelieve his evidence in view of our finding about the falsity of the version of the appellant.
It is also significant that no witness was.
sought to be examined on behalf of the appellants to prove who in fact presented the withdrawal form on his behalf if appellant No. 1 did not do so.
In view of the circumstantial evidence being in favour of the version put forward by the respondents, we consider that the High Court was right in accepting the evidence of respondent No. 2 on this point and rejecting the plea of the appellants that the withdrawal form of appellant No. 1 had been wrongly manoeuvred and had not been presented by him.
Lastly, we may take notice of the three further allegations that the nomination paper of respondent No. 1 was, in fact, 'not presented, on 20th January, 1967; secondly, that, if at all it was presented, it was not accompanied by a copy of the electoral roll showing that respondent No. 1 was entered as an elector in another constituency; and, thirdly, that it was not accompanied by a receipt showing the deposit of the security money as required by law.
On all these points, there is the clear evidence of the Returning Officer as well as that of R.W. 3 who proposed the name of respondent No. 1 and who presented the nomination paper to the Returning Officer.
There is no reason at all to disbelieve their evidence on these points, particularly when their 547 evidence is also supported by the documents maintained in the office of the Returning Officer as well as in the Sub TreAsury.
There is further the fact that no direct evidence has been led on behalf of the appellants to show that the nomination paper of respondent No. 1 was presented at some other time after the expiry of the date fixed for nomination and that, when so presented at the later stage, it was not accompanied by the two necessary documents.
These pleas taken for challenging the validity of the election of respondent No. 1 have also, therefore, I been rightly rejected by the, High Court.
The appeal fails and is dismissed with costs.
There will be one set of costs for hearing.
V.P.S. Appeal dismissed.
| IN-Abs | The first respondent, who was the Chief Minister of the State, and the first appellant were candidates for election to the Mysore Legislative Assembly from Shiggaon constituency.
The notification fixing the time schedule for the elections fixed 20th January 1967, as the last date for filing nominations, 21st as the date of scrutiny, and 23rd as the last date for withdrawal of candidature.
The first respondent, had also filed his nomination at two other places, Bagalkot and Hospet, and validly made the affirmations required by article 173 (a) of the Constitution, at those places on the 19th and 20th January.
He also made the affirmation before the Returning Officer of the Shiggaon constituency on the date of scrutiny, that is, 21st January.
The first respondent was declared elected unopposed on the date of scrutiny on the ground that all other candidates, including the first appellant, had withdrawn their candidature.
The first appellant challenged the first respondent 's election on the grounds that the first respo ndent was disqualified for failure to make the affirmation under article 173(a) before filing the nomination paper in Shiggaon constituency, that the withdrawal from candidature of the first appellant was attempted to be obtained by inducement, threats and undue in and was in fact procured with the connivance of the Returning Officer, and that the first respondent committed other irregularities in the filing of his nomination.
It was alleged that one P was responsible for the corrupt practices with the consent of the first respondent.
P was not examined as a witness by the respondents.
The first appellant filed an application to examine P as a court witness, on the ground that the appellant could not examine him as his own witness since he would be hostile to the appellant.
The High Court rejected the ;application.
The High Court, after rightly repelling the contention that the affirmation should have been made prior to the filing of the nomination, held that the affirmation made prior to scrutiny was sufficient compliance with the requirements of article 173(a), and that the charges of corrupt practice of undue influence and bribery against the first respondent, and the connivance of the Returning Officer in relation to the corrupt practices and irregularities, were not proved.
In appeal to this Court, it was contended that : (1) This Court, in Pashupati Nath Singh vs Harihar Prasad Singh, ; , held that the affirmation should be made before the date of scrutiny, so that, in the present case, it should have been made at the latest by the mid 525 night between 20th and 21st January; and (2) On the failure of the first respondent to examine P an adverse inference should have been drawn against the first respondent, and that the High Court erred in not summoning P as a court witness.
HELD:(1) (a) Since the first appellant was permitted to raise the new ground based upon the decision in Pashupati Math Singh 's case, the first respondent should not be debarred from putting forward his alternative plea that article 173(a) was satisfied on the basis of the affirmations made at Bagalkot and Hospet.
[532 E F] (b)The notification issued by the Election Commission in pursuance of article 173(a) stated that the affirmation should be made before the Returning Officer or Assistant Returning Officer for that constituency.
In using the expression 'that constituency ', the intention of the Election Com mission was that the affirmation must be made before the Returning Officer or Assistant Returning Officer of that particular constituency from which the candidate was seeking election to the Legislature of the State, whether it be an Assembly Constituency or 'a Council Constituency.
[534 A B] (c)When the first respondent made his affirmations on the 19th and 20th before, the Returning Officer at Bagalkot and Hospet respectively, he was a candidate nominated for election from those constituencies.
Once he made such an affirmation before one of the persons authorised by the Election Commission he had fully complied with the requirements of article 173(a), and thereupon, became qualified to be a candidate for election to the Mysore Legislative Assembly.
[534 C E].
The purpose of article 173(a) is to ensure that any person, who wants to be a member of a Legislature of a State, must bear true faith and allegiance to the Constitution as by law established and undertake to uphold the sovereignty and integrity of India, and, to ensure this, he must make an oath or affirmation.
The Article requires one oath or affirmation in accordance with the form set out in the Third Schedule to the Constitution so as to 'remove the disqualification from being a candidate for election to the Legislature of the State.
The Article does not mention that the making of oath or affirmation is to be preliminary to the validity of candidature in each constituency, and the Article does not require that the qualification must be acquired separately in respect of each constituency from which a candidate was seeking election.
Once the oath or affirmation is made before a competent authority in respect of one constituency, the candidate becomes bound by that oath or affirmation even if he gets elected to the Legislature from a different constituency [534 E H; 535 A B] (2)In the present case, the circumstantial evidence indicated that the version put forward on behalf of the appellants could not be true.
therefore, the High Court was justified in holding that the appellants ' case was shown to be false by other evidence, so that, there was no compelling reason for the High Court to examine P as a court witness or to draw an adverse inference against first respondent for his failure to examine P as a witness.
[540 G H; 541 A] Dr. M. Chenna Reddy vs V. Ramachandra Rao, C.A. No. 1449/68 dt.
17 12 1968, R. M. Seshadri vs G. Vasantha Pai, ; and Nani Gopal Swami vs Abdul Hamid Chowdhury, A.I.R. 1959 Assam 200, referred to.
|
Appeal No. 151 of 1953.
Appeal by Special Leave granted by the Supreme Court of India by its Order dated the 29th May, 1953, from the Judgment and Order dated the 4th May, 1953, of the Election Tribunal, Allahabad, in Election Petition No. 270 of 1952.
I C. K. Daphtary, Solicitor General for India (G. C. Mathur and C. P. Lal, with him) for the appellant.
Naunit Lal for respondents Nos.
I to 4. 1954.
May 20.
The Judgment of the Court was delivered by GHULAM HASAN J.
This appeal preferred under article 136 of the Constitution against the order, dated May 4, 1951, of the Election Tribunal, Allahabad, setting aside the election of Sri Vashist Narain Sharma to the Uttar Pradesh Legislative Assembly, raises two questions for consideration.
The first question is whether the nomination of one of the rival candidates, Dudh Nath, was improperly accepted by the Returning Officer and the second, whether the result of the election was thereby materially affected.
Eight candidates filed nominations to the Uttar Pradesh Legislative Assembly from Ghazipur (South East) Constituency No. 345, three withdrew their 511 candidature and the contest was confined to the remaining five.
The votes secured by these candidates were as follows 1.
Vashist Narain Sharma 12868 2.
Vireshwar Nath Rai 10996 3.
Mahadeo 3950 4.
Dudh Nath 1983 5.
Gulab Chand 1768 They were arrayed in the election petition as respondents Nos.
I to 5 respectively.
The first respondent having secured the highest number of votes was declared duly elected.
Three electors filed a petition under section 81 of the Representation of the People Act (Act XLIII of 1951) "praying that the election of the returned candidate be declared void and that respondent No. 2 be declared to have been duly elected; in the alternative, that the election be declared wholly void.
The election was sought to be set aside on the grounds, inter alia, that the nomination of respondent No. 4 was improperly accepted by the Election Officer and that the result of the election was thereby materially affected.
The Tribunal found that respondent No. 4, whose name was entered on the electoral roll of Gahmar Constituency Ghazipur (South East) 'personated ' (meaning passed himself off as) Dudh Nath Kahar and used the entries of his electoral roll of Baruin Constituency ghazipur (South West), that the Returning Officer had improperly accepted his nomination, and that the result of the election was thereby materially affected.
Allegations of major and minor corrupt practices and non compliance with certain statutory rules were made but the Tribunal found in favour of the returned candidate on those points.
Dudh Nath, respondent No. 4, is Rajput by caste.
His permanent or ancestral home is Gahmar but since 1943 he had been employed as a teacher in the Hindu Higher Secondary School at Zamania a town 10 or 12 miles away and he had been actually residing at village Baruin which is quite close to Zamania.
The person for whom Dudh Nath 'personated ' is Dudh Nath Kahar whose permanent house is at Jamuan, 512 but his father lives at Baruin.
Dudh Nath Kahar used to visit Baruin off and on but he was employed at Calcutta.
The nomination paper filed by Dudh Nath gave his parentage and age which more properly applied to Dudh Nath Kahar.
He gave his father 's name as Shiv Deni alias Ram Krit.
Ram Krit is the name of Dudh Nath Kahar 's father.
The electoral roll (Exhibit K) of Gahmar gives Dudh Nath 's, father 's name as Shio Deni with no alias and his age as 39, while the electoral roll of Pargana Zamania Monza Baruin (Exhibit C) gives Dudh Nath 's father 's name as Ram Krit and his age as 31.
In the electoral roll of Jamuan Dudh Nath 's age is entered as 34 but in the supplementary list it is mentioned as 30.
When the nomination paper was filed on November 24, 1951, at 2 20 P.m.
it was challenged by Vireshwar Nath Rai on the ground that Dudh Nath 's father 's name was Shivadeni and not Ram Krit but no proof was given in support of the objection and it was overruled on November 27.
This order was passed at 1 P.m. One of the candidates, who later withdrew, filed an application at 3 25 P.m. before the Returning Officer offering to substantiate the objection which the objector had not pressed.
This application was rejected on the ground that the nomination had already been declared as valid.
In point of fact no evidence was adduced.
This acceptance of the nomination on the part of the Returning Officer is challenged as being improper under section 36(6) of the Representation of the People Act and as the result of the election according to the objector has been materially affected by the improper acceptance of this nomination, the Tribunal is bound to declare the election to be wholly void under section 100(1) (c) of the Act.
Mr. Daphtary on behalf of the.
appellant has argued before us with reference to the provisions of sections 33 and 36 that this is not a case of improper acceptance of the nomination paper, because prima facie the nomination paper was valid and an objection having been raised but not pressed or substantiated, the Returning Officer had no option but to accept it.
There was, as he says, nothing improper in the action of the, Returning Officer, On the contrary, 513 it may, according to him, be more appropriately described as a case of an acceptance of an improper nomination paper by the Returning Officer, inasmuch as the nomination paper contained an inherent defect which was not discernible ex facie and could be disclosed only upon an enquiry and upon the taking of evidence as to the identity which was,not then forthcoming.
Such a case, it is argued, is not covered by section (1)(c) but by section 100(2)(c) in which case the election of the returned candidate is alone to be declared void, whereas in the former case the election is wholly void.
We do not propose to express any opinion upon this aspect of the matter, as in our view the appeal can be disposed of on the second question.
Section 33 of the Representation of the People Act, 1951, deals ' with the presentation of nomination paper and lays down the requirements for a valid nomination, On the date fixed for scrutiny of the nominations the Returning Officer is required to examine the nomination paper and decide all objections which may be made to any nomination, and after a summary enquiry.
if any, as he thinks necessary he is entitled to refuse nomination on certain grounds mentioned in sub section (2) of section 36.
Sub section (6) lays down that the Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection.
This sub section shows that where the nomination paper is accepted.
, no reasons are required to be given.
Section 100 gives the grounds for declaring an election to be void.
The material portion is as follows: (1) If the Tribunal is of opinion (a). . . . . . . . (b). . . . . . . . (c)that the result of the election has been materially affected by the improper acceptance or rejection of any nomination, the Tribunal shall declare the election to be wholly void.
It is under this sub section that the election was sought to be set aside, 66 514 Before an election can be declared to be wholly void under section 100(1) (c), the Tribunal must find that "the result of the election has been materially affected.
" These words have been the subject of much controversy before the Election Tribunals and it is agreed that the opinions expressed have not always been uniform or consistent.
These words seem to us to indicate that the result should not be judged by the mere increase or decrease in the total number of votes secured by the returned candidate but by proof of the fact that the wasted votes would have been distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidate.
The next question that arises is whether the burden of proving this lies upon the petitioner who objects to the validity of the election.
It appears to us that the volume of opinion preponderates in favour of the view that the burden lies upon the objector.
It would be useful to refer to the corresponding provision in the English Ballot Act, 1872, section 13 of which is as follows: " No election shall be declared invalid by reason of a non compliance with the rules contained in the first schedule to this Act, or any mistake in the use of the forms in the second schedule to this Act, if it appears to the Tribunal having cognizance of the question that the election was conducted in accordance with the principles laid down in the body of this Act, and that such non compliance or mistake did not affect the result of the election." This section indicates that an election is not to be declared invalid if it appears to the Tribunal that non compliance with statutory rules or any mistake in the use of such forms did not affect the result of the election.
This throws the onus on the person who seeks to uphold the election.
The language of section 100(1)(c), however, clearly places a burden upon the objector to substantiate the objection that the result of the election has been materially affected.
On the contrary under the English Act the burden is placed upon the respondent to show the negative, viz., that the result of the decision has not been affected.
This view was expressed 515 in Rai Bahadur Surendra Narayan Sinha vs Amulyadhone Roy & others (1), by a Tribunal presided over by Mr. (later Mr. Justice) Roxburgh.
The contention advanced in that case was that the petitioner having established an irregularity it was the duty of the respondent to show that the result of the election had not been materially affected thereby.
The Tribunal referred to the provisions of section 13 of the Ballot Act and drew a distinction between that section and the provisions of paragraph 7(1) (c) of Corrupt Practices Order which was more or lesson the same lines as section 100(1) (c).
They held that the onus is differently placed by the two provisions.
While under the English Act the Tribunal hearing an election petition is enjoined not to interfere with an election if it appears to it that non compliance with the rules or mistake in the use of forms did not affect the result of the election, the provision of paragraph 7(1) (e) placed the burden on the petitioner.
The Tribunal recognized the difficulty of offering positive proof in such circumstances but expressed the view that they had to interpret and follow the rule as it stood.
In C. M. Karale vs Mr.
B. K. Dalvi etc.
(2), the Tribunal held that the onus of proving that the result had been materially affected rests heavily on the petitioner of proving by affirmative evidence that all or a large number of votes would have come to the returned candidate if the person whose nomination had been improperly accepted had not been in the field.
In Babu Basu Sinha vs Babu Rajandhari Sinha etc.
it was emphasized that it is not enough for the petitioner to show that the result of the election might have been affected but he must show that it was actually affected thereby.
The case of Jagdish Singh vs Shri Rudra Deolal etc.
was one under section 100(1) (c) of the Representation of the People Act.
It was held that the question should always be decided on the basis of the material on the (1) Indian Election Cases by Sen and Poddar, page 188.
(2) Doabia 's Election Cases, Vol. 1 (P. I78).
(3) Indian Election Petitions (Vol.
III) by Shri jagat Narain, page So.
(4) Gazette of India (Extraordinary) October 13, 1953.
516 record and not on mere probabilities.
The Tribunal distinguished between an improper rejection and an improper acceptance of nomination observing that while in the former case there is a presumption that the election had been materially affected, in the latter case the petitioner must prove by affirmative evidence, though it is difficult, that the result had been materially affected.
The learned counsel for the respondents concedes that the burden of proving that the improper acceptance of a nomination has materially affected the result of the election lies upon the petitioner but he argues that the question can arise in one of three ways: (1) where the candidate whose nomination was improperly accepted had secured less votes than the difference between the returned candidate and the candidate securing the next highest number of votes, (2) where the person referred to above secured more votes, and (3) where the person whose nomination has been improperly accepted is the returned candidate himself.
It is agreed that in the first case the result of the election is not materially affected because if all the wasted votes are added to the votes of the candidate securing the highest votes, it will make no difference to the result and the returned candidate will retain the seat.
In the other two cases it is contended that the result is materially affected.
So far as the third case is concerned it may be readily conceded that such would be the conclusion.
But we are not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected.
That is a matter which has to be proved and the onus of proving it lies upon the petitioner.
It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate.
The casting of votes at an election depends upon a variety of factors and it is not possible for any 517 one to predicate how many or which proportion of the votes will go to one or the other of the candidates.
While it must be recognised that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by section 100(1) (c) and hold without evidence that the duty has been discharged.
Should the petitioner fail to adduce satisfactory evidence to enable the ' Court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere, in his favour and would allow the election to stand.
In two cases [Lakhan Lal Mishra vs Tribeni Kumar etc.
(1) and Mandal Sumitra Devi vs Sri Surajnarain Singh etc.
(2) ], the Election Tribunal, Bhagalpur, had to consider the question of improper acceptance of the nomination paper.
They agreed that the question whether the result of election had been materially affected must be proved by affirmative evidence.
They laid down the following test: "If the number of votes secured by the candidate, whose nomination paper has been improperly accepted, is lower than the difference between the number of votes secured by the successful candidate and the candidate who has secured the next highest number of votes, it is easy to find that the result has not been materially affected.
If, however, the number of votes secured by such a candidate is higher than the difference just mentioned, it is impossible to foresee what the result would have been if that candidate had not been in the field.
It will neither be possible to say that the result would actually have been the same or different nor that it would have been in all probability the same or different." In both the cases the margin of votes between the successful candidates and the next highest candidate was less than the number of votes secured by the candidate whose nomination was improperly accepted.
They held that the result was materially affected.
We are unable to accept the ' soundness of this view.
It seems to us that where the margin of votes is greater (1) Gazette of India (Extry.) Feby.
2, 1953.
(2) Gazette of India (Extry.) Feby.
26,1953.
518 than the votes secured by the candidate whose nomination paper had been improperly accepted, the result is not only materially not affected but not affected at all; but where it is not possible to anticipate the result as in the above mentioned cases, we think that the petitioner must discharge the burden of proving that fact and on his failure to do so, the election must be allowed to stand.
The Tribunal in the present case rightly took the view that they were not impressed with the oral evidence about the probable fate of votes wasted on Dudh Nath Singh, but they went on to observe : "Considering that Dudh Nath respondent No. 4 received more votes than the margin of votes by which respondent No. 1 was returned we are constrained to hold that there was reasonable possibility of respondent No. 2 being elected in place of respondent No. 1, had Dudh Nath not been in the field.
" We are of opinion that the language of section 100(1)(c) is too clear too any speculation about possibilities.
The section clearly lays down that improper acceptance is not to be regarded as fatal to the election unless the Tribunal is of opinion that the result has seen materially affected.
The number of wasted votes was 111.
It is impossible to accept the ipse dixit.
of witnesses coming from one side or the other to say that all or some of the votes would have gone to one or the other on some supposed or imaginary ground.
The question is one of fact and has to be proved by positive evidence.
If the petitioner is unable to adduce evidence in a case such as the present, the only inescapable conclusion to which the Tribunal can come is that the burden is not discharged and that the election must stand.
Such result may operate harshly upon the petitioner seeking to set aside the election on the ground of improper acceptance of a nomination paper, but neither the Tribunal, nor this Court is concerned with the inconvenience resulting from the operation of the law.
How this state of things can be remedied is a matter entirely for the Legislature to consider.
The English Act to which we have referred presents no such conundrum and lays down a. perfectly sensible 519 criterion upon which the Tribunal can proceed to declare its opinion.
It directs the Tribunal not to set aside the election if it is of opinion that the irregularity has not materially affected the result.
Mr. Nauinit Lal argued that the finding that the result of the election has been materially affected is a finding of fact which this Court should not interfere with in special appeal but there is no foundation for the so called finding of fact.
If the Tribunal could not be sure that the respondent No. I would get only 56 out of the wasted votes to give him an absolute majority, how could the Tribunal conjecture that all the wasted votes would go to the second best candidate.
The Tribunal misdirected itself in not comprehending what they had to find and proceeded merely upon a mere possibility.
Their finding upon the matter is speculative and conjectural.
Mr. Naunit Lal also attempted to argue that he could support the decision of the Tribunal on other grounds which had been found against him and referred to the analogy of the Code of Civil Procedure which permits a respondent to take that course.
That provision has no application to an appeal granted by special leave under article 136.
We have no appeal before us on behalf of the respondents and we are unable to allow that question to be reagitated.
The result is that we set aside the order of the Tribunal and hold that it is not proved that the result of the election has been materially affected by an improper acceptance of the nomination, assuming that the case falls within the purview of section 36(6) and that finding is correct.
We accordingly set aside the order of the Tribunal and uphold the election of the appellant.
The appellant will get his costs from :the respondents incurred here and in the proceedings before the Tribunal.
Order accordingly.
| IN-Abs | The words "the result of the election has been materially affected" in section 100 (1) (c) of the Representation of the People , indicate that the result should not be judged by the mere increase or decrease in the total number of votes secured by the returned candidate but by proof of the fact that the wasted votes would have been distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidate.
Section 100 (1) (c) clearly places a burden on the objector to substantiate the objection that the result of the election has been materially affected by the improper acceptance or rejection of the nomination paper.
The said section is too clear for any.
speculation about possibilities and it lays down that improper acceptance is not to be regarded as fatal to the election unless the Tribunal is of opinion that the result has been materially affected.
If an Election Tribunal misdirects itself in not comprehending the real question before it and proceeds merely on possibilities, speculation and conjecture, its order must be set aside.
|
Appeals Nos. 817 and 818 of 1966.
Appeals by special leave from the judgment and order dated January 19, 1965 of the Mysore High Court in I.T.R.C. No. 1 of 1964.
Niren De, Attorney General, section C. Manchanda and R. N. Sach they, for the appellant.
597 M. C. Chagla, Sharad J. Mhaispurkar, O. P. Malhotra and O. C. Mathur, for the respondent.
The Judgment of the Court was delivered by Ramaswami, J.
The respondent is a Hindu Undivided Family (hereinafter called the assessee) of which Shri D. C. Shah is the karta.
The assessment years are 1959 60 and 1960 61 and the relevant accounting periods are Samvat years 2014 and 2015.
The assessee through its karta Shri D. C. Shah was a partner in the firms of (1) M/s C. U. Shah and Co. and (2) M/s Oriental Can Manufacturing Co. as per terms and conditions set out in the Instruments of Partnership dated 5 6 1961 and 11 9 1957.
Shri D. C. Shah was paid a remuneration of Rs. 12,000/ per 1 year for both the assessment years by M/s C. U. Shah and Company.
He was paid Rs. 10,000/ for the assessment year 1959 60 by the Oriental Can Manufacturing Company.
The amounts received by Shri D. C. Shah were shown by the assessee in its, returns of income along with balance of the share income from the aforesaid firms.
The Income Tax Officer in assessing the Hindu Undivided Family included the remuneration received by Shri D. C. Shah as a part of the share income from the respective firms.
Before the Appellate Assistant Commissioner the assessee contended that remuneration received by Shri D. C. Shah was his personal income and the amounts were wrongly shown in the returns of the ' Hindu Undivided Family as its income and should not have been included in the assessment.
In so contending the assessee relied on clauses 8, 9 and 10 of the Instrument of Partnership dated 5 6 1961 by which the firm of M/s C. U. Shah and Company was constituted.
The assessee also relied on clauses 14, 15 and 16 of the Instrument of Partnership dated 11 9 1957 by which the firm of M/s Oriental Can Manufacturing Company was constituted.
Clauses 8, 9 and 10 of the Instrument of Partnership dated 5 6 1961 are to the following effect "8.
The partner No. 1 Shri D. C. Shah who has been managing the business of this firm shall hereinafter also continue to act as Managing partner for conducting the said business free from any interference of other partners, of whatsoever nature.
The said Managing partner shall manage, direct, appoint: and/or remove any one of the employees, and/or do all other things, which include right to draw cheques, to make, deliver and accept documents either legal or commercial in respect of the partnership business as may be deemed necessary for effectively carrying on the partnership business.
The said Managing partner shall be paid Rs. 1,000/ (Rupees one thousand only) per month in addition to all other benefits that he is entitled to enjoy as a partner of the firm.
588 9.
The said Managing partner shall continue to be the Managing Partner for his life time or his retirement whichever is earlier.
All other partners shall devote as much time to the furtherance of the partnership business as they think proper,.
necessary and a visable".
Clauses 14,,15 and 16 of the Instrument of Partnership dated 11 9 1957 are to the following effect : "14.
The partner No. 2 shall, be the Managing Partner for conducting the said business free.
from any interference of whatsoever nature by others.
The said Managing Partner shall manage, carry, direct, appoint and/or remove any of the employees and/or Agent and do all other things, as may be deemed necessary, for effectively carrying on the Partnership business.
The said Managing Partner shall be entitled, in addition to all other benefits, to a monthly remuneration of Rs% 2,000/ (Rupees two thousand only).
The Partner No 2 shall continue to be the Managing Partner for his lifetime or retirement.
In the event of Partner No. 2 's demise or retirement, whichever is earlier, the Partner No. 1 shall then act and perform duties and functions of Managing Partner.
In the event of the demise or retirement of Partner No. 1, the Managing Partner shall be appointed by the remaining partners or their legal representatives, as the case may be, 16.
Partner No. 3 shall be responsible for the duties and functions to be performed under the direction of No. 2, the Managing Partner.
In the event of failure on the part of No. 3 to perform duties and functions or otherwise entrusted by No. 2, the Managing Partner, the matter shall be referred to No. 2 and his decision shall be binding on No. 3".
The Appellate Assistant Commissioner accepted the contention of the assessee and held that the remuneration paid and re ceived by Shri D. C Shah should be deleted from the assessment of the assessee.
The Income Tax Officer thereafter preferred appeals to the Income Tax Tribunal which set aside the order of the Appellate Assistant Commissioner and held that the remuneration paid should be included in the total income of the assessee.
At the instance of the assessee, the Income Tax Appellate Tribunal stated a case to the High Court on the following question of law : "Whether on the facts and in the circumstances of the ease.
, was the salary received by D. C. Shah from the 589 two firms of M/s C. U. Shah & Co. and M/s Oriental Can Manufacturing Co., includible in the assessment of the H.U.F. of which Shri D. C. Shah was the Karta?" The High Court relying upon its earlier decision in Gurunath V. Dhakappa vs Commissioner of Income tax, Mysore (1) held that the salary received by Shri D. C. Shah from the aforesaid firms cannot be included in the assessment of the Hindu Undivided Family of which he was the karta.
These appeals are brought by special leave on behalf of the Commissioner of, Income Tax, Bangalore from the judgment of the Mysore High Court, dated 19th January, 1965 in Income Tax Reference No. 1 of 1964.
The question whether the remuneration earned by a member of a Hindu Undivided Family as an officer of a company or.
a firm in which the assets of the Hindu Undivided Family have either been invested or the office has been acquired with the aid of the funds of the family is the income of the family or the individual income of the member has been the subject matter of consideration in several cases before this Court.
In V. D. Dhanwatey vs Commissioner of Income tax(2), V the karta of a Hindu Undivided Family contributed to the capital of a firm out of the funds of the family.
Under the agreement of the partnership the general management and supervision of the partnership business was to be in the hands of V and he was to be paid a monthly remuneration out of the gross earnings of the partnership business.
It was found that V joined the partnership as representing the family and became a partner on account of the investments of the joint family assets in the capital of the partnership and that the remuneration received by V was only an increased share of the profits paid to him as representing the family.
In this state of facts it was held by this Court that the remuneration paid to V was directly related to the investments of the assets of the family in the partnership business and "there was a real and sufficient connection between the investment from the joint family funds and the remuneration paid to V".
It was therefore held by this Court that the salary paid to V was, rightly assessed as the income of the Hindu Undivided Family.
In M. D. Dhanwatey vs Commissioner of Income Tax(1) the facts were parallel to the facts in V. D. Dhanwatey 's case (2 ) and the salary received by the karta of the Hindu Undivided Family was treated as the income of the family.
In section R. M. CT.
Palaniappa Chettiar V. Commissioner of Income Tax(4), the material facts were different.
The karta of a Hindu Undivided Family acquired 90 out of 300 shares in a transport company with the funds of the family.
In course of time he (1) (2) (3) (4) L10Sup./69 3 became the Managing Director of the Company.
As Managing Director the karta was entitled to salary and commission on the.
net profits of the company, and was entrusted with control over the financial and administrative affairs of the company.
The, only qualification under the Articles of Association for the office of a Director, was the holding of not less than 25 shares in his own right.
It was found that the shares were acquired by the family not with the object that the karta should become the Managing, Director, but in the ordinary course of investment and there was no real connection between the investment of the joint family funds in the purchase of the shares and the appointment of the karta as Managing Director of the company.
It was held therefore that the remuneration of the Managing Director was not earned on account of any detriment to the joint family assets and the amounts received by the karta as Managing Director 's remuneration, commission and 'sitting fee ' were not assessable as the income of the Hindu Undivided Family.
In P. N. Krishna Iyer V. Commissioner 'of Income Tax Kerala(1), the principle laid down in V. D. Dhanwatey,s case(2) was applied.
It was held that the remuneration received by the assessee from the company of which he was the Managing Director together with commission and 'sitting fee ' , should be included in the assessment of the Hindu Undivided Family.
It was pointed out that the shares which qualified the assessee to become a member of the company were purchased with the aid of the joint family funds.
The shares which were allotted to the assessee in lieu of this services were also treated as shares belonging to the joint family.
The entire capital assets of the company originally belonged to the joint family and were made available to the company in consideration of a mere promise to pay the amount for which the assets were valued.
The income was primarily earned by utilising the joint family assets or funds and the mere fact that in the process of gaining the advantage an element of personal service or skill or labour was involved did not alter the character of the income.
In cases of this class the character of the receipt must be determined by reference to its source, its relation to the assets of the family and the proximity of the connection between the investment from the joint family funds and the remuneration paid.
Applying the principle laid down in V. D. Dhanwatey 's case(3), it was held that the tribunal wag justified in holding that the income from the salary, commission or 'sitting fee ' obtained by the assessee did not represent his individual income but was the income of the Hindu Undivided Family of, which he was the karta.
(1) (2) 591 In Commissioner of Income Tax, Mysore vs G. V. Dhakappa(1), the principle laid down in V. D. Dhanwatey,s(2) case was applied again.
It was held that there was no finding that the income which was received by G. V. Dhakappa was directly related to any assets of the family utilised in the partnership, and, therefore, the income of G., V. Dhakappa cannot be treated as the income of the Hindu Undivided Family.
In our opinion, the present case falls within the principle laid down by this Court in S.R.M. CT.
Palaniappa Chettiar 's case(3).
It has been found that Shri D. C. Shah was a man of rich experience in the line of business which these two firms were carrying on.
Clauses 9 and 10 of the Partnership deed dated 5 6 1961 indicate that the remuneration was paid not because of the family funds invested in the partnership but for the personal qualification of Shri D. C. Shah.
In the case of Oriental Can Manufacturing Company clause 14 provided for Shri K. K. Dhote being appointed as the Managing partner.
After the said Shri Dhote retired Shri D. C. Shah was appointed as the Managing partner during the assessment year 1959 60.
Clause 15 of the partnership deed provided for such an appointment.
A reading of clauses 14, 15 and 16 of the Partnership Deed indicates that the remuneration was paid for the specific acts of management done by Shri D. C. Shah resting on his personal qualification and not because he represented the firm.
It should also be noticed that no other partner was paid any salary.
Upon the particular facts of this case, it is manifest that there was no real or sufficient connection between the investment of the joint family funds and the remuneration paid by the partnership to Shri D. C. Shah.
It follows that the remuneration of Shri D. C. Shah was not earned on account of any detriment to the joint family assets and the amounts of remuneration received by Shri D. C. Shah as the Managing partner of the two partnerships were not assessable as income of the Hindu Undivided Family.
For these reasons we hold that there is no merit in these appeals which are accordingly dismissed with costs.
There will be one hearing fee.
Y.P. Appeals dismissed.
(1) Civil Appeal No. 713 of 1965 decided on 23 7 1968.
| IN-Abs | The assessee a Hindu undivided family through its karta was a partner in two firms.
The Karta had rich experience in the line of business carried on by the firms.
in one of the firms, the Karta was appointed as its Managing Partner and paid a remuneration as Managing Partner in addition to the benefits enjoyed as a partner.
in the other firm, another partner was appointed as the Managing Partner, and it was provided that on his retirement, the Karta was to be appointed as the Managing Partner and entitled to the remunerations.
The Karta was appointed the Managing Partner of the second firm also on the retirement of its earlier Managing Partner.
The assessee family claimed that the remunerations received by the Karta as Managing Partner should be deleted from the assessment of the assessee, and they were the personal income of the Karta.
HELD: The remuneration of the Karta was not earned on account of any detriment to the joint family assets and the accounts received by the Karta as the Managing Partner of the two partnerships were not assessable as the income of the Hindu undivided family.
[591 F], Upon the facts of the case, there was no real or sufficient connection between the investment of the joint family funds and the remuneration paid by the partners to the Karta.
The remuneration was paid not because of the family funds invested ' in the partnership, but for the personal qualifications of the Karta.
[591 D F] S, R. M.CT. PL.
Palaniappa Chettiar vs Commissioner of Income tax, , followed.
Gurunath V. Dhakappa vs Commissioner of Income tax, Mysore, ; V. D. Dhanwatey vs Commissioner of Income tax, ; M. D. Dhanwatey V. Commissioner of Income tax, ; P. N. 'Krishna Iyer vs Commissioner of Income tax Kerala, and Commissioner of Income tax, Mysore vs G V. Dhakappa, Civil Appeal No. 713 of 1965 decided on 23 7 1968, referred to.
|
AL JURISDICTION: Civil Appeal No. 1528 of 1968.
Appeal by special leave from the order of March 18, 1968 of the Gujart High Court in Special Civil Application No. 365 of 1968 and Civil Appeals Nos. 1900 and 2118 of 1968.
Appeals from the judgment and order dated May 14, 1968 of the Delhi High Court in Civil Writ Petitions Nos. 343 and 294 259 of 1968 and Petitions under article 32 of the Constitution of India for the enforcement of the fundamental rights.
I. N. Shroff, for the appellant (in C.A. No. 1528 of 1968).
A. section Bobde, G. L. Sanghi, V. K. Sanghi and section section Khanduja, for the appellant (in C.A. No. 1900 of 1968).
C. B. Agarwala, Virendra Kumar, section section Pareikh, Uma Mehta and section section Khanduja, for the appellant (in C.A. No. 211 '8 of 1968).
The petitioner appeared in person (in W.P. No. 109 of 1968).
The petitioner appeared in person (in W.P. No. 234 of 1968).
The petitioner appeared in person (in W.P. No. 402 of 1968).
C. B. Agarwala, B. N. Antani and R. K. Bhatt, for the petitioner (in W.P. No. 403 of 1968).
A. section Bobde and section section Khanduja, for the petitioner (in W.P. No. 409 of 1968).
C. K. Daphtary, B. Sen, R. H. Dhebar and section P. Nayar, for the Union of India (in C.A. Nos. 1528, 1900 and 2118 of 1968 and W.P. Nos. 234, 402 and 403 of 1968).
G. R. Rajagopal; R. H. Dhebar and section P. Nayar, for the Union of India (in.
W.P. No. 109 of 1968).
C. K. Daphtary, B. Sen, A. Sreedharan Nambiar, R. H. Dhebar and section P. Nayar, for the Union of India (in W.P. No. 409 of 1968).
R. H. Dhebar and section P. Nayar, for the State of Gujarat.
The Judgment of HIDAYATULLAH, C.J., RAMASWAMI, MITTER and GROVER, JJ. was delivered by HIDAYATULLAH, C.J. SHAH, J. delivered a separate Opinion.
Hidayatallah, C.J. These are five writ petitions under article 32 of the Constitution and three appeals against the decisions of, the ' High Courts of Gujarat and Delhi.
The writ petitions have been filed by Mr. Manikant Tiwari (W.P. No. 109/68), Mr. Shiv Kumar Sharma (W.P. No. 234/68), Mr. Madhu Limaye (W.P. No. 402/68), Mr. Gulabshankar Amritlal Dholakia (W.P. No. 403/68) and Mr. Node Sadi Rau (W.P. No. 409/68).
The appeals from the Delhi High Court 's common judgment, 14 May, 1968 on certificate are by Mr.
Shiv Kumar Sharma (C.A. No. 2118/68) and Major Ranjit Singh (C.A. 1900/68) and the appeal from the decision of the Gujarat High Court is in a writ petition filed by Mt. Maganbhai lshwarbhai Patel (C.A. No. 1528/68).
The Gujarat High Court, 18 March, 1968, dismissed 260 the petition summarily and the appeal is by special leave of this Court.
This judgment will dispose of all of them.
The several petitioners seek a writ of mandamus or any other appropriate writ or order or direction under Article 32 of the Constitution to restrain the Government of India from coding without the approval of Parliament the areas in the Rann of Kutch known as Kanjarkot, Chhadbet, Dharabanni, Priol Valo Kun and two inlets on either side of Tharparkar to Pakistan as awarded to ' it in the award, 19 February, 1968, of the Indo Pakistan Western Bombay case Tribunal.
Mr. 1.
N. Shroff (C.A. No. 1528/68), Mr. A. section Bobde (C.A. No. 1900/68) and Mr. C. B. Agarwal (W.P. No. 403/68) represented three such petitioners.
Mr. Shiv Kumar Sharma, Mr. Madhu Limaye and Mr. Manikant Tiwari argued their own matters.
The Union of India was represented by Mr. C. K. Daphtary, former Attorney General of India, who had also conducted the case for India before the Tribunal.
The Indian Independence Act of July 18, 1947, (an Act of the British Parliament) created from August 15, 1947 two domi nions known as India and Pakistan.
By the same statute the paramountcy of the British Crown over the States of Kutch Santalpur, Tharad, Suigam, Way and Jodhpur lapsed and they soon acceded to and merged with India.
The former British Indian Province of Sind was included in Pakistan while the Presidency of Bombay was part of India.
Between these two lies the Great Rann of Kutch, Sind shutting on the North and West and the Indian mainland on the South and East.
The Rann is a vast expanse of water and desert.
For part of the year even the desert is covered by water.
At other times it is either soft mud or land with grass.
No one ordinarily lives in that area which the onagers roam at large.
It appears that from July 1948 Diplomatic Notes were ex changed between the two Governments with regard to the boundary 'between the areas known as Gujarat and West Pakistan.
The difference led to open hostilities in April 1965.
On June 30, 1965 the two Governments reached an agreement which read "Constitution of the Tribunal, Proceedings.
On 30 June, 1965, the Government of India and the Government of Pakistan concluded an Agreement, reading as follows : Whereas both, the Governments of India and Pakistan have agreed to a cease fire and to restoration of the status quo as at 1 January, 1965, in the area of the Gujarat West Pakistan border in the confidence that this will also contribute to a reduction of the present tension along the entire Indo Pakistan border; 261 Whereas it is necessary that after the status quo has been established in the aforesaid Gujarat West Pakistan border area, arrangements should be made for determination and demarcation of the border in that area; NOW, THEREFORE, the two Governments agree that the following action shall be taken in regard to the said area Article 1: There shall be an immediate cease fire with effect from 0030 hours GMT on 1 July 1965.
Article 2 On the cease fire (i) All troops on both sides will immediately begin to withdraw; (ii) This process will be completed within seven days; (iii) Indian police may then, reoccupy the post at Chhad Bet in strength no greater than that employed at the post on 31 December 1964; (iv) Indian and Pakistan police may patrol on the tracks on which they were patrolling prior to 1 January 1965, provided that their patrolling win not exceed in intensity that which they were doing prior to 1 January 1965 and during the monsoon period will not exceed in intensity that done during the monsoon period of 1964; (v) If patrols of Indian and Pakistan police should come into contact they will not interfere with each other, and in particular will act in accordance with West Pakistan India border ground rules agreed to in January 1960; (vi) Officials of the two Governments will meet immediately after the cease fire and from time to time thereafter as may prove desirable in order to consider whether any problems arise in the implementation of the provisions of paragraphs (iii)to (v) above and to agree on the settle ment of any such problems.
262 Article 3 (i) In view of the fact that (a) India claims that there is no territorial dispute as there is a well established boundary running roughly along the northern edge of the Rann of Kutch as shown in the pre partition maps, which needs to be demarcated.on the ground.
(b) Pakistan claims that the border between India and Pakistan in the Rann of Kutch runs roughly along the 24th parallel as is clear from several pre partition and post partition documents and therefore the dispute involves some 3,500.
square miles of territory.
(c) At discussions in January 1960, it was agreed by Ministers of the two Governments that they would each collect further data regarding the Kutch Sind boundary and that further discussions would be held later, with a view to arriving at a settlement of this dispute; as soon as officials have finished the task referred to in article 2 (vi), which in any case will not be later than one month after the cease fire, Ministers of the two Governments will meet in order to agree on the determination of the border in the light of their respective claims, and the arrangements for its demarcation.
At this meeting and at any proceedings before the Tribunal referred to in article 3(ii) and (iv) below, each Government will be free to present and develop their case in full.
(ii) In the event of no agreement between the Ministers of the two Governments on the determination of the border being reached within two months of the cease fire, the.
two Governments shall, as contemplated, in the Joint Communique of 24 October, 1959, have recourse to the Tribunal referred to in (iii) below for determination of the border, in the light of their respective claims and evidence produced before it and the decision of the Tribunal shall be final and binding on both the parties.
(iii) For this purpose there shall be constituted, within four months of the cease fire a Tribunal consisting of three persons, none of whom would be a national of either India or Pakistan.
One member shall be nominated by each Govern and the third member, who will be the Chairman, shall be jointly selected by the two Governments.
In the event of the two Govern ments failing to agree on the selection of the Chairman within three months of the cease fire, they shall request the Secretary General of the United Nations to nominate the Chairman.
(iv) The decision of the Tribunal referred to in (iii)above shall be binding on both Govern ments and shall not be questioned on any ground whatsoever.
Both Governments undertake to implement the findings of the Tribunal in full as quickly as possible and shall refer to the Tribunal for decision any difficulties which may arise between them in the implementation of these findings.
For that purpose the Tribunal shall remain in being until its findings have been implemented in full.
The cease fire came into effect as provided in Article 1 of the Agreement.
As a result of this agreement the Government of India nomi nated Ambassador Ales Bebler, Judge of the Constitutional Court of Yugoslavia, the Government of Pakistan nominated ' Ambassador Nasrollah Entezam,of Iran and former President of the General Assembly of the United Nations.
The two Govern ments having failed to agree on the selection of the Chairman of the Tribunal, the Secretary General of the United Nations, under the power reserved by sub paragraph (iii) of Article 3 of the Agreement, nominated Judge Gunnar Lagergren, now President of the Court of Appeal for Western Sweden.
In the course of the hearing a compromise on the procedure for the demarcations of the boundary was settled.
Memorials, Counter Memorials and Final Memorials were submitted along with numerous Maps, and documents.
The oral hearings began on September 15, 1966 and continued with some breaks till July 14, 1967.
During the hearing about 10,000 pages of minutes and Verbatim Records were made and about 350 maps were exhibited.
At an early stage in the hearing Pakistan raised the ques tion that the dispute be decided ex aequo et bono which request was opposed by India.
The Tribunal did not find that the Agreement of June 30, 1965 authorised it 'clearly and beyond doubt to adjudicate ex aequo et bono '.
The parties did not confer this power by a Special Compromis even thereafter.
The case on the part of India was pro pounded with the aid of map A which was a mosaic of Indian Maps B 44, B 37, B 19, 264 and B 20.
Pakistan claimed the boundary as marked on Map B. The award has delineated the boundary in Map C. Maps A and B and C form part of the Award.
In describing the matter in dispute the Tribunal observed: India claimed that "the Tribunal determine the alignment of the entire boundary between West Pakistan and Gujarat from the point at which the blue dotted line meets the purple line in Indian Map B 44 in the west to the North Eastern Trijunction in the east as it appears in the Indian Maps B 44, B 37, B 19 and B 20 where the correct alignment is shown by appropriate boundary symbols." The Government of Pakistan claimed that "The Tribunal determine that the border between India and Pakistan is that which is marked with green yellow, thick broken line in the Pakistan Claim Map It is common ground that the Gujarat West "Pakistan boundary stretches from the, mouth of the Sir Creek in the west to a point on the Jodhpur boundary in the east.
The Parties agree that the Western Terminus of the boundary to be determined by the Tribunal is the point at which the blue dotted line meets the purple line as depicted in Indian Map B 44 and the Pakistan Resolution Map, and that the Eastern Terminus of the same boundary is a point situated 825.8 metres below pillar 920 on the Jodhpur boundary as depicted in Pakistan Map 137." "This agreement leaves out of the matters submitted to the Tribunal the portion of the boundary along the blue dotted line, as depicted in Indian Map B 44 and the Pakistan Resolution Map, as well as the boundary in the Sir Creek.
The blue dotted line is agreed by both Parties to form the boundary between India and Pakistan.
In view of the aforesaid agreement, the question concerning the Sir Creek part of the boundary is left out of consideration.
" The dispute thus remained with regard to the boundary outside these agreements.
The Tribunal described this dispute in the following words "From the Western Terminus, the boundary claimed by India takes off to the north and that claimed by 265 Pakistan to the south; and from the Eastern Terminus, the boundary claimed by India takes off to the south west while the boundry claimed by Pakistan turns south east.
Both parties agree that before Independence the boundaries between the Province of Sind, on the one hand, and one or more of the Indian States on the other hand, were conterminous.
Therefore, in the disputed region, apart from India and Pakistan there is no other State that does or could have sovereignty.
There is between India and Pakistan a conterminous boundary today, whether or not there was at all times a conterminous boundary between Sind and the Indian States.
Pakistan contends that, should the Tribunal find that the Province of Sind and the Indian States were not fully conterminous, then the area between Sind and these States would be an "undefined area", falling outside the scope of the Indian Independence Act, 1947.
In such an event, the conterminous boundary between India and Pakistan would have to be determined by the Tribunal on the basis of rules and principles applicable in such circumstances.
Pakistan adds that the evidence produced by it in this case is in support of its principal submission, although some of it could also be used in support of its alternative submission.
Both parties agree that the Rann was not a "tribal area" as defined in Section 311 of the Government of India Act, 1935.
Each party states that the boundary claimed by it is the traditional, well established and well recognised boundary.
" Pakistan thus claimed in addition to the establishment of a median line roughly along the 24th parallel, what it called the upper lands in dispute and the northwestern part of it which it called 'the jutting triangle '.
These included Dhara Banni, Chhadbet, Pirol Valo Kun, Kanjarkot, Vighokot and Sarifbela and these were said to be not part of the Rann.
India on the other hand stated that the Rann means the Rann lying to the east of the vertical line and to the south of the horizontal line as depicted in Map A. Pakistan maintained that the Rann lay to the east of what was once known as the Khori river and that the lands were part of Sind and referred to the same as 'the delta lands '.
L7sup.
CI/69 18 265 266 The above in brief is the, outline of the dispute as presented to the Tribunal.
Although the AWard of the Tribunal it before us it was necessary to make this brief mention because we are required t"o reach a decision whether this was a clear case of cession of territory following the, award, which it is claimed makes it incumbent for the executive authority in India to obtain the approval of Parliament by suitable amendment of our Constitution, before effectuating the Award.
The Tribunal was not unanimous in its decision.
Judge Ales Bebler accepted almost in its entirety the claim of India.
Ambassador Nosrollah Entezam upheld the Pakistani claim.
The Chairman then delivered his opinion.
On the propounding of his opinion Ambassador Entezam gave his opinion as follows Opinion of Mr. Entezam "In an early stage I considered that Pakistani had made out a clear title to the northern half of the am shown in the survey maps as Rann.
I have now had the advantage of reading the opinion of the learned Chairman, and in the light of it I concur in and endorse the judgment of the learned chairman.
The Tribunal thereupon ruled thus : " The alignment of the boundry described in the opinion of the chairman and endorsed by Mr. Entezam has obtained the required majority.
It is therefore the boundary determined by the Tribunal.
The Chairman prefaced his conclusions by observing "For the reasons now given, and with due regard to what is fair and reasonable as to details I conclude oft the great issue before me that the boundary between India and Pakistan lies as follows.
Reference is made here to the Award Map (Map C).
Because of the imprecise topographical features in the region and the impossibility of exactly delimiting many acts of State authority,, the boundary must sometimes be represented by approximate straight lines.
" The Chairman then indicated the exact location of the boun dary determined by him which was also delineated by him on the Map C.
The new boundary begins at the northern tip of the Khori Creek and after going straight up north reaches the mainland of Sind and then follows roughly the configuration of the land till it comes south of Rahim ke bazar.
It thus follows Erskines Survey.
Thereafter instead of following the mainland it dips to the South East just South of Sadariajagot and then 267 goes up North West to join the maintained and to follow the boundary symbols.
In the triangle, so formed is situated the Kanjarkot area which is the first limb of the disputed territory brought to the fore before us.
After following the line of the mainland and the existing boundary symbols the new boundary again dips to the 'South East to a point a little north of the 24th parallel and runs parallel to it thus embracing Dharabani and Chhadbet to Pakistan.
Thereafter it goes north to join the main land of Sind again and follows the boundary symbols which it follows till it reaches the Nagar Parkar area.
This is a kind of a peninsula jutting to the South.
On the West and East sides of Nagar Parkar there are two narrow but deep inlets.
The new boundary instead of running along the banks of the inlets jumps across the two inlets at their southern extremities, thus including them in Pakistan.
The inlets, therefore, are the fourth and fifth limbs of the disputed territory of India which the petitioners claim has been lost to India by the Award.
The new boundary thence proceeds along the mainland till it reaches the demarcated boundary at the Jodhpur and from where the boundary is not in dispute just as the boundary from Sit Creek to Khori Creek has not been, in dispute.
In drawing up the border the Tribunal based itself on much historical matter and old maps.
In the opinions of Judge Ales Bebler and the Chairman (Ambassador Entezam concurring with the Chairman) this historical material has been differently interpreted but we are not concerned with it.
The reference was also not decidedas a cartographic dispute.
It was settled by an ad hoc award.
No special reasons were given by the Chairman why he included 350 sq.
miles in pakistan when he dipped:the boundary to the South into the Rann of Kutch except when he came to consider the question of, the two inlets on the two sets of Nagar Parkar.
In this connection he observed: "The two deep inlets on either side of Naga Parkar will constitute the territory of Pakistan.
ready in.
1855, the Deputy Commissioner of Thar Parkar pointed out that if these inlets were to be considered Kutch territory.
(a)glance at the map will show that Parkar would be a peninsula almost entirely surrounded by Kutch territory.
The Kutch State could erect fortifications and establish Custom houses at places situated many miles within the district for instance close to Verrawah, or on some of the roads which, crossing inlets of the Rann, lead from one part of this district to another.
Doc. D. 9).
268 In my opinion it would be inequitable to recognise these inlets as foreign territory.
it would be conducive to friction and conflict.
The paramount consideration of promoting peace and stability in this region compels the recognition and confirmation that this territory, also be regarded as such.
The points, where the boundary will thus cut off the two inlets are these : At the westerns inlet, the boundary will leave the boundary symbols indicated on Indian Map B 34 at the point marked thereon as "26", more precisely where the cart track is indicated as departing from the edge of the Rann in a southeasterly direction.
This point is indicated as Point "L" on Map C. on the other side of the inlet, the point will be that where the camel track is indicated on Indian Map B 34 to reach the edge of the Rann; that point is indicated as point "M" on Map C. Between Points "L" and "M", the boundary shall be a straight line.
The boundary will cross the eastern inlet at its nar rowest point in a straight line between Points 'N" and "O" marked on Map C." In straightening the line to avoid a jagged boundary the Chairman gave the following reason "The boundary marked by symbols along the outer edges of the peninsula of Nagar Parkar and up to the Eastern Terminus is a jagged one.
As such it is unsuitable and impracticable as an international boundary.
The boundary shall accordingly lie in conformity with the depiction on Map C between the outer points on jutting out tongues of land from Point "M" and until the Eastern Terminus, marked as "ET" on Map C.
At no point.
between the two Terminii shall the alignment of the boundary as above described be such as to include in India territory not claimed by India, as defined by the depiction of India 's claim line on Map A.
It might be added that the boundary proposed by me for the greater part of its length roughly coincides with the boundary proposed by my learned colleague, Mr. Bebler.
" This in brief is the decision of the Tribunal.
We now pro ceed to the consideration of the 'Matters before us.
There are seven parties before us seeking to restrain the Government of India from making over the areas of Kanjarkot, 269 Dharabanni Chhadbet and the two inlets to Pakistan by sheer executive act and insist that the necessary change can only be effected by a constitutional amendment of the territories of India as indicated in the Constitution.
It may be Pointed Out that none of the petitioners contends that the Award should be rejected.
This is as it should be, India was voluntarily a party to an agreement pledging its honour to respect the Award.
According to J. H. Rolston (International Arbitrations from Athens to Locarno) pacific settlement of international disputes through a binding award on the basis of an undertaking voluntarily accepted is founded on the same principles as are to be found in the concept of Arbitrations in Municipal Law.
The history of such arbitrations begins in modem times from the Jay Treaty between Great Britain and the United States of America of November 19, 1794 to settle the boundary disputes after Independence in 1776) through Mixed Commissions.
The Commissions settled the exact position of the Sainte Croix River and the decision was regarded by both sides "as final and conclusive so that the same shall never thereafter be called in question or made the subject of dispute or difference between them.
" The rules of such arbitrations were settled by the Alabama Arbitrations in 1871 and the basis of the rules is the maxim Pacta Sunt Servanda.
Indeed the Hague Convention of 1907 (article 37) contained the rule "Recourse to arbitration implies an engagement to submit loyally to Awards.
" There have been innumerable arbitrations between nations.
Several books contain Surveys of these arbitrations and awards.
Stuyt lists 407 between 1794 and 1938 and writers like Moore, La Fontaine, Lapradelle, Darby etc.
have made other compilations, the most complete being by Moore.
Nantwi brings the list down to 1967 and also lists separately the awards which were not complied with.
An examination of such awards only reveals that generally an award is not accepted when the terms of submission are departed from or there are fatal omissions, contradictions or obscurities or the arbitrators substantially exceed their jurisdiction.
None of these factors obtains here.
Since the award has been accepted by our Government it is binding.
The parties also do not want that it be rejected.
The only question raised in these matters is how it is to be implemented.
Before we deal with the problem we wish to say something about the standing of the petitioners since it appears to us that most of them have no direct interest to question the action of Government or to raise any controversy regarding the implementation of the Award.
Before the hearing commenced we questioned each petitioner as to the foundation of his claim.
We discovered that ,most of the petitioners had no real or apparent stake in the areas 270 now declared to be Pakistan territory.
These persons claim that they had and still have the fundamental rights guaranteed to them by article 19 (1) (d) (e) and (f), that is to say, the right to travel, to reside or settle down, or to acquire, and hold property in these areas.
None of them has so far made any move in this direction but their apprehension is that they will be deprived of these rights in the future.
This our judgment, is too tenuous a right to be noticed by the court in administering the law and still less in enforcing fundamental rights.
When we communicated our view at an earlier hearing, some more petitioners came forward Mr. Madhu Limaye puts forward the supporting plea that he had attempted to penetrate this area to reconnoiter possibilities for settlement, but was turned back.
In this way he claims that he had attempted to exercise his fundamental rights and they were infringed.
Another party claims to have had a lease of grass lands some ten years ago in this area and he is now to be deprived of the right to obtain a similar lease.
Lastly one of the parties put forward the plea that he lives in the adjoining territory and thus has interest in the territories proposed to be ceded to Pakistan.
These petitioners too have very slender rights if at all.
The only person who can claim deprivation of fundamental rights isMr.
Madhu Limaye, although in his case also the connectionwas temporary and almost ephemeral.
However, Wedecided to hear him and as we were to decide the question we heard supplementary arguments from the others also to have as much assistance as possible.
But we are not to be taken as establishing a precedent for this Court which declines to issue a writ of mandamus except at the instance of a party whose fundamental rights are directly and substantially invaded or are in imminent danger of being so invaded.
From this point of view we would have been justified in dismissing all petitions except perhaps that of Mr. Madhu Limaye.
We may now proceed to the consideration of the rival contentions.
The petitioners attempt to establish that this territory is a part of India and has always been so from the establishment of the two dominions, that India has exercised effective administrative control over it and that.
giving up, a claim to it involves a cession of Indian territory which can only be effected by a constitutional amendment.
As to the details of the steps which, in the, petitioners ' view establish these facts, we shall come later.
This in very brief is the gist of the petitioners ' case.
The reply on behalf of the government of India is equally brief.
It is that no, cession of territory is involved, since the boundary was always uncertain owing to the shifting nature of the sea and sands and that the effective administrative control amounted to no more than establishing a police outpost with a personnel of 171 persons for watch and ward and that too after the exchange of 271 Diplomat Notes began and that the dispute concerns the settlement of boundary which was uncertain.
It is thus contended that the true areas of Pakistan and India have now been demarcated without cession of what may be called undisputed Indian territory.
According to the Government of India the Award itself is the operative treaty and after demarcation of the boundary it will only be necessary to exchange letters recognising the established border.
The case lies within this narrow compass.
Before we deal with the points in dispute and them relied upon by the rival parties in support thereof we wish to say a few words on the implementation of treaties in general and arbitration awards in boundary disputes in particular.
The practice of countries is different but the diverse possible approaches to the question appear from an examination of the practice obtaining in the United States, France, the United Kingdom and in British India.
An examination of these practices will enable us to see how the, matter is to be viewed in this case and in context of our Constitution and the existing rulings of court.
A treaty really concerns the political rather than the judicial wing of the State.
When a treaty or an award after arbitration comes into existence, it has to be implemented and this can only be if all the three branches of Government, to wit, the Legislature, the Executive and the Judiciary, or any of them, possess the power to implement it.
if there is any deficiency in the constitutional system it has to be removed and the State must equip itself with the, 'necessary power.
in some jurisdictions the treaty or the compromis read with the Award acquires fun effect auto matically in the, Municipal Law, the other body of Municipal Law notwithstanding.
Such treaties and awards are self exe cuting '.
Legislation may nevertheless be passed in aid of implementation but is usually not necessary.
In the United States of America a treaty concluded with a foreign State by the, President of the United States alone, without the consent of the Senate,, is not, according to their Constitution, binding upon the Nation and the foreign power derives no rights under it (See Mc Nair Law of Treaties p. 80 quoting from Crandall : Treaties, Making and Enforcement chapter XIV).
As Chief Justice Taft puts it : a treaty is the supreme law and a treaty may repeal a statute and vice versa.
It is only when the terms of a treaty require that a law must be passed that it has to be so passed : Foster vs Nielsen ; See also Dickinson : Law of Nations 1057.
The position regarding the United States is quite clear.
In other nations different practices exist.
In the French Constitution of the 4th October, 1958 (Title VI) Article 52 enables the 272 President to negotiate and ratify treaties and he is informed of the negotiation of any international agreement not subject to ratification.
Article 53 names the treaties that require ratification by law.
They, inter alia involve the cession, exchange or addition of territory.
They take effect only after having been ratified or approved.
No cession, exchange or addition of territory is valid without the consent of the populations concerned.
However it is not laid down how consent is to be obtained.
Treaties or agreements regularly ratified or approved have, from the time of publication, an authority superior to that of laws, provided, in the case of each agreement or treaty, that it is applied also by the other party (Article 55).
If the Constitutional Council consulted by the President of the Republic, the Prime Minister or the President of either assembly, has declared that an international obligation includes a clause contrary to the constitution, authorisation to ratify or approve it may be accorded only after revision of the Constitution (Article 54).
The Constitution thus makes provision for all contingencies.
Even though the Kings of France had power expressly conferred by the Constitutional Charter of 1830, the French Jurists denied the jurisdiction and power to the King to code territory.
The English practice, has like all other British Institutions, :grown with time.
Blackstone has the following remark : "Whatever contracts he (the sovereign) engages in, no other power in the kingdom can legally delay, resist or annul.
" Kent in his Commentaries (Vol. 1 p. 175, 10th Edn.) says "the power competent to bind the nation by treaty may alienate the public domain and property by treaty.
" Forsyth in his Opinions gives the reason that if the Nation has conferred upon its supreme executive without reserve the right of making treaties, the alienation is valid because it is then made by the reputed will of the Nation.
England, however,, soon began to make a distinction between territory ceded as a free gift in time of peace without a treaty and that ceded as a result of a war.
Forsyth asked the question whether the Crown had the ,power to alienate British territory by treaty, not following the dose of a war as for instance, by a commercial treaty and answered that the proposition seemed questionable.
He observed: "I should doubt very much whether the Crown, without the authority of Parliament, would have the legal power to cede by treaty the Channel Islands to France, there having been no war, and the cession not being made as part of the adjustment of a quarrel between the two countries." 273 Without a treaty the power to cede territory in time of peace was always denied.
Forsyth cites Grotius (de jure Belli et Pacis Vol.
11 c. 6.
sections 3 8) Puffendorf Vol.
viii C. 12, Vattel Vol. 1 C. 20 section 224, c. 21 section 260, Livy Vol.
IV c. 2 section 1 1 and Phillimore Part III c. 14 sections 261, 262.
At the, time of the cession of East Florida to Spain Lord Loughborough maintained that the Crown possessed no preroga tive to cede British Territory to a foreign State without authority of Parliament but Lord Thurlow (Lord Chancellor) said that this was based on 'the lucubrations and fancies ' of foreign writers which he rejected.
However Britain was then at war with Spain and the cession was under a treaty of peace.
In 1863 the House of Commons debated the transfer of Ionian Islands.
Lord Palmerston.
observed "But with regard to cases of territory acquired by conquest during war, and not ceded by treaty, and which are not therefore British freehold, and all possessions that have been ceded by treaty and held as possessions of British Crown, there is no question that the Crown may make a treaty alienating such possession without the consent of Parliament." Lord Palmerston cited the examples of Senegal, Minorce, Florida and Isles of Banca.
(See Hansard Part: Debates Vol.
CLXIX p. 230 231).
These were however cessions made by treaties of peace at the end of wars.
Lord Mc Nair gives the settled law of modem times.
Accord ing to him in the United Kingdom the concurrence of Parliament must always be obtained except in a very small number of cases.
He opines that if the courts are required to assist in the implementation, a law must obviously be found for courts act only in accordance with law.
If a law is obligatory obviously Parliament must have a say because no law can be passed except by Parliament.
However, even if a law be required, and yet the Crown enters into a treaty, the courts take the act as final unless a law stands in the way.
In other words unless there be a law conflicting with the treaty, the treaty must stand.
In this connection it is profitable to read what Lord Phillimore (then Sir Robert Phillimore) said in the Parliament Belge case(1).
That case was reversed on appeal in but on another point.
See also Walker vs Baird(2) .As was observed by Lord Atkin in Attorney General for Canada vs Attorney General for Ontario(3) the position may be summed up thus : there is a distinction between (1) the formation and(2) the performance of the obligation.
The first is an executive act the second a legal act if a law is required.
(1) (3) at 347.
(2) 274 The performance then has no force apart from a law that is to say unless Parliament assents to it and Parliament then accords its approval to the, first executive act.
The treaties created by executive action bind the, contracting parties and, therefore, means must be found for their implementation within the law.
This is illustrated by a few examples.
The Executive authority in the State cannot.acquire new rights against the citizens by making treaties with foreign powers.
Therefore whenever peace treaties involved municipal execution many statutes had to be passed.
Again new offences cannot be created by the, more fact of conventions on entered into with other powers.
Both principles obtain in India.
The Indian statute book contains numerous examples of conventions which have led to the passing of Municipal Laws.
The Civil Court Manual devotes many pages to such statutes, too numerous to be mentioned here and the penal law of India also affords examples One such is the law against obscenity in India which was the direct result of 4 convention.
In the United Kingdom there is almost a binding convention that cession of British territory requires approval of Parliament in the form of a statute but it must clearly have been the freehold of Britain.
But even here Parliamentary sanction is not required for cession or abandonment of territory acquired previously by conquest or cession or otherwise wrongly in British possession.
The cases of abandonment by the Crown of sovereignty over the various mandated territories are in point.
Many of them were given up without an Act of Parliament.
The protocol respecting the boundary between Tanganiyika territory and the Belgian mandated territory of Ruonda ulandi, on August 5, 1924 involving a small territory was never enacted as a law.
In 1925 it was ruled that cession of.
territory which never formed part of a self governing dominion was a royal prerogative although it was desirable that approval of Parliament be obtained.
A giving up of doubtful claims to territory is not considered to be of the same standing as a cession of territory known to be that of the Crown.
The tendency however is to have parliamentary sanction when British territory is ceded.
This is provided in the very treaty itself and it is made subject to Parliament 's ;approval.
The present practice of Crown is to obtain either prior sanction of Parliament or to seek ratification after it.
This is done by laying the treaty on the, table of both Houses for 21 days, after which time it is treated as ratified.
Although the practice since 1924 is to submit treaties to Parliament by laying them on the table of the two Houses (known as the Ponsonby rule), there have been in the past numerous instances of treaties implemented by the Crown without reference to Parliament.
These exceptions were connected with circumstances of convenience and public policy that is to say to avert a war, for consideration of territory or for rectification of boun 275 daries.
A few examples of such action in time of peace may be given.
In 1824 in treaty with Netherlands, Great Britain ceded Sumatra and the settlement of Bencollen.
In 1859 60 the Bay Islands were transferred to Honduras.
In 1867 in treaty with Netherlands an exchange of territory took place.
The Orange River Territory was transferred by an order in Council.
In 1697 by the Treaty of Reyswick Hudson Bay territory was given back to the French.
In 1813 by the Treaties of Stockholm the Island of Guadelope was ceded to Spain.
A cession of Mosquito Shore was made to Nicaragua.
All those were in time of peace and without Any reference to Parliament Hertslett 's Treaties.
In British India section 113 of the Indian Evidence Act of 1872 created a presumption in favour of such transfer which on the issue of a notification was to be held by courts to be valid.
In 1872 Scidia was given the pergannah of Broach.
In 1803 Pudokottah State was ceded the Districts of Kullanelly in Tanjore.
In 1806 Sambalpur was given to the Mahara a of Nagpur and in 1871 Scidia was given certain villages in Jhansi.
[See Aitchoson 's tre es Vol.
3 (p. 331), Vol. 4 (p. 214) and (99)].
All these were without intervention of Parliament.
It will thus appear that there is no settled practice.
The least that can be said is that cession in time of war in the United Kingdom can always be made by the Crown but in time of peace it can only be made by Parliamentary sanction whether obtained directly or under the Ponsonby rule.
In British India parliamentary sanction was not necessary.
In Damodar Gordhan vs Deoran Kanji(1) it was laid down that "the general and abstract doctrine laid down by the High Court at Bombay that it is beyond the power of the British Crown without the consent of the Imperial Parliament to make a cession of territory within the jurisdiction of any of the British Courts in India, in time of peace, to a foreign power, is erroneous.
" The question is one of domestic as well as International Law and we have been at pains to set down the practice of some countries and that obtaining in British India before dealing with this problem in the light of our Constitution and the facts obtaining here.
It will appear from the other analysis that the United States of America and the French Constitutions have a clear guidance on the subject.
In England, as no written Constitution exists, difference is made between treaties of peace when the Crown acts without, obtaining the approval of Parliament and cession in peace time when such approval must be had.
But even so a distinction is made in the case of British possessions abroad and the United Kingdom.
Again a difference is made in cases involving minor (1) [1876] 1 Appeal cases, 332.
276 changes where boundaries have to be ascertained and adjusted.
In British India advantage was taken of Section 113 of the Evidence Act in cases of cessions to Native States, Prince or Ruler.
That section is now obsolete and has been omitted in Burma and Ceylong but is still borne on our statute, although no longer required.
We may now pass on to the Indian Constitution and the facts of this case to see how it views this matter.
The Constitution did not include any clear direction about treaties such as is to be found in the United States of America and the French Constitutions.
Article I of the Constitution defined the territory of India.
It provides that India shall be a Union of States.
In the Constitution as originally enacted First Schedule classified States as A, B, C and D. After the Seventh Amendment in 1956 it is now provided that the States and the territories thereof shall be as specified in the First Schedule.
Clause (3) ,of the First Article was also amended by the Seventh Amendment but as the amendment is not material we may read here that clause as it is today.
It reads : "(3) The territory of India shall comprise (a) the territories of the States; (b) the Union territories specified in the First Schedule; and (c) such other territories as may be acquired. ' Article 3 enables Parliament by law to alter the boundaries of the existing States and it includes the power (b) to increase the area, of any State (c) diminish the area of any State or to alter the name of any State.
Then there are items Nos. 14 and 15 in the Seventh Schedule which provide as follows "14.
Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries.
War and peace.
" These entries enable laws to be enacted on these topics.
They are to be read with Article 253 which occurs in Part XI (Relations between the Union and the States) Chapter 1 (Legislative Relations) and is headed Distribution of Legislative Powers, it provides.
Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory ,of India for implementing any treaty, agreement or convention with any other country or countries or any 277 decision made at any international conference, association or other body." In point of fact it adds nothing to the legislative entries 14 and 15 above quoted but confers exclusive power of law making upon".
Parliament.
As the marginal note correctly represents the idea underlying the Article, it may be, read Legislation for giving effect to International agreements and the article only says that Parliament is the authority to make such laws.
In addition to these provisions we must also take into account Article 73(1) which lays down the Executive power of the Union.
It reads "73(1) Subject to the provisions of this Constitution, the executive power of the Union shall extend (a) to the matters with respect to which Parliament has power to make laws; and (b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement Provided that the executive power referred to in subclause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws.
" The question is if a law and or a constitutional amendments is necessary for implementing the Award.
Before we deal with the facts of the case before us and the.
arguments for and against executive act ion we may consider here a few cases of this Court in which a problem of cession of Indian, Territory had previously arisen because both side seek to apply those cases to the facts here.
It is convenient to view these cases in the order in which they were decided In Midnapore Zamindary Co. Ltd. vs Province of Bengal and others(1), this question was not directly in issue.
There were observations which are pertinent and must be borne in mind.
It was observed that disputes as to boundaries between two independent States cannot be the subject of inquiry of municipal courts exercising jurisdiction in either State.
The Federal Court relied upon the statement of the law by Oppenheim.
(International Law, 7th Edn., Vol. 1, p. 408) that "state territory is an object of the Law of Nations, because the latter recognises the supreme authority of every State within its territory".
The Federal Court quoted with approval the dictum of Farwell, J. in Foster vs Globe Venture Syndicate Ltd. (2) which reads: (1) [1949] P. R. 309.
(2) 278 "Sound Policy appears to, me to require that I should act in unison with the Government on such a point as that.
Assuming that the Foreign Office have already satisfied themselves that the territory in question is within the dominion of Morocco, and have applied.
to the Sultan of Morocco for redress in any given matter, it would surely be improver that 1, sitting here as a Judge of the High Court, should, in the face of that art of Her Majesty, hold as a matter of fact that the territory in question was not within the dominion of the Sultan of Morocco.
I should be contravening the act of Her Majesty acting as a Sovereign in a matter which is within the cognizance of Her Majesty 's Foreign Office.
" This statement of the law had the full approval of Viscount Finlay in Duff Development Co. vs Kalintan Government(1) where consultation between Court and Government was advocated.
This ,case does not help us to, solve the problem but it shows that Municipal Courts should be slow to interfere.
A similar question like the present arose In re : The Berubari Union and Exchange of Enclaves (2) on a reference by the President of India to this Court of certain questions concerning the Berubari Union and the exchange of certain enclaves.
As a result of the Radcliffe Award ' dated August 12, 1947 Berubari Union was included in West Bengal and was treated as such.
Certain boundary disputes, having arisen from interpretation of the Radcliffe award, the two Dominions referred the dispute to another Tribunal presided, over by Lord Justice Algot Bagge for decision.
The BaggeTribunal gave its award on 26 January, 1950.
Subsequently the question of Berubari Union was raised by Pakisthan in 1952 and on September 10 ' 1958 the Prime Ministers of India and Pakistan entered into an agreement between East and West Bengal, which involved transfer of Berubari Union to Pakistan,.
Simultaneously an agreement to exchange certain enclaves took place also.
This is known as the Indo Pakistan Agreement.
Section 290 of the Government of India Act 1935 had provided, that His Majesty could by Order in Council increase or diminish the area of any Province or alter the boundary of any Province and the Extra Provincial Jurisdiction Act of 1947 gave the necessary power in that behalf.
The question arose whether the inauguration of the Constitution had led to any change.
Three questions were referred to this Court by the President.
They were (1)Is any legislative action necessary for the implementation of the Agreement relating to Berubari Union ? (1) (2) 279 (2)If, so, is a law of Parliament relatable to article 3 of the Constitution sufficient for the purpose or is an amendment of the Constitution in accordance with article 368 of the Constitution necessary, in addition to or in the alternative ? "(3) Is a law of Parliament relatable to article 3 of, the Constitution sufficient for implementation of the agreement relating to Exchange of Enclaves or is an amendment of the Constitution in accordance with article 368 of the Constitution necessary for the purpose, in addition or in the alternative." This Court gave the following answers Q? 1.
(a) A law of Parliament relatable to article 3 (it the Constitution would be incompetent; (b) A law of Parliament relatable to article 368 of the Constitution is competent and necessary, (c)A law of Parliament relatable to both article 368 and article 3 would be necessary only if Parliament chooses first to pass a law amending article 3 as indicated above; in that case Parliament may have to pass a law on those finds under article 369 and then follow it up with a law relatable to the amended article 3 to implement the Q. 3.
Same as answers (a), (b), and (c) to Question 2.
" The contention on behalf of the Union was that the Indo Pakistan tan Agreement regarding Berubari Union only ascertained and delineated the exact boundary and did not involve alteration of territorial limits of India or alienation or cession of Indian territory.
The exchange of enclaves was also described as a part of the general and broader agreement about Berubari Union and incidental to it.
According to the Union Government the Indo Pakistan Agreement could be implemented by executive action alone without Parliamentary legislation whether with or without a constitutional amendment.
Reliance was placed on the obser vations of Mukherjee, C.J. in, Rai Sahib Ram Jawaya Kapur vs The State of Punjab (1) where dealing with the limits within which the Executive Government can function, the learned Chief Justice said "that the executive function comprised both the determination of the policy as well as the carrying it into execution.
This evidently includes the initiation of legisla (1) 7 280 tion, maintenance of order, the promotion of social and economic welfare, the, direction of foreign Policy, in fact the carrying on or supervision of the general administration of the State.
" The Court posed the question whether the Indo Pakistan Agreement had purported to settle, a boundary dispute or to divide the disputed territory half and half.
The Court found the latter as there was no attempt in the said Agreement to read or interpret the Awards previously given in that dispute.
This Court rejected the contention that it was a pure ascertainment of boundary between the two Countries.
On the other hand the Indo Pakistan Agreement ceded territory of India to Pakistan.
This conclusion was reached in respect of the Berubari Union as well as the en claves.
Since the Berubari Union was treated after the two Awards as part of India its cession would have altered the content of Entry 13 of the First Schedule to the Constitution and an amendment was held necessary.
Once the argument that this was a case of marking a boundary on the surface of the earth was rejected this Court considered the steps necessary to make cession of Indian territory.
As a result the 9th Amendment to the Constitution was enacted from December 28, 1960.
The matter came again in another form before this Court in Ramkishore Sen and Others vs Union of India(1) which is known popularly as the Berubari II case.
It was a writ petition filed in the Calcutta High Court and the appeal was brought to this Court.
It wag filed by six residents of the District of Jalpaiguri.
The complaint was that the village of Chilhati (among others) was being transferred to Pakistan as a result of the Agreement between India and Pakistan and the action was illegal.
The main point argued in the petition was that Chilhati was not covered either by the Indo Pakistan Agreement or the 9th Amendment.
According to those petitioners it was not competent to transfer Chilhati without first amending the Constitution.
The case before the High Court and in this Court was that a part of Chilhati village situated in Debiganj Police Station was a part of Chilhati in Jalpaiguri District.
This ' Court observed : "There is no doubt that if a small portion of land admeasuring about 512 acres which is being transferred to Pakistan is a part of Chilahati situated within the jurisdiction of Debiganj Thana, there can be no valid objection to the proposed transfer.
It is common ground that the village of Chilahati in the Debiganj Thana has been allotted to Pakistan; and it appears that through inadvertence, a part of it was not delivered to Pakistan on the occasion of the partition which followed (1) ; 281 the Radcliffe Award.
It is not surprising that in dividing territories under the Radcliffe Award, such a mistake should have occurred; but it is plain that what the res pondents now propose to do is to transfer to Pakistan the area in question which really belongs to her.
" It was then contended that even though that part ought to have been originally transferred to Pakistan under the Radcliffe Award, it having become part of India could not be ceded without the procedure laid down in Berubari I case.
As this portion was being administered as part of West Bengal under Entry 13 in the First Schedule it was part of the territory which immediately before the commencement of the Constitution was West Bengal.
This Court observed : "It is true that since this part of Chilahati was not transferred to Pakistan at the proper time, it has been regarded as part of West Bengal and administered as such.
But the question is : does this fact satisfy the requirement of Entry 13 on which the argument is, based? In other words, what is the meaning of the clause "the territories which were being administered as if they formed part of that Province '; what do the words "as if" indicate in the context ?" Explaining the phrase 'as if they formed part of that Province ' this Court looked into the history of this Province.
Clauses (a) and (b) of section 290 A of the Government of India Act 1935" may be reproduced "Administration of certain Acceding States as a Chief Commissioner 's Province or as part of a Governor 's or Chief Commissioner 's Province : (1)Where full exclusive authority, jurisdiction and powers for and in relation to governance of any Indian, State or any group of such States are for the time being exercisable by the Dominion Government, the Governor General may by order direct (2)that the State or the group of States shall be administered in all respects as if the State or the group of States were a Chief Commissioner 's Province; or (3)that the State or the group of States shall be administered in all respects as if the State or the group of States formed part of a Governor 's or a Chief 'Commissioner 's Province specified in the Order.
" The Court concluded thus : "In view of this constitutional background, the words "as if" have a special significance.
They refer to territories which originally did not belong to West 7Sup.
CI/69 19 7 Sup .CI/69 19 282 Bengal but which became a part of West Bengal by reason of merger agreements.
Therefore, it would be impossible to hold that a portion of Chilahati is a territory which was administered as if it was a part of West Bengal.
Chilahati may have been administered as a part of West Bengal; but the said administration cannot attract the provisions of Entry 13 in the First Schedule, because it was not administered as if it was a part of West Bengal within the meaning of that Entry.
The physical fact of administering the said area was not referable to any merger at all it was referable to the accidental circumstance that the said area had not been transferred to Pakistan as it should have been.
In other words, the clause "as if" is not intended to take in cases of territories which are administered with the full knowledge that they do not belong to West Bengal and had to be transferred in due course to Pakistan.
The said clause is clearly and specifically intended to refer to territories which merged with the adjoining States at the crucial time, and so, it cannot include a part of Chilahati that *as administered by West Bengal under the circumstance to which we have just referred.
That is why we think Mr. Mukerjee is not right in contending that by reason of the fact that about 512 acres of Chilahati were not transferred to Pakistan and continued to be admin istered by the West Bengal Government, that area 'became a part of West Bengal within the meaning of :Entry 13 Schedule 1.
The West Bengal Government ,knew all the time that it was an area which belonged to Pakistan and which had to be transferred to it.
That is, in fact, what the respondents are seeking to do; and so, it would be idle to contend that by virtue of the accidental fact that this area was administered by West Bengal, it has constitutionally and validly become a part of West Bengal itself.
That being so,there can be no ,question about the constitutional validity of the proposed transfer of this area to Pakistan.
What the respondents are seeking to do is to give to Pakistan what belongs under the Radcliffe Award.
" These two cases did not really decide the point we are called upon to decide.
The first Berubari Case dealt with transfer of territory which was de facto and de jure Indian territory and there fore as the extent of Indian territories as defined in article I read with the 1st Schedule was reduced a constitutional amendment was held necessary.
The second case concerned territory which ,was de facto under the administration by India but being de jure that of Pakistan, transfer of that territory which was not a part 283 of Indian territory was held not to require a constitutional amendment.
Neither case dealt with a boundary dispute although in the first case the case from Australia was distinguished on the ground that that case concerned the demarcation of boundaries pure and simple.
However it was not said that for adjustment of boundaries a constitutional amendment was not required.
Neither case adverted to the practice of Nations particularly Britain, nor attempted to interpret the relation of Articles 1,253 and 73 of the Constitution read with Items 14 and 15 of List I of Schedule 7.
The only thing that can be said is that this Court leaned in favour of a constitutional amendment in all cases where admitted territory of India was being ceded but not where the cession was of territory of a foreign power but de facto in possession of India.
On which side must a border dispute fall is the question for our decision.
The petitioners claim that this will fall in the dictum of the first Berubari Case.
The Union Government claims that it is analogous to the case of Chilahati in the second Berubari Case.
The question is one of authority.
Who in the State can be said to possess plenum dominion depends upon the Constitution and the nature of the adjustment.
As to the necessity of it, the Courts must assume it as a matter of law.
It is scarcely to be thought that the validity of the action can ever depend upon the judgment of a court.
Therefore all argument that the action of Government to go to arbitration was not proper must cease.
Unlike the United States of America where the Constitution is defined in ex press terms, we in our Country can only go by inferences from our Constitution, the circumstances and the precedents.
The precedents of this Court are clear only on one point, namely, that no cession of Indian territory can take place without a constitutional amendment.
Must a boundary dispute and its settlement by an arbitral tribunal be put on the same footing.
An agreement to refer the dispute regarding boundary involves the ascertainment and representation on the surface of the earth a boundary line dividing two neighbouring countries and the very fact of referring such a dispute implies that the executive may do such acts as are necessary for permanently fixing the boundary.
A settlement of a boundary dispute cannot, therefore, be held to be a cession of territory.
It contemplates a line of demarcation on the surface of the earth.
It only seeks to reproduce a line, a statutable boundary, and it is so fixed.
The case is one in which each contending state ex facie is uncertain of its own rights and therefore consents to the appointment of an I arbitral machinery.
Such a case is plainly distinguishable from a case of cession of territory known to be home territory.
The argument that if power to settle boundaries be conceded to the Executive, it might cede some vital part of India is to take an extreme view of things.
The same may even be said of Parliament itself but it is hardly to be imagined 28 4 that such gross abuse of power is ever likely.
Ordinarily an adjustment of a boundary which international Law regards as valid between two Nations, should be recognised by the Courts and the implementation thereof can always be with the Executive unless a clear case of cession is involved when Parliamentary intercession can be expected and should be had.
This has been the custom of Nations whose constitutions are not sufficiently elaborate on this subject.
The argument on behalf of the petitioners is intended to prove that the areas of Kanjarkot, Dharabanni and Chhadbet and two inlets on either side of Nagar Parkar are Indian territory.
From this it follows, that a constitutional amendment as was laid down in the first Berubari case is a condition precedent for the implementation of the Award.
The argument, therefore, follows closely the reasoning in that case.
It is contended that Article 1 read with the First Schedule to the Constitution made Kutch into a part C State and under the second paragraph of Part C itself its, territory comprised all territories which by virtue of an order made under section 290A of the Government of India Act, 1935, were immediately before the commencement of the Constitution, being administered as if they were a Chief Commissioner 's Province of the same name.
We have shown that the meaning of the phrase 'as if they were a Chief Commissioner 's Province of the same name ' must be understood as was, laid down in the second Berubari case.
Learned counsel attempted to challenge that decision but we consider ourselves bound by that decision.
The petitioners must establish that this area was a part of Kutch.
The petitioners, therefore, trace the history of Kutch.
Kutch is described in the White Paper on Indian States as follows : " 1 18.
Another important State which was taken over under Central administration was Kutch.
This State has an area of 17,249 Sq. miles of which 8,461 miles is inhabited by a population of a little over half a million.
The remaining area is occupied by what is known as the Rann of Kutch which is covered by water during most part of the year.
In view of the geographical situation of the State and the potentialities of this area, the development of which will require a considerable amount of money as well as technical assistance, which neither the State by itself nor the State of Saurashtra with which it was possible to integrate the State could provide, it was decided that the best solution for this State would be to treat it as a Centrally administered unit.
An Agreement (Appendix XXIX) was accordingly signed by the Ruler on 4th May, 1948 and the administration was taken over by a Chief Commissioner on behalf of the Dominion Government on 1st June, 1949. 285 This only gives the area but not the boundaries.
The Kutch Merger agreement is like any other merger agreement and was executed by the Maharao of Kutch on May 4, 1948.
It gives no clue to the boundaries and also leaves the matters at large.
Immediately after Kutch was taken over by Chief Commissioner on June 1, 1949.
On July, 29, 1949 the States Merger (Chief Commissioner 's Provinces) Order, 1949 was passed.
It provided inter alia : "2 (1) (c) the parts of States specified in the Second Schedule to this Order shall be administered in all respects as if they were a Chief Commissioner 's Province, and shall be known as the Chief Commissioner 's Province of 'Kutch." The parts of States comprising Kutch were given as follows "(i) The State of Kutch, excluding the area known as Kutchigar h situate in Okhamandal.
(ii)The part of the United State of Saurashtra which is comprised in the Adhoi Mahal of Morvi, consisting of the seven villages Adhoi, Dharna, Gamdan, Halara, Lakhpat, Rampur and Vasatava.
" Here again the boundaries are not mentioned.
All that we know of Kutch from these documents is that it had an area of 17,249 Sq. miles of which 8,788 Sq. miles were inhabited.
Obviously this is most inconclusive from our point of view since the White Paper is completely silent about boundaries.
The later history of Kutch is also not helpful.
On November 1, 1956 Kutch became a part of Bombay State.
The States Re organisation Act referred to 'the existing State of Kutch ' which did not advance matters any nearer certainly than before.
On May 1, 1960 the Bombay Reorganisation Act made the area known as Kutch a part of the State of Gujarat State.
Therefore none of these documents is of any help in determining boundaries or that the disputed areas were definitely a part of India.
There is also no evidence of administration in Dhara Banni and Chhadbet.
No revenue administration, establishment of Courts, offices, schools etc.
is proved.
The Chairman found some evidence of administrative control of Sind which contradicted the Indian case.
The evidence of leases was held to be contradicted by other evidence.
The 1957 elections show that a polling station was located at Chhadbet but the voters were the personnel of the Watch and Ward force.
Indeed the census of India (1961) shows the same 171 persons who belonged to the Watch and Ward personnel.
Kanjarkot had almost no evidence in its favour and Mr. Madhu Limaye frankly admitted this fact.
, The other petitioners gave.
no evidence about it.
Cl/69 20 286 No doubt, Pandit Jawaharlal Nehru on March 3, 1956 and Shri Lal Bahadur Shastri on May 11, 1965 asserted that the area belonged to India but that was only a statement and cannot be held to be of an evidentiary character.
We were bound to make such a statement if we were at all to lay claim to it.
After all the other side was making a similar claim and even a short skirmish also; took place.
This cannot be treated as definite evidence.
In support of the case the petitioners took us still further back into history.
The definition of boundaries of Sind in 1935 by the Surveyor General was in general terms.
It did not show whether Kanjarkot, Dhara Banni and Chhadbet were excluded from Sind altogether. 'Me Index Map prepared at the time was tot annexed to the order in Council.
This index map was relied upon by Ambassador Ales Bebler who gave opinion for us but was not accepted by the Chairman and Ambassador Nasrollah Entezam.
This was probably because the Mosaic Map which is map A on which India rested the claim did not show a continuous boundary along the entire length.
The statistical abstracts of India and Pakistan which were sought to supplement the Map before us only give areas and not boundaries and are, therefore, inconclusive.
The claim of Kutch State in 1914 when it attempted to enlarge the Rann of Kutch at the cost of Sind was not successful.
A compromise was the foundation of 'a friendly understanding ' and not the settlement of a boundary.
The Macdonald line that was then determined represents the uncontested portion of the boundary.
It was then attempted to get a confirmation of the 'Kutch Sind boundary but no boundary was settled.
It appears that the Rann itself was treated as excluded from Kutch.
Indeed the Government of Bombay continued to so regard it.
The fight before the Tribunal, therefore,, became a cartographic tussle.
Over 350 maps were exhibited by the parties and many of these maps conflicted.
Maps have been used in such cases but the source of information on which the map is based is always doubtful and maps are contradictory.
One cannot go by one set only.
In this view of the matter our reliance on Maps B32, 34,35, 36 and 37 became ineffective.
The disputed area was about 3,500 Sq. miles.
Out of this about 350 sq.
miles were included in Pakistan.
We are not sitting in appeal over the Award of the Tribunal.
Our interpretation of the Maps and facts of history is really not called for.
All that we can determine is whether there is concrete and solid evidence to establish that these areas belonged to India.
If we could reach this conclusion there may be something to be said applying the first Berubari case.
Otherwise we must hold that there was a disputed boundary and this was the occasion for marking out the final boundary on the surface of the earth.
in 287 our opinion this is what was done.
We cannot go entirely by what of the India pressed before the Tribunal.
That is only one art matter, The conditions existing prior to the Award were: (a) that there was a break of hostilities; (b) that then there was a cease fire because the dispute was to be decided by arbitration, (c) that both sides put forward their claims, (d) that there was no clear evidence of demarcation of a boundary acceptable to the parties now or in the past, (e) that the claim Map of India did not show a continuous boundary along all the border, (f) that the area is in different state at different seasons in the year, for part of.
the year it is water and for the remaining part it is land.
While it is the former it may be regarded as a part of the Rann and while it is land it may well be regarded as part of Sind.
Viewed from this angle the contention in this case comes to this : Does India cede undisputed Indian territory or is it the settlement of a disputed boundary? With regard to Kanjarkot which is to the south of Rahim ka Bazar no case was made out at all except assertions that it is Indian territory in which at least Mr. Madhu Limaye (who argued the case very fully and with considerable ability) did not join.
With regard to Mora Banni and Chhadbet it is 'clear that Map A (the claim map of India) does not show the border from Manjeet where the boundary determined by the Tribunal leaves the mainland to a point just west of the, point where the boundary determined by the Tribunal again joins the mainland.
To the south of this missing boundary lie Dhara Banni and Chhadbet.
It is, therefore, clear that at least in this part, India was not certain of the boundary.
No doubt some other maps show a continuous boundary even there but other negative it.
In other words the, exact location, of the boundary was an open question.
Dhara Banni and Chadbett are contiguous with the mainland in some seasons although they are, inundated at times and become indistinguishable from the Rann.
In these circumstances the location of the boundary at the southern fringe of Dhara Banni and Chhadbet was no more than fixing a trim boundary, according to the Tribunal.
It was well within the terms of reference and the decision being a true marking put of a disputed boundary does not amount to cession of these three areas so as to attract a constitutional amendment.
As regards the two inlets, their area is said to be less than 25 sq.
miles.
They are extremely narrow at their,southern extremities and really represent indentations in land.
At the narrow 288 points roads run 1 across them and they are Pakistan 's roads.
Treating the inlets as 'inland waters, the Tribunal determined the boundary in such away as to give them to Pakistan.
The reasons given by the Tribunal have been reproduced above by us.
We cannot say that this will mean a cession of Indian territory.
There, was a genuine dispute,regarding the title to these inlets whatever India may have thought about them.
The decision of the Tribunal is a decision on a disputed boundary and does not attract a constitutional amendment.
The only evidence was this area (which is other wise un inhabited) was in parts occupied by an Indian security force.
The existence of these Watch and Ward officers or the establishment of a polling booth for them at election time cannot connote administration such as would make them territory of India.
The Diplomatic Notes began soon after the establishment of the two Dominions and the occupation may have meant de facto control but there was no proof of de jure occupation or any other administration.
Sovereignty over an area is always a matter of inference.
As Judge Huber puts it in the Island of Palmas case "manifestations of territorial sovereignty assume, it is true, different forms, according to time and space. 'Although continuous in principle,.
sovereignty cannot be exercised in fact at every moment on every point of a. territory.
The intermittence and discontinuity compatible with the maintenance of the right necessarily differ according as inhabited or uninhabited regions are involved. . . (Award dated April 4, 1928 : 2 INT.ARB.
AWARDS 867) Garrisoning of an area (a point noted in the International Court of Justice in 1953 in, the Minquiers and Ecrehos case, 1.
C.J. Reports page 78) may be one kind of evidence.
But this applied 'to both sides.
Unless they displayed real existence of sovereignty over the area, none could be said to be in occupation de jure.
Hance the propounding of so so many maps and documents.
If we were sitting in appeal on the award, of the Tribunal we might have formed a different opinion of of the material but we are not.
The fact remains that India undertook to be bound by the award pledging, die national honour and we must implement the award.
The only question is as to the steps to be taken.
On the whole, therefore, we are of opinion that this reference began in a boundary dispute after open hostilities and was decided as such.
In which case it cannot be said that there will be a cession of Indian territory and the rule earlier laid down by us applies` if no ' constitutional amendment is required the. power of the Executive which extends to matters with respect to which 289 Parliament has power to make laws, can be exercised to correct boundaries now that they have been settled, The decision to implement the Award by exchange of letters, treating the Award as an operative treaty after the boundary has been marked in this area, is within the competence of the Executive wing of Government and no constitutional amendment is necessary.
The petitions and the appeals fail and will be dismissed but there will be no order about costs.
Shah, J. I agree with the learned Chief Justice.
The controversy raised in this group of writ petitions and appeals lies within a narrow compass whether the award, dated February 19, 1968 of the Indo Pakistan Western Boundary.
Case Tribunal may be implemented by a constitutional amendment and not otherwise.
The claimants I use that expression to refer compendiously to the appellants and the petitioners urge that the award may be implemented only by an amendment modifying the relevant provisions in Schedule 1 to the Constitution, because in giving effect to the award of the Tribunal, cession of Indian territory is involved, and.
the executive is incompetent to cede Indian territory without the authority of a constitutional amend ment.
The Union of India contends that the Award merely fixes or demarcates the boundary between the State of Gujarat in India and West Pakistan regarding which there were disputes and much friction, and by the Award no cession of Indian territory is contemplated, and for implementing it amendment of the Constitution is not needed.
The Great Rann of Kutch lies between the mainland of Sind (which is now part of Pakistan) and the mainland of Kutcha district of the State of Gujarat.
It has a peculiar surface : it is marshy land : for about four months in the year large parts of the Rann are covered with the waters of the Arabian Sea rushing through the Khori Creek.
It is however not fit for navigation.
During the rest of the year it is muddy or dry land, but not dry enough for farming.
From the very nature of the terrain, the boundaries of the Rann are shifting, its extent depending upon the violence of the natural elements in different years.
The northern boundary of the Rann has, on account of its inhospitable terrain and nomadic population on the fringe with no prospect of cultivation, remained ill defined.
Between 1816 and 1819 the Indian State of Kutch passed under the domination of the East India Company and the integrity of its territory was guaranteed by the East India Company by the treaty of 1819.
In 1843 Sir Charles Napier annexed the territory of Sind, and made it into a Governor 's ' Province, which was later turned into a Division of the Province of Bombay.
Kutch continued to be ruled by the 290 Maharao, the British authorities having posted a Political Agent at the capital of the, State.
In 1855 the Department of Survey of India commenced a revenue, and topographical survey of the Province of Sind.
The survey, called the Macdonald Survey, was completed in 1870, and survey maps were prepared and published in 1876.
It is not clear whether the southern boundaries of the Sind villages shown in the maps were village boundaries, or a boundary conterminous between the territory of Sind and Kutch State.
The next survey was undertaken under Major Pullan in 1879 and was completed in 1886.
Under this project survey of the State of Kutch was undertaken.
The northern boundary of Kutch State roughly tallied with the Macdonald alignment of the Sind boundary.
The relevant maps were published in 1882.
Another survey of a part of the boundary on the Sind side was undertaken in 1904 05 by C. F. Erskine.
The alignment of the boundary with a few corrections tallied with the Macdoland alignment.
This survey was intended to be a checking survey and related to the western region extending up to a point near Rahim ki Bazar.
About the year 1907 08 the Commissioner of Sind raised cer tain disputes relating to encroachments on the territory under his administration by the Maharao of Kutch.
The Government of India made an enquiry and a resolution, dated February 24, 1914, was.issued by the Government of the Province of Bombay, of which Sind was then a Division.
By the resolution the, disputed area was divided by a new alignment which was partly identical with the claim made by the Kutch State along the Sir Creek from its mouth to its extremity and then slightly departed from it.
In the other regions the alignment of the Macdonald Survey was adhered to.
To the resolution was annexed a map on which the rectified boundary was shown.
A Secretary in the Foreign Department of the Government of India recorded that "the Government of India observe with satisfaction that the dis pute between the Sind authorities and the Kutch Durbar has been settled by a compromise agreeable to both parties and are pleased to accord their sanction to the rectification of the, boundary line proposed in paras 9 and 10".
To the letter of the Secretary to the Government of Bombay, Political Department, consent to the rectification of the boundary was evidenced by a letter of the Maharao under his own signature.
Pursuant to this resolution in 1924, pillars were fixed up to a point known as the Badin Ja jato Rann tri junction.
In 1935 the new Province of Sind was constituted.
By the government(Constitution of Sind) Order, 1936, it 291 simply provided, therein that "In the Act and this Order, Sind means the territory known at the date of this Order, as the Division of Sind, and the boundaries of that Division shall be the boundaries of Sind.
" It was originally intended to set out by a Schedule to the Order the boundary of Sind, and an Index Map was prepared by the Surveyor General for that purpose.
By a communication from the Secretary of State for India in Council, it was recommended that a Schedule to the Order defining the boundary was not necessary and the Governor General accepted that suggestion.
The fourth survey called the Onmaston Survey was commenced in 1938 39 : it was intended to be a survey of the Eastern part of the Tharparkar District.
This survey adopted the alignment of the Macdonald Survey in that region showing a conterminous boundary between Sind and the States of Western India (now within the State of Gujarat).
With the enactment of the Indian Independence Act, 1947 (10 & 1 1 Geo.
VI c. 30) the paramountcy of the British power lapsed, and the two independent Dominions of India and Pakistan were carved out with effect from the appointed day.
By section 2(2) of the Act the territories of Pakistan were to be (b)the territories which, at the date of the passing of this Act, are included in the Province of Sind . and (c) On May 4, 1948, the State of Kutch merged with the Dominion of India and by Article 1 of the Agreement of Merger the Maharao ceded to the Dominion of India full and exclusive authority over the governance of the State.
On June 1, 1949, the administration was taken over by the Government of India , and the territory was constituted into a Chief Commissioner 's Province under section 2(1)(c) of the States Merger (Chief Commissioner 's Province) Order, 1949.
Under the Constitution the territory became a Part 'C ' State.
Its extent was determined by the 2nd paragraph in Part C to, Schedule 1 of the Constitution as "territories which by virtue of the order made under section 290A of the Government of India Act, 1935, were immediately before the commencement of the Constitution being administered, as if they were a Chief Commissioner 's Province of the same name.
" By section 8 (1) (e) of the States Reorganization.
Act, 1956, the, territory of the Part C State of Kutch was incorporated with the State of 292 Bombay, and by section 3 (a) of the Bombay reorganization Act, 1960, it was included in the newly formed State of Gujarat.
From July 1948 and onwards diplomatic notes were exchanged between the Governments of India and Pakistan concerning the boundary between the two countries in the Gujarat West Pakistan Sector.
The dispute led to great tension between India and Pakistan resulting in armed conflict in April 1965.
By an agreement dated June 30, 1965, the Government of India and the Government of Pakistan concluded an agreement For setting up machinery "for determination and demarcation of the border" in 'the area of Gujarat West Pakistan.
The agreement in so far as it is relevant provides article 1 "There shall be an immediate cease fire with effect from 0030 hours GMT on 1.
July 1965.
article 2 . article 3 (i) In view of the fact that (a) India claims that there is no territorial dispute as there is a well established boundary running roughly along the northern edge of the Rann of Kutch as shown in the pre partition maps, which needs to be demarcated on the ground.
(b) Pakistan claims that 'the border between India and Pakistan in the Rann of Kutch runs roughly along the 24th parallel as is clear from several pre partition and post partition documents and therefore the dispute involves some 3,500 square miles of territory.
(c) (ii)In the event of no agreement between the Ministers of the two Governments on the determination of the border being reached within two months of the cease fire, the two Governments shall, as contemplated in the Joint Communique of 24 October 1959, have recourse to the Tribunal referred to in (iii) below for determination of the border in the light of their respective claims and evidence produced before it and the decision of the Tribunal shall be final and binding on both the parties.
(iii)For this purpose there shall be constituted, within four months of the cease fire, a Tribunal consisting of three persons, none of whom would be a national of either India or Pakistan.
One member shall be nominated by each Government and the third mem 293 ber, who will be the Chairman, shall be jointly selected by the two Governments.
In the event of the two Governments failing to agree on the selection of the Chairman within three months of the cease fire, they shall request the Secretary General of the United Nations to nominate the Chairman.
(iv) The decision of the Tribunal referred to in, (iii) above shall be binding on both Governments, and shall not be questioned on any ground whatsoever.
Both Governments undertake to implement the findings of the Tribunal in full as quickly as possible and shall refer to the Tribunal for decision any difficulties which may arise between them in the implementation of these findings.
For that purpose the Tribunal shall remain in being until its findings have been implemented in full.
,, The Ministerial Conference contemplated to be held did not take place, and the two Governments decided to have recourse to the Tribunal to be constituted under article 3(iii) of the agreement.
A Tribunal of three members, one appointed by each State and the Chairman nominated by the Secretary General of the United Nations Organization was set up.
The agreement between the two States was reached purely as an executive act, and no legislative sanction was obtained by the Government of the Union of ' India to its implementation.
The respective claims before the Tribunal by India and Pakistan are set out in paragraph 3 (1 ) of the agreement and at pp. 7, 8 & 9 of the Introductory Part of the award which apparently had the concurrence of all the members of the Tribunal.
On behalf of the Government of India it was submitted that the boundary lay as detailed in Map 'A annexed to the award which is a mosaic of Indian Maps B 44, B 37, B 19 and B 79.
It was common ground between the two Governments that "the Gujarat West Pakistan boundary stretches from the mouth of the Sir Creek in the west to a point on the Jodhpur boundary in the each.
The Parties agree that the Western Terminus of the boundary to be determined by the Tribunal is the point at which the blue dotted line meets the purple line as depicted in Indian Map B 44 and the Pakistan Resolution Map, and that the Eastern Terminus of the same boundary is a point situated 825.8 metres below pillar 920 on the Jodhpur boundary as depicted in Pakistan Map 137.
This agreement leaves out of the matters submitted to the Tribunal the portion of the boundary along the blue dotted line, as depicted in Indian Map B 44 and the Pakistan Resolution Map, as well as the boundary in the Sir Creek.
The blue dotted line is agreed ' by both Parties to form the boundary between India and Pakistan. 294 In view of the aforesaid agreement, the question concerning the Sir creek part of the boundary is left out of consideration.
" It was also common ground that "before.
Independence the boundaries between the Province of Sind, on the one hand, and one or more of the Indian States which lay on the opposite side of the Great Rann, on the other hand, were conterminous.
Therefore, in the disputed region, apart from, India and Pakistan there is no other State that does or could have sovereignty.
There is between India and Pakistan a conterminous boundary today, whether or not there was at all times a conterminous boundary between Sind and the Indian States.
" The contention raised by Pakistan was "(a) that during and also before the British period, Sind extended to the south into the Great Rann up to its middle and at all relevant times exercised effective and exclusive control over the northern half of the, Great Rann; (b)that the Rann is A "marine feature" (used for want of a standard term to cover the, different aspects of the Rann).
It is a separating entity tying between the States abutting upon it.
It is governed by the prin ciples of the median line and of equitable distribution, the bets in the Rann being governed by the principle of the "nearness of shores"; (c)that the whole width of the Rann (without being a condominium) formed a broad belt of boundary between territories on opposite sides; that the question of reducing this wide boundary to a widthless line, though raised, has never been decided; that such widthless line would run through the middle of the Rann and that the Tribunal should determine the said tine.
" Pakistan accordingly claimed that the border of Sind extended up to the boundary shown by the thick green dotted line in Map 'B '.
It was agreed by both the Governments that "should the Tri bunal find that the evidence establishes that the disputed boundary between India and Pakistan lies along a line different from.
the claim lines of either party, the Tribunal is free to declare such a line to be the boundary.
The award to be made by the Tribunal was, it was agreed, to operate as a self executing arrangement : it was not only to declare the boundary, but to provide for fixing its location on site.
It was agreed between the Agents of India and Pakistan that 295 1. 'The basis of demarcation shall be the alignment of the boundary as delineated by the Tribunal on maps to be annexed to the Award.
Each Government should be supplied with two sets of these maps duly authenticated by the Tribunal.
3.The Representatives of the two Governments shall meet at Delhi not later than two weeks after the Award is rendered to discuss and decide upon the following matters : (i) The strength of the team.
(It is not possible to give the exact number of personnel composing the team at this stage as the strength of the team will depend upon the alignment of the boundary and the quantum of work involved which can be ascertained only after the Award is rendered).
(ii)The design and specifications of the boundary pillars and traverse pillars, the number and spacing of pillars.
(The design and specifications of the boundary pillars will depend upon the alignment of the boundary and the nature of the terrain.
The pillars may be of cement concrete, stone or masonry according to the requirements (iii)Detailed operational instructions for the guidance of the field staff.
(Such operational instructions have to be necessarily finalised only after the nature of the alignment is known).
(iv)Any other matter which requires consideration for effective demarcation work.
If the Representatives of the two Governments do not agree upon any of the above matters either Government shall immediately report to the Tribunal the matters in difference for the decision of the Tribunal.
6.The first task of the demarcation team shall be to ascertain if any control points exist and are available, These control points should be supplemented, wherever necessary, in order to determine the pillar positions on the ground in accordance with the alignment of the boundary.
If control points do not exist or are not available, a fresh series of triangulation or traverse will be carried out and control points determined and the pillar position , located with the help of these points.
296 7.Simultaneously with the location of the pillar positions, pillars shall be emplaced at each position.
" The award was published by the Tribunal on February 19, 1968.
By the decision of the Chairman of the Tribunal (Judge Gunnar Lagergren) with whom Ambassador Nasrollah Entezam agreed and Ambassador Ales Babler disagreed in part, the boundary was aligned from point W T to E T in Map 'C '.
It is unnecessary to set out the detailed description of the boundary. " claim of the Government of India to the Rann was accepted.
The claim of the Government of Pakistan to approximately 3,500 square miles out of the Great Rann was rejected except as to 350 square miles, of which more than 325 square miles are found beyond the Rann or on which the Maharao had not exercised sovereign authority .
The Tribunal unanimously accepted the claim that the Great Rann of Kutch was part of the territory of the State of Kutch and is now Indian territory.
But the majority of the Tribunal accepted the claim of Pakistan, substantially to the following three sectors : (1)Marginal area south of Rahim ki Bazar, marked by B, C, D in Map 'C ', this may be called the Kanjarkot Sector; (2)The area marked in the Map 'C ' by letters E, F, G, H, K which may be called Dhara, Banni and Chhad Bet Sector; (3)Two inlets which practically encircle Nagar Parkar which have apparently characteristic features of the Rann but are still declared to be within the border of Pakistan by drawing straight lines from points L to M and N to 0 in Map 'C '.
The reasons for declaring the first two sectors as Pakistan territory are set out (at p. 152 of the printed award) by the Chairman Judge Gunnar Lagergren as follows "Reviewing and appraising the combined strength of the evidence relied upon by each side as proof or indication of the extent of its respective sovereignty in the region, and comparing the relative weight of such evidence, I conclude as follows.
In respect of those sectors of the Rann in relation to which no specific evidence in the way of display of Sind authority, or merely trivial or isolated evidence of such a character, supports Pakistan 's claim, I pronounce in favour of India.
These sectors comprise about ninety per cent of the disputed territory.
However, in respect of sectors where a continuous and for the region intensive Sind activity, meeting with no effective opposition from the Kutch side, is established, 1. am of 297 the opinion that Pakistan has made out a better and superior title.
This refers to a marginal area south of Rahim ki Bazar, including Pirol Valo Kun, as well as to Dhara Banni and Chhad Bet, which on most maps appear as an extension of the mainland of Sind." About Item (3) Judge Gunnar Lagergren was of the view that to prevent friction and conflict the inlets ,should not be declared Kutch territory.
The effect of an international treaty on the rights of citizens of the States concerned in the agreement is stated in Oppenheim 's International Law, 8th Edn., at p. 40 thus "Such treaties as affect private rights and, generally, as require for their enforcement by English courts a modification of common law or of a statute must receive parliamentary assent through an enabling Act of Parliament.
To that extent binding treaties which are part of International Law do not form part of the law of the land unless expressly made so by the legislature." and at p. 924 it is stated The binding force of a treaty concerns in principle the contracting States only, and not their subjects.
As International Law is prim arily a law between States only and exclusively, treaties can normally have effect upon States only.
This rule can, as has been pointed out by the Permanent Court of International Justice, be altered by the express or implied terms of the treaty, in which case its provisions become self executory.
Otherwise, if treaties contain provisions with regard to rights and duties of the subjects of the contracting States, their courts, officials, and the like, these States must take steps as are necessary according to their Municipal Law, to make these provisions binding upon their subjects, courts, officials, and the like.
" In Wade and Phillips ' Constitutional Law, 7th Edn., :It is stated at p. 274 : " At first sight the treaty making power appears to conflict with the constitutional principle that the Queen by prerogative cannot alter the law of the land, but the provisions of a treaty duly ratified do not by virtue of the treaty alone have the force of municipal law.
The assent of Parliament must be obtained and the necessary legislation passed before a court of law can enforce the treaty, should it conflict with the existing law.
" 298 On p. 275 it is stated that "treaties which, for their execution and application in the United Kingdom, require some addition to, or alteration of, the existing law" are treaties which involve legislation.
The statement made by Sir Robert Phillimore, Judge of the Admiralty Court in The Parlement Belge(1) (though the ultimate decision was revised by the Court of Appeal in another point [vide (1880) 5 P. D. 197] in dealing with the effect of a "Convention regulating Communications,by Post" signed and ratified in 1876 which purported to confer upon Belgian mail streamers.
immunity of foreign warships is appropriate : "If the Crown had power without the authority of parliament by this treaty to order that the Parlement Belge should be entitled to all the privileges of a ship of war, then the warrant, which is prayed for against her as a wrong doer on account of the collision, cannot issue, and the right of the subject, but for this order unquestionable, to recover damages for the injuries done to him by her is extinguished.
This is a use of the treaty making prerogative of the Crown which I believe to be without precedent, and in principle contrary to the laws of the Constitution.
" In Walker vs Baird(2) the Judicial Committee, affirming the decision of the Supreme Court of Newfoundland, observed that the plea of act of State raised in an action for trespass against the Captain of a British fishery vessel who was authorised by the Commissioners of the Admiralty to superintend the execution of an agreement between the British Crown and the Republic of France, which provided that no new lobster factory shall be established on a certain part of the coast of Newfoundland could not be upheld.
The Judicial Committee in Attorney General for Canada vs Attorney General for Ontario and Others(3) made some observations in the context of a rule applicable within the British Empire, which are pertinent : "It will be essential to keep in mind the distinction between (1) the formation, and (2) the performance, of the obligations constituted by a treaty, using that word as comprising any agreement between two or more sovereign States.
Within the British Empire there is a well established rule that the making of a treaty is an executive act, while the performance of its obligations, if they entail alteration of the existing domestic law, requires legislative action.
Unlike some other countries, (1) [1879] 4P.D.129.
(2) [1892] A.C.491.
(3) , 347.
299 the, stipulations of a treaty duly ratified do not within the Empire, by virtue of the treaty alone, have the force of law.
If the national executive, the Government of the day, decide to incur the obligations of a treaty which involve alteration of law they have to run the risk of obtaining the assent of Parliament to the necessary statute or statutes. .
Parliament, no, doubt, . has a constitutional control over the executive : but it cannot be disputed that the creation of the obligation. .
undertaken in treaties and the assent to their form and quality are the function of the executive alone.
Once they are created, while they bind the State as against the other contracting parties, Parliament may refuse to perform them and so leave the State in default.
" These observations are valid in the context of our constitutional set up.
By article 73, subject to the provisions of the Constitution, the executive power of the Union extends to the matters with respect to which the Parliament has power to make laws.
Our Constitution makes no provision making legislation a condition of the entry into an international treaty in times either of war or peace.
The executive power of the Union is vested in the, President and is exercisable in accordance with the Constitution.
The executive is qua the State competent to represent the State in all matters international and may by agreement, convention or treaties incur obligations which in international law are binding upon the State.
But the obligations arising under the agreement or treaties are not by their own force binding upon Indian nationals.
The power to legislate in respect of treaties lies with the Parliament under Entries 10 and 14 of List I of the Seventh Schedule.
But making of law under that authority is necessary when the treaty or agreement operates to restrict the rights of citizens or others or modifies the laws of the State.
If the rights of the citizens or others which are justiciable are not affected, no legislative measure is needed to give effect to the agreement or treaty.
The argument raised at the Bar that power to make treaty or to implement a treaty, agreement or convention with a foreign State can only be exercised under authority of law, proceeds upon a misreading of article 253.
Article 253 occurs in Ch.
1 of Part XI of the Constitution which deals with legislative relations: Distinction of Legislative Powers.
By article 245 the territorial operation of legislative power of the Parliament and the State Legislatures is delimited, and article 246 distributes legislative power subject wise between the Parliament and the State Legislatures.
Articles 247, 249, 250, 252 and 253 enact some of the exceptions to the rule contained in article 246. 'Me effect of article 253 is that if a treaty, agreement or convention with a foreign State 300 deals with a subject within the competence of the State legislature, the Parliament alone has notwithstanding article 246(3), the power to make laws to implement the treaty, agreement or convention or any decision made at any international conference, association or other body.
In terms, the Article deals with legislative power thereby power is conferred upon the parliament which it may not otherwise possess.
But it does not seek to circumscribe the extent of the power conferred by article 73.
If, in consequence of the exercise of executive power, rights of the citizens or others are restricted or infringed, or laws are modified, the exercise of power must be supported by legislation: where there is no such restriction, infringement of the right or modification of the laws, the executive is competent to exercise the power.
It may be recalled that cl. 3 (iv) of the Agreement included a covenant that the decision of the Tribunal shall be binding on ,both the Governments.
The power of the executive to enter into that covenant cannot also be challenged, and was not challenged.
It was conceded that if the contention based on article 253 was not accepted, the award of the Tribunal by majority of two (Judge Gunnar Lagergren with whom Ambassador Nasrollah Entezam agreed) was binding upon the Government of India.
It was accepted that as an international agreement between the two States represented by their executive Governments it became binding between the two States as expressly undertaken.
No argument was urged that there exist any grounds which may justify the Union of India from declining to implement the agreement.
The award of the Tribunal has, it was conceded, to be implemented as an international obligation.
Counsel who represented the claimants, and claimants who argued their cases, before us: adopted an eminently fair attitude.
it was not urged that the award was not binding upon the Union of India : their plea urged with moderation was that insofar as the award affected the territorial limits of India, it required a constitutional amendment.
It was not suggested that apart from the claim to exercise rights to move freely throughout the territory of India under article 19(1) (d), and to reside and settle in any part of the territory of India under article 19 (1) (e) any other right of any individual citizens was likely to be infringed by the implementation of the award.
The nature of the terrain of the disputed territory precludes any other claim being made, There are no local residents, no private property and no agriculture.
For four months in the year it is mostly under water, for the rest of the year it is marshy land.
But it was claimed that every individual citizen of India is entitled to exercise the privileges under cls.
(d) and (e) of article 19(1) in respect of territory between the boundary shown in Map 'A annexed to the award, and the boundary delineated by Map 'C" which represents, in the view of the Tribunal, the 301 border between the two States, is Indian territory and deprivation of the rights of the citizens under article 19 (1) (d) & (e) can only be achieved if the cession of what is now part of the territory of India be ceded under the sanction of a constitutional amendment Mr. Limaye petitioner in Writ Petition No. 402 of 1968 claimed that he made an attempt to enter the territory which under the award falls 'within the Pakistan Border, and was prevented by the security police from entering that area.
The only question to be determined therefore is whether in implementing the award, the.
executive Government is ceding territory of India to Pakistan.
I have set out the terms of the agreement and the disputes raised by the two States in some detail.
A review of the terms of the agreement, the unanimous introductory part of the award and the terms of the agreement relating to the implementation of the award and of the final award, make it abundantly clear that the dispute related to the boundary between the two States : it was referred as a boundary dispute, the respective claims urged were about the location of the boundary line, and the operative part of the award declared the alignment of the boundary, which has under the terms of the agreement relating to the procedure for demarcation to be filed by pillars on the alignment.
Settlement of dispute which relates to the alignment of an undefined boundary between two States involves no cession of territory by either State.
In the advice rendered to the President in a reference made to this Court under article 143 in In Re : The Berubari Uninion and Exchange of Enclaves(1) this Court was called upon to determine the true nature of the agreement between the Prime Ministers of India and Pakistan each Prime Minister acting on behalf of his Government September 10, 1958, for a division of the Berubari Union in the State of West Bengal and exchange of certain enclaves and whether the agreement may be implemented otherwise than by a constitutional amendment.
This Court held that the agreement between the two Prime Ministers did not seek to interpret the Radcliffe Award or to determine the boundary between the two States.
It Was agreed by the two Prime Ministers that a part of the Berubari Union which was allotted to India under that Award and was in occupation of India was to be ceded to Pakistan, and enclaves within Pakistan but in occupation of India de lure were to be exchanged for similar enclaves of Pakistan within Indian territory.
This Court advised the President that the appellant could be implemented under the authority of a constitutional amendment only.
The Parliament then enacted the Constitution.
(Ninth Amendment) Act, 1960, assuming power to implement the agreement and the (1) 302 two other agreements dated October 23, 1959 and January 11, 1960.
Another matter arising out of those agreements between the two Prime Ministers was brought before this Court by an appeal from an order passed by the High Court of Calcutta in a writ petition : Ram Kishore Sen & Ors.
vs Union of India and Ors.(1).
It was proposed pursuant to the Constitution (Ninth Amendment) Act, 1960, to transfer, among other territory, a part of the village of Chilahati in the occupation of the State of West Bengal in India.
A petition filed in the High Court of Calcutta challenging the validity of the proposed transfer to Pakistan on the ground that village Chilahati which was part of the Indian territory could not be transferred by the Government of India.
The High Court of Calcutta rejected the petition.
In appeal to this Court it was urged, inter alia, that the disputed part of the village Chilahati though allotted to Pakistan was not delivered to Pakistan and had become part of the State of West Bengal, because it was being administered as if it formed part of the territory of West Bengal within the meaning of Entry 13 Part 'A Sch.
I as amended by the Constitution (Amendment of the First & Fourth Schedules) Order , 1950.
The Court held that the proposed transfer of a part of the village of Chilahati, which was allotted to Pakistan under the Radcliffe Award but was not delivered, and continued to remain administered as a part of the State of West Bengal,was not constitutionally invalid.
In In Re : The Berubari Union and Exchange of Enclaves(2) there was no question of demarcation of a disputed boundary : it was a case of pure cession of Indian territory.
Ram Kishore Sen & Ors ' case(1) which dealt, among others, with the cession of 500 acres of Chilahati village related to transfer of territory which though temporarily under.
Indian administration had never become Indian territory.
The principle of the First Berubari case has no application here and the principle of the Second Berubari case is against the contention raised by the claimants.
But the claimants urge that by the alignment of the boundary under the award, territory which is Indian is now declared foreign territory, and it cannot be implemented without the authority of an amendment modifying the boundary of the State of Gujarat in which is now included the Rann of Kutch.
Now the alignment of the boundary under the award deviates from the alignment claimed by the Government of India before the Tribunal in three in ran, respects which have already been set out.
The Tribunal was of the view, on ' a consideration of the maps produced, that there did not exist at any time relevant to the proceedings a historically recognized and well established (1)[1966] 1 S.C.R. 43O. (2) 30 3 boundary in the, three sectors.
About the Kanjarkot Sector the Chairman observed : "The evidence shows that Kutch did not make any appearance in this area until 1946, and then only abortive attempts were made by the sons of the lessee, Node Sadi Rau, to go there in order to collect Panchari.
They reported that they did not even dare to stay overnight in the place.
While no specific evidence has been submitted which proves any activities undertaken by Sind subjects in Pirol Valo Kun, the reports of the Kutch lessees establish that Sind inhabitants engaged in grazing there." and further observed at p. 151 "In a sector bounded to the south by the southern limit of Pirol Valo Kun, not only is there a total absence of effective Kutch activity, but there is a consistent exercise of sovereign rights and duties by Sind autho rities, and activities of residents of Sind, in one instance, taking the form of a permanent settlement at Shakur.
" The territory in this sector is contiguous to and in fact is an extension of the mainland of Sind, and apart from the survey maps there is no evidence that it is part of the Great Rann of Kutch.
No serious argument was advanced to establish that on Kanjarkot, the Kutch State at any time exercised sovereign authority.
About the Dhara Banni and Chhad Bet Sector Judge Gunnar Lagergren observed (at p. 141) ". .on the evidence on record it may be taken as positively established that, in this century, prior to independence, outside Dhara Banni and Chhad Bet (which will be treated presently), the police and criminal jurisdiction of Sind authorities over disputed territory extended, in the sector between the eastern loop and Dhara Banni, to Ding, Vighokot and Biar Bet.
There is, however, no evidence which affirmatively proves in a conclusive fashion that the jurisdiction of Sind police and Sind courts encompassed areas west of the eastern loop, or east of Chhad Bet.
Conversely, no proof is offered that Kutch either assumed or exercised such jurisdiction over any part of the disputed territory (leaving aside Dhara Banni and Chhad Bet).
" He again observed (at p. 144) : ". .I deem it established that, for well over one hundred years, the sole benefits which could be derived 304 from those areas are enjoyed by inhabitants of Sind.
It is not suggested that the grazing as such was subject to British taxation.
Such limited evidence as there is on record seems, however, to justify the assumption that the task of maintaining law and order was dis charged by the Sind authorities , it is not even suggested that the authorities of Kutch at any time viewed such a task as forming part of their duties. .
Whatever other Government functions were required with respect to these outlying grazing grounds, on which herds of cattle were from time to time shepherded, were apparently undertaken by Sind.
Thus, the births, deaths and epidemics occurring there were recorded by the taluka office in Diplo.
It is not shown that Kutch at any time established a thana on Chhad Bet.
" He finally observed (at p. 151) "The remaining sector within the area described above in which authority, in this instance exclusively for the protection of activities of private, individuals, is shown to have been displayed by Sind authorities in a manner which is not sporadic but consistent and effective, is Dhara Banni and Chhad Bet.
As stated earlier, the activities undertaken by Kutch in these areas cannot be characterised as continuous and effective exercise of jurisdiction.
By contrast 9 the presence of Sind in Dhara Banni and Chhad Bet partakes of characteristics which, having regard to the topography of the territory and the desolate character of the adjacent inhabited region, come as close to effective peaceful occupation and display of Government authority as may reasonably be expected in the circumstances.
Both the inhabitants of Sind who openly used the grazing grounds for over one hundred years and the Sind authorities must have acted on the basis that Dhara Banni and Chhad Bet were Sind territory.
" The claimants urged that the territory in this Sector belonged to the Kutch State and that claim was supported by survey maps, correspondence between the officials of Kutch State and the British Administration, assertions made in the Annual Administration Reports for 75 years before 1947, Statistical Abstracts relating to British India, Bombay Administration Reports Gazetteers, Memorandum on Indian States and a number of official publications, and by the Resolution of the Government of Bombay, dated 305 February 24, 1914.
It would be a fruitless exercise to enter upon this historical material.
The survey and other maps do not Jay down a uniform or consistent alignment.
Macdonald Survey appears to align the boundary of Sind towards the north even of Rahim ki Bazar which is admittedly on the mainland of Sind, and was never claimed as part of the Rann.
This lends support to the view that the Macdonald Survey report was rough, and was intended to be a topographical map.
The maps prepared at the later surveys follow, with some variations and rectifications, the Macdonald Survey alignment, but those survey maps also do not indicate an international boundary.
About Pullan 's Survey it may be observed that Pullan himself stated that he had "carefully abstained from laying down" or suggesting a boundary (vide Resolution of the Government of Bombay July 3 and August 7, 1885).
The attitude adopted by the Government of Bombay which is set out in the resolution was that they "did not desire" that any "question of boundaries in the Rann between the Province of Sind and Kutch" should beraised.
Erskines Survey also is open to the criticism that as anofficer of the Sind Government he made statements in his letter, dated November 23, 1905, disowning any intention to determine the boundary of the Rann, of Kutch.
The maps prepared in the Erskine Survey were not accepted as evidencing a boundary.
Even the Maharao of Kutch did not agree to accept the alignment.
By the resolution of 1914, it does appear that an attempt was made to resolve the dispute about certain disputed pockets, between the British authorities governing Sind and the Maharao of Kutch.
But a review of the correspondence of 1905, followed by erection of Pillars up to the western tri junction, and establishment of a customs line in 1934 appear to suggest that the boundary east of the trijunction was in a state of uncertainty.
Conflicting claims were made from time to time by the British authorities and the Maharao of Kutch; and about the exercise of sovereign rights over the areas now in dispute the evidence is very scrappy and discrepant.
An. attempt to determine how far general statements of claim and refusal thereof were applicable to the sector now in dispute would serve no useful purpose.
Different positions were adopted by the officers of the Government of India according as the exigencies of a particular situation demanded.
The statements or assertions do not evidence an existing state of affairs; they were only made to support or resist.
claims then made, or to serve some immediate purpose.
The claimants before us were unable to pinpoint any definite and reliable piece of evidence which established the exercise of sovereign authority by the Maharao of Kutch over the second sector.
It is true that the territory of the entire State of Kutch merged with the Dominion of India.
That territory was treated as Indian, 3 06 territory and was at first governed as a separate administrative unit.
But unless it be established that the disputed sectors were part of the Kutch State, no firm conclusion can be drawn from the agreement of merger.
Undoubtedly the Government of India claimed at all material times the territory in Sectors (1) and (2).
In respect of the Kanjarkot Sector there is no evidence of exercise of sovereign authority by the Maharao of Kutch at any point of time.
The sector is apparently contiguous to and an extension of the mainland of Sind.
It is not shown that it has the characteristics of the Rann terrain.
The Dhara Banni and Chhad Bet Sector is also apparently an extension of the mainland of Sind.
There is no reliable evidence about the enjoyment of the benefits of the land in the Sector by the inhabitants of Kutch.
Evidence of the exercise ,of suzerainty by the Maharao of Kutch over that Sector is also sadly lacking.
The sector has more pronounced features of the Rann terrain, but it appears also to be contiguous to the mainland of Sind.
Even granting that the evidence about the exercise of sovereign authority by the British authorities governing Sind since 1843 over the Rann of Kutch is inconclusive, the claim by Indian citizens to exercise fundamental rights in respect of the territory in that Sector may be entertained only if it be established that the territory is found to be originally governed by the Maharao of Kutch.
On that part of the claim, concrete evidence is wanting.
It was contended that the total area of Kutch according to the White Paper on Indian States was 17,249 square miles out of which the area of the Kutch mainland was 8,461 square miles and the balance was 8,788 square miles which consists of the Great and Little Ranns of Kutch.
In the Kutch Administration Report for 1910 11 and thereafter the area of Kutch was stated to be "7616 square miles" and it was stated that "the Rann also belongs to the.
Maharao".
In 1931 a correction was introduced that the area of the State was 8249.5 square miles 'exclusive of the Rann of Kutch which belongs to the Kutch State territory.
The Bombay Administration Reports from 1871 72 to 1923 24 give varying figures as the area of Kutch and make a general statement that the Rann of Kutch belongs to the State.
The statement in the Imperial Gazetteers of 1881, 1885, 1908, 1909 contain State ments about the areas which are so discrepant that no reliance can be placed upon them.
Similarly the recitals about the extent of the Rann, in the Gazetteers of the Bombay Presidency are also imprecise.
The only safe conclusion that can be drawn from these documents is that the Rann was part of Kutch State but do not lend any assistance in determining the northern boundary of the Rann.
30 7 It is stated in the affidavit of Mr. Dholakia that the area of the Kutch District was 16567.3 square miles inclusive of 9000 square miles of Rann territory.
But evidently the area of the Rann is a rough estimate.
In the Census of 1941 the area of Kutch was shown as 8,461 square miles and in 1951 Census as 16,724 square miles inclusive of Rann.
There is no evidence that the figures are based upon any precise survey in the context of an accepted boundary.
The Census of 1961 shows that there were 171 residents in the Chhad Bet.
But these consist exclusively of the Border Guards posted in that area.
It is conceded that there is no local population in Chhad Bet and Dhara Banni.
The inclusion of Chhad Bet in the area within a polling station for the 1967 General Elections also supports merely an assertion that it was claimed to be Indian territory.
It is not evidence of the fact that it was territory over which the Maharao of Kutch exercised sovereign rights and which by merger of the territory became Indian territory.
The evidence on which reliance was mainly placed in support of the claim was the conflicting alignments in the survey and other maps, the claims made by the Maharao of Kutch aid the Government of India which were not accepted.
Exercise of de facto authority over the territory in the sectors after the disputes took concrete form is evidence of an assertion merely and not evidence of pre existing sovereign rights.
The merger of the State of Kutch with the Dominion of India does not result in vesting of sovereign authority over the territory of the two sectors, unless the suzerainty of the State of Kutch is established.
The boundary between the two States was indefinite and by the award of the Tribunal the true boundary of India and Pakistan is determined: the award does not purport to, nor does it operate as giving rise to, an obligation to cede Indian territory.
The two inlets which practically encircle Nagar Parkar are declared to be within Pakistan Border on the ground that it would be inequitable to recognise those inlets as foreign territory.
It was said by the Chairman of the Tribunal that the existence of such foreign territory may be "conducive to friction and conflict".
Regarding the two inlets the position is different since the ultimate decision of the Tribunal is founded on considerations of expediency and not on strict determination of rights.
We have no power to sit in appeal over the decision of the Tribunal.
The ground on which the award is made against the claim made by the Government of India does not strengthen the rights of the claimants to relief.
Unless there is evidence to show that the inlets were territory over which the Maharao of Kutch had sovereign rights, acceptance of the award is not required to be implemented by a constitutional amendment.
The total area of the inlets, we are 308 informed by counsel on both sides, does not exceed 25 square miles.
In the turbulent times which preceded the occupation of Sind by the East India Company in 1843 or even thereafter it is unlikely that any authority was exercised by the Maharao of Kutch over these inlets.
It appears from some of the maps that at the extremities the inlets are very narrow : and roads cross these inlets from Nagar Parkar, which is of the shape of a penninsula into the mainland of Sind.
It is difficult to accept that at any time effective sovereign authority could have been exercised over these inlets by the Maharao of Kutch.
There is no evidence of exercise of any such right, before or after the occupation of Sind.
There being no evidence of exercise of sovereign authority by the Maharao of Kutch, this Court cannot treat it as part of Indian territory.
On the view the claim made by the claimants that in imple menting the award of the International Tribunal an attempt is made to cede any part of the territory which formed part of the State of Kutch before 1948, or was in de facto occupation and in respect of which sovereign authority was exercised by the Maharao of Kutch.
The award does no more than define on the surface of the earth a boundary which has at all material times remained indefinite, because of the nature of the terrain, the shifting nature of the border of what was called Rann, the highly discrepant and conflicting claims made from time to time by the British authorities as well as the Kutch State authorities before the State merged with the Dominion of India in 1948, and the persistent refusal of the British authorities, though there were several occasions to demarcate the boundary between Sind and the Rann of Kutch.
The appeal and the writs are dismissed.
There will be no order as to costs in the appeals and the writ petitions.
R.K.P.S. L7Sup.
CI/69 2,500 27 2 70 GIPF.
R.K.P.S. Appeals and petitions dismissed.
| IN-Abs | The Constitution of India, article 1 defines the "territory of India" as including the territories of the States; and the States and 'the territories thereof are as specified in the First Schedule.
Article 3 enables Parliament by law to alter the boundaries of the existing States and it includes the power to increase the area of any State or diminish the area of any State.
The power to legislate in respect of treaties lies with the Parliament by virtue of entries 10 and 14 of List I of Seventh Schedule, namely, "Foreign affairs; all matters which bring the Union into relation with any foreign country" and "entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries".
Article 253 provides that Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.
Article 73 lays down that the executive power of the Union 'shall extend to "the matters with respect to which Parliament has power to make laws ' and to "the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue 'of any treaty or agreement".
With the enactment of the Indian Independence Act, 1947, and the lapse of Paramountcy of the Crown the State of Kutch merged with the Dominion of India.
The territory was constituted into a Chief Commissioner 's Province and under the Constitution the territory became a Part C State.
Its extent was determined by Part C to Sch. 1 of the Con stitution as "territories which by virtue of an order made under section 290A of the Government of India Act, 1935, were immediately before the commencement of the Constitution being administered as if they were a Chief Commissioner Province, of the same name".
Kutch was incorporated in the State of Bombay by the and was included in the new 'State of Gujarat by the Bombay Reorganisation Act, 1960.
The Great Rann of Kutch lies between the mainland of Sind (now part of Pakistan) and the mainland of Kutch, For four months in the year it is mostly under water, for the rest of the year it is marshy land.
From the very nature of the terrain the boundaries of the Rann are shifting, its extent depending on the violence of natural elements in different years.
The northern boundary of the Rann, therefore, always remained ill defined.
From 1948 onwards diplomatic notes were exchanged between the Governments of India and Pakistan concerning the boundary between the two countries in the Gujrat West Pakistan Sector.
The dispute led 'to great tension between the two countries resulting in armed conflict in 255 1965.
In June 1965 the Governments of India and Pakistan concluded ,an agreement for setting up a Tribunal "for determination and demarcation of the border" in the area of Gujarat West Pakistan. 'Both Governments undertook to implement the findings of the Tribunal.
The award to be made by the Tribunal was, it was agreed, to operate as a self executing arrangement; it, was not only to declare the boundary but also to provide for fixing its location on site.
By award dated February 19, 1968, the Tribunal accepted the claim of Pakistan to three sectors and two inlets in the Rann of Kutch.
The petitioners, who claimed infringement of the fundamental rights guaranteed under article 19(1)(d)(e) and (f) of the Constitution, moved this Court under article 32 to restrain the Government of India from ceding to Pakistan the territories in the Rann of Kutch awarded by the Tribunal.
None of the petitioners claimed that the award bad to be rejected.
They contended that the territories were part of India and had always beep so from the establishment of the two Dominions, that India had exercised effective administrative control over them and that giving up a claim :to those territories involved cession of Indian territory which could only be affected by an amendment of the First Schedule to the Constitution.
The Union of India, on the other hand, contended that no cession of territory was involved since the dispute concerned the settlement of boundary which was uncertain, that the award itself was the operative treaty and after demarcation of boundary it was only necessary to exchange letters recognising the established border.
HELD : The Award does not purport to nor does it operate as giving rise to an obligation to cede Indian territory and therefore no constitutional amendment is necessary.
The decision to implement the Award by exchange of letters, treating the award as an operative treaty after the boundary has been marked, is within the competence of the executive wing of the Government.
[288 H 289 B] (Per Hidayatullah, C.J., Hamaswami, Mitter and Grover, JJ.) The Award has been accepted by the Government of India and therefore it is binding.
An examination of International Arbitration Awards only reveals that generally an Award is not accepted when the terms of submission are departed from or there are fatal missions,contradictions obscurities or the arbitrators substantially exceeded their jurisdiction.
None of these factors obtains here and the petitioners have rightly refrained from challenging the binding nature of the Award.
[269 F] (ii) When a treaty or an Award after arbitration comes into existence it has to be implemented and this can only be if all the three branches of Government, to wit, the legislature the executive and the judiciary, or any of them, possesses the power to implement it.
The practice of nations is different in the matter of ': implementation of treaties and arbitration awards in boundary disputes in particular.
The question is one of domestic as well as International Law.
In the United States of America a treaty is the Supreme Law and it is only when the terms of a treaty require that a law must be passed that it has to be so passed.
Under the French Constitution treaties that require ratification by law include treaties of cession, exchange or addition of territory.
In England, as no written constitution exists, difference is made between treaties of peace when the Crown acts without obtaining the approval of Parliament and session in peace time when such approval must be had.
But even so a distinction is made in the case of British possessions abroad and the United Kingdom.
Again a difference is made in cases involving minor changes where boundaries have to be ascertained and adjusted.
[275 G] 256 Foster vs Neilson ; ; Dickinson Law of Nations, Blackstone 's Commentaries, Forsyth Hansard vol.
CLXIX p: 230, 231; The Parlement Belge, ; Walker vs Baird and Attorney General for Canada vs Attorney General for Ontario, it 347, referred to.
In British India Parliamentary sanction was not necessary for cession of territory.
The Constitution of India does not contain any clear direction about treaties such as is to be found in the United States and French Constitutions.
Therefore in our country we can only go by inferences from our Constitution, the circumstances and precedents.
The legislative entries which enable Parliament to enact laws in respect of treaties are to be read with article 253.
The Article adds nothing to the legislative entries but confers exclusive power of law making upon Parliament.
[276 B, C; 277 A B] The precedents of this Court are clear only on one point, namely, that no cession of Indian territory can take place without a constitutional amendment.
The first Berubari case dealt with transfer of territory which was de facto and de jure Indian territory and therefore as the extent Indian territories as defined in article 1 read with the 1st Schedule was reduced a constitutional amendment was held necessary.
The second Berubari case concerned territory which was de facto under administration by India but being de jure that of Pakistan, transfer of that territory which was not a part of Indian territory was held not to require a constitutional amendment.
Neither case dealt with a boundary dispute.
[282 G283 C] In re : The Berubari Union and Exchange of Enclaves (The First Berubari case), and Ram Kishore Sen vs Union of India (The second Berubari 'case); , , explained.
The question on which side a disputed border falls is one of authority.
Who in the State can be said to possess Plenum dominium depends upon the Constitution and the nature of adjustment.
As to the necessity of it courts must assume it as a matter of law.
It is scarcely to be thought that the validity of the action can ever depend upon the judgment of a court.
A boundary dispute and its settlement by an arbitral.
tribunal cannot be put on the same footing as cession of territory.
An agreement to refer the dispute regarding boundary involves the ascertainment and representation on the surface of the earth a boundary line dividing the neighbouring countries and the very fact of referring such a dispute implies that the executive may do such acts as are necessary, for permanently fixing the boundary.
Ordinarily, an adjustment of a boundary, which International Law regards as valid between two nations, should be recognised by the courts and the implementation thereof can always be with the executive unless a clear case of cession is involved when parliamentary intercession can be expected and should be had.
This has been the custom of nations whose constitutions are not sufficiently elaborate on this subject.
[283 D284 B] (iii)The petitioners have not established that the territories ceded to Pakistan was a part of Kutch.
The phrase "as if they were a Chief Commissioner 's Province of the same name" in Part C, to first Schedule of the Constitution must be understood as was laid down by this Court in the second Berubari case where the word "as if" was held to refer to "territories which originally did not belong to West Bengal but which became a part of West Bengal by reason of merger agreements.
" The history of Kutch does not establish that the territories were part of Kutch.
The White Paper on Indian States only gives the area of Kutch not the boundaries.
The Kutch merger agreement gives no clue to the boundaries 257 and also leaves the matter at large.
Also, in the States Merger (Chief Commissioner 's) Province Order, 1949, in the and in the Bombay Reorganisation Act, 1960 the boundaries of Kutch are not mentioned.
Therefore, none of these documents is of any help in determining boundaries or that the disputed area was definitely a part of India.
The assertion of the Prime Minister of India in 1956 and later in 1965 that the area belonged to India was only a statement and cannot be held to he of an evidentiary character.
The claim map and other evidence produced by India before the Tribunal show that there has never been clear demarcation of boundary in this area.
[281 H, 286 AB] (iv) There is no evidence of administration 'of the disputed area by India.
The existence of Watch and Ward Officers or the establishment of a polling booth for them at election time cannot connote administration such as would make them territory of India.
The diplomatic notes began soon after the establishment of the two dominions and the occupation may have meant de facto control but there was no proof of de jure occupation or any other administration.
Sovereignty over an area is a matter of inference and unless real existence of sovereignty over this area is proved India cannot be in de jure occupation.
(Per Shah J.) : (i) The Constitution of India makes no provision making legislation a condition of the entry into an international treaty in times of war or peace.
The executive is qua the State competent to represent the State in all matters international and may incur obligations which in International Law are binding upon the State.
There is a distinction between the formation and the performance of the obligations constituted by a treaty.
Under the Constitution the obligations arising under the agreement or treaties are not by their own force binding upon Indian nationals or others.
The power to legislate in respect of treaties lies with the Parliament and making of law under that authority is necessary when the treaty or agreement operates to restrict the rights of citizens or others or modifies the laws of the State.
If the rights of the citizens and others which are justiciable are not affected, no legislative measure is needed to, give effect to.
the agreement or treaty.
[299 D F] The Parlement Belge, , Walker vs Baird, and Attorney General for Canada vs Attorney General for Ontario, , referred to.
The argument that power to make or implement a treaty agreement or convention can only be exercised under authority of law proceeds upon a misreading of article 253.
The effect of article 253 is that if a treaty agreement or convention with a foreign State deals with a subject matter within the competence of the State Legislature, the Parliament alone has,.
notwithstanding article 246(3) the power to make, laws to implement the treaty agreement or convention.
In terms the Article deals with legislative power; thereby power is conferred upon the Parliament which it may not otherwise possess.
But it does not seek to circumscribe the extent of the executive power conferred by article, 73; the exercise of this power must be supported by legislation only if in consequence of the exercise of the power, rights of citizens or others are restricted or infringed or laws are modified.
[299 G 300 C] (ii) In implementing the Award there is no cession of the territory of India to Pakistan.
A review of the terms of the agreement, the unanimous introductory part of the Award and the terms of the agreement relating to the implementation of the Award and the final Award, make it abundantly clear that the dispute relates to the boundary between the two. 2 58 States, settlement of dispute which relates to the alignment of an undefined boundary between two States involves no cession of territory by either State.
In the First Berubari case this Court advised that the Indo Pakistan agreement could be implemented under the authority of a constitutional amendment only, because, there was no question of demarca tion of a disputed boundary; it was a case of pure cession of territory.
Therefore the principle of the first Berubari case has no application to the facts of the present case.
The second Berubari case related to transfer of territory which though temporarily under Indian administration had never become Indian territory.
The principle of this case is against the contention raised by the petitioners.
[301 C 302 F] In re : The Berubari Union and Exchange of Enclaves (the first Berubari case),, and Ram Kishore Sen V. Union of India, (the second Berubari case); ,, explained.
There is no definite and reliable piece of evidence which establishes ;that the disputed seam were part of the State of Kutch and, therefore, part of the territory of India.
Conflicting claims were made from time to time by the British authorities and the Maharao of Kutch; and about the exercise of sovereign rights over the areas now in dispute the evidence in scrappy and discrepant.
Different positions were adopted by the officers of the Government of India according as the exigencies of a particular situation demanded.
These statements or assertions do not evidence an existing state of affairs; they were only made to support or resist claims then made, or to serve some immediate purpose.
[305 F H] Regarding the two inlets the ultimate decision of the Tribunal is founded on considerations of expediency and not on strict determination of rights.
But the ground on which the Award is made against the claim made by the Government of India, does not strengthen the rights of the claimants for relief.
There being no evidence of exercise of sovereign authority over the inlets by the Maharao of Kutch this Court cannot treat them as part of Indian territory.
Exercise of de facto authority over the territory in the ' sectors after the disputes took concrete form is evidence of an assertion merely and not evidence of pre existing sovereign rights.
,The merger of the State of Kutch with the Dominion of India does not result in vesting of sovereign authority over the territory unless the suzerainty of the State of Kutch is established.
The Award does no more than define on the surface of the earth a boundary which has at all material times remained indefinite because of the nature of the terrain, the shifting nature of the border of what was called Rann, the highly discrepant and 'conflicting claims made from time to time by the British authorities as well as the Kutch State authorities before the State merged with the Dominion of India in 1948 and the persistent refusal of the British authorities, though there were several occasions, to demarcate the boundary between Sind and the Rann of Kutch.
[307 G; 208 D E]
|
Appeals Nos. 272 to 274 of 1966.
Appeals by special leave from the judgment and order dated July 28, 1961 of the Madras High Court in O.S.A. Nos. 65, 70 and 71 of 1956.
K.N. Balasubramaniam and R. Thiagarajan, for the appel lant (in all the appeals).
R.Gapalakrishnan, for respondents Nos. 2 to 4 (in C.A. No. 272 of 1966), respondents Nos. 1 and 2 (in C.A. No. 273 of 1966) and respondent No. 1 (in C.A. No. 274 of 1966).
The Judgment of the Court was delivered by Bachawat, J.
On February 23, 1953 the appellant instituted C.S. No. 56 of 1953 on the Original Side of the Madras High Court under the summary procedure of Order 7 of the Original Side Rules against Hajee Ahmed Batcha claiming a decree for Rs. 40,556/1/2/ and Rs. 8,327/12/9/ said to be due under two I promissory notes executed by Haji Ahmed Batcha.
On March 9 1953, Hajee Ahmed Batcha obtained leave to defend the suit on condition of his furnishing the security for a sum of 516 Rs. 50,000 to the satisfaction of the Registrar of the High Court.
On March 26, 1953 Hajee Ahmed Batcha executed a security bond in favour of the Registrar of the Madras High Court charging several immoveable properties for payment of Rs. 50,000.
The condition of the bond was that if he paid to the appellant the amount of any decree that might be passed in the aforesaid suit the bond would be void and of no effect and that otherwise it would remain in full force.
The bond was attested by B. Somnath Rao.
It was also signed by K. section Narayana Iyer, Advocate, who explained the document to Hajee Ahmed Batcha and identified him.
All the properties charged by the bond are outside the local limits of 'the ordinary original jurisdiction of the Madras High Court.
The document was presented for registration on March 29, 1.953 and was registered by D. W. Kittoo, the Sub Registrar of Madras Chingleput District.
Before the Sub Registrar, Hajee Ahmed Batcha admitted execution of the document and was identified by Senkaranarayan, and Kaki Abdul Aziz.
The identifying witnesses as also the Sub Registrar signed the document.
Hajee Ahmed Batcha died on February 14, 1954 and his legal representatives were substituted in his place in C.S. No. 56 of 1953.
On March 19, 1954 Ramaswami, J. passed a decree for Rs. 49,891/13/ with interest and costs and directed payment of the decretal amount on or before April 20, 1954.
While passing the decree, he observed : "It is stated that the defendant has executed a security bond in respect of their immoveable properties when they obtained leave to defend and this will stand enured to the benefit of the decree holder as a charge for the decree amount.".
Clauses 3 and 4 of the formal decree provided "(3) that the security bond executed in respect of their immoveable properties by defendants 2 to 4 in pursuance of the order dated 9th March 1953 in application No. 797 of 1953 shall stand enured to the benefit of the plaintiff as a charge for the a amounts mentioned in clause 1 supra; (4).that in default of defendants 2 to 4 paying the amount mentioned in clause 1 supra on or before the date mentioned in, clause 2 supra the plaintiff shall be at liberty to apply for the appointment of Commissioners for, sale of the aforesaid properties.
" The appellant filed an application for (a) making absolute the charge decree dated March 31, 1954 and directing sale of the properties; and (b) appointment of Commissioners for selling them.
On April 23, 1954 the Court allowed the application, appointed Commissioners for selling of the properties and directed that the relevant title deeds and security bond be handed over 5 17 to the Commissioners.
The Commissioners sold the properties on May 29 and 30, 1954.
The sales were confirmed and the sale proceeds were deposited in Court on July 2, 1954.
All the three respondents are simple money creditors of Hajee Ahmed Batcha.
The respondents Venkata Sastri & Sons filed O.S. No ' 13 of 1953 in the Sub Court, Vellore, and obtained a decree for Rs. 5,500 on March 27, 1953.
Respondent H.R. Cowramma instituted O.S. No. 14 of 1953 in the same Court and obtained a money decree on April 14, 1953.
The two decree holders filed applications for execution of their respective decrees.
One Rama Sastri predecessors of respondents H.R. Chidambara Sastri and H.R. Gopal Krishna Sastri obtained a money decree against Hajee Ahmed Batcha in O.S. No. 364 of 1951/52 in the Court of the District Munsiff, Shimoga, got the decree transferred for execution through the Court of the District Munsiff, Vellore, and filed an application for execution in that Court.
On June 7, 1954 the aforesaid respondents filed applications in the Madras High Court for (i) transfer of their execution petitions pending in the Vellore courts to the file of the High Court and (ii) an order for rateable distribution of the assets realized in execution of the decree passed in favour of the appellant in C.S. No. 56 of 1953.
The appellant opposed the applications and contended that as the properties were charged for the payment of his decretal amount, the sale proceeds were not available for rateable distributing amongst simple money creditors.
The respondents contended that the security bond was invalid as it was not attested by two witnesses and that the decree passed in C.S. No. 56 of 1953 did not create any charge.
Balakrishna Ayyar, J. dismissed all the applications as also exemption petitions filed by the respondents.
He held that the decree in C.S. No. 56 of 1953 did not create a charge on the properties.
But following the decision in Veerappa Chettiar vs Subramania(1) he held that the security bond was sufficiently attested by the Sub Registrar and the identi fying witnesses.
The respondents filed appeals against the orders.
On March 28, 1958 the Divisional Bench hearing the appeals referred to a Full Bench the following question "Whether the decision in Veerappa Chettiar vs Subramania lyer (I.L.R. requires reconsideration.
" The Full Bench held "In our opinion, such signatures of the registering officer and the identifying witnesses endorsed on a mortgage document can be treated as those of attesting witnesses if ' (1) the signatories are those who have seen the execution or received a personal acknowledgment (1) I.L.R. 518 from the executant of his having executed the document, (2) they sign their names in the presence of the executant and (3) while,so doing they had the animus to attest.
The mere presence of the signatures of the registering officer or the identifying witnesses on the registration endorsements would not by themselves be sufficient to satisfy the requirements of a Valid attestation; but it would be competent for the parties to show by evidence that any or all of these persons did in fact intend to and did sign as attesting witness as well.
" The Full Bench held that the decision in Veerappa Chettiar 's Case(1) can be held to, be correct to this limited extent only and not otherwise.
At the final hearing of the appeals, the Divisional Bench held that ( 1 ) a charge by act of parties could be created only by a document registered and attested by two witnesses; (2) the security bond was not attested by two witnesses and was therefore invalid; (3) the decree in C.S. No. 56 of 1953 should be construed as containing nothing more than a recital of the fact of there having been a security bond in favour of the plaintiff; and the sale in execution of the decree must be regarded as a sale in execution of a money decree; and (4) tie respondents were entitled to an order for rateable distribution.
Accordingly, the Divisional Banch allowed the appeals, directed attachment of the sale proceeds and declared that the respondents were entitled to rateable distribution along with the appellant.
The present appeals have been filed after obtaining special leave from this Court.
The following questions arise in these appeals : (1) Is the security bond attested by two witnesses; (2) if not, is it invalid? (3) does the decree in C.S. No. 56 of 1953 direct sale,of the properties for the discharge of a charge thereon, and (4) are the respondents entitled to rateable distribution of the assets held by court.? As to the first question, it is not the case of the appellant that K.S. Narayana Iyer is an attesting witness.
The contention is that the Sub Registrar D.W. Kittoo and the identifying witnesses Senkaranarayana and Kaki Abdul Aziz attested the document.
In our opinion, the High Court rightly rejected this contention.
Section 3 of the gives the definition of the word "attested" and is in these words : "Attested", in relation to an instrument, means and shall be deemed to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the (1) I.L.R. 519 direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present it the same time and no particular form of attestation shall be necessary.
" It is to be noticed that the word "attested", the thing to be defined,.
occurs as part of the definition itself.
To attest is to bear witness.
to a fact.
Briefly put, the essential conditions of a valid attestation under section 3 are : (1 ) two or more witnesses.
have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to bear witness to this fact each of them has.
signed the instrument in the presence of the executant.
It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature.
If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness.
"In every case the Court must be satisfied that the names were written animo attestandi", see Jarman on Wills, 8th ed. 137.
Evidence is admissible to show whether the witness had the intention to attest.
"The attesting witnesses must subscribe with the intention that the subscription made should be complete attestation of the will, and evidence is admissible to show whether such was the intention or not," see Theobald on Wills, 12th ed.
p. 129.
,In Giria Datt vs Gangotri (1)the Court held that the two persons who had identified the testator at the time of the registration of the will and had appended their signatures at the foot of the endorsement by the Sub Registrar, were not attesting witnesses.
as their signatures were not put "animo attestandi".
In Abinash Chandra Bidvanidhi Bhattacharya vs Dasarath Malo(2) it was held that a person who had put his name under the word "scribe" was not an attesting witness as he had put his signature only for the purpose of authenticating that he was a "scribe".
In Shiam Sundar Singh vs Jagannath Singh (3) the Privy Council held that the legatees who had put their signatures on the will in token of their consent to its execution were not attesting witnesses and were not dis qualifled from taking as legatees.
The Indian lays down a detailed pro cedure for registration of documents.
The registering officer is; (1) A.I.R. 1955 S.C. 346,351.
(3) (2) I.L.R. 5 under a duty to enquire whether the document is ' executed by the person by whom it purports to have been executed and to satisfy himself as to the identity of the executant, section 34(3).
He can register the document if he is satisfied about the identity of the person executing the document and if that person admits execution, [section 25(1)].
The signatures of the executant and of ,every person examined with reference to the document are endorsed on the document, (section 58).
The registering officer is required to affix the date and his signature to the endorsements (section 59).
Prima facie, the registering officer puts his signature on the document in discharge of his statutory duty under section 59 and not for the purpose of attesting it or certifying that he has received from the executant a personal acknowledgment of his signature.
The evidence does not show that the registering officer D.W. Kitto put his signature on the document with the intention of attesting it.
Nor is it proved that he signed the document in the presence of the executant.
In these circumstances he cannot be regarded as an attesting witness see SurendraBahadur Singh vs Thakur Behari Singh(1).
Like identifying witnesses Senkaranarayana and Kaki Abdul Aziz signatures on the document to authenticate the fact that they have identified the executant.
It is not shown that they put their signatures for 'the purpose of attesting the document.
They cannot therefore be regarded as attesting witnesses.
It is common case that B. Somnath Rao attested the document.
It follows that the document was attested by one witness only.
As to the second question, the argument on behalf of the respondents is that section 100 of the attracts section 59 and that a charge can be created only by a document signed, registered and attested, by two witnesses in accordance with section 59 where the principal money secured is Rs. 100 or upwards.
The High Court accepted this contention following its earlier decisions in Viswanadhan vs Menon(2) and Shiva Rao vs Shanmugasundara swami (3) and held that the security bond was, invalid, as it was swami attested b one witness only.
We are unable to agree with this opinion.
Section 100 is in these terms "Where immoveable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property ', and all the provisions hereinbefore contained which apply to a simple mortgage shall, so" far as may be, apply to such charge.
(1) (2) I.L.R. [1939].Mad.
(3) I.L.R. [1940] mad.
521 Nothing in this section applies to the charge of a trustee on the trust property for expenses property incurred.
in the execution of his trust, and, save as otherwise expressly provided by any law for the time being in force no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge.
The first paragraph consists of two parts.
The first part concerns the creation, of a charge over immoveable property.
A charge may be made by act of parties or by operation of law.
No restriction is put on the manner in which a charge can be made.
Where such a charge has been created the second part comes into play.
It provides that all the provisions hereinbefore contained which apply to a simple mortgage shall; so far as may be, apply to such charge.
The second part does not address itself to the question of creation of a charge.
It does not attract the provisions of section 59 relating to the creation of a mortgage.
With regard to the applicability of the provisions relating to a simple mortgage, the second part of the first paragraph makes no distinction between a charge created by act of parties and a charge by operation of law.
Now a charge by operation of law is not made by a signed, registered and attested instrument.
Obviously, the second part has not the effect of attracting the provisions of section 59 to such a charge.
Likewise the legislature could not have intended that the second part would attract the provisions of section 59 to a charge created by act of parties.
Had this been the intention of the legislature the second part would have been differently worded.
If a charge can be made by a registered instrument only in accordance with section 59, the subsequent transferee will always have notice of the charge in view of section 3 under which registration of the instrument operates as such a notice.
But the basic assumption of the doctrine of notice enunciated in the second paragraph is that there may be cases where the subsequent transferee may not have notice of the charge.
The plain implication of this paragraph is that a charge can be made without any writing.
If a non testamentary instrument creates a charge of the value of Rs. 100 or upwards, the document must be registered under section 17 (1) (b) of the Indian .
But there is no provision of law which requires that an instrument creating the charge must be attested by witnesses.
Before section 100 was amended by Act 20 of 1929 it was well settled that the section did not prescribe any particular mode of creating a charge.
The amendment substituted the words "all 522 the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge," for the words "all the provisions hereinbefore contained as to a mortgagor shall, so far as may be, apply to the owner of such property, and the provisions of sections 81 and 82 shall, so far as may be, apply to the person having such charge.
" The object of the amendment was to make it clear that the rights and liabilities of the parties in ,case of a charge shall,, so far as may be, the same as the rights, and liabilities of the parties to a simple mortgage.
The amendment was not intended to prescribe any particular mode for the creation of a charge.
We find that the Nagpur High Court came to a similar conclusion in Baburao vs Narayan(1).
It follows that the security bond was not required to be attested by witnesses.
It was duly registered and was valid and operative.
As to the third question, we find that the decree dated March 19, 1954 declared that the security bond in respect of the immovable I properties would enure for the benefit of the appellant as a charge for the decretal amount.
This relief was granted on the ,oral prayer of the plaintiffs.
We are unable to agree with the High Court that in view of the omission to amend the plaint by adding a prayer for enforcement of the charge, the decree should be construed as containing merely a recital of the fact that a security bond had been executed.
In our opinion, the decree on its true construction declared that the security bond created a charg e over the properties in favour of the plaintiffs for payment of the decretal amount and gave them the liberty to apply for sale of the 'properties for the discharge of the encumbrance.
Pursuant to the decree the properties were sold and the assets are now held by the Court.
The omission to ask for, an amendment of the plaint was an irregularity, but that does not affect the construction of the decree.
It was suggested that the decree was invalid as the High Court had no territorial jurisdiction under clause 12 of its Letters Patent to pass a decree for sale of properties outside the local limits of its ordinary original jurisdiction.
For the purpose of these appeals, it is sufficient to say that the respondents cannot raise this question in the present proceedings.
If the decree is invalid and the sale is illegal on this ground, the respondents cannot maintain their applications for rateable distribution of the assets.
They ,,can ask for division of the sale proceeds only on the assumption that the properties were lawfully sold.
It is therefore unnecessary to decide whether the objection as to the territorial jurisdiction of the High Court has been waived by the judgment debtor and cannot now be agitated by him and persons claiming through him, having regard to the decisions in Seth Hiralal Patni vs Sri Kali (1)I.L.R. ,1819 822., 523 Nath(1), Behrein Petroleum Co. Ltd., vs P. J. Pappu (2) , Zamindar of Etiyapuram vs Chidambaram Chetty(1).
As to the 4th question we find that the immoveable properties have been sold in execution of a decree ordering sale for the discharge of the encumbrance thereon in favour of the appellant.
Section 73(1) proviso (c) therefore applies and the proceeds of sale after defraying the expenses of the sale must be applied in the first instance in discharging the amount due to the appellant.
Only the balance left after discharging this amount can be dis tributed amongst the respondents.
It follows that the High Court was in error in holding that the respondents were entitled to rateable distribution of the assets along with the appellant.
In the result, the appeals are allowed, the orders passed by the Divisional Bench of the Madras High Court are set aside and the orders passed by the learned Single Judge are restored.
There will be no order as to costs.
G.C. Appeals allowed.
(1) ; ,751 2.
(2) ; ,462 3.
| IN-Abs | The appellant filed suit No. 56 of 1953 against H for recovery of certain monies on the basis of promissory notes.
As the suit was under 0. 7 of the Madras High Court Original Side Rules H was given leave to defend it on furnishing certain security.
Accordingly H executed in favour of the Registrar, Madras High Court, a security bond charging certain properties 'for the payment of Rs. 50,000,.
The document was attested by only one witness.
At the time of registration it was signed by two identifying witnesses and the Sub Registrar.
The trial Judge decreed the appellant 's suit and the decree mentioned that the charge created by H 's security bond would enure for the benefit of the decree holder.
In execution proceedings the properties in question were sold and the proceeds deposited in court.
At this stage the three respondents who also held money decrees against H applied to the Court for ratable distribution of the assets realised in the execution of the appellant 's decree in suit No. 56 of 1953.
The trial Judge dismissed their applications.
In Letters Patent Appeals the High Court held that in the absence of attestation by the two witnesses the security bond executed by H was invalid inasmuch as a charge on property created under section 100 of the attracted the provisions of section 59.
As to the decree passed in suit No,.
56 of 1953 the High Court held that in view of the decree holder 's omission to amend the plaint by adding a prayer for enforcement of the charge the decree should be construed as containing merely a recital of the fact that a security bond had been executed.
On these findings the High Court held that the respondents were entitled to rateable distribution.
Against the High Court 's orders the appellant filed appeals in this Court.
On the question of attestation he contended that the sub Registrar and the two identifying witnesses must also be treated as having attested the security bond.
HELD : (i) The essential conditions of a valid attestation under section 3 of the are : (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to hear witness to this fact each of them has signed 'the instrument in the presence of the executant.
It is essential that the witness should have put his signature animo attestendi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature.
If a person puts his signature on the docu 514 meat for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness.
[519 C D] Prima facie the registering officer puts his signature on the document in discharge of his statutory duty under section 59 of the and not for the purpose of attesting it or certifying that he has received from the executant a personal acknowledgment of his signature. [520 B C] In the present case the evidence did not show that the registering officer and the identifying witnesses signed the document with the intention of attesting it.
Nor was it shown that the registering officer signed it in the presence of the executant.
The document could not therefore be said to have been attested by these witnesses and must be held to have been signed by one attesting witness only.
[520 D] Veerappa Chettiar vs Subramania, I.L.R. , Girja Datt vs Gangotri, A.I.R. 1955 S.C. 346, Abinash Chandra Bidyanidhi Bhattacharya vs Dasarath Malo, I.L.R. 56 Cal.
598, Shiam Sundar Singh vs Jagannath Singh, 54 M.L.J,.
43 and Surendra Bahadur Singh vs Thakur Behari Singh, , referred to.
(ii)Section 100 of the does not attract the provisions of section 59.
[521 C D] The first paragraph of section 100 consists of two parts.
The first part concerns the creation of a charge over immovable property which may be by act of parties or by operation of law.
No restriction is put on the manner in which a charge can be made.
[521 C] When such a charge has been created the second part comes into play.
It provides that all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge.
The second part does not address itself to the question of creation of a charge.
It does not attract the provisions of section 59 relating to the creation of a mortgage.
The second part moreover makes no distinction between a charge created by act of parties and a charge by operation of law.
Obviously the provision of section 59 are not attracted to a charge by operation of law.
Likewise the legislature could not have intended that the second part would attract the provisions of section 59 to a charge created by act of parties.
[521 D E] If a charge can be made by a registered instrument only in accordance with section 59, the subsequent transferee will always have notice of the charge in view of section 3 of the Act.
But the basic assumption of the doctrine of notice enunciated in the second paragraph is that there may be cases when the subsequent transferee may not have notice of the charge.
The plain implication of this paragraph is that A charge can be made without any writing.
[521 F G] If a non testamentary instrument creates a charge of the value of Rs. 100/ or upwards the document must be registered under section 17(1) (b) of the Indian .
But there is no provision of law which requires that an instrument creating the charge must be attested by witnesses.
[521 G H] The object of the second part of the first paragraph of section 100 is to make it clear that the rights and liabilities of the parties in case of a charge shall so far as may be the same as the rights and liabilities of the parties of a simple mortgage.
It was not intended to prescribe any particular mode for the creation of a charge.
[522 B] 515 It followed that the security bond in the present case was not required to be attested by witnesses.
It was duly registered and was valid and operative.
[522 C] Viswanadhan vs Menon, I.L.R. and Shiva Rao vs Shanmugasundaraswami I.L.R. , disapproved.
Baburao vs Narayan, I.L.R. , 819 822, approved.
(iii)The decree in suit No. 56 of 1963 on its true construction declared that the security bond created a charge over the properties in favour of the plaintiffs for payment of the decretal amount and gave them the liberty to apply for sale of the properties for the discharge of the encumbrance.
Pursuant to the decree the properties were sold and the assets were held by the court.
The omission to ask for an amendment of the plaint was an irregularity, but that did not affect the construction of the decree.
[522 D E] (iv)The immovable properties had been sold in execution of a decree ordering sale for the discharge of the encumbrance thereon in favour of the appellant.
Section 73(1) proviso (c) therefore applied and the proceeds of the sale after defraying the expenses of the sale must be applied in the first instance in discharging the amount due to the appellant.
Only the balance left after discharging this amount could be distributed among the respondents.
[523 B] (v)Since the respondents ' own case rested on the assumption that the properties were lawfully sold they could not be allowed to raise the objection that the High Court had no territorial jurisdiction for sale of properties outside the local limits of its ordinary original jurisdiction.
[522 G] Seth Hiralal Patni vs Sri Kali Nath, ; , 751 52, Bahrein Petrolium Co. Ltd. vs P. J. Pappu, ; , 462 63 and Zamindar of Etiyapuram vs Chidambaram Chetty, I.L.R. 43 Mad . 675 (F.B.), referred to.
|
n No. 3 61 of 1968.
Petition under article 32 of the Constitution of India for writ in the nature of habeas corpus.
M.K. Ramamurthi, Shyamala Pappu and Vineet Kumar, for the petitioner.
R. Gopalakrishnan and R. N, Sachthey, for the respondent.
The Judgment of the Court was delivered by Shah, J.
On March 16, 1968 the petitioner was arrested and ordered to be detained under section 3(1) (,a) (i) of the Jammu and Kashmir Preventive Detention Act 13 of 1964.
On March 26, 1968, he was served with the grounds of detention.
On May 3, 1968, the petitioner moved a petition for a writ of habeas corpus in this Court.
The petition was rejected by this Court on October 10, 1968.
In the meanwhile the order dated March 16 1968, was revoked on September 16, 1968, and another order was served upon the petitioner on the same day.
On September 24, 1.968, he was served with the grounds of detention for the fresh order, and his case was referred to the Advisory.
Board on October 26, 1968.
On October 30, 1968, the Advisory Board recommended that the petitioner.
be detained.
The petitioner then moved this petition on November 11, 1968 a writ of habeas corpus.
Two contentions in the nature of preliminary objections were raised in support of the petition.
It was urged that (1) the petitioner was, in spite of a specific request, denied a personal hearing before the Advisory Board, and (2) that the Chief Minister who was in charge of the portfolio relating to preventive detention did not apply his mind to the case of the petitioner before making the order of detention.
An affidavit is filed by the Secretary to the Government of Jammu & Kashmir affirming that the petitioner made no request for production before the Board for a personal hearing.
He has also affirmed that the Chief Minister did consider the case of the petitioner and directed that the petitioner be detained in custody under the Preventive Detention Act.
In view of this affidavit, counsel for the petitioner did not press he two preliminary contentions.
576 Counsel urged that the order of detention was invalid because (1) that the case of the petitioner was not referred to the Advisory board till September 24, 1968 and on that account his detention was invalid, and he could not be continued in detention thereafter;(2) that in making the detention order the authorities acted mala fide; and (3) the grounds in support of the order were vague and indefinite By article 22 of the Constitution certain protection is conferred upon persons who are detained under orders of preventive detention But article 35 (c) in its application to the State of Jammu & Kashmir provides "no law with respect to preventive detention made by the Legislature of the State of Jammu and Kashmir, whether before or after the commencement of the Constitution (Application to Jammu and Kashmir) Order, 1954, shall be void on the ground that it is inconsistent with any of the provisions of this (Part III) Part, but any such law shall, to the extent of such in consistency, cease to have effect on the expiration of fifteen years from the commencement of the said Order, except as respects things done or omitted to be done before the expiration thereof.
" The protection of cls.
(5), (7) of article 22 insofar the, provision are inconsistent therewith does not avail the petitioner.
By s.3 the Government of Jammu and Kashmir is entitled, if satisfied with respect to any person that with a view to Preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order, to make an order direct that such person be detained.
By section 8 it is provided : "(1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the Government.
(2) Nothing in sub section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.
" Section 9 provides for the constitution of Advisory Board and section 10 deals with references to the Advisory Board.that section the Government is required within thirty days from the date of detention under the order to place before the Advisory Board the grounds on which the order has been made and the 577 representation, it any, made by the person affected by the order.
By section 12 it is provided: "(1) In any case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit.
(2) In any case where the Advisory Board has rePorted that there is in its opinion no sufficient cause for the detention of the person concerned, the Government shall revoke the detention order and cause the person to be released forthwith.
,, Section 13 prescribes the maximum, period of detention for which any person may be detained in pursuance of any detention order.
Section 13A which was added by Act 8 of 1967 enables the State to detain a person for a period of two years.
Section 13A provides: "(1) Notwithstanding anything contained in this Act, any person detained under a detention order made in any of the following classes of cases or under any of the following circumstances may be detained for a period longer than three months, but not longer than six months, from the date of detention, without obtaining the opinion of any Advisory Board, namely, when such person has been detained with a view to preventing him from acting in any manner prejudicial to (i) the 'security of the State; (ii) the maintenance of public order; Provided that where any such person has been detained with a view to Preventing him from acting in any manner prejudicial to the security of the State grounds on which the detention order has been made are not communicated to him under the proviso to section 8 (1), such person may be detained for a period of two years from the date of detention without obtaining the opinion of the Advisory Board.
(2) In the case of every person detained with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order, the provisions of this Act shall have effect subject to the following modifications, namely: (a) in sub section (3) of section 3, for the words 'twelve days ', the words 'twenty four days ' shall be substituted.
578 (b) in sub section (1) of section 8, (i) for the words 'five days ' the words 'ten day 's shall be substituted; (ii) the following proviso shall be inserted at the end, namely Provided that nothing in this sub section shall apply to the case of any person detained with a view to preventing him from acting in any manner prejudicial to the security of the State, if the authority making the order, by the same or a subsequent order directs that the person detained may be informed that it would be against public interest to communicate to him.
the grounds on which the detention order has been made. ' (c) in section 10, (i) after the words, 'In every case where a detention order has been made under this Act ' occurring in the beginning, the brackets and words '[other than a case to which the proviso to section 8(1) applies] ' shall be inserted; and (ii) for the words 'thirty days ' the words 'sixty days ' shall be substituted, (b) in section 1 1, for the words 'ten weeks ' the words five months shall be substituted." The effect of section 13A insofar as it is relevant to this case is to authorise the State in the cases specified to detain a person without obtaining the opinion of the Advisory Board, if he is to be detained for a period longer than three months but not longer than six months from the date of detention.
By sub section
(2) the periods prescribed for the various steps under the Act are doubled; for making report to the District Magistrate when he exercises the power of detention the period is extended to twenty four days : for the Government to serve the grounds of the order under section 8(1) the period is extended to ten days; and for the Advisory Board to make its report in cases covered by section 13A the period is extended to sixty days.
Again by the proviso to section 8(1) the Government is entitled to withhold in serving grounds upon the detenu that it would be against public interest to communicate to him the grounds on which the detention order has been made, Relying upon the terms of section 10(1) as amended by section 13A it was urged that the Government was bound to refer the case of the petitioner within sixty days from the date of detention and ' since no reference was made the detention of the petitioner under the order dated March 16, 1968, was unauthorised.
This argu 579 ment is plainly unsustainable.
Section 13A opens with words "Notwithstanding anything contained in this Act", and provides that a person may be detained for a period not longer than six months without obtaining the opinion of the Advisory Board.
It is plainly contemplated thereby that the Government may decide not to refer the case of the detenu to the Advisory Board, because the period for which he is to.
be detained is not to exceed six months.
Section 13A is an exception to section 10 as well as to all other relevant provisions of the Act, and in case of conflicts.
13A prevails.
The, petitioner was detained for six months from March 16,.1968 to September 16, 1968 without obtaining the opinion of the Advisory Board.
We will be justified in accepting the contention of the State that it was intended, when the order was pass detaining the petitioner that he was not to be kept in detention for a period longer than six months and his case fell within the terms of section 13A (1) and on that account it was not necessary to obtain the opinion of the Advisory Board.
It was said by counsel for the petitioner that the plea of the State was inconsistent with the course of events, and the State Government had taken shelter under the provisions of section 13A (1) even though they had at no stage any desire to release the petitioner from jail at the expiry of or 'within six months.
The Court will not be justified in assuming from the circumstance that a fresh order has been issued that the Government acted mala fide in making the original order or the fresh order.
The only plea raised by the petitioner in support of that plea is in paragraph 1 5 of the p etition, that the cancellation of the earlier order of detention and the service of the fresh order of detention on the petitioner was "a part and parcel of the scheme of the State to suppress the peaceful trade union movement, and that the fresh order of detention was passed mala fide.
No particulars are furnished which justify an inference that in resorting to the provisions of the Act the Government 's action was actuated by ill will or taken for some collateral purpose.
Reliance was also placed upon the recitals 'in the grounds supplied to the petitioner on March 16, 1968 and under the fresh detention order dated September, 16, 1968, and it was contended that the grounds being identical an inference followed that the previous detention order was continued on the same grounds on which the original order was passed.
On comparing the grounds it cannot be said that they are identical.
It is stated in the last part of the Annexure to the grounds of detention under order dated September 16, 1968, that from the middle of January to March 1968 the petitioner went underground and during that period he used to attend secret meetings in which he used to stress upon the Government employees that their demands cannot be 580 conceded by the, Government unless they resort to violence that the petitioner was violent by nature and was a perpetual threat to the maintenance of public order.
It cannot also be said that merely because the previous order had been passed under which the 'Petitioner was intended to be detained for a period of six months and thereafter In consequence of further information the Government was required to issue a fresh order, the original order ,or the fresh order was illegal.
The plea that the grounds were vague and indefinite cannot also be accepted.
It is recited in the order that the Petitioner was informed that his detention was ordered on grounds specified in the Annexure appended thereto, which also contained facts relevant thereto except those which the Government considered to be against public interest to disclose.
By virtue of sub section
(2) of section 8, it is open to the Government not to disclose,, facts which it considers to be ag ainst the public interest to disclose.
In the present case the order clearly states that ' the Government were of the view that facts relevant to the grounds except those which the Government considered to be against public interest to disclose were intimated to the petitioner.
The Annexure may appear somewhat indefinite and vague.
But, that is obviously because facts which in the view of the Government, were against public interest to disclose, were withheld from the petitioner.
The Government have power to withhold information about those facts, and they did so.
The grounds cannot in the circumstances be said to be vague and indefinite.
One more question needs to be dealt with.
The petitioner who was present in the Court at the time 'of hearing of this petition complained that he is subjected to solitary confinement while in detention.
It must be emphasized that a, detenu is not a convict.
Our Constitution, notwithstanding the broad principles of the rule of law, equality and liberty of the individual enshrined therein, tolerates, on account of peculiar conditions prevailing, legislation which is a negation of the rule of law, equality and liberty.
But it is implicit in the Constitutional scheme that the power to detain is not a power to punish for offences which an executive authority in his subjective satisfaction believes a citizen to have committed.
Power to detain is primarily intended to be exercised in those rare cases when the larger interest of the State demand that restrictions shall be placed upon 'the liberty of a citizen curbing his future activities The restrictions so placed must, consistently with the effectiveness of detention, be minimal.
The petition fails and is dismissed.
V.P.S. Petition dismissed.
| IN-Abs | On March 16, 1968 the petitioner was arrested and ordered to be detained under section 3(1) (a) (1) of the Jammu and Kashmir Preventive Detention Act, 1964.
On September 16, 1968, the order was revoked and another order was served on him.
on September 24, 1968 the petitioner was served, with the grounds for the fresh order of detention His case was referred to the Advisory Board on October 26, 1968 and the Board recommended his detention.
Under section 10 of the Act, as amended by section 13A, of the Amending Act 8 of 1967, the Government is required to refer a case to the Advisory Board within 60 days from the date of detention: In a petition for the issue of a writ of habeas corpus it was contended that : (1) Since the case of,, the petitioner was not referred to the Advisory Board within 60 days of the date of detention (March 16, 1968) the detention was invalid; (2) The authorities acted mala fide in making the detention order; (3) The grounds in support of the order were vague and indefinite; and (4) 'Mat his being subjected to solitary confinement while in detention was illegal.
HELD : (1) There was no reason for not accepting the statement of the State that it was not intended, when the detention order of March 16, 1968 was passed that the petitioner was to be kept in detention for a period longer than 6 months.
Therefore, his case fell within the terms of s.13A(1)which provides that 'notwithstanding anything, contained in this Act a person may be detained for a period not longer than 6 months without obtaining the opinion of the Advisioiry Board.
In the present case the petitioner was detained under the first order only for a period of 6 months when that order was revoked by the second order of detention.
[579 C] (2)The grounds for the two orders are not identical; When the first Order was passed the petitioner was not intended to be detained for a period exceeding 6 months.
Thereafter, in consequence of further information that the petitioner was violent by nature and was a perpetual threat to the maintenance of public order, the Government had to issue a fresh order.
Therefore.
it could not be said that the Government acted mala fide inmaking either the original or the fresh order.
[579 G H; 580 A B] (3) The order clearly stated facts relevant to the grounds of detention, except those which Government considered to be against public interest to disclose.
Under section 8 (2) it is open to the Government to withhold such facts.
Because of the withholding of such facts the grounds in the order of detention could not be said to.
be vague or indefinite.
[580 C E] 575 (4) Notwithstanding the broad principles of the rule of law, equality and liberty of, the individual enshrined in the Constitution, it tolerates on account 1 the peculiar conditions prevailing, legislation in relation to preventive detention, which is a negation of the rule of law, equality and liberty.
But it is implicit in the Constitutional scheme that the Power to detain is not a power to publish, and the restrictions placed must, consistently with the effectiveness of detention, be minimal.
Since a detenu is not a convict he cannot be subjected to solitary confinement.
|
Appeal No. 1206 of 1966.
Appeal from the judgment and order dated, January 14, 1963 of the Punjab High Court in Letters Patent Appeal No. 36 D of 1962.
G. R. Rajagopaul, A. section Nanbiar and section P. Nayar, for the appellants.
R. K. Garg and section C. Agarwal, for the respondent.
550 The respondent was holding a permanent post in the Northern Railway.
He was a Trade Union worker.
On November 7, 1956 a charge sheet was served on him levelling two charges against him.
Under the first charge, he was accused of having been instrumental in compelling the air compressor being shut down at about 8.15 a.m. on May 31, 1956.
Under the second charge he was accused of having contravened the direction given by the General Manager, Northern Railway as per his letter No. 961/E/O(Evi) dated June 19, 1956 by addressing meetings with in the railway premises on June 23, 1956, June 25, 1956, July 24, 1956, July 25, 1956 and July 27, 1956.
On these charges he was called upon to show cause why he should not be removed from service under Rule 1708 of the Indian Railway Establishment Code Vol. 1 or punished with any lesser penalties specified in Rule 1702.
After receiving his explanation an enquiry committee consisting of three officers was appointed to enquire into the charges.
The said committee came to the conclusion that the first charge was not proved beyond all reasonable doubt but he was guilty of the second,charge.
The Disciplinary Authority i.e. the General Manager remitted the case back to the enquiry committee for submitting a fresh report after examining the witnesses mentioned in his order.
Even after examining those witnesses the enquiry committee adhered to its earlier conclusions.
After examining the reports of the enquiry committee, the General Manager as per his order of May 25, 1957 accepted its finding on the second charge but differing from its conclusion on the first charge tentatively came to the conclusion that the respondent was guilty of that charge as well.
As a result thereof he ordered the issue of 'a notice to the respondent to show cause why he should not be removed from service.
The respondent submitted his exPlanation to the show cause notice.
The General Manager did not accept his explanation and by his order of August 20, 1957 be ,directed that the respondent be removed from service.
The respondent challenged that decision before the High Court of Punjab by means of a writ petition under article 226 of the Constitution.
The single judge of the High Court who heard the petition opined that the General Manager was not right in holding on the material on record that the first charge is established and on the second charge he held that the General Manager 's direction as per his letter of June 19, 1956 is void as being violative of article 19(1) of the Constitution.
On appeal the appellate court upheld the conclusion of the learned single judge on the first charge but it was unable to accept his finding that the order of the General Manager of June 19, 1956 was violative of article 19(1) of the Constitution.
AR the same it affirmed the decision of the learned single judge with these observations "It is by now a generally recognised principle that where an order such as an order of detention or removal 551 from service is based on a number of grounds, and one or more of these grounds disappear it becomes difficult to uphold the order when it is not clear to what extent it was based on the ground found to be bad.
" The findings of the learned single judge as well as the judges of the appellate court were challenged before us by the appellant.
It was urged on its behalf that the finding of the General Manager on the first charge being a finding of fact, the same not having been held either not supported by any evidence.
or as perverse, it was not open to the High Court to review the evidence afresh and come to a conclusion of its own.
It was further urged on its behalf that the opinion of the Appellate Court that if one of the several charges on the basis of which a punishment is imposed is held to be unsustainable, the punishment imposed should be set aside as it is not known whether the authority in question would have imposed the impugned punishment without that charge having been established, does not represent the correct legal position as expounded by this Court.
The learned Counsel for the respondent not only supported the conclusions of the appellate court, he also strongly commended for our acceptance the finding of the learned single judge that General Manager 's direction contained in his letter of June 19, 1956 was violative of article 19(1) (a) to (c).
The questions that arise for decision in this appeal are (1) whether the High Court was within its jurisdiction in the exercise of its powers under article 226 of the Constitution to set aside the conclusion reached by the General Manager on the first charge, (2) whether the direction issued by the General Manager on June 19, 1956 is violative of article 19(1) a to (c) and (3) whether the appellate court was right in its view that if an order of removal is based on number of grounds and one or more of those grounds are found to be unsustainable, the order is liable to be struck down.
Now coming to the first charge, we may first set out the un disputed facts.
On May 31, 1956, the Union of which the respondent was the Vice President declared a token strike.
The strike in question was declared by the respondent and he took a leading part in it.
During the time of the strike the compressor was not worked.
The enquiry committee came to the conclusion and that conclusion was neither challenged before the High Court nor before this Court that the compressor driver must have started the compressor in the East Compressor House at 8 00 hrs.
and there must have been certain circumstances which made the driver to shut it off at 8 15 hrs.
The only question for decision is whether the respondent was responsible for shutting it off.
Two wit nesses namely Subrati, the compressor Driver and Rameshwar, his Assistant emphatically stated before the enquiry committee 552 that it was the respondent who led a group of strikers and compelled them to close down the compressor.
The enquiry committee felt that their evidence cannot be accepted at its face value as they were not able to name any other person in the group.
But the General Manager did not agree with the enquiry on that point.
He fully accepted: their evidence.
It was open to the General Manager to do so.
He was not bound by the conclusions reached by the enquiry committee, see Union of India vs H. C. Goel(1).
This is not a case where it can be said that the finding of the Disciplinary Authority is not supported by any evidence nor can it be said that no reasonable person could have reached such a finding.
Hence the conclusion reached by the Disciplinary Authority should prevail and the High Court in the exercise of its Certiorari jurisdiction could not have interfered with its conclusion, see Syed Yakoob vs K. section Radhakrishnan and Ors.(2).
It was next contended that in arriving at his conclusion on the first charge the General Manager had relied on the hearsay evidence given by De Mellow and hence his conclusion is vitiated.
The evidence of the witnesses examined during the enquiry is not before us.
Hence it is not possible to accept the contention that De Mellow 's evidence was hearsay.
In this view it is not necessary to go into the question whether hearsay evidence can be relied ow at all in an enquiry under article 311 and if so within what limits.
Some of the inferences drawn by the General Manager were objected to by the learned Counsel for the respondent.
They appear to be inferences of fact, evidently drawn from the material before him and as such cannot be properly objected to.
It Was open to him to draw those inferences.
For the reasons mentioned above, we hold that the$ High Court exceeded its powers in interfering with the finding of the General Manager on the first charge.
Before we take up for consideration point No. 2 formulated above, it would be convenient to deal with point No. 3.
It was not disputed before us that the first charge levelled against the respondent is a serious charge and it would have been appropriate for the General Manager to remove the respondent from service on the basis of his finding on that charge.
But we were told that we cannot assume that the General Manager would have inflicted that punishment solely on the basis of that charge and consequently we cannot sustain the punishment imposed if we hold that one of the two charges on the basis of which it was imposed is unsustainable.
This contention cannot be accepted in view of the decision of this Court in State of Orissa vs Bidyabhan Mohapatra(3) wherein it was held that if the order in an enquiry under article 311 can be supported on any finding as substantial mis (2)[1964] 5 S.C.R. 64.
(1) ; (3) [1962] Supp. 1 S.C.R. 648.
553 demeanour for which the punishment imposed can lawfully be unposed it is not for the Court to consider whether that ground alone would have ' weighed with the authority in imposing the punishment in question.
Now we come to the second charge.
In order to examine the contentions of Mr. Garg, the learned Counsel for the respondent relatingto that charge, it is necessary to set out the circular issued by theGeneral Manager on June 19, 1956.
That was a circular issuedto all the heads of the departments.
It reads : "It has been brought to notice that in a number of cases railway employees have held meetings inside railway premises such as inside workshops, inside stores depots and within office compounds.
It may be pointed out that this practice is extremely objectionable and has to be stopped forthwith.
AR staff may be warned that if any one of them is found organising or attending a meeting inside railway premises or at places of work, he will render himself liable to severe disciplinary action as such action on his part will amount to misconduct arising out of violation of administrative instructions.
Meetings of workers can be held on open grounds away ' from places of work with the permission of the railway authorities concerned if such open grounds fall within railway boundary.
You are to note these instructions very carefully and to ensure their strict compliance in future.
Please acknowledge receipt.
" The direction with which we are concerned in this appeal is that which prohibits the holding of meetings within the railway premises including open grounds forming part of those premises.
That direction does not deprive.
the workers any of the freedoms guaranteed to them under article
19(1).
It merely prohibits them from exercising any of them within the railway premises.
What is prohibited is the holding of meetings for any purpose within thethe railway premises.
The question is whether such a direction is violative of article 19(1) ? In the instant casewe are concerned with the meetings held outside the main time office and it was not denied that that place formed part of the railway premises.
It was strenuously urged on behalf of the respondent that the rights guaranteed under article 19(1) (a), (b) and (c) are inviolable and they cannot be interfered with excepting in accordance with sub articles
2, 3 and 4 of the said article According to Mr. Garg the railway workers have a right to assemble in any place they choose and give expression to their views so long as they do not disturb the work going on in the premises and that right is guaranteed to them under our Constitution.
554 It was not disputed that the Northern Railway is the owner of the premises in question.
The fact that the Indian Railways are State Undertakings does not affect their right to enjoy their properties in the same manner as any private individual may do subject only to such restrictions as the law or the usage may place on the.
Hence unless it is shown that either under law or because of some usage the railway servants have a right to hold their meetings in railway premises, we see no basis for objecting to the direction given by the General Manager.
There is no fundamental right for anyone to hold meetings in government premises.
If it is otherwise there is bound to be chaos in our offices.
The fact that those who work in a public office can go there does not confer on them the right of holding a meeting at that office even if it be the, most convenient place to do so.
It is true that the freedoms guaranteed under our Constitution are very valuable freedoms and this Court would resist abridging the ambit of those freedoms except to the extent permitted by the Constitution.
The fact that the citizens of this country have freedom of speech, freedom to assemble peaceably and freedom to form associations or unions does not mean that they can exercise those freedoms in whatever place they please.
The exercise of those freedoms will come to an end as soon as the 'right of some one else to hold his property intervenes.
Such a limitation is inherent in the exercise of those 'rights.
The validity of that limitation is not to be judged by the tests prescribed by Sub articles
(2) and (3) of article 19.
In other words the contents of the freedoms guaranteed under cls.
(a), (b) and (c), the only freedoms with which we are concerned in this appeal,.do not include the right to exercise them in the properties belonging to others.
If Mr. Garg is right in his contentions then a citizen of this country in the exercise of his right under cls.
(d) and (e) of article 19(1) could move about freely in a public office or even reside there unless there exists some law imposing reasonable restrictions on the exercise of those rights.
In support of his contention Mr. Garg strongly relied on the decisions of the Supreme Court of United States of America in Marsh vs Alabama(1) and Tucker vs State of Texas(2) Tucker 's case was decided on the basis of the rule laid down in Marsh 's case.
Hence it is not necessary to consider it separately.
In Marsh 's case the Supreme Court laid down that the constitutional ,guarantees of freedoms of press and of religion precludes the enforcement against one who undertook to distribute religious literature on a street of a company owned town, contrary to the wishes of the town 's management, of a state statute making it a crime to enter or remain on the premises of another after having been (1) 90, Law ed.
p. 265.
(2) 90, Law ecd.
p. 274.
555 warned not to, do so.
In order to appreciate this decision it is necessary to bear in mind the facts of the case.
The appellant thereinwas a Jehovahs Witness who came into the sidewalk of a privatetown situate near the post office and undertook to distribute religious literature.
In the store the corporation had posted a notice which read as follows: "This Is Private Property and Without Written Permission, No Street, or House Vendor, Agent or Solicitation of Any Kind Will Be Permitted." The appellant was warned that she should not distribute the literature without a permit and told that no permit would be issued to her.
She protested that the company rule could not be constitutionally applied so as to prohibit her from distributing religious writings. )When she was asked to leave the sidewalk and Chicka saw she declined.
The deputy sheriff arrested her and she was charged in the state court for violating the law.
The town in question is described in the judgment thus: "The town, a suburb of Mobile, Alabama,.
known as Chicka saw, is owned by the Gulf Ship building Corporation.
Except for that it has all the characteristics of any other American town.
The property consists of residential buildings, streets, a system of " sewers, a sewage disposal plant and a "business block on which business places are situated.
A deputy of the Mobile County Sheriff, paid by the company, serves as the town 's policeman.
Merchants and service establishments have rented the stores and business places on the business block and the United States uses one of the places as a post office from which six carriers deliver mail to the people of Chickasaw and the adjacent area.
The town and the surrounding neighborhood, which cannot be distinguished from the gulf property by anyone not familiar with the property lines, are thickly settled, and according to all indications the residents use the business block as their regular shopping center.
To do so, they now, as they have for many years, make use of a company owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post office.
Intersecting company owned roads at each end of the business block lead into a four lane public highway which runs parallel to the business block at a distance of thirty feet.
There is nothing to stop highway traffic from coming into the business block and upon arrival a traveller may make free use of the facilities available there.
In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish 556 them from any other town and shopping centre except the fact that the title to the property belongs to a private corporation.
" From the above description it is clear that the roads and sidewalks in that town had been dedicated for public use.
It is in that context Justice Black observed: "The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights,, become circumscribed by the statutory and constitutional rights of those who use it." The learned Judge further observed : "We do not think it makes, any significant constitutional difference as to the relationship between the rights of the owner and those of the public that here the State, instead of permitting the corporation to operate a highway, permitted it to use its property as a , town operate a 'business block ' in, the town and a street and sidewalk on that business block.
As we have heretofore stated, the town of Chickasaw does not function differently from any other town.
The "business block" serves as the community shopping centre and is freely accessible and open to the people in the area and those passing through.
The managers appointed by the corporation cannot curtail the liberty of press and religion of these people consistently with the purposes of the constitutional guarantees and a state statute, as the one here involved, which enforces such action by criminally punishing those who attempt to distribute religious literature clearly violates the First and Fourteenth Amendments to the Constitution.
" In our opinion the rule laid down in Marsh 's case does not apply to the facts of this case. 'Me premises with which we are concerned in this appeal unlike the roads and sidewalks of Chickasaw town were not open for use of the general public.
They were intended for certain specified public purposes.
They could not be used for any other purpose except with the permission of the concerned authority.
Neither the language of article 19(1) nor the purpose behind it lend support to the contentions of Mr. Garg.
On the other hand their acceptance might lead to the confusion in public offices.
Hence we are unable to accept them.
In the result the appeal is allowed and the writ petition missed but in the circumstances of the case we direct the parties to bear their own costs throughout.
P.K.P.S. Appeal allowed.
| IN-Abs | The respondent was a permanent employee of the Northern Railway and was served with a charge sheet in November, 1956, which levelled two charges against him.
He was accused of having been instrumental in compelling the shut down of an air compressor and, in contravention of a direction given by the General Manager, Northern Railway, on June 19, 1956, of having addressed a number of meetings within the Railway premises.
An enquiry committee after investigating the charges came to the ' conclusion that the respondent was not proved beyond all reasonable doubt but that the 'respondent was guilty of the second charge.
The General Manager, who was the disciplinary authority, after examining the report of the committee, accepted its findings on the second charge but differing from its conclusion on the first charge tentatively came to the conclusion that the respondent was guilty of that charge as well.
After the issue of a show cause notice to the respondent and the 'rejection of his explanation, the General Manager directed, by an order of August 20, 1957, that the respondent be removed from service.
The respondent challenged the order of his removal by a writ petition.
The petition was allowed and an appeal to a Division Bench was dismissed.
The questions for decision in the appeal to this Court were (i) whether the High Court was within its jurisdiction in the exercise of its powers under article 226 of the Constitution to set aside the conclusion reached by the General Manager on the first charge; (ii) whether the appellate court was right in its view that if an order of removal is based on number of grounds and one or more of those grounds are found to be unsustainable, the order is liable to be struck down; and (iii) whether the direction issued by the General Manager on June 19, 1956 was violative of article 19(1) (a) to (c) and (3).
It was contended on behalf of the appellant that the rights guaranteed under article 19(1) (a), (b) & (c) are inviolable and they cannot be interfered with except in accordance with sub articles 2, 3 & 4 of article 19; that the Railway workers had a right to assembly in any place they chose and could express their views so long they did not disturb the work going on in the premises.
HELD : Allowing the appeal and dismissing the writ petition : (i) The High Court exceeded its powers in interfering with the findings of the General Manager on the first charge.
It was open to the General Manager to accept the evidence which the, Enquiry Committee had rejected on the first charge and he was not bound by the conclusions reached by the corn 549 mittee.
On the facts in the present case it could not be said that the finding ofthe disciplinary authority was not supported by any evidence nor could it be said that no reasonable person could have reached such a finding.
Hence the conclusion reached by the disciplinary authority must prevail and the High Court in the exercise of its certiorari jurisdiction could not have interfered with its conclusion.
[552 A C] Union of India vs H. C. Goel, ; ; Syed Yakoob vs K. section Radhakrishnan & Ors.
, ; ; relied on.
(ii)There was no force in the contention that the punishment imposed could not be sustained if it was held that one of the two charges on the basis of which it was imposed, was unsustainable.
If the order in an enquiry under article 311 can be supported on any finding as substantial misdemeanor for which the punishment imposed can lawfully be impose it is not for the Court to consider whether that ground alone would have weighed with the authority in imposing the punishment in question [552 G] State of Orissa vs Bidyabhan Mohapatra, [1962] Suppl.
1 S.C.R. 648; followed.
(iii)The General Manager 's direction prohibiting the holding of meetings within the Railway premises was not violative of article 19(1).
The Northern Railway was the owner of the premises in question and was entitled to enjoy its property in the same manner as any private individual subject to only such restriction as the law or the usage, may place on them.
There is no 'fundamental right for any one to hold meetings in Government premises.
Freedom of speech, freedom, to assemble peacefully and the freedom to form Associations or Unions does not mean that these rights can be exercised by the citizens in whatever place they please.
The exercise of those freedoms will come to an end as soon as the right of some one else to hold his property intervenes.
Such a limitation is inherent in the exercise of those rights.
The validity of that limitation is not to be judged by the tests prescribed by Sub articles
(2) and (3) of article 19.
[554 D] Marsh vs Alabama, 90 Law Edn.
P. 265, Tucker vs State of Texas.
90 Law Edn.
p. 274); distinguished.
|
Appeals Nos. 890 to 892 of 1968.
Appeals by special leave from the judgment and order dated November 24, 1967 of the Allahabad High Court in Special Appeals Nos.
476 to 478 of 1965.
section T. Desai, H. K. Puri and B. N. Kirpal, for the appellant (in all the appeals).
Sukumar Mitra, section C. Manchanda, R. H. Dhebar, R. N. Sachthey and B. D. Sharma, for the respondent (in all the appeals).
From time to time the Company purchased and installed machi nery of the value of Rs. 75 lakhs for its factory.
In proceedings for assessment of income tax, the Company was allowed, in computing its income from business for the assessment years 1950 51, 1951 52 and 1952 53 "initial depreciation" aggregating to Rs. 15,91,51 1/ in respect of new machinery installed in the relevant previous years.
The Company was also allowed "normal depreciation I ' at the appropriate rates.
In the assessment year 1956 57 the aggregate of all depreciation allowances including "initial depreciation" exceeded the original cost of the machinery, but the Income tax Officer on the written down value of the machinery computed at Rs. 16,48,053/ allowed Rs. 2,59,236/ as normal depreciation.
In so computing the normal depreciation the Income tax Officer apparently lost sight of clause (c) of the proviso to section 10(2) (vi) of the Income tax Act, 1922.
Depreciation allowance was also allowed in the assessment years 1957 58 and 1958 59 as a percentage on the appropriate written down value in those years.
The Income tax Officer on November 20, 1964, issued notices of re assessment for the three years under section 148 of the Indian Income tax Act, 1961, which had replaced the Act of 1922.
The Company filed under protest fresh returns and objected to the issue of the notices of reassessment.
The Company also moved petitions in the High Court of Allahabad for writs quashing the three notices,.
contending inter alia, that the notices issued more than four years after the expiry of the years of assessment were barred.
At the hearing of the petitions counsel for the Company conceded that under proviso (c) to section 10 (2) (vi) of the Indian Income tax Act, 1922, in the form in which it stood in the assessment year 1956 57 and thereafter, excessive depreciation was in fact allowed to the Company.
It was also common ground that by virtue of cl.
(c) to Explana 594 tion 1 of section 147 of the Income tax Act, 1961, income having been made the subject matter of excessive relief under the Indian Income tax Act, 1922, the income chargeable to tax had escaped assessment.
But it was urged that the income had not escaped assessment "by reason of the omission or failure on the part of the assessee to disclose fully and truly, all material facts necessary for assessment of that year", for (1) the Indian Income tax Art, 1922, and the forms of returns prescribed under the rules did not require the, assessee to disclose that initial depreciation had been allowed in the earlier years; and (2) that in any event the Income tax Officer knew that initial depreciation had been allowed to the Company in the years 1950 51, 1951 52 and 1952 53.
R. section Pathak, J., who heard the petitions held that the Company committed no error in failing to take into account the initial depreciation while entering the written down value in column (2) of Part V of the return.
But the learned Judge held that it was.
incumbent upon the Company to inform the Income tax Officer of all material facts necessary to make out its claim to depreciation and it was not open to the Company to set out only those facts which exaggerated its claim : the Company was bound to disclose all material facts which went to show what the true amount of the allowance to which it was entitled.
The learned Judge accordingly rejected the petitions.
The order passed by Pathak, J., was confirmed in appeal under the Letters Patent.
By cl.
(vi) of sub section
(2) of section 10 of the Income tax Act, 1922, as amended by Act 8 of 1946, in computing the profits or gains.
of business, profession or vocation carried on by him, an assessee was entitled to allowances not only of normal depreciation but also initial depreciation at the rates set out in cls.
(a), (b) & (c) in respect of buildings which had been newly erected, or the machinery or plant being new had been installed after the 3 1st day of March, 1945.
It was, however, expressly enacted that the initial depreciation was not deductible in determining the written down value for the purpose of cl.
Allowance for initial depreciation was therefore not to be taken into account in determining the written down value for determining the normal depreciation.
But on that account proviso (c) to section 10 (2) (vi) was not modified.
The written down value of the machinery of the, Company in the year 1956 57 was Rs. 16,48,053, but 'for the application of cl.
(c) of the proviso to section 10(2) (vi) the initial depreciation allowed in the years 1950 51, 1951 52 and 1952 53 had to be taken into account.
The Income tax Officer inadvertently failed to take into account the initial depreciation, and the Company was allowed normal depreciation in the year 1956 57 in excess of the amount permissible under proviso (c) to section 10(2) (vi).
The 595 Income tax Officer later sought to rectify the error and to bring to tax the income which had escaped tax.
Before R. section Pathak, I., it was contended that the definition of written down value" in section 10(5) (b) applies wherever the expression is used in section 10(2) and on that account the Company in seting out the written down value in column (2) of Part V of the return was obliged to take into account all the depreciation actually allowed to it including the initial depreciation and as the Company computed the written down value only by deducting the normal depreciation and not the initial depreciation, it failed to ' disclose fully and truly all material facts necessary for the purpose of assessment.
This argument was not accepted by the learned Judge.
But he was still of the opinion that the Act imposed upon the Company a duty to disclose all material facts which went to show the true amount of the allowances to which it was entitled, and the Company by failing to disclose that initial depreciation had been allowed in three earlier years, the Company had failed to disclose fully and truly all material facts necessary for assessment, and on that account section 147 ( 1 )(a) was attracted and the, notice was properly issued.
In appeal, the High Court observed that the "only question for consideration" was whether the Income tax Officer was justified in issuing a notice under section 148 of the Income tax Act, 1961.
After stating that there was apparently "a mistake and error on the side of the Company as well as the Income tax Officer", the, Court observed that the Income tax Officer could reasonably comer to the conclusion that it was due to the omission and failure on the part of the assessee in disclosing fully and truly all material facts necessary for the assessment that the error was committed by the Income tax Officer as a result of which some income had es caped assessment.
The High Court then observed : "It is difficult to hold that the Income tax Officer while issuing the notices under Act could not reasonably hold the assessee was responsible for assessment.", and held that the notices were not Section 34(1) (a) of the Income tax Act, 1922, provided: " (1) if (a) the Income tax Officer has reason to believe that by reason of the omission or failure on the part of an assessee to make a return of his income under section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, 596 income, profits or, gains chargeable to income tax have escaped assessment for that year, or have been under assessed, or assessed at too low a rate, or have been made the subject of excessive relief under the Act, or excessive loss or depreciation allowance has been computed, or he may proceed to assess or re assess such income, profits or gains or re compute the loss or depreciation allowance; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub section :" Section 34 confers jurisdiction upon the Income tax Officer to 'issue a notice in respect of the assessment beyond the period of four years, but within a period of eight years, from the end.
of the relevant year, if two conditions exist (1) that the Income tax Officer has reason to believe that income, profits or gains chargeable to income tax had been under assessed; and (2) that he has also reason to believe that such "under. assessment" had occurred by reason of either (i) omission or failure on the part of an assessee to make a return of his income under section 22, or (ii) omission or failure on the part of an assessee to disclose fully and truly all material facts necessary for his assessment for that year.
These ,conditions are cumulative and precedent to the exercise of jurisdiction to issue a notice of re assessment : Calcutta Discount Co. Ltd. vs Income tax Officer, Companies District 1, Calcutta and Anr.
(1) In deciding the appeal, the High Court held that the Income tax Officer did in fact decide that the income had escaped assessment, but the High Court did not consider whether the income escaped assessment by reason of omission or failure on the part of the Company to disclose fully and truly all material facts necessary.
for assessment.
The judgment of the High Court is set aside and the case is remanded for determination of the question whether by reason of the omission or failure on the part of the Company to disclose fully and truly all material facts necessary for assessment of the Company for the three years in question, any income, profits or gains chargeable to income tax have escaped assessment or the ,Company has been given excessive depreciation allowance in computing its income.
Costs of these appeals will be costs in the High Court.
One hearing fee.
Appeal allowed and case remanded.
| IN-Abs | The appellant Company, which was incorporated in 1946, purchased and installed, machinery from time to time valued at Rs. 75 lacs.
In respect of its assessment to, income tax for certain years, it was allowed 'initial depreciation ' on new machinery 'installed in the relevant previous years and was also allowed 'normal depreciation ' at appropriate rates.
In the assessment year 1956 57 the aggregate of all depreciation allowances including 'initial depreciation ' exceeded the original cost of machinery but in respect of that year as well as for the assessment years 1957 58 and 1958 59, the Income Tax Officer failed to deduct 'initial depreciation and the company was allowed 'normal depreciation ' in, excess of the amount permissible under proviso (c) to section 10(2)(vi) of the Income Tax Act, 1922.
On November 20, 1964, the Income Tax Officer issued notices of reassessment for the three years under section 148 of the Income Tax Act,.
The Company filed returns under protest and thereafter challenged the notices of re assessment by a writ petition under article 226 of the Constitution.
It was common ground that excessive depreciation was in fact allowed to the Company and that certain income escaped assessment, but it was contended on behalf of the appellant that the income did not escape assessment "by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment of that year".
A Single Judge of the High Court held that while the Company committed no error in failing to take into account the 'initial depreciation ' while entering the written down value in its return, it was not open to the Company to set out only those facts which exaggerated its claim.
He therefore rejected the petition.
In dismissing a Letters Patent appeal, the High Court took the view that there was apparently "a mistake and error on the side of the Company as well as the Income Tax Officer" and that the Income Tax Officer could reasonably come to the conclusion that it was due to the omission and failure on the part of the assessee in disclosing fully and truly all material facts necessary for the assessment that the error was committed by the Income Tax Officer as a result of Which some income had escaped assessment.
On, an appeal, HELD : The judgment of the High Court must be set aside and the case remanded.
Although the High Court held that the Income Tax Officer had decided that certain income had escaped assessment, it did not consider whether the income escaped assessment by reason of omission or failure on the part of the Company to disclose fully and truly all material facts necessary for assessment, within the meaning of section 34 of the 1922 Act.
Calcutta Discount Co. Ltd. vs Income Tax officer, Companies District 1, Calcutta and Anr., ; referred to.
|
ns Nos. 295, 362, 365, 443 and 444 of 1968.
Petitions under article 32 of the Constitution of India for the enforcement of the fundamental rights.
H. R. Gokhale and Naunit Lal, for the petitioners (in W. P. No. 295 of 1968).
H. R. Gokhale, Jagjit Singh Chawla, section K. Mehta and K. L. Mehta, for the petitioner (in W.P. No. 362 of 1968).
R. K. P. Shankar Dass Bishambar Lal and H. K. Puri, for the petitioners (in W.P. No. 365 of 1968).
450 Jagjit Singh Chawla, section K. Mehta and K. L. Mehta, for the petitioners (in W.P. Nos. 443 and 444 of 1968).
Niren De, Attorney General, V. C. Mahajan and R. N. Sach they, for the respondents (in W.P. Nos. 295 and 362 of 1968).
V. C. Mahajan and R. N. Sachthey, for the respondents (in W.P. No. 365 of 1968).
R. N. Sachthey, for the respondents (in W.P. Nos. 443 and 444 of 1968).
The Judgment of the Court was delivered by Shah, J.
Cattle fairs are held for the last many decades in different parts of the territory of the State of Punjab, by local authorities and individual owners of land.
The person or authority holding.
the cattle fair provides facilities to cattle owners for board and lodging and for stabling their cattle generally in consideration of charges including a percentage on the price realised by sale or purchase of cattle.
The Governor of Punjab with a view to control and regulate cattle fairs promulgated Ordinance No. 14 of 1967 on November 4, 1967, declaring a monopoly in the State of Punjab to hold cattle fairs and prohibiting all local authorities and individuals from holding cattle fairs "at any place in the State".
This Ordinance was replaced by the Punjab Cattle Fairs (Regulation) Act 6 of 1968.
By section 3 of the Act it is provided : "(1) The right to hold a cattle fair at any place in the State of, Punjab and to control, manage, and regulate such fair shall vest exclusively in the State Government and shall be exercisable by it, in accordance with the provisions of this Act and the rules made thereunder, through such persons or authorities as it may deem fit.
(2) Notwithstanding anything contained in any other law for the time being in force and save as provided by sub section (1), it shall be unlawful for any person or local authority to hold, control, manage or regulate a cattle fair at any place in the State of Punjab.
" The expression "Cattle" is defined by section 2(b) as including a buffalo, camel, cow, donkey, elephant, goat, horse mule, sheep and their young ones and such other animals as the State Government may by notification specify.
By section 4(1) authority is vested in the State Government to appoint Fair Officers for holding, controlling, managing and regulating tattle fairs in a district.
By sub section
(2) the Fair Officer is made responsible for making arrangements in respect of all matters connected with the holding of a cattle fair and its proper control, management and regulation 451 and has also the power of (i) defining the fair area; (ii) reservation of sites or places for latrines, urinals, baths, shops, exhibitions, shows, demonstrations, foot baths for animals, water supply for drinking purposes, shelters, green and dry fodder, entertainment and similar other purposes necessary in connection with the cattle fair; (iii) allotment of sites temporarily for commercial or other purposes in connection with the cattle fair, authorisation of raising of structures on such sites, and fixation of rents for such sites in the prescribed manner; (iv) arrangements for watch and ward, lighting, medical first aid, veterinary aid, sanitation, tentage and other facilities as may be necessary in connection with the cattle fair; and (v) construction of temporary offices for the purpose of collecting taxes and fees imposed and levied in connection with the cattle fair.
The expression "fair area" is defined in section 2 (d) as meaning "such area within a district as may be specified by a fair officer for the purpose of holding a cattle fair".
By section 5 power is conferred upon the State Government to impose in a fair area during the continuance of a cattle fair, tolls on vehicles entering such area for business purposes and octroi duty on goods brought for sale within such, area.
Jurisdiction of the local authorities to levy taxes and fees in any fair area in connection with the fair is excluded by section 6.
By section 8 it is provided that no person shall sell cattle at a cattle fair unless the has obtained a registration certificate in respect of cattle to be sold.
Section 9 provides for licensing of brokers.
By section 15 the State Government is authorised to direct the Panchayat Samiti or Municipal Committee, in whose jurisdiction the fair is to be held, to deposit in the Cattle Fair Fund the prescribed amount, not exceeding one thousand rupees, to cover the initial expenses of the fair and the local authority so directed is enjoined to comply with the direction.
Section 16 provides for the setting up of a Cattle Fair Fund in which all fees, rent or other sums of money (not being tolls and taxes) received or realized under the provisions of the Act or the rules made thereunder, and all donations or grants made to the Fund by the State Government, a local authority or any other person are to be credited.
By section 18 penalties are prescribed for contravention of the provisions of sub section
(2) of section 3.
Power is conferred by section 21 to make regulations to provide against the outbreak or spread of fire and for certain other matters.
By section 22 the State Government is authorised to make rules for carrying out the Purposes of the Act.
The Act, however, as originally enacted contained no definition of the expression "cattle fair".
Validity of the Punjab Cattle Fairs (Regulation) Act, 1967 was challenged in a group of petitions moved before the High Court of Punjab by persons interested in holding cattle fairs: Mohinder Singh Sawhney vs State of Punjab and Others(1) Before the High Court one of the contentions raised by the (1) A.I.R. [1968] Punjab 391.
452 petitioners was that the provisions of the Act were "Vague and ambiguous", and on that account the Act.
was ultra vires.
The Court accepted that contention.
The Court observed that there was a distinction between a "cattle market" and a "cattle fair ' and since no definition of "cattle fair" was supplied by the Act it was left to the executive authorities to determine what a "cattle fair" was and on that account "the infirmity went to the root of the matter, and the Act was liable to be struck down in its entirely on the ground of vagueness, even if some of its provisions were unexceptionable in themselves".
The State Legislature then enacted the Punjab Cattle Fairs (Regulation) Amendment Act 18 of 1968 which, introduced by section 2(bb) a definition of the expression "cattle fair" as me "a gathering of more than twenty five persons for the purpose of general sale or purchase of cattle".
Fair Officers were appointed by the State Government and they issued notifications.
declaring certain areas as "fair areas".
A number of petitions were again moved in the High Court of Punjab for an order declaring invalid the Art as amended.
The High Court of Punjab dismissed the petitions, upholding the validity of the Act: Kehar Singh vs The State of Punjab & Another(1).
The Court in that case held that the definition of "cattle fair" was not intended to bring within its compass sales by private individuals outside fair areas: it was intended only to apply where in general, people assemble at some place for the purpose of buying and selling cattle and the number of persons exceeds twenty five, and that Act 6.
of 1968 as amended by Act 18 of 1968 "does not contravene the provisions of articles 19(1)(f) & (g) of the Constitution".
Certain persons interested in conducting cattle fairs have filed writ petitions in this Court.
Arguments which are common in all the petitions may first be considered.
We are unable to accept the argument that since the High Court of Punjab by their judgment in Mohinder Singh Sawhney 's case (2 ) struck down the Act, Act 6 of 1968 had ceased to have ,any existence in law, 'and that, in any event, assuming that the judgment of the Punjab High Court in Mohinder Singh Sawhney 'section case (2 ) did not make the Act non existent, as between the parties in whose favour the order was passed in the earlier writ petitions, the order operated as res judicata, and on that account the Act could not be enforced without re enactment.
The High Court of Punjab in Mohinder Singh Sawhney 's case(2) (1) (2) A.I.R. [1968] Punjab 391. 453 ". in our opinion the petitions must succeed on the ground that the legislation is vague, uncertain and ambiguous.", and also (at p. 394) that . ". . as the infirmity of vagueness goes to the root of the matter, legislative enactment has to be struck down as a whole even if some of its provisions are un exceptionable in themselves.
" But the rule that an Act of a competent legislature may be "struck down" by the Courts on the ground of vagueness is alien to our Constitutional system.
The Legislature of the State of Punjab, was competent to enact legislation in respect of "fairs" vide entry 28 of List 11 of the Seventh Schedule to the Constitution.
A law may be declared invalid by the superior Courts in India if the legislature has no power to enact the law or that the law violates any of the fundamental rights guaranteed in Part III of the Constitution or is inconsistent with any constitutional provision, but not on the ground that it is vague.
It is true that in Claude C. Connally vs General Construction Company(1) it was held by the Supreme Court of the United States of America that "A statute which either forbids or requires the doing of an act in terms so, vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." But the rule enunciated by the American Courts has no application under our Constitutional set up.
The rule is regarded as an essential of the "due process clauses" incorporated in the American Constitution by the 5th & the 14th Amendments.
The Courts in India have no authority to declare a statute invalid on the ground that it violates the "due process of law".
Under our Constitution, the test of due process of law cannot be applied to statutes enacted by the Parliament or the State legislatures.
This Court has definitely ruled that the doctrine of "due process of law" has no place in our Constitutional system: A. K. Gopaian vs The State of Madras(2).
Kania, C.J., observed (at p. 120).
"There is considerable authority for the statement that the Courts are not at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution but not expressed in words. .
it is only in express constitutional provisions limiting legislative power and controlling the temporary will of a majority by a permanent and paramount law settled by the deliberate wisdom of the nation that one (1) 70 L. Edn. 322.
(2) ; 454 can find a safe and solid ground for the authority of Courts of Justice to declare void any legislative enactment.
" The order made by the High Court in Mohinder Singh Sawhney 's case(1) striking down the Act was passed on the assumption that the validity of the Act was liable to be adjudged by the test of "due process of law".
The Court was plainly in error in so assuming.
We are also unable to hold that the previous decision operates as res judicata even in favour of the petitioners in whose petitions an order was made by the High Court in the first group ,of petitions.
The effect of that decision was only that the Act was in law, non existent, so long as there was no definition of the expression "cattle fair" in the Act.
That defect has been remedied by the Punjab Act 18 of 1968.
We may hasten to observe, that we are unable to agree that the Act as originally enacted was unenforceable even on the ' ground of vagueness.
It is true that the expression "cattle fair" was not defined in the Act.
The Legislature, when it did not furnish the definition of the expression "cattle fair" must be deemed to have used the expression in its ordinary signification, as meaning, a periodical concourse of buyers and sellers in a place generally for sale and purchase of cattle at times or on occasions ,ordained by custom.
We agree with the High Court that by enacting the Act the State was not attempting to prevent all transactions for sale and purchase of cattle.
The State took upon itself by the Act a monopoly of conducting fairs, but it did not thereby seek to monopolise all transactions of sale and purchase in cattle.
This is now made clear the definition of "cattle fair" in section 2(bb).
A law which vests in the State a monopoly to carry on a certain trade or business to the extent that it has direct relation to the creation of the monopoly, is not open to challenge on the ground of violation of the freedom guaranteed by article 19(1) (g).
As pointed out by this Court in Akadasi Padhan V. State of Orissa (2) (at p. 707) "A law relating to ' a State Monopoly Cannot, in the context [of article 19 ( 1 ) (g) ] include all the provisions contained in the said law whether they have direct relation with the creation of the monopoly or not.
expression should be construed to mean the law relating to the monopoly in its absolutely essential features.
If a law is passed creating a State monopoly, the Court should enquire what are the provisions of the said law which are basically and essentially necessary for creating the (1) A.l.
R. [1968] Punjab 391 (2) [1963] Supp.
2 S.C.R. 691.
455 State monopoly.
It is only those essential and basic provisions which are protected by the latter part of article 19(6).
If there are other provisions made by the Act which are subsidiary, incidental or helpful to the operation of the monopoly, they do not fall under the said part and their validity must be judged under.
the first part of article 19(6).
In other words, the effect of the amendment made in article 19(6) is to protect the law relating to the creation of monopoly and that means that it is only the provisions of the law which are integrally and essentially connected with the creation of the monopoly that are protected.
The rest of the provisions which may be incidental do not fall under the latter part of article 19(6) and would inevitably have to satisfy the test of the first part of article 19(6).
" The provisions of the Act which seek to monopolise for the State the, right to carry on cattle fairs are protected against the challenge that they put an unreasonable restriction upon persons carrying on the occupation of holding cattle fairs.
What is implicit in the grant of a monopoly to the State is expressly enacted in section 3(2) that no other person or authority may conduct a cattle fair at any place in the State of Punjab.
But the restriction operates only in respect of cattle fairs and not other trades or occupations relating to dealings in cattle.
The Act is restricted in its scope: the prohibition imposed upon all persons and authorities restraining them from holding, controlling managing and regulating cattle fairs at any place in the State of Punjab extend only to cattle fairs strictly so called, and not to cattle markets.
The be monopoly declared by the Act does not invest the State with the monopoly to conduct cattle markets, i.e., places where the business of sale or purchase is regularly conducted by private parties and not as a fair.
Any attempt made by the Officers of the State claiming to exercise authority under the Act to prohibit cattle markets is without authority of law.
The Act also does not invest the State with authority to de clare private property of an individual or of a local authority, a fair area.
Section 4(2).
enables the Fair Officer to define a fair area, to reserve sites or places for certain facilities, to make temporary allotment for commercial and other purposes and to arrange for watch and ward and for construction of temporary offices.
The Cattle Fair Officer is not thereby authorised to hold fairs on lands not belonging to the State.
In defining a "fair area" and in making reservation, allotment, construction and arrangements of the nature mentioned in cls.
(i) to (v) of sub section
(2) of section 4 the Cattle Fair Officer cannot trespass upon private property.
It is implicit in the provisions of the Act that the State will hold cattle fairs on its own lands and not on private lands.
456 The words used in section 4 are wide and may be capable of the interpretation that the right to hold, control, manage and regulate a cattle fair at any place in the State of Punjab under section 3 (1 ) authorises the State to hold, control, manage and regulate fairs in all places including private lands.
But it would be reasonable to interpret the Act, so as not to authorise violation of the fundamental rights guaranteed by articles 19 and 31 of the Constitution.
It is implicit in the provisions of sections 3 & 4 of the Act that the monopoly acquired by the State to hold and manage cattle fairs may be held on property belonging to the State and does not extend to the property of local authorities or private owners.
The contention that the provisions of the Act, and especially the definition of "cattle fair" in section 2(bb), impose unreasonable restrictions upon the fundamental rights guaranteed under article 19(1) (b) & (d) has, in our judgment, no substance.
The definition of cattle fair in section (bb) does not infringe the right of citizens under article 19(1)(b) to assemble peaceably and without arms, and the right under article 1 9 ( 1 ) (d) to move freely throughout the territory of India.
By the definition clause concourse of twenty five persons is not prohibited: the Act does not place restrictions upon the freedom of assembly or of free movement either under cl.
(b) or cl.
(d) of article 19(1).
The Act only prohibits an individual or local authority from arranging a gathering of more than twenty five persons for the purpose specified in the definition of "cattle fair".
The restriction for the purpose of making the monopoly effective must be regarded as reasonable within the meaning of cls.
(3) & (5) of article 19.
By imposing restrictions upon the right to hold a fair, the citizens are not deprived of their property, and the freedom guaranteed by 'article 19(1)(f) is not infringed.
The primary object of the Act is to give a monopoly to the State to hold cattle fairs.
As a necessary concomitant of that monopoly, holding of cattle fairs by local authorities and individuals is prohibited.
The prohibition flows directly from the assumption of monopoly by the State and falls within the terms of At. 19 (6) of the Constitution.
It is a provision of the law creating monopoly "basically and essentially necessary" for creating the State monopoly to prevent other persons from conducting the same business.
Our attention was invited to the decision of this Court in State of Bihar vs Rameshwar Pratap Narain Singh and Others(1) and to a decision of the Madras High Court in Mandivil Vania Pudukudi Ramunni Kurup and Others vs Panchayat Board, Badagara and Others(2 ) in support of the plea that a right to hold a fair is property.
But those cases have no bearing on the question arising in these petitions.
A law which creates a monopoly to (1) (2) A.I.R. [1954] Mad.
457 carry on a business in the State and thereby deprives the citizens of, the right to carry on that business by virtue of article 19(6) is not open to challenge on the ground that it infringes the Fundamental right guaranteed by article 19(1) (g) : The law win not also be exposed to attack on the ground that the right to carry on business is property, for the validity of restrictions on the right to carry on occupation, trade or business, or to practise any profession must be adjudged only in the light of article 19(6).
In any event the presumption of reasonableness of a statute creating a monopoly in the State may come to aid not only in respect of the claim to enforce the right under article 19(1)(g) but under article 19(1)(f) as well.
Section 15 which authorises the State to call upon a Pancha yat Samiti of a Municipal Committee, within whose jurisdiction the fair is to be held to deposit in the Cattle Fair Fund the prescribed amount, not exceeding one thousand rupees to cover the initial expenses of the fair and compelling the local authority to abide by the directions, is invalid.
It is clearly a provision for deprivation of property.
Reasonableness of such a provision was not set up either in the affidavit or in the arguments before us.
It is true that under section 17 (d) out of the Cattle Fair Fund the amount which has been recovered from a local authority may be reimbursed, but the provision authorising the State to call upon a local authority to pay a sum of money towards the Cattle Fair Fund is, in our judgment, unreasonable and must be declared invalid.
The learned Attomey General appearing on behalf of the State of Punjab did not seek to support the provision.
To sum up, the power which the State Government may exercise to declare a fair area and to make provision for reservation of sites, allotment of sites temporarily for commercial or other purposes, and to arrange for watch and ward and to construct temporary offices may be exercised only on lands belonging to the State.
No such power may be exercised in respect of lands owned by local.
authorities or individuals.
The monopoly which is acquired by the State by section 3 is a monopoly to hold, control, manage and regulate a fair and not a cattle market business.
An attempt to prevent persons from conducting the business of cattle.
markets and from holding, controlling, managing and regulating cattle markets is unauthorised, for by section 3 private individuals, local authorities and associations incorporated or not are prohibited only from holding cattle fairs and not cattle markets.
In the light of these principles we proceed to examine the claims made in the five petitions.
The Fair Officers have not made any declaration of fair areas which include the lands of the petitioners in Writ Petitions Nos.
458 362, 443 & 444 of 1968.
In respect of the lands of the petitioners in Writ Petitions Nos. 295 and 365 of 1968 a notification defining a fair area has been made.
Writ Petition No. 295 of 1968 This petition is filed by the Municipal Committee, Amritsar.
By letter dated August 26, 1968, the Deputy Commissioner, Amritsar, informed the Municipal Committee that a cattle fair was intended to be held as scheduled on the "Cattle Fair Ground (Mal Mandi)", under the management of the District Fair Officer, and the Municipal Committee was required to arrange to supply water and electricity, to make suitable sanitary arrangements, to deposit the income from Baisakhi Cattle Fair in Government Treasury in Cattle Fair Fund and to deliver the record in that behalf to the Fair Officer.
The Section Officer, District Amritsar, also served an order, purported to be made under section 4 (2) (i) read with section 2 (d) of the Punjab Cattle Fairs (Regulation) Act, 1967, specifying the fair area, for the purpose of con trolling, managing, regulating and holding the Cattle Fair from October 16, 1968 to October 27, 1968, at Ram Talui Ki Mandi described as "2 Kilometres from the main building situated in Cattle Fair Ground at Ramtabi ' (Mal Mandi) Amritsar".
A Municipal Committee is not, according to the decisions of this Court, a "citizen" within the meaning of article 19.
The Municipal Committee is, therefore, not entitled to claim protection of.
any of the fundamental rights under article 19.
But the State is incompetent to declare land belonging to the Municipal Committee as falling within the fair area, and to take possession of that land in exercise of the power conferred by the Act, without providing for payment of compensation guaranteed by article 31(2).
The Municipal Committee is by order of the Fair Officer deprived of its property for the duration of the fair.
The Act does not authorise the holding of cattle fairs on the land of local authorities, individuals or associations.
A direction to make Municipal property available for holding a cattle fair by the State is a threat to requisition municipal property without authority of law and without payment of compensation, and must be deemed unauthorised.
Section 23 of the Act which gives the provisions of the Act a paramount operation, notwithstanding anything inconsistent therewith contained in any other law for the time being in force will not supersede a constitutional guarantee.
It was argued on behalf of the State that by the order only directions to control, manage and regulate the fair held on behalf of the Municipal Committee were intended to be given.
But that is not the effect of the order passed by the Deputy Commissioner.
The Deputy Commissioner informed the Municipal Committee that possession of its land should be handed over so that the State 459 may, be able to hold the fair under the provisions of the Punjab Cattle Fairs (Regulation) Act, 1967.
Section 3(1) is intended only to provide for a monopoly in the State to hold cattle fairs.
and to control, manage and regulate such fairs.
The demand.
made by the Fair Officer asking the Municipal Committee to supply water, electricity and to make sanitary arrangements and make the staff, articles.
and offices of the Municipal Committee available to the Fair Officer is not warranted by any provision of the Act.
The notification issued by the Fair Officer defining the fair area.
inclusive of the land of Mat Mandi is, therefore, unauthorised.
The demand made by the Fair Officer for assistance of the "staff, articles and offices of the Municipality" for holding the fair and ' the demand for supply of 'water and electricity and making suit .
able sanitary arrangements is also uncalled for and unauthorised.
The directions must, therefore, be declared invalid.
Writ Petition No. 362 of 1968 The petitioner is Sardara Singh.
He claims that he is in lawful possession of a piece of land situated in village Hussainpur, Tahsil and District Rupar (Punjab), and that for the last ten years he holds a cattle market on that piece of land from the first to the fourth of every month.
He also asserted that he has been holding cattle markets on the lands, in his lawful possession at Kurali, Anandpur Saheb, Marunda (District Rupar) within the State of Punjab.
According to the petitioner, for the purpose of holding cattle markets on the lands.in his occupation at Hussainpur, the petitioner had constructed a well for providing water to.
the cattle, with sheds, and mangers.
He further claimed that he provides chaff cutters, tents, charpais and all other amenities which are essential for the cattle and the merchants.
It appears from the averments made by the petitioner that he is holding cattle fairs.
No declaration was made defining any fair area which included ' the lands of the petitioner.
The State, for reasons already set out, is not entitled to hold a cattle fair on the land in the occupation of the petitioner without providing for compensation as guaranteed under article 31(2).
But on that account the petitioner is not entitled to hold a cattle fair even on his own lands.
Writ Petition No. 365 of 1968 The petitioner is Jagtar Singh.
He claims that he has obtained for the period April 1, 1968 to March 31, 1969, from the Municipal Committee, Amritsar, a piece of land on lease called the Ahata near the."Butcher Khana" known as "Adda BakarMandi".
The land is used for an enclosure for sheep and goats brought for sale.
The petitioner states that he has constructed near the Butcher Khana ten kothas around a vacant.
piece of land for enclosure of goats and sheep brought by prospective sellers and 460 has also constructed some rooms where he provides board and lodging to the merchants who come to Adda Bakar Mandi in connection with their business.
He has set out in his petition the manner in which the business is carried on and the charges made by him.
It may be sufficient to mention that the petitioner claims that he conducts a cattle market and not a cattle fair.
The Fair Officer issued a declaration under section 4(2)(i) read with section 2(d) of the Punjab Cattle Fairs (Regulation ) Act, 1967, specifying "2 Kilometres from the main building situated in the Cattle Fair Ground at Bakar Mandi outside Lahori Gate" as a fair area for the purpose of controlling, managing, regulating 'and holding the Cattle Fair, Amritsar, at Bakar Mandi outside Lahori Gate.
The Fair Officer also addressed a letter to the petitioner dated October 25, 1968, informing him that the Punjab Government had exclusively undertaken the work of holding, managing, controlling and supervising the Cattle Fairs under section 3 of the Punjab Cattle Fairs (Regulation) Act, 1967, and that the petitioner who was carrying on the business of holding a cattle fair should stop running the Bakar Mandi.
The Fair Officer informed the petitioner that the ground of the Bakar Mandi had already been specified as fair area by him and on that account the petitioner was prohibited to work as commission agent, unless he got a broker 's licence under, the Act.
The land in, respect of which the declaration has been made as fair area.
is the land of the Municipal Committee, of which under a licence or a lease the petitioner is in possession.
For reasons which we have already set out, the Government of Punjab is not competent to declare the land of the Bakar Mandi a fair area.
The notification declaring the Bakar Mandi as fair area is, therefore, invalid.
By section 3 of the Act the cattle fairs can be held in the State of Punjab only by the State and by no other person.
But prima facie the business carried on by the petitioner is in the nature of a market for sale of sheep and goats brought by intending sellers for slaughter.
Such a place cannot be called a fair.
It was urged on behalf of the State that since the petitioner was collecting brokerage and carrying on the business of a broker, he was bound to take out a licence under section 9 of the Act.
But a person carrying on his business within the fair area lawfully declared is required to obtain a licence, but not in respect of his business in a cattle market.
The petition filed by Jagtar Singh must, therefore, be allowed and the order declaring the petitioner 's land as fair area and the intimation calling upon him to stop his business of cattle market is unauthorised.
461 Writ Petition Nos. 443 & 444 of 1968 The petitioner in these petitions are Narain Singh and another.
They claim that they are in ,legal possession" of different pieces of land taken oil lease within the State of Punjab at Khanna, Doraha (District Ludhiana), sunam (District Sangrur) and also in other Districts where they have been holding cattle markets for the last many years.
They claimed that they provide the Prospective sellers and purchasers facilities like cots for resting, drinking water, sheds,, mangers, chaff cutters, tents, light, chowkidars, dry fodder and all other essential amenities.
They further claimed that the intending vendors come to their lands with cattle and sell the, cattle, bargains being struck.
through brokers in the market arranged by the Petitioners on those pieces of land.
It is not clear from the averments made, in the petitions whether the so called market is of the nature of a fair.
the Petitioners are prohibited from holding or conducting a cattle fair, since the enactment of Punjab Act 6 of 1968.
The lands belonging to the petitioners have not been included in a cattle fair area under the notification issued by the Fair Officer.
Without deciding the question whether the business carried on by the petitioners is in the nature of a fair or a market, we declare that the petitioners are not entitled to carry on the business of a cattle fair and the, relief claimed by them in Paragraph 21(b) cannot be granted.
We deem it necessary to add that the petitioners are not prohibited from carrying on the business of cattle market on their own lands.
There will be no order as to costs in these petitions.
| IN-Abs | In the State of Punjab local authorities and individual owners of land were holding cattle fairs.
The Punjab Cattle Fairs (Regulation) Art, 1967, was passed by the State Legislature in exercise of powers under entry 28 of List II of VII Schedule to the Constitution, declaring a monopoly in the State to hold cattle fairs and prohibiting all local authorities and individuals from holding cattle fairs at 'any place in the State '.
There was no definition of the expression 'cattle fair ' in the Act.
The validity of the Act was challenged on the ground that the provisions of the Act were 'vague and ambiguous ', and the High Court, in Mohinder Singh Sawhney vs State of Punjab, A.I.R. 1968 Punj. 391, accepted the contention. 'Me State Legislature thereupon, by Amendment Act 18 of 1968 introduced section 2(bb) defining the expression 'cattle fair ' to mean 'a gathering of more than 25 persons for the purpose of general sale or purchase of cattle '.
Fair Officers were appointed under section 4(1) of the Act, and under section 4(2) they declared certain areas as fair areas. 'Some of the areas so declared belonged to a Municipal Committee in the State.
The Munici pal Committee, a lessee from the Municipal Committee and some residents in the State, challenged the Act in this Court on the following grounds (1) Since the Act was struck down in Mohinder Singh Sawhney 's case, the Act ceased to have any existence in law and could not therefore be amended; (2) The order of the High Court in that case operated as res judicata between the parties and could not be enforced without a re enactment of the Act; (3) The Act violated articles 19(1)(b), (d), (f) and (g); and (4) Section 15 (if the Act, which authorises the State to call upon a Panchayat Samiti or a Municipal Committee within whose jurisdiction the fair is held to deposit a prescribed amount in the Cattle Fair Fund to cover the initial expenses of the fair and compels the local authority to abide by the directions, was invalid.
The Municipal Committee also challenged the demand by the Fair Officer, asking the Municipal Committee to supply water, electricity and to make sanitary arrangements and to make the staff articles and offices of the Municipal Committee available to the Fair Officer.
448 HELD: (i) The Act as originally enacted was not vague.
, When the Legislature did not furnish a definition of 'cattle fair ' it must be deemed to have used the expression in its ordinary signification, as meaning a periodical concourse of buyers and sellers in a place, generally for sale and purchase of cattle, at times or on occasions ordained by custom.
[454 C E] But even if it was vague it could not have been struck down on that ground.
The High Court in Mohinder Singh Sawhney 's case struck down the Act on the ground of vagueness on the assumption that the validity of the Act was liable to be adjudged by the test of 'due process of law '.
But this Court, in A. K. Gopalan vs State of Madras, [1950] S.C.R. 88, held that the doctrine of due process has no place in our Constitution.
Superior Courts in India may declare a law invalid, if the Legislature has no power to enact the law or if the law violates any of the fundamental rights guaranteed in Part III of the Constitution or is inconsistent with any constitutional provision, but not on the ground that it is vague.
Therefore as a result of the judgment of the High Court the Act did not cease to have existence in law.
[453 C D, G; 454 A B] Kehar Singh vs The State of Punjab, , approved.
(2) The decision in Mohinder Singh Sawhney 's case does not operate as res judicata even in favour of the petitioners in that case.
Its effect was only that the Act was in law non existent so long as there was no definition of the expression 'cattle 'fair ' in the Act.
But that defect has been remedied by the Amending Act.
[454 B C] (3) (a) The Act does not impose unreasonable restrictions upon the fundamental rights guaranteed under article 19(1)(b) and (d).
It prohibits an individual or local authority from arranging a gathering of more than 25 persons for the purpose specified in the definition.
The restriction was only for the purpose of making the monopoly effective, and must be regarded as a reasonable restriction within the meaning of cls.
19(3) and (5) upon the freedom of assembly and of free movement.
[456 C E] (b) The Act is restricted in its scope and the freedoms guaranteed by article 19(1) (f) and (g) are also not infringed.
(i) A law which is 'basically and essentially necessary ' for creating a State monopoly and thereby deprives the citizens of the right to carry on he same business is not, by virtue of article 19(6), open to challenge on the ground that it infringes the fundamental right guaranteed by article 19(1) (g).
In the present case, the primary object of the Act is to give a monopoly to the 'State to hold cattle fairs and as a necessary concomitant of that monopoly, holding of cattle fairs by local authorities and individuals is prohibited.
The law will not also be exposed to attack on the ground that the right to carry on business is property, for, the validity of restrictions on the right to carry on occupation, trade or business, or to practice any profession must be adjudged only in the light of article 19(6).
Moreover, the presumption of reasonableness of a statute creating a monopoly in the State applies not only in respect of the right under article 19(1)(g) but also under article 19(1)(f).
[456 E G; 457 A C] Akadasi Padhan vs State of Orissa, [1963] Supp. 2 S.C.R. 691, followed.
State of Bihar vs Rameshwar Pratap Narain; [1962] 2 S.C.R. 382 and M. V. P. Ramunni Kurup vs Panchayat Board, Badagara, A.I.R. 1954 Mad.
754, referred to.
449 (ii) The prohibition imposed upon all persons and authorities is in respect of only cattle fairs and not in respect of cattle markets, that is, places where the business of see or purchase is regularly conducted by private parties and not as a fair.
The Act does not prohibit anyone from carrying on the business of cattle market on his own land.
[455 E F; 461 E] When the business is in the nature of a market for sale of sheep and goats brought by intending sellers 'for slaughter, such a place cannot be called a fair.
A person carrying on his business in a cattle market on his own land need not take out a licence under section 9 of the Act even though he was collecting brokerage and was carrying on the business of a broker, because, it is only a person carrying on his business within a fair area, lawfully declared, that is required to obtain the licence.
[460 F H] (iii) Though the words used in section 4 are wide and are capable of the interpretation that the State could hold a cattle fair at any place, it is implicit in sections 3 and 4 that the monopoly acquired by the State to hold and manage cattle fairs is confined to property belonging to the State and does not extend to the property of local authorities or private owners.
[456 A C] A Municipal Committee is not a 'citizen ' within the meaning of article 19 and therefore, is not entitled to claim protection of any of the fundamental 'rights under article 19.But a direction to make municipal property available for holding a cattle fair by the 'State is a threat to requisition municipal property without authority of law and is not a mere direction to regulate the fair held on behalf of the Municipal Committee.
Such a taking possession of property without payment of compensation as required by article 31(2) must be deemed unauthorised and section 23, giving the pro visions of the Act a paramount operation notwithstanding anything inconsistent in any other law, will not supersede the constitutional guarantee.
[458 E G] (4) Under section 17(d), out of the Cattle Fair Fund, the amount recovered from a local authority may be reimbursed but the provision in section 15, authorising the State to call upon a local authority to pay a sum of money towards the Cattle Fair Fund is an unreasonable deprivation of property and violates the right under article 19(1) (f) and hence is invalid.
[457 C E] Also the demand made by the Fair Officer for assistance of the staff, articles and offices of the Municipality for holding a fair, and the demand for supply of water and electricity and making suitable sanitary arrangements are not warranted by any provision of the Act, and must be de clared invalid.
[459 A C]
|
Appeals Nos. 895 and 896 of 1968.
Appeals under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated January 29, 1968 of the Bombay High Court in Election Petition No. 6 of 1967.
R. Jethamalani and H. N. Hingorani and K. Hingorani, for the appellant (in C. A. No. 895 of 1968).
C. K. Daphtary, A. K. Sen, K. section Cooper and K. Hingorani, for the appellant (in C. A. No. 896 of 1968).
A. section R. Chari, Porus A. Mehta, section B. Naik, Kumar Mehta, R. Nagaratnam and K. Rajendra Chaudhuri, for respondent No. 1 (in both the appeals).
The Judgment of the Court was delivered by Hidayatullah, C.J.
In the last General Election to Parliament from the Bombay South Parliamentary constituency eight candidates had offered themselves.
The answering respondent Mr.
George Fernandez secured 1,47,841 votes as against his nearest rival Mr. S.K. Patil who secured 1,18,407 votes.
The remaining candidates secured a few thousand votes between them.
The result of the poll was declared on February 24, 1967.
and Mr. George Fernandez was returned.
An election petition was filed by Mr. Samant N. Balakrishna, an elector in the constituency.
It challenged the election of Mr. Fernandez and was ostensibly in the interest of Mr. section K. Patil.
The election petition was keenly contested and Mr. section K. Patil gave his full support to the petition.
The election petition failed and it was dismissed with an order for costs against the election petitioner and Mr. section K. Patil.
Two appeals have now been filed against the judgment of the Bombay High Court, one by the election petitioner and the other by Mr. section K. Patil.
They have been heard together and this judgment will dispose of both of them.
The petition was based on numerous grounds which were, set out in paragraph 2 of the petition.
These grounds were shown separately in sub paragraphs A to J. Sub paragraphs A to D dealt with the invalidity of the election for non compliance with s, 62 of the Representation of the People Act and articles 326 and 327 of the Constitution.
These concerned the secrecy of ballot (A), registering of some voters in two constituencies (B), omission of qualified voters from electoral rolls (C) and impersonation by persons for dead or absent voters (D).
These, four grounds 609 were given up in the High Court itself and we need not say anything about them.
Sub paragraphs E to J contained allegations of corrupt practices.
The petition was accompanied by four annexures Nos.
A to D which were extracts from newspapers on which the charge of corrupt practices was based.
The grounds may now be noticed in detail.
Sub paragraph E dealt with statements made at a meeting dated February 16, 1967 at Shivaji Park by Jagadguru Shankaracharya charging Mr. section K. Patil with complicity in arson of November 7, 1966 at New Delhi and attack on the residence of the Congress President with injuries caused to people.
In these articles from the 'Maratha ' and the 'Blitz ' extracts of which were quoted and annexed as Annexure A, Mr. Patil was described as hypocrite, insincere and dishonest.
Similar speeches by Mr. Madhu Limaye, (,another candidate of the S.S.P. by which party Mr. Fernandez was sponsored) were relied upon.
The statements were "inspired by Mr. Fernandez" and "with his consent and for his benefit".
It was said that they amounted to a corrupt practice under section 123(4) of the Representation of the People Act.
In Sub paragraph F, a statement of Jagadguru Shankaracharya on cow slaughter was made the ground of attack.
It was to the effect that Mr. section K. Patil only pretended to support the anti cow slaughter movement but had done nothing in furtherance of it.
It was contended that the cow was used as a religious symbol and the speeches offended against the Election Law as stated in section 123 (3).
These statements were also said to be inspired by Mr. Fernandez and were made with his consent and for his benefit.
Sub paragraph G referred to speeches of Mr. Fernandez and his workers with his knowledge and consent.
In those speeches Mr. Fernandez is said to have described Mr. section K. Patil as the enemy of Muslims and Christians who only professed to discourage slaughter of cows and he Was charged with interfering with the articles of faith of the Muslims and Christians and seeking expulsion of Muslims to Pakistan.
This was said to offend against section 123(3A) of the Representation of the People Act.
In Sub paragraph H it was alleged that the 'Maratha ' pub lished a false statement to the effect that Mr. section K. Patil had paid rupees 15 lacs to Mr. Jack Sequeira to undo the efforts of Maharashtrians for incorporation of Goa in Maharashtra.
The extract from the 'Maratha ' of January 25, 1967 was annexed as exhibit B.
The speech of Mr. H. R. Gokhale who published a similar statement, was also referred to.
These were made the grounds of complaint under section 123 (4) of the Representation of the People Act.
610 In Sub paragraph 1 four issues of the 'Maratha ' of the 5th and 31st January, 1967 and 5th and 8th of February, 1967 were exhibited as exhibit C.
It was stated in the first two that the Shiv Sena supported the Maharashtra traitor Sadoba Patil and that the Shiv Sena was really Sadoba Sena.
A cartoon showing Mr. section K. Patil as Vishwamitra and the leader of Shiv Sena as Menka with the caption 'Sadoba denies that he has no connection with Shiv Sena like Vishwamitra Menka episode", was the third.
The last of these articles was headed "harassment from Gondas of Sadoba Patil Shiv Sena in the service of Sadhshiv (section K. Patil)".
These statements were said to be false and made by the 'Maratha ' in favour of respondents other than respondent No. 2 (Mr. section K. Patil) or at any rate on behalf of Mr. Fernandez.
These were said to prejudice the minority communities and thus to offend section 123(4) of the Representation of the People Act.
The statements were said to be made with the knowledge and consent of Mr. Fernandez and for his benefit.
In Sub paragraph J three issues of 'Maratha ' of the 24th, 28th and 31st December 1966 were referred to.
In the first it was stated that "Shri section K. Patil will go to Sonapur in the ensuing election.
Fernandez says in his Articles Patil mortgaged India 's Freedom with America by entering into P. L. 480 agreement and Mr. Patil had no devotion, love, respect for this country at all." In the second Mr. Patil was described as Nagibkhan of Maharashtra.
The third was a cartoon in which Shankaracharya was depicted as saying "Cow is my mother.
Do not kill her" and Patil section K. as saying "Pig is my father".
These extracts were annexed as exhibit D. Then followed a paragraph in which was said : "Similar false statements in relation to Respondent No. 2 's character and conduct were published in several issues of Maratha Daily" from December 12, 1966 to February 21, 1967 and 33 issues were mentioned by date.
These were also said to be exhibit D.
This was the original material on which the petition filed on April 7, 1967 was based.
Mr. Fernandez filed his written statement on June 14, 1967 and Mr. section K. Patil on July 4, 1967.
Later five amendments were asked for.
By the first amendment, which was orally asked and allowed, reference to the 33 articles was altered and they were said to be contained in exhibit E instead of exhibit D. exhibit E was then introduced and gave the list of 33 articles in the 'Maratha ' and one article in the Blitz, and the extracts on which reliance was placed.
On July 4, 1967 an application for amendment was made seeking to add two Sub paragraphs 2 K and 2 L. 2 K is not pressed now and need not be mentioned.
By 2 L the petitioner asked for addition to the list of corrupt practices of a reference to an article dated November 5, 1966 in the Blitz.
This article was written by Mr. Fernandez.
611 On September 12, 1967, an application was made for seven additions to paragraph 2J. Seven incidents were sought to be included.
Of these four were ordered by the Court to be included in 2 J on September 15, 1967 as Sub sub paragraphs (i) to (iv) and three were rejected.
In the first of the Sub sub paragraphs so, included, a speech at a public meeting at Shivaji Park by Mr. Fernandez on January 31, 1967 was pleaded in which Mr. Fernandez is said to have made a statement that even God could not defeat the second respondent (Mr. section K. Patil) because unlike the second respondent God was not dishonest.
It was also alleged that Mr. section K. Patil won elections by "tampering with the ballot boxes or substituting the same".
These statements were said to be made by Mr. Fernandez deliberately and maliciously and that he believed them to be false or did not believe them to be true.
The report of the speech was quoted from the 'Maratha ' of February 1, 1967 and was included as part of exhibit E.
In the second Sub sub paragraph a Press Conference at Bristol Grill Restaurant on February 9, 1967 addressed by Mr. Fernandez was referred to.
At that Conference Mr. Fernandez charged Mr. section K. Patil with "unfair and unethical electioneering practices" and as illustrations of his methods mentioned the release of 70 dangerous characters from jail on parole and the suspension of externment orders against some and the allowing of some other externed persons to return, were alleged.
It was also said that these persons were being used by Mr. Patil in his campaign.
Extracts from the issues of the 'Maratha ' of the 10th and 11th February, 1967 were made part of annexure E.
In the third Sub sub paragraph a public meeting at Sabu Siddik Chawl, of ' February 10, 1967 was referred to.
At that meeting, it wag alleged, Mr. Fernandez described Mr. Patil as an "American Agent, Dada of Capitalists and Creator of Shiv Sena.
" All these statements were said to be false and to reflect upon personal character and conduct of Mr. Patil and thus to be corrupt practices under section 123 (4) of the Representation of the People Act.
the fourth paragraph a meeting of January 8, 1967 at Chowpati, presided over by Mr. Fernandez was referred to.
Mr. Madhu Limaye was said to have addressed that meeting and referred to the incident of November 7, 1966.
These statements were also, said to be false and to materially affect the prospects of Mr. Patil.
In this Sub sub paragraph it was also alleged that Mr. P. K. Atrey, Editor and Proprietor of the 'Maratha, Jagadguru Shankaracharya and Mr. Madhu Limaye were agents of Mr. Fernandez and had made these statements in his interest and with his consent.
The petitioner also asked for addition of three other grounds of corrupt practices, which the Court did not allow to be included.
Paragraph 2 L to which we have referred was an article by Mr. Fernandez.
It was captioned as a fight against political 612 thuggery" and included the following passage which was made the basis of the following charge : "These men (including the 2nd Respondent) from the hard core of the coterie which control the destinies of the nation, even decides who should be the Prime Minister and who should not be, hounds out the few honest Congressmen from Public life, props up the Aminchand Pyarelal and Chamanlal and supports them in all their misdeeds and puts a premium on dishonest businessmen and industrialists.
" This allegation was said to suggest dishonesty in Mr. Patil.
The other amendments which were disallowed referred to a speech at Dr. Vigas Street on February 27, 1967, a speech by Dr. Lohia at Chowpati on January 1, 1967 published in 'Andolan ' of January 9, 1967 and a Press Conference by Mr. Madhu Limaye at Bristol Grill Restaurant on December 10, 1966.
Prior to the application for amendment certain events had happened to which it is necessary to refer.
On April 7, 1967 the office objected that the originals of Exs.
A, B, C and D ha not been filed.
The remark of the office is as follows : "Exhibits A, B, C, D are mere repetitions of what is mentioned in the body of the petition.
Is it not necessary to annex the original copies of the said newspaper?" Mr. Kanuga, one of the Advocates for the petitioner replied to the objection as follows : "We undertake to file the original issues and official translations later as the same is (sic) with the Chief translator, High Court, Bombay before the service of Writ of Summons".
Till July 3, 1967 no effort seems to have been made to file the originals.
On that date the 'Rozanama ' read as follows "Mr. Jethmalani applies for leave to amend the petition by pointing out that 'D ' in last sentence of paragraph 2 on page 12 of the petition be corrected and read as 'E ' and to annex reports in original P. C. leave to amend granted.
" The issues were settled on the same day and particulars were asked for.
On July 7, 1967 the 'Rozanaina ' read as follows "Mr. Gurushani tenders the original of the exhibits A (Coll) to Exhibit E (Coll) mentioned in para 2J of page 1 1 of the petition.
" A chamber summons was taken out because the particulars were not supplied and on August 4, 1967 the particulars were furnish 613 ed.
It was then on September 12, 1967 that the application for seven amendments was made, four of which were allowed and three were rejected.
This was by an order dated September 15, 1967.
Before dealing with this appeal it is necessary to clear the question of the amendments and whether they were properly allowed.
This question consists of two parts; the first is one of fact as to what was exhibited with the petition as materials on which the petition was based.
The case of the petitioner before us is that in support of 2J copies of relevant newspapers were filed with the petition.
This is denied on behalf of the answering respondent.
Mr. Daphtary 's contention is that if the originals of the 'Maratha ' had not been filed an objection would have been taken in the court and none was taken.
Even witnesses were examined and cross exhibited with reference to the statements and the originals must have been in court.
This, in our opinion, is not decisive.
The first witness to be examined was the petitioner himself.
Evidence commenced on August 25, 1967.
The petitioner proved the copies of the newspapers and they were marked as exhibits.
By that date the copies of the 'Maratha ' had already been filed and the petitioner in his evidence referred to all of them.
The cross examination, therefore, also referred to these documents.
Nothing much turns upon the want of objection because (as is well known) objection is not taken to some fatal defect in the case of the other side since the party, which can take the objection, wants to keep it in reserve.
It is true that if the objection had been taken earlier and had been decided the petitioner would have had no case to prove on the new allegations and might not have led some evidence.
But we cannot hold from this that any prejudice was caused to him.
After all it was his responsibility to complete his allegations in the petition by inclusion of the copies of the 'Maratha ' and the other side cannot be held to have waived its objection since that objection was in fact raised and has been answered in the High Court.
The Rozana mas clearly show that the copies of the 'Maratha ' were not filed with the election petition but much later and in fact beyond the period of limitation.
Mr. Daphtary characterises the Rozanamas as inaccurate but the internal evidence in the case shows that the Rozanamas were correctly recorded.
The petition quoted some of the offending statements in the newspapers and exhibited them as Exs.
A to D.
In the petition these 10 extracts are to be found in Sub paragraphs 2E, H, I and J. The change of Exs.
D to E and the filing of E show that the extracts which were with the translator were referable to those extracts already mentioned in the petition and not those mentioned in the last paragraph of 2J.
It will be noticed that 614 that paragraph refers to 33 numbers of the 'Maratha '.
Extracts from those were furnished only on July 3, 1967 when exhibit E was separately filed and according to the Rozanama, the originals were filed on July 7, 1967.
Mr. Kanuga could not have referred to all the 33 issues of the 'Maratha '.
Only 10 extracts from the 'Maratha ' were in Exs.
A to D and of these eight are included in the list of 33 numbers of the 'Maratha ' in the last paragraph of 2J.
If they were already filed, Mr. Kanuga would have said so and not promised to file them later.
He mentions in his note that they were with the translation department and would be filed later.
If all the 33 issues of the 'Maratha ' were already filed there would be no occasion for the office objection and the reply of Mr. Kanuga could apply to two numbers only.
They were the issues of 25th January and 5th February, 1967.
The office noting shows that not a single original was filed with the petition.
This appears to us to be correct.
We are satisfied that 10 issues of the 'Maratha ' from which extracts were included in the petition in Exs.
A to D were the only numbers which were before the translator.
Mr. Kanuga 's remark applies to these 10 issues.
The other issues which were mentioned in the last paragraph of 2J numbering 33 less 8 were neither in the translator 's office nor exhibited in the case.
Hence the amendment of the second reference from D to E and the request to file original issues.
It seems that when the petition was filed a list was hurriedly made of all the issues of the 'Maratha ' to which reference was likely and that list was included in the last portion of 2J.
But no attempt was made either to specify the offending portions of the newspapers or to file the extracts or the original issues.
All this was done after the period of limitation.
No incorporation of the contents of the articles by reference can be allowed because if a newspaper is not exhibited and only the date is mentioned, it is necessary to point out the exact portion of the offending newspaper to which the petition refers.
This was not done.
We have to reach this conclusion first because once we hold that the issues of the 'Maratha ' or the extracts referred to in the petition were not filed, the plea as to what was the corrupt practice is limited to what was said in the body of the petition in paragraph 2J and whether it could be amended after the period of limitation was over.
The attempt today is to tag on the new pleas to the old pleas and in a sense to make them grow out of the old pleas.
Whether such an amendment is allowable under the Election Law is therefore necessary to decide.
Mr. Daphtary arguing for the appellant contends that he was entitled to the amendment since this was no more than an amplification of the ground of corrupt practice as defined in section 123(4) and that the citation of instances or giving of additional parti 615 culars of which sufficient notice already existed in 2J as it originally stood, is permissible.
According to him, under section 100 the petition has to show grounds and under section 83 there should be a concise statement of material facts in support of the ground and full particulars of any corrupt practice alleged.
He submits that under section 86(5) particulars can be amended and amplified, new instances can be cited and it is an essence of the trial of an election petition that corrupt practices should be thoroughly investigated.
He refers us to a large body of case law in support of his contention.
On the other hand, Mr. Chari for Mr. Fernandez contends that there was no reference to the speeches by Mr. Fernandez in the petition.
The cause of action was in relation to the publication in the 'Maratha ' and not in relation to any statement of Mr. Fernandez himself and that the amendment amounts to making out a new petition after the period of limitation.
To decide between these rival contentions it is necessary to analyse the petition first.
Paragraph 2J as it originally stood, read as follows : "The Petitioner says that false statements in relation to character and conduct of the Respondent No. 2 were made by the 1st Respondent and at the instance and connivance of the ' 1st.
Respondent, Maratha published the following articles, as set out hereinafter.
The petitioner says that the said allegations are false and have been made with a view to impair and affect the prospects of Respondent No. 2 's elections to Lok Sabha.
Some of the extracts are : etc." (Emphasis added).
Here three issues of the 'Maratha ' of 24th, 28th and 31st December, 1966 were referred to.
Of the extracts, the last two make no reference to Mr. Fernandez.
The first spoke thus "Maratha Dated 24 12 66.
Pages 1 and 4.
Shri section K. Patil will go to Sonapur in the ensuing election.
Fernandez says in his Articles Patil mortgaged India 's Freedom with America by entering into P.L. 480 agreement and Mr. Patil had no devotion, love, respect for this country at all." Then followed this paragraph: "Similar false statements in relation to Respondent No. 2 character and conduct were published in Maratha Daily dated 12th December, 1966, 17th December, 23rd December, 24th December, 28th, 29th and 31st December issues, January issues dated 4, 5, 7th, 10th, 18th, 20th, 21st, 28th, 30th and 31st.
February issues, 616 1st, 2nd, 3rd, 6th, 7th, 8th, 10th, 11th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st. .
These reports in original are filed and true translation are marked exhibit D to the petition.
" We have already held that the newspapers mentioned in the last paragraph were not filed with the petition but on July 7, 1967 after the period of limitation was over.
The allegations thus were that Mr. Fernandez made the false statements and they were published in the 'Maratha ' at his instance and with his connivance.
There is no mention of any speech at Shivaji Park, or at Sabu Siddik Chowk or at Dr. Vigas Street or the press inter view at Bristol Grill Restaurant.
All these statements which are now referred to were said to be made by Mr. Fernandez himself.
By the amendment a charge of corrupt practice was sought to be made for the first time in this form.
In the original petition (Sub paragraph 2J) there was no averment that Mr. Fernandez believed these statements to be false or that he did not believe them to be true and this was also sought to be introduced by an amendment.
It may, however, be mentioned that in an affidavit which accompanied the election petition this averment was expressly made and the appellants desire us to read the affidavit as supplementing the petition.
By another application for amendment the petitioner sought to add a paragraph that the 'Maratha ', Jagadguru Shankaracharya and Mr. Madhu Limaye were agents of Mr. Fernandez within the Election Law.
By yet another application reference to an article in the 'Blitz ' was 'Sought to be included as Sub paragraph 2L.
At the conclusion of the arguments on this part of the case we announced our decision that the amendment relating to the speeches of Mr. Fernandez at Shivaji Park, Sabu Siddik Chowk and Dr. Vigas Street and his Press Conferences at Bristol Grill Restaurant and the article in the 'Blitz ' ought not to have been allowed but that the amendment relating to the agency of the 'Maratha ' etc.
and that seeking to incorporate the averment about the lack of belief of Mr. Fernandez were proper.
We reserved our reasons which we now proceed to give.
The subject of the amendment of an election petition has been discussed from different angles in several cases of the High Courts and this Court.
Each case, however, was decided on its own facts, that is to say, the kind of election petition that was filed, the kind of amendment that was sought, the stage at which the application for amendment was made and the state of the law at the time and so on.
These cases do furnish some guidance but it is not to be thought that a particular case is intended to cover all situations.
It is always advisable to look at the statute first to see alike what it authorises and what it prohibits.
617 Section 81 of the Representation of the People Act, 1951 enables a petitioner to call in question any election on one or more of the grounds specified in section 100(1) and section 101 of the Act.
The petition must be made within 45 days from the date of election.
Sections 100 and 101 enumerate the kind of charges which, if established, lead to the avoidance of the election of a returned candidate and the return of some other candidate.
The first sub section of section 100** lays down the grounds for dec *"81.
Presentation of petitions.
(1) An election petition calling in question any election may be presented on one or more of the grounds specified in sub section (1) of section 100 and section 101 to the High Court by any candidate at such election or any elector within forty five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates.
Explanation In this sub section, 'elector ' means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.
(2) (3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition." **"100.
Grounds for declaring election to be void.
(1) Subject to the provisions of sub section (2) if the High Court is of opinion (a) that on the date of his election a returned candidate was not qualified or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the , or (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c) that any nomination has been improperly rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected.
(i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.
(2) If in the opinion of the High Court, a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice but the High Court is satisfied : (a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent; (c) that the candidate and his election agent took all reasonable means, for preventing the commission of corrupt practices at the election, and 618 learning an election to be void.
These include corrupt practices committed by the candidate, his election agent and any person with the consent of the returned candidate or his election agent.
The second sub section lays down an additional condition which must be satisfied before the election can be declared to be void even though the corrupt practice is committed by an agent other than the election agent.
Section 101* sets forth the grounds on which a candidate other than the returned candidate may be declared to have been elected.
Section 101 actually does not add to the grounds in section 1 00 and its mention in section 81 seems some what inappropriate.
Sections 100 and 101 deal with the sub stantive law on the subject of elections.
These two sections circumscribe the conditions which must be established before an election can be declared void or another candidate declared elected.
The heads of substantive rights in section 100(1) are laid down in two separate parts : the first dealing with situations in which the election must be declared void on proof of certain facts, and the second in which the election can only be declared void if the result of the election in so far as it concerns the returned candidate, can be held to be materially affected on proof of some other facts.
Without attempting critically to sort out the two classes we may now see what the conditions are.
In the first part they are that the candidate lacked the necessary qualification or had incurred disqualification, that a corrupt practice was committed by the returned candidate, his election agent or any other person with the consent of a returned candidate or his election agent or that any nomination paper was improperly rejected.
These are grounds on proof of which by evidence, the election can be set aside without any further evidence.
The second part is conditioned that the result of the election, in so far as it concerns a returned candidate, was materially affected by the improper acceptance of a nomination or by a corrupt (d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is not void." *"101.
Grounds for which a candidate other than the returned candidate may be declared to have been elected.
If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the High Court is of opinion (a) that in fact the petitioner or such other candidate received a majority of the valid votes; or (b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes, the High Court shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected." 619 practice committed in his interest by an agent other than an election agent or by the improper reception, refusal or rejection of votes or by any noncompliance with the provisions of the Constitution or of the Representation of the People Act or rules or orders made under it.
This condition has to be established by some evidence direct or circumstantial.
It is, therefore, clear that the substantive rights to make an election petition are defined in these sections and the exercise of the right to petition is limited to the grounds specifically mentioned.
Pausing here, we may view a little more closely the provisions bearing upon corrupt practices in section 100.
There are many kinds of corrupt practices.
They are defined later in section 123, of the Act and we shall come to them later.
But the corrupt practices are viewed separately according as to who commits them.
The first class consists of corrupt practices committed by the candidate or his election agent or any other person with the consent of the candidate or his election agent.
These, if established, avoid the election without any further condition being fulfilled.
Then there is the corrupt practice committed by an agent other than an election agent.
Here an additional fact has to be proved that the result of the election was materially affected.
We may attempt to put the same matter in easily understandable language.
The petitioner may prove a corrupt practice by the candidate himself or his election agent or someone with the consent of the candidate or his election agent, in which case he need not establish what the result of the election would have been without the corrupt practice.
The expression "Any other person" in this part will include an agent other than an election agent.
This is clear from a special provision later in the section about an agent other than an election agent.
The law then is this : If the petitioner does not prove a corrupt practice by the candidate or his election agent or another person with the consent of the returned candidate or his election agent but relies on a corrupt practice committed by an agent other than an election agent, he must additionally prove how the corrupt practice affected the result of the poll.
Unless he proves the consent to the commission of the corrupt practice on the part of the candidate or his election agent he must face the additional burden.
The definition of agent in this context is to be taken from section 123 (Explanation) where it is provided that an agent "includes an election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate.
" In this explanation the mention of "an election agent" would appear to be unnecessary because an election agent is the alter ego of the candidate in the scheme of the Act and his acts are the acts of the candidate, consent or no consent on the part of the candidate.
620 Having now worked out the substantive rights to the making of the petition, we may now proceed to see what the corrupt practices are.
Since we are concerned only with one such corrupt practice, we need not refer to all of them.
For the purpose of these appeals it is sufficient if we refer to the fourth sub section of section 123.
It reads : "123.
The following shall be deemed to be corrupt practice for the purposes of the Act (4) The publication by a candidate or his agent or by any other person, with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate 's election.
This corrupt practice may be committed by (a) the candidate (b) his agent, that is to say (i) an election agent (ii) a polling agent (iii) any person who is held to have acted as an agent in connection with the election with the consent of the candidate.
(c) by any other person with the consent of the candidate or his election agent.
We are concerned in this appeal with (a) and (b) (iii) men tioned in our analysis.
In the original petition the allegations were made on the basis of corrupt practices committed by a person alleged to have acted as an agent with Mr. Fernandezs consent.
In the amendment application the allegation is that the candidate himself committed the corrupt practice under this subsection.
As we pointed out earlier the difference between the original petition and the amendments will lie in the degree of proof necessary to avoid the election.
If the corrupt practice is charged against an agent other than the election agent, a further burden must be discharged, namely, that the result of the election was 621 materially affected.
If, however, the corrupt practice is charged against the candidate personally (there is no election agent involved here), this further proof is not required.
Another difference arises in this way.
In section 100 (1) (b) the word 'agent ' is not to be found.
Therefore an agent other than an election agent will fall to be governed by the expression 'any other person '.
To get the benefit of not having to prove the effect of the corrupt practice upon the election the consent of the candidate or his election agent to the alleged practice will have to be established.
Again for the establishment of the corrupt practice under section 123 (4), from whatever quarter it may proceed, the election petitioner must establish (a) publication of a statement of fact, and (b) the statement is false or the person making it believes it to be false or does not believe it to be true, and (c) that the statement refers to the personal character and conduct of the candidate, and (d) is reasonably calculated to prejudice the candidate 's prospects.
It appears, therefore, that it is a question of different burdens of proof as to whether the offending statement was made by the candidate himself or by an agent other than an election agent.
Having dealt with the substantive law on the subject of election petitions we may now turn to the procedural provisions in the Representation of the People Act.
Here we have to consider sections 81, 83 and 86 of the Act.
The first provides the procedure for the presentation of election petitions.
The proviso to sub section alone is material here.
It provides that an election petition may be presented on one or more of the grounds specified in sub section (1) of section 100 and section 101.
That as we have shown above creates the substantive right.
Section 83* then provides that the *Section 83.
(1) An election petition (a) shall contain a concise statement of the material facts on which the petitioner relies : (b) shall setforth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings : (provided that where the petitioner alleges any corrupt practice, the petition shall also be accompained by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.
(2) Any y schedule or annexure to the petition shall also be singed by the peti tioner and verified in the same manner as the petition.
L10Sup./69 5 622 election petition must contain a concise statement of the material facts on which the petitioner relies and further that he must also setforth fun particulars of any corrupt practice that the Petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice.
The section is mandatory and requires first a concise statement of material facts and then requires the fullest possible particulars.
What is the difference between material facts and parti culars? The word 'material ' shows that the facts necessary to formulate a complete cause of action must be stated.
Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad.
The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet.
There may be some overlapping between material facts and particulars but the two are quite distinct.
Thus the material facts will mention that a statement of fact (which must be set out) was made and it must be alleged that it refers to the character and conduct of the candidate that it is false or which the returned candidate believes to be false or does not believe to be true and that it is calculated to prejudice the chances of the petitioner.
In the particulars the name of the person making the statement, with the date, time and place will be mentioned.
The material facts thus will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action.
In stating the material facts it will not do merely to quote the words of the section because then the efficacy of the words 'material facts ' will be lost.
The fact which constitutes the corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practice.
Just as a plaint without disclosing a proper cause of action cannot be said to be a good plaint, so also an election petition without the material facts relating to a corrupt practice is no election petition at all.
A petition which merely cites the sections cannot be said to disclose a cause of action where the allegation is the making of a false statement.
That statement must appear and the particulars must be full as to the person making the statement and the necessary information.
Formerly the petition used to be in two parts.
The material facts had to be included in the petition and the particulars in a schedule.
It is inconceivable that a petition could be filed without the material facts and the schedule by merely citing the corrupt practice from the statute.
Indeed the penalty of dismissal summarily was enjoined for petitions which did not comply with the requirement.
Today the particulars need not be separately included in a schedule but the distinction remains.
The entire and complete cause of action must be in the 623 petition in the shape of material facts,.
the particulars being the further information to complete the picture.
This distinction is brought out by the provisions of section 86 although the penalty of dismissal is taken away.
Sub section (5) of that section provides (5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.
" The power of amendment is given in respect of particulars but there is a prohibition against an amendment "which will have the effect of introducing particulars if a corrupt practice not previously alleged in the petition.
" One alleges the corrupt practice in the material facts and they must show a complete cause of action.
If a petitioner has omitted to allege a corrupt practice, he cannot be permitted to give particulars of the corrupt practice.
The argument that the latter part of the fifth sub section is directory only cannot stand in view of the contrast in the language of the two parts.
The first part is enabling and the second part creates a positive bar.
Therefore, if a corrupt practice is not alleged, the particulars cannot be supplied.
There is however a difference of approach between the several corrupt practices.
If for example the charge is bribery of voters and the particulars give a few instances, other instances can be added; if the charge is use of vehicles for free carriage of voters, the particulars of the cars employed may be amplified.
But if the charge is that an agent did something, it cannot be amplified by giving particulars of acts on the part of the candidate or vice versa.
In the scheme of election law they are separate corrupt practices which cannot be said to grow out of the material facts related to another person.
Publication of false statements by an agent is one cause of action, publication of false statements, by the candidate is quite a different cause of action.
Such a cause of action must be Alleged in the material facts before particulars may be given.
One cannot under the cover of particulars of one corrupt practice give particulars of a new corrupt practice.
They constitute different causes of action.
Since a single corrupt practice committed by the candidate, by his election agent or by another person with the consent of the candidate or his election agent is fatal to the election, the case must be specifically pleaded and strictly proved.
If it has not been pleaded as part of the material facts, particulars of such 624 corrupt practice cannot be supplied later on.
The bar of the latter part of the fifth sub section to section 86 then operates.
In the petition as 'originally filed the agency of Jagadguru Shankaracharya, Mr. Madhu Limaye and the Maratha (or Mr. Atrey) was the basis of the charge and the candidate Mr. Fernandez was left out.
No allegation was personally made against him.
The only allegations against him personally were contained in paragraph 2G.
There it was said that Mr. Fernandez had made certain speeches to the effect that Mr. Patil was against the Muslims and Christians.
No evidence was led and they were not even referred to at the hearing before us.
The next reference in 2J is to statements of Mr. Fernandez.
and published by the Maratha.
These were specified and only three such statements were included.
Since the gist of the election offence is the publication of false statements, the charge is brought home to the candidate through the publication by the Maratha.
It is to be remembered that even the allegation that in doing so the Maratha acted as the agent of Mr. Fernandez, itself came by way of an amendment which we allowed as it completed the cause of action and is per missible.
The bar of section 86(5) (latter part) does not apply to it and under Order VI rule 17 of the Code of Civil Procedure, which is applicable as far as may be, such an amendment can be made.
Similarly the allegations that such statements were false or were believed to be false or were not believed to be true by the Maratha (i.e. Mr. Atrey) and that they were calculated to prejudice Mr. Patills chances and did so, were allowed by us to be added as completing the cause of action relating to a corrupt practice already alleged.
But we declined to allow to stand the amendments which had the effect of introducing, new corrupt practices relating to the candidate himself which had not been earlier pleaded.
This kind of amendment is prohibited under the law when the amendment is sought after the period of limitation.
The learned Judge in the High Court did not keep the distinction between material facts and particulars in mind although the language of the statute is quite clear and makes a clear cut division between the two.
He seems to have been persuaded to Such a course by a reading of the rulings of this Court and the High Courts.
These same rulings were presented before us and we may now say a few words about them.
The learned Judge in the High Court has relied upon Harish Chandra Bajpai vs Triloki Singh(1) and deduced the proposition that where the petition sets out the corrupt practice as a ground, instances of the corrupt practices may be added subsequently and even after the period of limitation of filing the petition is over.
Following that case the learned Judge has allowed the (1) ; 625 amendments as corrupt practice under section 123 (4) was alleged in the original petition.
We shall come to that case last of all.
It seems to have played a great part in moulding opinion in India on the subject of amendment of pleadings in the Election Law.
To begin with it must be realised that as is stated in Jagan, Nath vs Jaswant Singh and Others(1) the statutory requirements of the law of Election in India must be strictly observed.
It is pointed out in that case that an election contest is not an action at law or a suit in equity but a purely statutory proceeding unknown to common law and that the court possesses no common law power.
Although the power of amendment given in the Code of Civil Procedure can be invoked because section 87 makes the procedure applicable, as nearly as may be to the trial of election petitions, the Representation of the People Act itself enacts some rules, which override the Civil Procedure Code.
General power of amendment or the power derived from the Code of Civil Pro cedure must be taken to be overborne in so far as the election law provides.
In a large number of cases it has been laid down by the High Courts in India that the material facts, must make out a charge and it is only then that an amendment to amplify the charge can be allowed or new instances of commission of corrupt practice charged can be given.
If no charge is made out in the, petition at all the addition of particulars cannot be allowed to include indirectly a new charge.
This was laid down in Din Dayal vs Beni Prasad and Another (2), Balwan Singh vs Election Tribu nal, Kanpur and Others(3) by the Allahabad High Court, in T. L. Sasivarna Thevar vs V. Arunagiri and Others (4 ) by the Madras High Court and in Hari Vishnu Kamath vs Election Tri bunal, Jaipur and Another(5) by the Madhya Pradesh High Court.
All these cases rely upon Harish Chandra Bajpai 's case (6) to which we have referred.
Harish Chandra Bajpai 's case (6) was based on an English case Beat vs Smith (7 ).
In that case it was held that under the Parliamentary Election Act of 1868 it was enough to allege generally in the petition that "the respondent by himself and other persons on his behalf was guilty of bribery, treating and undue influence before, during and after the election.
" A summons was taken out calling upon the petitioner to deliver better particulars of "other persons".
Willes, J. after consulting Martin, B and Blackburn, J. ordered better particulars.
It was contended that the petition should be taken off the files since the particulars were lacking.
Section 20 of that Act only provided that an election petition should be in such form and should state such matters as may be prescribed.
Rule 2 prescribed that the petition should state (i) the right of the petitioner to petition and (ii) and should state the holding and result (1) (2) (3) 15 5E.L.R. 199.
(4) (5) (7) L.R. 4 C.P. 115.(6) 11957] S.C.R. 370 626 of the election and then should briefly state such facts and grounds relied on to sustain the prayer.
Rule 5 prescribed the form which required facts to be stated.
Bovill, C.J., said that the form of the petition was proper and it was quite useless to state anything further.
But in Bruce vs Odhams Press Ltd.(1) the Court of Appeal distinguished 'material facts ' from 'particulars ' as they occurred in Order XIX of the Rules of the Supreme Court of England.
The words there were material facts and particulars and the distinction made by Scott, L.J. bears out the distinction we have made between 'material facts ' and 'Particulars ' as used in section 83 of our statute.
The same view was also expressed in Phillips vs Phillips(2).
The observations of Brett, L.J. in that case also bear out the distinction which we have made.
It appears that this distinction was not brought to the, notice of this Court in Harish Chandra Bajpai(3) case.
The rules on the subject of pleadings in the English statute considered in Beal 's case(4) were different.
We have in our statute an insistence on a concise statement of material facts and the particulars of corrupt practice alleged.
These expressions we have explained.
However, it is not necessary to go into this question because even on the law as stated in Harish Chandra Bajpai 's(3) case the amendment allowed in this case cannot be upheld.
We shall now notice Harish Chandra Bajpai 's(3) case a little more fully.
In that case the material allegation was that the appellants "could in the furtherance of their election enlist the support of certain government servants" and that the appellant No. 1. had employed two persons in excess of the prescribed number for his election purposes.
No list of corrupt practices was attached.
Thereafter names were sought to be added.
The amendment was allowed by the Tribunal after the period of limitation and the addition was treated as mere particulars.
It was held by this Court that an election petition must specify "grounds or charges" and if that was done then the particulars of the grounds or charges could be amended and new instances given but go new ground or charge could be added after the period of limitation.
The reason given was that the amendment "introducing a new charge" altered the character of the petition.
Venkatarama Iyyar, J. emphasised over and over again that new instances could be given provided they 'related to a 'charge ' contained in the petition.
The result of the discussion in the case was summarised by the learned Judge at page 392 as follows : "(1) Under section 83(3) the Tribunal has power to allow particulars in respect of illegal or corrupt prac (1) (2) (3) ; (4) L.R. 4 C.P. 115.
627 tices to be amended, provided the petition itself specifies the grounds or charges, and this power extends to permitting new instances to be given.
(2) The Tribunal has power under O.Vl, r. 17 to order amendment of a petition, but that power cannot be exercised so as to permit new grounds or charges to be raised or to so alter its character, as to make it in substance a new petition, if a fresh petition on those allegations will then be barred.
" What is meant by 'ground or charge ' was not stated.
By "ground" may be meant the kind of corrupt practice which the petitioner alleges but the word "charge" means inclusion of some material facts to make out the ground.
Applying the same test (although without stating it) the learned Judge pointed out that the charge made in the petition was that the appellants 'could ' in furtherance of their election enlist the support of certain government servants and it meant only an ability to enlist support but the 'charge ' which was sought to be levelled against the candidate later was that he had in fact enlisted the said support.
The learned Judge observed at page 393 as follows : "the charge which the respondent sought to level against the appellants was that they moved in public so closely with high dignitaries as to create in the minds of the voters the impression that they were favoured by them.
We are unable to read into the allegations in para 7 (c) as originally framed any clear and categorical statement of a charge under section 123(8), or indeed under any of the provisions of the Election law.
" The allegation in the statement was described as worthless and further it was observed at page 395 as follows : "But even if we are to read 'could ' in para 7 (c) as meaning 'did ', it is difficult to extract out of it a charge under section 123(8).
The allegation is not clear whether the Government servants were asked by the appellants to support their candidature, or whether they were asked to assist them in furtherance of their election prospects, and there is no allegation at all that the Government servants did, in fact, assist the appellants in the election.
On these allegations, it is difficult to hold that the petition in fact raised a charge under section 123 (8).
It is a long jump from the petition as originally laid to the present amendment, wherein for the first time it is asserted that certain Mukhiasno Mukhias are mentioned in the petition assisted the appellants in furtherance of their election prospects, and that thereby the corrupt practice mentioned 628 in section 123 (8) had been committed.
The new matters introduced by the amendment so radically alter the character of the petition as originally framed as to make it practically a new petition, and it was not within the power of the Tribunal to allow an amendment of that kind., ' It would appear from this that to make out a complete charge the facts necessary must be included in relation to a 'ground ' as stated in the Act.
Merely repeating the words of the statute is not sufficient.
The petitioner must specify the ground i.e. to say the nature of the corrupt practice and the facts necessary to make out a charge.
Although it has been said that the charge of corrupt practice is in the nature of quasi criminal charge, the trial of an election petition follows the procedure for the trial of a civil suit.
The charge which is included in the petition must, therefore, specify the material facts of which the truth must be established.
This is how the case was understood in numerous other cases, some of which we have already referred to.
In particular see J. Devaiah vs Nagappa and Others(1) and Babulal Sharma vs Brijnarain Brajesh and Others(2).
Three other cases of this Court were also cited.
In Chandi Prasad Chokhani vs State of Bihar(3) it was held that the powers of amendment were extensive but they were controlled by the law laid down in the Representation of the People Act.
It was again emphasised that a new ground or charge could not be made the ground of attack as that made a new petition.
In Bhim Sen vs Gopali and Others(4) the scope of Harish Chandra Bajpai 's(5) case was considered and its narrow application was pointed out.
Indeed in that case the observations in Harish Chandra Bajpai 's(5) case were not followed to the utter most limit.
In Sheopat Singh vs Ram Pratap(6) the only allegation was that the appellant (Hariram) got published through him and others a statement but there was no allegation that Hariram believed the statement to be false or did not believe it to be true.
It was held that in the absence of such averment it could not be held that there was an allegation of corrupt practice against Hariram.
The publication with guilty knowledge was equated to a kind of mens rea and this was considered a necessary ingredient to be alleged in the petition.
From our examination of all the cases that were cited before us we are satisfied that an election petition must set out a ground or charge.
In other words, the kind of corrupt practice which was perpetrated together with material facts on which a charge (1) (2) 1958 Madhya Pradesh 175 (F.B.).
(3) (4) (5) ; (6) ; 629 can be made out must be stated.
It is obvious that merely repeating the words of the statute does not amount to a proper statement of facts and the section requires that material facts of corrupt practices must be stated.
If the material facts of the corrupt practice are stated more or better particulars of the charge may be given later, but where the material facts themselves are missing it is impossible to think that the charge has been made or can be later amplified.
This is tantamount to the making of a fresh petition.
Reverting therefore to our own case we find that the allega tion in paragraph 2J was that Mr. Fernandez made some state ments and the 'Maratha ' published them.
Extracts from the 'Maratha ' were filed as Exhibits.
Since publication of a false statement is the gist of an election offence the charge was against the 'Maratha '.
If it was intended that Mr. Fernandez should be held responsible for what he said then the allegation should have been what statement Mr. Fernandez made and how it offended the election law.
In 2J itself only three statements were specified and two of them had nothing to do with Mr. Fernandez and the third was merely a news item which the 'Maratha ' had published.
There was no reference to any statement by Mr. Fernandez himself throughout the petition as it was originally filed.
In fact there was no charge against Mr. Fernandez which could have brought the case within section 101 (b) of the Act.
The attempt was only to make out the case under section 100 (1) (d) against the 'Maratha ' (or Mr. Atrey) pleading Mr. Atrey as agent of Mr. Fernandez.
That too was pleaded in the amendments.
The result is that the case gets confined to that of a candidate responsible for the acts of his agent.
In the argument before us Mr. Chari for Mr. Fernandez conceded the position that Mr. Atrey could be treated as the agent of Mr. Fernandez.
We are therefore relieved of the trouble of determining whether Mr. Atrey could be held to be an agent or not.
The trial Judge was also satisfied that Mr. Atrey could be held to have acted as the agent of Mr. Fernandez.
The case as originally pleaded fell within section 100(1) (d) with the additional burden.
Although Mr. Daphtary was content to prove that the consent of Mr. Fernandez was immaterial as the corrupt practice of his agent was equally fatal to the election and attempted to prove his case under section 100 (1) (d) of the Act, Mr. Jethamalani who took over the argument from him contended that the case fell to be governed by section 101 (b) that is to say, of any person who did the act with the consent of Mr. Fernandez.
It is therefore necessary to pause here to decide, whether Mr. Atrey had the consent of Mr. Fernandez to the publications in his newspaper.
The difference between Mr. Daphtary 's argument and that of Mr. Jethamalani lies in this.
In the latter the consent of the 630 candidate must be proved to each corrupt practice alleged, in the former there is only need to prove that a person can be held to have acted as an agent with the consent of the candidate.
An agent in this connection is ;not one who is an intermeddler but one acting with the consent, express or implied, of the candidate.
According to Mr. Jethamalani when an agent works regularly for a candidate the consent to all his acts must be presumed and he contends that the court was wrong in requiring proof of prior consent to each publication.
On the other hand, Mr. Chari 's case is that when Mr. Atrey acted as an agent and when he did not act as an agent, is a question to be considered in respect of each publication in the 'Maratha '.
According to him it is not sufficient merely to say that Mr. Atrey was an agent because Mr. Atrey was also editor of the newspaper and in running his newspaper his activities were his own and not on behalf of Mr. Fernandez.
Mr. Jethamalani relies strongly upon the case of Rama Krishna (C.A. No. 1949 of 1967 decided on April 23, 1968) and Inder Lall Yugal Kishore vs Lal Singh(1).
Rama Krishna 's case was decided on its special facts.
There the agent was one who had been employed regularly by Rama Krishna not only in the last election but also in two previous elections.
Rama Krishna stated that the arrangements for his election were completely left in that agent 's hands.
The agent had got printed some posters which had defamed the candidate and these posters were exposed on the walls.
Rama Krishna admitted that he had seen these posters and also that he had paid for the posters when the bill was presented to him.
In fact he included the amount in his return of election expenses.
It was from these combined facts that the consent of Rama Krishna to the corrupt practice of.
making false and defamatory statements was held proved.
The case therefore is not one in which the person while acting in a different capacity makes a defamatory statement.
In the case from Rajasthan the rule laid down was that the association of persons or a society or a political party or its permanent members, who set up a candidate, sponsor his cause, and work to promote his election, may be aptly called the agent for election purposes.
In such cases where these persons commit a corrupt practice unless the exception in section 100(2) apply the returned candidate should be held guilty.
We shall consider this question later.
Before we deal with the matter further we wish to draw attention to yet another case of this Court reported in Kumara Nand vs Brijmohan Lal Sharma(2).
In that case section 123(4) was analysed.
It was held that the belief must be that of the candidate himself.
The word "he" in the sub section where it occurs for the first time was held to mean the candidate.
This Court observed as follows (1) A.T.R. (2) ; 631 "The sub section requires : (i) publication of any statement of fact by a candidate, (ii) that fact is false, (iii) the candidate believes it to be false or does not believe it to be true, (iv) the statement is in relation to the personal character or conduct of another candidate; and (v) the said statement is one being reasonably calculated to prejudice the prospects of the other candi date 's election.
(See Sheopat Singh vs Ram Pratap(1) This case thus lays down that the person with whose belief the provision is concerned is ordinarily the candidate who, if we may say so, is responsible for the publi cation.
The responsibility of the candidate for the publication arises if he publishes the thing himself.
He is equally responsible for the publication if it is published by his agent.
Thirdly he is also responsible where the thing is published by any other person but with the consent of the candidate or his election agent.
In all three cases the responsibility is of the candidate and it is ordinarily the candidate 's belief that matters for this purpose.
If the candidate either believes the statement to be false or does not believe it to be true he would be responsible under section 123(4).
In the present case.
the poem was not actually read by the appellant, but it was read in his presence at a meeting at which he was presiding by Avinash Chander.
In these circumstances.
the High Court was right in coming to the conclusion that the recitation of the poem by Avinash Chander at the meeting amounted to the publication of the false statement of fact contained in it by another person with the consent of the candidate, and in this case, even of his election agent who was also present at the meeting.
, But the responsibility for such publication in the circumstances of this case is of the candidate and it is the candidate 's belief that matters and not the belief of the person who actually read it with the consent of the candidate.
What would be the position in a case where the candidate had no knowledge at all of the publication before it was made need not be considered for that is not so here.
It is not disputed in this case that the statement that the respondent was the greatest of all thieves, was false.
It is also not seriously challenged that the appellant did not believe it to be true.
The contention that Avinash Chander 's belief should have been proved must therefore fail.
" From this case it follows that to prove a corrupt practice in an agent is not enough, the belief of the candidate himself must (1) ; 632 be investigated with a view to finding out whether he made a statement which he knew to be false or did not believe to be true.
When we come to the facts of the case in hand we shall find that most of the statements were made by a newspaper editor in the normal course of running a newspaper.
Some of the passages which are criticised before us were made as news items and some others were put in the editorial.
It is to be remembered that the newspaper ran a special column called "George Femandez 's Election Front".
No article or comment in that column has been brought before us as an illustration of the corrupt practice.
A newspaper publishes news and expresses views and these are functions normal to a newspaper.
If the same news appeared in more than one paper, it cannot be said that each editor acted as agent for Mr. Fernandez and by parity of reasoning a line must be drawn to separate the acts of Mr. Atrey in running his newspaper and in acting as an agent.
Mr. Atrey was not a wholetime agent of Mr. Fernandez so that anything that he said or did would be treated as bearing upon the belief of Mr. Fernandez as to the truth of the statements made by Mr. Atrey.
Therefore, every act of Mr. Atrey could not be attributed to Mr. Fernandez so as to make the latter liable.
We have therefore to analyse these articles to find out which of them answers the test which we have propounded here.
But the fact remains that the case was pleaded on the basis of corrupt practices on the part of an agent but by the amendment the candidate was sought to be charged with the corrupt practices personally.
As there was no such charge or ground in the original petition and as the application for amendment was made long after the period of limitation was over the amendment could not be allowed.
Accordingly we ruled out the amendments concerning the personal speeches of Mr. Fernandez and the article in the 'Blitz '.
After we announced our conclusion about the amendments Mr. Daphtary with the permission of the Court left the case in the hands of Mr. Jethamalani and the argument to which we have already referred in brief was advanced by him.
As pointed out already Mr. Jethamalani attempted to prove that the case would be governed by section 100 (1) (b) that is to say that the statements in the 'Maratha ' were published with the consent of Mr. Fernandez.
Mr. Jethamalani deduced this from the course of events and argued that on proof of the corrupt practices committed by the 'Maratha ', Mr. Fernandez would be personally liable.
He based himself on the following, facts.
He pointed out that Mr. Fernandez had admitted that he desired that the newspapers should support his candidature and therefore must have been glad that the 'Maratha ' was Supporting him.
and the articles in the 'Maratha ' were uniformly for the benefit of Mr. Fernandez.
Sampurna Maharashtra Samiti was also supporting the candidature of Mr. Fernandez and the 'Maratha ' had made common cause with the Sampurna Maha 633 rashtra Samiti, the offices of both being situated in the same building which was also Mr. Atrey 's residence.
Mr. Atrey was the editor of the 'Maratha ' and Chairman of the Sampurna Maharashtra Samiti.
Mr. Atrey was also a candidate supported by the Sampuma Maharashtra Samiti.
Mr. Fernandez and Mr. Atrey had a common platform and they supported each other in their respective constituencies.
The 'Maratha ' carried a column "George Femandez 's Election Front" which was intended to 'be a propaganda column in favour of Mr. 'Fernandez.
He contended that Mr. Fernandez could not be unaware of what Mr. Atrey was doing.
He pointed out several statements of Mr. Fernandez in which he sometime unsuccessfully denied the knowledge of various facts.
He contended lastly that Mr. 'Fernandez had social contacts with Mr. Atrey and could not possibly be unaware that Mr. Atrey was vociferously attacking Mr. Patil 's character and conduct.
Mr. Jethamalani therefore argued that there was knowledge and acquiescence on the part of Mr. Fernandez and as there was no repudiation of what the 'Maratha ' published against Mr. Patil, Mr. Fernandez must be held responsible.
The learned trial Judge in his judgment has given a summary of all these things at page 695 and it reads "To sum up, it is clear from the above discussion that respondent No. 1 is a prominent member of the SSP, that the SSP is ' a constituent unit of the SMS, that both Acharya Atrey and respondent No. 1 participated in the formation of the SMS that they both participated in the inauguration of the election campaign by the SMS, that the SMS, carried on election propaganda for candidates supported by it including respondent No. 1, that Acharya Atre was the president of the Bombay Unit of the SMS and was a prominent and a leading member thereof, that each of them addressed a meeting of the constituency of the other to carry on election propaganda for the other, that Acharya Atre through the columns of his newspaper Maratha carried on intensive and vigorous campaign for success of candidates supported by the SMS including respondent No. 1, that Acharya Atre started a special feature in Maratha under the heading "George Fernandez Election Front".
These factors amongst others show that Acharya Atre had authority to canvass for respondent No. 1, that be made a common cause with respondent No. 1, for promoting 'his election, that to the knowledge of respondent No. 1 and for the purpose of promoting his election, he (Atre) canvassed and did various things as tended to promote his election.
This in law is sufficient to make Acharya Atre an agent of respondent No. 1, as that term is understood under the election law.
" 634 Mr. Jethamalani contended in further support that there was a clear similarity in the statements and utterances of Mr. Fernandez and Mr. Atrey.
He inferred a high probability of concept between them.
In this connection he referred in particular to the speech of Mr. Fernandez at Shivaji Park and the conduct of Shanbhag, one of his workers, in following up what Mr. Fernandez had said.
We shall refer to this last part later on which a considerable part of the time of the Court was spent, although we had ruled out the amendment with regard to the speech at Shivaji Park.
Mr. Jethamalani referred to the following cases among others in support of his contention that consent in such circumstances may be assumed : Nani Gopal Swami vs Abdul Hamid Choudhury and Another(1), Adams and Others vs Hon.
E.F. Leveson Gower (2) Christie vs Grieve(3) and W. F. Spencer; John Blundell vs Charles Harrison(4).
There is no doubt that consent need not be directly proved and a consistent course of conduct in the canvass of the candidate may raise a presumption of consent.
But there are cases and cases.
Even if all this is accepted we are of opinion that consent cannot be inferred.
The evidence proves only that Mr. Atrey was a supporter and that perhaps established agency of Mr. Atrey.
It may be that evidence is to be found supporting the fact that Mr. Atrey acted as agent of Mr. Femandez with his consent.
That however does not trouble us 'because Mr. Chari admitted that Mr. Atrey can be treated as an agent of Mr. Fernandez.
It is however a very wide jump from this to say that Mr. Fernandez had consented to each publication ;as it came or ever generally consented to the publication of items defaming the character and conduct of Mr. Patil.
That consent must be specific.
If the matter was left entirely in the hands of Mr. Atrey who acted solely as agent of Mr. Fernandez something might be said as was done in Rama Krishna 's case(5) by this Court.
Otherwise there must be some reasonable evidence from which an inference can be made of the meeting of the minds as to these, publications or at least a tacit approval of the general conduct of the agent.
If we were not to keep this distinction in mind there would be no difference between section 100(1)(b) and 100(1)(d) in so far as an agent is concerned.
We have shown above that a corrupt act per se is enough under section 100 (1) (b) while under section 100 (1) (d) the act must directly affect the result of the election in so far as the returned candidate is concerned.
Section 100(1) (b) makes no mention of an agent while section 100 (1) ( (d) specifically does.
There must ' be some reason why this is so.
The reason is this that an agent cannot make the candidate responsible unless the candidate has consented or the act of the (1) (2) 1 O 'Malley and Hardcastle 218.
(3) 1 O 'Malley and Hardcastle 251.
(4) 3 O 'Malley and Hardcastle 148.
(5) C.A. No. 1949 of 1967 decided on April 23,1968.
635 agent has materially affected the election of the returned candidate.
In the case of any person (and he may be an agent) if he does the act with the consent of the returned candidate there is no need to prove the effect on the election.
Therefore, either Mr. Jethamalani must prove that there was consent and that would mean a reasonable inference from facts that Mr. Fernandez consented to the acts of Mr. Atrey or he must prove that the result of the election was seriously affected.
If every act of an agent must be presumed to be with the consent of the candidate there would be no room for application of the extra condition laid down by section 1 00 ( 1 ) (d), because whenever agency is proved either directly or circumstantially, the finding about consent under section 1 00 ( 1 ) (b) will have to follow.
We are clearly of opinion that Mr. Jethamalani 's argument that section 100 (1) (b) applies can only succeed if he establishes consent on the part of Mr. Fernandez.
We have already pointed out that Mr. Atrey was also the editor of a newspaper which, as Mr. Patil has himself admitted, was always attacking him.
Mr. Atrey had opened a column in his newspaper to support Mr. Ferandez 's candidature.
Although nine articles appeared in the column between December 3, 1966 to February 2, 1967, not a single false statement from this column has been brought to our notice.
There was not even a suggestion that Mr. Fernandez wrote any article for the 'Maratha ' or communicated any fact.
It is also significant that although Mr. Atrey addressed meetings in the constituency of Mr. Fernandez, not a single false statement of Mr. Atrey was proved from his speeches on those occasions.
The petitioner himself attended one such meeting on February 4,1967, but he does not allege that there was any attack on his personal character or conduct.
The learned trial Judge has also commented on this fact.
We think that regard being had to the activities of Mr. Atrey as editor and his own personal hostility to Mr. Patil on the issue of Sampuma Maharashtra Samiti, we cannot attribute every act of Mr. Atrey to Mr. Fernandez.
Mr. Chari is right in his contention that Mr. Atrey 's field of agency was limited to what he said as the agent of Mr. Fernandez and did not embrace the field in which he was acting as editor of his newspaper.
It is also to be noticed that Mr. Atrey did not publish any article of Mr. Fernandez, nor did he publish any propaganda material.
The meeting at Shivaji Park about which we shall say some thing presently, was not held in Mr. Fernandez 's constituency.
The similarity of ideas or even of words cannot be pressed into service to show consent.
There was a stated policy of Sampuma Maharashtra Samiti which wanted to, join in Maharashtra all the areas which had not so far been joined and statements in that 636 behalf must have been made not only by Mr. Atrey but by several other persons.
Since Mr. Atrey was not appointed as agent we cannot go by the similarity of language alone.
It is also very significant that not a single speech of Mr. Fernandez was relied upon and only one speech of Mr. Fernandez namely, that at Shivaji Park was brought into arguments before us came by an amendment which we disallowed.
The best proof would have been his own speech or some propaganda material such as leaflets or pamphlets etc.
but none was produced.
The 'Maratha ' was an independent newspaper not under the control of the Sampurna Maharashtra Samiti or the S.S.P. which was sponsoring Mr. Fernandez or Mr. Fernandez himself.
Further we have ruled out news items which it is the function of the newspaper to publish.
A news item without any further proof of what had actually happened through witnesses is of no value.
It is at best a secondhand secondary evidence.
It is well known that reporters collect information and pass if on to the editor who edits the news item and then publishes it.
In this process the truth might get perverted or garbled.
Such news items cannot be said to prove themselves although they may be taken.
into account with other evidence if the other evidence is forcible.
In the present case the only attempt to prove a speech of Mr. Fernandez was made in connection with the Shivaji Park meeting.
Similarly the editorials state the policy of the newspaper and its comment upon the events.
Many of the news items were published in other papers also.
For example Free Press Journal, the Blitz and writers like Welles Hengens had also published similar statements.
If they could not be regarded as agents of Mr. Fernandez we do not see any reason to hold that the 'Maratha ' or Mr. Atrey can safely be regarded as agent of Mr. Fernandez when acting for the newspaper so as to prove his consent to the publication of the defamatory matter.
We are therefore of opinion that consent cannot reasonably be inferred to the publications in the 'Maratha '.
We are supported in our approach to the problem by a large body of case law to which our attention was drawn by Mr. Chari.
We may refer to a few cases here : Biswanath Upadhaya vs Haralal Das and Others(1), Abdul Majeed vs Bhargavan (Krishnan) & otherS(2), Rustom Satin vs Dr. Sampoornanand and Others(3), Sarla Devi Pathak vs Birendra Singh & OtherS(4), Krishna Kumar vs Krishna Gopal(5), Lalsing Keshrising Rehvar vs Vallabhdas Shankerlal Thekdi and Others(6), Badri Narain Singh and Others vs Kamdeo Prasad Singh and Another (7) and Sarat Chandra Rabba vs Khagendranath Nath and others(8).
It is not necessary to (1) (2) A.I.R. 1963 Kerala 18.
(3) (4) (5) A.I.R. (6) A.I.R. 1967 Gujarat 62.
(7) A.I.R. 1961 Patna 41.
(8) ; 637 refer to these cases in detail except to point out that the Rajasthan case dissents from the case from Assam on which Mr. Jehamalani relied.
The principle of law is settled that consent may be inferred from circumstantial evidence but the circumstances must point unerringly to the conclusion and must not admit of any other explanation.
Although the trial of an election petition is made in accordance with the Code of Civil Procedure, it has been laid down that a corrupt practice must be proved in the same way as a criminal charge is proved.
In other words, the election petitioner must exclude every hypothesis except that of guilt on the part of the returned candidate.
or his election agent.
Since we. have held that Mr. Atrey 's activities must be viewed in two compartments, one connected with Mr. Fernandez and the other connected with the newspaper we have to find out whether there is an irresistible, inference of guilt on the part of Mr. Fernandez.
Some of the English cases cited by Mr. Jethamalani are not a safeguide because in England a distinction is made between "illegal practices" and "corrupt practices".
Cases dealing with "illegal practices" in which the candidate is held responsible for the acts of his agent are not a proper guide.
It is to be noticed that making of a false statement is regarded as "illegal practice" and not a "corrupt practice" and the tests are different for a corrupt practice.
In India all corrupt practices stand on the same footing.
The only difference made is that when consent is proved on the part of the candidate or his elec tion agent to the commission of corrupt practice, that itself is sufficient.
When a corrupt practice is committed by an agent and there is no such consent then the petitioner must go further and prove that the result of the election in so far as the returned candidate is concerned was materially affected.
In Bayley vs Edmunds, Byron and Marshall(1), strongly relied upon by Mr. Daphtary the publication in the newspaper was not held to be a corrupt practice but the paragraph taken from a newspaper and printed as a leaflet was held to be a corrupt practice.
That is not the case here.
Mr. Patil 's own attitude during the election and after is significant.
During the election he did not once protest that Mr. Fernandez was spreading false propaganda, not even when Mr. Fernandez charged his workers with hooliganism.
Even after the election Mr. Patil did not attribute anything to Mr. Fernandez.
He even said that the Bombay election was conducted with propriety.
Even at the filing of the election petition he did not think of Mr. Fernandez but concentrated on the 'Maratha '.
Mr. Daphtary sought to strengthen the inference about con sent from the inter connection of events with the comments in the 'Maratha '.
He refers to the news item appearing in the (1) L10Sup./69 6 638 'Times of India ' of February 10, 1967 in which the letting loose of bad characters was alleged to be commented upon by Mr. Fernandez.
He connected this with the activities of Shanbhag who wrote to the Election Commission and then pointed out that the 'Maratha ' came out with it.
But if the 'Times of India cannot be regarded as the agent no more can the 'Maratha '.
A newspaper reporting a meeting does so as part of its own activity and there can be no inference of consent.
What was necessary was to plead and prove that Mr. Fernandez said this and this.
Then the newspaper reports could be taken in support but not independently.
Here the plea was not taken at all and the evidence was not direct but indirect.
Mr. Jethamalani referred to some similarity in the reaction of the 'Maratha ' and Mr. Fernandez to the events.
The Babu bhai Chinai incident was said to be a fake by both the 'Maratha ' and Mr. Fernandez, the Sayawadi meeting (not pleaded) was said to be followed by similar statements in the 'Maratha ', the Bristol Grill Conference was reported in the 'Maratha '.
All this shows that the rival party believed in certain facts but it does not show that the 'Maratha ' was publishing these articles with Mr. Fernandez 's consent.
In fact this argument has been wrongly allowed.
Before this there was not so much insistence upon consent as thereafter.
Now it may be stated that mere knowledge is not enough.
Consent cannot be inferred from knowledge alone.
Mr. Jetha malani relied upon the Taunton case(1) where Blackburn.
J. said that one must see how much was being done for the candidate and the candidate then must take the good with the bad.
There is difficulty in accepting this contention.
Formerly the Indian Election Law mentioned 'knowledge and connivance ' but now it insists on consent.
Since reference to the earlier phrase has been dropped it is reasonable to think that the law requires some concrete, proof, direct or circumstantial of consent, and not merely of knowledge and connivance.
It is significant that the drafters of the election petition use the phrase 'knowledge and connivance ' and it is reasonable to think that they consulted the old Act and moulded the case round 'knowledge and connivance ' and thought that was sufficient.
We cannot infer from an appraisal of the evidence of Mr. Fernandez that he had consented.
His denial is there and may be not accurate but the burden was to be discharged by the election petitioner to establish consent.
If Mr. Fernandez suppressed some other facts or denied them, there can be no inference that (1) 1 O 'Malley and Hardcastle 181, 185.
639 his denial about knowledge of the articles in the 'Maratha ' was also false.
M. Fernandez denied flatly that he saw the articles explaining that there was no time to read newspapers, a fact which has the support of Mr. Patil who also said that he had no time to read even cuttings placed by his secretary for his perusal.
We may say here that we are not impressed by the testimony of Mr. Fernandez and we are constrained to say the same about Mr. Patil.
We cannot on an appraisal of all the materials and the arguments of Mr. Daphtary reach the conclusion that Mr. Fernandez was responsible for all that Mr. Atrey did in his newspaper or that his consent can be inferred in each case.
The most important argument was based on the meeting at Shivaji Park on January 31, 1967 where Mr. Fernandez spoke.
As the subject of the charge in the original petition did not refer to this speech and we disallowed the amendment, Mr. Jethamalani attempted to reach the same result by using the speech as evidence of consent to the publication of the report in the 'Maratha '.
Here we may say at once that the speech could not be proved because it was not pleaded.
Much time was consumed to take us through the evidence of witnesses who gave the exact words of Mr. Fernandez.
Mr. Fernandez was alleged to have said that Mr. Patil was not honest and won elections by changing ballot boxes.
Mr. Fernandez did not admit having made the speech.
Four witnesses Tanksale, Bhide, Khambata and Bendre who alleged that they were present at the meeting deposed to this fact.
We have looked, into their evidence and are thoroughly dissatisfied with it.
Ramkumar, a reporter was also cited.
He covered the meeting for the 'Indian Express ' but his newspaper had not published this part and Ramkumar was examined to prove that it was deleted by Rao the Chief Reporter.
The evidence of Ramkumar was so discrepant with that of Rao that the trial Judge could not rely on it and we are of the same opinion.
The fact that in exhibit 56 Mr. Fernandez had spoken of the 'ways and means ' of winning elections of Mr. Patil cannot be held to be proof nor the activities of Shanbhag in arranging for a watch of the ballot boxes.
Every candidate is afraid that the ballot boxes may be tampered with and there is no inference possible that because Mr. Fernandez or Shanbhag 'his worker took precautions, Mr. Fernandez must have made a particular speech.
It was said that Randive in his evidence admitted that Mr. Fernandez made such comments.
We do not agree.
His version was different.
There is reason to think that there was an attempt to suborn witnesses and make them support this part of the case or to keep away from the witness box.
One such attempt was made on Randive.
We are not impressed by the witnesses who came to disprove the petitioners case but that does not improve it either.
It seems that attempts were being made to enlist support for such a contention and the evidence shows that the wit 640 nesses were not free from influence.
It is not necessary to go into the evidence on the other side such as that of Dattu Pradhan and Prafulla Baxi.
They do not impress us either.
We are, accordingly not satisfied that Mr. Fernandez made any such comment.
If he did that would be a ground of the very first importance to an election petition.
It is a little surprising that it was alleged so late and appears to be an after thought and intended to put into the mouth of Mr. Fernandez one of the statements of the 'Maratha '.
Consent to the making of the statement in the 'Maratha ' had, therefore, to be proved and there is no such proof.
For the same reasons we cannot regard Jagadguru Shankara charya or Mr. Madhhu Limaye as the agents of Mr. Fernandez.
The evidence regarding their agency itself is nonexistent and there is no material on which consent can be presumed or inferred.
The result of the foregoing discussion is that this case will have to be judged of under section 1 00 ( 1 ) (d) and not under section 100 (1) (b).
In the arguments before us Mr. Chari conceded that some of the articles contain false statements regarding the character and conduct of Mr. Patil.
He mentioned in this connection five articles.
It is, not, therefore, necessary to examine, each of the 16 articles separately.
If the conditions required by section 100, (1) (d) read with section 123 (4) are satisfied, a corrupt practice avoiding the election will be established.
The first condition is that the candidate 's belief in the falsity of the statements must be established That was laid down by this Court in Kumara Nand vs Brijmohan Lal Sharma(1).
The second condition is that the result of the election in so far as Mr. Fernandez is concerned must be shown to be materially affected.
Thus we have not only to see (a) that the statement was made by an agent, (b) that it was false etc., (c) that it related to the personal character and conduct of Mr. Patil, (d) that it was reasonably calculated to harm his chances but also (e) that it in fact materially affected the result of the election in so far as Mr. Fernandez was concerned.
Of these (a) and (c) are admitted and (b) is admitted by Mr. Fernandez because he said that he did not believe that there was any truth in these statements.
The question next is whether they were calculated to affect the prospects of Mr. Patil.
Here there can be no two opinions.
These articles cast violent aspersions and were false as admitted by Mr. Fernandez himself.
The course of conduct shows a deliberate attempt to lower his character and so they must be held to be calculated to harm him in his election.
So far the appellants are on firm ground.
Even if all these findings are in favour of the appellants, we cannot declare the election to be void under section 100(1) (d) (ii) unless we reach the further conclusion that the result of the election in so (1) ; 641 far as Mr. Fernandez was concerned had been materially affected.
The section speaks of the returned candidate when it should have really spoken of the candidate who was defamed or generally about the result.
However it be worded, the intention is clear.
The condition is a prerequisite.
Mr. Jethamalani argued that the words "materially affected" refer to the general result and not how the voting would have gone in the absence of the corrupt practice.
According to him section 94 of the Act bars disclosure of votes and to attempt to prove how the voting pattern would have changed, would involve a violation of section 94.
According to him the court can give a finding by looking to the nature of the attacks made, the frequency and extent of publicity, the medium of circulation and the kind of issue that was raised before the voters.
He contends that to tell the Maharashtrians that Mr. Patil paid a bribe to the voters of Goa to keep it centrally administered, to call Mr. Patil a Najibkhan of Maharashtra i.e. a traitor, to dub him as the creator of Shiv Sena which terrorized the minorities, to describe him as a goonda and leader of goondas who organised attacks on voters, to charge him with the responsibility of attack on Parliament and the Congress President 's residence and to describe him as dishonest to the extent of switching ballot boxes, is, to materially affect the result of the voting.
According to him these circumstances furnish a _good basis for the finding that the result of the election was positively affected and nothing more is needed.
According to Mr. Jethamalani the capacity of Mr. Atrey when making these violent attacks was irrelevant as he was acting in support of the canvass of Mr. Fernandez.
Mr. Jethamalani further submits that different false state ments were intended to reach different kind of voters.
The Maharashtrians were affected by the Goa and border issues, the minorities by the Shiv Sena allegations, the law abiding citizens by the allegations about goondaism.
Thus there must have been a land slide in so far as Mr. Patil was concerned and there must have been corresponding gain to Mr. Fernandez.
He relies upon Hackney case(1) where Grove, J. made the following observations at pages 81 and 82 "I have turned the matter over in my mind, and I cannot see, assuming that argument to express the meaning of that section, how the tribunal can by possibility say what would or might have taken place under different circumstances.
It seems to me to be a problem which the human mind has not yet been able to solve, namely, if things had been different at a certain period, what would have been the result of the concatenation of events upon that supposed change of circum (1) 2 O ' Malley and Hardcastle 's Election Reports 77. 642 stances.
I am unable at all events to express an opinion upon what would have been the result, that is to say, who would have been elected provided certain matters had been complied with here which were not complied with.
It was contended that I might hear evidence on both sides as to how an elector thought he would have voted at such election.
That might possibly induce a person not sitting judicially to form some sort of vague guess, out that would be far short of evidence, which ought to satisfy the mind of a judge of what any individual who might express that opinion would really do under what might have been entirely changed circumstances.
But, besides that, one of the principles of the Ballot Act is that voting should be secret, and voters are not to be compelled to disclose how they voted except upon a scrutiny after a vote has been declared invalid.
Notwithstanding that, I am asked here, assum ing the construction for which Mr. Bowen contends to be correct, to ascertain how either the 41,000 electors of this Borough, or any number of them, might have wished to vote had they had the opportunity of doing so, and what in that event would have been the result of the election.
It seems to me that such an inquiry would not only have been entirely contrary to the spirit of the Act, but also that it would be a simple impossibility.
I should, therefore, say that even if the wording of the Act, taking it literally and grammatically, required me to put sucha construction upon it, it would lead to such a manifest absurdity (using now the judicial term which has generally been used with reference to the construction of statutes) that unless I were in some way imperatively obliged, and unless the Act could by no possibility admit of any other construction, I should not put a construction upon it which really reduced the matter to a practical impossibility.
Such a construction would practically render it necessary, in the case of any miscarriage at an election, however great the miscarriage might be (if, that is to say, only a very small number of persons had voted, and all the rest of tile Borough had been entirely unable to vote) that the judge should then enquire as to how the election would have gone.
As I ventured to remark in the course of the argument, where a miscarriage of this sort took place it would be virtually placing the election not in the hands of the constituency, but in the hands of the election _judge, who is not to exercise a judgment as to who is to be the member, but who is only to see whether the election has been properly conducted according to law." 643 Justice Grove then gave the meaning of the provision at page 85 as follows : "If I look to the whole, and to the sense of it as a whole, it seems to me that the object of the Legislature in this provision is to say this an election is not to be upset for an informality or for a triviality, it is not to be upset because the clerk of one.
of the polling stations was five minutes too late, or because some of the polling papers were not delivered in a proper manner, or were not marked in a proper way.
The objection must be something substantial, something calculated really to affect the result of the election.
I think that is a way of viewing it which is consistent with the terms of the section.
So far as it seems to me, the reasonable and fair meaning of the section is to prevent an election from becoming void by trifling objections on the ground of an informality, because the judge has to look to the substance of the case to see whether the informality is of such a nature as to be fairly calculated in a reasonable mind to produce a substantial effect upon the election." Mr. Jethamalani invites us to apply the same test and in the light of his facts to say that the result of the election in so far as Mr. Fernandez is concerned was materially affected.
On the other hand, Mr. Chari relies upon the facts that there was a difference of 30,000 votes between the two rivals and as many as 38,565 votes were cast in favour of the remaining candidates.
He says that Mr. Patil had contested the earlier elections from the same constituency and the votes then obtained by him were not more in faithless.
He says it is impossible to say how much Mr. Patil lost or Mr. Fernandez gained by reason of the false statements and whether the affected voters did not give their votes to the other candidates.
He argues that the best test would be to see what Mr. Patil 's reactions were on hearing of his defeat.
In this connection he referred to exhibit 120 in which Mr. Patil commented on the elections in Bombay being orderly.
In exhibit 128 he said that the voters of Bombay had rejected him and that he has disappointed his supporters and they must pardon him, and that he must have been punished for some sin committed by him.
Mr. Chari says that never for a moment did Mr. Patil attribute his defeat to false propaganda by Mr. Fernandez or his supporters, which if it had been a fact Mr. Patil would have lost no time in mentioning.
All this shows that Mr. Patil maintained his position in this constituency.
Mr. Fernandez had earlier announced that be would organise support for himself from those who had voted in the past for his rivals , or had refrained from voting and this Mr. Fernandez was successful in achieving.
Mr. Chari relies upon the rulings of this Court where it has been laid down how the 644 burden of proving the affect on the election must be discharged.
He referred to the case reported in Vashist Narain Sharma V. Dev Chandra(1) and Surendra Nath Khosla vs Dilip Singh(2) and the later rulings of this Court in which Vashist Narain 's(1) case has been followed and applied.
In our opinion the matter cannot be considered on possibility.
Vashist Narain 's(1) case insists on proof.
If the margin of votes were small something might be made of the points mentioned by Mr. Jethamalani.
But the margin is large and the number of votes earned by the remaining candidates also sufficiently huge.
There is no room, therefore, for a reasonable judicial guess.
The law requires proof.
How far that proof should go or what it should contain is not provided by the Legislature.
In Vashist 's(1) case and in Inayatullah vs Diwanchand Mahajan, (3) the provision was held to prescribe an impossible burden.
The law has however remained as before.
We are bound by the rulings of this Court and must say that the burden has not been successfully discharged.
We cannot overlook the rulings of this Court and follow the English ruling cited to us.
To conclude and summarize our findings : We are satisfied that Mr. Atrey as the Editor of the 'Maratha ' published false statements relating to the character and conduct of Mr. Patil, calculated to harm the prospects of Mr. Patil 's election, that Mr. Atrey was the agent of Mr. Fernandez under the election law, but there is nothing to prove that he did so with the consent of Mr. Fernandez, nor can such consent be implied because in making the statements Mr. Atrey was acting as the editor of his own newspaper the 'Maratha ' and not acting for Mr. Fernandez.
We are further satisfied that the petitioner has failed to establish in the manner laid down in this Court, that the result of the election was materially affected in so far as Mr. Fernandez was concerned.
We are also satisfied that if the petitioner had pleaded corrupt practices against Mr. Fernandez personally (which he did not) the result might have been different.
The election petition was it considered and left out the most vital charges but for that the petitioner must thank himself.
In the result the appeals failed and as already announced earlier they are dismissed with costs.
V.P.S. Appeal dismissed.
(1) ; (2) (3) , 235 236.
| IN-Abs | Under section 81 of the Representation of the People Act, 1951, an election can be challenged by means of an election petition filed within 45 days of the date of election, on the grounds specified in section 100(1).
Section 100 (1) (b) and (d) (ii) deal with corrupt practices, and section 123 sets out what shall be deemed to be corrupt practices.
To establish the corrupt practice under section 123(4) the election petitioner must prove : (a) the publication of a statement of fact by (i) a candidate, or (ii) his agent, or (iii) any other person with the consent of the candidate or his election agent; (b) that the statement is false or the candidate believes it to be false or does not believe it to be true; (c) that the statement refers to the personal character and conduct of another candidate; and (d) that it is reasonably calculated to prejudice that other candidate 's prospects of election.
Under the Explanation to the section, the word 'agent ' includes an election agent, a polling agent or any person who is held to have acted as an agent in connection with the election with the consent of the candidate.
If the corrupt practice is committed by the returned candidate or his election agent, under section 100(1) (b), the election is avoided without any further condition being, fulfilled, but if the petitioner relies on a corrupt practice committed by any other agent other than an election agent the petitioner must prove that it was committed with the consent of the returned candidate or his election agent as required by section 100(1) (b), or, that the corrupt practice which was committed in the interests of the returned candidate materially affected the result of the election in so far as it concerned the returned candidate.
[617 A B; 618 B D] Section 83 requires that the petition must contain a concise statement of the material facts on which the petitioner relies and the fullest possible particular of the corrupt practice alleged. 'Material facts ' and 'particulars ' may overlap but the word 'material ' shows that the ground of corrupt practice and the facts necessary to formulate a complete cause of action must be stated.
The function of the Particulars is to present as full a picture of the cause of action as to make the opposite party understand the case he will have to meet.
Under section 86(5), if a corrupt practice.
is alleged in the petition the particulars of such corrupt practice may be amended or amplified for ensuring a fair and effective dial, that is, more and better particulars of the charge may be given later, even after the period of limitation; but if a corrupt practice is not previously alleged in the petition, an amendment which will have the effect of introducing parti 604 culars of such a corrupt practice will not be permitted, after the period of 'limitation, because, it would be tantamount to the making of a fresh petition.
Merely repeating the words of the statute does not amount to a proper statement of material facts where the allegation of corrupt practice is the making of a false statement.
The false statement must appear in the petition.
if the corrupt practice is the publication of an article in a newspaper no incorporation of the contents by reference can be allowed, for, if a newspaper is not exhibited and only the date is mentioned, the material fact, namely, the exact offending portion of the newspaper, would not have been stated.
If the charge is that an agent did something, it cannot be amplified by giving particulars of acts on the part of the candidate or vice versa, because, in the scheme of: election law, publication of false statements by an agent is one cause of action and publication of false statements by a candidate is quite a different cause of action.
They are separate corrupt practices which cannot be said to grow out of the material facts related to another person.
Since a single corrupt practice committed by the candidate or by his election agent, or by any other person with the consent of the candidate or his election agent is fatal to the election, the case must be specifically pleaded and strictly proved; if not, such corrupt practice cannot be alleged later on after the period of limitation [619 C H; 621 B D; 622 A D, F G; 623 E H; 629 A B] In the present case, the election of the first respondent to Parliament from Bombay South Parliamentary constituency, was challenged by the appellant (an elector in the constituency) on the ground that corrupt practices were committed.
The result of the poll was declared on February 24, 1967.
The first respondent secured 1,47,841 votes and his nearest rival, the second respondent, secured 1,18,407 votes.
The petition was filed on April 7, 1967.
The corrupt practice alleged was that the first respondent made some speeches, and that the first respondent and two others, with the consent and for the benefit of the first respondent, made false statements, casting aspersions on the character and conduct of the second respondent, and that those and other false statements were published as news items in the daily newspaper 'Maratha '.
Extracts from the newspapers were annexed.
It was also stated that similar false statements were published in some other issues of the newspaper but no attempt Was made either to specify the offending portions of the newspapers or to file the extracts or the original issues, but only the dates were given.
There was also no averment that the first respondent believed the statements to be false or did not believe them to be true.
After the period of limitation, the originals of all the issues of the newspapers were filed and after the examination of the election petitioner as a witness, applications for amendment were made.
The High Court allowed the following amendments : (a) Speeches attributed to the first respondent and a speech said to have been made at a meeting, when the first respondent presided, casting aspersions on the second respondent, to be included among the list of corrupt practices.
Reports of those speeches appeared in the issues of the 'Maratha ' which were filed later.
(b) An article in the 'Blitz, written by the first respondent defamatory of the second respondent also to be included in the list of corrupt practices.
(c) An averment that the editor of the newspaper 'Maratha ' and the first respondent believed the statements to be false or that they did not believe them to be true.
And (d) an averment that the editor of the newspaper and the two others were the agents of the first respondent.
The High Court however, dismissed the election petition.
[614 E F; 616 B] In appeal to this Court, on the questions : (1) Whether all or any of the amendments should be allowed; (2) Whether the editor of the 'Maratha ' and the two others committed corrupt practices under section 100 605 (1) (b) by publishing the statements about the second respondent with the consent of the first respondent and (3) Whether the result of the election in so far as it concerned the first respondent was materially affected by the publication as required by section 100(1) (d) (ii), HELD: (1) The amendments relating to the speeches of, the first respondent and his article in the Blitz should not be allowed; but the amendments relating to the agency of the editor of the 'Maratha ' and the two others, and that seeking to incorporate the averment about the lack of belief of the editor of 'Maratha and the first respondent should be allowed.
[616 E G] In the petition as originally filed, the agency of the editor of 'Maratha, and the two others was the basis of the charge and the first respondent was left out.
Only one allegation was made personally against the first respondent namely that he made some speeches but that was not relied upon and no evidence regarding it was adduced.
The other allegation in the original petition was that he made some statements, and that the 'Maratha ' published them; and the extracts from the 'Maratha were filed as exhibits.
Since publication of a false statement is the gist of the election offence the charge was against the 'Maratha, and its editor.
If it was intended that the first respondent should be held responsible then the allegation should have been what statement he made and how it offended the election law. 'Mere was however no reference to any statement by the first respondent himself throughout the petition as it was originally filed and in fact there was no charge against him.
During the election the second respondent did not once protest that the first respondent was spreading false propaganda and even after election he did not attribute anything to the first respondent.
Therefore, the amendments which had the effect of introducing new corrupt practices relating to the candidate himself which had not been pleaded earlier should not be allowed, as that kind of amendment, sought after the period of limitation, is prohibited under the law.
But the allegation that in publishing the statements in the 'Maratha ' its editor acted as the agent of the first respondent, that the statements were false or were believed to be false by the first respondent and the editor, and that they were calculated to prejudice the second respondent 's chances and did so prejudice, should be allowed.
They are merely particulars to be added for completing the cause of action relating to a current practice already alleged.
The result is that the 'case is confined to that of a candidate sought to be made responsible for the acts of his agent other than an election agent.
[620 G; 624 A F; 632 A B] Jagan Nath vs Jaswant Singh, , Bhim Sen vs Gopali, , Chandi Prasad Chokani vs State of Bihar, , Sheopat Singh vs Ram Pratap, ; and Kumara Nand vs Brij Mohan, [1967]1 2 S.C.R. 127, followed.
Harish Chandra Bajpai vs Triloki Singh, ; , explained.
Din Dayal vs Beni Prasad, , Balwant Singh, ;vs Election Tribunal, , Sasivarna Thevar vs Arunagiri, , Hari Vishnu Kamath vs Election Tribunal, , Devaiah vs Nagappa, A.I.R. 1965 Mys.
102, Babulal Sharma vs Brijnarain Brajesh, A.I.R. 1958 M.P. 175 (F.B.), Beal vs Smith L. R. 1 5; Bruce vs Odhams Press Ltd. and Phillips vs Phillips, , referred to.
(2) Regard however being had to the activities of the editor of 'Maratha ' as editor and his own personal hostility to the second respon L10Sup./69 4 606 dent, every act of the editor could not be attributed to the first respondent.
The editor 's field of agency must be limited to what he said as the agent of the first respondent and would not embrace the field in which he as acting as editor of his newspaper unless the first respondent 's con sent to the corrupt practices was established.
[636 E F; 638 B C] Consent need not be directly proved and could be inferred from circumstantial evidence, such as a consistent course of conduct of the candidate.
But the circumstances must point unerringly to the conclusion and must not admit of any other explanation.
Although an election petition is tried in accordance with the Civil Procedure Code, a corrupt pra ctice must be proved in the same way as a criminal,charge is proved.
English cases dealing with illegal practices in which the candidate is held :responsible for the acts of his agent, are not a proper guide, because English law, unlike Indian law, makes a distinction between 'illegal practices ' and 'corrupt practices '.
Fourth the consent of the candidate must 'be specific and must be proved for each corrupt practice.
If every act of an agent is presumed to be with the consent of the candidate there would be no room for the application of the extra condition laid down by section 100(1)(d), namely, the material effect on the result of the election, be ,cause, whenever agency is proved either directly or circumstantially, the finding about consent under section 100(1) (b) will hive, to follow.
[637 A H] In the present case, though the newspaper ran a special column as an ,election front of the first respondent, no article or comment in that column was relied on for proving a corrupt practice.
It was not even suggested that the first respondent wrote any article for the 'Maratha.
The statements which were relied on as corrupt practices we 're made by the editor of the newspaper in the normal course of running a newspaper, as news items or in the editorial.
They stated the policy of the newspaper and its comments upon the events.
Many of the news items ,appeared.
in more than one paper.
If it could not be said that the editors of each of those papers acted as an agent for the first respondent there is no reason for, holding that the editor of 'Maratha ' alone acted as such agent.
It was not as if the matter was left entirely in the hands of the ,editor who acted as a whole time agent or solely as the agent of the first respondent, nor is it a case of some persons setting up the first respondent as a candidate and sponsoring his cause.
The editor did not publish any propaganda material such as leaflets or pamphlets.
Therefore, though the editor was a supporter and agent of the first respondent, it could not be said that the first respondent consented to each publication as it appeared or even generally consented to the publication of items defaming the character and conduct of the second respondent.
The first respondent denied knowledge of the. articles.
From his false suppression of some other facts and denial of others, it could not be said that his denial of knowledge of the articles in the 'Maratha ' was also false.
But even if he had knowledge, it would not be sufficient, because, the law requires some concrete proof, direct or circumstantial, of consent, and not merely 'of knowledge or connivance.
Further, no such inference regarding the first respondent 's consent could be drawn from the comments and speeches attributed to the first respondent by the 'Maratha ' and other newspapers or from any similarity of ideas or language, because, news items when published are garbled versions and cannot be regarded as proof of what actually happened or was said without other acceptable evidence through prom witnesses.
[629 B H; 630 A B: 632 F H; 633 A D; 634 A H; A G; 636 AD; 638 A G; 639 A B] As regards the other two persons, even evidence regarding their agency was non existent and there was no material on which the first respondent 's consent to their statements could be presumed or inferred.
[640 A B] 607 Therefore, since the consent of the candidate to the corrupt Practice was not proved the case will have to be judged under section 100 (1) (d) (ii) and not under section 100(1)(b).
[640 D] Rama Krishna 's case, C.A. No. 1949/67 dated 234 68, Inder Loll Yugal Kishore vs Lal Singh, A.I.R. 1961 Raj. 122, Gopal Swami vs Abdul Hamid Chowdhury, A.I.R. 1959 Assam 200, Adams vs Hon.
E. F. Leveson Gower, 1 O 'Malley & Hardcastle 218, Christie vs Grieve, 1 O 'Malley & Hardcastle 251, Spencer, John Blundell vs Charles Harrison, 3 O 'Mally & Hardcastle 148, Biswanath Upadhava vs Haralal Das, A.I.R. 1958 Assam 97, Abdul Majeed vs, Bhargavan, A.I.R. 1963 Kerala 18, Rustom Satin vs Dr. Sampoornanand , Sarala Devi Pathak T. Birendra Singh, , Krishna Kumar vs Krishna Gopal, A.I.R. 1964 Raj. 21, Lai Singh vs Vallabhdas, A.I.R. 1967 Guj.
62, Badri Narain vs Kantdeo Prasad, A.I.R. 1961 Pat.
41, Sarat Chandra vs Khagendranath, ; and Taunton 's case, I O 'Malley & Hardcastle 181, 185, referred to.
Bayley vs Edmunds, Byron & Marshall , distinguished.
(3) To bring a case under section 100(1) (d) (ii) it is not sufficient to prove that a person acted as an agent with the consent of the candidate.
The petitioner will have to establish that the conditions required by section 100(1).(d)(ii) and section 123(4) are satisfied, that is : (a) that a false statement was made by an agent, (b) that the first respondent did not believe, the statement to be true or believed it to be false; (c) that it related to the personal character and conduct of the second respondent; (d) that it was reasonably calculated to harm the chances of the second respondent; and (e) that it in fact materially affected the result of the election in so far as the first respondent was concerned.
Conditions (a), (b) and (c).
were admitted by the first respondent and, since the articles cast violent aspersions on the second respondent and showed a deliberate attempt to lower his character, condition (d) was also satisfied.
But as condition (e) was not satisfied, the election petition should be dismissed.
[640 D H] Even after considering the nature of attacks made on the second respondent, the frequency and extent of publicity, the medium of circulation and the kinds of issues raised before the voters, it could not be said, in the circumstances of this case, that the result of the. election in so far as the first respondent was concerned was materially affected.
The matter could not be decided on possibilities or on a reasonable judicial guess, because, the law requires proof, and though section 100(1) (d) casts a difficult burden on the election petitioner, that burden must be successfully discharged by him.
[641 B D; 644 B D] There was a large difference (about 30,000) between the votes received by the two rival candidates, namely the first and second respondents, and as many as 38,565 votes were cast in favour of the remaining candidates and it is impossible to say how much the second respondent lost or first respondent gained by reason of the false statements.
After the election the second respondent never for a moment attributed his defeat to the false propangada of the first respondent or his supporters and even said that the election was conducted with propriety.
[64 3 E H; 644 D F] Vashist Narain Sarma vs Dev Chandra, ; , Surendra Nath Khosla vs Dalip Singh, and Inayatullah vs Diwanchand Mahajan, , 235, 236, followed.
Hackney 's case, 2 O 'Malley and Hardcastle, 77, referred to. 608
|
ppeals Nos.
1457 to 1459 of 1958.
Appeals from the judgment and order dated August 21, 1964 of the Madras High Court in T.C. No. 75 of 1962 (Reference No. 50 of 1962).
M. C. Chagla and T. A. Ramachandran, for the appellant (in all the appeals).
section K. Aiyar add B. D. Sharma, for the respondent (in all the appeals).
The Judgment of the Court was delivered by Shah, J.
Ramanathan Chettiar his son Muthiah Chettiar called hereinafter for the sake of brevity, Muthiah and Ramanathan, Annamalai and Alagappan, sons of Muthiah, constituted a Hindu undivided family.
The family owned a 3/5th share in M.R.M.S. Firm, Seramban in Malaya.
The firm was assessed under the Indian income tax Act, 1922, in the status of a firm resident within the taxable territories.
On September 16, 1950, Muthiah separated from the family taking his 1/5th share in the M.R.M.S. Firm.
On April 13, 1951 the status of the family became completely disrupted and the three sons of Muthiah took in equal shares the remaining 2/5th share the grandfather Ramanathan taking no share in the M.R.M.S. Firm.
For the assessment year 1952 53 Muthiah submitted a return of his income as an individual and stated under the head business income "Kindly ascertain his (assessee 's) share of profit and remittances from the Income tax officer, Second Additional Circle I, Karaikudi, in F. 6098 m/1952 53".
In Part III of the return Muthiah supplied the following information about his partners Name and address of Name of each partner Share the firm including assessee Messrs. R.RM.S. Firm 1.
Assessee (Muthiah Chettiar) 60/303 Seramban, F. M.S. 2.
M. RM.
M. Ramanathan Chettiar (minor).
40/303 3.
M. RM.
M. RM.
M. Alagappan Chettiar (minor).
40/303 4.
M. RM.
M. RM.
M. Annamalai Chettiar (minor) 40/303 6.
M.S.S. 60/303 7.
Charity 3/303 717 For the assessment year 1953 54 in column 3 in section B of the return Muthiah stated : "Kindly ascertain the remittances from the Income tax Officer, Fifth Additional, Karaikudi in F. 6098 m", and at p. 3 of the return in column 3 of Section F it was stated "Assessee has 60/303 share in Messrs. Joint Seramban (Malaya).
Kindly ascertain share of profit or loss from the Income tax Officer, Fifth Additional, Karaikudi in F. 6098.
" In Part III of the return he set out the names of the partners as, were mentioned in the return for 1952 53.
Against the names.
of Ramanathan Chettiar, Alagappan Chettiar and Annamalai Chettiar it was not disclosed that they were minors.
For the assessment year 1954 55 at the foot of page 1 of the return Muthiah stated : "The assessee has a remittance of Rs. 6,188 12 0 from R.R.M.S. Firm, Seramban.
His share of income may be taken from the firm 's file. ', and in Part III the names of seven partners as mentioned in 1952 53 return were set out Ramanathan, Alagappan, were not shown as minors.
Ramanathan, Alagappan and Aannamalai the three minor sons of Muthiah represented by their mother and guardian also filed returns of their respective income for the years 1952 53, 1953 54 and 1954 55 and disclosed therein their shares in the profit from the 2/5th share in the M.RM.S. Firm.
For the assessment years 1952 53, 1953 54 and 1954 55 the Income tax officer completed the assessments separately on the firm, on Muthiah as an individual and on the three minors represented by their mother and guardian.
Muthiah was assessed in respect of his share in the income of the firm and from other sources.
In his returns muthiah had not disclosed the share received by his minor sons and the Income tax officer did not in making the assessments include shares of the minors from the firm under section 16 (3) (a) (ii) of the Indian Income tax Act, 1922.
The Income tax Officer issued notices of reassessment to Muthiah under section 34(1) (a) of the Income tax Act, 1922 for the years 1952 53 and 1953 54 and under section 34(1) (b) for the year 1954 55.
Muthiah, filed returns under protest declaring the same income as originally assessed.
In the view of the Income tax Officer Muthiah had not furnished in Part III clause (c) of the return full facts regarding the other parties and in column 2 he had merely disclosed that Ramanathan, Alagappan and Annamalai were minors: that "information was not full in the sense that he had not stated that L10Sup./69 11 718 they were minors sons" of Muthiah.
Accordingly the Income tax Officer held that the income of the sons of Muthiah which should have been included under section 16 (3) (a) (ii) of the Income tax Act had escaped assessment in Muthiah 's hands and he brought that income to tax.
The Appellate Assistant Commissioner confirmed the order made by the Income tax Officer.
In appeal to the Tribunal it was contended by Muthiah that he had fully and truly disclosed all the particulars he was required to disclose in the returns of his income for the three years in question, and "section 34 (a) (a) had no application to the assessment years 1952 53 and 1953 54 and for 1954 55 the reopening was based only on a change of opinion".
Muthiah also contended that section 40 of the Income tax Act was mandatory and since the Income tax Officer had made separate assessments on the minors represented by their mother, no further ' assessment under section 16(3) could be made, the two sections being mutually exclusive.
The Tribunal observed that for the first two years section 34 (1) (a) applied, that in respect of the year 1954 55 there was no change of opinion but the assessment was made on information received within the meaning of section 34 (1 ) (b) of the Income tax Act and that separate assessment of the minors did not stop the Income tax Officer from assessing the income received by the minor sons in the hands of Muthiah.
The Appellate Tribunal accordingly confirmed the order of the Appellate Assistant Commissioner.
At the instance of Muthiah the following questions were referred to the High Court of Madras : (i) Whether on the facts and in the circumstances of the case, the re assessment made on the assessee under section 34 of the Act is valid in law for 1952 53 to 1954 55 ? (ii)Whether on the facts and in the circumstances of the case, the inclusion of the share income of the minor in the hands of the assessee by invoking the provisions of section 16(3) of the Act is valid in law notwithstanding that an assessment is made on the minor represented by his guardian ?" The answer to the second question must, in view of the recent judgment of this Court in C. R. Nagappa vs The Commissioner of Income tax, Mysore(1), be in the affirmative.
In considering the first question it is necessary to refer to certain provisions of the Income tax Act, 1922.
By section 3 (1) 719 the total income of the previous year of every individual, Hindu undivided family, Company and local authority and of every firm and other association of persons or the partners of the firm or the members of the association individually was charged to tax for that year in accordance with, and subject to the provisions of the act at any rate or rates prescribed by the Finance Act.
"Total income" was defined in section 2(15) as meaning "total amount of income, profits and gains referred to in sub section
(1) of section 4 computed in the manner laid down in this Act." Section 4(1) set out the method of computation of total income : it enacted (1) Subject to the provisions of this Act, the total income of any previous year of any person includes all income, profits and gains from whatever source derived which (a) are received or are deemed to be received in the taxable territories in such year by or on behalf of such person or (b) if such person is resident in the taxable territories during such year, (i) accrue or arise or are deemed to accrue or arise to him in the taxable territories during such year, or Section 22 by sub section
(1) required the Income tax Officer to give notice by publication in the press in the prescribed manner, requiring every person whose total income during the previous year exceeds the maximum exempt from tax, to furnish a return in the prescribed form setting forth his total income.
Sub sectian (2) authority the Income tax Officer to serve a notice upon a person whose income in the opinion of the Income tax Officer exceeded the minimum free from tax.
Section 23 dealt with the assessment.
It conferred power upon the Income tax Officer to assess the total income of the assessee and to determine the sum payable by him on the basis of such return, submitted by him.
Rule 19 framed under section 59 of the Income tax Act, 1922, required the assessee to make a return in the form prescribed thereunder, and in Form A applicable to an individual or a Hindu undivided family or an association of persons there was no clause which required disclosure of income of Any person other than the income of the assessee, which was liable to be included in his total income.
The Act and the Rules accordingly imposed no obligation upon the assessee to disclose to the Income tax Officer in his return information relating to income of any other person by law taxable in his hands.
720 But s ' 16 sub section
(3) provided that in computing the total income of any individual for the purpose of assessment there shall be included the classes of income mentioned in cls.
(a) and (b).
Sub section (3) (a) (ii) in so far as it is material provided "In computing the total income of any individual for the purpose of assessment, there shall be included: (a) so much of the income of a wife or minor child of such individual as arises directly or indirectly (i) (ii) from the admission of the minor to the benefits of partnership in a firm of which such individual is a partner;" The assessee was bound to disclose under section 22(5) the names and addresses of his partners, if any, engaged in business, profession or vocation together 'with the location and style of the principal place and branches thereof and the extent of the shares of all such partners in the profits of the business, profession or vocation and any branches thereof, but the as was not required in making a return to disclose that any income was received by his wife or minor child admitted to the benefits of partnership of a firm of which he was a partner.
Counsel for the Commissioner contended that in the forms of returns prescribed in the "Notes of Guidance" for drawing up the return were printed, and thereby the assessee was informed that he had to disclose the income received by his wife and minor children from a firm of which the assessee was a partner.
Counsel has however not placed before the Court the forms of return in vogue in the relevant year of assessment.
In the Income Tax Manual published under the authority of the Central Government in 1945 under cl.
(3) printed at p. 185 theassessee is advised to include the return under the appropriate headcertain classes of income which are liable to be included in theassessment of an individual under section 16, and income liable to betaxed under sections 41D, 44E and 44F.
This instruction was repeated in the Manual Parts II and III at pp. 344 and 345 in the 10th Edition published in 1950.
But in the 11th Edition of the Manual published in 1954 no such instructions were printed.
About the date on which the instructions were deleted Counsel for the Commissioner was unable to give any information.
Assuming that there were instructions printed in the Forms of return in the relevant years ', in the absence of any head under which the income of the wife or minor child of a partner whose wife or a minor child was a partner in the same firm, could be shown, by not showing that income the tax payer cannot be deemed to have failed or omitted to disclose fully and truly all material 721 facts necessary for his assessment.
Section 16(3) imposer, an obligation upon the Income tax Officer to compute the total income of any individual for the purpose of assessment by including the items of income set out in cls.
(a) (i) to (iv) and (b), but thereby no obligation is unposed upon the tax payer to disclose the income liable to be included in his assessment under section 16(3).
For failing or omitting to disclose that income proceedings for reassessment cannot therefore be commenced under section 34 (1) (a) Section 22(5) required the assessee to furnish particulars of the names and shares of his partners, but imposes no obligation to mention or set out the income of the nature mentioned in section 16(3).
In the relevant years there was no head in the form under which income liable to be assessed to tax under section 16(3) (,a) and (b) could be disclosed.
We are in the circumstances unable to agree with the High Court that section 34 imposed an obligation upon the assessee to disclose all income includable in his assessment by reason of section 16(3) (a) (ii).
Section 34(1) (a) sets out the conditions in which the power may be exercised : it did not give, rise to an obligation to disclose information which enabled the Income tax Officer to exercise the power under section 16(3) (a) (ii), nor had the use of the expression "necessary for his assessment" in section 34(1)(a) that effect.
The High Court did not consider the question whether in the year 1954 55 the notice under section 34(1) (b) was properly issued against Muthiah.
The Tribunal in their judgment observed: "There is no basis for the argument that the Income tax Officer had only changed his opinion and reopened the assessment.
" We agree with that view.
The order of re assessment was made well within four years from the date of the last day of the year of assessment 1954 55.
The notice was therefore competently issued by the Income tax Officer.
The order passed by the High Court,, in so far as it relates to the years 1952 53 and 1953 54 is set aside and the answer in the negative is recorded.
For the year 1954 55 the answer recorded by the High Court is confirmed.
There will be no order as to costs throughout.
Y.P. Appeal partly allowed.
| IN-Abs | The assessee and his minor sons separately held shares in a resident firm.
For assessment years 1952 53 to 1954 55, the assessee filed returns as an individual and therein stated under the head business income that the profit should be ascertained from the Income tax Officer assessing the firm.
The names of the partners were stated, but it was not stated in the return that some of the parties were his minor sons.
The minors, through their mother as guardian, also filed returns for these assessment years, and they were assessed to tax.
The assessee was also assessed as an individual, in respect of his share in the income of the firm and other sources, but the assessment order did not include the share of the minors from the firm.
The Income tax Officer issued notices of reassessment to the assessee under section 34(1) (a) of the Indian Income tax Act, 1922 for the years 1952 53 and 1953 54 and under section 34(1) (b) for the year 1954 55.
The Income tax Officer took the view that the assessee had not disclosed the fact that his sons were minors and the income of the sons which should have been included under section 16(3) (a) (ii) had escaped assessment in the assessee 's hands and accordingly he brought that income to tax.
The Appellate Assistant Commissioner confirmed this order.
The Appellate Tribunal, in appeal held that for the first two, years section 34(1) (a) applied, that in respect of the third year there was no change of opinion but the assessment was made on information received within the meaning of section 34(1) (b) and that the income of the minors could be assessed in the hands of the assessee 'notwithstanding the separate assessments already made on the minors.
On reference, the High Court answered the questions against the assessee.
In appeal, this Court, HELD : Section 16(3) of the Act imposed an obligation upon the Income tax Officer to compute the total income of any individual for the purpose of assessment by including the items of income set out in cls.
(a)(i) to (iv) and (b), but thereby no obligation was imposed upon the tax payer to disclose the income liable to be included in his assessment under section 16(3).
For failing or omitting to disclose that income proceedings for reassessment could not be commenced under section 34(1) (a).
Section 22(5) required the assessee to furnish particulars of the names of the shares of the partners but imposed no obligation to mention or set out the income of the nature mentioned in section 16(3).
In the relevant years there was no head in the form of return prescribed under the rules under which income liable to be assessed to tax under section 16(3) (a) & (b) could be disclosed.
These assessments under section 34(1) (a) for the years 1952 53 and 1953 54 could not, therefore be upheld.
[721 A] (ii) The income of a minor can be included in the hands of an assessee under section 16(3) of the Act, notwithstanding that an assessment has been made on the minor represented by his guardian.
[718 G H] 716 C.R. Nagappa vs Commissioner of Income tax, Mysore, , followed.
(iii) In respect of the assessment years 1954 55, there was no basis for the argument that the Income tax Officer had only changed his opinion.
The order of re assessment was made well within four years from the date of the last day of that assessment year.
The notice was, therefore, competently issued by the Income tax Officer.
L721 F]
|
Appeals Nos. 845 and 846 of 1963.
Appeals by special leave from the judgment and order dated January 17, 1958 of the Madras High Court in Civil Revision Petitions Nos. 981 and 982 of 1956.
section V. Gupte and R. Thiagarajan, for the appellants (in both the appeals).
Naunit Lal, for the respondents Nos. 1(c) and 17 (in C.A. No. 845 of 1963) and respondents Nos. 1 (c) and 16 (in C.A. No. 846 of 1963).
The Judgment of the Court was delivered by Hegde, J.
These appeals arise from an insolvency proceeding wherein one Ponnayya Konar and his sons were adjudicated as insolvents.
In the said proceeding the petitioning creditor sought to get annulled two mortgages one for Rs. 15,000 (Exh.
A 1) executed by the insolvents in favour of Ayyappa Naicker, the appellant in Civil Appeal No. 845 of 1963 and the other for Rs. 10,000 (Exh.
A 2), the subject matter of Civil Appeal No. 846 of 1963, in favour of one Srinivasa Naicker, the father in law of the aforementioned Ayyappa Naicker.
The said Srinivasa Naicker is dead and the appeal is being prosecuted by his legal representatives.
Both those mortgages are dated November 4, 1950 and they were registered on November 6, 1950.
The Insolvency Court held that those mortgages were not supported by consideration and that they were executed with a view to screen some of the properties of the insolvents from their creditors.
It accordingly annulled those mortgages under section 53 of the (hereinafter referred to as the Act).
In appeal the learned District Judge reversed the findings of the trial court.
He came to the conclusion that those mortgages were fully supported by consideration and that they were genuine transactions.
The High Court acting under the 1st proviso to section 75(1) of the Act reversed the judgment of the learned District Judge and restored that of the Insolvency Court.
These appeals have been brought against the decision of the High Court after obtaining special leave from this Court.
The learned Counsel for the appellants challenged the decision of the High Court primarily on two grounds.
According to him 700 the High Court while acting under the 1st proviso to section 7 5 (1) of the Act had no power to disturb the findings of fact reached by the appellate court.
Next he contended that the conclusions of the High Court are unsustainable on the evidence on record.
The learned Counsel for the contesting respondents supported the decision of the High Court.
The two principal questions that arise for decision in these appeals are (1) was the High Court within its jurisdiction in interfering with the findings of the learned District Judge that the impugned transactions are bona fide transactions and that they were supported by consideration and (2) are the conclusions reached by the High Court correct on the facts and circumstances of the case ? It would be convenient to take up first, the question as to the scope of the powers of the High Court under the 1st proviso to section 75 (1) of the Act.
That section reads : "The debtor, any creditor, the receiver or any other person aggrieved by a decision come to or an order made in the exercise of insolvency jurisdiction by a Court subordinate to a District Court may appeal to the District Court, and the order of the District Court upon such appeal shall be final : Provided that the High Court, for the purpose of satisfying itself that an order made in any appeal decided by the District Court was according to law, may call for the case and pass such order with respect thereto as it thinks fit : Provided further, that any such person aggrieved by a decision of the District Court on appeal from a decision of a subordinate Court under section 4 may appeal to the High Court on any of the grounds mentioned in sub section (1) of section 100 of the Code of Civil Procedure, 1908.
" According to Shri section V. Gupte, learned, Counsel for the appellants the jurisdiction of a High Court under the 1st proviso to section 75(1) is a very limited one, the same being not more than that conferred on it by sub section
(1) of section 100 of the Code of Civil Procedure.
In support of his contention he invited our attention to the scheme of section 75(1) of the Act.
He urged ' that sub section
(1) of section 75 prescribes that the decision of the District Court in appeal is final and the finality conferred on the decision of the District Court is subject to a very limited scrutiny by the High Court.
We were further told that the power conferred on the High Court under the 1st proviso to section 75(1) is only a revisional power, which power in its very nature is narrower in compass than an appellate pow&.
According to him the power conferred under the 1st proviso to section 75(1) of the Act is co extensive with that 701 given to the High Court under section 100(1) (a) of the Code 'of Civil Procedure.
On the other hand Mr. Naunit Lal, learned Counsel for the respondent urged that the High Court under the 1st proviso to section 75(1) of the Act has an extensive power and that power is very much wider than the power conferred on it under section 100(1) (a) of the Code of Civil Procedure; the power of the High Court under the 1st proviso to section 75 (1) of the Act to call for the case to satisfy itself that the order made by the District Court was according to law and pass such other order in respect.
thereto as it thinks fit includes within itself the right to examine whether the District Court had taken into consideration all the material evidence and whether it had properly assessed that evidence.
We are of the opinion that the extreme contentions advanced on either side cannot be accepted.
Quite clearly the legislature did not confer on the High Court under the 1st proviso to section 75 (1) of the Act an appellate power nor did it confer on it a jurisdiction to reappreciate the evidence on record.
While exercising that power the High Court, is by and large bound by the findings of fact reached by the District Court.
If the legislature intended to confer power on it to reexamine both questions of law and fact it would have conveyed its intention by appropriate words as has been done under various other statutes.
A wrong decision on facts by a competent court is also a decision according to law.
For these reasons we cannot accept the, contention of Mr. Naunit Lai that the power conferred under the 1st proviso to section 75 ( 1 ) of the Act enables it to de novo examine the findings of fact reached by the District Court.
A decision being "contrary to law" as provided in section 100(1) (a) of the Code of Civil Procedure is not the same thing as a decision being not "according to law" as prescribed in the 1st proviso of section 75(1) of the Act.
The latter expression is wider in ambit than the former.
It is neither desirable nor possible to give an exhaustive definition of the expression "according to law".
The power given to the High Court under the 1st proviso to section 75(1) of the Act is similar to that given to it under section 25 of the Provincial Small Causes Courts Act.
Explaining the scope of the latter provision Beaumont, C.J. (as he then was) in Bell & Co., Ltd. vs Waman Hemraj (1) observed: "The object of section 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law.
The section does not enumerate the cases in which the Court may (1) [1938]40 Bom.
L.R. 125.
L10Sup./69 10 702 interfere in revision, as does section 115 of the Code of Civil Procedure, and I certainly do not propose to attempt any exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders.
Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere.
But, in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who, heard the case may have arrived at a conclusion which the High Court would not have arrived at." The said statement of the law was accepted as correct by this Court in Hari Shankar vs Rao Girdhari Lal Chowdhury(1).
We think the same applies squarely to the 1st proviso to section 7 5 (1) of the Act.
In support of his contention Mr. Gupte placed considerable reliance on the decision of this Court in Official Receiver, Kanpur and Anr.
vs Abdul Shakur and Ors.
(2) wherein this Court held that the High Court in exercise of its power under the 1st proviso to section 75 (1) of the Act is incompetent to disturb the findings of fact reached by the District Court and further the question whether a statutory presumption was rebutted by the rest of the evidence on record was also a question of fact which again was not open to be reviewed by the High Court.
Shah, J. who spoke for the Court observed thus at p. 259.
"The District Court inferred from the facts found that the statutory presumption under section 118 of the Negotiable Instruments Act had been weakened and the burden which lay upon the insolvent was discharged and it was not open to the High Court exercising jurisdiction under section 75(1) proviso 1, nor even under proviso 2 of the to set aside the judgment of the District Court, for it is well settled that the question whether a statutory presumption is rebutted by the rest of the evidence is a question of fact.
" It may be remembered that Shah, J. was also a party to the decision in Hari Shankar 's, case(2), We see no conflict between (1) (1962) 1 Supp.
S.C.R. 933.
(2) ; 703 the two decisions.
The former decision enumerates some of the circumstances under which the High Court can interfere while considering whether the decision under review was made according to law.
All that is laid down in Abdul Shakur 's case(1) is that the High Court is not competent to disturb a finding of fact reached by the District Court even ' if in reaching that finding it was required to take into consideration a statutory presumption.
We shall now proceed to examine the facts of this case bear ing in mind the principles set out above.
We shall first set out the undisputed facts.
The respondent Ponnayya Konar was a well to do person.
He had one rice mill at Kivalur and another at Sirkali.
He also had landed properties in Sirkali and Tuticorin.
He was having money dealings with the family of Sreenivasa Naicker from about the year 1925 Under the original of Exh.
B 1, a registered deed of Othi dated 28th September, 1925, he had borrowed a sum of Rs. 30,000 from Rangappa Naicker, the father of Srinivasa Naicker.
On October 5, 1930 the said deed was renewed by the execution of a simple mortgage deed by Ponnayya Konar and his sons in favour of Rangappa Naicker.
Under the registered mortgage deed dated 13th January, 1942 (Exh.
B 4 is its copy), tile insolvents had borrowed from Ayyappa Naicker Rs. 20,000 out of which he discharged some of the debts due to Rangappa Naicker.
Ayyappa Naicker was himself a rich man.
Under the partition deed entered into in his family on October 30, 1936 (Exh.
B 3) he got a cash of Rs. 52,000 and lands measuring 250 acres.
The debt due to Ayyappa Naicker under the deed dated 13th January 1942 was discharged by payment of Rs. 5,000 and interest on 3rd April, 1948 and Rs. 15,000 and interest on the 28th March, 1949, as can be seen from Exhs.
B 5 and B 6.
The case of the mortgagees is that when Exh.
A 1 and A 2 were executed they were unaware of the fact that the insolvents had got into financial difficulties by then.
The learned District Judge has accepted this plea and the learned Judge of the High Court has not come to a contrary conclusion.
There was no relationship between the insolvents and the mortgagees.
In fact they belong to different communities.
The insolvents are Hindus and the mortgagees are Christians.
They also live at different places.
The insolvents were residing at Sirkali and the mortgagees at Tuticorin, a place which is at a considerable distance from Sirkali.
According to the mortgagees the circumstances under which Exh.
A 1 and A 2 came to be executed are as follows (1) ; 704 In about the beginning of 1950 Ponnayya Konar approached Srinivasa Naicker for a loan of Rs. 30,000.
Srinivasa Naicker told him that he and his son in law Ayyappa Naicker together would lend him a sum of Rs. 25,000 on the mortgage of his properties at Tuticorin.
But as they did not have the entire sum of Rs. 25,000 in their hands at that time, a sum of Rs. 10,000 was paid to Ponnayya Konar on April 28, 1950 and a promissory note was taken for that amount.
A 11).
In the beginning of September, 1950 Ponnayya Konar sent his son Arulappan with the letter (Exh. B 7) to get some more money.
Accordingly another sum of Rs. 5,000 was paid on September 8, 1950 and the pronote (Exh.
A 12) was taken from Arulappan.
They agreed to pay the balance amount promised to be advanced at the time of the execution of the mortgage deeds.
The mortgage deeds were got written up and executed on 4th November 1950.
Therein it was recited that they were executed for cash consideration.
It was thought that the mortgagees would be able to pay the balance amount before the registration of the documents on November 6, 1950.
But by that time they were not able to get together the entire amount that remained to be paid.
On the date of the registration Ayyappa Naicker paid to the mortgagors only a sum of Rs. 4,500 another sum of Rs. 500 was adjusted towards the interest due on the sum of Rs. 15,000 previously advanced in April and September.
The remaining sum of Rs. 5,000 was paid in two instalments, a sum of Rs. 1700 through Amirthan, the 3rd son of Ponnayya Konar on January 7, 1951 and the remaining sum of Rs. 33,00 again through Amirthan on February 10, 1951.
In the insolvency proceedings on the application of the petitioning creditor, a commissioner to search the house of the insolvents and seize their books of account and other relevant records was appointed.
After search the Commissioner seized from the house of the insolvents several account books (ledgers as well as day books) as well as A 1 1 and A 1 2 which were found punched and defaced.
A 11, A 12 as well as several of the entries in the ledger and day books were marked by consent in the proceedings from which these appeals have arisen.
Hence their genuineness is not open to question.
It is most unlikely that those documents were got up by the insolvents and kept in their house, depending on the off chance of a court commissioner searching their house and seizing them, so that they may serve as corroborating evidence in support of the impugned mortgages.
If Exh.
A 11 and A 12 as well as the entries in the account books were intended to support the claim tinder Exhs.
A 1 and A 2, the most natural course would have been to draw up the mortgage deeds in such a way as to 705 take assistance from them.
In that case the mortgage deeds would not have recited that they were executed for cash consideration.
Further Exhs.
A 11 and A 12 would have been left in the possession of the mortgagees.
We are convinced that the version put forward by the mortgagees is substantially true.
The original agreement between the parties was to take mortgages of the Tuticorin properties for cash consideration. 'The intermediate steps taken were necessitated by the fact that mortgagees were not able to get together in one, lump the required amount.
The promissory notes Exhs.
A 11 and A 12 were taken as stop gap arrangements.
The recitals in the mortgage deeds accord with the original agreement between the parties.
That was likely to be the reason why the promissory notes Exh.
A 11 and A 12 were returned to the parties.
The entries in the account books of the insolvents reflect the transactions as they took place.
If they were bogus entries made to support Exhs.
A 1 and A 2, a receipt of Rs. 25,000 in cash on 4th November 1950 would have been shown therein.
The learned District Judge correctly thought that the account entries in question had a great deal of intrinsic value.
On the other hand the insolvency court and the High Court unnecessarily allowed themselves to be influenced by the apparent contradiction appearing between the recitals in Exhs.
A 1 and A 2 and those in Exhs.
A 11, A 12 and the account entries.
One other circumstance which had weighed with the High Court in holding that Exhs.
A 1 and A 2 do not represent genuine transactions is that in their pleadings the mortgagees have struck to their case that cash consideration passed under Exh.
A 1 and A 2 and this the Court thought was a deliberately false plea.
The learned District Judge had carefully considered this circumstance but was of opinion that the same was of no consequence.
We think that the High Court had attached undue importance to that circumstance.
The issue before the parties at the time of the pleadings was whether the mortgages in question were supported by consideration or not and not the manner in which that consi deration was paid.
In their plea the mortgagees were merely adhering to the tenor of the mortgage deeds.
From the facts stated earlier, it is clear that the mortgagees at all stages proceeded on the basis that Exhs.
A 1 and A 2 were executed for cash consideration, the other steps taken by them being merely incidental.
The last and by far the most important circumstances that appears to have influenced the High Court was the failure of the mortgagees to produce their account books.
This circumstance was carefully considered by the District Judge.
He held that the adverse, inference that could be drawn from that circumstance was rebutted by the other evidence available in the case.
It was open to him to do so.
His finding on this point is also a finding 706 of fact and by no means a wholly unreasonable finding.
The High Court could not have interfered with the same.
From the above discussion it follows that generally speaking we shall come to the details of consideration presently the findings of the District Court as regards the payment of consideration under Exh.
A 1 and A 2 are findings of facts and they were not open to review by the High Court.
This takes us to the various items of consideration said to have passed under Exhs.
A 1 and A 2 and the proof thereof.
The District Court has held that the entire consideration mentioned in those documents has passed.
We have now to see whether its finding in respect of the various items of consideration is supported by legal evidence.
The challenge to the payment of consideration under Exhs.
A 1 and A 2 made by the petitioning creditor includes a challenge to the passing of the various items of consideration said to have passed.
Ordinarily the burden of proving that a document impeached under section 53 of the Act is not supported by consideration is on the party who challenges its validity.
That is so because the party who stands by the document can take advantage of the admission made by the insolvent in the document in question.
, But in this case the mortgagees themselves do not stand by the recitals in the documents as regards the manner in which consideration was paid.
Therefore it is for them to prove the passing of consideration.
Hence we have to see how far they have succeeded in proving the same.
We shall first take up Exh.
A 2, the mortgage deed executed in favour of Srinivasa Naicker.
It is said that the consideration payable under that mortgage was paid in the following manner: Rs. 5,000 under promissory note Exh.
A 11; Rs. 1,700 paid in cash on 7 1 1951 and Rs. 3,300 also paid in cash on 10 2 1951; The receipt of the aforementioned sums is entered in the day book and edger of the insolvents.
The relevant entries amount to an admission on the part of the insolvents of having received the amounts mentioned therein.
We have earlier considered the authenticity of those account books.
The evidence of the mortgagees as regards the payment of consideration is strongly corroborated by the entries in the insolvents ' account books.
It was open to the learned District Judge to rely on them.
Hence his finding as regards the validity of the mortgage under Exh.
A 2 must be held to be final.
So far as the consideration for Exh.
A 1 is concerned it is said to have been made up of (i) a sum of Rs, 10,000 advanced under Exh.
A 11; 707 (ii) Rs. 500 the interest due under Exh.
A 11 and A 12; and (iii) Rs. 4,500 paid on 6 11 1950.
The receipts of the various sums mentioned above excepting the sum of Rs. 4,500 said to have been paid on 6th November 1950, are entered in the day book and the ledger of the insolvents.
Hence to that extent the finding of the learned District Judge is unassailable.
So far as the payment of Rs. 4,500 said to have been made on November 6, 1950 is concerned no corresponding entry in the day book or the ledger had been proved.
This important circumstance was not noticed by the learned District Judge.
He proceeded on the basis that the account entries support the payment of that item as well.
The evidence of Ayyappa Naicker as regards that payment is necessarily interested.
The only other evidence on that point is that of P.W. 2, the Registrar who registered Exhs.
A 1 and A 2.
He is a relation of the insolvents.
He did not endorse that payment in Exh.
A 1, though he knew that he was required to do so under the rules.
We are also surprised how he could have remembered that fact after several years.
Had the learned District Judge 's attention been drawn to the fact that there is no documentary evidence in proof of the payment of that item it is highly doubtful whether he would have held in favour of the mortgagee as regards the payment of that item.
After going through the evidence bearing on the point we are not satisfied that the payment of that amount is satisfactorily proved.
In the result Civil Appeal No. 846 of 1963 is allowed and the judgment and decree of the High Court is set aside and that of the District Court restored.
Civil Appeal No. 845 is allowed in part i.e. the mortgage Exh.
A 1 is held to be valid to the extent of Rs. 10,500 and interest thereon.
In the circumstances of the case we direct the parties to bear their own costs in all the courts.
R.K.P.S, C.A. 845/63 allowed in part.
C.A. 845/63 allowed in part.
| IN-Abs | The petitioning creditor in an insolvency proceeding sought annullment of two mortgages, one for Rs. 15,000/ in favour of the appellant in C.A. 845 and another for Rs. 10,000/ in favour the appellant in C.A. 846.
The mortgages were dated November 4, 1950 and were registered on November 6, 1950.
The insolvency Court held that the mortgages were not supported by consideration and were executed with a view to screening some of the properties of the insolvents 'from their creditors.
It therefore, annulled the mortgages under section 53 of the .
The District Judge, in appeal, reversed the findings of the trial court but the High Court, acting under the first proviso of section 75(1) of the Act, set aside the judgment of the District Judge and restored that of the Insolvency Court.
in an appeal to this Court by special leave, it was contended on behalf of the appellants (i) that the High Court while acting under the first proviso of section 75(1) to satisfy itself "that an order made in any appeal decided by the District Court was according to law" had no power to disturb the findings of fact reached by the appellate court; the jurisdiction of the High Court is a very limited one and not more than that conferred on it by sub section 100(1) C.P.C.; and (ii) that the conclusions of the High Court were unsustainable on the evidence on record.
HELD: (i) The legislature did not confer on the High Court 'under the first proviso to section 75(1) of the Act an appellate power nor did it confer on if a jurisdiction to reappreciate the evidence on record.
While exercising that power the High Court is by and large bound by the findings of fact reached by the District Court.
If the legislature intended to confer power on it to reexamine both questions of law and fact it would have conveyed its intention by appropriate words as has been done under various other statutes.
A wrong decision on facts by a competent court is also a decision according to law.
[701 D] A decision being "contrary to law" as provided in section 100(1)(a) of the Code of Civil Procedure is not the same thing as a decision being not "according to law" as prescribed in the first proviso of section 75(1) of the Act.
The latter expression is wider in ambit than the former.
It is neither desirable not possible to give an exhaustive definition of the expression "according to law".
The power given to the High Court under the first proviso to section 75(1) of the Act is similar to that given to it under section 25 of the Provincial Small Causes Courts Act.
[701 F] Bell & Co. Ltd. vs Waman Hemraj, ; Hari Shankar vs Rao Girdhari Lai Chowdhury, [1962] 1, supp.
S.C.R. 399; 699 Official Receiver, Kanpur and Anr.
vs Abdul Shakur ; ; referred to and explained.
(ii) On the evidence, the findings of the District Court on the payment of consideration were correct findings of fact and the High Court could not have interfered with the same.
However, one payment in respect of the mortgage in C.A. 845 was not proved and the mortgage was therefore only valid to the extent of Rs. 10,5001 .
|
Civil Appeal No. 98 of 1953.
Appeal by Special Leave from the Judgment and Decree dated the 27th day of January, 1949, of the High Court of Judicature at Patna in Appeal from Appellate Decree No. 690 of 1947 against the Decree dated the 13th January, 1947, of the Court of the District Judge, Bbagalpur, in Title Appeal No. 161 of 1946 arising out of the Judgment and Decree dated the 25th July, 1946, of the Court of the 1st Additional Subordinate Judge, Bhagalpur, in Title Suit No. 80 of 1945.
N.C. Chatterjee, (A. N. Sinha and section P. Verma, ,with him) for the appellant.
Murtaza Fazl Ali and Rajinder Narain, for respondent No. I. 1954.
April 14.
The Judgment of the Court was delivered by BOSE J.
This is a plaintiff 's appeal in a suit for re demption of what the plaintiff calls a mortgage dated 15th April, 1930.
The only question for determination is whether this is a mortgage by conditional sale or a sale out and out with a condition of repurchase.
If the former the plaintiff succeeds.
If the latter he is out of Court.
The property covered by the disputed deed belonged to one Bijai Tanti who died leaving a widow Mst.
Phaguni and two sons Siban Tanti and Chander Tanti.
On 25th May, 1922, Siban Tanti alone executed a 176 simple mortgage in favour of the second defendant for Rs. 25.
Then on 6th May, 1927, Siban Tanti, Chander Tanti and Mst.
Phaguni mortgaged the same property to the first defendant for Rs. 250.
This was also a simple mortgage.
After this came the transaction in suit dated 15th April, 1930.
The same three persons executed the disputed deed.
This was in favour of the first defendant.
The consideration mentioned in the deed is Rs. 634 10 0 due on the second mortgage and Rs. 65 6 0 taken in cash to enable the executants to meet the expenses of certain commutation proceedings under section 40 of the Bihar Tenancy Act in respect of this very land.
The second defendant sued on his mortgage of 1922 but did: not join the subsequent mortgagee, the first defendant.
He obtained a decree against the mortgagors alone and executed it in 1940.
He himself purchased the property in dispute and took possession on 20th March, 1943.
Shortly after, on 19th August, 1943, he sold this land to the plaintiff for Rs. 400.
The plaintiff 's title is derived from the second defendant who stepped into the shoes of the mortgagors because of his suit against the mortgagors in 1940.
The plaintiff 's case is that the transaction of 15th April, 1930, is a mortgage and, as the subsequent mortgagee was not joined as a party to the earlier suit, the plaintiff is entitled to redeem.
The first defendant 's case is that the transaction of 15th April, 1930, was not a mortgage but an out and out sale with a covenant for repurchase which became infructuous because no attempt was made to act on the covenant within the time specified.
The learned trial Judge and the lower appellate Court both held that the document was a mortgage and so decreed the plaintiff 's claim.
The High Court on second appeal reversed these findings and held it was a sale.
Consequently the learned Judges dismissed the plaintiff 's suit.
The plaintiff appeals here.
The question whether a given transaction is a mortgage by conditional sale or a sale outright with a condition of repurchase is a vexed one which invariably gives rise to trouble and litigation.
There are numerous 177 decisions on the point and much industry has been expended in some of the High Courts in collating and analysing them.
We think that is a fruitless task because two documents are seldom expressed in identical terms and when it is necessary to consider the attendant circumstances the imponderable variables which that brings in its train make it impossible to compare one case with another.
Each must be decided on its own facts.
But certain broad principles remain.
The first is that the intention of the parties is the determining factor: see Balkishen Das V. Legge (1).
But there is nothing special about that in this class of cases and here, as in every other case where a document has to be construed the intention must be gathered, in the first place, from the document itself.
If the words are express and clear.
, effect must be given to them and any extraneous enquiry into what was thought or intended is ruled out.
the real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used.
If, however, there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was intended.
As Lord Cranworth said in A Aderson vs White (2) : "The rule of law on this subject is one dictated by commonsense; that prima facie an absolute conveyance, containing nothing to show that the relation of debtor and creditor is to exist between the parties, does not cease to be an absolute conveyance and become a mortgage merely because the vendor stipulates that he shall have a right to repurchase. . .
In every such case the question is, what, upon a fair construction, is the meaning of the instruments? Their Lord ships of the Privy Council applied this rule to India in Bhagwan Sahai vs Bhagwan Din (3) and in Jhanda Singh vs Wahid ud din (4).
The converse also holds good and if, on the face of it, an instrument clearly purports to be a mortgage it cannot be turned into a sale by reference to a host of (1) 27 I.A. 58.
(3) 17 I.A. 98 at 102.
(2) ; at 928.
(4) 43 I.A. 284 at 293.
23 178 extraneous and irrelevant considerations.
Difficulty only arises in the border line cases where there is ambiguity.
Unfortunately, they form the bulk of this kind of transaction.
Because of the welter of confusion caused by a multitude of conflicting decisions the Legislature stepped in and amended section 58(c) of the Transfer of Property Act.
Unfortunately that brought in its train a further conflict of authority.
But this much is now clear.
If the sale and agreement to repurchase are embodied in separate documents, then the transaction cannot be a mortgage whether the documents are, contemporaneously executed or not.
But the converse does not hold good, that is to say, the mere fact that there is only one document does not necessarily mean that it must be a mortgage and cannot be a sale.
If the condition of repurchase is embodied in the document that effects or purports to effect the sale, then it is a matter for construction which was meant.
The Legislature has made a clear cut classification and excluded transactions embodied in more than one document from the category of mortgages, therefore it is reasonable to suppose that persons who, after the amendment, choose not to use two documents, do not intend the transaction to be a sale, unless they displace that presumption by clear and express words; and if the conditions of section 58(c) are fulfilled, then we are of opinion that the deed should be construed as a mortgage.
The document with which we are concerned, Exhibit A, is in the following terms and our first duty is to construe the language used and see whether it is ambiguous.
(We have paragraphed the document for convenience of construction and have omitted unnecessary words).
(1)" Rs. 634 principal with interest under a registered rehan bond " (simple mortgage) " dated the 6th May, 1927, is justly due. . by us the executants.
Now we further require Rs. 65 6 0 more to meet costs of the suit under section 40." (Bihar Tenancy Act).
(2)(I; and at present there is no other way in view rather it seems impossible and difficult to arrange for 179 the money without selling the property let out in rehan " (simple mortgage) " under the above mentioned bond." (3) " Therefore, we the executants declare. that we sold and vended the properties,detailed below on condition (given below) for a fair and just price of Rs. 700 " (4) "That we set off Rs. 634 10 0 against the consideration money " (torn) " payable under the aforesaid bond in favour of the said vendee and received Rs. 65 6 0 in cash from the said vendee.
In this way the entire consideration money was realised from the said vendee." (5) " and we put the said vendee in possession and occupation of the vended property detailed below and made him an absolute proprietor in our places." (6) " If we, the executants, shall repay the consideration money to the said vendee within two years. . the property vended under this deed of conditional sale attached shall come in exclusive possession and occupation of us the executants." (7) " If we do not pay the same, the said vendee shall remain in possession and occupation thereof, generation after generation, and he shall appropriate the produce thereof." (8) " We, the executants, neither have nor shall have any objection whatsoever in respect of the vended property and the consideration money.
Perchance if we do so it shall be deemed null and void in Court." "and we declare also that the vended property is flawless in every way and that if in future any kind of defect whatsoever be found on account of which the said vendee be dispossessed of a portion or the entire property vended under this deed of conditional sale and will have to pay the loss or damage, in that event we, the executants, (a) shall be liable to be prosecuted under the criminal procedure, and (b) we shall pay the entire consideration money together with loss and damage and interest at the rate of Rs. 2 per mensem per hundred rupees from the date 180 of the execution of this deed till the date of realisation from our person and other properties (c)and we shall not claim the produce of the vended property for the period of vendee 's possession against the said vendee or his heirs and representatives.
" (10) " Therefore we, the executants. . have executed this deed of conditional sale so that it may be of use in future.
" In our opinion, this language is not free from difficulty and is ambiguous.
The deed purports to be a sale and has the outward form of one but at the same time it calls itself a"conditional sale.
" It has,however, no clause for retransfer and instead says (clause 6) that if the executants pay the money within two yeas, the property " shall come in exclusive possession and occupation of us, the executants.
" That is clear about the possession but is silent about the title.
In the context we can only take these words to mean that if there is payment within the specified time, then the title will continue to reside in the executants; for what else can a right of exclusive possession import in these circumstances ? It is relevant to note in passing that this silence about title would be proper in a mortgage for there the owner 's title remains in him all the while and so a reconveyance is unnecessary.
But if there is an out and out sale the title could not revert to the original owner without a proper reconveyance.
Clause (7) appears to underline this because it couples the transferee 's; right to remain in possession and occupation and to appropriate the produce " generation after generation " with the non payment of the money within the time set out.
It is true the words of conveyance in the earlier part Of the deed (clause 5) would pass an absolute title if they stood alone but the document must be read as a whole and it must also be remembered that it was executed by ignorant justice and scribed by a man whose knowledge of conveyancing was, on the face of it, rudimentary and defective.
The deed lacks the precision of a practised hand and that probably accounts.
for its ambiguities: that there is ambiguity is patent from what we have said.
181 The next step is to see whether the document is covered by section 58(c) of the Transfer of Property Act, for if it is not, then it cannot be a mortgage by conditional sale.
The first point there is to see whether there is an " ostensible sale.
" That means a transaction which takes the outward form of a sale, for the essence of a mortgage by conditional sale is that though in substance it is a mortgage it is couched in the form of a sale with certain conditions attached.
The executable clearly purported to sell the property in clause (5) because they say so, therefore, if the transaction is not in substance a mortgage, it is unquestionably a sale: an actual sale and not merely an ostensible one.
But if it is a mortgage, then the condition about an " ostensible sale " is fulfilled.
We next turn to the conditions.
The ones relevant to the present purpose are contained in clauses (6) and (7).
Both are ambiguous, but we have already said that on a fair construction clause (6) means that if the money is paid within the two years then the possession will revert to the executants with the result that the title which is already in them will continue to reside there.
The necessary consequence of that is that the ostensible sale becomes void.
Similarly, clause (7), though clumsily worded, can only mean that if the money is not paid, then the sale shall become absolute.
Those are not the actual words used but, in our opinion, that is a fair construction of their meaning when the document is read as a whole.
If that is what they mean, as we hold they do, then the matter falls squarely within the ambit of section 58(c).
Now, as we have already said, once a transaction is embodied in One document and not two and once its terms are covered by section 58(c) then it must be taken to be a mortgage by conditional sale unless there are express words to indicate the contrary, or, in a case of ambiguity, the attendant circumstances necessarily lead to the opposite conclusion.
There are no express words here which say that this is not a mortgage but there is ambiguity, so we must probe further.
The respondents, who claim that this 182 is a sale and not a mortgage, rely on the following circumstances.
They are all culled from the deed itself First, they point to clause (5) which says that the transferee has been made the absolute proprietor in place of the executants.
Those, they say, are the operative words and point to an out and out transfer of title.
Next, they point to clause (2) where the executants say that they have no other Means of raising the money they want except by selling the property.
The respondents argue that the word " sale " could not have been used inadvertently because it is contrasted with a mortgage in the very same sentence.
The word " mortgage "is also used in clause (1), therefore it is clear that when a mortgage is intended the word " mortgage is used.
It must follow that when the word " sale is used, a sale must have been meant.
The only weakness in this argument is that when a mortgage is by conditional sale this is the form it has to take, because section 58(c) postulates that there must be an " ostensible sale " and if a sale is ostensible it must necessarily contain all the outward indicate of a real sale.
The question we are considering can only arise when the word " sale " is used and, of course, a sale imports a transfer of title.
The use of the words It absolute proprietor in our places " carries the matter no further because the essence of every sale is to make the vendee the absolute proprietor of what is sold.
The question here is not whether the words purport to make the transferee, an absolute proprietor, for of course they must under section 58(c), but whether that is done " ostensibly " and whether conditions of a certain kind are attached.
The learned counsel for the respondents next relied on the fact that clause (3) says that the price paid was a "fair and just? ' one and that the Courts below have found that the consideration was not inadequate.
, He also relies on the fact that no interest was charged, that the transferee was placed in possession of the property and was Dot to account for the usufruct also on the fact that a short term, namely two years, was fixed for repayment.
183 But on the other side, there is the very significant fact that Rs. 65 6 0 was borrowed to enable the executants to carry on commutation proceedings under section 40 of the Bihar Tenancy Act (that is, for substitution of a cash rent instead of one in kind) in respect of this very property: (clause 1).
It was admitted before us, and the lower Courts so find, that the commutation proceedings related to this very land.
The learned High Court Judges discount this by saying that there is no evidence to show that the proceedings, which were started in 1929, continued after the deed.
But that is a mistake apparently due to the fact that the copy of the entry in the Rent Schedule, produced before the learned Judges, inadvertently omitted the date.
Mr. N. C. Chatterjee produced a certified copy of the revenue record here and that gives the missing date.
From that it is clear that the proceedings continued till 18th February, 1931, that is to say, for some ten months after the deed.
This, we think, is crucial.
Persons who are selling their property would hardly take the trouble to borrow money in order to continue revenue proceedings which could no longer benefit them and could only enure for the good of their transferees.
There is another point in favour of the appellant, and that is that the surrounding circumstances show that there was a relationship of debtor and creditor between the. parties existing at the date of the suit transaction.
The bulk of the consideration went in satisfaction of the mortgage of 6th May, 1927.
In those circumstances, seeing that the deed takes the form of a mortgage by conditional sale under section 58(c) of the Transfer of Property Act, it is legitimate to infer, in the absence of clear indications to the contrary, that the relationship of debtor and creditor was intended to continue.
The point made on behalf of the respondents about the adequacy of the consideration and the absence of interest can be explained.
The transferee was to take possession of the property and would thus get the produce and it is evident to us from the tenor of the document that he was not to be accountable for it.
184 We say this because the indemnity clause (clause 9) says in sub clause (b) that in the event of the transferee 's possession being disturbed the executants would among other things, pay him, in addition to damages, the entire consideration together with interest at 2 per cent.
per month from the date of the deed and would not require the transferee to account for the usufruct.
It is true this can also be read the other way but considering these very drastic provisions as also the threat of a criminal prosecution in sub clause (a), we think the transferee was out to exact more than his pound of flesh from the unfortunate rustics with whom he was dealing and that he would not have agreed to account for the profits: indeed that is his own case, for he says that this was a sale out and out.
In these circumstances, there would be no need to keep a reasonable margin between the debt and the value of the property as is ordinarily done in the case of a mortgage.
Taking everything into consideration, we are of opinion that the deed is a mortgage by conditional sale under section 58(c) of the Transfer of Property Act.
The appeal is allowed.
The decree of the High Court is set aside and that of the lower appellate Court is restored except as to costs.
The original owners of the property have lost it.
The value of the property was put at over Rs. 10,000 in the special leave petition.
The second defendant oust,.
,, the original owners by getting a mortgage decree for Rs. 130 in his favour on a mortgage of only Rs. 25 and purchasing it at the auction himself.
He is no longer in the picture as he sold it to the plaintiff for Rs. 400.
The plaintiff has accordingly obtained property which on his own showing is worth more than Rs. 10,000 for only Rs. 400.
The first defendant spent only Rs. 250 plus Rs. 65 6 0 on it: Rs. 315 6 0 and the consideration of the disputed deed is only Rs. 700.
it is evident that both sides are speculators.
In the circumstances we direct that each party bear its own costs.
| IN-Abs | There is no hard and fast rule for determining whether a given transaction is a mortgage by conditional sale or sale outright with a condition for repurchase.
Each case must be decided on its own facts.
The numerous decisions of the High Courts on the point are of no help because two documents are seldom expressed in identical terms.
The intention of the parties is the determining factor but the intention must be gathered from the document itself which has to be construed to find out the legal effect of the words used by the parties.
If the words are express and clear, effect must 'be given to them and any extraneous enquiry into what was thought or in.
tended is ruled out.
If however there is ambiguity in the language employed then it is permissible to look to the surrounding circumstances to determine what was intended.
175 In view of the provisions of the amended section 58(c) of the Transfer of Property Act, if the sale and agreement to repurchase are embodied in separate documents, then the transaction cannot be a mortgage whether the documents are contemporaneously executed or not.
But the mere fact that there is only one document does not necessarily mean that it must be a mortgage and, cannot be a sale.
If the condition of repurchase is embodied in the document that effects or purports to affect the sale, then it is a matter for construction which was meant.
Balkishen Das vs Legge (27 I.A. 58), Alderson vs White ; at 928), Bhagwan Sahai vs Bhagwan Din (17 I.A. 98 at 102), and Thanda Singh vs Wahid ud din (43 I.A. 284 at 293) referred to.
|
Appeals Nos. 123 and 124 of 1966.
Appeals by special leave from the judgments and orders dated April 28, 1965 of the Gujarat High Court in Civil Revision Applications Nos. 88 and 93 of 1961.
P. B. Patwari, K. L. Hathi, section K. Bagga and Sureshta Bagga, for the appellants.
P. M. Rawal and P. C. Bhartari, for the respondents.
The Judgment of the Court was delivered by Mitter, J.
These are two appeals by special leave from judg ments of the Gujarat High Court dated April 28, 1965 in Civil Revision Applications No. 88 and 93 of 1961.
As the questions involved in both the applications were the same, the High Court delivered the main judgment in Civil Revision Application No. 88/1961 and referred to the same in its judgment in Civil Revision Application No. 93 of 1961.
The two applications in the High Court arose out of certain proceedings under the Saurashtra Agricultural Debtors Relief Act.
The applicants before the High Court and the appellants before this Court were mortgagees in possession of certain lands belonging to the debtors who are now represented by the respondents.
The main question before the High Court was and before us is, whether the debtors had lost all their interest in the lands mortgaged by reason of the operation of the Saurashtra Land Reforms Act, XXV of 1951 and as such were not competent to make an application under the Saurashtra Agricultural Debtors Relief Act, 1954.
Hereinafter the two Acts will be referred to as the Land Reforms Act and the Debtors Relief Act.
It is not necessary to deal separately with the facts in the two appeals as the course of proceedings in both cases were similar giving rise to common questions of law.
We therefore propose to take note of the facts in Civil Revision Application No. 88 of 1961.
The creditors, appellants before us, were in possession of the properties the subject matter of litigation, under two mortgage deeds of Samvat years 1997 and 1999.
The first mortgage was for Rs. 991 and the second for Rs, 1,011 The mortgagees were with possession and the mortgagee have been appropriating the income of the usufruct thereof for the last 50 years.
There is nothing to show whether they were under a liability under the documents of mortgage to pay the revenue and other dues to the State but there is no dispute that they have 692 been doing so for many years past.
The lands were situate in Bajana State with its own peculiar land tenure system known as the Girasdari system.
The Land Reforms Act which came into force on July 23, 1951 purported to effect important and far reaching changes in the said system.
The preamble to the Act shows that its object was "the improvement of land revenue administration and for ultimately putting an end to the Girasdari system" and the regulation of the relationship between the Girasdars and their tenants, to enable the latter to become occupants of the land held by them and to provide for the payment of compensation to the Girasdars for the extinguishment of their rights.
It will be noted at once that the Act aimed at regulating the relationship of persons in the position of landholders and their tenants and to enable the tenants to become the real owners of the soil under direct tenancy from the State.
It was not meant to extinguish or affect the rights of the landholders as mortgagors unless the persons in occupation had become tenants either by contract or by operation of law.
The Act came into force in the whole of Saurashtra area of the State of Gujarat.
Under section 2(15) 'Girasdar ' meant any talukdar, bhagdar, bhayat, cadet or mul girasia, etc.
Under section 2(13) 'estate ' meant all land of whatever description held by a Girasdar including uncultivable waste whether used for the purpose of agriculture or not and 'Gharkhed ' meant any land reserved by or allotted to a Girasdar before the 20th May 1950 or for being cultivated personally and in his personal cultivation.
A tenant under section 2(30) meant an agriculturist who held land on lease from a Girasdar or a person claiming through ' him and included a person who was deemed to be a tenant under the provisions of the Act.
Under section 3 the provisions of the Act were to have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.
Section 4 Provided that "all land of whatever description held by Girasdar is and shall continue to be liable to the payment of land revenue to the State of Gujarat.
" Section 5 classified Girasdars according to the measure of their holding and under cl.
(c) thereof a Girasdar was to belong to class C if the total area of agricultural land comprised in his estate did not exceed Act.
120 00 Section 6(1) of the Act laid down that any person who was lawfully cultivating any land belonging to a Girasdar was to be deemed for the purposes of the Act to be the tenant if he was not a member of the Girasdars family or a servant on wages payable in cash or in kind etc.
or a mortgagee in, possession.
The Explanation to the sub section however shows that a person who was otherwise, deemed to be a tenant was not to cease to be such only on the 693 ground that he was a mortgagee in possession.
Under section 19 it was open to any Girasdar to apply to the Mamlatdar for the allotment to him of land for personal cultivation within a certain fixed time.
Such application had to be made in a specified form giving the prescribed particulars.
The applicant had to show inter alia, the area and location of the land in respect of which the allotment was prayed for, the right under which he claimed the land and full particulars of his estate as also the area of khalsa land, if any, in his possession.
Under section 20 of the Act it was for the Mamlatdar to issue notice to the tenant or tenants concerned on receipt of an application under section 19 and make an enquiry in the prescribed manner after giving the parties an opportunity of being heard.
After such inquiry the Mamlatdar was required to pass an order making an allotment to the Girasdar of such land as may be specified in the order and this was to be followed by the issue of an occupancy certificate to a Girasdar in respect of his Gharkhed and the land, if any, allotted to him under the section.
Under sub section (4) no Girasdar was to obtain possession of any land held by a tenant except in accordance with the order under the section.
Section 24 laid down the total area of the holding which a C class Girasdar could be allotted for personal cultivation.
Sub section
(2) of the section provided that a C class Girasdar could not be allotted any khalsa land if it was held by a tenant.
Chapter V containing sections 31 to 41 provided for acquisition of occupancy rights by tenants and section 31 laid down the consequences which were to issue in the wake of grant of occupancy certificates.
A tenant who was granted such a certificate was to be free of all relations and obligations as tenant to the Girasdar.
The Girasdar in his turn was to be entitled to receive and be paid compensation as provided in the Act.
Under section 36 the right.
tide and interest of the Girasdar in respect of an occupancy holding were to be deemed to have been extinguished on the payment by the Government of the last instalment of compensation.
The functions of a Mamlatdar are laid down in section 46 of the Act.
It was for him to decide inter alia what land should be allotted to a Girasdar for personal cultivation and to make such allotment, to decide whether a person was or was not tenant, to determine whether a tenancy shall be termi nated under section 12 and many other matters.
Under s.51.
an appeal lay to the Collector against any order of the Mamlatdar.
The above analysis of the relevant provisions of the Land Reforms Act amply demonstrates the manner in which a change was to be brought about in the relationship between the Girasdar and his tenants and the rights which they were respectively to acquire under the orders of the Special Mamlatdar.
The said Officer had no jurisdiction to terminate any rights under mortgage, 694 The full text of the order of the Mamlatdar on the application of the Girasdars (the respondents to the appeal) is not before us.
The copy of the order on the respondents ' application marked exhibit 8/1 bearing date 16th January 1954 was handed over to us.
It appears therefrom that the Girasdar was allowed to keep as Gharkhed certain lands by paying six times the assessment in the treasury but with regard to section Nos.
684 arid 685 (the lands given to the mortgagees) the same were held by the Mamlatdar to be khalsa and full assessment thereof was ordered to be taken.
The Mamlatdar further noted that there was no need to grant any occupancy rights.
On May 2, 1955 the respondents applied for adjustment of their debt to the Civil Judge exercising jurisdiction under the Debtors Relief Act.
The creditors relied on the order of the Special Mamlatdar declaring the lands as Khalsa as fortified by the decision of the Bhayati court of Bajana State.
It was contended that the lands having been declared khalsa the debtors had lost their rights therein.
Reliance was also placed on Forms 7 and 8 by counsel for the appellants to show that his clients had acquired proprietary rights in the said khalsa lands.
According to the Civil Judge the judgment of the Bhayati court had merely decided that the Bajana State had 'no title or interest in the land in question and that the Jats Mul Girasdars were independent proprietors thereof.
The Judge however remarked that it was not for the Special Mamlatdar to decide any question as to title and he had merely ordered recovery of full assessment from the persons in actual possession and this in no way vested any title in the creditors.
In the result the Civil Judge directed the restoration of the lands to the debtors subject to certain limitations and conditions.
The creditors went up in appeal to the Assistant Judge, Surendranagar.
There it was contended on their behalf that the mortgages had been extinguished by the title of the paramount power and on the date of the application under the Debtors Relief Act there was no subsisting mortgage between them and the respondents.
Reliance was placed on the decision of the Special Mamlatdar declaring the land to be khalsa land as extinguishing the mortgages by forfeiture of the land to the State.
The Assistant Judge dealt with the question at some length and came to the conclusion that the mortgages bad not been extinguished and not being tenants within the meaning of section 6 the creditors could not have got an occupancy certificate in respect of the lands in their possession.
He further stressed on the decision of the Special Mamlatdar to show that only the liability for the full assessment of the lands was indicated without any disturbance to the rights inter se.
between the mortgagor and the mortgagees.
Dealing, with the question of the advances made and the amounts 695 still due to the creditors, it was ordered that the debtors should pay Rs. 1,698/ in twelve yearly instalments and the award was directed to be modified accordingly.
The matter was then taken up by way of Civil Revision to the High Court of Gujarat.
The High Court arrived at the following conclusions : (a) The decision of the Bhayati court merely declared that the State was entitled to recover taxes of various kinds from the lands in possession of tenants or mortgagees.
There was no decision that the lands in possession of the mortgagees were confiscated to the State.
(b) The Special Mamlatdar rejected the application of the debtors and directed the lands in possession of the different creditors to be treated as Government lands as according to him the decision of the Bhayati court amounted to a forfeiture of the lands by the Bajana State.
(c) It was not necessary to test the correctness of the decision of the Special Mamlatdar as in view of the provisions in the Debtors Relief Act which was an Act subsequent to the Land Reforms Act the provisions of the latter Act were to prevail.
In the result the High Court affirmed the order of the Assistant Judge in appeal directing possession to be handed over to the debtors.
Before us great stress was laid on the decision of the Special Mamlatdar and it was argued that subject to any appeal from his order his decision was binding on the parties and not having gone up in appeal from the order of the Special Mamlatdar the debtors could not be allowed to agitate their rights to the land ignoring the said order.
We have not before us the full text of the order of the Special Mamlatdar relied on by the appellants nor are we satisfied from copies of form 7 prescribed under Rule 81 of the Rules promulgated under the Land Reforms Act that there was any adjudication of the rights of the debtors and the creditors inter se.
In our view all that the Special Mamlatdar decided and had jurisdiction to decide under the Act was, whether the debtors could be given occupancy certificates or allotted any land Gharkhed and the Special Mamlatdar merely ordered that the lands being khalsa full assesment had to 'be, taken in respect of them and there was no need to grant occupancy rights.
In order to get such occupancy rights the creditors had to show that they had 696 become tenants which Obviously they could not be under the provisions of section 6 of the Land Reforms Act.
The fact that they had all along paid the revenue and other dues to the State, if any, would not clothe them with the right of the tenants.
Under section 76(c) of the Transfer of Property Act a mortgagee in possession must, in the absence of a contract to the contrary out of the income of the property, pay the Government revenue, all other charges of a public nature and all rent accruing due in respect thereof during such possession.
We do not know whether there was a contract to the contrary and whether the mortgagors had covenanted to pay the rent and the revenue.
But even if they could not meet the revenue and other State dues out of the income and paid the same out of their own pockets in order to save the security, the mortgagees were only entitled under section 72(b) of the Transfer of Property Act to add the amount to the mortgage money.
They could not by paying such rent or revenue acquire a title in derogation of the rights of the mortgagors and the payments, if any, are to be taken into account when the mortgagors seek to redeem the property.
That apart, it has not been shown to us that the debtors were awarded any compensation in respect of the khalsa lands given in mortgage to the appellants.
The occupancy certificates, if any, given by the Special Mamlatdar to the appellants cannot under the provisions of the Land Reforms Act extinguish the title of the mortgagors.
Whether the: mortgagors as C class Girasdars can be allowed to retain land in excess of the limits specified in the Act and whether as a result of the restoration of the lands to them by the award such limit will be exceeded in this case, are not questions for us to consider.
The right of the mortgagors not being extinguished under any provision of law to which our attention was drawn, no, fault can be found, with the award is finally modified by the judgment of the Assistant Judge and effect must be given thereto.
In our view, it is not necessary to consider the point canvassed at length before the High Court and dealt with in the judgment of the said court as to whether the Provisions of the Debtors Relief Act over ride those in the Land Reforms Act.
The object of the two Acts are different.
The object of the Land Reforms Act.
as already noted, is the improvement of the land revenue administration and outline an end to the Girasdari system and granting of occupancy rights to the, Girasdars and /or their, tenants, whereas the Debtors Relief Act governs the rights of the debtors and creditors inter se inter alia by scaling down the debits and providing for restoration of their Pr to debtors.
In our view, the right of the debtors in this case were not extinguished under the Land Reforms Act and it was open to the court exercising jurisdiction under the Debtors Relief Act to scale down tile debt and provide for resto 697 ration of the land in possession of the mortgagees to the mortgagors on taking fresh accounts between the parties and directing payments by one party to the other as has been done in this case.
The appeals therefore fail and are dismissed with costs.
Y.P. Appeal dismissed.
| IN-Abs | The Respondent Girasdars in the State of Saurashtra mortgaged their lands with possession with the appellants, who paid the land revenue and other dues.
By the Saurashtra Land Reforms Act (25 of 1951), the, rights of the Girasdars were extinguished, and the tenants of Girasdars became occupants of land held by them.
The Land Reforms Act provided for the Mamlatdar to allot land to a Girasdar for personal cultivation.
The special Mamlatdar declared the lands in dispute to be Khalsa and full assessment had to; be taken, and that there was no need to grant 'any occupancy rights.
The Saurashtra Agricultural Debtors Relief Act, 1954 was enacted scaling down the debts and for providing for rest oration of their property, to the debtors.
Thereupon the respondents applied.for adjustment of their debt to the Court having jurisdiction under the Debtors Relief article The ' appellants relied on the order of the Special Mamlatdar declaring the lands as Khalsa and contended that the lands having been declared as Kholsa, the respondents had lost their rights therein.
HELD : The rights of the respondents Girasdars in this case were not extinguished under the Land Reforms Act and it was open to the court exercising jurisdiction under the Debtors Relief Act to scale down the debt and provide the restoration of the land in possession of the mortgagees to, the mortgagors on taking fresh account between the parties and directing.
payments by one party to the other.
The Saurashtra Land Reforms Act aimed at regulating the relationship of persons in position of Landholders and their tenants, and to enable the tenants to become the real owners of the soil under direct tenancy from the State.
It was not meant to extinguish or affect the rights of Landholders as mortgagors unless the persons in occupation had become tenants either by contract or by operation of law.
No adjudication of the rights of the debtors and creditors inter se was done.
All that the Special Mamlatdar decided and had jurisdiction to decide under the Land Reforms Act was whether the respondents could be given occupancy certificates or allotted any land Gharkhed and the Special Mamlatdar merely ordered that the lands being Khalsa full assessment had to be taken in respect of them and there was no need to grant occupancy rights.
In order to get such occupancy rights the appellants had to show that they had become tenants which they could not be under the provisions of section 6 of the Land Reforms Act.
The fact that they had all along paid the revenue and other dues to the State, if any, would not clothe them with tenancy rights.
That apart, it has not been shown that the respondents were awarded any compensation in respect of the 691 Khalsa lands given in mortgage to the appellants.
The occupancy certificates, if any, given by the Special Mamlatdar to the appellants could not under the provisions of the Land Reforms Act extinguish the title of the respondents.
[695 H; 696 H]
|
Appeal No. 1593 of 1968.
Appeal from the judgment and order dated, September 20, 1963 of the Calcutta High Court in Income tax Reference ' No. 23 of 1960.
Sachin Chaudhari, T. A. Ramachandran and D. N. Gupta, for the appellant.
D.Narsaraju, R. N. Sachthey and B. D. Sharma, for the respondent.
763 The appellant (hereinafter referred to as the assessee was carrying on the business of crushing sugar cane and gur refining.
M/s. Andrew Yule & Co. were acting as the managing agents of the assessee.
In a letter dated 5th February, 1946 addressed to the share holders of the assessee the managing agents referred, to the alarming increase of Government interference in the affairs of the sugar industry in Bihar and the increase of wages of the workers, as well as the levy of a cess of Government and deterioration in the cane crops.
In view of this state of affairs, the managing agents apprehended a loss and suggested that the company 's affairs should be put on a "less discouraging basis" by accepting the offer of a lease of the company as a running concern from the Standard Refinery & Distillery Ltd. At an extra ordinary general meeting of the share holders of the assessee company held on 5th March, 1946 it was decided to authorise the directors to enter into a lease with the said Standard Refinery & Distillery Ltd. By an indenture of 15th March, 1948 the lease was executed to come into effect retrospectively from 1st June, 1945.
The term of the lease was originally for 5 years commencing from 1st June 1945 with an option to the lessee to continue for further five years and thereafter two further options to the lessee, each for five years, on the same terms and conditions, but subject to the payment of higher rates of royalties and also subject to the option on the part of the assessee company to terminate the lease by a resolution of the shareholders of the company to be held before 30th November in any year after the first two years.
This option of termination of the lease was not exercised by the assessee company.
The consideration of the lease as described in clause 7 of the indenture was royalty payable on the manufacture of sugar and molasses.
The royalty on sugar was to be at the rate of Rs. 75 per hundred maunds of sugar manufactured for the first and second term of five years, at the rate of Rs. 82.50 per hundred maunds of sugar manufactured for the third five year period and at Rs. 90 for the fourth five year period.
The royalty on molasses was to be calculated at 3 pies per maund on all molasses sold during each year of the original period or the renewed period of the lease.
The computation of the royalty was subject to a minimum payment of Rs. 65,000 per annum.
For the assessment year 1955 56 the relevant accounting year of the assessee ended on 31st May, 1954.
In the assessment proceedings for 1955 56 the assessee 's main contention was that the lease granted under the indenture of 15th March, 1948 was a lease of a commercial asset and therefore the income arising from the lease should be assessed under section 10 of the Income Tax Act and the assessee should be allowed depreciation and development rebate in accordance with clause (vi a) and clause (vi b) of sub section (2) of section 10 of the Income 764 Tax Act.
The Income Tax Officer assessed the income under section 12 of the Act as being income under the head "other sources" and held that no additional depreciation or development rebate could be allowed as claimed by the assessee.
According to the assessee, the, income derived from the lease of the sugar factory was income from business because the factory was leased as a going concern and the rent of the building, machinery, plant and spare parts was fixed at a certain rate per maund of sugar produced, and at a certain rate per maund of molasses sold.
On appeal, the Appellate Assistant Commissioner found that it was a simple lease of the building and machinery in a sugar factory, and as such the method of payment based on production could not affect the character and nature of the income derived under the said lease.
In further appeal the Appellate Tribunal came to the conclusion that on the facts stated the case fell under section 12 and not under section 10 and that since sub section (3) of section 12 did not include clauses (vi a) and (vi b) of section 10(2) the claim of additional depreciation and development rebate could not be allowed.
At the instance of the assessee the Appellate Tribunal stated a case to the High Court on the following questions of law under section 66(1) of the Income Tax Act, 1922 (hereinafter referred to as the Act) : "(1) Whether on the facts and in the circumstances of the case, the income of the assessee company was liable to be assessed under section 12 of the Indian Income Tax Act and not under section 10 of the said Act ? (2)Whether on the facts and in the circumstances of the case, additional depreciation and development rebate can be allowed as a deduction ?" The High Court answered both the, questions against the assessee holding that the income was liable to be assessed under section 12 and that no additional depreciation and development rebate could be allowed.
Section 10 of the Act stood as follows at the material time "10.
(1) The tax shall be payable by an assessee under the head 'profit sand gains of business, profession or vocation ' in respect of the profit or gain of any business, profession or vocation carried on by him.
(2)Such profits or gains shall be computed after making the following allowances, namely (vi)in respect of depreciation of such buildings, machinery, plant or furniture being the property of the assessee, a sum equivalent, where the assets are ships 765 other than ships ordinarily plying on inland waters, to such percentage on the original cost thereof to the assessee as may in any case or class of cases be prescribed and in any other case, to such percentage on the written down value thereof as may in any case or class of cases be prescribed : and where the buildings have been newly erected, of the machinery or plant being new, not being machinery or plant entitled to the development rebate under, clause (vi b), has been installed, after the 31st day of March, 1945, a further sum (which shall however not be deductible in determining the written down value for the purposes of this clause) in respect of the year of erection or installation equivalent (a) in the case of buildings the erection of which is begun and completed between the 1st day of April 1946 and the 31st day of March 1956 (both days inclusive), to fifteen per cent of the cost thereof to the assessee; (b) in the case of other buildings, to ten per cent of the cost thereof to the.
assessee; (c) in the case of machinery or plant, to twenty per cent of the cost thereof to the assessee; Provided that 765 (c)the aggregate of all allowances in respect of depreciation made under this clause and clause (vi a) or under any Act repealed hereby, or under the Indian Income Tax Act, 1886 (II of 1886), shall, in no case, exceed the original cost to the assessee of the buildings, machinery, plant or furniture, as the case may be; (vi a) in respect of depreciation of buildings newly erected, or of machinery or plant being new which has been installed, after the 31st day of March, 1948, a further sum (which shall be deductible in determining the written down value) equal to the amount admissible under clause (vi) (exclusive of the extra allowance for double or multiple shift working of the machinery or plant and the initial depreciation allowance admissible under that clause for the first year of erection of the building or the installation of the machinery or Plant) in not more than five successive assessments for the financial years next following the previous year Sup/69 14 766 in which such buildings are erected and such machinery and plant installed and falling within the period commencing on the 1st day of April 1949 and ending on the 31st day of March, 1959; (vi b) in respect of machinery or plant being new, which has been installed after the 31st day of March, 1954, and which is wholly used for the purposes of the business carried on by the assessee, a sum by way of development rebate in respect of the year of installation equivalent to twenty five per cent of the actual cost of such machinery or plant to the assessee; Provided that no allowance under this clause shall be made unless the particulars prescribed for the purpose of clause (vi) have been furnished by the assessee in respect of such machinery or plant; Section 12 was to the following effect 12.
The tax shall be payable by an assessee under the head 'Income from other sources ' in respect of income, profits and gains of every kind which may be included in his total income (if not included under any of the preceding heads).
(2)Such income, profits and gains shall be computed after making allowance for any expenditure (not being in the nature of capital expenditure) incurred solely for the purpose of making or earning such income, profits or gains.
(3)Where an assessee lets on hire machinery, plant or furniture belonging to him, he shall be entitled to allowances in accordance with the provisions of clauses (iv), (v), (vi) and (vii) of sub section (2) of section 10.
(4)Where an assessee lets on hire machinery, plant or furniture belonging to him and also buildings, and the letting of the buildings is inseparable from the letting of the said machinery, plant or furniture, he shall be entitled to allowances in accordance with the 767 provisions of clauses (iv), (v), (vi) and (vii) of subsection (2) of section 10 in respect of such buildings".
The main contention of the assessee was that the lease as contemplated in the indenture dated 15th March, 1948 was a lease of a commercial asset, and, therefore, the income arising from the lease should be assessed under section 10(1) of the Act and not under section 12(1).
In order to examine the validity of this argument it is necessary to set out the relevant clauses of the indenture of lease.
Clause ( 1) of the lease provided that the lease was for a term of five years commencing from 1st June 1945 with an option to continue for a further term of five years and thereafter two further options of five years in each case on the same terms and conditions subject to higher payment of rates of royalties.
Clause 2: The lessee shall be entitled to run the said sugar factory and all other machinery annexed to the same and use all the tools and implements, buildings and premises, offices, and erections and utensils and all other things which are now in or upon the said premises and which may be added from time to time thereto provided always that the lessees shall not at any time remove the plant and/or machinery etc.
hereby demised or any part thereof from the said premises elsewhere for the purpose of or in connection with the lessees ' other interests.
Clause 3 : The lessees shall at the time of taking over possession of the factory from the lessors be entitled free of payment to the goods already manufactured during the current crushing season, i.e. 1945 46 or in the process of manufacture and/or to be hereafter manufactured by the lessees and the lessees shall have absolute discretion to sell and deal with the same in such manner as they think fit and proper.
Clause 5: The lessees shall also be entitled to erect, construct and maintain any other machinery as the lessees may think fit and proper.
All machinery brought in and erected by the lessees would remain the lessees ' property and after the termination of the lease the lessees shall be entitled to remove the same provided always that the lessees shall forthwith repair and make good all damage caused to the demised premises by such removal of the lessees ' machinery.
768 Clause 7 Clause 7 provides for the payment of royalty.
The royalty on sugar was to be computed at the rate of Rupees Seventy five per 100 maunds of sugar manufactured for the first five years as well as next five years then at the rate of Rupees eighty two and annas eight per 100 maunds of sugar manufactured for the third five years and Rs. 90/ for the fourth five years.
The royalty on molasses was computed at three pies per maund on all molasses sold during each year of the original lease period and any renewals thereof subject to the payment of a minimum royalty of Rs. 6,500/per annum.
Clause 8 : This clause provides that the lessee shall in addition to the royalty reserved be responsible for all the running expenses of the factory including salaries and wages and all factory staff and labour and shall pay all sugar excise duty etc.
excepting the ground rents payable to the landlords and taxes on income chargeable to the lessors and shall fully reimburse the lessors in respect of such expenses which have already been incurred by the lessors since the first day of One thou sand nine hundred and forty five and property tax.
Clause 17 : (a)The lessors will keep the demised premises insured to the full value thereof and shall pay all expenses which will be incurred for insuring the demised premises.
(b)The lessors shall pay all expenses of running the lessors ' company e.g. Directors fees, Audit fees, Ground rents etc.
but not the running expenses of the factory and premises hereby demised and shall also pay for all the expenditure for additions, alterations breakdown and/or renewals and replacement of capital nature (i.e. dubitable to block account) to buildings and machineries etc.
and other similar expenses of a capital nature on the demised premises.
It appears from clauses 2 and 5 that the existing machinery which was.
owned by the lessor could not be removed and that the lessee would be entitled to set up additional machinery without interference from the lessor and that on the termination of the lease the lessee would be entitled to remove the same without causing any damage to the property demised.
Clause 3 con 769 templates that if during the period 1945 46 the lessors sell the commodity manufactured the price thereof should go back, to the lessee.
Mr. Choudhury referred to clause 6 which entitled the lessee to use the railway siding during the period of the lease.
But the right of use of railway siding by the lessee under this clause cannot in any way be construed as the exercise of control over the business of the assessee.
The provision for minimum royalty of Rs. 65,000/ per annum indicates that the assessee had no direct interest in the production of the factory.
The cumulative effect of clauses 11, 12, 13 and 14 is that the lessor will have no concern with the production of the factory which is the principal part of the business, previously carried on by the lessor.
The provisions in clause 17 are that the lessors shall keep the demised premises insured to the full value and to repair and replace the machines which are of capital nature.
On a scrutiny of all the clauses of the indenture of lease, our conclusion is that the intention of the assessee was to part with the entire machinery of the factory and the premises with the obvious purpose of earning rental income.
It was not the intention of the assessee to treat the factory and machinery etc.
as a commercial concern during the subsistence of the lease.
The primary condition for the application of section 10 of the Act is that the tax is payable by an assessee under the head "profits and gains of business" in respect of business carried on by him.
When an assessee does not carry on business at all, section 10 cannot be applicable and the income that he receives cannot bear the character of profits of business.
As we have already shown there is no direct nexus between the income of the assessee and the production of the factory.
The royalty payable to the assessee was not paid under clause 7 of the indenture of lease for the production in the factory.
The production was only a measure of the royalty to be paid and, in any event, the measure of payment had nothing to do with the character of the payment as a receipt from business or from other sources.
It follows that in the circumstances of this case the income of the assessee cannot be characterised as income from the activity of the assessee carrying on any business.
The High Court was therefore right in holding that the income of the assessee was liable to be assessed under section 12 and not under section 1 0 of the Act.
On behalf of the assessee reference was made to the decision of this Court in Commissioner of Excess Profit Tax, Bombay City vs Shri Lakshmi Silk Mills Ltd.(1) in which the respondent company which was formed for the purpose of manufacturing silk cloth installed a plant for dying silk yarn as a part of its business during the relevant charging accounting period.
Owing to the difficulty in obtaining silk yam on account of the war it (1) 770 could not make use of this plant which had remained idle for some time.
In August, 1943, the plant was let out to another company on a monthly rent.
The question arose whether the income received by the, respondent company in the chargeable accounting period by way of rent was income from business and assessable to excess profit tax.
It was held by this Court that a part of the assets did not cease to be commercial assets of that business merely because it was temporarily put to a different use or let out to another and accordingly the income from the assets would be profits of the business irrespective of the manner in which the assets were exploited by the company.
But this Court clearly indicated that no general principle could be laid down which would be applicable to all cases and that each case must be decided on its own circumstances according to ordinary commonsense principles.
The material facts of Lakshmi Silk Mills Ltd. (1) are that only a part of the machinery was Let out on lease and the rest of the machinery was worked by the assessee.
The letting out of the machinery was for a short period of five months.
There was also no letting out of the premises of the factory by the assessee.
The ratio of the decision in Lakshmi Silk Mills Ltd.(1) is therefore not applicable to the present case.
Reference was made on behalf of the assessee to the decision in Narain Swadeshi Weaving Mills vs Commissioner of Excess Profits Tax(2) in which the assessee firm carrying on a manufacturing business consisted of three partners, N and his two sons R & G.
In April, 1940, a public limited company was incorporated with the object of taking over the business of the assessee firm.
This company was director controlled and the directors were N, his three sons R, G & S and a brother in law of G.
The company purchased only the building and leasehold rights from the assessee firm but took over from it on lease at an annual rent the plant and machinery.
The assessee firm did not thereafter manufacture anything and it bad accordingly no further trading or commercial activity.
In the circumstances, it was held that letting out of the plant and the machinery by the assessee to the company could not fall within the definition of "business" under section 2(5) and as the assessee firm had, no business during the relevant period to which the Act applied, section 10A could not be invoked by the Excess Profit Tax Authorities.
It was however pointed out that whether a particular activity amounts to any trade, commerce or manufacture or any adventure in the nature of trade, commerce, or manufacture is always a difficult question to answer and no general principle ran be laid down which would be applicable to all cases and each case must be decided in the setting and background 'of its own facts.
It is evident that the material facts in the present case are somewhat different from those of Narain Swadeshi (1) (2) 771 Weaving Mills ' case(1) for there is no out right sale of the building of the factory but only a lease of the factory premises together with the machinery for a long period of years.
For the reasons already expressed our conclusion is that the intention of the assessee was not to treat the factory etc.
as a commercial asset during the subsistence of the lease.
In other words, the intention of the assessee was to go out of the business altogether so far as the factory and the machinery was concerned with effect from 1st June, 1945 and the intention was to use the income arising from the royalty in its capacity as the owner of the factory.
it follows therefore that the first question was rightly answered by the High Court in favour of the Commissioner of Income Tax.
As regards the second question the argument was stressed by Mr. Choudhury that clauses (vi a) and (vi b) of section 10(2) are ancillary to clause (vi) and should be taken to be included within clause.
(vi) as mentioned in sub section (3) of section 12.
It appears that clause (vi a) was inserted by section 11 of the Taxation Laws (Extension to Merged States and Amendment Act, 1949).
Clause (vi b) was inserted by section 8 of the Finance Act, 1955 with effect from 1st April, 1955.
At the time of making the amendment under the said Acts, no amendment was made to section 12(3) of the Act.
It was argued by Mr. Choudhury that although this was not done specifically it followed by implication that additional depreciation allowance in respect of new assets and development rebate would cornsern within the ambit of section 12(3).
It appears to us that clauses (vi a) and (vi b) are not ancillary to clause (vi) because the scheme of clauses (vi a) and (vi b) is somewhat different.
Clause (vi a) which was inserted in 1949 gives additional depreciation allowance over and above the initial allowance which was formerly available under 'the second paragraph of clause (vi) in respect of buildings newly erected and new machinery and plant but not furniture installed after the 31st March, 1948.
The additional allowance under this clause is confined to not more than five successive assessments falling within the period from 1st April 1949 and 31st March 1959.
Further it is deductible in deter mining the written down value, unlike the initial allowance granted under the second paragraph of clause (vi).
Clause (vi b) was inserted by the Finance Act, 1955.
It grants development rebate in respect of machinery and plant provided that the machinery or plant is new and has been installed after the 31st March, 1954; and provided further that it is used wholly for the purpose of the assessee 's business and the particulars prescribed for the purpose of clause (vi) have been furnished.
It is manifest that clauses (vi a) and (vi b) introduce a new scheme (1)26 I.T.R. 765.
772 and cannot be treated as an integral part of clause (vi) by implication.
Apart from this consideration it appears to us that these clauses were not specifically engrafted by Parliament in section 12(3) and section 12(4) while amending section 10(2) of the Act.
It is therefore not permissible for the Court to read these same clauses by implication in section 12(3) and section 12(4) of the Act.
The duty of the Court is to interpret the words that Parliament has used, it cannot supply the gap disclosed in an Act or to make up the deficiencies.
"If", said Lord Brougham, in Gwynne vs Burnell,(1) "we depart from the plain and obvious meaning on account of such views (as those pressed in argument on 43.
Geo. 3, c. 99) we do not in truth construe the Act, but alter it.
We add words to it or vary the words in which its provisions are couched.
We supply a defect which the legislature could easily have supplied, and are making the law, not interpreting it" (Cf.
Kumar Kamalaranian Roy vs Secretary of State(2).
Accordingly, we are of opinion that the assessee is not entitled to additional depreciation and development rebate and the second question was rightly answered by the High Court in the negative.
For these reasons we hold that the judgment of the High Court dated 20th September, 1963 is correct and this appeal must be dismissed with costs.
V.P.S. Appeal dismissed.
| IN-Abs | The assessee company, carrying on the business of crushing sugar cane and gur refining, apprehending loss, entered into a lease with another company.
Under cl.
(7) of the indentures the consideration of the lease.
was royalty payable on the manufacture of sugar and molasses and was, subject to a minimum payment of Rs. 65,000 per annum.
The lease was.
for a term of 5 years commencing from 1st June 1945 with an option to continue for a further term of 5 years and thereafter with two further options of 5 years on the same terms and conditions subject to payment of higher rates of royalty.
Clauses 2 to 5 provided that the existing machinery which was owned by the lessor could not be removed and that the lessee would be entitled to set up additional machinery without interference from the lessor and that on the termination of the lease the lessee would be entitled to remove the same without causing any damage to the property demised.
The effect of cls.
11 to 14 was that the lessor would have no concern with the production of the factory which was the principal part of the business previously carried on by the lessor.
In assessment proceedings for the assessment year 1955 56, the assessee contended that the lease was a lease of a commercial asset and therefore the income arising from it should be assessed under section 10 of the Income tax Act, 1922, and hence, the assessee should be allowed depreciation and development rebate in accordance with cls.
(vi a) and (vi b) of section 10(2).
The department and the High Court rejected the assessee 's contention and held that the income was liable to be assessed under section 12 as 'income from other sources ' and that no additional depreciation and development rebate could be allowed.
In appeal to this Court it was contended that : (1) the income of the assessee was liable to be assessed under section 10 of the Income tax Act and, not under section 12; and (2) Since the benefit under cl.
(vi) of section 10(2) is allowed to the assessee under section 12(3), the assessee should be held to be entitled to additional depreciation and development rebate under cls.
(vi a) and (vi b) even if the assessment was under section 12, on the ground that those two clauses are ancillary to cl.
(vi) and should be taken to have been included in section 12(3) along with cl.
HELD : (1) The income of the assessee could not be characterised ' as income from the activity of the assessee carrying on any business and ' was therefore, liable to be assessed under section 12 and not under section 10 of the, income tax Act.
[769 F G] The primary condition for the application of section 10 is that the tax is payable by an assessee under the head 'profits and gains of business ' in respect of business carried on by him.
When an assessee does not carry on business at all, section 10 cannot be applicable and the income that he receives cannot bear the character of profits of business.
[769 D E] 762 In the present case, a scrutiny of all the clauses of the indenture of lease, shows that the intention of the assessee was to go out of the business altogether, so far as the factory and machinery were concerned with effect from 1st June 1945, to part with the entire machinery of the factory and the premises with the purpose of earning rental income, and to use the income arising from the royalty in its capacity as owner of the factory.
It was not the intention of the assessee to treat the factory and machinery as a commercial concern or asset during the subsistence of the lease.
The provision for payment of minimum royalty indicates that the assessee had no direct interest in the production of the factory.
The royalty was not paid for the production in the factory.
There was no direct nexus between the income of the assessee and the production of the factory.
The production was only a measure of the royalty to be paid and had nothing to do with the character of the payment as a receipt from business or from other sources.
[769 C D, E F] Commissioner of Excess Profit Tax, Bombay City vs Shri Lakshmi Silk Mills Ltd. and Narain Swadeshi Weaving Mills vs Commissioner of Excess Profits Tax, , distinguished.
(2)Clause (vi a), which was inserted in the Act in 1949, gives additional depreciation allowance over and above the initial allowance which was previously available under cl.
(vi) in respect of buildings newly erected and new machinery and plant but not furniture installed after 31st March 1948.
The additional allowance is confined to not more than 5 successive assessments falling within the period from 1st April 1949 and 31st March 1959.
It is deductible in determining the written down value, unlike the initial allowance granted under cl.
Clause (vi b) was inserted by the Finance Act, 1955.
It grants development rebate in respect of machinery and plant provided that the machinery or plant is new and has been installed after 31st March 1954, and provided further that it is used wholly for the purpose of the assessee 's business and the particulars prescribed for the purpose of cl.
(vi) have been furnished.
Clauses (Vi a) and (vi b) thus introduce a new scheme and cannot be treated as an integral part of cl.
(vi) by implication.
Further, it is not permissible for the Court to read the clauses by implication into section 12(3) and (4), because, the clauses were not specifically engrafted by Parliament into section 12 while amending section 10(2).
[771 E H; 772 A B] Kumar Kamalaranjan Roy vs Secretary of State, L.R. 66 I.A. 110, referred to.
|
Appeals Nos. 1594 and 1595 of 1968.
Appeals from the judgment and order dated August 29, 1963 of the Calcutta High Court in Income Tax Reference No. 38 of 1960.
Sachin Chaudhuri, T. A. Ramachandran and D. N. Gupta, the appellant (in both the appeals).
D. Narsaraju, section K. Aiyar, R. N. Sachthey and B. D. Sharma for the respondent (in both the appeals).
The Judgment of the Court was delivered by Shah, J.
In respect of assessment years 1949 50 and 1950 51 the Income tax Appellate Tribunal referred five questions to the High Court of Calcutta under section 66(1) of the Indian Income tax Act, 1922.
Three of those questions which are canvassed in these appeals need be set out : Assessment year 1949 50 "(1) Whether on the facts and in the circumstances of the case, the sum of Rs. 51,550/ was A profit in the nature of revenue and therefore liable to tax under the Indian Income tax Act ?" Assessment year 1950 51 "(3) Whether, on the facts and in the circumstances of the case, the sum of Rs. 8,756/ was a profit 798 in the nature of revenue 'and was subject to tax under the Indian Income tax Act ? (4) Whether, on the facts and in the circumstances of the case, the loss of Rs. 34,891/ was allowable as a deduction against the business income of the assessee for the assessment year 1950 51?" The appellant a limited Company incorporated under the Indian Companies Act, 1913 carries on business as managing agents, dealers in shares and stocks, stores and spare parts of machinery and acts as insurance agents and manufacturers of carbon dioxide.
It also works certain coal mines.
The Company obtained a prospecting licence from the State of Korea for the Chirimiri Colliery in 1944 and after prospecting for coal sold the colliery, and thereby earned a profit of Rs. 51,550 in the account year 1948 49 and Rs. 8,756 in the account year 1949 50.
The Income tax Officer brought the profits arising out of the sale of the colliery to tax as business profits.
The order was confirmed in appeal by the Appellate Assistant Commissioner and the Income tax Appellate Tribunal.
The Company conducted a Dry Ice Factory at Lahore.
The factory was sold in September 1948 to the Indo Pakistan Corporation Ltd. The purchaser took over the factory on October 1, 1948, but the price was finally settled in December, 1949.
By the sale the Company suffered a loss of Rs. 34,891.
The Company claimed to deduct this loss from its income assessable to tax in the assessment year 1950 51.
The Income tax Officer disallowed, the claim.
The Appellate Assistant Commissioner agreed with that view, and the Tribunal confirmed the order.
In answering questions (1) & (3) the High Court observed "The Chirimiri Colliery was sold after prospecting and proving coal.
The sale in such 'a case was a part of the trading activities of the assessee and such activity could be gathered from the surrounding circum stances as also from the manner in which it was sold, that is, within a very short time after its acquisition and after it was made fit for obtaining a reasonably higher price at the sale. .
The profit thus acquired can not be treated as a capital asset.
" In answering question (4) the High Court observed "The loss of Rs. 34,891 sustained by the assessee after the sale of Dry Ice Factory at Lahore in September 1948 cannot be treated as a loss of the business of sale, inasmuch as the Tribunal found as a fact that the loss not having occurred in the relevant accounting 799 year, was referable to the transaction of business during a period when the business completely ceased before the commencement of the accounting year.
Counsel for the Company urges that prospecting for coal under a licence obtained from the State of Korea was not, part of the business operations of the Company and that by selling the rights in the mine, the Company disposed of its assets and made gains of a capital nature.
In any event, it was urged, this was a single transaction and in the absence of evidence that the Company carried on the business of obtaining prospecting licences and of selling the mines if "coal was proved", the profit arising out of sale of the mine which was a capital asset acquired by that transaction was not taxable.
Where a person disposes of a part or the whole of his assets the general rule is that the mere change or realisation of an investment does not attract liability to income tax but where such a realisation is an act which in itself is a trading transaction, profit earned by sale or conversion is taxable : Commissioner of Taxes vs Melbourne Trust Ltd.(1) The cases which illustrate this distinction fall broadly into two categories those where the sales formed part of trading activity, and, those in which the sale or realisation was not an act of trading.
As observed in Californian Copper Syndicate (Limited and Reduced) vs Harris (Surveyor of Taxes) (2) the test is Is the sum of gain that has been made a mere enhancement of value by realising a security, or, is it a gain made in an operation of business in carrying out a scheme for profit making ?" In determining whether the gain is realization of mere en hancement of value or is a gain made in an operation of business in carrying out a scheme for profit making, do uniform rule ran be evolved.
It was observed by this Court in Janki Ram Bahadur Ram vs Commissioner of Income tax(3) : ". . no single fact has decisive significance, and the question whether a transaction is an adventure in the nature of trade must depend upon the collective effect of all the relevant materials brought on the record.
But general criteria indicating that certain facts have dominant significance in the context of other facts have been adopted in the decided cases.
if, for instance, a transaction is related to the business which is normally carried on by the assessee, though not directly part of it, an intention to launch upon an, adventure in the nature of trade may readily be inferred.
(1) , 1010 (P.C.) (2) ,166.
(3) , 25.
800 A similar inference would arise where a commodity is purchased and sub divided, altered, treated or repaired and sold, or is converted into a different commodity and then sold.
Magnitude of the transaction of pur chase, the nature of the commodity, subsequent dealings and the manner of disposal may be such that the transaction may be stamped with the character of a trading venture: .
" A transaction of sale may in a given case be isolated : in another it may be intimately related to the normal business of the tax payer.
In the latter class profit arising from the transaction will probably arise out of the tax payer 's business and will be assessable as business profits.
An instructive case of this class is Imperial Tobacco Co. (of Great Britain and Ireland) Ltd. vs Kelly(1).
In that case the Company carried on the business of tobacco manufacture, for which large quantities of tobacco leaf were purchased in the United States, where the Company maintained a large buying Organisation.
To finance the purchases and the expenses of this Organisation the Company bought dollars in the United Kingdom through its bankers who remitted them to the banking accounts of the Company in the United States, and it was the practice of the Company to accumulate a large holding of dollars each year before the leaf season commenced.
The Company never bought dollars for the purpose of resale as a speculation.
On the outbreak of war, in September 1939.
the appellant Company, at the request of the Treasury, stopped all further purchases of tobacco leaf in the United States, and, as a result, the Company had on hand, a holding of dollars accumulated between January and August, 1939.
On September 30, 1939, the Company was ordered under the Defence (Finance) Regulations, 1939, to sell its surplus dollars to the Treasury, and, owing to the rise in the rate of exchange, the sale resulted in a profit to the Company.
It was held by the Court of Appeal that the profit was liable to be included as profits of its trade under Sch.
D Case 1.
The tax payer was not carrying on business in dollars, but the transactions in dollars were intimately related to their principal business and the profits earned by sale of dollars were treated as profits taxable as business profits.
In T. Beynon & Co. Limited V. Ogg (Surveyor of TaxeS(2) the tax payer carrying on business as Coal Merchants, Ship and Insurance Brokers, and as sole selling agent for various Colliery Companies, in which latter capacity it was part of its duty to purchase wagons on behalf of its clients, bought a large number of wagons on his own account with the intention of reselling them (1) (2) 801 at profit.
The contention of the tax payer that the transaction being an isolated one, the profit was in the nature of a capital profit on the realisation of an investment was negatived.
The profits realised in this transaction were held to result from the operation of the Company 's business and properly includable in the computation of the Company 's profits for assessment under Sch.
D. In Gloucester Railway Carriage and Wagon Co. Ltd. vs The Commissioners of Inland Revenue(1) the tax payer carried on the business of manufacturing wagons for sale or hire.
The tax payer sold some of the wagons which were formerly hired out.
The tax payer contended that the profit realized by sale was an isolated transaction resulting in a capital profit.
The House of Lords held that the "business was all one ', namely, to make profit out of wagons and on that account the profits realized by sale of wagons were taxable.
The Tribunal in the present case recorded the following findings : "It is no doubt true that this was a single transaction ' But we were told by the assessee 's counsel that the assessee obtained prospecting licence in the colliery, developed the colliery and then sold out.
What was the purpose of obtaining the prospecting licence has not been told to us.
The assessee was carrying on business of coal mining.
The prospecting of coal is a part of the coal mining business.
Therefore, in our opinion, the transaction of prospecting, developing and selling the colliery is a transaction in the nature of a business.
Therefore, the profit arising from the sale is a profit in the nature of revenue and has been rightly brought to tax.
" Our task would have been lightened if the Tribunal had stated the findings in greater detail.
Nevertheless the Tribunal has found that the Company was carrying on the business, of coal mining and prospecting of coal was a part of the coal mining business and on that account the transaction of prospecting, developing and selling the colliery was a transaction in the nature of a business.
On the findings recorded by the Tribunal it follows that the prospecting for, coal being a part of the coal mining business, the income was properly regarded as taxable.
The answer recorded by the High Court on questions (1) & (3) must be upheld.
Turning to the fourth question : the sale transaction of the Dry Ice Factory, was completed on October 1, 1948, but the price was finally settled in December 1949.
In the settlement, the Company suffered a loss of Rs. 34,891.
The loss was suffered in the (1) 802 business transaction and the only dispute raised before the Tribunal related to the year in which the loss was liable to be taken into account.
The Tribunal disallowed the loss in the assessment of income for the year 1950 51.
The Tribunal held that the business of the Dry Ice Factory was not carried on in the year of account April 1, 1949 to March 31, 1950, and on that account the loss was hot admissible as a permissible deduction in computing the taxable income of the Company for the assessment year 1950 51.
The High Court agreed with the Tribunal.
In our judgment, the High Court was in error in holding that the loss was not a permissible deduction.
Section 24 of the Income tax Act, 1922, in the relevant year of assessment read as follows : "(1) Where any assessee sustains a loss of profits or gains in any year under any of the heads mentioned in section 6, he shall be entitled to have the amount of the loss set off against as income, profits or gains under any other head in that year Provided that (2) Where any assessee sustains a loss of profits or gains in any year, being a previous year not earlier than the previous year for the assessment for the year ending on the 31st day of March, 1940, under the head profits of business, profession or vocation, and the loss cannot be wholly set off under sub section (1) the portion not so set off shall be carried forward to the following year and set off against the profits or gains, if any, of the assessee from the same business, profession or vocation for that year Provided that By sub section
( 1 ) the loss or profits or gains suffered under any head in any year was liable to be set off against the income, profits or gains under any other head, and by sub section
(2) where the loss suffered in any business, profession or vocation could not be wholly set off under sub section
( 1 ) the loss not so set off had to be carried forward to the following year and set off against the profits and gains of the same business in the subsequent years.
The Tribunal and the High Court applied sub section
(2) of section 24 in computing the taxable income of the Company for the assessment year 1950 51.
But in so proceeding, in our judgment, they were in error.
The business of Dry Ice Factory was sold in October, 1948.
We will assume that the Dry Ice Factory was 'a separate business of the Company and was not a part of the other business carried on by the Company.
But the price for which the business was sold was settled in December 1949.
Until the price was 803 settled, loss did not accrue or arise to the Company.
The loss was suffered in the account year 1949 50 and could be allowed against the income of that year under section 24(1).
The assumption that the loss was suffered in the previous year i.e., 1948 49 was, in our judgment, not warranted.
The case was plainly governed by sub section
(1) of section 24.
The answer to the fourth question recorded by the High Court must be discharged.
The answers to questions (1) & (3) recorded by the High Court are affirmed.
Question (4) Will be answered in the affirmative and in favour of the Company.
In view of the divided success, there will be no order as to costs in this Court.
The order as to costs in the High Court is maintained.
V.P.S. Appeals allowed in part.
| IN-Abs | The assessee company was carrying on the business of coal mining and of a Dry Ice Factory, in addition to various other kinds of business.
It obtained a prospecting licence, and after prospecting for coal sold it within a short time of its acquisition and thereby earned profits in the accoun ting years 1948 49 and 1949 50.
It sold the Ice Factory in 1948.
Though the purchaser took possession of the ice factory in 1948, the price was finally settled in December 1949.
By that sale the assessee company suffered a loss.
The assessee claimed (1) that the 'profits were gains of a capital nature and hence not liable to tax; and (2) that the loss was deductible from its income in the assessment year 1950 51.
(1) The department, Tribunal and High Court held that the profits from the sale of colliery were in the nature of revenue and were liable to tax under the Income Tax Act, in the two corresponding assessment years, namely, 1949 50 and 1950 51; and (2) It was held that loss in the ice factory transaction was suffered in the accounting year 1948 49 and assessee 's claim could be sustained only under section 24(2), of the Income tax Act, 1922, but that the subsection was not applicable, because, the business ceased completely before the commencement of the following accounting year 1949 50 (assessment year 1950 51).
In appeal to this Court, HELD : (1) Where a person disposes of a part or the whole of his assets the general 'rule is that the mere change or realization of an investment does not attract liability to income tax, but, where such a realisation is an act which in itself is a trading transaction, profit earned by sale or conversion is taxable.
In determining whether the gain is realization of a mere enhancement of value (capital gain) or is again made in an operation of business in carrying out a scheme for profit making (revenue) no uniform rule can be evolved.
Though a transaction is an isolated one, it may be intimately related to the normal business of the tax payer.
in such a case, the profit arising from the transaction will be out of the tax payer 's business and will be assessable as business profits.
[799 C D. F) 800 B C] Prospecting of coal was a part of the mining business which the assessee was carrying on.
Therefore, the transaction of prospecting, developing and selling the colliery was one in the nature of business.
797 Hence, the profit arising from the sale, though it was an isolated transaction, was in the nature of revenue and liable to tax.
[801 F H] Janki Ram Bahadur Ram vs Commissioner of Income tax, , 25(S.C.), followed.
Commissioner of Taxes vs Melbourne Trust Ltd. [1914] A.C. 1001, 1010 (P.C.), Californian Copper Syndicate (Limited and Reduced) V. Harris (Surveyor of Taxes) , 166, Imperial Tobacco Co. vs Kelly, , Beynon & Co. Ltd. vs Ogg (Surveyor of Taxes) and Gloucester Railway Carriage and Wagon Co. Ltd. vs Commissioners of inland Revenue, , referred to.
(2) By section 24(1) the loss or profits or gains suffered under any head in any year was liable to be set off in that year against the income, profits or gains under any other head; but by section 24(2) where the loss suffered in any business, profession or vocation could not be wholly set off under sub section
(1) the loss not so set off has to be carried forward to the following year and set off against the profits and gains of the same business in the subsequent year.
L802 F G] In the present case, loss was suffered in the accounting year 1949 50 when the price was settled and not in 1948 49 when the sale took place.
Therefore, under section 24(1) the loss was allowable against the business income of the assessee for the accounting year 1949 50, that is, in proceedings for the assessment year 1950 51.
[803 A B]
|
l Appeals Nos.
1549 to 1552 of 1968.
Appeals from the judgment and order dated September 28, 1964 of the Calcutta High Court in Income tax Reference No. 18 1961.
Sukumar Mitra, section K. Aiyar, R. H. Dhebar, R. N. Sachthey and B. D. Sharma, for the appellant (in all the appeals).
806 M. C. Chagla, T. A. Ramachandran and D. N. Gupta, for the respondent (in all the appeals).
The Judgment of the Court was delivered by Ramaswami, J.
These appeals are brought by certificate from the judgment of the Calcutta High Court dated 28th September, 1964 in Income Tax Reference No. 18 of 1961.
The respondent (hereinafter called the assessee) is a private limited company incorporated in India and is a subsidiary of the Imperial Chemical Industries, London, which holds the entire share capital of the assessee.
The business of the assessee consists mainly of acting as selling agents in India for a large variety of goods such as chemicals, dyes, explosives etc.
, manufactured or purchased by its London principals and sold in India.
The Imperial Chemical Industries (Export) Glasgow [hereinafter referred to as the I.C.I. (Export) Ltd.] is another subsidiary of I.C.I. London which holds the entire share capital of I.C.I. (Export) Ltd. The I.C.I. (Export) Ltd. had appointed as their selling agents in India four companies, viz., (1) Gillanders Arbuthnot & Co. Ltd., Calcutta, (2) Best & Co. Ltd., Madras, (3) Anglo Thai Co. Ltd. Bombay and (4) Shaw Wallace & Co. Ltd. With effect from 1st April, 1948, the I.C.I. (Export) Ltd. terminated the services of the aforesaid selling agents and appointed the assessee as its sole selling agent.
The I.C.I. (Export) Ltd. had agreed to pay to the former selling agents compensation at the rate of two fifth, two fifth and one and two fifths of the commission earned by the assessee for the three years from 1st April, 1948.
The compensation was paid to the four companies through the accounts of the assessee.
For this purpose the modus operandi adopted was as follows : The compensation payable to the former agents was spread over a period of three years and on the assumption that the turnover was constant, the compensation payable to the selling agents was on an average, an amount equal to the 11/15th of the commission earned by the assessee at the normal rates.
In order to arrive at the amount of commission to be credited to the assessee 's profit and loss account each year the assessee in the first place credited the commission account and debited the I.C.I. (Export) Ltd. account with the full amount of compensation earned by it at normal rates on sales effected during the year.
Next, the assessee transferred from the commission account to a special reserve account called the 'Explosives Ex Agents Compensation Reserve Account ', the proportion payable to the ex agents as compensation, namely, 11/15th (2/5+2/5+7/5= 11/5 X 1/3 = 11/15) (leaving 4/15th towards commission account) so that funds might be accumulated for payment to the four companies from time to time.
807 The year of account of the assessee is from 1st October to 30th September every year.
As a result of the above method of accounting, the following figures appeared in the assessee 's books of accounts Gross Transfer toNet Commission Reserve forCommission compensa tion Rs. Rs. Rs. 1st April 1948 to 30th September 1948 2,91,396 2,03,503 87,893 Year ending 30th September 1949 7,67,294 5,41,526 2,25,768 Year ending 30th september 1950 7,52,204 5,29,284 2,22,920 year ending 30 th september 1951 10,20,922 4,00,052 6,20,870 TOTAL 28,31,816 16,74,365 11,57,451 For the assessment years 1949 50, 1950 51, 1951 52 and 1952 53 the assessee showed the net amounts of commission earned on the selling agencies by the I.C.I. (Export) Ltd. adding a foot note that the amounts were arrived at after deducting the amount of compensation payable to the out going agents.
By his order dated 28th January, 1957 for the assessment year 1951 52 the Income Tax Officer held that the deductions were not permissible.
In an appeal preferred by the.
assessee the Appellate Assistant Commissioner confirmed the assessment by his order dated 25th November, 1957.
The assessee took the matter in further appeal to the Appellate Tribunal which dismissed the appeal.
The Appellate Tribunal held that there was no justification for the absence of a written agreement between the I.C.I. (Export) Ltd. and the assessee when the former selling agencies were terminated and the assessee was appointed as the sole selling agent.
It was observed that the assessee was not collecting any commission on behalf of the outgoing agents and it was not their legal obligation to pay compensation to the out going agents.
If the assessee was not entitled to more than 3/5th of commission during the first two years, it should have credited that amount whereas the assessee had actually credited four fifteenth on a notional basis which was not in consonance with the arrangement.
The conclusion reached by the Appellate Tribunal was that "there was no agreement between the assessee and the I.C.I. (Export) Ltd. and if there was one it was not acted upon".
It was held by the Appellate Tribunal that the payment of compensation was not because of an overriding title created either by the act of the parties or by operation of law.
At the instance of the assessee the following question of law was referred to the High Court under section 66(1) of the Income Tax Act, 1922 (hereinafter called the Act): 808 "Whether the inclusion by the Income Tax officer.
of Rs. 2,03,503, Rs. 5,411,526, Rs. 5,29,284 and 4,00,052 in the assessment for the years 1949 50, 1950 51, 1951 52 and 1952 53, for relevant accounting years ending the 30th Sept. 1948, 1949, 1950 and 1951 respectively in the computation of the total income of the assessee is justified and correct ?" The High Court answered the question in the negative in favour of the assessee holding that the inclusion of the amount of compensation in the total income of the assessee for the relevant assessment years was not justified.
On behalf of the appellant it was contended that the High Court had no legal Justification for interfering with the finding of the Appellate Tribunal that there was no proof of the agreement between the assessee and the I.C.I. (Export) Ltd. with regard to the quantum of commission to be paid to the assessee for the period between 1st April, 1948 and 31st March, 1951.
On this point reference was made by Mr. Chagla to (a) the letter dated 11th March, 1947 from the I.C.I. (Export) Ltd. to M/s. Gillanders Arbuthnot & Co., (b) the affidavits of Mr. W. A.Bell and Mr. J. W. Donaldson and (c) the letter dated 3rd January, 1958 of M/s. Lovelocke and Lewes, Chartered Accountants, Calcutta.
It was argued that these documents established that there was an agreement between the I.C I. (Export) Ltd. and the assessee, that for the period 1st April 1948 to 31st March, 1951 the assessee was entitled to receive as its commission only the amounts representing the, difference between the normal rates of commission and the compensation payable to the former agents during that period.
The Appellate Tribunal had considered all these documents and reached the conclusion that there was no agreement between the I.C.I. (Export) Ltd. and the assessee and 'if there was one it was not acted upon '.
The Appellate Tribunal remarked that the letter dated 11th March, 1947 from the I.C.I. (Export) Ltd. set forth only the terms and conditions subject to which the selling agencies of the out going agents were terminated.
It was silent on the crucial question of commission to be paid to the assessee during the three years from the date of its appointment as sole selling agent.
The affidavits of Mr. Bell and Mr. Donaldson were produced for the first time before the Appellate Assistant Commissioner.
The affidavits were made many years 'after the crucial date of the appointment of the assesee as the sole selling agent of the I.C.I. (Export) Ltd. The affidavits did not mention the amount of commission to be paid to the out going agents and the affidavits were also not consistent with the entries in the books of accounts of the assessee.
The letter of M/s Lovelocke and Lewes was produced at a very late stage during the hearing of the appeal before the Tribunal and even, otherwise the 809 letter merely explains the method of accounting adopted by the assessee and did not carry the matter any further in the circumstances, the Appellate Tribunal held that there was no agreement between the assessee and the I.C.I. (Export) Ltd. and if there was any such agreement it was not acted upon.
It is manifest that the finding of the Appellate Tribunal on this question is a finding on question of fact and the High Court was not entitled to interfere with this finding.
It is well established that the High Court is not a Court of Appeal in a reference under section 66(1) of the Act and it is not open to the High Court in such a reference to embark upon a reappraisal of the evidence and to arrive at findings of fact contrary to those of the Appellate Tribunal.
It is the, duty of the High Court while hearing the reference to confine itself to the facts as found by the Appellate Tribunal and to answer the question of law in the context of those facts.
It is true that the finding of fact will be defective in law if there is no evidence, to support it or if the finding is perverse.
But in the hearing of a reference under section 66(1) of the Act it is not open to the assessee to challenge such a finding of fact unless he has, applied for the reference of the specific question under s.66(1).
In India Cements Ltd. vs Commissioner of Income Tax( ') it was held by this Court that in a reference the High Court must accept the findings of fact reached by the Appellate Tribunal and it is for the party who applied for a reference to challenge those findings of fact, first, by an application under section 66(1).
If the party concerned has failed to file an application under section 66(1) expressly raising the question about the validity of the finding of fact, he is not entitled to urge before the High Court that the finding is vitiated for any reason.
The same view has been expressed by this Court in Commissioner of Income Tax vs Sri Meenakshi Mills Ltd.(2) and Commissioner of Income Tax, Bombay City I vs Greaves Cotton & Co. Ltd.(3).In the present case the assessee has in his application under s.66(1) expressly raised the question about the validity of the finding of the Appellate Tribunal as regards the agreement but the question was not referred by the Appellate Tribunal to the High Court and the contention of the assessee with regard to the question must be deemed to have been rejected.
The assessee did not thereafter move the High Court under section 66(2) of the Act requiring it to call for a statement of the case on that specific question.
We are therefore of opinion that the High Court was in error in embarking upon a reappraisal of the evidence before the Appellate Tribunal and setting aside the finding of the Appellate Tribunal that "there was no agreement as alleged in the affidavits of Mr. W. A. Bell and Mr. J. W. Donaldson and "if there was such an agreement it was not acted upon".
(1) (2) (3) 810 It was argued by Mr. Chagla that even if the agreement was not established,, the amount, Paid by the assessee as compensation to the ex agents was an expenditure laid out wholly and exclusively for the purpose of the business such is allowable under s.10(2) (xv) of the Act.
The contrary view point was urged on behalf of the appellant,.
It was pointed out that the assessee was acting as the agent of the I.C.I. (Export) Ltd. for the payment of compensation of the ex agents and the payment was made not in the character of a trader but in the character of the agent of its Principal.
The contention of the appellant was that the assessee got the right to sell goods after 1st April 1948 and for getting that right the assessee parted with a portion of its commission for the first two years after 1st April 1948 and paid very much more than the commission earned in the third year.
This position was borne out by the accounts of the respondent which show that the assessee received the commission at full rates and out of it created a reserve account of which these compensations were made to the ex agents.
We have already referred to the finding of the Appellate Tribunal that no agreement between the assessee and the I.C.I. (Export) Ltd. has been proved.
In the absence of proof of the exact terms and conditions of the 'agreement it is not possible to accept the argument of the assessee that the amount paid as compensation to the ex agents was an "expenditure laid out wholly and exclusively for the purpose of the business" under section 10(2) (xv) of the Act.
It was finaly contended on behalf of the respondent that by virtue of an overriding title the income was diverted before it reached the assessee, and so, the amount of compensation paid to the ex agents did not form part of the income of the assessee.
In other words, the contention was that the compensation payable to the ex agents was diverted from the income of the assessee by ,an overriding title arising under the agreement between the assessee and the I.C.I. (Export) Ltd. The argument was stressed that the commission payable as compensation to the ex agents did not form part of the income of the assessee.
We are unable to accept this argument as correct.
We have already pointed out that the finding of the Appellate Tribunal is that the precise terms of the agreement between the assessee and the I.C.I EXPORT Ltd. have not been established.
In any event, even on basis of the affidavits of Mr. Bell and Mr. Donaldson the payment of compensation to the " agents was apparently made by the assessee for and on behalf of the I.C.I. (Export) Ltd. The assessee 's documents suggest that the payment of compensation was the exclusive liability of the I.C.I. (Export) Ltd. and the assessee was not under a legal obligation to pay the amount of compensation to the out .going agents.
It is not established that the payment of compensation ,was by an overriding title ,created either by the act of the parties 811 or by the operation of law.
An obligation to apply the income in a particular way before it is received by the assessee or before it has accrued or arisen to the assesses results in the diversion of income.
An obligation to apply income accrued, arisen or received amounts merely to the apportionment of income and the income so applied is not deductible.
The true test for the application of the rule of diversion of income by an overriding title is whether the amount sought to be deducted 'in truth never reached the assessee as his income.
The leading case on the subject is Raja Bejoy Singh Dudhuria vs Commissioner of Income Tax(1) where the step mother of the Raja had brought a suit for maintenance and a compromise decree was passed in which the step mother was to be paid Rs. 1,100 per month, which amount was declared a charge upon the properties in the hands of the Raja by the Court.
The Raja sought to,deduct this amount from his assessable income, which was disallowed by the High Court at Calcutta.
On appeal to the Judicial Committee Lord Macmillan observed as follows "But their Lordships do not agree with the learned Chief Justice in his rejection of the view that the sums paid by the appellant to his step mother were not 'income ' of the appellant at all.
This in their Lordships ' opinion is the true view of the matter.
When the Act by section 3 subjects to charge 'all income ' of the individual, it is what reaches the individual as income which it is intended to charge.
In the present case the decree of the court by charging the appellant 's whole resources with a specific payment to his step mother has to that extent diverted his income from him and has directed it to his step mother; to that extent what he receives for her is not his income.
It is not a case of the application by the appellant of part of his income in a particular way, it is rather the allocation of a sum out of his revenue before it becomes income in his hands".
Another case of the Judicial Committee is reported in P. C. Mullick vs Commisisoner of Income Tax(2), where, a testator appointed the appellants as executors and directed them to pay Rs. 1,00,000 out of the income on the occasion of his addya sradh.
The executors paid Rs. 5,537 for such expenses, and sought to deduct the amount from the assessable income.
The Judicial Committee confirmed the decision of the Calcutta High Court disallowing the deduction and observed that the payments were made out of the income of the estate coming to the hands of the executors and in pursuance of an obligation imposed upon them by the testator.
The Judicial Committee observed that it was not a case in which (1) (2) 812 a portion of the income had been diverted by an overriding title from the person who would have received it otherwise and distinguished Bejoy Singh Dudhuria 's case(1).
In Commissioner of Income Tax Bombay City II vs Sitaldas Tirathdas(2), Hidayatullah, J., speaking for the Court observed as follows "There is a difference between an amount which a person is obliged to apply out of his income and an amount which by the nature of the obligation cannot be said to be a part of the income of the assessee.
Where by the obligation income is diverted before it reaches the assessee, if is deductible; but where the income is required to 'be applied to discharge an obligation after such income reaches the assessee, the same consequence, in law, does not follow.
It is the first kind of payment which can truly be excused and not the second.
The second payment is merely an obligation to pay another a portion of one 's income, which has been received and is since applied.
The first is a case in which the income never reaches the assessee, who even if he were to collect it, does so, not as part of his income, but for and on behalf of the person to whom it is payable".
In view of the principle laid down in these authorities we are of ,opinion that the payment of compensation by the assessee to the ex agents was not by an overriding title created either by act of the parties or by operation of law.
We accordingly reject the argument of Mr. Chagla on this aspect of the case.
For the reasons expressed we hold that the judgment of the Calcutta High Court dated 28th September, 1964 should be set aside and the question referred by the Appellate Tribunal should be answered in the affirmative and against the assessee.
The appeals are accordingly allowed with costs.
One hearing fee.
G.C. Appeals allowed.
| IN-Abs | The Imperial Chemical Industries (Export) Glasgow was a subsidiary of Imperial Chemical Industries London.
With effect from 1st April 1948 the former terminated the services of four selling agents in India and in their place appointed the respondent company (another subsidiary of the Imperial Chemical Industries, London) as their sole selling agents.
The four former selling agents were to be paid compensation for the termination of their services and this was done through the accounts of the respondent.
In its income returns for the years 1949 50, 1950 51, 1951 52 and 1952 53 the respondent showed as its income the net amount of commission arrived at after deducting from the gross commission the compensation paid to the former selling agents.
The Income tax Officer in his order for the year 1951 52 held that the said deductions were not permissible.
His order was confirmed by the Appellate Assistant Commissioned and the Income tax Appellate Tribunal.
The Tribunal held that there was no agreement between the Imperial Chemical Industries (Export) Glasgow and the respondent company casting on the latter the liability to pay the compensation to the former selling agents out of the commission earned by it; the Tribunal further said that even if there was an agreement it was not acted upon.
In reference under section 66(1) of the Indian Income tax Act, 1922 the High Court took the opposite view and held that the claim made by the respondent company was allowable.
The revenue appealed to this Court.
The questions that fell for consideration were : (i) whether the High Court was justified in interfering with the Tribunal 's finding of fact on a question not referred to it; (ii) whether the compensation amounts paid by the respondent to the former selling agents were expenditure laid out wholly and exclusively for 'the purpose of business; (ii) whether the income in question was diverted before it reached the respondent by virtue of an overriding title.
HELD : (i) It is well established that the High Court is not a Court of Appeal in a reference under section 66(1) of the Act and it is not open to the High Court in such a reference to embark upon a reappraisal the evidence and to arrive at findings of fact contrary to those of the Appellate: Tribunal.
It is the duty of the High Court while hearing the reference to confine itself to the facts as found by the Appellate Tribunal and to answer the question of law in the context of those facts.
It true that the finding of fact will be defective in law if there is no evidence 805 to support it or if the finding is perverse.
But in the hearing of a reference under section 66(1) of the Act it is not open to the assessee to challenge such a finding of fact unless he has applied for the reference of the specific question under section 66(1).
[809 B D] In the present ease the assessee had in its applications under section 66(1) expressly raised the question about the validity of the finding of the Appellate Tribunal as regards the agreement but the question was not referred by the Appellate Tribunal to the High Court and the contention of the assessee with regard to the question must be deemed to have been rejected.
The assessee did not thereafter move the High Court under section 66(2) of the Act requiring it to call for a statement of the case on that specific question.
The High Court was therefore in error in embarking upon a reappraisal of the evidence before the Appellate Tribunal and setting aside the finding of the Appellate Tribunal that there was no agreement as claimed by the assessee for the payment of compensation to the former selling agents out of its own commission and.
that if there was such an agreement it was not acted upon.
[809 F H] India Cements Ltd. vs Commissioner of Income tax, 60 I.T.R. 52, Commissioner of Income tax vs Sri Meenakshi Mills Ltd., and Commissioner of Income tax, Bombay City I vs Greaves Cotton & Co. Ltd., , applied.
(ii) In the absence of proof of the exact terms and conditions of the agreement it was not possible to accept the argument that the amount paid as compensation to the ex agents was an 'expenditure laid out wholly and exclusively for the purpose of the business ' under section 10(2)(xv) of the Act.
[810 D] (iii) The assessee 's documents suggested that the payment of compensation was the exclusive liability of the I.C.I. (Exports) Ltd. and the assessee was not under a legal obligation to pay the amount of compensation to the outgoing agents.
It was not established that the payment of compensation was by an overriding title created either by the Act of the parties or by the operation of law.
An obligation to apply the income in a particular way before it is received by the assessee or before it has accrued or arisen to the assessee results in the diversion of income.
An obligation to apply income accrued, arisen or received amounts merely to the apportionment of income and the income so applied is not deductible.
The true test for the application of the rule of diversion of income by an overriding title is whether the amount sought to be deducted in truth never reached the assessee as his income.
[810 H 811 H] Raja Bejoy Singh Dudhuria vs Commissioner of Income tax, , P. C. Mullick vs Commissioner of Income tax, and Commissioner of Income tax, Bombay City II vs Sitaldas Tirathdas, , applied.
|
Appeals Nos. 701 and 702 of 1968.
Appeals from the judgments and orders dated December 17, 1963 and April 6, 1965 of the Calcutta High Court in Income tax References Nos. 87 of 1960 and 30 of 1962 respectively.
S.T. Desai, section C. Manchanda and B. D. Sharma, for the appellants (in both the appeals).
Sachin Chaudhuri, Sukumar Mitra and D. N. Mukherjee,.
for the respondent (in both the appeals).
The Judgment of the Court was delivered by Shah, J.
The Allahabad Bank Ltd. is a public limited com pany.
The paid up share capital of the Company other than capital entitled to a dividend at a fixed rate was at the relevant time Rs. 30,50,000 The Company had issued before January 1, 1954, shares at premium and the premium received in cash aggregated to Rs. 45,50,000.
In each of the account years 1955 and 1956 the Company distributed Rs. 5,49,000 as dividend.
In proceedings for assessment for each of the assessment years 1956 57 and 1957 58 the Income tax Officer reduced by Rs. 61,000 the rebate in super tax admissible under the Finance Acts 1956 on the view that the Company had distributed dividend exceeding 6% of its paid up capital.
In reducing the rebate the Income tax Officer did not take into consideration share premium amounting to Rs. 45,50,000 received by the Company.
The Appellate Assistant Commissioner held that the Company 's share premium was liable to be added to the capital of Rs. 30,50,000 in computing the reduction in the rebate in super tax, and directed modification of the order of assessment.
The Appellate Tribunal agreed with the Appellate Assistant Commissioner.
The Tribunal then submitted a statement of the case and sub mitted the following question in respect of the year 1956 57 to the High Court of Calcutta : "Whether on the facts and in the circumstances of the case, the amount of Rs. 45,50,000 should be added to the paid up capital of the assessee as on 1st January, 1955, for the purpose of allowing rebate to the ass under Paragraph D of Part III of the First Schedule to the Indian Finance Act, 1956.
" A similar question relating to the assessment year 1957 58 was, also referred by the Tribunal.
The High Court of Calcutta agreed 724 with the Tribunal and held that in determining the reduction in rebate in super tax admissible to the Company the share premium maintained by the Company within the reserves was liable to be included in the paid up capital.
The Finance Act, 1956 prescribed the rate of super tax in Part H. Paragraph D (in so far as it is relevant) enacted: "In the case of every company Rate On the whole of total income Six annas and nine pies in the rupee.
Provided that (i) a rebate at the rate of five annas per rupee of the total income shall be allowed in the case of any company which (a) in respect of its profits liable to tax under the Income tax Act for the year ending on the 31st day of March, 1957, has made the prescribed arrangements for the declaration and payment within the territory of India of the dividends payable out of such profits and for the deduction of supertax from dividends in accordance with the provisions of subsection (3D) of section 18 of that Act, and (b) (ii) a rebate at the rate of four annas per rupee of the total income shall be allowed in the case of any Company which satisfied condition (a.) but not condition (b) of the preceding clause; Provided further that (i) the amount of the rebate under clause (i) or the preceding proviso shall be reduced by the sum, if any, equal to the amount or the aggregate of the amounts as the case may be, computed as hereunder (a) (b) in addition, in the case of a company referred to in clause (ii) of the preceding proviso which has distributed to its share holders during the previous year "dividends in excess of six per cent of its paid up 725 capital, not being dividends payable at a fixed rate on that part of the said dividends which exceeds 6 per cent but does not exceed 10 per cent of the paid up capital; at the rate of two annas per rupee on that part of the said dividends which exceeds 10 per cent of the paid up capital; at the rate of three annas per rupee; (ii) Provided further that Explanation : For the Purposes of Paragraph D of this Part (i) the expression "paid up capital" means the paid up capital (other than capital entitled to a dividend at a fixed rate) of the Company as on first day of the previous year relevant to the assessment for the year ending on 31st day of March, 1957, increased by any premiums received in cash by the company on the issue of its shares, standing to the credit of the share premium account as on the first day of the previous year. . " In the Finance Act of 1957 also a similar scheme of granting rebate of super tax and reduction therein in the conditions set out in the Act, was adopted.
The reduction in rebate in super tax depended upon the proportion which the dividend distributed bore to the paid up capital.
If the Company distributed dividends exceeding 6% of its paid up capital as defined in the explanation, the rebate was liable to be reduced to the extent provided in the second proviso.
In the relevant years of account, the share premium formed an identifiable part of the reserves of the Company but was not shown in a separate share premium account apart from the reserves.
The Commissioner contends (1) that the expression "share premium account" in the definition of "paid up capital" in the Explanation to Paragraph D of Part 11 of the Finance Acts 1956 and 1957 means an account apart from the reserves main tained by the Company; and (2) that in any event since the enactment of the "share premium" not maintainable as a separate account cannot be taken into consideration 726 in dealing with the claim for rebate in the payment of super tax and reduction in the rate thereof.
Counsel for the Commissioner relied upon section 78(3) read with section 78(1) of the 1 of 1956, and submitted that the Company was bound to maintain a separate share premium account outside the reserves and transfer into that account the share premium and since the Company failed to do so, in determining the paid up capital within the meaning of the Explanation to Paragraph D of the Finance Acts 1956 and 1957 the share premium within the reserve could not be taken into account.
The relevant clauses of section 78 of the 1 of 1956 provide : "(1) Where a company issues shares at a premium, whether for cash or otherwise, a sum equal to the aggregate amount or value of the premiums on those shares shall be transferred to an account, to be called "the share premium account"; and the provisions of this Act relating to the reduction of the share capital of a company shall, except as provided in this section, apply as if the share premium account were paid up share capital of the Company.
(2) (3) Where a company has passed a resolution authorising the issue of any shares at a premium, this section shall apply as if the, shares had been issued after the commencement of this Act : Provided that any part of the premiums which has been so applied that it does not at the commencement of this Act form an identifiable part of the company 's reserves within the meaning of Schedule VI, shall be disregarded in determining the sum to be included in the share premium account.
" Clause (1) is in terms prospective : it requires a Company to transfer premiums received in cash or otherwise on shares to the share premium ' account.
By clause (3) any premium received prior to the coming into force of the less 'that part of the premium which had been so applied so that it did not, at the commencement of the Act, form an identifiable part of the Company 's reserves, had also to be transferred to the .hare premium account as if the shares had been issued after the commencement of the Act.
Section 78 was apparently borrowed from section 56 of the English Companies 1948 (11 & 12 Geo.
38.) Before the of 1956 there was provision in the Indian Com 727 panies Act 1913 which required a Company to maintain a separate share premium account.
After the coming into force of the 1 of 1956 a share premium account had to be maintained and the share premium could not be used otherwise than for the specific purposes mentioned in section 78 (2).
The plea raised by the Commissioner that the Company failed to comply with the statutory injunction contained in Cl.
(1) of section 78 and on that account the premium received were not "standing to the credit of the share premium accounts within the meaning of the Explanation to Paragraph D in the Finance Act 1956 may be rejected on a simple ground.
In the assessment year 1956 57 the Company was being asses sed to tax in respect of the previous year of the Company ending on December 31, 1955.
In the calendar year 1955, the company was governed by the Indian 7 of 1913 which contained no provision analogous to section 78 of the 1 of 1956.
The was before the Parliament during the year 1955, but the Company was on that account not obliged to transfer to a separate share premium account independent of the reserve the premiums received prior to January 1, 1955.
The came into force on April 1, 1956 : it had no retrospective operation.
Since there was no obligation upon the Company to maintain a separate share premium account in the previous year corresponding to the assessment year 1956 57 the share premium account maintained as an identifiable account within the reserves qualified for being included in the paid up capital within the meaning of this expression in the Explanation to Paragraph D of the Finance Act, 1956.
For the assessment year 1956 57, therefore rebate in uper tax was liable to be reduced, if the Company had distributed dividend exceeding six per cent of the paid up capital inclusive of share premiums maintained as an identifiable account.
The contention raised by the Commissioner must therefore fail in respect of the assessment year 1956 57.
Counsel for the Commissioner contends that in any event in the Finance Act 2 of 1957 the expression "share premium account has only the meaning ascribed thereto in the , and in respect of the assessment year 1957 58, reduction in the rebate must be computed without taking into account the share premium which was maintained by the Company in the year of account 1956 within the reserve.
Under the Finance Act 2 of 1957 rebate in super tax is liable to be reduced in the case of Companies which have, inter alia, distributed to the shareholders in the previous year dividends in excess of 6 per cent of the paid up capital not being dividend payable at 728 a fixed rate.
The expression "paid up capital" is also defined in substantially the same terms as under the Finance Act, 1956.
For the assessment year 1957 58 the Tribunal found that the share premium was liable to be included in the paid up capital, because it was an identifiable part of the reserves.
In our judgment the Tribunal was right in so holding.
The Explanation to Paragraph D Part H of the Finance Act, 1957, does not require that the share premium account must be maintained as an account outside the reserves.
Under the 1 of 1956 there was an express provision that the share premium account shall be maintained in a separate account.
It is true that in the balance sheet in Sch.
VI of the Act the share premium has to be shown under the head "Liabilities" as part of the share capital and not of reserves.
But it cannot be assumed on that account that if the share premium is maintained as a separate account within the reserves, reduction in the rebate in super tax is liable to be computed after excluding share premium.
The Explanation requires that in determining the paid up capital for the purpose of rebate in super tax, share premium standing to the credit of a share premium account shall be excluded it does not make maintenance of an account outside the reserve acondition of its inclusion in the paid up capital.
Again if under the Finance Act, 1956, the expression "standing to the credit of the share premium account" did not mean that the share premiums shall be maintained in a separate account apart from the reserve, is there any reason why, under an identical scheme of reducing rebate in super tax in the year 1957 58, it should have a different meaning ? In the absence of any compelling grounds, we would not be justified in holding that the Parliament attributed to the expression "standing to the credit of the share premium account" as used in the Explanation to Paragraph D Part 11 of the Finance Act 2 of 1957, a meaning different from the one which it had under the Finance Act, 1956.
The object of the Parliament in enacting Paragraph D of the Finance Act was that profits earned by a Company should be available for being ploughed back into the business and should not be distributed to the shareholders by way of dividend in excess of the rate prescribed.
To secure that object the Parliament gave an incentive to 'the Company of substantial rebate in payment of super tax which would be liable to be forfeited, if part of dividend exceeding 6 per cent was distributed to the share holders.
Share premium account is accordingly liable to be included in the paid up capital for the purpose of computing rebate if it is maintained as a separate account.
The Explanation does not contemplate that the account must be kept apart from the reserves.
If within the reserves it is an identifiable separate account, the 729 share premium will qualify for inclusion in the paid up capital.
in computing the reduction in rebate of super tax.
The appeals fail and are dismissed with costs.
One hearing fee.
| IN-Abs | In proceedings for assessment to tax for each of the assessment years 1956 57 and 1957 58, the Income Tax Officer reduced the rebate in supertax admissible to the respondent under the Finance Acts of 1956 and 1957 on the view that the respondent bank, which was a public limited company, had distributed dividends exceeding 6% of its paid up capital.
In reducing the rebate the Income Tax Officer excluded an amount representing share premium received by the company.
The Appellate Assistant Commissioner held that the company 's share premium was liable to be added to its capital in computing the reduction in the rebate in super tax and directed modification of the order of assessment.
The Appellate Tribunal in appeal, as well as the High Court, on a reference, agreed with this view.
In the appeal to this Court, it was contended on behalf of the appellant that the amount representing share premium was not to be added to the share capital because (1) the expression "share premium account" in the definition of "paid up capital" in the Explanation to Paragraph D of Part II of the Finance Acts of 1956 and 1957 means an account apart from the reserves maintained by the company; and (2) in view of the provisions of section 78 (3) read with section 78(1) of the , the respondent company was bound to maintain a separate share premium account outside the reserves and to transfer the share premium into that account which the respondent company had failed to do.
HELD : A share premium account is liable to be included in the paid up capital for the purpose of computing rebate if it is maintained as a separate account.
But the Explanation to paragraph D of of the Finance Acts of 1956 and 1957 does not contemplate that the account must be kept apart from the reserves.
if within the reserves it is an identifiable separate account, the share premium will qualify for inclusion in the paid up capital.
[728 H] Although under the 1 of 1956 there was an express provision that the share premium account shall be maintained in a separate account and by virtue of Sch.
VI of the Act the share premium has to be shown in the balance sheet under the head "Liabilities" as part of the share capital and not of reserves, on that account it cannot be assumed that if the share premium is maintained as a separate account within the reserves, reduction in the rebate in super tax is liable to be computed after excluding share premium.
[728 C] In any event with respect to the assessment year 1956 57 the company was being assessed to tax for the previous year of the company ending on 723 December, 1955, when the of 1956 was not in force.
During that period the company was governed by Act 7 of 1913 which contained no provision analogous to section 78 of the C D]
|
Appeal No. 1015 1968.
Appeal from the judgment and Order dated April 30, 1964 of the Madras High Court in T.C. No. 194 of 1961 (Reference No. 74 of 1961).
D.Narsaraju, R. H. Dhebar, R. N. Sachthey and B. D. Sharma, for the appellant.
R.Gopalkrishnan and R. Balasubramaniam, for the respondent.
The Judgment of the Court was delivered by Grover, J.
This is an appeal by certificate from a judgment of the Special Bench of the Madras High Court in which the sole question that has to be determined is whether Rule 24 of the Appellate Tribunal Rules, 1946, insofar as it enables the Tribunal to dismiss an appeal for default of appearance was ultra vires the provisions of section 33 of the Income tax Act, 1922, hereinafter called the "Act".
The facts which gave rise to the reference which was made to the High Court by the Appellate Tribunal lie within a narrow compass.
The assessee owned 1674 shares in Asher Textiles Ltd. and 9 out of 20 shares in Textile Corporation (Private) Ltd. at Tiruppur.
The latter company was the managing agents of the Asher Textiles Ltd. The assessee was a Joint Managing Director of the Textile Corporation (Private) Ltd. along with one P. D. Asher.
The assessee sold on December 21, 1954 his entire holding in two companies to Asher and some of his relations.
These sales resulted in a profit of Rs. 72,515/ and Rs. 3,14,100/ respectively.
The Income tax Officer assessed these amounts to tax for the assesment year 1956 57 under section 10(5A) of the Act as compensation earned for parting with the effective power of management.
The assessment was upheld by the Appellate Assistant Commis sioner.
The assessee appealed to the Appellate Tribunal.
After some adjournments the appeal was finally fixed for hearing on August 26, 1958.
On that date no one was present on behalf of the assessee nor was there any application for an adjournment.
On August 28, 1958 the Tribunal dismissed the appeal for default of appearance.
This the Tribunal purported to do under Rule 24 of the Appellate Tribunal Rules, 1946 as amended by notification dated January.26, 1948.
Five weeks after the disposal of the appeal the assessee filed a petition before the Appellate Tribunal praying for its restoration.
It was stated, inter alia, in that petition 11 Sup CI/69 3 820 that it was owing to some misapprehension on the part of the assessees auditors at Coimbatore that the date of the hearing of the appeal was not intimated to the counsel at Madras who was convalescing there after a surgical operation.
The Tribunal did not consider that there was sufficient cause for restoration and rejected the petition.
The: assessee applied for a reference under section 66(1) of the Act on two questions of law but that application was rejected by the Tribunal.
The assessee approached the High Court under section 66(2) of the Act and on April 5, 1960 the High Court directed the Tribunal to state the case on two questions.
The matter was first heard by a division bench but owing to the validity of Rule 24 having been canvassed a special bench consisting of the Chief Justice and two judges was constituted.
The special bench reframed the first question thus : "Whether rule 24 of the Appellate Tribunal Rules, 1946 in so far as it enables the tribunal to dismiss an appeal for default of appearance, is ultra vires.
" The second question was "Whether on the facts and in the circumstances of the case the two sums of Rs. 72,515 and Rs. 3,14,100 were assessable to tax under section 10(5A) of the Income tax Act ?" Rule 24 was framed under sub section
(8) of section 5A of the Act.
This provision confers power on the Appellate Tribunal to frame Rules regulating its own procedure.
Section 5A(8) reads : "Subject to the provisions of this Act, the appellate tribunal shall have power to regulate its own procedure and the procedure of Benches of the Tribunal in all matters arising out of the discharge of its functions, including the places at which the Benches shall hold their sittings.
" The Appellate Tribunal first made certain Rules which were published by means of a notification dated Feburary 1, 1941.
Rule 36 provided that the Tribunal shall determine the appeal 'on merits notwithstanding the fact that the appellant did not choose to appear.
The Tribunal was also empowered to restore an appeal which had been disposed of without hearing the appellant.
The Rules made in 1941 were substituted by the Appellate Tribunal Rules, 1946 which were promulgated by means of Income tax Appellate Tribunal Notification, dated October 31, 1946.
Rule 24 was in the following terms Where on the day fixed for hearing or any other day to which the hearing may be adjourned, the appel 821 lant does not appear when the appeal is called on for hearing, the Tribunal may, in its discretion, either dismiss the appeal for defau lt or may hear it ex parte.
" This Rule was amended by means of a notification dated January 26, 1948 and it took the following shape "Where on the day fixed for hearing or any other day to which the hearing may be adjourned,, the appellant does not appear when the appeal is called on for hearing, the tribunal may dismiss the appeal for default.
" The Rule contained no provision for restoring an appeal dismissed for default.
The Special Bench of the High Court noticed the previous history of Rule 24 as also the terms in which it came to be framed after the passing of the Income tax Act, 1961 which enables the Tribunal, in its discretion, either to dismiss the appeal for default or to hear it ex parte in case of non appearance of the parties and further enables the Tribunal to set aside the dismissal on sufficient cause being shown for non appearance.
After referring to various decided cases and examining the relevant provisions of the Act, the Special Bench summed up the position thus "To sum up the position, the Appellate Tribunal is the appointed machinery under the Act for finally deciding questions of fact in relation to, assessment of income tax,.
Its composition, consisting as it does of qualified persons in law and accountancy, makes it peculiarly qualified to deal with all questions raised in a case, whether there be assistance from the party or his counsel or not.
Section 33(4) obliges it to decide an appeal, after giving an opportunity to the parties to put forward their case ' The giving of the opportunity only emphasises the character of the quasi judicial function per formed by the Appellate Tribunal.
The fact that that opportunity is not availed of in 'a 'particular case, will not entitle the Tribunal not to decide the case.
There can be no decision of the case on its merits if the matter is to be disposed of for default of appearance of the parties.
Further, an adjudication on the merits of the case is essential to enable the High Court to perform its statutory duty and for the Supreme Court to hear an appeal filed under section 66 A Section 33 (4) itself indicates by the use of the word "thereon, that the decision should relate to the subject matter of the appeal.
Rule 24, therefore, to be consistent with section 3 3 (4) could only empower the Tribunal to dispose of the appeal on 822 its merits, whether there be an appearance of the party before it or not.
This was indeed the rule when it was first promulgated in the year 1941.
The rule in its present form, as amended in the year 1948, in so far as it enables the dismissal of an appeal before the Income tax Appellate Tribunal for default of appearance of the appellant, Wm, therefore, be ultra vires, as being in conflict 'with the provisions of Section 3 3 (4) of the Act.
" On behalf of the appellant it was urged that the powers of the Appellate Tribunal relating to an appeal are derived from section 3 3 (4) as also from section 5A(8) and the Rules made thereunder and when Rule 24 cannot be said to be ultra vires the latter provision it cannot be impugned as being repugnant to section 33(4).
There is nothing, either express or implied, in the language of section 33(4) from which it could be held that the order of the Tribunal in an appeal must always be made on the merits.
The decisions of the Allahabad, Madras and Punjab High Courts in Shri Bhagwan Radha Kishen vs Commissioner of Income tax, U.P., (1) Ruvula Subba Rao & Ors.
vs Commissioner of Income tax, Madras (2) and Mangat Ram Kuthiala & Ors.
vs Commissioner of Income tax, Punjab (3) have also been pressed in support of the appellants contention.
Now section 5A of the Act appears in Chapter 2A relating to the Appellate Tribunal.
Sub sections
(1) to (4) provide for the constitution of the Tribunal and the appointment of its President and Members.
Sub sections (5) to (7) provide for the manner in which the benches of the Tribunal have to function.
Sub section (8) is to this effect "Subject to the provisions of this Act the Appellate Tribunal shall have the power to regulate its own procedure and the procedure of benches of the Tribunal in all matters arising out of the discharge of its functions including the places at which the bench shall hold their sittings.
" The powers, functions and duties of the Appellate Tribunal are set out in sections 28, 33, 35, 37,48 and 66.
For Our purpose reference may be made only to sections 33 and 66.
Sub sections (1) and (2) of section 33 give a right to the assessee and the Commissioner to appeal to the Appellate Tribunal against the order passed by the Appellate Assistant Commissioner within sixty days of the cornmunication of his order.
Under sub. 'section (2A) the Tribunal can admit an appeal after the expiry of sixty days if it is, satisfied that there was sufficient cause for not presenting it within that period.
Sub section (3) lays down the formalities in the matter of the filing of an appeal.
Sub section
(4) is to the effect that the Appellate (1) (3) (2) 823 Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit and shall communicate any such orders to the assessee and "to the Commissioner.
Sub section
(5) deals with the changes lo be made in the assessment as a result of the orders of the Appellate Tribunal Sub section (6) makes the orders of the Tribunal on appeal final,, the only saving being with reference to the provisions of section 66.
Under that section the assessee or the Commissioner can require the Appellate Tribunal to refer to the High, Court any question.
of law arising out of the order of the Appellate Tribunal and if the Tribunal refuses to state the case on the ground that no question of law arises the assessee or the Commissioner can, within the prescribed period, apply to the High Court and the High Court can direct the Appellate Tribunal to state the case and make a reference.
It is unnecessary to refer to all the previsions of section 66 except to notice the power of the High Court to decide the question of law which decision has to be implemented by the Appellate Tribunal.
Now Rule 24 cannot be said to be ultra vires sub section
(8) of section 5A but what has to be essentially seen is whether it is repugnant to the provisions of section 3 3 (4).
The reasoning which prevailed with the Special Bench of the High Court, in the present case, was that under section 3 3 (4) the Tribunal is bound to dispose of the appeal on the merits, no matter whether the appellant is absent or not.
Reference in particular was made to the remedies, namely, the provisions contained in section 66 relating to reference on question of law and the further right of appeal to this Court under section 66A if the case is certified to be fit one for appeal.
The Special Bench found it difficult to accept that by exercising the power to dismiss an appeal for default of appearance under Rule 24, these remedies which were open to an aggrieved party could be defeated or ren dered infructuous.
The fact that there was no provision in Rule 24 or any other Rule for restoring an appeal once it was dismissed for default was also considered weighty in the matter.
The cases in which the validity of Rule 24 has been upheld may now be considered.
In Shri Bhagwan Radha Kishen vs Commissioner of Income tax, U.P.(1) the discussion on the question of validity of the rule is somewhat meagre.
It was no doubt said that Rule 24 did not in any way come into conflict with section 33(4) but hardly any reasons were given in respect of that view.
It was recognoised ' that there was no specific rule empowering the Tribunal to restore an appeal dismissed for default of appearance but it was observed that the Tribunal would have inherent jurisdiction to set aside such an order if satisfied with regard to the existence of a sufficient cause.
According to Ravula Subba Rao & Ors.
vs Commissioner of Income tax, kadras(2) a very wide power was given to (1) (2) 824 the Appellate Tribunal by section 33(4) and it could pass any order which the circumstances of the one required.
it was immaterial whether the opportunity of being heard had be en availed of by the party or not.
This provision, it was held, did not make it obligatory for the Appellate Tribunal to dispose of the appeal on merits.
In this case again there, was hardly much discussion and the Allahabad decision was simply followed.
In Mangat Ram Kuthiala & Ors.
vs Commissioner of Income tax, Punjab(1), the points raised were different and arose in a petition filed under articles 226 and 227 of the Constitution.
It does not appear that the validity of Rule 24 was canvassed.
The scheme of the provisions of the Act relating to the Appellate Tribunal apparently is that it has to dispose of an appeal by making such orders as it thinks fit on the merits.
It follows from the language of section 33 (4) and in particular the use of the word "thereon" that the Tribunal has to go into the correctness or otherwise of the points decided, by the departmental authorities in the light of the submissions made by the appellant.
This can only be done by giving A decision on the merits on questions of fact and law and not by merely disposing.
of the appeal on the ground that the party concerned has failed to appear.
As observed in Hukumchand Mills Ltd. vs Commissioner of Income tax, Central Bombay (2) the word "thereon" in section 33(4) restricts the jurisdiction of the Tribunal to the subject matter of the appeal and the words "pass such orders as the Tribunal thinks fit" include all the powers (except possibly the power of enhancement) which are conferred upon the Appellate Assistant Commissioner by section 31 of the Act.
The provisions contained in section 66 about making a reference on question of law to the High Court will be rendered nugatory if any such power is attributed to the Appellate Tribunal by which it can dismiss an appeal, which has otherwise been Properly filed, for default without making any order thereon in accordance with section 33 (4).
The position becomes quite simple when it is remembered that the assessee or the Commissioner of Income tax, if aggrieved by the orders of the Appellate Tribunal, can have resort only to the provisions of section 66.
So far as the questions of fact are concerned the decision of the Tribunal is final and refe rence can be sought to the High Court only on questions of law.
The High Court exercises purely advisory jurisdiction and has no appellate or revisional powers.
The advisory jurisdiction can be exercised on a proper reference being made and that cannot be done unless the Tribunal itself has passed proper order under section 33(4).
It follows from all this that the Appellate Tribunal is bound to give approper decision on questions of fact as well as law which can only be done,if the appeal is disposed of on the merits (1) (2) 8 25 and not dismissed owing to the absence of the appellant.
It was laid down as far back as the year 953 by section R. Das, J. (as he then was) in Commissioner of Income tax, Madras vs Mtt.
section Ar.
Arunahalam Chettiar(1) that the jurisdiction of the Tribunal and of the High Court is conditional on there being an order by die Appellate Tribunal which may be said to be one under section 33 (4) and a question of law arising out of such an order.
The Special Bench, in the present case, while examining this aspect quite ' appositely referred to the observations of Venkatarama Aiyar, J. in Commissioner of Income tax, Bombay vs Scindia Steam Navigation Co. Ltd. (2) indicating the necessity of the disposal of the appeal on the merits by,the Appellate Tribunal.
This is how the learned judge had put the matter in the form of interrogation "How can it be said that the Tribunal should seek for advice on a question which it was not called upon to consider and in respect of which it had no opportunity of deciding whether the decision of the Court should be sought.
Thus looking at the substantive provisions of the Act there is no escape from the conclusion that under section 33(4) the Appellate Tribunal has to dispose of the appeal on the merits and cannot short circuit the same by dismissing it for default of appearance.
Now although Rule 24 provides for dismissal of an appeal for the failure of appellant to appear, the Rules at the material time did not contain any provision for restoration of the appeal.
Owing to this difficulty some of the High Courts had tried to find an inherent power in the Tribunal to set aside the order of dismissal [vide Shri Bhagwan Radha Kishen vs Commissioner of Income tax, U.P.(3) and Mangat Ram Kuthiala & Ors.
vs Commissioner of Income tax, Punjab(4)].
There is a conflict of opinion among the High Courts whether there is any inherent power to restore fin appeal dismissed for default under the Civil Procedure.
(Mulla, Civil.
Procedure Code, Vol.
II, pp.
1583, 1584).
It is unnecessary to resolve that conflict in the present case.
It is true that the Tribunal 's powers in dealing with appeals are of the widest amplitude and have, in some cases, been held similar to and identical with the power of an appellate court under the Civil Procedure Code.
Assuming that for the aforesaid reasons the Appellate Tribunal is competent to set aside an order dismissing an appeal for default in exercise of its inherent power there are serious difficulties in upholding the validity of Rule 24.
It clearly comes into conflict with sub.
section
(4) of section 33 and in the event of repugnancy between the substantive provisions of the Act and a rule it is (1) (2) ; (3) (4) 826 the rule which must give way to the provisions of the Act.
We would accordingly affirm the decision of the Special Beach of the High Court and hold that the answer to the question which was referred was rightly given in the affirmative.
The appeal fails and it is dismissed with costs.
R.K.P.S. Appeal dismissed.
| IN-Abs | The respondent 's appeal against an order of assessment was rejected by the Appellate Assistant Commissioner and he, thereafter appealed to the Appellate Tribunal.
The Tribunal, after having granted some adjournments, dismissed the appeal for default in appearance On a day fixed for the hearing, purporting to do so under rule 24 of the Appellate Tribunal Rules, 1946.
The High Court directed the Tribunal to refer two questions to itself one relating to the merits and the other to the effect whether rule 24 of the Appellate Tribunal Rules, 1946, in so far as it enables the Tribunal to dismiss an appeal in default in appearance, is ultra vires.
A special bench of the High Court took the view that under section 3 3 (4) the Tribunal was bound to dispose of the appeal on the merits, whether the appellant was present or not.
On appeal to this Court, HELD : It follows from the language of section 33(4) and in particular the use of the word "thereon" that the Tribunal has to go into the correctness or otherwise of the points decided by the departmental authorities in the light of the submissions made by the appellant.
This can only be done by giving a decision on the merits on questions of fact and law and not by merely disposing of the appeal on the ground that the party concerned had failed to appear.
[824 C D] The provisions contained in section 66 about making a 'reference on questions of law to the High Court would be rendered nugatory if a power is attributed to the Appellate Tribunal by which it can dismiss an appeal, which has otherwise been properly filed, for default, without making an order thereon in accordance with section 33(4).
So far as the questions of fact are concerned the decision of the Tribunal is final and reference can be sought to the High Court only on questions of law.
The High Court exercises purely advisory jurisdiction and has no appellate or revisional powers.
The advisory jurisdiction can be exercised on a proper reference being made and that cannot be done unless the Tribunal itself has passed a proper order under section 33(4).
[824 E H] Rule 24 clearly comes into conflict with section 33(4) and in the event ,of repugnancy between the substantive provisions of the Act and a rule, it is the rule which must give way to the provisions of the Act.
[825 H] Shri Bhagwan Radha Kishen vs Commissioner of Income tax, U.P. ; Ruvula Subba Rao & Ors.
vs Commissioner of Income tax Madras, ; Mangat Ram Kuthiala & Ors.
vs Commissioner of Income tax, Punjab, ; Hukumchand Mills Ltd. vs Commissioner of Income tax, Central Bombay, ; Commissioner of Income 819 tax Madras vs Mtt.
section Ar.
Arunachalam Chettiar, and Commissioner of Income tax, Bombay vs Scindia Stearn Navigation Co. Ltd. ; , referred to.
|
Appeals Nos. 15 and 16 of 1969.
Appeals from the judgment and order dated December 3, 1968 of the Gujarat High Court in Letters Patent Appeals Nos. 43 and 42 of 1966 respectively.
M. C. Chagla, P. C. Bhartari, P. N. Tiwari and J. B. Dada chanji, for the appellants (in both the appeals).
I. N. Shroff, for the respondent (in both the appeals).
The Judgment of the Court was delivered by Hegde, J.
Common questions of law arise for decision in these appeals, by certificate.
The suits from which these appeals arise have been considered together and decided by common judgments, 838 both in the High, Court as well as in the courts below.
It is convenient to do so in this Court as well.
The suits in questions are representative suits.
The plaintiffs appellants who are consumers of electricity in the Godhra area sued the respondent company on behalf of all the consumers in that area seeking to restrain the respondent from enforcing the enhanced charges sought to be collected from the consumers of power used for lights and fans as well as of motive power.
The facts leading to these appeals may no,%, be stated.
On November 19, 1922, the then Government of Bombay granted a licence under the to a concern called Lady Sulochna Chinubhai & Co. authorising it to generate and supply electricity to the consumers in Godhra area.
Clause 10 of the licence prescribed the maximum charges that the licensee could levy for the power supplied.
The respondent is the successor of the said licensee.
After the (to be hereinafter referred to as the Supply Act) came into force, a rating committee was constituted under section 57(2) of the Supply Act at the request of the respondent on January 19, 1950.
On the recommendation of that committee, the Government fixed with effect from February 1, 1952, the following charges for the power supplied: (i) 0 7 9 pies per unit for the electricity supplied for lights and fans with a minimum of Rs. 3/ per month per installation and (ii) for motive power at 4 annas per unit with a minimum of Rs. 4 8 0 per month per installation.
The Supply Act was amended in 1956.
The respondent increas the charges for motive power from January 1, 1963 to 35 NP.
per unit with a minimum of Rs. 7/ per month for every installation.
On June 22.
, 1963, the rates for light and fans were increased with effect from July 1, 1963 to 70 NP.
per unit with a minimum of Rs. 51 per month for every installation.
The contention of the appellants is that the respondent wag not competent to enhance the charges, in question without the matter having been considered by a rating committee.
Their suits to restrain the respondent from levying the proposed increased charges were decreased by the trial court.
Those decrees were affirmed by the first appellate court as well as by a single judge of the Gujarat High Court in second appeals but the appellate bench of the Gujarat High Court reversed those decrees and dismissed the suits holding that under the Supply Act as amended in 1956 the respondent has a unilateral right to enhance the charges subject to the conditions prescribed in the VI Schedule to that Act.
It is 839 as against those decisions these appeals have been brought.
Civil Appeal No. 15 of 1969 relates to the enhancement of charges for electricity power for lights and fans and Civil Appeal No. 16 of 1969 relates to the enhancement of charges for the motive power.
The only question that arises for decision in these appeals is whether under the provisions of the Supply Act as amended in 1956, the respondent was competent to unilaterally enhance the charges.
In these appeals we are not concerned with the provisions of the Electricity Act, 1916.
There is no dispute as regards the charges fixed by the Government with effect from February 1, 1952, under section 57(2)(c) of the Supply Act on the basis of the recommendation made by the rating committee.
The appellants admit their liability to pay enhanced charges that may be fixed by ' the Government on the basis of any recommendation by a freshly, appointed rating committee.
They merely challenge the respondent 's right to unilaterally enhance the charges.
According to the appellants they have a vested right to be governed by the charges fixed in 1952 until the same is revised by the Government on the basis of the recommendation of a rating committee.
It was urged on their behalf that the amendments made in 1956 ' do not affect the charges fixed in 1952 and they continue to rule till altered by the Government in accordance with law.
The respondent repudiates those contentions.
It denies that the appellants have any vested right in the charges fixed.
It was urged on its behalf that the amendments made to the Supply Act in 1956 have substantially altered the scheme as regards levying charges; it is now open to a licensee to alter the charges fixed by the Government unilaterally subject to the conditions prescribed in section 57(A) and in Sch.
VI of the Supply Act.
We may mention at this stage that even according to the appellants the charges that may be fixed by the Government now on the basis of the recom mendation of a rating committee can be unilaterally altered by the licensee after the period fixed in the Government order in accordance with cl.
(e) of section 57(A)(1), expires.
In order to decide the point in controversy, we have to take into consideration the relevant provisions of the Supply Act as it stands now and as it stood prior to its amendment in 1956.
For the sake of convenience we shall set out side by side the relevant provisions.
The Supply Act as it stood before The Supply Act 1956 as amended In 1956 section 57.
Licensee 's charges to consu section 57.
The mers Provisions of the Sixth Schedule and the Seventh Schedule 840 ( 1st column of page no 840) (1) The Provisions of the Sixth Schedule and the Table ap pended to the Seventh Schedule shall be deemed to be incorporated in the licence of every licences not being a local authority, from the date of the commencement of the licensees next succeeding year of account.
and from such date the licensee shall comply therewith accordingly and any provisions of such licence or of the (I.X of 1910), or any other law, agreement or strument applicable to the licensee shall, in relation to the licensee, be void and of no effect in so far as they are inconsistent with the provisions of this section and the said Schedule and Table.
(2) Where the provisions of the.
Sixth Schedule and the Table appended to the Seventh Schedule are under sub section (1) deemed to be incorporated in the licence of any licensee, the following provisions shall have effect in relation to the said licensee, namely : (a) The Board or where 'no Board is constituted under this Act, the Provincial Government, may, if it is satisfied that the licensee has failed to comply with any provisions of the Sixth Schedule and shall when requested so to do by the licensee.
constitute a rating committee to examine the licensee 's charges for the supply of electricity and to recommend thereon to the Provincial Government; Provided that no rating commitee shall be constituted in respect of a licensee within three ( 2nd column of the page no 840) shall be deemed to be incorporated in the licence of every licensee.
not being a local authority (a) in the case of a licence granted before the commencement of this Act, from the date of the commencement of the licences next succeeding year of account; and (b) in the case of a licencee granted after the commencement of this Act, from the date of the commencement of supply, and as from the said date.
the licensee shall comply with the provisions of the said Schedules accordingly , and any provisions of, the , and the the licence granted, to him thereunder and of any other law.
agreement or instrument applicable to the licensee shall, in relation to the licensee, be void and of no effect in so far as they are inconsistent with the provisions of section 57A and the said Schedules.
section 57(A) (1) : where the provisions of the Sixth Schedule and the Seventh Schedule are under section 57 deemed, to be incorporated in the licence of any licensee, the following provisions shall have effect in relation to the said licensee namely : (a) the Board or where no Board is constituted under this Act, the State Government (i) may, if satisfied that the licensee has failed to comply with any of the provisions of the Sixth Schedule, and (ii) shall, when so requested by the licensee in writing constitute a rating committee to examine the licensee 's charges for the supply of electricity and 841 (1st column of the page no 841) years from the date on which such a committee has reported in respect of that licensee, unless the Provincial Government declares that in its opinion circumstances have arisen rendering the orders passed on the recommendation of the previous rating committee unfair to the licensee or airy of his consumers.
(b) The rating committee shall after giving the licensee a reasonable opportunity of being heard and after taking into consideration the efficiency of operation and management and the potentialities of his undertaking report to the Provincial Government making recommendations (and giving reasons therefore)regarding the charges for electricity which the licencee may make to any class or classes of consumers so however that the recommendations are not likely to prevent the licensee from earning clear profits sufficient when taken with the sums available in the Tariffs and Dividends Control Reserve to afford him a reasonable return during his next succeeding three years of account if the potentialities of the undertaking of the licensee, with efficient operation and management so permit.
(c) Within one, month after the receipt of the report under Clause (b) the Provincial Government shall cause the report to be published in the, offcial Gazette.
and may at the same time make an order in accordance therewith fixing the Been see 's charges for the supply (2nd column of the page no 841) to make recommandations in that behalf to the State Government Provided that where it is proto constitute a rating committee under this section on account failure of the licensee to comply with any provisions of the Sixth Schedule.
such committee shall not be constituted unless the licensee has been given a notice in writing of thirty clear days (which period, if the circumstances so warrant may be extended from time to time) to show cause against the action proposed to be taken Provided further that no such rating committee shall be constituted if the alleged failure of the licensee to comply with any provisions of the Sixth Schedule raises any dispute or difference as to the interpretation of the said provisions or any matter arising therefrom and such difference or dispute has been referred by the licensee to the arbitration of the Authority under paragraph XVI of that Schedule before the notice referred to in the preceding proviso was given or is so referred within the period of the said notice Provided further that no rating committee shall be constituted in respect of a 'licensee within three years from the date on which such a committee has reported in respect of that licensee, unless the State Government declares that in its opinion circumstances have arisen rendering the orders passed on the recommendations of the previous rating.
committee unfair to the licensee or any of the consumers : (b) a rating committee under clause (a) shall: (i) where such committee is to be, constituted under subclause (i) of that clause.
be constituted not later than three months after the 842 (1st column of the page no 842) of electricity with effect from such date, not earlier than two months after the date of publication of the report, as may be specified in the order; and the &Msee shall forth with give effect to such order Provided that nothing in this clause shall be deemed to pre vent a licensee from reducing at any time any charges, so fixed.
THE SIXTH SCHEDULE 1.The Licensee shall so adjust his rates for the Sale of electricity by periodical revision that his clear profit in any year shall not as far as possible exceed the amount of reasonable return Provided that the licensee shall not be considered to have failed so to adjust his rates if the clear profit in any year of account has not exceeded the. amount of &be reasonable return by more than thirty per centum of the amount of the reasonable return.
(1) If the clear profit of a licensee in any year of account is in excess of the amount of reasonable return one third of such excess.
not exceeding 7 1/2 per cent of the amount of reasonable return shall be at the disposal of the undertaking.
Of the balance of the excess, one half shall be appropriated to a reserve which shall be called the Tariffs and Dividends Control Reserve and the remaining half, shall either be distributed in the form of a proportionable rebate on the amounts collected from the sale of electricity and meter rentals 'or carried forward in the accounts of the licensee for distribution, to the consumers in future, in (2nd column of the page no 842) expiry of the notice referred to in 'the first proviso to that clause (ii) where such committee is to be constituted at the request of the licensee, be constituted within three months of the date of such request; (c) a rating committee shall, after giving the licensee a reasonable opportunity of being heard and after taking into consideration the efficiency of operation and management and the potentialities of his undertaking, report to the State Government within three months from the date of its constitution, making recommendations with reasons there for, regarding the charges for electricity which the licensee may make to any class or classes of consumers so, however.
that the recommendations are not likely to prevent the licensee from earning clear profit,, sufficient when taken with the sums available in the Tariffs and Dividends Control Reserve to afford him a reasonable return as defined in the Sixth Schedule during his next succeeding three years of account: Provided that the State Government may, if it go deems necessary, extend the said period of three months by a further period not exceeding three month within which the report of the rating committee may be submitted to it; (d) within one month after the receipt of the report under clause (c), the State Government shall cause the report to be published in.
the Official Gazette, and may at the same time make an order In accordance therewith fixing the licensee 's charges for 843 such manner as the Provincial Government may direct.
(2) The Tariffs and Dividends Control Reserve shall be available for disposal by the licensee only to the extent by which the clear profit is less than the reasonable return in any year of account.
(3) On the purchase of the undertaking under the terms of its licence any balance remaining in the Tariffs and Dividends Control Reserve shall be handed over to the purchaser and maintained as such Tariffs and Dividends Control Reserve.
(2nd column of the page no 843) supply of electricity with effect from such date,not earlier than two months or later than three months.after the date of publication of the report as may be specified in the order and the licensee shall forthwith give effect to such order; (e)the charges for the supply of electricity fixed under clause (d)shall be in operation for such period not exceeding three years as the State Government may specify in the order Provided that nothing in this clause shall be deemed to prevent a licensee from reducing at any time any charges so fixed.
THE SIXTH SCHEDULE 1.
Notwithstanding anything contained in the except sub section (2) of section 9 of 1910, 22A, and the provisions in the licence of a licensee.
the licensee shall so adjust his (charges) for the sale of electricity whether by enhancing or reducing them that his clear profit in any year of account shall not, as far as possible, exceed the amount of reasonable return Provided that such (charges) shalt not be enhanced more than once in any year of account : Provided further that the licensee shall not be deemed to have failed so to adjust his (charges) if the clear profit in any year of account has not exceeded the amount of reasonable return by (twenty) per centum of the amount of reasonable return: Provided further that the licensee shall not enhance the (charges) for the supply of,electricity until after the expiry of a notice in writing of, not less than sixty 844 (2nd column of the page no 844) clear days of his intention to so enhance the (charges) given by him to the State Government and and to the Board Provided further that if the (charges) of supply fixed in pursuance of the recommendations of a rating committee con stituted under sec.
57A are lower than those notified by the licensee under and in accordance with the preceding Proviso ', the licensee shall refund to the consumers the excess amount recovered by him from them : Provided also that nothing in this Schedule shall be deemed to prevent a licensee from levying.
with the previous approval of State Govt.
minimum charges for supply of electricity for any purpose.
The notice referred to in the third proviso to paragraph I shall be accompanied by such financial and technical data in supPort of the proposed enhancement of charges as the State Government may, by general or special order, specify.
(1) If the clear profit of a licensee in any year of account is in excess of the amount of reasonable return, one third of such excess, not exceeding (five per cent) of the amount of reasonable return, shall be at the disposal of the undertaking.
Of the balance of the excess, one half shall be appropriated to a reserve which shall be called the Tariffs and Dividends Control Reserve and the remaining half shall either be distributed in the form of a Proportional rebate on the amounts collected from the sale of electricity and meter rentals or carried, forward in the accounts of the licensee for distribution to the consumers in future, in such manner as the State Government may direct.
(2) The Tariffs and Dividends Control Reserve shall be available for disposal by the licensee only to the extent by which the clear 845 (2nd column of the page no 845) profit is less than the reasonable return in any yea of account.
(3) On the purchase of the undertaking under the terms of its licence any balance remaining in the Tariffs and Dividends Control Reserve shall be handed over to the purchaser and maintained as such Tariffs and Dividends Control Reserve: Provided that where the Undertaking is purchased by the Board or the State Government the amount of the Reserve may be deducted from the price payable to the licensee.
From an examination of these provisions it would be seen that under the Supply Act prior to its amendment in 1956, the charges fixed by the Govt.
under s ' 57(2)(c) remained in force unless reduced by the licensee in the meantime till the same were altered by a subsequent order made by the Govt.
after getting a fresh recommendation from the rating committee but under the law as it now stands the rate fixed by the Government under section 57 (A)(1)(d) would be in operation only for such period not exceeding three years as the State Govt.
may specify in the order.
Thereafter it can be enhanced by the licensee in accordance with the provisions contained in Sch.
It was urged on behalf of the appellants that the present section 57 (A (1) (e) can only govern the charges fixed under section 57(A)(1)(d) and it has not impact on an order made under the old section 57(2)(c).
According to the appellants the charges so fixed can only be modified by the Government after getting a report from the rating committee.
Mr. Chagla, learned Course for the appellants contended that the, consumers who 'get power from the respondent have a vested right in the charges fixed in 1952 and that vested right cannot be considered to have been taken away by the provisions of the Amending Act.
He argued that the provisions of the Amending Act are not retro spective in character nor is there any inconsistency between those provisions and the present provisions as the two operate on different fields; hence in view of section 6 of the , we must hold that the charges fixed by the Government in 1952 continue to be in operation.
In this connection he relied on certain observations made by this Court in State of Punjab vs Mohar Singh(") and Deep Chand vs State of U.P. & Ors.
On the other hand it was contended by the learned Counsel for the respondent that the rights and liabilities of the.respondents at present are exclusively regulated by the provisions of the Supply (1) ; (2) [1959] 2 Supp.
section C.R. 8.
846 Act as it stands now; the terms of licences as they originally stood or as they stood on the coming into force of the Supply Act in 1948 are of no consequence now; they cannot be looked into for finding out the rights or duties of the licensee as at present; for that purpose we must look into those terms as modified by the provisions of the Supply Act as It is now.
It was also urged on its behalf that there is no question of vested rights in these cases; herein we are only concerned with the procedure to be adopted in modifying the charges fixed in 1952.
In Mohar Singh 's case(1) this Court laid down that the provisions of section 6(c), (d) and (e) of the relating to the consequences of the repeal of a law are applicable not only when an Act or Regulation is repealed simpliciter but also to a case of repeal and simultaneous enactment re enacting all the provisions of the. repealed law.
In the course of its judgment this Court observed that when the repeal is followed by a fresh legislation on the same subject, the Court has undoubtedly to look into the provisions of the new Act but that only for the purpose of determining whether they indicate a different intention.
The line of inquiry would be, not whether the new Act keeps alive the old rights and liabilities but whether it manifests any intention to destroy them.
In Deep Chand 's case(2) this Court was considering the effect of repugnancy between a State Act and a Central Act.
The observations made in that context, we think, have no bearing on the point in issue in this case.
It is true that when an existing Statute or Regulation is repealed and the same is replaced by fresh Statute or Regulation unless the new Statute or Regulation specifically or by necessary implication affects rights created under the old law those rights must be held to continue in force even after the new Statute or Regulation comes into force.
But in the cases before us there is no question of affecting any vested right.
There is no dispute that the charges fixed can be altered.
The controversy relates to the procedure to be adopted in altering them.
That controversy does not touch any vested right.
The procedure in question must necessarily be regulated by the law in force at the time of the alteration of the charges.
Section 57 of the Supply Act as it stands now lays down that the provisions of Sch.
VI shall be deemed to be incorporated in the licence of every licensee not being a local authority, in 'the case of a licence granted before the commencement of the Act from the date of the commencement of the licensee 's next succeedmg year of account.
Admittedly the licence with which.
we are concerned in these cases was granted even before the Supply Act was enacted.
Therefore quite clearly the licence in question is governed by the present section 57.
Hence we have to read into that licence the provisions contained in Sch.1 VI.
If any of the earlier (1) ; (2) [1959] 2 Supp.
S.C.R. 8.
8 47 provisions in the licence either as they stood when the licence was originally granted or as they stood modified as per the provisions of the Supply Act prior to its amendment in 1956 are in consistent ,with the provisions of Sch.
VI or section 57(A) as they are now they must be held to be void and of no effect.
In other words we must read into the licence the provisions of Sch.
VI and strike out therefrom such terms as are inconsistent with those provisions and thereafter give effect to the same.
For determining the , rights and duties of the licensee as at present we have only to look into the terms of the licence as modified by Sch.
We cannot go behind them.
That much is clear from the language of the Supply Act.
The intention of the legislature is clear and unambiguous.
Therefore there is no need to call into aid any rule of statutory construction or any legal presumption.
Further no reason was advanced before us, nor can we conceive of any why those who obtained licenses prior to the amendment of Supply Act in 1956 should be in a more disadvantageous position than those who got their licenses thereafter.
Correspondingly we fail to see why those who are served by licensees who obtained their licences prior to the amendment of the Supply Act in 1956 should be placed in a better position than those served by licensees who obtained their licenses thereafter.
After all, every law has some reason behind it.
Section 57(A)(2)(e) was intended to meet the changing economic circumstances.
The purpose behind the new provisions appears to be to permit the licensees to so adjust their charges as to get reasonable profits.
, But at the same time a machinery has been provided to see whether any excess charges have been levied and if levied, get the same refunded to the consumers.
The law declared by the Amending Act does not affect any, right or privilege, accrued under the repealed provision.
It merely prescribes as to what could or should be done in future.
Therefore there is no basis for saying that it affects vested rights.
For finding out the power of the licensee to alter the charges one has to look to the terms of the licence in the light of the law as it stands the past history of that law being wholly irrelevant.
If the terms of the licence, including the deemed terms permit him to unilaterally alter the charges then he has that right.
If we merely look at those terms, as we think we ought to, then there is no dispute that the respondent was within its rights in enhancing the charges as admittedly it has followed the procedure prescribed by law.
We also do not agree with Mr. Chagla in his contention that there is no inconsistency between the present scheme relating to the enhancement of charges vis a vis the scheme provided under the Supply Act prior to its amendment in 1956.
The two schemes are substantially different. ' Under the former scheme once the Government fixes the charges the licensee cannot alter 848 it but at present at the end of the period order the licensee has a unilateral right to accordance with the conditions prescribed fixed in the Government enhance the charges in in the VI Schedule.
Therefore in view of section 57 the provisions contained in that schedule have an over riding effect.
In Amalgamated Electricity 'Co., Ltd. vs N. section Bhathena and Anr.(1) this Court was called upon to consider the scope of section 57.(A) and the Sch.
VI as it stands now.
Therein the controversy was whether the appellant therein was entitled ' to levy charges more than the maximum charges prescribed in its licence issued in 1932.
It may be noted that in that case the notice of enhancement of the charges was given on September 25, 1958.
This Court held that the maximum stipulated in the licence no longer governed the.
right of the licensee to enhance the charges; his rights were exclusively governed by the provisions contained in paragraph 1 of Sch.
VI of the Supply Act.
It is true that in that case this Court was considering the right of the licensee under the Supply Act vis a vis his right under the licence granted under the but that difference is not material.
What this Court in fact considered was the right of the licensee under the existing law to enhance the charges.
Dealing with the scope of paragraph 1 of Sch.
VI, Ayyangar, J. who spoke for the majority observed thus : "para 1 of Sch.
VI both as it originally stood and as amended, as seen already, empowered the licensee "to adjust his rates, so that his clear profit in any year shall not, as far as possible, exceed the amount of reasonable return".
We shall reserve for later consideration the meaning of the expression "so adjust his rates". ' But one thing is clear and that is that the adjustment is unilateral and that the licensee has a statutory right to adjust his rates provided he conforms to the requirements of that paragraph viz., the rate charged does not yield a profit exceeding the amount of reasonable return.
The conclusion is therefore irresistible that the maxima prescribed by the State Government which bound the licensee under the Electricity Act of 1910 no longer limited the amount which a licensee could, charge after the Supply Act, 1948 came into force since the "clear profit" and "reasonable return" which determined the rate to be charged was to be computed on the basis of very different criteria and factors than what obtained under the Electricity Act." , For the reasons above, these appeals fail and they are dismissed with costs.
One hearing fee.
G.C. Appeals dismissed.
| IN-Abs | The respondent held a licence for the supply of Electricity under the ' in the Godhra area of undivided BombaY. On the creation of the State of Gujarat the area went to that State.
The Electricity (Supply) Act came into force in 1948 and under it the condi tions in Schedule VI thereof were deemed to be incorporated in the licence of every licensee.
Under section 57 (2) (c) of the ' Act the Government could fix the rates for supply of electricity and under cl. 1 of the Schedule VI a licensee could reduce the rates for keeping the profit at a reasonable level.
A licensee had no, power to enhance the rates except by requesting the Government to fix new rates on the recommendation of a fresh rating committee.
In 1952 the Covernment fixed certain rates on the recommendations of a rating committee.
In 1956 the Supply Act of 1948 was amended.
By section 57A(1) (e) of the amended Act the rates fixed by the Government under section 57(A)(1)(d) on the recommendation of a rating committee were to enure for a maximum of three years.
Under of the amended Schedule VI the licensee shall so adjust his charges Cl.
the sale of electricity whether by enhancing or reducing them that his clear profit in any year of account shall not as far as possible exceed the amount of reasonable return.
In 1963 the respondent enhanced the rates of supply without having them fixed by the Government on the recommendations of a rating committee.
The appellants who were consumers of electricity in the Godhra area filed suits seeking, to restrain the respondent from enforcing the enhanced charges.
The suits were decreed by the trial court and the decrees were 'confirmed by the first appellate court and in second appeal by a single Judge.
In Letters Patent appeal however the High Court held that under the Supply Act as amended in 1956 the respondent had a unilateral right to enhance the charges subject to the conditions prescribed in, Schedule VI of the Act.
The appellants Came to this Court contending that they had a vested right in.
the rates fixed by Government in 1952, that under the amended Act the respondent did not have a unilateral right to enhance those rates, and that the amended provisions not being retrospective nor inconsistent with the old provisions the charges fixed by the Government in 1952 must in view of section 6 of the continue to be in operation.
HELD : The law declared by the Amending Act does not affect any right or privilege, accrued under the repealed provision.
It merely Prescribes as to what can or should be done in the future.
Therefore there is no basis for saying that it affects vested rights.
[847 F] For finding out the power of the licensee to alter the charges one has to look at the terms of the license in the light of the law as it stands, the 837 past history of that law being wholly irrelevant.
If the terms of the licence, including the deemed terms permit him to unilaterally alter the charges then he has that right.
In the present case looking at those terms, the respondent was certainly within its rights in enhancing the charges as admittedly it had followed the procedure prescribed by law.
[847 F G] The contention that there was no inconsistency between the present scheme relating to the enhancement of charges vis a vis the scheme provided under the Supply Act prior to its amendment in 1956 could not be accepted.
The two schemes are substantially different.
Under the former scheme once the Government fixed the charges the licensee could not en hance them but at present at the end of the period fixed in the Government order the licensee has a unilateral right to enhance the charges in accordance with the conditions prescribed in Schedule VI.
Therefore in, view of section 57 the provisions contained in that Schedule have an overriding effect.
[847 H 848 A] The intention of the legislature being clear and unambiguous there was no need to call into aid any rule of statutory construction or any legal presumption.
Further, there was no reason why those who obtained licences prior to the amendment of the Supply Act in 1956 'should be in a more disadvantageous position than those who got their licences thereafter.
Correspondingly there was no reason why those who are served by licencees who obtained their licences prior to the amendment of the Supply Act in 1956 should be placed in a better position than those served by licensees who obtained their licences thereafter.
[847 C] Section 57(A)(1)(e) was intended to meet the changing economic circumstances.
The purpose behind the new provisions appears to be to, permit the licencees to adjust their charges to get reasonable profits.
But at the same time a machinery has been provided to see whether any excess charges have been levied and if levied 'get the same refunded to the consumers.[847 E] In view of the above considerations and findings the appeals must fail.
State of Punjab V. Mohar Singh, ; and Deep Chand, vs State of U.P. & Ors.
[1959] 2 Supp.
S.C.R. 8, distinguished.
Amalgamated Electricity Co. Ltd. vs N. section Bhathena & Anr. ; , applied.
|
Appeals Nos. 2516 to 2519 of 1966.
Appeals from the orders dated February 10, 1965, March 31, 1965 and March 19, 1965 of the Punjab High Court in Letters.
Patent Appeals Nos. 38, 36, 100 and 74 of 1965, respectively and.
Civil Appeals Nos. 806 and 807 of 1967.
850 Appeals from, the jadgment and orders dated September 28, 1964 of the Punjab High Court in civil writ Nos. 2159 and.
2309 of 1963.
V. D. Mahajan, and R. N.Sachthey, for the appellants (in all the appeals).
Hardev Singh, for the respondents (in C.As.
2517 and 2519 of 1966) and for the respondents (in C.As.
Nos. 806 and 807 of 1967).
Civil Appeal No. 2518 of 1966 The Judgment of the Court was delivered by Ramaswami, J.
In this case the respondent is a partnership firm carrying on the business of buying and selling cotton and also of ginning and pressing cotton at Bamala.
The respondent purchased unginned cotton and after ginning the cotton by a mechanical process and removing the seeds sold the ginned cotton to customers outside, the State.
For the period from 1st April, 1961 to 31st March, 1962 the respondent paid purchase tax on the purchase turnover.
In respect of cotton seeds sold by it to registered dealers, the respondent claimed deduction from the purchase turnover under section 5 (2) (a) (vi) of the Punjab Sales Tax Act, 1948 (Act No. 46 of 1948).
But, the assessing authority did not allow the deduction holding that the goods sold viz., cotton seeds were not the goods in respect of which purchase tax had been levied.
In other words, the assessing authority took the stand that the uncotton underwent a manufacturing process and the goods produced were different from those purchased.
So the respondent firm was assessed to pay a tax of Rs. 16,452 by the order of the assessing authority dated 11th September, 1963.
The respondent firm thereafter filed a writ petition No. 1917 of 1963 in the Punjab High Court for quashing the assessment.
The writ petition was allowed by the High Court which quashed the assessment and directed the assessing authority to redetermine the tax in the light of its judgment.
In allowing the writ petition of the respondent the High Court followed its previous decision in Patel Cotton Company Private Ltd. vs State of Punjab & Ors.(1).
The appellants preferred a Letters Patent Appeal which was dismissed.
The present appeal is brought by, certificate from the judgment of the Punjab High Court dated 31st March, 1965.
It is necessary at this stage to set out the relevant provisions ,of the Punjab Sales Tax Act, 1948 (Act No. 46 of 1948) (hereinafter called the Act).
Section 2(ff) omitting immaterial portions defines 'purchase ' thus: (1) 15 S.T.C. 865.
851 "Purchase, with all its grammatical cognate expressions means the acquisitions of goods specified in Schedule C. . " Schedule C Entry (1) and Entry (3) read thus "(1) Cotton, that is to say, all kinds of cotton (indigenous or imported) in its unmanufactured state whether gined or unginned, baled, pressed or otherwise, but not including cotton waste". " (3) Oil seeds that is to say, seeds yielding nonvolatile oils used for human consumption or in or in the manufacture of varnishes, soaps and the like or in lubrication and volatile oils used chiefly in medicines, perfumes, cosmatics and the like".
Section 5 (2) (a) (vi) of the Act is to the following effect "5 (2).
In this, Act the expression "taxable, turnover" means that part of dealer 's gross turnover during any period which remains after deducting therefrom (a) his turnover during that Period on (vi)the purchase of goods which are sold not later than six months after the close of, the year, to a Registered Dealer, or in the course of inter State trade or commerce, or in the course of export out of the country".
Section 2(c) of the (Act No. 74 of 1956) defines 'declared goods ' to mean goods declared under section 14 to be of special importance in inter State trade or commerce.
Under section 14 of this Act certain goods were declared to be of special importance in inter State trade or commerce and they included cotton, that is to say all kinds of cotton (indigenous or imported) in its unmanufactured state, whether ginned or unginned, baled, processed or otherwise, but not including cotton waste.
Section 15 of the has been amended from time to time.
Originally section 15 read as follows : "15, Restrictions and conditions in regard to tax on sales or Purchases of declared goods : Notwithstanding anything contained in the sales tax law of any State the tax payable by any dealer, under that law in respect of any sales or purchases of declared goods made by him inside the State shall not exceed two per cent of the sale price thereof, and such tax shall not be levied at more than one stage in a State".
(1) Sup.
C.I.169 5 852 This section was amended by the Central Sales Tax (Amendment) Act (No. 16 of 1957) and again by Central Act No. 31 of 1958 and the amended section reads as follows : "15.
Restrictions and conditions in regard to tax on sale or purchase of declared goods within a State : Every sales tax law of a State shall, in so far as it imposes or authorises the imposition of a tax on the sale or purchase of declared goods, be subject to the following restrictions and conditions, namely : (a)the tax payable under that law in respect of any, sale or purchase of such goods inside the State, shall not exceed two per cent of the sale or purchase price there of, andsuch tax shall not be levied at more than one stage; (b)where a tax has been levied under that law in respect of the sale or purchase inside the, State of any declared goods and such goods are sold in the course of inter State trade or commerce, the tax so levied shall be refunded to such person in such manner and subject to such conditions as may be provided in any law in force in that State".
On behalf of the appellants the argument was stressed that ginning process was a manufacturing process, and ginned cotton and cotton seeds were different commercial commodities and the respondent was not entitled to the exemption under section 5 (2) (a) (vi) of the Act.
It was said that unginned cotton was transformed into two distinct commercial commodities and there was no substantial identity between unginned cotton and ginned cotton or cotton seeds.
It was argued that the ginning process required complicated machinery of manufacture.
Reference was made in this connection to the mechanical aspect of the ginning process described in Encyclopaedia Britannica, Vol.
6: "Hand separation of lint and seed was replaced rapidly use of saw type gins in the United States after the inventions of Eli Whitney in 1794 and of Hokden Holmesin 1796.
Whitney 's gin was improved upon by Holmes.who substituted toothed saws for the hooked cylinder and flat metal ribs for the slotted bar used by Whitney.
The saws, metal ribs and doffing brush in these early models persist in modem gins, with no basic change in ginning principle having be en made, although some modem gins substitute an air blast for the doffing brushes.
853 Additional gin machinery has been developed to keep pace with changes in harvesting practices which have resulted in a trend from careful hand picking to, rougher hand and machine harvesting.
These developments include seed cotton driers, seed cotton cleaners, burr extractors, greenboll traps and magnetic devices for removing metal.
Line cleaners, designed to remove trash from lint after it had been removed from the seed, were added to modem gins in the late 1940s and 1950s.
Improvement in grade, which resulted in a higher price for the lint, was, in some cases, offset by the loss in weight.
Gin installations include presses for baling the lint and equipment for moving the seed away from the gin stands.
While some of the seed is saved for planting purposes, most of it moves directly to an oil mill for processing"(1).
In our opinion, the appellants are right in their contention that the ginning process is a manufacturing process.
But the question presented for determination in the present case is somewhat different viz., whether the respondent is entitled to the exemption under section 5 (2) (a) (vi) of the Act in the context and setting of the language of sections 14 and 15 of the . "Declared goods" in section 14 of the are individually specified under separate items.
"Cotton ginned or unginned" is treated as a single commodity under one item of declared goods.
It is evident that cotton ginned or un ginned being treated as a single commodity and as a single species of declared goods cannot be subject under section 15 (a) of the to a tax exceeding two per cent of the sale or purchase price thereof or at more than one stage.
But so far as cotton seeds are concerned, it is difficult to accept the contention that the sale of cotton seeds must be treated as a sale of declared goods for the purpose of section 15 (a) or (b) of the .
It is true that cotton in its unginned state contains cotton seeds.
But it is by a manufacturing process that the cotton and the seed are separated and it is not correct to say that the seeds so separated is cotton itself or part of the cotton.
They are two distinct commercial goods though before the manufacturing process the seeds might have been a part of the cotton itself.
There is hence no wan ant for the contention that cotton seed is not different from cotton.
It follows that the respondent is not entitled to deduct the sale price of the cotton seeds from the purchase turnover under section 5 (2) (a) (vi) of the Act.
In our opinion, the assessing authority was right in holding that the respondent was not entitled to deduction in respect of cotton seeds sold by it to registered dealers.
It is conceded that the assessing authority had (1) Encyclopaedia Britannica, Vol. 6, page 614. 854 already granted deduction under section 5 (2) (a) (vi) so far as ginned cotton is concerned.
For these reasons we hold that the judgment of the Punjab High Court dated 31st March, 1965 in Letters Patent Appeal No. 100 of 1965 should be set aside and the writ petition No. 1917 of 1963 filed by the respondent should be dismissed.
The appeal is accordingly allowed with costs.
Civil Appeals Nos. 2516 2517 & 2519 of 1966 and Civil Appeals Nos. 806 and 807 of 1967 The question of law arising in these appeals has been the subject matter of consideration in Civil Appeal No. 2518 of 1966.
For the reasons given in that judgment we hold that these appeals also should be allowed and the judgments of the Punjab High Court should be set aside and the writ petitions filed by the respondents in each case should be dismissed.
These appeals are accordingly allowed with costs.
There will be one hearing fee for these appeals and for Civil Appeal No. 2518 of 1966.
Y.P. Appeals allowed.
| IN-Abs | The respondent a dealer purchased unginned cotton and after ginning the cotton and removing the seeds sold the ginned cotton to customers outside the State.
The respondent paid parchase tax on the purchase turnover.
In respect of cotton seeds sold by it to registered dealers,the respondent claimed deduction from the parchase turnover under section 5 (2) (a) (vi) of the Punjab Sales Tax Act, 1948.
But the assessing authority did not allow the deduction holding that the goods sold viz., cottonseeds were not the goods in respect of which purchase taxhad been levied as the unginned cotton underwent a manufacturing process and the goods.
produced were different from those purchased.
The respondent filed a writ petition in the High Court, which was allowed and the State 's Letters.
Patent Appeal was dismissed.
Allowing the State 's appeal, this Court; HELD : The respondent was not entitled to deduction under section 5(2) (a) (vi) of the Act in respect of cotton seeds sold by it to registered dealers.
"Declared goods" in section 14 of the are individually specified under separate items.
"Cotton ginned ' or unginned" is, treated as a single commodity under one item of declared goods.
It is.
evident that cotton ginned or unginned being.
treated as a single commodity and as a single species of declared goods cannot be subject unders.
15(a) of the to a tax exceeding two per cent of the sale or purchase price thereof or at more than one state.
But so far as cotton seeds are concerned it cannot be held that the sale of cotton seeds must be treated as a sale of 'declared goods for the purpose of is.
15(a) or (b) of the .
Cotton in its unginned state contains cotton seeds, but it is by a manufacturing process that the cotton and the seed are separated and it is not correct to say that the seed so separated is cotton itself or part of the cotton.
They are two.
distinct commercial goods though before the manufacturing process the seeds might have been a part of the cotton itself.
[853 E] Patel Cotton Company Private Ltd. vs State of Punjab & Ors., 15 S.T.C. 865, disapproved.
|
l Appeals Nos.
1477 to 1479 of 1968.
Appeals from the judgment and order dated November 30, 1964 of the Andhra Pradesh High Court in Case Referred No. 49 of 1962.
S.T. Desai and K. Jayaram, for the appellant (in all the appeals).
D.Narsaraju, G. C. Sharma, R. N. Sachthey and B. D. Sharma, for the respondent (in all the appeals).
The Judgment of the Court was delivered by Ramaswami, J.
These appeals are brought by certificate from the judgment of the Andhra Pradesh High Court, dated 30th November, 1964 in Reference Case No. 49 of 1962.
N. V. Rangarao, the father of the appellant, was the holder of an impartible estate called the "Munagala Estate" in the Krishna District in the State of Andhra Pradesh.
This estate was abolished under the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948, and compensation under ' section 45 of the Act was paid severally to the appellant, his father and his brothers.
Other properties belonging to the joint family of the appellant, his father and brothers were also partitioned between them from time to time.
The assets forming the subject of reference to the High Court consisted of investments made from the compensation amount received by the appellant in securities, shares etc.
and also other assets such as deposits in Banks.
The appellant filed returns for the assessment years 1957 58, 1958 59 and 1959 60 in the status of a Hindu Undivided Family.
The appellant 's family during the material time consisted of himself, his wife and his two minor daughters and there was no other male member.
The appellant claimed to be assessed in the status of a Hindu Undivided Family inasmuch as the wealth returned consisted of ancestral property received or deemed to have been received by him on partition with his father and brothers.
The Wealth Tax Officer did not accept the contention of the appellant and assessed him as an individual for the assessment years 1957 58, 1958 59 and 1959 60.
On appeal to the Appellate Assistant Commissioner of Wealth Tax the finding that he must be assessed as an individual was confirmed.
L 11 Sup.
CI/69 7 884 The Income Tax Appellate Tribunal however on appeal by the appellant held that he should be assessed in the status of a Hindu Undivided Family.
Thereupon, the Commissioner of Wealth Tax applied to the Tribunal to state a case to the High Court under section 27(1) of the Wealth Tax Act (Act No. 27 of 1957) (hereinafter called the Act).
The Tribunal accordingly referred the following question of law for the opinion of the High Court : "Whether the status of the assessee was rightly determined as Hindu Undivided Family ?" The High Court disagreed with the view of the Appellate Tri bunal and hold that as the appellant 's family did not have any other male coparcener all the assets forming the subject matter of the returns filed by the appellant belonged to him as an individual and not to a Hindu Undivided Family.
The High Court answered the question in favour of the appellant and against the Commissioner of Wealth Tax.
It is necessary at this stage to set out the relevant provisions of the Act as they stood at the material time : "Section 2 : In this Act, unless the context otherwise requires (e)"assets" includes property of every description, movable or immovable, but does not include (i) agricultural land and growing crops, grass or standing trees on such land; (ii) any building owned or occupied by a cultivator or receiver of rent or revenue out of agricultural land (iii)animals; (ix)a right to any annuity in any case of where the terms and conditions relating thereto preclude the commutation of any portion thereof into a lump sum grant; (v)any interest in property where the interest is available to an assessee for a period not exceeding six years; (m)"net wealth" means the amount by which the aggregate value computed in accordance with the provisions of this Act of all the assets, wherever located, 885 belonging to the assesses on the valuation date, including assets required to be included in his net wealth as on that date under this Act, is in excess of the aggregate value of all the debts owed by the assesses on the valuation date other than, (i)debts which under section 6 are not to be taken into account; and (ii)debts which are secured on, or which have been incurred in relation to, any asset in respect of which wealth tax is not payable under this Act.
Section 3 Charge of Wealth tax Subject to the other provisions contained in this Act, there shall be charged for every financial year commencing on and from the first day of April, 1957, a tax (hereinafter referred to as wealth tax) in respect of every individual, Hindu Undivided Family and company at the rate or rates specified in the Schedule.
Section 5 : Exemption in respect of certain assets: (i)Wealth tax shall not be payable by an assesses in respect of the following assets and such assets shall not be included in the net wealth of the assessee (ii)the interest of the assessee in the coparcenary property of any Hindu Undivided Family of which he is a member".
Under section 3 of the Wealth Tax Act not a Hindu coparcenary but a Hindu Undivided Family is one of the assessable legal en tities.
A Hindu joint family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters.
A Hindu coparcenary is a much narrower body than the Hindu joint family; it includes only those persons who acquire by birth an interest in the joint or coparcenary property, these being the sons, grand sons and great grand sons of the holder of the joint property for the time being.
In Kalyanji Vithaldas vs Commissioner of Income Tax,(1) Sir George Rankin observed : "The phrase "Hindu Undivided Family" is used in the statute with reference, not to one school only of (1) 886 Hindu law, but to all schools; and their Lordships think it a mistake in method to begin by pasting over the wider phrase of the Act the words "Hindu co parcenary", all the more that it is not possible to say on the face of the Act that no female can be a member".
The first question involved in this case is whether the status of the appellant was that of a Hindu undivided family consisting of himself, his wife and his daughters.
In our opinion, there is no warrant for the contention of the respondent that there must be at least two male members to form a Hindu Undivided Family as a taxable unit.
The expression "Hindu Undivided Family" in the Wealth Tax Act is used in the sense in which a Hindu joint family is understood in the personal law of Hindus.
Under the Hindu system of law a joint family may consist of a single male member and his wife and daughters and there is nothing in the scheme of the Wealth Tax Act to suggest that a Hindu Undivided Family as an assessable unit must consist of at least two male members.
The next question is whether the assets which came to the share of the appellant on partition ceased to bear the character of joint family properties and became the individual property in his hands.
In this connection, a distinction must be drawn between two classes of cases where an assesses, is sought to be assessed in respect of ancestral property held by him : (1) where property not originally joint is received by the assessee and the question has to be asked whether it has acquired the character of a joint family property in the hands of the assessee and (2) where the property already impressed with the character of joint family property comes into the hands of the assessee as a single coparcener and the question required to be considered is whether it has retained the character of joint family property in the hands of the assessee or is converted into absolute property of the assessee.
In Kalyanjis(1) case there were six appeals presented before the Judicial Committee by six partners of the firm of M/s. Moolji Sicka and Co., viz., Moolji, Purshottam, Kalyanji, Chaturbhuj, Kanji and Sewdas.
Moolji, Purshottam and Kalyanji each had a son or sons from whom he was not divided.
It was found by the appellate tribunal that the capital supplied by them to the partnership business belonged to them in their individual capacities and was their self acquired property.
Hence the income of the firm which had to be assessed to super tax was the separate income of each of these partners.
Chaturbhuj had a wife and daughter but no son.
Kanji and Sewdas, sons, of Moolji, were married men but neither had a son.
It was found by the appellate tribunal that Chaturbhuj Kanji and Sewdas had (1) 887 received by gift from Moolji their respective share capital in the firm, that the, share capital belonged to them in their individual capacities and was self acquired.
The question at issue was whether the existence of a son and a wife or a wife and a daughter made the income of the partners the income of the Hindu Undivided Family rather than the income of the individual partner.
The Judicial Committee held that though the income was from an ancestral source, the fact that each partner had a wife or daughter did not make that income from ancestral source income of the Hindu Undivided Family of the partner, his wife and daughter.
Different considerations would be applicable, where property already impressed with the character of joint family property comes into the hands of a single coparcener.
The question to be asked in such a case is whether the property retains the character of joint family property or whether it sheds the character of joint family property and becomes the absolute property of the single coparcener.
In Commissioner of Income Tax vs Gomedalli Lakshminarayan,(1) the property was ancestral in the hands of the father and the son had acquired an interest in it by birth.
There was a subsisting Hindu Undivided Family during 'the life time of the father and that family did not come to an end on his death.
On these facts, the Bombay High Court held that the income received from the property was liable to super tax as the income of the Hindu Undivided Family in the hands of the son who was the sole surviving male member of the Hindu Undivided Family in the year of assessment.
The reasoning was that the property from which income accrued originally belonged to a Hindu Undivided Family and on the death of the father it did not cease to be property of that Hindu Undivided Family but continued to belong to that Hindu Undivided Family and its income in the hands of the son was, therefore, assessable as income of the Hindu Undivided Family.
There was a vital distinction between the facts of this case and the facts in Kalyanjis case(1).
This distinction was not noticed by the Judicial Committee in Kalyanji 's case(2) when it observed that the Bombay High Court "arrived too readily at the conclusion that the income was the income of the family".
When Gomedalli 's case(1) was carried on appeal the Judicial Committee once again failed to notice the distinction and wrongly reversed the decision of the Bombay High Court holding that the facts of the case were not materially different from the facts in Kalyanji 's case(2) [See the decision of the Judicial Committee in Commissioner of Income Tax vs A. P. Swamy Gomedalli(3)].
(1)(1935) (2) (3) 888 The recent decision of the Judicial Committee in Attorney General of Ceylon vs AR.
Arunachalam Chettiar(1) is important,.
One Arunachalam Nattukottai Chettiar and his son constituted a joint family governed by the Mitakshara school of Hindu law.
The father and son were domiciled in India and had trading and other interests in India, Ceylon and Far Eastern countries.
The undivided son died in 1934 and Arunachalam became the sole surviving coparcener in the Hindu Undivided Family to which a number of female members belonged.
Arunachalam died in 1938 shortly after the Estate Ordinance No. 1 of 1938 came into operation in Ceylon.
By section 73 of the Ordinance it was provided that property passing on the death of a member of the Hindu Undivided Family was exempt from payment of estate duty.
On a claim to estate duty in respect of Arunachalam 's estate in Ceylon, the Judicial Committee held that Arunachalam was at his death a member of the Hindu Undivided Family, the same undivided family of which his son, when alive, was a member and of which the continuity was preserved after Aruna chalam 's death by adoptions made by the widows of the family and since the undivided Hindu family continued to persist, the property in the hands of Arunachalam as a single coparcener was the property of the Hindu Undivided Family.
The Judicial Committee observed at page 543 of the Report ". . .though it may be correct to speak of him as the owner ', yet it is still correct to describe that which he owns as the joint family property.
For his ownership is such that upon the adoption of a son it assumes a different quality; it is such, too, that female members of the family (whose members may increase) have a right to maintenance out of it and in some circumstances to a charge for maintenance upon it.
And these are incidents which arise, notwithstanding his so called ownership, just because the property has been and has not ceased to be joint family property.
Once again their Lordships quote from the judgment of Gratiaen, J. (2) "To my mind it would make a mockery of the undivided family system if this temporary reduction of the coparcenary unit to a single individual were to convert what was previously joint property belonging to an undivided family into the separate property of the surviving coparcener".
To this it may be added that it would not appear reasonable to impart to the legislature the intention to discriminate, so long as the family itself subsists, between property in the hands of a single copar (1) (2) (1953) 55 C.N.L.R. 496 501. 889 cener and that in the hands of two or more coparceners".
The Judicial Committee rejected the contention of the appellant that since a single coparcener had full power over the property ,held by him, he must be held to be the absolute owner and observed that fact that he possesses a large power of alienation ". . . appears to their Lordships to be an irrelevant consideration.
Let it be assumed that his power of alienation is unassailable : that means no more than that he has in the circumstances the power to alienate joint family property.
That is what it is until he alienates it and, if he does not alienate it, that is what it remains.
It is only by analysing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as joint property ' of the undivided family.
"(1) The basis of the decision was that the property which was the joint family property of the Hindu Undivided Family did not cease to be so because of the "temporary reduction of the coparcenary unit to a single individual".
The character of the property, viz., that it was the joint property of a Hindu Undivided Family, remained the same.
The same principle was applied by this Court in Gowali Bud danna 's (2 ) case.
In that case, one Buddappa, his wife, his two unmarried daughters and his unmarried son, Budanna, were members of a Hindu Undivided Family.
Buddappa died and after his death the question arose whether the income of the properties held by Buddanna as the sole surviving coparcener was assessable as the individual income of Buddanna or as the income of the Hindu Undivided Family.
It was held by this Court that since the property which came into the hands of Buddanna as the.
sole surviving coparcener was originally joint family property, it did not cease to belong to the joint family and income from it was assessable in the hands of Buddanna as income of the Hindu Undivided Family.
In the course of the judgment Shah, J. speaking for the Court examined the decision of the Judicial Committee in Kalyanji 's case(") and Gomedalli 's (4 ) and pointed out that there was a clear distinction between the two classes of cases : "It may however be recalled that in Kalyanji Vithaldas 's case(3) the income assessed to tax belonged separately to four out of six partners; of the remaining two (1) (2) (3) (4) 890 it was from an ancestral source, but the fact that each such partner had a wife or daughter did not make that income from an ancestral source income of the undivided family of the partner, his wife and daughter.
In Gomedalli Lakshminarayan 's case(1), the property from which income accrued belonged to a Hindu Undivided Family and the effect of the death of the father, who was a manager, was merely to invest the rights of a manager upon the son.
The income from the property was and continued to remain the income of the undivided family.
This distinction, which had a vital bearing on the issue falling to be determined, was not given effect to by the Judicial Committee in A. P. Swami Gomedalli 's case(1).
At page 302 Shah, J. referred to the decision of the Judicial Committee in Arunachalam 's (2) case and concluded as follows: "Property of a joint family, therefore, does not cease to belong to the family merely because the family is represented by a single coparcener who possesses rights which an owner of property may posesss.
In the case in hand the property which yielded the income originally belonged to a Hindu Undivided Family.
On the death of Budappa, the family which included.
a widow and females, born in the family was represented by Buddanna alone, but the property still continued to belong to that undivided family and income received therefrom was taxable as income of the Hindu undivided family".
In the present case the property which is sought to be taxed in the hands of the appellant originally belonged to the Hindu Undivided Family belonging to the appellant, his father and his brothers.
There were joint family properties of that Hindu Undivided Family when the partition took place between the appellant, his father and his brothers and these properties came to the share of the appellant and the question presented for determination is whether they ceased to bear the character of joint family properties and became the absolute properties of the appellant.
As pointed out by the Judicial Committee in Arunachalam 's case(2) "it is only by analysing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as "joint property of the undivided family".
Applying this test it is clear that, though in the absence of male issue the dividing coparcener may be properly described in a sense as the owner of the properties, that upon the adoption of a son or birth of a son to him, it would assume a different quality.
It con (1) (2) 891 tinues to be ancestral property in his hands as regards his male issue for their rights hid already attached upon it I and the partition only cuts off the claims of the dividing coparceners.
The father and his male issue still remain joint.
The same rule would apply even when a partition had been made before the birth of the male issue or before a son is adopted, for the share which is taken at a partition by one of the coparceners is taken by him as representing his branch.
Again the ownership of the dividing coparcener is such "that female members of the family may have a right to maintenance out of it and in some circumstances to a charge for maintenance upon it".
(See Arunachalam 's(1) case).
It is evident that these are the incidents which arise because the properties have been and have not been ceased to be joint family properties.
It is no doubt true that there was a partition between the assessee, his wife and minor daughters on the one hand and his father and brothers on the other hand.
But the effect of partition did not affect the character of these properties which did not cease to be joint family properties in the hands of the appellant, Our conclusion is that when a coparcener having a wife and two minor daughters and no son receives his share of the joint family properties on partition, such property in the hands of the coparcener belongs to the Hindu Undivided Family of himself, his wife and minor daughters and cannot be assessed as his individual property.
It is clear that the present case falls within the ratio of the decision of this Court in Gowali Buddanna 's case (2) and the Appellate Tribunal was right in holding that the status of the respondent was that of a Hindu Undivided Family and not that of an individual.
On behalf of the respondent reference was made to the decision of this Court in T. section Srinivasan vs Commissioner of 'Income Tax(3), and it was contended that the decision proceeded on the basis that property received by the coparcener on partition cannot be regarded as property of a Hindu Undivided Family if he has merely a wife or daughter and no son.
It is therefore necessary to examine the material facts and find out what is the ratio decidendi of that case.
The appellant was a member of the Hindu Undivided Family with his father and brothers.
As a result of partial partition of properties belonging to the Hindu Undivided Family the appellant received certain shares and with tsese shares as nucleus he acquired house properties, shares and deposits.
His first son was born on 11 th December, 1952 and it was common ground that the conception of the child must have taken place some time in March, 1952.
For the assessment year 1953 54 the relevant accounting year being the financial year 1st April 1952 to 31st March, 1953, the (1) (2) (3) 8 92 appellant claimed that the income from the assets should be assessed in the hands of the Hindu Undivided Family consisting of himself and his son which, according to him, had come into existence in or about March, 1952 when the son was conceived.
The Income Tax Officer recognised the Hindu Undivided Family only from the date of the birth of the son, viz. 11th December, 1952 and assessed the income till 11th December, 1952 in the hands of the appellant as an individual.
The Appellate Assistant Commissioner and the Tribunal upheld this view on appeal.
Before the High Court the question debated was whether the Hindu Undivided Family came into existence in or about March 1952 when the son was conceived and whether the assesses could be assessed in the status of an individual for any part of the relevant accounting year.
, The question was answered against the assessee by the High Court.
The assessee appealed to this Court and the contention of the appellant was that according to the doctrine of Hindu law a son conceived is in the same position as a son actually in existence.
The argument was rejected by this Court which held that the Hindu Undivided Family did not come into existence on the conception of the son as claimed by the appellant, but came into being when the son was actually born.
It was suggested on behalf of the respondent that the decision of this case must be taken to be implicitly, if not explicitly that there was no Hindu Undivided Family prior to the date of the birth of the son.
But we do not think that any such implication can be raised.
The case of the appellant throughout the course of the proceedings was that the Hindu Undivided Family came into existence for the first time in or about March, 1952 when the son was conceived and it was not his case at any time that a Hindu Undivided Family was in existence prior to the conception of the son.
Indeed, it was common ground between the parties that there was no Hindu Undivided Family in existence prior to the conception of the son.
The only dispute was whether the Hindu Undivided Family came into existence for the first time when the son was conceived as claimed by the assessee or whether it came into existence when the son was born as claimed by the Income Tax Department.
The appellant relied on the doctrine of Hindu law that the son conceived is in the same position as the son born and the respondent contended that this doctrine was inapplicable.
That was the only question raised before this Court which it was called upon to decide and which in fact it decided.
The question whether there was in any event even without a son conceived or born, a Hindu Undivided Family consisting of the appellant and his wife and whether the properties received on partition belonged to that Hindu Undivided Family was neither raised nor argued before this Court which had no occasion to consider it.
The decision of T. section Srini 893 vasan 's case(1) has therefore no bearing on the question now presented for determination in the present case.
For the reasons already.expressed we hold that the status of the appellant was rightly determined as that of a Hindu Un divided Family by the Income Tax Appellate Tribunal and the question of law referred to the High Court must be answered ill the affirmative and against the Commissioner of Wealth Tax.
These appeals are accordingly allowed with costs.
One hearing fee.
| IN-Abs | In respect of his assessment to wealth tax for the assessment years 1957 58, 1958 59 and 1959 60, the appellant filed returns in the status of a Hindu Undivided Family.
His family at the material time consisted of himself, his wife and two minor daughters.
The appellant claimed to be assessed in the status of a Hindu Undivided Family inasmuch as the wealth returned consisted of ancestral property received or deemed to have been received by him on partition with his father and brothers.
The Wealth Tax Officer did not accept the contention of.
the appellant and assessed him as an individual.
The Appellate Assistant Commissioner confirmed this view.
However the Appellate Tribunal held that the appellant should be assessed in the status of Hindu Undivided Family but the High Court, upon a reference, disagreed with the view of the Appellate Tribunal and held that as the appellant family did not have any other male coparcener, all the assets forming the 'subject matter of the returns filed by the appellant belonged to him as an individual and not to a Hindu Undivided Family.
On appeal to this Court, HELD:Allowing the appeal: The status of the appellant was rightly determined as that of a Hindu ,Undivided Family by the Appellate Tribunal.
The expression "Hindu Undivided Family" in the Wealth Tax Act is used in the sense in which a Hindu joint family is understood in the personal law of Hindus.
Under the Hindu system of law a joint family may consist of a single male member and his wife and daughters and there is nothing in the scheme of the Wealth Tax Act to suggest that a Hindu Undivided Family as an assessable unit must consist of at least two male members.
[886 C] Under section 3 of the Wealth Tax Act not a Hindu coparcenary but a Hindu Undivided Family is one of the assessable legal entities.
A Hindu joint family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters.
A Hindu coparcenary is a much narrower body than the Hindu joint family; it in cludes only those persons who acquire by birth an interest in the joint or coparcenary property, these being the sons, grand sons and great grand sons of the holder of the joint property for the time being.
[885 F H] Kalyanji Vithaldas vs Commissioner of Income Tax, 5 I.T.R. 90, Commissioner of Income Tax vs Gomedalli Lakshminarayan considered.
88 3 Commissioner of Income Tax vs A. P. Swamy Gomedalli, , Attorney General of Ceylon vs A.R. Arunachallam Chettiar , Gowali Buddanna 's [1960] 6 I.T.R. 203 referred to.
T.S. Srinivasan vs Commissioner of Income Tax 60, I.T.R. 36 distinguished.
|
Appeal No. 1517 of 1968.
Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated March 13, 1968 of the Madhya Pradesh High Court, Indore Bench in Election Petition No. 45 of 1967.
K. A. Chitaley, Y. section Dharmadhikari, section section Khanduja and K.B. Rohatgi, for the appellant.
G. N. Dikshit, for the respondent.
The Judgment of the Court was delivered by Bachawat, J.
This appeal is directed against the judgment of a Single Judge of the High Court of Madhya Pradesh dismissing ,an election petition for setting aside the election of the respondent Chaudhury Nitiraj Singh to the Hoshangabad Parliamentary Constituency No. 27.
The appellant was the Praja Socialist Party candidate with the election symbol "hut".
The respondent was the Congress Party Candidate with the election symbol "Two bullocks with voke on".
The voting took place on February 20, 1967.
The votes were counted on February 21 and February 20, 1967.
The respondent having got a majority of about 20,000 votes was declared duly elected.
The petition charged the respondent with several corrupt practices.
The appellant no presses before us only the charge under paragraph 5 (i), (ii), (iii) and (iv), paragraph 5(v), paragraph 6 and paragraph 7(ii).
815 At the time of the election, the Congress Party, was in power and the Chief Minister Shri D. P. Mishra belonged to the Congress Party.
In November 1966 the respondent was nominated by the Congress Party as its candidate for the Hoshangabad Parliamentary Constituency.
The substance of the charge as made in paragraph 5 (i), (ii), (iii) and (iv) and as pressed before us is that on December 23, 1966 the Government of Madhya Pradesh headed by Shri D. P. Mishra promulgated an Ordinance No. 19 of 1966 exempting agriculturists holdings and less than 7.50 acres or paying land revenue not exceeding Rs. 5 from payment, of land revenue, that Shri D. P. Mishra as the agent of the respondent and with his consent made speeches at Narsinghpur and Piparia on February 16, 1967 announcing the benefit of such exemption and that the respondent thus committed the corrupt practice under section 123 (1) (A) of the Representation of the People Act, 1951.
The evidence shows that the question of exemption of uneconomic holding from payment of land revenue was being agitated for some time past Towards the close of 1966 a resolution was moved by the members of the opposition parties in the Madhya Pradesh Vidhan Sabha.
urging such exemption.
But no bill to that effect was then passed.
The Government reconsidered the matter and when the Vidhan Sabha was not in session it passed Ordinance No ' 19 of 1966 granting the exemption.
The Ordinance was later replaced by Act.
No. 6 of 1967 which was published on April 26, 1967.
The exemption was advocated by the Praja Socialist Party also and was welcomed by all parties.
Nevertheless on the eve of the election the opposition parties started a campaign stating that the object of the exemption was to forfeit the land to the State and raised the slogan "Lagan Maaf Zamin Saaf".
The propaganda was refuted by the Congress Party.
In an election speech on February 16, 1967 Shri D. P. Mishra raised the slogan "Lagan Maaf Sab Party Saaf".
His object was to tell the voters that the exemption should be granted and that the opposition parties should be routed in the election.
It also appears that one Shri section K. Dixit a member of the Congress Party published a pamphlet exhibit P 2 on or about February 7, 1967 refuting the false propaganda that the exemption was temporary and was granted with a view to forfeit the lands and urging the electors to vote for the congress.
On the materials on the record it is impossible to hold that the respondent committed the corrupt practice under section 123 (1) (A). 'The ordinance was passed by the Government of Madhya Pradesh.
As a result of the Ordinance a large number of agriculturists got exemption from land revenue.
Such an exemption does not amount to a gift, offer or promise of any gratification within the meaning of section 123 (1) (A).
Nor is it possible to say that the government was the agent of the respondent.
It is true that the Congress Party was then in power.
But the exemption was not given by the Congress Party.
It was given by the Ordinance which was passed by the Government.
Nor does 816 the announcement of the declaration at the meeting held on February 16, 1967 or by the pamphlet exhibit P 2 carry the matter any further. ' On the materials on the record it is not possible to say that either Shri D. P. Mishra or Shri section K. Dixit acted as the agent of the respondent.
The charge under paragraph 5(i), (ii), (iii) and (iv) is not established.
Some additional embellishments of the charge were dealt, with by the learned Judge and they were not pressed before us.
The substance of the charge as laid in paragraph 5 (v) and as pressed before us is that on the eve of the election the Government of Madhya Pradesh headed by Shri D. P. Mishra declared that Class III and Class IV government employees would get increased dearness allowance from April 1, 1967 according to the rates sanctioned for Central Government employees, that Shri D. P. Mishra ' with the consent of the respondent and as his agent announced the grant of these benefits at the meetings held on February 16, 1967 at Narsinghpur and Piparia and that the respondent thus committed the corrupt practice under section 123 (1) (A).
It appears that Class III and Class IV employees gave a notice to the government stating that they would go on strike with effect from February 13, 1967.
Without their co operation the entire election would have been at a standstill.
The Government thought that the demand of the employees for increased dearness allowance was legitimate and therefore announced on or about February 11, 1967 its decision to grant the increased dearness allowance with effect from April 1, 1967.
The grant of the increased dearness allowance cannot be regarded as a gift, offer or promise of any gratification within the meaning of section 123 (1) (A) nor is it possible to say that the Government or Shri D. P. Mishra was the agent of the respondent.
The announcement of the grant of the increased dearness allowance at the meeting held on February 16, 1967 does not carry the matter any further.
The charge under paragraph 5 (v) is not established.
The charge under paragraph 6 is that the respondent or his agent distributed dummy ballot papers with the respondent 's name and his election symbol of "Two bullocks with yoke on ' an , so the appellant 's name without his election symbol printed thereon, that those papers conveyed to the voters the impression that the appellant had withdrawn his candidature, that the appellant and his agents on the eve of the election told the voters that the appelant had withdrawn his candidature and that the respondent thereby committed the corrupt practice under section 123 (4).
Vie evidence shows that dummy ballot papers as mentioned above were printed and distributed on behalf of the respondent.
Such dummy ballot papers were in contravention of the instructions issued by the Election Commission of India.
The appellants name should not have 817 been printed in them.
But it is impossible to say that the dummy ballot papers conveyed to the voters the impression that the appellant had withdrawn his candidature.
On this issue the appellant examined P.W. 6, PW 7, PW 10, PW 23, PW 25 PW 27, PW 29, PW 30, PW 31 and PW 32 and the respondent examined RW 2, RW 3, RW 1 1 and RW 13.
In agreement with the learned Judge we do not accept the statement of the appellant 's witnesses that on the eve of the election the respondent and his agents informed the voters that the appellant had withdrawn his candidature.
The voters knew that there were two candidates in the field, viz., the appellant and the respondent.
Even on February 16, 1967 Shri D. P. Mishra stated that the appellant was contesting the election.
The respondent carried on a vigorous election propaganda until Februay 18, 1967.
If the respondent or his agent had informed the voters that the appellant had withdrawn his candidature it was not likely that such intensive propaganda would be carried on, until that date.
The charge under paragraph 6 is therefore not established.
The charge under paragraph 7 (ii) was that Chaudhary Diwan Singh, the Station House Officer at Sohagpur, and a member of the police force in the service of the government, with the consent of the respondent actively canvassed for the respondent and that the respondent thereby committed corrupt practice under section 123 (7).
To prove this charge the appellant examined PW 3, PW 4 and PW 9.
Chaudhary Diwan Singh and the respondent denied the charge.
For the reasons given by the learned Judge, it is impossible to accept the testimony of PW 3, PW 4 and PW 9.
Their evidence does not ring true: P.W. 3 never spoke to anybody that he was asked by Chaudhary Diwan Singh to vote for the respondent.
It is not likely that Diwan Singh would approach P.W. 4.
It is impossible to believe that P. W. 9 could overhear a conversation between Diwan Singh and the respondent when the respondent is said to have asked Diwan Singh to canvass for him.
The charge under paragraph 7 (ii) is also not established.
In the result, the, appeal is dismissed with costs.
Y.P. Appeal dismissed.
| IN-Abs | The appellant, an unsuccessful candidate filed an election petition for setting aside the election of the respondent who got elected as a Congress candidate to a Parliamentary constituency.
The respondent was chraged with several corrupt practices, viz., (i) by an ordinance the Government of the State in which the Congress Party was in power, granted exemption to certain agriculturists ' holdings from payment of land revenue and the Chief Minister announced the benefit though the exemption was claimed for sometime past by the opposition parties the ordinance was passed prior to the election; the opposition parties started a campaign stating that the object of the exemption was to forfeit the land; the Chief Minister refuted the charge and told the voters that the exemption should be granted and that the opposition parties should be routed in the election; a member of the Congress Party D, published a pamphlet refuting the false propaganda that exemption was temporary and urging the electors to vote for the Congress; (ii) the Chief Minister on the eve of the election announced increased dearness allowance to certain Government employees; (iii) the respondent or his agent distributed dummy ballot papers with the respondent 's name and his election symbol, and also that of appellant 's name but without his election symbol printed thereon, thereby conveying an impression that the appellant had withdrawn his candidature, and further, that the respondent and his agents on the eve of the election told the voters that the appellant bad withdrawn, so the respondent had committed corrupt practice under section 123(4); and (iv) a member of the police force in the service of the Government with the consent of the respondent actively canvassed for the respondent, thereby committing corrupt practice under 'section 123(7).
High Court dismissed the petition, HELD: The appeal must be dismissed.
(i)On the materials, on the record, it was impossible to hold that the respondent committed the corrupt practice under section 123(1)A.
The ordinance was passed by the Government of Madhya Pradesh.
As a result of the ordinance a large number of agriculturists got exemption from land revenue.
Such an exemption did not amount to a gift, offer or promise of any gratification within the meaning of section 123(1)(A) nor was it possible to say that the Government was the agent of the respondent.
The Congress Party was then in power.
But the exemption was not given by the Congress Party.
It was given by the Ordinance which was passed by the Government.
Nor does the announcement of the declaration by the Chief Minister or by the pamphlet carry the matter any further.
It was not possible to say that either the Chief Minister or D acted as the agent of the respondent.
[815 G] 814 (ii)The grant of the increased dearness allowance could not be regarded as a gift, offer or promise of any gratification within the meaning of section 123 (1 ) (A) nor it was possible to say that the Government or the Chief Minister was the agent of tie respondent.
The employees of the Government had given notice to go on strike a week before the election and without their cooperation. the entire election would have been at a standstill.
The Government thought that the demand of the employees was legitimate and therefore announced it on the eve of the election to meet it.
[816 D F] (iii)The dummy ballot papers were in contravention of the instructions issued by the Election Commission of India.
The appellant 's name should not have been printed in them.
But it was impossible to say that the dummy papers conveyed to the voters the impression that the appellant had withdrawn his candidature.
The statement of the appellant 's witnesses could not be accepted that on the eve of the election the respondent and his agents informed the voters that the appellant had withdrawn his candidature.
The voters knew that there were two candidates in the field.
Even a few days prior to the election the Chief Minister stated that the appellant was contesting the election.
The respondent carried on rigorous election propaganda till the last day.
[816 H] (iv)On the evidence the charge that the member of the police force canvassed for the respondent was not established.
|
Appeal No. 193 of 1952.
Appeal by Special Leave from the Judgment dated the 21st December, 1951, of the High Court of Judicature of Travancore Cochin arising out of the Judgment and Decree dated the 18th January, 1943, of the Court of District Judge, Kottayam.
N. P. Engineer (P. N. Bhagwati, M. Abraham and M. section K. Sastri, with him) for the appellants.
M.C. Setalvad, Attorney General for India, C. K. Daphtary, Solicitor General for India, and K. P. Abraham (T. R. Balakrishna Aiyar and M. R. Krishna Pillai, with them) for respondent No. 2. 1954.
May 21.
The Judgment of the Court was delivered by DAS J.
(After stating the circumstances which gave rise to the present litigation, and the facts of the case, a brief summary of which is given above, His Lordship proceeded as follows).
It will be convenient at this stage to discuss and deal with a preliminary point raised by the learned Attorney General appearing for the plaintiffs respondents.
In order to appreciate and deal with the point so raised it will be necessary to take note of the changed conditions that bad been brought about in the 524 matter of the judicial administration in the State by the recent political changes culminating in the adoption of the new Constitution of India.
It will be recalled that the present review application was made on the 22nd August, 1946, and a notice to show cause was issued on the 4th December, 1947.
The preliminary question as to the maintainability of the review application was decided on the 29th June, 1949.
During all this period Regulation IV of 1099 was in force in the State of Travancore.
Section 1 1, omitting the explanations which are not material for our present purpose, and section 12 of that Regulation provided as follows: " 11.
(1) A Full Bench shall hear and decide all appeals from the decrees of the District Courts in suits in which the amount or value of the subject matter is not less than five thousand rupees and the amount or value of the matter in appeal is not less than that sum.
The judgment of the Full Bench or the judgment of the majority, if there be difference of opinion, together with the records of the case, shall be submitted to us in order that the judgment may be confirmed by Our Sign Manual.
(2)Notwithstanding anything in the provisions of the Civil Procedure Code, the date of the decree shall be the date on which the judgment is declared in open Court after being confirmed by Our Sign Manual.
Explanation I. . . . (a) . . . . . (b) . . . . . . (e) . . . . . .
Explanation II 12.In cases decided under section 11 of this Regulation a Full Bench of the High Court may admit a review of judgment subject to the provisions of the Code of Civil Procedure.
If, on review, a fresh judgment be passed, the provisions of section 11 shall, as far as may be, apply.
" It will be seen that under section 12 if a fresh judgment be passed then the provisions of section 11 shall, as far as possible, apply, that is to say, the judgment 525 shall have to be submitted to the Maharaja for confirmation by his Sign Manual and the judgment so confirmed shall have to be declared in open Court after such confirmation.
This was the position until the end of June, 1949.
In the meantime on the 29th May, 1949, came the Covenant of merger between the Rulers of Travancore and Cochin with the concurrence and guarantee of the then Governor General of India for the formation as from the 1st July, 1949, of the United State of Travancore and Cochin with a common Executive, Legislature and Judiciary.
Article III provided that as from the appointed day (i.e., 1st July, 1949) all rights, authority and jurisdiction belonging to the Ruler of either of the covenanting States which appertained or were incidental to the Government of that State would vest in the United State.
Article IV enjoined that there should be a Rajpramukh of the United State, the then Ruler of Travancore being the first Rajpramukh during his lifetime.
Broadly speaking, articles VI and XI vested the executive and legislative authority of the United State in the Rajpramukh subject to the conditions and for the period therein specified.
Article XXI preserved the power of the Rulers to suspend, remit or commute death sentences.
In exercise of the powers conferred on him by article XI of the Covenant the Rajpramukh on the.
1st July, 1949, promulgated Ordinance No. I of 1124.
Clause 3 of that Ordinance continued in force for that portion of the territories of the United State which formerly formed the territory of the State of Travancore all existing laws until altered, amended or repealed.
Similar provision was made in clause 4 for the continuance of Cochin laws for that part of the United State which formerly formed the State of Cochin.
On the 7th July, 1949, however, came Ordinance No. II of 1124.
Clause 4 of this Ordinance repealed the Travancore High Court Act (Regulation IV of 1099).
The relevant part of clause 8 which is important for the purpose of the present discussion was in the terms following: "8.
All proceedings commenced prior to the coming into force of this Ordinance in either of the 526 High Courts of Travancore and Cochin, hereinafter in this Ordinance referred to as the existing High Courts, shall be continued and depend in the High Court as if they had commenced in the High Court after such date. . " The jurisdiction and powers of the High Court were defined thus: "18.
Subject to the provisions of this Ordinance, the High Court shall have and exercise all the jurisdiction and powers vested in it by this and any other Ordinance and under any law which may hereafter come into force and any power or jurisdiction vested in the existing High Courts by any Act or Proclamation in force in the States of Travancore and Cochin immediately prior to the coming into force of this Ordinance.
Clause 25 leaving out the two Explanations which are not material for our present purpose and clause 26 ran as follows: "25.
A Full Bench shall hear and decide all appeals from the decrees of the District Courts or the Court of a Subordinate Judge or of a Single Judge of the High Court in Suits in which the amount or value of the subject matter is not less than five thousand rupees and the amount or value of the matter in appeal is not less than that sum.
Explanation I. . . . . .
Explanation 11. . . . . . 26.
In cases decided under section 25 of this Ordinance, a Full Bench of the High Court may admit a review of judgment subject to the provisions of the Travancore and Cochin Codes of Civil Procedure.
" Clauses 18, 25 and 26 have been substantially reproduced in sections 18(1), 25 and 26 of the United State of Travancore and Cochin High Court Act 1125 (Act No. V of 1125) which repealed, amongst other things, Regulation IV of 1099 and Ordinance 11 of 1124.
Then came the Constitution of India in 1950 which created a union of several States grouped in Parts A, B and C by the First Schedule.
The United State of Travancore Cochin became one of the Part B States.
527 Under article 214 the High Court of the United State of Travancore and Cochin became the High Court of the Part B State of Travancore Cochin and article 225 continued the jurisdiction of and the laws administered in the then existing High Court.
The contention of the learned Attorney General is that in view of the changes referred to above which had the effect of setting up a common High Court for the United State of Travancore and Cochin with jurisdiction and power defined therein, the review application has become infructuous, for, even if it be allowed, there will be no authority which will have jurisdiction and power to pronounce an effective judgment after rehearing the appeal.
It is pointed out that a review may be admitted under section 26 of the United State of Travancore and Cochin High Court Act, 1125, only in cases decided under section 25 of the Act.
This case was not decided by a Full Bench under section 25 of the Act and, therefore no review is maintainable under section 26.
Further, if it be held that the appeal having been filed under section 11 of the Travancore High Court Regulation (IV of 1099), the application for review must be dealt with under section 12 of that Regulation then, says the Attorney General, if after the review is admitted a fresh judgment has to be passed after rehearing the appeal the provisions of section 11 would have to be complied with, namely, the fresh judgment will, under section 11, have to be submitted to the Maharaja to be confirmed by his Sign Manual and the decree will have to be dated as of the date on which the judgment will be declared in open Court after such confirmation.
It is pointed out that the Maharaja of Travancore no longer possesses the power to consider and to confirm or reject judicial decisions and it is submitted that such being the position in law the review application had become infructuous and should have been dismissed by the Full Bench in limine.
In our opinion, this contention is not well founded.
The application for review was properly made to the Travancore High Court and the Travancore High Court had to decide whether to admit or to reject the application.
The judgment to be pronounced on 528 the application for review did not require, under any provision of law to which our attention has been drawn, to be confirmed by the Maharaja or any other authority.
It was a proceeding properly instituted and was pending on the 1st July, 1949, and consequently under section 8 of Ordinance No. II of 1124 had to be continued in the High Court of the United State as if it had commenced in the said High Court after the coming into force of the said Ordinance.
In this case, the application for review was rejected by the High Court.
If, however, the High Court had admitted the review then such admission would have had the effect of reviving the original appeal which was properly filed in the Travancore High Court under section 11 of the Travancore High Court Regulation (IV of 1099).
That appeal, so revived, having been commenced prior to the coming into force of Ordinance No. II of 1124 would, under section 8 of that Ordinance, have had to be continued in the High Court of the United State as if it had commenced in that High Court after such date.
The position will be the same if on this appeal this Court now admits the review, for, upon such admission the appeal filed in the Travancore High Court will be revived and then, having been 'commenced in the Travancore High Court and continued in the High Court of the United State by virtue of section 8 of Ordinance No. II of 1124 the appeal so revived will, under section 8 of the Act of 11.25, have to be continued in that High Court as if it had commenced in that High Court after the coming into force of that Act.
In other words, the old appeal, if restored by this Court on this appeal, will, by the combined operation of section 8 of Ordinance 11 of 1124 and section 8 of the Act of 1125, be an appeal pending in the High Court of the United State.
Under our present Constitution Travancore Cochin has become a Part B State and under article 214 the High Court of the United State of Travancore Cochin has become the High Court of the Part B State of Travancore Cochin and shall have the jurisdiction to exercise all the jurisdiction of and administer the law administered by the High Court of the United State, Such appeal must, accordingly, be 529 disposed of under section 25 of the last mentioned Act.
That section does not require any confirmation of the judgment passed on the rehearing of the appeal by the Maharaja or Rajpramukh or any other authority.
Assuming, however, that the appeal, if restored, will have to be governed by section 12 of the Travancore High Court Regulation (IV of 1099) even then the provisions of section 11 would have to be applied "as far as may be" and it may well be suggested that the portion of section 11 which requires the confirmation by the Maharaja will, in the events that have happened, be inapplicable.
In our opinion, therefore, the preliminary objection cannot prevail and must be rejected.
Before going into the merits of the case it is as well to bear in mind the scope of the application for review which has given rise to the present appeal.
It is needless to emphasise that the scope of an application for review is much more restricted than that of an appeal.
Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order XLVII, rule I of our Code of Civil Procedure, 1908, the Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein.
It may allow a review on three specified, grounds, namely (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant 's knowledge or could not be produced by him at the time when the decree was.
passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason.
It has been held by the Judicial Committee that the words "any other sufficient reason" must mean "a reason sufficient on grounds, at least analogous to those specified in the rule.
" See Chhajju Ram vs Neki(1).
This conclusion was reiterated by the Judicial Committee in Bisheshwar Pratap Sahi vs Parath Nath(2) and was adopted by our Federal Court in Hari Shankar Pal vs Anath Nath Mitter(3).
Learned counsel appearing in support of this appeal recognises the aforesaid (1) L.R. 49 I.A. 144.
(2) L.R, 61 I.A. 378.
(3) (1949] F.C.R. 36 pp.
47 48, 68 530 limitations and submits that his case comes within the ground of "mistake or error apparent on the face of the record" or some ground analogous thereto.
As already observed, out of the 99 objections taken in the grounds of review to the judgment of the majority of the High Court only 15 objections were urged before the High Court on the hearing of the application for review.
Although most of those points have been referred to by learned counsel for the appellants, he mainly stressed three of them before us.
We now proceed to examine these objections.
The first objection relates to the validity of the election of the first plaintiff as the Malankara Metropolitan and as such the ex officio trustee and the elections of plaintiffs 2 and 3 as his co trustees at the Karingasserai meeting.
This meeting is pleaded in paragraphs 13 and 14 of the plaint,.
In paragraph 18 of the plaint the plaintiffs refer to the meeting said to have been held at the M. D. Seminary in December, 1934, on which the defendants rely, the plaintiffs ' contention being that that meeting was not convened by competent persons nor after due notice to all the churches according to custom.
In paragraph 20 of their written statement the defendants deny the factum or the validity of the Karingasserai meeting relied upon by the plaintiffs.
They contend that that meeting was not convened by competent persons nor was invitation sent to the large majority of the churches.
In paragraph 29 the defendants repudiate the allegations pleaded in paragraph 18 of the plaint and maintain that their meeting was convened properly and upon notice to all the churches in Malankara.
In paragraphs 16 and 18 of their replication the plaintiffs reiterate the allegations in the plaint.
Issue 1(b) raises the question of validity of the Karingasserai meeting of August, 1935, and issue 6(a) raises the question of the validity of the M. D. Seminary meeting of December, 1934.
As the suit is for possession of the church properties the plaintiffs, in order to succeed, must establish their title as trustees and this they can only do by adducing sufficient evidence to discharge the onus that is on them under issue 1(b) irrespective 531 of whether the defendants have proved the validity of their meeting, for it is well established that the plaintiff in ejectment must succeed on the strength of his own title.
It will be noticed that the defendants ' objection to the Karingasserai meeting was two fold, (i) that the meeting had not been convened by competent persons and (ii) that notice had not been given to all the churches.
The District Judge in paragraph 164 of the judgment held, for reasons stated by him, that that meeting had not been convened by competent persons and in paragraph 165 he found that notice of the said meeting had not been given to all the churches.
It having been conceded by the plaintiffs ' advocate at the time of the final argument before the District Judge that there is no evidence on the plaintiffs ' side to prove that all the churches in existence prior to 1086 had been issued notices, the position was taken up that in the view of the plaintiffs ' party the defendants and their partisans by adopting the new constitution exhibit AM had become aliens to the Church and as such were not entitled to be invited to that meeting.
Their argument was that Karingasserai meeting was only a meeting of the representatives of those churches which stood by the Patriarch Abdulla 11 and the succeeding Patriarchs and as the defendants and their partisans had become aliens to the Church no notice to them was necessary.
This argument clearly amounted to an admission that no notice was sent to the churches on the defendants ' side.
The District Judge having held, contrary to the submission of the plaintiffs, that the defendants and their partisans had not gone out of the Church it followed, according to him, that they were entitled to notice and as it was not proved that notices were sent to them but on the contrary as it was contended that no notice was necessary to be sent to them the District Judge felt it to be quite clear that the said meeting was not duly convened.
In this view of the matter, it was not necessary for the learned District Judge to go further into the matter and enquire whether notices had been given to churches which had not adopted the new constitution exhibit AM.
Coming to the judgment of the High Court it appears that the majority of the Judges dealt with the question 532 of the validity of the meeting in a superficial and summary manner.
Nokes J. said: "The lower Court held that the meeting was not duly convened, mainly because notice was not given to the defendants ' party (judgment paragraphs 166,167).
The want of notice was not disputed, but was justified in accordance with the Patriarchal monition (Exhibit Z).
In view of the conclusion stated above, that the adoption of the new constitution was clear evidence of the defendants ' repudiation of the Patriarchs ' church, and of the fact that the adoption took place in 1934 about 8 months earlier than the meeting at Karingasserai, the want of notice was justifiable apart from the monition.
The lower Court 's conclusion that the meeting formed only a minority of the church is thus erroneous as is the conclusion (judgment, paragraphs 164, 167) that the meeting was not convened by competent persons." Mr. Justice Sathyanesan simply observed: "The only defect pointed out was that no invitation of the meeting was given to the churches under the control of 1st defendant.
The short answer to this is that having already become members of a new Church, they were not entitled to any invitation and were rightly ignored.
" It thus appears that the question as to the competency of the persons who convened the Karingasserai meeting was disposed of by Nokes J. in one single sentence at the end of the paragraph quoted above.
The learned Judge does not appear to have seriously applied his mind at all to the question of the competency of the conveners of that meeting.
Sathyanesan J. did Dot deal with the question and thought, quite wrongly, that the only question raised by the defendants was as to whether notice was given to the churches under the control of the defendants.
It is pointed out by the learned Attorney General that the judgment of Sathyanesan J. was only a supplementary judgment, for he prefaced his judgment with the observation that he entirely agreed with the findings of Nokes J.
This argument might have had some force 533 if Nokes J. had dealt with the point.
The position, therefore, is that neither of the Judges applied his mind to the question of the competency of the persons who had convened the Karingasserai meeting.
As to service of the notice on all churches, Nokes J. in the passage quoted above held that the defendants had gone out of the Church by reason of their adoption of the new constitution exhibit AM.
and that consequently no notice was due to them.
Sathyanesan J. also in the passage quoted above took the view that the defendants having become members of a new church the defendants were not entitled to any invitation to the Karingasserai meeting.
The learned Judges having reversed the finding of the District Judge and held that the defendants had gone out of the Church by adopting the new constitution exhibit AM.
it became incumbent on them to enquire whether all churches not on the plaintiff 's side had adopted exhibit AM.
and if not whether such of them who had not adopted exhibit AM. had been summoned to the meeting.
It may be noted in this context that the learned Judges of the High Court in their judgment seem to indicate that the churches which adopted 'exhibit AM.
did so by participation at the M. D. Seminary meeting.
Reference has been made in the arguments to the various figures set out in the judgment of the District Judge as to the number of Churches which according to the evidence had attended the meeting.
It is not clear how many out of 310 churches claimed by the defendants to have been completely on their side according to exhibit 272 had attended the M. D. Seminary meeting and formally adopted the new constitution the exhibit AM.
If adoption of the exhibit AM.
is the test for determining whether notice 'is due or not, then it becomes important to consider whether all the churches which were not with the plaintiffs but who had not adopted exhibit AM. had been served.
Apart from the question of the service of the notice there was also the question as to the competency of the persons who had convened the Karingasserai meeting where the plaintiffs are said to have been elected.
While Mar Geeverghese Dionysius was alive he, as President 534 of the Malankara Association, used to convene the meetings of the Association.
Who, after his death, was competent to issue notice of meeting? There ,appear to be no rules on the subject.
In this situation, says the learned Attorney General, if all the members of the Association attended the meeting the defect of want of proper notice does not matter.
But did all members attend, even if the defendants ' party who had adopted exhibit AM be left out ? It does not appear that either of the two majority Judges of the High Court adverted to either of these aspects of the matter, namely, service of notice to all churches and competency of the persons who issued the notice of the Karingasseri meeting and in any case did not come to a definite finding on that question.
The majority judgments, therefore, are defective on the face of them in that they did not effectively deal with and determine an important issue in the case on which depends the title of the plaintiffs and the maintainability of the suit.
This, in our opinion, is certainly an error apparent on the face of the. record.
The next point urged by learned counsel appearing for the appellants is that the majority decision proceeds on a misconception as to a concession said to have been made by the defendants ' advocate.
It will be recalled that issues Nos.
14 and 15 quoted above raise the question of the defendants having gone out of the Church, for having committed acts of heresy or having voluntarily given up their allegiance to the ancient Jacobite Syrian Church and establishing a new church and framing a constitution for the same.
Likewise, issues Nos. 19 and 20 raise the question as to whether the plaintiffs and their partisans formed themselves into a new church and separated from the old Church by reason of the several acts and claims therein referred to Here again the suit being one in ejectment it is more important for the plaintiffs to establish their own title by getting issues 19 and 20 decided in their favour than to destroy the defendants ' title by getting issues 14 and 15 decided against the defendants, for a mere destruction of the defendants ' title, in the absence of establishments of their own title 535 carries the plaintiffs nowhere.
It is to be remembered that this is a suit by the plaintiffs as the validly constituted trustees and not a suit under the section analogous to section 92, Civil Procedure Code, for removal of defendants from trusteeship or for the framing of a scheme.
In Paragraph 132 of his judgment the learned District judge found that the acts and claims imputed to the defendants did not amount to heresy and did not make the defendants or their partisans heretics or aliens to the faith and that such acts and conduct ' mentioned in issue 15, even if proved, would not amount to heresy and would not amount to a voluntary giving up of their allegiance to or secession from the ancient Jacobite Church.
On the other hand, in paragraph 133 the District Judge held that the plaintiffs and their adherents by taking up the position which they adopted in 1085 and which they had persistently maintained till then had unlawfully and unjustifiably created a split in the Malankara Church and might in a sense be said to have pursued a course of conduct amounting to persistent schism.
He held that, nevertheless, the plaintiffs and their parti sans had not become aliens to the Church or created or formed themselves into a separate church as they had not been found guilty and punished with the removal from the Church or excommunication from the Church by a proper ecclesiastical authority.
It will be noticed that the learned District Judge found the facts imputed to the defendants not proved but the facts imputed to the plaintiffs to have been proved.
He made no difference between acts of heresy and merely voluntary separation from the Church but treated them on the same footing.
It will be recalled that in the interpleader suit of 1913 the District Judge had held that by accepting Abdul Messiah as their ecclesiastical head or by denying the authority of Abdulla II, Mar Geeverghese Dionysius and his co trustees had not become aliens to the faith.
Finally, in the judgment on rehearing of the appeal reported in from which passages have been quoted above the acts imputed to the defendants in that case which are similar to those imputed 'to the 536 defendants in the present case, with the exception of the adoption of exhibit AM, were held not to amount to a voluntary separation from church by the establishment of a new church and that the Free Church case (1) had no application to the facts of that case.
Likewise, in the present case the District Judge dealt with issues 15, 16, 19 and 20 together, which covered issues on 30th heresy and voluntary separation.
Presumably in view of the decision of the Court of Appeal in the previous suit the learned District Judge in this case did not make any distinction between acts of heresy and voluntary separation from the Church and held that there was "no case of ipso facto heresy or ipso facto loss of membership of the Church or ipso facto loss of status as Priest and prelates for ecclesiastical offences unless the offenders were tried and punished by a competent authority.
" Indeed, the evidence of P.W. 17, the Pope 's delegate, is claimed as supporting this view.
It is in the light of this situation that the question as to the misconception of the concession has to be considered.
Sathyanesan J. in paragraph 4 of his judgment, referred to the concession said to have been made by the learned advocate for the defendants in the following terms: ". . .
However the learned advocate for the respondents clarified the situation by very fairly con.
ceding that plaintiffs had not left the church and that they were as good members of the original Jacobite Syrian Church as anybody else.
Another clarification has been made by the learned advocate for the appellants that the plaintiffs, whatever might have happened in the past, do not hold that the Patriarch can at all interfere in the internal administration of the Malankara trust properties.
Plaintiffs seem to have made their position clear even at the time of pleadings.
According to them, 'The Patriarch as the ecclesiastical head of the Malankara Church could exercise that authority by awarding such spiritual punishment as he thinks fit in cases of mismanagement or misappropriation of church properties ' Vide pleading No. 124(1).
The concession made by the learned advocate for the (I)L.R. 537 defendants has obviated the necessity of a lengthy discussion of several matters.
So it is worth pausing a while and understanding the importance, and the implications of the concessions.
It tends to mean (i) that the Patriarch is not an alien to the Church, i.e., the Patriarch and his predecessors in question are the true and lawful head of the original Jacobite Syrian Church, that (ii) that the plaintiffs and their partisans, holding (a) the Patriarch has only a spiritual supervision of the administration of the trust properties by the trustees, (b) the Patriarch alone can consecrate Morone, (c) that Exhibit BP is the true Canon of the Jacobite Church, and (d) that the Catholicate was not properly established, cannot, on these grounds, be considered to have become aliens to the original church.
So the question is more properly whether the defendants have seceded from the original church and formed a new church.
In the nature of the suit, the plaintiffs can succeed only if they make out, (A) that the defendants are using the trust properties belonging to Malankara Jacobite Church for the maintenance, support and benefit of another and a different body, namely Malankara Orthodox Syrian Church, and (B) that the plaintiffs are the duly elected trustees." Likewise, Nokes J. at pp.
355 356 referred.
to the concession as follows: ". .
In this court the defendants ' advocate did not seek to disturb the finding that the plaintiffs had not become aliens to the church.
Indeed, as previously stated, he based his case on the ground that both parties were still within the church.
This abandonment of his clients ' contention in the lower court was no doubt due to the fact that the written statement involved an admission of the plaintiff ' 69 538 case; for the plaintiffs in effect said, 'we are the trustees of the Patriarch 's church, ' while the defendants said, 'we are the trustees of a church to which the Patriarch is an alien. ' Nor was any attempt made here on behalf of the defendants to challenge the finding that the trust had not become altered; for any contention to the contrary provided no defence and was a further admission of the plaintiffs ' case.
But the existence of this allegation on the pleadings serves to emphasise the defendants ' attitude to the trust.
" Further down the learned Judge said ".
The learned Judge held against the general allegation of separation (judgment, paragraph 133), but in favour of the special allegation as to the plaintiffs ' view on temporalities (paragraph 108).
He also recorded findings as to the limited scope of the Patriarch 's powers in temporal affairs (paragraphs 58, 60), which seem to be based on the erroneous view inter alia that persons who are subject to two systems of law are amenable for different aspects of the same offence only to punishment under one system (see paragraph 57).
The general finding was challenged in the memorandum of objection (grounds 10 and 11), but not in the argument for the defendants here, which, as previously stated, proceeded on the basis that both sides were still members of the church.
" On a plain reading of the two judgments it appears that the majority Judges took the view that even if, as held by the District Judge, the plaintiffs had been guilty of acts and conduct imputed to them it was not necessary for them to enquire whether those acts were mere heresy or also amounted to a setting up of a new church or whether the Canon law requiring the verdict of an ecclesiastical authority applied to both or only to acts of heresy.
This attitude they adopted simply because of what they understood was the concession made by the defendants ' advocate, namely, that the plaintiffs had not gone out of the church.
They, how.
ever, felt bound, notwithstanding the contention of the defendants that they were also, for similar reasons.
539 within the church, to consider whether the defendants had voluntarily gone out of the church by setting up a new church as evidenced by their aforesaid acts.
Learned counsel for the appellants contends, and we think there is a good deal of force in such contention, that the majority Judges do not appear to have examined the question or considered whether voluntarily going out of the church was a concept separate and distinct from acts of heresy and if so whether the acts and conduct imputed to the plaintiffs apart from being acts of heresy from an ecclesiastical point of view, amounted also to voluntarily going out of the ' church by establishing a new church.
Nor do they appear to have considered whether the Canon law requiring verdict of an ecclesiastical authority was required in both cases.
There can be no doubt,therefore, on the face of the judgment, that the decision of the learned Judges in this behalf proceeds on what they considered was a concession made by the defend ants ' advocate that the plaintiffs had not gone out of the church.
Learned counsel for the defendants appellants contends that this was a misapprehension and he relies on the affidavit of Sri E. J. Philipose, advocate, with which were produced two letters written to him by the senior advocate.
In the first letter it is stated as follows: "I argued at length of the misconduct of the plaintiffs in going against the basic conditions of the Royal Courts ' judgment and said that while the conduct of each party is open to examination neither could be said to have left the church.
Their acts may be set aside in both cases but they cannot be said to have left the church.
The Judges cannot accept it in one case as a concession and in the other case as my submission.
Deciding one part of it as a concession not requiring the decision of Court is unjust to my lengthy argument on the misconduct of the plaintiffs; in regard to their diversion of property from the trust " In the second letter we find the following passages: "Throughout my argument was that the plaintiffs had steadily and consistently ' set at naught the 540 fundamental principles of the charity as settled in the judgments of the Royal Court and the Cochin Court.
As between the charge and counter charge of violation of the foundation rules, I expressed it as my view that while their views may be corrected by the Court neither party should be treated as having become aliens to the church by reason merely of erroneous views.
That is what is explained in paragraph 17 of the grounds.
My opinion so expressed is not to be treated as a concession of the one case and a submission as to the other.
If my view of the law was not acceptable the learned Judges must decide and not treat one part of a connected statement as a concession not requiring to be considered by the Court.
" In the review petition ground No. 17 is as follows "Their Lordships ' observation that the defendants ' Advocate based his case on the ground that both parties were still within the Church and that the defendants ' Advocate conceded that the plaintiffs have not left the church and that they were as good members of the original Jacobite Syrian Church as anybody else is inaccurate and incomplete, and misleading.
The Advocate devoted a great part of the argument to showing that the plaintiffs have departed from the constitution as settled by the Royal Court Judgment.
The plaintiffs stated that the defendants have left the Church.
In reply the argument was that there is no such thing as ipso facto secession merely because of differences of views on the powers of the Patriarch or about the Canon to be followed.
It was in that sense and in that sense only that the argument was advanced that in law it must be taken that both parties were within the Church.
The Judges were not justified in taking it out of its setting and using part of it as an admission in support of the plaintiffs and rejecting the other portion as a mere argument not sustainable in law so far as the defendants are concerned.
If it should be treated as an admission at all it must have been accepted or rejected as a whole.
It must not have been torn piecemeal and part used and part rejected. 541 The reasons as signed for concluding that the defendants have gone out of the Church apply even more strongly to the plaintiffs and the Judges should have dismissed the suit in limine.
Their Lordships failed to note that the basic constitution of the Church had been laid down by the Royal Court Judgment and the plaintiffs by disowning and repudiating it had really seceded from it.
If the view of the court was that departure from the rules of the foundation put the parties out of the Church it should apply alike to both the parties and the statement that neither party had gone out of the Church cannot be used to sustain the plaintiffs ' right and at the same time rejected as untenable to support the precisely similar rights of the defendants.
Their Lordships failed to note that the defendants ' Advocate strongly urged that it was necessary to have the charges framed, enquiry held and due and proper grounds made out before a person can be put out of the Church and there was not even a whisper of it as, having been complied with in this case.
Their Lordships also failed to note that there can be no such thing as an entire body of persons against whom nothing was alleged or proved being held to have gone out of the Church.
Their Lordships failed to note that the so called admission did not in any way affect the defendants ' case that the Patriarch and the plaintiffs and their partisans have voluntarily left the Church and had thereby ceased to be members thereof.
" Learned: Attorney General strongly objects to any reference being made to the facts contained in the affidavit of E.J. Philipose or the letters produced along with it and he refers us to the decision of this Court in Sha Mulchand & Co. Ltd. vs Jawahar Mills Ltd.(1), and the cases therein referred to and to the case of Reg.
vs Pestanji Dinsha and Another(1).
It will, however, be noticed that what was deprecated in that case was the fact that no affidavit had been filed before the trial Court for the rectification of what, in the appeal Court, (1) ; at P. 366.
(2) 542 was alleged to have been wrongly recorded by the trial Judge.
The Privy Council in Madhu Sudin Chowdri V. Musammat Chandrabati Chowdhrain(1) also suggested that the proper procedure was to move.
the Court in whose judgment the error is alleged to have crept in.
In this case, as already stated, an affidavit was filed before the appeal Court itself while the Chief Justice and Nokes J. were still in office.
Further, if, as laid down in the judgment of this Court to which reference has been made, the proper procedure is to apply to the Court whose judgment is said to be founded on a misconception as to the concession made by the learned Advocate appearing before it, by what procedure, unless it be by way of review, could that Court be moved? Indeed, the Madras case referred to in the judgment of this Court freely indicates that the application should be by way of review.
Patanjali Sastri J. (as he then was) sitting singly in the Madras High Court definitely took the view in Rekhanti Chinna Govinda Chettiyar vs section Varadappa Chettiar(2) that a misconception by the Court of a concession made by the Advocate or of the attitude taken up by the party appears to be a ground analogous to the grounds set forth in the first part of the review section and affords a good and cogent ground for review.
The learned AttorneyGeneral contends that this affidavit and the letters accompanying it cannot be said to be part of ',the record" within the I meaning of Order 47, rule 1.
We see no reason to construe the word " record " in the very restricted sense as was done by Denning L.J. in Rex vs Northumberland Compensation Appeal Tribunal Ex Parte Shaw(1) which was a case of certiorari and include within that term only the document which initiates the proceedings, the pleadings and the adjudication and exclude the evidence and other parts of the record.
Further, when the error complained of is that the Court assumed that a concession had been made when none had in fact been made or that the Court misconceived the terms of the concession or the scope and extent of it, it will not generally appear on the (1) (2) A.I.R. 194o mad, 17.
(3) at PP 351 352.
543 record but will have to be brought before the Court by way of an affidavit as suggested by the Privy Council as well as by this Court and this can only be done by way of review.
The cases to which reference has been made indicate that the misconception of the Court must be regarded as sufficient reason analogous to an error on the face of the record.
In our opinion it is permissible to rely on the affidavit as an additional ground for review of the judgment.
Turning to the affidavit and the letters and the ground No. 17 of review it is quite obvious that the defendants had not given up their contention, upheld by the District Judge, that the plaintiffs had been guilty of the acts and conduct imputed to them.
What the.
learned Advocate for the defendants did was to accept the Canon law as interpreted by the District Judge, namely that nobody goes out of the church without the verdict of an ecclesiastical authority, whether the acts complained of amount to acts of heresy or to the establishment of a new church so as to make the persons who are guilty of such conduct aliens to the faith.
If the majority Judges took the view that such was not the Canon law and that the same acts and conduct may have an ecclesiastical aspect in the sense that they amount to hers punishable as such and may also amount to a voluntary separation from the church which is not an ecclesiastical offence and does not require the verdict of any ecclesiastical authority to place the guilty person out of the church then it was clearly incumbent upon the majority Judges to consider whether the acts and conduct of which the plaintiffs had been found guilty had actually been committed by them and whether such acts and conduct also had the dual aspect, namely, amounted to an ecclesiastical offence requiring excommunication and also to a voluntary separation which not being an ecclesiastical, offence did not require an ecclesiastical verdict to place a guilty person out of the pale of the Church.
This, on the face of the judgment the learned Judges failed to do.
Learned Attorney General has submitted that the allegations against the plaintiffs, are five in number, namely 544 (1) The Patriarch has Temporal powers over the properties of the Malankara Church; (2) The Patriarch has got the power acting by himself to excommunicate and ordain a Bishop; (3) Only the Patriarch may consecrate Morone (4) The Canon of the Church is exhibit XVIII in O.S. No. 94 of 1088; and (5) The Catholicate has not been validly instituted in the Malankara Church; and suggests that these charges have been gone into directly or indirectly by the majority Judges and that, therefore, no prejudice ' has been caused.
He, however, cannot dispute that the Judges have failed to consider and come to any definite finding on some of them.
We do not consider that the contention of the learned Attorney General is entirely well founded.
Issue20(1) contains several charges against the plaintiffs and even if charges (a) and (b) have been referred to in the majority judgment, the charges (c), (d) and (e) have certainly not.
been dealt with.
As to the temporal power of the Patriarch the District Judge held in paragraph 58 of his judgment that the Patriarch had no temporal authority or jurisdiction or control over the Malankara Jacobite Syrian Church and its temporalities and that the, power of general supervision over spiritual Government conceded to the Patriarch in exhibit DY did not carry with it by necessary implication the right to interfere in the administration of the temporalities and properties of the Church.
The decision to the contrary in 41 T.L.R.
I cannot be regarded as having any bearing after that judgment was set aside subject only to three points as here in before mentioned.
It does not appear that the majority Judges considered whether the plaintiffs imputed full temporal powers to the Patriarch or the limited one as conceded to him in exhibit DY and if they did impute to him full temporal powers whether they had departed from a fundamental tenet of the Church.
They do not also appear to have considered whether, if the plaintiffs originally pledged themselves to the tenet of full temporal power of the Patriarch and thereby departed from a fundamental article and such *departure involved their having 545 become aliens, any subsequent change in their attitude by limiting it as in exhibit DY would make a difference.
Further, as to the power of consecrating Metropolitans Nokes J. found that a validly appointed Catholicos had the power, under both versions of the Canon, to consecrate Metropolitans without a Synod and that by so claiming the defendants had not become aliens to the faith.
The learned Judge, however, did not consider the implication of this finding so far as the plaintiffs were concerned.
This finding may lead to the implication that the claim that the Patriarch alone has got the power of ordination and the Catholicos has not that power cannot but be regarded as a departure from the Canon.
Issue 20(1)(a)(1) which relates to the consecration of Morone has been found in favour of the defendants.
If the defendants have not gone out of the Church by making the claim that Morone may be consecrated by the Catholicos or the Metropolitan in Malankara then the learned Judge should have considered whether a denial of such right by the plaintiffs constituted a departure by them from the canonical law.
This the learned Judge failed to do.
Issue 20(1) (a) (iii) related to the establishment of the Catholicate.
In "pleading" No. 124 the plaintiffs maintained that a Catholicate had not been established at all.
The District Judge held that Abdul Messiah by his Kalpana exhibit 80 revived the Jacobite Catholicate.
The respondents ' ground of appeal No. 17 assumed that a Catholicate had been established.
Nokes J. held that Abdul Messiah was a Patriarch, that a Patriarch had the power by himself and without the Synod to establish a Catholicate and that a Catholicate had been established by him although the old Catholicate of the East had not been revived.
Sathyanesan J., however, held that the establishment of the Catholicate in Malankara was dubious, surreptitious and uncanonical and that no Catholicate had been established.
The two judgments appear to be somewhat at variance in this respect.
In any case, Nokes J. has not considered whether the stand taken by the plaintiffs that no Catholicate had been establisbed at all amounts to a departure by them from the injunctions of the Canon law, On a fair reading of 70 546 the majority judgments it appears to us that the majority Judges have been misled by a misconception as to the nature and scope of the concession alleged to have been made "by the defendants ' advocate.
If the acts imputed to the defendants amounted to a voluntary separation, the learned Judges should have considered whether the acts imputed to the plaintiffs likewise amounted to a voluntary separation.
If the defendants had not gone out of the Church by asserting that a Catholicate had been established, that the Catholicos can ordain Metropolitans and consecrate Morone then they should have considered whether by denying these assertions the plaintiffs had not gone out of the Church.
This they failed to do.
They could not properly decline to go into the question of fact on account of the admission of the defendants ' advocate that the plaintiffs remained in the Church.
Such admission at beat was an admission as to the canon law and the decision that the defendants had voluntarily gone out of the Church even in the absence of an ecclesiastical verdict necessarily implies that the conce ssion made by the defendants ' advocate requiring an ecclesiastical verdict as a condition precedent to voluntary separation also was obviously wrong and an erroneous concession of law made by the defendants ' advocate could not be relied upon for saving the plaintiffs. 'The fact, therefore, that cross objection No. 11 filed in the High Court by the defendants does not appear to have been pressed makes no difference.
In our opinion, for reasons stated above, this head of objection raised by the learned advocate for the appellants before us is well founded and the judgments of the majority Judges are vitiated by an error of a kind which is sufficient reason within the meaning of the Code of Civil Procedure for allowing the review.
The last point taken up by the learned advocate for the appellants is that although certain matters had been agreed to be left out in connection with issue No. 11 (a), the learned Judges took an adverse view against the defendants on matters which had been so left out by agreement.
Issue No. 1 1 relates to the powers of the Patriarch.
Clauses (b) to (1) relate to specific powers of the Patriarch.
Clause (a) of that 547 issue is vague and is expressed in very general terms.
Paragraph 60 of the District Judges judgment is as follows: "60.
It was stated by the advocates on both sides that it is unnecessary for the purpose of this suit to determine or decide in a general and comprehensive manner or define exhaustively all the powers that the Patriarch may have over or in respect of the Malankara Church as the supreme spiritual or ecclesiastical head of the whole Jacobite Church including Malankara and I also think it is not within the province or competency of this court to attempt to do it.
Whether he is the supreme spiritual head or whether be is the supreme ecclesiastical head, his powers as the Patriarch in respect of the matters specified under clauses (b) to (h) of issue II.
(which have formed the subject matter of dispute in this case) have been considered and defined under these various headings under this issue II and it has also been stated how far they have been determined or upheld by law courts, custom, practice and precedent so far as Malankara is concerned and these findings, it is conceded on both sides, will suffice.
" It will be noticed that after this agreement issue No. 11 related only to certain specific powers of the Patriarch.
The findings on these issues by themselves do not lead to any result.
They were, as it were, only introductory issues and were material for other issues, e. g. issues 14, 15, 19 and 20.
In other words, the general issue II (a) being given up, the other issues mentioned above were automatically limited to the specific acts relating to the specific powers of the Patriarch.
The majority Judges have, however, certainly gone into three matters which were then agreed to have been left out, e. g., (a) obligation to obey the Patriarch whether canonically installed.
or not, (b) extent of the right of the Patriarch by himself to decide matters of faith and (c) whether the Patriarch has the right to approve of a Catholicos in the sense that such approval was necessary.
These matters are not averred in pleadings and no specific issues have been raised and in the circumstances, should not have been gone into.
The suggestion is that these points are covered by other issues.
It is said that the learned Judges held that the new constitution exhibit AM amounted to a 548 repudiation of the authority of the Patriarch on the following grounds: (1) Installation of Catholicos ignoring the Patriarch; (2) Absence of a provision for the approval by the Patriarch or Malankara Metropolitan; (3) Ordination of Metropolitan and the issuing of Staticons by the Catholicos, and (4) the right to collect Ressissa.
These points are said to be covered by issues II (b), (c), (g) and (h), and also by issues 10(b), 14, 15 and 16.
Assuming it is so, it is clear that the learned Judges also founded themselves on the three points here in before mentioned which do not appear to fall within any of the issues in the case except issue II (a) which was given up.
To decide against a party on matters which do not come within the issues on which the parties went to trial clearly amounts to an error apparent on the face of the record.
It is futile to speculate as to the effect these matters had on the minds of the Judges in comparison with the effect of the other points.
The above discussion, in our opinion,, is quite sufficient for the purpose of disposing of this appeal and it is not necessary to go into the several other minor points raised before us.
In our opinion the appellants have made out a valid ground for allowing their application for review.
We accordingly allow this appeal, set aside the judgment of the High Court and admit the review.
As the different points involved in this appeal are intimately interconnected we direct the entire appeal to be reheard on all points unless both parties accept any of the findings of the High Court.
The costs must follow the event and we order that the appellants must get the costs of this appeal before us and of the application for review before the High Court.
We need hardly add that the observations that we have made in this judgment are only for the purpose of this application for review and should not be taken or read as observations on the merits 'of the appeal now restored and to be reheard by the High Court.
Appeal allowed.
| IN-Abs | The provisions of the Travancore Code of Civil Procedure are similar in terms to Order 47, rule 1, of the Code of Civil Procedure 1908 and an application for review is circumscribed by the definitive limits fixed by the language used therein.
The words "any other sufficient reason" mean a reason sufficient on grounds at least analogous to those specified in the rule.
It is well settled that in an ejectment suit the plaintiff must succeed on the strength of his own title and not on the weakness of the defendant 's case.
It is an error apparent on the face of the record if the judgment does not deal effectively and determine an important issue in the case on which depends the title of the plaintiff and the maintainability of the suit.
To decide against a party on matters,which do not come with in the issues on which parties went to trial clearly amounts to an error apparent on the face of the record.
Where the error complained of is that the Court assumed that a concession had been made when in fact none had been made or that the Court misconceived the terms of the concession or the scope and extent of it or the attitude taken, up by the party and has been misled by a misconception of such alleged concession, such error must be regarded as a sufficient reason analogous to an error on the face of the record within the meaning of Order 47, rule I of the Code of Civil Procedure.
Such error will not generally appear on the record and will have to be brought before the Court by means of an affidavit.
A suit filed in 1938 in the Court of the District Judge at Kottayam (Travancore) was dismissed, The plaintiff 's appeal 521 against the decree was allowed by a Full Bench of the High Court of Travancore.
A review application filed by the defendants against the judgment on the ground that it contained several mistakes or errors apparent on the face of the record was dismissed by the High Court.
The High Court declined to grant a certificate under article 133.
The defendants were granted special leave to appeal by the Supreme Court.
Consequent upon political changes in India culminating in the adoption of the new Constitution of India, there were changes in the judicial administration in the State of Travancore.
Up to the end of June, 1949, the Travancore High Court Act (Regulation IV of 1099) was in force in the State of Travancore.
Section 11 of the Regulation provided that the judgments of a Full Bench from the decrees of District Courts involving certain amount or value of subject matter in suits as well as in appeals shall be submitted to the Maharaja for confirmation by his Sign Manual.
Section 12 of the Regulation applied as far as may be the provisions of section 11 to the judgments after review.
In May, 1949, came the Covenant of Merger between the rulers of Travancore and Cochin which, inter alia, provided for a Rajpramukh.
In July, 1949, came Ordinance II of 1124 repealing Regulation IV of 1099.
Clause 25 of the Ordinance provided that a Full Bench shall hear and decide the appeals, inter alia, from the decrees of the District Courts etc.
involving certain amount or value of subject matter.
Clause 26 related to a review of the judgment by a Full Bench.
The provisions relating to the jurisdiction and powers of High Court were substantially reproduced in a later Act (V of 11 25) and were Continued by articles 214 and 225 of the Constitution of India.
The advocate for the respondents contended in the Supreme Court that the review application, in view of the changes referred to above, had become infructuous and should have been dismissed in limine, because even if the review application were allowed there would be no authority with jurisdiction and power to pronounce an effective judgment after hearing the appeal.
Again, this case was not decided by a Full Bench under section 25 of the Act, and therefore Do review was maintainable under section 26.
And even if the appeal be considered to have been filed under section 1 1 of Regulation IV of 1099, the application for review must be dealt with under section 12 of the Regulation and a fresh judgment after the review would have to be submitted under section 11 to the Maharaja for confirmation by his Sign Manual; and the present Maharaja of Travancore did not possess the power to consider and to confirm or reject the same.
Hold, (repelling the contention) that in view of the change of the laws if the appeal were revived after the admission of review, it must be disposed of under section 25 of Act V of 1125 and that section did not require any confirmation of the judgment passed on the rehearing of the appeal by the Maharaja or Rajpramukh or Any other authority.
Assuming that the appeal, if restored, 67 522 would be governed by section 12 of Regulation IV of 1099, even then section 11 would have to be applied only "as far as may be" and the portion of the section 11 requiring confirmation by the Maharaja, would be inapplicable in view of the events that had happened.
Chhajju Ram vs Neki (49 I.A. 144), Bisheshwar Pratap Sahi vs Parath Nath (61 I. A. 3 78), Hari Shankar Pal vs Anath Nath Mitter ([1949] F.C.R. 36), Sha Mulchand & Co. Ltd. vs Tawahar Mills Ltd. ([1953] S.C.R. 351)), Beg vs Pestan ji Dingha and Another , Madhu Sudan Chowdhri vs Musammat Chandrabati Chowdhraizi ( ), Bekhanti Chinna Govinda Chettiyar vs section Varadappa Chettiyar , and Rex vs Northumberland Compensation Appeal Tribunal, Ex Parte Shaw ( ) referred to.
The facts leading up to the appeal, as summarized from the Judgment, are as follows.
There were two rival sections of the Malankara Jacobite Syrian Christian community in Malabar, who came to be represented by the appellants and respondents respectively.
Certain disputes had arisen between the two sections ; and each claimed the right to possess and administer the Church properties to the exclusion of the other.
In 1938, a suit was filed in the District Court of Kottayam by the first and second respondents against the first and second appellants.
The plaintiff s contended that the defendants had committed acts of heresy and became ipso facto alien to the Malankara Jacobite Syrian Church.
They were, therefore, " 'disqualified and unfit to be the trustees of or to hold any other position in, or enjoy any benefit from, the Jacobite Syrian Church" (para 26 of the plaint).
The District Judge, who heard the suit, held, by his judgment delivered on the 18th January, 1943, amongst other things, that the acts and conduct imputed to the defendants did not amount to heresy or schism, or to voluntary separation from the Church, and that in any event, according to Canon Law, there could be no ipso facto going out of the Church in the absence of a decision of an ecclesiastical authority properly arrived at.
The conclusion arrived at by the District Judge was that the plaintiffs were not entitled to maintain the suit, which was, therefore, dismissed.
Being aggrieved by the trial Court 's dismissal of the suit, the plaintiffs appealed to the High Court of Travancore.
The appeal was heard by a Full Bench of the High Court, consisting of three Judges, one of whom expressed a dissenting view.
On the 8th of August, 1946, the High Court held, by a majority that the defendants had repudiated the fundamental principles and tenets of the Malankara Jacobite Syrian Church and had established a new Church and had thereby voluntarily separated from, and ceased to be members of, the Malankara Jacobite Syrian Church.
The majority hold that the plaintiffs and been validly elected as trustees and as such were entitled to possession of the Church 523 properties.
The appeal *as accordingly allowed and a decree was passed for possession and other reliefs in favour of the plaintiffs.
On the 22nd August, 1946, the defendants filed a petition for review of the High Court 's judgment on the ground that it contained several mistakes or errors apparent on the face of the record and that in any event there were sufficient reasons for the rehearing of the appeal.
The application for review was ultimately dealt with by the High Court on merits on the 21st of December, 1951.
The Court hearing the review rejected all the points urged in favour of review and dismissed the application, holding that there was no error apparent on the face of the record and that there were not sufficient reasons for the rehearing of the appeal.
The High Court declined to grant leave to appeal to the Supreme Court under article 133 of the Constitution; whereupon the defendants applied for, and on the 14th April, 1952, obtained, special leave of the Supreme Court to prefer an appeal against the High Court 's decision.
|
Appeal No. 389 of 1966.
Appeal by special leave from the judgment and order dated March 25, 1964 of the Punjab High Court, Circuit Bench at Delhi in Review Application No. 23 D of 1963.
C.B. Agarwala, Uma Mehta, M. L. Kapur and K. K. Sinha, for the appellant.
C.J., This is an appeal by a tenant who had rented a shop No. 2687 in Kinari Bazar, Delhi from the respondent on Rs. 13.50 P per month.
In those premises he was selling Usha sewing machines and fans.
It appears that the level of the shop was too high from the road and his clients were troubled in going to his shop and so he lowered the level and thereby altered the premises to suit his convenience.
The landlord thereupon filed a suit against him for his eviction under section 13(1)(k) of the Delhi and Ajmer Rent Control Act, 1952.
The suit was filed on November 13, 1957.
The trial court ordered on February 19, 1959 ejectment and payment of Rs. 145/ as arrears of rent.
An appeal against the order of the trial court was dismissed by the appellate authority on November 16, 1959.
A revision application was then filed by the tenant on March 25, 1960.
During the course of that revision he invoked the provisions of the Delhi Rent Control Act, 1956 which had come into force on February 9, 1959 and relied upon section 14 (1) (j) of the new Act read with section 57.
Previously he had not relied upon the new Act although the Act had been in force during the pendency of the previous proceedings.
The High Court acting under section 14(1)(j) and sub section
(10) of the same section, gave him the alternative of paying, compensation in the sum of Rs. 500 which it appears that the landlord himself had assessed as the damages caused by the act of the tenant.
The landlord later filed an application for review of the order and pointed out that the new Act was not applicable to the case in view of the first proviso of section 57 sub.
section (2).
The High Court thereupon granted the review and reversed its earlier order and ordered the eviction of the tenant.
In this appeal it is contended that the High Court was in error in passing the order on review and that the previous or was the correct order in the light of the provisions of the Act of 1958.
We have therefore to consider which of the two orders of the High Court is the correct order and whether the review was properly granted or not.
As is very frequent in our country, Rent Control Acts are changed from time to time causing numerous difficulties in their interpretation and application.
Here too, we have a succession of Acts which were passed, to say nothing of the a amendments which were made in the body of each of the Acts as they came.
We are concerned first with the Act of 1952, namely.
The Delhi and Ajmer Rent Control Act, 1952.
Section 13(1)(k) of that Act gave a right to the landlord to evict a tenant who, whether before or after the commencement of the Act had caused or permitted to be caused substantial damage to the premises, or notwithstanding previous notice, had used or dealt with the premises 8 57 in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Improvement Trust while giving him a lease of the land on which the promises were situated.
We are not concerned with the latter part but with the first part where the tenant before or after the commencement of the Act had caused or permitted to be caused substantial damage to the premises.
Whether the lowering of the floor was causing substantial damage to the premises is a question into which we need not go, because the concurrent finding of the courts of fact is that it did so.
This question was not raised before us.
Therefore, if section 13 (1)(k) of the Delhi land Ajmer Rent Control Act, 1952 applied, the eviction of the tenant was the proper order to make in view of the finding that he had caused substantial damage to the premises.
However, the matter comes to the Court because of the passing of the Delhi Rent Control Act, 1958 which came into force on February 9, 1959.
Section 57(1) of that Act provided that the Delhi and Ajmer Rent Control Act, 1952 in so far as it was applicable to the Union Territory of Delhi, was being repealed.
While repealing it, a special saving was however made, by sub section
(2) of the same section in favour of all suits and other proceedings which were then pending under the repealed Act and it was provided that those suits and proceedings should be continued and disposed of in accordance with the provisions of the Act as if that Act had continued to be in force and the new Act had not been passed.
This would have really been a very proper provision to make to separate the operation of the two Acts but the Legislature went still further and added two provisos.
We are concerned only with the first of the two provisos on which much dispute has arisen in this case.
That proviso reads as follows ': "Provided that in any such suit or proceeding for the fixation of standard rent or for the eviction of a tenant from any premises to which section 54 does not apply, the court or other authority shall have regard to the provisions of this Act :" This proviso contains a proviso within itself which excepts the case of premises to which section 54 of the Act does not apply.
That section provides as follows "Nothing in this Act shall affect the provions of the , or the or the Delhi Tenants (Temporary Protection) Act, 1956.
" The effect of the proviso which we have quoted above is variously described by counsel on opposite sides, According to Mr. C.B 858 Agarwala who argued for the tenant, the words "to which sec tion 54 does not apply" govern the words "any such suit or proceeding" and not the words "any premises".
The High Court in the order passed on review was of the opinion that these words governed the words "any premises".
In our opinion, this is the correct view to take of the matter.
To begin with, it must be noticed that the proviso speaks of two things, namely, the fixation of standard rent and the eviction of a tenant from any premises.
The words "from any premises" cannot be connected with the phrase "for the fixation of standard rent", because then the preposition would have been "of any ,Premises" or "for any premises" and not "from any premises.
" This means that the first phrase has to be read as complete in itself beginning from the words "for the fixation" and ending with the words, "standard rent".
The second phrase then reads "or for the eviction of a tenant from any premises".
The words "from any premises" go very clearly with the words "eviction of a tenant" and not with the words "any suit or proceeding".
The question then arises, where does the phrase "to which section 54 does not apply" connect itself ? According to Mr. Agarwala that phrase must be connected with the words "in any such suit or proceeding".
Since the suits contain two kinds of matters, namely, fixation of standard rent and eviction of a tenant from any premises, we have to turn to the provisions of the statutes to which section 54 refers, namely, the , the and the Delhi Tenants (Temporary Protection) Act, 1956.
The first two do not deal at all with the fixation of fair rent and the third speaks of fair rent, but it does not provide for its fixation.
It would be pointless to use the language 'any suit or proceeding to which section 54 does not apply ' in relation to fixation of standard rent.
It follows therefore that the phrase "to which section 54 does not apply" really governs 'premises '.
Read in that way, all the three Acts fall in line.
because they provide for premises and not for fixation of standard rent.
the and the Delhi Tenants (Temporary Protection) Act, 1956 all deal with premises and property and therefore the phrase "to which section 54 does not apply" is connected with the words "premises;".
That is the view which the High Court has taken and we think rightly.
The pro so did not apply and the matter had to be governed by the old Delhi and Ajmer Rent Control Act, 1952 which had bee# repealed.
It was contended before us that this legislation was intended to soft action against tenants still further and that the policy 8 59 of the law had been to give more ;and, more protection to the tenants and we must therefore read the statute in consonance with that policy.
This would be an argument to consider if the language of the statute was not quite clear.
But the language is clear enough to show that the proviso applies only to those cases in which section 54 cannot be made applicable.
It is admitted fore us that this area is subjected to the .
If that is so, then, on the terms of the proviso on which much reliance is placed by Mr. Agarwala, the provisions of the Delhi Rent Control Act, 1958 cannot be taken into consideration.
They are to be taken into consideration only in those cases to which the Acts mentioned in section 54 do not apply, that is to say, in respect of premises not governed by those statutes.
Since this shop is governed by one of the statutes, the proviso has no application.
The High Court 's ' view was therefore right.
In the circumstances, the appeal fails and win be dismissed with costs.
R.K.P.S. Appeal dismissed.
| IN-Abs | The respondent landlord filed a suit for eviction against the appellant under section 13 (1) (k) of the Delhi and Ajmer Rent Control Act, 1952, on the ground that the appellant had caused damage to the premises.
The trial court ordered ejectment in February, 1959, and the appellate authority dismissed an appeal in November, 1959.
The Delhi Rent Control Act 1958 came into force in February, 1959.
In a revision application before the High Court, the appellant invoked the provisions of the 1958 Act and relied upon section 14(1) (j) read with section 57 of the new Act.
The High Court, acting under section 14(1)(j) and sub section (10) of the same section gave the appellant the alternative to pay compensation for the damages caused.
The landlord then filed an application for review of the High Court order pointing out that the new Act was not applicable to the case in view of the first proviso of section 57(2).
The High Court granted the review and reversed its earlier orders.
In appeal to this Court it was contended on behalf of the appellant that by virtue of the first proviso of section 57(2) the High Court was bound to have regard to the provisions of the 1958 Act even in proceedings pending and governed by the 1952 Act.
HELD:Dismissing the appeal, The language of the first proviso to section 57(2) clearly shows that the proviso applies to those cases only in which 'Section 54 cannot be made applicable.
The area in the present case is admittedly subjected to the , which is one of the enactments mentioned in section 54.
Accordingly the terms of the proviso would have no application in this case.
[857 G; 859 B] The High Court had rightly held that the phrase "to which section 54 does not apply", governs the word "premises" and is not connected with the words "in any such suit or proceedings".
(858A B]
|
Appeal No. 368 of 1966.
Appeal by special leave from the judgment and order dated February 3, 1964 of the Patna High Court in, Appeal from Appellate Order No. 99 of 1963.
Sarjoo Prasad and R. C. Prasad, for the appellants.
K. K. Sinha and section K. Bisaria, for the respondents.
The Judgment of the Court was delivered by Hegde, J.
This appeal against the judgment of the Patna High Court dated the 3rd February, 1964 in its Appellate Order No. 99 of 1963 was filed obtaining special leave from this Court.
It arises from a proceeding under section 47, Civil Procedure Code.
In execution of a mortgage decree, the decree holders sought to proceed against 910 Bakasht lands of the judgment debtors.
The judgment debtors objected to the same on the ground that the execution was barred under section 4(d) of the Bihar Land Reforms Act, 1950 (to be herein,after referred to as the Act).
But that objection was overruled by the executing court on two different grounds namely (1) that the objection in question is barred by the principles of res judicata and (2) the bar of section 4(d) pleaded is not tenable.
The decision of the execution court was affirmed appeal but reversed in second appeal by the High Court.
The two questions that arise for decision in this appeal are (1) whether the objection as regards the executability of the decree pleaded by the judgment debtors is barred by the principles of res judicata and (2) whether the mortgage decree has become unexecutable in view of the provisions of the Act.
We shall now briefly set out the material facts of the case.
The mortgages, the appellants in this appeal obtained a preliminary decree on June 26, 1947 on the basis of a mortgage.
The property mortgaged was an Estate within the meaning of the Act.
That property included both Bakasht lands as well as other lands.
The Act came into force after the passing of the aforementioned preliminary decree.
The decree holders filed petition for passing a final decree on September 19, 1955.
The Estate mortgaged vested in the State of Bihar on January 1, 1956 as a result of a notification issued under section 3 (1) of the Act.
A final decree was passed in the mortgage suit on October 1, 1956.
Thereafter the mortgagees applied under section 14 of the Act and got determined the compensation to which they were entitled under the Act.
It is said that they did not proceed, any further in that proceeding but on the other hand filed on June 18, 1958 an execution petition to execute the mortgage decree against the, Bakasht lands.
The judgment debtors resisted that execution by filing an application under section 47, Civil Procedure Code (Misc.
Case No. 94 of 1959) on the ground that the decree cannot be executed in view of the provisions of the Act.
That application was dismissed for the default of the judgment debtors on September 12, 1959.
A second application raising the same ground (Misc.
Case No. 110 of 1959) was filed by the judgment debtors is barred on the principles of res judicata and further on July 23, 1960 for default of the judgment debtors.
A third application raising the same ground of objection (Misc.
Case No. 91 of 1960) was filed by the judgment debtors on September 12, 1960.
That application was dismissed on January 4, '1962 after examining the contentions of the parties.
Therein the execution court came to the conclusion that the objection raised by the judgment debtors is barred on the principles of res judicata and further that the same has no merits.
This decision as mentioned earlier was affirmed by the appellate court but reversed by the High Court.
We shall first take up the contention that the objection taken 911 by the judgment debtors ' is barried by principles of res judicata.
Though at one stage, learned Counsel for the appellants decree holders attempted to bring the case within Explanation 5, section 11, Civil Procedure Code, he did not pursue that line of argument but tried to support his contention on the broader principles of res judicata.
The real question for decision in this case is whether the dismissal of Misc.
cases Nos. 94 and 110 of 1959 for default of the judgment debtors can be said to be a final decision of the court after hearing the parties.
Before a plea can be held to be barred by the principles of res judicata, it must be shown that the plea in question had not only been pleaded but it had been heard and finally decided by the court.
A dismissal of a suit for default of the plaintiff, we think, would not operate as res judicata against a plaintiff in a subsequent suit on the same cause of action.
If it was otherwise there was no need for the legislature to enact rule 9, Order 9, Civil Procedure Code which in specific term say that where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action.
The contention that the dismissal of a previous suit for default of the plaintiffs operates as res judicata in a subsequent suit in respect of the same claim was repelled by the Judicial Committee, of the Privy Council in Maharaja Radha Parshad Singh vs Lal Sahab Rai and Ors.(1).
Therein the Judicial Committee observed thus : "None of the questions, either of fact or law, raised by the pleadings of the parties was heard or determined by the Judge of the Shahabad Court in 1881; and his decree dismissing the suit does not constitute res judicata within the meaning of the Civil Procedure Code.
It must fall within one or other of the sections of chapter VII of the Code; in the present case it is immaterial to consider which, the severest penalty, attached to such dismissal in any case being that the plaintiff cannot bring another suit for the same relief.
" From this decision it is clear that the Judicial Committee opined that before a plea can be held to be barred by res judicata that plea must have been heard and determined by the court.
Only a decision by a court could be res judicata, whether it be statutory under section 11, Civil Procedure Code or constructive as a matter of public policy on which the entire doctrine rests.
Before an earlier decision can be considered as res judicata the same must have been heard and finally decided see Pulvarthi Venkata Subba.
Rao vs Velluri Jagannadha Rao, and Ors.
The courts in India have generally taken the view that an execution petition which has been dismissed for the default of the (1) L.R. 17 I.A. 150.
(2) ; 912 decree holder though by the time that petition came to be dismissed, the judgment debtor had resisted the execution on one or more grounds, does not bar the further execution of the decree in pursuance of fresh execution petition filed in accordance with law see Lakshmibai Anant Kondkar vs Ravji Bhikaji Kondkar(1).
Even the dismissal for default of objections raised under section 47, Civil Procedure Code does not operate as res judicata when the same objections are raised again in the course of the executionsee Bahir Das Pal and Anr.
vs Girish Chandra Pal (1) Bhagawati Prasad Sah vs Radha Kishun Sah and OrS. (3); Jethmal and Ors.
vs Mst.
Sakina (4) ; Bishwanath Kundu vs Sm.
Subala Dassi (5).
We do not think that the decision in Ramnarain vs Basudeo(6) on which the learned Counsel for the appellant placed great deal of reliance is correctly decided.
Hence we agree with the High Court that the plea of res judicata advanced by the appellant is unsustainable.
The next question is whether the execution is barred under the provisions, of the Act.
The contention of the judgment debtors is that it is 'so barred whereas according to the appellants as the Bakasht lands which form part of the mortgaged property had, not vested in the State, the execution can proceed against those lands.
Therefore we have to see whether the entire mortgaged property had vested in the State in pursuance of the notification under section 3 or only the mortgaged property minus the Bakasht lands.
There is no dispute that the property mortgaged was an Estate within the meaning of section 2(1) and the notification issued under section 3 covered the entirety of the Estate.
But what was urged on behalf of the appellants is that what had vested in the State was the non bakasht lands as well as the proprietory interest in the Bakasht lands and hence the Bakasht lands do not have the protection of section 4(d); Consequently it is not necessary for them to exclusively proceed under section 14.
The consequences of the vesting of an Estate is set out in section 4.
Section 4(a) provides that once an Estate vests in the State the various rights in respect of that Estate enumerated therein shall also vest in the State, absolutely free from all encumbrances.
Among the rights enumerated therein undoubtedly includes the right of possession.
In view of section 4(a) there is hardly any doubt that the proprietor loses all his rights in the estate in question.
After setting out the various interests lost by the proprietor the section proceeds to say "such proprietoror tenure holder shall (1) XXXI, B.L.R. 400.
(2) A.I.R. (3) A I.R. 1950 Pat. 354.
(4) A. I. (5) A.I.R. 1962 Cal. 272.
(6) I.L.R. XXV pat.
913 cease to have any interests in such estate or tenure, other than the interests expressly saved by or under the provisions of this Act".
In order to find out the implication of the clause extracted above we have to go to section 6 which provides that on and from the date of vesting all lands used for agriculture or horticultural purposes which were in khas possession of an intermediary on the date a vesting (including certain classes of land specified in that section) shall subject to the provisions of sections 7A and B be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as a raiyat under the State having occupancy rights in respect of such lands, subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner.
Reading sections 3, 4 and 6 together, it follows that all Estates notified under section 3 vest in the State free of all encumbrances.
The quondum proprietors and tenure holders of those Estates lose all interests in those Estates.
As proprietors they retain no interest in respect of them whatsoever.
But in respect of the lands enumerated in section 6 the State settled on them the rights of raiyats.
Though in act the vesting of the Estates and the deemed settlement of raiyats rights in respect of certain classes of lands in cluded in the Estates took place simultaneously, in law the two must be treated as different transactions; first there was a vesting of the Estates in the State absolutely, and free of all encumbrances.
Then followed the deemed settlement by the State of raiyat 's rights on the quondum proprietors.
Therefore in law it would not be correct to say that what vested in the State are only those interests not coming within section 6.
Section 4(d) provides that "no suit shall lie in any Civil Court 'for the recovery of any money due from such proprietor (proprietor whose estate has vested in the State) or tenure holder the payment of which is secured by a mortgage of, or is a charge on, such estate or tenure and all suits and proceedings for the recovery of any such money which may be pending on the date of vesting shall be dropped".
Proceedings in this.
section undoubtedly include execution proceedings.
This is not a case where only a part of the mortgaged property has vested in the such the rule laid down by this Court in Raj Kishore Pratap(1) is not attracted.
As mentioned earlier the State and as vs Ram entire Estate mortgaged had vested though some interest in respect of a portion of the mortgaged property had been settled by the State on the mortgagors.
Under the circumstances the only remedy open to the decreeholders is that provided in Chap.
IV of the Act i.e. a claim under (1) ; ; 914 section 14 before the Claims Officer for "determining the amount of debt legally and justly payable to each creditor in respect of his claim '.
The procedure to be followed in such a proceeding is prescribed in sections 15 to 18. 'Provisions relating to the assessment and payment of compensation payable to the quondum proprietors and tenure holders are found in Chap.
V of the Act (sections 19 to 31.) Section 24(5) provides that "in the case where the interest of a proprietor or tenure holder is subject to a mortgage or charge, the compensation shall be first payable to the creditor holding such mortgage or charge and the balance, if any, shall be payable to the proprietor or tenure holder concerned:" That subsection further prescribes the maximum amount that can be paid to such a creditor.
In view of what has been stated above it follows that under the circumstances of this case it is not open to the appellants to proceed with the execution.
Their only remedy is to get compensation under the Act.
Our conclusion receives strong support from some of the decisions of this Court.
In Rana Sheo Ambar Singh vs Allhabad Bank Ltd., Allahabad(1), a question identical to the one before us, but arising under the U.P. Zamindari Abolition and Land Reforms Act, came up for consideration by this Court.
One of the questions that arose for decision in that case was whether the Bhumidari right settled by the State on a previous proprietor whose estate had vested in the State was liable to be proceeded against in execution of a mortgage decree against the Estate that had vested in the State.
This Court held that it was not liable to be proceeded against.
Therein it was ruled that the intention of the U.P. Zamindari.
Abolition and Land Reforms Act was to vest the proprietory rights in the Sir and Khudkasht land and grove land in the State and resettle on intermediary not as compensation but by virtue of his cultivatory possession of lands comprised therein and on a new tenure and confer upon the intermediary a new and special right of Bhumidari, which he never had before by section 18 of the Act.
The provisions in that Act relating to vesting and settlement of Bhumidari rights are in all essential particulars similar to those in the Act relating to vesting and settlement of Bakasht lands.
This Court further ruled in that case that the mortgagee could only enforce his rights against the mortgagor in the manner as provided in section 6 (h) of the U.P., Act read with section 73 of the Transfer of Property Act and follow the compensation money under the Act.
In Krishna Prasad and Ors.
vs Gauri Kumari Devi( 2) the question that arose for decision by the Court was whether, a mortgage decree holder could proceed against the properties of the mortga (1) ; (2) [1962] Supp.
3 S.C.R. 564.
915 gor other than those mortgaged in enforcement of the personal covenant when the property mortgaged had vested in the State under the provisions of the Act.
That question was answered in the negative.
In the course of the judgment Gajendragadkar, J. (as he then was) who spoke for the Court observed that there is no doubt "that the scheme of the Act postulates that where the provisions of the Act apply, claims, of the creditors have to be submitted before the Claim Officer, the claimants have to follow the procedure prescribed by the Act and cannot avail of any remedy outside the Act by instituting suit or any other proceeding in the court of ordinary civil jurisdiction.
" Proceeding further he observed "It is in the light of this scheme of the Act that we must revert to section 4(b) and determine what its true scope and effect are.
Mr. Jha contends that in construing the words of Section 4 (d) it would be necessary to bear in mind the object of the Act which was merely to provide for the transference to the State of the interests of the proprietors and tenure holders in land and of the mortgagees and lessees of such interests.
It was not the object of the Act, says Mr. Jha, to extinguish, debts due by the proprietors or tenure holders and so, it would be reasonable to confine the operation of section 4 (d) only to the claims made against the estates which have vested in the State and no others.
In our opinion, this argument proceeds on an imperfect view of the aim and object of the Act.
It is true that one of the objects of the Act was to provide for the transference to the State of the estates as specified.
But as we have already seen, the provisions contained in section 16 in regard to the scaling down of the debts due by the proprietors and tenure holders clearly indicate that another object which the Act wanted to achieve was to give some redress to the debtors whose estates have been taken away from them by the notifications issued under section 3.
Therefore, in construing section 4(d), it would not be right to assume that the interests of the debtors affected by the provisions of the Act do not fall within the protection of the Act" and again at page 578 "Having regard to the said scheme, it is difficult to confine the application of section 4(d) only to execution proceedings in which the decree holder seeks to proceed against the estate of the debtor.
In fact, an execution proceeding to recover the decretal amount from the estate which has already vested in the State, would be incompetent because the said estate no longer belong to the judgment debtor.
" Sup CI 69 9 916 Summarising the effect of the aforementioned decisions this is what this Court observed in Raj Kishore 's case(1) a case arising under the Act: From the principles laid down by this Court in the above two decisions, follows that where the whole of the property mortgaged is an estate, there can be no doubt that the procedure prescribed by Chapter IV has to be followed, in order that the amount due to the creditor should be determined by the claims officer and the decision of the claims officer or the Board has been made final by the Act.
" For the reasons mentioned earlier we are of the opinion that the decision of the majority of the judges in the Full Bench decision in Sidheshwar Prasad Singh vs Ram Saroop Singh(2) is not correct.
The true effect of the decisions of this Court in Rana Sheo Ambar Singh 's case(3) and Krishna Prasad 's case(4) is as explained by Kamla Sahai, J. in that case.
In the result this appeal fails and it is dismissed with costs.
Y.P. Appeal dismissed.
| IN-Abs | After a preliminary decree was obtained by the appellants (mortgagees of an Estate including both Bakasht lands and other lands), the Bihar Land Reforms Act, 1950 came into force.
The appellant filed petition for passing final decree.
The Estate mortgaged vested in the State as a result of a notification issued under section 3(1) of the Act, and later a final decree was passed in the mortgage suit.
Thereafter the appellants applied under section 14 of the Act and got determined the compensation to which they were entitled under the Act.
But yet they filed an execution petition to execute the mortgage decree against the Bakasht land.
The respondents resisted that execution by filing an application under section 47, Civil Procedure Code contending that the execution was barred under section 4(d) of the Act.
That application was dismissed for default of the respondents.
A second application raising, the same ground was filed by the respondents but this, too, was dismissed for their default.
A third application raising the same ground was filed by the respondents and in this, the execution court overruled the objection raised by the respondents on the grounds (i) that the objection was barred by the principles of res judicata and (ii) that the bar of section 4(d) pleaded was not tenable.
This decision was affirmed in appeal, but reversed in second appeal by the High Court.
Dismissing the appeal this Court; HELD : (i) The objection was not barred by the principles of res judicata.
Before a plea can be held to be barred by res judicata that plea must have been heard and determined by the court.
Only a decision by a court could be res judicata, whether it be statutory under section 11, Civil Procedure Code or constructive as a matter of public policy on which the entire doctrine rests.
An execution petition having been dismissed for the default of the decree holder through by the time petition came to be dismissed, the judgment debtor had resisted the execution on one or more grounds, does not bar the further execution of the decree in pursuance of fresh execution petitions filed in accordance with law.
Even the dismissal for default of objections raised under section 47, Civil Procedure Code does not operate as res judicata when the same objections are raised again in the course of the execution.
[911 B H] Maharaja Radha Parshad Singh vs Lal Sahab Rai & Ors.
L.R. 17 I.A. 150, Pulvarthi Venkata Subba Rao vs Velluri Jagannadha Rao & Ors.
; , Lakshmibai Anant Kondkar vs Ravi Bhikaji Kondkar, XXXI B.L.R. 400, Bahir Das Pal & Anr.
v, Girish Chandra Pal, A.I.R. 1923 Cal.
287, Bhagwati Prasad Sah vs Radha Kishun Sah & Ors.
A.I.R. 1950 Pat. 354, Jethmal & Ors.
vs Mst.
Sakina, A.I.R. 1961 Rai.
1959 Bishwanath Kundu vs Smt.
Subala Dassi, A.I.R. 1962 Cal. 272, referred to.
909 Ramnarain vs Basudeo, I.L.R. XXV Pat.
595, disapproved.
(ii)Proceedings under section 4(d).
of the Bihar Land Reforms Act, 1950 included execution proceedings and the execution could not be proceeded with.
The only remedy open to the appellants was to get compensation under Chapter IV of the Act.
[913 G, H] Reading sections 3, 4 and 6 together, it followed that all Estates notified under section 3 vested in the State free of all encumbrances.
The quondum proprietors and tenure holders of those Estates lost all interests in those Estates.
As proprietors they retained no interest in respect of them whatsoever.
But in respect of the lands enumerated in section 6 the State settled on them the rights of raiyats.
Though in fact the vesting of the Estates and the deemed settlements of raiyat rights in respect of certain classes of lands included in the Estates took place simultaneously, in law the two must be treated as different transactions; first there was a vesting of the Estates in the State absolutely, free of all encumbrances. 'Men followed the deemed settlement by the State of raiyat 's rights on the quondum proprietors.
Therefore in law it would not be correct to say that what vested in the State were only those interests not coming within section 6.
[913 C E] Section 4(d) provided that "no suit shall lie in any civil court for the recovery of any money due from such proprietor (proprietor whose estate has vested in the State) or tenure holder the payment of which is secured by a mortgage of, or is a charge on, such estate or tenure and all suits and proceedings for the recovery of any such money which may be pending on the date of vesting shall be dropped".
Proceedings in this section undoubtedly included execution proceedings.
[1913 F] Ramnarain vs Basudeo I.L.R. XXV Pat.
595, Raj Kishore vs Ram Pratap, ; ; , Rana Sheo Ambar Singh vs Allahabad Bank Ltd., Allahabad, ; and Krishna Prasad & Ors.
vs Gauri Kumari Devi, (1962] Supp.
3 S.C.R. 564, referred to.
Sidheshwar Prasad Singh vs Ram Saroop Singh, 1963 B.L.J.R. 802, majority view disapproved.
|
Appeal No. 438 a 1966.
Appeal by special leave from the judgment and decree dated November 18, 1963 of the Punjab High Court in Civil Regular Second Appeal No. 254 of 1962.
Mohan Behari Lal, for the appellants.
I. M. Lall and M. L. Agarwal, for the respondents.
The Judgment of the Court was delivered by Shah, J.
In 1916 Jawala a Hindu Jat governed by the customary law of the Punjab sold to one Shadi, without legal necessity, a fourth share in 891 bighas 3 biswas, which was ancestral in his hands.
Giani Ram son of Jwala instituted Suit No. 75 946 of 1920 in the Court of the Senior Subordinate Judge, Hissar, for a declaration that the sale of ancestral lands of Jwala in favour of Shadi was null and void and was ineffective against his reversionary rights.
The suit was decreed by the Senior Subordinate Judge, Hissar.
The effect of the declaratory decree was that the alienations could not enure beyond the life time of Jwala.
Jwala died on October 16, 1959, leaving his surviving three sons Giani Ram, Manphool and Chandgi his wife Rajni, and two daughters Phulwati and Chhanno.
Under the which came into force on June 17, 1956, the estate of Jwala devolved upon his widow, his sons and his daughters in equal shares.
In an action filed by the three sons of Jwala, his daughters and widow against the legal representatives, of Shadi for a decree for possession of the lands alienated by Jwala the Senior Subordinate Judge, Hissar decreed the suit for a half share in property claimed by the plaintiffs.
The learned Judge was of the view that only the sons of Jwala could claim the benefit of the decree in Suit No. 75 of 1920 and since their share in the estate of Jwala was in the aggregate only a half, the remaining half having devolved upon the widow and the two daughters, a decree for a half share in the lands alienated could issue against the alienees.
In appeal by the plaintiffs to the District Court, Hissar, the decree was modified.
The learned District Judge decreed the claim in its entirety, but only in favour of the three sons.
In his view the sons were entitled to the ancestral property alienated by Jwala and the widow and the two daughters had no interest there in the provisions of the notwithstanding.
Against that decree a second appeal was preferred by the heirs of Shadi.
The High Court of Punjab set aside the decree passed by the District Court and restored the decree of the Trial Court.
In the view of the High Court, under the , the two daughters and widow of Jwala could inherit a share in the, estate of Jwala, but since by section 8 of the Punjab Custom (Power to Contest) Act 1 of 1920 only those persons could take the benefit of the declaratory decree obtained by any one of the reversioners, who could contest the alienation by the vendor, and it was a "settled rule of custom that a female heir cannot contest the sale" by a male owner, a half share in the estate of Jwala which devolved upon the sons could be claimed by them, and the widow and the daughters could not obtain benefit of the decree.
The High Court also held that the suit filed by the widow and the two daughters had been dismissed by the Trial Court and the District Court and as they had not filed an appeal in the High Court or even cross objections, the order of dismissal qua them had 'become final, and no decree could be passed in their 947 favour for possession of any part of the estate.
With special leave the appellants have appealed to this Court.
A preliminary objection raised by counsel for the respondents that the suit in its entirety should have been dismissed, because by the enactment of the Jwala was to be deemed a full owner and notwithstanding the decree passed in Suit No. 75 of 1920 his sops had after that Act no subsisting reversionary interest in the property, must stand rejected.
The High Court has granted a decree in favour of the three sons for a half share in the property, and the decree is not challenged in an.
appeal by the respondents.
The respondents cannot now be permitted to challenge that part of the decree.
In any event there is nothing in the which retrospectively enlarges the power of a holder of ancestral land or nullifies a decree passed before the Act.
The Punjab Custom (Power to Contest) Act 1 of 1920 was enacted to restrict the rights excercisable by members of the family to contest alienations made by a holder of ancestral property.
By virtue of section 6 of the Act no person is entitled to contest an alienation of ancestral immovable property Unless he is descended in the male line from the great great grand father of the alienor.
Under the customary law in force in the Punjab a declaratory decree obtained by the reversionary heir in an action to set aside the alienation of ancestral property enured in favour of all persons who ultimately took the estate on the death of the alienor for the object of a declaratory suit.filed by a reversionary heir impeaching an alienation of ancestral estate was to remove a common apprehended injury, in the interest of the reversioners.
The decree did not make the alienation a nullity it removed the obstacle to the right of the reversioner entitled to succeed when the succession opened.
By the decree passed in suit No. 75 of 1920 filed by Giani Rain it was declared that the alienations by Jwala were not, binding after his life time, and the property will revert to his estate.
It is true that under the customary law the wife and the daughters of a holder of ancestral property could not sue to obtain a declaration that the alienation of ancestral property will not bind the reversioners after the death of the alienor.
But a declaratory decree obtained in a suit instituted by a reversioner competent to sue has the effect of restoring the property alienated to the estate of the alienor.
The effect of the declaratory decree in suit No. 75 of 1920 was merely to declare that by the sale interest conveyed in favour of the alienee was to enure duuring the life time of the alienor ' The conclusion is therefore inevitable that the property alienated reverted to the estate of Jwala, at the point of his death and all persons who would, but.
for the allenation, have taken the estate 1 Sup.
C.T./69 11 948 will be entitled to inherit the same.
If Jwala had died before the was enacted the three sons would have taken the estate to the exclusion of the widow and the two daughters.
After the enactment of the the estate devolved, by virtue of sections 2 and 4(1) of the , upon the three sons, the widow and the two daughters.
We are unable to agree with the High Court that because in the year 1920 the wife and the daughters of Jwala were incompetent to challenge the alienation of ancestral property by Jwala, they could not, after the enactment of the , inherit his estate when succession opened after that Act came into force.
The second ground on which the learned Judge has founded his judgment also does not appeal to us.
The three sons, the two daughters and the widow of Jwala had filed the suit claiming posession of the entire property from the alienee.
That suit was decreed by the Trial Court in favour of the sons, only to the extent of a halt share in the property alienated.
The Court held that the widow and the daughters were not entitled to a share because "only those persons can bring a suit for possession on the death of Jwala who had the right to challenge the alienation made by Jwala".
In appeal the District Court granted a decree for possession of the entire property on the view that the alinee had no subsisting interest after the death of Jwala.
But the District Court granted a decree for possession of the entire property alienated only in favour of the three sons, because in the view of the Court daughters and the widow of Jwala were not entitled to any share in the property.
According to the High Court if the widow and the daughters were entitled to the share in the property, they had disentitled themselves to that right, because they had not preferred an appeal or filed cross objections to the decree appealed from.
The sons, daughters and widow of Jwala filed a suit for a decree for possession of the entire property and their primary claim was that the alienee had no subsisting interest.
The District Court accepted that claim and granted a decree in favour of the three sons for the entire property which was alienated.
If the alienes are unable to convince the Court that they had any subsisting interest in the property in dispute after the death of Jwala the Court will be competent to adjust the rights between the sons, the daughters and the widow of Jwala in that property.
Order 41, r. 33 of the Code of Civil Procedure was enacted to meet a situation of the nature arising in this case.
In so far as it is material, the rule provides : "Me Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or 94 9 other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection '.
The expression "which ought to have been passed" means "which ought in law to have beep passed".
If the Appellate Court is of the view that any decree which ought in law to have been passed, but was in fact not passed by the subordinate court, it may Pass or make such further or other decree or order as the justice of the case may require If the claim of the respondents to retain any part of the property after the death of Jwala is negatived, it would, be perpetrating gave injustice to deny to the wodow and the two daughters, their share in the property to which they are in law entitled.
In our view, the case was one in which the power under 0. 41, r. 33,.
Code of Civil Procedure ought to have been exercised and the claim not only of the three sons but also of the widow and the two, daughters ought to have been decreed.
The appeal is allowed and the decree passed by the High Court is modified.
There will be a decree for possession of the lands in suit in favour of the three sons, the widow and the two daughters of Jwala.
The interest of the three sons is one half in the Iands in suit and the interest of the widow and the two daughters is the other half in the lands.
The plaintiffs will be entitled to mesne profits from the date of the suit under 0. 20, r. 12, Code of Civil Procedure.
The appeal will be allowed with costs throughout.
G.C. Appeal allowed.
| IN-Abs | J, a Hindu Jat governed by the Punjab Customary Laws, sold without legal.
necessity, in 1916, a fourth share of his ancestral land to one section Under the Punjab, Customary Laws females could not challenge a sale of ancestral property by a male owner.
J 's son G, in suit No. 75 of 1920 obtained a declaratory decree to the effect that the sale to S would not enure beyond the life time of J. When J died in 1959, the had come into force and his three sons, daughters and widow inherited his estate in equal shares.
The three sons, the widow and the daughters then filed a suit for possession of the aforesaid alienated land on the basis of the decree in suit No. 75 of 1920.
Under section 8 of the Punjab Custom (Power to Contest) Act 1 of 1920 only those competent to contest an alienation clould take advantage of a decree obtained by a reversioner.
The trial court passed a decree for a half share of the suit property in favour of the sons only, holding that the female heirs of J were not entitled to take advantage of the decree in suit No. 75 of 1920.
The District Court modified the decree by decreeing the suit in respect of the whole property in favour of the sons.
In second appeal the High Court restored the decree of the trial court holding that the claim of the female heirs of J could not be upheld, firstly because of the Punjab customary law and section 8 of Act 1 of 1920, and secondly because they had not filed any appeals against the orders of the lower courts.
In appeals by special leave before this Court, HELD : (i) The preliminary objections 'raised by the alienees that the suit in its entirety should have been dismissed, because by the enactment of the J was to be deemed a full owner and notwithstanding the decree of 1920 his sons had after that Act no subsisting reversionary interest in the property, must stand rejected.
There is nothing in the which retrospectively enlarges the power of a holder of ancestral land or nullifies a decree passed before the Act.
[947 B C] (ii) Under the customary law of the Punjab the wife and the daughters of a holder of ancestral property could not sue to obtain a declaration that the alienation of ancestral property will not bind the reversioners after the death of the alienor.
But a declaratory decree 945 obtained in a suit instituted by a reversioner competent to sue has the effect of restoring the property alienated to the estate of the alienor.
[947 G] The effect of the declaratory decree in the suit filed by G in 1920 was merely to delclare that by the sale, the interest conveyed to the alienee was to enure during the life time of the alienor.
The conclusion was therefore inevitable that the property alienated reverted to the estate of J at the point of his death and all persons who would, but for the alienation have taken the estate were entitled to inherit the same.
If J had died before the was enacted, the three sons would have taken the estate to the exclusion of the widow and the two daughters.
After the enactment of the the estate devolved, by virtue of sections 2 and 4(1) of the , upon the three sons, the widow and the two daughters.
L947 H 948 B] The High Court was therefore in error in holding that because in the year 1920 the wife and daughters of J were incompetent to challenge the alienation of ancestral property by J, they could not, after the enactment, of the inherit his estate when succession (iii) The High Court was equally in error in holding that because the widow and daughters had not filed an appeal or cross objections against the decree of the lower courts, they were not entitled to any relief.
The sons, the daughters and the widow of J had filed the suit for a decree for possession of the entire property and their claim was that the alienee had no subsisting interest.
The District Court accepted that claim and granted a decree in favour of the three sons for the entire property which was alienated.
If the alienees were unable to convince the court that they had any subsisting interest in the property in dispute after the death of J, the court was competent under 0.
41 r. 33 of the Code of Civil Procedure to adjust the rights between the sons, the daughters, and the widow of J in that property.
[948 E G; 949 D] In 0.
41 r. 33 the expression 'which ought to have been passed ' means 'what ought in law to have been passed '.
if the Appellate Court is of the view that any decree which ought in law to have been passed was in fact not passed by the 'subordinate court, it may pass or make such further or other decree or order as the justice of the case may require.
[949 D]
|
Appeals Nos. 386 and 387 of 1966.
Appeal by special leave from the judgment and_decree dated April 16, 1963 of the Madhya Pradesh High Court in First Appeal No. 217 of 1959.
section V. Gupte, P. C. Bhartari and J. B. Dadachanji, for the appellants (in C.A. No. 386 of 1966) and the respondents (in C.A. No. 387 of 1966).
I. N. Shroff and Rama Gupta, for the State of Madhya Pradesh.
The Judgment of the Court was delivered by Ramaswami, J.
These appeals are brought by special leave from the judgment of the High Court of Madhya Pradesh dated 16th April, 1963 in ' First Appeal No. 217 of 1959, whereby the High Court modified partly the judgment of the first Additional District Judge, Jabalpur dismissing Civil Suit No. 10 A of 1954.
The suit was instituted against the State of Madhya Pradesh by Beohar Raghubir Singh and his three grand sons.
Beohar Raghubir Singh 's son, Beohar Rajendra Sinha, was a pro forma defendant.
A notice under section 80 of Civil Procedure Code had been given by Raghubir Singh on 11th January, 1954.
Plaintiffs 2, 3 and 4, his grand sons were joined as plaintiffs because in a partition made subsequent to the giving of the notice, they were each entitled to 1/5th share along with the first plaintiff.
Beohar, Rajendra Sinha was joined as a defendant because he did not choose to join as the plaintiff.
The plaintiffs sought a declaration (1) that the three nazul plots in suit had been in possession of the plaintiffs and the predecessors in their own right from time immemorial and their status was that of Raiyat Sarkar; and (2) that the order of the State Government in the Survey and Settlement Department refusing to recognise their possession over the plots was wrong and ultra vires.
The dispute relates to Phoota Tal a tank situated within the town of Jabalpur.
It was plot No. 282 in the settlement of 1863 A.D.
Its area then was 957 5.24 acres.
it was recorded as malkiat Sarkar and in the last column there was an entry showing possession of Aman Singh Thakur Prasad.
The next settlement took place in 1890 91.
The survey number of Phoota Tal was changed to plot No. 325.
Its area remained the same, it was recorded as "water (pani)" and in the last column, the entry showed the possession of Beohar Narpatsingh Raghubir Singh.
, The third settlement took placed in 1909 10.
The plot number of Phoota Tal was then , it was still recorded change to 327.
Its area remained the same it was still recorded as 'water", but there was no entry in favour of any one showing possession.
The nazul settlement took place in 1922 23.
In this settlement, the tank was given numbers 33, 34, 35, 36, 37 and 171.
Its area was recorded as 5.24 acres.
In this settlement about 2 acres of land was found to be occupied by the Municipal Committee, Jabalpur.
The land so found to be occupied was recorded in the possession of the Muncipal Committee, Jabalpur and the remaining land was again recorded as "Milkiat Sarkar".
There was no entry regarding possession in the remarks column so far as the remaining land was concerned.
The plaintiffs alleged that Thakur Prasad and Aman Singh were their ancestors, that they had been in continuous possession of the disputed landand the omission to record their possession in the last two settle ments of 1909 10 and 1922 23 was due to some oversight.
In 1948 the first plaintiff made an application for correction to the Deputy Commissioner, Jabalpur who made an order in his favour exhibit P 5.
The order of the Deputy Commissioner was however set aside by the State Government on 28th May, 1953 and it was held that the plaintiffs had no title to the disputed land.
The plaintiff therefore prayed for a declaration of the title to the disputed plots and for the correction of the entry in the settlement record showing the status of the plaintiff as that of "Raiyat Sarkar".
The suit was contested by the State of Madhya Pradesh.
It was urged that the plaintiff had no possession over the disputed land and the order of the State Government dated 28th May, 1953 was correct.
It was contended that plaintiffs 2, 3 and 4 had no right to institute the suit because no notice under section 80 of the Civil Procedure Code was given on their behalf.
The suit was not contested by the second defendant Beohar Rajendra Sinha.
By its judgment dated 24th January, 1959 the trial court held that there was no documentary evidence from 1891 to 1932 to support the possession of the ancestors of the plaintiffs regarding Phoota Tal.
The trial court also held that in all the settlement entries, the land was recorded as belonging to the Government "Milkiat Sarkar".
In any event, between 1891 to 1932 there was no evidence regarding the user of the property by the plaintiffs and in the subsequent years a part of the property was found in possession of the Municipal Committee.
The trial court dismissed the suit.
Against the judgment of the trial court 958 the plaintiffs preferred an appeal to the High Court.
The High Court held in the first place the notice exhibit P 8 was not in conformity with section 80 of the Civil Procedure Code.
The High Court held that Beohar Raghubir Singh had lost the right to represent the joint family as karta at the time of institution of the suit because there had been a severence of joint status and the notice served by Beohar Raghubir Singh could not ensure to, the benefit of the other plaintiffs.
On the merits of the case, the High Court found that the plaintiffs had established their possession for the statutory period of 60 years.
The High Court held that the plaintiffs had acquired the right of Raiyat Sarkar and that the order of the State Government refusing to correct the revenue record was illegal.
On these findings the High Court modified the judgment of the trial court to the extent that there was a declaration in favour of the plaintiffs that they were entitled to 1/5th share of the property in dispute and the claim regarding the 4/5th share was dismissed The order of the State Government dated 28th May, 1953 refusing to recognise the possession of the plaintiffs was held to be wrong and illegal.
The first question to be considered in these appeals is whether the High Court was right in holding that the notice given under section 80 of the Civil Procedure Code by the first plaintiff was effective only with regard to Raghubir Singh and.
the notice was ineffective with regard to the other plaintiffs and therefore Raghubir Singh alone was entitled to a declaration as regards the 1/5th share of the dispute plot.
On behalf of defendant No. 1 it was contended by Mr. Shroff that at the time of giving notice the plaintiffs and the second defendant were joint and plaintiff No. 1 Raghubir Singh was karta of the joint family.
The notice was given on 11th January, 1954 and the suit was instituted on 20th July, 1954.
It was admitted that between these two dates there was a disruption of the joint family of which Raghubir Singh was a karta.
It was argued that the right of the first plaintiff to represent the family had come to an end before the institution of the suit, and hence plaintiffs 2, 3 and 4 had to comply individually with the provisions of section 80 of the Civil Procedure Code before appearing as plaintiffs in the suit, In our opinion, there is no justification for this argument.
, We consider that there is substantial identity between the person giving the notice and the persons filing the suit in the present case.
At the time of giving notice the first plaintiff Beohar Raghubir Singh was admittedly the eldest member of the joint family and being a karta he was entitled to represent the joint family in all its affairs.
The cause of action had accrued at the time of giving of the notice and it was not necessary to give a second notice merely because there was a severence of the joint family, before 20th July, 1954 when the suit was actually instituted.
It is obvious 959 that the notice was given by Beohar Raghubir Singh as a representative of the joint family and in view of the subsequent partition the suit had to be instituted by, all the divided members of the joint family.
We are of the opinion that the notice given by Beohar Raghubir Singh on 11th January, 1954 was sufficient in law to sustain a suit brought by all the divided coparceners who must be deemed to be as much the authors of the notice as the karta who was the actual signatory of the notice.
There is substantial identity between the person giving the notice and the persons bringing the suit in the present case and the argument of defendant No. 1 on this point must be rejected.
The object of the notice under section 80, Civil Procedure Code is to give to the Government or the public servant concerned an opportunity to reconsider its or his legal position and if that course is justified to make amends or settle the claim out of court.
The section is no doubt imperative; failure to serve notice complying with the requirements of the statute will entail dismissal of the suit.
But the notice must be reasonably construed.
Any unimportant error or defect cannot be permitted to be treated as an excuse for defeating a just claim.
In considering whether the provisions of the statute are complied with, the Court must take into account the following matters in each case (1) whether the name, description and residence of the plaintiff are given so as to enable the authorities to identify the person serving the notice; (2) whether the cause of action and the relief which the plaintiff claims are set out with sufficient particularity; (3) whether a notice in writing has been delivered to or left at the office of the appropriate authority mentioned in the section; and (4) whether the suit is instituted after the expiration of two months next after notice has been served, and the plaint contains a statement that such a notice has been so delivered or left.
In construing the notice the Court cannot ignore the object of the legislature, viz., to give to the Government or the public servant concerned an opportunity to reconsider its or his legal position.
If on a reasonable reading of the notice the plaintiff is shown to have given the information which the statute requires him to give, any incidental defects or irregularities should be ignored.
In the present case, the notice was served on 11th January, 1954 by Beohar Raghubir Singh.
The notice stated the cause of action arising in favour of the joint family.
The requirements as to cause of action, the name, description and residence of the plaintiff were complied with and the reliefs which the plaintiff claimed were duly set out in the notice.
It is true that Beohar Raghubir Singh did not expressly describe himself as the karta.
But reading the contents of the notice exhibit P 8 in a reasonable manner it appears to us that the claim of Beohar Raghubir Singh 960 was made on behalf of the joint family.
It is true that the term of section 80 of the Civil Procedure Code must be strictly complied but that does not mean that the terms of the notice should be scrutinised in an artificial or pedantic manner.
In Dhian Singh Sobha , Singh & Anr.
vs The Union of India & Anr.
(1) Bhagwati, J. observed in the course of his judgment : "We are constrained to observe that the approach of the High Court to this question was not well founded.
The Privy Council no doubt laid down in Bhagchand Dagadusa vs Secretary of State (2) that the terms of this section should be strictly complied with.
That does not however mean that the terms of the notice should be scrutinised in a pedantic manner or in a manner completely divorced from common sense.
As was stated by Pollock C. B. in Jones vs Nicholls(3) We must impprt a little common sense into notices of this kind '.
Beaumonth, C.J., also observed in Chandu Lal Vadilal vs Government of Bombay(4) "One must construe section 80 with some regard to common sense and to the object with which it appears to have been passed. ." As already pointed out, the suit was instituted in the present case by the divided members of Hindu joint family on 20th July, 1954.
The notice had been given on 11th January, 1954 by Beohar Raghubir Singh who was the karta of the undivided joint family.
In our opinion there was identity between the person giving a notice and the persons filing the suit because it must be deemed in law that each of the plaintiffs had given the notice under section 80 of the Civil Procedure Code through the karta Beohar Raghubir Singh.
It is not disputed that the cause of action set out in the notice remained unchanged in the suit.
It is also not said that the relief set out in the plaint is different from the relief set out in the notice.
We are accordingly of the opinion that the notice given by the karta was sufficient to sustain the suit brought by the divided coparceners and the decision of the High Court on this point must be over ruled.
The view that we have expressed is borne out by the judgment of this Court in State of Andhra Pradesh vs Gundugola Venkata Suryanarayan Garu(5).
In that case, the Government of Madras applied the provisions of the Madras Estates Rent Reduction Act, 1947 to the lands in the village Mallindhapuram on the ground that the grant was of the whole village and hence an estate within the meaning of section 3 (2) (d)of the Madras Estates (1) ; (2) [1927] L.R. 54 I.A. 338.
(3) ; , 363; ; ,150.(4) I.L.R. (5) ; 961 Land Act, 1908.
The respondent and another person served a notice under section 80 of the Code of Civil Procedure upon the Government of the State of Madras in which they challenged the above mentioned notification and asked the Government not to act upon it.
Out of the two persons who gave the notice, the respondent alone filed the suit.
The trial court held that the original grant was not of the entire village and was not so confirmed or recognised by the Government of Madras and as it was not an "Estate" within the meaning of section 3 (2) (d) of the Madras Estates Land Act, the Madras Rent Reduction Act, 1947 did not apply to it.
But the suit was dismissed on the ground that although two persons had given notice under section 80 of the Code of Civil Procedure, only one person had filed the suit.
The High Court agreed with the trial court that the grant was not of an entire village but it also held that the notice was not defective and the suit was maintainable as it was a representative suit and the permission of the Court under 0.1, r. 8 had been obtained in this case.
The High Court granted the respondent the relief prayed for 'by him.
Against the order of the High Court the appellant appealed to this Court which dismissed the appeal holding that in the circumstances of the case there was no illegality even though the notice was given by two persons and the suit was filed by only one.
If the Court grants permission to one person to institute a representative suit and if the person had served the notice under section 80, the circumstance that another person had joined him in serving the notice but did not join him in the suit, was not a sufficient ground for regarding the suit as defective.
At page 953 of the Report Shah, J. observed as follows : "The notice in the, present suit was served by the plaintiff and Yegneswara Sastri.
They raised a grievance about the notification issued by the Government of Madras on May 16, 1950; it was not an individual grievance of the two persons who served the notice but of all the Inamdars or agrahamdars.
The relief for which the suit was intended to be filed was also not restricted to their personal claim.
The notice stated the cause of action arising in favour of all the Inamdars, and it is not disputed that the notice set out the relief which would be claimable by all the Inamdars or on their behalf in default of compliance with the requisition.
The plaintiff it is true alone filed the suit, but he was permitted to sue for and on behalf of ' all the Inamdars by an order of the Court unuder O. 1, r. 8 of the Code of Civil Procedure.
The requirements as to the cause of action, the name, description and place of residence of the plaintiff was therefore 962 complied with and the relief which the plaintiff claimed was duly set out in the notice.
The only departure from the notice was that two persons served a notice under section 80 informing the Government that proceedings would be started, in default of compliance with the requisition, for violation of the rights of the Inamdars, and one person only out of the two instituted the suit.
That in our judgment is not a defect which brings the case within the terms of section 80".
On behalf of respondent No. 1 reference was made, to the two decisions of the Judicial Committee in Vellayan Chettiar & Ors.
vs Government of the Province of Madras and Anr.(1) and Government of the Province of Bombay vs Pestonji Ardeshir Wadia & Ors.(2) But the 'principle of these decisions has no bearing on the question presented for determination in the present case.
In Vellayan Chettiar 's case(1) a notice was given by one plaintiff stating the cause of action, his name, description and place of his residence and the relief which he claimed although the suit was instituted by him and another.
It was observed by the Judicial Committee: "The section according to its plain meaning requires that there should be in the language of the High Court of Madras 'identity of the person who issues the notice with the person who brings the suit ' : See Venkata Rangiah Appa Rao vs Secretary of State(3) and on appeal Venkata Rangiah Appa Rao vs Secretary of State (4).
To hold otherwise would be to admit an implication or exception for which there is no jurisdiction" Two persons had sued for a declaration that certain lands belonged to them, and for an order setting aside the decision of the Appellate Survey Officer in regard to those lands.
It was found that one alone out of the two persons had served the notice.
The relief claimed by the two persons was personal to them and the right thereto arose out of their title to the land claimed by them.
It was held by the Judicial Committee that without a proper notice under section 80 the suit could not be instituted for to hold otherwise would be to admit an, implication or exception for which there was no justification.
In the other case, in Pestonji Ardeshir Wadia 's case(2) two trustees of a trust served a notice in October, 1933 upon the Government of Bombay under section 80 intimating that the trustees intended to institute a suit against the Government on the cause of action and for the relief set out (1) A.I.R. 1947 P.C. 197.
(2) 76 I.A. 85.
(3) I.L.R. Mad 416.
(4) 963 therein.
One of the trustees died before the plaint was lodged in court, and two more trustees were appointed in the place of the deceased trustee.
Thereafter the two now trustees and the surviving trustee filed the suit out of which the appeal arose which was decided by the Judicial Committee.
No notice was served on the Government on behalf of the two new trustees.
The Judicial Committee accepted the view of the High Court that where there were three plaintiffs, the names and addresses of all of them must be given in the notice.
Their Lordships observed that : "the provisions of section 80 of the Code are imperative and should be strictly complied with before it can be said that a notice valid in law has been served on the Government.
In the present case it is not contended that any notice on behalf of plaintiffs 2 and 3 was served on the Government before the filing of the suit".
It is clear that the principle of these two decisions of the Judicial Committee has no application in the present case because the material facts are different.
We proceed to consider the next question arising in these appeals viz., whether the High Court was right in holding that the plaintiffs had established their title as raiyat sarkar with regard to 1/5th share in nazul plots Nos.
34/3, 33 and 171/1 mentioned in the Deputy Commissioner 's order dated 7th May, 1948 in Revenue Case No. 9/45 46.
It was argued on behalf of defendant No. 1 that there was no evidence to show that the plaintiffs were in possession of the land from 1909 to 1932, and the plaintiffs had not established their title by prescription for the statutory period of 60 years.
It was contended that the High Court had no justification for holding that the plaintiffs had established the title of "Raiyat Sarkar" and the finding of the High Court was not based upon any evidence.
In our opinion, the argument put forward on behalf of defendant No. 1 is wellfounded and must be accepted as correct.
In the settlement of the names of Amansingh and Thakurprasad were noted in the remarks column.
But the column regarding tenancy right is definitely blank.
The owner is shown in the Khasra as the State "Milkiat Sarkar".
In the settlement of 189091 Amansingh Narpatsingh is again shown in the remarks column of the khata.
But the column regarding any kind of tenancy right is again blank.
It is clear that in the settlements of 1860 and 1890 91 the ownership of the land is recorded as that of the Government.
The possession of the plaintiffs or of their ancestors could not be attributed to ownership or tenancy right of the property.
In the settlement of 1909 10, exhibit
P 3 there is no entry in the remarks column showing the possession of the ancestors of the plaintiffs.
It was said on behalf of the plaintiffs that no (1) 76 I.A. 85.
L11 Sup.
C.I./69 12 96 4 notice was given to them of the proceedings of the. settlement of 1909 10.
Even assuming that this allegation is correct, the entries of the khasra P 3 cannot be treated to be a nullity and of no effect.
In any event, it was open to the plaintiffs to adduce other reliable evidence to prove their possession between the years 1909 to 1932.
But the plaintiffs have failed to produce any such evidence.
ln the nazul settlement of 1922 23 the tank was given new plot numbers 33, 34, 35,36, 37 and 171 and its area was recorded as 5.24 acres.
In this settlement about 2 acres of land was found to be occupied by the Municipal Committee, Jabalpur.
The land so found to be occupied was recorded in the possession of the Municipal Committee, Jabalpur and the remaining land was again recorded as "Milkiat Sarkar".
There is no entry as regards the remaining land recording anybody 's possession in the.
remarks column.
Actually proclamations were made during this settlement and objections were invited as per exhibit
ID 14.
A date was fixed upto 31 8 1924 but no one came forward.
The proclamation clearly recited that the vacant sites which were not in possession of anybody were not recognised as belonging to any person.
It is impossible to believe that the plaintiffs or their ancestors were unaware of such a proclamation.
Had they been in possession they would not have failed to make a claim.
For the period after 1933 34 the plaintiffs produced account books to show that they exercised certain rights.
Certain receipts were also proved but they also relate to a period after 1939.
We have gone through the oral evidence produced by the plaintiffs and it appears to be unreliable.
The result is that for the period 1891 till 1932 there is no reliable oral or documentary evidence to prove that the plaintiffs or their ancestors had any possession over the disputed land.
On the contrary the disputed land i.e. Phoota Tal was always recognised as Milkiat Sarkar and the State Government was justified in holding that the order of the Deputy Commissioner dated 7th May, 1948 should be set aside.
In the course of the argument reference was made by Mr. Gupte to the following passage in the Central Provinces Settlement Instructions (Reprint of 1953) page 213 "In dealing with proposed method of the settlement of titles it will be convenient in order to remove all causes for misapprehension among residents, to lay emphasis on the policy of Government in making these settlements.
That policy was defined in the Chief Commissioner 's Resolution No. 502 B X dated the 19th October, 1917, in the Revenue & Scarcity Department, but its main principles will bear repetition.
As it is not the intention of Government in making the settlement to disturb long possession, but only to 965 obtain an accurate record of the lands which are its property and to secure its right to any land revenue to which it may be entitled, long possession even without clear proof of a definite grant from Government will be recognised as entitled the holder to possession.
In deciding what constitutes long possession in any individual town, regard will be had to the special circumstances of the place, and while this point will be dealt with more particularly in the Deputy Commissioner 's report, the following general principles will ordinarily be observed : (1) all occupants who are able to prove possession to any land prior to 1891 or such later date as may be fixed for each town, either by themselves or by a valid title from a previous holder, and all occupants who can prove a definite grant or lease from Government will be recorded as entitled to hold such land as against Government (paragraph 6 of the Resolution) On the basis of this passage it was argued that it was the duty of the settlement officer to treat the plaintiffs as having established their title because they were shown to be in possession in the settlement of the year 1890 91.
We are unable to accept this argument as correct.
The passage quoted above only applies to a case where the ownership of the land was unknown i.e. where possession is proved for a long time, but its original title could not be traced, and not to a case where the land is recorded as Government land.
For the reasons expressed, we hold that the suit brought by the plaintiffs being Civil Suit No. 10 A of 1954 should be dismissed.
Civil Appeal 386 of 1966 is accordingly dismissed and Civil Appeal 387 of 1966 is allowed with costs in favour of defendant No. 1 i.e. State of Madhya Pradesh.
There will be one hearing fee.
R.K.P.S. Civil Appeal 386/66 dismissed.
Civil Appeal 387/66 allowed.
| IN-Abs | The appellant, who was at the time the Karta of a Hindu Joint Family, gave notice in January, 1954, to the respondent State under section 80 of the Civil Procedure Code.
Thereafter a suit was filed in July, 1954, by which time a partition had taken place in the family.
In view of this the appellant 's three grand sons were joined as plaintiffs in the suit the plaintiffs sought a declaration that three nazul plots in suit had been in the possession of the plaintiffs and their ancestors from time immemorial and their status was that of Raiyat Sarkar; so that an order of the State Government in the Survey and Settlement Department refusing to recognise their possession over the plots was wrong and ultra vires.
Apart from contesting the suit on the merits, the respondent State contended that plaintiffs 2, 3 and 4 i.e. the appellant 's grand sons had no right to institute a suit because no notice under section 80 C.P.C. was given on their behalf.
The trial court dismissed the suit.
In an appeal, the High Court held that the appellant had lost the right to represent the joint family as karta at the time of institution of the suit because their had been severence of joint status and the notice served by him could not enure to the benefit of other plaintiffs.
On the merits the High Court found that the plaintiffs had shown their possession for the statutory period of 6 years.
On appeal to this Court, HELD: (1) The notice given by the appellant in January, 1954, was sufficient in law to sustain a suit brought by all the divided coparceners who must be deemed to be as much the authors of the notice as the Karta who was the actual signatory of the notice.
There was substantial identity between the person giving the notice and the persons bringing the suit in the present case.
[959 B] At the time of giving notice the appellant was admittedly the eldest member of the joint family and being a Karta he was entitled to represent the joint family in all its affairs.
The cause of action had accrued at the time of giving of the notice and it was not necessary to give a second notice merely because there was a severance of the joint family, before 20th July, 1954, when the suit was actually instituted.
[958 G H] Although the terms of section 80 C.P.C. must be strictly complied with, that does not mean that the terms of the notice 'should be scrutinised in an artificial or pedantic manner.
[960 A] Dhian Singh Sobha Singh & Anr.
vs The Union of India, ; , referred to, 956 State of Andhra Pradesh vs Gundugola Venkata Suryanarayan Garu, ; ; Vellayan Chettiar & Ors.
vs Government of the Province of Madras and Anr.
, A.I.R. 1947, P.C. 197; Government of the Province of Bombay vs Pestonji Ardeshir Wadia & Ors., 76 I.A. 85, distinguished.
(2) On the merits, the appellants had failed to produce reliable oral or documentary evidence to prove that their ancestors had possession over the disputed land for many years.
On the contrary this land was always recognised as Milkiat Sarkar and the respondent State Government was justified in holding it as such.
|
Appeal No. 2322 of 1968.
Appeal by special leave from the order dated October 4, 1968 of the Bombay High Court in Special Civil Application, No. 2053 of 1968.
N. N. Keswani, for the appellant.
R. B. Datar and section N. Prasad, for respondent No. 1.
section P. Nayar, for respondents Nos.
2 to 4.
The Judgment of the Court was delivered by Mitter, J.
This is an appeal by special leave from an order of the Bombay High Court dismissing in limine an application under articles 226 and 227 of the Constitution and refusing to quash the judgment and order of the Assistant Judge at Sangli rendered in Election Petition No. 10 of 1967.
The facts are as follows.
On June 3, 1967 election of councillors to the Sangli City Municipality was held under the Maharashtra Municipalities Act, 1965 (hereinafter referred to as the Act.
The counting 968 of votes took place with regard to Ward No. 25 on June 4, 1967.
According to the election petition, the results were published in the Official Gazette on June 15, 1967 and the petition was filed on June 24, 1967.
The petitioner who was himself a candidate for election from the said ward challenged the election of the appellant before us on several grounds set forth in paragraph 3 of the petition.
The first of these was to the effect that the appellant bad, with the help of his supporters, published an undated pamphlet and circulated the same on a large scale among the voters in Ward No. 25 and that the said pamphlet contained untrue, false and defamatory statements about the petitioner thereby prejudicing the voters generally against him and in particular instigating the Muslim voters to vote against him by arousing their religious sentiments.
Another similar ground based on a defamatory pamphlet dated 30th May 1967 was urged in the petition.
Charges of terrorising voters and securing votes by false personation were also levelled therein.
Statements were made in the petition that the appellant 's name as councillor had been declared in the Official Gazette on June 15, 1967 and the petitioner 's cause of action bad arisen on that date.
The first of these was expressly accepted as correct in the written statement of the appellant and the second remained unchallenged.
The appellant however repelled the charges mentioned above and denied that he was responsible for the publication of any of the impugned pamphlets.
Of the four issues framed at the hearing of the petition, the first was : "whether the petitioner proved that opponent No. 1 who was elected as Municipal Councillor for Ward No. 25 had used malpractices at the time at the election by arousing religious sentiments of the voters and making defamatory statements against the petitioner by publishing pamphlets?" The petitioner gave evidence himself about the allegations in the petition to substantiate the charges raised by him.
The appellant examined himself to contradict the said evidence.
It appears that the petitioner had in the list of witnesses filed by him, mentioned the name of two persons, Hakim Abdul Rahiman Shaikh and Gopal Chintaman Ghugare and that these two persons had attended the court on certain days when they were not examined.
On August 21, 1968 the petitioner made an application before the Judge for issuing summons on these two persons as his witnesses, but the learned Judge rejected that application.
The appellant 's case was closed on the same day and the arguments started on August 22, 1968.
On that date the court adjourned the hearing of the case to August 24, 1968 for 969 recording the evidence of these two witnesses in respect of whom an application had been made by the election petitioner on the previous day.
The order exhibit 36 dated August 22, 1968 tends to show that the learned Judge was persuaded to do so by the mere fact that they were Government servants.
He however recorded that the ends of justice required that these witnesses should be examined.
He fixed August 24, 1968 for further hearing of the matter and directed the issue of summonses to these two persons.
These two persons were examined on the 24th August as court witnesses and thereafter the argument of counsel was resumed and concluded.
By judgment delivered on August 30, 1968 the learned Judge allowed the election petition holding in favour of the petitioner on the first issue.
The appellant before us presented an application to the High Court under articles 226 and 227 of the Constitution for quashing the order of the Judge; but the High Court dismissed the writ petition in limine on October 4, 1968 and the appellant has now come up before this Court by special leave.
Learned counsel for the appellant raised five points before us.
The first point was that the procedure adopted by the trial court was wrong in that the two witnesses who were examined as court witnesses had been cited by the election petitioner earlier and the learned Judge had in the exercise of jurisdiction vested in him refused to issue summonses to them when he was asked to do so on August 21, 1968.
It was urged that having rejected this application, it was not open to the Judge to examine these two persons as court witnesses and this was a serious irregularity which the High Court should have set right by quasbing the order of the Judge based on the evidence of these witnesses.
The second point was that the election petition was filed beyond the period prescribed by the Act and as such it was not maintainable.
The third point was that the first issue which was decided against the appellant was so confusing and misleading that there was no fair trial of the petition to the prejudice of the appellant.
The fourth point was that in any event there was no evidence of corrupt practice of which the appellant could be found guilty.
The fifth point was that the order of the Judge disqualifying the appellant for a period of five years was unduly harsh and ought to be set aside.
With regard to the first point it is to be noted that the case of the election petitioner was that the appellant was guilty of publication of two pamphlets which cast serious aspersions on his character and conduct and prejudiced him materially in the eyes of the voters as a result whereof he lost the election and that the first of these also aroused the religious sentiments of the Muslim voters to his detriment.
The appellant was found guilty of publication of the first pamphlet only.
This was.
signed by 970 six persons.
There was no evidence as to where it was printed or who got it printed.
The evidence adduced by the election petitioner was that the appellant had published all the phmphlets mentioned in the petition and distributed the same amongst the voters and the petitioner had come across the first pamphlet during the process of distribution.
There can be no two opinions about the contents of the pamphlet being defamatory of the election petitioner 's character.
The pamphlet read : "H. K. Kadlaskar, who contests the election from Ward No. 25 is an independent candidate, has been ostracized from the Muslim community and he has no support of the Muslim community and therefore nobody should vote for him." While Kadlaskar was in charge of the management of the Kabarasthan, he was extracting Rs. 12 for allowing the members of Muslim community to bury their dead and had prohibited the burial of the dead bodies of dancing girls and had extracted hundreds of rupees from the persons whose dead were buried there.
He turned the Kabarasthan into a brothel and was trading in illicit liquor for which he was convicted.
Recently he got published a pamphlet in the name of his mistress Noorjahan Bapulal Kavathekar to defame Mohamad Umar Shaikh and he is making some imputations against the private character of Mohmad Umar and Moulana Innan and nobody should vote for this mean minded and anti social person.
In a meeting of the Muslim workers held on 29 4 1967 in the Madina Masjid Hall under the presidentship of M. G. Shaikh it was resolved unanimously that in the place of Shaikh Usman Abdul Bidiwale the Congress ticket should be given to Umar Shaikh, who had the backing of Muslim community and that he did great public service in the past.
So all the voters should cast vote in favour of Mohammad Umar Shaikh whose symbol is a pair of bullocks.
(1) Ramjan Mohiddin Jamadar (Hundekari), Chairman Idgah Committee.
(2) Shaik Abdul Sattar Rahimanbhai Bidiwale, Treasurer, Idgah Fund Committee.
(3) Moulana Hannan, manager of Madrasa e Hidayatul Islam, and member of Madina Masjid (4) Kamalsaheb Babasaheb Shiledar, Chairman of Madina Masjid and member of Idgah Committee (5) Sayyed Amin, member of Madrasa e Hidayatul Islam and Idgah Committee.
(6) Jalaloddin Allabus Sayyad, B.A.LLB., member of Madrasa e Hidayatul Islam.
" The appellant who led evidence on his own behalf denied the publication of the pamphlet and the distribution of it by him as alleged by the petitioner.
Nothing came out in cross examination of the appellant to substantiate the election petitioner 's averment 971 that he was responsible for its distribution.
Of the two witnesses who were examined as court witnesses by the Judge, the witness Gopal Chintaman Ghugare did not say anything material on the point of distribution by the appellant.
He merely said that he had seen people reading the pamphlet but he did not know who had distributed it.
The other witness Hakim Abdul Rahiman Shaikh stated categorically that he had received a copy of the pamphlet on the day previous to the municipal election, that is to say, on June 2, 1967 and he gave full particulars as to how he came to receive it.
He stated that he had attended a prayer meeting at a mosque on the 2nd June and after the Namaj was over the appellant had read over the pamphlet and one Moulana Hannanlent support to the appellant.
In cross examination it was elicited from him that although he had occasion to see the distribution of other pamphlets, he could give no details thereof i.e. either about the person who distributed them or the dates when that was done.
In cross examination of this witness serious accusations were made against his character and probably no exception could have been taken if the Judge hearing the matter had refused to believe him.
However that may be, the learned Judge accepted his testimony and came to the conclusion that the appellant had been personally responsible for the distribution of the first pamphlet and as such found him guilty of a corrupt practice and made an order disqualifying him under the Act from taking part in municipal elections for the next.five years.
It was strenuously argued by learned counsel for the appellant that the recepition of evidence of the two witnesses called as court witnesses vitiated the whole trial and therefore the High Court was not right in refusing to quash the order.
Our attention was drawn to the provisions of O. XVI r. 14 of the Code of Civil Procedure and particularly to the conditions under which the court may examine any person other than a party to the suit and not called as a witness by a party to the suit but of its own motion to give evidence therein.
It was argued that after having turned down the application of the election petitioner on the 21st August for issue of summons to these two persons, the learned Judge clearly went wrong in allowing them to be called as court witnesses.
In this connection we. may note the provisions of section 21 sub section 7 of the Maharashtra Municipalities Act, 1965.
It provides as follows (7) For the trial of such petition, the Judge shallhave all the powers of a civil court including power in respect of the following matters : (a) discovery and inspection; 972 (b) enforcing the attendance of witnesses and requiring the deposit of their expenses; (c) compelling the production of documents; (d) examining witnesses on oath; (e) granting adjournments; (f) reception of evidence on affidavit; and (g) issuing commissions for the examination of witnesses; and the Judge may summon suo motu any person whose evidence appears to him to be material.
The Judge shall be deemed to be a Civil Court, within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898.
" It appears that under this section, the Judge is given powers wider than those given by the Code of Civil Procedure under 0.
16 r. 14 inasmuch as the section does not prescribe any prerequisite to the examination of a person as court witness as envisaged by the Code of Civil Procedure.
In our view, the learned Judge had jurisdiction to call these two persons as witnesses under the provisions of the Act.
We may note that even under the Representation of the People Act, 1951 which does not contain a similar provision it has been held by this Court that "although. . the trial court should be at arms length and the court should not really enter into the dispute as a third party, but it is not to be understood that the Court never has the power to summon a witness or to call for a document which would throw light upon the matter, particularly of corrupt practice which is alleged and is being sought to be proved.
If the Court was satisfied that a corrupt practice has in fact been perpetrated, may be by one side or the other, it was absolutely necessary to find out who was the author of that corrupt practice." (see R. M. Seshadri vs G. Vasanta Pai(1).
In that case, the corrupt practice with which the appellant was charged was having used a large number of motor vehicles for the free conveyance of voters at an election.
The trial Judge examined two witnesses as court witnesses and it is quite clear that but for the evidence of these two persons, it would have been very difficult.
if not impossible, for the Judge to have come to the conclusion he did and find the appellant guilty of corrupt practice.
Although one of the two witnesses so examined had been cited earlier as a witness by one of the parties, he was not (1) ; 973 examined but during the course of the evidence led before the rial court, it became quite clear that the two persons who were called as court witnesses were fully conversant with the engagement of the motor vehicles and the court therefore examined them as court witnesses and on the basis of their evidence, found the appellant guilty of a corrupt practice.
There, this Court had to deal with the provisions of 0.
16 r. 14 and the quotation from that judgment shows that the powers of the court in this respect are of wide amplitude, specially when investigation is being made into allegations about the commission of a corrupt practice.
It may be that in the instant case, if the two persons had not been examined, the Judge might well have decided the issue the other way.
But the Act certainly gave him the power to do so and no exception can be taken to the course adopted by the Judge although it must be recorded that his earlier order refusing to issue summonses to them in the first instance when asked to do so on the 21st August was hardly justifiable.
Probably the learned Judge realised that his order of the 21st August needed recalling.
The appellant would have had a real cause for grievance if he had asked for an opportunity to rebut the evidence of these two witnesses and had been denied the same but this has nowhere been alleged.
On the evidence no exception can be taken to the course adopted by the Judge in deciding the issue against the appellant on the facts and circumstances of this case.
It may be that the evidence which was adduced was not so immaculate that another learned Judge deciding the petition might not have taken a different view.
But it cannot be said that there was no evidence on which the Judge could have come to the conclusion he did, The first point therefore fails.
With regard to the second point, the learned counsel argued by reference to two publications in the Maharashtra Gazette, the one of June 8, 1967 and the other of June 15, 1967 that the first publication having taken place on the 8th June the time limit of ten days fixed under section 21 sub section
(1) of the Act began to run from that date and the petition which was filed on the 24th June was beyond time and should not have been entertained.
It is difficult for us to see why two ' Gazette notifications had become necessary.
One seems to be the verbatim reprint of the other.
The first publication dated 8th June is headed "Maharashtra Government Gazette Extraordinary Official Publication" while the other is headed "Maharashtra Government Gazette Official Publication".
The first bears the date 8th June and the second bears the date 15th June and both start with the sentence "in accordance with section 19(1) of the Maharashtra Municipalities Act, 1965 it is declared that in respect of the Sangh Municipal Council General Elections held on 3rd June 1967, the below mentioned candidates are elected from.
the below mentioned 974 wards for the seats mentioned as against their names".
As a matter of fact, it does not appear that there is any difference between the two Gazettes with regard to the names of the successful councillors.
The appellant might have, if so minded, set up the first Gazette publication as the one fixing the period of limitation in which case the trial Judge would have been required to go into the matter.
But the appellant precluded himself from doing so by his unconditional acceptance of the statements in paragrapbs 1 and 2 of the petition.
If the point had been canvassed before the learned trial Judge, he would certainly have gone into the matter and found out why there were two Gazette Publications and which was the publication to be taken into account for computation of the period of limitation prescribed by section 21 (1) of the Act.
There was no error apparent on the face of the record before the High Court and consequently the jurisdiction under article 226 of the Constitution could not have been exercised on the facts of the case by the issue of a writ of certiorari.
Neither could the High Court have set aside the order of the trial court under article 227 of the Constitution under which the High Court 's power of superintendence is confined to seeing that the trial court had not transgressed the limits imposed by the Act.
On the facts of the case the High Court was not called upon to go into this question.
There is certainly some substance in the grievance raised on behalf of the appellant that the first issue was rather confusing and misleading.
Instead of framing a separate issue with regard to each charge of corrupt practice raised in the petition, the learned Judge, framed the issue in a manner which leaves much to be desired.
For instance he should have framed separate issue with regard to each of the pamphlets.
The issues should further have specified the different heads of corrupt practice committed in respect of each of the pamphlets.
We cannot, however, come to the conclusion that because of the unsatisfactory nature of the issues framed, the whole trial is vitiated.
The appellant knew exactly what points he had to meet.
Evidence was adduced about the publication and distribution of the pamphlets by the election petitioner and contradicted by the appellant.
As we have already stated, although the evidence about the distribution of the pamphlet was meagre and not beyond reproach it was not for the High Court to take the view that the order ought to be quashed on the ground that there was no evidence.
It was urged by learned counsel for the appellant that there was enough material for the court to come to the conclusion that Hakim Abdul Rahiman Shaik was not a person whose veracity could not be depended upon.
There is much that can be said against him but this does not mean that everything deposed to by him should be rejected and when the trial Judge accepted the evidence with regard to the distribution of the pamphlet by the appellant the High Court 975 which was not hearing an appeal could not be expected to take a different view in exercising jurisdiction under articles 226 and 227 of the Constitution and for ourselves, we see no reason to interfere with the order of the High Court.
The fourth point too is not one of substance.
If the distribution of the pamphlet be accepted, there can be no doubt that the appellant was guilty of trying to arouse religious sentiments of the voters of the particular ward a majority of whom were Muslims.
The pamphlet starts off by describing the election petitioner as a person ostracised from the Muslim community.
If this statement was true, naturally any right thinking Muslim would think twice before casting his vote in favour of such a person.
There was also a charge in that pamphlet that he had turned the Kabarasthan into a brothel and was trading in illicit liquor for which was alleged to have been convicted.
In our view, there is no merit in this point raised by the learned counsel.
As regards the last point, it was for the learned Judge to have come to his own conclusion as to the period of disqualification.
The maximum penalty which the Act allowed him to impose was disqualification for six years and we see no reason to take any exception to the disqualification actually imposed.
As noted above, the allegations of corrupt practice were of a serious nature and if the appellant was found guilty of the commission thereof, the period of five years ' disqualification would certainly not be inappropriate.
In the result, therefore, the appeal fails; but in the circumstances of this case, we make no order as to costs.
R.K.P.S. Appeal dismissed.
| IN-Abs | The first respondent challenged the appellant 's election to the Sangli City Municipality held in June 1967 under the Maharashtra Municipalities Act, 1965.
It was alleged that the respondent had published and circulated pamphlets containing defamatory statements against the respondent and in particular instigating Muslim ' voters to vote against him by arousing their religious sentiments.
At the trial of the petition the respondents applied to have two witnesses examined but the Trial Judge rejected the application, Later, however, the same two witnesses were called by the trial judge as court witnesses.
The Trial Court allowed the petition and disqualified the appellant from being a member of a Municipality for five years.
A petition under articles 226 and 227 of the Constitution by the appellant was rejected in limine by the High Court.
In appeal to this Court it was contended inter alia by the appellant (i) that the trial court was wrong in calling as court witnesses the same two witnesses who had been cited as the respondent 's witnesses and having earlier rejected the respondent 's application to call them; (ii) on the evidence the trial court 's finding was not justifiable; (iii) that the result of the election was published in the Gazette on the 8th June as well as 151th June but the limitation of 10 days ran from 8th June and the petition was therefore time barred; (iv) the first issue which was decided against the appellant was confusing and misleading whereby the appellant had been denied a fair trial; (v) the order of the Judge disqualifying the appellant for a period of five years was unduly harsh.
HELD: Dismissing the appeal : (i) Although the trial court 's earlier order refusing to issue summons to the two witnesses was not justifiable, ' under section 21(7) of the Maharashtra Municipalities Act, 1965, the Trial Judge is given powers wider than those given by the Code of Civil Procedure under Order 16, Rule 14, as the section does not prescribe any pre requisite to the examination of a person as a court witness as envisaged by the Code of Civil Procedure.
The trial Judge therefore had jurisdiction to call the two persons as witnesses under the provisions of the Act.
[972 D] R. M. Seshadri vs G. Vasanta Pai, ; , referred to.
(ii) On the evidence, no exception could be taken to the trial Judge deciding the issue against the appellant on the facts and circumstances of the case.
It could not be said that there was no evidence on which the Judge could have come to that conclusion.
When the trial Judge accepted 967 the evidence with regard to the distribution of the pamphlets by the appellant, the High Court, which was not hearing an appeal, could not be expected to take a different view in exercising jurisdiction under articles 226 and 227 of the Constitution and there was no reason shown to this Court to interfere with the order of the High Court.
[975 A] (iii) The appellant could have set up the first Gazette publication as the one fixing the period of limitation in which case the trial.
Judge would have been required to go into the matter.
But the appellant had precluded himself from doing so by his unconditional acceptance of the statement in the petition that the result was published on 15th June.
There was no error apparent on the face of the record before the High Court and consequently he jurisdiction under article 226 of the Constitution could not have been exercised on the facts of the case by the issue of a writ of certiorari.
Neither could the High Court set aside the order of the trial court under article 227 of the Constitution under which the High Court 's power of superintendence is confined to seeing that the trial court had not transgressed the limits imposed by the Act.
On the facts of the case the High Court was not called upon to go into this question.
[974 C D] (iv) It could not be concluded that because of the want of preciseness in the issues framed the whole trial was vitiated.
The appellant knew the points he had to meet.
Although the evidence about the disribution of the pamphlets was not beyond reproach, it was not for the High Court to take the view that the order ought to be quashed on the ground that there was no evidence.
[974 F] (v) The allegations of corrupt practices against the appellant were of a serious nature and if be was found guilty, the period of five years ' disqualification could not be considered inappropriate.
|
Appeals Nos. 575 and 576 of 1966.
Appeals by special leave from the judgment and order dated October 5, 1963 of the Patna High Court in Misc.
Judicial Cases Nos. 1274 and 1275 of 1960.
D.Narasaraju, section K. Aiyar, R. N. Sachthey and B. D. Sharma, for the appellants (in both the appeals).
M.C. Chagla and U. P. Singh, for the respondent (in, both the appeals).
The Judgment of the Court was delivered by Shah, J.
The respondent Ramniklal Kothari carried on busi ness in diverse lines as a partner in four different firms.
He received from time to time income from the different registered firms as his share of profits.
For the assessment year 1955 56 the respondent declared his share of profits from the four firms at Rs. 77,027/ and he claimed an allowance of Rs. 13,283/ being payment of salary and bonus to staff, expenses for maintenance and depreciation of motor car, travelling expenses and interest.
The Income tax Officer, Hazaribagh, allowed the claim for interest as a permissible deduction and disallowed the rest.
In the view of the Income tax Officer since the respondent did not carry on any independent business, the amount, except interest, were not claimable by the respondent on his own account; if at all, the amounts should have been claimed as business ex incurred in the accounts of the four firms.
For the assessment year 1956 57 the respondent declared Rs. 53,540 as his share of the profits 'in the four firms and claimed an aggregate amount of Rs. 19,380 as admissible deduction on various grounds including Rs. 1,956 as interest paid by him.
The Income tax Officer allowed the claim for interest and disallowed the rest of the claim.
The Appellate Assistant Commissioner confirmed the orders of the Income tax Officer.
But the Income tax Appellate Tribunal set aside the orders passed by the Income tax Officer and remanded the cases for examination of the nature of expenditure claimed to have been incurred by the respondent.
In the view of the Tribunal share of the profits received by the respondent from the firms was taxable as business income, and appropriate deductions admissible under section 10(2) of the Income tax Act, 1922, were allowable in commuting the taxable income of the respondent, 862 The Tribunal then referred the following question in the two cases to the High Court of Patna for opinion under section 66(1) of the Indian Income tax Act, 1922: "Whether the expenses incurred by the assessee (who was not carrying on any independent business of his own), in earning income from various firms in which he was a partner, are allowable in law as deductions ?" The High Court of Patna answered the reference in favour of the respondent.
With special leave granted by this Court, these two appeals have been preferred by the Commissioner of Incometax.
Where a person carries on business by himself or in partner ship with others, profits and gains earned by him are income liable to be taxed under section 10 of the Indian Income tax Act, 1922.
Share in the profits of a partnership received by a partner is " profits and gains of business" carried on by him and is on that account liable to be computed under section 10, and it is a matter of no moment that the total profits of the partnership were computed in the manner provided by section 1 0 of the Income tax Act and allowances admissible to the partnership in the computation of the profits and gains were taken into account.
Income of the partnership carrying on business is computed as business income.
The share of the partner in the taxable profits of the registered firms liable to be included under section 23(5)(a)(ii) in his total income is still received as income from business carried on by him.
Counsel for the Commissioner accepted, and in our judgment counsel was right in so doing, that the share of the respondent from the profits of the firm was income from business carried on by the partner.
Business carried on by a firm is business carried on by the partners.
Profits of the firm are profits earned by all the partners in carrying on the business.
In the individual assessment of the partner, his share from the firm 's business is liable to be taken into account under section 10(1).
Being income from business, allowances appropriate under section 10(2) are admissible before the taxable income is determined.
Section 23(5)(a)(ii) provides that the share of the partner in the profits and gains of a registered firm shall be included in the total income of the partner; and section 16(1)(b) requires that salary, interest, commission or other remuneration payable by the firm beside the share in the balance of profits is to be taken into account in determining the total income.
But it is not thereby implied that expenditure Properly allowable in earning the profits, salary, interest, commission or other remuneration is not to be allowed in determining the taxable total income of the partner.
The receipt by the partner is business income for the, purpose of 863 s.10(1), and being business income, expenditure necessary for the purpose of earning that income and appropriate allowances are deductible therefrom in determining the taxable income of the partner.
The legal principles which we have endeavoured to set out are well settled by several decisions.
In Shantikumar Narottam Morarji vs Commissioner of Income tax, Bombay City(1) the High ' Court of Bombay held that it is not correct as a general legal proposition that a, partner in a registered firm is not entitled to claim any deduction against the share of the profits included in his total income, the share having been arrived at on the assessment of the firm with regard to its profits.
It would be open to the partner to claim a deduction provided he satisfies the taxing authority that such deduction represents necessary expenditure, the expenditure being incurred in order to enable him to earn the profits which are being subjected to tax.
In Basantlal Gupta vs Commissioner of Income tax, Madras(2) the High Court of Madras held that in determining the income of an assessee who is a partner, deduction under section 10(2) of the Income tax Act may be made from his share of income in the firm even after the share has been ascertained.
An allowance under section 10(2) will be permissible in proper cases even after the share has been ascertained if the expenditure sought to be deducted was incurred by the partner solely and exclusively for the purpose of earning his share in the income of the firm.
In a case decided by the High Court of Patna in Jitmal Bhu ramal vs Commissioner of Income tax, Bihar & Orissa(3) a Hindu undivided family which was a partner in a firm claimed that the salary paid to its members for attending to the business of the firm was incurred as a matter of commercial expediency and for the purpose of earning profits from the partnership business.
The Court held that in the assessment of the Hindu undivided family the expenditure would be properly claimed as an allowance under section 10(2) (xv) of the Indian Income tax Act, 1922.
Jitmal Bhuramars case(4) was brought in appeal to this Court : see Jitmal Bhuramal vs Commissioner of Income tax, Bihar & Orissa(4).
It was observed by this Court that a Hindu undivided family will be allowed to deduct salary paid to members of the family, if the payment is made as a matter of commercial or business expediency, but the service rendered must be to the family in relation to the business of the family.
Counsel for the Commissioner relied upon an unreported judgment of the High Court of Calcutta in Messrs. Iswardas Subh (1) (2) (3) (4) (sc.) 864 karan vs Commissioner of Income tax, West Bengal(1).
In that case a Hindu undivided family entered into a partnership agreement with third parties for the purpose of carrying on a rice mill business.
It was not possible for any of the members of the family to attend personally to that business and, therefore, the family employed a Munim to look after its interest.
Salary paid to the Munim was claimed as an allowance in determining the taxable income out of the share of the partnership income.
Chakravartti, C.J., delivering the judgment of the Court was of the opinion that since the Munim did not look after the interest of the assessee in the firm 's business, but only as a servant of the assessee, the amount paid to the Munim was not an allowance admissible in determining the taxable income.
In any event, observed the learned Chief Justice, the profits which have come to the assessee from the partnership have come as net profits, and after they have so come, there cannot be any further deduction on account of expenditure incurred not by the partnership but by the partner who received the share or incurred on any account whatsoever.
We are unable to agree with the view expressed by the learn ed Chief Justice.
The case was apparently not fully argued and counsel for the assessee conceded that the amount paid to the Munim was not a permissible deduction in assessing the taxable income of the family out of the share of the profits received from the firm.
The appeals fail and are dismissed with costs.
One hearing fee.
V.P.S. Appeals dismissed.
| IN-Abs | The respondent was carrying on business in diverse lines as a partner in four different firms.
For the assessment years 1955 56 and 1956 57 he declared his share of profits from the four firms and claimed deductions made up of salary and bonus to staff, expenses for maintenance and depreciation of motor car, travelling expenses and interest.
The Incometax Officer and the Appellate Assistant Commissioner allowed only the claim for interest as a permissible deduction.
The Tribunal set aside the orders and remanded the cases for the two years for an examination of the nature of expenditure claimed to have been incurred by the respondent, as, in its view, deductions admissible under section 10(2) of the Incometax Act, 1922 were allowable in computing the taxable income of the respondent.
On the question, whether expenses incurred by the respondent (who was not carrying on any independent business of his own), in earning income from the various firms in which he was a partner, were allowable in law as deductions, the High Court held in favour of the respondent.
In appeal to this Court, HELD : Section 23 (5) (a) (ii) of the Income tax Act, 1922 provides that the share of the partner in the profits and gains of a registered firm shall be included in the total income of the partner.
The share so received by the partner is 'profits and gains of business ' carried on by him and is on that account liable to be computed under section 10.
The receipt being business income for the purpose of section 10(1) expenditure necessary for the purpose of earning that income and allowances appropriate under section 10(2) are deductible therefrom in determining the taxable income of the partner.
The facts that in computing the total profits of the partnership allowances admissible to the partnership in the computation of its profits and gains were taken into account, in the manner provided by section 10, or that section 16(1)(b) requires that salary, interest, commission or other remuneration payable by the firm besides the share in the balance of profit is to be taken into account, do not imply that in determining the taxable income of the partner, expenditure incurred by the partner in earning the profits, salary, interest.
commission or other remuneration is not to be allowed.
[862 C.H] Shantikumar Narottam Morarji vs Commissioner of Income tax, Bombay City, , Jitmal Bhuramal vs Commissioner of Incometax, Bihar & Orissa, and Basantlal Gupta vs Commissioner of lncome tax, Madras, , approved.
M/s. Iswardas Subhkaran vs Commissioner of Income tax West Bengal, Income tax Reference No. 38 of 1952 dated June 2, 1953, of the Calcutta High Court, disapproved.
|
Appeal No. 53 of 1969.
Appeal by special leave from the judgment and decree dated November 1, 1968 of the Rajasthan High Court in Civil Regular Second Appeal No. 487 of 1962.
C. B. Agarwala, Rameshwar Nath and Mahinder Narain, for the appellant.
B. R. L. Iyengar, section K. Mehta and K. L. Mehta, for the respondents.
The Judgment of the Court was, delivered by Bachawat, J.
This appeal arises out of a suit for ejectment by a landlord against a tenant.
The defendant is the tenant of six shops belonging to Thakurji Shri Shri Dwarkadheeshji installed in the temple at Chaura Raasta, Jaipur.
Devendra Prasad is the adhikari or manager of the temple.
He gave a notice to the defendant to quit the shop on August 1, 1957.
On February 28, 1958, the deity and Devendra Prasad filed a suit against the defendant claiming recovery of possession of the six shops and Rs. 1,006/ on account of arrears of rent.
The suit was governed by the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (Act No. XVII of 1950).
The plaintiffs asked for ejectment of the defendant on the ground that he had sublet the six shops.
The other grounds of ejectment were not established, and it is not necessary to mention them.
The courts below concurrently found that Devendra Prasad as ' the adhikari of the temple was entitled to give the notice to quit and to maintain the suit.
The trial court hold that (1) all the six shops were sub let by the defendant; (2) the sub leting was with the permission of 991 the landlord and (3) the notice to quit was waived by acceptance of rent subsequently accrued due.
Accordingly, the trial court dismissed the suit so far as it claimed ejectment and passed a decree for Rs. 1,006 on account arrears of rent.
The plaintiff filed an appeal against the decree.
The District Judge, Jaipur City, dismissed the appeal.
The plaintiffs filed a second appeal against the decree.
The High Court held that (1) there was on integrated tenancy of all the six shops; (2) four shops were sub let with the permission of the landlord; (3) two shops were sub let without the permission of the landlord towards the end of 1947; (4) the tenant having sub let a part of the premises without the permission of the landlord the ground of eviction under clause (e) of section 13(1) was made out and the landlord was entitled to a decree for possession of all the six shops and (5) there was no waiver of the notice to quit.
Accordingly, the High Court allowed the appeal and passed a decree for eviction of the defendant from the six shops.
The present appeal has been field by the defendant after obtaining special leave.
Counsel for the appellant conceded that there was no waiver of the notice to quit by acceptance of rent or otherwise.
The points arising 'for determination in this appeal are : (1) was there one integrated tenancy of all the six shops ? (2) were the two sub let without the permission of the landlord towards the end of 1947 ? and (3) is the sub letting a ground of ejectment under clause (e) of section 13 (1) of the Rent Act ? As to the first question, we find that four shops were let to the defendant in 1944 and the other two shops on the northern side of the staircase of the temple were let to him in 1945.
The rent of the four shops was Rs. 1501 per month.
The rent of the other two shops was Rs. 65/ per month.
In paragraph 5 of the plaint it was pleaded that in 1953 the defendant agreed to pay a consolidated rent of Rs. 251/8/ per month for all the six shops and to vacate them by July 31, 1957.
In paragraph 5 of the written statement the defendant denied this contract and alleged that in 1953 there was only an enhancement of rent.
The first two courts found that in 1953 there was no new contract of tenancy, that there was only an increase of rent and that the other terms and conditions of the tenancy remained unaltered.
This finding was not vitiated by any error of law.
A mere increase or reduction of rent does not necessarily import the surrender of the existing lease and the grant of a new tenancy.
As stated in Hill and Redman 's Law of Landlord and Tenant, 14th ed., article 385, p. 493 : "But a surrender does not follow from a mere agreement made during the tenancy for the reduction 992 or increase of rent, unless there is some special reason to inter a new tenancy, where for instance, the parties make the change in the rent in the belief that tile old tenancy is at an end.
" In the present case the first two courts on a review of the entire evidence came to the conclusion that the increase of rent did not import a new demise.
This finding of fact was binding on the High Court in second appeal.
The High Court was in error in holding that there was one, integrated tenancy of the six shops.
As to the second question the defendant denied that he sub let the two shops.
The courts below concurrently found that this denial was false and that he sub let the two shops to his brotherin law Ram Gopal.
There was no pleading nor any issue that the sub letting of the two shops was made with the permission of the landlord.
It was not the case of the defendant at any stage of the trial that he had obtained the permission of the landlord for sub letting the two shops.
In the absence of any pleading and any issue on his joint the first two courts were in error in holding that the two shops were sub let with the permission of the landlord.
The permission of the landlord for the sub letting is not established from the mere fact that the landlord realised rent after the sub letting in the absence of proof hat the landlord had then clear knowledge of the sub lease.
The date of the sub letting of the two shops is not mentioned in the plaint.
In the absence of any pleading and any issue on his question the High Court 'was in error in recording the finding that the two shops were sub let towards the end of 1947 after the Jaipur Rent Control Order 1947 came into force.
We can only say that the sub letting was sometime after 1945.
As to the third question : section 13(1) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 provides : "Notwithstanding anything contained in any law or contract, no Court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied " The sub section then sets out several grounds of ejectment under twelve main heads.
Clause (e) mentions the following ground : " that the tenant has assigned, sub let or otherwise parted with the possession of, the whole or any part of the promises without the permission of the landlord.
" 993 The appellant 's contention is that sub letting before the Act came into force is not within the purview of clause (e).
The High Court held that the two shops were sub let after October 15, 1947 when the Jaipur Rent Control Order, 1947 came into force, that the sub letting was a ground of ejectment under paragraph 8 ( 1 ) (b) (ii) of that Order and that the tenant 's liability for eviction on this ground continued after the promulgation of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950.
With regard to this line of reasoning it is sufficient to say that the plaintiffs have not established that the sub letting was after October 15, 1947.
The case must be decided on the footing that on the date of the sub letting, no Rent Control legislation was in force.
The question whether a subletting before the coming into force of the Act is within the purview of clause (e) of section 13(1) depends upon the construction of that clause.
The relevant words are "has sub let".
The present perfect tense contemplates a completed event connected in some way with the present time.
The words take within their sweep any sub letting which was made in the past and has continued up to the present time.
It does not matter that the sub letting was either before or after the Act came into force.
All such sub lettings are within the purview of clause (e).
Sections 26 and 27(1) of the Act throw considerable light on the construction of section 13(1).
They are as follows : "26.
No decree for the eviction of a tenant from any premises in areas to which this Act extends for the time being, passed before the date of commencement of this Act shall in so far as it relates to the eviction of such tenant be executed against him, as long as this Act, remains in force therein, except on any of the grounds mentioned in section 13 and under the circumstances specified in this Act.
27(1) In all suits for eviction of tenants from any premises in areas to which this Act has been extended undersection 2, pending on the date specified in the notification under that section, no decree for eviction shall be passed except on one or more of the grounds mentioned in section 13 and under the circum stances specified in this Act.
" Section 26 bars the execution of a decree for eviction passed before the commencement of the Act except on any of the grounds mentioned in section 13 and under the circumstances specified in the Act.
Likewise, section 27(1) bars the passing of a decree for eviction in a pending suit except on one or more of the grounds under 994 section 13 and under the circumstances specified in the Act.
Sections ' 26 and 27(1) clearly contemplate that the grounds of eviction mentioned in section 13 may have arisen before the Act came into force.
The argument that section 1 3 ( 1 ) (e) takes away vested rights and should not be given a retrospective effect is based on fallacious assumptions.
Apart from the Rent Act the landlord is entitled to eject the tenant on the expiry of the period mentioned in the notice to quit.
Section 13(1) protects the tenant from eviction except in certain specified cases.
If one of the grounds of ejectment is made out the tenant does not qualify for,protection from eviction.
We find no reason for presuming that section 13 (1) (e) is not intended to apply to sub lettings before the Act came into force.
If the "tenant has sub let" the premises without the permission of the landlord either before or after the coming into force of the Act, he is not protected from eviction under section 13 ( 1 ) (e), and it matters not that he had the right to sub let the premises under section 108(j) of the Transfer of Property Act.
The plaintiffs have thus established the ground of eviction under section 1 3 (1 ) (e) with regard to the two shops on the northern side of the staircase of the temple.
With regard to the four other shops the courts below concurrently found that they were sublet with the permission of the land lord.
In our opinion, the plaintiffs are entitled to a decree for ejectment of the defendant from the two shops and the claim for eviction from the other four shops should be dismissed.
In the result, the appeal is allowed in part.
The decree passed by the High Court for eviction of the defendant from the four shops is set aside and the suit in so far as it claims eviction from the four shops is dismissed.
The decree passed by the High Court for eviction of the defendant from the other two shops on the northern side of the staircase of the temple mentioned in paragraph 4 of the plaint is affirmed.
Parties will pay and bear their own costs throughout, in this Court and in all the courts below.
The defendant will have one month 's time to vacate the two shops.
Y.P. Appeal allowed in part.
| IN-Abs | The respondent landlord let out to the appellant four shops and later one let out to him two more shops.
The respondent filed a suit alleging that subsequent to the letting of the shops, by a contract, the rent was consolidated and increased and that the shops were sub let by the appellant, so the appellant be ejected from all the six shops under section 13 (1) (e) of the Rajasthan Premises (Control of Rent and Eviction) Act.
The appellant denied the contract and denied the subletting altogether.
The trial court dismissed the suit, and the first appellate court affirmed the decree.
Both these courts concurrently found that new contract of tenancy was not created, it was only an increase of rent, the other terms of the tenancy remained unaltered, and that the two shops were sub let but with the permission of the landlord.
The High Court, in second appeal, reversed the decree of the courts below, and held that there was one integrated tenancy of all the shops, that the four shops were sub let with the permission of the landlord, but the later two were sub let without permission, and that having sub let a part of the premises without the permission, the decree for possession of all the shops must be passed.
appeal to this Court, the appellant tenant contended that (i) the tenancy of all the six shops were not one integrated; (ii) two shops were not sublet without the permission of the landlord; and (iii) the sub letting was before the Jaipur Rent Control Order, 1947 came into force, which was repealed and continued by the promulgation of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, and therefore ejectment could not be claimed under section 13(1) (e) of the Act.
HELD : The appellant could not be ejected from four shops, but ought to be ejected from the two shops.
(i) A mere increase or reduction of rent does not necessarily import the surrender of the existing lease and the grant of a new tenancy.
In the present case the first two courts on a review of the entire evidence came to the conclusion that the increase of rent did not import a new demise.
This finding of fact was binding on the High Court in second appeal and it erred in holding that there was one integrated tenancy of the six shops.
[991 H 992 B] (ii) In the absence of any pleading and any issue on the question of sub letting, the first two courts were in error in holding that the two shops were sub let with the permission of the landlord.
The permission of the landlord for the sub letting cannot be established from the mere fact that the landlord realised rent after the sub letting in the absence of proof that the landlord had then clear knowledge of the sub lease.
[992 D] The date of the sub letting of the two shops is not mentioned in the plaint.
In the absence of any pleading and any issue on this question the 990 High Court was error in recording the finding that the two shops were sub let towards the end of 1947 after the Jaipur Rent Control Order 1947 came into force.
It can only be said that the sub letting was sometime after 1945.
[992 E] (iii) Section 13(1)(e) of the Act was intended to apply to sub letting before the Act came into force.
If the tenant had sub let the premises without the permission of the landlord either before or after the coming into force of the 'Act, he was not protected from eviction under section 13(1) (e), and it matters not that he had the right to sub let the premises under section 108(j) of the Transfer of Property Act.
The present perfect tense, by words "has sub let" in section 13(1)(e) of the Act contemplates a completed event connected in some way with the present time.
The words take within their sweep any sub letting which was made in the part and has continued up to the present time.
It did not matter that the subletting was either before or after the Act came into force.
Further sections 26 and 27(1) of the Act contemplated that grounds of eviction mentioned in section 13 may have arisen before the Act came into force.
[993 D 994 A]
|
Appeal No. 2456 of 1966.
Appeal from the judgment and order dated January 27, 1964 of the Patna High Court in Misc.
Judicial Case No. 299 of 1958.
D. Narsaraju, section K. Aiyar, R. N. Sachthey and B. D. Sharma, for the appellant.
C. K. Daphtary, Narain Rao, V. D. Narayan and D. Goburdhun, for the respondent.
The Judgment of the Court was delivered by Shah, J.
Indetermining the taxable income of the respondent firm for the assessment year 1948 49 the Income tax Officer added to the income returned a sum of Rs. 1,60,000 as 'undisclosed receipts '.
The order was confirmed in ' appeal by the Appellate Assistant Commissioner, and by the Tribunal.
The Income tax Officer had in the meantime commenced a proceeding for the levy of penalty and in exercise of the power under section 28 (1) (c) of the Indian Income tax Act, 1922 he directed the respondent firm to pay Rs. 60,000 as penalty.
The Appellate Assistant Commissioner in appeal confirmed the order.
The Income tax Appellate Tribunal rejected the contention of the respondent that the order imposing penalty upon the firm after the original firm was dissolved was without jurisdiction.
The Tribunal referred at the instance of the respondent firm the following question to the High Court of Patna for opinion; "Whether on the facts and in the circumstances of the case the imposition of penalty under section 28 (1) (c) of the Indian Income tax Act, upon the petitioner firm (respondent) as constituted at the time of levy of penalty was legal and valid?" The High Court called for a supplementary statement of the case and pursuant thereto the Tribunal submitted a statement on the specified points raised by the order of the High Court that (1)The firm which carried on the business during the calendar year 1947 was dissolved on July 7, 1951 when Butto Kristo Roy, one of the partners, died.
(2)During the previous year 1947 there was no instrument of partnership in existence, but the terms of the oral partnership were the same as set out in the partnership deed dated October 17, 1949.
985 (3) The business of the firm was continued with effect from July 8, 1951 by the new firm as successor to the business of the old firm.
The terms of the partnership were the same as set out in the deed dated October 17, 1949 and the partners and their shares were also the same except that Baidyanath Roy took the place of Butto Kristo Roy.
(4) With effect from April 28, 1952, the business was carried on by a partnership constituted by Baidyanath Roy and Bijali Kanti Roy under an instrument dated August 27, 1952.
There was no dissolution of the firm, which was carrying on the business; there was only a change in the constitution of the old firm from April 28, 1952.
The High Court held that penalty could be legally levied only upon the original firm constituted in the account year relevant to the assessment year 1948 49 and not upon the new firm constituted under the deed dated April 27, 1952.
The Tribunal and the High Court approached the problem before them on the assumption that the source of the power of the Income tax Officer to impose a penalty was in section 44 of the Indian Income tax Act, 1922.
In so assuming, in our judgment, they were in error.
Section 44 of the Indian Income tax Act, 1922, as it stood at the relevant date, in so far as it is material provided : "Where any business, profession or vocation carried on by a firm has been discontinued every person who was at the time of such discontinuance a partner of such firm shall, in respect of the income, profits and gains of the firm be jointly and severally liable to assessment under Chapter IV and for the amount of tax payable and all the provisions of Chapter IV shall, so far as may be, apply to any such assessment".
The section is fairly plain : it applies to cases of discontinuance of the business of a firm and not where there is dissolution of the firm but not discontinuance of its business.
In section M. section Karuppiah Pillai vs Commissioner of Income tax, Madras(1), in dealing with the effect of section 44 of the Indian Income tax Act, 1922, before it was amended by Act 7 of 1939, a Full Bench of the Madras High Court observed "This section (s.44) only applies when there has been discontinuance of the, business, The section (1) 911.T.R. I. 986 says that if a business is discontinued the partners shall nevertheless be jointly and severally liable for the profits which had been earned".
In Shivram Poddar vs Income tax Officer, Central Circle II, Calcutta and Anr.(1) this Court examined the scheme of section 44 (before it was amended by the Finance Act of 1958) and its inter relation with the provisions of sections 25(1), (2), 26(1), (2) and 28 (1) (c) in some detail.
The Court observed : "Section 44 operates in two classes of cases; where there is discontinuance of business, profession or vocation carried on by a firm or association, and where there is dissolution of an association.
It follows that mere dissolution of a firm without discontinuance of the business will not attract the application of s.44 of the Act. .
The reason for this distinction appears from the scheme of the Income tax Act in its relation to assessment of the income of a firm.
A firm whether registered or unregistered is recognised under the Act as a unit of assessment (sections 3 and 2(2)), and its income is computed under clauses (3) and (4) of section 23.
as the income of any other unit.
Section 25(1) relates to assessment in cases of a discontinued business whether the business is carried on by a firm or by any other person. . .
Then there is the special provision relating to assessment when at the time of making an assessment it is found that a change has occurred in the constitution of a firm, or a firm has been newly constituted : section 26(1).
The date on which the change has occurred is immaterial; it may be in the year of account, in the year of assessment or even after the close of the year of assessment, The Income fax Officer has under section 26(1) to assess the firm as constituted at the time of making the assessment, but the income, profits and gains of the previous year have, for the purpose of inclusion in the total income of the partners, to be apportioned between the partners who were entitled to receive the same.
Subsection (2) of section 26 relates to assessment in the case of succession to a person (which expression includes a firm) carrying on a business by another person in such capacity. . .
Discontinuance of business has the same connotation in section 44 as if has in section 25 of the Act; it does not (1) 987 cover mere change in ownership or in the constitution of the unit of assessment.
Section 44 is, therefore, attracted only when the business of a firm is discontinued, i.e. when there is complete cessation of the busi ness and not when there is a change in the ownership of the firm, or in its constitution, because by reconstitution of the firm, no change is brought in the personality of the firm, and succession to the business and not discontinuance of the business results. .
But the Income tax Act recognises a firm for purposes of assessment as a unit independent of the partners constituting it; it invests the firm with a personality which survives reconstitution.
A firm discontinuing its business may be assessed in the manner provided by section 25(1) in the year of account in which it discontinues its business; it may also be assessed in the year of assessment.
In either case it is the assessment of the income of the firm.
Where the firm is dissolved, but the business is not discontinued, there being change in the constitution of the firm, assessment has to be made under section 26 (1), and if there be succession to the business assessment has to be made under section 26(2).
The provisions relating to assessment on reconstituted or newly constituted firms, and on succession to the business are obligatory.
Therefore, even when there is change in the ownership of the business carried on by a firm on reconstitution or because of a new constitution, assessment must still be made upon the firm.
When there is succession, the successor and the person succeeded have to be assessed each in respect of his actual share.
This scheme of assessment fumishes the reason for omitting reference to dissolution of a firm from section 44 when such dissolution is not accompanied by discontinuance of the business".
Two other cases decided by this Court may be briefly noticed.
In C. A. Abraham vs Income tax Officer, Kottayam and Another(1) there was discontinuance of the business of the firm consequent upon dissolution of the firm, section 44 was held applicable, and it was held that imposition or penalty being a process of assessment the.
Income tax Officer was not incompetent to levy penalty after discontinuance of the business.
In Commissioner of Income tax, Madras and Another vs section V. Angidi Chettiar (2) this Court held that the Income tax Officer could exercise under section 44 read with section 28 power to impose penalty upon the firm which discontinued its business on dissolution caused by the death of one of the partners (1) (2) 988 Section 44 therefore only applied to those cases in which there had been discontinuance of the business and not to case, in which the business continued after reconstitution of the firm or there was succession to the business.
Cases of reconstitution of the firm or succession to the business of the firm are covered by sections 26(1) and (2).
"Assessment" in Chapter IV of the Income tax Act, 1922, includes a proceeding for imposition of penalty.
Section 28 of the Act authorises the Income tax Officer, if satisfied, in the course of any proceeding under the Act that any person has, inter alia, concealed the particulars of his income or deliberately furnished inaccurate particulars of such income, to direct that such person shall pay by way of penalty, a sum of money not exceeding the amount specified therein in addition to the incometax and super tax payable by such person.
The expression " person" includes for the purpose of section 28, a firm registered or unregistered.
If there is reconstitution of the firm, by virtue of section 26, the Income tax Officer will in imposing the penalty proceed against the firm.
If there is discontinuance of the business penalty will be imposed against the partners of the firm.
Before the Tribunal and the High Court the case was argued on the footing that section 44 alone was applicable.
Whether under the terms of section 26 read with section 28, penalty may be imposed upon the new partners for the failure of the partners of the firm constituted in the year of account relating to the assessment 1948 49 was never investigated.
The question raised by the Tribunal is in terms sufficiently comprehensive to embrace an enquiry whether partners of the firm in existence on July 30, 1954, were liable to be assessed to penalty as successors in interest of the partners of the original firm in existence in the year of account relating to the assessment year 1948 49.
But in a reference under section 66 of the Indian Income tax Act, 1922, only the question which was either raised or argued before the Tribunal may be answered, even if the language of the question framed by the Tribunal may apparently include an enquiry into other matters which could have been, but were not, raised or argued.
The appeal fails and is dismissed.
In the circumstances of the case there will be no order as to costs in this Court.
G.C. Appeal dismissed.
| IN-Abs | The respondent was a firm on which penalty under section 28(1)(c) of the Indian Income tax Act, 1922 was imposed by the Income tax Officer in respect of the assessment year 1948 49.
At the time when the penalty was imposed the constitution of the firm had changed though the same business was continued by the reconstituted firm.
The appeals filed by the respondent before the Appellate Assistant Commissioner and the Tribunal were rejected.
In reference the High Court held that penalty could be legally imposed upon the original firm constituted in the account year relevant to the assessment year 1948 49 and not upon the new firm constituted in 1952.
In coming to their conclusions the Tribunal as well as the High Court proceeded on the assumption that the source and power of the Income tax Officer to impose a penalty was in section 44 of the Indian Income tax Act, 1922.
In appeal by the Revenue to this Court, HELD : (i) Section 44 only applies to those cases in which there has been discontinuance of the business and not to cases in which the business continues after the reconstitution of the firm, or there is succession to the business.
Cases of reconstitution of the firm or succession to the business are covered by sections 26(1) and (2).
The Tribunal and the High Court were therefore in error in relying on section 44 of the Act.
[988 A; 985 D E] (ii) Assessment in Ch.
IV of the Income tax Act 1922 includes a proceeding for imposition of penalty and the expression 'person ' includes for the purpose of section 28 a firm registered or unregistered.
If there is reconstitution of the firm by virtue of section 26, the Income tax Officer will in imposing the penalty proceed against the firm.
If there is discontinuance of the business penalty will be imposed against the partners of the firm.
[988 B D] In the present case, however, this Court could not go into the question whether penalty on the respondent firm was leviable under the terms of sections 26 and 28 even though the question raised by the Tribunal was in terms sufficiently comprehensive to embrace the enquiry.
In a reference under section 66 of the Indian Income tax Act, 1922, only the question which was either raised or argued before the Tribunal may be answered, even if the language of the question framed by the Tribunal may apparently include an enquiry into other matters which could have been but were not, raised or argued.
[988 D F] Shivram Poddar vs Income tax Officer, Central Circle II, Calcutta & Anr., , C. A. Abraham vs Income tax Officer, Kottayam and I.T.R. 425 and Commissioner of Income tax, Madras & Anr.
V. section V. Angidi Chettiar, , applied.
section M. section Karuppiah Pillai vs Commissioner of Income tax Madras, , approved.
|
Appeal No. 661 of 1966.
Appeal by special leave from the judgment and order dated December 8, 1964 of the Punjab High Court, Circuit Bench at Delhi in Civil Revision No. 92 D of 1962.
S.C. Manchanda, section K. Mehta, and K. L. Mehta, for the appellant.
Bishan Narain, I. section Sawhney and M. R. Chhabra, for the respondents.
The Judgment of the Court was delivered by Grover, J.
This is an appeal by special leave from a judgment of the Punjab High Court (Circuit Bench at New Delhi) dismissing a petition for revision directed against the concurrent judgments of the courts below dismissing the action for eviction filed by the appellant against the respondents from a premises on Ajmal Khan Road, Karol Bagh, New Delhi.
The facts may be succinctly stated.
By means of a rent deed dated February 13, 1950 the appellant, who is the owner of the suit premises inducted as a tenant Labha Mal Arora, now deceased, who was a practising Advocate.
Clauses (2) and (6) of the rent deed were in the following terms "2.
That the tenant agrees to use the property for his residence.
6.That the tenant shall not assign or sublet the above said property or any part thereof without the written consent of the landlord, or utilise the Property for any purpose other than that mentioned above.
" On the same date a letter exhibit D 2 was written by the appellant to the late Labha Mal Arora saying: "As per our oral talk regarding your tenancy for my house No. 6/64, I have no objection your having your professional office "alongwith residence" there provided it is not inconsistent with the provisions of Delhi Im provement Trust Act.
" It appears and it has been so found, that Labha Mal Arora who had his office at a different place shifted the same to the suit premises where he was residing with his family.
He died in the year 1952.
Till 1952 the premises were being used only for residence by his sons and widow.
in August 1957 Chamanlal respondent No. 1, who qualified himself as a legal practioner, started having an office in the premises.
It would appear that the other 11 son respondent No. 3 also started practising as a lawyer in the same premises some time later.
On 21 11 1957 the appellant served a notice on the sons and widow of the deceased Labha Mal Arora that it has been learnt that they had constructed a double storeyed building in Naiwala Karol Bagh and that since the suit premises were required bona fide for the personal residence of the appellant they should shift to their house and vacate the rented premises.
This was followed by a second notice to the same effect.
As the possession of the premises was not delivered the appellant instituted a suit for ejectment against the respondents under the Delhi & Ajmer Rent Control Act, 1952 (hereinafter called the old Act).
Two grounds were taken for seeking eviction.
One was that the respondents had built a large residential house and were liable to be ejected under section 13(1)(h) of the old Act.
The second was that the premises were required bona fide for personal use.
It may be mentioned that the second ground was abandoned in the trial court.
The suit was contested by the respondents on the ground that the late Labha Mal Arora had taken the premises on rent for residence as well as for an office for professional purposes and the premises had been used as residence cum office.
For this reason it was asserted that the construction of a residential house by the respondents did not furnish a ground for eviction.
During the pendency of the suit the Delhi Rent Control Act, 1958 (hereafter called the new Act) came into force.
Section 14(1)(h) which was equivalent to section 13(1)(h) of the old Act contained the word 'suitable ' which was omitted as it appeared before the word "residence" in section 13(1)(h); the relevance and significance of that omission will be noticed presently.
The trial court relied inter alia on the letter Ext.
D 2 and the statement of Chaman Lal respondent according to whom two rooms were used by the late Labha Mal Arora as his office and another one room was being used by his clerk and held that the premises had been let for "residence cum business purposes".
The argument that the late Labha Mal Arora had only been granted a licence to use the premises for professional purposes and that the licence came to an end on his death, was repelled.
It was found that the respondents had built a residential house, and since the premises in suit had been let out to their predecessor in interest not for residential purpose alone but also for business purposes no eviciton could be ordered under the provisions of section 13(1)(h) of the old Act or section 14(1) (h) of the new Act.
The Additional Senior Sub Judge dismissed the appeal preferred by the appellant in agreement with the decision of the trial court.
The following portion from his judgment relating to the finding with regard to the purpose for 12 which the premises had been let out to the late Labha Mal Arora may be reproduced: "It is in evidence that prior to taking the premises in suit on rent from the appellant, Labha Mal deceased, was having his professional office as an advocate in Sadar Bazar, Delhi, and on taking the premises in suit on rent he had shifted his office in the suit premises.
This fact is fully supported by the statement of Shri Chaman Lal, respondent No. 1, and the notices, exhibit D.W. 9/1, and D.W. 9/2 issued by Shri Labha Mal from the suit premises.
Shri Chaman Lal has stated that out of the five rooms of the suit premises, two rooms were ' used by his deceased father as office.
From the above also 'it is proved that the suit premises were let by the appellant to Shri Labha Mal deceased for residence cum business purposes.
" On the question of the ambit and scope of section 13(1)(4) _of the old Act the learned Judge expressed the opinion that it would be unreasonable to hold that a tenancy which had been created both for purposes of residence and carrying on a profession could be successfully terminated merely by showing that the tenants had acquired a suitable residence.
The appellant approached the High Court on the revisional side.
J. section Bedi, J. considered the rent deed Ext.
P 3 and the letter exhibit D 2 as also the other evidence and came to the same conclusion at which the courts below had arrived.
Reliance was placed on the additional fact that when the suit was instituted the premises were being used by Chamal Lal both for purposes of residence and office.
Before dealing with the contentions raised on behalf of the appellant it is necessary to refer to section 13(1)(h) of the old Act and section 14 (1) (h) and section 57 of the new Act.
Section 13 (1) (h) of the old Act contained a provision that if the Court was satisfied inter alia that the tenant had whether before or after the commencement of the Act built, acquired vacant possession of or been allotted a suitable residence it could order ejectment.
In section 14(1)(h) of the new Act the only change that was made was that the word "suitable" before the word "residence" was omitted.
Under section 57 of the new Act notwithstanding the repeal of the old Act all suits and other proceedings pending under that Act were to be continued and disposed of in accordance with provisions of the old Act.
According to the first proviso to subsection (2) the court or other authority "shall have regard to the provisions of this Act.
,, In Karam Singh Sobhi & Anr.
vs Shri Pratap Chand 13 & Anr.
(1) this Court had to consider the effect of what was contained in section 57 of the new Act.
It was held that the effect of the first proviso to section 57(2) was that pending proceedings would continue under the old Act with this addition that where the new Act had slightly modified or clarified the previous provisions, those modifications and clarifications would govern the case.
Similarly in Brij Kishore & Others vs Vishww Mitter Kapur & Others(1) it was laid down that the first proviso to section 57(2) of the new Act must be read harmoniously with the substantive provisions of subs.
(2) and the only way of harmonising the two was to read the expression "shall have regard to the provisions of this ' Act" as merely meaning that where 1 the new Act had slightly modified or clarified the previous provisions those modifications and clarifications should be applied.
These words did not take way what was provided by sub section
(2) and ordinarily the old Act would apply to pending proceedings.
It has been contended by Mr. section C. Manchanda for the appel lant that the new section would be applicable as no radical departure has been made in section 14(1) (h) by omission d the word "suitable" and that there was only slight modification or clarification of the previous provision, namely, section 13(1) (h).
In our opinion whether section 1 3 (1 ) (h) of the old Act or section 14 ( 1 ) (h) of the new Act is applied the result, as will be presently seen, will be the same in the instant case.
Coming to the question whether the suit premises were taken by the late Labha Mal Arora for residence only or for residence as well as for use as office for carrying on his professional work of a legal practitioner, it may be observed that the concurrent finding of the court below is that the premises had been taken for residential cum business or professional purposes.
That finding being one of the fact must be accepted as final.
It would, therefore, seem that the decision of this Court in Dr, Gopal Das Verma vs Dr. section K. Bhardwaj and Another(") can be appositely applied.
In that case it was held that a tenant could not be ejected under section 13(1)(h) because the tenancy of premises let out or used for residence and carrying on of profession could not be terminated merely by showing that the tenant had acquired a suitable residence.
There the premises had been let out to a doctor who was an ear, nose and throat specialist.
It was found that the premises had been used by the tenant for professional as well as residential purposes with the consent of the landlord.
The case, therefore fell outside section 13 (1) (e) but even under section 1 3 ( 1 ) (h) eviction could not be ordered.
This is what was said in that connection.
(1) (2) A. I. R. (52) (3) ; at p. 685.
14 "If the premises from which ejectment is sought are used not only for residence but also for profession how could section 13(1)(h) come into operation? One of the, purposes for which the tenancy is acquired is professional use, and that cannot be satisfied by the acquisition of premises which are suitable for residence alone, and it is the suitability for residence alone which is postulated by section 13(1)(h).
Therefore, in our opinion, it would be unreasonable to hold that the tenancy which has been created or used both for residence and profession can be successfully terminated merely by showing that the tenant has acquired a suitable residence.
" In the above case this Court further held that section 2(g) of the old Act which defined the word "Premises" referred to three kinds of user to which the premises can be put to i.e. residence, commerce and any other purpose.
This necessarily included residence and commerce combined.
Since it was shown that the premises had been let both for residence and for commercial purposes it did not follow that the premises ceased to be premises under section 2(g); they continued to be premises under the last clause ' of that provision.
The definition of 'premises ' in the new Act is contained in section 2(1) and it is the same as in section 2(g) of the old Act.
The word 'tenant ' is defined by section 2 (1 ) of the, new Act to mean "any person by whom or on whose account or behalf the rent of any premises is or but for a ' special contract would be, payable . .
Having regard to section 14(1)(h) of the new Act the original tenantin the present case was one who was in occupation of premises which were used for a composite purpose, namely, residence and profession.
There could, therefore, be no eviction merely by acquisition of vacant possession of a residence by such a tenant and the position would be the same with regard to his heirs and legal representatives, the present respondents.
It is quite clear that section 14(1)(h) can apply only where a tenant is in occupation of a premises which are only residential; then alone he would have to go if he acquires or has residential accommodation of his own.
Mr. Manchanda has next contended that the decision of this Court in Dr. Gopal Das Verma 's case(1) is distinguishable because it appeared from various facts that the dominant intention was to use the premises as a nursing home.
He submits that in the present case the dominant intention was to use the premises as residence and the late Labha Mal Arora was merely given permission or licence which was of a personal nature to have his (1) [1962] 2 S.C.R.678 at p.685.
15 office as well there.
We are unable to find that any test of dominant intention was applied 'in Dr. Gopal Das Verma 's case(1).
The position in England is different where premises are let partly for business purposes and partly for residence.
There the statutory provisions lay down that where a dwelling is let partly for business purposes and partly for residence, the Rent Act applies to the whole(1).
Moreover where there is no covenant as to user and the question is what user was contemplated, the Court will infer what use was contemplated by the tenancy agreement; the test was "the main purpose" or "predominant intention" or "the prevailing contemplation" or "a preponderating contemplation" for the letting.
(2 ) (ibid, p. 69).
We are unable to derive any assistance from the English cases on the point. ' Lastly Mr. Manchanda sought to raise the question of the permission contained in the letter Ext.
D 2 being a licence which was personal to late Labha Mal Arora and which should be deemed to have come to an end on his death.
It is further pointed out that after his death for a number of, years the respondents used the premises purely for residence.
In view of the finding of the courts below that the premises had been let to the predecessorin interest of the respondents for residence cum business or profession, this submission cannot be entertained.
For all the above reasons this appeal fails and it is dismissed with costs.
, Y.P. Appeal dismissed, (1) ; at p. 685.
| IN-Abs | The predecessor in interest of the respondents who was a practising advocate, took on rent certain premises for residence.
He could with the written consent of the appellant landlord set up his professional office also there.
After the death of their predecessor in interest the respondents lived in the premises and sometimes later two of the respondents qualified a.% lawyers and started having an office in the premises.
The appellant filed a suit for the respondents ' eviction on the ground that the respondents had acquired a "suitable residence" by building a large residential house and were liable to be ejected under section 13 (1) (h) of the Delhi & Ajmer Rent Control Act, 1952.
During the pendency of the suit the Delhi Rent Control Act, 1958 came into force and under section 14(1) (h) of the Act, the word "suitable" was omitted.
The trial Court dismissed the suit holding that since the premises had been let out to their predecessor in interest not for residential purpose alone but also for business purposes, no eviction could be ordered under the provisions of section 13 (1) (h) of the old Act or section 14(1) (h) of the new Act.
The first appellate Court, and the High Court in revision affirmed the order of the trial Court.
Dismissing the appeal this Court, HELD:Assuming, that section 14(1)(h) of the new Act, applied, having regard to its language, the original tenant in the present case was one who was in occupation of premises which were used for a composite purpose, namely, residence and profession.
There could, therefore, be no eviction merely by acquisition of vacant possession of a residence by such a tenant and the position would be the same with regard to his heirs and legal representatives, the present respondents.
Section 14(1) (h) can apply only where a tenant is in occupation of premises which are only residential; then alone he would have to go if he acquires or has residential accommodation of his own.
[14 F] The decision of this Court in Dr. Gopal Das Verma vs Dr. section K. Bhardwaj ; applied apprositely to this case.
The test of dominant intention with regard to the use of the premises was not applied in Dr. Gopal Das Vermals case.
[13 F G; 15A] In view of the finding of the courts below that the premises had been let to the predecessor in interest of the respondents for residence cum profession, the submission that the permission was personal to the predecessor in interest of the respondent, which came to an end on his death could not be entertained.
|
Appeal from a judgment and decree of the Patna High Court dated 25th March, 1949, in A.S. 2280 of 1948 reversing an appellate _decree of the Subordinate Judge in Suit No. 62 of 1948.
Baldev Sahay (T. K. Prasad, with him) for the appel lant.
N.C. Chatterjee (H.J. Umrigar, withhim) for the respond ent. 1951.
February 2.
The judgment of the Court was deliv ered by FAZL ALL J.
This is an appeal from a judgment and decree of the High Court of Judicature at Patna reversing the appellate decree of a Subordinate Judge in a suit insti tuted by the respondents.
The facts of the case are briefly these.
The respondents have been in occupation as a monthly tenant of several blocks of premises belonging to the appellants at a monthly rental of Rs. 112.
The rent for the months of March, April and May, 1942, having fallen into arrears, they remitted it along with the rent for June, on 28th June, 1947, by means of two cheques.
As the appellants did not accept the cheques, on 4th August, 1947, the re spondents remitted the amount subsequently by postal money order.
On 12th August, 1947, the appellants, maintaining that there was non payment of rent and hence the respond ents were liable to be evicted, under section 1 1 (1) (a) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act III of 1947), applied to the House Control ler for the eviction of the respondents from the premises.
Section 11 (1) (a) of the Act runs as follows : "Notwithstanding anything contained in any agreement or law to the contrary and subject to the provisions of section 12, where a tenant is in possession of any building, he shall not be liable to be evicted therefrom, whether in execution of a decree or otherwise, except 147 (a) in the case of a month to month tenant, for non payment of rent or breach of the conditions of the tenancy, or for subletting the building or any portion thereof with out the consent of the landlord, or if he is an employee of the landlord occupying the building as an employee, on his ceasing to be in such employment ;" On 30th August, 1947, the respondents, whose money order had in the meantime been returned by the appellants, deposited the rent up to the month of June in the Office of the House Controller.
Notwithstanding this deposit, the House Controller passed an order on the both November, directing the eviction of the respondents by 10th May, 1948, and holding that they had made themselves liable to eviction by reason ' of non payment of rent.
The order of the House Controller was upheld by the Commissioner on appeal on the 27th April, 1948, and thereupon the respondents filed the present suit in the Patna Munsif 's Court for a declaration that the order of the ContrOller dated the 10th November, 1947, was illegal, ultra vires and without jurisdiction.
The suit was dismissed by the Munsif and his decree was upheld on appeal, but the 'High Court decreed the suit holding that the order of the Rent Controller was without jurisdiction.
The appellants were thereafter granted leave to appeal by the High Court, and they have accordingly preferred this appeal.
The High Court has delivered a somewhat elaborate judg ment in the case, but it seems to us that the point ' aris ing in this appeal is a simple one.
The main ground on which the respondents have attacked the order of eviction passed by the House Controller is that in fact there was no non payment of rent, and, since no eviction can be ordered under the Bihar Act unless non payment is established, the House 'Controller had no jurisdiction to order eviction.
On the other hand, one of the contentions put forward on behalf of the appellants is that there was non payment of rent within the meaning of that expression as used in the Act, since the rent was not paid as and when it 148 fell due.
It was pointed out that the rent for the month of March became due in April and the rent for April became due in May, but no step was taken by the respondents to pay the arrears until the 28th June, 1947.
It appears that at the inception of the tenancy, the respondents had paid one month 's rent in advance, and it had been agreed between them and the appellants that the advance rent would be adjusted whenever there was default in payment of rent for full one month.
It was however pointed out that the advance payment could be adjusted only for one month 's rent, but, in the present case, the rent for three months had become due, and, since in a monthly tenancy the rent is payable for month to month, the rent for each month becoming due in the subse quent month, non payment of that rent at the proper time was sufficient to attract the provisions of section 11(1) (a) of the Act.
The appellants also raised a second contention, namely, that having regard to the scheme of the Act, the House Controller was fully competent to decide whether the condition precedent to eviction had been satisfied, anal once that decision had been arrived at, it could not be questioned in a civil court.
This contention was accepted by the first two courts, and the first appellate court dealing with it observed as follows : "But the Buildings Control Act has authorised the Con troller to decide whether or not there is nonpayment of rent and it is only when he is satisfied that there has been nonpayment of rent that he assumes jurisdiction.
If the question of jurisdiction depends upon the decision of some fact or point of law, and if the court is called upon to decide such question, then such decision cannot be collater ally impeached (vide 12 Patna 117).
In my opinion when the Controller assumed the jurisdiction on being satisfied that there was non payment of rent and proceeded to pass an order of eviction.
I think the Civil Court can have no jurisdic tion to challenge the validity of such order.
" The High Court did not however accept this view, and after referring to section 111 of the Transfer of 149 Property Act, proceeded to propound its own view in these words: "Regard being had to the circumstances in which the Act under consideration was enacted and its object, as stated in the preamble as being 'to prevent unreasonable eviction of tenants ' from buildings, it would seem that the expres sion 'non payment of rent ' in section 11 in the context in which it is used must be given an interpretation which would have the effect of enlarging the protection against determi nation of a tenancy enjoyed by a tenant under the ordinary law.
The Legislature, therefore, by enacting that a tenant shall not be liable to be evicted 'except for nonpayment of rent ' should be held to have intended to protect a tenant from being evicted from a building in his possession for being a defaulter in payment of rent, if he brings into Court all the rent due from him before the order of his eviction comes to be passed .
If, as contended for on behalf of the respondents, section 11 of the Act were to be construed as entitling a landlord to apply for eviction of a tenant on the ground of irregular payment of rent amounting to ' non payment ' of rent and as empowering the Controller to determine as to whether irregular payment of rent amounts to non payment of rent within the meaning of sub section (1)of section 11, and subsection (3) of section 18 were to be construed as making the decision of the Controller on this question of law a final one, it will appear that not only this Act will have conferred a right upon the landlord very much in excess of the right that he enjoys under the ordinary law in the matter of determination of tenancies, but that it will have conferred very much larger power on the Controller than that possessed by the Civil Courts under the ordinary law in the matter of passing decrees for eviction of tenants.
The principle of law and equity on which relief against forfei ture for ',non payment of rent ' is based, will have been completely abrogated, and the protection of a tenant in possession of a building instead of being enlarged will 150 have been very much curtailed.
A construction of these provisions, which is calculated to bring about these conse quences, cannot and is not in accordance with the circum stances to which this Act was intended to apply and indeed cannot be accepted.
The contention of Mr. Lalnarain Sinha on behalf of the respondent that the circumstances disclosed in the petition raised the question for determination by the Controller whether a case of non payment of rent in law was established, and his decision of that question, even if wrong in law, is not liable to be questioned in the Civil Court must be over ruled.
" It seems to us that the view taken by the High Court is not correct.
Section 11 begins with the words "Notwithstand ing anything contained in any agreement or law to the con trary," and hence any attempt to import the provisions relating to the law of transfer of property for the inter pretation of the section would seem to be out of place.
Section 11 is a self contained section, and it is wholly unnecessary to go outside the Act for determining whether a tenant is liable to be evicted or not, and under what condi tions he can be evicted.
It clearly provides that a tenant is not liable to be evicted except on certain conditions, and one of the conditions laid down for the eviction of a month to month tenant is non payment of rent.
Sub section (8) (b) of section 11 provides that the "Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the building" and if he is not so satisfied he shall make an order rejecting the application.
Section 16 empowers the Controller to make enquiries and inspections and to summon and enforce the attendance of witnesses and compel the production of documents in the same manner as is provided in the Code of Civil Procedure.
Section 18 pro vides that any person aggrieved by an order passed by the Controller may within 15 days of the receipt of such order by him, prefer an appeal to the Commissioner of the Divi sion, and it also prescribes the procedure for the hearing of the appeal.
Sub section (3) 151 of this section states that "the decision of the Commission er and subject only to such decision, an order of the Con troller shall be final, and shall not be liable to be ques tioned in any Court of law whether in a suit or other pro ceeding by way of appeal or revision.
" The Act thus sets up a complete machinery for the investigation of those matters upon which the jurisdiction of the Controller to order eviction of a tenant depends, and it expressly makes his order final and subject only to the decision of the Commis sioner.
The Act empowers the Controller alone to decide whether or not there is non payment of rent, and his deci sion on that question is essential before an order can be passed by him under section 11.
Such being the provisions of the Act we have to see whether it is at all possible to question the decision of the Controller on a matter which the Act clearly empowers him to decide.
The law on this subject has been very lucidly stated by Lord Esher M.R. in The Queen vs Commissioners for Special Purposes of the Income Tax(1), in these words : "When an inferior court or tribunal or body, which has to exercise the power of deciding facts, is first estab lished by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body.
It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise.
There it is not for them conclu sively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction.
But there is another state of things which may exist.
The legislature may intrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do (1) , at .319.
20 152 something more.
When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none.
In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legis lature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide without any appeal being given, there is no appeal from such exercise of their jurisdiction.
" On the same lines are the following observations of Sir James Colville in The Colonial Bank of Australasia vs Wil lan(1), which is a case dealing with the principles on which a writ of certiorari may be issued : "Accordingly, the authorities. establish that an adju dication by a Judge having jurisdiction over the subject matter is, if no defect appears on the face of it, to be taken as conclusive of the facts stated therein; and that the Court of Queen 's Bench will not on certiorari quash such an adjudication on the ground that any such fact, however essential, has been erroneously found.
" There can be no doubt that the present case falls within the second category mentioned by Lord Esher, because here the Act has entrusted the Controller with a jurisdiction, which includes the jurisdiction to determine whether there is non payment of rent or not, as well as the jurisdiction, on finding that there is nonpayment of rent, to order evic tion of a tenant.
Therefore, even if the Controller may be assumed to have wrongly decided the question of non payment of rent, which by no means is clear, his order cannot be questioned in a civil court.
It seems to us that on this short ground this appeal must succeed, and we (1) , at p. 443.
153 accordingly allow the appeal, set aside the judgment and decree of the High Court and restore the decree of the courts below.
The appellants will be entitled to costs throughout.
Appeal allowed.
| IN-Abs | Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, has entrusted the Controller with a jurisdiction, which includes the jurisdiction to determine whether there is non payment of rent or not, as well as the jurisdiction, on finding that there is non payment of rent, to order eviction of a tenant.
Therefore, even if a Controller has wrongly decided the question wheth er there has been non payment of rent, his order for evic tion on the ground that there has been non payment of rent cannot be questioned in a civil court.
Queen vs Commissioners for Special Purposes of Income Tax (21 O.B.D. 313) and Colonial Bank of Australasia vs Willan (L.R. P.C. 417) relied on. 146
|
il Appeals Nos. 213A and 213B of 1953.
Appeals by Special Leave against the Judgment and Order dated the 24th June, 1953, of the Election Tribunal, Ludhiana, in Election Petition No. 153 of 1952.
C. K. Daphtary, Solicitor General for India, (Harbans Singh Doabia and Rajinder Narain, with him) for the appellant in Civil Appeal No. 213A. Tilak Raj Bhasin and Harbans Singh for respondent No. 2 in Civil Appeal No. 213A and the appellant in Civil Appeal No. 213B. Naunit Lal for respondents Nos. 3 and 19 in both the appeals.
May 21.
The Judgment of the Court was delivered by BOSE J.
These are two appeals against the decision of the Election Tribunal at Ludhiana.
The contest was for two seats in the Pun jab Legislative Assembly.
The constituency is a double member constituency, one seat being general and the other reserved for a Scheduled Caste.
The first respondent is Atma Ram.
He was a candidate for the reserved seat but his nomination was rejected by the Returning Officer at the scrutiny stage and so he was unable to contest the election.
The successful candidates were Rattan Anmol Singh, the appellant in Civil Appeal No. 213 A of 1953, for the general seat and Ram Prakash, the appellant in Civil Appeal No. 213 B of 1953 for there served.
Atma Ram filed the present election petition.
The Election :Tribunal decided in 483 his favour by a majority of two to one and declared the whole election void.
Rattan Anmol Singh and Ram Prakash appeal here.
The main question we have to decide is whether the Returning Officer was right in rejecting the petitioner 's nomination papers.
The facts which led him to do so are as follows.
The Rules require that each nomination paper should be "subscribed" by a proposer and a seconder.
The petitioner put in four papers.
In each case, the proposer and seconder were illiterate and so placed a thumb mark instead of a signature.
But these thumb marks were not "attested".
The Returning Officer held that without "attestation" they are invalid and so rejected them.
The main question is whether he was right in so holding.
A subsidiary question also arises, namely, whether, assuming attestation to be necessary under the Rules, an omission to obtain the required attestation ' amounts to a technical defect of an unsubstantial character which the Returning Officer was bound to disregard under section 36(4) of the Representation of the People Act, 1951 (XLIII of 1951).
Section 33(1) of the Act requires each candidate to "deliver to the Returning Officer. a nomination paper completed in the prescribed form and subscribed by the candidate himself as assenting to the nomination and by two persons referred to in sub section (2) as proposer and seconder.
" Sub section (2) says that "any person whose name is registered etc. may subscribe as proposer or seconder as many nomination papers as there are vacancies to be filled. .
The controversy centers on the word "subscribed" which has not been defined in the Act.
The prescribed nomination form referred to in subsection (1) of section 33 is to be found in Schedule II.
In this form we have the following: "9.
Name of the proposer 12.
Signature of the proposer 484 13.
Name of the seconder. . . . . . 16.
Signature of the seconder.
" The Oxford English Dictionary sets out thirteen shades of meaning to the word ',subscribe", most of them either obsolete or now rarely used.
The only two which can have any real relation to the present matter are the following: 1. "To write (one 's name or mark) on, originally at the bottom of a document, especially as a witness or contesting party; to sign one 's name to.
" This meaning is described as "rare." 2. "To sign one 's name to; to signify assent or adhesion to by signing one 's name; to attest by signing." This appears to be its modern meaning, and is also one of the meanings given to the word "sign", namely "to attest or confirm by adding one 's signature; to affix one 's name to (a document) late." One also finds the following in Stroud 's Judicial Dictionary, 3rd edition: "Subscribe.
(1) 'Subscribe ' means to write under something in accordance with prescribed regulations where any such exist But though this is the strict primary meaning of the word, it may sometimes, e.g., in the attestation of a will, be construed as 'to give assent to, or to attest ' or 'written upon "(3) 'Subscription is a method of signing; it is not the only method '; a stamped, or other mechanical impression of a signature is good, in the case of electioneering papers. " It is clear that the word can be used in various senses to indicate different modes of signing and that it includes the placing of a mark.
The General Clauses Act also says that " 'sign ' with reference to a person who is unable to write his name, includes 'mark ' But this is subject to there being nothing repugnant in the subject or context of the Act.
In our opinion, the crux of the matter lies there.
We have to see 485 from the Act itself whether "sign" and "subscribe" mean the same thing and whether they can be taken to include the placing of a mark.
The majority decision of the Tribunal holds that "sign" and "subscribe" are not used in the same sense in the Act because a special meaning has been given to the word I sign" and none to the word "subscribe", therefore, we must use "subscribe" in its ordinary meaning; and its ordinary meaning is to "sign" but not to "sign" in the special way prescribed by the Act but in the ordinary way; therefore we must look to the General Clauses Act for its ordinary meaning and that shows that when it is used in its ordinary sense it includes the making of a mark.
We agree with the learned Chairman of the Tribunal that this is fallacious reasoning.
The General Clauses Act does not define the word "subscribe" any more than the Representation of the People Act, and if it is improper to exclude the special meaning given to " sign " in the Representation of the People Act because the word "sign " is defined and not " subscribe," it is equally improper to import the special definition of " sign " in the General Clauses Act because that also defines only "sign" and not "subscribe" and also because the " subject " and " context " of the Representation of the People Act show that the writing of a signature and the making of a mark are to be treated differently.
The learned counsel for the respondent analysed the Act for us and pointed out that the word " subscribe " is only used in Chapter I of Part V dealing with the Nomination of Candidates while in every other place the word " sign " is used.
We do not know why this should be unless, as was suggested by the learned Solicitor General, the Legislature wished to underline the fact that the proposer and seconder are not merely signing by way of attesting the candidate 's signature to the nomination form but are actually themselves putting the man forward as a suitable candidate for election and as a person for whom they are prepared to vouch, also that the candidate 's signature imports more than a mere vouching for the accuracy of the 486 facts entered in the form.
It imports assent to his nomination.
We think the learned Solicitor General is probably right because section 33 speaks of "a nomination paper completed in the prescribed form and subscribed by the. candidate himself as assenting to the nomination." But however that may be, it.is evident from the form that " signatures are required.
It is also evident from the definition of sign " that the Legislature attached special importance to the fact that in the case of illiterate persons unable to write their names it is necessary to guard against misrepresentation and fraud by requiring that their signatures should be formally authenticated in a particular way.
A special statutory cloak of protection is thrown around them just as the ordinary law clothes pardanish in women and illiterate and ignorant persons and others likely to be imposed on, with special protective covering.
Now it is to be observed that section 2 calls itself an interpretation " section.
It says " (1) In this Act, unless the context otherwise requires. . . . . . . . . (k) 'sign ' in relation to a person who is unable to write his name means authenticate in such manner as may be prescribed.
" It is evident then that wherever the, element of signing " has to be incorporated into any provision of the Act it must be construed in the sense set out above.
Therefore, whether " subscribe " is a synonym for " sign " or whether it means " sign " plus something else, namely a particular assent, the element of " signing " has to be present: the schedule places that beyond doubt because it requires certain " signature*.
" We are consequently of opinion that the " signing," whenever a " signature " is necessary, must be in strict accordance with the requirements of the Act and that where the signature cannot be written it must be authorised in the manner prescribed by the Rules.
Whether this attaches exaggerated importance to the authorisation is not for us to decide.
What is beyond 487 dispute is that this is regarded as a matter of special moment and that special provision has been made to meet such cases.
We are therefore bound to give full affect to this policy.
Now if " subscribe " can mean both signing, so called,, and the placing of a mark (and it is clear the word can be used in both senses), then we feel that we must give effect to the general policy of the Act by drawing the same distinction between signing, and the making of a mark as the Act itself does in the definition of "sign.
" it is true the word "subscribe" is not defined but it is equally clear, when the Act is read as ' a whole along with the form in the second schedule, that "subscribe" can only be used in the sense of making a signature and as the Act tells us quite clearly how the different types of " signature " are to be made, we are bound to give effect, to ft.
In the case of a person who is unable to write his name his " signature " must be authenticated in " such manner as may be pres cribed.
" The prescribed manner is to be found in rule 2(2)of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951.
It runs as follows : " For the purposes of the Act or these rules,, a person who is unable to write his name shall, unless otherwise expressly provided in these rules, be deemed to have signed an instrument or other paper if he has, placed a mark on such instrument or other paper in the presence of the Returning Officer or the presiding officer or such other officer as may be specified in this behalf by the Election Commission and such officer on being satisfied as to his identity has attested the mark as being the mark of such person.
" In view of this we are clear that attestation in the prescribed manner is required in the case of proposers and seconders who are not able to write their names.
The four nomination papers we are concerned with were not " signed " by the proposers and seconders in the usual way by writing their names, and as their marks are not attested it is evident that they have not been " signed ", in the special way which the Act 488 requires in such cases.
If they are not " signed " either in one way or the other, then it is clear that they have not been " subscribed " because " subscribing " imports a "signature" and as the Act sets out the only kinds of "signatures" which it will recognise as II signing" for the purposes of the Act, we are left with the position that there are no valid signatures of either a proposer or a seconder in any one of the four nomination papers.
The Returning Officer was therefore bound to reject them under section 36(2)(d) of the Act because there was a failure to comply with section 33, unless he could and should have had resort to section 36(4).
That sub section is as follows.
The Returning Officer shall not reject any nomination paper on the ground of any technical defect which is not of a substantial character.
" The question therefore is whether attestation is a mere technical or unsubstantial requirement.
We are not able to regard it in that light.
When the law enjoins the observance of a particular formality it cannot be disregarded and the substance of the thing must be there.
The substance of the matter here is the satisfaction of the Returning Officer at a particular moment of time about the identity of the person making _a mark in place of writing a signature.
If the Returning Officer had omitted the attestation because of some slip on his part and it could be proved that he was satisfied at the proper time, the matter might be different because the element of his satisfaction at the proper time, which is of the substance, would be there, and the omission formally to record the satisfaction could probably, in a case like that, be regarded as an unsubstantial technicality.
But we find it impossible to say that when the law requires the satisfaction of a particular officer at a particular time his satisfaction can be dispensed with altogether.
In our opinion, this provision is as necessary and as substantial as attestation in the cases of a will or a mortgage and is on the same footing as the II subscribing " required in the case of the candidate himself If there is no signature and no mark the form would have to be rejected and their 489 absence could not be dismissed as technical and unsubs tantial.
The "satisfaction " of the Returning Officer which the rules require is not, in our opinion, any the, less important and imperative.
The next question is whether the attestation can be compelled by the persons concerned at the scrutiny stage.
It must be accepted that no attempt was made at the presentation stage to satisfy the Returning Officer about the identity of these persons but evidence was led to show that this was attempted at the scrutiny stage.
The Returning Officer denies this, but even if the identities could have been proved to his satisfaction at that stage it would have been too late because the attestation and the satisfaction must exist at the presentation stage and a total omission of such an essential feature cannot be subsequently validated any more than the omission of a candidate to sign at all could have been.
Section 36 is mandatory and enjoins the Returning Officer to refuse any nomination when there has been " any failure to comply with any of the provisions of section 33. . .
The only jurisdiction the Return ing Officer has at the scrutiny stage is to see, whether the nominations are in order and to hear and decide objections.
He cannot at that stage remedy essential defects or permit them to be remedied.
It is true he is not to reject any nomination paper on the ground of any technical defect which is not of a substantial character but he cannot remedy the defect.
He must leave it as it is.
If it is technical and unsubstantial it will not matter.
If it is not, it cannot be set right.
We agree with the Chairman of the Election Tribunal, that the Returning Officer rightly rejected these nomination papers.
The appeals are allowed with costs and the order of the Election Tribunal declaring the elections of the two successful candidates to be wholly void is set aside.
The election petition is dismissed, also with costs.
| IN-Abs | Under section 33(1) of the Representation of the People Act, 1951, each nomination paper should be "subscribed" by a proposer and a seconder.
Where the proposer and the seconder of a nomination paper (as in the present case) are illiterate and so place thumb marks instead of signatures and those thumb marks are not attested, the nomination paper is invalid as attestation in the prescribed manner in such a case is necessary because of rule 2(2) of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951, which requires it.
Signing, whenever signature is necessary, must be in strict accordance with the requirements of the Act and where the signature cannot be written it must be authorised in the manner prescribed by the Rules.
62 482 Attestation is not a more technical or unsubstantial requirement within the meaning of section 36(4) of the Act and cannot be dispensed with.
The attestation and the satisfaction must exist at the presentation stage and a total omission of such an essential feature cannot be subsequently validated at the scrutiny stage any more than the omission of a candidate to sign at all could have been.
Section 36 of the Act is mandatory and enjoins the Returning officer to refuse any nomination when there has been "any failure to comply with any of the provisions of section 33."
|
Appeal No. 347 of 1966.
Appeal by special leave from the judgment and order dated December 11, 1963 of the Allahabad High Court in second Appeal No, 3809 of 1958.
1008 C. B. Agarwala, O. P. Rana and Ravindra Rana, for the appellants.
Denial Latifi and M. 1.
Khowaja, for respondent No. 1.
The Judgment of the Court was delivered by Grover, J.
This is an appeal by special leave from a judg ment of the Allahabad High Court in which the principal question for determination is whether section 9 of the Indian , hereinafter called the "Act", which came into force on December 30, 1955, would be applicable to a suit which was pending on that date.
Respondent No. 1 was born on July 3, 1934.
He went to Pakistan in October 1950.
In March 1953 he obtained a visa from the Indian High Commission in Pakistan for coming to India.
He came to India on July 22, 1953.
On July 20, 1954 the period of authorised stay expired and respondent No. 1 applied for permanent settlement in India.
He, however. filed a writ petition in the High Court on July 15, 1954 but the same was dismissed on February 10, 1955 and respondent No. 1 was directed to file a suit.
He instituted a suit on May 6, 1955.
He claimed that he was born in India of parents who were residing here and that he was a minor when he was persuaded by two muslim youths to accompany them on a trip to Pakistan.
He went there without any intention to settle there permanently.
Later on he made efforts to return but due to certain restrictions he was unsuccessful.
He had no alternative but to obtain a passport from the Pakistan authorities in order to come to India.
He had thus never changed his nationality and continued to remain a citizen of India.
He sought a permanent injunction res training the Union of India, the State of U.P., District Magistrate, Kanpur and the Superintendent of Police.
Kanpur.
who were impleaded as defendants from deporting him.
The suit was contested and on the, pleadings of the parties the appropriate issues were framed.
The learned Munsif held that respondent No. 1 had gone to Pakistan for settling there permanently and had ceased to be an Indian citizen.
The suit was dismissed.
Respondent No. 1 appealed to the First Additional Civil Judge, Kanpur.
The Teamed Judge was of the view that respondent No. 1 had gone to Pakistan when he was a minor and when his father, who was his guardian, was in India.
By his departure to Pakistan, respondent No. 1 could not change his nationality.
Even on a consideration of the evidence it could not be held that he had shifted to Pakistan with the intention of settling there permanently.
His appeal was allowed and a permanent injunction as prayed was issued.
The Union of India and other appellants preferred an appeal to the High 1009 Court.
Before the High Court a preliminary objection was taken that the civil court had no jurisdiction to try the question whether respondent No. 1 had acquired the citizenship of Pakistan which matter had to be referred to the Central Government under Rule 30 of the Citizenship Rules framed under the Act.
This objection was repelled in view of another decision of the High Court according to which section 9 of the Act and Rule 30 could not operate retrospectively and affect pending litigation.
Before the High Court the finding that respondent No. 1 did not go to Pakistan with the intention of settling there permanently was not challenged by the appellants.
The High Court was inclined to agree with the lower appellate court that so long as respondent No. 1 was a minor he could not change his Indian domicile because his parents were domiciled in this country.
The High Court proceeded to say that since respondent No. 1 had spent one year in Pakistan after he had ' obtained majority it was necessary to investigate whether he had acquired, during that period, the citizenship of Pakistan.
An appropriate issue was framed and remitted to the lower appellate court for its determination.
The appellate court held that respondent No. 1 had not acquired the citizenship of Pakistan since it was not legally possible for him to do so for the reason that according to laws of Pakistan he could become a major only on attaining the age of twenty one.
On December 11, 1963 the High Court disposed of the appeal of the present appellants by dismissing it in view of the findings which were in favour of respondent No. 1.
Learned counsel for the appellants had contended before us that the civil court had no jurisdiction to decide the question of citizenship after the enforcement of the Act towards the end of the year 1955 in view of the provisions of Rule 30 of the Citizenship Rules 1956 promulgated in exercise of the Dower conferred by section 1 8 (2) (h) of the Act.
Section 9 is in the following terms "section 9(1) Any citizen of India who by naturalisation, registration or otherwise voluntarily acquires, or has at any time between the 26th January 1950 and the commencement of this Act, voluntarily acquired the citizenship of another country, shall upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India : Provided that nothing in this sub section shall apply to a citizen of India who during any war in which India may be engaged, voluntarily acquires the citizenship of another country, until the Central Government otherwise directs.
1010 (2) If any question arises as to Whether, when or how any person has acquired the citizenship of another country, it shall be determined by such authority in such manner and having regard to such rules of evidence, as may be prescribed in this behalf.
" Rule 30 provides: "Authority to determine acquisition of citizenship of another country. (1) If any question arises as to whether, when or how any person has acquired the citizenship of another country, the authority to determine such question shall, for the purpose of section 9(2) by the Central Government.
The Central Government shall in determining any such question have due regard to the rules of evidence.
specified in Schedule III.
" The validity of the provisions of the Act and the Rules is no longer open to challenge. 'It has not been disputed by learned counsel for respondent No. 1 that after the enforcement of the Act and promulgation of Rule 30 the only authority which is competent to determine whether citizenship of Pakistan has been acquired by him is the Central Government.
But it has been strenuously urged that the suit in the present case had been instituted prior to the date of enforcement of the Act and therefore respondent No. 1 was entitled to get this question determined by the Courts and not by the Central Government.
In other words section 9 of the Act cannot be given 'retrospective operation so as to be made applicable to pending proceedings.
Thus the first point which has to be decided is whether section 9 either expressly or by necessary implication has been made applicable to or would govern pending proceedings.
The language of sub section
(1) is clear and unequivocal and leaves no room for doubt that it would cover all cases where an Indian citizen has acquired foreign nationality between January 26, 1950 and its commencement or where he acquires such nationality after it ; commencement.
The words "or has at any time between the 26th January 1950 and the, commencement of this Act.
voluntarily acquired the citizenship of another country" would become almost redundant if only prospective operation, is given to section 9 (1) of the Act.
This according to the settled rules of intepretation cannot be done.
It must be remembered that Article 9 of the Constitution provides that no person shall be a Citizen of India by virtue of article 5 or be deemed to be a citizen of India by virtue of article 6 or article 8 if he has voluntarily acquired the citizenship of any foreign State.
, This. means that if prior to the commencement of the Constitution a person ' had voluntarily acquired the citizenship of any foreign State he was not entitled ' to ' 'claim the citi 1011 zenship of India by virtue of articles 5 and 6 or 8.
This article thus deals with cases where the citizenship of a foreign State had been acquired by an Indian citizen prior to the commencement of the Constitution (vide Izhar Ahmed Khan vs Union of India) (1).
Article 11, however, makes it clear that Parliament has the power to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.
The Parliament could thus regulate the right of citizenship by law.
As pointed out in the above decision of this Court it would be open to the Parliament to affect the rights of citizens and the provisions made by the Parliamentary statute cannot be impeached on the ground that they are inconsistent with the provisions contained in other Articles, in Part II of the Constitution.
The Act has been enacted under the powers of the Parliament preserved by article 11 in express terms.
The Parliament had also legislative competence under Entry 17, List I of Seventh Schedule.
It could thus make a provision about the forum where the question as to whether a person had acquired citizenship of another country could be determined and this is what has been done by Rule 30.
The cases that would ordinarily arise about loss of Indian citizenship by acquisition of foreign citizenship would be of three kinds: (1) Indian citizens who voluntarily acquired citizenship of a foreign State prior to the commencement of the Constitution; (2) Indian citizens who voluntarily acquired the citizenship of another State or country between January 26, 1950 and December 30, 1955 i.e. the date of commencement of the Act and (3) Indian citizens who voluntarily acquired foreign citizenship after the date of commencement of the Act i.e. December 30, 1955.
As regards the first category they were dealt with by article 9 of the Constitution.
The second and the third categories would be covered by the provisions of section 9 of the Act.
If a question arises as to whether, when or how an Indian citizen has, acquired the citizenship of another country that has to be determined by the Central Government by virtue of the provisions of sub section
(2) of section 9 read with Rule 30 of the Citizenship Rules.
Counsel for respondent No. 1 has relied on a decision of a learned Single Judge of the Allahabad High Court in Abida Khatoon & Another vs State of U.P. & Ors.
(2) which was followed in the present case.
There it was observed that a litigant, after filing a suit, acquired a vested right to have all questions determined by the court in which the suit was filed and that the institution of the suit carried with it all the rights of appeal then in force.
Referring to the normal principle that an Act is ordinarily not retrospective, that vested rights are not disturb (1) [1962] Supp 3 section R. 235, 244, 245, (2) A.I.R. 1963 All.
1012 ed and that the jurisdiction of the civil courts in pending cases is not taken away by the creation of a new tribunal for the determination of a particular question, the learned judge held that there was nothing in the language or the scheme of the Act to suggest that Parliament wanted to depart from these principles.
We are unable to agree.
In our judgment from the amplitude of the language employed in section 9 which takes in persons in category (2) mentioned above the intention has been made clear that all cases which come up for determination where an Indian citizen has voluntarily acquired the citizenship of a foreign country after the commencement of the Constitution have to be dealt with and decided in accordance with its provisions.
In this view of the matter the entire argument which prevailed with the Allahabad court can have no substance.
It has next been contended that retrospective operation should not be given to section 9 of the Act because loss of Citizenship is a serious and grave matter and it involves loss of personal liberty.
Under article 21 no person can be deprived of his life or personal liberty except according to procedure established by law.
The procedure established by law before the commencement of the Act was the ordinary procedure of determination by civil courts whenever a question arose about loss of Indian citizenship by acquisition of citizenship of a foreign country or State.
It is suggested by learned counsel for respondent No. 1 that by giving retrospective operation to section 9 so as to make it applicable to pending proceedings the provisions of article 21 win be contravened or violated.
This would render section 9 of the Act unconstitutional.
It is somewhat difficult to appreciate the argument much less to accede to it.
If the Parliament was competent under article 11, which is a constitutional provision read with the relevant Entry in List 1, to legislate about cases of persons belonging to categories 2 and 3 referred to at a previous stage it could certainly enact a legislation in exercise of its sovereign power which laid down procedure different from the one which obtained before.
The new procedure would itself become the "procedure established by law" within the meaning of article 21 of the Constitution.
Therefore even on the assumption that loss of Indian citizenship with consequent deportation may involve loss of personal liberty within the meaning of article 21, it is not possible to hold that by applying section 9 of the Act and Rule 30 of the Rules to a case in which a suit had been instituted prior to the commencement of the Act there would be any contravention or violation of that Article.
In conclusion it may be mentioned that this could, in several cases, has consistently held that questions falling within section 9(2) have to be determined to the extent indicated therein by the 1013 Central Government and not by the courts.
Such matters as are not covered by that provision have, however, to be determined by the courts; (see Akbar Khan Alam Khan & Anr.
vs The Union of India & Ors.
(1) and lzhar Ahmed Khan vs Union of India) (2) and The Government of Andhra Pradesh vs Syed Mohd. Khan) (3).
In the present case the High Court ought not to have called for a decision of the lower appellate court on the issue of the plaintiff having acquired or not acquired the citizenship of Pakistan between July 3, 1952 and the date of his return to India.
The appeal is, consequently, allowed and the order of the High Court is hereby set aside.
It will be for the High Court now to make appropriate orders for determination of the aforesaid question by the Central Government after which alone the High Court will be in a position to dispose of the appeal finally.
Costs will abide the result.
G.C. Appeal allowed.
(1) [1962] 1 S.C.R.779.
(2) [1962] Supp. 3 S.C.R. 235.
(3) (1962] Supp. 3 S.C.R. 288.
LlISup C.1/69 2,500 31 3 70 GIPF.
| IN-Abs | Respondent No. 1 was born in undivided India on July 3, 1934.
He went to Pakistan in October 1950.
In 1953 he obtained a visa from the Indian High Commission in Pakistan and came to India on July 22, 1953.
After the expiry of his period of stay he sought permanent settlement in India.
On May 6, 1955 he filed a suit claiming that he was a minor when he went on a trip to Pakistan and had not ceased to be an Indian citizen.
He sought a permanent injunction restraining the Union of India and other authorities from deporting him.
The Munsif who tried the suit held that respondent No. 1 had ceased to be an Indian citizen, and dismissed the suit.
The District Judge in first appeal held that being a minor whose father was in India respondent no.1 could not by leaving for Pakistan, lose his Indian nationality.
In second appeal the High Court of Allahabad remanded the case to the first appellate court to determine the question whether by having spent one year in Pakistan after attaining majority respondent No. 1 had acquired the citizenship of Pakistan.
The High Court rejected the contention on behalf of the State that in view of section 9(2) of the Indian which came into force on December 30, 1955 and Rule 30 of the Citizenship Rules made under the Act, the question whether respondent No. 1 was a citizen of India or not could only be decided by the Central Government.
In taking this view the High Court relied on the decision in Abida Khatoon 's case in which a single Judge of that court had held that section 9 of the was not retrospective and could not take away the vested right of a citizen who had already filed a suit to have his claim for citizenship decided by a court. 'the first appellate court gave after remand a finding favourable to respondent No. 1 and on receipt of this finding the High Court dismissed the State 's appeal.
The State then appealed to this Court.
The questions that fell for consideration were : (i) whether section 9 of the Act would apply to a suit pending on the date when the Act came into force; (ii) whether in view of the fact that the procedure established by law before the commencement of the Act allowed the question as to the acquisition of the citizenship of another country to be determined by courts, there was by giving retrospective operation to section 9, a violation of the guarantee of personal liberty under article 21.
HELD : (i) The language of sub section
(1) of section 9 is clear and unequivocal and leaves no room for doubt that it would cover all cases where an Indian citizen has acquired foreign nationality between January 26, 1950 and its commencement or where he acquires such nationality after its commencement.
The words "or has at any time between the 26th January 1950 and the commencement of the Act, voluntarily acquired the citizenship of another country" would become almost redundant if only prespective operation is given to section 9(1) of the Act.
This according to the settled rules of interpretation cannot be done, [1010 F G] 1007 (ii) The Act has been enacted under the powers of the Parliament preserved by article 11 in express terms and a law made by Parliament cannot, as.
held in lzhar Ahmed 's case be impeached on the ground that it is inconsistent with the provisions contained in other Articles in Part II of the Constitution.
The Parliament had also legislative competence under Entry 17, List I of Seventh Schedule.
It could thus make a provision, about the forum where the question as do whether a person had acquired citizenship of another country could be determined and this is what has been done by r. 30.
[1011 B D] The cases that would ordinarily arise about loss of Indian citizenship by acquisition of foreign citizenship would be of three kinds : (1) Indian citizens who voluntarily acquired citizenship of a foreign, State perior to the commencement of the Constitution; (2) Indian citizens who voluntarily acquired the citizenship of another State or country between January 26, 1950 and December 30, 1955 i.e. the date of commencement of the Act, and (3) Indian Citizens who voluntarily acquired foreign citizenship after the date of commencement of the Act i.e. December 30, 1955.
As regards the first category they were dealt with by article 9 of the Constitution.
The second and third categories would be covered by the provisions of section 9 of the Act.
Therefore, if a question arises as to whether when and how an Indian citizen has acquired citizenship of another country that has to be determined by the central Government by virtue of the provisions of sub section (2) of section 9 read with r. 30 of the Citizenship Rules.
In view of the amplitude of the language employed in section 9 which takes in persons mentioned in category (2) mentioned above, the entire argument which prevailed with the Allahabad High Court in Abida Khatoon 's case can have no substance.
[1011 D H, 1012 C] lzhar Ahmad Khan vs Union of India, [1962] Supp.
3 S.C.R. 235, 244, 245., Akbar Khan Alam Khan & Anr.
vs Union of India, ; and The Government of Andhra Pradesh vs Syed Mohd. Khan, [1962] Supp. 3 S.C.R. 288, referred to.
Abida Khatoon & Anr.
vs State of.
U.P. & Ors.
A.I.R. 1963 All 260, disapproved.
(iii) The contention that retrospective operation of section 9 would contravene article 21 of the Constitution could not be accepted.
If the Parliament was competent under article 11 which is a constitutional provision read with the relevant entry in List I to legislate about ' cases of persons belonging to categories 2 and 3 referred to earlier it could certainly enact a legislation in exercise of its sovereign power which laid down a procedure different from the one which obtained before.
The new procedure would ltself become the "procedure established by law" within the meaning of article ' 21 of the Constitution.
[101 2 E G] The High Court was therefore wrong in the present case in calling for a decision of the lower appellate court on the issue of the plaintiff having acquired or not the citizenship of Pakistan between July 3, 1952 and the date of his return to India.
[High Court accordingly directed to have question determined by Central Government and thereafter dispose of appeal finally].
[1013 B C]
|
Appeal No. 349 of 1966.
Appeal by special leave from the judgment and order dated December 17, 1963 of the Punjab High Court,.
Circuit Bench at Delhi in R.F.A. No. 164 C of 1963.
1003 section V. Gupte and A. N. Goyal, for the appellants.
C. B. Agarwala, H. K. Puri and B. N. Kirpal, for respondent No. 1.
The Judgment of the Court was delivered by Hegde, J.
The only question that arises for decision in this appeal by special leave is whether the suit from which this appeal has arisen is barred by res judicata in view of the decision in Civil Suit No. 15 of 1943.
The trial court answered that question in the affirmative but the High Court has taken a contrary view.
Hence this appeal.
The facts of the case leading up to this appeal, briefly stated, are as follows : One Krishen Gopal had lease hold rights in the suit pro perties.
After the death of the aforesaid Krishen Gopal dispute arose between Jawala Prashad, the father of the appellants and Banwari Lal Verma, the father of the respondents as to the title of the suit properties.
Each one of them claimed that those properties had been gifted to him by Krishen Gopal.
As a result of this dispute Jawala Prashad instituted on January 20, 1943, Civil Suit No. 15 of 1943 against Banwari Lal Verma claiming possession of the suit properties on the strength of the alleged gift in his favour.
In defence Banwari Lal Verma pleaded that those properties had been gifted to him by Krishen Gopal.
The principal issue that arose for decision in that suit was whether the suit properties had been gifted to Jawala Prashad or Banwari Lal Verma.
The trial court dismissed the suit but in appeal the decree of the trial court was reversed and the suit was decreed as prayed for.
That decision was confirmed by the High Court and thereafter by this Court in, Civil Appeal No. 164 of 1953.
After the decision of this Court Banwari Lal Verma made various applications to this Court asking for reliefs which if they had been granted, would have practically nullified the effect of the decree but those applications were rejected by this Court.
Thereafter efforts appear to have been made to obstruct the execution of the decree in diverse ways.
When everyone of those efforts failed Rangi Lal Verma the eldest son of Banwari Lal Verma filed a suit praying for a declaration that the suit properties belonged to his joint.
family consisting of Banwari Lal Verma and his sons.
This suit was dismissed for non prosecution.
It is only thereafter the present suit has, been filed by one of the sons of Banwari Lal , Verma claiming partition in the suit properties on the allegation that the same had been gifted by, Krishen, Gopal to.
his joint family.
1004 The gift put forward by the plaintiff is said to have been made in 1928.
Admittedly at that time all the sons of Banwari Lal Verma were minors (see the affidavit filed in this Court by Rangi Lal on behalf of the plaintiff, on February 26, 1969 Therefore, naturally the gift, if true could have been accepted only by Banwari Lal Verma who was the Karta of the family at that time.
was not even urged that Banwari Lal Verma did not safeguard the interest of his family while contesting the previous suit.
Further it is not the case of the respondents that there was any conflict of interest between Banwari Lal Verma and his sons.
The facts disclosed make it obvious that Banwari Lal Verma and after his death his sons are availing themselves of every possible loophole in our judicial system to delay, if not defeat the course of justice.
The effort is one, and continuous.
The suit from which this appeal has arisen is a clear abuse of judicial process.
It is in this setting that we have to see whether the decision in Civil Suit No. 15 of 1943 operates as res judicata in the present case.
In the Civil Suit No. 15 of 1943, there was no room for con troversy as to whether the alleged gift was in favour of Banwari Lal Verma in his individual capacity or in his favour as the Karta of his family.
Therein the controversy was whether the suit properties had been gifted to Jawala Prashad or Banwari Lal Verma.
As seen earlier Banwari La] Verma pleaded that they had been gifted in his favour.
He did not make it clear nor was it necessary for him to do so in that suit as to whether they were gifted to him as the Karta of the family or in his individual capacity.
The properties that were in dispute in the former suit as well as in the present suit are identical properties.
It cannot be disputed that Banwari Lal Verma by himself could have represented his family in that suit.
That suit must be deemed to have been instituted against Banwari Lal Verma in that capacity in which he claimed title to it.
If his claim in that suit is understood to have been made on behalf of his family then he must be deemed to have been sued therein as the Karta of his family.
It was for Banwari Lal Verma to make clear the capacity in which he was defending the suit.
That being so we fail to appreciate the conclusion of the High Court that the decision in the previous suit does not operate as res judicata in the present suit.
It is not necessary, in order that a decree against the manager may operate as res judicata against coparceners who were not parties to the suit that the plaint or written statement should state in express terms that he is suing as manager or is being sued as a manager.
It is sufficient if the manager was in fact suing or being sued as representing the whole family, see Lalchand vs 1005 Sheogovind(1); Ram Kishan vs Ganga Ram(2); Prithipal V. Rameshwar(3); Surendranath vs Sambhunath(4).
The suit by or against the manager will deemed to be one brought by him or against him as representing the family if the circumstances of the case show that he is the manager of the family and the property involved in the suit is family property, see Mulgaund Co operative Credit Society vs Shidlingappa Ishwarappa(5).
See also Venkakanarayana vs Somaraju(6).
It is not not necessary, where the manager is the plaintiff, that the plaint should state in distinct terms that he is suing as manager or where he is the defendant that he is being sued as manager.
A Karta can represent the family effectively in proceeding though he is not named as such, see Mani Sahoo vs Lokanath(7).
For the reasons mentioned above this appeal is allowed and the judgment and decree of the High Court is set aside and that of the trial court restored.
The respondent shall pay the costs of the appellants in all the courts.
V.P.S. Appeal allowed.
(1) (1929) I.L.R.8, Pat. 788.
(2) , Lab.
(3) , Luck.
(4) , Cal.
| IN-Abs | A suit between J the father of appellants and B the father of respondents, each claiming possession of the suit properties on the strength of an alleged gift deed in his favour, was decreed in favour of J and the decree was confirmed by this Court.
After various attempts by B and after his death by his sons, to defeat J 's rights, one of B 's sons filed a suit for partition of the suit properties on the allegation that they were gifted to the joint family of which B was the karta.
On the question whether the decree in the earlier suit operated as res judicata.
HELD : It is not necessary in order that a decree against a manager may operate as res judicata against coparceners who were not parties to the earlier suit, that the plaint or written statement should state in express terms that he was suing or was being sued as a manager,.
It is sufficient if the manager was in fact suing or was being sued as representing the whole family.
A suit by or against the manager will be deemed to be one brought by or against him as representing the family if the circumstances show that he was the manager and the property involved in the suit was family property.
[1004 H; 1005 A B] In the present, case, B must be deemed to have been sued in the previous suit as the karta of his family, because : (a) the alleged gift in favour of the joint family was at a time when all the sons of B were minors and if true the gift could have been accepted by B only as the karta, (b) there was no conflict of interest between B and his sons and there was no allegation that B did not safeguard the family 's interest while contesting the previous suit; and (c) B did not claim in the earlier suit that the gift was to him in his individual capacity.
[1004 A C; 1005 C] Lalchand vs Sheogovind, Pat. 788, Ram Kishan vs Ganga Ram, Lah.
428, Prithipal vs Rameshwar, Luck.
288, Surendranath vs Sambhunath, Cal. 210, Mulgaund Co operative Credit Society vs Shidlingappa Ishwarappa, I.L.R. , Venkatanarayana vs Somaraju, A.I.R. 1937 Mad.
610 (F.B) and Mani Sahoo vs Lokanath, A.I.R. , referred to.
|
l Appeals Nos. 1622 to 1626 of 1968.
Appeals from the judgment and order dated February 11, 1964 of the Calcutta High Court in Income tax Reference No. 109 of 1960.
2 Sachin Chaudhuri, T. A. Ramachandran and D. N. Gupta, for the appellant (in all the appeals).
section T. Desai, section A. L. Narayan Rao, R. H. Dhebar, R. N. Sachthey and B. D. Sharma, for the respondent (in all the appeals).
The Judgment of the Court was delivered by Shah, J.
Netherlands Steam Navigation Company Ltd. hereinafter called "the assessee" is a non resident Company engaged in shipping business.
For the assessment years 1952 53 to 1956 57 the assessee filed its return of income for the relevant accounting years disclosing taxable income computed on the basis of its annual turnover in its Indian trade i.e. "round voyages" to and from Indian Ports.
The assessee did not furnish particulars of its world income.
The Income tax Officer computed the taxable business income of the assessee for each year by the application of the following formula: Indian trade profits x Indian Port receipts Total Port receipts By the expression "Indian trade profits" in the formula was meant profit earned in "round voyages" made by the assessee 's ships which touched Indian ports.
Operation of the formula may be illustrated by taking a sample computation by the Income tax Officer for the year 1953 54 Kr.
"Total gross earning in Indian Trade 10,024,996 Deduct: (1) Total experience in Indian Trade 7,705,474 (2) Depreciation allowance 733,671 8,439,145 Net profit India Trade 1,585,851 Gross earning from Indian Ports 5,440,042 Proportionate Indian Profits: 5,440,042 * 1,585,851 860,559 100,024,996 (Rs.100=Kr.79.80 Rs.10,78,395" In computing the profits of the assessee in India in each year the Income tax Officer allowed normal depreciation and other trade allowances admissible under the Indian Income tax Act, 1922, and the relevant rules made thereunder.
He, however, did not allow initial depreciation and additional depreciation in respect of the ships of the assessee in any of the assessment years, because the ships acquired by the assessee were not introduced into the Indian business in the years in which they were newly acquired. 'The orders of 'assessment were confirmed by the Appellate Assistant Commissioner.
3 In appeal to the Income tax Appellate Tribunal the assessee claimed Additional depreciation for four ships for which the following details were furnished: "(1) section section Bintang Brought into use in 1950.Brought into use in the Indian trade in 1951.
Claim for the assessment years 1952 53 to 19 54 55.
(2) section section Billiton Brought into use in 1951.
Brought into use in the Indian trade in 1952.
Claim for the Assessment years 1953 54 to 1956 57.
(3) S, section Banka Brought into use in 1953.
Brought into use in the Indian trade in 1954.
Claim for the assessment years 1955 56 and 1956 57.
(4) section section Bawean Brought into use in 1953.
Brought into use in the Indian trade in 1954.
Claim for the assessment years 1955 56 and 1956 57.
" The assessee and the Commissioner were agreed that the taxable income of the assessee had to be determined by the application of the second method in Rule 33 of the Indian Income tax Rules, 1922.
The Tribunal also observed that the Commissioner and the assessee agreed that the formula adopted by the Income tax Officer was "the correct method of assessment".
The Commissioner submitted before the Tribunal that if the Indian business of the assessee be regarded as part of its world business and not independent of it, the world profits of the assessee must be computed according to the provisions of the Indian Income tax Act, 1922, and additional depreciation may be taken into account in determining the taxable profits under the Indian Income tax Act as a fraction of the world profits.
But he maintained that if the Indian trade be regarded as a separate business and not part of the world trade of the assessee, additional depre ciation could only be allowed under section 10(2)(vi a) of the Indian Income tax Act, provided ships which are new are introduced into the Indian trade and not otherwise, In the opinion of the Tribunal, in computing the taxable in come of the assessee under the Indian Income tax Act, 1922, the Indian business must be taken to be part of the assessee 's world business, and "depreciation which the assessee was entitled to, in respect of its world business by the application of the Indian Income tax Act would be proportionately available in respect of its Indian business.
" The Tribunal observed that under r. 33 "the profits have to be calculated under the terms of the Indian Incometax Act and this act postulated that on all machinery, plants and such other things like steamers brought into business after March 31, 1948, additional depreciation must also be granted".
The 4 Tribunal then observed that the ships brought into the Indian trade were not new in the years of account relevant to the five years of assessment, but the assessee was still qualified under section 10(2) (vi a) to additional depreciation for a continuous period of five years, and "the fact in the first of these years the new ships did not call at the Indian Ports in one assessment year did not disentitle the assessee to the benefit not only for that year but also for the succeeding four years".
Accordingly the Tribunal held that in respect of all the four ships of the assessee, additional depreciation was admissible as claimed.
At the instance of the Commissioner of Income tax, the fol lowing question was referred by the Tribunal to the High Court of Calcutta for opinion in respect of each of the five years : "Whether on the facts and circumstances of the case the assessee Company is entitled to additional depreciation in respect of the four ships mentioned above?" The High Court answered the question in the negative Clause (vi a) was inserted in section 10(2) of the Indian Income tax Act, 1922, by section 11 of the Taxation Laws (Extension to Merged States and Amendment) Act 67 of 1949.
The clause as amended by section 8 of the Indian Income tax (Amendment) Act 25 of ' 1953 with effect from April 1, 1952, reads as follows : "In respect of depreciation of buildings newly erected, or of machinery or plant being new which has been installed, after the 31st day of March, 1948, a further sum (which shall be deductible in determining the written down value) equal to the amount admissible under clause (vi) (exclusive of the extra allowance for double or multiple shift working of the machinery or plant and the initial depreciation allowance admissible under that clause for the first year of erection of the building or the installation of the machinery or plant) in not more than five successive assessments for the financial years next following the previous year in which such buildings are erected and such machinery and plant installed and falling within the period commencing on the 1st day of April, 1 949, and ending on the 31st day of March, 1959.
" The assessee is a non resident Company.
It maintains a Branch Office in Calcutta; but on that account the ' Indian business of the assessee cannot be regarded as business distinct from its world business.
It was not so treated by the Income tax Officer, or by the Appellate Assistant Commissioner.
In computing profits or gains of business carried on by an assessee, normal depreciation 5 under, section 10(2)(vi) and additional depreciation under section 10(2)(vi a) are undoubtedly admissible in the conditions and to the extent allowed under the two clauses.
By section 4(1) of the Indian Income tax Act, the total income of any previous year of a non resident includes all income, profits and gains from whatever source derived which (1) are received or are deemed to be received in the tax able territories in such year by or on behalf of such person, and (2) which accrue or arise or are deemed to accrue or arise to him 'in the taxable territories during such year.
Section 10 of the Act which charges to tax the profits and gains of business, profession or vocation carried on by an assessee applies to assessees who are residents, residents but not ordinarily resident, and non residents.
Profits and gains of business of a non resident received or deemed to be received in the taxable territories by or on behalf of the assessee are taxable under the Indian Income Tax Act 1922 : profits and gains of business which accrue or arise or are deemed to accrue or arise to him in the taxable territories are also taxable under that Act; but profits and gains which accrue or arise or are deemed to accrue or arise to a non resident without the taxable territories are not taxable under the Act.
Section 4 is one of the pivotal sections in the scheme of the Income tax Act.
Thereby within the total income of a non resident is included income received, arising or accruing, or deemed to be received, or to have arisen or accrued, within the taxable territories.
The Act however gives no clear guidance for determining when income may be said to have arisen or accrued within the taxable territories.
But r. 33 framed under the Act purports to give some direction to the Income tax Officer for determining income, profits or gains accruing or arising to a non resident for the purpose of assessment to income tax.
There is no dispute that the profits of the business taxable under the Indian Income tax Act, 1922, are a fraction of the world profits and the profits are to be determined under r. 33 of the Income tax Rules.
Rule 33 of the Income tax Rules reads as follows : "In any case in which the Income tax officer is of Opinion that the actual amount of the income, profits or gains accruing or arising to any person residing out of the taxable territories whether directly or indirectly through or from any business connection in the taxable territories or through or from any Property in the taxable territories, or through or from any asset or, source of income in the taxable territories, or through or from any 6 money lent at interest and brought into the taxable territories in cash or in kind cannot be ascertained, the amount of such income, profits or gains for the purposes of assessment to income tax may be calculated on such percentage, of the turnover so accruing or arising as the Income tax Officer may consider to be reasonable, or on an amount which bears the same proportion to the total profits of the business of such person (such profits being computed in accordance with the provisions of the Indian Income tax Act) as the receipts so accruing or arising bear to the total receipts of the business, or in such other manner as the Income tax Officer may deem suitable.
" The rule authorises the Income tax Officer to adopt one of the three methods of determining income, profits or gains ' ?Or the purpose of assessment to income tax where the Income tax Officer is unable to ascertain the actual amount of income, profits or gains, arising inter alia out of a business connection in the taxable territories : (a) a percentage of turnover considered reasonable (b) a proportion of the total profits (computed according to the provisions of the Indian Income Tax Act) of the business of the assessee equal to the proportion which the receipts accruing or arising bear to the total receipts of the business and (c) such other manner as the Income tax Officer may deem suitable.
The second method, it was common ground, was properly applicable to the determination of taxable income of the assessee.
That method requires as a first step, determination of the total profits of the business of the assessee in accordance with the provisions of the Indian Income tax Act: the next step is to determine the proportion between the receipts accruing or arising within the taxable territories and the total receipts of the business; and the third step is to determine the income, profits or gains by the application of the proportion for the purpose of assessment to income tax.
This method ordains that the fraction which the total profits bear to the total world receipts is to be applied to the Indian receipts for determining the taxable profits.
The income so determined will be the taxable income without any further allowances, because the permissible allowance will all enter the computation of the world income and income taxable under the Income tax Act is also a fraction thereof.
Apparently the Income tax Officer did not apply the second method under r. 33 in computing the taxable income of the assessee, for under that method in determining the taxable income the receipts accrued or arising in India had to be multiplied by the proportion between the total profits of the business and the total receipts of the world business.
7 Counsel for the assessee asked us to assume that the profits computed by the Income tax Officer according to the formula adopted by him are profits determined by the second method in r. 33, and claimed on that footing that beside normal depreciation, additional depreciation ought also to have been taken into account, and the taxable profits of the assessee determined on that basis.
But that assumption cannot be made.
One of the essential conditions of the applicability of the second method in r. 33 is the determination of the total world profits of the assessee under the Indian Income tax Act, and reduction of the Indian taxable profits by the application of the appropriate fraction.
The assessee has not produced its books of account of its world trade to enable the Income tax Officer to determine its total taxable profits arising from its world business.
There was apparently no clear appreciation of the true im port of the second method under r. 33 before the Departmental Authorities and the Tribunal.
Counsel for the assessee suggested that his client may be willing to produce before the Income tax Officer the books of account of the relevant years for computing the total world profits according to the Indian Income tax Act, 1922, and the benefit of additional depreciation may then be allowed to the assessee in computing the total profits under the Indian Income tax Act.
Counsel for the Commissioner expressed his willingness to the adoption of that course.
Counsel requested us to adjourn the hearing to enable them to obtain instructions from their respective clients, and the hearing was accordingly adjourned for three weeks.
But ultimately counsel for the assessee informed us that his clients may not be able to bring before the Income tax Officer the books of account of their world trade.
The Income tax Officer has evolved a special formula for de termining the profits which is not the second method in r. 33 of ' the Income tax Rules.
The assessee has not challenged the correctness of that method, nor has the Department.
In the application of that formula, normal depreciation and trade expenses are deducted from the total gross earning in the Indian trade, but not the additional depreciation.
Clearly the Income tax Officer did not in computing the tax able income resort to the second method in r. 33 of the Incometax Rules.
We are exercising in these appeals advisory jurisdiction, and are only called upon to answer the question referred by the Tribunal.
We are incompetent to decide whether computation of the taxable income by the Income tax Officer by the application of the formula evolved by him is correct: that question is not before us.
We are only concerned to determine the validity of the claim for admitting additional depreciation in the computation of the taxable income of the assessee by the method adopted 8 by the Income tax officer.
Additional depreciation is a statutory allowance in the determination of taxable profit under section 10 of the Act, and in the case of a non resident where actual income cannot be determined, and resort is had to r. 33, not when an empirical method is adopted for computation of the tax able income.
We are however unable to agree with the observations of the High Court that "no relief in any shape or form can be enjoyed by any assessee under the Indian Income tax Act in respect of a source of income, unless the income from that source is taken into consideration for the purpose of that Act.
In the reference before us the income in question was outside the purview of assessment under the Indian Income tax Act".
That was not the plea of the Commissioner.
The source of the income of the assessee charged to tax was business: it was not income from any other source.
The Commissioner and the assessee were ad idem on that matter.
The only dispute was whether additional depreciation was admissible in the computation of the taxable income, when the taxable business profits were determined by the Income tax Officer by the method evolved by him.
It was common ground that the appropriate method for deter mining the profits was the second method in r. 33.
But that method was never applied: if it was applied in the computation of the world profits of the assessee, it would have been necessary to allow the various depreciation allowances.
The assessee could not, while accepting determination of taxable profits in a manner not warranted by the second method under r. 33, claim that additional depreciation should be allowed.
The answer to the question therefore is that additional depreciation is not admissible as an allowance in the computation of the taxable income by the special formula adopted by the Income tax Officer.
The appeals fail.
The assessee will pay the costs of these appeals.
One hearing fee.
R.K.P.S. Appeals dismissed.
| IN-Abs | The appellant is a non resident shipping company with its local office in Calcutta.
For its assessment to income tax for the years 1952 53 to 1956 57 the appellant filed returns disclosing taxable income computed on the basis of its annual turn over in its Indian trade but did not furnish particulars of its world income.
The Income tax Officer computed the taxable business income for each year by application of a special formula which was accepted by the appellant.
However, in computing the income, the Income tax Officer only allowed normal depreciation and other trade allowances admissible under the income tax Act 1922 and did not allow any initial depreciation or additional depreciation in respect of the ships of the appellant in any of the assessment years, because the ships acquired by the appellant were not introduced into the Indian business in the years in which they were newly acquired.
The, orders of assessment were confirmed by the Appellate Assistant Commissioner but the Tribunal held that in respect of all the four ships, additional depreciation wag 'admissible under section 10(2) (vi a) of the Act, as claimed.
The High Court, on a reference, answered the question against the assessee.
HELD : Additional depreciation was not admissible to the appellant as an allowance in the computation of the taxable income by the special formula adopted by the Income tax Officer.
It was common ground that the, appropriate method for determining the profits was the second method in r. 33.
But that method was never applied; if it was applied in the computation of the world profits of the assessee, it would have been necessary to allow the various depreciation allowances.
The assessee could not, while accepting determination of taxable profits in a manner not warranted by the second method under r. 33, claim that additional depreciation should be allowed.
[8 E] The Supreme Court in the present appeal was exercising an advisory jurisdiction and could not decide whether the computation of taxable income by the Incometax Officer by the application of the formula evolved by him was correct.
Additional depreciation is a statutory allowance in the determination of taxable profit under section 10 of the Act, and in the case of a non resident where, actual income cannot be determined, and resort is had to r. 33, not when an empirical method is adopted for computation of the taxable income.
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Appeal No. 697 of 1966.
Appeal by special leave from the judgment and order dated November 9, 1964 of the Allahabad High Court in First Appeal No. 257 of 1953.
section C. Manchanda, section k. Mehta and K. L. Mehta, for the appellant.
Bishan Narain and Harbans Singh, for the respondent.
The Judgment of the Court was delivered by Shah, J.
On March 11, 1950, Manohar Lal s/o Jai Jai Ram commenced an action in the Court of the Subordinate Judge, Nanital, for a decree for Rs. 10,139/12/ being the value of timber supplied to the defendant the National Building Mate rial Supply, Gurgaon.
The action was instituted in the name of "Jai Jai Ram Manohar Lal" which was the name in which the business was carried on.
The plaintiff Manohar Lal subscribed his signature at the foot of the plaint as "Jai Jai Ram Manohar Lal, by the pen of Manohar Lal", and the plaint was also similarly verified.
The defendant by its written statement contended that the plaintiff was an unregistered firm and on that account incompetent to sue.
On July 18, 1952, the plaintiff applied for leave to amend the plaint.
Manohar Lal stated that "the business name of the plaintiff is Jai Jai Ram Manohar Lal and therein Manohar Lal the owner and proprietor is clearly shown and named.
It is a 24 joint Hindu family business and the defendant and all knew it that Manohar, Lai whose name is there along with the father 's name is the proprietor of it.
The name is not an assumed or fictitious one".
The plaintiff on those averments applied for leave to describe himself in the cause title as "Manohar Lal proprietor of Jai Jai Ram Manohar Lal" and in paragraph 1 to state that he carried on the business in timber in the name of Jai Jai Ram Manohar Lal.
Apparently no reply was filed to this application by the defendant.
The Subordinate Judge granted leave to amend the plaint.
He observed that there was no doubt that the real plaintiff was Manohar Lal himself, that it was Manohar Lal who intended to file and did in fact Me the action, and that the "amendment was intended to bring what in effect had been done in conformity with what in fact should have been done".
The defendant then filed a supplementary written statement raising two additional contentions (1) that Manohar Lal was not the sole owner of the business and that his other brothers were also the owners of the business; and (2) that in any event the amendment became effective from July 18, 1952, and on that account the suit was barred by the law of limitation.
The Trial Judge decreed the claim for Rs. 6,568/6/3.
Against that decree an appeal was preferred to the High Court of Allahabad.
The High Court being of the view that the action was instituted in the name of a "non existing person" and Manohar Lal having failed to aver in the application for amendment that the action was instituted in the name of "Jai Jai Ram Manohar Lal" on account of some bona fide mistake or omission, the Subordinate Judge was incompetent to grant leave to amend of the plaint.
The High Court after making an extensive quotation from the judgment of this Court in purushottam Umedbhai and Company vs Messrs. Manilal and Sons(1) observed that the action could not be instituted by the plaintiff in the business name; it should have been instituted in the name of the Karta of the Hindu undivided family in his representative capacity or else 'all the members of the joint family must join as plaintiffs.
The Court then observed : "The suit instituted by the joint Hindu family business in the name of an assumed business title was a suit by a person, who did not exist and was, therefore, a nullity.
Hence there could be no amendment of the description of such a plaintiff who did not exist in the eye of law.
The court below was in obvious error in thinking otherwise and allowing the name of Manohar Lal to be added as proprietor of the original plaintiff Jai Jai Ram Manohar Lal, which was neither (1) ; 25 a legal entity nor an existing person who could have validly instituted the suit.
" The High Court was also of the opinion that the substitution of the name of Manohar Lal as a plaintiff during the pendency of the action took effect from July 18, 1952, and the action must be deemed to be instituted on that date the amendment could not take effect retrospectively and on the date of the amendment the action was barred by the law of limitation.
The plaintiff has appealed to this Court with special leave.
The order passed by the High Court cannot be sustained.
Rules of procedure are intended to, be a handmaid to the administration of justice.
A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure.
The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensed for by an order of costs.
However negligent or careless may have been the first omission, and, however late the proposed amend ment, the amendment may be allowed if it can be made without injustice to the other side.
In Amulakchand Mewaram and others vs Babulal Kanalal Taliwala(1), Beaumont, C.J., in delivering the judgment of the Bombay High Court set out the principles applicable to cases like the present and observed: ". the question whether there should be an amendment or not really turns upon whether the name in which the suit is brought in the name of a non existent person or whether it is merely a misdescription of existing persons.
If the former is the case, the suit is a nullity and no amendment can cure it.
If the latter is the case, prima facie, there ought to be an amendment because the general rule, subject no doubt to certain exceptions, is that the Court should always allow an amendment where any loss to the opposing party can be compensated for by costs.
" In Amulakchand Mewaram 's case(1) a Hindu undivided family sued in its business name.
It was not appreciated at an early stage of the suit that in fact the firm name was not of a partnership, but was the name of a joint Hindu family.
An objection was raised by the defendant that the suit as filed was not maintainable.
An application to amend, the plaint, by substituting the names of the three members of the joint family for the name of the family firm as plaintiffs, was rejected by the Court (1) Sup CI/69 3 26 of First Instance.
In appeal the High Court observed that a suit brought in the name of a firm in a case not within 0.
30 C.P. Code being in fact a case of misdescription of existing persons, leave to amend ought to have been given.
This Court considered a somewhat similar case in Purushottam Umedbhai 's case(1).
A firm carrying on business outside India filed a suit in the firm name in the High Court of Calcutta for a decree for compensation for breach of contract.
The plaintiff then applied for amendment of the plaint by describing the names of all the partners and striking out the name of the firm as a mere misdescription.
The application for amendment was rejected on the view that the original plaint was no plaint in law and it was not a case of misnomer or misdescription, but a case of a non existent firm or a non existent person suing.
In appeal, the High Court held that the description of the plaintiff by a firm name in a case where the Code of Civil Procedure did not permit a suit to be brought in the firm name should properly be considered a case of description of the individual partners of the business and as such a misdescription, which in law can be corrected and should not be considered to amount to a description of a non existent person.
Against the order of he High Court an appeal was preferred to this Court.
This Court observed (at p. 994) : "Since, however, a firm is not a legal entity the privilege of suing in the name of a firm is permissible only to those persons who, as partners, are doing business in India.
Such privilege is not extended to persons who are doing business as partners outside India.
In their case they still have to sue in their individual names.
If, however, under some misapprehension, persons doing business as partners outside India do file a plaint in the name of their firm they are misdescribing themselves, as the suit instituted is by them, they being known collectively as a firm.
It seems, therefore, that a plaint filed in a court in India in the name of a firm doing business outside India is not by itself a nullity.
It is a plaint by all the partners of the firm with a defective description of themselves for the purpose of the Code of Civil Procedure.
in these circumstances, a civil court could permit, under the provisions of section 153 of the Code (or possibly under 0.
VI, r. 17, about which we say nothing), an amendment of the plaint to enable a proper description of the plaintiffs to appear in it in order to assist the Court in determining the real question or issue between the parties." (1) ; 27 These cases do no more than illustrate the well settled rule that all amendments should be permitted as may be necessary for the purpose of determining the real question in controversy between the parties, unless by permitting the amendment injustice may result to the other side.
In the present case, the plaintiff was carrying on business as commission agent in the name of "Jai Jai Ram Manohar Lal.
The plaintiff was competent to sue in his own name as Manager of the Hindu undivided family to which the business belonged; he says he sued on behalf of the family in the business 'name.
The observations made by the High Court that the application for amendment of the plaint could not be granted, because there was no averment therein that the misdescription was on account of a bona fide mistake, and on that account the suit must fail, cannot be accepted.
In our view, there is no rule that unless in an application for amendment of the plaint it is expressly averred that the error, omission or misdescription is due to a bona fide mistake, the Court has no power to grant leave to amend the plaint.
The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations.
Since the name in which the action was instituted was merely a misdescription of the original plaintiff, no question of limitation arises: the plaint must be deemed on amendment to have been instituted in the name of the real plaintiff, on the date on which it was originally instituted.
In our view, the order passed by the Trial Court in granting the amendment was clearly right, and the High Court was in error in dismissing the suit on a technicality wholly unrelated to the merits of the dispute.
Since all this delay has taken place and costs have been thrown away, because the defendant raised and persisted in a plea which had no merit even after the amendment was allowed by the Trial Court, he must pay the costs in this Court and the High Court.
The appeal is allowed and the decree passed by the High Court is set aside.
It appears that the High Court has not dealt with the appeal on the merits.
The proceed ings will stand remanded to the High Court for disposal according to law on the merits of the dispute between the parties.
G.C. Appeal allowed.
| IN-Abs | Manoharlal s/o Jai Jai Ram commenced an action in the Court of the Subordinate Judge, for valuer of timber supplied to the defendant.
The action was instituted in the name of 'Jai Jai Ram Manohar Lal ' which was the name in which the business was carried on.
The plaintiff signed and verified the plaint as 'Jai Jai Ram Manohar Lal, by the pen of Manohar lal. ' Later he applied to the Court for leave to amend the plaint.
In the application he averred that the business carried on under the name Jai Jai Ram Manohar Lal was a joint Hindu family business and the name was not an assumed or fictitious one as it contained his name and that of his father.
On these averments he prayed that he be allowed to describe him ' self in the cause title as Manohar Lal proprietor of Jai Jai Ram Manohar Lal and in paragraph 1 to state that he carried on the business in timber in the name of 'Jai Jai Ram Manohar Lal '.
The application was 'allowed by the trial Judge.
The defendant then filed a supplementary written statement raising two additional contentions : (1) that the plaintiff was not the sole owner of the business and that his other brothers were also the owners of the business; and (2) that the amendment took effect from the ' date on which it was made and if so, the suit was barred by limitation.
The trial court rejecting these contentions decreed the suit.
The High Court in appeal took the view that the action having been instituted in the name of a nonexisting person ', and Manohar Lal having failed to aver in the application for amendment that the action was instituted in the name of 'Jai Jai Ram Manohar Lal ' on account of a bona fide mistake or omission, the Subordinate Judge was incompetent to grant leave to amend the plaint.
The High Court further held that the amendment allowed by the trial Court took effect only from the date of amendment, and the action was barred by limitation.
Against the judgment of the High Court the plaintiff, by special leave, appealed to this Court.
HELD : (i) The order passed by the High Court could not be sustained.
Rules of procedure are, intended to, be a handmaid to the administration of justice.
A party cannot be refused relief merely because of same mistake, negligence, inadvertence or even infraction of the rules of procedure.
The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide , or that by his blunder he had caused injury to his opponent which may not be com pensated for by an order of costs.
However negligent or careless may have been the first omission and however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.
[25 C E] Purshottam Umedbhai & Co. V. M/S. Manilal and Sons, ; , explained and applied.
Amulakchand Mewaram & Ors.
vs Babulal Kanalal Taliwala, , applied.
23 In the present case the plaintiff was carrying on business as commission agent in the name of 'Jai Jai Ram Maryohar Lal '.
The plaintiff was competent to sue in his own name as manager of the Hindu undivided family to which the business belonged; he claimed to have filed the suit on behalf of the family in the business name.
The observations made by the High Court that the application for amendment of the plaint could not be granted, because there was no averment therein that the misdescription was 'On account of a bona fide mistake, and on that account the suit must fail, could not be accepted.
There is no rule that unless in an application for 'amendment of the plaint it is expressly averred that the error, omission or misdescription is due to a bona fide mistake the court has no power to grant leave to amend the plaint.
The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations.
[57 B D] (ii) Since the name in which the action was instituted was merely a misdescription of the original plaintiff, no question of limitation arose and the plaint must be deemed on amendment to have been instituted in the name of the real plaintiff on the date on which it was originally instituted.
[27 E] (iii)The defendant raised and persisted in a plea which had no merit even after the amendment was allowed by the trial court.
In the circumstances he must pay the costs in this Court and the High Court.
[27 F G]
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Appeal No. 480 of 1967.
Appeal by special leave from the judgment and order dated September 21, 1966 of the Allahabad High Court, Lucknow Bench in Special Appeal No. 16 of 1966.
L. M. Singhvi, B. Datta, D. N. Misra, J. B. Dadachan and O. C. Mathur, for the appellant.
O. P. Rana, for respondents No. 1.
J. P. Goyal, Sobhag Mal Jain and section P. Singh, for respondent No. 4.
The Judgment of the Court was delivered by Shelat, J.
Two questions arise for determination in this appeal, by special leave, against the judgment of the Appellate Bench of the High Court of Allahabad, namely, (1) whether a correction in its award by the Labour Court, Lucknow, was one of an error arising from an accidental omission within the meaning of section 6(6) of the U.P. , XXVIII of 1947 (hereinafter referred to as the Act), and (2) whether, even if it was so, it could so correct after its award was published and had become enforceable.
37 The Central Wage Board for sugar industry, appointed by the Union Government for determining a wage structure, revision of categories of workmen, their fitment into such categories and for fixing the principles governing the grant of bonus, had made certain recommendations.
Amongst its recommendations, the Wage Board recommended that its decision should be brought into effect as from November 1, 1960.
By its notification dated April 27, 1961, the U.P. Government accepted those recommendations including the one that they should be brought into force with effect from November 1, 1960.
On a dispute having arisen between the appellant company and its workmen on the company failing to implement the said recommendations, the State Government referred it to the Labour Court for adjudication under section 4(k) of the Act.
The dispute involved two questions (1) whether the company should fit the workmen named in the reference in the revised categories and in the new wage scales and (2) if so, with effect from what date.
By its award dated November 6, 1963 the Labour Court held that two of the said workmen should be fitted in Grade II(B) and Grade IV respectively and directed the company to do so within one month after the award became enforceable.
It, however, omitted to fix the date from which such fitment should have the effect.
On December 7, 1963 the said award was published in the State Gazette.
The company thereafter fitted the two workmen in the said two grades from a date one month hence after the award became enforceable and not from November 1, 1960.
The workmen 's union thereupon applied to the Labour Court to amend its award on the ground that it had omitted to answer the second question arising under the reference and the Labour Court accordingly amended its award directing that the two workmen should be placed in the said grades with effect from November 1, 1960.
The order amending the said award was gazetted on June 20, 1964.
The company filed a petition in the High Court for certiorari and for quashing the said order of amendment.
Nigam, J. who heard the petition in the first instance dis missed it holding that (1) the Labour Court had made an error arising from an accidental omission to answer the said second question and therefore had the power to correct it under section 6(6) of the Act, and (2) even if there was no such error arising from accidental omission, the amendment merely provided what was already contained in the notification dated April 27, 1961, that once the Labour Court had directed the company to fit the workmen in the said grades, such fitment had, under the force of that notification, to take effect from November 1, 1960 and that that result was arrived at not by reason of the correction of the award but by force of the original award read with the said notification.
On a letters patent appeal having been filed against the said judgment, the Appellate Bench of the High Court agreed with Nigam, 38 J. that the correction amounted to one of an error arising from the accidental omission to answer the said second question within the scope of section 6(6) of the Act.
The Appellate Bench, however, proceeded to examine the various provisions and the scheme of the Act and held (1) that the jurisdiction of the Labour Court under the Act was of a limited character, (2) that it gets seisen of an industrial dispute only when its jurisdiction is invoked by a reference under section 4(k) or by a voluntary reference to arbitration under section 5B, (3) that under section 4D proceedings before it are deemed to commence from the date of such reference and are, deemed to be completed on the date when its award becomes enforceable, (4) that its jurisdiction which emanates from the reference gets exhausted on the completion of the proceedings before it and the Labour Court itself becomes functus officio on the date when its award becomes final and enforceable, (5) that it cannot thereafter reconstitute itself or take seisen of a dispute, which it has already adjudicated and proceedings relating to it have become concluded, without a fresh reference and (6) that, therefore, its correctional jurisdiction under section 6(6), unlike that of a civil court under section 152 of the Code of Civil Procedure, is not unlimited.
The Appellate Bench on this reasoning held that the two extreme points during which the Labour Court could correct its award were the date of its signing it and the date when the award becomes final and enforceable.
Consequently, the Labour Court had no jurisdiction to correct the award after it became final and enforceable, i.e., after January 7, 1964, on expiry of30 days from December 7, 1963 when it was published and the correction, therefore, was in excess of its jurisdiction and invalid.
The Appellate Bench, however, declined to issue the writ on the ground that the correction did no more than doing justice to the workmen by ordering implementation of the said notification of April 27, 1961 and observing that equity was on the side of the two workmen dismissed the appeal as also the said petition.
Dr. Singhvi, who, on behalf of the company, disputed the correctness of the judgment, contended that (a) no clerical or arithmetical error through any accidental slip or omission had arisen, that section 6(6), therefore, did not apply to the facts of this case, and if at all, the application ought to have been under section 11B, which however, was never invoked; (b) that power under section 6(6) could be exercised only until the date on which the said award became enforceable and not thereafter, that the correctional jurisdiction under section 6 (6) is not without any limit as to time within which it could be invoked or exercised and expired or exhausted itself when the award became final; (c) that the principles of industrial law postulate the finality of an award made under it and that subject to exceptions as in section 6A, once the award had become 39 final it did not contemplate any disturbance of it by amendment or otherwise, and (d) that the High Court was in error in refusing remedy on a supposed consideration of equity once it found lack of jurisdiction in the Labour Court as it in fact did and, therefore, ought to have issued the remedial writ and quashed the impugned order of correction.
As already stated, the Wage Board had recommended revised wage scales, revised categories and fitment of workmen in their respective categories on the revised wage scales as from November 1, 1960.
The State Government had accepted those recommendations fully including the date of their implementation and the consequent fitment of workmen in appropriate categories, and revised wage scales.
Its notification made it clear that such fitment on the revised wage scales should be as recommended by the Wage Board as from November 1, 1960.
In the belief, perhaps, that the said recommendations and their acceptance by the Government were not binding on it, the company did not implement them and hence the union raised the dispute which was ultimately referred to the Labour Court.
The terms of that reference leave no doubt that it comprised of two questions, (1) of fitment and (2) the date from which it was to have effect.
The award of the Labour Court that the company was liable to fit the two workmen in grades 11 and IV respectively and pay them at the revised scales in respect of these grades was ' binding and therefore the company was liable to carry out the fitment and pay the revised scales in accordance with such fitment.
But the award did not decide or fix the date from which the said fitment, when made, was to have effect.
As rightly held by the High Court, the Labour Court thus omitted to answer the second question as it was bound to do and the reference remained partly unadjudicated.
The Labour Court, no doubt, did direct that the award should be implemented within one month after it became enforceable under the Act, i.e., on or before February 7, 1964.
But that direction meant only that the company should fit the two workmen in the two grades it had ordered and still left the question, as to the date from which such fitment was to have effect, unanswered.
Thus, the fact that the Labour Court failed to answer the second question admits of no doubt.
There can also be no doubt that since the first question was answered by it in accordance with the Wage Board 's recommendations and the Government 's notification accepting them fully, if its attention had been drawn it would in all probability have answered the second question also in consonance with those recommendations and the said notification.
There is, therefore, no question that there was an error in the award due to an accidental omission on the part of the Labour Court, which error it undoubtedly had the jurisdiction to correct under section 6(6).
The error was that 40 there was no direction in the award as to the date from which ,the fitment of the two workmen in the said grades and the revised scales should take effect, arising from an accidental omission to answer that part of the reference.
The next question is whether there is under the Act any time limit within which the correction of the award can be made.
The impugned correction, no doubt, was made by the Labour Court after its award had become final and enforceable.
The principal premise in the High Court 's reasoning as also in that of counsel for the company was that the jurisdiction of the Labour Court to correct the award ceased when the award became final and enforceable.
It may be observed at the very outset that no time limit within which such correction can be made has been laid down in any express terms in s: 6 (6).
The question, therefore, is whether any such time limit can be inferred either from section 6 or from the other provisions of the Act.
Section 4 (k) enables the, State Government to refer an industrial dispute which either exists or is apprehended to the Labour Court if the matter of the industrial dispute is one of those contained in the First Schedule to the Act or to a Tribunal if it is one contained in the first or the second Schedule.
Even if the dispute relates to a matter in the second Schedule, if it is not likely to affect more than 100 workmen, the Government can, if it so thinks fit, refer such a dispute to the Labour Court.
Under section 5B where any industrial dispute exists or is apprehended and the employer and the workmen agree, they may refer the dispute to arbitration of such person or persons including the presiding officer of a Labour Court or a Tribunal as may be specified in the arbitration agreement.
Section 6(1) enjoins upon the Labour Court and the Tribunal to which an industrial dispute is referred for adjudication to hold its proceedings expeditiously and submit its award to the State Government as soon as it is practicable on the conclusion thereof.
Subsec.
3 provides that subject to the provisions of sub section
4 every arbitration award and the award of a Labour Court or a Tribunal shall, within 30 days from the date of its receipt by the State Government, be published in such manner as the State Govern ment thinks fit.
Sub section
4, to which sub section 3 is made subject, authorises the State Government before publication of an award of a Labour Court or a Tribunal to remit it for its reconsideration and provides that after such reconsideration it shall submit its award to the Government and the State Government, shall thereupon publish it in the manner provided in sub section
Sub section
5 provides that subject to the provisions of section 6A an award published under sub section
3 shall be final and shall not be called in question in any court in any manner whatsoever Section 6A, to the provisions of which section 6(5) is made subject, provides by its sub section
that an award, including an arbitration award, shall become en 41 forceable on the expiry of 30 days from the date of its publication.
The first proviso thereof empowers the State Government, if it is of the opinion that it is inexpedient on public grounds affecting national or State economy or social justice to give effect to the whole or any part of the award, to declare by notification in the official gazette that it shall not become enforceable on the expiry of the said period of 30 days.
The, second proviso pro vides, that an arbitration award shall not become enforceable if the State Government is satisfied that it was given or obtained.
through collusion, fraud or misrepresentation.
Thus, even though an award has been published under section 6(3) and has become final and would ordinarily become enforceable on expiry of 30 days from such publication, the , State Government can make a declaration under the first proviso and under sub section 2 can within 90 days from its publication make an order either rejecting or modifying it, in which event it has to lay the award and its said order before the State Legislature.
Sub section
3 provides that if an award is rejected or modified by an order under sub section 2 and is laid before the Legislature, it shall become enforceable within 15 days from the date it is so laid.
But where no such order under sub section 2 has been made, it shall become enforceable on the expiry of 90 days referred to in sub section
Sub section 4 provides that subject to sub sections 1 and 3, an award shall come into; operation with effect from such date as may be specified therein but where no such date, is specified it shall come into operations on the date when the award becomes enforceable under sub section 1 or sub section 3, as the case may be.
The provisions of section 6, and section 6A thus make it clear that whereas the former provides for the award becoming final, the latter provides for its enforceability and the time from which it has to be implemented.
The two characteristics of the award, i.e., its finality on publication and its enforceability under section 6A, are distinct, having different points of ' time and should not, therefore, be mixed up, for, though an award has become final on its publication under section 6 it becomes en forceable in accordance with and subject to the eventualities provided in section 6A.
There are thus three different stages in the case of an award; (1) when it is signed by the adjudicating authority, (2) when it is published by the St ate Government in the prescribed manner and (3) when it becomes enforceable.
Even though an award may have become final on its being published, it becomes enforceable subject to the expiry of the different periods and the events prescribed in section 6A.
The scheme of sections 6 and 6A is to retain a certain amount of control over awards, including an arbitration award, with the State Government.
An award, therefore, does not become final as it ordinarily would be when the adjudicating authority signs M 12 Sup.
CI/69 4 42 it but becomes final when it is published in the manner prescried by the State Government.
Before such publication the Government is given the power to remit it to the adjudicating authority for reconsideration and the State Government has to publish it on its being resubmitted to it.
In spite of its becoming final on such publication it becomes enforceable only on the expiry of 30 ,days after it has become final as laid down by sub section 1 of section 6A.
But it does not so become enforceable if the Government were to make a declaration under the first proviso and an order under sub section
2 or the award specifies a date which is later than 30 days after its publication.
Therefore, the words "subject to the provisions of section 6A" in sub section 5 ' of section 6 must mean that though an award has become final on its being published it does not immediately or automatically begin to be operative as that finality is subject to the expiry of periods and the powers of the State Government under section 6A. Having seen the effect of the provisions of sections 6 and 6A, we have next to consider the scope of the correctional jurisdiction conferred on the adjudicating authority under sub section
6 of section 6.
As already observed, the sub section does not lay down in any express terms any time limit within which such jurisdiction is to be exercised.
It contemplates a correction both before and after the publication of the award, i.e. after it has become final.
If it ,is corrected before its publication the correction would be carried out without anything further having to be done.
But if it is corrected after its publication and after it has become final, a copy of the order of correction has to be sent to the State Government and the provisions as to publication of an award under section 6(3) are mutatis mutandis applicable.
The correctional jurisdiction is limited only to cases where clerical or arithmetical mistakes or errors arising from an accidental slip or omission have occurred. 'Though section 6(6) does not expressly provide for any time limit, the High Court appears to have been much impressed by section 6D which lays down the two points as to the commencement and the completion of proceedings before a labour court and a tribunal.
From these two limits it came to the conclusion that though no time limit is expressly provided in section 6(6) it must be inferred that the correctional jurisdiction under section 6(6) can only be exercised upto the time that the award becomes final and enforceable.
It will be observed that though section 6(6) empowers all the three adjudicating authorities, namely, a labour court, a tribunal and an arbitrator, to correct the award, section 6D lays down the two points of commencement and completion of proceedings only in the case of a labour court and a tribunal.
Section 6D, therefore, does not furnish an indication or a ground for inferring a time limit in section 6 (6) in the case of an award by an arbitrator.
Would that mean that though, according to the High Court, 43 there is a period within which a labour court and a tribunal can exercise the correctional jurisdiction, there would be no such limit in the case of an award by an arbitrator? In our view no such result could have been contemplated.
It would thus, appear that the two extremeties of time provided in section 6D cannot be used as a ground for inferring a time limit for the correctional jurisdiction under section 6(6).
Acceptance of the High Court 's reasoning becomes still more difficult when we examine the premises of that reasoning.
The High Court does not appear to be sure whether the limit as to time is to be the date of finality of the award or its enforceability, for, it states that the correctional jurisdiction can be exercised until the award has become final and enforceable.
As already stated, the concepts of finality and enforceability of an award are distinct and have been dealt with by the Legislature separately in sections 6 and 6A.
If it is to be reasoned that the correctional Jurisdiction can be exercised till the date when the award is published and becomes final, such a reasoning would be contrary to the provisions of section 6(6) themselves which envisages correction of an award even after it is published and has become final.
Sub section
6 expressly provides that when so corrected, the order correcting it has to be published in the manner prescribed under and within the time provided in section 6(3).
It is, therefore, manifest that the date when an award becomes final cannot be the date within which the power under section 6 (6) has to be exercised.
If, it is to be held, on the other hand, that the power to correct is to be exercised until the award has become enforceable,, the difficulty would be that there is nothing either in section 6 or section 6A or section 6D which warrants such a limitation by implication.
Is it that an award is really final when it becomes enforceable? Such a conclusion would, firstly, be contrary to the clear language of section 6 and, secondly would lead to a curious result that though it has become final on publication, it is not really so, as that finality is subject to the provisions of section 6A.
In that case, an award can be challenged in a court during the interval between its publication and the date when it becomes enforceable.
That would be so, despite the clear language of section 6(5) that an award becoming final on publication cannot thence be challenged in any court whatsoever.
Laying down by implication the time limit during which the correctional jurisdiction under section 6(6) can be exercised upto the time of the award becoming final under section 6 (5) or becoming enforceable under section 6A creates difficulties, besides, it would appear, being contrary to the provisions of these two sections and is therefore not commendable.
The correctional jurisdiction conferred on the adjudicating authority under section 6 (6) is in terms identical with the one conferred under section 152 of the Code of Civil Procedure and rule 28 of the Industrial Disputes 44 (Central) Rules 1957 and is in consonance with the first and foremost principle that no party should suffer any detriment on account of a mistake or an error committed by an adjudicating authority.
The circumstance that the proceedings before a labour court and a tribunal are deemed to be concluded under section 6D when their award becomes enforceable or that thereupon they become functus officio would also be no ground for inferring any limitation of time in section 6 (6), for, that would also be the case in the case of a civil court or an adjudicating authority under the even without a provision like section 6D and yet the legislature has not chosen in the case of either of them to lay down any limitation of 'time for exercising its correctional jurisdiction.
In our view, there are no compelling reasons to read into section 6(6) any such limitation by implication.
We are also not impressed with the difficulty which the High Court supposed would result in case section 6(6) is interpreted as not having by implication any time limit within which the, correctional power can be exercised by any of the three adjudicating authorities.
The High Court felt that if there is no such time limit an award, even after it has become enforceable and in some cases even implemented, would be rendered unsettled.
But as already stated, the power is a limited one which can be exercised only in cases where a mistake, clerical or arithmetical or an error arising from an accidental slip or omission has occurred.
The award thus would have to be corrected only within this circumscribed field.
It may be that the correction of an award might to a certain extent have an unsettling effect to what has already become settled, but the correction is made not due to any fault of the parties but of the adjudicating authority whose accidental slip or omission cannot be allowed to prejudice the interests of the parties.
We do not visualise any substantial hardship resulting from the exercise of this power which the High Court thought might arise if an award is allowed to be amended even after it has become enforceable or even if it has been enforced.
A similar difficulty can also be imagined when a civil court exercises a similar power under section 152 of the Code of Civil Procedure.
But no one has so far suggested that because of that difficulty a limitation must be inferred in that section.
A similar difficulty would also arise under r. 28 of the Industrial Disputes (Central) Rules, 1957.
But so far no one has read a similar limitation in the correctional power provided by that rule.
In our view the error which the Labour Court corrected clearly fell within section 6(6) and could be corrected even after the award had become final as a result of its having been published and had become enforceable under section 6A.
In this view it is not necessary to consider s 1 1 B or its effect especially as it is nobody 's case 45 that it was at any stage invoked or resorted to.
In the view that we have taken it was section 6 (6) and not section 1 1B which could on the facts of this case be resorted to.
The appeal, therefore, is dismissed though for reasons different from those given by the High Court.
The appellant company will pay the costs of this appeal to the respondents.
V.P.S. Appeal dismissed.
| IN-Abs | The Central Wage Board for sugar industry had recommended revised wage scales, revised categories and fitment of workmen into those, scales and categories as from November 1, 1960.
The State Government had 'accepted those recommendations fully including the date of implementation.
The appellant company, however, did not implement them and hence, its workmen raised a dispute and two questions were referred to the Labour Court namely : (1) of fitment of certain workmen in the new grades, and (2) the date from which it was to have effect.
By its award, the Labour Court held that two of the workmen should be fitted into certain grades and directed the company to do so within one month after the award became enforceable, but, omitted to fix the date from which such fitment should have effect.
On December 7. 1963, the 'award was published in the State Gazette and, under section 6A(1) of the U.P. , it became enforceable on January 7.
The appellant fitted the two workmen in the two grades from February 7, 1964, that is, one month after the award became enforceable.
The union thereupon applied to the Labour Court to amend its award on the ground that it had omitted to answer the second question referred to it and the Labour Court amended its award and directed that the two workmen should be placed in their respective grades from November 1, 1960, as recommended by the Wage Board.
The amendment was published in the Gazette on June 20, 1964.
The appellant filed a writ petition in the High Court for quashing the order of amendment, but the High Court dismissed the petition.
In appeal to this Court, on the questions : (1) Whether the correction was of an error arising from an accidental omission within the meaning of a. 6 (6) of the Act; and (2) Whether the award could be, corrected (i) after it was published in the Gazette 'and had become final, and (ii) after it had become ,enforceable.
HELD : (1) Section 6(6) enables the Labour Court to correct an accidental omission.
in the present case, the Labour Court omitted to answer the second question which it was bound to answer.
Since the first question was answered by it in accordance with the Wage Board 's recommendations and the Government 's notification accepting them fully, if the attention of the Labour Court had been drawn, it would have answered the second question also in consonance with those recommendations and the notification.
Therefore, there was an error in the award due to an accidental omission within the meaning of section 6(6) of the Act.
[39 G H; 40A] (2) (i) The scheme of sections 6 and 6A shows that there are 3 different stages before an award becomes enforceable, namely : (a) when the award is signed by the adjudicating authority; (b) when it is published and be, comes final; and (c) when it becomes enforceable under section 6A. Section 6(6) does not lay down expressly any time limit within which the correctional jurisdiction under the section should be exercised.
To hold by implication that such jurisdiction can only be exercised till the date of publica 36 tion when the award becomes final, would be contrary to the sub section which envisages the correction of an award even after it is published and has become final.
[40 C; 41 G H: 42 D E] (ii)There is nothing in sections 6, 6A or 6D to imply the limitation namely, that the power to correct is to be exercised only before the award becomes enforceable.
The circumstance that the proceedings before a Labour Court and a Tribunal are deemed to be concluded under section 6D when their award becomes enforceable and they become functus officio would be no ground for inferring such a time limit, because : (a) Since an arbitrator is not mentioned in section 6D it would lead to the result, which could not have been intended, that there is a time limit only for the Labour Court and Tribunal and not for an arbitrator; and (b) the power is similar to that of a civil court under section 152 C.P.C. or under r. 28 of the Industrial Disputes (Central) Rules, 1957 of an adjudicating 'authority under the , and is based upon the principle that no party should suffer any detriment I on account of a mistake or an error committed by any adjudicating authority, and no limitation of time for exercising the correctional jurisdiction is implied even though a civil court or an adjudicating authority under the also become functus officio after their judgment or award becomes enforceable.
Also, there is no hardship in holding that the Labour Court could correct an error under section 6(6) even after the award had become final as a result of the publication, or 'after it had become enforceable under section 6A, because, the correction is within a circumscribed field, namely, only in cases where a mistake, clerical or arithmetical, or an error arising from an accidental slip or omission, has occurred.
[42 G H; 43 A B, C E, G H; 44 A H]
|
ivil Appeals Nos. 170 to 173 of 1968.
Appeals by special leave from the judgment and order dated August 25, 1967 of the Mysore High Court in Writ Petitions Nos. 741, 973, 974 and 975 of 1966.
B. Sen, section N. Prasad and R. B. Datar, for the appellant (in all the appeals).
53 Janardan Sharma, for the respondents Nos. 4 to 14 (in C.A. No. 170 of 1968) respondents Nos. 4 to 24 and 26 to 53 (in C.A. No. 171 of 1968), respondent No. 4 (in C.A. No. 172 of 1968) and respondents Nos. 4 to 17 (in C.A. No. 173 of 1968).
The Judgment of the Court was delivered by Bhargava, J.
"these four connected appeals have been filed, by special leave, by the Town Municipal Council, Athani, and are directed against a common judgment of the High Court of Mysore in four writ petitions, filed by the appellant under article, 226 of the Constitution, dismissing the writ petitions.
The circumstances in which these appeals have arisen may be briefly stated.
Four different applications under section 33C,(2) of the No. 14 of 1947 (hereinafter referred to as "the Act") were filed in the Labour Court, Hubli, by various workmen of the appellant.
Application (LCH) No. 139 of 1965 was filed by eleven workmen on 28th July, 1965, seeking computation of their claim for overtime work for the period between 1st April, 1955 and 31st December, 1957, and for work done on weekly off days for the period between 1st April, 1955 and 31st December, 1960.
The amount claimed by each workman was separately indicated in the application under each head.
The total claim of all the workmen was computed at Rs. 62,420/82P according to the workmen themselves.
The second application (LCH) No. 138 of 1965 was presented by 50 workmen on 23rd July, 1965, putting forward a claim for washing allowance at Rs. 36 each from 1st January, 1964 to 30th June, 1965, and cost of uniform at Rs. 40 each from 1st January 1964 to 30th June, 1965 in respect of 18 of those 50 workmen.
The third application (LCH) No. 101 of 1965 was filed by one workman alone on 19th April, 1965, claiming a sum of Rs. 8,910/72P in respect of his over time work and compensation for work done on weekly off days.
The fourth application (LCH ) No. 140 of 1965 was filed on 26th July 1965 by 14 workmen making a total claim of Rs. 17,302/60P, for work done on weekly off days during the period from 1st December, 1960 to 30th June, 1965.
13 of the workmen claimed that they were entitled to payment at Rs, 1190 each, while one workman 's claim was to the extent of Rs. 1832/60P. The Labour Court at Hubli entertained all these applications under section 33C(2) of the Act, computed the amounts due to the various workmen who had filed the applications, and directed the appellant to make payment of the amounts found due.
Thereupon, the appellant challenged the decision of the Labour Court before the High Court of Mysore by four different writ petitions under article 226 of the Constitution.
The order in Application (LCH) No. 139/1965 was challenged in, 54 Writ Petition No. 741 of 1966, that in Application (LCH) No. 138/1965 in Writ Petition No. 973 of 1966; that in Applica tion (LCH) No. 101 of 1965 in Writ Petition No. 974 of 1966; and that in Application (LCH) No. 140/1965 in Writ Petition No. 975/1966.
The principal ground for challenging the decision of the Labour Court was that all these amounts could have been claimed by the workmen by filing applications under section 20(1) of the No. 11 of 1948; and, since that Act was a self contained Act making provision for relief in such cases, the jurisdiction of the Labour Court under the general Act, viz., the was taken away and excluded.
It was further pleaded that the jurisdiction of the Labour Court to deal with the claims under section 20(1) of the had become time barred and such claims, which had become time barred, could not be entertained by the Labour Court under section 33C(2) of the Act.
Some other pleas were also taken in the writ petitions which we need not mention as they have not been raised before us.
The High Court did not accept the plea put forward on behalf of the appellant and dismissed the writ petitions by a common order dated 25th August, 1967.
These four appeals are directed against that common order dismissing the four writ petitions.
Civil Appeals Nos. 170, 171, 172 and 173 of 1968 are directed against the order governing Writ Petitions Nos.
741/ 1966, 973/11966, 974/1966 and 975/1966 respectively.
In these appeals in this Court also, the principal point urged by learned counsel for the appellant was the same which was raised before the High Court in the Writ Petitions, viz., that the jurisdiction of the Labour Court to deal with the claims of the workmen under section 33C(2) of the Act, was barred by the fact that the same relief could have been claimed by the workmen under section 20(1) of the .
In the course of the arguments, however, learned counsel conceded that he could not press this point in Civil Appeal No. 171 of 1968 arising out of Writ Petition No. 973 of 1966 which was directed against the order of the Labour Court in Application (LCH) No. 138 of 1965, because the claim in that application before the Labour Court was confined to washing allowance and cost of uniform which are items not governed by the at all.
His submissions have, therefore, been confined before us to the other three appeals in which the claim of the workmen was for computation of their benefit in respect of overtime work and work done on weekly off days.
It may be mentioned that the objection to the jurisdiction of the Labour Court was raised on behalf of the appellant not 55 only in the writ petitions before the High Court, but even before the Labour Court itself when that Court took up the hearing of the applications under section 33C(2) of the Act.
However, the ground for challenging the jurisdiction of the Labour Court was confined to the point mentioned by us above.
It was not contended either before the Labour Court or in the writ petitions before the High Court that the applications were not covered by the provisions of section 33C(2) of the Act.
The plea taken was that, even though the applications could be made under section 33C(2) of the Act, the jurisdiction of the Labour Court to proceed under that provision of law was barred by the provisions of the .
Mr. B. Sen, appearing on behalf of the appellant, wanted permission to raise the question whether these applications before the Labour Court were at all included within the scope of section 33C(2) of the Act; but, on the objection of learned counsel for the respondents, the permission sought was refused.
As we have mentioned earlier, the jurisdiction of the Labour Court on this ground was not challenged either before the Labour Court itself or before the High Court.
No such ground was raised even in the special leave petition, nor was it raised at any earlier stage by any application.
It was sought to be raised by Mr. Sen for the, first time in the course of the arguments in the appeals at the time of final hearing.
We did not consider it correct to allow such a new point to be raised at this late stage.
However, another new point, which had not been raised before the Labour Court and in the writ petitions before the High Court, was permitted to be argued, because it was raised by a separate application, presented before the hearing, seeking permission to raise it.
The new question sought to be raised is that, even if the applications under section 33C(2) of the Act were competent and not barred by the provisions of the , they were time barred when presented under article 137 of the Schedule to the No. 36 of 1963.
The question of limitation was incidentally mentioned before the, Labour Court as well as the High Court, relying on the circumstance that applications under section 20(1) of the could only have been presented within a period of six months from the date when the claims arose.
At that stage, reliance was not placed on article 137 of the Schedule to the ; but, well before the final hearing, a written application was presented on behalf of the appellant seeking permission to raise this plea of limitation in these appeals.
Notice of that application was served on the res pondents well in time, so that, by the time the appeals came up for hearing, they knew that this point was sought to be raised by the appellant.
A question of limitation raises a plea of want of jurisdiction and, in these cases, this question could be decided 56 on the basis of the facts on the record, being a pure question of law.
It is in this background that we have permitted this question also to be raised in these appeals, though it was not put forward either in the High Court or before the Labour Court.
Thus, we are concerned in these appeals with the two aspects relating to the exclusion of the jurisdiction of the Labour Court to, entertain applications under section 33C(2) of the Act because of the provisions of the , and the plea that the applications under section 33C(2) of the Act were time barred Dr at least part of the claims under the applications were ame barred in view of article 137 of the schedule to the .
On the first question, both the Labour Court and the High Court held that the contention raised on behalf of the appellant that the jurisdiction of the Labour Court was excluded because of section 20(1) of the has no force, on the assumption that the claims made in these applications under section 33C(2) of the Act could have been presented before the Labour Court under section 20(1) of the .
In our view, this assumption was not justified.
As we shall indicate hereafter, the claims made by the workmen in the applications under section 33C(2) of the Act could not have been made before the Labour Court under section 20(1) of the , so that it is not necessary for us to decide the general question of law whether an application under section 33C(2) of the Act can or cannot be competently entertained by a Labour Court if an application for the same relief is entertainable by the Labour Court under section 20(1) of the .
The long title and the preamble to the show that this Act was passed with the object of making provision for fixing minimum rates of wageaein certain employments The word "wages" has been given a wide meaning in its definition in section 2(h) of that Act and, quite clearly, includes payment in respect of overtime and for work done on weekly off days which are required to be given by any employer to the workmen under the provisions of that Act itself.
Section 13(1), which deals with weekly off days, and section 14(1), which deals with overtime, are as follows : "13.
(1) In regard to any scheduled employment minimum rates of wages in respect of which have been fixed under this Act, the appropriate Government may (a) fix the number of hours of work which shall constitute a normal working day, inclusive of one or more specified intervals; 57 (b) provide for a day of rest in every period of seven days which shall be allowed to all employees or to any specified class of employees and for the payment of remuneration in respect of such days of rest; (c) provide for payment for work on a day of rest at a rate not less than the overtime rate." "14.
(1) Where an employee, whose minimum rate of wages is fixed under this Act by the hour, by the day or by such a longer wage period as may be prescribed, works on any day in excess of the number of hours constituting a normal working day, the employer shall pay him for every hour or for part of an hour so worked in excess at the overtime rate fixed under this Act or under any law of the appropriate Government for the time being in force, whichever is higher.
" In order to provide a remedy against breach of orders made under sections 13(1) and 14(1), that Act provides a forum and the manner of seeking the remedy in section 20 which is as follows : "20.
(1) The 'appropriate Government may, by notification in the Official Gazette, appoint any Commissioner for Workmen 's Compensation or any officer of the Central Government exercising functions; as a Labour Commissioner for any region, or any officer of the State Government not below the rank of Labour Commissioner or any other officer with experience as a Judge of a Civil Court or as a stipendiary Magistrate to be the Authority to hear and decide for any specified area all claims arising out of payment of less than the minimum rates of wages or in respect of the payment of remuneration for days of rest or for work done on such days under clause (b) or clause (c) of subsection (1) of section 13 or of wages at the overtime rate under section 14, to employees employed or paid in that area.
(2) Where an employee has any claim of the, nature referred to in sub section (1), the employee himself, or any legal practitioner or any official of a registered trade union authorised in writing to act on his behalf, or any Inspector, or any person acting with the permission of the Authority appointed under sub 58 section (1), may apply to such Authority for a direction under sub section (3) : Provided that every such application shall be presented within six months from the date on which the minimum wages or other amount became payable: Provided further that any application may be admitted after the said period of six months when the applicant satisfies the Authority that he had sufficient cause for not making the application within such period.
(3) When any application under sub section (2) is entertained, the Authority shall hear the applicant and the employer, or give them an opportunity of being heard, and after such further inquiry, if any, as it may consider necessary, may, without prejudice to any other penalty to which the employer may be liable under this Act, direct (i) in the case of a claim arising out of payment of less than the minimum rates of wages, the payment to the employee of the amount by which the minimum wages payable to him exceed the amount actually paid, together with the payment of such compensation as the Authority may think fit, not exceeding ten times the amount of such excess; (ii) in any other case, the payment+ of the amount due to the employee together with the payment of such compensation as the Authority may think fit, not exceeding ten rupees, and the Authority may direct payment of such compensation in cases where the excess or the amount due is paid by the employer to the employee before the disposal of the application.
(4) If the Authority hearing any application under this section is satisfied that it was either malicious, or vexatious, it may direct that a penalty not exceeding fifty rupees be paid to the employer by the person presenting the application.
(5) Any amount directed to be paid under this section may be recovered 59 (a) if the Authority is a Magistrate, by the Authority as if it were a fine imposed by the Authority as a Magistrate, or (b) if the Authority is not a Magistrate, by any Magistrate to whom the Authority makes application in this behalf, as if it were a fine imposed by such Magistrate.
(6) Every direction of the Authority under this section shall be final.
(7) Every Authority appointed under sub sec tion ( 1 ) shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908, for the purpose of taking evidence and of enforcing the attendance of witnesses and compelling the production of documents, and every such Authority shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXXV of the Code of Criminal Procedure, 1898.
" We have mentioned these provisions of the , because the language used at all stages in that Act leads to the clear inference that that Act is primarily concerned with fixing of rates rates of minimum wages, overtime rates, rate for payment for work on a day of rest and is not really intended to be an Act for enforcement of payment of wages for which provision is made in other laws, such as the No. 4 of 1936, and the No. 14 of 1947.
In section 20(1) of the also, provision is made for seeking remedy in respect of claims arising out of payment of less than the minimum rates, of wages or in respect of payment of remuneration for days of rest or for work done on such days under clause (b) or clause (c) of sub section (1) of section 13 or of wages at the overtime rate under section 14.
This language used in section 20(1) shows that the Authority appointed under that provision of law is to exercise jurisdiction for deciding claims which relate to rates of wages, rates for payment of work done on days of rest and overtime rates.
If there be no dispute as to rates between the employer and the employees, section 20(1) would not be attracted.
The purpose of section 20(1) seems to be to ensure that the 'rates prescribed under the are complied with by the employer in making payments and, if any attempt is made to make payments at lower rates, the workmen are given the right to invoke the aid of the Authority appointed under section 20(1).
In cases where there is no dispute as to rates of wages, and the only question is whether a particular payment at the agreed rate in respect of minimum wages, overtime 60 or work on off days is due to a workman or not, the appropriate remedy is provided in the .
If the payment is withheld beyond the time permitted by the even on the ground that the amount claimed by the workman is not due, or if the amount claimed by the workman is not paid on the ground that deductions are to be made by the employer, the employee can seek his remedy by an application under section 15(1) of the .
In cases where section 15 of the may not provide adequate remedy, the remedy can be sought either under section 33C of the Act or by raising an industrial dispute under the Act and having it decided under the various provisions of that Act.
In these circumstances, we are unable to accept the submission made by Mr. Sen on behalf of the appellant that section 20(1) of the should be interpreted as intended to cover all claims in respect of minimum wages or overtime payment or payment for days of rest even though there may be no dispute as to the rates at which those payments are to be claimed.
It is true that, under section 20(3), power is given to the Authority dealing with an application under section 20(1) to direct payment of the actual amount found due; but this, it.
appears to us, is only an incidental power granted to that Authority, so that the directions made by the Authority under section 20(1) may be effectively carried out and there may not be unnecessary multiplicity of proceedings.
The power to make orders for payment of actual amount due to an employee under section 20(3) cannot, therefore, be interpreted as indicating that the jurisdiction to the Authority under section 20(1) has been given for the purpose of enforcement of payment of amounts and not for the purpose of ensuring compliance by the employer with the various rates fixed under that Act.
This interpretation, in our opinion, also harmonises the provisions of the with the provisions of the which was already in existence when the was passed.
In the present appeals, therefore, we have to see whether the claims which were made by the workmen in the various applications under section 33C(2) of the Act were of such a nature that they could have been brought before the Authority under section 20(1) of the inasmuch as they raised disputes relating to the rates for payment of overtime and for work done on weekly off days.
We have examined the applications which were presented before the Labour Court under section 33C(2) of the Act in these appeals and have also taken into account the pleadings which were put forward on behalf of the appellant in contesting those applications and we are unable to find that there was any dispute 61 relating to the rates.
It is true that, in their applications, the workmen did plead the rates at, which their claims had to be computed; but it was nowhere stated that those rates were being disputed by the appellant.
Even in the pleadings put forward on behalf of the appellant as incorporated in the order of the Labour Court, there was no pleading that the claims of the workmen were payable at a rate different from the rates claimed by them.
It does appear that, in one case, there was a pleading on behalf of the appellant that no rates at all had been prescribed by the Mysore Government.
That pleading did not mean that it became a dispute as to the rates at which the payments were to be made by the appellant.
The only question that arose was whether there were any rates at all fixed under the for overtime and for payment for work done on days of rest.
Such a question does not relate to a dispute as to the rates enforceable between the parties, so that the remedy under section 20(1) of the could not have been sought by the applicants in any of these applications.
No question can, therefore, arise of the jurisdiction of the Labour Court to entertain these applications under section 33C(2) of the Act being barred because of the provisions of the .
The first point raised on behalf of the appellant thus fails.
In dealing with the second question relating to the applicability of article 137 of the schedule to the to applications under section 33C(2) of the Act, we may first take notice of two decisions of this Court on the scope of the parallel provision contained in article 181 of the First Schedule to the Indian No. 9 of 1908.
Article 181 of that Schedule laid down that the period of limitation for an application, for which no period of limitation was provided elsewhere in the schedule or by section 48 of the Code of Civil Procedure, 1908, would be three years, and the time from which the period would begin to run would be when the right to apply accrued.
The scope of this article was considered first by this Court in Sha Mulchand & Co. Ltd. (In Liquidation) vs Jawahar Mills Ltd.(1) where the Court had to consider the question whether this article would govern an application made by the Official Receiver under section 38 of the Indian Companies Act for rectification of the register of a limited company.
The Court noted the fact that the advocate appearing in the case relied strongly on article 181 of the and, thereafter, took notice of the fact that that article had, in a long series of decisions of most, if not all, of the High Courts, been held to govern only applications under the Code of Civil Procedure.
The Court also dealt with the argument advanced (1) ; 62 that the reason for holding that article 181 was confined to applications under the Code was that the article should be construed ejusdem generis and that, as all the articles in the third division of the schedule to the related to applications under the ' Code, article 181, which was the residuary article, must be limited to applications under the Code.
That reasoning, it was pointed out, was no longer applicable because of the amendment of the by the introduction of articles 158 and 178 which governed applications under the Arbitration Act and not thus under the Code.
The Court then considered the views expressed by the various High Courts in a number of cases and held : "It does not appear to us quite convincing, without further argument, that the mere amendment of articles 158 and 178 can ipso facto alter the meaning which, as a result of a long series of judicial decisions of the different High Courts in India, came to be attached to the language used in article 181.
This long catena of decisions may well be said to have, as it were, added the words 'under the Code ' in the first column of that article.
If those words had actually been used in that column, then a subsequent amendment of articles 158 and 178 certainly would not have affected the meaning of that article.
If, however, as a result of judicial construction, those words have come to be read into the first column as if those words actually occurred therein, we are not of opinion, as at present advised, that the subsequent amendment of articles 158 and 178 must necessarily and automatically have the effect of altering the long acquired meaning of article 181 on the sole and simple ground that after the amendment the reason on which the old construction was founded is no longer available.
" This earlier decision was relied upon by the Court in Bombay Gas Co. Ltd. v Gopal Bhiva and Others(1), where the Court had to deal with the argument that applications under section 33C of the Act will be governed by three years ' limitation provided by article 181 of the .
The Court, in dealing with this argument held : "In our opinion, this argument is one of desperation.
It is well settled that article 181 applies only to applications which are made under the Code of Civil Procedure,, and so, its extension to applications made under section 33C(2) of the Act would not be justified.
As early (1) ; , 722 23. 63 as 1880, the Bombay High Court had held in Rai Manekbai vs Manekji Kavasji(1), that art 181 only relates to applications under the Code of Civil Procedure in which case no period of limitation has been prescribed for the application, and the consensus of judicial opinion on this point had been noticed by the Privy Council in Hansraj Gupta vs Official Liquidators, Dehra Dun Mussoorie Electric Tramway Company Ltd. (2) An attempt was no doubt made in the case of Sha Mulchand & Co. Ltd. vs Jawahar Mills Ltd.() to suggest that the amendment of article 158 and 178 ipso facto altered the meaning which had been attached to the words in article 181 by judicial decisions, but this attempt failed, because this Court held 'that the long catena of decisions under article 181 may well be said to have, as it were, added the words "u nder the Code" in the first column of that Article '.
Therefore, it is not possible to accede to the argument that the limitation prescribed by article 181 can be invoked in dealing with applications, under section 33C(2) of the Act.
" It appears to us that the view expressed by this Court in those cases must be held to be applicable, even when considering the scope and applicability of article 137 in the new of 1963.
The language of article 137 is only slightly different from that of the earlier article 181 inasmuch as, when prescribing the three years period of limitation, the first column giving the description of the application reads as "any other application for which no period of limitation is provided elsewhere in this division.
In fact, the addition of the word "other" between the words "any" and "application" would indicate that the legislature wanted to make it clear that the principle of interpretation of article 181 on the basis of ejusdem generis should be applied when interpreting the new article 137.
This word "other" implies a reference to earlier articles and, consequently, in interpreting this article, regard must be had to the provisions contained in all the earlier articles.
The other articles in the third division to the schedule refer to applications under the Code of Civil Procedure, with the exception of applications under the Arbitration Act and also in two cases applications under the Code of Criminal Procedure.
The effect of introduction in the third division of the schedule of reference to applications under the Arbitration Act in the old has already been considered by this Court in the case of Sha Mulchand & Co. Ltd. (3).
We think that, on the same principle, it (1) (1880) 1. L. R. (2) (1932) L. R. 60 1.
A. 13, 20 (3) ; 64 must be held that even the further alteration made in the articles contained in the third division of the schedule to the new containing references to applications under the Code of Criminal Procedure cannot be held to have materially altered the scope of the residuary article 137 which deals with other applications.
It is not possible to hold that the intention of the legislature was to drastically alter the scope of this article so as to include within it all applications, irrespective of the fact whether they had any reference to the Code of Civil Procedure.
This point, in our opinion, may be looked at from another angle also.
When this Court earlier held that all the articles in the third division to the schedule, including article 181 of the of 1908 governed applications under the Code of Civil Procedure only, it clearly implied that the application must be presented to a Court governed by the Code of Civil Procedure.
Even the applications under the Arbitration Act that were included within the third division by amendment of articles 158 and 178 were to be presented to courts whose proceedings were governed by the Code of Civil Procedure.
At best, the further amendment now made enlarges the scope of the third division of the schedule so as also to include some applications presented to courts governed by the Code of Criminal Procedure.
One factor at least remains constant and that is that the applications must be to courts to be governed by the articles in this division.
The scope of the various articles in this division cannot be held to have been so enlarged as to include within them applications to bodies other than courts, such as a quasi judicial tribunal, or even an executive authority.
An Industrial Tribunal or a Labour Court dealing with applications or references under the Act are not courts and they are in no way governed either by the Code of Civil Procedure or the Code of Criminal Procedure.
We cannot, therefore, accept the submission made that this article will apply even to applications made to an Industrial Tribunal or a Labour Court.
The alterations made in the article and in the new Act cannot, in our opinion, justify the interpretation that even applications presented to bodies, other than courts, are now to be governed for purposes of limitation by article 137.
Reliance in this connection was placed by learned counsel for the appellant primarily on the decision of the Bombay High Court in The Manager, Mls.
P. K. Porwal vs The Labour Court at Nagpur(1).
We are unable to agree with the view taken by the Bombay High Court in that case.
The High Court ignored the circumstance that the provisions of article 137 were sought to be applied to an application which was presented not to a court but (1) 70 B. L. R. 104.
65 to a Labour Court dealing with an application under section 3 3C (2) of the Act and that such a Labour Court is not governed by any procedural code relating to civil or criminal proceedings.
That Court appears to have been considerably impressed by the fact that, in the new of 1963, an alteration was made in the long title which has been incorrectly described by that Court as preamble.
Under the old , no doubt, the long title was "An Act to consolidate and amend the law for the limitation of suits and for other purposes", while, in the new Act of 1963, the long title is "An Act to consolidate and amend the law for the limitation of suits and other proceedings and for purposes connected therewith".
In the long title, thus, the words "other proceedings" have been added; but we do not think that this addition necessarily implies that the is intended to govern proceedings before any authority,.
whether executive or quasijudicial, when, earlier, the old Act was intended to govern proceedings before civil courts only.
It is also true that the preamble which existed in the old of 1908 has been omitted in the new Act of 1963.
The omission of the preamble does not, however, indicate that there was any intention of the legislature to change the purposes for which the has been enforced.
The, Bombay High Court also attached importance to the circumstance that the scope of the new has been enlarged by changing the definition of "applicant" in section 2(a) of the new Act so as to include even a petitioner and the word " application" so as to include a petition.
The question still remains whether this alteration can be held to be intended to cover petitions by a petitioner to authorities other than Courts.
We are unable to find any provision in the new which would justify holding that these changes in definition were intended to make the applicable to proceedings before bodies other than Courts.
We have already taken notice of the change introduced in the third division of the schedule by includ ing references to applications under the Code of Criminal Procedure, which was the only other aspect relied upon by the Bombay High Court in support of its view that applications under section 33C of the Act will also be governed by the new article 137.
For the reasons we have indicated earlier, we are unable to accept the view expressed by the Bombay High Court; and we hold that article 137 of the schedule to the does not apply to applications under section 33C(2) of the Act, so that the previous decision of this Court that no limitation is prescribed for such applications remains unaffected.
The appeals fail and I are dismissed with costs.
One hearing fee.
V.P.S. Appeals dismissed.
| IN-Abs | Applications, in which the claim of the workmen of the appellant for computation of their benefit in respect of over time work and work done on weekly off days, were entertained by the Labour Court, under section 33C(2) of the .
The Labour Court computed the amounts due to the various workmen and directed the appellant to make the payments.
Writ petitions filed by the appellant in the High Court challenging the decision of the Labour Court were dismissed.
In appeal to this Court, it was contended that : (1) The jurisdiction of the Labour Court to proceed with the applications was barred by the provisions of the ; and (2) Even if the applications were competent and not barred by the , they were time barred under article 137 of the .
HELD : (1) The is concerned with the fixing of rates rates of minimum wages, overtime rates, rates for payment of work on a day of rest and is not intended for enforcement of payment of wages.
Under section 20(1) of the, , in which provision is made for seeking remedy in respect of claims arising out of payment of less than minimum rates, or in respect of remuneration for days of rest, or for work on such days, or of wages at the overtime rates, the Authority is to exercise jurisdiction for deciding claims which relate to rates of wages, rates for payment of work done on days of rest and overtime rates.
The power under section 20(3) of the given to the Authority dealing with an application under section 20(1) to direct payment of the actual amount found due, is only an incidental power for working out effectively the directions under section 20(1) fixing various rates under the Act.
That is, if there is no dispute as to rates between the employer and the employee and the only question is whether a particular payment at the agreed rate is due or not, then section 20(1) of the would not be attracted at all, and the appropriate remedy would only be either under section 15(1) of the , or under section 33C(2) of the .
[59 D G; 60 B C] In the present case, there was no dispute by the appellant about the rates put forward by the workmen; and a pleading by the, appellant in one ' of the applications that the State Government had not prescribed any rates under the , did not mean that there was a dispute as to the rates claimed by the workmen.
Therefore, the remedy under section 20(1) of the could not have been sought by the workmen, and hence, the question of the jurisdiction of the Labour Court to entertain the applications under section 33C(2) of the industrial Disputes Act being barred because of the, provisions of the , could not arise.[61 A D] 52 (2) (a) Though the question of limitation under article 137 of the 1963Act was not raised either in the Labour Court or the High Court, it could be allowed to be raised in this Court, because, a question of limitation raises a plea of want of jurisdiction and is a pure question of law, when it could be decided on the basis of the facts on the record, and the respondents had sufficient notice of the question.
[55 G H] (b) Article 137 of the governs only applications presented to courts under the Civil and Criminal Procedure Codes.
The use of the word 'other ' in the first column of the article giving the description of the application as 'any other application for which no period of limitation is provided elsewhere in this division ', indicates that the Legislature wanted to make it clear that the interpretation put by this Court in Mulchand vs Gopal Bhiva; , , 722 723 on article 181 of the 1908 Act on the basis of ejusdem generis should be applied to article 137 of 1963 Act also, the language of which, is only slightly different from that of article 181 of the 1908 Act.
That is, in interpreting article 137 of the 1963 Act regard must be had to the provisions contained in the earlier articles.
These articles refer to applications under the Code of Civil Procedure, to two cases of applications under the Arbitration Act, and to two cases of applications under the Code of Criminal Procedure.
This Court in Mulechand & Co. Ltd. case held that the reference to applications under the Arbitration Act had no effect on the interpretation of article 181 of the 1908 Act and that, that article applied only to applications under the Code of Civil Procedure.
On the same principle, the further alteration made in, the articles in 1963 Act containing reference to applications under the Code of Criminal Procedure could not alter the scope of article 137 of the 1963 Act.
Moreover even the applications under the Arbitration Act were to be presented to courts whose proceedings are governed by the Code of Civil Procedure.
The further amendment including applications governed by the Criminal Procedure Code still shows that the applications must be to courts.
The alterations in the 1963 Act, namely, the inclusion of the words 'other proceedings ' in the long title to the 1963 Act, the omission of the, preamble and change in the, definition so as to include 'petition ' in word 'application ', do not show an intention to make article 137 applicable to proceedings before bodies other than courts such as quasi judicial tribunals and executive bodies.
[63 D H; 64 A G; 65 B F] In the present case, since the applications were presented to the Labour Court, a tribunal which is not a court governed by the Civil or Criminal Procedure Codes, the applications are not governed by article 137 of 1963 Act.
[65 G H] Manager Mls.
P. K. Porwal vs The Labour Court at Nagpur, 70 B.L.R. 104, overruled.
|
Appeal No. 808 of 1966.
Appeal by special leave from the judgment and order dated September 3, 1965 of the Gujarat High Court in Civil Revision Application No. 244 of 1965.
82 Arun H. Mehta and I. N. Shroff, for the appellant.
S.T. Desai, P. C. Bhartari, J. B. Dadachanji and O. C. Mathur, for the respondent.
The Judgment of the Court was delivered by Shah, J.
The respondent is the owner of a house in the town of Ahmedabad.
The appellants are the tenants of that house at a monthly rental of Rs. 2,171/ .
Under the agreement of lease the appellants were to pay out of the agreed rent Rs. 810/ per month, and the balance was to be appropriated towards a loan advanced by them to the respondent for constructing the house.
The appellants had also agreed to pay municipal taxes and electricity charges.
The appellants filed suit No. 1308 of 1963 in the Court of the Small Causes, Ahammadabad, for an order, inter alia, determining the standard rent of the premises in exercise of the power under section 11 of the Bombay Rents, Hotel and Lodging House Rates Control Act 57 of 1947.
The Court of Small Causes, Ahamadabad, on an application filed by the appellants fixed the contractual rent as "interim standard rent" and directed the appellants to pay the rent and municipal taxes.
Pursuant to this order, the appellants deposited Rs. 2,403/ as rent and Rs. 8,921.25 due as municipal taxes for the year 1964 65.
An application by the respondent to withdraw the amount deposited in Court was resisted by the appellants.
The Court permitted the respondent to withdraw Rs. 2,403/ but not the municipal taxes.
The respondent then obtained an order for the issue of a distress warrant under section 53 of the 15 of 1882 read with r. 5 of the Rules framed under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, for recovery of the amount due as municipal taxes.
Distress was levied, and the order was confirmed.
A revision application moved in the High Court of Gujarat against that order was rejected.
In support of this appeal counsel for the appellants urges that r. 5 of the Rules framed under section 49 of the Bombay Rents, Hotel and Lodging House Rates Control Act 57 of 1947, is ultra vires the State Government; that the Court of Small Causes Ahmedabad has in any event no jurisdiction to pass an order issuing a distress warrant when trying a suit or proceeding under Bombay Act 57 of 1947 especially when an application for determination of standard rent under section 1 1 of the Act is pending; and that the municipal taxes and electricity charges do not constitute rent which may be recovered by the issue of a distress warrant.
By the express terms of the tenancy the appellants had undertaken to pay the municipal taxes and electricity charges as part of 83 the rent it is not open to them to contend that they are not rent recoverable by the issue of a distress warrant.
The last branch of the argument has, therefore, no force.
The relevant provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act 57 of 1947 and other statutes which have a bearing may first be noticed.
Bombay Act 57 of 1947 was intended to control rents and to confer protection against eviction upon tenants of premises in certain urban areas in the Province of Bombay.
By section 28 of the Act certain courts were designated as courts of exclusive jurisdiction to entertain and try suits and proceedings between a landlord and tenant, relating to recovery of rent or possession to which the provisions of the Act applied, and also to decide claims or questions arising under the Act.
Section 28 as originally enacted and later amended by Bombay Acts 58 of 1949 and 15 of 1952, insofar as it is material reads : "(1) Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or "proceeding would not, but for this provision, be within its jurisdiction, (a) in Greater Bombay, the Court of Small Causes, Bombay; (aa) in any area for which, a Court of Small Causes is established under the Provincial Small Cause Courts, Act, 1887, such Court and (b).
shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions and subject to the provisions of subsection (2), no other court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question.
Section 28 did not set up new Courts to try suits or proceedings between landlords and tenants : it invested existing courts with exclusive jurisdiction to try suits and proceedings of the nature set out and claims or questions arising under the Act.
Section 31 of the Act provides, inter alia, that the courts specified in section 28 shall follow the prescribed procedure in trying and hearing suits, proceedings, applications and appeals and in executing orders 84 made by them.
Section 49 authorises the State Government to make rules for the purpose of giving effect to the provisions of the Act and in particular to make rules, among other subjects, for the procedure to be followed in trying or hearing suits, proceedings (including proceedings for execution of decrees and distress warrants), applications, appeals and execution of orders.
Pursuant to the authority conferred, rules were framed by the Government of Bombay and r. 5 which deal with the procedure to be followed by the Court of Small Causes, Bombay, for suits, proceedings, appeals, etc.
provided insofar as it is material : "In such of the following suits and proceedings as are cognizable by the Court of Small Causes, Bombay, on the date of the coming into force of these Rules, namely (2) proceedings under Chapter VII and VIII of the , and (3) proceedings for execution of any decree or order passed in any such suit or proceedings, the Court of Small Causes, Bombay, shall follow the practice and procedure provided for the time being (a) in the said Act, except Chapter VI thereof, and (b) in the rules made under section 9 of the said Act.
" By the enactment of the Bombay Reorganization Act 11 of 1960 a separate State of Gujarat was constituted out of the territory which formed the State of Bombay, and the area within the city limits of Ahmedabad formed part of the State of Gujarat.
By the Gujarat Adaptation of Laws (State and Concurrent Subjects) Order, 1960, cl.
(a) of sub section
(1) of section 28 of Bombay Act 57 of 1947 as it was originally enacted was deleted.
The Legislature of the State of Gujarat enacted the Ahmedabad City Courts Act 19 of 1961 which by section 17 provided that the (XV of 1882), shall extend to and come into force in the City of Ahmedabad on and from the appointed day.
By section 18 it was provided : "The (XV) of 1882), and the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bom.
LVII of 1947), shall in their application to the City of Ahmedabad stand amended in the manner and to the extent specified in the Schedule.
" By section 19 it was provided : "With effect on and from the appointed day. the Provincial Small Cause Courts Act, 1887 (IX of 85 1887), and all rules, notifications and orders made thereunder shall cease to apply to, or be in force, in the City of Ahmedabad, By the Schedule certain amendments were made in the , in its application to the City of Ahmedabad By cl. 13 of the Schedule, section 50 of the was to apply to every place within the City of Ahmedabad.
Certain amendments were also made in section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, and in sub section (1) of section 28, before cl.
(aa) the following clause was inserted : "(a) in the City of Ahmedabad, the Court of Small Causes of Ahmedabad," By the enactment of the Ahmedabad City Courts Act, 1961, the proceedings before the Court of Small Causes at Ahmedabad were governed by that Act and by virtue of the amendment made in section 28 of Bombay Act 57 of 1947 it became a Court of exclusive jurisdiction to try suits, proceedings, claims and questions arising under that Act.
Being a Court governed by the , the Ahmedabad Court of Small Causes was competent to exercise, subject to the Ahmedabad City Courts Act, all the powers which a Presidency Small Causes Court may exercise.
Power to issue a distress warrant being expressly conferred by section 53 of the upon the Courts governed by it, the Court of Small Causes, Ahmedabad, was competent to exercise that power.
Rule 5 was framed under the Bombay Act 57 of 1947 in exercise of the authority conferred by section 49 (2) (iii).
After the enactment of the Ahmedabad City Courts Act, 1961, r. 5 as originally framed by the Government of Bombay continued in force by virtue of section 87 of the Bombay Reorganization Act 11 of 1960, and applied to the Ahmedabad Small Causes Court.
When r. 5 was framed under Bombay Act 57 of 1947 it was not ultra vires, and it is not shown to have become ultra vires after the enactment of the Ahmedabad City Courts Act in its application to the City of Ahmedabad.
The argument that section 28 sets up a new set of Courts, with special powers and jurisdiction is without substance.
Section 28 merely confers upon the existing Courts exclusive jurisdiction in respect of matters relating to possession of premises and recovery of rent and to determine claims and questions arising under that Act.
On that account it does not become a Special Court : it is a court which is competent to exercise all the powers which are conferred upon it by virtue of its constitution under the statute which governs it.
The Court of Small Causes at Ahmedabad had, 86 therefore, power to issue distress warrant and that power could be exercised even in respect of suits and proceedings which were exclusively triable by it by virtue of the Bombay Act 57 of 1947.
We are also unable to hold that so long as an application for fixation of standard rent is pending, the Court 's jurisdiction to issue a distress warrant remains suspended.
Until standard rent is determined, or an interim order is made, rent at the contractual rate is payable and process for recovery by distress warrant may always be adopted.
Section II of Bombay Act 57 of 1947 confers upon the Court power to fix standard rent and permitted increases in certain cases.
The Court is also competent to determine interim standard rent, and direct payment pending final determination of standard rent.
The appellants applied for fixation of standard rent and invited the Court to pass an order fixing interim standard rent and the Court of Small Causes proceeded to pass the order for payment of rent and municipal taxes.
In the present case there was an express order of the Court requiring the appellants to deposit in Court Rs. 810/ per month and also to deposit municipal taxes.
The Court of Small Causes ordered that the amount deposited by the appellants towards municipal taxes shall not be paid over to the landlord.
The amount was on that account not available to the respondent.
The respondent was unable to pay the taxes and the Municipality threatened to attach the property.
The amount of municipal taxes was due and it was payable by the appellants.
Though deposited in Court, it could not be withdrawn by the respondent.
The municipal taxes were, therefore, in arrears and a distress warrant could be applied for under section 53 of the by the respondent.
It was urged that the appellants had to pay the amount of interim standard rent twice over : once when they deposited it in the Court and again when they satisfied the demand to avoid execution of the distress warrant.
The landlord undoubtedly cannot obtain the amount twice over.
But that does not mean that when the tenant has not made the amount available to the landlord the application for distress was not maintainable.
The argument that the erroneous order passed by the Court of Small Causes preventing the landlord from recovering the amount of municipal taxes could have been got corrected by approaching the superior courts and so long as that order stood, no distress could be levied, ignores the fact that the appellants had persuaded the Court of Small Causes to pass that order.
In our judgment, there was no bar to the respondent maintaining the application for distress.
The appeal fails and is dismissed with costs.
G.C. Appeal dismissed.
| IN-Abs | Jurisdiction to try suits and proceedings between landlords and tenants under the Bombay Rents, Hotel and Lodging House Rates Control Act 57 of 1947 was by virtue of section 28 of the Act given to Small Cause Courts.
Under section 49 of the Act the State Government was authorised to make rules for the purpose of giving effect to the provisions of the Act and in particular to make rules among other subjects, for the procedure to be followed in trying or hearing suits and proceedings including proceedings for execution of decrees and distress warrants.
For these purposes the Government of Bombay under r. 5 framed by it provided that the procedure under the would be followed.
By the enactment of the Bombay Reorganization Act 11 of 1960 a separate State of Gujarat was constituted out of the territory which formed the State of Bombay, and the area within the city limits of Ahmedabad formed part of the State of Gujarat.
The Legislature of the State of Gujarat enacted the Ahmedabad City Courts Act 19 of 1961 which by 17 extended the (15 of 1882) as well as the Bombay Rents Hotel and Lodging House Rates Control Act 57 of 1947 to the City of Ahmedabad with suitable modifications and amendments.
Jurisdiction to try suits under the Bombay Act was by amendment of section 28 thereof given to the Court of Small Causes Ahmedabad.
The appellants were tenants of a house owned by the respondent in Ahmedabad.
Apart 'from the rent the appellants had also agreed to pay municipal taxes and electricity charges.
In 1963 the appellants filed a suit in the Court of Small Causes Ahmedabad for an order inter alia determining the standard rent of the premises in exercise of the power under section 11 of Bombay Act 57 of 1947.
The said court on an application filed by the appellants fixed the contractual rent as the 'interim standard rent ' and directed the appellants to pay rent and municipal taxes, which the appellants accordingly deposited in Court.
The Court permitted the respondent to withdraw the rent so deposited but not the municipal taxes.
The respondent then obtained an order for the issues of a distress warrant under section 53 of the Presidency Small Cause Court , Act 15 of 1882 read with r. 5 of the Rules framed under Bombay Act 57 of 1947 for recovery of the amount due as municipal taxes.
Distress was levied and the order was confirmed.
A revision application in the High Court of Gujarat was rejected.
In their appeal against the High Court 's order the appellants urged : (i) that r. 5 of the Rules 'framed under section 49 of the Bombay Act 57 of 1947 was ultra vires the State Government; (ii) that the Court of Small Causes Ahmedabad had no jurisdiction to pass an order issuing a distress warrant in a proceeding under Bombay Act 57 of 1947 especially 81 when an application under section 11 was pending; (iii) that the municipal taxes and electricity charges did not constitute rent which could be recovered by the issue of a distress warrant.
HELD: (i) Rule 5 was framed under Bombay Act 57 of 1947 in exercise of the authority conferred by section 49(2)(iii).
After the enactment of the Ahmedabad City Courts Act, 1961, r. 5 as originally 'framed by the Government continued in force by virtue of section 87 of the Bombay Reorganization Act 11 of 1960, and applied to the Ahmedabad Small Causes Court.
When r. 5 was framed under Bombay Act 57 of 1947 it was not ultra vires and it was not shown to have become ultra vires after the enactment of the Ahmedabad City Courts Act in its application to the City of Ahmedabad.
[85 F G] (ii) The distress warrant issued by the Court of Small Causes Ahmedabad against the appellant was within its powers.
By the enactment of the Ahmedabad City Courts Act, 1961, the proceedings before the Court of Small Causes at Ahmedabad were governed by that Act and by virtue of the amendment made in section 28 of Bombay Act 57 of 1947 it became a court of exclusive jurisdiction to try suits, proceedings, claims and questions arising under that Act.
Being a court governed by the Presidency Small Causes Courts Act, the Ahmedabad Court of Small Causes was competent to exercise, subject to the Ahmedabad City Courts Act, all the powers which a Presidency Small Cause Court could exercise.
Power to issue a distress warrant being expressly conferred by section 53 of the upon the Courts governed by it, the Court of Small Causes Ahmedabad, was competent to exercise that power.
[85 D E] Section 28 does not make the Court of Small Causes trying suit under the Bombay Act a special Court : it is a court which is comptent to exercise all the powers conferred on it under the statute which governs it.
Its power to issue distress warrant could therefore be exercised even in respect of suits and proceedings which were exclusively triable by it by virtue of the Bombay Act 57 of 1947.
[85 H] Pendency of an application for fixation of standard rent does not suspend the court 's power to issue distress warrant, for until standard rent is determined or an interim order is made, rent at the contractual rate is payable and process for recovery by distress warrant may always be adopted.
In the present case the amount of municipal taxes was due and it was payable by the appellants.
Though deposited in Court it could not be withdrawn by the respondent.
The municipal taxes were therefore ill arrears and a distress warrant could be applied for under section 53 of the Presidency Small Cause Court by the respondent.
It was not necessary for the respondent to approach a higher court against the erroneous order of the Small Cause Court preventing him from recovering the amount of municipal taxes.
[86 B G] (iii) By the express terms of the tenancy the appellants had undertaken to pay the municipal taxes and electricity charges as part of the rent : it was not open to them to contend that these taxes and charger were not rent recoverable by the issue of a distress warrant.
[83 H 84 A]
|
Appeal Nos. 429 and 430 of 1966 Appeals by special leave from the judgments and orders dated January 22, 1964 of the Calcutta High Court in Appeals Nos. 199 and 200 of 1962 from Original Order.
B.Sen and section P. Nayar, for the appellants (in both the appeals).
A.N. Sinha and D. N. Gupta, for respondent No. 1 (in both the appeals).
The Judgment of the Court was delivered by Hidayatullah, C.J.
This is an appeal against the judgment and decree of the High Court of Calcutta refusing to enter satisfaction of two decrees under O. 21 r. 2 of the Code of Civil Procedure obtained by the respondents against the Union of India in the following circumstances.
The respondents M/s Soorajmull Nagarmull imported spindle oil from Philadelphia.
The firm was required to pay Customs Duty under Item 27(3) of the First Schedule to the Tariff Act, 1934 at 27% ad valorem.
The firm filed two suits asking for refund of excess duty claiming that the oil was dutiable only under Item 27(8) at /2/6 per imperial gallon.
The suits were filed against the Collector of Customs, the Assistant Collector of Customs for Appraisement and the Union of India.
The suits were successful and decrees were passed against the Union of India for refund of the amount charged in excess.
In one suit the decree was for payment of Rs. 43,723/ with interest at 6% per annum from 1st day of April, 1952 until realisation.
In the second suit the decree was for Rs. 75,925/ with similar interest.
Since the firm had not paid a sum of Rs. 18,08,667.72 as tax the Income Tax Officer, Circle 11, Calcutta issued a notice under section 46(5a) of the Indian Income Tax Act, 1922 calling upon the Collector of Customs to pay the amount of the decree to him and stating that his receipt would constitute a good and sufficient discharge of the liability for refund to the firm.
The Collector of Customs paid the amount into the Reserve Bank and the Reserve Bank issued receipts crediting the amount against Super 125 tax due from the firm.
The Collector of Customs then applied to the High Court of Calcutta under 0.
21 r. 2 of the Code of Civil Procedure for the adjustment of the decrees by this payment.
This was refused by a learned single Judge who gave no reasons while dismissing the petition.
On appeal to the Division Bench it was held by the Division Bench on January 22, 1964 that the adjustment of the decrees could not be granted.
It is against the last order that the present appeals have been filed by ,special leave of this Court.
The High Court in reaching the conclusion observed that the decrees were against the Union of India and not the Collector of Customs.
Further the sums were held by the Collector of Customs on behalf of the Union of India and not on behalf of the firm.
The High Court found the notice to be defective inasmuch as it asked for payment towards Income tax and towards penalty, while in the receipts which were granted to the firm, stated that the amount was for Super tax.
On these three grounds, the High Court held that the learned single Judge was right in dismissing the application of the Collector of Customs for the adjustment of the decrees.
Order 2 1, r. 2 of the Code of Civil Procedure takes note of payments out of court to decree holders and provides that where any money payable under a decree of any kind is paid out of Court, or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree holder, the decree holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly.
It is also provided that the judgment debtor also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree holder to show cause why such payment or adjustment should not be recorded as certified.
The contention of the respondents in these appeals is that the decrees were not passed against the Collector of Customs but against the Union of India and that payment by the, Collector of Customs was not a payment by the judgment debtor.
In our judgment this plea is highly technical.
The amount was recoved by the Collector of Customs from the firm and was being held by the Union of India through the Collector of Customs.
The Collector of Customs paid the money not on behalf of himself but on behalf of the Union of India and it must be treated as a proper payment of the amount to the firm.
The objection of the respondent that it amounts to a payment by one Department of the Government to another does not, in our opinion, hold much substance.
It is also extremely technical.
The Union of India 126 operates through different Departments and a notice to the Collector of Customs in the circumstances was a proper notice to issue because it was the Collector of Customs who had in the first instance recovered this money and held it from the firm.
It is next contended that the notice is defective inasmuch as it shows that the money was lying with the Collector of Customs whereas it was, in fact, lying with the Union of India and that it was not money held by the Collector of Customs on behalf of the firm.
Section 46(5A) of the Income tax Act reads as follows : "46.
Mode and time of recovery.
(5A) The Income tax Officer may at any time or from time to time, by notice in writing (a copy of which shall be forwarded to the asessee at his last address known to the Income tax Officer) require any person from whom money is due or may become due to the assessee or any person who holds or may subsequently hold money for or on account of the assessee to pay to the Income tax Officer, either forthwith upon the money becoming due or being held or at or within the time specified in the notice (riot being before the money becomes due or is held) so much of the money as is sufficient to pay the amount due by the tax payer in respect of arrears of income tax and penalty or the whole of the money when it is equall to or less than that amount.
Any person making any payment in compliance with a notice under this I sub section shall be deemed to have made the payment under the authority of the assessee and the receipt of the income tax Officer shall constitute a good and sufficient discharge of the liability of such person to the assessee to the extent of the amount referred to in the receipt.
Any person discharging any liability to the assessee after receipt of the notice referred to in this sub section shall be personally liable to the Income tax Officer to the extent of the liability discharged or to the extent of the liability of the assessee for tax and penalties, whichever is less.
127 If the person to whom a notice under this sub section is sent fails to make payment in pursuance thereof to the Income tax Officer, further proceedings may be taken by and before the Collector on the footing that the Income tax Officer 's notice has the same effect as an attachment by the Collector in exercise of his powers under the proviso to sub section (2) of section 46.
Such notices of the Income tax Officer are no more than a kind of a garnishee order issued to the person holding money which money is due to an assessee.
The Collector of Customs had recovered this money and under the decrees of the Court the Union of India was liable to refund it to the firm.
A garnishee order is issued to a debtor not to pay to his own creditor but to some third party who has obtained a final judgment against the creditor.
By a parity of reasoning this amount, which was with the Collector of Customs, could be asked to be deposited with the Income tax Authorities under section 46(5A).
The argument is extremely technical for that the firm is entitled to get a double benefit of the decree, first by having the decretal amount paid to the benefit of the firm and then to recover it again from the Union of India.
It is contended lastly that the notice of the Income tax Officer spoke of Income tax and/or penalty whereas the amount was taken towards payment of Super tax due from the firm It is, however, conceded in the face of authorities cited at the Bar that the Super tax is also a kind of Income tax and, therefore, the notice could issue in the form it did.
The leading case on the subject is In re Beckitt(1) and learned counsel for the respondents did not controvert the proposition laid down there.
It is, however argued on the authority of Bidhoo Beebee vs Keshub Chunder Baboo and Ors., (2) Mahiganj Loan Office, Ltd. vs Behari Lal Chaki,(3) A. P. Bagchi vs Mrs. F. Morgan(4 ) and Thomas Skinder vs Ram Rachpal(5), that the payment which can be adjusted under O. 21, r. 2 is a voluntary payment by the judgment debtor to the decree holder and that this iS not a case of voluntary payment, at, all.
The rulings which have 'been cited do not, in our opinion, apply here.
This point was not considered in the High Court and seems to have been thought of here.
Order 21, r. 2 merely contemplates payment out of court and says nothing about voluntary payment.
A garnishee order can never by its nature (1) ; (2) (3) 1.
L. R. (4) A. 1.
R. 1935 All. 513.
(5) 1.
L. R. 1938 All.
128 lead to a voluntary payment and it is not to be thought that a garnishee, order does not lead to the adjustment of the decree sufficient for being certified by the Court.
Payment by virtue of section 46(5A), as we have stated before, is in the nature of a garnishee payment and must, therefore, be subject to the same rule.
The rulings themselves do not control the present matter.
In the payment was not under a garnishee order but under the process of the court issued in execution by arrest of the judgment debtor.
Contrasting what had happened in the case with the words of the second rule of 0. 21 (then section 206 of the Code of 1859) the learned Judges observed that section 206 covers cases of voluntary payment.
The debtor was protected by treating the payment as being made through the court.
The exact point we are dealing with was not before the Court.
In I.L.R. there was a scheme framed by the depositors of a banking Company for return of their deposits in spite of opposition from decree holders depositor of the Company.
The scheme was sanctioned by the Court.
The scheme was binding on the decree holder but it was not treated as an adjustment within O. 21, r. 2 of the Code of Civil Procedure.
The reason given was that the adjustment must be to the satisfaction of the decree holder and must be with the consent of both the decree holder and the judgment debtor and not one which is made binding by operation of law.
It is to be noticed that that was a payment to which the judgment debtor had objected although it was binding on him.
We see no reason for making a distinction between a voluntary payment out of court and a payment out of court which the law regards as valid.
No reasons are given in the judgment why such a distinction should be made.
In I.L.R. [1938] An. 294 the payment was made in court and not outside court.
This ' is the nearest case to the present one and but for this difference, it is reasonable to think that the learned Judges would have taken the same view of the matter as we have taken.
The reason given by the learned judges brings out the real object of the rule : "where a judgment debtor makes payment outside the Court, the Court knows nothing about the payment ' and therefore r. 2, 0.
21 ordains that the parties should inform the Court about the payment.
" This object in our opinion is fully achieved when there is payment under a garnishee order outside the Court.
In the case cited the Court knew of the payment and could give protection in other ways.
In A.I.R. 1935 All.
513 the payment was again without the consent of the Judgment debtor either in fact or in law.
Too much emphasis appears to have been placed upon mutual understanding and too little on payment out of court which is the essence 129 of the rule.
The case turned on whether there was any understanding and too little on payment out of court which is the essence debtor on repairs would be set off against the decretal amount and therefore O. 21, r. 2 of the Code of Civil Procedure was held inapplicable.
In none of the cases the point of a garnishee order was considered.
In our opinion, a case of a garnishee payment or one made under section 46(5A) of the Income tax Act of 1922 stands on a different footing and if the payment has been legally made out of Court in full and final discharge of the liability under a decree, there is no reason why the judgment debtor cannot move the Court for getting the adjustment or payment certified, The payment was required to be certified under O. 21, r. 2 of the Code of Civil Procedure and we order that it be so certified.
The appeals are accordingly allowed with costs here and in the High Court.
R.K.P.S. Appeals allowed.
| IN-Abs | The respondent filed suits against the Collector of Customs and the Union of India claiming refund of excess customs duty levied on spindle oil imported into India.
The trial court granted decrees against the Union of India for the amounts charged in excess.
As the respondent had large outstandings of tax, the Income Tax Officer issued a notice under section 46(5A) of the Income Tax Act, 1922 calling upon the Collector of Customs to pay the amount of the decree to him.
The Collector paid the amount into the Reserve Bank, who issued receipts crediting the amount against super tax due from the respondent.
He then applied to the High Court under O. 21 r. 2 C.P.C. for the adjustment of the decree by this amount.
This was refused by a single Judge as well as in appeal by a division bench.
It was held that the decrees were against the Union of India and not the Collector of Customs and that payment by the Collector was not a payment by the judgment debtor.
Furthermore the amounts were held by the Collector on behalf of the Union of India and not on behalf of the Firm.
The High Court also found the notice to be defective inasmuch as it asked for payment towards income tax and penalty, while the receipts which were granted to the Firm stated that the amount paid was against super tax due.
On appeal to this Court, HELD : The Union of India operates through different Departments and a notice to the Collector of Customs in the circumstances was a proper notice to issue because it was the Collector of Customs who had in the first instance recovered the amount and held it from the respondent.
Collector paid the amount on behalf of the Union of India.
[126 A] A notice under section 46(5A) is no more than a kind of garnishee order issued to the person holding money and the money is due to an assessee.
The amount which was held.
by the Collector of Customs could properly be asked to be deposited with the income tax authorities under section 46(5A).
[127 B D] Super tax is also a kind of income tax and therefore, the notice could issue in the form it did.
There was no force in the contention that the amount, which could be adjusted under O. 21, r. 2, is a voluntary payment by the judgment debtor to the decree holder and the present case was not one of voluntary payment at all.
Order No. 21, r. 2 merely contemplates payment out of court and says nothing about voluntary payment.
A garnishee order can never by its nature lead to a voluntary payment and it is not to be thought that a garnishee order does not lead to the adjustment of the decree 124 sufficient for being certified by the Court.
Payment by virtue of section 46(5A) is in the nature of a garnishee payment and must, therefore, be subject to the same rule.
[127 G 128 B] In re Beckitt, [1933].T.R. 1, Bidhoo Beebee vs Keshub Chunder Baboo & Ors. , Mahiganj Loan Office Ltd. vs Behari Lal Chaki, I.L.R. , A. P. Bagchi vs Mrs. F. Morgan A.I.R. 1935, AU 513, Thomas Skinner vs Ram Rachpal I.L.R. [1938] All 294, distinguished.
|
iminal Appeal No. 50 of 1968.
Appeal by special leave from the judgment and order dated August 7, 1967 of the Judicial Commissioner Court, Goa, Daman ,and Diu in Criminal Revision Petition in No. 55 of 1966.
Edward Gardner, O.C., A. Bruto Da Costa, M. Bruto Da Costa, P. C. Bhartari, A. K. Varma and J. B. Dadachanji, for the appellant.
Niren De, Attorney General, G. R. Rajagopaul, J. M. Mukhi and R. H. Dhebar, for the respondent.
The Judgment of the Court was delivered by Hidayatullah, C.J.
The appellant (Rev. Father Monteiro) is a resident of Goa.
After the annexation of Goa by India, he had the choice of becoming an Indian national or retaining Portuguese nationality.
He choose the latter and was registered as a foreigner.
He also obtained a temporary residential permit which allowed him to stay on in India till November 13, 1964.
The period of stay expired and he did not ask for its extension or renewal.
He was ordered to leave India by the Lt. Governor of Goa.
The Lt. Governor is empowered by a notification of the President of India issued under article 239 of the Constitution to discharge the functions of the Central Government and his order 91 has the same force and validity as if made by the Central Government.
Rev. Father Monteiro disobeyed the order, and in consequence was prosecuted under section 14 read with section 3 (2) (c) of the .
He was convicted and sentenced to 30 days ' simple imprisonment and a fine of Rs. 50/ (or 5 days ' further simple imprisonment).
He appealed unsuccessfully to the Court of Session and his revision application to the Court of the judicial Commissioner, Goa also failed.
He now appeals by special leave of this Court against the order of the Judicial Commissioner, Goa dated August 7, 1967.
The defence of Rev. Father Monteiro was that he was pro tected by the , that the order of the Lt. Governor for his deportation was ultra vires the Act and that he had committed no offence.
The Judicial Commissioner and the two courts below have held, for different reasons, that the Geneva Conventions ceased to apply after Goa became a part of India and that the Municipal Courts in India can give him no redress against an Act of State.
In the appeal before us Mr. Edward Gardner Q.C. appeared for Rev. Father Monteiro with the leave of this Court.
To understand the case, a brief history of the annexation of Goa and what happened thereafter is necessary.
Goa was a Portuguese colony for about 450 years, having been seized by force of arms.
On December 19, 1961 Goa was occupied by the Indian Armed Forces following a short military action.
It then came under Indian Administration from December 20, 1961 and was governed under the Goa, Daman and Diu (Administration) Ordinance 1962 promulgated by the President of India.
Under the Ordinance all authorities were to continue performing their functions and all laws (with such adaptations as were necessary) were to continue in force and power was conferred on the Central Government to extend to Goa other laws in force in India.
The Ordinance was later replaced by an Act of Parliament bearing the same title and numbered as Act 1 of 1962.
It was enacted on March 27, 1962 and came into force from March 5, 1962.
It re enacted the provisions of the Ordinance and in addition gave representation to Goa in Parliament amending for the purpose the Representation of the People Act.
The same day (March 27, 1962), the Constitution (Twelfth Amendment) Act, 1962 was enacted and was deemed to have come into force on December 20, 1961.
By this amendment Goa was included in Union Territories and a reference to Goa was inserted in article 240 of the Constitution.
Many Acts it,.
force in India were then extended to Goa and many Regulations and Orders were promulgated.
Among the Acts so extended were the of 1955, the and the .
92 The Central Government also promulgated under section 7 of the , the Goa, Daman and Diu (Citizenship) Order 1962 and as it directly concerns the present matter we may re produce the second paragraph of the Order (in so far as it is material to our purpose) here : "2.
Every person who or either of whose parents or any of whose grand parents was born before twentieth day of December, 1961, in the territories now comprised in the Union Territory of Goa, Daman and Diu shall be deemed to have become a citizen of India on that day : Provided that any such person shall not be deemed to have become a citizen of India as aforesaid if within one month from the date of publication of this Order in the Official Gazette that person makes a declaration in writing to the Administrator of Goa, Daman and Diu or any other authority specified by him in this behalf that he chooses to retain the citizenship or nationality which he had immediately before the twentieth day of De december, 1961.
Provided further. . . " Pursuant to this Order, on April 27, 1962, Rev. Father Monteiro made his declaration of Portuguese nationality and on August 14, 1964 applied for a residential permit.
On his failure to apply for a renewal of the permit the order of the Lt. Governor was passed on June 19, 1965.
Prosecution followed the disobedience of the order.
At the outset it may be stated that Mr. Gardner concedes that he does, not question the legality of the military action or the annexation.
In fact, he is quite clear that we may consider the annexation to be legal.
His contention, in brief, is that the order of the Lt. Governor is tantamount to deportation of Rev. Father Monteiro and the gives protection against such deportation during occupation which has not validly come to an end, and, therefore, no offence was committed by him.
The argument overlooks one cardinal principle of Inter national Law and it is this Rev. Father Monteiro by his declaration retained his Portuguese nationality.
His sojourn in India was subject to such laws as existed in India in general and in Goa in particular.
It cannot be doubted that the reception and residence of an alien is a matter of discretion and every State has, by reason ,of its own territorial supremacy, not only the legal right but also 93 the competence to exclude aliens from the whole or any part of its.
territory.
This proposition is so well grounded in International Law that every country has adopted the passport system, which document certifies nationality and entry into any State is only possible with the concurrence of that State.
Again a State exercises territorial supremacy over persons in its territory, whether its own subjects or aliens and can make laws for regulating the entry, residence and eviction of aliens.
Therefore, the application of the , the and the Orders passed under them, to Rev. Father Monteiro was legally competent.
A considerable body of writers on International Law support the proposition and it is sufficient to refer only to Oppenheim (Vol. 1) pp.
675/676 and Brierly Law of Nations p. 217.
If authority were needed the proposition would be found supported in the decision of the Privy Council in Musgrove vs Chun Teeong Toy(1).
The Lord Chancellor in that case denied that an alien excluded from British territory could maintain an action in a British Court to enforce such a right.
This proposition being settled, Mr. Gardner sought support for his plea from the provisions of the of 1960.
That Act was passed to enable effect to be given to the International Conventions done at Geneva in 1949.
Both India and Portugal have signed and ratified the Conventions.
Mr. Gardiner relies on the provisions of the Fourth Schedule relative to the protection of certain persons in time of war.
Ho refers in particular to Articles 1, 2, 4, 6, 8, 47 and 49.
By articles 1 and 2 there is an undertaking to respect and ensure respect for the Con ventions in all circumstances of declared war or of any other armed conflict even if the state of war is not recognised by one of the parties and to all cases of partial or total occupation of the territory of a High Contracting Party even if the occupation meets with no armed resistance.
Article 4 defines a protected person and the expression includes those who at a given moment and in any manner whatsoever, find themselves, in case of conflict or occupa tion, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.
Article 6 then lays down the beginning and end of application of the Convention.
The Convention applies from the outset of any conflict or occupation.
In the territory of Parties to the conflict, the application of the Convention ceases on the general close of Military operations.
In the case of occupied territories it ceases one year after the general close of military operations but the occupying Power is bound for the duration of occupation, to the extent that such Power exercise the functions of Government in such territory, by articles 1 12, 27, 29 34, 47, 49, 51, 52, 53, 59, 61 73 and 143.
(1) 94 We next come to articles 47 and 49 which are the crux of the matter and are relied upon for the protection.
Mr. Gardner points out that under article 48 even protected persons may in no circumstance renounce in part or in entirety the rights secured to them by the Conventions.
The case, therefore,, depends on whether articles 47 and 49 apply here.
We may now read articles 47 and 49 "47.
Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or Government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory." "49.
Individual or mass forcible transfers, as well as deportation of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.
Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand.
Such evacuation may not involve the dis placement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement.
Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.
The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated.
The Protecting Power shall be informed of any transfers and evacuations as soon as they have taken place.
The Occupying Power shall not detain protected persons in an area particularly exposed to the danger of war unless the security of the population or imperative military reasons so demand.
95 The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.
" The point of difference between the parties before us in relation to article 47 is whether the occupation continues, the annexation of the territory notwithstanding; and in relation to article 49 whether the order of the Lt. Governor amounts to deportation of a protected person.
Mr. Gardner 's submissions are : the order that has been made is a deportation order and it is therefore ultra vires the Geneva Conventions.
These Conventions create individual rights which cannot even be waived.
So long as occupation continues ,these rights are available and the Geneva Conventions must not be looked at in isolation but read in conjunction with International Law as part of the positive law.
They should not be abandoned lightly.
According to him, conquest was a method of acquiring territory in the past but after the Covenant of the League of Nations, the Charter of the United Nations and the General Treaty for the Renunciation of War, the acquisition of territory in Inter national Law by the use of force does not confer any title.
Occupation, therefore, can only be of terra nullins, not now possible.
He invokes the rule in Heydon 's(1) case and says that the history of the making of the Geneva Conventions, shows that this was precisely the mischief sought to be met and the Conventions now become a part of the laws of India through Parliamentary Legislation.
He concedes that the war of liberation of Goa and the annexation were lawful but he contends that annexation does not deprive protected persons of the protection.
According to him, once there is military action and occupation, occupation cannot cease by a unilateral act of annexation by incorporating the terri tories of Goa with India.
If India did not care to be bound by the Conventions, there was a 'Method of denunciation in article 158 but since the Convention is registered under article 159 even denunciation at a late stage was not possible.
He relies upon article 77 and says that 'Liberated ' means when the occupation comes to an end.
The amendment of the Constitution only legalises annexation so far as India is concerned but in International Law the territory remains occupied.
The occupation is not at an end and it cannot be brought about unilaterally.
The words of article 47 themselves are clear enough to establish this.
In short, the con tention is that occupation does not come to end by annexation and, therefore, the protection continues till there is either cession of the territory or withdrawal of the Occupying Power from the territory, both of which events have not taken place.
In support of his propositions be relies upon Dholakia (International Law) (1) 96 pp.
180, 181, 293; Oppenheim International Law (Vol. 1) 7th Edn.
574 et seq.
; R. Y. Jennings : The Acquisition of Territories in International Law pp.
53 56, 67.
The contention on behalf of the State is that by occupation is meant occupation by armed forces or belligerent occupation and occupation comes to an end by conquest followed by subjugation.
Reference is made to many works on International Law.
We have to decide 'between these two submission.
This is the first case of this kind and we took time to consider our decision.
We are of opinion that the pleas of Mr. Gardner that the makes dispunishable the conduct of Rev. Father Monteiro, must fail.
To begin with, the gives no specific right to any one to approach the Court.
The Act was passed under article 253 of the Indian Constitution read with entries 13 and 14 of the Union List in the Seventh Schedule to implement the agreement signed and merely provides for certain matters based on Geneva Conventions.
What method an aggrieved party must adopt to move the, Municipal Court is not very clear but we need not consider the point because of our conclusions on the other parts of the case.
We shall consider the Conventions themselves.
Before we consider the Geneva Conventions, which form Schedules to the ' Act, it is necessary to look at the Act itself to see what rights it confers in relation to the Conventions, and whether it gives a right to Rev. Father Monteiro in the present circumstances to invite the Court 's opinion.
Being a court of law, this Court must be satisfied about its own jurisdiction, the foundation for which must be in some enforceable law.
Prior to the of 1960 there were the Geneva Convention Act of 1911 and the Geneva Conventions Implementing, Act of 1936.
We need not consider them because by the twentieth section of the present Act, the former ceases to have effect as part of the law of India and the latter is repealed.
The Act is divided into five Chapters.
Chapter I deals with the title and extent and commencement of the Act and gives certain definitions.
Of these, the important definition is that of 'protected internee ' as a person protected by the Fourth Convention and interned in India.
Chapter 11 then deals with punishment of offenders against the Conventions and the jurisdiction of courts to deal with breaches by punishment them.
Chapter III lays down the procedure for the trial of protected persons, for offences enabling a sentence of death or imprisonment for a term of two years or more to be imposed and for appeals etc.
Chapter IV prohibits the use of Red Cross and other emblems without the approval of Central Government and provides for a penalty.
97 Chapter V gives power to the Central Government to make rules.
The Act then sets out the Conventions in its schedules and the Conventions which are four in number are set out in as many Schedules to the Act.
It will thus be seen that the Act by itself does not give any special remedy.
It does give indirect protection by providing for penalties for 'breaches of Convention.
The Conventions are not made enforceable by Government against itself nor does the Act give a cause of action to any party for the enforcement of Conventions.
Thus there is only an obligation undertaken by the Government of India to respect the Conventions regarding the treatment of civilian population but there is no right created in favour of protected persons which the Court has been asked to enforce.
If there is no provision of law which the courts can enforce the court may be powerless and the court may have to leave the matter to what Westlake aptly described as indignation of mankind.
The appellant has, however, sought the aid of the Geneva Conventions to establish that he could not be compelled to leave Goa and thus committed no offence.
We may, therefore, say a few words about the Geneva Conventions, particularly Schedule IV, which deals with the protection of civilian persons in time of war.
In the past protection of civilian population was inadequately provided in Conventions and treaties.
The four conventions came at different times, the oldest in 1864 and the last in 1949.
The Fourth Hague Convention of 1907 contained articles 42 56, but this protection was restricted to occupation by an enemy army.
The Regulations merely stated the principles and enjoined maintenance of law and order and regard for family rights, lives of persons and private property, and prohibited collective punishments.
In effect, these were confined to the 'forward areas of war ' and did not apply when 'total war ' took place and the civilian population was as much exposed to the dangers of war as the military.
The example of the First World War showed that civilian population was exposed to exactions.
At the time when the Hague Regulations were done, it was thought that such matters as non internment of the nationals of the adversary would be observed.
But the First World War proved to the contrary.
It was in 1921 that the International Committee of the Red Cross produced a draft Convention which among other things enjoined that the inhabitants of the occupied territory should not be deported and civilians in enemy territory must be allowed to return to their homes unless there were reasons of state security and the internees must receive the same treatment as prisoners of war.
The Diplomatic Conference of 1929 and the Red Cross Conference of 1934 made useful studies but action scheduled to take place 98 in 1940 could not be implemented as the Second World War broke out.
Although the belligerent countries had accepted that the 1929 Convention regarding prisoners of war was applicable to civilians, the lessons of the Second World War were different.
We know the treatment of civilians by Germany and the horried deaths and privations inflicted on them.
War, though outlawed, continues still and as President Max Huber said: "War, as it becomes more and more total, annuls the differences which formerly existed between armies and civilian populations in regard to exposure to injury and danger.
" At the termination of the last war the International Red Cross Conference at Stockholm prepared a draft in 1948, which became the basis of the deliberations of the Diplomatic Conference which met at Geneva from April 21 to August 12, 1949 and the present Convention was framed.
The Regulations were not revised or incorporated.
The 1949 Conventions are additional to the Regulations and it is expressly so laid down in article 154 of the Geneva Conventions.
The Hague Regulations, articles 42 56, contained some limited and general rules for the protection of inhabitants of occupied territory.
The Regulations are supplementary.
Regulations 43 and 55 which have no counter part in the Geneva Conventions must be read.
They are not relevant here Similarly, as there is no definition of 'occupation ' in the Geneva Conventions, article 42 of the Regulation must be read as it contains a definition : "42.
A territory is considered as occupied when it finds itself in fact placed under the authority of a hostile army".
The Regulations further charge the authority having power over the territory to take all measures to establish and assure law and order.
The Regulations generally charged the occupying power to respect the persons and property of the inhabitants of the occupied territory.
There was no provision showing when occupation commenced and when it came to an end.
It is because of this omission that it is claimed in this case that occupation continues so long as there is no cession of the territory by the conquered or withdrawal by the _conqueror and that till then the protection of the Geneva Conventions obtains.
However, article 6, which provides about the beginning and end of the application of the Conventions throws some light on this matter.
The question thus remains, what is meant by occupation ? This is, of course, not occupation of terra nullins but something 'else.
Since there is no definition of occupation in the Geneva 99 Conventions, we have to turn to the definition in the Hague Regulations.
Article 154 of the 4th Schedule reads: "154.
Relation with the Hague Conventions : In the relations between the Powers who are 'bound by the Hague Conventions respecting the Laws and Customs of War on Land, whether that of 29th July, 1899, or that of 18th October, 1907, and who are parties to the present Convention, this last Convention shall be supplementary to Sections 11 and 111 of the Regulations annexed to the above mentioned Conventions of the Hague.
" The definition of 'occupation ' in the Regulations must be read since the Regulations are the original rules and the Conventions only supplement the Regulations.
We have already quoted the definition and it shows that a territory is considered as occupied when it finds itself in fact placed under the authority of a hostile army.
This means that occupation is by military authorities.
In the Justice case(1) it was stated that the laws of belligerent occu pation apply only to an occupation during the course of actual warfare and that once the enemy has been totally defeated those laws do not apply to the ensuing occupation.
The question thus resolves itself into this : Is occupation in article 47 belligerent occupation or occupation which continues after the total defeat of the enemy ? In this connection courts must take the Facts of State from the declaration of State authorities.
Military occupation is a temporary de facto situation which does not deprive the Occupied Power of its sovereignty nor does it take away its statehood.
All that happens is that pro tempore the Occupied Power cannot exercise its rights.
In other words, belligerent occupation means that the Government cannot function and authority is exercised by the occupying force.
Annexation, on the other hand, occurs when the Occupying Power acquires and makes the occupied territory as its own.
Annexation gives a de jure right to administer the territory.
Annexation means that there is not only possession but uncontested sovereignty over the territory.
As Greenspan(2) put it (p. 215) military occupation must be distinguished from subjugation, where a territory is not only conquered, but annexed by the conqueror.
There is, however, a difference between true annexation on the one hand and premature annexation, or as it is sometimes called 'anticipated annexation ', on the other.
Jurists regard annexation as premature so long as hostilities are continuing and there is an opposing army in the field even if the Occupied Power is (1) United States V. Attstoctter, et.
(1947) U. section Military Tribunal, Nucmberg L. R. 3 T. W. C. vi, 34.
(2) The Modern Law of Land Warfare.
100 wholly excluded from the territory.
Anticipated annexation by unilateral action is not true annexation.
True annexation is only so when the territory is conquered and subjugated [see Oppenheim International Law.
(7th Edn.) pp. 846 847.
(Vol. 1) 566 (Vol. 1), pp. 448/52 (Vol. 11), 430 439 (Vol. 11) and 599 et seq (Vol. 11), Greenspan (ibid) pp.
215 et seq 600 603; Gould Introduction to International Law pp.
652 656, 662 663; Brierly Laws of Nations p.[155].
The Conventions rightly lay dowin that annexation has no effect on the protection.
But they speak of premature or anticipated annexation.
Premature or anticipated annexation has no effect.
Such a plea was negatived for the same reason by the Nuremberg Tribunal.
In fact, when the Convention itself was being drafted the experts were half inclined to add the word " alleged ' before 'annexation ' in article 47 to distinguish between annexation following conquest and subjugation and annexation made while hostilities are going on.
Subjugation puts an end to the state of war and destroys the source of authority of the existing Government.
In subjugation, which is recognised as one of the modes of acquiring title, not only the de facto but also the de jure title passes to the conqueror.
After subjugation the inhabitants must obey the laws such as are made and not resist them.
Thus the principle which is accepted is that the Occupying Power must apply the Convention even when it claims during conflict to have annexed the occupied territory.
However, when the conflict is over and there is no hostile army in the field, annexation has the effect of creating a title to the territory.
It may be asked why does article 6 then mention a period of one year ? The reason given is that if the Occupied Power turns victorious the land would be freed in one year and if the Occupying Power remains victorious, as hostilities cease, strong measures against the civilian population are no longer necessary.
In this, as in other laws, a line is drawn arbitrarily and it is at the end of one year.
Otherwise also, occupation, which means belligerent occupation, comes to an end when hostilities cease and the territory becomes a art of the Occupying Power.
Annexation may sometimes be peaceful, as for example, Texas and Hawaiian Islands were peacefully annexed by the United States, or after war, as the annexation of South Africa and Orange Free State by Britain.
The question, when does title to the new territory begin, is not easy to answer.
Some would make title depend upon recognition.
Mr. Stimson 's doctrine of non recognition in cases where a state of things has been brought about contrary to the Pact of Paris was intended to deny root of title to conquest but when Italy conquered Abyssinia, the conquest was recognised because it was 101 thought that the state of affairs had come to stay.
Thus, although the United Nations Charter includes the obligation that force would not be used against the territorial integrity of other States (article 2 para 4), events after, the Second World War have shown that transfer of title to territory by conquest is still recognised.
Prof. R. Y. Jennings poses the question : What is the legal position where a conqueror having no title by conquest is nevertheless in full possession of the territorial power, and not apparently to be ousted ?" He recommends the recognition of this fact between the two States.
If cession after defeat can create title, occupation combined with absence of opposition must lead to the same kind of title.
In the present case the facts are that the military engagement was only a few hours ' duration and then there was no resistance at all.
It is hardly necessary to try to establish title by history traced to the early days as was done in the Minquiers and Ecrencs(1) case.
Nor is there any room for the thesis of Dr. Schwarzenberger (A Manual of International Law, 5th Edn.
p. 12 that title is relative and grows with recognition .
True annexation followed here so close upon military occupation as to leave no real hiatus.
We can only take the critical date of true and final annexation as December 20, 1961 when the entire government and administration were taken over and there was no army in occupation and no army in opposition.
The occupation on December 20, 1961 was neither belligerent occupation nor anticipated occupation, but true annexation by conquest and subjugation.
It must be remembered that Mr. Gardiner concedes that the annexation was lawful.
Therefore, since occupation in the sense used in article 47 had ceased, the protection must cease also.
We are, therefore, of opinion that in the present case there was no breach of the Geneva Conventions.
We were invited to look at the matter from another point of view, namely, even if the protection against deportation envisaged by articles 47 and 49 were taken to be continued, what is the remedy which the Municipal Courts can give ? It was said, the act was an Act of State.
In view of what we have already held it is not necessary to pronounce our opinion on this argument.
The national status of subjects of the subjugated state is a matter for the State, and courts of law can have no say in the matter.
As Oppenbeim (Vol. 1 p. 573) puts it "The subjugating state can, if it likes allow them to emigrate, and to renounce their newly acquired citizenship, and its Municipal Law can put them in any position (1)1953 (I. C. J.) 47.
102 it likes, and can in particular grant or refuse them the same rights as those which its citizens by birth enjoy.
" The Geneva Conventions ceased to apply after December 20, 1961.
The Indian Government offered Rev. Father Monteiro Indian nationality and citizenship which he refused and retained his Portuguese nationality.
As a Portuguese national he could only stay in India on taking out a permit.
He was, therefore, rightly prosecuted under the law applicable to him.
Since no complaint is made about the trial as such, the appeal must fail.
It will be dismissed.
G.C. Appeal dismissed.
| IN-Abs | The Geneva Conventions Act 6 of 1960 was passed by the Indian Parliament to enable effect to be given to the International Conventions done at Geneva in 1949.
India and Portugal have both signed and ratified the Conventions.
The four Conventions were adopted in as many Schedules to the Act. 'Mc Fourth Convention was meant to apply to all cases of partial or total occupation of the territory of the contracting parties and gave protection to persons who, found themselves in case of a conflict or occupation in the hands of a Party to the conflict or Occupying Power of which they were not nationals.
In the case of occupied territory the Convention applies under article 6 for a period of one year after the general close of Military operations, but during the period of occupation the Occupying Power is bound by certain Articles including, inter alia, articles 1 12, 47 and 49.
By article 47 protected persons in occupied territory can not be deprived of the benefits of the Convention despite any change introduced as a result of the occupation or even annexation of whole or part of the territory by the Occupying Power.
article 49 forbids the deportation of protected persons 'from the occupied territory.
There is no definition of the term 'occupied ' in the Geneva Conventions but the Hague Regulations to which the Conventions are made supplementary defined a territory as occupied when it finds itself 'in fact placed under the authority of a hostile Army '.
The territory of Goa was a Portuguese colony for about 450 years, having been seized by force of arms.
On December 19, 1961 Goa was occupied by Indian Armed Forces following a short military action.
It then came under Indian Administration from December 20, 1961 and was governed under the Goa, Daman and Diu (Administration) Ordinance 1962 promulgated by the President of India.
The Ordinance was replaced on March 27, 1962 by Act 1 of 1962.
The same day the Constitution (Twelth Amendment) Act 1962 was enacted and was deemed to have come into force on December 20,, 1961.
By this amendment Goa was included in the Union Territories and a reference to Goa was inserted in article 240 of the Constitution.
Indian laws including the Citizenship Act of 1955, the and the were extended to Goa.
The Central Government also promulgated under section 7 of the , the Goa, Daman and Diu (Citizenship) Order 1962.
The second paragraph of the order conferred Indian Citizenship on certain classes of persons in these terri tories, giving an option to those desirous of retaining their previous citizenship or nationality of another country to make a declaration to that effect within one month of the Order.
88 The appellant who was a resident of Goa made pursuant to the above order his declaration of Portuguese nationality.
He was allowed to stay in India under a temporary residential permit till November 13.
, 1964.
After that date he did not ask for a renewal of the permit.
The Lt. Governor of Goa empowered under article 239 of the Constitution ordered him to leave India.
For disobeying the order he was prosecuted under section 14 read with section 3 (2) (c) of the .
Being convicted he appealed unsuccessfully to the Court of Session.
His revision petition being rejected by the Judicial Commissioner, he appealed by special leave to this Court.
The contention on behalf of the appellant were based on the Geneva Conventions which it was said had become a part of the law of India under Act 6 of 1960.
It was urged that after the United Nations Charter the acquisition of territory in International Law by 'force of arms could not confer title.
The amendment of the Constitution only legalised the annexation so far as India was concerned but in International Law the territory remained occupied because it had neither been ceded, nor had the Occupying Power withdrawn.
As a result, it was contended, the protection of articles 47 and 49 continued to be available to the appellant and by disobeying the deportation order he did not commit any offence.
HELD : (i) The appellant 's argument overlooked the cardinal principle of international law that the reception and residence of an alien is a matter of discretion and every State has by reason of its own territorial supremacy not only the legal right but also the competence to exclude aliens from the whole or any part of its territory.
Accordingly every country has adopted the passport system which document certifies nationality and entry into any State is only possible with the concurrence of the State.
Again a State exercises territorial supremacy over persons in its territory, whether its own subjects or aliens, and can make laws for regulating the entry, residence and eviction of aliens.
Therefore the application of the , the and Orders passed under them, to the appellant who had chosen Portuguese nationality was legally competent.
There is authority for the proposition that an alien excluded from the territory of a State cannot maintain an action in a Municipal Court to enforce his right.
[92 H 93 C] Oppen them International Law (Vol. 1) pp.
675/676, Brierly Law of Nations p. 217, and Musgrove vs Chun Teeong Toy, , referred to.
(ii)The Geneva Conventions Act also gives no specific right to anyone to approach the Court.
By itself it gives no special remedy.
It does give indirect protection by providing for penalties for breach of Convention.
The Conventions are not made enforceable by Government against itself, nor does the Act give a cause of action to any party, for the enforcement of the Conventions.
Thus there is only an obligation undertaken by the Government of India to respect the Conventions regarding the treatment of civilian population but there is no right created in favour of protected which the court has been asked to enforce.
If there is no provision of law which the courts can enforce the court may be powerless and has to leave the matter to the 'indignation of mankind '.
[97 B C] (iii)The Geneva Conventions too did not support the appellant 's claim to the benefit of article 49 of the Fourth Convention on the basis that Goa continued, even after its annexation by India, to be occupied territory B within the meaning of article 47.
(a)In the Hague Regulations to which the Geneva Conventions were supplementary the definition of 'occupation ' shows that a territory is con 89 sidered as occupied when it finds itself in fact placed under the authority of a hostile army.
This means that occupation is by military authorities i.e. belligerent occupation.
Under belligerent occupation, which is a de facto situation, the Occupied Power is not deprived of its sovereignty or its statehood.
All that happens is that pro tempore the Occupied Power cannot exercise its rights, its Government cannot function and authority is exercised by the occupying force.
In this connection the courts must take the Facts of State from the declaration of the State authorities.
[99 C F] United States vs Attstoctter et tit, (1947) U.S. Military Tribunal, Nuremburg L.R. 3 T.W.C. vi, 34, referred to.
(b) Annexation as distinguished from belligerent occupation occurs when the Occupying Power acquires and makes the occupied territory its own.
Annexation gives a de jure right to administer the territory.
Annexation means that there is not only possession but uncontested sovereignty over the territory.
[99 F G] Greenspan, The Modern Law of Land Warfare, p. 215; referred to.
There is however difference between true annexation on the one hand and premature annexation or 'anticipated annexation ' on the other.
Annexation is premature so long as hostilities are continuing and there is an opposing army in the field even if the Occupied Power is wholly excluded from the territory.
Anticipated annexation by unilateral action is not true annexation.
True annexation is only so when the territory is conquered and subjugated.
[99 C H; 100 A B] Oppenbeim : International Law (7th Edn.) pp.
846 847 (Vol. 1), 566 (Vol. 1), pp. 846 847 (Vol. 11), 430 439 (Vol. 11) and 599 et seq (Vol. 11); Greenspan pp.
215 et seq 600 603, Gould : Introduction to International Law pp.
652 656, 662 663; Brierly : Law of Nations, p. 155, referred to.
(c) When Conventions lays down that annexation has no effect they speak of premature or anticipated annexation.
It was so held by the Nuremburg Tribunal and the experts who drafted the Convention were inclined to add the word 'alleged ' before 'annexation ' in article 47 to distinguish between annexation following conquest and subjugation and annexation made while hostilities were going on subjugation puts an end to the State of war and destroys the source of authority of the existing Government.
In subjugation which is recognised as one of the modes of acquiring title not only the de facto but also the de jure title passes to the conqueror.
After subjugation the inhabitants must obey the laws such as they are and not resist them.
[10C D] (d) Under article 6 the Convention continues to apply to occupied territory for one year after the general close of hostilities for the reason that if the Occupied Power turns victorious the land would be freed in one year, and if the Occupying Power remains victorious, as hostilities cease, strong measures against the civilian population are no longer necessary.
Otherwise also, occupation, which means belligerent occupation comes to an end when hostilities cease and the territory becomes a part of the Occupying Power.
[100 F G] (e) Title to new territory is not dependent on recognition.
Despite the Stimson doctrine the conquest of Abyssinia by Italy was recognised because it was though that the State of affairs had come to stay.
Even after the adoption of the United Nations Charter events since the Second 2Sup.
CT/69 7 90 World War have shown that transfer of title to territory by conquest is still recognised.
If cession after defeat can create title, occupation combined with absence of opposition must lead to the same result.
[100 H 101 B] (f)In the present case the military engagement was only a few hours duration and there was no resistance at all.
It was hardly necessary to try to establish title by history traced to the early days nor any room for Schwarzenburger 's thesis that title is relative and grows with recognition.
True annexation followed here so close upon military occupation as to leave no real hiatus.
True annexation by conquest and subjugation was complete on December 20, 1961 and the Geneva Convention ceased to apply 'from that date.
It was not disputed that the annexation was lawful.
Therefore since occupation in the sense used in article 47 had ceased the protection must cease also.
[101 C F] Minquiers and Ecrenos, 1953 (I.C.J.) 47 and Schwarzenburger : A Manual of International Law, 5th Edn.
p. 12, referred to.
(iv)The national status of subject of the subjugated State is a matter for the State and courts of law can have no say in the matter.
Having chosen Portuguese nationality the appellant could only stay in India on taking out a permit.
He was therefore rightly convicted under the law applicable to him.
[101 H 102 B] Oppenheim International Law, Vol.
1 p. 573, referred to.
[On the view taken it was not considered necessary to.
decide the question whether deportation was an Act of State and the Municipal Courts could therefore give no remedy.] [101 G]
|
Appeal No. 108 of 1952.
Appeal from the Judgment and Decree dated the 29th March, 1950, of the High Court of Judicature at 468 Calcutta in Appeal from Original Decree No. 121 of 1945 arising from the Decree dated the 22nd December, 1944, of the Court of Subordinate Judge at Alipore, in Title Suit No. 70 of 1941.
N. C. Chatterjee (C. N. Laik, D. N. Mukherjee and Sukumar Ghose, with him) for the appellants.
section P. Sinha (B.B. Haldar and section C. Bannerji, with him) for respondents Nos.
I to 3. 1954.
May 21.
The Judgment of the Court was delivered by MUKHERJEA J.
This appeal, which has come before us, on a certificate granted by the High Court of Calcutta, under article 133(1) of the Constitution, is directed against a judgment and decree of a Division Bench of that Court dated the 29th March, 1950, affirming, on appeal, those of the Subordinate Judge, Fourth Court, Alipore, passed in Title Suit.
No. 70 of 1941.
The appellants before us are the heirs and legal representatives of the original defendant No. 3 in the suit, which was commenced by the plaintiffs respondents to recover possession of the property in dispute, on establishment of their title, as reversionary heirs of one Haripada Patra, after the death of his mother Rashmoni, who got the property in the restricted rights of a Hindu female heir on Haripada 's death.
To appreciate the contentions that have been raised by the parties to this appeal it would be necessary to narrate the material facts in chronological order.
The property in suit which is premises No. 6 Dwarik Ghose 's Lane situated in the suburb of Calcutta admittedly formed part of the estate of one Mahendra Narayan Patra, a Hindu inhabitant of Bengal, owning considerable properties, who died on the 17th April, 1903, leaving him surviving his widow Rashmoni, two infant sons by her, Mohini Mohan and Haripada and a grandson Ram Narayan by a predeceased son Shyama Charan.
Shyama Charan was the son of Mahendra by his first wife, who died during his lifetime.
On the 17th February, 1901, Mahendra executed a will by which he made certain religious and charitable dispositions and 469 subject.
to them, directed his properties to be divided amongst his infant sons Mohini and Haripada and his grandson Ram Narayan.
Ram Narayan was appointed ' executor under the will.
After the death of Mahendra, Ram Narayan applied for probate of the will and probate was obtained by him on the 6th of October, 1904, Ram Narayan entered upon the management of the estate.
He developed extravagant and immoral habits and soon ran into debts.
The bulk of the properties were mortgaged to one Kironsashi who having obtained a decree on the mortgage applied for sale of the mortgaged properties.
Thereupon Rashmoni on behalf of her infant sons instituted a suit against the mortgagee and the mortgagor and got a declaration that the mortgage decree could not bind the infants ' shares in the properties left by their father.
This judgment was given on the 31st March, 1909.
On the 13th August, 1909, the two infant sons of Mahendra to wit Mohini and Haripada, by their mother and next friend Rashmoni, instituted a suit in the Court of the Subordinate Judge at Alipore, being Title Suit No. 45 of 1909, claiming administration of the estate left by Mahendra as well as partition and accounts on the basis of the will left by him.
On the 14th of August, 1909, one Baroda Kanta Sarkar, Sheristadar of the Court of the District Judge, Alipore, was appointed, with the consent of both parties, receiver of the estate forming the subject matter of the litigation.
The receiver took possession of the properties immediately after this order was made.
The management by the receiver, as it appears, was not at all proper or beneficial to the interest of the two sons of Mahendra.
Mahendra himself left no debts and whatever debts were contracted,, were contracted by Ram Narayan to meet his own immoral and extravagant expenses.
The receiver however went on borrowing large gums of money upon ex parte orders received from the Court, the ostensible object of which was to pay off the debts due by Ram Narayan which were not at all binding on the plaintiffs.
Fearing that the longer the suit continued and the properties remained in the hands of the receiver the more harmful it would be to the interests of the 470 minors, Rashmoni on behalf of the minors compromised the suit.
with Ram Narayan and a Solenama was filed on the 13th June, 1910.
The terms of the compromise, in substance, were, that the properties in suit were to be held in divided shares between the three parties and specific allotments were made in favour of each, the properties allotted to the share of Haripada being specified in schedules Gha and Chha attached to the compromise petition.
It was further provided that the receiver would be discharged on submitting his final accounts.
It may be mentioned here that the property which is the subject matter of the present suit was, under the Solenama, allotted to the share of Haripada.
On the very day that the compromise was filed, Rashmoni applied for discharge of the receiver.
The Court made an order directing the receiver to submit his final accounts within one month, or as early as possible, when the necessary order for discharge would be made.
It was further directed that as the suit was disposed of on compromise the receiver should discontinue collecting rents and profits due to the estate from that day.
This order however was modified by a subsequent order made on 23rd June, 19 10, which directed that the receiver was to continue in possession of the estate until he was paid whatever was due to him for his ordinary commission and allowances and until the parties deposited in Court the amounts borrowed by the receiver under orders of the Court or in the alternative gave sufficient indemnity for the same.
After this, Rashmoni on behalf of her minor sons filed two successive applications before the Subordinate Judge praying for permission to raise by mortgage, of a part of the estate, the moneys necessary for releasing the estate from the hands of the receiver.
The first application was rejected and the second was granted, after it was brought to the notice of the Subordinate Judge that the receiver was attempting to dissuade prospective lenders who were approached on behalf of Rashmoni, to lend any money to her.
On the 16th of January, 191 1, Haripada, the younger son of Rashmoni, died and his interest devolved upon his mother as his heir under the Hindu law.
On the 28th January, 1911, the following order was recorded by the Suborainate Judge: 471 "The receiver has filed a statement showing the amount as due to him up to the end of the.
current month.
This claim amounts to Rs. 20,950 2 6 pies only.
The parties may deposit the sum on or before the 1st February next in Court and on such deposit the receiver will be discharged and the possession of the estate of late Mahendr Narayan Patra, will be made over to the parties.
" On the very same day Mohini exectued a mortgage (exhibit M 1) in favour of one Suhasini Dasi by which he hypothecated the properties allotted to his share and also his future interest as reversions to the share of Haripada, to secure an advance of Rs. 30,000.
The loan was to carry interest at the rate of 18% per annum.
One thing may be mentioned in connection with this mortgage, and that is, that amongst the properties included in the mortgage were two properties, namely, premises No. 15/1 and 16 Chetlahat Road, which had already been sold and to which the mortgagor bad no title at the date of the mortgage.
On the 1st February, 1911, Mohini deposited in Court the sum of Rs. 2,0,950 2 6 pies, being the amount alleged to.
be due to the receiver and the Court by an order passed on that date directed the release of the estate from the hands of the receiver.
After the estate was released a petition was filed on behalf of the plaintiffs on the 15th February, 1911, praying that the loans said to be contracted by the receiver should not be paid out of the money deposited in Court, as these borrowings were made not for the protection of the estate but only for the personal benefit of the defendant, Ram Narayan, and to pay off his creditors.
It was contended that the loans raised by the receiver were not raised in good faith, after proper notice to the plaintiffs but on the strength of orders which he obtained ex parte from the Subordinate Judge without disclosing the material facts.
This application. was rejected by the Court on the 23rd February,1911.
After this order was made,the plaintiffs put in a petition praying that payment of the moneys, due to the creditor with the exception of what was necessary to pay off one of the creditors, named Rakhal Das Adhya, be stayed till the following Monday 472 as the plaintiffs wanted to move the High Court against the order of the Subordinate Judge mentioned above.
The Court granted this prayer and on the 2nd of March following, orders were received from the High Court directing that the moneys were to be detained in Court pending further orders.
The High Court made order on the plaintiff 's petition on the 29th May, 1911.
The learned Judges were very critical of the appointment of the Sheristadar of the Court as receiver of the estate and in no measured terms blamed the Subordinate Judge for passing ex parte, orders for raising loans on the applications of the receiver without any investigation at all and the receiver also for borrowing money not for the benefit of the estate but for the personal benefit of Ram Narayan, the defendant.
The High Court directed a full and proper investigation of the accounts of the receiver by a Commissioner and a Vakil of the High Court was appointed for that purpose.
The Commissioner after a protracted enquiry submitted his report which was accepted by the High Court.
Under the final orders passed by the High Court not only were the plaintiffs held not liable to pay any money to the receiver but the receiver was directed to pay a sum of Rs. 6,708 to the plaintiffs.
The plaintiffs were also to receive Rs. 4,084 from the defendant, Ram Narayan.
The defendant was to pay Rs. 19,124 to the receiver and the receiver wag made personally liable for the loans that he had incurred.
This order was made on the 23rd July, 1913.
In the meantime while the investigation of accounts were going on under orders of the High Court, Rashmoni, together with her son Mohini executed a security bond (exhibit
E 1) on the 1st August, 1911, and it is upon the legal effect of this document that the decision of this case practically depends.
By this security bond, which was executed in favour of Suhasini Dasi, the mortgagee in the mortgage bond of Mohini, Rashmoni purported to hypothecate all the properties that she got as heir of Haripada, as additional security for the loan of Rs. 30,000 already advanced to Mohini under the mortgage.
As is stated already, two properties situated at Chetla were included in the mortgage of 473 Mohini although they were already sold.
The security bond recites that the mortgagee having discovered this fact was about to Institute legal proceedings against the mortgagor and it was primarily to ward off these threatened proceedings and remove any apprehension from the minds of the mortgagee about the sufficiency of the security that this bond was executed.
It is further stated in the bond that the estate of Haripada in the hands of his mother was benefited by the deposit of Rs. 20,950 in Court by Mohini Mohan out of the sum of Rs. 30,000 borrowed on the mortgage and that Mohini had spent the remaining amount of the loan towards clearing certain debts of Rashmoni herself and to meet the litigation and other expenses of both of them.
Mohini died soon after on the 8th of November, 1911.
On October 13, 1917, Suhasini instituted a suit for enforcing the mortgage and the security bond against Rashmoni and the heirs of Mohini.
preliminary decree was passed on compromise in that suit on the 24th September, 1918, and on the 25th July, 1919, the decree was made final.
The decree was put into execution and on the 15th September, 1919, along with other properties, the property in dispute was put up to sale and it was purchased by Annada Prasad Ghose for Rs. 13,500.
On the 14th November, 1919, Bhubaneswari, wife of Ram Narayan, as guardian of her infant sons filed a suit, being Title Suit No. 254 of 1919 against Suhasini, Rashmoni and Annada attacking the validity of the mortgage decree obtained by Suhasini as well as the sale in execution thereof.
The suit ended on the 6th July, 1921, and the plaintiff gave up her claim.
On September 5, 1922, Annada Ghose borrowed a sum of Rs. 10,000 from Sarat Kumar Das, the original defendant No. 3 in, the suit and the father of the present appellants and by way of equitable mortgage deposited with the lender the title deeds of the property No. 6, Dwarik Ghose Lane.
On the 14th September, 1925, Annada sold the property by executing a conveyance in favour of the mortgagee Sarat Kumar Das for a consideration of Rs. 15,500.
On the 8th June, 1939, Rashmoni died.
About a year later on July 15, 1940, the three sons of Ram Narayan, who 61 474 are the reversionary heirs of Haripada after the death of Rashmoni, commenced the present suit in the Court of the Subordinate Judge at Alipore claiming to recover possession of the property on the allegation, that the security bond executed by Rashmoni not being supported by legal necessity, the sale in execution of the mortgage as well as the subsequent conveyance in favour of Sarat Kumar Das could pass only the right, title and interest of Rashmoni and could not affect the reversionary rights of the plaintiffs.
Several other persons were impleaded as parties defendants and a number of issues were raised with which we are not concerned in this appeal.
What concerns us in this appeal is the dispute between the plaintiffs on the one hand and defendant No. 3 on the other and this dispute centered.
round three points, namely, (1)Whether the security bond (exhibit E 1) executed by Rashmoni along with Mohini was executed for legal, necessity and was therefore binding on the reversioners, of Haripada after the death of Rashmoni ? (2)Whether the fact that Mohini, who was the presumptive reversioner at that time, joined with his mother in executing the security bond would make it binding on the ,actual reversioner after the death of Rashmomi? In ' any event if such consent on the part of the presumptive reversioner raised a presumption of legal necessity, was that presumption rebutted in the present case by the evidence adduced by the parties ? (3)Whether the title of defendant No. I was protected ,he being a stranger purchaser who had purchased the property from the purchaser at an execution sale after making proper enquiries and obtaining legal advice ? The trial Judge by his judgment dated the 22nd December, 1944, decided all these points in favour of the plaintiffs and decreed the suit.
On appeal by the defendant to the High Court, the decision of the trial Judge was affirmed.
The heirs of defendant No.3 have now come up to this Court and Mr. Chatterjee appearing in support of the appeal has reiterated all the three points which were urged on behalf of his clients in the Courts below.
475 On the first point both the Courts below have held concurrently, that there was absolutely no legal necessity which justified the execution of the security bond by Rashmoni in favour of Suhasini.
Mr. Chatterjee lays stress on the fact that it was a matter of imperative necessity for both the plaintiffs to get back the estate of their father from the hands of the receiver as the debts contracted by the receiver were mounting Up day after day.
It is pointed out that on the 28th January, 1911, the Court had made a peremptory order to the effect that the properties could be released only if the plaintiffs deposited Rs. 20,950 annas odd on or before the 1st February next.
In order to comply with this order Mohini had no other alternative but to borrow money on the mortgage of his properties and this he had to do before the 1st February, 1911.
It is true that because of the unfortunate death of Haripada only a few days before, Rashmoni could not join in executing the mortgage but she, as heir of Haripada, was really answerable for half of the money that was required to be deposited in Court.
It is said that this was not a mere moral obligation but a legal liability on the part of the lady, as Mohini could have claimed contribution from her to the extent that Haripada 's estate was benefited by the deposit.
The execution of the security bond therefore was an act beneficial to the estate of Haripada.
The contentions, though somewhat plausible at first sight, seem to us to be wholly without substance.
In the first place the money borrowed by Mohini or deposited by him in Court did not and could not benefit Haripada 's estate at all.
As was found, on investigation of accounts, under orders of the High Court later on, nothing at all was due to the receiver by the estate of Haripada or Mohini.
On the other hand, both the brothers were entitled to get a fairly large sum of money from the receiver.
The trial Judge found that there was no urgent necessity to borrow money for releasing the estate and in fact it was Mohini who acted in hot haste to execute the mortgage, his only object being to get the properties in his own hands.
It may be, that it was not possible to know the actual state 476 of affairs with regard to the ' receiver 's accounts and consequently it might well have been thought prudent to borrow money to ward off what was considered to be a danger to the estate.
This might furnish some excuse or explanation for Mohini 's borrowing money on the 28th January, 191 1, but that could not make the act of Rashmoni in executing the security bond, seven months after that event, an act of prudent management on her part dictated either by legal necessity or considerations of benefit to the estate of her deceased son ' In the first place it is to be noted that the total amount borrowed by Mohini was Rs. 30,000 out of which Rs. 20,950 only were required to be deposited in Court.
The recital in the security bond that the rest of the money was spent by, Mohini to pay off certain debts of Rashmoni herself and also to meet the litigation and household expenses of both of them has been held by the Subordinate Judge to be false.
It has been found on facts that Rashmoni had no occasion to incur any debts either for litigation expenses or for any other purpose.
But the most important thing that would require consideration is the state of things actually existing at the time when the security bond was executed.
Even if the release of the estate was considered to be desirable, that had been already accomplished by Mohini who borrowed money on his own responsibility.
The utmost that could be said was that Rashmoni was bound to reimburse Mohini to the extent that the deposit of money by Mohini had benefited the estate of Haripada.
The High Court has rightly pointed out that Rashmoni did not execute the bond to raise any money to pay off her share of the deposit and in fact no necessity for raising money for that purpose at all existed at that time.
As has been mentioned already, by an order passed by the High Court on the revision petition of Mohini and his mother against the order of the Subordinate Judge dated the 23rd February, 191 1, the whole amount of money deposited in Court on the 1st, February, 191 1, with the exception of a small sum that was paid to a creditor, with the consent of both parties, was detained in Court.
The High Court dispos ed of the revision case on 29th May, 1611, and directed 477 investigation into the accounts of the receiver by a Commissioner appointed by it.
As said already, the Court passed severe strictures on the conduct of the receiver as well as of the Subordinate Judge and plainly indicated that the moneys borrowed by the receiver were borrowed not for the benefit of the plaintiffs at all.
Undoubtedly the accounts were still to be investigated but what necessity there possibly could be for Rashmoni to execute, after the High Court had made the order as stated above, a security bond by which she mortgaged all the properties that were allotted to Haripada in his share as an additional security for the entire loan of Rs. 30,000 no portion of which be defied the estate of Haripada at all? In our opinion the only object of executing the security bond was to protect Mohini who was threatened with legal proceedings by his creditor for having included a nonexistent property in the mortgage bond.
Rashmoni certainly acted at the instance of and for the benefit of Mohini and she might have been actuated by a feeling of Maternal affection to save her son from a real or imaginary danger.
But by no stretch of imagination could it be regarded as a prudent act on the part of a Hindu female heir which was necessary for the protection of the estate of the last male holder.
In our opinion the view taken by the Courts below is quite proper and as a concurrent finding of fact it should not be disturbed by this Court.
The second point urged by Mr. Chatterjee raises the question as to whether the fact of Mohini 's joining his mother in executing the security bond would make the transaction binding on the actual reversioner, Mohini being admittedly the presumptive reversioner of Haripada at the date of the transaction.
We do not think that there could be any serious controversy about the law on this point.
The alienation here, was by way of mortgage and so no question of surrender could possibly arise.
Mohini being the immediate reversioner who joined in the execution of the security bond must be deemed to have consented to the transaction.
Such consent may raise a presumption that the transaction was for legal necessity or that the mortgagee had acted therein after proper and bona flde enquiry and has 478 satisfied himself as to the existence of such necessity(1).
But this.
presumption is rebuttable and it is open to the actual reversioner to establish that there was in fact no legal necessity and there has been no proper and bonafide enquiry by the mortgagee.
There is no doubt that both the Courts below have proceeded on a correct view of law and both have come to the conclusion upon a consideration of the evidence in the case that the presumption that arose by reason of the then reversioner 's giving consent to the transaction was rebutted by the facts transpiring in evidence.
Mr. Chatterjee placed considerable reliance upon another document which purports to be a deed of declaration and was executed by Ram Narayan on the 5th of October, 1918.
At this time Mohini was dead 'and Ram Narayan was the immediate reversioner to the estate of Haripada and by this deed he declared inter alia that the debts contracted by Rashmoni were for proper and legal necessity.
This deed purports to be addressed to Bangshidari Ghosh and Keshav Dutt, two other alienees of the properties of Mohini and Haripada and does not amount to a representation made to the auction purchaser Annada Prasad Ghose or to the father of the present appellants.
In fact they had not come in the picture at all at that time.
At the most it can be regarded only as an admission by a presumptive reversioner and cannot have any higher value than the consent expressed by Mohini who figured as a co execuitant of the security bond.
It cannot bind the actual reversioner in any way.
Mr. Chatterjee attempted to put forward an argument on the authority of certain observations in the case of Bajrangi vs Monokarnika(2) that as the present appellants are the sons of Ram Narayan the admissions made by their father would bind them as well.
It is true that there is a passage at the end of the judgment in Monokarnika 's case(1) which lends some apparent support to the contention of the learned counsel.
The concluding words in the judgment stand as follows: (1)Vide Debi Prosad Chowdhury vs Golap Bhagat, I.L.R. at 78I. Approved of by the judicial Committee in Gounden vs Gounden, 46 I.A. 72, 84.
(2) 35 I.A. 1. 479 "The appellants who claim through Matadin Singh and Baijnath Singh must be held bound by the consent of their fathers.
" But the true import of this passage was discussed by the Privy Council in their later pronouncement in Rangasami Gounden vs Nachippa Gounden(1) and it was held that the words referred to above should I not be construed to lay down the proposition that such consent on the part of the father would operate proprio vigore and would be binding on the sons.
This proposition, Their Lordships observed, was opposed both to principle and authority, it being a settled doctrine of Hindu law that nobody has a vested right so long as the widow is alive and the eventual reversioner does not claim through anyone who went before him.
As the sons of Ram Narayan claim as heirs of Haripada and not of their father, the admissions, if any, made by the latter could not in any way bind them.
This contention of the appellant must therefore fail.
The third and the last contention raised by Mr. Chatterjee is that in any event his client is a stranger who has bona fide purchased the property for good consideration after making due enquiries and on proper legal advice and be cannot therefore be affected by any infirmity of title by reason of the absence of legal necessity.
In our opinion the contention formulated in this form really involves a misconception of the legal position of an alienee of a Hindu widow 's property.
The interest of a Hindu widow in the pro perties inherited by her bears no analogy or resemblance to what may be described as an equitable estate in English law and which cannot be followed in the hands of a bonafide purchaser for value without notice.
From very early times the Hindu widow 's estate has been described as qualified proprietorship with powers of alienation only when there is justifying necessity, and the restrictions on the powers of alienation are inseparable from her estate (2).
For legal necessity she can convey to another an absolute title to the property vested in her.
If there is no legal 'necessity, the transferee gets only the widow 's estate which is not even an (1) 46 I.A. 72 at 83 84.
(2) Vide The Collector of Masaulipatam vs Cavaly Venkata, S.M.I.A. 529, 480 indefeasible life estate for it can come to an end not merely on her death but on the happening of other contingencies like re marriage, adoption, etc.
If an alienee from a Hindu widow succeeds in establishing that there was legal necessity for transfer, he is completely protected and it is immaterial that the necessity was brought about by the mismanagement of the limited owner herself.
Even if there is no necessity in fact, but it is proved that there was representation of necessity and the alienee after making bona fide enquiries satisfied himself as best as he could that such necessity existed, then as the Privy Council pointed out in Hunooman Persaud Panday 's case (1) the actual existence of a legal necessity is not a condition precedent to the validity of the sale.
The position therefore is that if there is no necessity in fact or if the alienee could not prove that he made bona fide enquiries and was satisfied about its existence, the transfer is undoubtedly not void but the transferee would get only the widow 's estate in the property which does not affect in any way the interest of the reversioner.
In this case the alienation was by way of mortgage.
The finding of both the Courts below is that there was no legal necessity which justified the execution of the security bond.
The mortgagee also could not prove that there was representation of the legal necessity and that she satisfied herself by bona fide enquiries that such necessity did exist.
On 'this point the, finding recorded by the High Court is as follows : " In the present case, there is no scope for an argument that there was such representation of legal necessity or that on bona fide enquiry the alienee satisfied herself 'that there was such a necessity, for as I have already pointed out the security bond itself states that it was in consideration of benefits already received and with a view to induce Suhasini to forbear from proceeding against Mohini, that the bond was being executed.
There is no representation in the bond that the alienation was made with a view to securing any benefit to the estate or to avert any danger to the estate or for the purpose of any other legal necessity.
Whatever enquiries the appellants may have made (1) would be of no avail to them when the alienation is not binding on the whole estate but only on the woman 's estate of Rashmoni.
" In our opinion the view taken by the High Court is quite proper.
On this finding the security bond could operate only on the widow 's estate of Rashmoni and it was that interest alone which passed to the purchase.
at the mortgage sale.
The subsequent transferee could not claim to have acquired any higher right than what his predecessor had and it is immaterial whether he bona fide paid the purchase money or took proper legal advice.
The result is that in our opinion the decision of the High Court is right and this appeal must stand dismissed with costs.
Appeal dismissed.
| IN-Abs | It is a well settled doctrine of Hindu law that nobody has a vested right so long as the widow is alive and the eventual reversioner does not claim through any one who went before him.
The interest of a Hindu widow in the properties inherited by her bears no analogy or resemblance to what may be described as an equitable estate in English law and which cannot be followed in the hands of a bona fide purchaser for value without notice.
A Hindu widow has got only qualified proprietorship in her estate which she can alienate only when there is justifying necessity and the restrictions on her powers of alienation are inseparable from her estate.
For legal necessity she can convey to another an absolute title to the property vested in her.
If there is no legal necessity the transferee gets only the widow 's estate which is not even an indefeasible life estate for it can come to an end not merely on her death but on the happening of other contingencies like re marriage, adoption, etc.
If an alienee from a Hindu widow succeeds in establishing that there was legal necessity for transfer, he is completely protected and it is immaterial that the necessity was brought about by the mismanagement of the limited owner herself.
Even if there is no necessity in fact, but it is proved that there was representation of necessity and the alienee after making bona fide enquiries satisfied himself as best as he could that such necessity existed, the actual existence of a legal necessity is not a condition precedent to the validity of the sale.
Therefore if there is no necessity in fact or if the alienee could not prove that he made bona fide enquiries and was satisfied about its existence, the transfer is not void but the transferee would get only the widow 's estate in the property which does not in any way affect the interest of the reversioner.
Debi Prasad Chowdhury vs Golap Bhagat (I.L.R. 40 Cal.
721), Rangasami Gounden vs Nachiappa Gounden (46 I.A. 72), Bajrangi vs Manokarnika (35 I.A. 1), The Collector of Masulipatam vs Cavaly Venkata (8 M. I.A. 529) and Hunoomanpersaud Pandey vs Musammat Babooee Munraj Koonweree referred to.
|
Appeal No. 20 of 1968.
Appeal under Section 116 A of the Representation of the People Act, 1951 from the judgment and order dated the November 30, 1967 of the Patna High Court in Election Petition 19 of 967.
Danial A. Latifi, and R.A. Gupta, for the appellant.
D. Goburdhun, for the respondent.
The Judgment of the Court was delivered by Mitter, J.
This is an appeal by an unsuccessful candidate at an election held in February 1967 for the Bihar State Legislative Assembly from the Single Member Rajmahal Constituency No. 139.
Originally there were eight candidates.
: we are concerned only with two of them, namely, the election petitioner and respondent, Nathumal Dokania, the returned candidate as a result of the election.
The election petitioner lost before the High Court.
The main ground on which he presses this appeal are based on paras 4(c) and 4(e) of the petition.
The relevant issue framed by the learned trial Judge with regard to paragraph 4 (c) issue No. 5 reading : "Did the respondent or his election agent or his workers with his or his election agent 's consent resort to corrupt practices in the election, as alleged by the petitioner and has the result of the election been materially affected thereby ?" para 4(c) it is pleaded that the respondent himself and his agents and workers including certain named persons with his consent "committed a corrupt practice of publication of statements of facts throughout the constituency and mainly at Shahebganj, Teen Pahar and Rajmahal during the election campaign during 43 the period 11th February 1967 to 15th February 1967 which induced and caused deception in the mind of the electors whereby the respondent procured a large number of votes which he would not otherwise have secured but for the corrupt practice aforesaid.
" Copies of the pamphlets from Annexure 2 series to the petition.
Mr. Latifi appearing for the appellant submitted that Annexure 2(A) does not further his client 's cause.
His grievance is based on Annexure 2.
The translation of this Annexure of which the original was in Hindi shows that it was a call to the Muslim voters of Rajmahal to "hear the message and prepare the graveyard for the Congress.
" Reference was made therein to "the appeal of the day by Maulana Syed Usman Ghani Saheb of Phulwari Sharif Khankah" "that nobody should be in illusion that Muslims have to vote for the Congress.
time also.
It was also suggested that on account of high handedness of the Congress group Muslims should not support it.
There was also a reference to the appeal of Pit Saheb of the Dargah of Phulwari Sharif that Muslims should not vote for any Congress candidate.
The appeal ends with the sentence, "when you have life long connection with Sri Nathmal Dokania, the candidate of the Swantantra Party and when the Head of your religion, your Islam also opposes the Congress, then it becomes your duty to come out victorious by affixing stamps on the "Star" symbol." Mr. Latifi tried to argue that by the publication of the pamphlet an attempt was made to.
induce Muslim electors not to vote for a Congress candidate in opposition to the mandates of the two.
named religious heads.
In other words, his contention was that undue influence within the meaning of section 123(2) of the Act was sought to be exercised on the Muslim voters in the name of the religious heads mentioned in the pamphlet under the threat of divine displeasure or spiritual censure.
He also sought to argue that the reference to the mandate of Islam in the pamphlet amounted to the use of a religious symbol and as such the appeal by the pamphlet came within the mischief of section 123 (3) of the Act.
Under 8. 123(2), a candidate may be guilty of corrupt practice if he uses "undue influence" which in the words of the section means any direct or indirect interference or attempt to interfere with the free exercise of any electoral right of a voter.
Mr. Latifi 's submission was.
that the pamphlet came within the mischief of subclause (ii) of proviso, (a) to section 123(2).
Unfortunately for Mr. Latifi, although the pamphlet might have sustained a plea of undue influence about which we express no opinion, there is no pleading to that effect in the petition.
In order that a pleading may be sufficient to make out a case of undue influence, it must 44 set out full particulars of it under the provisions of section 83(1)(c) of the Act which may be compared with Order 6 rule 4 of the Code of Civil Procedure.
The said provision of the Act read with section 123(2) makes it obligatory on a party setting .up a case of corrupt practice by exercise of undue influence as suggested, to give full particulars thereof by stating inter alia who attempted to induce electors to believe that voting for a particular person would render them objects of divine displeasure or spiritual censure and in what manner such attempts were made.
The real charge in paragraph 4(c) of the petition is that the pamphlet complained of misled the electors by false statements.
Such a pleading falls far short of an allegation of undue influence by an attempt to make electors exercise their franchise in a particular manner.
Para 4(c) does not even mention Muslim voters and does not contain any averment to the effect that they were sought to be influenced by the opinion of the religious heads.
Mr. Latifi 's attempt to bring his case under section 123(3) is equally futile.
Mr. Latifi sought to argue that Islam was a religious symbol of Muhamedans and the publication of the pamphlet containing a reference to the mandate of Islam was an attempt to prejudicially affect the election of the, petitioner.
This case too is not borne out by the pleadings.
Failing in his attempt to bring the ' case under the two sub sections mentioned already, he tried to bring his case under section 123 (4) of the Act.
In this too, in our view, he cannot succeed.
To bring the case under this sub section, there must be a publication by the candidate or his agent of any statement of some fact which is false, and which he believed to be false or did not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature or withdrawal of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate 's election.
The pamphlet does not cast any aspersion on the personal character or conduct of the election petitioner.
Nor is there any false statement in relation to the candidature of the petitioner.
In fact there is no reference to him at all.
Consequently, the election petition does not attract the operation of the aforementioned sub sections of section 123 of the Act.
The learned trial Judge should not have entertained any argument under subsections 3 and 3A of section 123 of the Act as in view of the pleadings issue No. 5 did not permit the raising of such contentions.
In view of the pleadings we did not permit Mr. Latifi to pursue his arguments on this issue on the basis of section 123 sub sections
(2)or (3) of the Act.
That leaves us only with the allegation in para 4(e) of the petition which runs thus: "The election of the respondent is void, because the Returning Officer who is also the Sub Divisional Magis 45 trate of the area, in collusion with the respondents harassed the petitioner in all possible ways so much so that a mere application for correction in the petitioner 's name was allowed at the last juncture and the petitioner had been arrested the very next day of the said application, was put in jail for eight valuable days and thereby prevented from pursuing the election campaign.
" The issue under which the above complaint was sought to be raised was the general one, namely, whether the election of the respondent is liable to be set aside ? Mr. Latifi drew our attention to portions of the testimony of the Returning Officer where he denied that he was in collusion with Nathmal Dokania or that because of such collusion he got the petitioner arrested after he had filed applications for correction of the entries with respect to his name in the electoral roll.
He also denied that he got the petitioner arrested with any mala fide intention so that he might not be able to contest the election.
in his cross examination, the Returning.
Officer referred to.
the proceedings started against the petitioner and said that the petitioner had been arrested once in January and for a second time in February 1967.
The arrest in January 1967 was in connection with proceedings under section 107 of the Code of Criminal Procedure.
The arrest in February 1967 was in connection with a case for some substantive offences.
He added however that he was not in a position to say what was the offence alleged to have been committed by the petitioner by a mere reference to the certified copy of the order sheet.
On this evidence there was nothing before the court to justify a conclusion in favour of the petitioner on the general issue.
Only some suggestions had been made to the Returning Officer in his cross examination that he had ,acted mala fide and that he had a acted in collusion with the successful candidate.
No details with regard to the complaints leading to or the grounds for the arrests were forthcoming.
We find it difficult to believe that the petitioner did not know the 'grounds on which he was put under arrest.
The arrest immediately before the election surely hampered the campaign of the election petitioner, but by itself the arrest does not lead to the conclusion that the Returning Officer was trying to bring pressure upon the election petitioner not to contest the election and much less that the arrest was made in collusion with the successful candidate.
These being the only two points which were urged before us in the appeal, the appeal must fail and it is hereby dismissed with costs.
G.C. Appeal dismissed.
| IN-Abs | The election of the respondent to the Bihar Legislative Assembly at the 1967 general election was challenged by the appellant one of the defeated candidates in an election petition.
Annexure 2 to the petition was a pamphlet alleged to have been issued by the respondent and his supporters in which reference was made to the call of two Muslim religious heads that Muslims should not vote for the Congress party to which Islam was opposed.
The High Court dismissed the election petition whereupon appeal was filed in this Court.
The appellant urged that (i) In the aforesaid pamphlet an attempt was made to induce muslim voters not to vote for a Congress candidate in opposition to the mandate of two named religious heads and this amounted to the corrupt practice of "undue influence" under section 123(2) of the Representation of the People Act 1951; (ii) The reference to the mandate of Islam amounted to the use of a religious symbol within the mischief of section 123(3); (iii) The said pamphlet also came within the mischief in section 123(4); (iv) The Returning Officer who was also the Sub Divisional Officer of the District ordered the arrest of the appellant immediately before the election; this was done mala fide, in collusion with the respondent and the appellant was thereby hampered in his election campaign.
HELD: (i) The pleadings in the appellant 's election petition did not permit consideration of his contention based on section 123(2) of the Act.
In order that a pleading may be sufficient to make out a case of undue influence it must set out full particulars of it in compliance with section 83(1)(c) of the Act comparable to Order 6 r. 4 of the Code of Civil Procedure.
The said provision of the Act read with section 123(2) makes it obligatory on a party setting up a case of corrupt practice by exercise of undue influence as suggested, to give full particulars thereof by stating inter alia who attempted ' to induce electors to believe that .voting for a particular person would render them objects of divine displeasure or spiritual censure and in what manner such attempts were made.
The real charge in the relevant paragraph of the petition in the present case was that the pamphlet complained of misled the electors by false statements.
Such a pleading falls short of an allegation of unique influence by an attempt to make electors exercise their franchise in a particular manner.
[43 H 44 C] (ii) The contention that the case fell under section 123.(3) because of the use of the mandate of Islam as a religious symbol was 'also not borne out by the pleadings and therefore could not be considered.
[44 D] (iii) To bring the case under section 123(4) there must be a publication by the candidate or his agent of any statement of same fact which is up.
CI/69 4 42 false, and which is believed to be false or not believed to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature or withdrawal of any candidate being a ,statement reasonably calculated to prejudice the prospects of that candidate 's election.
The pamphlet in question did not cast any aspersion on the personal character or conduct of the election petitioner.
Nor was there any false statement in relation to the candidature, of the petitioner.
.Section 123(4) was therefore not attracted to the case.
[44 E F] (iv) The.
evidence in the case did not prove that the Returning Officer caused the appellant to be arrested mala fide or in collusion with the respondent.
The arrest immediately before the election surely hampered the campaign of the election petitioner, but by itself the mere fact of arrest does.
not lead to the conclusion that the Returning Officer was trying to bring pressure on the election petitioner not to contest the election and much less that the arrest was made in collusion with the successful candidate.
[45 G]
|
Appeal Nos. 735 and 736 of 1966.
Appeals by special leave from the judgment and decree dated March 26, 1965 of the Allahabad High Court, Lucknow Bench in Second Execution Decree Appeals Nos. 3 and 4 of 1961.
J. P. Goyal and section P, Singh, for the appellant (in both the, appeals).
233 C. B. Agarwala and K. B. Gupta, for the respondent (in both the appeals).
The Judgment of the Court was delivered by Bachawat, J.
The appellant filed suit nos.
87 of 1948 and 2/12 of 1948 in the court of the Assistant Collector, 1st Class, Pratapgarh, (a revenue court) against the respondent and 8 others persons under sections 60, 61 and 180 of the U.P. Tenancy Act (U.P. Act XVII of 1939) claiming a declaration that the defendants had no right to the suit lands and a decree for possession in case the defendants were found to be in possession thereof.
The suits were decreed in 1948.
The appellant took symbolical possession of the lands in execution of the decrees.
Appeals against the decrees filed by the respondent and other defendants were dismissed by the Additional Commissioner, Faizabad.
The defendants filed second appeals against the decrees.
During the pendency of the appeals rules 4 and 5 of the Uttar Pradesh Zamindari Abolition and Land Reforms Rules 1952 came into force.
The Board of Revenue held that in view of rules 4 and 5 the pending appeals as also the suits had abated.
In 1955 the respondent filed applications for restitution of the lands under section 144 of the Code of Civil Procedure in court of the Assistant Collector, 1st Class, Pratapgarh.
The appellant con.
tested the application.
One of the issues arising on the application was whether the appellant had acquired Bhumidari rights.
The Assistant Collector referred this issue to the Civil Court for decision.
He refused to recall the order of reference in spite of the respondent 's plea that he had no power to pass the order as no question of proprietary title had arisen.
On May 7, 1958 the civil court answered the issue in the negative.
On February 18, 1958 the Assistant Collector allowed the application for restitution and directed that the respondent be put in possession of the lands.
The appellant filed appeals against the orders dated February 18, 1958 As he was not certain about the proper forum of the appeals he took the precaution of filing the appeals in the revenue court as also in the civil court.
On October 23, 1959 the Additional Commissioner, Faizabad Division, held that the Revenue Court had no jurisdiction to entertain the appeals and that the appeals lay to the civil court under sections 286(4) and 265(3) of U.P. Tenancy Act.
Accordingly he returned the memoranda of appeals for presentation to the proper court.
The appellant filed revision petitions against the orders before the Board of Revenue, In the meantime the appeals filed before the civil court came up for hearing.
The respondent submitted to the jurisdiction of the civil court.
He did not raise the contention that the, civil court had no jurisdiction to entertain the, appeals.
On 234 November 12, 1960 the Additional Civil Judge,, Pratapgarh, allowed the appeals and dismissed the applications for restitution.
He held that (1) the appellant was in possession of the lands on the dates of the institution of the suits; (2) the board of revenue had no power to abate the suits or to set aside the decree passed therein, and (3) the application for restitution was not maintainable as the appellant had not obtained possession of the lands in execution of any decree which had been reversed or set aside.
In view of this decision, the appellant did not proceed with the pending revision petitions before the board of revenue and on November 18, 1960 the revision petitions were dismissed.
On February 1, 1961 the respondent filed second appeals in the High Court against the appellate orders of the civil court dated November 12, 1960.
In the original memorandum of appeal, he did not take the plea that the civil court had no jurisdiction to entertain the appeals.
For the first time on January 24, 1964, he took this plea by adding a new ground in his memorandum of appeal.
The High Court held that (1) the appellant was in possession of the lands before the passing of the decree; (2) the suits had not abated and the Board of Revenue had no jurisdiction to set aside the proceedings, in the suits ' and (3) the applications for restitution were not maintainable.
The High Court, however, held that (1) appeals against the orders for restitution lay to the revenue court, (2) the civil court had no jurisdiction to entertain the appeals and (3) the respondent was not estopped from raising the contention.
Accordingly on March 26, 1965 the High Court allowed the second appeals, set aside the order of the Additional Civil Judge and returned the memoranda of appeals for presentation to the proper court.
The appellant has filed the present appeals after obtaining special leave.
On behalf of the appellant it is argued that (1) the appeal from the order of the Assistant Collector dated February 18, 1959 lay to the civil court and not to the revenue court (2) in the circumstances of the case, and in view of section 289(2) of the U.P. Tenancy Act, the respondent was precluded from raising the objection that the appeals did not lie to the civil court.
It is common case that suits nos.
87 of 1948 and 2/12 of 1948 Were of the nature specified in Group B of the fourth schedule to the U.P. Tenency Act.
In view of section 265(2) read with section 271(2) appeals from orders in proceedings under section 14 4 of the Code of Civil Procedure arising out of, the two suits lay to the revenue court.
The appeals did not lie to the civil court under sections 265(3) and 286(4) read with section 271(2) as no question of jurisdiction was decided by the Assistant Collector nor was any question of proprietary title referred to or decided by the civil court.
But the more important question is whether having regard to the 235 scheme of the U.P. Tenancy Act and the circumstances of the case, the objection as to the lack of competence of the civil court to entertain the appeals could be raised in the High Court.
The U.P. Tenancy Act 1939 consolidates and amends the law relating to agricultural tenancies and other matters connected therewith in Agra and Oudh.
It repealed the Agra Tenancy Act, 1926 and the Oudh Rent Act 1886.
Chapter XIV of the Act deals with the procedure and jurisdiction of courts.
Section 242 provides that certain suits and applications are cognizable by the revenue courts only.
The chapter provides for appeals and revisions.
No appeal lies from any decree or order passed by any court under the Act except as provided in the Act (section 263).
In some cases an appeal lies to a revenue court; in other cases the appeal lies to the civil court.
The High Court has no revisional power under section 276 in a case in which no appeal lies to the civil court.
It is often a question of extreme nicety whether a suit, application or appeal is cognizable by the revenue court or by the civil court.
Sections 289, 290 and 291 deal with objections regarding the proper forum.
Section 290 provides that where in a suit instituted in a civil or revenue court, an appeal lies to the district judge or to the High Court, an objection that the suit was instituted in the wrong court shall not be entertained by the appellate court unless such objection was taken in the court of the first instance; and the appellate court shall dispose of the appeal as if the suit has been instituted in the right court.
The section closely resembles section 21 of the Code of Civil Procedure and is a recognition of the princi ple that an objection as to the proper forum for the trial of a suit may be waived.
Section 291 treats the objection as technical and provides that even where the objection was taken in the court of the first instance, the appellate court may dispose of the appeal as if the suit had been instituted in the right court.
It may declare any court to be competent to try the suit and may remand the suit for fresh trial, and the competence of the trial cannot be ques tioned later.
With a view to avoid conflicts of jurisdiction section 289 provides for reference to the High Court.
Section 289 is as follows : "289(1) Where either a civil or revenue court is in doubt whether it is competent to entertain any suit, application or appeal, or whether it should direct the plaintiff, applicant or appellant to file the same in a court of the other description, the court may submit the record with a statement of the reasons for its doubt to the High Court; (2) Where any suit, application or appeal, having been rejected either by a civil court or by a revenue 236 court on the ground of want of jurisdiction, is subsequently filed in a court of the other description, the latter court, if it disagrees with the finding of the former, shall submit the record, with a statement of the reasons for its disagreement to the High Court; (3) In cases falling under subsection (1) or subsection (2) if the court is a revenue court subordinate to the collector, no reference shall be made under the foregoing provisions of this section except with the previous sanction of the collector; (4) On any such reference being made , the High Court may order the court either to proceed with the case, or to return the plaint, ' application or appeal for presentation of such other court as it may declare to be competent to try the same; (5) The order of the High Court shall be final and binding on all courts, subordinate to it or the Board.
" Section 289 vests in the High Court a special jurisdiction.
The decision of the High Court given ' on a reference to it under section 289 is binding on all courts.
A reference can be made under section 289(1)if any court doubts its own competence to entertain any proceeding.
The reference under section 289(1) is optional.
Without making any reference the court may refuse to entertain the proceeding on the ground of want of jurisdiction.
But the court of the other description in which the proceeding is subsequently instituted is not bound by this finding, see Nathan vs Harbans Singh(1).
Before the enactment of section 289(2) if it disagreed with the finding, it could reject the proceeding on the ground that the matter was cognizable by the other court, As neither court was bound by the finding of the other, the litigant could not get relief in any forum.
Section 289(2) has been specially enacted to avoid such a deadlock.
In such a situation, section 289(2) compels the court to refer the matter to the High Court and to obtain a Provisions corresponding to sections 290, 291 and 289(1) were contained in sections 124 A, 124B, 124C and 124D of the Oudh Rent Act 1886 and sections 268, 269 and 267(1) of the Agra Tenancy Act, 1926.
It seems that Oudh Rent Act, 1886 did not contain any provision corresponding to section 289(2).
The absence of such a provision seriously hampered the administration of justice.
In numerous cases under the Oudh Rent Act, after a suit, application or appeal was rejected by a civil court or revenue court on the ground of want of jurisdiction, the court of the other descrip (1) A.I.R. 1930 All. 264, decision which will bind all the courts.
237 tion where the proceeding was subsequently filed came to the opposite conclusion and held that the matter was within the cognizance of the former court.
The decision of the court of one description including the decision of the High Court exercising appellate or revisional power over that Court was not binding upon the court of the other description.
Such a situation led to great injustice.
The litigant was bandied about from court to court and he could not get any relief anywhere.
The Oudh Chief Court mitigated the evil by applying the doctrine that a party litigant could not approbate and reprobate in respect of tile same matter.
A party litigant may not be allowed to take inconsistent positions in court to the detriment of his opponent at successive stages of the same proceeding or in a subsequent litigation growing out of the judgment in the former proceeding, see Bigelow on Estoppel, 6th Ed.
783, 789, Mohammad Mehdi Khan V Mussammat Sharatunnissa(1).
On this principle it was held in Mahadeo Singh vs Pudai Singh(2) that where a revenue court upheld the plea that it had no jurisdiction to entertain a suit, the party putting forward the plea would be precluded from contending that the civil court could not entertain the suit.
Likewise in Saira Bibi vs Chandrapal Singh (8) it was held that when an appeal was originally instituted properly in the revenue court but on objection being raised by a party was dismissed on the ground that the appeal did not lie to that court, it was not open to the party to raise the objection that the appeal could not be entertained by the civil court.
This form of estoppel arises when the litigant takes in consistent pleas as to jurisdiction in different courts.
It cannot be pressed into service, where, as in the present case, the court in which the proceeding was originally filed suo motu raised the objection as to jurisdiction.
In the present case it does not appear that the respondent raised before the revenue court the objection that it was not competent to entertain the appeals.
The doctrine of approbate and reprobate cannot be invoked to, preclude the respondent, from raising the objection that the appeals did not lie to the civil court.
But the effect of upholding his objection is that the appellant is deprived of his right of appeal altogether.
His appeals cannot be entertained either by the civil court or by the revenue court.
Section 289(2) is intended to prevent such grave miscarriage of justice.
Section 289(2) reenacts the provision of section 267(2) of the Agra Tenancy Act 1926.
The object of section 289(2) is to avoid a deadlock between the civil and the revenue courts on the question of jurisdiction, and its provisions should receive a liberal construction.
Section 289(2) applies whenever any suit, application or appeal having been rejected either by the civil court or revenue (1) 3 Oudh Cases, 32, Luck, 159,166.
(3) A.I.R. 1931 Oudh 123.
238 court on account of want of jurisdiction is subsequently filed in the court of the other description and the latter court disagrees with the finding of the former.
In such a case, a reference to the High Court is compulsory and the conflict of opinion is resolved by a decision of the High Court which is binding on all courts.
A court subordinate to the collector cannot make the reference without the previous sanction of the collector under section 289(3).
It is implicit in section 289(3) that if the collector refuses to give the sanction, the case will proceed as if there is no dis agreement with the finding of the former court.
In a case falling within section 289(2), only the court in which the proceeding is subsequently instituted can disagree with the finding of the former court on the question of jurisdiction.
If it so disagrees, it must refer the matter to the High Court; and only the High Court on such a reference can override the finding.
No other court can disagree with the finding and make the reference.
In our opinion, if no such reference is made, the finding of the former court on the question of jurisdiction becomes final and conclusive; and the objection that it is erroneous cannot be entertained by the appellate or revisional court or any other court.
In the present case the respondent did not raise any objection before the Additional Civil Judge that the civil court was not competent to entertain the appeals.
The Additional Civil Judge did not make any reference to the High Court under section 289(2).
He decided the appeal on the merits and did not disagree with the finding of the revenue court on the question of jurisdiction.
Having regard to this decision the appellant did not proceed with the revision petitions filed by him against the orders of the revenue court on the question of jurisdiction In these circumstances, it was not open to the respondent to raise the objection in the High Court that the civil court was not competent to hear the appeals.
In view of the fact that no reference.
under section 289(2) was made, the finding of the revenue court that the civil court was competent, to entertain the appeals could not be challenged in the High Court.
The case must be decided on the footing that the Additional Civil Judge, Pratapgarh, was competent to enter tain the appeals.
On the merits the respondent has no case.
The Additional Civil Judge found that the appellant was in possession of the lands on the dates of the institution of the suits.
The High Court agreed with this finding.
We see no reason for setting aside this concurrent finding of fact.
The appellant did not obtain possession of the lands by executing the decrees passed in the two suits.
Even assuming that the suits had abated and the decrees 239 ed therein had been set aside or reversed, no case for restitution.
of the lands under section 144 of the Code of Civil Procedure is made out.
The Additional Civil Judge rightly dismissed the applications under, section 144.
In the result, the appeals are allowed with costs, the orders of the High Court are set aside and the orders passed by the: Additional Civil Judge, Pratapgarh, are restored.
| IN-Abs | The appellant instituted two suits in the Court of Assistant Collector (a Revenue, Court) against the respondent under sections 60, 61 and 180 of the U.P. Tenancy Act, 1939.
The suits were decreed, and the appellant took symbolical possession of the lands.
The Assistant Commissioner.
affirmed the decrees, and during the pendency of the respondent 's second appeals in the High Court, the Uttar Pradesh Zamindari Abolition & Land Reforms Rules, 1952 came into force.
The Board of Revenue held that in view of the Rules.
the pending appeals as also the suits had a ate.
The respondent filed applications for 'restitution of the lands under section 114 C.P.C. in the Court of Assistant Collector.
The Assistant Collector referred the issue whether the appellant had acquired Bhumidari rights to the civil court.
He refused to recall the 'reference in spite of the respondent 's Plea that he had no power to pass the order as no question of pro prietary title bad arisen.
The civil court answered the issue in the negative, and the Asstt.
Collector allowed the applications for restitution.
As the appellant was not certain about the proper forum of appeals against these orders of the Assistant Collector, he filed anneals in the revenue court as also in the civil court.
The Assistant Commissioner held that the revenue court had no Jurisdiction to entertain appeals and the appeals lay to the civil court under sections 286(4) and 265(3) off the U.P. Tenancy Act.
The appellant filed revision petitions against the orders before the Board of Revenue.
In the meantime the appeals filed before the civil court came up for hearing:.
The respondent submitted to the jurisdiction of the civil court, and did not contend that the civil court had no Jurisdiction to entertain the appeals.
The Civil Judge allowed the anneals and dismissed the application for restitution.
Because of this decision.
the appellant did not proceed with the pending revision petitions 'before the Board of Revenue and there the petitions were dismissed.
The respondent filed second appeals in the High Court against the appellate orders of the civil court, without taking the plea that the civil court 'had no Jurisdiction to entertain the anneals.
but later on he took the plea by adding a new ground.
The High Court held that the appeals lay to the revenue court and the respondent was not estopped from raising the contention.
In appeals to this Court the appellant contended that the anneals lay to the civil court and not for the revenue court and in the circumstances of this case, and in view of section 289(2) of the U.P. Tenancy Act.
the respondent was precluded from raising the objection that the appeals did not lie to the civil court.
Allowing the appeals this Court.
HELD : In this case the doctrine of approbate and reprobate could not be pressed into service to preclude the respondent from raising the objection that the appeals did not lie to the civil court as the court in which the proceeding were originally filed suo motu raised the objection.
232 But the effect of upholding his objection would be that the, appellant would be deprived of his right of appeal altogether, and section 289(2) of the U.P, Tenancy Act is intended to prevent such grave miscarriage of justice.
[237 F] Section 289(2) applies whenever any suit, application or appeal having been rejected either by the civil court or revenue court on account of want of jurisdiction is subsequently filed in the court of the other description and the latter court disagrees with the finding of the former.
In such a case,, a reference to the High Court is compulsory and the conflict of opinion is resolved by a decision of the High Court which is binding on all courts.
A court subordinate to the Collector cannot make the reference without the previous sanction of the Collector under section 289(3).
It is implicit in section 289(3) that if the Collector refuses to give the sanction, the case will proceed as if there is no disagreement with the finding of the former court.
[237 H] In a case falling within section 289(2), only the court in which the proceeding is subsequently instituted can disagree with the finding of the former court on the question of jurisdiction.
If it so disagrees, it must refer the matter to the High Court; and only the High Court on such a reference can override the finding.
No other court can disagree with the finding and make the reference.
If no such reference is made, the finding of the former court on the question of jurisdiction becomes final and conclusive; and the objection that it is erroneous cannot be entertained by the appellate or revisional court or any other court.
[238 D] Having regard to the circumstances of this case, it was not open to the respondent to raise the objection in the High Court that the civil court was not competent to hear the appeals.
In view of the fact that no reference under section 289(2) was made, the finding of the revenue court that the civil court was competent to entertain the appeals could not be challenged in the High Court.
The case must be decided on the footing that the Civil Judge was competent to entertain the appeals.
[238 F] On the merits the respondent had no case.
The Civil Judge found that the appellant was in possession of the lands on the dates of the institution of the suits.
The High Court agreed with this finding.
No ground has been made for setting aside this concurrent finding of fact.
The appel lant did not obtain possession of the lands by executing the decrees passed in the two suits.
Even assuming that the suits had abated and the decrees passed therein had been set aside or reversed, no case for restitution of the lands under section 144 of the Code of Civil Procedure was made out.
The applications under section 144 C.P.C., were rightly rejected.
Nathan vs Harbans Singh, A.I.R. 1930 All. 264, Mohammad Mehdi Khan vs Mussammat Sharatunnissa, 3 Oudh Cases 32, 35 37, Mahadeo Singh vs Pudal Singh, A.I.R. 1931 Oudh 123 and Saira Bibi vs Chandrapal Singh, I.L.R. 4 Luck.
150, 166, referred to.
|
Appeal No. 2065 of 1968.
Appeal from the judgment and order dated September 18, 1968 of the Calcutta High Court in F.M.A. No. 381 of 1967.
B. Sen, B. P. Maheshwari, A. N. Parikh and section M. Jain, for the appellant.
D. Narsaraju, R. H. Dhebar and section P. Nayar, for respondents Nos.
and 2.
The Judgment of the Court was delivered by Hidayatullah, C.J.
This is an appeal against the judgment of the High Court of Calcutta dismissing a writ petition filed by the appellant Debesh Chandra Das.
This appeal is by certificate against the judgment dated September 18, 1968.
The appellant is a member of the Indian Civil Service.
He qualified in 1933 and arrived in India in 1934 and was allotted to Assam.
In 1940 he came to the Government of India and became in turn Under Secretary and Deputy Secretary, Home Ministry.
In 1947 he went back to Assam where he held the post of Development Commissioner and Chief Secretary.
In 1951 he again came to the Government of India as Secretary, Public Service Commission.
In 1955 he became Joint Secretary to the Government of India and continued to hold that post till 1961.
From 1961 to 1964 he was Managing Director of Central Warehousing Corporation.
On July 29, 1964, he was appointed Secretary, Department of Social Security with effect from July 30, 1964 and until further, orders, On March 6, 1965 the, 222 Appointments Committee of the Cabinet approved the proposal to continue him as Secretary, Department of Social Security.
He continued in that Department, which is now renamed as the Department of Social Welfare.
On June 20, 1966 he received a letter from the Cabinet Secretary which was to the following effect: "My dear Debesh: For sometime, the Government has been examin ing the question of building up a higher level of administrative efficiency.
This is much more important in the context of the recent developments in the country.
The future is also likely to be full of problems.
In this connection, the Government examined the names of those who are at present occupying top level administrative posts with a view to ascertaining whether they were fully capable of meeting the new challenges or whether they should make room for younger people.
As a result of this examination, it has been decided that you should be asked either to revert to your parent State or to proceed on leave preparatory to retirement or to accept some post lower than that of Secretary of Govt.
I would be glad if you would please let me know immediately as to what you propose to do so that further action in the matter may be taken.
Yours sincerely, Sd/ (DHARMA VIRA)".
He asked for interview with the Cabinet Secretary and the Prime Minister and represented his case but nothing seems to have come of it.
On September 7, 1966 he received a second letter from the Cabinet Secretary which said inter alia as follows : ". .
I am now directed to inform you that after considering your oral and written representations in the matter Government has decided that your services may be placed at the disposal of your parent state, namely, Assam.
In case, however, you like to proceed on leave preparatory to retirement, will you please let me know ?.
" The appellant treated these orders as reduction in his rank ,and filed a writ petition in the High Court of Calcutta on September 19, 1966.
According to him the order amounted to a reduction in rank since the pay of a Secretary to the Government of India (I.C.S.) is Rs. 4,000 and the highest pay in Assam (I.C.S.) 22 3 is Rs. 3,500.
There being no equal post in the Government of Assam his reversion to the Assam Service meant a reduction not only in his emoluments but also in his rank.
He also contended that he held a 5 years ' tenure post and the tenure was to end on July 29, 1969 but was wrongly terminated before the expiry of five years.
He also alleged that there was a stigma attached to his reversion as was clear from the three alternatives which the letter of the Cabinet Secretary gave him.
The highest post in the Government of Assam being equivalent to the Joint Secretary of Government of India, his reversion to the highest post, i.e. Chief Secretary to the Government of Assam, amounted to a reduction in rank.
He contended, if this was the case, the procedure under article 311(2) of the Constitution ought to have been followed and without following that procedure the order was not sustainable.
When the appellant filed the writ petition he was appointed as a Special Secretary on October 15, 1966 but under one of his juniors.
It may be mentioned here that the appellant is next only to the Cabinet Secretary in the matter of seniority.
He also received a letter from the Government of India dated October 20, 1966 in which it was said that Government was considering giving him a post equal to that of a Secretary.
The writ petition was dismissed by Justice A. N. Ray on May 19, 1967.
The following day the appellant was again riposted to Assam but he filed an appeal and obtained a stay.
On March 21, 1968 he was appointed Secretary in the Department of Statistics in the Central Government.
The appeal was heard by Justice P. B. Mukharji and Justice A. N. Sen who differed, the former was in favour of dismissing the appeal while the latter was in favour of allowing it.
The appeal was then laid before Sankar Prosad Mitra, J. who agreed with Justice Mukherji and the appeal was dismissed on September 18, 1968.
On September 20, 1968 the appellant was reposted to Assam.
He, however, filed the present appeal and has proceeded on leave although no orders on leave application seemed to have been passed when we heard the appeal.
In this appeal also, it is contended that the reversion of the appellant to the Assam Service amounts to a reduction in rank.
This is on the ground that he held a higher post in the Government of India and there is no post equal to it under the Assam Government.
The post of the Chief Secretary in the Assam Government is equal to the post of a Joint Secretary in the Government of India and his reversion would therefore indirectly mean a reduction in his rank and also in his emoluments because the highest post in Assam does not carry a salary equal to that of a Secretary in the Government of India.
He also contends that under article 311(2) an enquiry had to be made and he had to be 224 given a chance of explaining his case in the reduction in rank amounted to a penalty.
He contends that the letters of the Cabinet Secretary speak for themselves and clearly show that he was being offered a lower post even in the Government of India if he was to continue here denoting thereby a desire to reduce him in rank.
The letters also speak of his unsatisfactory work and, therefore, cast a stigma on him and therefore his reversion must be treated as a penalty and if the procedure laid down under article 311(2) is not followed, the order of the Government of India could not be sustained.
This, in short, is the case which he had put up before the High Court and has now put up before us.
The Government of India contends that he was on deputation and the deputation could be terminated at any time; that his orders of appointment clearly show that the appointments were "until further orders" and that he had no right to continue in the Government of India if his services were not required and that his reversion to his parent State did not amount either to any reduction in rank or a penalty, and, therefore, the order was quite legal.
Prior to 1946 the members of the Indian Civil Service were in a Civil Service of the Secretary of State.
As a result of a conference between Chief Ministers and the Government of India an All India Administrative Service was constituted in October 1946.
This agreement was entered into under section 263 of the Government of India Act, 1935.
The Indian Administrative Service was common to the Centre and the Provinces.
On January 25, 1950 rules were framed under sections 241(2) and 247 of the Government of India Act, 1935.
These rules were known as the Indian Civil Administrative (Cadre) Rules, 1950.
Under these rules cadres were constituted.
A 'cadre ' is defined in Fundamental Rule 9(4) as the strength of a service or a part of a service sanctioned as a separate unit.
In these rules 'cadre officer ' meant an officer belonging to any of these categories specified in rule 4 and 'cadre post ' meant any duty post included in the Schedule to the Rules.
In rule 4, it was provided that every cadre post shall be filled inter alia by an officer who is a member of the Indian Civil Service. ' In the Schedule Assam was to have 20 senior posts under the Provincial Government, 6 senior posts under the Central Government and 37 posts for direct recruitment, and junior posts and certain services.
After 1954 a number of Rules were framed and we are concerned in this case with the Indian Administrative Service (Cadre) Rules 1954, Indian Administrative Service (Fixation of Cadre Strength) Regulations 1955 and Indian Administrative Service (Pay) Rules 1954.
Under the Pay Rules were shown the posts carrying pay above the time scale pay in the Administrative Service under the State Governments.
In Assam there were 225 four such posts.
Chief secretary (Rs. 3,000), Member, Board of Revenue, Commissioners and Development Commissioners (Rs. 2500 125/2 2750).
These four were the Only posts above the time scale and the highest pay possible was that of a Chief Secretary carrying Rs. 3,000/ p.m. [vide All India Service Manual (1967) p. 2481.
The lower posts in Assam were; Secretaries, Additional Secretaries, Joint Secretaries etc.
who were on a time scale with ceiling of Rs. 2,250 p.m. (ibid p. 263) As against this the posts carrying pay above the time scale or special pay in addition to pay in the time scale under the Central Government when held by Indian Administrative Service men were Secretaries to the Government of India with a pay of Rs. 3,500/ (Rs. 4,000 for Indian Civil Service men) and so on in a downward position There was no separate cadre in the Government of India as defined in the Fundamental Rule mentioned above.
There were only cadres in the States.
Posts beyond the State cadre limit were only to be found in the Government of India.
The Indian Administrative Service (Cadre) Rules 1954 provided as elaborate machinery for getting persons to fill the posts in the Government of India. ' Similarly, the Indian Administrative Service (Fixation of Cadre Strength) Regulations 1955 provided for these matters.
Rule 3 of the Indian Administrative Service (Cadre) Rules provided as follows; "3.
"Constitution of Cadres. (1) There shall be constituted for each State or group of States an Indian Administrative Service Cadre.
(2) The cadre so constituted for a State or a group of States is hereinafter referred to as a 'State Cadre ' or, as the case may be, a 'Joint Cadre.
Rule 4 next provided : "Strength of Cadres. (1) The strength and composition of each of the cadres constituted under rule 3 shall be as determined by regulations made by the Central Government in consultation with the State Governments in this behalf and until such regulations are made, shall be as in force immediately before the commencement of these rules.
(2) The Central Government shall, at the interval of every three years, re examine the strength and composition of each such cadre in consultation with the State Government or the State Governments concerned and may make such alterations therein as it deems fit : Provided that nothing in this sub rule shall be deemed to affect the power of the Central Government to alter the strength and composition of any cadre at any other time; 226 Provided further that the State Government concerned may add for a period not exceeding one year and with the approval of the Central Government for a further period not exceeding two years, to a State or Joint Cadre one or more posts carrying duties or responsibilities of a like nature to cadre posts.
" Rule 6 then provided for deputation of cadre officers.
It reads as follows: "6.
Deputation of cadre officers. (1) A cadre.
officer may, with the concurrence of the State Government or the State Governments concerned and the Central Government, be deputed for service under the Central Government, or another State Government or under a company, association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by the Government.
(2) A cadre officer may also be deputed for service under (i) a Municipal Corporation or a Local Body, by the State Government on whose cadre he is borne, or by the Central Government with the concurrence of the State Government on whose cadre he is borne, as the case may be and (ii) an international Organisation, an autonomous body not controlled by the Government, or a private body, by the Central Government in consultation with the State Government on whose cadre he is borne: Provided that no cadre officer shall be deputed to any Organisation or body of the type referred to in item (ii) of this sub rule except with his consent.
" It may be pointed out here that 'permanent post ' is defined by the Fundamental Rules as a post carrying a definite rate of pay and sanctioned without limit of time and a 'temporary pose is defined as a post carrying definite rate of pay sanctioned for a limited time and a 'tenure post ' means a permanent post which an individual Government servant may not hold for more than a limited period.
All cadre posts were to be filled by cadre officers (rule 8), but temporary appointments of non cadre officers to cadre posts were possible under certain circumstances (rule 9).
Under the Indian Administrative Service (Fixation of Cadre Strength) Regulations 1955 Assam was to have a total of 117 cadre posts.
Of these, 55 were under the Government of Assam 227 and 22 senior posts were to be under the Central Government.
19 were promotion posts and 58 were to be filled by direct recruitment.
There were certain reserved posts for leave reserves, deputation reserves, training reserves and finally there were 'junior posts.
By the agreement which formed an annexure to the Indian Civil Administrative (Cadre) Rules 1950, Assam was to have 20 senior posts under the Provincial Government and 6 senior posts under the Central Government with some provision for direct recruitment posts, junior posts and reserves.
These posts denoted combined Service between the Central Government and the Assam Government.
The arrangement allowed an officer to go from one post to another whether under the Centre or the State but not a lower post unless the exigency of the case so demanded.
The posts in the Government of India were held in the ordinary course and were not deputation posts.
They were not as a part of the deputation reserves.
Under article 312, these services must be considered common to the Union and the State : tinder section 4 of the All India Services Act 1951 all rules in force immediately before the commencement of the Act and applicable to an All India Service were continued, thus the Indian Civil Administrative (Cadre) Rules 1950 continued to remain in force.
The position that emerges is that the cadres for the Indian Administratively are to be found in the States only.
There is no cadre in the Government of India.
A few of these persons are, however,intended to serve at the Centre.
When they do so they enjoy better emoluments and status.
They rank higher in the service and even in the Warrant of Precedence of the President.
In the States they cannot get the same salary in any post as Secretaries are entitled to in the Centre.
The appointments to the Centre are not in any sense a deputation.
They mean promotion to a higher post.
The only safeguard is that many of the posts at the Centre are tenure posts.
Those of Secretaries and equivalent posts are for five years and for lower posts the duration of tenure is four years.
Now Das held one of the tenure posts.
His tenure ordinarily was five years in the post.
He got his secretaryship on July 30, 1964, and was expected to continue in that post for five years, that is, till 29th July, 1969.
The short question in this case is whether his reversion to the Assam State before the expiry of the period of his tenure to a post carrying a smaller salary amounts to reduction in rank and involves a stigma upon him.
Reversion to a lower post does not per se amount to a stigma.
But we have here evidence that the reversion is accompanied by a stigma.
In the first letter issued to him on June 20, 1969 by Mr. Dharma Vira (Cabinet Secretary) it was said 228 Government was considering whether the persons at top level administrative posts were capable of meeting the new challenges or must make room for younger men.
The letter goes on to say that he may choose one of three alternatives : accept a lower post at the Centre, go back to a post carrying lower salary in Assam or take leave preparatory to retirement.
The offer of a lower post in Delhi is a clear pointer to the fact of his demotion.
It clearly tells him that his reversion is not due to any exigency of service but because he is found wanting.
The three alternatives speak volumes.
This was not a case of reverting him to Assam at the end of a deputation or tenure.
He can be retained in the Central Services provided he accepts a lower post, and the final alternative that he may retire clearly shows that the Government is bent upon removing him from his present post.
In the next letter this fact is recognised because on September 7, 1966 he is offered only two alternatives.
The alternative of a lower post is advisedly dropped because it discloses too clearly a stigma.
If any doubt remained it is cleared by the affidavit which is now filed.
Paragraphs 7 and 10 of the affidavit read as follows: "7.
With reference to the allegations made in paragraphs 13 to 23 of the said application, I make no admission in respect thereof except what appears from relevant records.
I further say that the performance of the petitioner did not come to the standard expected of a Secretary to the Government.
of India." "10.
The allegations made in paragraph 26 of the said application are correct.
I further say that the said representation was rejected by the Prime Minister in view of the standard of performance of the petitioner.
" Now it has been ruled again and again in this Court that re duction in rank accompanied by a stigma must follow the procedure of article 311(2) of the Constitution.
It is manifest that if this was a reduction in rank, it was accompanied by a stigma.
We are satisfied that there was a stigma attaching to the reversion and that it was not a pure accident of service.
It remains to see whether there was a reduction in rank.
There is no definition of reduction in rank in the Constitution.
But we get some assistance from rule 3 of the All India Services (Discipline and Appeal) Rules, which provides: "3 Penalties.
The following penalties , may, for good and sufficient reasons, and as hereinafter provided, be imposed on a member of the Service, namely 229 (iii) reduction in rank including reduction to a lower post or time scale, or to a lower stage in a time scale.
We have shown above that he was holding a tenure post.
Nothing turns upon the words of the notification 'Until further orders ' because all appointments to tenure posts have the game kind of order.
By an amendment of F.R. 9(30) in 1967, a form was prescribed and that form was used in his case.
These notifications also do not indicate that this was a deputation which could be terminated at any time.
The notifications involving deputation always clearly so state the fact.
Many notifications were brought to our notice during the argument which bear out this fact and none to the contrary was shown.
Das thus held a tenure post which was to, last till July 29, 1969.
A few months alone remained and he was not so desperately required in Assam that he could not continue here for the full duration.
The fact that it was found necessary to break into his tenure period close to its end must be read in conjunction with the three alternatives and they clearly demonstrate that the intention was to reduce him in rank by sheer pressure of denying him a secretaryship.
No Secretary, we were told, has so far been sent back in this manner and this emphasises the element of penalty.
His retention in Government of India on a lower post thus was a reduction in rank.
Finally we have to consider whether his reversion to Assam means a reduction in rank.
It has been noticed above that no State Service (the highest being Chief Secretary 's) carries the emoluments which Das was drawing as a Secretary for years.
His reversion would have meant a big drop in his emoluments.
Das was prepared to go to Assam provided he got a salary of Rs. 4,000 per month but it was stated before us that that was not possible.
Das was prepared to serve the Centre in any capacity which brought him the same salary.
This too was said to be not possible.
This case was adjourned several times to enable Government to consider the proposal but ultimately it was turned down.
All that was said was that he could only be kept in a lower post.
If this is not reduction in rank we do not see what else it is.
To give him a Hobson 's choice of choosing between reversion to a post carrying a lower salary or staying here on a lower salaried post, is to indirectly reduce him in rank.
Therefore, we are satisfied that Das was being reduced in rank with a stigma upon his work without following the procedure laid down in article 311(2).
We say nothing about a genuine case of accident of service in which a person drafted from a State has to go back for any reason not connected with his work or conduct.
Cases must obviously arise when a person taken from 230 the State may have to go back for reason unconnected with his work or conduct.
Those, cases are different and we are not expressing any opinion about them.
But this case is clearly one of reduction in rank with a distinct stigma upon the man.
This requires action in accordance with article 311(2) of the Constitution and since none was taken, the order of reversion cannot be sustained.
We quash it and order the retention of Das in a post comparable to the post of a Secretary in emoluments till such time as his present tenure lasts or there is an inquiry against him as contemplated by the Constitution.
Before we leave this case we are constrained to say that the attitude in respect of this case was not very happy.
Das offered to take leave preparatory to retirement on the 29th July, 1969 if he was retained in Delhi on this or other post.
This coincided with his present tenure.
But vast as the Delhi Secretariat is, no job was found for him.
This confirms us in our view ' of the matter that he was being sent away not because of exigency of service but definitely because he was not required for reasons connected with his work and conduct.
The appeal is thus allowed with costs here and in the High Court.
R.K.P.S. Appeal allowed.
| IN-Abs | The appellant joined the Indian Civil Service in 1933 and was thereafter allotted to the State of Assam.
On July 29, 1964 he was appointed as Secretary to the Government of India "until 'further orders".
On June, 20, 1966 he received a letter from the Cabinet Secretary advising him that in relation to the question of building up a higher level of administrative efficiency it had been decided by the Government that the appellant should revert to his parent State, or proceed on leave preparatory to retirement, or he should agree to accept some post lower than that of Secretary to the Central Government.
After the appellant had made representations to the Cabinet Secretary and the Prime Minister, he received another letter from the Cabinet Secretary in September, 1966.
affirming the Government 's decision that the appellant 's services would be placed at the disposal of his parent State of Assam or he could proceed on leave preparatory to retirement.
The appellant challenged these orders by a writ petition under article 226 of the Constitution on the ground that the orders were violative of article 311(2).
The High Court dismissed the petition and a Letters Patent appeal was also rejected.
It was contended on behalf of the appellant that the reversion of the appellant to the Assam Service amounted to a reduction in his rank on the ground that he held a higher post in the Government of India and there was no post equal to it under the Assam Government; the post of the Chief Secretary in the Assam Government was equal to the Post of a Joint Secretary in the Government of India and his reversion would therefore indirectly mean a reduction in his rank and also in his emoluments because the highest post in Assam did not carry a salary equal to that of a Secretary in the Government of India.
He also contended that the letters from the Cabinet Secretary spoke of his unsatisfactory work and cast a stigma on him; his reversion must, therefore, be treated as a penalty and as the procedure laid down under article 311(2) was not followed, the orders of the Government of India could not be sustained.
On the other hand it was contended on behalf of the Government that the appellant was on deputation and the deputation could be terminated at any time; that his orders of appointment clearly showed that the appointment was "until further orders" and he had no right to continue in the Government of India if his services were not required; his reversion to his parent State did not amount either to any reduction in rank or a penalty and the orders were therefore quite legal.
HELD : allowing the appeal, It was clear on the facts that the appellant was being reduced in rank with a stigma upon his work without following the procedure laid down in article 311(2) of the Constitution.
[229 G H] 221 As a Secretary to the Central Government the appellant held a tenure post, which was normally for a period of five years and he could expect to continue in that post until 29th July, 1969.
Nothing turned upon the words of the notification "until further orders" because all appointments to tenure posts had the same kind of order.
He was not therefore on a deputation which could be terminated at any time.
The fact that it was found necessary to break into the appellants 's tenure period close, to its end must be read in conjunction with the three alternatives offered to him and these clearly demonstrated that the intention was to reduce him in rank by sheer pressure of denying him a Secretaryship.
[229 B D] The letter addressed to the appellant in June, 1966, containing the ,Offer of a lower post in Delhi was a clear pointer to the fact of his (]emotion.
It clearly told him that his reversion was not due to any exigency of service but because he was found wanting.
This was not a case of reverting the appellant to Assam at the end of a deputation or tenure and the final alternative that he could retire clearly showed that the Government was bent upon removing him from his present post.
As there was no post in the Assam State Service carrying the same emoluments as those of a Secretary to the Central Government, on the facts of the present case the appellant 's reversion to Assam meant a reduction in rank within the meaning of article 311(2).
[228 A B; 229 F]
|
Appeals Nos. 2093 and 2094 of 1968.
Appeals from the judgment and order dated August 5, 1968 of the Andhra Pradesh High Court in Writ Petitions Nos. 2339 and 2742 of 1968.
C. B. Agarwala, K. Srinivasa Murthy, B. P. Singh and Naunit Lal, for the appellants (in both the appeals).
A. section R. Chari, M. K. Ramamurthi, section Pappu, Madan Mohan, 207 A J.
Ramamurthi, Vineet Kumar, P. section Khera and Bindra Thakur, for respondent No. 2 (in both the appeals) The Judgment of the Court was delivered by Bhargava, J. An industrial dispute arose between 25 Co operative Central Banks in the State of Andhra Pradesh and their workmen represented by the Andhra Pradesh Bank Em ployees Federation, Hyderabad, which was referred by the Government of Andhra Pradesh to the Industrial Tribunal, Hyderabad, under section 10(1) (d) of the No. 14 of 1947.
The subject matter of the dispute was divided into three issues.
The first issue comprised a number of service conditions, viz., (1) Salary, Scales and Adjustments, (2) Dearness Allowance, (3) Special Allowances, (4) other Allowances, (5) Uniforms and Washing Allowances for subordinate staff, (6) Conveyance Charges, (7) Provident Fund and Gratuity, (8) Leave Rules, (9) Joining Time on Transfer, (1) Rules relating to departmental enquiry against employees for misconduct, (11) Probationary Period and Confirmation, (12) Working Hours and Overtime Allowance, (13) Age of Retirement,, (14) Security, (15) Common Good Fund, (16) Service Conditions and (17) Promotions.
The second and the third issues both related to the question whether the transfers of some employees of two of the Banks, The Vijayawada Co operative Central Bank, Ltd., Vijayawada, and The Vizianagaram Co operative Central Bank Ltd., Vizianagaram, were justified and, if not, to what reliefs were the employees entitled.
Before the Industrial Tribunal, one of the grounds raised on behalf of the Banks was that the reference of the disputes to the Tribunal was invalid, because such disputes were required to be referred for decision to the Registrar of the Co operative Societies under section 61 of the Andhra Pradesh Co operative Societies Act No. 7 of 1964 (hereinafter referred to as 'the Act '), and the effect of the provisions of the Act was to exclude the jurisdiction of the Industrial Tribunals to deal with the same disputes under the .
Various other pleas were also taken by the Banks in resisting the claims of the workmen, but, in these appeals, we are not concerned with them, because the Tribunal dealt with the point, mentioned by us above, as a preliminary issue and rejected the contention of the Banks.
Twenty four of the Banks thereupon challenged the preliminary decision of the Tribunal on this question, treating it as a preliminary award, by filing two Writ Petitions Nos. 2339 and 2742 of 1968 under article 226 of the Constitution in the High Court of Andhra Pradesh.
The High Court also rejected the plea of the Banks.
These two appeals have been brought up before us by certificate against the orders of the High Court dismissing the two writ petitions.
In Civil Appeal No. 2093/1968, the appellants are 10 Banks who 208 were petitioners before the High Court in Writ petition No. 2339 of 1968, while 2 of the petitioner Banks in that writ petition have been impleaded as respondents.
In Civil Appeal No. 2094 of 1968, the appellants are also 10 Banks who had joined in filing the other Writ Petition No. 2742/1968 in the High Court, while one of the petitioner Banks in that writ petition has been impleaded as respondent, and another has not joined the appeal as a party.
In these appeals, therefore, we are only concerned with one single question as to whether the jurisdiction of the Industrial Tribunal to adjudicate on the industrial dispute referred to it under section 10(1) (d) of the was barred by the provisions of section 61 of the Act.
The Tribunal, and the High Court, in rejecting the plea taken on behalf of the Banks, expressed the view that the disputes actually referred to the Tribunal were not capable of being decided by the Registrar of the Co operative Societies under section 61 of the Act and, consequently, the reference to the Industrial Tribunal under the was competent.
Learned counsel appearing on behalf of the Banks took us through the provisions of the Act to indicate that, besides being a local and special Act, it is a self contained Act enacted for the purpose of successful working of Co operative Societies, including Co operative Banks, and there are provisions in the Act which clearly exclude the applicability of other laws if they happen to be in conflict with the provisions of the Act.
It is no doubt true that the Act is an enactment passed by State Legislature which received the assent of the President, so that, if any provision of a Central Act, including the , is repugnant to any provision of the Act, the provision of the Act will prevail and not the provision of the Central .
The general proposition urged that the jurisdiction of the Industrial Tribunal under the will be barred if the disputes in question can be competently decided by the Registrar under section 61 of the Act is, therefore, correct and has to be accepted.
The question, however, that has to be examined is whether the industrial dispute referred to the Tribunal in the present cases was such as was required to be referred to the Registrar and to be decided by him) under section 61 of the Act.
In order to properly appreciate the submissions which have been made on behalf of the Banks by their counsel, it is necessary to set out the provisions of sections 16, 61, 62 and 133.
of the Act which are as follows : "16.
Amendment of bye laws of a society : (I) No amendment of any bye law of a society shall be valid unless such amendment has been registered under this Act.
Where such an amendment is not expressed to come into operation on a particular day, then, it 209 shall come into force on the day on which it is registered.
(2) Every proposal for such amendment shall be forwarded to the Registrar who shall, if he is satisfied that the proposed amendment fulfils the conditions specified in subsection (1) of section 7, register the amendment within a period of sixty days from the date of receipt of such proposals : Provided that the Government may, for sufficient cause which shall be recorded in writing, extend the said period for a further period of sixty days.
(3) The Registrar shall forward to the society a copy of the registered amendment together with a certificate signed and sealed by him, and such certificate shall be conclusive evidence that the amendment has been duly registered.
(4) Where the Registrar is not so satisfied, he shall communicate by registered post the order of refusal together with the reasons therefore, to the society within the period specified in sub section (2).
(5) If in the opinion of the Registrar, an amendment of the bye laws of a society is necessary or desirable in the interest of such society or of the co operative movement, he may, in the manner prescribed, call upon the society, to make any amendment within such time as he may specify.
If the society fails to make such an amendment within the time so specified the Registrar may, after giving the society an opportunity of making its representation, register such amendment and forward to the society by registered post a copy of the amendment together with a certificate signed by him; such a certificate shall be conclusive evidence that the amendment has been duly registered; and such an amendment shall have the same effect as an amendment of any bye law made by the society.
Disputes which may be referred to the Registrar (1) Notwithstanding anything in any law for the ' time being in force, if any dispute touching the constitution, management or the business of a society, other than a dispute regarding disciplinary action taken by the society or its committee against a paid employee of the society, arises (a) among members, past members and persons claiming through members, past members And deceased members; or 210 (b) between a member, past member or Person claiming through a member, past member or deceased member and the society, its committee or any officer, agent or employee of the society; or (c) between the society or its committee and any past committee, any officer, agent or employee, or any past officer, past agent or past employee or the nominee, heir or legal representative of any deceased officer, deceased agent, or deceased employee of the society; or (d) between the society and any other society; such dispute shall be referred to the Registrar for decision.
Explanation : For the purposes of this sub section a dispute shall include (i) a claim by a society for any debt or other amount due to it from a member, past member or the nominee, heir or legal representative of a deceased member, whether such debt or other amount be admitted or not; (ii) a claim by a surety against the principal debtor where the society has recovered from the surety any amount in respect of any debt or other amount due to it from the principal debtor as a result of the default of the principal debtor whether such debt or other amount due be admitted or not; (iii) a claim by a society against a member, past member or the nominee, heir or legal representative of a deceased member for the delivery of possession to the society of land or other immovable property resumed by it for breach of the conditions of assignment or allotment of such land or other immovable property.
(2) If any question arises whether a dispute referred to the Registrar under this section is a dispute touching the constitution, management or the business of a society, such question shall be decided by the Registrar.
(3) (a) Every dispute relating to, or in connection with, any election to a committee of a society referred to in clause (a) of sub section (3) of section 31, shall be referred for decision to a 211 Subordinate Judge or where there is no Sub ordinate Judge, to the District Judge having jurisdiction over the place where the main office of the society is situated, whose decision thereon shall be final.
(b) Every dispute relating to or in connection with any election to a committee of such class of societies as may, by notification in the Andhra Pradesh Gazette, be specified by the Government in this behalf and referred to in clause (b) of sub section (3) of section 31, shall be referred for decision to a District Munsiff having jurisdiction over the place where the main office of the society is situated, and his decision thereon shall be final.
(4) Every dispute relating to, or in connection with, any election to a committee shall be referred under sub section (1) of sub section (3) only after the date of declaration of the result of such election.
Action to be taken by the Registrar on such reference (1) The Registrar may, on receipt of the reference of a dispute under section 61 (a) elect to decide the dispute himself; or (b) transfer it for disposal to any person who has been invested by the Government with powers in that behalf; or (c) refer it for disposal to an arbitrator.
(2) Where the reference relates to any dispute involving immovable property, the Registrar or such person or arbitrator, may order that any person be joined as a party who has acquired any interest in such property subsequent to the acquisition of interest therein by a party to the reference and any decision that may be passed on the reference by the Registrar, or the person or the arbitrator aforesaid, shall be binding on the party so joined as if he were an original party to the reference.
(3) The Registrar may, by order for reasons to be recorded therein, withdraw any reference transferred under clause (b) of sub section (I ) or referred under clause (c) of that sub section and may elect to decide the dispute himself or transfer it to any other person under clause (b) of sub section (I ) or refer it to any other arbitrator under clause (c) of that subsection.
212 (4) The Registrar, such person or arbitrator shall decide the dispute in accordance with the provisions of this Act and the rules and bye laws and such decision shall, subject to the provisions of section 76, be final.
Pending final decision on the dispute, the Registrar, such person or arbitrator, as the case may be, may make such interlocutory orders as he may deem necessary in the,, interests of justice.
Act to override other laws : The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law.
" Reliance was placed on the non obstante clause "Notwith standing anything in any law for the time being in force" occurring in section 61 of the Act which has the effect that a dispute covered by this section must necessarily be referred to the Registrar for decision, so that it cannot be referred to any other authority under any other law.
Further strength is sought in support of this proposition from the provisions of section 133 of the Act which clearly lays down that the provisions of the Act have overriding effect if there be any provision in any other law inconsistent with the provisions of the Act.
Then, it was argued that the language of section 61 of the Act is wide enough to cover the disputes referred to the Tribunal in these cases, because the disputes are between co operative societies and their employees and they touch the business of the co operative societies.
In support of this submission, learned counsel referred us to a number of decisions of various High Courts in which the scope of the provisions contained in section 61 of the Act or of similar provisions in other local enactments was considered.
Most of these decisions were concerned with laying down the meaning of the expression "touching the business of the society" so as to include within its scope disputes of different nature between the co operative socie ties and their employees.
The cases which have been brought to our notice are : (1) a decision of a learned single Judge of the Bombay High Court in G.I.P. Railway Employees Co operative Bank Ltd. vs Bhikhaji Merwanji Karanjia Employee(1), in which a similar provision contained in section 54 of the Bombay Co operative Societies Act No. 7 of 1925 was interpreted; (2) a decision in Sagar Motor Transport Karamachari Union, Sagar vs Amar Kamgar Passenger Transport Company Co opera tive Society, Sagar and Another(2), where the Madhya Pradesh 'High Court interpreted section 55(2) of the Madhya Pradesh (1) A.I.R. 1943 Bom.
(2) (1969) 18 Indian Factories and Labour Reports, 27.
213 Co operative Societies Act, 1960 which required a dispute regarding terms of employment, working conditions and disciplinary action taken by a society, arising between a society and its, employees, to be decided by the Registrar or any Officer appointed by him; (3) a decision of a Full Bench of the Madras High Court in M. section Madhva Rao and Others vs D. V. K. Surya Rao, Member of the Pithapuram Co operative Bank, Pithapuram and Others(1) in which section 51 of the Madras Co operative Societies Act No. 6 of 1932, which was very similar to section 61 of the Act, was interpreted; and (4) a decision of a Full Bench of the Bombay High Court in Farkhundali Nannhay vs Potdar (V.B.) (2), in which also section 54 of the Bombay Co operative Societies Act No. 7 of 1925 came up for interpretation.
Learned counsel for the appellants also brought to our notice a decision of a single Judge of the Calcutta High Court in Cooperative Milk Societies Union, Ltd. vs State of West Bengal and others(3), where a dispute as to wages, wage scales and dearness allowance was held not to be a dispute within the meaning of that word as defined in the Bengal Co operative Societies Act, 1940, and sought to distinguish it on the ground that the decision in that case turned on the meaning specially given in that Act to the word "dispute".
It appears to us that it is not necessary to examine in detail the reasons given by the High Courts in the above cited cases for the interpretation placed by them on provisions similar to section 61 of the Act in view of a very recent decision of this Court in The Deccan Merchants Co operative Bank Ltd. vs Messrs Dalichand Jugraj & Others(4).
In that case, this Court had to interpret section 91 of the Maharashtra Co operative Societies Act, 1960 (Maharashtra Act 32 of 1961), the relevant provision of which is reproduced below "91 (1) Notwithstanding anything contained in any other law for the time being in force, any dispute .touching the constitution, elections of the office bearers, conduct of general meetings, management or business of a society shall be referred by any of the parties to the dispute, or by a federal society to which the society is affiliated, or by a creditor of the society, to the Registrar, if both the parties thereto are, one or other of the following : (1) A.I.R. 1954 Mad. 103.
(3) (2) [1962] I L.L.J. 51.
(4) [1969] 1 S.C.R. 887.
, 214 (a) a society, its committee, any past committee, any past or present officer, any past or present agent, any past Or present servant or nominee, heir or legal representative of any deceased officer, deceased agent or deceased servant of the society, or the Liquidator of the society; One of the questions which the Court formulated as requiring an answer was : what is the meaning of the expression "touching the business of the society" '? In order to decide this question, the Court analysed the provisions of section 9 1 ( 1 ) and held : "Five kinds of disputes are mentioned in sub section (1); first, disputes touching the constitution of a society; secondly, disputes touching election of the office bearers of a society, thirdly, disputes touching, the con duct of general meetings of a society; fourthly, disputes touching the management of a society; and fifthly, disputes touching the business of a society.
It is clear that the word 'business ' in this context does not mean affairs of a society because election of office bearers, conduct of general meetings and management of a society would be treated as affairs of a society.
In this sub section the word 'business ' has been used in a narrower sense and it means the actual trading or commercial or other similar business activity of the society which the society is authorised to enter into under the Act and the Rules and its bye laws.
" In that case, this Court was concerned with the question whether a dispute touching the assets of a society was a dispute touching the business of the society, and it was in that context that the interpretation mentioned above was given by this Court.
In considering the full scope of section 91 (I) of the Maharashtra Act 32 of 1961, the Court further proceeded to hold : "While we agree that the nature of business which a society does can be ascertained from the objects of the society, it is difficult to subscribe to the proposition that whatever the society does or is necessarily required to do for the purpose of carrying out its objects can be said to be part of its business.
We, however, agree that the word 'touching ' is very wide and would include any matter which relates to or concerns the business of a society, but we are doubtful whether the word 'affects ' should also be used in defining the scope of the word 'touching" '.
215 This comment was made when taking.
notice of the decision of the Full Bench of the Bombay High Court in Farkhundli vs Potdar(1).
The Court also held : "One other limitation on the word 'dispute ' may also be placed and that is that the word 'dispute ' covers only those disputes which are capable of being resolved by the Registrar or his nominee. " Considering the similarity between section 61 of the Act and section 91 (1 of the Maharashtra Act 32 of 1961, we are of the opinion that the interpretation already placed by this Court on the provisions of section 91 (I) of the Maharashtra Act 32 of 1961 is fully applicable to the provisions of section 61 of the Act with which we are concerned.
Consequently, in deciding these appeals, we must proceed on the basis that section 61 of the Act requires reference of a dispute to the Registrar only if the dispute is capable of being resolved by the, Registrar or his nominee, and, further, the dispute between the co operative society and the employee touches the business of the society in the sense explained by this Court in that case.
Applying these tests, we have no doubt at all that the dispute covered by the first issue referred to the Industrial Tribunal in the present cases could not possibly be referred for decision to the Registrar under section 61 of the Act.
The dispute related to alteration of a number of conditions of service of the workmen which relief could only be granted by an Industrial Tribunal dealing with an industrial dispute.
The Registrar, it is clear from the provisions of the Act, could not possibly have granted the reliefs claimed under this issue because of the limitations placed on his powers in the Act itself, It is true that section 61 by itself does not contain any clear indication that the Registrar cannot entertain a dispute relating to alteration of conditions of service of the employees if a registered society; but the meaning given to the expression "touching the business of the society", in our opinion, makes it very doubtful whether a dispute in respect of alteration of conditions of service can be held to be covered by this expression.
Since the word "business" is equated with the actual trading or commercial or other similar business activity of the society, and since it has been held that it would be difficult to subscribe to the proportion that whatever the society does or is necessarily required to do for the purpose of carrying out its objects, such as laying down the conditions of service of its employees, can be said to be a part of its business, it would appear that a dispute relating to conditions of Service of the workmen employed by the society cannot be held to be a dispute touching the business of the society.
Further, the position is clarified by the provisions of sub section
(4) of section 62 of the Act which limit the power to be (1) [1962] I.L.L.J. 51.
216 exercised by the Registrar, when dealing with a dispute referred to him under section 61, by a mandate that he shall decide the dispute in accordance with the provisions of the Act and the Rules and bye laws.
On the face of it, the, provisions of the Act, the rules and the bye laws could not possibly permit the Registrar to change conditions of service of the workmen employed by the society.
For the purpose of bringing facts to our notice in the present appeals, the Rules framed by the Andhra Pradesh Government under the Act, and the bye laws of one of the appellant Banks have been placed on the Paper books of the appeals be fore us.
It appears from them that the conditions of service of the employees of the Bank have all been laid down by framing special bye laws.
Most of the conditions of service, which the workmen want to be altered to their benefit, have thus been laid down by the bye laws, so that any alteration in those conditions, of service will necessarily require a change in the bye laws.
Such a change could not possibly be directed by the Registrar when, under section 62(4) of the Act, he is specifically required to decide the dispute referred to him in.
accordance with the provisions of the bye laws.
It may also be noticed that a dispute referred to the Registrar under section 61 of the Act can even be transferred for disposal to a person who may have been invested by the Government with powers in that behalf, or may be referred for disposal to an arbitrator by the Registrar.
Such person or arbitrator, when deciding the dispute, will also be governed by the mandate in section 62 (4) of the Act, so that he will also be bound to reject the claim of the workmen which is nothing else than a request for alteration of conditions of service contained in the bye laws.
It is thus clear that, in respect of the dispute relating to alteration of various conditions of service, the Registrar or other person dealing with it under section 62 of the Act is not competent to grant the relief claimed by the workmen at all.
On the principle laid down by this Court in the case of the Deccan Merchants Cooperative Bank Ltd.(1), therefore, it must be held that this dispute is not a dispute covered by the provisions of section 61 of the Act.
Such a dispute is not contemplated to be dealt with under section 62 of the Act and must, therefore, be held to be outside the scope of section 61.
In this connection, we may take notice of the view expressed by a learned single Judge of the Madras High, Court in South Arcot Co operative Motor Transport Society, Ltd. (for ex servicemen) vs Syed Batcha and others(2) where dealing with an industrial claim, the learned Judge held : "Therefore, in regard to an industrial claim, like the retrenchment compensation, the remedy for the (1) [1969] 1 S.C.R. 887.
(2) [1960] II L.L.S. 693. 217 worker would be only to enforce it by the machinery created by the , namely, by sections 10 and 33C(2).
The Madras Co operative Societies Act being itself a special statute, the authority, acting under it, would have no jurisdiction beyond what the enactment itself conferred on him.
lie could not, therefore, have jurisdiction to decide a dispute under the .
" That decision also related to section 51 of the Madras Co operative Societies Act, 1932, which was similar in terms to section 61 of the Act.
Learned counsel appearing on behalf of the appellant Banks, however, urged a new point to challenge the jurisdiction of 'the Industrial Tribunal to deal with the dispute relating to conditions of service to the effect that the conditions of service having been made the subject matter of bye laws, an Industrial Tribunal will not be competent to alter them, because even an Industrial Tribunal has no jurisdiction to make orders contrary to law.
For this purpose, he referred us to a number of decisions of this Court in Dalmia Cement (Bharat), Ltd., New Delhi vs Their Workmen and Another(1); The Management of Marina Hotel vs The Workmen (2) ; Cinema Theatres vs Their Workmen(3); and The Hindustan Times Ltd., New Delhi vs Their Workmen & Vice Versa(4).
In all these cases, it was held that an Industrial Tribunal acted illegally in prescribing leave in excess of the number of days laid down by the Delhi Shops and Establishments Act, 1954.
In section 22 of that Act there was a specific prohibition that leave for sickness or casual leave with full wages shall not exceed 12 days; and it was held that a direction made by the Tribunal granting to the workmen more than 12 days ' sickness or casual leave was illegal.
The principle of the decisions in those cases does not, however, appear to us to be applicable to the cases before us, because, in the present cases, there is no prohibition contained in the Act that the conditions of service prescribed are not to be altered.
The argument on behalf of the Bank, however, was that the bye laws, which contained the conditions of service, are themselves law, so that any direction made by an Industrial Tribunal altering a condition of service con tained in a bye law would be an order contrary to law and, hence, illegal.
We are unable to accept the submission that the bye laws of a co operative society framed in pursuance of the provisions of (1) [1961] II L.L.J. 130 (3) [1264] II L.L.J. 128.
Ll 2Sup.
CI/69 1 5 (2) ; (4) [1964] T. S.C.R. 234.
218 the Act can be held to be law or to have the force of law.
It has no doubt been held that, if a statute gives power to a Government or other authority to make rules, the rules so framed have the force of statute and are to be deemed to be incorporated as a part of the statute.
That principle, however, does not apply to bye laws of the nature that a co operative society is empowered by the Act to make.
The bye laws that are contemplated by the Act can be merely those which govern the internal management, business or administration of a society.
They may be binding between the persons affected by them, but they do not have the force of a statute.
In respect of bye laws laying down conditions of service of the employees of a society, the bye laws would be binding between the society and the employees just in, the same manner as conditions of service laid down by contract between the parties.
In fact, after such bye laws laying down the conditions of service are made and any person enters the employment of a society, those conditions of service will have to be treated as conditions accepted by the employee when entering the service and will thus bind him like conditions of service specifically forming part of the contract of service.
The bye laws that can be framed by a society under the Act are similar in nature to the Articles of Association of a Company incorporated under the Companies Act and such Articles of Association have never been held to have the force of law.
In a number of cases, conditions of service for industries are laid down by Standing Orders certified under the , and it has been held that, though such Standing Orders are binding between the employers and the employees of the industry governed by those Standing Orders, they do not have such force of law as to be binding on industrial Tribunals adjudicating an industrial dispute.
The jurisdiction which is granted to Industrial Tribunals by the is not the jurisdiction of merely administering the existing laws and enforcing existing contracts.
Industrial Tribunals have the right even to vary contracts of service between the employer and the employees which jurisdiction can never be exercised by a civil court or a Registrar acting under the Co operative Societies Act, so that the circumstance that, in granting relief on issue No. 1, the Tribunal will have to vary the special bye laws framed by the Cooperative Bank does not lead to the inference that the Tribunal would be incompetent to grant the reliefs sought in this reference.
In fact, the reliefs could only be granted by the Industrial Tribunal and could not fall within the scope of the powers of the Registrar dealing with a dispute under section 61 of the Act.
We may also, in this connection, take notice of the submission made by learned counsel that the Registrar could have granted relief, under section 16 (5) of the Act if he thought that it was advis 219 able to grant that relief to the workmen.
in our opinion, this submission must be rejected for two reasons.
The first reason is that action taken by the Registrar under section 16(5) of the Act will not be a decision on a dispute referred to him under section 61 of the Act.
When dealing with the dispute under section 61 of the Act, the Registrar is bound to decide the dispute in accordance with the existing bye laws, so that, if the dispute relates to alteration of conditions of service laid down in the bye laws, he will be incompetent to grant the relief claimed.
It is also to be noticed that a dispute referred to a Registrar under section 61 of the Act may be transferred for disposal to a person who has been invested by the Government with powers in that behalf or may be referred for disposal to an arbitrator.
On the face of it, such person or arbitrator cannot possibly exercise the powers of the Registrar under, section 16(5) of the Act.
The second reason is that, under section 16(5) of the Act, the power given to the Registrar to propose amendments in the bye laws and to enforce them if the proposal is not accepted by a society is to be exercised only when the Registrar is of the opinion that it is necessary or desirable to do so in the interests of such society or of the co operative movement.
Amendments in bye laws under section 16(5) of the Act are not contemplated in the interests of the workmen or for the purpose of resolving industrial disputes.
The provisions of section 16(5) of the Act thus appear to us to be irrelevant when considering the scope of the jurisdiction of the Registrar under section 61 of the Act.
Consequently, the decision of the High Court holding that the Tribunal had jurisdiction to deal with the industrial dispute referred to it must be upheld.
We may also take notice of an argument advanced at the last stage by learned counsel appearing on behalf of the Banks that, in any case, matters covered by issues Nos. 2 and 3 referred to the Tribunal could have been competently decided by the Registrar, and the reference in respect of those two issues at least should be held to be incompetent.
We do not think that at this stage there is any need for us to decide this question, because such a point was not raised at all in the petitions filed under article 226 of the Constitution before the High Court.
In those petitions, the competence of the reference to the Industrial Tribunal as a whole was challenged on the ground that it was barred because of the jurisdiction of the Registrar to deal with the dispute under section 61 of the Act.
Consequently, we need not deal with the question whether a particular issue forming part of the reference has been,.competently referred or not.
The appeals fail and are dismissed with costs.
One hearing fee.
Appeals dismissed.
| IN-Abs | Disputes between some Cooperative Central Banks of Andhra Pradesh and their employees, relating to : (i) service conditions such as salary scales, dearness and other allowances, conveyance charges, working hours and promotion, age of retirement, provident fund and gratuity, leave rules, departmental enquiries, probation and confirmation; and (ii) the question whether transfers of some employees were justified, were referred to the Industrial Tribunal under section 10(1)(d) of the .
On the question whether the Industrial Tribunal had no jurisdiction to decide the disputes, because : (1) the disputes could be referred to the Registrar of Cooperative Societies under section 61 of the Andhra Pradesh Cooperative Societies Act, 1964; (2) the Registrar, in dealing with the disputes referred to, him under section 61 of the Andhra Act, could grant relief by amending the bye laws under.s. 16(5); and (3) If the Industrial Tribunal gave relief to the employees it would be altering the bye laws thus making orders contrary to law.
HELD: (1) (a) The Andhra Act is an enactment passed by the State Legislature and received the assent of the President.
Therefore, if any provision of the (a Central Act) is repugnant to any provision of the Andhra Act, the latter would prevail.
But section 61 of the Andhra Act requires reference of a dispute to the Registrar only if the dispute is capable of being resolved by him or his nominee, and if the dispute between the cooperative society and its employee touches the business of the society.
The word 'business ' means actual trading or commercial or other similar business activity of the society.
Therefore, whatever a society does or is required to do for the purpose of carrying out its objects, such as laying down the conditions of service of its employees, cannot be said to be a part of its 'business ', and hence, a dispute relating to conditions of service of the workmen employed by the society cannot be held to be a dispute touching the business of the society.
[2O9 E F; 215 B D, G H] (b) The Registrar could not have granted the reliefs claimed because of the limitations placed on his powers by the Andhra Act.
Most of the Conditions of service which the workmen want to be altered to their benefit have been laid down by the bye laws, so that, any alteration in those con ditions of service will require a change in the bye laws.
But such a change could not possibly be directed by the Registrar, because, under section 62(4) of the Andhra Act, the Registrar or other person or arbitrator to whom the dispute may be referred under section 61 is specifically required to decide the dispute refer red to him in accordance with the provisions of the bye laws.
[2l6 B D, F] 206 The Deccan Merchants Cooperative Bank Ltd. vs m/s.
Dulichand Jugraj fain, [1969] 1 S.C.R. 887, followed.
South Arcot Cooperative Motor Transport Society Ltd. vs Syed Batcha, , approved.
(2)The provisions of section 16(5) of the Andhra Act are irrelevant in,, considering the scope of the jurisdiction of the Registrar under section 61 of the Act, because : (a) any action taken by the Registrar under section 16(5) will not be a decision in a dispute referred to him under section 61; (b) though the Registrar has the power to amend bye laws under section 16(5) any other person or arbitrator, to whom the disputes may be referred, has no such power; and (c) even the Registrar 's powers under section 16(5) to amend bye laws is to be exercised only if he is of the opinion that it would be in the interests of the society and are not contemplated to be exercised in the interests of the workmen or for the purpose of resolving industrial disputes.
[219 B E] (3) The principle that rules framed under a statute have the force of statute does not apply to bye laws of a cooperative society.
They merely govern the internal management, business or administration of a society and may be binding between the persons affected by them but are neither law nor do they have the force of law.
They are just like conditions of service laid down by contract between the parties, or like bye laws under the Articles of Association of a company under the Companies Act, or Standing Orders certified under the Industrial Employment (Standing Orders)Act, 1946.
Therefore, the circumstance that in granting relief, the Tribunal may have to vary the special bye laws framed by the Cooperative Banks does not lead to the inference that the Tribunal would be making orders contrary to law and therefore is incompetent to grant the reliefs claimed.
The jurisdiction granted to the Tribunal by the is not the jurisdiction of merely administering existing laws and enforcing existing contracts.
The Tribunal has the jurisdiction even to vary contracts of service between employer and employees.
Further, in the Andhra Act there is no prohibition that the conditions of service prescribed are not to be altered.
Therefore, the reliefs could only be granted by the Industrial Tribunal and could not fall within the scope of the Registrar 's powers under the Cooperative Societies Act.
[217 H; 218 D H] Dalmia Cement (Bharat) Ltd. vs Their Workmen, [1961] II L.L.J. 130 (S.C.)The Management of Marina Hotel vs The Workmen, ; , Cinema Theatres vs The Workmen, and The Hindustan Times Ltd. vs Their Workmen, [1964] 1 S.C.R. 234, distinguished.
Since the competence of the reference to the Tribunal as a whole was challenged on the ground that it was barred by section 61 of the Andhra Act, the question whether a particular issue forming part of the reference was competently referred or not did not arise.
[219 F, G H]
|
Appeal No. 757 of 1963.
Appeal by special leave from the judgment and decree dated November 29, 1960 of the Andhra Pradesh High Court in Appeal No. 261 of 1956.
M. C Chagla, R. Thiagarajan and T. Satyanarayana, for the appellant.
Suryanarayanamurthy and K. Jayaram for respondents Nos. 1, 4 to 6, 9 to 11, 13, 17, 25, 26, 29, 39, 42, 45, 47, 55 to 57, 59, 63 and 64.
The Judgment of the, Court was delivered by Bachawat, J.
This dispute relates to the succession to the immoveable properties of late Bhaskara Rao, a Brahmin karnam, 302 who died on November 29, 1903 without issue, but leaving a widow.
The suit was instituted on April 15, 1953 by the appellant claiming to be the nearest heir of Bhaskara Rao for recovery of possession of the properties.
The case of the contesting defendants is that Bhaskara Rao executed a will on November 29, 1903 authorising his widow Seshamma to adopt a son, that pursuant to such authority she 'adopted Rajeswarara, in or about May 1904 that Rajeswararao died in 1950 and that the first defendant is his adopted son.
The courts below concurrently found in favour of the defendants on all the points.
They held that (1) Bhaskara Rao duly executed the will dated November 29, 1903; (2) his widow Seshamma in fact adopted Rajeswararao in or about May 1904 and the requisite ceremonies of adoption were performed.
These findings of fact are no longer challenged.
The trial court held that 'at the time of adoption Seshamma was about 14, years of age.
The High Court held that having regard to the lapse of time there was a strong presumption that Seshamma had attained the usual age of discretion at the time of the adoption, that the presumption had not been rebutted and that the adoption was valid.
Mr. M. C. Chagla argued that in May 1904 Seshamma had not attained the age of discretion and was not competent to make the adoption.
He relied on the following passage in Mulla 's Principles of Hindu Law, 13th ed.
article 465, page 491 : "A minor widow may adopt in the same circum stances as an adult widow, provided she has attained the age of discretion and is able to form an independent judgment in selecting the boy to be adopted.
According to Bengal writers the age of discretion is reached at the beginning of the sixteenth year; according to Benaras writers, at the end of the sixteenth year.
The former view was taken in a recent Madras case.
" Now there is no clear evidence on the question of Seshamma 's age in May 1904.
The plaint said that she was then 10 years of age.
One of the written statements said that she was about 15 years old.
Exhibit A 2 an extract from the register of deaths suggests that she was then aged about 14 years.
In exhibit A 7 dated March 25, dated May 2, dated April 25, , dated November 1, 191 dated November 15, 1911, Exs.
A 11 and A 12 dated November 17, 1911,she was described as a minor.
But exhibit B 138 dated August 9, 1910 described her 'as a major.
The evidence of DW 2 suggests that she was about 15 years old at the time of adoption.
The evidence of DW 3 fixes her age at about 17 years in or about 1903.
Evidence was adduced to show that she married in 1898 303 when she was 11 or 12 years old.
The appellant made no attempt to produce the certified copy of the register of births which would have shown her exact age.
The adoption was made in May 1904.
It was challenged in 1953 after a lapse of about 50 years.
The, long delay in filing the suit is not satisfactorily explained.
A declaratory suit challenging the adoption could have been filed soon after the adoption.
Rajeswara Rao died in 1950, Seshamma died on October 2, 1952.
During his life time Rajeswararao was re cognised by every member of the family as the adopted son of Bhaskara Rao.
He was registered as kamam and acted as such, till his death.
Under exhibit B 12 dated November 19, 1937 the plaintiff 's mother Kamappa purchased a property from Rajeswara Rao wherein he was described as the adopted son of Bhaskara Rao.
Having regard to the long lapse of time and the recognition of Rajeswararao as the adopted son of Bhaskara Rao, the strongest presumption arises in favour of the validity of the adoption.
The law on this point is correctly stated in Mulla 's Hindu Law, 13th ed., article 512, page 519: "But when there is a lapse of 55 years between the adoption and its being questioned, every allowance for the absence of evidence to prove such fact must be favourably entertained.
It stands to reason that after a very long term of years, and a variety of transactions of open life and conduct upon the footing that the adoption was a valid act, the burden must rest heavily upon him who challenges its validity," See also Venkataseetarama Chandra Row vs Kanchu Marthi Raju(1).
The presumption in this case is very heavy considering that all the parties to the adoption and all those who could have given evidence in favour of its validity have passed away.
The appellant has not rebutted this presumption and has not shown that Sashamma did not attain the age of discretion in May 1904 and was not competent to make the adoption.
The courts below rightly found in favour of the factum and validity of the adoption.
There is no merit in this appeal.
The appeal is dismissed with costs.
V.P.S. Appeal dismissed,.
(1) A.I.R 1925 P.C. 201, 202.
| IN-Abs | One B, a Brahmin Karnam, executed a will in 1903 authorising his 'widow to adopt.
After his death, the widow adopted R in 1904.
The first respondent was R 's adopted son.
R died in 1950, and his adoptive mother died in 1952.
During his lifetime, R was recognised by every member of the family as the adopted son of B, and he was registered as the Karnam and he acted as the Karnam till his death.
In 1953, the appellant, claiming to be the nearest heir of B filed a suit for recovery of possession of B 's property contending that R 's adoption was invalid, because, the adoptive mother had not attained the age of discretion at the .time of the adoption and was therefore not competent to make the adop tion.
The suit was dismissed.
In appeal to this Court, HELD : Where there is a lapse of several years between the adoption and its being questioned, the burden rests heavily upon him who challenges it, and every allowance for the absence of evidence to prove it must be favourably entertained.
[303 D E] In the present case, having regard to the long lapse of time, the recognition of R as, the adopted son of B, and the fact that those who could have given evidence in favour of the adoption had passed away, a strong presumption in favour of the validity of adoption should be drawn.
The appellant made no attempt to produce the certified copy of the register of births which would have shown, the exact age of the mother and thus failed to rebut the presumption.
[303 C D; F] Venkataseetarama Chandra Row vs Kanchu Marthi Raju A.I.R. applied.
|
Appeal No. 1019 of 1966.
Appeal by special leave from the judgment and decree dated July 10, 1963 of the Allahabad High Court in First Appeal No. 16 of 1953.
C. B. Agarwala and K. P. Gupta, for the appellant.
B. C. Misra, O. P. Gupta, Ram Parkash Agarwal and Sultan Singh, for respondent No. 1.
The Judgment of the Court was delivered by Shah, J.
Firm Lalmandas Chhadammalal hereinafter called 'the plaintiffs ' commenced an action against "Mohan Singh Ratan Lal, through its partners Mohan Singh and Ratan Lal", in.
the 297 Court of the Senior Civil Judge, Nainital, for a decree for Rs. 12,883/ and interest thereon for value of goods supplied.
Ratan Lal denied liability for payment of the amount claimed.
Mohan Singh by a separate written statement admitted that goods were supplied by the plaintiffs to the firm, but submitted that he was liable only for one fifth of the amount claimed.
The Trial Judge decreed the claim of the plaintiffs in its entirety against "Mohan Singh and Ratan Lal and the firm known as Mohan Singh Ratan Lal".
Against the decree, Ratan Lal alone appealed to the High Court of Allahabad.
Mohan Singh was impleaded as the second respondent in the appeal.
The notice of appeal sent to Mohan Singh was returned unserved and an application made by counsel for the appellant to serve Mohan Singh "in the ordinary course as well as by registered post" was not disposed of by the Court.
On July 9, 1963 Ratan Lal applied that it was "detected that there had been no service of the notice of appeal upon Mohan Singh and it was essential for the ends of justice that notice of appeal may be served upon Mohan Singh".
The Court by order dated July 10, 1963, rejected the application ' and proceeded to hear the appeal.
The Court was of the view that since there was a joint decree against Ratan Lal and Mohan Singh in a suit founded on a joint cause of action and the decree against Mohan Singh had become final, Ratan Lal could not claim to be heard on his appeal.
The High Court observed: "If we hear him (Ratan Lal) the result may be that on the success of his appeal there will be two conflicting decisions between the same parties in the same suit based on the same cause of action.
Furthermore, the appellant has not taken steps to serve the second respondent (Mohan Singh) and the appeal must be dismissed for want of prosecution.
On both these grounds we dismiss this appeal.
" Against the order passed by the High Court, this appeal, has been, preferred with special leave.
In our view the judgment of the High Court cannot be sus tained,.
The appeal could not be dismissed on the ground that Mohan Singh was not served with the notice of appeal, nor could the appeal be dismissed on the ground that there was a possibility of two conflicting decrees.
Order 41 r. 4 of the Code of Civil Procedure provides : "Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all 298 the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reserve or vary the decree in favour of all the plaintiffs or defendants, as the case may The object of the rule is to enable one of the parties to a suit to obtain relief in appeal when the decree appealed from proceeds on a ground common to him and others.
The Court in such an appeal may reserve or vary the decree in favour of all the parties who are in the same interest as the appellant.
There was some conflict of judicial opinion in the High Courts ' on the question whether power under 0.
41 r. 4 of the Code of Civil Procedure may be exercised where all the parties against whom a decree passed on a ground which is common to them are not impleaded in the appeal.
The preponderance of authority in the High Courts was that even in the absence of a person against whom a decree has been passed on a ground common with the appellant, the appeal was maintainable, and 'appropriate relief may be granted It is, however, unnecessary to examine those decisions for, in our judgment, the question has been considered by this Court in Karam Singh Sobti and Anr.
vs Shri Pratap Chand and Anr.(1).
In that case a landlord of certain premises filed an action in ejectment against the tenant and the sub tenant in respect of premises on the ground that the tenant had sub let the premises without the land lord 's consent.
The Trial Judge decreed the suit holding that the landlord had not acquiesced in the sub letting.
_ The sub tenant alone appealed to the Additional Senior Subordinate Judge who set aside the order of the Trial Court.
It was urged before this Court that the appeal by the sub tenant to the Subordinate Judge was incompetent, because the tenant against whom a decree in ejectment was passed had not appealed.
On certain question which are not material for the purpose of this judgment, there was difference of opinion between Sarkar, J., on the one hand, and section K. Das, Acting C.J., and Hidayatullah, J., on the other, but the Court unanimously held in that case that the appeal was maintainable before the Subordinate Judge, even though the tenant had not appealed against the order of the Court of First Instance Sarkar, J., observed at p. 663 : "The suit had been filed both against the tenant and the sub tenant, being respectively the Association and the appellant.
One decree had been passed by the trial Judge against both.
The appellant had his own right to appeal from that decree.
That right could not be affected by the Association 's decision not to file an appeal.
There was one decree and, therefore, the appel (1) 299 lant was entitled to have it set aside even though thereby the Association would also be freed from the decree.
He could say that that decree was wrong and should be set aside as it was passed on the erroneous finding that the respondent had not acquiesced, in the sub letting by the Association to him.
He could challenge that decree on any ground available.
The lower appellate Court was, therefore, quite competent in the appeal by the appellant from the joint decree in ejectment against him and the Association, to give him whatever relief he was found entitled to, even though the Association had filed no appeal.
" With that view section K. Das, Acting C.J., and Hidayatullah, J., agreed : see p. 652.
It is true that in that case the tenant was made a party to the appeal before the Subordinate Judge.
But the judgment of the Court proceeded upon a larger ground that the sub tenant had a right to appeal against the decree passed against him and that right was not affected by the tenant 's decision not to file an appeal.
Counsel for the plaintiffs contended that the appeal filed by Ratan Lal if it be heard may possibly result in an order which may prejudicially affect Mohan Singh, and if Mohan Singh has no opportunity of being heard no decree may be passed against him, for to do so would be contrary to the fundamental rules of natural justice.
But in the appeal filed by Ratan Lal there is no possibility of a decree being passed which may impose a more onerous liability upon Mohan Singh.
The Trial Court has passed a decree against Ratan Lal and Mohan Singh jointly and severally.
Mohan Singh is liable for the full amount of the claim of the plaintiffs.
If the appeal filed by Ratan Lal succeeds, the Court may reduce the liability of Mohan Singh, but there may conceivably be no order by the Court operating to the prejudice of Mohan Singh in the appeal.
It was also urged by counsel for the plaintiffs that Ratan Lal had been negligent in the High Court in prosecuting the appeal, and it would be putting a premium upon his negligence to allow him now to prosecute the appeal.
It is not possible on the record, ,as it stands, to say whether failure to serve notice of appeal upon Mohan Singh was wholly attributable to the negligence of Ratan Lal.
But even if it be assumed that he was negligent, on that ground he cannot be deprived of his legal right to prosecute the appeal and to claim relief under 0.
41 r. 4 of the Code of Civil Procedure, if the circumstances of the case warrant it.
The decree of the Trial Court proceeded on a ground common to Mohan Singh and Ratan Lal.
In the appeal filed by Ratan Lal he was denying 300 liability for the claim of the plaintiffs in its entirety.
This was essentially a case in which the Court 's jurisdiction under 0.
41 r. 4 Code of Civil Procedure could be exercised.
The appeal is allowed and the decree passed by the High Court is set aside.
The proceedings are being remanded.
The High Court will admit the appeal in its original number and hear and dispose it of according to law.
There will be no order as to costs in this Court of this appeal.
In view of the fact that there has been some negligence on the part of Ratan Lal to prosecute the appeal in the High Court, we direct that he will pay the costs of the appeal in the High Court in any event.
R.K.P.S. Appeal allowed.
| IN-Abs | The respondent obtained a joint decree against the appellant and his partner M. Against the decree, the appellant alone appealed to the High Court.
M was impleaded as the 'second respondent in the appeal.
The notice of appeal sent to M was returned unserved.
The High Court dismissed the appeal on the view that since there was a joint decree against the appellant and M in a suit founded on a joint cause of action and the decree against M had become final, the appellant could not claim to be heard on his appeal; if he was heard there could be two conflicting decisions between the same parties and in the same suit based on the same cause of action.
The High Court also held that the appellant had not taken steps to serve M and the appeal must be dismissed for want of prosecution.
On appeal to this Court HELD : The judgment of the High Court could not be sustained.
The appeal could not be dismissed on the ground that M was not served with the notice of appeal, nor, in view of the provisions of Order 41 Rule 4, could the High Court dismiss the appeal on the ground that there was a possibility of two conflicting decrees.
[297 G H] The object of the rule is to enable one of the parties to a suit to obtain relief in appeal when the decree appealed from proceeds on a ground common to him and others.
The Court in such an appeal may reverse or vary the decree in favour of all the parties who are in the same interest as the appellant.
[298B] Karam Singh Sobti and Anr.
vs Shri Pratap Chand and Anr. , explained and followed.
|
Appeals Nos. 21 to 23, 46, 47, 125 and 274 of 1969.
Appeals from the judgment and orders dated April 10, 1968 of the Madras High Court in Writ Petitions Nos.
387 of 1968 etc.
section V. Gupte, G. Ramanujam and A. V. Rangam, for the appel lants (in C.As.
21 to 23 of 1969) and the respondent (in C.As.
Nos. 46, 47, 125 and 274 of 1969).
V. K. T. Chari, T. N. C. Rangarajan and D. N. Gupta, for the appellants (in C.As.
Nos. 46 and 47 of 1969) and the respondents (in C.As.
Nos. 21 and 23 of 1969).
V. K. T. Chari, A. R. Ramanathan, T. N. C. Rangarajan and R. Gopalakrishnan, for the appellant (in C.A. No. 125 of 1969).
K. C. Rajappa, section Balakrishnan and section Laxminarasu, for the appellant (in C.A. No. 274 of 1969).
K. C. Rajappa, section Balakrishnan, section Laxminarasu and N. M. Ghatate, for the respondents (in C.A. No. 22 of 1969).
The Judgment of the court was delivered by Ramaswami, J.
In these appeals which have been heard together a common question of law arises for determination, namely, whether the Madras Urban Land Tax Act, 1966 (12 of 1966) is constitutionally valid.
In 1963 the Madras Legislature enacted the Madras Urban Land Tax Act, 1963 which came into force in the city of Madras on the 1st of July, 1963.
In the Statement of Object and Reasons of the 1963 Act it was stated that the Taxation Enquiry 271 Commission and the Planning Commission were suggesting the need for imposing a suitable levy on lands put to non agricultural use in urban areas.
The State Government, after examining the report of the Special Officer, decided to levy a tax on urban land on the basis of market value of the land at the rate of 0.4% on such market value.
Section 3 of the Act of 1963 (which win be referred to as the old Act) provided that there shall be levied and collected for every fasli year commencing from the date of the commencement of the Act, a tax on urban land from every owner of urban land at the rate of 0.4% of the average market value of the urban land in a sub zone as determined under subsection (2) of section 6.
Section 7 provided for the determination of the highest and lowest market value in a zone.
For determining the average market value, the Assistant Commissioner shall have regard to any matters specified in clauses (a) to (e) of sub section 2 of section 6; namely: (a) the locality in which the urban land is situated; (b) the predominant use to which the urban land is put, that is to say, industrial, commercial or residential; (c) accessibility or proximity to market, dispensary, hospital, railway station, educational institution, or Government offices; (d) availability of civil amenities like water supply, drainage and lighting; and (e) such other matters as may be prescribed.
The constitutional validity of Act 34 of 1963 was challenged and in Buckingham & Carnatic Co., Ltd. vs State of Madras(1) a Division Bench of the Madras High Court held that the im pugned Act fell under Entry 49, List 11 of Schedule VII to the Constitution and was within the legislative competence of the State Legislature.
But the, Act was struck down on the ground that article 14 of the Constitution was violated, because the charging section of the Act levied the tax on urban land not on the market value of such urban land but on the average value of the lands in the locality known as a sub zone.
The new Act (Act 12 of 1966) was passed by the State Legislature after the decision of the Madras High Court.
In the new Act provisions relating to fixation of average market value in the sub zone were omitted.
Instead, section 5 of the new Act provides that there shall be levied and collected from every year commencing from the date of the commencement of the Act a tax on each urban land from the owner of such urban land at the rate of 0.4% of the market (1),(1966) II M.L.J. 172.
272 value of such urban land.
Section 2(10) defines "owner" as follows "Owner includes (i) any person (including a mortgagee in possession) for the time being receiving or entitled to receive, whether on his own account or as agent, trustee, guardian, manager or receiver for another person or for any religious or charitable purposes, the rent or profits of the urban land or of the building constructed on the urban land in respect of which the word is used; (ii) any person who is entitled to the kudiwaram in respect of any inam land; but does not include (a) a shrotriemdar; or (b) any person who is entitled to the melwaram in respect of any inam land but in respect of which land any other person is entitled to the kudiwaram.
Explanation.
For the purposes of clause (9) and clause (10) inam land includes lakhiraj tenures of land and shrotriam land.
Section 2(13) defines 'land ' to mean any land which is used or is capable of being used, as a building site and includes garden or grounds, if any, appurtenant to a building but does not include any land which is registered as wet in the revenue accounts of the Government and used for the cultivation of wet crops.
" Section 6 states "For the purposes of this Act, the market value of any urban land shall be estimated to be the price which in the opinion of the Assistant Commissioner, or the Tribunal, as the case may be, such urban land would have fetched or fetch, if sold in the open market on the date of the commencement of this Act".
Section 7 provides for the submission of returns by the owner of urban land and reads "Every owner of urban land liable to pay urban land tax under this Act shall, within a period of one month from the date of the publication of the Madras Urban Land Tax Ordinance, 1966 (Madras Ordinance 273 III of 1966) in the Fort St. George Gazette, furnish to the Assistant Commissioner having jurisdiction a return in respect of each urban land containing the following particulars, namely : (a) name of the owner of the urban land, (b) the extent of the urban land, (c) the name of the division or ward and the street, survey number and subdivision number of the land and other particulars of such urban land, (d) the amount which in the opinion of the owner is the market value of the urban land.
" Section 1 0 deals with the procedure for the determination of the market value by the Assistant Commissioner and states : (1) Where a return is furnished under section 7 the Assistant Commissioner shall examine the return and made such enquiry as he deems fit.
If the Assistant Commissioner is satisfied that the particulars mentioned therein are correct and complete he shall, by order in writing determine the market value of the urban land and the amount of urban land tax payable in respect of such urban land.
(2) (a) Where no examination of the return and after the enquiry the Assistant Commissioner is not satisfied that the particulars mentioned therein are correct and complete he shall serve a notice on the owner either to attend in person or at his office on a date to be specified in the notice or to produce or cause to be produced on that date any evidence on which the owner may rely in support of his return.
(b) The Assistant Commissioner after hearing such evidence as the owner may produce in pursuance of the notice under clause (a) and such other evidence as the Assistant Commissioner may require on any specified points shall, by order in writing, determine the market value of the urban land and the amount of urban land tax payable in respect of such urban land.
(c) Where the owner has failed to attend or produce evidence in pursuance of the notice under clause (a) the Assistant Commissioner shall, on the basis of the enquiry made under clause (a), by order in writing determin e the market value of the urban land and the amoun t of urban land tax payable in respect of such urban land.
" 274 Section 11 enacts : (1) Where the owner of urban land has failed to furnish the return under section 7 and the Assistant Commissioner has obtained the necessary information under section 9 he shall serve a notice on the owner in respect of each urban land specifying therein (a) the extent of the urban land, (b) the amount which, in the opinion of the Assistant Commissioner, is the correct market value of the urban land, and direct him either to attend in person at his office on a date to be specified in the notice or to produce or cause to be produced on that date any evidence on which the owner may rely.
(2) After hearing such evidence, as the owner may produce and such other evidence as the Assistant Com missioner may require on any specified points, the Assistant Commissioner shall, by order in writing, determine the market value of the urban land and the amount of urban land tax payable in respect of such urban land.
(3) Where the owner has failed to attend or to produce evidence in pursuance of the notice under subsection (1) the Assistant Commissioner shall, on the basis of the information obtained by him under section 9, by order in writing, determine the market value of the urban land and the amount of the urban land tax payable in respect of such urban land.
" Section 20 provides for an appeal to the Tribunal from the orders of the Assistant Commissioner : "(1) (a) Any assessee objecting to any order passed by the Assistant Commissioner under section 10 or 11 may appeal to the Tribunal within thirty days from the date of the receipt of the copy of the order.
(b) Any person denying his liability to be assessed under this Act may appeal to the Tribunal within thirty days from the date of the receipt of the notice 1 of demand relating to the assessment :.
Provided that no appeal shall lie under clause (a) or clause (b) of this sub section unless the urban land tax has been paid before the appeal is filed.
275 (2) The Commissioner may, if he objects to any order passed by the Assistant Commissioner under section 10 or 11, direct the Urban Land Tax Officer concerned to appeal to the Tribunal against such order, and such appeal may be filed within sixty days from the date of the receipt of the copy of the order by the Commissioner.
(3) The Tribunal may admit an appeal after the expiry of the period referred to in clause (a) or clause (b) of sub section (1) or in sub section (2), as the case may be, if it is satisfied that there was sufficient cause for not presenting it within that period.
(4) An appeal to the Tribunal under this section shall be in the prescribed form and shall be verified in the prescribed manner and shall be accompanied by such fee as may be prescribed.
(5) The Tribunal may after giving both parties to the appeal an opportunity of being heard, pass such orders thereon, as it thinks fit and shall communicate any such orders to the assessee and to the Commissioner in such manner as may be prescribed." Section 30 confers power of revision in the Board of Revenue: and is to the following effect : (1) The Board of Revenue may, either on its own motion or on application made by the assessee in this behalf, call for and examine the records of any proceeding under this Act (not being a proceeding in respect of which an appeal lies to the Tribunal under section 20) to satisfy, itself as to the regularity of such proceeding or the correctness, legality or propriety of any decision or order passed therein and if, in any case, it appears to the Board of Revenue that any such decision or order should be modified, annulled, reversed or remitted for reconsideration, it may pass orders accordingly : Provided that the Board of Revenue shall not pass any order under this subsection in any case, where the decision or order is sought to be revised by the Board of Revenue on its own motion, if such decision or order had been made more than three years previously : Provided further that the Board of Revenue shall not pass any order under this section prejudicial to any 276 party unless he has had a reasonable opportunity of making his representations.
" Section 33 states : "(1) The Tribunal, the Board of Revenue, the Commissioner, the Assistant Commissioner, or the Urban Land Tax Officer or any other officer empowered under this Act shall, for the purposes of this Act, have the same powers as are vested in a Court under the Code of Civil Procedure, 1908 (Central Act V of 1908), when trying a suit in respect of the following matters, namely : (a) enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavit; (d) issuing commissions for the examination of witnesses; and any proceeding before the Tribunal, the Board of Revenue, the Commissioner, the Assistant Commissioner the Urban Land Tax Officer or any other officer empowered under this Act shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purposes of section 196, of the Indian Penal Code (Central Act XLV of 1860).
(2) In any case in which an order of assessment is passed ex parte under this Act, the provisions of the Code of Civil Procedure, 1908 (Central Act V of 1908), shall apply in relation to such order as it applies in relation to a decree passed ex parte by a Court.
" The validity of the new Act was challenged in a group of writ petitions before the Madras High Court on various constitutional grounds.
By a common judgment dated the 10th April, 1968 a Full Bench of five Judges overruled all the contentions of the petitioners with regard to the legislative competence of the Madras Legislature to enact the new Act.
However, the Full Bench by a majority of 4 to 1 struck down section 6 of the new Act as being violative of articles 14, 19(1)(f) of the Constitution.
The State of Madras and other respondents to the writ petitions (hereinafter ,called the respondents for the sake of convenience) filed appeals 277 Nos.
21 to 23 of 1969 under a certificate granted by the High Court under articles 1,32 and 1 3 3 (I) (a), (b) and (c) of the Constitution.
The writ petitioners (hereinafter called the petitioners) have filed C.As Nos. 46, 47, 125 and 274 of 1969 against the same judgment on a certificate, granted by the High Court under article 132 of the Constitution.
The first question to be considered in these appeals is whether the Madras Legislature was competent to enact the legislation under Entry 49 of List 11 of Schedule VII of the Constitution which reads : "Taxes on lands and buildings".
It was argued on behalf of the petitioners that the impugned Act fell under Schedule VII, List 1, Entry 86, that is "Taxes on the capital value of the assets, exclusive of agricultural land, of individuals and companies; taxes on the capital of companies.
" The argument of Mr. V. K. T. Chari may be summarised as follows : The impugned Act was, both in form and substance, taxation of capital and was hence beyond the competence of the State Legislature.
To tax on the basis of capital or principal value of assets was permissible to Parliament under List 1, Entries 86 and 87 and to State under Entry 48 of List II.
Taxation of capital was the appropriate method provided for effecting the directive principle under article 39 of the Constitution, namely, to prevent concentration of wealth.
Article 366(9) contains a definition of 'estate duty ' with reference to the principal value.
Entry 86 of List I (Taxes on capital value of assets exclusive of agricultural land) and Entry 88 (Duties in respect of succession to such property) form a group of entries the scheme of which is to carry out the directive principle of article 39(c).
The Constitution indicated that capital value or principal value shall be the basis of taxation under these entries and, therefore, the method of taxation of capital or principal value was prohibited even to Parliament in respect of other taxes and to the States except in respect of Estate Duty on agricultural land.
Such in effect is the.
argument of Mr. V. K. T. Chari.
But in our opinion there is no warrant for the assumption that entries 86, 88 of List I and Entry 48 of List II form a special group embodying any particular 'scheme.
The directive principle embodied in article 39(c) applies both to Parliament and to the State Legislature and it is difficult to conceive how entries 86 to 88 of List I would exclude any power of the State Legislature to implement the same principle.
The legislative entries must be given a large and liberal interpretation, the reason being that the allocation of the subjects to the lists is not by way of scientific or logical definition but by way of a mere sixplex enumeratio of broad categories.
We see no reason, therefore, for holding that the entries 86 and 87 of List I preclude the State Legislature from taxing capital value of lands and buildings under 13SupCI69 4 278 Entry 49 of List II.
In our opinion there is no conflict between Entry 86 of List I and Entry 49 of List 11.
The basis of taxation under the two entries is quite distinct.
As regards Entry 86 of List I the basis of the taxation is the capital value of the asset.
It is not a tax directly on the capital value of assets of individuals and companies on the valuation date.
The tax is not imposed on the components of the assets of the assessee.
The tax under Entry 86 proceeds on the, principle of aggregation and is imposed on the totality of the value of all the assets.
It is imposed on the total assets which the assessee owns and in determining the net wealth not only the encumbrances specifically charged against any item of asset, but the general liability of the assessee to pay his debts and to discharge his lawful obligations have to be taken into account.
In certain exceptional cases, where a person owes no debts and is under no enforceable obligation to discharge any liability out of his assets it may be possible to break up the tax which is leviable on the total assets into components and attribute a component to lands and buildings owned by an assessee.
In such a case, the component out of the total fax attributable 'Lo lands and buildings may in the matter of computation bear similarity to a tax on lands and buildings levied on the capital or annual value under Entry 49, List II.
But in a normal case a tax on capital value of assets bears no definable relation to lands and buildings which may or may not form a component of the total assets of the assessee.
But Entry 49 of List II, contem plates a levy of tax on lands and buildings or both as units.
It is not concerned with the division cf interest or ownership in the units of lands or buildings which are brought to tax.
Tax on lands and buildings, is directly imposed on lands and buildings, and bears a definite relation to it.
Tax on the capital value of assets bears no definable relation to lands and buildings which may form a component of the total assets of the assessee.
By legislation in exercise of power under Entry 86, List I tax is contemplated to be levied on the value of the assets.
For the purpose of levying tax under Entry 49, List 11 the State Legislature may adopt for determining the incidence of tax the annual or the capital value of the lands and buildings.
But the adoption of the annual or capital value of lands and buildings for determining tax liability will not make the fields of legislation under the two entries overlapping.
The two taxes are entirely different in their basic concept and fall on different subject ' matters.
In Ralla Ram vs Province of East Punjab(1) the Federal Court held that the tax levied by section 3 of the Punjab Urban (1) 279 Immoveable Property Tax Act, 17 of 1940 on buildings and lands situated in a specified area at such rate not exceeding twenty per cent.
of the annual value of such buildings and lands, as the Provincial Government may by notification in the official Gazette direct in respect of each such rating area was not a tax on income, but was a tax on lands and buildings within the meaning of Item No. 42 of List 11 of the Seventh Schedule of the Government of India Act, 1935.
In that case it was contended that under the provisions of the Punjab Act the basis of the tax was the annual value of the buildings and since the same basis was used in the Income tax Act for determining the income from property and generally speaking the annual value is the fairest standard for measuring income and, in many cases, is indistinguishable from it, the tax levied by the impugned Act was in substance a tax on income.
The Court pointed out that the annual value is not necessarily actual income, but is only a standard by which income may be measured and merely because the Income tax Act had adopted the annual value as the standard for determining the income, it did not follow that, if the same standard is employed as a measure for any other tax, that latter tax becomes also a tax on income.
It was held by the Court that in substance the property tax levied by section 3, Punjab Urban Immoveable Property Tax Act, 1940 fell within item 42 of the Provincial List and was not a tax on income falling within item 54 of the Federal List although the basis of the tax was the annual value of the building.
The same view has been expressed by this Court in Sudhir Chandra Nawn vs Wealth Tax Officer(1) wherein it was held that the power to levy tax on lands and buildings under Entry 49 of List II did not trench upon the power conferred on Parliament by Entry 88 of List I and, therefore, the enactment of the Wealth Tax Act by Parliament was riot ultra vires.
The problem in this case is the problem of characterisation of the law or classification of the law.
In other words the question must be asked : what is the subject matter of the legislation in its "pith and substance" or in its true nature and character for the purpose of determining whether it is legislation with respect to Entry 47 of List 11 or Entry 86 of List 1.
In Gallahagher vs Lynn 2 ) the principle is stated as follows : "It is well established that you are to look at the true nature and character of the legislation the, pith and substance of the legislation.
If on the view of the statute as a whole, you find that the substance of the legislation (1) ; (2) [1937] C. 853 870 280 is within the express powers, then it is not invalidated if incidentally it affects matters which are outside the authorized field.
The legislation must not under the guise of dealing with one matter in fact encroach upon the forbidden field.
Nor are you to look only at the object of the legislator.
An Act may have a perfectly lawful object e.g. to promote the health of the inhabitants, but may seek to achieve that object by invalid methods, e.g., direct prohibition of any trade with a foreign country.
In other words, you may ' certainly consider the clauses of an Act to see whether they are passed 'in respect of ' the forbidden subject.
" In the case of Subrahmanyan Chettiar vs Muttuswami Goundan(1) Sir Maurice Gwyer, C.J. said : "It must inevitably happen from time to time that legislation, though purporting to deal with a subject in one list, touches also on a subject in another list, and the different provisions of the enactment may be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the Legislature enacting them may appear to have legislated in a forbidden sphere.
Hence the rule which has been evolved by the Judicial Committee whereby the impugned statute is examined to ascertain its 'pith and substance ', or its 'true nature and character ', for the purpose of determining whether it is legislation with respect to matters in this list or in that : Citizens Insurance Company of Canada vs Parsons(); Russell vs The Queen(3); Union Colliery Co. of British Columbia vs Bryden(4); Att.
Gen. for Canada vs Att.
Gen. for British Columbia(5); Board of Trustees of Lethbridge Irrigation District vs Independent Order of Foresters(6).
In my opinion this rule of interpretation is equally applicable to the Indian Constitution Act.
" For the reasons already expressed we hold that in pith and substance the new Act in imposing a tax on urban land at a percentage of the market value is entirely within the ambit of Entry 49 of List II and within the competence of the State Legislature and does not in any way trench upon the field of legislation of Entry 86 of List I. (1) [194O] F.C.R. 188 at 201.
(2) [1881] 7 A.C. 96.
(3) [1882] 7 5) 301 A.C. III.
(6) 281 It was then said that as Entry 49 of List 11 provides for taxes on lands and buildings, the impugned Act which imposes tax on lands alone cannot be held to fall under that entry.
It was submitted that when the Legislature taxed land deliberately the legislation fell under List 11 of Entry 45, i.e., "land revenue, including the assessment and collection of revenue, the maintenance of land records, survey for revenue purposes and records of rights and alienation of revenues ' ' and not under Entry 49 of that List.
The legislative history of Entry 49 of List 11 does not however lend any support to this argument.
Before the Government of India Act, 1935 lands and buildings were taxed separately and all that was done under the Government of India Act, 1935 and ' the Constitution was to combine the two entries relating to land and buildings into a single entry.
Section 45 A of the Government of India Act, 1919 provided for making rules under the Act for the devolution of authority in respect of provincial subjects to local Governments, and for the allocation of revenues or other moneys to those Governments. ' The Government of India by a notification dated December 16, 1920 made rules under that provision called the "Scheduled Tax Rules".
These Rules contained two schedules.
The first Schedule contained eight items of tax or, fee.
The Legislative Council of a Province may without obtaining the previous sanction of the Governor General make and take into consideration any law imposing for the purposes of the local Government any tax included in Schedule I. Schedule II contained eleven items of tax.
In making a law imposing or authorising any local authority to impose for the purposes of such local authority any tax in Schedule 11, the Legislative Council required to previous sanction of the Governor General.
In Schedule II, item No. 2 was tax on land or land values and item 3 was a tax on buildings.
In the Government of India Act, 1935 the two entries were combined and List 11, Entry 42 is "Taxes on lands and buildings and hats and Windows".
The legislative history of Entry 49, List 11 does not, therefore, lend any support to the argument that Entry 49 of List 11 relating to tax on land and buildings cannot be separated.
On the other hand we are of opinion that Entry 49 "Taxes on lands and buildings" should be construed as taxes on land and taxes on buildings and there is no reason for restricting the ampli tude of the language used in the Entry.
This view is also borne out by authorities.
In Raja Jagannath Baksh Singh vs The State of U.P.(1) the question at issue was whether the tax imposed by the U.P. Government on land holdings under the U.P. Large Land Holdings Tax Act, 1957 (U.P. Act 31 of 1957) 'was constitutionally valid.
It was held that the legislation fell under Entry (1) 282 49 of List 11 and the tax on land would include agricultural land also.
Similarly in H. R. section Murthy vs Collector of Chittoor & Anr.(1) it was held that the land cess imposed under sections 78 and 79 of the Madras District Boards Act (Mad.
Act No. XIV of 1920) and Mines and Minerals (Regulation and Development) Act, (Act 67 of 1957) was a tax on land falling under Entry 49 of the State List.
We are of opinion that the argument of Mr. V. K. T. Chari on this aspect of the case must be rejected.
We proceed to consider the argument that no machinery is provided for determining the market value and the provisions of the new Act, therefore, violate article 14 of the Constitution.
The argument was stressed by Mr. V. K. T. Chari that the guidance given under the 1963 Act has been dispensed with and the Assistant Commissioner is not bound to take into account, among other matters, the sale price of similar sites, the rent fetched for use and occupation of the land, the principles generally adopted in valuing land under the Land Acquisition Act and the compensation awarded in recent land acquisition proceedings.
We see no justification for this argument.
The procedure for determining the market value and assessment of urban land is described in Chapter III of the new Act.
Section 6 provides that the market value of the urban land "shall be estimated to be the price which in the opinion of the Assistant Commissioner, or the Tribunal, as the case may be, such urban land would have fetched or fetch, if sold in the open market on the date of the commencement of this Act.
" It was said on behalf of the petitioners that the opinion which the Assistant Commissioner has to form is purely subjective and may be arbitrary.
We do not think that this contention is correct.
Having regard to the language and context of section 6 of the new Act we consider that the opinion which the Assistant Commissioner has to form under that section is not subjective but should be reached objectively upon the relevant evidence after following the requisite formalities laid down in sections 7 to 11 of the new Act.
Instead of the Assistant Commissioner classifying the urban land and determining the market value in a zone, the present Act requires a return to be submitted by the owner mentioning the amount which, in the opinion of the owner, is the market value of the urban land.
On receipt of the return, if the Assistant Commissioner is satisfied that the particulars mentioned are correct and complete, he may determine the market value as given by the owner of the land.
If he is not satisfied with the return, he shall serve a notice to the owner asking him to attend his office with the relevant evidence in support of his return.
After bearing the owner and considering the evidence produced, the Assistant Commissioner may determine the (1) 28 3 market value.
In case the owner fails to attend or fails to produce the evidence, the Assistant Commissioner is empowered to assess the market value on the basis of an enquiry made by him.
Section 11 prescribes the procedure for determining the market value when the owner fails to furnish a return as required under section 7.
The section requires the Assistant Commissioner to serve a notice on the owner specifying amongst other things the amount, which in the opinion of 'the Assistant Commissioner, is the correct market value and directing the owner to attend in person at his office on a date specified in the notice or to produce any evidence on which the owner may rely.
After hearing such evidence as the owner may produce and considering such other evidence as may be required, the Assistant Commissioner may fix the market value.
The proceeding before the Assistant Commissioner is judicial in character and his opinion regarding the market value is reached objectively on all the materials produced before him.
Section 20 provides for an appeal by the assessee objecting to the determination of the market value made by the Assistant Commissioner to a Tribunal within thirty days from the date of the receipt of the copy of the order.
The Act requires that the Tribunal shall consist of one person only who shall be a judicial officer not below the rank of a Subordinate Judge.
By section 30, the Board of Revenue is empowered either on its own motion or on application made by the assessee in this behalf, to call for and examine the records of any proceedings under the Act (not being a proceeding in respect of which an appeal lies to the Tribunal under section 20) , to satisfy itself as to the regularity of such proceeding or the correctness, legality or propriety of any decision or order passed therein, and if it appears to the Board of Revenue that any such decision or order should be modified, annulled , reversed or remitted for reconsideration, it may pass orders accordingly.
Section 32 enables the urban land tax officer, or the Assistant Commissioner, or the Board of Revenue or the Tribunal to rectify any error apparent on the face of the record at any time within three years from the date of any order passed by him or it.
Section 33 confers power on the Assistant Commissioner to take evidence, to require discovery and production of documents and to receive evidence on affidavit etc.
Thus the Act envisages a detailed procedure regarding submission of returns, the making of an assessment after hearing objections and a right to appeal to higher authorities.
We are hence unable to accept the contention of the petitioners that the provisions of section 6 of the new Act are violative of article 14 of the Constitution.
It is necessary to state that the High Court decided the case in favour of the respondents mainly on the ground that investment 284 of the power to determine value of the urban land under section 6 of the Act constituted excessive delegation of authority and so violative of articles 19(1) and 14 of the Constitution.
(see the judgment of Veeraswami, J., who pronounced the main judgment in the High Court.
But Mr. V. K. T. Chari did not support this line of reasoning, in his arguments before this Court.
On the other hand learned counsel conceded that the power of determining the value of the urban land being judicial or quasi judicial in character the doctrine of excessive delegation of authority had no application.
We pass on to consider the next contention raised on behalf of the petitioners namely that the Act should be struck down as an unreasonable restriction on the right to acquire, hold and dispose of property and as such violative of article 1 9 (1) (f) of the Constitution.
It was argued that the test of reasonableness would be that the tax should not be so high as to make the holding of 'the property or the carrying on of the activity (business or profession) which is subject to taxation, uneconomic according to accepted rates of yield.
In this connection it was said that the new Act by imposing a tax on the capital value at a certain rate was not correlated to the income or rateable value and, therefore, violates the requirement of reasonableness.
We are unable to accept the proposition put forward by Mr. Chari.
It is not possible to put the test of reasonableness into the straight jacket of a narrow formula, The objects to be taxed,, the quantum of tax to be levied, the conditions subject to which it is levied and the social and economic policies which a tax is designed to subserve are all matters of political character and these matters have been entrusted to the Legislature and not to the Courts.
In applying the test of reasonableness it is also essential to notice that the power of taxation is generally regarded as an essential attribute of sovereignty and constitutional provisions relating to the power of taxation are regarded not as grant of power but, as limitation upon the power which would otherwise be practically without limit.
It was observed by this Court in Rai Ramakrishna vs State of Bihar(1) : "It is of course true that the power of taxing the people and their property is an essential attribute of the Government and Government may legitimately exercise the said power by reference to the objects to which it is applicable to the utmost extent to which Government thinks it expedient to do so.
The objects to be taxed so long as they happen to be within the legislative competence of the Legislature can be taxed by the legislature according to the exigencies of its needs, because (1) A.T.R. 1963 S.C. 1667 at 1673.
28 5 there can be no doubt that the State is entitled to raise revenue by taxation.
The quantum of tax levied by the taxing statute, the conditions subject to which it is levied, the manner in which it is sought to be recovered, are all matters within the competence of the Legislature, and in dealing with the contention raised by a citizen that the taxing statute contravenes article 19 Courts would naturally be circumspect and cautious.
Where for instance it appears that the taxing statute is plainly discriminatory, or provides no procedural machinery for assessment and levy of the tax, or that it is confiscatory, Courts, would be justified in striking down the impugned statute as unconstitutional.
In such cases, the character of the material provisions of the impugned statute is such that the Court would feel justified in taking the view that, in substance, the taxing statute is a cloak adopted by the Legislature for achieving its confiscatory purposes.
This is illustrated by the decision of this Court in the case of Kunnathat Thathunni Moopil Nair vs State of Kerala ; where a taxing statute was struck down because it suffered from several fatal infirmities.
On the other hand, we may refer to the case of Jagannath Baksh Singh vs State of Uttar Pradesh ; where a challenge to the taxing statute on the ground that its provisions were unreasonable was rejected and it was observed that unless the infirmities in the impugned statute were of such, a serious nature as to justify its description as a colourable exercise of legislative power, the Court would uphold a taxing statute." As a general rule it may be said that so long as a tax retains it&.
character as a tax and is not confiscatory or extortionate, the reasonableness of the tax cannot be questioned.
Mr. Chari submitted that the existing property tax under section 100 of the City Municipal Corporation Act and the tax on urban lands under the new Act both enacted under Entry 49 of the State List, one of them imposing a tax on the capital value of urban lands and the other on the annual value of lands and buildings exhaust an unreasonably high proportion of income.
I Or instance, it is pointed out that in W.P. No. 2835 of 1967 the annual income on property was Rs. 6,000 and the proposed market value for the lands alone comes to Rs. 10,40,000.
The urban land tax at 0.4% of the market value is Rs. 4,160 and the income tax at the rate applicable to the petitioner was Rs. 1.234.
The total tax burden in the aggregate under the three beads was Rs. 6,794, which 286 exceeds the rental income.
In W.P. No. 3686 of 1967 the municipal annual value was Rs. 4,095, the property tax was Rs. 1,098 and the urban land tax at 0.4% was Rs. 1,523.
The proportion of the two taxes together to yearly or annual municipal value worked out to Rs. 62.5%.
It was, therefore, said that the taxes put together would practically exhaust the total income and the charging section in the new Act was unreasonable.
The answer to the contention is that the charge is on the market value of the urban land and not on the annual letting value on which the municipal property tax is based.
The basis of the two taxes being .different it is not permissible to club together the two taxes and complain of the cumulative burden.
If the tax is on the market value of the urban land as it is in this case it does not admit of a complaint that it takes away an unreasonably high proportion of the income.
A tax on land values and a tax on letting value, though both are taxes under Entry 49 of List II cannot be clubbed together in order to test the reasonableness of one or the other for the purposes of article 19 (I).
But so far as the new Act is concerned we consider that the levy at 0.4% of the market value of the urban land is by no means confiscatory in effect.
It was also pointed out by Mr. V. K. T. Chari that in certain cases the market value of the urban land was arrived at by applying what is known as the contractor 's method not to the building which stands on the land whose value is, ascertained by that means but to some other building on a different land taken for comparison.
It was said that it was difficult enough for a to apply the contractor 's method of valuation to his own building which could be done by a competent architect after taking into account all measurements.
But it is absolutely an impossible task to check up or make objections to the contractor 's method applied to another man 's property which cannot be trespassed upon.
It was said that the contractor 's method was the last resort in valuation when a building has to be valued apart from the land and that it was a wrong application of the formula to use it to value the land without the building particularly when valuation of land can be made by applying the principles of the Land Acquisition Act.
But this argument has no bearing on the constitutional validity of the charging section or the machinery provisions of the Act.
It is, however, open 'to the writ petitioners to challenge the validity of the particular valuation in any particular case by way of an appeal under a statute or to move the High Court for grant of writ under article 226 of the Constitution.
The impugned Act provides for the retrospective operation of the Act.
Section 2 states that except sections 19, 47 and 48, other sections shall be deemed to, have come into force in the City of 287 Madras on the 1st day of July, 1963 and sections 19 and 47 shall be deemed to have come into force in the City of Madras on the 21st May, 1966.
It also provides that section 48 shall come into force on the date of the publication of the Act in the Fort St. George Gazette.
Section 6 enacts that the market values of the urban lands shall be estimated to be the price which in the opinion of the Assistant Commissioner or the Tribunal such urban land would have fetched or fetch if sold in the open market on the date of the commencement of the Act,, that is, from 1st July, 1967.
The urban land tax is, therefore payable from 1st July, 1963.
It is contended on behalf of the petitioners that the retrospective operation of the law from 1st July, 1963 would make it unreasonable.
We are unable to accept the argument of the petitioners as correct.
It is not right to.
say as a general proposition that the imposition of tax with retrospective effect per se renders the law unconstitutional.
In applying the test of reasonableness to a taxing statute it is of course a relevant consideration that the tax is being enforced with retrospective effect but that is not conclusive in itself.
Taking into account the legislative history of the present Act we are of opinion that there is no unreasonableness in respect of the retrospective operation of the new Act.
It should be noticed that the Madras Act of 1963 came into force on 1st July, 1963 and provided for the levy of urban land tax at the same rate as that provided under the new Act.
The enactment was struck down as invalid by the judgment of the Madras High Court which was pronounced on the 25th March, 1966.
The legislature by giving retrospective effect to Madras Act 12 of 1966 that the urban land must be taxed on the date on which the 1963 Act came into force the new Act cured the defect from which the earlier Act was suffering.
In Rai Ramkrishna 's case(1) the question at issue was whether the Bihar Taxation on Passengers and Goods (Carried by Public Service Motor Vehicles) Act, 1961 (17 of 1961) was violative of article 1,9(5) and (6) of the Constitution for the reason that it was made retrospective with effect from 1st April, 1950.
It appears that the Bihar Finance ,Act, 1950 levied a tax on passengers and goods carried by public service motor vehicles in Bihar.
In an appeal arising out of a suit filed by the passengers and owners of goods in a representative capacity, the Supreme Court pronounced on the 12th December, 1960 a judgment declaring Part III of the said Act unconstitutional.
Thereafter an Ordinance, namely, Bihar Ordinance No. 2 of 1961 was issued on the 1st of August, 1961 by the State of Bihar.
By this Ordinance, the material provisions of the earlier Act of 1950 which had been struck down by this Court were validated and brought into force retrospectively from the (1) ; 288 date when the earlier Act had purported to come into force.
Subsequently, the provisions of the said Ordinance were incorporated in the Act, namely, the Bihar Taxation on Passengers and Goods (Carried by Public Service Motor Vehicles) Act, 1961 which was duly passed by the Bihar Legislature and received the assent of the President on 23rd September, 1961.
As a result of the retrospective operation of this Act, its material provisions were deemed to have come into force on April 1, 1950, that is to say, the date on which the earlier Act of 1950 had come into, force '.
The appellants challenged the validity of this Act of 1961.
Having failed in their writ petition before the High Court, the appellants came to this Court and the argument was that the retrospective operation prescribed by section 1 (3) and by a part of section 23 (b) of the Act so completely altered the character of the tax proposed to be retrospectively recovered that it introduced a serious infirmity in the legislative competence of the Bihar Legislature itself.
The argument was rejected by this Court and it was held that having regard to the relevant facts of the case the restrictions imposed by the said retrospective operation was reasonable in the public interest under article 19(5) and (6) and also reasonable under article 304(b) of the Constitution.
In our opinion the ratio of this decision applies to the present case where the material facts are of a similar character.
In this context a reference may be made to a recent review of retroactive legislation in the United States of America : "It is necessary that the legislature should be able to cure inadvertent defects in statutes or their administration by making what has been aptly called 'small repairs '.
Moreover, the individual who claims that a vested right has arisen from the defect is seeking a windfall since had the legislature 's or administrator 's action had the effect it was intended to and could have had, no such right would have arisen.
Thus, the interest in the retroactive during 'of such a defect in the administration of government outweighs the individual 's interest in benefiting from the defect. .
The Court has been extremely reluctant to override the legislative judgment as to the necessity for retrospective taxation, not only because of the paramount governmental interest in obtaining adequate revenues, but also because taxes are not in the nature of a penalty or a contractual obligation but rather a means of apportioning the costs of government among those who benefit from it.
Indeed, as early as 1935 one commentator observed that "arbitrary retroactivity" may continue . to rear its head 289 in tax briefs, but for practical purposes, in this field, it is as dead as wager of law." (Charles B. Hochman in at p. 705).
In view of the legislative background of the present case we are of opinion that the imposition of the tax retrospectively from 1st July, 1963 cannot be said to be an unreasonable restriction.
We, therefore, reject the argument of the petitioners on this aspect of the case, For these reasons we hold that the Madras Urban Land Tax Act, 1966 (Act 12 of 1966) must be upheld as constitutionally valid.
We accordingly set aside the judgment of the Madras High Court dated the 10th April, 1968 and order that writ petitions filed by the petitioners should be dismissed.
In other words C.As 21 to 23 are allowed and C.As 46, 47, 125 and 274 are dismissed.
There will be no order with regard to costs of these appeals.
21 to 23 of '69 allowed.
R.K.P.S. C.As. 46, 47, 125 and 274 of '69 dismissed.
| IN-Abs | By section 3 of the Madras Urban Land Tax Act, 1963, a tax was levied on every owner of urban land at the rate of 0.4 % of the average market value of the urban land as determined under section 6(2) of the Act.
The vires of the Act was challenged by a writ petition and the impugned Act.
was struck down on the ground that it violated article 14 of the Constitution because the charging section levied the tax on urban land not on the market value of such land but on the average value of the land in a sub zone .
Thereafter the State Legislature passed the Madras Urban Land Tax Act 12 of 1966 which omitted the provisions relating to fixation of average market value in the sub zone, and instead provided in section 5 for the levy of a tax on urban land from the owner at the rate of 0.4% of the market value of 'such urban land.
The validity of the new Act was again challenged in a group of writ petitions before the High Court which held that the Madras Legislature was competent to enact the new Act but that it was violative of articles 14 and 19(1)(f) of the Constitution.
In appeals to this Court it was contended, inter alia, on behalf of the petitioners (1) that the impugned Act fell under Entry 86, List I and not under Entry 49 of List 2, so that the State Legislature was incompetent to pass the Act; furthermore as Entry 49, List 2 provides for taxes on land and buildings, the impugned Act which imposed tax on land alone could not be held to fall under the Entry; (ii) that the machinery was provided for determining the market value and the matter having been left to the arbitrary determination of the Assistant Commissioner, the provisions of the new Act were violative of article 14 of the Constitution (iii) that the Act was an unreasonable restriction on the right to acquire, hold and dispose of property and as 'such was violative of article 19 (1) (f) of the Constitution; furthermore together with the existing property tax under section 100 of the City Municipality Corporation Act the tax under the impugned Act exhausted an unreasonably high proportion of income and on this account also it was an unreasonable restriction; it was also contended that the giving of retrospective operation to the Act from July, 1963 made it unreasonable.
HELD: The Madras Urban Land Tax Act 12 of 1966 was constitutionally valid.
(i) In pith and substance the new Act in imposing a tax on urban land at a percentage of the market value is entirely within the ambit of 269 Entry 49 of List II and within the competence of the State Legislature, it does not in any way trench upon the field of legislation of Entry 86 of List 1.
[280 G H] There was no conflict between Entry 86 of List I and Entry 49 of List II.
The tax under Entry 86 proceeds on the principle of aggregation and is imposed on the totality of the net value of an assets.
Entry 49 of List II, contemplates a levy of tax on lands and buildings or both as units; it is not concerned with the division of interest or ownership in the units of land or buildings which are brought to tax.
[278 E F] The legislative entries must be given a large and liberal interpretation, the reason being that the allocation of the subjects to the Lists is not by way of scientific or logical definition but by way of a mere sixplex enumeratio of broad categories.
[277 G H] Ralla Ram vs Province of East Punjab, , Sudhir Chandra Nawn vs Wealth Tax Officer, A.I.R. 1969 S.C. 59; Gallahagher vs Lynn, at p. 870; and Subrahmanyan Chettiar vs Mittuswami Goundan, [1940] F.C.R. 188 at 201; referred to.
The legislative history of Entry 49, List II, does not lend any support to the argument that Entry 49 of List if relating to tax on land and, buildings cannot be separated.
On the other hand Entry 49 "Taxes on lands and buildings" should be construed as taxes on land and taxes on buildings and there is no reason for restricting the amplitude of the language used in the Entry.
[281 G] Raja Jagannath Baksh Singh vs The State of U.P., ; ; and H. R. section Murthy vs Collector of Chittoor and Anr., ; ; referred to.
(ii) The provisions of section 6 of the new Act were not violative of article 14 of the Constitution.
Having regard to the language and context of section 6 of the new Act, the opinion which the Assistant Commissioner has to form under that section is not subjective but should foe reached objectively upon the relevant evidence after following the requisite formalities laid down in sections 7 to 1 1 of the new Act.
The proceeding before the Assistant Com missioner is judicial in character and his opinion regarding the market value is reached objectively on all the materials produced before him.
[282 F] (iii) The new Act was also not violative of article 19(1) (f) of the Constitution.
It is not possible to put the test of reasonableness into the straight jacket of a narrow formula.
The, objects to be taxed, the quantum of tax to be levied; the conditions subject to which it is levied and the social and economic policies which a tax is designed to subserve are all matters of political character and these matters have been entrusted to the Legislature and not to the Courts.
In applying the test of reasonableness it is also essential to notice that the power of taxation is generally regarded as an essential attribute of sovereignty and constitutional provisions relating to the power of taxation are regarded not as grant of power but as limitation upon the power which would otherwise be practically without limit.
[284 E] Rai Ramakrishna vs State of Bihar, ; at 1673; referred to.
270 The charge under the City Municipality Corporation Act was a tax .,on the annual letting value whereas the charge under the Act of 1966 was .on the market value of the urban land.
The basis of the two taxes being different, it was not permissible to club the two together and complain of the cumulative burden.
As a general rule, so long as a tax retains its character as a tax and is not confiscatory or extortionate, the reasonableness of the tax cannot be questioned.
In so far as the new Act of 1966 was concerned, it could not be said that the levy at 0.4% of the market value of the urban land was confiscatory in effect [285 F] (iv) In view of the legislative background of the new Act of 1966, which replaced the earlier Act of 1963, it could not be said that the imposition of the tax retrospectively 'from July, 1963, was an unreasonable restriction.
[289 B]
|
Appeal No. 2123 of 1968.
Appeal by special leave from the Award dated March 23, 1968 of the Labour Court, Bangalore in Reference No. 39 of 1967.
M. K. Ramamurthi, B. R. Dolia, section Pappu and Vineet Kumar, for the appellants.
H. R. Gokhale, C. Doraswamy and D. N. Gupta, for respon dent No. 1.
The dispute related to the dismissal by the management of three workmen, Sandhyavoo, G. Prabhakar and M. V. Vasudevan out of the five workmen against whom the management had held a domestic enquiry at which they were found guilty of acts; of misconduct charged against them.
The facts leading to the said dispute and the reference are as follows : On August 24, 1964 the said association handed over to the management a charter of demands.
Negotiations between the parties having failed, the demands were taken before the conciliation officer when the parties arrived at a settlement dated December 23, 1964.
On April 29, 1966, the management issued a notice suspending for a day, i.e., May 4, 1966, one B. G. Shenoy 307 as and by way of penalty.
In consequence of a protest by the association, the said suspension was postponed and on May 10, 1966, the management served a charge sheet on Shenoy and suspended him pending an enquiry.
On May 11, 1966 the association demanded withdrawal of the said suspension and the said charge sheet.
Discussions took place on that day from 9.45 A.M. to 12.30 P.M. between the association and the management and the parties thereafter adjourned at 1 P.M. for lunch having decided to resume the talks at 2.30 P.M.
At 2 P.M. the first shift ended and the workers of the second shift began to come, in.
The workmen of the first shift, however, stayed on and those of the second shift along with the workmen of the general shift joined them and all of them went on strike.
The discussions which were resumed at 2.30 P.M. ended in an agreement at 5 P.M. and the workmen returned to work.
On May 18, 1966 the assistant establishment officer submitted a complaint to the chief personnel officer alleging certain acts of misconduct by a crowd of workmen mentioning therein the names of five of them including the said three workmen.
On May 25, 1966 charge sheets alleging stoppage of work, abandoning the place of work, inciting clerks and officers of G. 2 department to join the said strike, disorderly behaviour including intimidation and assault on one, A. Lakshman Rao, were served upon those five workmen.
Correspondence thereafter ensued between the association and the management wherein the association protested against the management 's decision to adopt disciplinary action against the said five workmen despite the agreement arrived at on May 11, 1966.
Thereafter, a domestic enquiry was held on June 30, 1966 which was completed on July 27, 1966 when the enquiry officer made his report holding the said three workmen, Sandhyavoo, Prabhakar and Vasudevan, guilty of acts of misconduct under standing order 22(2), (3), (13) and (18).
He exonerated the other two workmen except on the charge of participating in the strike and loitering about under clauses (2) and (18) of the said standing order.
On August 12, 1966, the management, agreeing with the report, passed orders of dismissal against the said three workmen which gave rise to the said reference.
On March 23, 1968 the Labour Court gave its award holding that the said enquiry was validly held and that the management were justified in passing the said orders of dismissal.
Mr. Ramamurthi, appearing for the association, challenged the said award on the following grounds : (1) that the said association not having given a call for the said strike, the said charges were misconceived and the orders of dismissal were consequently not sustainable; (2) that the said strike, which was spontaneously staged by the workmen, was not illegal under section 24 of the , nor was it in contravention of any law as 308 required by standing order 22(2) and (3); (3) that the said disciplinary proceedings were in contravention of the agreement arrived at on May 11, 1966, and therefore, the dismissal following such disciplinary proceedings amounted to unfair labour practice; (4) that the orders of dismissal were passed on charges including that of intimidation though the misconduct of intimidation was not found proved by the enquiry officer and hence the said orders were illegal; (5) that to punish only three workmen when a large number of workmen had taken part in staging the strike and in inciting others to join it constituted victimisation; and (6) that the findings of the enquiry officer were based on no evidence or were perverse in that no reasonable body of persons could have arrived at them on the evidence before him.
The argument on which the first contention was based was that the settlement dated December 23, 1964 was arrived at between three parties, the management, the association and the men, and that the association being the union registered under the Trade Unions Act was an entity distinct from the workmen.
Under cl. 5 of the settlement it was the association which was obliged to give four days ' notice if it decided to resort to strike, go slow tactics or other coercive action.
The said clause did not impose any such obligation on the workmen.
The workmen thus having no such obligation and the said strike being a spontaneous one, without any call for it from the association, it could not be said to be in breach of the said settlement, and therefore, would not fall under the mischief of section 23 of the Act, the first condition of which is that to be illegal under section 24 read with section 23 it must be, in breach of a contract.
Standing order 22 requires that participating in a strike would be misconduct if it is in breach of some provision of law.
But as the strike was not in contravention of section 23, it would not constitute misconduct under that standing order.
Therefore, the charges against the said three workmen were misconceived and the orders of dismissal passed against them on the basis that they stood established were bad.
In our view this argument cannot be sustained.
The construction of cl. 5 of the settlement suggested by Mr. Ramamurthi is contrary to (a) the tenor of that settlement, (b) the provisions of the under which a settlement arrived at between an employer and a union representing the employees during conciliation proceedings is binding not only on such union but also the workmen whom it represents and (c) the principles of collective bargaining recognised by industrial law.
The settlement was a package settlement by which the management and the workmen, through their association, arrived at certain terms in the presence of the conciliation officer.
The settlement, besides settling the demands contained in the said charter of demands, sets out the necessity of harmonious relations and of cooperation between the 309 management and the workmen so as to promote higher and better production.
It was to achieve this object that direct action on the part of either of them such as a strike by the workmen and a lockout by the employer without notice was prohibited.
Evidently the provision for four days ' notice before any direct action was taken by either of them was provided for so that during that period if.
there was any grievance it could be ironed out by negotiations.
5 of the settlement falls in two parts : (I) the substantive part, and (2) the corollary thereof.
The first part inter alia provided that neither the association nor the management would resort to any direct action, such as strike, go slow tactics or lock out or any such coercive action without giving to the other a four days ' notice.
The second part provided an undertaking on the part of the association to cooperate with the management, if there was any strike by workmen without any call therefore from the association, if the management were to take disciplinary action against the workmen.
If the construction of cl. 5 suggested by Mr. Ramamurthi were to be accepted it would lead to a surprising result, namely, that though a strike at the instance of the association required four days notice, a strike by the workmen without any call from the association would not require any such notice and that the settlement left complete liberty to the workmen to launch a sudden strike.
Such a construction appears on the very face of it contrary to the object and purpose of the settlement and particularly cl. 5 which envisages a notice period of four days to enable the parties to resolve a dispute before direct action on its account is resorted to by either them.
The suggested construction is also untenable, for surely the association irrespective of the workmen cannot by itself resort.
to any direct action.
How can, for instance, the association resort to go slow tactics without giving a call for it to the workmen ? It is obvious, therefore, that cl. 5 does not contemplate any dichotomy between the association and the workmen as suggested by, Mr. Ramamurthi, besides being repugnant to the principle that a settlement arrived at by the association must be regarded as one made by it in its representative character, and therefore, binding, on the workmen.
Therefore, although the settlement mentions in, cl. 5 the management, workmen and the association, the expression 'workmen ' therein was unnecessary, for, without that expression also it would have been as efficaciously binding on the workmen as.
on the association.
This conclusion is strengthened by the fact that the settlement mentions the management and the association, on behalf of the workmen only as the parties thereto and the signatories thereto also are only the representatives of the two bodies.
None of the workmen, nor any one separately representing them affixed his signature to it.
If a lighting strike without notice is illegal under any provision of law (a question which we shall presently consider standing order 22 would come into operation and starting or joining such a strike and inciting others to L 13 Sup.
C.I,/69 6. 310 join it would amount to misconduct for which disciplinary action by the management would be possible.
The next question is whether the management could validly take disciplinary action against the workmen concerned in respect ,of the said strike.
The recitals of the said settlement show that as a result of the association presenting the said charter of demands negotiations between the management and the association took place on the said demands as also on certain proposals made by the management, that on their failure conciliation proceedings took place in the course of which the parties arrived at the said settlement which, as aforesaid, was signed by the representatives of the management and the association in the presence of the conciliation officer.
The settlement thus was one under section 12(3) of the and rule 59 of the Rules made thereunder by the Government of Mysore.
It was to come into force as from January 1, 1965 and was to remain in force for three years and was thereafter to continue to be in force until its termination by either side.
It is clear from thereof that the object with which it was made was to promote harmonious relations and cooperation between the company, the association and the workmen so that the company may on the one hand be able to achieve increased production and on the other be in a position to afford maximum opportunity for continued employment.
To accomplish these aims it was agreed that the company on its part should be managed on sound and progressive lines and the association and the workmen on their part should combat any wasteful practices adversely affecting workmanship and production and assist the management in apprehending persons responsible for acts such as theft, sabotage and other subversive activities.
As cl.
5 of the settlement itself states it was "in order to ensure continuation of smooth working" that the company and the association agreed that in no case would either of them resort to direct action such as lock outs, strikes, go slow and other coercive action without four days, notice and that should one or more workmen resort to any such direct action without the approval of the association, the association Would cooperate with the company in any disciplinary action which the company would take against such workmen.
Then follows the agreement on the said demands of the workmen, and the proposals made by the management in the details of which it is not necessary to go, and finally, the agreement that the parties would adhere to the code of discipline and the grievance procedure annexed as annexure IV to the settlement.
The said code also inter alia provided that there should be no strike or lock out without notice, that neither party should resort to coercion intimidation, victimisation or go slow tactics, that they would avoid litigation, sit down and stay in strikes and lock outs and would not permit demonstrations which are: not peaceful or rowdyism.
Read 311 in the context of the other provisions of of the settlement of which it is part, cl. 5 was intended, to prohibit (a) direct action without notice by or at the instance of the association, and (b) strikes by workmen themselves without the approval of the association.
The words "in no case" used in the clause emphasise that direct action by either the party without notice should not be re sorted to for any reason whatsoever.
There can be no doubt that the settlement was one as defined by section 2(p) of the and was binding on the workmen under section 18 (3) of the Act until it was validly terminated and was in force when the said strike took place.
The strike was a lightning one, was resorted to without notice and was not at the call of the association and was, therefore, in breach of cl. 5.
Could the management then take disciplinary action against the concerned workmen in respect of such a strike ? Standing order 22 enumerates various acts constituting misconduct.
2, 3, 13 and 18 provide that striking either singly or in combination with others in contravention of the provisions of any Act, inciting any other workmen to strike in contravention of any law, riotous or disorderly behaviour or any act subversive of discipline and ' loitering within the company 's premises while on duty or absence without permission from the appointed place of work constitute misconduct.
The point is whether participation in and incitement to join the said strike were in respect of a strike which was in contravention of any Act or law.
Section 23 provides that no workman employed in an industrial establishment shall go on strike in breach of contract and during the period in which a settlement is in operation, in respect of any of the matters covered by such a settlement.
The prohibition against a workman going on strike thus envisages two conditions; (a) that it is in breach of a contract and (b) that it is during the period in which a settlement is in operation and is in respect of any of the matters covered by such settlement.
The said settlement was a contract between the company and the association representing the workmen and it was in operation on May 11, 1966.
But was it in respect of a matter covered by the settlement ? Under section 24 a strike is illegal if it is commenced in contravention of section 23.
Section 26 inter alia provides that any workman who commences, continues or otherwise acts in furtherance of a strike which is illegal under the Act shall be punished with imprisonment for a term extending to one month or with fine which may extend to Rs. 50 or with both.
Section 27 provides punishment of a person who instigates or incites others to take part in or otherwise acts in furtherance of an illegal strike, The strike envisaged by these two sections is clearly the one which is illegal under section 24 read with section 23.
A strike in breach of a contract during the operation of a settlement and in respect of a matter covered by that settlement falls under section 23 (c).
But whereas section 26 312 punishes a workman for going on an illegal strike or for any act in furtherance of such a strike,, section 29 lays down the penalty for a person, not necessarily a workman, who commits breach of a term of a settlement which is binding under the Act.
It is, therefore, an offence for any person on whom a settlement is binding under the Act to commit a breach thereof and the legislature has viewed it to be a more serious offence, for, it has a higher punishment of imprisonment extending to six months than the punishment for commencing etc.
an illegal strike under section 26.
Thus, commencing, a strike or acting in furtherance of it in breach of a settlement binding on the person who so commences it or acts in its furtherance is an offence punishable under section 29.
It is clear that there is a distinction between a strike in visaged by section 23 (c) in respect of a matter covered by a settlement and a strike in breach of a settlement envisaged by section 29.
That position was conceded by Mr. Gokhale for the management.
But his argument was that the strike in question was, firstly, in respect of a matter covered by the said settlement, namely, its prohibition without notice while that settlement was in force and secondly that it was in breach of that settlement, and consequently, it was illegal both under section 24 and section 29.
This contention does not seem correct, firstly, because though an agreement not to resort to a strike without notice would be the subject matter of a settlement, a strike in contravention of such an agreement is not in respect of any of the matters covered by such settlement.
Secondly, such a construction would mean as if Parliament intended to provide two different penalties, one under section 26 and the other under section 29, for the very same offence, one higher than the other, an intention difficult to attribute.
The strike was in the matter of the suspension of the said Shenoy pending a domestic enquiry against him, a matter which obviously was not one of the matters covered by the said settlement.
It was, therefore, not a strike illegal under section read with section 23(c).
However, the strike was in contravention of cl. 5 of the said settlement and that settlement being binding on the workmen concerned and in operation at the time was punish able under section 29, and therefore, illegal under that section.
The question whether a strike in contravention of a similar clause in a settlement was illegal arose in The Tata Engineering and Locomotive Co. Ltd. vs C. B. Mitter & Anr.
(1) As in cl. 5 of the settlement before us, the settlement there also provided that "in no case" would the parties thereto resort to direct action such as lockouts, strikes, go slow and other direct action without four days ' notice.
The strike in question was commenced in respect of a demand by a workman for a pair of gum boots, a demand (1) C.A.No. 633 of 1963, dec. on April 2,1964.
313 not covered by the settlement.
It was common ground that the strike would not fall within the ambit of section 24 but the controversy was whether it was otherwise illegal, the workmen 's contention being that it was not, as the said clause against.
a strike without notice applied only to one declared for enforcing one or the other demands which formed the subject matter of the settlement and since the strike arose out of a matter not covered by the settlement, that clause was inapplicable.
This Court negatived the conten tion and held that the words "in no case" in that clause meant a strike for whatever reason and though it was conceded that it was not illegal under section 24, it was, nevertheless, held to be illegal not because it was in respect of a matter covered by the said settlement but because it was in contravention of the settlement which was binding on the concerned workmen, which meant that the Court held the strike to be illegal under section 29.
In our view the decision in the present case must be the same.
The strike was illegal not under section 24 but because it was in contravention of the settlement binding on the workmen concerned.
Consequently, standing order 22 would apply and participating in or inciting others to join such a strike would amount to misconduct for which ,the management were entitled to take disciplinary action.
But against that position, the argument was that the agreement dated May 11, 1966 under which the workmen called off the strike also provided that no disciplinary action would be taken against any workmen in respect of the strike on that day and that therefore the proceedings taken against the three workmen in violation of that agreement amounted to unfair labour practice.
The agreement was oral.
According to Bernard, Secretary of the association, the agreement *as that (a) the charges and the suspension order passed against the said Shenoy should be withdrawn (b) the company should pay the wages for the 31 hours period ,of the strike provided the workmen made good the loss of production during that period, and (c) the management would take no action against any one for going on strike.
The evidence of Martin, the company 's technical director, on the other hand, was that the company agreed only not to punish the said Shenoy and to consider paying wages for the hours of the strike.
The Labour Court on this evidence held that the association failed to prove that the management had agreed not to take action against any of the workmen in connection with the strike though it may be that they might have agreed not to victimise any workman for participating in the strike.
In fact, the management did not impose any penalty against any workman for joining the strike, not even against the three concerned workmen.
This finding being purely one of fact and the Labour Court having given cogent reasons for it we would not interfere with it without the utmost reluctance.
We have been taken through the evidence and the correspondence between the 314 parties but we fail to see any error on the part of the Labour Court in reaching that finding.
The next contention was that the orders of dismissal were bad as they took into account the charge of intimidation of the company 's officers although the enquiry officer had found that that charge was not proved.
The charge sheets, exs.
M/4A, M/5A and M/6A against the three workmen alleged in express terms disorderly behaviour and intimidation.
The report of the enquiry officer against the said Vasudevan clearly stated that the enquiry officer accepted the evidence of the management 's witnesses and that on that evidence all the charges against him stood proved.
While summarising those charges, he, no doubt, did not in so many words use the expression "intimidation".
But the evidence which he, as aforesaid, accepted, was that Vasudevan along with other workmen entered the G. 2 department at about 3 P.M. on that day and thumping his hand on the table of the said Lakshman Rao threatened that officer in the following words : "now I am in the forefront of the crowd].
You cannot do anything.
You ask your people to come out and you also come out.
Otherwise you can see what we can do for you now".
The said Lakshman Rao had also deposed that he was surrounded by the workers who started pushing and pulling him.
The evidence of other officers was that as the crowd which forced its way into this department got unruly they were also forced to leave their places of work.
The evidence against Prabhakar was that he too was in the fore front of that crowd which squeezed Lakshman Rao and some members thereof inflicted kicks on him.
Similarly, there was the evidence of one Raja, the assistant personnel officer, and others that Sandhyavoo was one of those in the forefront of that crowd.
According to Raja.
Sandhyavoo tried to lift him from his seat with a view to force him to leave his table and finding that the crowd had become restive he left his place.
Acceptance of this evidence by the enquiry officer must necessarily mean acceptance of the version of these officers that they were intimidated by the crowd which forced its way into their department led by these three workmen.
Though the enquiry officer has not, in so many words, used the expression 'intimidation ' his finding of disorderly behaviour must be held to include acts of intimidation.
Lastly, were the orders of dismissal against the three workmen acts of victimisation on the part of the management when admittedly a large number of workmen had staged the strike and also incited others to join that strike ? The orders against the three workmen being identical in terms we take the orders passed against Vasudevan as a specimen.
That order sets out four acts of misconduct by him; (1) striking or stopping work, (2) inciting, (3) riotous and disorderly behaviour and (4) loitering about in the 315 company 's premises.
Though each one of these acts, according to the order, was misconduct punishable with dismissal, the order states that so far as acts 1 and 4 were concerned, the management.
did not wish to take a serious view of them as a large number of "misguided" workmen had stopped work and left their places of work without permission.
The management, therefore, took action only in respect of acts failing under cls.
3 and 13 of standing.
order 22 evidently for the reason that they considered incitement, intimidation and riotous and disorderly behaviour as "very grave in nature".
We do not think that in taking this view the, management discriminated against the three workmen concerned as against.
the rest or that they dismissed them with the object of victimising.
The evidence in the enquiry clearly disclosed that when the crowd forced its way into the G. 2 department it was led by these three workmen, all of whom were in the forefront thereof and two of them had defiantly forced the officers to leave their tables.
of them had threatened as to what he and the others who were behind him in that crowd could do to him if he did not comply and the other had tried even to lift another officer from his chair to compel him to leave his place of work.
In these circumstances.
the management cannot be blamed if they took a serious view of these acts of the three workmen concerned, who had taken up their position in the forefront of that crowd, a position indicative of their having led, that crowd into that department and having, acted as its leaders.
An act of discrimination can only occur if amongst those equally situated an unequal treatment is meted out to one or more of them.
Having been found to be the leader& of the crowd, action taken against them cannot on any principle be regarded as discriminatory or unequal.
The decision in Burn & Co. Ltd. vs Workmen(1) relied on by Mr. Ramamurthi has no, bearing on the facts of this case and cannot assist him.
Once a misconduct graver than that of the rest was found proved against these three workmen and for which the punishment is dismissal, victimisation cannot legitimately be attributed to the management.
It is relevant in this connection to remember that so far as their participation in the strike and loitering about were concerned, no,, action was taken against these three workmen on the ground that those acts were common with those of the rest of the workmen.
In view of these facts it is not understandable how the impugned ' orders of dismissal could be characterised as acts of victimisation.
It is also not possible to say that the finding of incitement and disorderly behaviour of these three workmen was perverse or such, as no reasonable body of persons could come to on the evidence on record on the ground only that the others also were guilty of those acts.
For, there would be nothing wrong if those who misled or misguided other workmen were selected for disciplinary action (1) and not the victims of their persuasion, who in following their A precept did similar acts.
In our judgment the orders of dismissal, based on the findings in the domestic enquiry which did not suffer from any infirmity, could not be successfully impeached, and therefore, the Labour Court was right in upholding them.
The appeal fails and is dismissed.
There will be no order as to costs.
Appeal dismissed.
| IN-Abs | There was settlement entered into on December 23, 1964 between the Motor Industries Company Employees Association and the management of the company.
Under el.
5 of the agreement it was agreed inter alia that the workmen will not go on strike without at least four days ' notice.
How,ever on May 11, 1966 the workmen went on strike without notice as a protest against the suspension of one of the workmen.
Later in the day after discussions the workmen resumed work.
On May 18, 1966 the establishment officer submitted a complaint to the Chief Personnel Officer as a result of which charge sheets alleging stoppage of work, abandoning place of work and inciting clerks and officers to join the strike were served upon five of the workmen.
Against one of them the charge of disorderly conduct and intimidation was also made.
The enquiry officer held three of the charged workmen guilty of acts of misconduct under standing order 22(2), (3), (13) and (18).
The management passed orders of ,dismissal against the three workmen.
The industrial dispute thus arising was referred to, the Labour Court which held that the said enquiry was validly held and that the management were justified in passing the orders of dismissal.
In appeal by special leave the following contentions were raised on behalf of the workmen appellants : (i) that the said association not having given a call for the said strike the said charges were misconceived and the orders of dismissal were consequently not sustainable; (ii) that the said strike, which was spontaneously staged by the workmen, was not illegal under section 24 of the Industrial Disputes Act nor was it in contravention of any law as required by standing order 22(2) and (3); (iii) that the said disciplinary proceedings were in contravention of the agreement arrived at on May 11, 1966, and therefore, the dismissal following such disciplinary proceedings amounted to unfair labour practice; (iv) that the orders of dismissal were passed on charges including that of intimidation though the misconduct of intimidation was not found by the enquiry officer and hence the said orders were illegal; (v) that to punish only three workmen when a large number of workmen had taken part in staging the strike and in inciting others to join it constituted victimisation, (vi) that the finding of the enquiry officer were based on no evidence or were perverse in that no reasonable body of persons could have arrived at them on the evidence before him.
HELD : (i) Clause 5 of the settlement dated December 23, 1964 did not contemplate any dichotomy between the association and the workmen 305 as suggested on behalf of the appellants.
Such an interpretation is repugnant to the principle that a settlement once arrived at by the association must be regarded as one made by it in its representative character, and therefore binding on the workmen.
Therefore, although the settlement mentioned in cl. 5 the management, workmen and the association, the expression 'workmen ' therein was unnecessary, for without that expression also it would have been as efficaciously binding on the workmen as on the association.
This conclusion was strengthened by the fact that the settlement mentioned the management and the association on behalf of the workmen only as the parties thereto and the signatories thereto also were only the representatives of the two bodies.
[309 F H] Further, the appellants ' contention if accepted would lead to a surprising result, namely, that though a strike at the instance of the association required four days ' notice, a notice by the workmen without any call from the association would not require any such notice and that the settlement left complete liberty to the workmen to launch a sudden strike.
The first contention on behalf of the workmen had therefore to be rejected.
[309 D] (ii) Read in the context of the other provisions of Part I of the settlement of which it was part, cl. 5 was intended to prohibit (a) direct action without notice by or at the instance of the association and (b) strikes by workmen themselves without the approval of the association.
The words 'in no case ' used in the clause emphasized that direct action by either party without notice should not be resorted to 'for any reason whatsoever.
There could be no doubt that the settlement was one as defined by section 2(p) of the Industrial Disputes Act and was binding on the workmen under section 18(3) of the Act until it was validly terminated and was in force when the said strike took place.
The strike was a lightning one, was resorted to without notice and though it was not at the call of the association, it was in breach of cl. 5.
[311 A C] The strike was in the matter of suspension of one of the workmen pending a domestic enquiry against him, a matter which obviously was not one of the matters covered by the said settlement.
It was, therefore, not a strike illegal under section 24 read with section 23(c).
However being in con travention of cl. 5 of the said settlement and that settlement being binding on the workmen concerned and in, operation at the time was punishable under section 29 and therefore.
illegal under that section.
[312 F] The strike being illegal, standing order 22 would apply and participating in or inciting others to join such a strike would amount to misconduct for which the management was entitled to take disciplinary action.
The second contention on behalf of the workmen must also, therefore, fail.
[313 D] The Tata Engineering & Locomotive Co. Ltd. vs C. B. Mitter, C.A. No. 633/1963 dt.
2 4 1964, referred to.
(iii) The Labour Court on the evidence held that the association failed to prove that the management had agreed in order to end the strike on May 11, 1966, not to take action against any of the workmen in connection with the strike, though it may be that they might have agreed not to victimise any workmen for participating in the strike.
In fact the management did not impose any penalty against any workman for joining the strike, not even against the three concerned workmen.
This finding being purely one of fact and the Labour Court having given cogent reasons for it this Court would not interfere with it.
The contention alleging unfair labour practice must also therefore fail.
[313 G H] 306 (iv) Although in his report the enquiry officer did not use the expression 'intimidation ' the evidence which he accepted was that the workman in question thumped his hand on the table and used threatening words to .an officer of the company.
The Enquiry officer 's finding of disorderly behaviour must therefore be held to include acts of intimidation.
Accordingly the contention that the orders of dismissal were bad as they took to account the charge of intimidation of the company 's officers although the enquiry officer had found that charge was not proved, must be rejected.
13 14 B G] (V) The evidence showed that the three workmen concerned were in the forefront of the crowd which entered the premises of the company and committed and incited disorderly behaviour.
In taking action against them and not the rest of the workmen there was no discrimination and no victimisation.
[315 C] Burn & Co. Ltd. vs Workmen, , distinguished.
(vi) There was no substance in the contention that the findings of the enquiry officer were based on no evidence or were perverse.
|
Appeal No: 961 of 1966.
Appeal by special leave from the judgment and order dated March 18, 1965 of the Gujarat High Court in Special Civil Application No. 580 of 1961.
252 R. H. Dhebar, section K. Dholakia and section P. Nayar, for the appellant.
G. L. Sanghi and A. G. Ratnaparkhi, for respondent No. 1.
M. section K. Sastri, R. H. Dhebar and R. N. Sachthey, for respondent No. 2.
The Judgment of the Court was delivered by Grover, J.
This is an appeal by special leave against a judgment of the Gujarat High Court.
The sole point for determination is whether omission to supply to the first respondent a copy of the recommendations of the Enquiry Officer in the matter of punishment, although a copy of his report containing his findings on the various charges was supplied, amounted to a failure to provide reasonable opportunity of making a representation against the penalty proposed within the meaning of article 311(2) of the Constitution.
The first respondent joined the Baroda State Service in 1937.
He was absorbed as a Sales Tax Officer, Class III in the former State of Bombay after merger.
In December 1962 he was served with a charge sheet containing allegations of attempt to obtain illegal gratification from certain cloth dealers.
A departmental enquiry was held and on March 15, 1964 he was dismissed from service.
He challenged the order of dismissal by means of a civil suit.
In May 1958 the City Civil Court decreed the suit holding that the order of dismissal was illegal.
He was reinstated with effect from October 10, 1958.
He was, however, suspended with immediate effect as a fresh enquiry was proposed to be held against him under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules.
A fresh charge sheet was served on him containing the same allegations as on the previous occasion.
In December 1959 a notice was served on him by the Government calling upon him to show cause why punishment of removal should not be imposed on him.
Along with the show cause notice the report of the Enquiry Officer containing his findings was sent to him.
The Enquiry Officer had also made certain recommendations regarding the punishment which in his opinion should be inflicted on the first respondent.
No copy of these recommendations, however, was furnished to him.
In March 1960 it was proposed that the first respondent be allocated to the State of Gujarat in view of the bifurcation of the erstwhile State of Bombay.
In September 1960 he was removed from service by an order passed by the State Government.
The first respondent then filed a petition under article 226 of the Constitution challenging the order of removal.
One of the points which was raised before the High Court was that the failure to send a copy of the report of the Enquiry 253 Officer containing his recommendations in the matter of punishment vitiated the proceedings.
The High Court expressed the view that since the recommendations were a part of the appropriate material for the consideration of the Government in the matter of imposition of punishment on the first respondent, he was entitled to a copy of those recommendations at the time when he was called upon to show cause.
It was consequently hold that the proceedings were vitiated from the stage of the show cause notice relating to punishment.
The order of removal was set aside but it was made clear that the Government would be at liberty to issue a fresh show cause notice regarding the proposed punishment and to take appropriate proceedings from that stage onwards, if it chose to do so.
The State has filed the present appeal.
Learned counsel for the State urged that the Enquiry Officer was not required to make any recommendation about the punishment 'which was to be imposed on the first respondent on the charges against him which had been found to have been proved.
It was pointed out that the sole duty of the Enquiry Officer was to give his conclusions or findings on the charges which he was called upon to enquire into and the recommendations which he made in the matter of punishment were wholly redundant and irrelevant.
For that reason it was not at all necessary that the first respondent should have been supplied a copy of the recommendations relating to punishment.
In this connection reference has been made to the Bombay Civil Services Conduct, Discipline and Appeal Rules wherein the procedure has been laid down when an order of dismissal, removal or reduction in rank has to be passed on a member of the service.
According to the Rule the proceedings shall contain sufficient record of the evidence and a statement of the findings and the grounds thereof.
There are similar provisions in Rule 55 of the Civil Services (Classification, Control and Appeal) Rules.
In Union of India vs H. C. Goel(1).
It has been observed that unless the statutory rules or the specific order under which an officer is appointed to hold an inquiry so requires the Enquiry Officer need not make any recommendations as to the punishment which may be imposed on the delinquent officer in case the charges framed against him are held proved at the enquiry; if however, the Enquiry Officer makes any recommendations the said recommendations, like his findings on the merits, are intended merely to supply appropriate material for the consideration of the Government.
Neither the findings, nor the recommendations are binding on the Government.
Now although it is correct that the Enquiry Officer is under no obligation or duty to make any (1) ; 254 recommendations in the matter of punishment to be imposed on the servant against whom the departmental enquiry is held, and his function merely is to conduct the enquiry in accordance with law and to submit the record along with his findings or conclusions on the various charges which have been preferred against the delinquent servant.
But if the Enquiry Officer proceeds to recommend that a particular penalty or punishment should be imposed in the light of his findings 'or conclusions the question is whether the officer concerned should be informed about his recommendations.
In other words since such recommendations form part of the record and constitute appropriate material for consideration of the Government it would be essential that that material should not be withheld from him so that he could, while showing cause against the proposed, punishment, make a proper representation.
The entire object of supplying a copy of the report of the Enquiry Officer is to enable the delinquent officer to satisfy the punishing authority that he is innocent of the charges framed against him and that even if the charges are held to have been proved the punishment proposed to be inflicted is unduly severe.
If the Enquiry Officer has also made recommendations in the matter of punishment that is likely to affect the mind of the punishing authority even with regard to penalty or punishment to be imposed on such officer.
The requirement of a reasonable opportunity, therefore, would not be satisfied unless the entire report of the Enquiry Officer including his views in the matter of punishment are disclosed to the delinquent servant.
We have no manner of doubt that the decision of the High Court must be upheld in the above view of the matter.
The, appeal fails and it is dismissed with costs.
| IN-Abs | As there was omission to supply to the first respondent a copy of the recommendations of the Enquiry officer in the matter of punishment (although a copy of his report containing his findings on various charges was supplied) the first respondent filed a writ petition in the High Court challenging the order of the State Government removing him from its service.
The first respondent contended that the omission amounted to failure to provide reasonable opportunity of making representation against the penalty proposed within the meaning of article 311(2) of the Constitu tion.
The High Court held that proceedings were vitiated from the stage of the show cause notice relating to punishment, and set aside the order of removal, but liberty was given to the State Government to issue fresh show cause notice regarding the proposed punishment.
Dismissing the State 's appeal, this Court; HELD : The requirement of a reasonable opportunity could not be satisfied unless the entire report of the Enquiry Officer including his views in the matter of punishment were disclosed to the delinquent servant.
[254 E] The Enquiry Officer is under no obligation or duly to make any recommendations in the matter of punishment to be imposed on the servant against whom the departmental enquiry is held, and his function merely is to conduct the enquiry in accordance with law and to submit the record along with his findings or conclusions on the delinquent servant.
But if the Enquiry Officer has,, also made recommendations in the matter of punishment that is likely to, affect the mind of the punishing authority with regard to penalty or punishment to be imposed on such officer, it must be disclosed to the delinquent officer.
Since such recommendations form part of the record and constitute appropriate material for consideration of the Government it would be essential that that material should not be withheld from him so that he could, while showing cause against the proposed punishment, make, a proper representation.
The entire object of supplying a copy of the report of the Enquiry Officer is to enable the delinquent officer to satisfy the punishing authority that he is innocent of the charges framed against him and that even if the charges 'are held to have been proved the punishment proposed to be inflicted is unduly severe.
[253 H 254 D] Union of India vs H.C. Goel, ; , referred to.
|
Appeal No. 870 of 1966.
Appeal by special leave from the judgment and order dated June 14, 1965 of the Bombay High Court in Special Civil Application No. 371 of 1965.
section section Shukla, for the appellant.
M. C. Bhandare, K. Rajendra Chaudhuri and K. R. Chaudhuri, for the respondent.
The Judgment of the Court was delivered by Grover, J.
This is an appeal by special leave from a judg ment of the division bench of the Bombay High Court.
The only question for decision is whether the High Court could interfere under articles 226 & 227 of the Constitution with the order of the appellate court in proceedings under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, hereinafter called the "Act", when a petition for revision under section 115, Civil procedure Code, against the same order had been previously dismissed by a single Judge of that court.
The appellant is the owner of a house in Poona.
The res pondent, who was a teacher, was the tenant of a block of four rooms on the first floor of the house.
In 1958 he was transferred to another town Wai where he was allotted suitable residential accommodation.
His son, however, stayed on in Poona as he was studying there.
The appellant filed a suit in the court of Judge, Small Causes, under the provisions of the Act for possession of the suit premises, inter alia, on the ground that the respondent had acquired suitable accommodation elsewhere.
The position taken up by the respondent was that his son was required to stay on in Poona and for that reason it could not said that the had acquired suitable residence at Wai.
Moreover he had gone away from Poona only temporarily and on his return the pre mises would be required for his own use.
The trial court held that only a part of the premises which were required by the son should be vacated.
It granted a decree for possession of two out of four rooms and directed proportionate reduction of the rent.
Both sides filed appeals in the court of the District Judge.
The Extra Assistant Judge who disposed them of was of the view that the court was not empowered to bifurcate the premises.
It was either suitable for the whole family or it was not suitable.
But 324 he affirmed the decree on the ground that the order of the trial court was an equitable one.
The respondent preferred a petition for revision under section 1 15 of the Code of Civil Procedure before the High Court.
A learned Single Judge who heard the petition dismissed it as he was not satisfied that the appellate court had acted in exercise of its jurisdiction illegally or with material irregularity.
The respondent moved a petition under articles 226 and 227 of the Constitution challenging the same order of the appellate court.
Following a decision of a full bench in K. B. Sipahi malani vs Fidahussein Vallibhoy(1) the division bench which heard the writ petition held that in spite of the dismissal of the petition by the learned Single Judge there could be interference under articles 226 and 227 of the Constitution on a proper cast being made out.
After going into the merits the bench expressed the view that the respondent had not acquired an alternative suit able residence.
The courts below were therefore,.
wrong, in coming to the contrary conclusion.
As section 13 (I) (1) of the Act had been misconstrued and the error was apparent on the record the orders of the courts below were set aside.
Now as is) well known section II 5 of the Civil Procedure Code empowers the High Court to call for the record of any cast which has been decided by any court subordinate to it and in which no appeal lies to it.
It can interfere if the subordinate court appears to have exercised the jurisdiction not vested in it by law or to have failed to exercise the jurisdiction so vested on to have acted in the exercise of its jurisdiction legally or with material illegality.
The limits of the jurisdiction of the High Court under this section are well defined by a long course of judicial decisions.
If the revisional jurisdiction is invoked and both parties are heard and an order is made the question is whether the orders of the subordinate court has become merged in the order of the High Court.
If it has got merged and the order is only of the High Court, the order of the subordinate court cannot be challenged or attacked by another set of proceedings in the High Court, namely, by means of a petition under article 226 or 227 of the Constitution.
It is only if by dismissal of the revision petition the order of the subordinate court has not become merged in that of the High Court that it may be open to party to invoke the extraordinary writ jurisdiction of that court.
There again the question will arise whether it would be right and proper for the High Court to interfere with an order of a subordinate court in a writ petition when a petition for revision under section 115, C.P.C., against the same order has been dismissed.
Such a consideration will also enter into the exercise of discretion in a petition under Aft.
226 or 227, (1) 58 B.L.R. 344, 325 The Bombay High Court in K. B. Sipahimalani 's (1) case made a distinction between an appellate jurisdiction and a revisional jurisdiction.
A right of appeal is a vested right and an appeal is a continuation or a rehearing of the suit.
A revision, however, is not a continuation or a rehearing of the suit; nor is it obligatory upon the revisional court to interfere with the order even though the order may be improper or illegal.
If the revisional court interferes the order of the lower court does not merge in the order passed by a revisional court but the order of the revisional court simply sets aside or modifies the order of the lower court.
it was this argument which mainly prevailed before the Bombay bench.
It would appear that this Court has taken a view which runs counter to that of the Bombay High Court.
Although the case of Madan Lal Rungta vs Secy.
to the Government of Orissa(2) was not one which had been decided under section 115 of the Civil Procedure Code but the ratio of that decision is apposite.
The State Government of Orissa a rejected the application of the appellant there who had applied for grant of a mineral lease.
He made in application for review to the Central Government under Rule 57 of the Mineral Concession Rules which was rejected.
He moved the High Court under article 226 of the Constitution which was also dismissed.
The appellant came up by special leave to this Court.
His main contention was that the Central Government had merely dismissed the review petition and the effective order rejecting his application for the mining lease was that of the State Government.
The High Court, thus, had jurisdiction to grant a writ under article 226.
This contention was negatived and it was held that the High Court was right in taking the view that it had no jurisdiction to issue a writ as the final order was that of the Central Government which was not within its territorial jurisdiction.
The ratio of this decision is that it was the order of the Central Government dismissing the review peti tion which was the final order into which the order of the State Government had merged.
It would appear that their lordships of the Privy Council regarded the revisional jurisdiction to be a part and parcel of the appellate jurisdiction of the High Court.
This is what was said in Nath Dey vs Suresh Chandra Dey(3).
"There is no definition of appeal in the Code of Civil Procedure, but their Lordship have no doubt that any application by a party to an Appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary acceptation of the term. " (1) 58 B.L.R. 344.
(2) [1962] 3 Supp.
S.C.R. 906.
(3) 591.A.283, 287.
L13Sup.
CI/69 7 326 Similarly in Raja of Ramnad vs Kamid Rowthen & Ors.
(1) a civil revision petition was considered to be an appropriate form of appeal from the judgment in a suit of small causes nature.
A full bench of the Madras High Court in P. P. P. Chidambara Nadar vs C. P. A. Rama Nadar & Ors.
(2) had to decide whether with reference to article 182(2) of the Limitation Act, 1908 the term "appeal" was used in a restrictive sense so as to exclude revision petitions and the expression "appellate court" was to be confined to a court exercising appellate, as opposed to, revisional powers.
After an exhaustive examination of the case law in cluding the decisions of the Privy Council mentioned above the full bench expressed the view that article 182(2) applied to civil revisions as well and not only to appeals in the narrow sense of that term as used in the Civil Procedure Code.
In Secretary of State for India in Council vs British India Steam Navigation Company(3) and order passed by the High Court in exercise of its revisional jurisdiction under section 115, Code of Civil Procedure, was held to be an order made or passed in appeal within the meaning, of section 39 of the Letters Patent, Mookerji, J., who delivered the judgment of the division bench referred to the observations of Lord Westbury in Attorney General vs Sillem(4) and of Subramania Ayyar, J. in Chappan vs Moidin(5) on the true nature of the right of appeal.
Such a right was one of entering a superior Court and invoking its aid and interposition to redress the error of the court below.
Two things which were required to constitute appellate jurisdiction were the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter.
In the well known work of Story on Constitution (of United States) vol.
2, article 1761, it is stated that the essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted and does not create that cause.
The appellate jurisdiction may be exercised in a variety of forms and, indeed, in any form in which the legislature may choose to prescribe.
According to article 1762 the most usual modes of exercising appellate jurisdiction, at least those which are most known in the United States, are by a writ of error, or by an appeal, or, by some process of removal of a suit from an inferior tribunal.
An appeal is a process of civil law origin and removes a cause, entirely subjecting the fact as well as the law, to a review and a retrial '.
A writ of error is a process of common law origin, and it removes nothing for re examination but the law.
The former mode is (1)53 I.A. 74.
(2) A.I.R. 1937 Mad.
(3) 13 C.L.J. 90.
(4) ; 327 usually adopted in cases of equity and admiralty jurisdiction; the latter, in suits at common law tried by a jury.
Now when the aid of the High Court is invoked on the revi sional side it is done because it is a superior court and it can interfere for the purpose of rectifying the error of the court below.
Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior court.
It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense.
We do not, therefore, consider that the principle of merger of orders of inferior Courts in those of superior Courts would be affected or would become inapplicable by making a distinction between a petition for revision and an appeal.
It may be useful to refer to certain other decisions which by analogy can be of some assistance in deciding the point before us.
In U. J. section Chopra vs State of Bombay(1) the principal of merger was considered with reference to section 439 of the Criminal Procedure Code which confers revisional jurisdiction on the High Court.
In the majority judgment it was held, inter alia, that a judgment pronounced by the High Court in the exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing, in the presence of both the parties would replace the judgment of the lower court thus constituting the judgment of the High Court the only final judgment to be executed in accordance with law by the court below.
In Chandi Prasad Chokhani vs The State of Bihar, (2) it was said that save in exceptional and special circumstances this Court would not exercise its power under article 136 in such a way As to bypass the High Court and ignore the latter '& decision which had become final and binding by entertaining an appeal directly from orders of a Tribunal.
Such exercise of ' power would be particularly inadvisable in a case where the result might lead to a conflict of decisions of two courts of competent _jurisdiction.
In our opinion the course which was followed by the High Court, in the present case, is certainly one which leads to a conflict of 'decisions of the same court.
Even on the assumption that the order of the appellate court had not merged in the order of the single Judge who had dis posed of the revision petition we are of the view that a writ petition ought not to have been entertained by the High Court when the respondent bad already chosen the remedy under section 115 of (1) ; (2) ; 328 the Code of Civil Procedure.
If there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate court.
The refusal to gray relief in such circumstances would be in consonance with the anxiety of the court to prevent abuse of process as also to respect and accord finality to its own decisions.
In the result the appeal is allowed and the judgment of the division bench of the High Court is hereby set aside.
The appellant shall be entitled to costs in this Court.
Y.P. Appeal allowed.
| IN-Abs | Against the order of an appellate court, the respondent filed a revision under section 115 of the Code of Civil Procedure.
The Single Judge of the High Court dismissed the revision.
Thereupon the respondent moved a petition under articles 226 and 227 of the Constitution challenging the same order of the appellate court.
The High Court held that in spite of the dismissal of the revision petition, it could interfere under articles 226 and 227 of the Constitution on a proper case being made out; and after going into the merits of the case, it granted relief to the respondent.
In appeal to this Court, the appellant contended that the High Court could ,not interfere under articles 226 and 227.
Allowing the appeal, this Court, HELD : Even on the assumption that the order of the appellate court .had not merged in the order of the Single Judge who had disposed of the revision petition a writ petition ought not to have been entertained by the High Court when the respondent had already chosen the remedy under section 115 of the Code of Civil Procedure.
If there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate court.
The refusal to grant relief in such circumstances would be in consonance with the anxiety of the court to prevent abuse of process as also to respect and accord finality to its own 'decisions.
[327 H] When the aid of the High Court is invoked on the revisional side it is done because it is a superior court and it can interfere for the purpose of rectifying the error of the court below.
Section 115 of the Code of Civil 'Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior court.
It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense.
The principle of merger of orders of inferior courts in those superior courts would not be affected or would not become inapplicable by making a distinction between a petition for revision and an appeal.
[327 B] Madan Lal Rungta vs Secy.
to the Government of Orissa, [1962] 3 Supp.
S.C.R. 906, Nagendra Nath Dey vs Suresh Chandra Dey.
59 I.A. 283, 287; Raja of Ramnad vs Kamid Rowthen & Ors.
53 I.A. 74, P. P. P. Chidambara Nadar vs C.P.A. Rama Nadar & Ors.
A.I.R. 1937 Mad.
385, Secretary of State for India in Council vs British India Steam Navigation Co. 13 C.L.J. 90, Attorney General vs Sillem, ; , Chappan vs Moidin, , 80, U. J. section Chopra vs State 323 of Bombay; , and Chandi Prasad Chokhani vs state of Bihar; , , referred to.
K. B. Sipahimalani vs Fidahussein Yallibhoy, 58 B.L.R. 344, disapproved.
|
254 of 1954.
Under article 32 of the Constitution for the enforcement of fundamental rights.
The petitioner in Person.
M. C. Setalvad, Attorney General for India, (G. N. Joshi and P.G. Gokhale, with him) for the respondents.
The Judgment of the Court was delivered by BOSE J.
This is a petition under article 32 of Constitution and raises the same question on the merits as in the connected summons case in which we have just delivered judgment.
The facts will be found there.
In the present matter it is enough to say that no question arises about the breach of a fundamental right.
But as a matter touching the jurisdiction of the Bar Council Tribunal and that of the Bombay High Court was argued, we will deal with it shortly.
Mr. G 's first objection is that the proceedings before the Tribunal were ultra vires because there was no proper order.
of appointment.
At a very early stage he applied to the Registrar and also to the Prothonotary for a copy of the order of the Chief Justice constituting 502 the Tribunal.
He was told by the Prothonotary that the order was oral.
Mr. ' G ', put in two written statements before the Tribunal and did not challenge this statement of fact in either.
He contented himself with saying that the 'order was not "judicial" and so was not valid.
He took up the same attitude in the High Court.
The learned Judges said "The record clearly shows that when it came to, the notice of this Court it was decided to refer this case to the Bar Council under section 10(2) and accordingly a Tribunal was appointed under section 11(1) by the learned Chief justice of this Court.
" In his petition to this Court he did not challenge this statement of fact but again confined his attack to the question of the validity of the order.
It is evident from all this that the fact that an oral order was made was not challenged.
We cannot allow Mr. 'G ' to go behind that.
The next question is whether an oral order is enough: Bar Councils Act does not lay down any procedure.
All it says is Section 10(2): ". . . the High Court may of its own motion so refer any case in which it has otherwise reason to believe that any such advocate has been so guilty." and section 11 (2) says "The Tribunal shall consist of not less than three. . members of the Bar Council appointed for the purpose of the inquiry by the Chief Justice.
" We agree it is necessary that there should be some record of the order on the files but, in our opinion, the order itself need not be a written one; it can be an oral order given to a proper officer of the Court.
In the present case, the letter No. G 1003 dated 29th April, 1953, of the Prothonotary to the Registrar and the letter No. E. 41 09/53 dated the 1st May, 1953, of the Registrar to the Bar Council (office copies of which were retained on the files) are a sufficient record of the making of the order.
Mr. 'G ' was supplied with copies 503 of those letters and so was aware of the fact that orders had been issued.
As a matter of fact, we have seen the originals of the High Court 's office files and find that the names of the three members of the Tribunal are in the Chief Justice 's handwriting with his initials underneath.
That is an additional record of the making of the order.
We hold that an order recorded in the, manner set out above is sufficient for the purposes of sections 10(2) and 11(2) of the Bar Councils Act and hold that the Tribunal was validly appointed.
Mr. G 's next point is that there was no "complaint" to the High Court and so it had no jurisdiction to refer the matter to the Tribunal.
This ignores the fact that the High Court can refer a matter of this kind "of its own motion" under section 10(2) of the Bar Councils Act.
We have dealt with the merits in the connected case.
This petition is dismissed but, here again, we make no order about costs.
Petition dismissed.
| IN-Abs | The order under section 10(2) of the , given to a proper officer of the Court may be an oral order and need not be a written one.
The High Court can under section 10(2) refer a case on its own motion.
|
Appeal No. 409 of 1966.
Appeal by special leave from the judgment and order dated July 5, 1963, of the Gujarat High Court in Special Civil Application No. 827 of 1961.
R. Gopalakrishnan, for the appellant.
G. L. Sanghi, section K. Dholakia and R. N. Sachthey, for the respondent.
This is an appeal by special leave from a judgment of the Gujarat High Court dismissing a petition under L83Sup.
CI/69 2 246 article 226 of the Constitution by which the order, retiring the appellant from service before he had attained the age, of 55 years, had been challenged.
The appellant had joined the service of the erstwhile State of Junagadh on August 1, 1934.
That State merged into the State of Saurashtra on January 20, 1949.
The appellant continued to remain in the service of that State having been confirmed as an Executive Engineer on September 24, 1956.
On the merger of Saurashtra in the new billingual State of Bombay on November 1, 1956, the appellant was absorbed in the service of the said State.
On the bifurcation of the State of Bombay on May 1, 1960, he was assigned to, the State of Gujarat and was absorbed as a permanent Executive Engineer there.
On October 12, 1961 the State of Gujarat made an order retiring the appellant from the service with effect from January 12, 1962.
On that date he had not attained the age of 55 years but he was about 53 years old.
This, order was made 'in exercise of the powers conferred by Rule 161 of the Bombay Civil Service Rules, 1959.
The order of retirement was challenged by the appellant by means of a writ petition which was dismissed.
It is common ground that when the appellant was in the ,service of the erstwhile State of Junagadh his conditions of :service were governed by the Junagadh State Pension and Parwashi Rules which had been made by the ruler of the State who exercised sovereign legislative powers.
According to those rules the age of superannuation was 60 years.
Before the inclusion of the Junagadh State in the State of Saurashtra the Rajpramukh had promulgated an Ordinance called the Saurashtra State Regulation of Government Ordinance 1948.
By section 4 of that Ordinance all the laws in force in the covenanting States prior to their integration were continued in force in the State of Saurashtra until repealed or amended under section 5.
Notwithstanding this the Saurashtra Government adopted and applied the Bombay Civil Service Rules which were then in force in the State of Bombay by an order dated September 23, 1948.
This Court in Bholanath ,J. Thaker vs The State of Saurashtra(1) held that the Rules as regards the age of superannuation which prevailed in the covenanting State which in that case was the State of Wadhwan continued to govern those government servants who had come from that State and had been absorbed in the services of the State of Saurashtra.
In view of that decision the State of Saurashtra made the Saurashtra Covenanting State Servants (Superannuation age).
Rules, 1955, hereainafter called the "Saurashtra Rules", in exercise of the power conferred by article 309 of the Consti tution.
Rule 3(i) provided (1) A.I.R. 1954 S.C. 680.
247 "A Govt.
servant shall, unless for special reasons otherwise directed by Govt.
retire from service on his completing 55 years of age.
" After the integration of the Saurashtra State into the State of Bombay a resolution was passed by the Government on Janu ary 7, 1957 applying the old Bombay Civil Service Rules to Saurashtra area.
On July 1, 1959 the Bombay Civil Service, Rules 1959, hereinafter called the "Bombay Rules" were pro mulgated under article 309 of the Constitution.
Clause (c)(2) (ii) (1) of Rule 161 is as follows "Except as otherwise provided in this Sub clause Government servants in the Bombay Service of Engineers, Class 1, must retire on reaching the age of 55 years, and may be required by the Government to retire on reaching the age of 50 years, if they have attained to the rank of Superintending Engineer.
" It was under this rule that the order retiring the appellant was made.
In the High Court the writ petition filed by the appellant was heard and disposed of with two other similar petitions in which identical questions had been raised.
A number of points were raised in the High Court but it is unnecessary to refer to them because the questions on which the present appeal can be disposed of are only two : (1) Whether the appellant was governed by the Saurashtra Rules or the Bombay Rules and (2) even if the Saurashtra Rules were applicable could the retirement of the appellant be ordered before he, had attained the age of 55 years.
The High Court rightly looked at the provisions of section 115(7) of the .
It is provided thereby that nothing in the section shall be deemed to affect after the appointed.
day the operation of the provisions of Chapter 1 of of the Constitution in relation to 'the determination of the conditions of service of persons serving in connection with the affairs of the Union or any State.
The proviso is important and lays down that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub section (1) or sub section (2) (of section 115) shall not be varied to his disadvantage except with the previous approval in the Central Government.
The case of the appellant fell within the proviso and it had, therefore, to be, determined whether the conditions of service applicable to the appellant immediately before the appointed day which admittedly were contained in the Saurashtra Rules had been varied to his disadvantage, and if so, whether the approval of the Central Government had been obtained.
It was conceded before the High Court by the, learned 248 Advocate General, who appeared for the State, that no previous approval of the Central Government had been obtained to vary the conditions of service of those public servants who were serving in the State of Saurashtra until November 1, 1956.
The High Court in this situation proceeded to decide whether by the application of Rule 161 of the Bombay Rules the conditions of service of the appellant contained in the Saurashtra Rules had been varied to his disadvantage.
It was argued on behalf of the appellant that the expression "unless for special reasons otherwise directed by Government" in Rule 3 (i) of the Saurashtra Rules provided for extension of the age of superannuation beyond 55 years and not for reduction thereof.
The Advocate General had argued that what was meant by the aforesaid words was that Government could, for special reasons, retire a Government servant before he had attained the age of 55 years which was the normal superannuation age.
If that was so Rule 161 (c) (2) (ii) (1) of the Bombay Rules could not be regarded as having varied the conditions of service contained in the Saurashtra Rules to the disadvantage of the Government servants.
The High Court was of the view that while framing the Saurashtra Rules the draftsmen who must have been well aware of the then Bombay Civil Service Rules which were in the same terms as Rule 161 of the Bombay Rules could not have framed the clause in such manner as to introduce an element of discrimination between Executive Engineers who had been absorbed from a Covenanting State and those who had been appointed or recruited directly by the State Government.
In the opinion of the High Court even under the Saurashtra Rules retirement could be ordered before a person had attained the age of 55 years.
It was, therefore, held that the conditions in Rule 161 (c) (2) (ii) of the Bombay Rules had not been shown to be less advantageous or disadvantageous to the appellant than the conditions in Rule 3 (i) of the Saurashtra Rules by which the appellant was governed until November 1, 1956.
In this manner the proviso to section 115(7) of the did not stand in the way of the applicability of the Bombay Rules.
We find it difficult to concur with the view of the High Court.
Rule 3 (i) of the Saurashtra Rules, if construed or interpreted in the manner in which it has been done by the High Court, would bring it into direct conflict with the law laid down by this Court in Moti Ram Deka etc.
vs General Manager, N.E.F. Railways Maligaon, Pandu etc.(1), which is a _judgment of a bench of seven judges of this court.
One of the matters which came up for consideration was the effect of a service rule which permitted compulsory retirement without fixing the minimum period of service after which the rule could be invoked.
According to the (1) ; 249 observations of Venkatarama Ayyar, J., in The State of Bombay vs Saubhagchand M. Doshi(1) the application of such a rule would be tantamount to dismissal or removal under article 311(2) of the Constitution.
There were certain other decisions of this Court which were relevant on this point, viz. P. Balakotaiah vs The Union of India & Ors.(2) and Dalip Singh vs The State of Punjab(3).
All these decisions were considered in Moti Ram Deka 's case(4) and the true legal position was stated in the majority judgment at page 726 thus : "We think that if any Rule permits the appro priate authority to retire compulsorily a civil servant without imposing a limitation in that behalf that such civil servant should have put in a minimum period of service, that Rule would be invalid and the so called retirement ordered under the said Rule would amount to removal of the civil servant within the meaning of article 311(2).
" In Gurdev Singh Sidhu vs State of Punjab & Anr.(5), it was pointed out that the only two exceptions to the, protection afforded by article 311(2) were, (1) where a permanent public servant was asked to retire on the ground that he had reached the age of superannuation which was reasonably fixed; (2) that he was compulsorily retired under the Rules which prescribed the normal age of superannuation and provided a reasonably long period of qualified service after which alone compulsory retirement could be valid.
The basis on which this view has proceeded is that for efficient administration it is necessary that public servants should enjoy a sense of security of tenure and that the termination of service of a public servant under a rule which does ,not lay down a reasonably long period of qualified service is in substance removal under article 311(2).
The principle is that the rule relating to compulsory retirement of a Government servant must not only contain the outside limit of superannuation but there must also be a provision for a reasonably long period of qualified service which must be indicated with sufficient clarity.
To give an example, if 55 years have been specified as the age of superannuation and if it is sought to retire the servant even before that period it should be provided in the rule that he could be retired after he has attained the age of 50 years or he has put in service for a period of 25 years.
Now Rule 3 (i) of the Saurashtra Rules will have to be dec lared invalid if the expression "unless for special reasons other (1) ; (2) [1958] S.C.R. 1052.
(3) (4) ; (5) ; 250 wise directed by Government" is so construed as to give a power to order compulsory retirement even before attaining the age of 55 years.
It is well known that a law or a statutory rule should be so interpreted as to make it valid and not invalid.
If this expression is confined to what was argued before the High Court, namely, that it gives power to the Government to allow a Government servant to remain in service even beyond the age of 55 years for special reasons the rule will not be rendered invalid and its validity will not be put in jeopardy.
So construed it is apparent that the appellant could not have been retired compulsorily under the Saurashtra Rules before he had attained the age of 55 years.
By applying the Bombay rule his conditions of service were varied to his disadvantage because he could then be compulsorily retired as soon as he attained the age of 50 years.
As the previous approval of the Central Government was not obtained in accordance with the proviso to section 115(7) of the , the Bombay rule could not be made applicable to the appellant.
Counsel for the State pressed us to look into certain docu ments for the purpose of finding out whether prior approval of the Central Government was obtained in the matter of varying the conditions of service of the appellant by applying the Bombay rules.
But none of these documents were referred to before the High Court and in the presence of a clear concession by the learned Advocate General we see no justification for acceding to such a request.
In this view of the matter this appeal must succeed and it is hereby allowed with costs in this Court.
It is declared that the appellant was entitled to remain in service until he attained the age of 55 years and that the impugned order directing his retirement was invalid and ineffective.
G.C. Appeal allowed.
| IN-Abs | The appellant originally joined the service of the State of Junagadh in 1934 and was after the merger of that State in Saurashtra confirmed in September, 1956 as an executive engineer in the service of the latter State.
Rule 3(i) of the Saurashtra Covenanting States Servants (Superannuation age) Rules 1955 provided : "A Govt.
servant shall, unless for special reasons otherwise directed by Govt.
retire from service on his completing 55 years of age.
" After the merger of Saurashtra in the bilingual State of Bombay the old Bombay Civil Service Rules were applied to Saurashtra area with effect from January 7, 1957.
On July 1, 1959 the Bombay Civil Service Rules, 1959 were promulgated.
Accord ing to r. 161 (c) (2) (ii) (1) the age of retirement for class 1 Engineers in the State Service was fixed at 55 years but it was further laid down that they "may be required by the Government to retire on reaching the age of 50 years, if they have attained to the rank of Superintending Engine.
" On the formation of the State of Gujarat the appellant 's 'services were transferred to that State but the Bombay Rules continued to apply.
Under the Bombay Rule aforesaid, namely, r. 161(c)(2)(ii)(1) the Government of the State of Gujarat retired the appellant at the age of about 53 years.
The appellant filed a writ petition in the High Court.
The High Court took into account section 115(7) of the but held that since the Saurashtra Rule 3(i) also empowered the 'State Government to retire the appellant at an age earlier than 55 years there was no variation of conditions of service to his disadvantage under the Bombay Rule and therefore the latter rule was not invalid for want of Presidential assent.
The High Court took the view that the expression "unless for special reasons otherwise directed by Government" in r. 3 (i) of the Saurashtra Rules meant that the Government could for special reasons retire a Government servant before he had attained the normal superannuation age of 55 years.
Against the High Court 's judgment dismissing his writ petition the appellant came by special leave, to this Court.
HELD : Rule 3(i) of the Saurashtra Rules, if construed of interpreted in the manner in which it had been done by the High Court, would bring it into direct conflict with Moti Ram Deka 's case as well as other cases decided by this Court.
In Moti Ram Deka 's case it was laid down that if any rule permitted the appropriate authorities to retire compul sorrily a civil servant without imposing a limitation in that behalf that such 245 civil servant should have put in a minimum period of service.
that rule would be invalid and the so called retirement ordered under the said rule would amount to removal of the civil servant within the meaning of article 311(2) of the Constitution.
The principle is that the rule relating to compulsory retirement of a Government servant must not only contain the outside limit of superannuation but there must also be a provision for a reasonably long period of qualified service which must be indicated with sufficient clarity.
For example if 55 years have been specified as the age of superannuation and if it is sought to retire the servant even before that period it should be provided in the rule that he could be retired after he has attained the age of 50 years or he has put in service for a period of 25 years.
[248 G 249 G] On the above principle rule 3 (i) of the Saurashtra Rules would have to be declared invalid if the expression "unless for special reasons otherwise directed by Government" is so construed as to give a power to order compulsory retirement even before attaining the 'age of 55 years.
A statutory rule, however, should be so interpreted as to make it valid and not invalid.
The correct interpretation of Rule 3(i) is that it gives power to the Government to allow a Government servant to remain in service even beyond the age of 55 years for special reasons; so construed the Rule would not be invalid and the appellant could not under it have been retired before be had attained the age of 55 years.
By applying the Bombay Rule his conditions of service were varied to his disadvantage because he could then be compulsorily retired as soon as he attained the age of 50 years.
As the previous approval of the Central Government was not obtained in accordance with the proviso to section 115(7) of the , the Bombay Rule could not be made applicable to the appellant.
[249 G 250 C] The appellant was thus entitled to remain in service until he attained the age of 55 years and the impugned order directing his retirement was invalid and ineffective.
[250 E F] Bholanath J. Thaker vs State of Saurashtra, A.I.R. (1954) S.C. 680, referred to.
Moti Ram Deka etc.
vs General Manager N.E.F. Railways Maligaon, Pandu etc.
; , State of Bombay vs Saubhag chand M. poshi; , , P. Balakotaiah vs Union of India; , , Dalip Singh vs State of Punjab, and Gurdev Singh Sidhu vs State of Punjab & Anr. ; , applied.
|
Appeal No. 614 of 1966.
Appeal by special leave from the judgment and order dated March 24, 1965 of the Andhra Pradesh High Court in Civil Revision Petition No. 966 of 1962.
A. V. V. Nair, for the appellant.
P. Ram Reddy and B. Parthasarathy, for the respondent.
The Judgment of the Court was delivered by Mitter, J.
This appeal by special leave is from a common judgment and order of the High Court of Madras disposing of three Revision Applications arising out of O.P. No. 95 of 1948 filed under section 4(3) and (4) of the Andhra Pradesh (Andhra Area) Estates Communal Forest and Private Lands (Prohibition of Alienation) Act, 1947 (hereinafter called the 'Act).
The central question in this appeal is, whether certain transfers of lands alleged to be forest lands made by the 6th respondent herein became void and inoperative under section 4 of the Act.
The said respondent who was a big landholder granted a patta to his wife, 7th respondent, for Ac.
100 00 of 'land on November 9, 1944.
Another patta was similarly granted to the appellant in respect of Ac.
90 00 of land on November 25, 1944 On the same day, respondent No. 6 granted a third patta for Ac.
331 200 00 of land to respondents 2 to 5.
The Act came into force on October 25, 1947.
On October 15, 1948 Original Petition No. 95 of 1948 was filed in the District Court of Eluru by two ryots for a declaration that the alienations we 're void and did not confer any rights on the alienees.
Thereafter the said petition was split into two parts, O.P. 95/1943 being directed against respondents 1 to 6 while O.P. No. 95 (a) of 1948 was directed against the 7th respondent.
The petitions were disposed of by an order of the District Judge dated July 18, 1950 holding that lands covered by the pattas were forest lands and all the alienations were void and inoperative.
A civil Revision Petition was filed in the High Court of Madras by respondents 1 to 5 against the order of the District Judge.
This was numbered as C.R.P. No. 22 of 1951.
Respondent No. 7 filed a Miscellaneous Petition No. 9534 of 1950 in the High Court of Madras.
By order dated 6th August 1952 both the petitions were dismissed by a single Judge of the Madras High Court.
This order was how ever set aside in a Letters Patent Appeal filed by respondents 1 to 5 (No. 261 of 1952) wherein it was held that the petitioners as ryots had no right to maintain the petition but reasonable opportunity should be given to the State to get transposed as the petitioner.
The State Government thereafter got itself transposed as the petitioner.
The District Court however held that he petition was not maintainable by reason of the repeal of the Act by reason of the passing of a subsequent Act, XXVI of 1948 styled the Madras Estates (Abolition and Conversion into Ryotwari ) Act, 1948, hereinafter referred to as the Act of 1948.
Against this the State Government filed a Revision Petition in the High Court of Andhra Pradesh numbering 1555 of 1955.
The High Court held that the dismissal of the petition on the ground of repeal of the Act was improper and that the petition should be disposed of on the merits and remitted the matter to the District Judge.
By a judgment dated November 30, 1960 the District Judge allowed the petition negativing the contentions of the respondent but holding that the lands were forest lands and transfers thereof were void.
The appellant and others filed Civil Revision Petitions in the High Court of Andhra Pradesh which were disposed of and dismissed by a common judgment dated August 24, 1965.
Hence this appeal.
The points urged before us by learned counsel for the appel lant were: (1) The Act applied only to lands which were admittedly forest lands and the operation thereof could not be extended to lands in respect of which there was a dispute as to the nature thereof.
It was argued that any such dispute could only be decided by the Settlement Officer and not by the District Judge.
(2) The Act was a temporary Act and all proceedings thereunder came to an end with the repeal of the Act; and (3) A notification 332 by the State Government describing the land as forest land was as essential pre requisite to the application of the Act.
The purpose of the Act was to prohibit the alienation of communal, forest and private lands in estates in the Province of Madras and the preamble to the Act shows that it was enacted to prevent indiscriminate alienation of communal, forest and private lands in estates in the Province of Madras pending the enactment of legislation for acquiring the interests of landholders in such estates and introducing ryotwari settlement therein.
No fixed duration of the Act was specified and it is impossible to hold that merely because of the above preamble the Act became a tempo rary Act.
The definition of 'forest land ' is given in section 2(b) of the Act reading : "forest land" includes any waste lands containing trees and shrubs, pasture land and any other class of land declared by the State Government to be forest land by notification in the Fort St. George Gazette; Sub section
(1) of section 3 prohibited landholders from selling, mortgaging, converting into ryoti land, leasing or otherwise assigning or alienating any communal or forest land in an estate without the previous sanction of the District Collector, on or after the date on which the Ordinance which preceded the Act came into force, namely, the 27th June, 1947.
Section 4(1) provided that : "Any transaction of the nature prohibited by section 3 which took place, in the case of any communal or forest land, on or after the 31st day of October 1939 .
. shall be void and inoperative and shall not confer or take away, or be deemed to have conferred or taken away, any right whatever on or from any party to the transaction : This sub section had a proviso with several clauses.
Our attention was drawn to clauses (iii), (iv) and (v) of the proviso but in our opinion none of these provisos was applicable to the facts of the case so as to exclude the operation of sub section
(1) of section 4.
Under sub section
(3) of section 4.
"If any dispute arises as to the validity of the claim of any person to any land under clauses (i) to (v) of the proviso to sub section (1), it shall be open to such person or to any other person interested in the transaction or to the State Government, to apply to the District Judge of the district in which the land is situated, for a decision as to the validity of such claim.
" 333 Under sub section
(4) the District Judge to whom such application is made was to decide whether the claim to the land was valid or not after giving notice to all persons concerned and where the application was not made by the State Government, to the Government itself, and his decision was to be final.
Madras Act XXVI of 1948 was passed on ' April 19, 1949 being an Act to provide for the repeal of the Permanent Settlement, the acquisition of the rights of landholders in permanently settled and certain other estates in the Province of Madras, and the introduction of ryotwari settlement in such estates.
Apparently because of the preamble to the Act it was contended that with the enactment of the repeal of the Permanent Settlement by the Act of 1948 which also provided for the acquisition of the rights of landholders in permanently settled estates, the Act stood repealed.
We fail to see how because of the preamble to the Act it can be said that it stood repealed by the enactment of the later Act unless there were express words to that effect or unless there was a necessary implication.
It does not stand to reason to hold that the alienation of large blocks of land which were rendered void under the Act became good by reason of the passing of the later Act.
Our attention was drawn to section 63 of the later Act which provided that "If any question arises whether any land in an estate is a forest or is situated in a forest, or as to the limits of a forest, it shall be determined by the Settlement Officer, subject to an appeal to the Director within such time as may be prescribed and also to revision by the Board of Revenue." In terms the section was only prospective and it did not seek to impeach any transaction which was effected before the Act and was not applicable to transactions anterior to the Act.
In our opinion section 56(1) of the later Act to which our attention was drawn by the learned counsel does not fall for consideration in this case and the disputes covered by that section do not embrace the question before us.
Madras General Clauses Act, 1 of 1891 deals with the effect of repeals of statutes.
Section 8 sub section
(f) thereof provides that "Where any Act, to which this Chapter applies, repeals any other enactment, then the repeal shall not a) to (e) (f) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, fine.
penalty, forfeiture or punishment as aforesaid; and any such investigation legal proceeding or 334 remedy may be instituted, continued or enforced, and any such fine, penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed.
This shows that even if there was a repeal any investigation started before the repeal would have to be continued and legal proceedings under the Act could be prosecuted as if the repealing Act had not been passed.
There is also no force in the contention that unless there was a notification under section 2(b) of the Act declaring a particular land to be forest land, the applicability of the Act would be excluded.
The definition of forest land ' in that section is an inclusive one and shows that 'forest land ' would include not only waste land containing trees, shrubs and pasture lands but also any other class of lands declared by Government to be forest land.
This does not mean that before a piece of land could be said to be forest land there would have to be a notification by the Government under the Act.
Lastly, counsel contended that sub section
(1) of section 20 of the later Act as originally enacted applies to forest lands and therefore the later Act became applicable thereto.
The original section was however substituted for another by section 9 of the Madras Estates (Abolition and Conversion into Ryotwari) (Amendment) Act, 1956 which was to be deemed to have come into force on April 19, 1949 being the date on which the Act of 1948 originally ,came into force.
The section as it now stands did not confer any jurisdiction on the Settlement Officer to determine any question as to whether any land was forest land within the meaning of the Act and consequently the adjudication by the District Judge under sub section
(4) of section 4 was quite competent.
Accordingly we dismiss the appeal, but do not think it necessary to make any order for costs relating thereto.
R.K.P.S. Appeal dismissed.
| IN-Abs | The sixth respondent granted various Pattas of his lands to his wife, to the appellant and others in November, 1944.
After the coming into force of the Andhra Pradesh (Andhra Area) Estates Communal, Forest and Private Lands (Prohibition of Alienation) Act, 1947, section 4(1) of which declared alienation of Communal or Forest Lands after October, 1939, to be void, a petition was filed in the District Court by two ryots for a declaration that the alienations in the present case were void and did not confer any rights on the alienees.
The District Judge allowed the petition holding that the lands in question were forest lands and the alienations were void.
Revision petitions filed before a Single Judge of the High Court were dismissed but in a Letters Patent Appeal it was held that the petitioners as ryots had no right to maintain the petition, and a reasonable opportunity had to be given to the State to get itself transposed as the petitioner.
The State Government was then transposed as the petitioner but thereafter the District Judge held that the petition was not maintainable by reason of the repeal of the Act of 1947 upon the passing of a subsequent Act namely the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948.
However, a revision petition against this order was allowed by the High Court which remitted the matter to the District Judge.
By a judgement in November, 1960 the District Judge allowed the were forest lands and there transfers were void.
Further revision petitions filed by the appellant and others were dismissed by the High Court.
In appeal to this Court it was contended inter alia on behalf of the appellant that (1) the Act of 1947 was a temporary Act and all proceedings thereunder came to an end with the implied repeal of the Act by Act XXVI of 1948; (2) a notification by the State Government describing the land as forest land was an essential pre requisite to the application of the Act; and (3) the Act applied only to lands which were admittedly forest lands and the operation thereof could not be extended to lands in respect of which there was a dispute as to the nature thereof.
It was argued that any such dispute could only be decided by the Settlement Officer and not by the District Judge.
HELD: Dismissing the appeal, (1) The purpose of the Act of 1947 was to prohibit the alienation of communal, forest and private lands in estates in the Province of Madras and the preamble to the Act shows that it was enacted to prevent indiscriminate alienation of such lands pending the enactment of legislation for acquiring the interest of landholders in such estates and introducing ryotwari settlement therein.
No fixed duration of the Act was specified 330 and it was impossible to hold that merely because of the contents of the preamble, the Act became a temporary Act or that it stood repealed by the enactment of the later Act of 1948 unless there were express words to that effect or unless there was a necessary implication.
It is not reason able to hold that the alienation of large blocks of land which were rendered void under the Act of 1947 became good by reason of the passing of the later Act.
[332 B] (2) The definition of "forest lands" in section 2(b) of the Act is an inclusive one and shows that 'forest land ' would include not only waste land containing trees, shrubs and pasture lands but also any other class of lands declared by Government to be forest land.
This does not mean that before a piece of land could be said to be forest land there would have to be a notification by the Government and that otherwise the application of the Act would be excluded.
[334 C] (3) Section 20(1) of the Act of 1948 as originally enacted was substituted for another by section 9 of the Madras Estates (Abolition and Conversion into Ryotwari) (Amendment) Act, 1956, which was to.
be deemed to have come into force on April 19, 1949 being the date on which the Act of 1948 originally came into force.
The section as it now stands did not confer any jurisdiction on the Settlement Officer to determine any question as to whether any land was forest within the meaning of the Act and consequently the adjudication by the District Judge under sub.
section (4) of
|
Appeals No. 723 of 1966.
Appeal by special leave from the judgment and order dated July 25, 26, 1964.
of the Gujarat High Court in Special Civil Application No. 31 of 1962.
336 R. H. Dhebar, Urmila Kapoor and section P. Nayar, for the appellant.
Purshottam Trikamdas and I. N. Shroff, for respondent No. 1.
N. section Bindra and K. L. Hathi, for respondent No. 3.
The Judgment of the Court was delivered by Sikri, J.
This appeal by special leave is directed against.
the judgment of the High Court of Gujarat (Vakil, J.) allowing the application filed by Patel Raghav Natha, respondent before us and hereinafter referred to as the petitioner, and quashing the order dated October 12, 1961, passed by the Commissioner, Rajkot Division.
The Commissioner by this order had set aside the order of the Collector, dated July 2, 1960, granting permission to the petitioner to use some land in Survey No. 417 for non agricultural purposes.
In order to appreciate the contentions raised before us it is necessary to set out a few facts.
The petitioner was a resident of the State of Rajkot and at an auction effected by the State, he acquired on or about September 22, 1938, agricultural land bearing survey No. 417 which in all measured about 12 acres and 12 ganthas.
After some acquisitions by the State out of this survey number he was left with 2 acres and 10 ganthas of agricultural land.
On October 20, 1958, the petitioner applied to the Collector for permission to convert this land to non agricultural use, under section 65 of the Bombay Land Revenue Code, 1879, hereinafter referred to as the Code.
This petition was first rejected by the Collector, but the Divisional Commissioner remanded the matter to the Collector.
On remand, the then Collector of Rajkot, after holding an enquiry, granted permission to the petitioner to use the land for non agricultural use by his order dated July 2, 1960.
Pursuant to this order a sanad was issued by the Collector to the petitioner on July 27, 1960.
It appears that the sanad was amended on November 3, 1960 and December 1, 1960.
The sanad was in form MI and a number of conditions were appended to the sanad.
Condition 6 of the main sanad provided that "save as herein provided, the grant shall be subject to the provisions of the said code." The special conditions originally included a condition that the land shall be used exclusively for constructing residential houses (condition 5) but this condition was altered in November 1960.
It appears that the Municipal Committee of Rajkot had ob jected to the grant of permission before the Collector when a sketch of the land was sent to the Municipality.
The objections as they appear from the order of the Collector granting the sanad were directed against the accuracy of the sketch, showing the 337 northern and tile western comers of the Ramkrishna Ashram, and regarding the boundaries and situation of the roads in survey Nos. 417 and 418.
The Collector had overruled these objections.
The Municipal Committee approached the Commissioner to exercise powers under section 211 of the Code.
The Commissioner noted the objections of the Municipality and after reciting the objections and the arguments of the learned counsel for the petitioner and after inspecting the site, observed : "From this inspection the contentions of the Municipality as to the existence of the various roads as well as the nature of the Kharaba land has been proved beyond doubt.
In light of the above arguments as well as the site inspection and the papers of the case, I set aside the order of the Collector granting N.A. Permission.
I consider, on weighing all evidence cited above, that the land does not belong to Shri Raghav Natha.
" It is this order which has been quashed by the High Court.
The following grounds were urged before the learned Judge (1) The Commissioner or the State Government had no authority under Section 211 of the Code to revise the order of the Collector so as to affect the agreement or sanad granted to him.
(2) The Commissioner 's order is not a speaking order as no reasons are given by him for setting aside the Collector 's order and, therefore, it should be quashed.
(3) The question of title to the land was not in controversy at all before the Collector and, therefore, it was not open to the Commissioner to permit the Municipality to agitate that question and the Commission had no jurisdiction to decide that question.
(4) In case the above points are not accepted, the order of the Commissioner is bad even on merits as the Commissioner had erred in law in allowing the question to be agitated before him which were not agitated before the Collector and which involved considerations which were completely foreign to those which were actually before the Collector.
While dealing with ground No. 1 the learned Judge held that the Commissioner had no jurisdiction to pass an order which would nullify the sanad, and that the sanad was binding on both the parties till it was set aside in due course of law.
On the second 338 ground he held that there was some force in the submission.
But he observed : "But at the same time if I had to decide this case on this contention raised, I may not have interfered only on this ground, with the decision of the Commissioner".
On the third ground he found that it was true that the question of title was agitated by the Municipal Committee for the first time before the Commissioner, though it was primarily for the petitioner to show that he was an occupant within the meaning of section 65 of the Code.
But then the learned Judge decided not to enter into the merits of the case as he had come to the clear conclusion that the Commissioner had no authority to pass the order that he did under section 211 of the Code.
The learned counsel for the State of Gujarat, Mr. Dhebar, challenges the decision of the High Court that the Commissioner had no jurisdiction to pass the order dated October 12, 1961.
The relevant provisions of the Code and the Land Revenue Rules, 1921, hereinafter referred to as the Rules, are as follows "The Bombay Land Revenue Code, 1879 48.
(1) The land revenue leviable on any land under the provisions of this Act shall be assessed, or shall be deemed to have been assessed, as the case may be, with reference to the use of the land (a) for the purpose of agriculture, (b) for the purpose of building, and (c) for a purpose other than agriculture or building.
(2) Where land assessed for use for any purpose is used for any other purpose, the assessment fixed under the provisions of this Act upon such land shall, notwithstanding that the term for which such assessment may have been fixed has not expired, be liable to be altered and fixed at a different rate by such authority and subject to such rules as the State Government may prescribe in this behalf.
(3) Where land held free of assessment on condition of being used for any purpose is used at any time for any other purpose, it shall be liable to assessment.
(4) The Collector or a survey officer may, subject to any rules made in this behalf under section 214, prohibit the use for certain purposes of any unalienated 339 land liable to the payment of land revenue, and may summarily evict any holder who uses or attempts to use the same for any such prohibited purpose.
An occupant of land assessed or held for the purpose of agriculture is entitled by himself, his servants, tenants, agents, or other legal representatives, to erect farm buildings, construct wells or tanks, or make any other improvements thereon for the better cultivation of the land, or its more convenient use for the purpose aforesaid.
But, if any occupant wishes to use his holding or any part thereof for any other purpose the Collector 's permission shall in the first place be applied for by the occupant.
The Collector, on receipt of such application, (a) shall send to the applicant a written acknowledgment of its receipt, and (b) may, after due inquiry, either grant or refuse the permission applied for : Provided that, where the Collector fails to inform the applicant of his decision on the application within a period of three months, the permission applied for shall be deemed to have been granted; such period shall, if the Collector sends a written acknowledgment with in seven days from the date of receipt of the application, be reckoned from the date of the acknowledgment, but in any other case it shall be reckoned from the date of receipt of the application.
Unless the Collector shall in particular instances otherwise direct, no such application shall be recognized except it be made by the occupant.
When any such land is thus permitted to be used for any purpose unconnected with agriculture it shall be lawful for the Collector, subject to the general order of the State Government, to require the payment of a fine in addition to any new assessment which may be leviable under the provisions of section 48.
If any such land be so used without the permission of the Collector being first obtained, or before the expiry of the period prescribed by section 65, the occupant and any tenant, or other person holding under or through him, shall be liable to be summarily evicted by the Collector from the land so used and from the entire 340 field or survey number of which it may form a part, and the occupant shall also be liable to pay, in addition to the new assessment which may be leviable under the provisions of section 48 for the period during which the said land has been so used, such fine as the Collector may, subject to the general orders of the Provincial Government, direct.
Any tenant of any occupant or any other person holding under or through an occupant, who shall without the occupant 's consent use any such land for any such purpose, and thereby render the said occupant liaable to the penalties aforesaid, shall be responsible to the said occupant in damages.
Nothing in the last two preceding sections shall prevent the granting of the permission aforesaid on such terms or conditions as may be prescribed by the Collector, subject to any rules Made in this behalf by the Provincial Government." "Land Revenue Rules, 1921 87. (a) Revision of non agricultural assessment (b) When land is used for non agricultural purposes is assessed under the provisions of rules 81 to 85, a sanad shall be granted in the Form M if the land is used for building purposes, in Form NI if the land is used temporarily for N A purposes other than building in Form N in all other cases.
Provided that if the land to be used for building purposes is situated within the limits of a municipal corporation constituted under the Bombay Municipal Corporation Act or the Bombay Provincial Municipal Corporation Act, 1949 the Sanad shall be granted in Form M 1;. .
The relevant extracts from the agreement (sanad) are given below : Whereas application has been made to the Collector (hereinafter referred to as 'the Collector ' which expression shall include any officer whom the Collector shall appoint to exercise and perform his powers and duties under this grant) under section 65 of the Bom bay Land Revenue Code 1879 (hereinafter referred to as 'the said Code ' which expression shall where the context so admits include the rules and orders thereunder) by inhabitant of Madhya Saurashtra being the registered occupant of survey No. 417 in the village of 341 in the Taluka (hereinafter referred to as 'the applicant ' which expression shall where the context so admits include his heirs, executors, administrators and assigns) for permission to use for building purposes the plot of land (hereinafter referred to as the 'said plot '), described in the first schedule hereto and indicated by the letters. on the site plan annexed hereto, forming part of survey No. 417 and measuring acres 2 gunthas 17, be the same a little more or less.
When used under rule 51 for land already occupied for agricultural purposes within certain surveyed cities the period for which the assessment is leviable will be ordered to coincide with the expiry of 99 years ' period running in that city.
Now this is to certify that permission to use for building purposes, the said plot is hereby granted subject to the provisions of the said code, and on the following conditions, namely : (1) Assessment. (6) Code provisions applicable ': Save except as herein provided, the grant shall be subject to the provisions of this code In witness whereof the Collector of has set his hand and the seal of his office on behalf of the Governor of Bombay, and the applicant has also here unto set his hand, this day the of 19 .
Signature of Applicant Signature and designations of witnesses Signature of Collector Signature and designations of witnesses We declare that who has signed this notice is, to our personal knowledge, the person he represents himself to be, and that he has affixed his signature hereunto in our presence.
" It will be noticed that application is made under section 65 of the Code and it is under section 65 that the Collector either grants or refuses the permission applied for.
It will be further noticed that if the Collector fails to inform the applicant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted, but if the Collector sends a written acknowledgment within seven days from the date of receipt of the application then the three months period is reckoned from the date of acknowledgment, and in other cases this period is reckoned from the date of receipt of the supCI/69 8 342 application.
The Collector having given permission under section 65 he can prescribe conditions under section 67 of the Code.
Under section 48(2) where the land assessed for use, say for agricultural purposes, is used for industrial purposes, the assessment is liable to be altered and fixed at a different rate by such authority and subject to such rules as the State Government may prescribe in this behalf.
The rates for non agricultural assessment are fixed under rr. 81, 82, 82A, 82AA, 84 and 85 of the Rules.
Rule 87(b) provides that where land is assessed under the provisions of rr.
81 to 85, a sanad shall be granted.
Under the proviso to r. 87 (b) it is obligatory for the sanad to be granted in form MI.
Relying on Shri Mithoo Shahani vs Union of India(1) the learned counsel contends that there is a distinction between an order granting permission under section 65 and the agreement contained in the sanad which is issued under, r. 87 (b).
He urges that even if the sanad may not be revisable under section 211 of the Code, the order granting permission under section 65 is revisable under section 21 1, and if this order is revised the sanad falls along with the order.
We need not give our views on this alleged distinction for two reasons; first, that this point was not debated before the High Court in this case or in earlier cases**, and secondly, because we have come to the conclusion that the order of the Commissioner must be quashed on other grounds.
Section 211 reads thus "211.
The State Government and any revenue officer, not inferior in rank to an Assistant or Deputy Collector or a Superintendent of Survey, in their respective departments, may call for and examine the record of any inquiry or the proceedings of any subordinate revenue officer, for the purpose of satisfying itself or himself, as the case may be, as to the legality or property of any decision or order passed, and as to the regularity of the proceedings of such officer.
The following officers may in the same manner call for and examine the proceedings of any officer subordinate (1) ; (1) The Government of the Province of Bombay vs Hormusji Manekji (1940) Letters Patent Appeal No. 40 of 1938, decided on August 8, 1940.
(2) The Government of Bombay vs Mathurdas Laljibhai Gandhi 44 B.L.R. 405.
(3) The State of Bombay vs Chhaganlal Gangaram Lavar 56 B.L.R. 1084.
(4) Government of Bombay vs Ahmedabad sarangpur mills Co. A.I.R. (5) Secretary of State vs Anant Nulkar 36 B.L.R. 242 (P.C.) (6) Province of Bombay vs Hormusji Manekji 50 B.L.R. 524 (P.C.).
343 to them in any matter in which neither a formal nor a summary inquiry has been held, namely,. a Mam latdar, a Mahalkari, an Assistant Superintendent of Survey and an Assistant Settlement Officer.
If in any case it shall appear to the State Government or to such officer aforesaid that any decision or order or proceedings so called for should be modified, annulled or reversed, it or he may pass such order thereon as it or he deems fit; Provided that an Assistant or Deputy Collector shall not himself pass such order in any matter in which a formal inquiry has been held, but shall submit the record with his opinion to the Collector, who shall pass such order thereon as he may deem fit.
" The question arises whether the Commissioner can revise an order made under section 65 at any time.
It is true that there is no period of limitation prescribed under section 211, but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised.
It seems to us that section 65 itself indicates the length of the reasonable time within which the Commissioner must act under, section 21 1.
Under section 65 of the Code if the Collector does not inform the applicant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted.
This section shows that a period of three months is considered ample for the Collector to make up his mind and beyond that the legislature thinks that the matter is so urgent that permission shall be deemed to have been granted.
Reading sections 211 and 65 together it seems to us that the Commissioner must exercise his revisional powers within a few months of the order of the Collector.
This is reasonable time because after the grant of the permission for building purposes the occupant is likely to spend money on starting building operations at least within a few months from the date of the permission.
In this case the Commissioner set aside the order of the 'Collector on October 12, 1961, i.e. more than a year after the order, and it seems to us that this order was passed too late.
We are also of the opinion that the order of the Commis sioner should be quashed on the ground that he did not give any reasons for his conclusions.
We have already extracted the passage above which shows that after reciting the various contentions he badly stated his conclusions without disclosing 344 his reasons.
In a matter of this kind the Commissioner should indicate his reasons, however, briefly, so that an aggrieved party may carry the matter further if so advised.
We are also of the opinion that the Commissioner should not have gone into the question of title.
It seems to us that when the title of an occupant is disputed by any party before the Collector or the Commissioner and the dispute is serious the appropriate course for the Collector or the Commissioner would be to refer the parties to a competent court and not to decide the question of title himself against the occupant.
In the result the appeal is dismissed with costs.
V.P.S. Appeal dismissed.
| IN-Abs | The respondent, who was an occupant of agricultural land applied to the Collector, under section 65 of the Bombay Land Revenue Code, 1879, for permission to convert the land to non agricultural use.
The Collector gave the permission in July 1960 on condition that the land shall be used exclusively for constructing residential houses.
The Municipal Committee, which had objected to the grant of permission before the Collector, moved the Commissioner for exercising his powers under section 211 of the Code.
The Commissioner, in October, 1961, passed an order in which, after reciting the objections of the Municipality and the arguments of counsel he boldly stated his conclusion that the land did not belong to the respondent and set aside the Collector 's order without giving any reasons.
The Com missioner 's order was quashed by the High Court on the ground that the Commissioner had no authority to pass the order under section 211 of the Code.
In appeal to this Court, HELD : The Commissioner 's order was rightly quashed.
(a) Under section 65 of the Code, if the Collector does not inform an applicant of his decision on the application, within a period of 3 months, the permission applied for shall be deemed to have been granted Though no such period is prescribed by section 211, reading the two sections together it must be held that the Commissioner also must exercise his revisional powers within a reasonable time of the Collector 's order.
What is reasonable would depend on the facts of the case.
In the case when the permission is for building purposes, the Commissioner should exercise his power within a few months of the Collector 's order, because, after the grant of the permission the occupant is likely to spend money on building operations within a few months of the date of permission.
Since the order of the Commissioner in the present case was passed more than a year after the Collector 's order, the order should be set aside.
[343 E H] (b) The order should also be quashed on the ground that the Commissioner had not given any reasons for his conclusions.
[343 H] (c) The Commissioner also erred in going into the question of title, because, when there was a serious dispute regarding title, he should have referred the parties to a competent court and not decide it himself.
[344 D]
|
Appeal No. 1020 of 1966.
Appeal by special leave from the judgment and order dated October 28, 1965 of the Allahabad High Court, Lucknow Bench in Second Appeal No. 356 of 1964.
R. K. Garg and D. P. Singh, for the appellant.
section section Shukla, for respondent No. 1.
The Judgment of the Court was delivered by Mitter, J.
The only question in this appeal by special leave is, whether there was a violation of Rule 7 of the United Provinces Legislative Department Rules in the appointment of the first respondent, section N. Dixit, as the Superintendent in the Legislative Assembly of the State of Uttar Pradesh in preference to the appellant.
The facts are as follows.
The appellant was appointed as an Upper Division Assistant (formerly known as superior service assistant) in the Legislative Assembly Secretariat Uttar Pradesh in 1954 on the result of a competitive examination held by the Public Service Commission of the State.
He was confirmed in the post of Upper Division Assistant with effect from June 16, 1955.
In September 1961 a vacancy occurred in the post of a Superintendent in the Legislative Assembly Secretariat.
The first respondent was working as a Treasurer in the same office.
According to the appellant, one Uma Shanker was the senior Upper Division Assistant and he was immediately after Uma Shanker in order of seniority.
In view of the fact that Uma Shanker had not put in the minimum period of ten years ' service as Upper Division Assistant the Speaker of the Assembly did not think it fit to appoint him as Superintendent but he ignored the appellant 's claim to the post after Uma Shanker and appointed Dixit in violation of the mandatory provisions of Rule 7.
The said Rule reads : "Recruitment to the post of the Superintendent shall be made by promotion from the grade of superior service assistants in the Council Department.
While due regard will be paid to seniority, no assistant will be appointed to the post of Superintendent unless he is considered qualified in all respects to perform the duties of a Superintendent and full authority will be reserved to appoint the assistant most fitted for the post.
If, 423 however, no suitable assistant is available for promotion from amongst the grade of superior service assistants in the Council Department, recruitment may, as a special case, be made from outside.
" The appellant filed a suit in the court of the Munsif of South Lucknow impleading the State of Uttar Pradesh, the Speaker, Legislative Assembly of the State and Dixit as defendants therein and praying for a decree for declaration that he should be deemed entitled to the post of Superintendent in the Legislative Assembly with effect from 1st January 1962 and a further declaration that the order dated October 7, 1961 appointing defendant No. 3 as Superintendent was illegal and ultra vires.
Written statements were filed on behalf of the defendants.
The learned Munsif held in the,plaintiff 's favour.
His judgment was upheld in appeal by the Civil Judge Lucknow.
The same was reversed in Second Appeal to the High Court.
The order of the Speaker passed in October 1961 shows that he had considered the matter carefully before appointing Dixit to the post.
The contention of learned counsel for the appellant was 'that the post could not be given to a person who was not a superior service Assistant and the "grade of superior service assistants in the Council Department" meant and included only those persons whose names were borne on the roll of Upper Division Assistants.
exhibit 10 the gradation list of permanent ministerial establishment of the Uttar Pradesh Legislative Assembly Secretariat as it stood in April 1956 shows.
that the scales of pay of Upper Division Assistants, Translators, Reference Clerk, Treasurers, Stenographer to Secretary and Assistant Librarian were the same, namely, Rs. 160 15 280 EB 20 400.
By an order of the Governor dated March 16, 1959 efficiency bars in the scales of pay of all the above posts were uniformly altered and fixed at Rs. 220 and Rs. 300.
The High Court took the view that 'grade ' in R. 7 was suggestive of status and it did not refer to a class or a particular class.
According to the High Court "All officials working in the same scale of pay in a department, although holding posts with different desig nations, shall be deemed to be holding posts in the same grade, because their rank in the same.
department will be the same and equal to one another.
" The High Court noted that the dictionary meaning of "grade" was 'rank ' position in scale, a class or position in a class according to the value. ' In our view the High Court came to the correct conclusion in holding that the post was a selection post and seniority by itself was not a sufficient qualification for promotion.
The Speaker had to take into consideration the claims of Senior.
424 Upper Division Assistants but under the rules his choice was not limited to the Upper Division Assistants.
He could consider the claims of others who were in the same grade, that is to say, enjoying the same scales of pay and pick out the person considered by him to be qualified in all respects to perform the duties of a Superintendent.
All officials of the Legislative Assembly Secretariat holding posts in the same scale of pay as Upper Division Assistants were eligible for promotion to the post of the Superintendent Counsel argued that this would be an unreasonable interpre tation of the rule for in that case even a book binder or a chauffeur would have to be considered if their scales of pay were the same as those of Upper Division Assistants.
We do not think that anyone would place such an absurd construction on the rule.
The appointing authority had to consider not only the eligibility based on the grade (assuming that the rules unreasonably place a chauffeur, a book binder, an accountant and a special duty clerk in the same grade) but also the qualification of the person appointed to perform the duties of the Superintendent and a book binder or a chauffeur would certainly not be eligible for ,consideration.
It was said that the educational qualification of the appellant was much superior to that of Dixit and while the appellant had joined service by passing a competitive examination held by the Public Service Commission the first respondent had failed to pass such a test.
These are matters on which we can express no opinion.
As noted already, the Appointment was made after a thorough scrutiny of representations received and after consideration of the recommendation made by the Secretary ,of the Legislative Department.
In the result the appeal is dismissed, but we make no order as to costs.
G.C. Appeal dismissed.
| IN-Abs | According to r. 7 of the United Provinces Legislative Department Rules recruitment to the post of Superintendent shall be made by promotion from 'the grade of superior service assistants in the Council Department '.
While regard was to be shown to seniority full authority was reserved to appoint the assistant most fitted for the post and when no suitable assistant was available recruitment might be made from outside.
The appellant entered the service of the U.P. Legislative Assembly in 1954 through a competitive examination held by that Public Service Commission of the State.
In 1955 he was confirmed in the post of Upper Division Assistant.
In September, 1961 a vacancy occurred in the post of a Superintendent in the Legislative Assembly Secretariat.
The first respondent who was working as a Treasurer in the same office in the same scale of pay as the appellant was appointed to the said post by the Speaker of the Assembly.
Being aggrieved by the rejection of his claim as the senior qualified superior service assistant the appellant filed a suit in the court of the Munsif.
The Munsif decreed the suit in his favour but the District Judge in first appeal and the High Court in second appeal decided against him.
According to the view taken by the High Court the word 'grade ' in r. 7 meant the scale of pay, and therefore all persons on the same scale of pay as a superior service assistant were qualified for the post of Superintendent in whichever department and under whatever designation they might be working.
In appeal by special leave before this court, HELD : The post of Superintendent was a selection post and seniority by itself was not a sufficient qualification.
The Speaker had taken into consideration the claims of the senior Upper Division Assistants but under the rules his choice was not limited to the Upper Division Assistants.
He could consider the claims of others who were in the same grade, that is to say, enjoying the same scale of pay and pick out the person considered by him to be qualified in all respects to perform the duties of a Superintendent.
The High Court bad rightly held that all officials of the U.P. Legislative Assembly Secretariat holding posts in the same scale of pay as Upper Division Assistants were eligible for promotion to the post of Superintendent.
[423H 424B] The danger that on the above interpretation persons like book binders and chauffeurs, if they were getting a salary in the game grade as the senior service assistants would be eligible for the post, was imaginary, for in making appointment to a selection post the qualifications of a person would certainly have to be considered.
[424D] The fact that the appellant entered service through a competitive examination while the respondent had failed to pass such a test was not one SupCI/69 13 422 which could be taken into consideration by this Court because the appointment was made after thorough scrutiny of representations received and after consideration of the recommendation made by the Secretary of the Legislative Department.
[424E]
|
Civil Appeal No. 556 of 1966.
283 Appeal by special leave from the order dated August 13, 1964 of the Industrial Tribunal, Andhra Pradesh in Industrial Dispute No. 41 of 1963.
M.K. Ramamurthi, Shyamala Pappu and Vineet Kumar, for the appellants.
K. Srinivasamurthy and Naunit Lal, for the respondent.
The Judgment of the Court was delivered by Bhargava, J.
This appeal, by special leave, has arisen out of an award made 'by the Industrial Tribunal, Andhra Pradesh, at Hyderabad in an industrial dispute between the respondent, the Imperial Tobacco Co., as well as exporting the tobacco to various (hereinafter referred to as "the Company"), and its workmen.
Admittedly, the Company is an associate of the Imperial Tobacco Company Ltd., and the main business carried on by the Company is that of purchasing tobacco of all varieties and qualities, stemming, grading and packing of tobacco and supplying it to the Imperial Tobacco Co., as well as exporting the tobacco to various foreign countries in the world.
The Company has been carrying on this business for about 40 years and handles almost 35 per cent of the tobacco grown in the State of Andhra Pradesh.
For the work of stemming, grading and packing tobacco, the Company has two factories, one at Anaparty in East Godavari District, and the other at Chirala in Guntur District.
In connection with this business, the Company, in the year 1962, was maintaining 21 depots where, according to the workmen, the appellants, the Company was carrying on the work of collecting tobacco, though the Company 's case was that the principal work done at these depots was that of handling the tobacco purchased at other places and only included the work of purchasing tobacco on a small scale.
On 16th August, 1963, the Company gave a notice to the Union of the appellant workmen that 8 out of 21 depots mentioned therein would be closed down with effect from 30th September, 1963.
Thereafter, an industrial dispute was raised by the workmen which related to the closure of these 8 depots, as well as to a number of other demands, including revision of basic wages and dearness allowance, additional discomfort allowance, etc.
The State Government, by its Order dated 14th November, 1963, referred the dispute for adjudication under section 10(1)(d) of the to the Industrial Tribunal, Hyderabad.
The first issue which was referred for adjudication, was as follows : "How far the demands of the union, viz., (i) that no depot which worked during 1962 season should.
be closed, and (ii) that no workman who worked in 1962 season 'should be retrenched, are justified ?" 284 There were ten other issues, but we need not reproduce them, as we are not concerned with them in this appeal.
In the proceedings for adjudication, the Company took a preliminary objection that the closure the depots was a managerial function, that there could not be an industrial dispute over such closure, that the Government, therefore, had no power to refer this issue for adjudication, and that the Tribunal also had no power to adjudicate on it.
Thereupon, the Tribunal framed a .preliminary issue as to "whether the employer is justified in alleging that Issue No. 1 framed by the Government cannot be deemed to relate to an industrial dispute, and as such, whether the Government had the power to refer it for adjudication".
The Tribunal decided this preliminary issue by giving an interim award on the 13th August, 1964.
The preliminary objection was allowed and a further direction was made that the effect of this decision on Issue No. 1 will be decided later after hearing the parties, There,after, the Tribunal proceeded to hear the reference on this question as well as on all other issues referred to it and ', ultimately, gave its award on 11th December, 1964.
In that award, both the parts of issue No. 1 were decided against the workmen.
The workmen have now come up in this appeal against the interim award dated 13th August, 1964 as well as against the final award insofar as it relates to issue No. 1.
The decision given by the Tribunal in the interim award, holding that the reference covered by issue No. 1 was not competent, has been challenged by learned counsel for the appellants on the ground that the closure of a depot does not amount to closure of business in law and, since the same business was continued by the Company at at least 13 other depots, the closure of the 8th depots in question was unjustified.
For the proposition that the closure of the depots did not amount to closure of business, learned counsel rolled on the views expressed by this Court in Pipraich Sugar Mills Ltd. vs Pipraich Sugar Mills Mazdoor Union(1), where the Court explained the reason for the decision given by the Labour Appellate Tribunal in the case of Employees of Messrs India Reconstruction Corporation Limited, Calcutta vs Messrs. India Reconstruction Corporation Ltd., Calcutta(2).
It, however, appears to us that this question raised on behalf of the appellants is totally immaterial insofar as.
the question of the jurisdiction of the Tribunal to decide the first part of issue No. 1 is concerned.
The closure of the 8 depots by the Company, even if it is held not to amount to closure of business of the Company, cannot be interfered with by an Industrial Tribunal if, in fact, that closure was genuine and real.
The closure may be treated as stoppage of part of the activity or business of the Company.
Such stoppage of part of a (1) (2) 63.
285 business is an act of management which is entirely in the discretion of the Company carrying on the business.
No Industrial Tribunal, even in a reference under section 10(1)(d) of the , can interfere with discretion exercised in such a matter and can have any power to direct a Company to continue a part of the business which the Company has decided to shut down.
We cannot possibly accept the submission made on behalf of the appellants that a Tribunal under the has power to issue orders directing a Company to reopen a closed depot or branch, if the Company, in fact, closes it down.
An example may be taken of a case where a Bank with its headquarters in one place and a number of branches at different places decides to close down one of the branches at one of those places where it is functioning.
We cannot see how, in such a case, if the employees of that particular branch raise an industrial dispute, the Bank can be directed by the Industrial Tribunal to continue to run that branch.
It is for the Bank to decide whether the business of the branch should be continued or not, and No. Bank can be compelled to continue a branch which it considers undesirable to do.
In these circumstances, it is clear that the demand contained in the first part of Issue No. 1 was beyond the powers and jurisdiction of the Industrial Tribunal and was incorrectly referred.
for adjudication to it by the State Government.
of course, if a Company closes down a branch or a depot, the question can always arise as to the relief to which the workmen of that branch or depot are entitled and, if such a question arises and becomes the subject matter of an industrial dispute, an Industrial Tribunal will be fully competent to adjudicate on it.
It is unfortunate that, in this case, when dealing with the preliminary issue, the Tribunal expressed its decision in the interim award in general words holding that Issue No. 1 as a whole was beyond its jurisdiction.
If the reasoning in the interim award is taken into account, it is dear that the Tribunal on that reasoning only came to the conclusion that it was not competent to direct reopening of the 8 depots which had been closed, so.
that the Tribunal should have held that the first part of Issue No. 1 only was outside its jurisdiction.
So far as the second part of that issue is concerned, as we have said above, it was competent for the Tribunal to go into it and decide whether the claim of the workmen that they should not be retrenched was justified.
On an examination of the interim award and the final award, we, however, find that the Tribunal in fact did (1) 286 do so.
The case reported in Pipraich Sugar Mills Ltd.(1) was also concerned only with the question as to the relief that can be granted to workmen when there is closure of a business.
No question arose either before the Court, or in the cases considered by the Court, of an Industrial Tribunal making a direction to the employers to continue to run or to reopen a closed branch of the business.
The Labour Appellate Tribunal in the case of Employees of Messrs India Reconstruction Corporation Ltd., Calcutta(1) was dealing with the question of retrenchment compensation as a result of the closure of one of the units of the company concerned, and it held that the workmen were entitled to retrenchment compensation in accordance with law.
This Court, in the case of Pipraich Sugar Mills Ltd. (2), only explained why the Labour Appellate Tribunal was justified in granting retrenchment compensation in that case.
The opinion expressed by the Court was that, though there is discharge of workmen both when there is retrenchment and closure of business, the compensation is to be awarded under the law no.t for discharge as such but for discharge on retrenchment and if, as is conceded, retrenchment means in ordinary parlance discharge of the surplus, it cannot include discharge on closure of business.
It was in this context that the Court went on to add that in the case of Employees of M/s. India Reconstruction Corporation Ltd., Calcutta (1 ) what had happened was that one of the units of the Company had been closed which would be a case of retrenchment and not a case of closure of business.
It may be noted that, at the time when this decision was given, section 25FF and section 25FFF had not been introduced in the , and the only right to retrenchment compensation granted to the workmen was conferred by section 25F.
It was in the light of the law then prevailing that the Court felt that the decision of the Labour Appellate Tribunal in the case of Employees of M/s. India Reconstruction Corporation Lid(1) granting retrenchment compensation.
could be justified on the ground that the services of the workmen had not been dispensed with as a result of closure cf business, but as a result of retrenchment.
That question does not arise in the case before us.
Since then, as we have indicated above, section 25FF and section 25FFF have been added in the , and the latter section specifically lays down what rights a workman has when an undertaking is closed down.
In a case where a dispute may arise as to whether workmen discharged are entitled to compensation under section 25F of section 25FFF it may become necessary decide Whether the closure, as a result of which the services have been dispensed with, amounts to a closure in law or not.
In the case before us, it was admitted by 1earned counsel for both parties that the workmen, who have been discharged as a result of the closure of the 8 depots (1) (2) 287 of the Company, have all been paid retrenchment compensation at the higher rate laid down in section 25F, so that, in this case, it is not necessary to decide the point raised on 'behalf of the workmen.
In connection with the second part of issue No. 1, it was also urged by learned counsel for the appellants that the business, which was being carried on at the 8 depots, had not in fact been closed down and had merely been transferred to buying points situated in and around the closed depots, including two new buying points established by the Company after the closure of these 8 depots.
The argument was that the workmen were old employees who had served the Company for a long time and were entitled to certain benefits as a result of that long service.
The Company closed these 8 depots mala fide with the object of depriving the workmen of those benefits.
and merely altered the nature of the business by closing the depots and carrying on the stone business at the buying points.
This point urged by learned counsel cannot, however, be accepted in view of the findings of fact recorded by the Tribunal.
The Tribunal examined in detail the allegations made on behalf of the workmen in this respect.
In fact, the interim award mentions that, for the purpose of deciding the preliminary issue and the first issue, evidence was recorded by the Tribunal for more than a week and arguments of Advocates of the parties were heard for even a longer period.
After examining the evidence, the Tribunal came to the conclusion that the stoppage of the work at the depots was genuine and that the work which was being carried on at the depots had not been transferred to the buying points established by the Company.
The closure of the business at the depots was necessitated by reasons of expediency inasmuch as the Company had to reduce its purchases in its quest for quality and its 'desire to run the business economically.
The principal work, which used to be done at the depots, was not that of purchasing tobacco, but of handling it and that work was not transferred at all to, any buying point.
The Tribunal, thus, came to the finding that the closure of these depots was real and genuine and that the suggestion of the appellants that only a device was adopted of carrying on the same business in a different manner had no force at all.
if the same business had been continued, though under a different guise, the claim of the workmen not to be retrenched could possibly be considered by the Tribunal; but, on the finding that there was a genuine closure of the business that used to be carried on at the depots, no question could arise of the retrenchment being set aside by the Tribunal.
The Tribunal could not ask the Company to re employ or reinstate the workmen, because there was no business for which the workmen could be required.
In these circumstances all that the workmen 288 could claim was compensation for loss of their service and in that respect, as we have indicated above, the workmen have received adequate compensation.
Consequently, the appeal has no force and is dismissed but we make no order as to.
costs.
V.P.S. Appeal dismissed.
L2 S.C.I./69 2,500 6 I 70 GIPF.
| IN-Abs | The respondent was carrying on the business of purchasing, handling and selling tobacco.
In 1962, it was maintaining 21 depots where the principal work was handling tobacco and the work of purchasing was done on a small scale.
In 1963, it gave notice that 8 out of the 21 depots would be closed down.
An industrial dispute was raised by the workmen and the demands off the workmen, namely: (1) that no depot worked during 1962 should be closed; and (2) no workman who worked in 1962 should be retrenched, were referred to the Industrial Tribunal.
The Tribunal held that the stoppage of work at the 8 depots and the closure was genuine and real, that there was no transfer of the work that was being carried on at those depots to other buying points established by the respondent, and repelled the suggestion of the appellants that it was a mala fide device adopted for carrying on the same business in a different manner, and decided both the issues against the workmen.
In appeal to this Court, HELD ': (1) A genuine closure of depots or branches, even though it did not amount to.
closure of the business could not be interfered with by an Industrial Tribunal, and therefore, the issue was incorrectly referred by the Government for adjudication by the Tribunal.
The closure is stoppage of p.art of the activity or business of the respondent.
Such stoppage is an act of management which is entirely in the discretion of the respondent and n0.
Industrial Tribunal can interfere with the discretion exercised in such a matter, or can have the power to direct the respondent to continue a part of the 'business which it had decided to shut down.
or direct it to reopen a closed depot or branch.
[284 G H; 285 A C] (2) On that finding, no question could arise of the retrenchment being set aside by the Tribunal, because, there was no business for which the workmen would be required.
All that the workmen could claim was compensation for loss of the service, and, in a case where a dispute may arise as to whether workmen discharged are entitled t0 compensation under section 25F or section 25FFF, of the , it may become necessary to decide whether the closure amounts to closure in law or not.
But, in the present case, the workmen have all been paid retrenchment compensation at the higher rate laid down in section 25F and therefore, received adequate compensation.
[287 F H; 288 A]
|
Appeal No. 712 of 1966.
Appeal by special leave from the order dated July 27, 1964 of the Madhya Pradesh High Court in Misc.
Petition No. 272 of 1964.
section C .
Chaturvedi, K. Mehta and M. V. Goswami, for the appellant.
I. N. Shroff, for the respondent.
The Judgment of the Court was delivered by Bachawat, J.
The appellant was a temporary Civil Judge in Madhya Pradesh.
On March 14, 1961 an order was issued in the name of the Governor of Madhya Pradesh State that the appellant "is appointed temporarily, until further orders, as Civil Judge", Rule 12 of the Madhya Pradesh Government Servants (Temporary and Quasi permanent Service) Rules, 1960 provided: 12(a) Subject to any provision contained in the order of appointment or in any agreement between the gov 474 ernment and the temporary government servant, the service of a temporary government servant who is not in quasi permanent service shall be liable to termination at any time by notice in writing given either by the government servant to the appointing authority or by the ap pointing authority to the Government servant; Provided that the services of any such government servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances for the period of the notice, or as the case may be, for the period by which such notice falls short of one month or any agreed longer period Provided further that the payment of allowances shall be subject to the conditions under which such allowances are admissible.
(b) The periods of such notice shall be one month unless otherwise agreed between the Government and the Government servant.
" On March 25, 1964 an order was issued by and in the name of the Governor terminating the appellant 's services.
The order stated : "The service of Shri Ram Gopal Chaturvedi, temporary Civil Judge, Waidhan, are terminated with effect from the 1st June 1964, forenoon." The appellant filed a writ petition in the Madhya Pradesh High Court for quashing the order dated March 25, 1964.
The High Court summarily dismissed the petition.
It held that the impugned order was not by way of punishment and that the appellant 's services were liable to be terminated under the aforesaid rule 12 on one month 's notice.
The appellant has filed the present appeal after obtaining special leave.
The appellant was a temporary government servant and was not in quasi permanent service.
His services could be terminated on one month 's notice under r. 12.
There was no provision in the order of appointment or in any agreement that his services could not be so terminated.
Counsel for the appellant submitted that rule 12 was uncon stitutional as it was framed without consulting the State Public Service Commission and the High Court.
The contention raises mixed questions of law and fact.
It was not raised in the High 475 Court, and we indicated in the course of arguments that the appellant could not be allowed to raise it in this Court for the first time.
Counsel next submitted that rule 12 was violative of articles 14 and 16 of the Constitution.
There is no merit in this contention.
Rule 12 applies to all temporary government servants who are not in quasi permanent service. 'All such government servants are treated alike.
The argument that rule 12 confers an arbitrary and unguided discretion is devoid of any merit.
The services of a temporary government servant may be terminated on one month 's notice whenever the government thinks it necessary or expedient to do so for administrative reasons.
It is impossible to define before hand all the circumstances in which the discretion can be exercised.
The discretion was necessarily left to the gov ernment.
It was argued that the appellant 's services could not be terminated on one month 's notice as (a) his confirmation was recommended by the High Court after the expiry of the probationary period and (b) the advertisement dated September 9, 1960 inviting applications for the temporary posts (if civil judges did not specifically mentioned that their services could be so terminated.
The point that the High Court had recommended the appellant 's confirmation was not raised in the High Court and cannot be allowed to be, raised in this Court for the first time.
The appellant 's services were subject to the relevant rules and could be terminated on one month 's notice under rule 12.
It is immaterial that the advertisement did not specifically mentioned that his services could be so terminated.
It was argued that the impugned order was invalid as it was passed without consulting the State Public Service Commission under article 320(2)(c) of the Constitution.
There is no merit in this contention.
The case of State of U.P. vs M. L. Srivastava(1) decided that the provisions of article 320(3)(c) were not mandatory and did not confer any rights on the public servant and that the absence of consultation with the State Public Service Commission did not afford him a cause of action.
It was next argued that the impugned order was passed by way of punishment without giving the appellant an opportunity to show cause against the proposed action and was therefore violative of article 311 of the Constitution.
In this connection, counsel It for the appellant drew our attention to the statement of case filed on behalf of the respondent.
It appears that there were complaints (1) ; 476 that the appellant was associating with a young girl named Miss Laxmi Surve against the wishes of her father and other members of her family.
The Chief Justice of Madhya Pradesh made inquiries into the matter and on February 19, 1954 he admonished the appellant for this disreputable conduct.
On his return to Jabalpur on February 28, 1964 the Chief Justice dictated the following note: "During my recent visit to Gwalior, I probed into the matter of Shri R. G. Chaturvedi, Special Magistrate (Motor Venicles), Gwalior, giving shelter to a girl named Kumari Laxmi Surve, the daughter of a Chowkidar employed in the J. C. Mills Gwalior.
The enquiry made by me revealed that Shri Chaturvedi has been associating with this girl for over a year and his relations with her are not at all innocent.
He is sheltering and supporting Miss Surve against the wishes of her father and other members of her family.
This is evi dent from the fact that on 14th December 1963, when the girl was at the residence of Shri Chaturvedi and when her younger brother came to take her back, his house was stormed by a mob of 300 to 400 persons.
A report of this incident was also recorded in the Roz namcha Am of Lashkar Kotwali.
The statement published by Miss Surve in some newspapers published from Gwalior explaining his action and her relation with her parents is significant.
In that statement Miss Surve gave her address as 'C/o.
Shri Chaturvedi.
That the statement is one inspired by Shri Chaturvedi is obvious enough.
Shri Chaturvedi is still maintaining the girl.
Shri Chaturvedi did not enjoy good reputation at Morena and Kolaras where he was posted before his posting at Gwalior.
Shri Bajpai, District Judge, Gwalior, also informed me that Shri Chaturvedi was not honest and that in collaboration with the Traffic Inspector he has taken money from accused persons in many cases under the Motor Vehicles Act." No charge sheet was served on the appellant nor was any departmental inquiry held against him.
On March 1O, 1964 the Madhya Pradesh High Court passed a resolution that the State Government should terminate the appellant 's services.
Having regard to this resolution the State Government passed the impugned order dated March 25, 1964.
On the face of it, the order did not cast any stigma on the appellant 's character or integrity nor did it visit him with any evil consequences.
It was not passed by way of punishment and the provisions of article 311 were not attracted.
477 It was immaterial that the order was preceded by an informal inquiry into the appellant 's conduct with a view to ascertain whether he should be retained in service.
As was pointed out in The State of Punjab vs Sukh Raj Bahadur(1) : "An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution.
" It was next argued that the impugned order was in violation of the principles of natural justice and in this connection reliance was placed on the decision of this Court in State of Orissa vs Dr. (Miss) Binapani Dei & Ors.(2) and Ridge vs Baldwin(3).
In Binapani 's Case the appellant was an assistant surgeon in the Orissa medical service.
The State government accepted the date of birth given by her on joining the service.
Later the government refixed the date of her birth on ex parte inquiry and passed an order compulsorily retiring her.
The Court held that its order was invalid and was liable to be quashed.
The appellant as the holder of an office in the medical service had the right to continue in service.
According to the rules made under article 309 she could not be removed from the office before superannuation except for good and sufficient reasons.
The ex parte order was in derogation of her vested rights and could not be passed without giving her an opportunity of being heard.
In the present case, the impugned order did not deprive the appellant of any vested right.
The appellant was a temporary government servant and had no right to hold the office.
The State government had the right to terminate his services under rule 12 without issuing any notice to the appellant to show cause against the proposed action.
In Ridge vs Baldwin(3) the House of Lords by majority held that the order of dismissal of a chief constable on the ground of neglect of duty without informing him of the charge made against him and giving him an opportunity of being heard was in contravention of the principles of natural justice and was liable to be quashed.
Section 191 of the Municipal Corporations Act, 1882 provided that the watch committee might at any time suspend and dismiss any borough constable whom they thought negligent in the discharge of his duty or otherwise unfit for the same.
The chief constable had the right to hold his office and before depriving him of this right the watch committee was required to conform to the principles of natural justice.
The order of dismissal visited him with the loss of office and involved an element of punishment for the offences committed.
In the present case, the impugned order (1) ; (2) ; (3) ; 478 did not involve any element of punishment nor did it deprive the appellant of any vested right to any office.
It was next argued that the State Government blindly followed the recommendations of the High Court.
We find no merit in this argument.
The State government properly followed those recommendations.
The High Court is vested with the control over the subordinate judiciary, see The State of West Bengal vs N. N. Bagchi (1).If the High Court found that the appellant was not a fit person to be retained in service, it could properly ask the government to terminate his services.
Following the advice tendered by the High Court, the government rightly terminated his services under rule 12.
In the result, the appeal is dismissed.
There will be no order as to costs.
Y.P. Appeal dismissed.
(1)[1966] 1 S.C.R. 771.
LI 3Sup.
CI(NP)69 2,500 2 5 70 GIPF.
| IN-Abs | The appellant was appointed temporarily, to the judicial service in the respondent State.
On complaints, that the appellant was associating with a girl, and was taking bribes, the Chief Justice of the High Court enquired into, them and the High Court recommended to the State Government to terminate the appellant 's service.
The Government passed an order under r. 12 of the M. P. Government Servants (Temporary and Quasi permanent Service) Rules, 1960 stating only that the services of the appellant are terminated from a specified day.
The appellant filed a writ petition in the High Court against this order.
The High Court dismissed the petition.
in appeal, to this Court, the appellant contended that (i) r. 12 was violative of articles 14 and 16 of the Constitution as it conferred arbitrary and unguided discretion to the Government; (ii) the impugned order was as invalid as it was passed without consulting the State Public Service Commission under article 320(3)(c) of the Constitution; (iii) the order was passed by way of punishment without giving the appellant an opportunity to show cause against the proposed action and was therefore violative of article 311 of the Constitution; (iv) the order was in violation of the principles of natural justice, as no charge sheet was served nor any departmental inquiry held; and (v) the State Government erred in blindly following the recommendations of the High Court.
Repelling the contentions.
this Court, HELD : The appellant was a temporary government servant and was in not quasi permanent service.
His services could be terminated on one month 's notice under r. 12.
There was no provision in the order of appointment or in any agreement that his service could not be 'so terminated.
(i) Rule 12 applies to all temporary government servants who are not in quasi permanent service.
All such government servants are treated alike.
The agrument that r. 12 conferred an arbitrary and unguided discretion was devoid of any merit.
The services of a temporary government servant may be terminated on one month 's notice whenever the government thinks it necessary or expedient to do so for administrative reasons.
It was impossible to define before hand all the circumstances in which the discretion could be exercised.
The discretion was necessarily left to the government.
[475B] (ii) The provisions of article 320(3)(c) were not mandatory and did not confer any rights on the public servant and that the absence of consultation with the State Public Service Commission did not afford him a cause of action.
[475G] 473 State of U.P. vs M. L. Srivastava, ; , followed.
(iii) On the face of it, the order did not cast any stigma on the appellant 's character or integrity nor did it visit him with any evil consequences It was not passed by way of punishment and the provisions of article 311 were not attracted.
[476H] It was immaterial that the order was preceded by an informal inquiry into the appellant 's conduct with a view to ascertain whether he would be retained in service.
[477A] State of Punjab vs Sukh Rai Bahadur, ; , followed.
(iv) In the present case, the impugned order did not involve any element of punishment nor did it deprive the appellant of any vested right to any office.
The appellant was a temporary Government servant and had no Tight to hold the office.
The state government had the right to, terminate his servicess under r. 12 without issuing any notice to the appellant to, show cause against the proposed action.
[477H] (v) The government rightly terminated the services, following the advice tendered by the High Court.
The High Court is vested with the control over the subordinate judiciary.
If the High Court found that the appellant wits not a fit person to be retained in service, it could properly ask the government to terminate his services.
[478B] State of West Bengal vs N. N. Bagchi, [1966] 1 S.C.R. 771, followed.
State of Orissa vs Dr. (Miss) Binapani Dei & Ors. ; and Ridge vs Baldwsin, ; , referred to.
|
ons Nos. 173 to 175 of 1967.
Petition under article 32 of the Constitution of India for enforcement of the fundamental rights.
A. K. Sen and E. C. Agrawala, for the petitioners (in W.P. No. 173 of 1967).
Frank Anthony, E. C. Agrawala and A. T. M. Sampat, for the petitioners (in W.P. No. 174 of 1967).
C. K. Daphtary, E. C. Agrawala, A. T. M. Sampat, section R. Agarwala and Champat Rai, for the petitioners (in W.P. No. 175 of 1967).
Niren De, Attorney General, N. section Bindra and R. N. Sachthey, for respondents Nos. 1 to 6 (in all the petitions).
H. R. Gokhale and Harbans Singh, for respondents Nos. 7 and 26 (in all the petitions).
The Judgment of the Court was delivered by Hegde, J.
These petitions are brought by some of the Gazet ted Officers serving in the forest department of the State of Jammu and Kashmir.
Some of them are serving as Conservators of Forests, some as Divisional Forest Officers and others as Assistant Conservators of Forests.
All of them feel aggrieved by the selections made from among the officers serving in the forest department of the State of Jammu and Kashmir to the Indian Forest Service, a service constituted in 1966 under section 3(1) of the All India Services Act, 1951 and the rules framed thereunder.
Hence they have moved this Court to quash notification No. 3/24/66 A 15(IV) dated the 29th July 1967 issued by the Government of India, Ministry of Home Affairs, as according to them the selections notified in the said notification are violative of articles 14 and 16 of the Constitution and on the further ground that the selections in question are vitiated by the contravention of the principles of natural justice.
They are also challenging the vires of section 3 of the All India Services Act, rule 4 of the rules framed under that Act and Regulation 5 of the Indian Forest Service (Initial Recruitment) Regulations 1966, framed under the aforementioned rule 4.
Section 2(A) of the All India Services Act, 1951 authorises the Central Government to constitute three new All India Services 460 including the Indian Forest Service.
Section 3 provides that the Central Government shall after consulting the Government of the States concerned including that of the State of Jammu and Kashmir to make rules for the regulation of recruitment and the conditions of service of persons appointed to those All India Services.
Sub section
(2) of section 2 prescribes that all rules made under that section "shall be laid for not less than fourteen days before Parliament as soon as possible after they are made, and shall be subject to such modifications, whether by way of repeal or amendment, as Parliament may make on a motion made during the session in which they are so laid.
" In pursuance of the power given under section 3, rules for the recruitment to the Indian Forest Service were made in 1966 Indian Forest Service (Recruitment) Rules, 1966.
The only rule relevant for our present purpose is rule 4(1) which reads : "As soon as may be, after the commencement of these rules, the Central Governme nt 'May recruit to the service any person from amongst the members of the State Forest Service adjudged suitable in accordance with such Regulations as the Central Government may make in consultation with the State Governments and the Commission.
" The Commission referred to in the above rule is the Union Public Service Commission.
The Proviso to that sub rufe is not relevant for our present purpose.
We may next come to the Regulations framed under rule 4(1).
Those Regulations are known as the Indian Forest Service (Initial Recruitment) Regulations, 1966.
They are deemed to have come into force on July 1, 1966.
Regulation 2 defines certain expressions.
Regulation 3 provides for the constitution of a special selection board.
It says that the purpose of making selection to State cadre, the Central Government shall constitute a special selection board consisting of the Chairman of the Union Public Service Commission or his nominee, the Inspector General of Forests of the Government of India, ad officer of the Government of India not below the rank of Joint Secretary, the Chief Secretary to the State Government concerned or the Secretary of that Government dealing with the forests and the Chief Conservator of Forests of the State Government concerned.
Regulation 4 prescribes the conditions of eligibility.
That Regulation contemplates the formation of a service in the senior scale and a service in the junior scale.
Regulation 5 is important for our present purpose.
It deals with the preparation of the list of suitable candidates.
It reads : "(1) The Board shall prepare, in the order of preference, a list of such officers of State Forest Service who 461 satisfy the conditions specified in regulation 4 and who are adjudged by the Board suitable for appointment to posts in the senior and junior scales of the Service.
(2) The list prepared in accordance with sub regulation (1) shall then be referred to the Commission for advice, by the Central Government along with : (a) the records of all officers of State Forest Service included in the list; (b) the records of all other eligible officers of the State Forest Service who are not adjudged suitable for inclusion in the list, together with the reasons as recorded by the Board for their non inclusion in the list; and (c) the observations, if any, of the Ministry of Home Affairs on the recommendations of the Board.
On receipt of the list, along with the other documents received from the Central Government the Commission shall forward its recommendations to that Government.
" Regulation 6 stipulates that the officers recommended by the Commission under sub r.
(3) of Regulation 5 shall be appointed to the service by the Central Government subject to the availability of vacancies in the State cadre concerned.
In pursuance of the Regulation mentioned above, the Central Government constituted a special selection board for select ing officers to the Indian Forest Service in the senior scale as well as in the junior scale from those serving in the forest department of the State of Jammu and Kashmir.
The nominee of the Chairman of the Union Public Service Commission, one M. A. Venkataraman was the Chairman of the board.
The other members of the board were the Inspector General of Forests of the Government of India, one of the Joint Secretaries in the Government of India, the Chief Secretary to the State Government of Jammu and Kashmir and Naqishbund, the Acting Chief Conservator of Forests of Jammu and Kashmir.
The selection board met at Srinagar in May, 1967 and se lected respondents 7 to 31 in Writ Petition No. 173 of 1967.
The cases of respondents Nos. 32 to 37 were reserved for further consideration.
The selections in question are said to have been made solely on the basis of the records of officers.
Their suitability was not tested by any examination, written or oral.
, Nor were they interviewed.
For several years before that selection the adverse entries made in the character rolls of the officers had not been 462 communicated to them and their explanation called for.
In doing so quite clearly the authorities concerned had contravened the instructions issued by the Chief Secretary of the State.
Sometime after the afore mentioned selections were made, at the instance of the Government of India, the adverse remarks made in the course of years against those officers who had not been selected were communicated to them and their explanations called for.
Those explanations were considered by the State Government and on the basis of the same, some of the adverse remarks made against some of the officers were removed.
Thereafter the selection board reviewed the cases of officers not selected earlier as a result of which a few more officers were selected.
The selections as finally made by the board were accepted by the Commission.
On the basis of the recommendations of the Commission, the impugned list was published.
Even after the review Basu, Baig and Kaul were not selected.
It may also be noted that Naqishbund 's name is placed at the top of the list of selected officers.
Naqishbund had been promoted as Chief Conservator of Forests in the year 1964.
He is not yet confirmed in that post.
G. H. Basu, Conservator of Forests in the Kashmir Forest Ser vice who is admittedly senior to Naqishbund had appealed to the State Government against his supersession and that appeal was pending with the State Government at the time the impugned selections were made.
M. I. Baig and A. N. Kaul Conservators of Forests also claim that they are seniors to Naqishbund but that fact is denied by Naqishbund.
Kaul had also appealed against his alleged supersession but it is alleged that appeal had been rejected by the State Government.
Naqishbund was also one of the candidates seeking to be selected to the All India Forest Service.
We were told and we take it to be correct that he did not sit in the selection board at the time his name was considered for selection but admittedly he did sit in the board and participate in its deliberations when the names of Basu, Baig and Kaul, his rivals, were considered for selection.
It is further admitted that he did participate in the deliberations of the board while preparing the list of selected candidates in order of preference, as required by Regulation 5.
The selection board was undoubtedly a high powered body.
That much was conceded by the learned Attorney General who appeared for the Union Government as well as the State Government.
It is true that the list prepared by the selection board was not the last word in the matter of the selection in question.
That list along with the records of the officers in the concerned cadre selected as well as not selected had to be sent to the Minis 463 try of Home Affairs.
We shall assume that as required by Regulation 5, the Ministry of Home Affairs had forwarded that list with its observations to the Commission and the Commission had examined the records of all the officers afresh before making its recommendation.
But it is obvious that the recommendations made by the selection board should have weighed with the Commission.
Undoubtedly the adjudging of the merits of the candidates by the selection board was an extremely important step in the process.
It was contended before us that section 3 of the All India Services Act, rule 4 of the rules framed thereunder and Regulation 5 of the Indian Forest Service (Initial Recruitment) Regulations 1966 are void as those provisions confer unguided, uncontrolled and uncanalised power on the concerned delegates.
So far as the vires of section 3 of the Indian Administrative Act is concerned, the question is no more res integra.
It is concluded by the decision of this Court in D. section Garewal vs The State of Punjab and Anr.(1) We have not thought it necessary to go into the question of the vires of rule 4 and Regulation 5, as we have come to the conclusion that the impugned selections must be struck down for the reasons to be presently stated.
There was considerable controversy before us as to the nature of the power conferred on the selection board under rule 4 read with Regulation 5.
It was contended on behalf of the petitioners that that power was a quasi judicial power whereas the case for the contesting respondents was that it was a purely administrative power.
In support of the contention that the power in question was a quasi judicial power emphasis was laid on the language of rule 4 as well as Regulation 5 which prescribe that the selections should be made after adjudging the suitability of the officers belonging to the State service.
The word 'adjudge ' we were told means "to judge or decide".
It was contended that such a power is essentially a judicial power and the same had to be exercised in accordance with the well accepted rules relating to the exercise of such a power.
Emphasis was also laid on the fact that the power in question was exercised by a statutory body and a wrong exercise of that power is likely to affect adversely the careers of the officers not selected.
On the other hand it was contended by the learned Attorney General that though the selection board was a statutory body, as it was not required to decide about any right, the proceedings before it cannot be considered quasi judicial; its duty was merely to select officers who in its opinion were suitable for being absorbed in the Indian Forest Service.
According to him the word 'adjudge ' in rule 4 as well as Regulation 5 means "found worthy of selection".
(1) [1959] 1 Supp.
S.C.R. 792.
464 The dividing line between an administrative power and a quasi judicial power is quite thin and is being gradually obliterated.
For determining whether a power is an administrative power or a quasi judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised.
Under our Constitution the rule of law pervades over the entire field of administration.
Every organ of the State under our Constitution is regulated and controlled by the rule of law.
In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate.
The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner.
The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbi trarily or capriciously.
The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision.
In recent years the concept of quasi judicial power has been undergoing a radical change.
What was considered as an administrative power some years back is now being considered as a quasi judicial power. 'Me following observations of Lord Parker C.J. in Regina vs Criminal Injuries Compensation Board, exhibit Parte Lain(1) are instructive.
"With regard to Mr. Bridge 's second point I cannot think that Atkin, L.J. intended to confine his principle to cases in which the determination affected rights in the sense of enforceable rights.
Indeed, in the Electricity Commissioners case, the rights determined were at any rate not immediately enforceable rights since the scheme laid down by the commissioners had to be approved by the Minister of Transport and by resolutions of Parliament.
The commissioners nevertheless were held amenable to the jurisdiction of this court.
Moreover, as can be seen from Rex.
vs Postmaster General, Ex parte Carmichael (2 ) and Rex.
vs Boycott Ex parte Keasley(3) the remedy is available even though the decision is merely a step as a result of which legally enforceable rights may be affected.
The position as I see it is that the exact limits of the ancient remedy by way of certiorari have never been and ought not to be specifically defined.
They have varied (1) , 881.
(2) [1928] 1 K.B.291.
(3) 465 from time to time being extended to meet changing conditions.
At one time the writ only went to an inferior court.
Later its ambit was extended to statutory tribunals determining a lis inter parties.
Later again it extended to cases where there was no lis in the strict sense of the word but where immediate or subsequent rights of a citizen were affected.
The only constant limits throughout were that it was performing a public duty.
Private or domestic tribunals have always been outside the scope of certiorari since their authority is derived solely from contract, that is, from the agree ment of the parties concerned.
Finally, it is to be observed that the remedy has now been extended, see Reg.
vs Manchester Legal Aid Committee, Ex parte R. A. Brand & Co. Ltd.(1) to cases in which the decision of an administrative officer is only arrived at after an inquiry or process of a judicial or quasi judicial character.
In such a case this court has jurisdiction to supervise that process.
We have as it seems to me reached the position when the ambit of certiorari can be said to cover every case in which a body of persons of a public as opposed to a purely private or domestic character has to determine matters affecting subjects provided always that it has a duty to act judicially.
Looked at in this way the board in my judgment comes fairly and squarely, within the jurisdiction of this court.
It is as Mr. Bridge said, 'a servant of the Crown charged by the Crown, by execu tive instruction, with the duty of distributing the bounty of the Crown. ' It is clearly, therefore, performing public duties.
" The Court of Appeal of New Zealand has held that the power to make a zoning order under Dairy Factory Supply Regulation 1936 has to be exercised judicially, see New Zealand and Dairy Board vs Okita Co operative Dairy Co. Ltd. (2).
This Court in The Purtabpore Co. Ltd. vs Cane Commissioner of Bihar and Ors.(3) held that the power to alter the area reserved under the Sugar Cane (Control) Order 1966 is a quasi judicial power.
With the increase of the power of the administrative bodies it has become necessary to provide guidelines for the just exercise of their power.
To prevent the abuse of that power and to see that it does not become a new despotism, courts are gradually evolving (1) ; (2) [1953] New Zealand Law Reports p. 366.
(3) ; 466 the principles to be observed while exercising such powers.
In matters like these, public good is not advanced by a rigid adherence to precedents.
New problems call for new solutions.
It is neither possible nor desirable to fix the limits of a quasi judicial power.
But for the purpose of the present case we shall ,assume that the power exercised by the selection board was an administrative power and test the validity of the impugned selections on that basis.
It is unfortunate that Naquishbund was appointed as one of the members of the selection board.
It is true that ordinarily the Chief Conservator of Forests in a State should be considered as the most appropriate person to be in the selection board.
He must be expected to know his officers thoroughly, their weaknesses as well as their strength.
His opinion as regards their suitability for selection to the All India Service is entitled to great weight.
But then under the circumstances it was improper to have included Naquishbund as a member of the selection board.
He was one of the persons to be considered for selection.
It is against all canons of justice to make a man judge in his own cause.
It is true that he did not participate in the deliberations of the committee when his name was considered.
But then the very fact that he was a member of the selection board must have had its own impact on the decision of the selection board.
Further admittedly he participated in the deliberations of the selection board when the claims of his rivals particularly that of Basu was considered.
He was also party to the preparation of the list of selected candidates in order of preference.
At every stage of this participation in the deliberations of the selection board there was a conflict between his interest and duty.
Under those circumstances it is difficult to believe that he could have been impartial.
The real question is not whether he was biased.
It is difficult to prove the state of mind of a person.
Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased.
We agree with the learned Attorney General that a mere suspicion of bias is not sufficient.
There must be a reasonable likelihood of bias.
In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct.
It was in the interest of Naqishbund to keen out his rivals in order to secure his position from further challenge.
Naturally he was also interested in safeguarding his position while preparing the list of selected candidates.
The members of the selection board other than Naqishbund, each one of them separately, have filed affidavits in this Court swearing that Naqishbund in no manner influenced their decision in making the selections.
In a group deliberation each member 467 of the group is bound to influence the others, more so, if the member concerned is a person with special knowledge.
Ms bias is likely to operate in a subtle manner.
It is no wonder that the other members of the selection board are unaware of the extent to which his opinion influenced their conclusions.
We are unable to accept the contention that in adjudging the suitability of the candidates the members of the board did not have any mutual discussion.
It is not as if the records spoke of themselves.
We are unable to believe that the members of selection board functioned like computers.
At this stage it may also be noted that at the time the selections were made, the members of the selection board other than Naqishbund were not likely to have known that Basu had appealed against his supersession and that his appeal was pending before the State Government.
Therefore there was no occasion for them to distrust the opinion expressed by Naqishbund.
Hence the board in making the selections must necessarily have given weight to the opinion expressed by Naqishbund.
This takes us to the question whether the principles of natural justice apply to administrative proceedings similar to that with which we are concerned in these cases.
According to the learned Attorney General those principles have no bearing in determining the validity of the impugned selections.
In support of his contention he read to us several decisions.
It is not necessary to examine those decisions as there is a great deal of fresh thinking on the subject.
The horizon of natural justice is constanlty expanding.
The question how far the principles of natural justice govern administrative enquiries came up for consideration before the Queens Bench Division in In re : H. K. (An Infant) (1).
Therein the validity of the action taken by an Immigration Officer came up for consideration.
In the course of his judgment Lord Parker, C.J. observed thus : "But at the same time, I myself think that even if an immigration officer is not in a judicial or quasi judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the matters in the subsection, and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him.
That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly.
Good administration and an honest or bona fide decision must, as it seems to me, require not merely impartiality, nor merely bringing one 's mind to bear on the problem, but acting fairly; and to the limited extent that the circumstances of any particular case allow, and within the legislative frame work under (1) , 630.
468 which the administrator is working, only to that limited extent do the so called rules of natural justice apply, which in a case such as this is merely a duty to act fairly.
I appreciate that in saying that it may be said that one is going further than is permitted on the decided cases because heretofore at any rate the decisions of the courts do seem to have drawn a strict line in these matters according to whether there is or is not a duty to act judicially or quasi judicially.
" In the same case Blain, J. observed thus "I would only say that an immigration officer having assumed the jurisdiction granted by those provisions is in a position where it is his duty to exercise that assumed jurisdiction whether it be administrative, executive or quasi judicial, fairly, by which I mean applying his mind dispassionately to a fair analysis of the particular problem and the information available to him in analysing it.
If in any hypothetical case, and in any real case, this court was satisfied that an immigration officer was not so doing, then in my view mandamus would lie.
" In State of Orissa vs Dr. (Miss) Binapani Dei and Ors.(1) Shah, J. speaking for the Court, dealing with an enquiry made as regards the correct age of a government servant, observed thus "We think that such an enquiry and decision were contrary to the basic concept of justice and cannot have any value.
It is true that the order is administrative in character,but even an administrative order which involves civil consequences as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice.
These rules can operate only in areas not covered by any law validly made.
In other words they do not supplant the law of the land but supplement it.
The concept of natural justice has undergone a great deal of change in recent years.
In the past it was thought that it included just two rules namely (1) no one shall be a judge in his own case (Nemo debet esse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem).
Very soon there after a third rule was envisaged and that is that quasi judicial enquiries must be held in good faith, without bias and not arbitrarily (1) ; 469 or unreasonably.
But in the course of years many more subsidiary rules came to be added to the rules of natural justice.
Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice.
The validity of that limitation is now questioned.
If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries.
Often times it is not easy to draw the line that demarcates administrative enquiries from quasi judicial enquiries.
Enquiries which were considered administrative at one time are now being considered as quasijudicial in character.
Arriving at a just decision is the aim of both quasi judicial enquiries as well as administrative enquiries.
An unjust decision in an administrative enquiry may have more far reaching effect than a decison in a quasi judicial enquiry.
As observed by this Court in Suresh Koshy George vs The University of Kerala and Ors.(1) the rules of natural justice are not embodied rules.
What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose.
Whenever a cornplaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the obser vance of that was necessary for a just decision on the facts of that case.
It was next urged by the learned Attorney General that after all the selection board was only a recommendatory body.
Its recommendations had first to be considered by the Home Ministry and *.hereafter by the U.P.S.C.
The final recommendations were made by the U.P.S.C. Hence grievances of the petitioners have no real basis.
According to him while considering the validity of administrative actions taken, all that we have to see is whether the ultimate decision is just or not.
We are unable to agree with the learned Attorney General that the recommendations made by the selection board were of little consequence.
Looking at the composition of the board and the nature of the duties entrusted to it we have no doubt that its recommendations should have carried considerable weight with the U.P.S.C.
If the decision of the selection board is held to have been vitiated, it is clear to our mind that the final recommendation made by the Commission must also be held to have been vitiated.
The recommendations made by the Union Public Service Commission cannot be disassociated from the selections made by the selection board which (1) ; 470 is the foundation for the recommendations of the Union Public Service Commission.
In this connection reference may be usefully made to the decision in Regina vs Criminal Injuries Compensation Board exhibit Parte Lain(1).
It was next urged by the learned Attorney General that the mere fact that one of the members of the Board was biased against some of the petitioners cannot vitiate the entire proceedings.
In this connection he invited our attention to the decision of this Court in Sumer Chand Jain vs Union of India and another(2).
Therein the Court repelled the contention that the proceedings of a departmental promotion committee were vitiated as one of the members of that committee was favourably disposed towards one of the selected candidates.
The question before the Court was whether the plea of mala fides was established.
The Court came to the conclusion that on the material on record it was unable to uphold that plea.
In that case there was no question of any conflict between duty and interest nor any members of the departmental promotion committee was a judge in his own case.
The only thing complained of was that one of the members of the promotion committee was favourably disposed towards one of the competitors.
As mentioned earlier in this case we are essentially concerned with the question whether the decision taken by the board can be considered as having been taken fairly and justly.
One more argument of the learned Attorney General remains to be considered.
He urged that even if we are to hold that Naqishbund should not have participated in the deliberations of the selection board while it considered the suitability of Basu, Baig and Kaul, there is no ground to set aside the selection of other officers.
According to him it will be sufficient in the interest of justice if we direct that the cases of Basu, Baig and Kaul be reconsidered by a Board of which Naqishbund is not a member.
Proceeding further he urged that under any circumstance no case is made out for disturbing the selection of the officers in the junior scale.
We are unable to accept either of these contentions.
As seen earlier Naqishbund was a party to the preparation of the select list in order of preference and that he is shown as No. 1 in the list.
To that extent he was undoubtedly a judge in his own case, a circumstance which is abhorrent to our concept of justice.
Now coming to the selection of the officers in the.
junior scale service, the selections to both senior scale service as well as junior scale service were made from the same pool.
Every officer who had put in a service of 8 years or more, even if he was holding the post of an Assistant Conservator of Forests was eligible for being selected for the senior scale service.
In fact some (1) (2) Writ Petition No. 237/1966 decided on 4 5 1967.
471 Assistant Conservators have been selected for the senior scale service.
At the same time some of the officers who had put in more than eight years of service had been selected for the junior scale service.
Hence it is not possible to separate the two sets of officers.
For the reasons mentioned above these petitions are allowed and the impugned selections set aside.
The Union Government and the State Government shall pay the costs of the petitioners.
V.P.S. Petitions allowed.
| IN-Abs | In pursuance of the Indian Forest Service (Initial Recruitment) Regulation, 1966, framed under r. 4(1) of the Indian Forest Service (Recruitment) Rules made under the All India Services Act, 1951, a Special Selection Board was constituted for selecting officers to the Indian Forest Service in the senior and junior scales from officers serving in the forest department of the State of Jammu and Kashmir.
One of the members of the Board was the Chief Conservator of Forests of the State, as )required by the Regulations.
He was a Conservator of forests appointed as Acting Chief Conservator superseding another Conservator of Forests whose appeal to the State Government against his supersession was pending at the time the selections by the Board were made.
The Acting Chief Conservator was also one of the candidates seeking to be selected to the Indian Forest Service.
The Board made the 'selection of officers in the senior and junior scales.
The Acting Chief Conservator 's name was at the top of the list of selected officers, while the names of three conservators, (including the officer who was superseded), who were the Acting Chief Conservator 's rivals, were omitted.
The Acting Chief Conservator did not sit in the Selection Board at the time his name was considered, but participated in the deliberations when the names of his rivals were considered.
He also participated in the Board 's deliberations while preparing the list of selected candidates in order of preference.
The list and the records were sent to the Ministry of Home Affairs and the Ministry of Home Affairs forwarded the list with its observations to the Union Public Service Commission, as required by the Regulations, and the U.P.S.C. examined the records of the officers afresh and made its recommendations.
The Government of India thereafter notified the list.
The three conservators, whose names were not included in the list, and other aggrieved officers filed a petition in this Court under article 32 for quashing the notification.
On the questions : (1) Assuming that the proceedings in the present case were administrative proceedings, whether principles of natural justice applied to them; (2) Whether there was a violation of such principles of natural justice in the present case; (3) Since the recommendations of the Board were first considered by the Home Ministry and the final recommendations were made by the U.P.S.C., whether there was any basis for the petitioners ' grievances; (4) Whether there were grounds for setting aside the selection of all the officers including those in the junior scales, HELD : (1) The rules of natural justice operate in areas not covered by any law validly made, that is, they do not supplant the law of the land but supplement it.
They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice.
If that is their purpose, there is no reason why they should not be made applicable to administrative proceeding also, especially when it is not easy to draw the line that 458 demarcates administrative enquiries from quasi judicial ones, and an unjust decision in an administrative enquiry may have a more far reaching effect than a decision in a quasi judicial enquiry.
[468F G; 469B D] Suresh Koshy George vs The University of Kerala, ; , State of Orissa vs Dr., (Miss) Binapani Dei ; and In re : H. K. (An Infant) , 630, referred to.
(2) The concept of natural justice has undergone a great deal of change in recent years.
What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or the body of persons appointed for that purpose.
Whenever a complaint is made before a court that some principle of natural justice had been contravened, the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.
The rule that enquiries must be held in good faith and without bias, and not arbitrarily or unreasonably, is now included among the principles of natural justice.
[468G H; 469D L ] In the present case.
at the time of selection, the other members of the Board did not know that the appeal of the superseded conservator was pending before the State Government and hence there was no occasion for them to distrust the opinion of the Acting Chief Conservator.
There was a conflict between his interest and duty and he was a judge in his own cause.
Taking into consideration human probabilities and the ordinary course of human conduct, there was reasonable ground for believing that the Acting Chief Conservator was likely to have been biased.
He did not participate in some of the deliberations of the Board, but the facts that he was a member of the Board and that he participated in the deliberations when the claims of his rivals were considered and in the preparation of the list, must have had its impact on the selection, as the Board, in making the selection, must necessarily have given weight to his opinion.
In judging the suitability of the candidates the members of the Board must have had mutual discussions and though the other members filed affidavits stating that the Acting Chief Conservator in no manner influenced their decision, in group discussions, each member was bound to influence the others in a subtle manner and without their being aware of such influence.
[466D G; 467A D] In the circumstances of the case, the selection by the Board, could not be considered to have been taken fairly and justly as it was influenced by a member who was biased.
[470 C E] (3) The Selection Board was undoubtedly a high powered body, and its recommendations must have had considerable weight with the U.P.S.C.
The recommendation made by the U.P.S.C. could not be dissociated from the selection made by the Selection Board which was the foundation for the recommendations of the U.P.S.C.
Therefore, if the selection by the Selection Board was held to be vitiated, the final recommendation by the U.P.S.C, must also be held to have been vitiated.
[462 G H; 469G H] Regina vs Criminal Injuries Compensation Board, Ex Parte Lain, , 881, applied.
Sumer Chand Jain vs Union of India W.P. No. 237 of 1966, dated 4 5 1967, distinguished.
459 (4) The selections to both senior and junior scales were made from the same pool and so, it was not possible to separate the two sets of Officers.
Therefore, it was not sufficient to merely direct the Selection Board to consider the cases of the three conservators who were excluded, but all the selections had to be set aside.
[470 G H; 471A]
|
Appeal No. 380 of 1965.
Appeal from the judgment and decree dated May 23, 1963 of the Allahabad High Court, Lucknow Bench in First Civil Appeal No. 70 of 1950.
429 C. B. Agarwala, Ishtiaq Ahmad Abbasi, section Rehman and, C. P. Lal, for the appellants.
section P. Sinha, Mohammad Hussain and section section Shukla, for the respondents Nos. 1 and 3.
The Judgment of the Court was delivered by Shah, J.
By our judgment dated April 19, 1968, we passed the following order in this appeal : "It will be declared that the deed of trust executed by Raja Bishwanath on August 29, 1932, did not operate to settle any property being part of the taluqdari estate and governed by the Oudh Estates Act 1 of 1869, for the purposes specified therein.
" The Senior Raj Kumar applied for review of judgment on the ground that the deed of trust dated August 29, 1932, settled properties non taluqdari as well as taluqdari and the Court at the earlier hearing did not make any order as to the revolution of the non taluqdari property.
Apparently at the earlier hearing no argument on the matter now sought to be raised was advanced, though the hearing lasted for several days.
We have, however, granted review of judgment and heard the parties on the question whether a different rule of revolution prevails in respect of properties which are non taluqdari.
We have held that on the death of Raja Surpal Singh the taluqdari estate of Tiloi vested in Rani Jagannath Kuar, and she continued to hold the property as life owner under section 22(7) of the Oudh Estates Act, even after she adopted Raja Bishwanath Singh on February 21, 1901, and so long as she was alive Raja Bishwanath Singh had no interest in the estate which he could settle or convey.
The deed of settlement was executed by Raja Bishwanath Singh during the lifetime of Rani Jagannath Kuar and did not operate to convey the taluqdari estate.
Counsel for the Senior Raj Kumar contends that even if Raja Bishwanath had no interest in the taluqdari estate, under the ordinary Hindu law, on adoption the non taluqdari property left by Raja Surpal Singh vested in Raja Bishwanath Singh and he was competent under the deed of settlement to dispose of the property in the manner directed by that deed.
Counsel says that the revolution of non taluqdari property is governed by the rules of Hindu law, and that on adoption of a son by Rani Jagannath Kuar her interest in the property was divested and the adopted son became the owner of the property.
430 Counsel for the Junior Raj Kumar resists this claim.
Section 8 of the Oudh Estates Act 1 of 1869 provides for the preparation of lists of taluqdars and grantees, and the second list prepared under that section is a list of taluqdars whose estates, according to the custom of the family on and before the 13th day of February, 1856, ordinarily devolved upon a single heir.
The taluqdari estate of Tiloi was entered in the second list.
By section 10 of the Act .it is provided : "No persons shall be considered taluqdars or grantees within the meaning of the Act, other than the persons named in such original or supplementary lists as aforesaid.
The Courts shall take judicial notice of the said lists and shall regard them as conclusive evidence that the persons named therein are such taluqdars or grantees. ' Section 22 of the Act prescribes a special mode of succession to intestate taluqdars and grantees.
By cl.
(6) of section 22 in default of any brother, or a male lineal descendant, the estate devolves upon the widow of the deceased taluqdar or grantee, heir or legatee, for her life time only, and by cl.
(7) on the death of the widow, the estate devolves upon such son as the widow shall, with the consent in writing of her deceased husband, have adopted, and his male lineal descendants.
The Tiloi Estate which was a taluqdari estate, therefore, devolved upon Rani Jagannath Kuar and she held that estate during her life time.
The rule of Hindu law that on the adoption of a son by a widow to her deceased husband, the estate vests in the adopted son, is by the express provisions of cls.
(6) & (7) of section 22 of the Oudh Estates Act inapplicable to taluqdari estates.
That was so held in our earlier judgment dated April 19, 1968, and on that account the claim of the Senior Raj Kumar to take the taluqdari estate under the deed of settlement 'was negatived.
It was decided by the Judicial Committee of the Privy Council that it will be presumed that the non taluqdari estate of a taluqdar governed by the Oudh Estates Act, 1869, is governed by the same rules which govern succession to the taluqdari estate.
In Rani Huzur Ara Begam and Anr.
vs Deputy Commissioner, Gonda(.), the Judicial Committee held that the entry of a taluqdar in List 2 prepared under section 8 of the Oudh Estates Act, 1869, which raises an irrebuttable presumption of single heir succession to the taluqdari property also raises a presumption, rebuttable by evidence proving a different rule of revolution, that the family custom of ,single heir succession applicable to the taluqa governs the suc (1) L.R. 65 I.A. 397.
431 cession to the non taluqdari property, movable as well as immovable, of the taluqdar.
In that case the taluqdar of Utraula Estate obtained decrees for recovery of money against a debtor.
The taluqdar died on March 4, 1934, leaving him surviving a widow, a daughter and two sons.
The widow on behalf of herself and as the guardian of her daughter filed applications for execution of the decrees obtained by the taluqdar.
The execution was resisted on the ground that the widow and the daughter had no right to enforce the decrees because the right to the decrees had devolved upon the eldest son who was under the Oudh Estates Act the, sole heir under the law and family custom of single heir succession.
The Board upheld the contention raised ,by the judgment debtor.
They observed : "Now, the taluqdar of the Utraula Estate is named in list 2 of the taluqdars prepared under section 8 of the Oudh Estates Act, 1 of 1869, whose estate, according to the custom of the family on or before February 13, 1856, ordinarily devolved upon a single heir.
Section 10 of the statute provides that the Court shall take judicial notice of the said list and regard as conclusive the fact that the person named therein is such taluqdar.
In other words, there was a pre existing custom attaching to the estate on which its inclusion in list 2 was based.
There is, therefore, an irrebuttable presumption in favour of the existence of the custom of the family by which the estate devolves on a single heir, but the provision as to the conclusiveness of the custom is confined to the estate coming within the ambit of the statute.
It does not apply to any property which is not comprised in the estate or taluqa.
What is the rule which governs succession to non taluqdari property ? If immovable property forming part of the taluqa is governed by the custom of single heir succession, there is no prime facie reason why immovable property which is not comprised in the taluqa should follow a different rule.
Indeed, it has been decided by this Board that there is a presumption that the rule as to succession to a taluqa governs also the succession to non taluqdari immovable property: Murtaza Husain Khan vs Mahomed Yasin.
Ali Khan [(1916) L.R. 43 I.A. 269].
It must, therefore, be taken as a settled rule that, whereas the entry of a taluqdar in list 2 is conclusive evidence that this taluqa is governed by the rule of revolution on a single heir, it raises also a presumption that the family custom applying to a taluqa governs also the succession to non taluqdari immovable property." 432 Counsel for the Senior Raj Kumar contended that the rule enunciated by the Judicial Committee in Rani Huzur Ara Begam 's case(1) applies only to Muslims and has no application to Hindus.
Counsel submitted that in Murtaza Husain Khan vs Mahomed Yasin Ali Khan(2) Mr. Ameer Ali delivering the judgment of the Board explained that the reason of the rule is that the presumed custom applies to the acquired property of a Muslim taluqdar since under the Mahomed an law, ancestral and self acquired properties are subject to the same rule of descent, and that in the case of self acquired property of a Hindu taluqdar, the presumed custom only affects the succession upon proof that the property was incorporated with the taluqa, either by intention of the owner or by family custom.
It is true that in Rani Huzur Ara Begam 's case(2) the dispute related to the succession to the estate held by a Muslim taluqdar, but the Board in that case relied upon the observations at p. 148 in Thakur Ishri Singh vs Baldeo Singh(3) a case of Hindu succession to a taluqdari held by a Hindu taluqdar.
Counsel also invited our attention to section 23 of the Oudh Taluqdars Act, but we see no inconsistency between the presumption that non taluqdari property also devolves upon a single heir and the terms of section 23 of the Act.
Counsel for the Senior Raj Kumar contends that the decision of the Judicial Committee gives no reasons in support of the view taken by the Board and should be reconsidered by this Court.
We are unable to agree with that contention.
The rule has apparently been settled for the last many years that where property devolves upon a single heir of a taluqdar entered in the second list, there is a presumption that the non taluqdari estate also devolves upon him and we see no reason to depart from that rule.
To do so would result in upsetting settled titles.
Prior to the enactment of the Oudh Estates Act, 1869, there was no distinction between taluqdari and non taluqdari estates and the presump tion merely gives effect to family custom.
There is, therefore, a presumption, unless rebutted, that non taluqdari property of a taluqdar entered in List 2 devolves by the custom of the family upon a single heir.
On the death of Raja Surpal Singh his entire estate devolved, upon his wife Rani Jagannath Kuar and by virtue of the custom, she must be presumed to have remained life owner of the non taluqdari estate also.
The customary rule may undoubtedly be rebutted by evidence to the contrary, but at no stage of the hearing of this protracted trial was the contention raised that if the Senior Raj Kumar had under the deed of (1) L.R. 65 I.A. 397.
(2) L.R. 43 I.A. 269.
(3) L.R. 11 I.A. 135.
433 settlement interest in the non taluqdari estate even if his claim to the taluqdari estate under that deed failed to take effect.
It was then urged that in any event the widow of a taluqdar is not an "heir" within the definition of the, Act.
It is true that in the interpretation clause in the Act an "heir" means a person who has inherited or inherits otherwise than as a widow or a mother, an estate or portion of an estate whether before or after the commencement of the Act.
But we fail to appreciate the bearing of this definition upon the question in issue.
By virtue of section 22(6) of the Act the taluqdari.
estate devolved upon Rani Jagannath Kuar on the death of her husband and the estate enured during her life time.
She also inherited the non taluqdari estate.
Techni cally she may not be called an "heir" under the Act, but that is irrelevant in determining whether in the devolution of the taluqdari and non taluqdari estates different rules prevail.
Counsel then contended that though the argument was not raised at an earlier stage, the Senior Raj Kumar should be permitted to amend his pleading to contend that there was a custom in the family under which non taluqdari estate did not devolve upon a single heir.
This case is more than 22 years old and we do not think that we would be justified at this date in allowing the parties to raise a new contention and give it a fresh lease of life.
On the record there is evidence relating to devolution of the estate since the time of Raja Jagpal Singh to whom the Tiloi Estate was granted by the Government, and it has never been suggested that the non taluqdari estate devolves otherwise than upon a single heir.
Counsel also contended that even if leave to amend the written statement be not granted to the Senior Raj Kumar the Court may review the evidence and hold on the evidence already on the record that such a custom did prevail in the family.
Our attention has, however, not been invited to any reliable evidence on this part of the case.
We, therefore, declare that even in the non taluqdari estate left by Raja Surpal Singh which devolved upon his widow Rani Jagannath Kuar for her life time, Raja Bishwanath Singh had on August 29, 1932, no interest which he could transfer, alienate or settle.
Counsel for the Senior Raj Kumar finally submitted that the Trial Court did not decide issues Nos.
14 & 15 relating to the rights of Rani Aditya Binai Kumari defendant No. 4 and Rani Fanindra Rajya Lakshmi Devi defendant No. 5 and these issues should be decided.
No argument was advanced before 434 the High Court in respect of issues Nos.
14 & 15.
The reason is obvious : in the Trial Court the defendants agreed that no findings should be recorded on those issues.
We cannot at this stage enter upon the trial of issues which, it was agreed, had to be tried in another suit.
The Senior Raj Kumar will pay the costs of this hearing.
| IN-Abs | Section 8 of the Oudh Estates Act 1 of 1869 provided for the preparation of lists of taluqdars and grantees, and another list of taluqdars whose estates, according to the custom of the family on and before 13th February, 1856, ordinarily devolved upon a single heir.
The taluqdari estate of Tiloi was entered in the second list.
Upon the death of the taluqdar and in the absence of any brother or a male lineal descendant, the estate devolved, in accordance with the provisions of section 22(6) upon the widow of the deceased taluqdar for her life.
Thereafter she adopted a son.
The adopted son by a deed of trust executed in August, 1932, settled certain properties.
By judgment dated April 19, 1968, this Court declared that the deed of trust of August, 1932 did not operate to settle any property being part of the taluqdari estate and governed by the Oudh Estates Act of 1869.
In the present petition for review of the judgment it was contended that even if the settlor had no interest in the taluqdari estate under the ordinary Hindu law, on adoption, the non taluqdari property vested in him and he was competent under the deed of settlement to dispose of the property in the manner directed by that deed.
It was also contended that the widow of a taluqdar was not an "heir" within the definition of the expression in the Act.
HELD : That even in the non taluqdari estate left by the taluqdar which devolved upon the widow, her adopted son, the settlor, had so, long as the widow was alive no interest which he could transfer, alienate or settle.
[433G] it is well settled that where property devolves upon, a single heir of a taluqdar entered in the second list under section 8 of the Act, there is a rebuttable presumption that the non taluqdari estate also devolves upon him.
In the present case there was no reason to depart from that rule.
Prior to the enactment of the Oudh Estates Act 1869 there was no dis tinction between taluqdari and non taluqdari estate and the presumption merely gave effect to family custom.
[432E F] Rani Huzur Ara Begam and Anr.
vs Deputy Commissioner Gonda, L.R. 65 I.A. 397 followed.
Murtaza Husain Khan vs Mahomed Yasin Ali Khan L.R. 43 I.A. 269;Thakur Ishri Singh vs Baldeo Singh, L.R. 11 I.A. 135: referred to.
|
Appeal No. 882 of 1968.
Appeal by special leave from the judgment and order dated July 1, 1966 of the Calcutta High Court in Civil Reference No. 20 of 1963.
445 D. N. Mukherjee and Sunil Kumar Ghosh, for the appellant.
A. K. Sen, Sukumar Ghose and Krishna Sen, for respondent No. 1.
B. Sen, Sukumar Basu and P. K. Chakravarti, for respondent No. 2.
Niren De, Attorney General, V. A. Seyid Muhammad, R. H. Dhebar and section P. Nayar, for the Union of India.
The Judgment of the Court was delivered by Bhargava, J.
Rama Sundari Debi, the first respondent in this appeal by special leave, instituted a suit for the ejectment of Indu Bhusan Bose appellant who was a tenant in premises No. 18, Riverside Road, owned by respondent No. 1, situated within the cantonment area of Barrackpore.
The agreed rent was Rs. 250/per mensem but there was a dispute as to whether the owner or the tenant was liable to pay rates and taxes.
On an application presented by the appellant, the Rent Controller fixed fair rent under section 10 of the West Bengal Premises Tenancy Act No. XII of 1956 (hereinafter referred to as "the Act") at Rs. 170/per month inclusive of all cantonment taxes, and, in appeal, the amount was enhanced to Rs. 188/ per month inclusive of all cantonment taxes.
Respondent No. 1, in December, 1960, served a notice on the appellant to quit and, on failing to get vacant possession, filed a suit in the Court of the Munsif.
In the plaint, respondent No. 1 claimed that, regulation of house accommodation including control of rents being a subject in entry No. 3 of List I of the Seventh Schedule to the Constitution, the State Legislature could not competently enact a law on the same subject for cantonment are as, so that the appellant was pot entitled to protection under the Act which had been extended to that area by the State Government.
It was urged that the extension of that State Act to the cantonment area was ultra vires and void.
The Munsif, thereupon, made a reference under section 113 of the Code of Civil Procedure to the High Court of Calcutta for decision of this constitutional question raised in the suit before him.
The High Court decided the reference by making a declaration that the notification, whereby the State Government had extended the provisions of the Act to the Barrackpore cantonment area, was ultra vires and void.
This is the decision of the High Court that has been challenged in this appeal.
It has been contended on behalf of the appellant that the High Court is not correct in holding that the field of legislation covered by the Act, which is primarily concerned with control of rents and eviction of tenants, is included within the expression 446 "regulation of house accommodation in cantonment areas" used in entry No. 3 of List I.
That entry is as follows : "3. Delimitation of cantonment areas, local self government in such areas, the constitution and powers within such areas of cantonment authorities and the regulation of house accommodation (including the control of rents) in such areas.
" The submission made is that regulation of house accommodation will not include within it laws or rules on the subject of relationship of landlord and tenant of buildings situated in the cantonment areas.
On the other hand, according to the appellant, legislation on this subject can be made either under entry No. 18 of List II, or entries Nos. 6, 7 and 13 of List 111, so that a State ,Legislature is competent to legislate and regulate relationship between landlord and tenant even in cantonment areas.
These relevant entries are reproduced below "List II 18.
Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and allenation of agricultural land; land improvement and agricultural loans; colonisation." "List III 6.
Transfer of property other than agricultural land; registration of deeds and documents.
Contracts, including partnership, agency, contracts of carriage, and other special forms of contracts, but not including contracts relating to agricultural land.
Civil procedure, including all matters included in the Code of Civil Procedure at the commencement of this Constitution, limitation and arbitration.
" On the scope of entry 3 of List 1, the argument advanced is that Parliament is empowered to legislate in respect of house accommodation situated in cantonment areas only to the extent that that house accommodation is needed for military purposes and laws are required for requisitioning or otherwise obtaining possession of that accommodation for such purposes.
In the alternative.
the submission made is that regulation of house accommodation by parliamentary law should be confined to houses acquired,.
requisitioned or allotted for military purposes.
This entry 3, according to the appellant, should not be read as giving Parliament the power to legislate, on the relationship of landlord 447 and tenant in respect of houses situated in cantonment areas if such houses are let out privately by a private owner to his tenant and have nothing at all to do with the requirements of the military.
We are unable to accept this submission.
The language of the entry itself does not justify any such interpretation.
In the entry, when power is granted to Parliament to make laws for the regulation of house accommodation in cantonment areas, there are no qualifying words to indicate that the house accommodation, which is to be subject to such legislation, must be accom modation required for military purposes, or must be accommodation that has already been acquired, requisitioned or allotted to the military.
In fact, if a legislation in respect of any cantonment was to be undertaken by Parliament for the first time under this entry, there would be, at the time of that legislation, no house in the cantonment already acquired, requisitioned or allotted for military purposes; and, if the interpretation sought to be put on behalf of the appellant were accepted, the power of Parliament to pass laws cannot be exercised by Parliament at all.
It is also significant that, in the entry, various items, which can be the subject matter of legislation by Parliament, are mentioned separately, and these are : (i) Delimitation of cantonment areas; (ii) local self government in such areas; (iii) the constitution and powers within such areas of cantonment authorities; and (iv) the regulation of house accommodation (including the control of rents) in such areas.
In none of these clauses there is any specification that the legislation is to be confined to areas or accommodation required for military purposes.
When legislating in respect of local self government in cantonment areas, it is obvious that Parliament will have to legislate for the entire cantonment area including portions of it which may be in possession of civilians and not military authorities or military officers.
Similarly, the powers of the cantonment authorities, which could be granted by legislation by Parliament; cannot be confined to those areas or buildings which are in actual possession of military authorities or officers and must be in respect of the entire cantonment area including those buildings and lands which may be in actual ownership as well as occupation of civilians.
In these circumstances, there is no reason to narrow down the scope of legislation on regulation of house accommodation and confine it to houses which are required or are actually in possession of military authorities or military officers.
The power to regulate house accommodation by law must extend to all house accommodation in the cantonment area 448 irrespective of its being owned by, or in the possession of, civilians.
In fact, if a law were to be made for the first time under ' this entry, all the houses would be either vacant or occupied by owners or occupied by tenants of owners under private agreements and the law, when first made, will have to govern such houses.
The scope of the expression "regulation of house accommodation" in this entry cannot, therefore, be confined as urged on behalf of the appellant.
It is, in the alternative, contended that, even if the expression "regulation of house accommodation" in this entry includes regulation of houses in private occupation, it should not be interpreted as giving Parliament the power even to legislate for eviction of tenants who may have occupied the houses under private arrangement with the owners.
It should be confined to legislation for the purpose of obtaining possession and allotment of such accommodation to military authorities or military officers.
We cannot accept that the, word "regulation" can be so narrowly interpreted as to be confined to allotment only and not to other incidents, such as termination of existing tenancies and eviction of persons in possession of the house accommodation.
The dictionary meaning of the word "regulation" in the Shorter Oxford Dictionary is "the act of regulating" and the word "regulate. is Given the meaning "to control, govern or direct by rule or regulation".
This entry, thus, gives the power to Parliament to pass legislation for the purpose of directing or controlling all house accommodation in cantonment areas.
Clearly, this power to direct or control will include within it all aspects as to who is to make the constructions under what conditions the constructions can be altered, who is to occupy the accommodation and for how long, on what terms it is to be occupied, when and under what circumstances the occupant is to cease to occupy it, and the manner in which the accommodation is to be utilised.
All these are ingre dients of regulation of house accommodation and we see no reason to hold that this word "regulation" has not been used in this wide sense in this entry.
It appears that, in the Government of India Act, 1935, the corresponding entry No. 2 in List I of the Seventh Scheiule to that Act was similar to this entry No. 3 of List I of the Seventh Schedule to the, Constitution, but the expression "including centrol of rents" which is now in entry No. 3 of List I within brackets did not exist.
An argument was sought to be built on it that regulation of house accommodation was not intended to cover control of rents when that expression was used in the corresponding entry in the Government of India Act, and that this expression used in the Constitution should also be interpreted to cover the same field, so that, but for the addition made within brackets, Parliament 449 could not have legislated for control of rents of house accommodation within cantonment areas.
It is further urged that, if the expression "regulation of house accommodation" is interpreted as not including within it regulation or control or rents, it should also be held that it will not include regulation of eviction of private tenants.
This argument is based on the premise that the words "including control of rents" was introduced in entry 3 of List I of the Seventh Schedule to the Constitution for the purpose of en larging the scope, of the legislative authority of Parliament and making it wider than that of the Federal Legislature under the Government of India Act.
Such an assumption is not necessarily justified.
It may be that the words "including the control of rents" were introduced by way of abundant caution or to clarify that the regulation of house accommodation is wide enough to include control of rents.
The addition may have been made so as to concentrate attention on the fact that legislation was needed for control of rents in the situation that existed at the time when the Constitution was passed by the Constituent Assembly.
It has to be remembered that cantonments are intended to be and are, in fact, military enclaves and regulation of occupation of house accommodation in the cantonment areas by parliamentary law is necessary from the point of view of security of military installations in cantoriments and requirements of military authorities and personnel for accommodation in such areas.
Such a purpose ' could only be served by ensuring that Parliament could legislate in respect of house accommodation in cantonment areas in all its aspects, including regulation of grant of leases, ejectment of lessees, and ensuring that the accommodation is available on proper terms as to rents.
On an interpretation of the contents of the entry itself, therefore, we are led to the conclusion that Parliament was given the exclusive power to legislate in respect of house accommodation in cantonment areas for regulating the accommodation in all its aspects.
In this connection, we may refer to three decisions which explain the object of legislation on the subject of rent control.
In Prout vs Hunter(1), Scrutton, L.J., dealing with the legislation during the war in England, held: "Great public feeling was aroused by the exorbitant demands for rent that were made and the ejectments for nonpayment of it, with the result that Parliament passed the Rent Restriction Acts with the two fold object, (1) of preventing the rent from being raised above the prewar standard, and (2) of preventing tenants from being turned out of their houses even if the term for which they had originally taken them had expired.
" (1) 450 In Property Holding Company Limited vs Clark(1), it was held : "There are certain fundamental features of all the Rent Restriction legislation, or at any rate of the legislation from 1920 to 1939.
The two most important objects of policy expressed in it are (1) to protect the tenant from eviction from the house where he is living, except for defined reasons and on defined conditions; (2) to protect him from having to pay more than a fair rent.
The latter object is achieved by the provisions for standard rent with (a) only permitted in creases, (b) the provisions about furniture and attendant liabilities from the landlord to the tenant which would undermine or nullify the standard rent provisions.
The result has been held to be that the Acts operate in rem upon the house and confer on the house itself the quality of ensuring to the tenant a status of irremovability.
In this description of the distinguishing characteristics conferred by statute upon the clouse, the most salient is the tenant 's security of tenure his protection against eviction; although the scope of the statutory policy about a fair rent must also be borne in mind especially in connexion with the provisions relating to furniture, attendance, services and board.
" In Curl vs Angelo and Another(2), Lord Greene, M.R., dealing with Rent Restrictions Act, held : "The courts have had to consider what the over riding purpose and intention of the Acts are, and I cannot put it in a more clear or authoritative way than by using the words of Scrutton, L.J., in Skinner vs Geary ,560), that the object was to protect the person residing in a dwelling house from being turned out of his home." All these three cases clearly show that whenever any legislation is passed relating to control of rents, that legislation can be effective and can serve its purpose only if it also regulates eviction of tenants.
Consequently, when in entry 3 of List I the power is granted to Parliament specifically to legislate on control of rents, that power cannot be effectively exercised unless it is held that Parliament also has the power to regulate eviction of tenants whose rents are to be controlled.
Such power must, therefore, be necessarily read in the expression "regulation of house accommodation".
Of course, it has to be remembered that this power (1) (2) 451 reserved for Parliament is to be exercised in respect of house accommodation situated in cantonment areas only and not other areas the legislative power in respect of which is governed by entries either in List II or in List III.
This view that we are taking is also borne out by the historical background provided by the legislation relating to cantonments and house accommodation in cantonments in India.
Carnduff in his book on "Military and Cantonment Law in India" has indicated how the need for legislating with the object of overcoming difficulties experienced by military officers in obtaining suitable accommodation in cantonments came under consideration, and has stated : "In the early days of the British dominion in India, the camps, stations, and posts of the field army gradually developed into cantonments, where troops were regularly garrisoned.
The areas so occupied were at first set apart exclusively for the military and intended for occupation by them only; but, by degrees, non military persons were admitted land was taken possession of by them, and houses were built under conditions laid down by the Government from time to time.
These conditions were undoubtedly framed with the main object of rendering accommodation always primarily available for the military officers whose duties necessitated their residence within cantonment limits." (p. clxii).
He goes on to relate that a Bill which ultimately became the Contonments Act, 1889, originally contained a set of provisions on the subject, insisting on the prior claim of military officers to occupy houses in cantonments and proposing that disputes as to the rent to be paid and the repairs to be executed should be referred to, and settled by, committees of arbitration.
That part of the Bill was, however, omitted as it evoked considerable opposition and a separate measure was, consequently, taken up, but not till after many years of discussion.
The new Bill was introduced in the Governor General 's Council in 1898, and was passed into law as the Cantonments (House Accommodation) Act II of 1902.
The main provision in this Act was that, on the Act being applied to any cantonment, every house situated therein became liable to appropriation at any time for occupation by a military officer.
It recognised the paramount claim of the military authorities to insist upon houses in cantonments being, where necessary, made primarily available for occupation by the military officers stationed therein.
In addition, a provision was made in section 10 that no house in any cantonment or part of a cantonment was to be occupied for the purposes of a hospital, bank, hotel, shop or school, or by a railway administration, without the previous sanc 452 tion of the General Officer of the Command, given with the concurrence of the Local Government.
This provision, thus, clearly regulated the letting out of houses in a cantonment even for some of the civilian purposes, such as hospital, bank, etc.
The reason obviously was that it was considered inappropriate that a house occupied for such a purpose should be required to be vacated in order to make the house available for military officers.
Keeping the primary object of facilitating availability of house accommodation for military officers in view, even private letting out was, thus, regulated at that earliest stage.
Subsequently came the Cantonments (House Accommodation) Act VI of 1923 which was in force when the Government of India Act was enacted, as well as at the time when the Constitution came in to force.
This Act also contained similar provisions which permitted military authorities to direct an owner to lease out a house to the Central Government, to require the existing occupier to vacate the house and to refrain from letting out any house for purposes of a hospital, school, school hostel, bank, hotel, or shop, or by a railway administration.
a company or firm engaged in trade or business or a club, without the previous sanction of the Officer Commanding the District given with the concurrence of the Commissioner or, in a Province where there are no Commissioners, of the Collector.
This Act also, thus, interfered with and regulated letting out of house accommodation by owners for civilian purposes even though, at the time of letting, the house was not required for any military purpose.
It was in the background of this legislative history that provision was made in the Government of India Act in entry 2 of List I of the Seventh Schedule reserving for the Federal Legislature the power to legislate so as to regulate house accommodation in cantonment areas.
and the same power with further clarification was reserved for Parliament in entry 3 of List I of the Seventh Schedule to the Constitution.
Obviously, it could not be intended that Parliament should not be able to pass a law containing provisions similar to the provisions in these earlier Acts which did interfere with private letting out of house accommodation in cantonment areas by owners for certain purposes.
Another aspect that strengthens our view is that if we were to accept the interpretation sought to be put on behalf of the appellant that the power of Parliament is confined to legislation for the purpose of obtaining house accommodation in cantonment areas for military purposes and excludes legislation in respect of house accommodation not immediately required for military purposes, all that Parliament will be able to do will be to make provision for acquisition or requisition of house accommodation.
On the house accommodation being acquired or requisitioned, it will be available for use by military authorities.
Such power, obviously, could riot be intended to be conferred by entry 3 in List I when 453 the same power is specifically granted concurrently to both Parliament and the State Legislatures under entry 42 of List III of the Seventh Schedule to the Constitution.
On behalf of the appellant, reliance was placed on some decisions of some of the High Courts in support of the proposition that the power of Parliament under entry 3 of List I does not extend to regulating the relationship between landlord and tenant which power vests in the State Legislature under entry 18 of List II.
The first of these cases is A. C. Patel vs Vishwanath Chada(1) where the Bombay High Court was dealing with entry 2 of List I of the Seventh Schedule to the Government of India Act, 1935 and entry 21 of List 11 of that Act.
The Court was concerned with the applicability of the Bombay Rent Restriction Act No. 57 of 1947 to cantonment areas.
Opinion was first expressed that the Rent Restriction Act had been passed by the Provincial Legislature under Entry 21 of List II and reliance was placed on the English interpretation Act to hold that land in that entry would include buildings so as to confer jurisdiction on the Provincial Legislature to legislate in respect of house accommodation.
Then, in considering the effect of Act 57 of 1947, the Court said : "As the preamble of the Act sets out, the Act was passed with a view to the control of rents and repairs of certain premises, of rates of hotels and lodging houses, and (A evictions.
Therefore, the pith and substance of Act LVII of 1947 is to regulate the relation between landlord and tenant by controlling rents which the tenant has got to pay to the landlord and by controlling the right of the landlord to evict his tenant.
Can it be said that when the Provincial Legislature was dealing with these relations between landlord and tenant, it was regulating house accommodation in cantonment areas ? In our opinion, the regulation contemplated by Entry 2 in List I is regulation by the State or by the Government.
Requisitioning of property, acquiring of property, allocation of property, all that would be regulation of house accommodation, but when the Legislature merely deals with relations of landlord and tenant, it is not in any way legislating with regard to house accommodation.
The house accommodation remains the same, but the tenant is protected quae his landlord.
" We have felt considerable doubt whether the power of legislating on relationship between landlord and tenant in respect of house accommodation or buildings would appropriately fall in Entry 21 of List II of the Seventh Schedule to the Government of India (1) I.L.R. 3SupCI69 15 , or in the corresponding Entry 18 of List II of the Seventh Schedule to the Constitution.
These Entries permit legislation in respect of land and explain the scope by equating it with rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents.
It is to be noted that the relation of landlord and tenant is mentioned as being included in land tenures and the expression "land tenures" would not, in our opinion, appropriately cover tenancy of buildings or of house accommodation.
That expression is only used with reference to relationship between landlord and tenant in respect of vacant lands.
In fact, leases in respect of non agricultural property are dealt with in the Transfer of Property Act and would much more appropriately fall within the scope of Entry 8 of List III in the seventh Schedule to the Government of India Act read with Entry 10 in the same List, or within the scope of Entry 6 of List III in the Seventh Schedule to the Constitution read with Entry 7 in the same List.
Leases and all rights governed by leases, including the termination of leases and eviction from pro perty leased, would be covered by the field of transfer of property and contracts relating thereto.
However, it is not necessary for us to express any definite opinion in this case on this point because of our view that the relationship of landlord and tenant in respect of house accommodation situated in cantonment areas is clearly covered by the Entries in List I.
In the Constitution, the effect of Entry 3 of List I is that Parliament has exclusive power to make laws with respect to the matters contained in that Entry, notwithstanding the fact that a similar power may also be found in any Entry in List 11 or List III.
Article 246 of the Constitution confers exclusive power on Parliament to make laws with respect to any of the matters enumerated in List 1, notwithstanding the concurrent power of Parliament and the State Legislature, or the exclusive power of the State Legislature in Lists III and 11 respectively.
The general power of legislating in respect of relationship between landlord and tenant exercisable by a State Legislature either under Entry 18 of List II or Entries 6 and 7 of List III is subject to the overriding power of Parliament in respect of matters in List 1, so that the effect of Entry 3 of List I is that, on the subject of relationship between landlord and tenant insofar as it arises in respect of house accommodation situated in cantonment areas, Parliament alone can legislate and not the State Legislatures.
The submission made that this interpretation will lead to a conflict between the powers conferred on the various Legislatures in Lists I, II and III has also no force, because the reservation of power for Parliament for the limited purpose of legislating in 'respect of cantonment area only amounts to exclusion of this part of the legislative power from the general powers conferred on State Legislatures in the other two Lists.
This kind of exclusion is not confined only to legislation in respect of house accommodation in 455 cantonment areas.
The same Entry gives Parliament jurisdiction to make provision by legislation for local self government in cantonment areas which is clearly a curtailment of the general power of the State Legislatures to make provision for local self government in all areas of the State under Entry 5 of List R.
That Entry 5 does not specifically exclude cantonment areas and, but for Entry 3 of List I, the State Legislature would be competent to make provision for local government even in cantonment areas.
Similarly, power of the State Legislature to legislate in respect of : (i) education, including universities, under Entry 1 1 of List 11 is made subject to the provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List III; (ii) regulation of mines and mineral development in Entry 23 of List II is made subject to the provisions of List I with respect to regulation and development under the control of the Union; (iii) industries in Entry 24 of List 11 is made subject to the provisions of Entries 7 and 52 of List 1; (iv) trade and commerce within the State in Entry 26 of List II is made subject to the provisions of Entry 33 of List III; (v) production, supply and distribution of goods under Entry 27 of List 11 is made subject to the provisions of Entry 33 of List III; and (vi) theatres and dramatic performances; cinemas in Entry 33 of List 11 is made subject to the provisions of Entry 60 of List I. Thus, the Constitution itself has specifically put down entries in List II in which the power is expressed in general terms but is made subject to the provisions of entries in either List I or List III.
In these circumstances, no anomaly arises in holding that the exclusive power of Parliament for regulation of house accommodation including control of rents in cantonment areas has the effect of making the legislative powers conferred by Lists 11 and III subject to this power of Parliament.
In this view, we are unable to affirm the decision of the Bombay High Court in A. C. Patel 's case(1) which is based on the interpretation that Entry 2 in List I of the Seventh Schedule to the Government of India Act only permitted laws to be made for requisitioning of property, acquiring of property and allocation of property only.
The same High Court, in a subsequent case in F. E. Darukhanawalla vs Khemchand Lalchand(2), placed the same interpretation on Entry 3 of List I of the Seventh Schedule to the Constitution.
That decision was also based on the same interpretation of the scope of regulation of house accommodation as was accepted by that Court in the earlier case.
The Nagpur High Court in Kewalchand vs Dashrathlal(3) pro ceeded on the assumption that the decision in the case of A. C. Patel vs Vishwanath Chada(1) correctly defined the scope of Entry (1) I.L.R. (2) I.L.R. (3) I.L.R. 3 Sup.
CI 69 16.
456 2 in List I of the Seventh Schedule to the Government of India Act, and considered the narrow question whether the relationship of landlord and tenant specifically mentioned in Entry 21 in List It of that Act covered the requirement of permission to serve a notice for eviction in regulating the relation of landlord and tenant and fell within the scope of Entry 21 in List II or in Entry 2 in List I of that Act.
The Court held that it substantially fell in Entry 21 in List II and not in Entry 2 in List I.
That Court did not consider it necessary to express any opinion on the question whether the expression "regulating of house accommodation" included something besides what Chagla, C.J., had said was its ambit in the case of A. C. Patel vs Vishwanath Chada(1), but expressed the opinion that the expression could not be stretched to include the aspect of the relation of landlord and tenant involved in that particular case.
It is clear that, in, that case also, a narrow interpretation of the expression "regulation of house accommodation" was accepted, because it appears that there was no detailed discussion of the full scope of that expression.
Similar is the decision of the Patna High Court in Babu Jagtanand vs Sri Satyanarayanji and Lakshmiji Through the Shebait and Manager Jamuna Das (2) .
In fact, this last case merely followed the decision a the Bombay High Court in the case of F. E. Darukhanawalla vs Khemchand Lalchand(3).
On the other hand, the Rajasthan High Court in Nawal Mal vs Nathu Lal(4) held that the power of the State Legislature to legislate in respect of landlord and tenant of buildings is to be found in Entries 6, 7 and 13 of List III of the Seventh Schedule to the Constitution and not in Entry 18 of List 11, and that that power was circumscribed by the exclusive power of Parliament to legislate on the same_subject under Entry 3 of List I.
That is also the view which the Calcutta High Court has taken in the judgment in appeal before us.
We think that the decision given by the Calcutta High Court is correct and must be upheld.
The appeal fails and is dismissed with costs payable to plaintiff respondent only.
R.K.P.S. (1) I.L. R. (2) I.L.R. 40 Patna 625.
(3) I.L.R. (4) I.L.R. R.K.P.S Appeal dismissed.
| IN-Abs | The first respondent, who was the owner of certain premises situated within the cantonment area of Barrackpore filed a suit for the appellant 's eviction from the premises.
In the plaint it was claimed that the appellant was not entitled to the protection of the West Bengal Premises Tenancy Act 12 of 1956, the regulation of house accommodation including control of rents being a subject in Entry 3 of List I of the Seventh Schedule to the Constitution, the State Legislature could not competently enact a law on the same subject for Cantonment areas and the extension of the Act to the cantonment area was ultra vires and void.
Upon the Trial Court making a reference under section 113 C.P.C. to the High Court for a decision of the constitutional question, that court upheld the first respondents contention.
In appeal to this Court it was contended that the High Court was in error in holding that the field of legislation covered by the Act, which is primarily concerned with control of rents and eviction of tenants, is included in the expression "regulation of house accommodation in cantonment areas" used in Entry 3 List I, regulation of house accommodation will not include within it laws or rules on the subject of relationship of landlord and tenant of buildings situated in the cantonment areas.
On the other hand according to the appellant, legislation on this subject can be made either under entry 18 of List 11, or entries 6, 7 and 13 of List III, so that a State Legislature is competent to legislate and regulate relationship between landlord and tenant in the cantonment areas; that under Entry 3 List I Parliament is empowered to legislate in respect of house accommodation situated in cantonment areas only to the extent that house accommodation is needed for military purposes and laws are required for requisitioning or otherwise obtaining possession of that accommodation for such purposes.
The alternative submission made was that regulation of house accommodation by parliamentary law should be confined to houses acquired, requisitioned or allotted for military purposes.
Entry 3, List I, according to the appellant, should not be read as giving Parliament the power to legislate on the relationship of landlord and tenant in respect of houses situated in cantonment areas if such houses are let out privately by a private owner to his tenant and have nothing at all to do with the requirements of the military.
HELD : Dismissing the appeal, When power is granted to Parliament under Entry 3 List I to make laws for the regulation of house accommodation in cantonment areas, there are no qualifying words to indicate that the house accommodation, which is to be subject to such legislation, must be accommodation 444 required for military purposes, or must be accommodation that has already been acquired, requisitioned or allotted to the military.
[447B] When legislating in respect of local self government in cantonment areas, it is obvious that Parliament will have to legislate for the entire cantonment area including portions of it which may be in possession of civilians and not military authorities or military officers.
Similarly, the powers of the cantonment authorities, which could be granted by legislation by Parliament, cannot be confined to those areas or buildings which are in actual possession of military authorities or officers and must be in respect of the entire cantonment area including those buildings and lands which may be in actual ownership as well as occupation of civilians.
In these circumstances, there is no reason to narrow down the scope of legislation on regulation of house accommodation and confine it to houses which are required or are actually in possession of military authorities or military officers.
[447F H] The word "regulation" cannot be so narrowly interpreted as to be confined to allotment only and not to other incidents, such as termination of existing tenancies and eviction of persons in Possession of the house accommodation.
Entry 3 List I gives power to Parliament to pass legislation for the purpose of directing or controlling all house accommodation in cantonment areas.
[448 D] Prout vs Hunter, , Property Holding Co. Ltd. vs Clark, and Curl vs Angelo & Anr. , referred to.
In the Constitution, the effect of Entry 3 of List I is that Parliament has exclusive power to make laws with respect to the matters contained in that Entry, notwithstanding the fact that a similar power may also be found in any Entry in List 11 or List 111.
Article 246 of the Constitution confers exclusive power on Parliament to make laws with respect to and of the matters enumerated in List 1, notwithstanding the concurrent power of Parliament and the State Legislature, or the exclusive power of the State Legislature in Lists III and 11 respectively.
The general power of legislating in respect of relationship between landlord and tenant exercisable by a State Legislature either under Entry 18 of List 11 or Entries 6 and 7 of List 111 is subject to the overriding power of Parliament in respect of matters in List 1, so that the effect of Entry 3 of List I is that, on the subject of relationship between landlord and tenant insofar as it arises in respect of house accommodation situated in cantonment areas, Parliament alone can legislate and not the State Legislatures.
[454E G] A.C. Patel vs Vishwanath Chada, I.L.R. , F.E. Darukhanawalla vs Khemchand Lalchand, I.L.R. [1954] Bom.
544, Kewalchand vs Dashrathlal, I.L.R. and Babu Jagtanand vs Sri Satyanarayanji and Lakshmiji through the Sheba it and Manager Jamuna Das, I.L.R. 40 Pit.
625, disapproved.
Nawal Mal vs Nathu Lal, I.L.R. , approved.
|
Appeal No. 154 of 1953.
Appeal by Special Leave against the Judgment and Decree dated the 8th January, 1953, of the High Court of Judicature at Bombay in Appeal No. 117 of 1952 arising out of Suit No. 235 of 1949 in the said High Court.
M. C. Setalvad, Attorney General for India, and C. K. Daphtary, Solicitor General for India, (Porus A. Mehta, with them) for the appellants.
N.A. Palkhivala and section P. Varma for respondent No. 1. 1954.
May 14.
The Judgment of the Court was delivered by BHAGWATI J.
207 BHAGWATI J.
This appeal by special leave from a judgment of the High Court of Judicature at Bombay in Appeal No. 117 of 1952 raises a short point as to the construction of clause 3 of the Requisitioned.
Land (Continuance of Powers) Ordinance, 1946.
The suit out of which this appeal arises was commenced by the first respondent against the appellants and the second respondent for delivery of vacant and peaceful possession of the three shops situated 'on the ground floor of the premises known as "Irani Manzil.
" The first respondent was the owner of the said immovable property which had been requisitioned on the 15th April, 1943, by the Collector of Bombay in exercise of the powers conferred upon him by, rule 75 A(1) of the Defence of India Rules read with the Notification of the Government, Defence Co ordination Department, No. 1336/OR/1/42 dated the 15th April, 1942.
The order of requisition was in the following terms: "Order No. M.S.C. 467/H Whereas it is necessary for securing the public safety and the efficient prosecution of the war to requisition the property specified in the schedule hereto appended. . 1, M.A. Faruqui, the Collector of Bombay, do hereby requisition the said property and direct that possession of the said property be delivered forthwith to the Food Controller, Bombay, subject to the following conditions: (1)The property shall be continued in requisition during the period of the present war and six 'months thereafter, or for such shorter period as may be specified by the Food Controller, Bombay. . . " The said premises were used for the purpose of housing the Government Grain Shop No. 176.
By a letter dated the 30th July, 1946/17th August, 1946, the Controller of Government Grain Shops, Bombay, wrote to the first respondent that as the validity, of the requisitioning order was to expire on the 30th September, 1946, the first respondent should allow the Department to remain as her tenants in respect of the premises.
The first respondent replied by her advocate 's letter dated the 27th August, 1946, 208 offering the tenancy to the Department on certain terms.
These terms were not accepted but the occupation of the premises continued even after the 30th September, 1946, and the first respondent complained about such occupation after the period of requisition of the said shops had come to anend and also complained that it was contemplated to transfer the said shops to a private party or concern without any reference to her in the matter.
By her advocate 's letter dated the 29th August, 1947, she gave to the Collector of Bombay a notice to vacate the said shops giving him two clear calendar months ' time and asking him to deliver over to her peaceful and vacant possession of the said shops.
The Controller of Government Grain Shops, Bombay, wrote to the first respondent on the 1st October, 1947, that the second respondent was being handed over the Government Grain Shop No. 176 and that she should give her consent to the electric connection to be carried out in the said shops by the second respondent.
The first respondent refused to giver her consent and protested against the contemplated action.
The Collector, of Bombay by his letter dated the 15th January, 1948, intimated to the first respondent that the requisitioning of the said shops was continued after the 30th September, 1946, by Act XVII of 1947 and as possession of the said shops had been handed over to the second respondent vacant possession of the same could not be given to the first respondent.
Further correspondence ensued between the first respondent 's attorneys and the Collector of Bombay in the course of which the Collector of Bombay admitted that the said shops had been sublet to the second respondent but contended that the maintenance of essential supplies was the purpose for which the premises in question were requisitioned and that as the second respondent continued to serve the same purpose the first respondent was not entitled to peaceful and vacant possession of the premises.
The first respondent therefore filed a suit on the original side of the High Court.
of Judicature at Bombay being Suit No. 235 of 1949 claiming vacant and peaceful possession 209 of the premises as also compensation for wrongful use and occupation thereof till delivery of possession was given over to her.
The appellants were impleaded as defendants Nos. 1 and 2 in the said suit and the second respondent was impleaded as the third defendant.
The suit was contested by the appellants.
The second respondent did not file any written statement nor did he contest the suit.
The first respondent contended that, the requisitioning order had expired, that the property was no longer under requisition and therefore the possession by the Government was wrongful.
She next contended that the order was made for a specific purpose and as that purpose no longer obtained the order was no longer operative.
She further contended that after August, 1947, the user of the property was not by the appropriate Government, viz., the Dominion of India, but was by the State Government.
She also contended that the requisitioning order had ceased to be operative by reason of Act IX of 1951.
The trial Judge, Mr. Justice Coyajee, upheld all these contentions of the first respondent and decreed the suit.
The appellants preferred an appeal against that decision and the Court of Appeal confirmed the decree passed by the trial.
Court on the short point as to whether clause 3 of Ordinance No. XIX of 1946 had the effect of continuing the requisitioning order.
It affirmed the conclusion of the trial Court that there was no further extension of the duration of the requisitioning order by the provisions of clause 3 of the Ordinance and declined to go into the other questions which had been mooted before the trial Court and which had been decided by the trial Court in favour of the first respondent.
The appellants not being satisfied with that judgment applied for leave to appeal to the Supreme Court, but the High Court rejected that application.
The appellants thereupon applied for and obtained special leave under article 136 of the Constitution.
It is common ground that the Defence of India Act, 1939 (XXXV of 1939), and the rules made thereunder 27 210 were to expire on the 30th September, 1946.
Various immoveable properties had been requisitioned in exercise of the powers conferred by sub rule I of rule 75A of Defence of India Rules and all these requisitioning orders would have come to an end and the immoveable properties released from requisition on the, expiration of the Defence of India Act and the rules made thereunder.
These requisitions had to be continued and an emergency arose which made it necessary to provide for the continuation of certain powers theretofore exercisable under the said Act and the said rules and the Governor General in exercise of the powers conferred by section 72 of the Government of India Act promulgated on the 26th September, 1946, an Ordinance being Ordinance No. XIX of 1946, the relevant provisions of which may be set out hereunder "ORDINANCE NO.
XIX OF 1946.
An Ordinance to provide for the continuance of certain emergency powers in relation to requisitioned land. .
Whereas an emergency has arisen which makes it necessary to provide, in relation to land which, when the Defence of India Act, 1939 (XXXV of 1939), expires, is subject to any requisition effected under rules made under that Act, for the continuance of ' certain powers theretofore exercisable under the said Act or the said rules. . . the Governor General is pleased to make and promulgate the following Ordinance:. . . . 2. DEFINITIONS. . . . (3) " Requisitioned land " means immoveable property which, when the Defence of India Act, 1939 (XXXV of 1939), expires is subject to any requisition effected under the rules made under this Act. . Seen.
Continuance of requisitions Notwithstanding the expiration of the Defence of India Act, 1939 (XXXV.
of 1939), and the rules made thereunder, all requisitioned lands shall continue to be subject to requisition until the expiry of this Ordinance and the appropriate Government may use or deal with any requisitioned land in such manner a& may appear to it to be expedient," 211 It is clear from the preamble as also clause 3 of the Ordinance that the occasion for the enactment of the Ordinance was the impending expiration of the Defence of India Act, 1939, and the rules made thereunder.
All the requisition orders which had been made under the Act and the rules would have ceased to be operative and come to an end with the expiration of the Act and the rules and the immovable properties which had been requisitioned thereunder would have been released from such requisition.
It was in view of that emergency that the Ordinance came to be promulgated and the obvious object of the enactment was to provide for the continuance of the powers exercisable under the Act and the rules and to continue the requisitions of immoveable properties which had been made thereunder.
It was therefore argued that those requisition orders which would cease to be operative and come to an end with the expiration of the Act and the rules were the only orders which were intended to be continued by virtue of clause 3 of the Ordinance and clause 3 would accordingly cover only such requisition orders as would have.
ceased to be operative and come to an end with the expiration of the Act and the rules and not those orders which by reason of their inherent weakness such as the limitation of the period of duration expire ipso facto on the date of the expiration of the Act and the rules.
The latter category of orders would have ceased to be operative and come to an end by reason of the limitation placed on the period of duration within the terms of the orders themselves and their expiration would not have depended upon the expiration of the Act and the rules and were therefore not touched by clause 3 of the Ordinance.
That this was the true construction of clause 3 of the Ordinance was further sought to be supported by the non obstante clause appearing therein, viz., "Notwithstanding the expiration of the Defence of India Act, 1939 (XXXV of 1939), and the rules made thereunder.
" The non obstante clause was invoked in support of the submission that those orders which would have ceased to be operative and come to an end with the expiration of the Act and the rules were the only orders which were intended to be, continued under clause 3 of the Ordinance.
212 There is considerable force in the argument and it found favour with the trial Court as well as the Court of appeal.
It was recognised that but for the non obstante clause the plain wording of the Ordinance was capable of covering the order in dispute.
The preamble in so far as it could be drawn upon for the purpose showed that the Ordinance was being enacted to provide for the continuation of certain powers in relation to land which was subject to any requisition effected under the Act and the rules.
The definition of requisitioned lands contained in clause 2(3) also covered immoveable property which when the Defence of India Act, 1939, expired was subject to any requisition effected under the Act and the rules.
Clause 3 of the Ordinance covered all requisitioned lands which having regard to the definition above mentioned covered immovable properties which when the Defence of India Act, 1939, expired were subject to any requisition effected under the Act and the rules and such requisitioned lands were to continue to be subject to requisition until the expiry of the Ordinance.
On a plain and grammatical construction of these provisions it was obvious that once you had an immovable property which when the Defence of India Act expired, that is on the 30th September, 1946, was subject to any requisition effected under the Act and the rules, that immovable property continued to be subject to requisition until the expiry of the Ordinance, no matter whether the requisition order to which the immovable property was subject was of a limited duration or an indefinite duration.
The only test was whether the immovable property in question was on the 30th September, 1946, subject to any requisition effected under the Act and the rules.
This construction was sought to be negatived by having resort to the non obstante clause which, it was submitted, restricted the operation of clause 3 of the Ordinance only to those cases where the requisition order would have ceased to be operative or come to an end merely by reason of the expiration of the Act and the rules.
If there was in existence on the 30th September, 1946, any requisition order which would have ceased to be operative or come to an end by reason of the fact that it was limited in duration and 213 was to expire on the 30th September, 1946, the non obstante clause saved that from the operation of clause 3 of the Ordinance and such requisition order could not continue in operation until the expiry of the Ordinance as therein provided.
Such orders could not have been in the contemplation of the legislative authority because they would cease to be operative and come to an end by reason of the inherent weakness of the orders and not by reason of the fact that the Act and the rules were to expire on the 30th September, 1946, and it would not be at all necessary to make any provision for the continuance of such requisitions, because they could never have been intended to be continued.
While recognising the force of this argument it is however necessary to observe that although ordinarily there should be a close approximation between the non obstante clause and the operative part of the section, the non obstante clause need not necessarily and always be co extensive with the operative part, so as to have the effect of cutting down the clear terms of an enactment.
If the words of the enactment are clear and are capable of only one interpretation on a plain and grammatical construction of the words thereof, a non obstante clause cannot out down that construction and restrict the scope of its operation.
In such cases the non obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the Legislature by way of abundant 'caution and not by way of limiting the ambit and scope of the operative part of the enactment.
Whatever may have been the presumed or the expressed intention of the legislating authority when enacting the Ordinance No. XIX of 1946, the words of clause 3 read along with the definition of requisitioned land contained in clause 2(3) of the Ordinance are quite clear and it would not be within the province of the Courts to speculate as to what was intended to be covered by clause 3 of the Ordinance when the only interpretation which could be put upon the terms thereof is that all requisitioned lands, that is, all immoveable properties which when the Defence of India Act, 1939, expired were subject to any requisition effected under the Act and the rules were to continue 214 to be subject to requisition until the expiry of the Ordinance.
No doubt measures which affect the liberty of the subject and his rights to property have got to be strictly construed.
But in spite of such strict construc tion to be put upon the provisions of this Ordinance one cannot get away from the fact that the express provisions of clause 3 of the Ordinance, covered all cases of immoveable properties which on the 30th September, 1946, were subject to any requisition effected under the Act and the rules, whether the requisition was effected for a limited duration or for an indefinite period.
Even those requisition orders, which by accidentor design were to expire on the 30th Septem ber, 1946, would come to an end not only because the fixed term expired but also because the Act and the Rules expired on that date and were therefore covered by_ clause 3 read along with the definition in clause 2(3) of the Ordinance and were by the clear terms thereof continued until the expiry of the Ordinance.
We are not here concerned with the equities of individual cases.
There may be cases in which the Ordinance worked to the prejudice of the owner of the requisitioned land.
In such cases the necessary relief could be granted by the appropriate Government by releasing the immoveable property from requisition.
But the Courts would be helpless in the matter.
Once the conclusion was reached that a particular measure was lawfully enacted by a legislative authority covering the particular case in question the hands of the Court would be tied and the legislative measure would have to be given its legitimate effect, unless mala fides or abuse of power were alleged.
We have therefore come to the conclusion that both the trial Court and the Court of appeal were in error when they reached the conclusion that clause 3 of the Ordinance had not the effect of continuing the requisition order in question.
Mr. Palkhivala at the close of the arguments appealed to us that his client was a petty landlady and the immoveable property which she owned was of a small value and the result of an order of remand would be to put her to further harassment and costs.
He pointed out to us that he had particularly requested the Court of appeal not to decide the appeal merely on the short 215 point in regard to the construction of clause 3 of the Ordinance, but to decide it on all the points which had been canvassed before trial Court.
But the Court of appeal turned down his request and decided the appeal only on that point stating that it; was unnecessary to go into the other points which Mr. Palkhivala wanted to urge before it.
It is to be regretted that the Court of appeal did not respond to Mr. Palkhivala 's request, but we have not had the benefit of the judgment of the Court of appeal on those points which found favour with the trial Court and which were not considered by the Court of appeal and we cannot help remanding the matter to the Court of appeal with a direction that the appeal be disposed of on all the points which were dealt with by the trial Court.
It was unfortunate for the first respondent to be pitted against the appellants who considered that this was a test case and the matter had to be fought out in detail inasmuch as it affected a series of cases And the properties involved would be considerable as alleged by Mr. Seervai before the trial Court.
We are not concerned with the policy of the appellants in making test cases of this character.
The only thing that impresses us in this case is that the unfortunate first respondent has had to bear the brunt of the battle and has been worsted in this preliminary point which was found in her favour both by the trial Court and the Court of appeal.
We cannot make any order for costs in her favour.
But we think that the justice of the case requires that the appellants as well as the first respondent will bear and pay their own respective costs both here and in the Court of appeal.
We therefore allow the appeal, set aside the decree passed by the Court of appeal and remand the Appeal No. 117 of 1952 for hearing and final disposal by the Court of appeal on the other points which have been raised in the matter after hearing both the parties.
There will be no order as to costs here as well as in the Court of appeal.
Appeal allowed.
| IN-Abs | Three shoprooms were requisitioned on April 15, 1943, under the Defence of India Rules and the requisition order inter alia stated that is the said requisitioned property shall be continued in requisition during the period of present war and six months thereafter or for such shorter period as may be specified by the Food Controller, Bombay. .
Held, that on a plain and grammatical construction of cls.
2(3) and 3 of Ordinance XIX of 1946, the immoveable property which when the Defence of India Act expired on the 30th September, 1946, was subject to any requisition order effected under the Act and the rules thereunder, continued to be subject to requisition until the expiry of Ordinance, no matter whether the requisition order to which the immoveable property was subject was of a limited duration or an indefinite period.
The ordinary rule is that there should be a close approxima tion between the non obstante clause and the operative portion of the section but the non obstante clause need not necessarily and always be co extensive with the operative part if it has the effect of cutting down the clear terms of an enactment.
|
l Appeals Nos.
1567 of 1968, 585 to 1026 and 1027 to 1082 of 1969.
Appeals by special leave from the orders dated March 28, 1968 and July 20, 1968 of the Labour Court (11), U.P., Lucknow in Misc.
Cases Nos. 102 of 1965 etc.
M. C. Chagla, Harish Chandra, H. K. Purl and Bishambar Lal for the appellant (in all the appeals).
J. P. Goyal and V. C. Prashar, for respondent No. 1 (in all the appeals).
section P. Nayar, for the Attorney General (in C.As.
585 to 1026 and 1027 to 1082 of 1969).
The Judgment of the, Court was delivered by Shah, J.
These three groups of appeals arise out of orders made by the Presiding Officer, Labour Court (11), U.P., Lucknow awarding retrenchment compensation to certain employees of the U.P. Electric Supply Company Ltd. (in liquidation).
In the last group of appeals orders of the Labour Court awarding in addition thereto compensation for earned leave not enjoyed by the employees are also challenged.
The U.P. Electric Supply Company Ltd. hereinafter called the Company ' held two licences issued in 1914 by the Government of U.P. for generating and distributing electricity within thetowns of Allahabad and Lucknow.
The periods of the licenses expired in 1964.
Pursuant to the provisions of paragraph 12(1) in each of the said licenses and in exercise of the power under section 6 of the , the State Electricity Board, U.P. hereinafter referred to as "the Board took over the undertaking of the Company at Allahabad and Lucknow from the mid night of September 16, 1964.
The Company accordingly 510 ceased to carry on the business of generation and distribution of electricity in the areas covered by the original licences.
All the workmen of the undertakings at Allahabad and Lucknow were taken over in the employment of the Board with effect from September 17, 1964, without any break in the continuity of employment.
On December 22, 1964, 443 workmen employed in the Allahabad undertaking filed before the Labour Court, applications under section 6 H(2) of the U.P. , for payment of retrenchment compensation and salary in lieu of notice.
The work men submitted that fresh letters of appointment were issued by the Board on September 16, 1964, taking them in the employment of the Board with effect from September 17, 1964 "in the posts and positions which they previously held", but without giving credit for their past services with the Company.
The workmen contended that they were entitled to retrenchment compensation and salary in lieu of notice, and prayed for computation of those benefits in terms of money and for directions to the Company to pay them the amount so computed.
A group of 56 workmen employed at the Company 's undertaking at Lucknow also submitted applications under section 6H(2) of the U.P. , for payment of retrenchment compensation and salary in lieu of notice and also for compensation for accumulated earned leave not enjoyed by them till September 16, 1964.
In the applications filed by the workmen of the Allahabad undertaking, the Labour Court awarded to each workman retrenchment compensation at the rates specified in the order and also one month 's salary and costs.
To each workman of the Lucknow undertaking the Labour Court awarded retrenchment compensation at the rate specified, salary in lieu of one month 's notice, and also, wages for 30 days for earned leave not enjoyed by the workman before the closure of the undertaking, and costs.
The Company has appealed to this Court against the orders with special leave.
The orders for payment of retrenchment compensation are resisted by the Company on two grounds (i) that the Labour Court was incompetent to entertain and decide the applications for awarding retrenchment compensation; and (ii) that the workmen were not in fact retrenched, and in any event since the workmen were admitted to the service of the Board without break in continuity, and on terms not less favourable than the terms enjoyed by them with the Com 511 pany, the Company was under no liability to pay retrenchment compensation.
Some argument was advanced before us that in determining matters relating to the award of retrenchment compensation, the provisions of the , and not the U.P. , apply.
The question is academic, because on the points in controversy between the parties, the statutory provisions of the , and the U.P. , are substantially the same.
We may, however, briefly refer to this argument since, relying upon a judgment of this Court to be presently noticed, counsel for the workmen insisted that section 33 C(2) of the alone may apply.
After the enactment of the , by the Dominion Parliament, the U.P. , was enacted by the Provincial Legislature.
The scheme of them two Acts is substantially the same.
Chapter V A relating to layoff and retrenchment was added in the by Act 43 of 1953 with effect from October 24, 1953.
From time to time amendments were made in the provisions of the Act.
By section 25 J (2) it was provided "For the removal of doubts, it is hereby declared that nothing contained in this Chapter shall be deemed to affect the provisions of any other law for the time being in force in any State in so far as that law provides for the settlement of industrial disputes, but the rights and liabilities of employers and workmen in so far as they relate to lay off and retrenchment shall be deter mined in accordance with the provisions of this Chapter.
" After this sub section was incorporated in the , a group of sections including section 6 R were incorporated in the U.P. by U.P. Act 1 of 1957.
Section 6 R(2) provided : "For the removal of doubts, it is hereby declared that nothing contained in Sections 6 H to 6 R shall 'be deemed to affect the provision of any other law for the time being in force so far as that law provides for the settlement of industrial disputes, but the rights and liabilities of employers and workmen in so far as they relate to lay off and retrenchment shall be determined in accordance with the provisions of Sections 6 H to 6 Q." By virtue of section 6 R(2) the provisions of the U.P. , prima facie, apply in the matters of lay off and retrenchment, because under the Seventh Schedule to the Constitution 512 legislation in respect of "Trade Unions, Industrial and Labour Disputes" falls within Entry 22 of the Concurrent List and both the State and the Union are competent to legislate in respect of that field of legislation.
Whereas by adding section 25 J(2) it was enacted that under the , the rights and liabilities of employers and workmen in so far as they relate to lay off and retrenchment shall be determined in accordance with the provisions of Ch.
V A of that Act, by the U.P. Act as amended by Act 1 of 1957, section 6 R(2) enacts that the rights and liabilities of employers and workmen relating to lay off and retrenchment shall be determined in accordance with the provisions of sections 6 J to 6 Q. Competence of the State Legislature to enact section 6 R(2) is not denied.
Act 1 of 1957 received the assent of the President and by virtue of article 254(2) of the Constitution section 6 R(2) of the U.P. Act prevails, notwithstanding any prior law made by the Parliament.
The provisions of the U.P. Act including section 6 R(2) therefore apply in determining the rights and obligations of the parties in respect of retrenchment compensation.
The observation to the contrary made by this Court in Rohtak & Hissar Districts Electric Supply Company vs State of U.P. (1) which primarily raised a dispute relating to the validity of certain model standing orders proceeded upon a concession made at the Bar, and cannot be regarded as decisive.
Since the relevant provisions of the two Acts on the matter in controversy in these groups of appeals are not materially different, we do not think it necessary in this case to refer the question to a larger Bench.
We, accordingly, propose to refer only to, the provisions of the U.P.
Section 4 A of the U.P. Act authorises the State Government to constitute one or more Labour Courts for the adjudication of industrial disputes relating to any matter specified in the First Schedule and for performing such other functions as may be assigned to them under the Act.
The items specified in the First Schedule are 1.
The propriety or legality of an order passed by an employer under the Standing Orders; 2 .
The application and interpretation of Standing Orders 3 .
Discharge or dismissal of workman including reinstatement of, or grant of relief to, workmen wrongfully dismissed; 4.
Withdrawal of any customary concession or privilege; (1) 513 5.
Illegality or otherwise of a strike or lock out; and 6.
All matters other than those, specified in the Second Schedule.
" Section 4 B authorises the State Government to constitute one or more Industrial Tribunals for the adjudication of industrial disputes relating to any matter whether specified in the First Schedule or the Second Schedule.
Item 10 of the Second Schedule relates to "Retrenchment of workmen and closure of establishment".
Prima facie, disputes relating to retrenchment of workmen and closure of establishment fall within the exclusive competence of the Industrial Tribunal, and not within the competence of the Labour Court constituted under section 4 A.
The Company had expressly raised a contention that they had not retrenched the workmen and that the workmen had voluntarily abandoned the Company 's service by seeking employment with the Board ' even before the Company closed its undertaking.
The workmen contended by their petitions filed before the Labour Courts that they were retrenched, the Company contended that the workmen had voluntarily abandoned the employment under the Company because they found it more profitable to take up employment under the Board without any break in the same post and on the same terms and conditions on which they were employed by the Company.
This clearly raises the question whether there was retrenchment of workmen, which gave rise to liability to pay retrenchment compensation.
A dispute relating to retrenchment is exclusively within the competence of the Industrial Tribunal by virtue of item 10 of the Second Schedule to the U.P. , and is not within the competence of the Labour Court.
Section 6 H of the U.P. Act provides : (1) Where any money is due to a workman from an employer under the provisions of Sections 6 J to 6 R or under a settlement or award, or under an award given by an adjudicator or the State Industrial Tribunal appointed or constituted under this Act, before the com mencement of the Uttar Pradesh Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, the workman may, without prejudice to any other mode of recovery, make an application to the State Government for the recovery of the money due to him, and if the State Government is satisfied that any amount is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same as if it were an arrear of land revenue.
(2) Where any workman is entitled to receive from the employer any benefit which is capable of being computed in terms of money, the amount at which such 514 benefit should be computed may, subject to any rules that may be made under this Act be determined by such Labour Court as may be specified in this behalf by the State Government, and the amount so determined may be recovered as provided for in sub section (1).
(3) Under section 6 H(2) the Labour Court was competent to determine what each workman was entitled to receive from the employer by way of retrenchment compensation payable in terms of money and the denial of liability by the Company did not affect the jurisdiction of the Labour Court.
In several decisions of this Court the inter relation between sub sections
(1) & (2) of section 33 C (which are substantially in the same terms as sub sections
(1) & (2) of section 6 H of the U.P. ) was examined.
It was held by this Court in The Central Bank of India Ltd. vs P. section Rajagopalan etc.(1) that the scope of section 33 C(2) is wider than that of section 33 C(1).
Claims made under section 33 C(1) can only be those which are referrable to settlement, award or the relevant provisions of Ch.
V A, but those limitations are not to be found in section 33 C(2).
The three categories of claims mentioned in section 33 C(1) fall under section 33 C(2) and in that sense section 33 C(2) can itself be deemed to be a kind of execution proceeding, but it is possible that claims not based on settlements, awards or made under the provisions of Ch.
V A may also be competent under section 33 C(2).
Elaborating this thesis Gajendragadkar, J., who delivered the judgment of the Court observed (pp. 155 156) "There is no doubt that the three, categories of claims mentioned in section 33C(1) fall under section 33C(2) and in that sense, section 33C(2) can itself be deemed to be a kind of execution proceeding; but it is possible that claims not based on settlements, awards or made under the provisions of Chapter V A, may also be competent under section 33C(2) and that may illustrate its wider scope.
We would, however, like to indicate some of the claims which would not fall under section 33C(2), because they formed the subject matter of the appeals which have been grouped together for our decision along with the appeals with which we are dealing at present.
If an employee is dismissed or demoted and it is his case that the dismissal or demotion is wrongful, it would not be open to him to make a claim for the recovery of his salary or wages under section 33C(2).
His demotion or dismissal may give rise to an industrial dispute which may (1) 515 be appropriately tried, but once it is shown that the employer has dismissed or demoted him, a claim that the dismissal or demotion is unlawful and, therefore, the employee continues to be the workman of the employer and is entitled to the benefits due to him under a pre existing contract, cannot be made under section 33C(2).
" The same view was reiterated in Bombay Gas Co. Ltd. vs Gopal Bhiva and Others(1).
Mr. Goyal on behalf of the workmen, however, contended that in a recent judgment of this Court a different view has been expressed.
He invited our attention to The Board of Directors of the South Arcot Electricity Distribution Co. Ltd. vs N. K. Mohammad Khan, etc.(2).
In that case the Electricity undertaking was taken over by the Government of Madras in exercise of the powers conferred by the Madras Electricity Supply Undertakings (Acquisition) Act, 1954, and the employees of the undertaking were taken over by the new employer.
The employees claimed retrenchment compensation from the old employer under section 25FF, of the .
It was urged before this Court that the Labour Court was incompetent to decide the claim for retrenchment compensation.
This Court observed that section 25FF(b) applied as the terms of service under the new employer were less favourable than those under the old employer, and under the terms of sections 15 (1 ) & (2) of the Acquisition Act and sections 9A and 10 of the , liability to pay retrenchment compensation rested upon the previous employer and on that account the Labour Court was competent to entertain the petitions under section 33C(2).
The language of section 25FF in the view of the Court made it perfectly clear that if the right to compensation accrued under the Act, the workmen became entitled to receive retrenchment compensation, when under the Madras Act the undertaking stood transferred to the State Government from the Company.
Referring to the contention that the Labour Court was not competent to determine the liability to Day retrenchment compensation, where the liability itself was denied, the Court referred to the judgments of this Court in Chief Mining Engineer, East India Coal Co. Ltd. vs Rameswar and Others(3); State Bank of Bikaner (4) ; and Jaipur vs R. L. Khandelwal Punjab National Bank Ltd. vs K. L. Kharbanda(5); Central Bank of India vs P. section Rajagopalan and Others(6); and Bombay Gas Company Ltd. vs Gopal Bhiva and Others(1), and proceeded to observe that the right (1) [1964] (2) (3) [1968] 1 S.C.R. 140.
(4) (5) [1962] Supp. 2 S.C.R. 977.
(6) ; 516 which has been claimed by the various workmen in their applications under section 33C(2) of the Act was a right which accrued to them under section 25FF of the Act and was an existing right at the time when those applications were made, and the Labour Court had jurisdiction to decide, in dealing with the applications under that provision, whether such a right did or did not exist.
The mere denial of that right by the Company, it was said, could not take away its jurisdiction and that the order of the Labour Court was competently made.
The decision in the Central Bank of India vs P. section Rajago palan and Others(1), to which we have already referred, makes it clear that all disputes relating to claims which may be computed in terms of money are not necessarily within the terms of section 33C(2).
Again in Chief Mining Engineer, East India Coal Co. Ltd. vs Rameswar and Others (2 ) Shelat, J., observed : ". . that the right to the benefit which is sought to be computed under section 33C(2) must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between an industrial workman and his employer.
Since the scope of sub section
(2) is wider than that of sub section
(1) and the sub section is not confined to cases arising under an award, settlement or under the provisions of Ch.
V A, there is no reason to hold that a benefit provided for under a statute or a scheme made thereunder, without there being anything contrary under such statute or section 33C(2), cannot fall within sub section
Consequently, the benefit provided in the bonus scheme made under the Coal Mines Provi dent Fund and Bonus Schemes Act, 1948, which remains to be computed must fall under sub section
(2) and the Labour Court therefore had jurisdiction to entertain and try such a claim, it being a claim in respect of an existing right arising from the relationship of an industrial workman and his employer.
" That judgment clearly indicates that in order that a claim may be adjudicated upon under section 3 3C (2), there must be an existing right and the right must arise under an award, settlement or under the provisions of Ch.
V A, or it must be a benefit provided by a statute or a scheme made thereunder and there must be nothing .contrary under such statute or section 3 3C (2).
But the possibility of a mere claim arising under Ch.
V A is not envisaged by the Court in that case as conferring jurisdiction upon the Labour Court to decide matters which are essentially within the jurisdiction of the Industrial Tribunal.
(1) ; (2) [1968] 1 S.C.R. 140.
517 The legislative intention disclosed by sections 33 C ( 1 ) and 3 3 C (2) is fairly clear.
Under section 33 C(1) where any money is due to a workman from an employer under a settlement or an award or under the provisions of Ch.
V A, the workman himself, or any other person authorised by him in writing in that behalf, may make an application to the appropriate Government to recover of the money due to him.
Where the workman who is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money, applies in that behalf, the Labour Court may under section 33 C(2) decide the questions arising as to the amount of money due or as to the amount at which such benefit shall be computed.
Section 33 C(2) is wider than section 33C(1).
Matters which do not fall within the terms of section 33C(1) may, if the workman is shown to be entitled to receive the benefits, fall within the terms of section 33C(2).
If the liability arises from an award, settlement or under the provisions of Ch.
V A, or by virtue of a statute or a scheme made thereunder, mere denial by the employer may not be sufficient to negative the claim under section 33 C(2) before the Labour Court.
Where however the right to retrenchment compensation which is the foundation of the claim is itself a matter which is exclusively within the competence of the Industrial Tribunal to be adjudicated upon a reference, it would be straining the language of section 33C(2) to hold that the question whether there has been retrenchment may be decided by the, Labour Court.
The power of the Labour Court is to compute the compensation claimed to be payable to the workmen on the footing that there has been retrenchment of the workmen.
Where retrenchment is conceded, and the only matter in dispute is that by virtue of section 25FF no liability to pay compensation has arisen the Labour Court will be competent to decide the question.
In such a case the question is one of computation and not of determination, of the conditions precedent to the accrual of liability.
Where, however, the dispute is whether workmen have been retrenched and computation of the amount is subsidiary or incidental, in our judgment, the Labour Court will have no authority to trespass upon the powers of the Tribunal with which it is statutorily invested.
In the unreported judgment of this Court in The Board of Directors of the South Arcot Electricity Distribution Co. Ltd. vs N. K. Mohammed Khan, etc.(1) apparently the only argument advanced before this Court was that section 25FF applied to that case having regard to the fact that the terms of employment under the new employer were not less favourable than those immediately applicable to them before the transfer, and the Court proceeded to hold that the Labour Court was competent to determine the compensation.
(1) 518 The finding that the Labour Court was incompetent to decide .the applications of the workmen would be sufficient to dispose of the appeals before us.
But other arguments were advanced before us, and which have an important bearing on the claims made : we propose briefly to deal with these arguments.
Assuming that the Labour Court had jurisdiction to determine the liability of the Company to pay retrenchment compensation no order awarding retrenchment compensation could still be made without recording a finding that there was retrenchment of the workmen and compensation was payable for retrenchment.
Section 6 0 of the U.P. (which in its phraseology is somewhat different from section 25FF of the Industrial Disputes Act) provides : "Notwithstanding anything contained in Section 6 N no workman shall be entitled to compensation under that section by reason merely of the fact that there has been a change of employers in any case where the ownership or management of the undertaking in which he is employed is transferred, whether by agreement or by operation of law, from one employer to another Provided that (a) the service of the workman has not been interrupted by reason of the transfer; (b) the terms and conditions of service applicable to the workman after such transfer are not in any way less favourable than those applicable to him immediately before the transfer; and (c) the employer to whom the ownership or management of the undertaking is so transferred is, under the terms of the transfer or otherwise, legally liable to pay to the workman, in the event of his retrenchment, compensation on the basis that his service has been continuous and has not been interrupted by the transfer." In the present groups of appeals it is common ground that there was no interruption resulting from the undertaking being taken over by the Board.
The agreements between the Board and the workmen to admit the workmen into employment of the Board were reached before the undertakings of the Company were taken over.
The Company contended that the terms and conditions of service applicable to workmen after the transfer were not in any way less favourable to the workmen than those applicable to them immediately before the undertakings were taken ,over, and that the employer to whom the ownership or manage 519 ment of the undertakings were so transferred was, under the terms of the transfer or otherwise, legally liable to pay to the workmen, in the event of their retrenchment, compensation on the basis that their services had been continuous and had not been interrupted by the taking over.
The workmen denied that claim.
The Labour Court could award compensation only if it determined the matter in controversy in favour of the workmen it could not assume that the conditions of the proviso to section 6 0 were fulfilled.
Section 6 0 is in terms negative.
It deprives the workmen of the right to retrenchment compensation in the conditions mentioned therein.
The Company asserted that the conditions precedent to the exercise of jurisdiction did not exist.
The workmen asserted the existence of the conditions.
Without deciding the issue, the Labour Court could not compute the amount of compensation payable to the workmen.
On the assumption that the workmen had been retrenched and their claim fell within the proviso to section 6 0.
It was urged by Mr. Goyal on behalf of the workmen that this plea was not raised or argued before the Labour Court, and it cannot be permitted to be raised in this Court.
But this contention was raised in the reply filed by the Company, and the judgment of the Labour Court does indicate that its authority to decide that question was disputed.
We are unable to hold that the objection though raised was not urged before the Labour Court, and on that account to confirm the decision of the Labour Court which until the matter in controversy was decided could not be rendered.
Even if, therefore, the Labour Court was competent to entertain the dispute relating to award of retrenchment com pensation, the order made by the Labour Court must be set aside.
One more contention raised at the Bar by Mr. Chagla for the Company may be considered.
It was urged that the obligation to pay retrenchment compensation in the event of liability arising must in law be deemed to be taken over by the Board.
In The Board of Directors of the South Arcot Electricity Distribution Company Ltd. vs N. K. Mohammad Khan, etc.(1), to which we have already made a reference, it was contended on behalf of the Electricity Company that the liability to pay retrenchment cornpensation did not fall on the licensee, but on the Madras Government.
This Court held, having regard to the scheme of the Act that if retrenchment compensation is payable, it is the original undertaking which remains liable, and not the undertaking which takes over the business.
Counsel however relied upon sections 6 and 7 of the , in support of his plea that the liability to pay retrenchment compensation rests upon the (1) 14Sup.
Cl/69 4 520 undertaking which takes over the undertaking.
Section 6 of the , provides : "(1) Where a license has been granted to pay person, not being a local authority, the State Electricity Board shall (a) in the case of a license granted before the commencement of the Indian Electricity (Amendment) Act, 1959, on the expiration of each such period as is specified in the license; and (b) have the option of purchasing the undertaking and such option shall be exercised by the State Electricity Board serving upon the licensee a notice in writing of not less than one year requiring the licensee to sell the 'Undertaking to it at the expiry of the relevant period referred to in this sub section.
ln the present case notice was given of termination of the license after the expiry of the period of the original license and the Board took over the undertaking of the Company.
Section 7 of the provides : "Where an undertaking is sold under section . 6 then upon the completion of the sale or on the date on which the undertaking is delivered to the intending purchaser under sub section (6) of section 6 (i) the undertaking shall vest in the purchaser . . free from any debt, mortgage or similar obligation of the licensee or attaching to the undertaking : Provided that any such debt, mortgage or similar obligation shall attach to the purchase money in substitution for the undertaking; (ii) the rights, powers, authorities, duties and obligations of the licensee under his license shall stand transferred to the purchaser and such purchaser shall be deemed to be the licensee : Provided that where the undertaking is sold or delivered to a State Electricity Board or the State Government, the license shall cease to have further operation.
" 521 It is clear that when the undertaking vests in the purchaser, any debt mortgage or similar obligation attaches to the purchase money in substitution of the undertaking.
The liability to pay retrenchment compensation is a debt : if it arises on transfer it will attach to the purchase money payable to the Company in substitution for the undertaking.
Sections 6 and 7 of the do not support the case of the Company that the liability is enforceable against the Board after it takes over the undertakings.
The provisions of sections 57 and 57A of the Indian , also do not assist the case of the, Company.
Sections 57 & 57A of the , deal with the licensee 's charges to consumers and the Rating Committees.
By the Sixth Schedule dealing with financial principles and their application, it is provided by cl.
TV that certain amount shall be appropriated towards Contingencies Reserve from the revenues of each year of account.
By cl.
V of the Sixth Schedule it is provided : "(1) The Contingencies Reserve shall not be drawn upon during the currency of the licence except to meet such charges as the State Government may approve as being (a) expenses or loss of profits arising out of accidents, strikes or circumstances which the management could not have prevented; (b) expenses on replacement or removal of plant or works other than expenses requisite for normal maintenance or renewal; (c) compensation payable under any law for the time being in force and for which no other provision is made.
(2) On the purchase of the undertaking, the Contingencies Reserve, after deduction of the amounts drawn under sub paragraph (1), shall be handed over to the purchaser and maintained as such Contingencies Reserve : Provided that where the undertaking is purchased by the Board or the State Government, the amount of the Reserve computed as above shall, after further deduction of the amount of compensation, if any, payable to the employees of the outgoing licensee under any law for the time being in force, be handed over to the Board or the State Government, as the case may be." 522 Clause V only provides for the appropriation of the Contingencies Reserve : it requires an undertaking to hand over the Contingencies Reserve to the purchaser.
If any amount of compensation is payable to the employees of the outgoing licensee under any law for the time being in force, it is chargeable to the Contingencies Reserve.
If the retrenchment compensation becomes properly due to the employees of the Company, it would, by virtue of cl.
V sub cl.
(2) proviso, be charged upon the Contingencies Reserve and the balance alone would be handed over to the purchaser.
It was urged that the Contingencies Reserve has been paid over to the purchaser.
There is, however, no finding by the Labour Court in that behalf.
If it be found in appropriate proceedings that retrenchment compensation is payable to the workmen and the Contingencies Reserve out of which it is payable has been handed over to the Board, the charge for payment of that amount may attach to that amount.
On that matter we need express no opinion at this stage.
Finally it was contended and that contention relates only to the cases of 56 workmen in the Lucknow undertaking that the workmen who had not availed themselves of earned leave were ,entitled to compensation equal to thirty days wages.
But we do not think that any such compensation is statutorily payable.
So long as the Company was carrying on its business, it was obliged to give facility for enjoying earned leave to its workmen.
But after the Company closed its business, it could not obviously give any earned leave to those workmen, nor could the workmen claim any compensation for not availing themselves of the leave.
In the absence of any provision in the statute governing the right to compensation for earned leave not availed of by the workmen before closure, or transfer of an undertaking, we do not think that any such compensation is payable.
On the view taken by us that the Labour Court was incom petent to determine the question as to liability to pay retrenchment compensation, these appeals must be allowed and the petitions under section 6 H(2) filed by the respondents must be dismissed.
There will be no order as to costs throughout.
G.C. Appeals allowed.
| IN-Abs | In exercise of the power under section 6 of the the undertakings of the appellant company at Allahabad and Lucknow were taken over by the State Electricity Board, U.P. with effect from September 17, 1964.
The workmen of the company were taken into the employment of the Board without any break in continuity of employment.
Certain workmen of the Allahabad undertaking filed before the Labour Court applications under section 6 H(2) of the U.P. , for payment of retrenchment compensation and salary in lieu of notice.
A group of workmen 'from the Lucknow undertaking also sub mitted applications under section 6 H(2) with the same prayers; in addition they claimed compensation for accumulated earned leave not enjoyed by them till September 16, 1964.
The Labour Court allowed the applications.
The Company appealed to this Court by special leave.
According to the company there was no retrenchment of the workmen because they had voluntarily left the service of the company to join the service of the Board with no break in their service.
The questions that fell for consideration wer (i) Whether the matter was to be decided under the provisions of the or those of the U.P. ; (ii) Whether the Labour Court had jurisdiction under section 6 H(2) of the U.P. Act to decide the applications or because of there being dispute as to the liability to pay retrenchment compensation the matter was in view of item 10 of the second schedule to the U.P. Act within the exclusive jurisdiction of the Industrial Tribunal; (iii) Whether section 6 0 of the U.P. Act also necessitated that the question of liability to pay retrenchment compensation be first determined; (iv) Whether in view of sections 6 & 7 of the and sections 57 & 57A of the Indian read with Cl.
V of the sixth schedule thereto, the liability to pay retrenchment compensation was that of the Board and not that of the company; (v) Whether the claim of the Lucknow workmen for compensation for earned leave not enjoyed by them was allowable.
Held : (i) Under the Seventh Schedule to the constitution legislation in respect of 'Trade Union Industrial and Labour Disputes ' falls within Entry 22 of the Concurrent List and both the State and the Union are competent to legislate in respect of that field of legislation.
Act 1 of 1957 added to the U.P. , section 6 R(2) which enacts that the rights and liabilities of employers and workmen relating to lay off and retrenchment shall be determined in accordance with the provisions of 508 sections 6 J to of 1957 received the assent of the President and by virtue of article 254(2) of the Constitution section 6 R(2) of the U.P. Act prevails notwithstanding any prior law made by the Parliament.
The rights and obligations of the parties had therefore to be decided under the U.P. Act including section 6 R(2).
[511 H 512 D] Rohtak & Hissar Districts Electric Supply Company vs State of U.P., , distinguished.
(ii) Section 6 H(1) and (2) of the U.P. Act were substantially the same as sub sections
(1) and (2) of section 33 C of the Central Act and cases decided by this Court under the latter provisions were applicable in the interpretation of the former.
According to the rule laid down in section 6 H(2) the Labour Court was competent to determine what each workman was entitled to receive from the employer by way of retrenchment compensation payable in terms of money and the denial of liability of the company did not affect the jurisdiction of the Labour Court.
Where, however, as in the present case, the dispute was whether the workmen had been retrenched and computation of the amount of compensation was subsidiary or incidental, the, Labour Court had no authority to trespass upon the powers of the industrial Tribunal which had exclusive jurisdiction under item 10 of the second schedule of the U.P. Act to decide disputes relating to retrenchment.
[514 B D 517 F] The Central Bank of India, Ltd. vs P. section Rajagopalan etc. ; and Bombay Gas Co. Ltd. vs Gopal Bhiva and Others, ; , applied.
The Board of Directors of the South Arcot Electricity Distribution Co. Ltd. vs N. K. Mohammad Khan etc., , explained.
Chief Mining Engineer, East India Coal Co. Ltd. vs Rameswar and Others, [1968] 1 S.C.R. 140, State Bank of Bikaner and Jaipur vs R. L. Khandelwal, and Punjab National Bank Ltd. vs K. L. Kharbanda, [1962] Supp.
2 S.C.R. 977, referred to.
(iii) Assuming that the Labour Court had jurisdiction to determine the liability of the company to pay retrenchment compensation no order awarding retrenchment compensation could still be made without recording a finding that workmen were retrenched and compensation was payable for the retrenchment.
For section 6 0 of the U.P. Act deprives the workmen of the right to retrenchment compensation in the conditions mentioned therein.
The company asserted , that the conditions precedent to the exercise of the jurisdiction did not exist while the workmen asserted the existence of the conditions.
Without deciding the, issue the Labour Court could not compute the amount of compensation payable to the workmen on the assumption that the workmen had been retrenched and their claim fell within section 6 0.
[518 B; 519 B C] (iv) Sections 6 and 7 of the did not support the case of the Company that the liability was enforceable against the Board after it took over the undertaking.
Under these sections when the undertaking vests in the purchaser, any debt, mortgage or similar obligation attaches to the purchase money in substitution of the undertaking.
The liability to pay retrenchment compensation is a debt : if it arises on transfer it will attach to the purchase money payable to the Company in substitution of the undertaking.
[521 A B] 509 (v) The provisions of sections 57 and 57A of the Indian , also did not assist the case of the Company.
These sections deal with the licencee 's charges to consumers and the Rating Committees.
In the Sixth Schedule to the Act (incorporated into every license by section 57 'aforesaid) it is provided by cl.
IV that certain amount shall be appropriated towards Contingencies Reserve from the revenues of each year of account.
Clause V then provides for the appropriation of the Contingencies Reserve :it requires the undertaking to hand over the Contingencies Reserve to the purchaser.
If the retrenchment compensation becomes properly due to the employees of the Company, it would, by virtue of cl.
V sub cl.
(2) proviso, be charged upon the Contingencies Reserve and the balance alone would be handed over to the purchaser.
In the present case however there was no finding by the Labour Court that the Contingencies Reserve had been paid over to the purchaser.
521 C 522 Cl (vi) The claim of the Lucknow workmen to compensation in lieu of earned leave not enjoyed by them could not be allowed.
After the company closed its business it could obviously not give any earned leave to these workmen 'and the latter could not claim it.
In the absence of a statutory provision to that effect no such compensation was payable.
[522 E]
|
Civil Appeal No. 1526 of 1968.
Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated May 4, 1968 of the Madhya Pradesh High Court in Election Petition No. 39 of 1967.
G. L. Sanghi, Sobhag Mal Jain and B. P. Maheshwari, for the appellant.
H. R. Gokhale, P. L. Dubey, Rameshwar Nath and Mahinder Narain, for respondent No. 1.
V. C. Parashar, for respondent No. 4.
The Judgment of the Court was delivered by Shah, J.
At the general elections held in February 1967, Brijraj Singh (first respondent in this appeal) was declared elected to a seat in the Madhya Pradesh Legislative Assembly from the Sabalgarh Constituency defeating his rival candidate Raja Pancham Singh by 1706 votes.
The appellant Ram Dayal who is a voter in the constituency moved an election petition in the High Court of Madhya Pradesh for an order setting aside the election on two grounds : (1) that the nomination paper of one Dhani Ram was illegally rejected by the Returning Officer; and (2) that Brijraj Singh and his agents committed several corrupt practices in relation to the election.
A third ground that Dataram (third respondent in this appeal) when his nomination was accepted was below the age of 25 and was on that account incompetent to stand for election, was sought to set up a new ground made after the expiry of the period prestion.
The application was disallowed by the High Court.
The High Court held that an application for amendment which sought to be set up by an application for amendment of the election peticribed for filling an election petition cannot be entertained.
On 532 a consideration of the evidence the High Court rejected the other grounds, and dismissed the petition.
The appellant has appealed to this Court.
An election petition has, under section 81 (1) of the Representation of the People Act, 1951, to be filed within 45 days of the date of the publication of the result of the election.
An application for setting aside the election, that Dataram was below the age of 25 and on that account the election was liable to be set aside under section 100(1)(d)(i) of the Act made on August 15, 1967, would plainly have been barred, and by amendment the ground could not be permitted to be added.
This Court in Harish Chandra Bajpai vs Triloki Singh(1) held that the Election Tribunal has power to allow an amendment in respect of particulars of illegal and corrupt practices, or to permit new instances to be included.
provided the grounds or charges are specifically stated in the petition, but its power to permit amendment of a petition under O. VI r. 17 of the Code of Civil Procedure will not be exercised so as to allow new grounds or charge,; to be raised or the character of the petition to be so altered as to make it in substance a new petition, if a fresh petition on those allegations would on the date of the proposed amendment be barred.
By the amendment a new ground for setting aside the election was sought to be introduced, and the High Court was right in rejecting the application for amendment.
The plea that the rejection of the nomination paper of Dhani Ram by the Returning officer was illegal has no substance.
On January 19, 1967 Dhani Ram delivered to the Returning Officer two nomination papers signed by him.
Each nomination paper bore a thumb impression of one Gokla as the proposer.
But the thumb impressions were not authenticated or attested in the presence of the Returning officer or any other officer specified in the Rules.
The Returning Officer rejected the nomination papers.
33(1) of the Representation of the People Act, 1951, requires that each candidate shall deliver to the returning officer a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer.
The expression "sign" is defined in section 2 (1) of the Act as amended by Act 27 of 1956 as meaning "in relation to a person who is unable to write his name authenticate in such manner as may be prescribed".
Rule 2(2) of the Conduct of Election Rules, 1961 provides : "For the purposes of the Act or these rules, a person who is unable to write his name shall, unless otherwise expressly provided in these rules, be deemed to have signed an instrument or other paper if (1) ; 533 (a) he has placed a mark on such instrument or other paper in the presence of the Returning officer or the Presiding officer or such other officer as may be specified in this behalf by the Election Commission.
(b) such officer on being satisfied as to his identity has attested the mark as being the mark of that person.
Where a person is unable to write his name, he may place his mark on the instrument or other paper and the requirements of law are complied with, provided he puts the mark in the presence of the Returning officer or the Presiding officer or such other officer as may be specified in that behalf by the Election Commission and such officer on being satisfied as to his identity attests the mark as being the mark of that person.
Gokla was illiterate.
He impressed his thumb mark on the nomination paper : but it was not placed in the presence of any of the designated officers, nor was there any authentication or attestation of the thumb mark The requirement under section 33 (1) of the Act that the nomination shall be signed by the candidate and by the proposer is mandatory.
Signing, whenever signature is necessary, must be in strict accordance with the requirements of the Act and where the signature cannot be written it must be authorised in the manner prescribed by the Rules.
Attestation is not a mere technical or unSubstantial, requirement within the meaning of section 36(4) of the Act and cannot be dispensed with.
The attestation and the satisfaction must exist at the stage of presentation and omission of such an essential feature may not be subsequently validated at the stage of scrutiny any more than the omission of a candidate to sign at all could have been : Rattan Anmol Singh and Another vs Atma Ram & Others.(1).
The nomination papers of Dhani Ram were filed on the last day fixed for receiving the nomination papers.
Not being attested as required by law on the date of filing, the defect could not be rectified at the time of scrutiny.
Evidence of witnesses for the appellant who deposed that that at the date of scrutiny.
Gokla was present outside the office of the Returning Officer and that Dhani Ram brought to the notice of the Returning Officer that Gokla was present and that his signature may be attested, and that the Returning officer declined to accede to the request need not be considered.
The Returning officer could not allow Dhani Ram or his proposer to rectify the defect in the nomination papers after the last date of nomination.
Several corrupt practices were set up in the petition.
The corrupt practices relied upon by the appellant in this appeal may be broadly classified under three heads (1) ; 534 (1) that on January 19, 1967, Brijraj Singh paid Rs. 250 to Sone Ram respondent No. 5 at Morena and successfully persuaded him not to file his nomination paper.
(2) that Brijraj Singh and his agents toured the constituency in a jeep fitted with a microphone and visited many villages and delivered speeches reflecting upon the character and conduct of Raja Pancham Singh a candidate sponsored by the Congress Party.
One Chhotey Lal respondent No. 4 was made to contest the election by Brijraj Singh to "divide the votes of Raja Pancham Singh" and that Chhotey Lal who supported the candidature of Brijraj Singh made statements between January 20, 1967 and February 19, 1967 and distributed leaflets containing statements of fact relating to the personal character and conduct of Raja Pancham Singh which were false to the knowledge of Chhotey Lal or who did not believe them to be true, and that the leaflets were issued and circulated with the consent of Brijraj Singh, and (3) that the Maharaja Scindia of Gwalior accompanied by Brijraj Singh visited several villages in a helicopter and addressed election meetings in support of the candidature of Brijraj Singh and the Maharaja acted as his agent and incurred expenditure for carrying on election propaganda : if the expenditure incurred for the purpose of obtaining the use of the helicopter and a fleet of motor cars used by him were taken into account, such expenses being incurred or authorised by Brijraj Singh would considerably exceed the limit prescribed by the statute.
In the view of the High Court Chhotey Lal did commit a cor rupt practice in that he distributed on January 29, 1967 at Kelaras village leaflets containing statements of fact relating to the personal conduct of Raja Pancham Singh, but it was not proved that Chhotey Lal contested, the election at the instance of Brijraj Singh "to divide the votes of Raja Pancham Singh" or that he was the agent at any time of Brijraj Singh nor was it proved that Chhotey Lal had ever supported the candidature of Brijraj Singh or that any pamphlet of the nature circulated by Chhotey Lal was issued or circulated by Brijraj Singh.
In that view the High Court held that the election of Brijraj Singh was not materially affected by the candidature of Chhotey Lal. 'Me High Court rejected the contention of the appellant that Brijraj Singh committed other corrupt practices alleged.
The High Court accord 535 ingly passed an order declaring that the appellant had failed to establish that Brijraj Singh had committed any corrupt practice with which he was charged.
The High Court dismissed the election petition filed by the appellant with costs, but declared that the 4th respondent Chhotey Lal was guilty of the corrupt practice within the meaning of section 123 (4) of the Act and was on that account disqualified for a period of six years from the date of the order under section 8A of the Act.
Against that order this appeal has been preferred by the appellant.
Chhotey Lal has not appealed against the order recorded against him.
He is impleaded as a party respondent and he has appeared before this Court through counsel.
At the hearing counsel appearing for Chhotey Lal urged that the finding of the High Court that Chhotey Lal was guilty of the corrupt practice charged against him is contrary to evidence.
But in the absence of an appeal filed by Chhotey Lal the ground cannot be permitted to be agitated by him.
The appeal was filed by the appellant challenging the order of the High Court refusing to set aside the election of Brijarj Singh on the three grounds set out hereinbefore.
the scope of the appeal cannot be expanded by permitting chhotey lal who could have but has not chosen to appeal, to plead that he has not committed any acts amounting to a corrupt practice.
The case that Brijraj Singh gave Rs. 250 to Sone Ram and induced him to withdraw his candidature is unreliable.
One Shanker Lal deposed that on January 19, 1967, he met Brijraj Singh and Sone Ram in the compound of the office of the Collector, Morena, and the former induced Sone Ram not to contest the election and offered to pay a bribe of Rs. 250, and paid Rs. 250 to Sone Ram.
According to the witness there were several persons present at the time when the bribe was offered and paid, but none of those persons was called as a witness on behalf of the appelant.
One Tikaram who was alleged to be present was examined on behalf of Brijraj Singh and he denied that any such offer was made or bribe paid.
Sone Ram also denied that he had received any bribe from Brijraj Singh.
He stated that he had borrowed Rs. 200 from his maternal uncle to deposit the amount for his candidature but since his maternal uncle declined to incur any further expenditure and dissuaded him from contesting the election he had to abandon his candidature.
In the opinion of the Trial Judge the witness Shanker Lal was an untruthful witness and we see no reason to disagree with that view.
We may now turn to the plea that Brijraj Singh made false allegations against the personal conduct and 'character of Raja Pancham Singh orally and by circulating pamphlets, on which a great deal of argument was advanced before us.
It was the case Sup, C.1.169 5 536 of the appellant that Brijraj Singh and his two workers Laxmi chand and Shankarlal visited several villages between February 2, 1967 and February 26, 1967, in connection with the election campaign and made false statements against the character and conduct of Pancham Singh in the meetings held in those villages, and "in door to door canvassing in" those villages.
Those allegations are denied by Brijraj Singh and by Laxmichand and Shankar lal.
The case of the appellant was that these allegations were made in the course of the election propaganda in ten villages.
but evidence was led in respect of statements made in six villages.
It is said that Brijraj Singh and his supporters visited the village Narhela and held a meeting in that village.
One Dhaniram stated that a meeting was held at the village Narhela, but the witness did not say that either Brijraj Singh or his workers made any allegations against the personal character of Pancham Singh.
According to this witness Brijraj Singh merely requested the persons assembled therein the.
meeting to vote for him.
Witness Ghansu stated that a meeting was held at the village Narhela and the same was addressed by Brijraj Singh and Laxmichand and that these two persons stated that Pancham Singh was " associating with dacoits" and had misappropriated money belonging to a school and had got the school closed and that whenever any member of the legislative assembly sought to visit him be set his dogs at him.
In the election petition there was no reference to any meeting held at Narhela or of any offending statements made at any such meeting.
It was stated in paragraph III(a) of the election petition, in setting out the details of the corrupt practices, that the first respondent accompanied by Laxmichand and Shankerlal toured in a jeep fitted with a microphone and visited the village Narhela on February 2, 1967 and canvassed votes going from door to door.
The witness Ghansu did not belong to Narhela, and no witness from village Narhela was examined.
Laxmichand, Shankerlal and Brijlal Singh denied that any statement against the personal conduct and character of Pancham Singh was made by them at Narhela either in any meeting or in "door to door canvassing".
Phoolsingh the only witness examined on behalf of the appellant did not support his case that Singh at Budhreta.
About the village Khirla, witness Kesharsingh stated that Brijraj Singh and Laxmichand had held meetings and had made statements against the personal conduct and character of Pancham Singh.
But the witness did not belong to the village Khirla : he is a resident of Pahadgarh village which is at a distance of fifteen miles from Khirla.
No witness from Khirla was examined.
Witness Dataram said that at a meeting held at Sujarma, Brijraj Singh had made any statements derogatory of Pancham Pancham Singh." But the testimony of the witness who is said to be constantly under "police surveillance" is unreliable.
About the meeting held at Village Kelaras the appellant examined three 537 witnesses Narayan, Kanhaiyalal and Sardarsingh.
The first two.
witnesses said nothing about any statement made about the personal character of Raja Pancham Singh at the meeting.
Sardarsingh supported the case, of the appellant, but the testimony of the witness was inconsistent with the case of the appellant.
About the meeting held at village Kulouli the appellant examined witness Badri who stated that both Brijraj Singh and Laxmichand had made statements derogatory of Pancham Singh.
His explanation about his presence at the village Kulouli was apparently untrue and his testimony was otherwise unreliable.
The learned Judge summarised the evidence of the witnesses.
on behalf of the appellant and concluded that the appellant had, "miserably failed" to establish that Brijraj Singh and his agents Laxmichand and Shankar Lai had made any statements derogatory to the personal character of Pancham Singh.
In the view of the learned Judge it was not proved that Brijraj Singh and his two agents had made statements that Pancham Singh was an associate of dacoits, nor was the statement that Pancham Singh had misappropriated the funds of the school proved.
The learned Judge, also held that the statement alleged to have been made by Brijraj Singh and his agents that Pancham Singh was responsible for getting the school at Pahadgarh closed and that "he lets loose ferocious dogs towards the persons who go to see him" were trivial and did not involve any moral turpitude, and even assuming that those statements were made, no corrupt practice could we said to have been committed on that account under section 123 (4) of the Act.
The learned Trial Judge found that Chhotey Lal committed a corrupt practice by distributing pamphlets casting reflections upon the personal character of Pancham Singh.
But in the view of the learned Trial Judge there was no reliable evidence to prove that Chhotey Lal acted on behalf of Brijraj Singh.
or that the latter defrayed the expenses of the pamphlet or that the agents of Brijraj Singh distributed the offending pamphlets.
The learned Judge has carefully considered the evidence and no serious argument has been advanced before us on that part of the case which may justify as in taking a different view.
Not a word was said that the expenses incurred by Chhotey Lal for getting the pamphlets printed were reimbursed, nor was the evidence of the witnesses Sanwaldas Gupta, Kalyansingh Tyagi examined on behalf of the appellant hat Brijraj Singh and his agents circulated the Pamphlets true.
The learned Judge observed that the story that out of the 2,500 copies of the pamphlets printed, 2,000 copies of the pamphlet had been handed over by Chhotey Lal to Brijraj Singh on the night on January 19, 1967, was "a clumsy and crude invention of these wo witnesses", and "was utterly false and unreliable".
After con 538 sidering the various improbabilities and the discrepancies relating to the testimony of the witnesses Sanwaldas Gupta and Kalyansingh Tyagi, the learned Judge observed that these witnesses "invented lies" and did "their best to introduce clumsy and crude improvements at the stage of evidence" with the "object of bolstering up" the appellant 's case and through him that of Raja Pancham Singh.
In his view the story that the pamphlet Annexure 'A ' was issued or circulated with the consent of Brijraj Singh was false.
The learned Judge also found on a consideration of the evidence that at no stage did Chhotey Lal support the candidature of Brijraj Singh and that it was not proved that the pamphlet Annexure 'A ' was ever issued or circulated with the consent ,of Brijraj Singh.
In his view Brijraj Singh had no connection with the printing and publication of the pamphlet and on that account the plea of corrupt practice set out and founded on the ,circulation of the pamphlet was not proved.
We see no reason to disagree with the view expressed by the learned Judge.
It was then urged that the Maharaja Scindia of Gwalior in curred considerable expenditure as agent of Brijraj Singh in canvassing votes and the expenditure so incurred was liable to be included in the election expenses of Brijraj Singh.
It was claimed that the, Maharaja and the Rajmata of Gwalior as agents of Brijraj Singh took a leading part in canvassing votes in different villages .and in doing so used a helicopter and a fleet of motor cars and spent large sums of money which were not disclosed in the account ,of election expenses filed by the &St respondent Brijraj Singh.
Brijraj Singh had contested the election as an independent candidate.
But the appellant says that the, Maharaja and the Rajmata of Gwalior addressed election meetings and in those meetings they declared that Brijraj Singh was sponsored as a candidate by them, and that the voters should support Brijraj Singh.
Brijraj Singh in his evidence stated that the Maharaja had the "Central Election office of Maharaja Gwalior ' representing the alliance of various political parties and individuals opposed to the Congress candidate and in propagating its views and policy during the election this Organisation also supported the candidates who ,opposed Pancham Singh.
There was no reliable evidence that the candidature of Brijraj Singh was sponsored by the Maharaja and the Rajmata of Gwalior.
The opinion expressed by the witness Dataram cannot do duty for evidence in support of the case of the appellant.
Sanwaldas Gupta and Kalyansingh Tyagi stated that they had requested the Maharaja to adopt Chhotey Lal as his candidate for election but they were told by the Maharaja that he had already decided to set up Brijral Singh as his candidate and that they also should actively support him.
The evidence of these witnesses was found to be 539 unreliable by the High Court.
In our judgment the High Court has rightly rejected their testimony.
It was said that in certain villages speeches were made by Brijraj Singh that he was set up as a candidate by the Rajmata of Gwalior.
But there is no reliable evidence in support of that case.
Reliance was strongly placed upon visits made by the Rajmata of Gwalior at villages Kelaras and Sabalgarh on Feb. 4 or Feb. 5, 1967, with a fleet of motor cars and about the speeches delivered in those villages declaring that Brijraj Singh was set up by her and that the voters should vote for him and strengthen her hands.
It is also said that the Maharaja visited Kelaras, Pahadgarh, Sujarma, Budhreta, Kulhouli, Sabalgarh, Jhunpura and Narhela on Feb. 11 or 12, 1967 in a helicopter and addressed meetings in those villages and in Ms speeches declared that Brijraj Singh was sponsored as a candidate by him and his mother and the voters should vote for him.
A large number of witnesses Keshrisingh, Narayan Sardar singh, Dhaniram, Phoolsingh, Kanhaiyalal, Mata Prasad, Dwarka Prasad, Sanwaldas Gupta, Kalyansingh Tyagi, besides the appellant, were examined in support of that case.
Brijraj Singh admitted that on Feb. 4 or 5, 1967, the Rajmata had visited the villages Kelaras and Sabalgarh and had addressed meetings in those villages.
But he denied that she declared in those meetings that he was set up as a candidate by her.
He further stated that the Maharaja had visited on Feb., 11 or 12, 1967, five villages, Kelaras, Pahadgarh, Budhreta, Jhundpura and Sabalgarh in a helicopter and addressed meetings in those villages.
But in none of those meetings did he declare that Brijraj Singh was a candidate set up by the Maharaja.
The witnesses examined on behalf of the appellant were, in view of their general tenor, found unreliable.
The learned Judge therefore stated his conclusion that on Feb. 4 or 5, 1967 the Rajmata of Gwalior visited two villages, Kelaras and Sabalgarh and addressed meetings there; and her son the Maharaja visited five villages, namely, Kelaras, Pahadgarh, Budhreta, Thundpura and Sabalgarh in a helicopter on or about Feb. II or 12, 1967 and addressed meetings there, but there was no reliable evidence to prove that Brijrai Singh was sponsored as a candidate by the Rajmata or the Maharaja of Gwalior.
In the view of the learned Judge the testimony of the witnesses on behalf of the appellant was "so thoroughly unreliable" that no reliance could be placed upon it.
He concluded, after considering the evidence of Budharam, that Brijraj Singh was an independent candidate and contested the election as an independent candidate, and even though meetings were addressed by the Maharaja and his mother the Rajmata they did not say that Brijraj Singh was set up as their candidate.
" We have carefully gone through the evidence of the witness and heard the arguments ad at the 540 Bar and see no reason to disagree with the view taken by the learned Judge.
The evidence of the witnesses that Brijraj Singh travelled with the Maharaja of Gwalior in his helicopter and visited several villages for his election campaign was also unreliable and was, in our judgment, rightly disbelieved.
The evidence shows that when the Maharaja visited the village Kelaras the only occupants in the helicopter were the Maharaja and the pilot and that Brijraj Singh was not in the helicopter when the Maharaja visited Kelaras.
Similarly about the village Jhundpura there is evidence that Brijraj Singh was not with the Maharaja in the helicopter.
About the village Budhreta the witness Phoolsingh deposed that Brijraj Singh was in the helicopter travelling with the Maharaja.
But from the cross examination of the witness it appears that his testimony was "worthless." The testimony of Phoolsingh was inconsistent with the testimony of Ramcharanlal Sarpanch of the village.
Similarly about the visit to Sabalgarh village two of the witnesses examined were Budhram and Sanwaldas Gupta.
Budhram said nothing about Brijraj Singh accompanying the Maharaja in the helicopter.
Sanwaldas Gupta supported the case of the appellant, but having regard to his interest in the appellant and the general unreliability of his testimony, he could not be believed.
About the village Pahadgarh, according to Mata Prasad examined on behalf of the appellant, Brijraj Singh was in the helicopter and the witness claimed that he had taken photographs of Brijraj Singh while he was in the helicopter.
We have seen the original photographs Exts.
P 11A, P 11B, P 12A, P 12B, P 13A and P 14A which are in respect of the journeys by the helicopter, the helicopter getting ready for take off, of the meetings addressed by the Maharaja and of the occupants in the helicopter.
Some of the photographs are so hazy and indistinct that it is impossible to identify any one in the group.
For instance the photograph Ext.
P 13A in which it is claimed that Brijraj Singh was in the helicopter shows merely a smudge and it is impossible to say that any one was sitting in the helicopter.
In the view of the learned Judge the witness Mata Prasad and Dwarka Prasad had been tutored to give false testimony that Brijraj Singh had accompanied the Maharaja at the time when the helicopter landed and also when it took off and on the consideration of the evidence it was established that Brijraj Singh was not with the Maharaja of Gwalior either at the time when the helicopter landed at the five villages Kelaras, Jhundpura, Budhreta, Sabalgarh and Pahadgarh or when the helicopter took off.
The learned Trial Judge disbelieved the witness Mata Prasad.
We have scrutinized the evidence of Mata Prasad and have seen the original photographs and have no doubt that the learned Judge was right in holding that the testimony of the witness Mata prasad was unreliable.
541 In the absence of any connection between the canvassing activities carried on by the Maharaja and the Rajmata with the candidature of Brijraj Singh, it is impossible to hold that any expenditure was incurred for Brijraj Singh which was liable to be included in the election expenses of the first respondent.
Under section 123(6) of the Representation of the People Act, 1951, the incurring or authorizing of expenditure in contravention of section 77 is a corrupt practice and section 77 provides, insofar as it is material "(1) Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorised by him or by his election agent between the date of publication of the notification calling the election and the date of declaration of the result thereof, both dates inclusive.
(2) (3) The total of the said expenditure shall not exceed such amount as may be prescribed.
" Unless it is established that the expenditure was incurred in connection with the election by the candidate or by his, election agent or was authorised by him it is not liable to be included under section 77 of the Representation of the People Act.
We agree with the High Court that under section 77(1) only the expenditure incurred or authorised by the candidate himself or by his election agent is required to be included in the account or return of election expenses and thus expenses incurred by any other agent or person without any thing more need not be included in the account or return, as such incur ring of expenditure would be purely voluntary.
Assuming that expenditure was incurred by the Maharaja and the Rajmata for the purpose of canvassing votes against Raja Pancham Singh, in the absence of any evidence to show that the Maharaja and the Rajmata of Gwalior acted as election agents of Brijraj Singh or the expenditure was authorised by Brijraj Singh it was not liable to be included in the account of the election expenses.
We agree with the High Court that there is no evidence on the record to prove that Brijraj Singh actually spent any money on the helicopter used by the Maharaja in visiting the five villages and the two cars used by the Rajmata in visiting the two villages.
There is no evidence on the record direct or circumstantial to prove that Brijraj Singh had authorised the Maharaja and his mother to incur the expenditure on the helicopter and the two cars.
It is not necessary then to consider whether the expenditure incurred by the Maharaja and the Rajmata of Gwalior in respect of the helicopter and the motor cars can be said to be expenditure incurred by a political party for carrying on propaganda to 542 promote their views and their party interest and their policies and to educate the electoral constituency, and on that account is non liable to be included in the election expenses of the candidate.
Having carefully considered the evidence and having heard the arguments advanced at the Bar at considerable length, we are ,of the view that the appellant has failed to establish that Brijraj Singh was set up as a candidate by the Maharaja or the Rajmata of Gwalior as their nominee or that the Maharaja and the Rajmata had incurred any expenditure as an agent of Brijraj Singh or the expenditure incurred by the Maharaja and the Rajmata of Gwalior was authorized by Brijraj Singh and was liable to be included in his account of election expenses under section 77 of the Representation of the People Act, 1951.
The appeal fails and is dismissed with costs in favour of the first respondent.
The order of costs in favour of the 4th respondent passed by the High Court is set aside.
R.K.P.S. Appeal dismissed.
| IN-Abs | The first respondent was elected to the Madhya Pradesh Legislative Assembly in February 1967.
The appellant, a voter in the constituency, challenged his election by an election petition claiming that the nomination paper of one D was illegally rejected by the Returning Officer and that the respondent had committed several corrupt practices; it was also alleged that the Maharaja and Rajmata of Gwalior had helped the first respondent 's election in a number of ways and had in effect acted as his agents and had incurred considerable expenditure which exceeded the limits prescribed by the statute.
The High Court dismissed the petition and also dismissed an application made by the petitioner for amendment of the petition to include a new allegation on the ground that it was made after the expiry of the period prescribed for filing an election petition.
On appeal to this Court, HELD : Dismissing the appeal : (i) The High Court had rightly held that it could not exercise its power to permit amendment of a petition so as to allow new grounds or char es to be raised or the character of the petition to be so altered as to make it in substance a new petition, if a fresh petition on those allegations would be barred on the date of the proposed amendment.
Harish Chandra Bajpai vs Triloki Sinqh ; ; followed.
(ii) The mark made by the proposer on D 's nomination paper was not authenticated or attested by one of the designated officers as required under section 31(1) read with the definition of the expression "sign" in section 2(1) of the Representation of the People Act, 1951, and the provisions of r. 2(2) of the Conduct of Election Rules.
It was therefore rightly rejected by the Returning. Officer.
The requirement of section 33(1) of the Act that the nomination shall be signed by the candidate and by the proposer is mandatory.
Signing, whenever signature is necessary, must be in strict accordance with the requirements of the Act and where the signature cannot be made it "must be authorised in the manner prescribed by the Rules.
" Attestation is not a mere technical or unsubstantial requirement within the meaning of section 36(4) of the Act and cannot be, dispensed with.
The attestation and the satisfaction must exist at the stage of presentation and omission of such an essential feature may not be subsequently validated at the stage of scrutiny any more than the omission of a candidate to sign at all could have been.
D F] 531 Rattan Anmol Singh and Another vs Atma Ram & Others ; ; referred to.
(iii) The High Court had rightly held on the evidence that none of the corrupt practices alleged was proved.
Unless it is established that expenditure was incurred in connection with the election by the candidate or by his election agent or was authorised by him it is not liable to be included under section 77 of the Representation of the People Act.
Expenses incurred by any other agent or person without anything more need not be included in the account or return, as such incurring of expenditure would be purely voluntary.
Assuming in the present case that expenditure was incurred by the Maharaja and the Rajmata of Gwalior for the purpose of canvassing votes against the principal candidate opposing the first respondent, in the absence of any evidence to show that the Maharaja and the Rajmata of Gwalior acted as election agents of the first respondent or the expenditure was authorised by him it was not liable to be included in the account of the election expenses.
[541 D F]
|
Appeal No. 905 of 1968.
560 Appeal by special leave from the judgment and order dated August 25, 1966 of the Punjab High Court (Circuit Bench) Delhi in F.A.0.
132 D of 1961.
I. N. Shroff and Anand Prakash, for the appellant.
section T. Desai I. M. Lal, section R. Agarwal, Champat Rai and E. C. Agarwal, for the respondent.
The Judgment of the Court was delivered by Vaidialingam, J.
This appeal, by special leave, is directed against the judgment dated August 25, 1966 of the Circuit Bench of the High Court of Punjab at New Delhi, confirming the judgment of the District Judge, Delhi, dismissing the petition filed by the appellant under section 12 of the (Act XXV of 1955) (hereinafter called the Act).
At the conclusion of the hearing of this appeal on April 28, 1969 we had indicated our conclusion that no interference with the judgment of the High Court was called for and that the appeal is dismissed without any order as to costs.
The detailed reasons for our decision were to be given later.
Accordingly we hereby give our reasons for coming to the said conclusion.
The appellant had married the respondent according to Hindu rites on April 20, 1955.
After the marriage the parties lived together for about three years at various places such as Delhi, Alwar, Bombay and Europe and, according to the appellant, during this period the marriage was not consummated.
The appellant filed an application before the District Judge at Delhi, on March 15, 1960 under section 12 of the Act praying that the marriage between himself and his wife, the respondent, being voidable, may be annulled by a decree of nullity.
In brief, the case of the appellant was that since his marriage he had made frequent attempts to consummate it, but, due to an invincible and persistent repugnance on the part of the respondent to the act of consummation, he had failed to achieve it and, as such, the marriage had remained unconsummated.
He further averred that his wife, the respondent, was impotent at the time of the marriage and continued to be so until the filing of his petition.
According to him the impotency of the respondent was responsible for the non,consummation of the marriage.
The respondent wife contested the application on various grounds.
She emphatically denied that she had shown any repugnance whatever to the act of consummation of marriage.
She further stated that she had lived with the appellant for about three years and had also accompanied him on his visit to England and 561 the Continent and, during that period she was always ready and prepared to give full access to the, petitioner to her person for consummating the marriage.
She specifically averred that the consummation could not take place because the appellant was suffering from some physical disability or impotency and that he never made any attempt at consummation.
She repudiated the allegation that she was either impotent at the time of the marriage of that she was impotent at the time of institution of the proceedings.
She reiterated that the appellant was physically and emotionally unable to consummate the marriage and he had made a false excuse of impotency of the wife as being the cause for non consummation of the marriage.
She further stated that the appellant was physically and sexually impotent and, consequently, unable to perform the normal sexual functions and, in view of this, he had never expressed his willingness, by his conduct or behaviour, to consummate the marriage, even though the parties lived together for a number of years and had occupied the same bed in the same room.
It will therefore be seen that while the appellant filed the application on the ground that the respondent was impotent, the respondent, in turn, had alleged that it was the appellant who was impotent.
The material provision of the Act under which the application was filed by the appellant is section 12(1) (a) which is as follows : " 12(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely (a) that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceeding; A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility '.
The condition must be one, according to the statute, which existed at the time of the marriage and continued to be so until the institution of the proceedings.
In order to entitle the appellant to obtain a decree of nullity, as prayed for by him, he will have to establish that his wife, the respondent, was impotent at the time of the marriage and continued to be so until the institution of the proceedings.
Both the appellant and the respondent have been examined by doctors and their oral evidence and reports are on record.
562 Though the impotency of the appellant does not strictly arise for consideration in a petition filed by him, nevertheless the trial Court framed issues even in that regard : Issues Nos. 1 and 2, which are material, are as follows : "1.
Whether the respondent was impotent at the time of the marriage and has continued to be so till the filing of the present petition ? 2.Is the petitioner impotent and consequently unable to perform the normal sexual function with the respondent ? If so, what is the effect thereof ?" The learned District Judge, after a consideration of the evidence on record, ultimately held that the appellant had failed to prove that the respondent was at any time impotent and, as such, decided issue No. 1 against the appellant.
He further held, on issue No. 2 that the facts of the case, on the contrary, showed that because of some physical or psychological cause, it was the appellant who was not able to consummate the marriage with the respondent.
In this view the petition filed by the husband appellant was dismissed.
On appeal by the appellant, the learned Judges of the Circuit Bench of the Punjab High Court differed from the finding of the trial Court on issue No. 2.
The learned Judges, however, held that it had not been proved that the appellant was impotent, but, on the material issue regarding the impotency of the respondentwife, the learned Judge were of the view that there were various factors and circumstances throwing a serious doubt on the allegation made by the appellant.
The High Court held that it had not been established by the appellant that non consummiation of the marriage was due to the impotency of the respondent.
It further held that on the state of evidence it did not believe that the respondent wife had been proved to be impotent.
The High Court also declined to believe the case of the appellant that the respondent had persisted in her attitude of exhibiting repulsion to the sexual act.
It is not really necessary for us to deal elaborately with the evidence in the case on the basis of which concurrent findings have been recorded by the District Court and the High Court, rejecting the case of the appellant that his wife, the respondent, was impotent at the time of the marriage and continued to be so until the institution of the proceedings.
Mr. Shroff, learned counsel for the appellant, found considerable difficulty in satisfying us that the finding recorded by the two Courts on this aspect was erroneous or not supported by the evidence.
No doubt, there was a feeble attempt made by the 563 learned counsel to urge that the evidence of the respondent that she had always been ready and willing to allow her husband to consummate the marriage should not be believed.
When the two Courts have accepted her evidence, it is futile on the part of the appellant to urge this contention.
The reliance placed by Mr. Shroff on the decision of this, Court in Earnest John White vs Kathleen Olive White( ') is misplaced.
In that decision, it has been laid down that though it is not usual for this Court to interfere on questions of fact, nevertheless, if the Courts below ignore or misconstrue important pieces of evidence in arriving at their finding, such finding is liable to be interfered with by this Court.
We are satisfied that the Courts below, in the instant case, have neither ignored nor misconstrued important pieces of evidence when they came to the conclusion that the appellant 's case, regarding the impotency of the respondent, could not be believed.
On the findings that both the appellant and the respondent were not impotent and the marriage had not been admittedly cosummated, counsel urged that the conclusion to be drawn was that such consummation was not possible because of an invincible repugnance on the part of the wife.
Counsel further urged that taking into account the practical impossibility of consummation, the application filed by the appellant should be allowed.
So far as the charge of 'invincible repugnance to the sexual act ' on the part of the respondent is concerned, it is only necessary to refer to the finding of the High Court that the allegation had not been proved but that, on the other hand, lack of proper approach by the appellant for consummating the marriage might have been responsible for non consummation.
It is the further view of the High Court that the evidence of the appellant that he went on making attempts on several occasions for consummation of the marriage cannot be believed.
Mr. Shroff referred us to the decision of the House of Lords(2 )in G. vs G.
That was an action by a husband against his wife for a decree of nullity of marriage on the ground of impotency.
It was established that the husband was potent and had made frequent attempts to consummate the marriage; but he could not succeed owing to the unreasoning resistance of the wife.
The wife was declared, on medical examination, not to suffer from any structural incapacity.
Under those circumstances the House of Lords held that the conclusion to be drawn from the evidence was that the wife 's refusal was due to an invincible repugnance to (1) ; (2) 564 the act of consummation and, as such, the husband was entitled to a decree of nullity.
This decision does not assist the appellant, as we have already referred to the finding of the High Court disbelieving the evidence of the appellant on this aspect.
Mr. Shroff next relied on the decision in G. vs G.(1) holding that a Court would be justified in annulling a marriage if it was found that the marriage had not been and could not be consummated by the parties thereto, though no reason for nonconsummation was manifest or apparent.
In that decision both the husband and the wife were perfectly normal and each charged the other as being responsible for non consummation of the marriage.
The Court held that without going into the question as to who was the guilty party, it was evident that the marriage had not been consummated and could not be consummated in future also.
Accordingly the Court annulled the marriage for the reason that it was satisfied that " quoad hunc et quoad hunc, these people cannot consummate the marriage.
" The Court further held that the two people should not be tied up together for the rest of their lives in a state of misery.
The position in the case before us is entirely different.
Neither of the two Courts have found that the marriage cannot be consummated in future and they have not also accepted the appellant 's plea that the respondent had always resisted his attempts to consummate the marriage.
When once the finding has been arrived at that the appellant has not established that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceeding, the inevitable result is the dismissal of the appellant 's application under section 12(1)(a) of the Act.
The result is that the appeal fails and is dismissed.
There will be no order as to costs.
G.C. Appeal dismissed.
| IN-Abs | The appellant married the respondent according to Hindu rites on April 20, 1955.
Thereafter the parties lived together for three years but the marriage was not consummated.
The appellant filed an application before the District Judge at Delhi on March 15, 1960 under section 12 of the , praying that the marriage between himself and his wife, the respondent, being voidable may be annulled by a decree of nullity.
He averred that his wife had an invincible and persistent repugnance to the act of consummation and that she was impotent.
The District Judge and later the High Court concurrently found that neither impotence nor invincible and persistent repugnance to the sexual act were proved against the respondent.
In further appeal to this Court, HELD : (i) Though it is not usual for this Court to interfere on questions of fact, nevertheless, if the Courts below ignore or misconstrue important pieces of evidence in arriving at a finding, such finding is liable to be interfered with by this Court.
[563 B] Earnest John White vs Kathleen Olive White, [1958] S.C.R. 1410, referred to.
However in the instant case the Courts below has neither ignored nor mis construed important pieces of evidence when they came to the conclusion that the appellant 's case, regarding the impotency of the respondent, could not be believed.
[563 C] (ii)The case of G.v.G. could not help the appellant in the face of the High Court 's finding that 'invincible repugnance to the sexual act ' on the part of the respondent was not proved.
[563 G 564 A] (iii)The case of G.v.G. also, could not help the appellant.
In that case the Court without going into the question which party was impotent was satisfied that the couple could not consummate their marriage in the present or in the future and should not be tied up together for their lives in misery.
The position in the present case was entirely different.
Neither of the Courts below had found that the marriage could not be consummated in future and they had not also accepted the appellant 's plea that the respondent had always resisted his attempts to consummate the marriage.
[564 B 564 E] The appeal must accordingly be dismissed.
|
iminal Appeal No. 6 of 1969.
Appeal from the judgment and order dated May 2, 1968 of the Delhi High Court in Criminal Revision Nos.
339 D of 1965 and 185 D of 1968.
Sardar Bahadur Saharya and Yougindra Khushalani, for the appellant.
section C. Mazumdar and Yogeshwar Dayal, for the respondents.
The Judgment of the Court was delivered by Sikri, J.
This appeal by certificate of fitness granted by the High Court of Delhi arises out of an application under section 488, Cr.
P.C. filed on September 4, 1963, in the Court of Magistrate, 1st Class, Delhi, by four children of the respondent, Nanak Chand.
The first applicant, Chandra Kishore, was born on January 23, 1942, the second, Ravindra Kishore, was born on September 23, 1943, the third Shashi Prabha, was born on February 23, 1947, and the fourth, Rakesh Kumar, was, born on September 21, 1948.
The first two applicants were thus majors at the time of the appli cation, the third though a minor at the time of the application was a major on the date of the order passed by the Magistrate, i.e., on March 26, 1965.
The learned Magistrate allowed the application and ordered the, respondent, Nanak Chand, to pay Rs. 35 p.m. to Chandra Kishore for four months only, Rs. 36 p.m. to Ravindra Kishore for 3 years only in case he continued his medicine studies, Rs. 45 p.m. to Shashi Prabha as her maintenance allowance and education expenses and Rs. 45 p.m. to Rakesh Kumar as his maintenance allowance and education expenses, from March 26, 1965.
Both the applicants and the respondent, Nanak Chand, filed revisions against the order of the Magistrate, to the Additional Sessions Judge, who dismissed the revision petition filed by the respondent, Nanak Chand, and accepted the revision petition of the 567 applicants.
The Additional Sessions Judge submitted the case to the High Court with the recommendation to enhance the maintenance allowance of the applicants in terms of the proposals made by him.
The Additional Sessions Judge observed that the maintenance under section 488 did not include the costs of college education, and therefore he did not propose to allow Chandra Kishore and Ravindra Kishore the expenses of their college education.
But taking into consideration the income of the respondent and the status of the family, the Additional Sessions Judge proposed to allow Chandra Kishore and Ravindra Kishore Rs. 100 p.m. each as maintenance allowance until they finished their courses of M.Com.
and M.B.B.S., respectively.
He further proposed to allow to Rakesh Kumar and Shashi Prabha each a monthly maintenance allowance of Rs. 50 until Shashi Prabha was able to earn or was married, whichever was earlier, and until Rakesh Kumar was able to maintain himself. 'The High Court accepted the reference made by the learned Additional Sessions Judge, and dismissed the criminal revision filed by the respondent.
The High Court granted the certificate under article 134(1) (c) of the Constitution because there is conflict of opinion on the question of the interpretation to be given to the word 'child ' in section 489, Cr.
The learned counsel for Nanak Chand has raised three points before us : first, that section 488, Cr.
P.C. stands impliedly repealed by section 4 of the (78 of 1956) hereinafter referred to as the Maintenance Act insofar as it is applicable to Hindus; secondly, that the word 'child ' in section 488 means a minor; and thirdly, that the maintenance fixed for Chandra Kishore and Ravindra Kishore was based on wrong principles and was excessive inasmuch as expenses for education have been taken into consideration.
Section 4 of the Maintenance Act reads "4.
Save as otherwise expressly provided in this Act, (a). . (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus insofar as it is inconsistent with any of the provisions contained in this Act.
" The learned counsel says that section 488 Cr. P.C., insofar as it provides for the grant of maintenance to a Hindu, is inconsistent with Chapter III of the Maintenance Act, and in particular, section 20, which provides for maintenance to children.
We are unable to Sup.
Cl/69 7 568 see any inconsistency between the Maintenance Act and section 488, Cr.
P.C. Both can stand together.
The Maintenance Act is an act to amend and codify the law relating to adoptions and maintenance among Hindus.
The law was substantially similar before and nobody ever suggested that Hindu Law, as in force immediately before the commencement of this Act, insofar as it dealt with the maintenance of children, was in any way inconsistent with section 488, Cr.
The scope of the two laws is different.
Section 488 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties.
Recently the question came before the Allahabad High Court in Ram Singh vs State(1), before the Calcutta High Court in Mahabir Agarwalla vs Gitia Roy (2) and before the Patna High Court in Nalini Ranjan vs Kiran Ran(3).
The three High Courts have, in our view, correctly come to the conclusion that section 4(b) of the Maintenance Act does not repeal or affect in any manner the provisions contained in section 488, Cr.
On the second point there is sharp conflict of opinion amongst the High Court and indeed amongst the Judges of the same High Court.
In view of this sharp conflict of opinion we must examine the terms of section 488 ourselves.
Section 488(1) reads as follows "488(1).
If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub divisional Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person +to make a monthly allowance for the maintenance of his wife or such child, at such manthly rate, not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.
" We may also set out sub section
(8) of section 488 because some courts have placed reliance on it : "488(8).
Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife, or, as the case may be, the mother of the illegitimate child.
" The word 'Child ' is not defined in the Code itself.
This word has different meanings in different contexts.
When it is used in (1) A.I.R. [1963] All. 355.
(2) [1962] 2Cr.
L.J.528.
(3) A.I.R. [1965] Pat.
569 correlation with father or parents, according to Shorter Oxford Dictionary it means : "As correlative to parent.
The offspring, male or female, of human parents.
" Beaumont, C.J., in Shaikh.
Ahmed Shaikh Mahomed vs Fatma(1) observed : "The word "child" according: to its use in the English language has different meanings according to the context.
If used without reference to parentage, it is generally synonymous with the word 'infant ' and means a person who has not attained the age of majority. where the word 'child ' is used with reference to parentage, it means a descendant of the first degree, a son or a daughter and has no reference to age.
In certain contexts it may include descendants of more remote degree, and be equivalent to "issue".
But, at any rate, where the word "child" is used in conjunction with parentage it is not concerned with age.
No one would suggest that gift "to all my children" or "to all the children of A" should be confined to minor children.
In section 488 of the Criminal Procedure Code the word is used with reference to the father.
There is no qualification of age; the only qualification is that the child must be unable to maintain itself.
In my opinion, there is no justification for saying that this section is confined lo children who are under the age of majority.
" We agree with these observations and it seems to us that there is no reason to depart from the dictionary meaning of the word.
As observed by Subba Rao, J., as he then was, speaking for the Court in Jagir Kaur vs Jaswant Singh (2) "Chapter XXXVI of the Code of Criminal Procedure providing for maintenance of wives and children intends to serve a social purpose.
" If the concept of majority is imported into the section a major child who is an imbecile or otherwise handicapped will fall outside the purview of this section.
If this concept is not imported, no harm is done for the section itself provides a limitation by saying that the child must be unable to maintain itself.
The older a person becomes the more difficult it would be to prove that he is unable to maintain himself.
It is true that a son aged 77 may claim maintenance under the section from a father who is 97.
It is very unlikely to happen but if it does happen and the father is (1) T.L.R. , 40.
(2) ; , 84.
570 able to maintain while the son is unable to maintain himself no harm would be done by passing an appropriate order under section 488.
We cannot view with equanimity the lot of helpless children who though major are unable to support themselves because of their imbecility or deformity or other handicaps, and it is not as if such cases have not arisen.
As long ago as 1873, Pearson, J.
In the matter of the Petition of W. B. Todd(1) had to deal with a major son who was deaf and dumb, and he had no hesitation in granting an order of maintenance.
The same conclusion was arrived at by Chevis, J., in 1910 in Bhagat Singh vs Emperor(2) and he allowed maintenance to a young man of about 20 who was very lame having a deformed foot.
We have seen no case in which a man of 77 has claimed maintenance and we think, with respect, that unnecessary emphasis has been laid on the fact that it might be possible for a man of 77 to claim maintenance.
It is not necessary to review all the case law.
The latest judgment which was brought to our notice is that of the Madras High Court in Amirithammal vs Marimuthu(3) in which Natesan, J. has written a very elaborate judgment.
He has referred to all the Indian cases and a number of English cases and statutory provisions both in England and in India.
We are unable to derive any assistance from the statutory provisions referred to by him or from the English Law on the point.
He relied on the use of the word "itself" in section 488 as showing that what was meant was a minor child.
We are unable to attach so much significance to this word.
It may well be that it is simpler or more correct to use the word "itself" rather than use the words "himself or herself.
" We may mention that Das Gupta, J., in Smt.
Purnasashi Devi vs Nagendra Nath (4) and Mudholkar, J., in State vs Ishwarlal(5) came to the same conclusion as we have done.
In view of the reasons given above we must hold that the word "child" in section 488 does not mean a minor son or daughter and the real limitation is contained in the expression "unable to maintain itself." Coming to the third point raised by the learned counsel we are of the view that the learned Additional Sessions Judge and the High Court were right in taking into consideration the existing situation ' the situation being that at the time the order was passe Chandra Kishore was a student of M.Com.
and Ravindra Kishore was a student of M.B.B.S. course.
We need not decide in this (1) [1873] 5 N.W.P. High Court Reports 237.
(2) (3) A.I.R. [1967] Mad. 77.
(4) A.T.R. (5) T.L.R. 571 case whether expenses for education can be given under section 488 because no such expenses have been taken into consideration in fixing the maintenance in this case.
It has not been shown to us that the amount fixed by the learned Additional Sessions Judge and confirmed by the High Court is in any way excessive or exorbitant.
In the result the appeal fails and is dismissed.
R.K.P.S. Appeal dismissed.
| IN-Abs | The appellant 's four children, the respondents in the appeal, two of whom were majors and two were minors, filed an application under section 488 of the Criminal Procedure Code in September, 1963 for an order requiring the appellant to pay them maintenance.
The Trial Court allowed the application and fixed the monthly amounts to be paid as maintenance to each of the children.
The appellant 's revision application was dismissed but one filed by the respondents was allowed whereby the Additional Sessions Judge submitted the case to the High Court with recommendations to enhance the maintenance allowance.
The High Court accepted, the reference and thereafter, on an application by the appellant granted a certificate under article 134(1)(c) for an appeal to this Court.
It was contended on behalf of the appellant that (i) section 488 Cr.
P.C. was impliedly repealed by section 4 of the Hindu Adoptions and Maintenance Act 78 1956 insofar as it applied to Hindus; (ii) that the word "child" in section 488 means a minor; and (iii) that the maintenance fixed for two of the major children was based on wrong principles and was excessive inasmuch as expenses for education had been taken into consideration.
HELD : Dismissing the appeal : (i)There was no inconsistency between Act 78 of 1956 and section 488 Cr.
P.C. Both could stand together.
The Act of 1956 is an Act to amend and codify the law relating to adoptions and maintenance among Hindus.
The law was substantially similar before when it was never suggested that there was any inconsistency with section 488 Cr.
The scope of the two laws is different.
Section 488 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties.
[568 A B] Ram Singh vs State, A.I.R. 1963 All. 355; Mahabir Agarwalla vs Gita Roy, ; and Nalini Ranjan vs Kiran Rani, A.T.R. 1965 Pat. 442; approved.
(ii)The word "child" in section 488 does not mean a minor son or daughter and the deal limitation is contained in the expression "unable to maintain itself".
If the concept of majority is imported into the section, a major child who is an imbecile or otherwise handicapped will fall outside the purview of this section.
If this concept is not imported, no harm is done for the section itself provides a limitation by saying that the child must be unable to maintain itself.
The older a person becomes the more difficult it would, be to prove that he is unable to maintain himself.
[569 F H] 566 Shaikh Ahmad Shaikh Mahommad vs Ba Fatma, I.L.R. [1943] Bom.
38, 40; Jagir Kaur vs Jaswant Sinqh ; , 84; in the matter of the Petition of W.B. Todd, (1873) 5 N.W.P. High Court Reports 237; and Bhagat Singh vs Emperor, 6 I.C. 960; referred to.
Purnasashi Devi vs Nagendra Nath, A.I.R. 1950 Cal. 465; and State vs Ishwarlal, I.L.R. ; approved.
Amiritliammal vs Marimuthu, A.I.R. 1967 Mad. 77; disapproved.
(iii)While it was not necessary to decide whether expenses for education can be given under section 488, in the present case, the Court below were right in taking into consideration the situation at the time of passing the order i.e. that the two major children were college students.
[570 G H]
|
Appeals Nos.
1017, to 1027, 1029 to 1032, 1034 to 1037, 1901 to 1906 and 854 of 1968.
Appeals from the judgment and order dated January 30, 1967 of the Orissa High Court in O.J.Cs.
329 of 1965 etc.
C. B. Agarwala end R. N. Sachthey, for the appellant (in all the appeals) H. R. Gokhale, Santosh Chatterjee and G. section Chatterjee, for the respondents (in all the appeals).
The Judgment of the Court was delivered by Shah, J.
The State of Orissa has appealed to this Court against the judgment of the State High Court declaring "unconstitutional and invalid" Chapter IV of the Orissa Land Reforms (Amendment) Act 15 of 1965.
The Orissa Land Reforms Act 16 of 1960 (hereinafter called the principal Act) received the assent of the President on October 17, 1960.
By section 1(3) of the principal Act it was provided that the Act shall come into force in whole or in part, on such or date or dates as the Government may from time to time by notification appoint and different dates may be appointed for different provisions of the Act.
By a notification issued on September 25, 1968 certain provisions of the principal Act other than those contained in Chs.
III and IV were brought into force.
By a notification dated December 9,.1965 Ch.
III (sections 24 to 37 dealing with resumption for personal cultivation of any land held by a tenant and related matters) was brought into force.
But Ch.
IV (sections 38 to 52 dealing with ceiling of holdings of land and disposal of excess land) was not brought into operation.
The Legislature of the State of Orissa amended the principal Act by Act 13 of 1965.
By Act 13 of 1965 amendments were made in the principal Acts : the expressions "ceiling area" and "privileged raiyat" were defined by clauses (5) & 24 of section 24 and the expression "classes, of land" was defined in section 2(5 a).
The original Chs.
III and IV of the principal Act were deleted and were substituted by fresh provisions.
Nothing need be said about the amendments made in Ch.
III because in these groups of appeals the validity of these provisions is not in issue.
It may suffice to say that Ch.
III (sections 24 to 36) as amended 595 deals with the right of the landlord to resume land for personal cultivation, the extent of that right, and the proceedings for resumption of land.
Chapter IV as amended deals with ceilings and disposal of excess land.
By section 37 it is provided : "(1) No person shall hold after the commencement of this Act lands as landholder or raiyat under personal cultivation in excess of the ceiling area determined in the manner hereinafter provided.
By section 3 8 the Government is authorised to grant exemption from the operation of the ceiling in respect of certain classes of land Section 39 deals with the principles for determining the ceiling area.
Sections 40, 41 & 42 deaf with the filing of returns in respect of lands in excess of the ceiling area on the date of commencement of the Act and the consequences of failure to submit the return. ' Section 43 provides for the preparation and publication of draft statements showing ceiling and surplus lands by the Revenue Officer and section 44 provides for the publication of the final statement of ceiling and surplus lands after hearing objections, if any, received and after making enquiries as the Revenue Officer may deem necessary.
Section 45 provides that : "With effect from the beginning of the year next following the date of the final statement referred to in sub section (3) of section 44 the interests of the person to whom the surplus lands relate and of all landholders mediately or immediately under whom the surplus lands were being held shall stand extinguished and the said lands shall vest absolutely in the Government free from all encumbrances.
Section 46 provides for determination of compensation.
Section 47 sets out the principles for determining compensation.
It provides that the compensation in respect of the interest of the land holders mediately or immediately under whom the surplus lands are being held as a landholder or raiyat shall be fifteen times the fair and equitable rent.
It also provides for payment of in market value of tanks, wells and of structures of a permanent nature situate in the land, determined on the basis of fair rent in the manner prescribed therein.
Sections 48 and 49 deals with the preparation and publication of draft compensation assessment roll and the final compensation assessment roll.
By section 51 provision was made for settlement of surplus lands vested in the Government under section 45 with persons as raiyats in the order of priority mentioned therein and section 52 imposes a ceiling on future acquisitions.
It is provided thereby: 5 96 "The foregoing provisions of this Chapter shall, A mutatis mutandis, apply where lands acquired and held under personal cultivation subsequent to the commencement of this Act by any person through inheritance, request, gift, family settlement, purchase lease or otherwise, together with the lands 'in his personalcultivation at the time of such acquisition exceeds his ceiling limit.
By the amendment made in the Constitution by the 17th Amendment Act the principal Act is incorporated in the Ninth Schedule to the Constitution with effect from june 20, 1964.
The Act is therfore not liable to be attacked on the plea that it is inconsistent with or takes away or abridges any of the fundamental rights conferred by Part III Constitution.
But the power to repeal or amend the Act incorporated in the Ninth Schedule is not thereby taken away.
the enactment of the of the of the competent Legislature to amending Act passed after the (Seventeenth Amendment) Act, 1964 does not therefore qualify for the protection of article 31 B. See Ramanlal Gulabchand Shah etc.
vs etc.
vs State of Gujarat & Ors.(1) Sri Ram Ram Narain Medhi vs The State of Bombay(2) This position is not disputed.
Chapter IV in the principal Act by orissa Act 13 of 1965 when brought into force is liable to be challenged the ground that it is inconsistent with or takes away orabridges any of the fundamental rights conferred by Part III of the Constitution, It was urged however, and that plea has found favour with the High Court, that section 47 incorporated by Act 13 of 1965 which provided for compensation not based on the market value of the land but at fifteen times the fair and equitable rent is in consistent with article 3 1 A, proviso 2, and is on that account viod.
To appreciate the contention the constitutional provisions relating to protection guaranteed by the Constitution against compulsory acquisition of property may be noticed.
By Ar.
31(2) as amended by the Constitution (Fourth Amendment) Act, 1955, insofar as it is material, it is, provided : "No property shall be compulsory acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of the compensation or specifies the principles on which, and the manner in which the compen (1)[1969] 1 S.C.R. 42.
(2)[1959] Supp.
1 S.C.R. 489, 597 sation is to be determined and given; Clause (2A) of article 31 which in substance defines the expression "law" providing for compulsory acquisition enacts that: "Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property." By article 31(2) read with article 31(2A) property may be compul sorily acquired only for a public purpose and by authority of a law which provides for compensation for the property so acquired and either fixes the amount of the compensation or specifies the principles on which, and the manner in which, the compensation is to be determined and given.
In order that property may be validly acquired compulsorily the law must provide for the transfer of ownership or right to possession of any property to the State or to a corporation owned or controlled by the State.
By virtue of section 45 of the principal Act "the interests of person to whom the surplus lands relate and of all land holders mediately or immediately under whom the surplus lands were being held . stand extinguished and the lands.
. vest absolutey in the Government free from all encumbrances.
" This is clearly compulsory acquisition of land within the meaning of article 31(2) of the Constitution and the compensation determined merely at fifteen times the fair and equitable rent may not, prima facie, be regarded as determination of compensation according to the principles specified by the Act.
But article 31A which applies to the statute in question provides by the first clause: "Notwithstanding anything contained in Article 13 no law providing for (a)the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or (b) (c) (d) (e) shall be deemed to be void on the ground that it is tent with, or takes away or abridges any of the ferred by article 14, article 19 or article 31 598 The principal Act 16 of 1960 and the amending Act 13 of 1965 were both Acts enacted for ensuring agrarian reform, and the lands held by the petitioners were "estates" within the meaning of article 31 A.
By section 45 the rights of the land holders were sought to be extinguished or modified.
But to the operative part of article 31 A by section 2 of the Constitution (Seventeenth Amendment) Act, 1964, the second proviso was added.
The second proviso enacts : "Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which ,hall not be less than the market value thereof." By the Constitution (Seventeenth Amendment) Act, 1964, it was clearly enacted that under any law which provides for the acquisition of any land in an estate under the personal cultivation of the holder, compensation shall not be less than the market value of the land if such land be within the ceiling limit applicable to the holder under any law for the time being in force.
Before the High Court it was urged on behalf of the landholders that when the principal Act was enacted it became law in force, and the ceiling limit prescribed thereby became effective, even though Ch.
IV was not extended by a notification under section 1(3) of the Act, and since the subsequent legislation seeks to restrict the ceiling limit and to vest the surplus land in the Government under section 45 as amended, there is compulsory acquisition of land which may be laid only if the law provides for payment to the landholder for extinction of his interest, the market value of that part of the surplus land which is within the ceiling limit under the principal Act.
This argument found favour with the High Court.
In their view the expression "law in force" must be "construed only in the constitutional sense and not in the sense of its actual operativeness", and on that account it must be held that "there was a ceiling limit already provided by the principal Act as it was 'law in force ' within the meaning of that expression as used in the second proviso to article 31 A".
They proceeded then to hold that section 47 of the Act as amended provided for payment of compensation at a rate which is less than the market value of the land falling within the ceiling limit as originally fixed under of 1960, and the guarantee of the second proviso to article 31 A of the Constitution is on that account infringed.
We are unable to accept this process of reasoning.
The right to compensation which is not less than the market value under any law providing for the acquisition by the State of any land in an estate in the personal cultivation of a person is guaranteed by the second Proviso only where the land is within the ceiling limit applicable to him under any law for the time being in force.
A law cannot be said to be in force unless it is brought into operation by legislative enactment, or by the exercise of authority by a delegate empowered to bring it into operation.
The theory of a statue being "in operation in a constitutional sense" though it is not in fact in operation has, in our judgment, no validity.
Again Ch.
IV of the principal Act was repealed by the Amending Act 15 of 1965.
Article 31 A proviso 2 guarantees to a person, for compulsory acquisition of his land, the right to comPensation which is not less than the market value, when the land is within the ceiling limit applicable to him under a law for the time being in force.
On the plain words of the proviso the law prescribing the ceiling limit must be in force at the date of acquisition.
In the present case the law relating to the ceiling limit viz.
IV of the principal Act was never made operative by a notification, and was repealed by Act 15 of 1965.
The ceiling limit under section 47 of the principal Act was on that account inapplicable to the landholders who challenged the validity of section 45 of the amending Act.
The decision of this Court A. Thangal Kunju Mudaliar vs M. Venkatachalam Potti and Anr.
(1) on which the High Court relied lends no support to the views expressed by them.
In that case the Travancore State Legislature enacted Act 14 of 1124 M.E to provide for investigating cases of evasion of tax.
The Act was to come into force by section 1(3) on the date appointed by the State Government by notification.
The States of Travancore and Cochin merged on July 1, 1949 and formed the United State of Travancore and Cochin.
By Ordinance I of 1124 M.E. all existing laws of the Travancore State were to continue in force in the United State.
By a notification the Government of the United State brought the Travancore Act 14 of 1124 (M.E.) into force, and referred cases of certain tax payers for investigation to the Commission appointed in that behalf.
The tax payers challenged the authority of the Commission to investigate the cases.
They contended that the Travancore Act 14 of 1124 (M.E.) not being a law in force when the United State was formed, the notification bringing the Act into force was ineffective.
The Court rejected that plea.
Section 1(3) of Travancore Act 14 of 1123 (M.E.) was (1) ; L14 Sup.
C.I./69 9 600 existing law on July 1, 1949, and continued to remain in force by virtue of Ordinance 1 of 1124 (M.E.).
The notification issued in exercise of the power under section 1(3) of the Travancore Act 14 of 1124 (M.E.); the reference of the cases of the petitioners, the appointment of the authorised officials and the proceedings under the Act could not be questioned because section 1(3) was existing law on July 1, 1949.
In A. Thangal Kunju Mudaliar case(1) the contention that Travancore Act 14 of 1124 (M.E.) was not law in force until a notification was issued bringing into operation the provisions of the Act, authorising the appointment of a Commission, and referring the cases of tax payers to the Commission, was rejected.
The Court held that section 1(3) was in operation on July 1, 1949 and the power to bring into force the provisions of the Travancore Act was exercisable by the successor State.
It was not held that the other provisions of the Act were in force even before an ap propriate notification was issued.
In the case in hand section 1(3) of the principal Act was in force, but Ch.
IV of the Act was not brought into force.
The argument that provisions of the Act which by a notification could have been but were not brought into force, must still be deemed to be law in force, derives no support from the case relied upon.
Section 1(3) of Act 16 of 1960 is undoubtedly a law in force, but until the power is exercised by the State Government to issue an appropriate notification, the provisions of Ch.
IV could not be deemed to be law in force, and since no notification was issued before Ch.
IV of the principal Act was repealed, there was no ceiling limit applicable to the landholders under any law for the time being in force which attracted the application of the second proviso to article 31 A.
The appeals must, therefore, be allowed, and the order pass ed by, the High Court declaring Ch.
IV of Act 13 of 1965 amending Act 16 of 1960 ultra vires, be set aside.
The State will get its costs in this Court from the respondents.
There will be one hearing fee.
There will be no order as to costs in the High Court.
R.K.P.S. (1) ; Appeals allowed.
| IN-Abs | The Constitution of India, article 31 A, proviso 2, guarantees to a person for compulsory acquisition of his land, the right to compensation which is not less than the market value when the land is within the ceiling limit applicable to him under a law for the time being in force.
Section 1(3) of the Orissa Land Reforms Act, 1960, provided that the Act was to come into force in whole or in part on such dates as the Government may from time to time by notification appoint.
Certain provisions of the Act were brought into force by notifications.
But Chapter IV of the Act dealing with ceiling of holdings of land was not brought into force.
The Act was amended by Act 13 of 1965.
The amending Act deleted Chapter IV and substituted fresh provisions.
Chapter IV as amended dealt with ceiling and disposal of excess land and provided for compensation at fifteen times the fair and equitable rent.
In the High Court the respondent land holders urged that when Act 16 of 1960 was enacted it became law in force and the ceiling limit prescribed thereby became effective even though Chapter IV was not brought into force by notification under section 1(3) of the Act that since the Amending Act 15 of 1965 sought to restrict the ceiling limit and to vest the surplus land in the government there was compulsory acquisition of land which could be valid only if the law provided for payment to the land holder the market value of that part of the surplus land which was, within the ceiling limit under Act 16 of 1960.
The High Court accepted the contention and struck down Chapter IV of the Act as unconstitutional and invalid.
It was of the view, relying on this Court 's decision in Thangal Kunju Mudaliar 's case, that the expression "law in force ' had to be "construed only in the constitutional sense and not in the sense of its actual operativeness." In appeal by the State, HELD : Allowing the appeal ' A law cannot be said to be in force unless it is brought into operation by legislative enactment or by the exercise of authority by a delegate empowered to bring it into operation.
The theory of a statute being " operation in a constitutional sense" has no validity.
The decision of this Court in Thangal Kunju Mudaliar ends no support to the view expresse by the High Court.
There this Court held that section 1(3) of Travancor Act 14 of II 24 (M.E.) was an "existing law" on the date of the merge of the States of Travancore and Cochin and the power to bring into fore the provisions of the Travancore Act was exercisable by the successor State It was not held that the other provisions of the Act were in force eve before an appropriate notification was issued.
[599 B C; 600 C D] 594 In the present case the law relating to the ceiling limit, viz., Chapter IV of Act 16 of 1960 was never operative by a notification and was repealed by Act 15 of 1965.
Therefore there was no ,ceiling limit applicable to the land holders under any "law for the time being in force" which attracted the application of the second proviso to article 3 1 A. [600 E] Thangal Kunju Mudaliar vs M. Venkitachalam Potti, ; ; explained.
|
ivil Appeals Nos. 281, 284, 363, 383 to 393 and 513 to 567 of 1969.
Appeals from the judgment and order dated December 6, 1968 of the Madras High Court in Writ Petitions Nos.
1659 of 1968.
M.S. Sethu and A.V.V. Nair, for the appellant (in C.As.
281 and 363 of 1969).
M.S. Sethu and P. Parameshwara Rao, for the appellant (in C.A. No. 284 of 1969).
H.R. Gokhale and K. Jayaram, for the appellant (in C.A. No. 383 of 1969).
K. Jayaram and T.S. Vishwanatha Rao, for the appellants (in C.As.
Nos. 384 to 393 and 513 to 567 of 1969).
S.V. Gupte, section Mohan and A. V. Rangam, for the respondent (in C.A. No. 281 of 1969).
section Mohan and A1.
V. Rangam, for the respondents (in C.As.
Nos. 284, 363, 383 to 393 and 513 to 567 of 1969).
The Judgment of the Court was delivered by Shah, J.
At the conclusion of the hearing of these appeals on April 23, 1969, we announced that "the appeals are dismissed with costs; reasons in support of the order will be delivered thereafter".
We proceed to record the reasons in support of the order.
The appellants carry on business as dealers in "cane jaggery" in the State of Tamil Nadu.
As a result of certain legislative and executive measures, transactions of sale in "cane jaggery" were made liable as from January 1, 1968 to tax under the Madras General Sales Tax Act, 1959, and transactions of sale in "palm jaggery" remained exempt from sales tax.
The appellants filed petitions in the High Court of Madras challenging the validity of the levy of tax on "cane jaggery", on three grounds: (1) that the levy of tax on turnover from sale of "cane jaggery" ' was discriminatory and violated the equality clause of the Constitution; (2) that the levy of tax imposes a restriction on trade and commerce contrary to the provisions of Part XIII of the Constitution; and (3) there is excessive delegation of legislative authority to the executive and on that account the levy of tax pursuant to an order made in 617 exercise of the powers under section 59 of the Madras General Sales Tax Act 1 of 1959 on "cane jaggery" is invalid.
The High Court rejected all the contentions.
Counsel for the appellants have in these appeals urged the first two grounds and have in addition submitted that in levying tax on turnover from sale of "cane jaggery" legislative power has been colourably exercised.
The argument that there was excessive delegation to the executive of the legislative power was abandoned before this Court, because the State of Madras has enacted Act II of 1968 authorising levy of tax on sale of jaggery by amending Sch.
III to Madras Act 1 of 1959.
Turnover from sale of jaggery cane or palm was subject to tax under section 3(1) of the Madras Act IX of 1939 at three pies per rupee.
By G.O. 651 dated February 28, 1955 and G.O. 2780 dated September 7, 1955 all sales of "palm jaggery" effected through Co operative Societies and the Palm Gut Federation were exempt from tax.
By another G.O. No. 1605 dated April 19, 1956, all transactions of sale in "palm jaggery" were exempted from sales tax with effect from April 1, 1956.
Transactions of sale in "cane jaggery" therefore continued to remain liable to ' tax whereas sales of "palm jaggery" enjoyed the benefit of exemption from tax.
After the judgment of this Court in The Bengal Immunity Company Ltd. vs The State of Bihar & Others(1) the Parliament amended article 286 and entry 54 in List II of the Seventh Schedule 'and added a new Entry 92A in List I in the Seventh Schedule by the Constitution (Sixth Amendment) Act.
In, exercise of the power under Entry 92A List I the Parliament enacted the Central Sales Tax Act 74 of 1956.
By Ch.
IV of that Act the power reserved under the amended article 286 cl.
(3) was exercised by the Parliament, and certain classes of goods were declared to be of "special importance in inter State trade or commerce".
By section 15 certain modifications were declared in State Acts relating to the levy of taxes on sales and purchases of declared goods.
However in the list of goods of "special importance in inter State trade or commerce" gur or jaggery was when, the Act was enacted not included.
The Parliament then enacted the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (Act 58 of 1957).
Section 3 of that Act authorised the levy and collection of additional duties in respect of several classes of goods including "sugar".
By section 4 it was provided that during each financial ' year, there shall be paid out of the Consolidated Fund of India (1) 618 to the States in accordance with the provisions of the second schedule, such sums, representing a part of the net proceeds of the additional duties levied and collected during that financial year, as are specified in that Schedule.
It was enacted by the proviso to cl.
(2) of the Schedule that if during that financial year there is levied and collected in any State specified in the Table a tax on the sale or purchase of sugar by or under any law of that State, no sums shall be payable to that State under sub cl.
(ii) or sub cl.
(iii) of cl.
(b) 'in respect of that financial year, unless the Central Government by special order otherwise directs.
The expression 'sugar ' was defined in section 2(c) as having the same meaning as it has in the First Schedule to the .
The Governor of Madras issued Ordinance 1 of 1957 directing that transactions of sale of "cane jaggery" be liable to a single point tax at 5 per cent.
with effect from April 1, 1957.
By virtue of the , as amended by Act 31 of 1958 "sugar" as defined in Item No. 8 of the First Schedule to the was declared a commodity essential to the life of the community and tax could thereafter be levied on "sugar" at the rate of 2 per cent.
But in view of the definition contained in the , there was some doubt whether the expression 'sugar ' included gut.
The State of Madras being apparently of the opinion that "palm jaggery" and "cane jaggery" were subject to the provisions of the Additional Excise Act 58 of 1957, issued on April 15, 1958, G.O., No. 1457 exempting all sales of "cane jaggery" from tax with effect from April 1, 1958.
Transactions of sale of "palm jaggery" were therefore exempt partially from sales tax from February 28 1955 and wholly from April 1, 1956, and transactions of sale of "cane jaggery" were exempt from tax from April 1, 1958.
The State Legislature enacted the Madras General Sales Tax Act 1 of 1959 with effect from April 1, 1959.
By section 3 every dealer whose total turnover was not less than Rs. 10,000 became liable to pay tax for each year at the rate of 2 per cent of his taxable turnover.
By section 8 it was: provided that subject to such restrictions and conditions as may be prescribed, a dealer who deals in goods specified in the Third Schedule shall not be liable to pay any tax under the Act in respect of such goods Item 5 in the Third Schedule was "sugar including jaggery and gur.
" Section 17 of that Act authorised the State Government by notification to exempt or to make reduction in rate 'in respect of any tax payable under the Act on the sale or purchase of any special goods or class of goods 'at all points or specified points in respect of sales by successive dealers or by any specified class on dealers in respect of the whole or ,any part of their turnover.
By section 59(1) of the Act the State Government was authorised by notification, to alter, add or cancel any of the Schedules.
619 On April 1, 1959 transactions of sale of "sugar including jaggery and gur" were exempt from liability to pay tax under .the
Madras General Sales Tax Act 1 of 1959.
The exemption applied to all transactions of sale of "cane jaggery" and "palm jaggery".
On September 10, 1965 the Government of India advised the State Government that "jaggery" was not included in the expression 'sugar ' in the Additional Duties of Excise Act 58 of 1957.
The State of Madras in exercise of the power under sub section
(1 ) of section 59 of the Madras General Sales Tax Act, issued G.O. 2261 dated December 30, 1967, that: "In the said (Third) Schedule in item 5, for the word 'including ' the words 'but not including ' shall be substituted.
" The State simultaneously issued another notification that: "In exercise of powers conferred by section 17(1) of the Madras General Sales Tax Act, 1959, the Governor of Madras granted exemption in respect of tax payable under the Act on all sales of palm jaggery.
" In consequence of the two notifications turnover from transactions of sale of "cane jaggery" which was till then exempt from tax became liable to tax under section 3 of the Madras Act 1 of 1959 whereas sale of "palm jaggery" remained exempt from liability ' to pay sales tax.
In support of the plea that the State had practised unlawful discrimination between sales of "palm jaggery" and "cane, jaggery" it was urged that "cane jaggery" and "palm jaggery" which were identical commodities and were treated similarly under the successive Sales Tax Acts of the State for many years past were without any rational nexus with the object sought to be served by the Madras General Sales Tax Act, 1959, differently treated 'and on that account the notification issued under section 59 sub section
(1) which modifies the Third Schedule is ultra vires.
It may be recalled that the notification under section 59(1) which was issued in exercise of executive authority has received legislative sanction by Madras Act 2 of 1968.
Amendment in the Third Schedule now flows from the exercise of legislative authority and not executive .authority.
Since section 8 read with the Third Schedule as amended by Madras Act 2 of 1968 exempts only "sugar" from liability to tax, sales of jaggery, cane and palm, now fall within the charging section.
But the Government of Madras have in exercise of power under section 17 of Act 1 of 1959 exempted transactions of sale of "palm jaggery" from tax.
It is true that between April 1,.
620 1958 and October 31, 1967 transactions of sale of "cane jaggery" and "palm jaggery" were exempt from liability to pay sales tax under the Madras General Sales Tax Acts of 1939 and 1959, but it cannot be inferred therefrom that the Legislature treated "palm jaggery" and "cane jaggery" as the "same commodity.
" For nearly three years before April 1, 1958 sales of "palm jaggery" were exempt from tax but sales of "cane jaggery" were not.
The evidence on the record clearly shows that "cane jaggery" and "palm jaggery" are commercially different commodities. "Cane jaggery" is produced from the juice of sugarcane; "palm jaggery" is produced from the juice of the palm tree.
Mr. Raghupathy, Deputy Secretary to the Government of Madras (Commercial Taxes) has stated in his affidavit that "palm jaggery" industry comes under the purview of Khadi and Village Industries Board and is one of the cottage industries which gives ,employment mainly to poor tappers.
The tappers, according to Mr. Raghupathy, collect "neera" from palm and other trees and prepare jaggery by the traditional method of boiling "neera" in their huts and produce jaggery without the aid of any machinery.
Production of "palm jaggery" in the State compared to "cane jaggery" is small.
The price of "palm jaggery" and "cane jaggery" differ widely and apparently "palm jaggery" and "cane jaggery" are consumed by different sections of the community.
It is clear that the method of production of "palm jaggery" and "cane jaggery" are different; they reach the consumers through different channels of distribution; the prices at which they are sold differ and they are consumed by different sections of the community.
In a recent judgment N. Venugopala Ravi Varma Rajah vs Union of India and Another(1) this Court observed: ".
Tax laws are aimed at dealing with complex problems of infinite variety necessitating adjustment of several disparate elements.
The Courts accordingly admit, subject to adherence to the fundamental principles of the doctrine of equality, a larger play to legislative discretion in the matter of classification.
The power to classify may be exercised so as to adjust the system of taxation in all proper and reasonable ways: the Legislature may select persons, properties, transactions and objects and apply different methods and even rates for tax, if the Legislatures does so reason ably.
If the classification is rational, the Legislature is free to choose objects of taxation, impose different rates, exempt classes of property from taxation, subject different classes of property to tax (1) ; 621 in different ways and adopt different modes of assessment.
A taxing statute may contravene Article 14 of the Constitution if it seeks to impose on the same class of property, persons, transactions or occupations similarly situate; incidence of taxation, which leads to obvious inequality.
" It was also said by the Court that: "It is for the Legislature to determine the objects on which tax shall be levied, and the rates thereof.
The Courts will not strike down an Act as denying the equal protection merely because other objects could have been, but are not, taxed by the Legislature.
" We are accordingly of the view that "cane jaggery" and "palm jaggery" are not commodities of the same class, and in any event in imposing liability to tax on transactions of sale of "cane jaggery" and exempting "palm jaggery", no unlawful discrimination denying the guarantee of equal protection was practised.
No serious argument was advanced in support of the plea that the freedom of trade and commerce guaranteed by Part XIII of the Constitution is infringed by the imposition of tax on "cane jaggery".
Freedom of trade, commerce and intercourse guaranteed by article 301 of the Constitution is protected against taxing statutes as well as other statutes, but by imposition of tax on transactions of sale of "cane jaggery" no restriction on the freedom of trade or commerce or in the course of trade with or within the State is imposed.
The tax imposed on transactions of sale of "cane jaggery" does not affect the freedom of trade within the meaning of article 301.
As observed by this Court in The state of Madras vs IV.
K. Nataraja Mudaliar(1) "a tax may in certain cases directly and immediately restrict or hamper the free flow of trade, but every imposition of tax does not do so.
There is no substance in the contention that the Act which impose tax on "cane jaggery" and the notification which exempts "palm jaggery" from liability to tax imposes a colourable exercise of authority.
If the Legislature has the power to impose the tax, its authority is not open to challenge on a plea of colourable exercise of power: K.C. Gajapati Naravan Deo & Others vs The State of Orissa(2).
There will be one hearing fee.
G.C. Appeals dismissed.
| IN-Abs | As a result of a notification dated December 30, 1967 under section 59(1) of the Madras General Sales Tax Act and later by Act 2 of 1968 sales of jaggery became liable to tax.
But while by notification under section 17 'palm jaggery was exempted from tax 'cane jaggery ' was not.
The appellants who were dealers in 'cane jaggery ' challenged the levy by writ petitions in the High Court which were, however, dismissed.
In appeal before this Court it was contended (i) that the tax on 'cane jaggery ' while exempting 'palm jaggery ' was ,discriminatory and violative of article 14 of the Constitution; (ii) that taxation of 'cane jaggery ' was restrictive of trade and commerce and therefore violative of article 301; (iii) that the impugned legislation constituted a colourable exercise of power.
HELD: (i) The evidence on record clearly showed that 'cane jaggery ' and 'palm jaggery ' were commercially different commodities.
The methods of production of 'palm jaggery ' and 'cane jaggery ' were different; they reached the consumers through different channels of distribution; the prices at which they were sold differed and they were consumed by different sections of the community.
'Cane jaggery ' and 'palm jaggery ' did not thus belong to the same class and in differently treating them for the purpose of taxation there was no unlawful discrimination.
[620 B E; 621 C D] It was incorrect to say that the State Legislature had always treated the two products on the same footing.
For nearly three years before April 1, 1958 sales of 'palm jaggery ' were exempt from tax but sales of 'cane jaggery ' were not.
[620 B] Further, it is for the legislature to determine the objects on which tax shall be levied.
The courts will not strike down an Act as denying equal protection merely because other objects could have been but are not taxed by the legislature.
[621 B C] N. Venugopala Ravi Varma Rajah vs Union of India, ; , applied.
(ii) Freedom of trade, commerce and intercourse guaranteed by article 301 of the Constitution is protected against taxing statutes as well as other statutes, but by imposition of tax on transactions of sale of 'cane jaggery ' no restriction on the freedom of trade or commerce or in the course of trade with or within the State.
was imposed.
[621 D F] State of Madras vs N. K. Nataraja Mudaliar. ; , referred to.
(iii) The plea of colourable exercise of power had no substance because the legislature had power in the present case to.
levy the tax.[621 G] 4 Sup.
C.I./69 616 K.C. Gajapati Narayan Deo & Ors.
vs State of Orissa, [1954] S.C.R.1, applied.
|
Appeal No. 579 of 1966.
Appeal by special leave, from the judgment and order dated August 20, 1964 of the Calcutta High Court in Civil Rule No. 1715 of 1961.
D. N. Mukherjee, for the appellant.
B. C. Mitra and section C. Majumdar, for respondent No. 1.
The Judgment of the Court was delivered by Hidayatullah, C.J.
This is an appeal by special leave from the judgment and order of the High Court of Calcutta, August 20, 1964, in an application under section 115 of the Code of Civil Procedure, reversing the judgment of the Subordinate Judge, Howrah.
The facts are as follows : One Haji Abdul Karim, grandfather of respondents 2 to 4 exe cuted a Wakf al al aulad on March 30, 1917.
He constituted himself as the first Mutwali and named his two sons and widow as Mutwalis after his own death.
The Wakf provided for the benefit of the family and after the extinction of all the family a scheme for feeding,the poor.
On February 14, 1956 the present appellant Ayesha Bibi filed a suit claiming 1 /16th of the property as a sharer after the death of her husband Abdul Hamid.
This claim was made against respondents 2 to 4 who were the Mutwalis.
Ayesha Bibi joined the Commissioner of Wakfs, West Bengal as a defendant to the suit.
The suit was filed in the Court of Munsif, Howrah and reliefs claimed were a declaration that the Wakf was invalid, inoperative and void and that its enrolment in the Wakf Office was wrongly done and was of no avail.
She also asked for a permanent injunction restaining the Commissioner of West Bengal and other respondents from interfering with the possession of the property.
The Commissioner of Wakfs appeared in answer to the notice of the suit and filed a written statement on April 4, 1956.
He contended that the properties were governed by the Wakf which was valid and also that he was entitled to a notice under section 80 of 587 the Code of Civil Procedure before the suit was filed.
He stated that although he was entitled to a notice under section 70(1) of the Bengal Wakfs Act, 1934 it was, not necessary to add him as a defendant and he denied collusion between himself and the other defendants.
He observed that the other defendants were interested in secularising the wakf property for their own selfish ends.
On November 15, 1957 an application for amendment of the relief against the Wakf Commissioner was made to which the Wakfs Commissioner objected.
In his objections he stated that the suit was of a collusive nature as was apparent from the nature of the pleadings of the plaintiff and defendants other than himself.
The petition, however, was allowed.
No action was taken by the Commissioner to get that order set aside.
On May 15, 1958 the parties to the suit, other than the Commissioner, filed an application of compromise and May 22, 1958 was fixed for decision.
On the same day an application for striking off the name of the Commissioner from the array of the defendants was made.
This was heard in the presence of the counsel for the Commissioner and he did not object to the name being struck, off.
As a result the name of the Commissioner was struck off as a defendant.
The suit was also decreed the same day on compromise declaring the Wakf to be invalid 'and void and granting a perpetual injunction.
On June 20, 1958 the Commissioner made an application under section 70(4) of the Act for a declaration that the decree was void as no notice was given to him under section 70(1) of the Act.
The appellant objected but on April 20, 1960 the Munsif allowed the application and declared the decree to be void.
The appellant appealed to the Court of the Subordinate Judge, Howrah and the appeal was allowed.
It was held that the application under section 70(4) was incompetent as the Commissioner was present in the suit and the compromise decree was passed with the knowledge of the Commissioner and there was no need for a fresh notice to him under section 70(1) of the Act.
The Commissioner then filed a revision under section 115, C.P.C. and a learned single Judge of the High Court by the order, now under appeal, reversed the decision of the Subordinate Judge and restored the decree of the Munsif.
The order is challenged in this appeal.
Before we consider the question whether the Commissioners application under section 70(4) was proper it is necessary to examine the scheme of the Wakf Act.
The Act was passed to make provision for proper administration of Wakf properties in Bengal.
It applies to all wakfs whether created before or after the commencement of the Act, any property of which is situated in Bengal.
By Chapter 11 a Wakf Board is constituted and a whole time Officer called the Commissioner of Wakfs is appointed.
Chapter III lays 588 down the functions of the Board and the Commissioner and one of the functions under section 34 is the protection of Wakfs al al aulad.
Chapter IV deals with the enrolment of the Wakfs for which purpose a register of Wakfs is maintained.
Under section 45 the Commissioner has the power to enrol wakfs and also to amend the register from time to time.
Under section 46A the decision of the Commissioner is final subject to a decision of a competent court.
Chapter V deals with wakf accounts and Chapter VI with statements of wakfs al al aulad.
Chapter VII creates a bar to transfer of immovable property of wakfs.
Chapter VIII lays down the, duties of Mutwalis with other ancillary matters.
Chapter,IX deals with finance and Chapter X deals with judicial proceedings.
Chapter XI, XII and XIII deal with amendments and appealed, rule making power of the Provincial Government and power of the Board to make by laws and include some miscellaneous provisions.
We are concerned in this case with Chapter X which deals with judicial proceedings.
Section 69 in this Chapter provides as follows : "69.
Bar to compromise of suit or proceeding without sanction of Court.
No suit or proceeding by or against a mutwali as such in any Court shall be compromised without the sanction of the trying Court.
" Section 70 then provides "70.
Notice of suits etc., to be given to the Commissioner.
(1) In every suit or proceeding in respect of any wakf property or of a mutwalli as such except a suit or proceeding for the recovery of rent by or on behalf of the mutwalli the Court shall issue notice to the Commissioner at the cost of the party instituting such suit or proceeding.
(2) Before any wakf property is notified for sale in execution of a decree, notice shall be given bv the Court to the Commissioner.
(3) Before any wakf property is notified for sale for the recovery of any revenue, cess, rates or taxes due to the Crown or to local authority notice shall be given to the Commissioner by the Court, Collector or other person under whose order the sale is notified.
(4) In the absence of a notice under sub section (1) any decree or order passed in the suit or proceeding shall be declared void, if the Commissioner, within one month of his coming to know of such suit or proceeding, applies to the Court in this behalf.
(5) In the absence of a notice under sub section (2) or sub section (3) the sale shall be declared void, if the Commissioner within one month of his coming to know of the sale, applies in this behalf to the Court, or other authority under whose order the sale was held.
" Section 71 enables the, Commissioner to join as a party in any lit ' gation on his own application and to conduct or defend certain suits or proceedings on behalf of or in the interest of the wakf.
It will be noticed from the analysis of the Act that the Commissioner has a definite duty to perform in all suits in which the interests of the wakfs are involved.
Sub section
(1) of section 70 requires that in every suit or proceedings in respect of any wakf property the court shall issue a notice to the Commissioner.
This was done here because the Commissioner was a party and a summons had gone to him from the Court.
It is contended before us that this was not a notice but only a summons but we that nothing much turns upon this distinction.
The Commissioner had notice of the proceedings.
He appeared in the case, defended the wakf, characterised the suit as collusive and he was fully cog nizant of all that was happening in the suit.
The learned Judge in the High Court also held that there was no need to give the Commissioner another notice under sub section
(1) because the Commissioner had already notice of the suit.
The question, therefore, is whether in the absence of a notice under sub section
(1) the decree could be declared to be void.
Here the argument of the Commissioner in the High Court was that he had been removed from the array of the defendants and that he was, therefore, entitled to a special notice of the petition of compromise in the case.
It is to be noticed that section 70 speaks of several special notices, such as, in sub.
section (2) before any wakf property is notified for sale in execution of a decree, or in sub section
(3 ) before any wakf property is notified for sale for the recovery of any, revenue, cess, rates or taxes, but it does not provide for any special notice of a petition for compromise of a suit except the first notice that a suit had been filed in the court.
It is sgnificant that in s ' 69 although compromise cannot be made without the sanction of the trying court, there is no mention of any special notice to the Commissioner.
It follows.
therefore, that the Commissioner was entitled to a notice of the suit.
That may be by a letter from the court giving him this notice, or if he was made a party, by a summons to attend the court.
In the present case the second course was followed and a copy of the plaint must have accompanied the summons and in our opinion this was sufficient compli 590 ance with the provisions of the first sub section of section 70.
It is to be recalled that the Commissioner did appear, filed a writtenstatement, contested the suit and also described it as a collusive action between the plaintiff and the other defendants.
It is, however, surprising that when an application was made for striking off his name from the array of the defendants the Commissioner agreed to such a course.
This meant that in spite of notice to him of the collusive nature of the suit he was content to remain out side the suit and to give up all his pleas about the wakf and the collusive nature of the suit.
Having so acted it seems difficult to think that the decree could be declared void simply because the Commissioner had no special notice of the compromise.
No special notice of compromise petition is required to be issued under the Act.
He had notice of whole of the Suit and of the claim made by the plaintiff in the case.
He was afforded an opportunity to resist the suit and, in fact ' resisted but later gave up the fight and agreed to go out of the suit.
In these circumstances, it will be wrong to hold that the decree was void because the Commissioner was not given a notice of the petition.
Learned counsel for the Commissioner relied strongly upon a decision of the Madras High Court reported in State Wakf Board, Madras vs Abdul Azeez Sahib and others(1) in which the decision in the present case was noticed and applied for declaring a decree void.
In that case the counsel for the representatives of Wakf Board, Mr. Sherfuddin was also for some time the chairman of the Wakf Board and his knowledge of the suit was attributed to the State Wakf Board and it was heldd that there was notice as required by section 57(1) of (29 of 1954).
Section 57 (1) of that Act read: In every suit or proceeding relating to title to wakf property . the Court shall issue notice to the Board at the cost of the party instituting such suit or proceeding.
" Under section 57(3) it was further provided "In the absence of a notice under sub section (1) any decree or order passed in the suit or proceeding shall be declared void, if the Board, within one month of its coming to know of such suit or proceeding, applies to the Court in this behalf." Under the third sub section quoted here the application had to be made wain one month of the knowledge of the Board and it was held by the trial Judge that knowledge of Mr. Sherfuddin was knowledge of the Board and the application was delayed.
Reversing this decision the learned Chief HJustice of Madras held that (1) A.I.R. 1968 Mad. 79.
Under the third sub section quoted, here the application had to be made within one month of the knowledge of the Board and it was held by the trial Judge that knowledge, of Mr. sherfuddig was knowledge of the Board and the application was delayed.
Rever sing this decision the learned Chief Justice of Madras held that (1) A.I.R. 1968 Mad.
591 knowledge of Mr. Sherfuddin was not the knowledge of the Chair man of the State Wakf Board and could not be held to constitute knowlegde within the section.
According to the learned Chief Jus tice the knowledge which started limitation for the application was official knowledge in his capacity as a Chairman and not in his capacity as counsel.
This case is thus distinguishable.
Here the Commissioner of Wakfs Board was made a party and had full notice of the pendeacy of the suit and that it was a collusive suit between the plaintiff and the Mutwalis.
It cannot be said, therefore, that he had no knowledge or that he had no notice of the proceedings.
Indeed the learned Chief Justice of Madras while relying upon the decision in the present appeal also said that the facts of the 'two cases were quite different and the main point involved was also different.
He only relied upon a passage that in the judgment of the learned Judge of the Calcutta High Court the private know ledge of the Commissioner did not exonerate the court from its obligation to give notice to the Board.
There is no question here of any private knowledge.
The knowledge was provided by the summans to the Commissioner and he did appear in the case.
In the other case there was no notice whatever from the court, nor even a summons and it is thus clearly distinguishable.
The learned counsel further relied upon Muzafar Ahmed vs Indra Kumar Das and Others(1).
In that case the Commissioner was sent a notice but was not made a party.
The suit was,dismissed.
In the appeal that followed the Commissioner was not made a party and no notice of appeal was served or him.
The appeal was allowed.
In the second appeal a ground was taken that the appeal below was incompetent as there was no notice to the Commissioner.
Notice of the second appeal was however, issued to the Commissioner.
The decree was hed to be not void but voidable and as the Commissioner had not applied within a month the decree was allowed to stand.
the court also held that the worrds 'suit or proceeding ' in s.70(40 did not include an appeal.
There is much in this decision which may require careful consideration.
It is sufficient to say that the decision does not support the present constention of the Commissioner.
Benoy Kumar Acharjee Choudhury & Ors.
vs Ahamama Ali and Anr.(2) only lays down that under s.70 of the Act a notice is necessary to be served on the Commissioner in a suit in respect of wakf property even though the wakf may not be admitted.
To this proposition no exception can be taken but it does not advance the case of the Commissioner.
On the other hand, in The Commissioner of Wkfs Bengal vs Shuhbzada Mohammed Zahangir Shah(30 it was held that although (1) 77 C.L.J. 159 (2) (3) 592 a Commisisoner was entitled to a notice of a suit, under section 70 of the , but if he actually contested the suit as a party defendant, he could be treated as an intervener under section 71, even, if no notice was given to him and that the suit was not vitiated.
This case supports the proposition that joining the Commissioner as a party and his actual appearance in the suit stand equal to a notice under section 70(1).
None of the cases really supports the proposition now contended for before us.
The language of the fourth sub section of section 70 is quite clear that the Commissioner must not have knowledge previously of the suit.
Where the Commissioner has knowledge of the suit be, cannot claim a second knowledge as the start of C limitation.
In other words, his presence as a party in the suit after summons to him must be treated as a notice to him under the first sub section of section 70.
The decision of the Subordinate Judge was thus correct and was wrongly reversed.
The Commissioner attempted to raise the question of a notice under section 80 of the Code of Civil Procedure but that question could D only arise in the original suit and not in these proceedings.
In the result the judgment under appeal must be set aside and that of the Subordinate Judge, Howrah restored with costs against the Commissioner.
We regret this result and only hope that some way will be found out of the difficulty created by the foolish action of the Commissioner in leaving the field clear for the compromise of the suit.
Y.P. Appeal allowed.
| IN-Abs | The predecessor of respondents 2 to 4 executed a wake al al aulad providing for the benefit of the family and after the extinction of all thefamily a scheme for feeding the poor.
The appellant filed a suit claiming share in the property after the death of her husband, and for a declaration that the wakf was invalid and void and its enrolment in the wakf office was wrongly done.
This claim was made against respondents 2 to 4 who were the Mutawalis, and the Commissioner of Wakfs, West Bengal was joined as defendant to the suit.
The Commissioner appeared in answer to the notice of the suit and filed written statement and characterised the suit as collusive.
The parties to the suit, other than the Commissioner filed an application of compromise and an application was made forstriking off the name of the Commissioner from the array of defendants.
The counsel for the Commissioner was present at the hearing and he did not object to the name being struck off.
The name of Commissioner was struck off, and the suit was decreed on compromise declaring the wakf invalid and void and granting a perpetual injunction.
The Commissioner made an application under section, 70 (4) of the Bengal Wakfs Act, 1934 for declaring the decree void as no notice was given to him under 70(1) of the Act.
The Munsif allowed the application and declared the decree to be void.
On appeal, the Subordinate Judge held that the application under section 70(4) was incompetent as the Commissioner was present in the suit and the decree was passed with the knowledge of the Commissioner and there was no need for a fresh notice to him under section 70(1) of the Act.
The High Court, in revision, reversed the decision of the Subordinate Judge and restored that of the Munsif.
In appeal by special leave, this Court, HELD : The appeal must be allowed and the judgment of the Subordinate Judge must be restored.
Section 70 speaks of several special notices, such as, in sub section
(2) before any wakf property is notified for sale in execution of a decree or in sub section
(3) before any wakf property is notified for 'sale for the recovery of any revenue, cess, rates or taxes, but it does not provide for any special notice of a petition for compromise of a suit except the first notice that a suit had been filed in the court.
In section 69 although compromise cannot be made without the sanction of the trying court, there is no mention of any special notice to the Commissioner.
It follows, therefore, that the Commissioner was entitled to a notice of the suit.
That may be by a letter from the court giving him this notice, or, if he was made a party, by a summons to attend the court.
In the present case the second course was followed and a copy of the plaint must have accompanied the summons and this was sufficient compliance with the provisions of the first sub section of section 70.
[589 F 590 A] 586 The Commissioner had notice of whole of the suit and of the claim made by the plaintiff in the case.
He was afforded an opportunity to resist the suit and, in fact, resisted it but later gave up the fight and agreed to go out of the suit.
In these circumstances, it will be wrong to bold that the decree was void because the Commissioner was not given a notice of the compromise petition.
[592 C] State Wakf Board, Madras vs Abdul Azeez Sahib & Ors.
A.I.R. , distinguished.
Muzafar Ahmed vs Indra Kumar Das & Ors.
77 C.L.J., 159, Benoy Kumar Acharjee Choudhury & Ors.
vs Ahamma Ali & Anr.
and The Commissioner of Wakfs, Bengal vs Shahbzada Mohammed Zehangir Shah, , referred to.
|
iminal Appeal No. 8 of 1966.
Appeal by special leave from the judgment and order dated April 29, 1965 of the Punjab High Court, Circuit Bench at Delhi in Criminal Appeal No. 164 D of 1962.
Bishan Narain, K. K. Raizada and A. G. Ratnaparkhi, for the appellant.
Sardar Bahadur and Yougindra Khushalani, for respondent No. 1.
R. N. Sachthey, for respondent No. 2.
The Judgment of the Court was delivered by Ramaswami, J.
On August 29, 1960 Shri Sham Sundar Mathur, Municipal Prosecutor of the Delhi Municipal Corporation filed a complaint in the court of Magistrate First Class against the respondent, Jagdishlal under section 7 read with section 16 of the (37 of 1954).
In the said complain Shri Sham Sundar Mathur said that lie was competent to file the complaint under section 20 of the aforesaid Act in accordance with a resolution passed by the Corporation in its meeting held on December 23, 1968.
By his order dated April 30, 1962 the learned Magistrate acquitted the respondent.
The Delhi Municipal Corporation made an application to the High Court asking for special leave under section 417 of the Code of Criminal Procedure to appeal against the order of acquittal.
The application was ranted on September 3, 1962.
When the appeal came up for hearing a preliminary objection was raised on of the respondent that the only person competent to file the appeal was the complainant, Shri Sham Sundar Mathur.
But the leave application was not filed by him and, therefore, the Municipal Corporation was not competent to prosecute the appeal.
It was contended that only the complainant was competent to present an application for special leave under section 417(3) of the Code of Criminal Procedure.
As the complainant in this case was Shri Sham Sundar Mathur the appeal could not be filed by the Delhi Municipal Corporation.
The High Court upheld the preliminary objec tion of the respondent and dismissed the appeal by its order dated April 29, 1965.
This appeal is brought by special leave on behalf of the Delhi Municipal Corporation against the judgment of the High Court dated April 29, 1965 in Cr.
No. 163 D of 1962.
Section 20 of the states : 581 " (1) No prosecution for an offence under this Act shall be instituted except by, or with the written consent of, the Central Government or the State Government or a local authority or a person authorised in this behalf, by general or special order, by the Central Government or the State Government or a local authority : Provided that a prosecution for an offence under this Act may be instituted by a purchaser referred to in section 12, if he produces in court a copy of the report of the public analyst along with the complaint.
Section 417, sub sections
(1), (2) and (3) of the Code of Criminal Procedure after its amendment by Act 26 of 1955 provide : " (1) Subject to the provisions of sub section (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.
(2)If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the (XXXV of 1946), the Central Government may also direct the Public Prosecutor to present an appeal to the High Court from the order of acquittal.
(3)If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
The principal question to be determined is whether the com plaint dated August 29, 1960 was instituted by the Delhi Municipal Corporation.
It is argued on behalf of the respondent that the complaint petition was not made and signed by the person competent under the Delhi Municipal Corporation Act, 1957 to exercise powers of the, Corporation in the matter of institution of legal proceedings.
In our opinion there is substance in this contention.
The only provision under the Delhi Municipal Corporation Act, 1965 which confers power to institute legal proceedings is section 476(1) (h) which states 582 "(1) The Commissioner may (h)institute and prosecute any suit or other legal proceeding, or with the approval of the Standing Committee withdraw from or compromise any suit or any claim for any sum not exceeding five hundred rupees which has been instituted or made in the name of the Corporation or of the Commissioner; It is clear that the phrase "other legal proceedings" includes the power to institute a complaint before a Magistrate and hence it is the Commissioner alone who could exercise the power as there is no other provision in the Act which confers such power on anyone else.
This view is supported by the decision of this Court in Bailavdas Agarwala vs J. C. Chakravarty(1) in which it was pointed out that a complaint under The Calcutta Municipal Act, 1923 as applied to the Municipality of Howrah, would only be filed by the au thorities mentioned therein and not by an ordinary citizen.
Section 537 of that Act provided that the Commissioners may institute, defend or withdraw from legal proceedings under the Act; under section 12 the Commissioners can delegate their functions to the Chairman, and the Chairman may in his turn delegate the same to the Vice Chairman or to any municipal officer.
It was observed in that case that the machinery provided in the Act must be followed in enforcing its provisions, and it was against the tenor and scheme of the Act to hold that section 537 was merely enabling in nature.
The principle invoked in that case was that adopted by the Privy Council in Nazir Ahmad vs King Emperor (2) viz. : that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.
It was, therefore, held that if a legal proceeding was instituted under the Municipal Act in question, it must be done in accordance with the provisions of the Act and not otherwise.
But the question presented for determination in the present appeal is somewhat different.
Under section 20 of Act 37 of 1954 the prosecution for the offence may be instituted either (a) by the Central Government or the State Government or a local authority or (b) a person authorised in that behalf by general or special order by the Central Government or the State Government or a local authority.
Section 2(vii) of Act 37 of 1954 defines a "local authority" to mean "in the case of a local area which is a (1) ; (2) 63 I.A. 372 at 381.
583 pality, the municipal board or municipal corporation.
" A complaint under section 20 of the Act may, therefore, be instituted either by the Municipal Corporation or by a person authorised in its behalf by general or special order by the Municipal Corporation.
The Resolution of the Delhi Municipal Corporation dated December 23, 1958 reads as follows "Subject : Authorising the Municipal Prosecutor and the Assistant Municipal Prosecutor to launch Prosecutions under section 20 of the .
The area under the jurisdiction of the Delhi Municipal Corporation has been declared a "local area" under section 2(vii) of the vide Chief Commissioner 's Notification No, F.32(30) 58 M and PH(i) dated 13th June, 1958 published in the Delhi Gazette (Part IV) dated 26th June, 1959 and consequently the Municipal Corporation of Delhi is the Local Authority for that area within the meaning of section 2(vii) of the said Act.
Section 20 of the contemplates the appointment of persons who shall be authorised to institute prosecutions under this Act by the Local Authority concerned.
Shri Sham Sundar Mathur, M.A., LL.B., Municipal Prosecutor and Shri Bankey Behari Tawkley, Assistant Municipal Prosecutor were authorised by the erstwhile Delhi Municipal Committee tinder the above section." "Shri Vijay Kumar Malhotra moved the following resolution, which was seconded by Shri Prem Sagar Gupta Resolved that the recommendations of the Commissioner vide letter No. 139/Legal/58 dated 1 12 58 regarding authorising the Municipal prosecutor and the Assistant Municipal Prosecutor to launch prosecutions under section 20 of the be approved.
The resolution was carried.
" In the present case Shri Sham Sundar Mathur, Municipal Prosecutor filed the complaint under section 20 of Act 37 of 1954 under L14Sup.
C.I/69 8 584 the authority given to him by the resolution of the Municipal Corporation.
Since the Municipal Corporation, Delhi, is a local authority within the meaning of section 20 of Act 37 of 1954 and since it conferred authority on the Municipal Prosecutor the complaint was properly filed by Sham Sundar Mathur.
The question is whether the Delhi Municipal Corporation or Shri Mathur was the complainant within the meaning of section 417(3) of the Code of Criminal Procedure.
It was argued on behalf of the respondent that the complainant was Shri Sham Sundar Mathur, the Municipal Prosecutor and the Delhi Municipal Corporation was not competent to make an application for special leave under section 417(3), Cr.
P.C. We are unable to accept this argument as correct.
It is true that Shri Sham Sundar Mathur filed the complaint petition on August 29, 1960.
But in filing the complaint Shri Mathur was not acting on his own personal behalf but was acting as an agent authorised by the Delhi Municipal Corporation to file the complaint.
It must, therefore, be deemed in the contemplation of law that the Delhi Municipal Corporation was the complainant in the case.
The maxim qui per alium facit per seipsum facere videtur (he who does an act through another is Jeemed in law to do it himself) illustrates the general doctrine on which the law relating to the rights and liabilities of principal and agent depends.
We are, therefore, of opinion that Shri Mathur was only acting in a representative capacity and that the Delhi Municipal Corporation was the complainant within the meaning of section 417(3) of the Code of Criminal Procedure and the petition for special leave and the appeal petition were properly instituted by the Delhi Municipal Corporation.
For these reasons we allow the appeal, set aside the judgment of the High Court dated April 9, 1965 and direct that the appeal should be remanded to the High Court for being heard afresh and disposed of according to law.
G.C. Appeal allowed.
| IN-Abs | A complaint under section 7 read with section 16 of the Prevention of Food Adulteration Act, 1964 was filed against the respondent.
It was filed by the Municipal Prosecutor who had been authorised to file such complaints by a resolution passed by the appellant corporation under section 20 of the aforesaid Act.
On the respondent being acquitted the appellant corporation filed an application in the High Court for special leave to appeal under section 417 of the Code of Criminal Procedure.
The application was allowed.
When the appeal came up for hearing a preliminary objection was raised by the respondent that the complaint having been filed by the Municipal Prosecutor the corporation was not a 'complainant ' within the meaning of section 417(3) of the Code of Criminal Procedure and therefore special leave to appeal should not have been granted.
The High Court upheld the preliminary objection and dismissed the appeal.
By special leave the corporation appealed to this Court.
HELD : (i) Under section 476(1)(h) of the Delhi Municipal Corporation Act the person competent to institute legal proceedings is the Commissioner.
However the present case was governed not by that provision but by section 20 of the Prevention of Food Adulteration Act, 1964 which provides that a prosecution under that Act may be instituted "by the Central Government or the State Government or a local authority or a person authorised in this behalf, by general or special order by the Central Government or the State Government or a local authority".
Section 2(vii) of the Prevention of Food Adulteration Act defines a "local autho rity" to mean "in the case of a local area which is a municipality, the municipal board or municipal corporation".
The Delhi Municipal Corporation was a local authority within the meaning of section 20, [581 H; 582 C, G H; 584 A] (ii)The Municipal Prosecutor had filed the complaint against the respondent under authority given to him by the resolution of the Delhi Municipal Corporation under section 20 of the Prevention of Food Adulteration Act.
in filing the complaint the said prosecutor was not acting on his own personal behalf but was acting as an agent authorised by the Delhi Municipal Corporation to file the complaint.
It must therefore be deemed in law that the Delhi Municipal Corporation was the 'complainant ' in the case, for according to the Latin maxim.
"One who does an act through another is deemed in law to do it himself." [583 H; 584 C D] Being thus the complainant in the case the appellant Corporation could properly file the application under section 417 of the Code of Criminal Procedure.
[Case remanded to High Court for disposal according to law.] [584 E] 580 Ballavdas Agarwala vs J. C. Chakravarty, [1962] 3 S.C.R. 739 and Nazir Ahmad vs King Emperor, 63 I.A. 372 as 381, referred to.
|
ON: Civil Appeal No. 652 of 1966.
Appeal by special leave from the judgment and order dated November 23, 1964 of the Kerala High Court in A.S. No. 502 of 1961.
S.V. Gupte, Anantha Krishna lyer, section Balakrishnan and R. Thiagarajan, for the appellant.
H.R. Gokhale, J.S. Arora and K. Baldev Mehta, for the respondent.
The High Land Bank Kottayam of which the.
appellant M.C. Chacko was the Manager, had an overdraft account with the Kottayam Bank.
K.C. Chacko, father of the appellant, had executed from time to time letters of guarantee in favour of the Kottayam Bank agreeing to pay the amounts due by the High Land Bank under the overdraft arrangement.
By the last letter of guarantee dated 22nd January 1953 K.C. Chacko agreed to hold himself liable for the amounts due by the High Land Bank to the Kottayam Bank on the overdraft arrangement subject to a limit of Rs. 20,000.
The Kottayam Bank Ltd. filed a suit in the court of the Subordinate Judge of Kottayam against the High Land Bank for a decree for the amount due in the account.
To this suit were also impleaded K.C. Chacko the guarantor, M.C. Chacko Manager of the High Land Bank, and M.C. Joseph, Kuriakose Annamma and Chinnamma, the last three being the son, daughter and wife respectively of K.C. Chacko.
Against the High Land Bank the claim was made on the footing of the overdraft account: against K.C. Chacko on the letter of guarantee and against M. C. Chacko, his brother, his sister and his mother as universal donees of the property of K. C. Chacko under a deed dated June 21, 1951 under which, it was claimed, a charge was created on the properties to which the deed related and against M.C. Chacko, also on the claim that he had personally agreed to pay the amount due by the High Land Bank.
During the pendency of the suit, K.C. Chacko died and the suit was prosecuted against his widow,.
660 daughter and sons who were described also as his legal representatives.
The trial court decreed the suit against the High Land Bank and also against M.C. Chacko, limited to the property received by him from his father under the deed dated June 21, 1951.
The claim of the Kottayam Bank to enforce the liability under the letter of guarantee personally against K.C. Chacko was held barred by the law of limitation and on that account not enforceable against his heirs and legal representatives.
The Court also rejected the claim that M.C. Chacko had personally agreed to pay the amount due under the overdraft arrangement.
In appeal to the High Court by M.C. Chacko the decree C passed by the trial court was confirmed and the cross objections filed by the State Bank of Travancore with which the Kottayam Bank was merged claiming that M.C. Chacko was personally liable were dismissed.
This appeal with special leave is preferred by M.C. Chacko against the decree of the High Court.
Two questions 'arise in this appeal: (1) whether under exhibit D 1 a charge is created in favour of the Kottayam Bank to satisfy the debt arising under the letter of guarantee and (2) whether the charge assuming that a charge arises is enfforceable by the Bank when it was not a party to the deed Ex.
D 1 is called a deed of partition: in truth it is a deed.
whereby K.C. Chacko gave the properties described in the Schedule A to M.C. Chacko and other properties described in Schs.
B to F to M. C. Chacko: M.C. Joseph, Annamma and Chinnamma.
In paragraph 17 it is recited: "I have no debts whatsoever.
If in pursuance of the ' letter given by me to the Kottayam Bank at the request of my eldest son, Chacko, for the purpose of the High Land Bank Ltd., Kottayam, of which he is the Managing Director, any amount is due and payable to the Kottayam Bank, that amount is to be paid from the High Land Bank by my son, Chacko.
If the same is not so done and any amount becomes payable (by me) as per my letter, for that my eldest son, Chacko and the properties in Schedule A alone will be answerable for that amount.
" The other paragraphs which deal with the properties in Schedule A may also be referred to.
Paragraph 10 of the deed recited: "The donees of the properties included in A, B and C schedules are, as from this.
date, to be in possession of their respective properties and to get mutation of 661 registry in their names, pay land revenue and enjoy the income save that from cocoanut trees.
" By paragraph 12 it was declared that notwithstanding the deed of partition, K.C. Chacko will take the income from the cocoanut trees standing on the properties included in Schedules A, B, C and F till his death and that the donees of the properties will take and enjoy the income from the cocoanut trees in their respective properties after his death.
In paragraph 13 it was recited that: "As it is decided that Chinnamma. . should receive and have for her maintenance the rent of the building in item 7 in the A schedule, as well as the rent of the building in item 18 of the B schedule, she is to be in possession of these buildings as from this date and is to let them out and enjoy the rent.
The respective donees will have possession and enjoyment after her death.
Chinnamma is to have full rights and liberty to reside in any of the houses included in A, B or C schedule and so long as she so resides in any of the houses, the donees of the respective houses is to meet all her expenses.
The rent collected by Chinnamma from the buildings given possession of to her is to be utilised by her for her private expenses as she pleases.
" In our judgment the various covenants in the deed.
were intended to incorporate an arrangement binding between the members of the family for ' satisfaction of the debt, if any, arising under the letter of guarantee.
We are unable to agree with the High Court that by cl. 17 of the deed it was intended to create a charge in favour of the Kottayam Bank for the amount which may fall due under the letter of guarantee.
The letter of guarantee created merely a personal obligation.
The deed exhibit D 1 was executed before the last letter of guarantee dated January 22, 1953.
By cl. 17 of exhibit D 1 it is merely directed that the liability if any arising under the letter of guarantee, shall be satisfied by M.C. Chacko and not by the donor, his son M. C. Joseph, his daughter Annamma and his wife Chinnamma.
The reason for the provision in the deed is clear.
M.C. Chacko was the Managing Director of the High Land Bank Ltd. and it was at the instance of M. C. Chacko that the letters of guarantee were executed by the donor.
For creating a charge on immovable property no particular form of words is needed: by adequate words intention may be expressed to make property or a fund belonging to a person charged for payment of a debt mentioned in the deed.
But in order that a charge may be created, there must be evidence of intention disclosed by the .deed that a specified property or fund belonging to 662 a person was intended to be made liable to satisfy the debt due by him.
The recitals in cl. 17 of the deed do not evidence any intention of the donor to create a charge in favour of the Kottayam Bank: they merely set out an arrangement between the donor and the members of his family that the liability under the letter of guarantee, if and when it arises, will be satisfied by M.C. Chacko out of the property allotted to him under the deed.
The debt which M.C. Chacko was directed by the deed to satisfy was not in any sense a "family debt".
It was a debt of K.C. Chacko; and K.C. Chacko was personally liable to pay that debt.
After his death his sons, his daughter and his widow would be liable to satisfy the debt out of his estate in their hands.
From the recitals in the deed Ext.
D 1 an intention to convert a personal debt into a secured debt in favour of the Bank, a third person, cannot be inferred.
In Akalla Suryanarayana Rao & Others vs Dwarapudi Basivireddi & Others(1) the Madras High Court in construing a deed of partition of joint family property pursuant to a compromise decree, held that properties allotted to certain branches to which were also "allotted certain debts" with a stipulation that until the debts were fully discharged the properties allotted to the shares of the respective persons shall be liable in the first instance, were not subject to a charge in favour of the creditors.
The Court held that the covenant in the partition deed resulted in a contract of indemnity, and not a charge.
In the present case also the covenant that M.C. Chacko will either personally or out of the properties given to him satisfy the debt is intended to confer a right of indemnity upon other members of the family, if the Kottayam Bank enforced the liability against them.
and created no charge in favour of the Bank.
Clauses 12 'and 13 of the deed support that view.
By el.
12 the right to the coconut trees standing in the properties included in Schs.
A, B, C and F is reserved to K.C. Chacko.
Similarly Chinnamma, wife of K.C. Chacko, is permitted during her lifetime to occupy the houses in the properties described in the three schedules and to recover the income and to utilise the same for herself.
It is clear that K.C. Chacko had no intention to create a charge or to encumber any of the properties for the debt which may become due to the Bank.
The Kottayam Bank not being a party to the deal was not bound by the covenants in the deed, nor could it enforce the covenants.
It is settled law that a person not a party to a contract cannot subject to certain well recognised exceptions, enforce the terms of the contract: the recognised exceptions are that beneficiaries under the terms of the contract or where the contract is a part of the family arrangement may enforce the covenant.
In (1) I.L.R. 55 Med.
663 Krishna Lal Sadhu vs Primila Bala Dasi(1) Rankin, C.J observed: "Clause (d) of section 2 of the Contract Act widens the definition of 'consideration ' so as to enable a party to a contract to enforce the same in india in certain cases in which the English Law would regard the party as the recipient of a purely voluntary promise and would refuse to him a right of action on the ground of nudum pactum.
Not only, however, is there nothing in section 2 to encourage the idea that contracts can be enforced by a person who is not a party to the contract, but this notion is rightly excluded by the definition of 'promisor ' and 'promisee '.
" Under the English Common Law only a person who is a party to a contract can sue on it and that the law knows nothing of a right gained by a third party arising out of a contract: Dunlop Pneumatic Tyre Co. vs Selfridge & Co. (2).
It has however been recognised that where a trust is created by a contract, a beneficiary "may enforce the rights which the trust so created has given him The basis of that rule is that though he is not a party to the contract his rights are equitable and not contractual.
The Judicial Committee applied that rule to an Indian case Khwaja Muhammad Khan vs Husaini Begam(3).
In a later case Jaman Das vs Ram Autar(4) the Judicial Committee pointed out that the purchaser 's contract to pay off a mortgage debt could not be enforced by the mortgagee who was not a party to the contract.
It must therefore be taken as well settled that except in the case of a beneficiary under a trust created by a contract or in the case of a family arrangement, no right may be enforced by a person who is not a party to the contract.
Even if it be granted that there was an intention to create a charge, the Kottayam Bank not being a party to the deed could enforce the charge only if it was a beneficiary under the terms of the contract, and it is not claimed that the Bank was a beneficiary under the deed exhibit D 1.
The suit against M.C. Chacko must therefore be dismised.
The decree passed by the High Court is modified and it is declared that M.C. Chacko is not personally liable for the debt due under the letter of guarantee executed by K.C. Chacko, nor are the properties in schedule A allotted to M.C. Chacko under the deed dated June 21, 1951 liable to satisfy the debt due to the Kottayam Bank under the letter of guarantee.
(1) I.L.R. (2) ; (3) (1910) 37 I.A. 152.
(4) [1911] 39 I.A. 7.
14 Sup CI/69 13 664 Having regard to the circumstances of the case and specially that a concession that persons not parties to a contract may enforce the benefit reserved to them under the contract was made before the High Court, we direct that the parties to this appeal will bear their respective costs throughout.
Y.P ' Decree modified.
| IN-Abs | A bank, of which the appellant was the Manager, had an overdraft account with another bank which later merged with the respondent.
The appellant 's father had executed from time to time letters of guarantee holding himself liable for the amount under the overdraft arrangements.
The appellant 's father executed a deed giving away his properties to the appellant, and other members of the family.
The deed recited that he had executed the letters of guarantee at the request of the appellant, and that the amount due to the Bank was to be paid by the appellant; but if any amount had to be, paid by him (father) as per the letter of guarantee, the appellant and the properties allotted to him were to be answerable for that amount.
The creditor bank filed a suit against the debtor bank and also against the appellant and his father 's other heirs and legal representatives for the amount due under the overdraft arrangement; and claimed that a charge was created on the properties to which the deed executed by the father of the appellant related.
The trial court decreed the suit against the debtor bank and also 'against the appellant limited to the property received by him fro.m his father under the deed but held that the claim to enforce the personal liability of the father against his legal representatives was barred by the law of limitation.
The High Court confirmed the decree.
On the questions (i) whether under the deed a charge was created in favour of the creditor bank to satisfy the debt arising under the letter of guarantee, and (ii) whether the charge, assuming that a charge arose, was enforceable by the creditor bank when, it was not a party to the deed, HELD: (i) In order that a charge may be created, there must be evidence of intention disclosed by the deed that a specified property or fund belonging to a person was intended to be made liable to satisfy the deed, In the present ease the recitals in the deed did not evidence any intention of the donor to create a charge in favour of the creditor bank; they merely set out an arrangement between the donor and the members of his family that the liability under the letter of guarantee if and when it arose, will be satisfied by the appellant out of the property allotted to him under the deed.
The letter of guarantee Created merely a personal obligation and an intention tO convert a personal debt into a secured debt in favour of the Bank, a third person, could not be inferred from the recitals in the deed.
Akalla Suryanarayana Rao & Ors.
vs Dwarapudi Basivireddi 659 (ii) Even if it be granted that there was an intention to create a charge the creditor bank, not being a party to the deed could not enforce its covenants.
It must be taken as well settled that except in the case of a beneficiary under a trust created by a contract or in the case of a family arrangement to right may be enforced by a person who is not a party to a contract.
[662 H] Krishna Lal Sadhu vs Pramila Bain Dasi, I.L.R. , referred to.
|
ivil Appeal No. 1408 of 1966.
Appeal by special leave from the AWard dated May 19, 1965 February 23, 1966 of the Addl.
Industrial Tribunal, Delhi in Industrial Dispute No. 109 of 1965.
H.R. Gokhale, G.L. Sanghi and K.P. Gupta for the appellant.
Urmila Kapur and Bhajan Ramrakhiani, for the respondents.
The Judgment of the Court was delivered by Shah, J.
By order February 24, 1965 the Chief Commissioner of Delhi referred for adjudication, industrial disputes between the appellant company and its workmen relating to dearness allowance and introduction of a scheme of gratuity for the benefit of the workmen.
The Industrial Tribunal, Delhi framed the following "gratuity scheme": (1) On death or retirement on One months wages for each superannuation or on becoming Year of service of part mentally or physically unfit there of in excess of six for further service.
subject to a maximum of 15 months 's wages,In case of death of Employee the gratuity shall be payable to his nominee or if there is no nominee to his legal heirs (2)On termination after five 15 days for each year of se years 'service for any cause rvice or part there of in whatsoever except by way of exces of six months subject retrenchment or resignation to a maximum of 15 months resignation.
subject wages (3)On resignation after 10 years of service.
15 days wages for each year of service or part thereof in excess of six months to a maximum of 15 months wages Provided that if termination is for any misconduct causing financial loss to the company, the amount of loss shall be deducted from the gratuity payable.
The word 'wages ' in this Scheme shall mean the total pay packet of the workman including dearness which he was last drawing.
" The Tribunal also directed that "all workmen who were appointed in 1960 or earlier should get dearness allowance at Rs. 3 for every ten point rise in the cost of Consumer Price Index base 1960 over and above their existing wages with effect from 624 1st January, 1965.
In case of workmen appointed after 1960, the consumer price index base 1960 on the date of his appointment shall be found out and he shall be given Rs. 3 as dearness for every ten point rise in cost of Consumer Price index base 1960 above it with effect from 1st January, 1965 or such later date on which the limit of 10 point rise in cost of Consumer Price Index base is crossed.
" The Tribunal also directed that dearness allowance will not be enhanced till the limit of ten points be "crossed", and that dearness allowance once granted will not be reduced till the Consumer Price Index falls by more than 10 points.
The Company has appealed to this Court with special leave.
In the view of the Tribunal, the financial position of the company "is very sound" and that it has "financial capacity and, stability to bear the additional burden of dearness allowance and of the gratuity scheme." In reaching that conclusion the Tribunal relied upon a news item published in the newspapers that 2000 Russian Tractors were being immediately imported by the Company even though the agency of the Company was being terminated.
In relying upon newspaper reports the Tribunal may have erred.
But the conclusion of the Tribunal is rounded upon a review of several other circumstances.
It is true that one of the primary lines of business of the company was of selling tractors as agents of Russian manufacturers.
That agency was in danger of being terminated because the State Trading Corporation had arranged to take over the agency.
But the balance sheets of the company show that the agency was only one of the many lines of business and the closure of the agency of the tractor manufacturers was not likely to affect the financial structure of the Company seriously.
The Tribunal has on appreciation of evidence come to the conclusion that the financial position of the company was sound and assuming that the Tribunal is governed by the strict rules prescribed by the Evidence Act, sitting in appeal with special leave we will not be justified in interfering with the finding of the Tribunal even if it be open to the criticism that a part of the evidence relied upon is not in law relevant.
The company had on its roll 244 workmen out of whom 118 entered employment after 1960.
The company has been paying to its workmen wages consisting of two components basic wages and 50 per cent of the basic wages as dearness allowance.
Payment of wages is made in this form to all workmen whether their employment commenced before the year 1960 or thereafter.
It is true that before 1960 the company used to make a consolidated payment without specifying any amount of basic salary or dearness allowance.
Since 1960 in every appointment letter it was expressly recited that the employee v,iII get a consolidated salary consisting of 2/3rd of the consolidated salary as basic wages and 625 the balance as dearness allowance.
The company has produced before the Tribunal 118 such letters of appointment in respect of all employees employed after the year 1960.
In respect of the employees appointed prior to the year 1960 in the salary register basic salary and dearness allowance was separately entered though at the time of appointment of employees there was no allocation as basic wages and dearness allowance.
There is no dispute that since the year 1960 there has been a rise in the cost of living.
The Consumer Price Index for Industrial Workers which was 100 in 1960, had risen to more than 130 in 1965.
The management of the company granted dearness allowance to employees in other concerns under its management even though those other concerns were not financially very sound.
No serious argument has been advanced before us that the rise in dearness allowance is not Justified.
The only ground of complaint is that by relating the dearness allowance to the total wage packet the workmen are given a: rise both in the dearness allowance and in the basic wage The Tribunal has awarded dearness allowance at the flat rate of Rs. 3 for every 10 point rise in the cost of Consumer Price Index.
The rise is not related to the quantum of basic wage or consolidated wage.
It is a flat uniform rate applicable to every workman.
The Tribunal was of the view that the allocation between the basic wage and the dearness allowance was "not fair", but for the purpose of the present reference, the question is academic because dearness allowance is not related to the quantum of salary that the workmen receive.
The argument that the rise will operate to give to the workmen besides the additional dearness allowance, a percentage increase in dearness allowance already paid as part of the consolidated wage cannot be accepted.
We do not therefore see any reason to interfere with the order passed by "the Tribunal with regard to the dearness allowance at the rate of Rs. 3 for every 10 point rise in the Consumer Price Index.
" Gratuity payable to a workman on termination of employment is to be computed on the total wage packet of the workman including dearness allowance which he has last drawn.
This order makes a departure from the normal rule which is adopted in industrial awards.
In M/s. British Paints (India) Ltd. vs Its Workmen(1) this Court while introducing a gratuity scheme for the first time in the concern directed that the amount of gratuity shall be related to the basic wage or salary and not to the consolidated wage including dearness allowance.
A similar order was made in May and Baker (India) Ltd. vs Their Workmen(2).
It is true (1) ; (2) [1961] II L.L 626 that in British India Corporation vs The Workmen(1), an award made by the Tribunal fixing the quantum of gratuity on gross salary i.e., basic wage plus dearness allowance was upheld by this Court.
The Court affirmed that the usual pattern in fixing the gratuity is to relate it to the basic wage, but refused to interfere with the order because the. practice in that concern was to fix gratuity on the consolidated wage.
similarly in Hindustan Antibiotics Ltd vs their work men(2), the Tribunal directed the employer to pay gratuity at the rate of one half of wages for each month including dearness allowance but excluding house rent and all other allowances for each completed year of service subject to a maximum of wages for ten months.
In rejecting the claim of the employers for relating gratuity to the basic wage, this Court observed: "If the industry is a flourishing one, we do no see any reason why the labour shall not have the benefit of both the schemes i.e. the employees provident fund and the gratuity scheme.
Gratuity is an additional form of relief for the workmen to fall back upon.
If the industry can bear the burden, there is no reason why he shall not be entitled to both the retirement benefits.
The Tribunal considered all the relevant circumstances: the stability of the concern, the profits made by it in the past, its future prospects and its capacity and came to the conclusion that, in the concern in question, the labour should be provided with a gratuity scheme in addition to that of a provident fund scheme.
There was no justification to disturb this conclusion.
" In The Remington Rand of India Ltd. vs The Workmen(8) this Court declined to interfere with the order of the Tribunal awarding gratuity related to the consolidated wage including dearness allowance "in view of the flourishing nature of the concern, the enormous profits it was making, the reserves it had built up as also in view of the fact that it was paying gratuity to.
executives on the basis of consolidated wages.
" In The Delhi Cloth & General Mills Co., Ltd. vs The Workmen & Ors.
(4) this Court had to consider whether gratuity payable to workmen in the textile industry in the Delhi region should be related to.
the consolidated wage.
After referring to the decisions which were brought to the notice of the Court, it was observed that: "It is not easy to extract any principle from these cases:as precedents they are conflicting .
The (1) (1965) Vol.
10 Factory Law Report, 244.
(2) [1967] I L.L.J. 114.
(3) [1968] 1 S.C.R.164.
(4) ; 627 Tribunal has failed to take into account the prevailing pattern in the textile industry all over the country .
It is a countrywide industry: and in that industry, except in one case to be presently noticed, gratuity has never been granted on the basis of consolidated wages.
" The Court after referring to the schemes framed in respect of the industries in Bombay and Ahmedabad and other industries concluded that "determination of gratuity is not based on any definite rules.
In each case it must depend upon the prosperity of the concern, needs of the workmen and the prevailing economic conditions examined in the light of the auxiliary benefits which the workmen may get on determination of employment.
" There is no clear evidence on the record, and no precedents have been brought to our notice, to justify a departure from the normal rule that the quantum of gratuity is related not to the consolidated wage packet but to the basic wage.
A departure may be made from the normal rule, if there be some strong evidence or precedent in the industry, or conduct of the employer or other exceptional circumstances to justify that course.
In the absence of such evidence, we are of the view that gratuity should be related to the basic wage and not to the consolidated wage packet.
In the present case it is found that the financial position of the Company is sound but there is no evidence that the company is "making abnormally high profits" 'nor is there any evidence that in its sister concerns or in other engineering concerns in the region there is a practice of awarding gratuity related to consolidated wages.
It was urged on behalf of the company that even though the workmen had, in the claim made by them, demanded a scheme of .
gratuity benefit at the rate of 15 days wages for each year of service in case of death or retirement on attaining the age of superannuation or on becoming mentally or physically unfit for further service,.
the Tribunal had awarded gratuity at the rate of one month 's wages for each year of service subject to a maximum of 15 months ' wages.
But the claim was made on the footing that the wages were to include dearness allowance.
When the claim is not accepted, we cannot hold the workmen bound by the multiples.
We make no modification in clause (1 ) of the scheme.
We modify the scheme in so far as it relates to the dearness allowance and direct that for the last sentence of the gratuity scheme the following shall be substituted: "The word 'wages ' in the scheme shall mean basic salary or emoluments excluding dearness 'allowance and 628 other allowances and benefits payable to the workman which he had last drawn.
" Subject to the above modification, the appeal fails and is dismissed.
There will be no order as to costs in the appeal.
Y.P. Scheme modified and appeal dismissed.
| IN-Abs | The Industrial Tribunal on a reference of the disputes between the appellant company and its workmen framed a gratuity scheme.
The gratuity payable to a workman on termination of employment was to be computed on the total wage packet of the workman including dearness allowance which he had last drawn.
The tribunal also awarded dearness allowance at a flat uniform rate for every 10 point rise in the cost of Consumer Price Index.
The Tribunal found that the financial position of the company was sound and it had the capacity to bear the additional burden.
In appeal, this Court HELD: (i) The usual pattern in fixing gratuity is to relate it to the basic wage or salary and not to consolidated wage.
A departure may be made from the normal rule, if there by some strong evidence or precedent in the industry, or conduct of the employer or other exceptional circumstances to justify that course.
In .the absence of such evidence, gratuity should be related to the basic wage and not to the consolidated wage packet.
[627 D] In the present case it was found that the financial position of the company was sound but there was no evidence that the company was "making abnormally high profits", nor was there any evidence that in its sister concern or in other engineering concerns in the region there was a practice of awarding gratuity related to consolidated wages.
M/s. British Paints (India) Ltd. vs Its Workmen, ; , May & Baker (India.) Ltd. vs Their Workmen, [1961] II L.L.J. 94, British India Corporation vs The Workmen, (1965) Vol.
10 Factory Law Reports 244, Hindustan Antibiotics Ltd. vs Their Workmen, [1967] I. L.L.J 114, The Remington Rand of India Ltd. vs The Workmen, , and Delhi Cloth & General Mills Co. Ltd. vs The Workmen & Ors. ; , referred to.
(ii) The rise in dearness allowance was not related to the quantum of basic wage or consolidated wage; it was a flat uniform rate applicable to every workman.
Therefore, the.
rise would not operate to give the workman, besides the additional dearness allowance, a percentage increase in dearness allowance already paid as part of the consolidated wage.
[625 E F] (iii) The Tribunal, on appreciation of evidence found that the financial position of the company was sound.
Assuming that the Tribunal was governed by the strict rules prescribed by the Evidence Act, Sitting in appeal with Special Leave this Court would not be justified in interfering 623 with the finding of the Tribunal even if it be open to the criticism that a part of the evidence relied upon was not in law relevant.
[624 F]
|
Appeal No. 31 of 1954.
Appeal by Special Leave from the Judgment and Decree dated the 9th September, 1952, of the High Court of Judicature at Bombay in Appeal No. 811 of 1951 from the Original Decree arising from the Judgment and Decree dated the 24th July, 1951, of the Bombay City Civil Court at Bombay in Suit No. 2310 of 1950.
C.K. Daphtary, Solicitor General for India (J. B. Dadachanji and Rajinder Narain, with him) for the appellant.
S.C. Isaacs (section section Shukla, with him) for the respondent.
May 28.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
The suit out of which this appeal arises was instituted by the appellant on a hundi for Re. 10,000 dated 4th December, 1947, drawn 505 in his favour by Haji Jethabhai Gokuil and Co., Of Basra on the respondents, who are merchants and commission agents in Bombay.
The hundi was sent by registered post to the appellant in Bombay, and was actually received by one Parikh Vrajlal Narandas, who presented it to the respondents on 10th December, 1947, and received payment therefore It may be mentioned that the appellant had been doing business in forward contracts through Vrajlal as his commission agent, and was actually residing at his Pedhi.
On 12th January, 1948, the appellant sent a notice to the respondents repudiating the authority of Vrajlal to act for him and demanding the return of the hundi, to which they sent a reply on 10th February, 1948, denying their liability and stating that Vrajlal was the agent of the appellant, and that the amount was paid to him bonafide on his representation that he was authorised to receive the payment.
On 9th December, 1950, the appellant instituted the present suit in the Court of the City Civil Judge, Bombay.
In the plaint he merely alleged that the payment to Vrajlal was not binding on him, and that " the defendant drawee " remained liable on the hundi.
The defendants, apart from relying on the authority of Vrajlal to grant discharge, also pleaded that the plaint did not disclose a cause of action against them, as there was no averment therein that the hundi had been accepted by them.
At the trial, the appellant gave evidence that Vrajlal had received the registered cover containing the hundi in his absence, and collected the amount due thereunder without his knowledge or authority.
The learned City Civil Judge accepted this evidence, and held that Vrajlal had not been authorised to receive the amount of the hundi.
He also hold that the plea of discharge put forward by the respondents implied that the hundi had been accepted by them.
In the result, he decreed the suit.
The defendants took up the matter in appeal to the High Court of Bombay, and that was heard by Chagla C.J. and Shah J. who held that the appellant would 65 506 have a right of action on the hundi against the respondents only if it had been accepted by them, and that as the plaint did not allege that it had been.
accepted by them, there was no cause of action.
against them.
They accordingly allowed the appeal, and dismissed the suit.
The plaintiff prefers this appeal on special leave granted under article 136 of the Constitution.
There has been no serious attempt before us to challenge the correctness of the legal position on which the judgment of the High Court is based, that the drawee of a negotiable instrument is not liable on it to the payee, unless he has accepted it.
On the provisions of the , no other conclusion impossible.
Chapter III of that Act defines the obligations of parties to negotiable instruments.
Section 32 provides that, " In the absence of a contract to the contrary, the maker of a promissory note and the acceptor before maturity of a bill of exchange are bound to pay the amount thereof at maturity according to the apparent tenor of the note or acceptance respectively, and the acceptor of a bill of exchange at or after maturity is bound to pay the amount thereof to the holder on demand.
" Under this section, the liability of the drawee arises only when he accepts the bill.
There is no provision in the Act that the drawee is as such liable on the instrument, the only exception being under section 31 in the case of a drawee of a cheque having sufficient funds of the customer in his bands; and even then, the liability is only towards the drawer and not the payee.
This is elementary law, and was laid down by West J. in Seth Khandas Narandas vs Dahibai(1) in the following terms: " Where there is no acceptance, no cause of action can have arisen to the payee against the drawee.
" Nor is there any substance in the contention that section 61 of the Act provides for presentment for acceptance only when the bill is payable after sight, and not when it is payable on demand.
, as is the suit (1) I.L.R, 3 Bo. 182 at P. 183.
507 hundi.
In a bill payable after sight, there are 'two distinct stages, firstly when it is presented for accept ance, and later when it is presented for payment.
Section 61 deals with the former, and section 64 with the latter.
As observed in Ram Ravji Jambhekar vs Pralhaddas Subkarn(1), " presentment for acceptance must always and in every case precede presentment for payment.
" But when the bill is payable on demand, both the stages synchronise, and there is only one presentment, which is both for acceptance and for payment.
When the bill is paid, it involves an acceptance; but when it is not paid, it is really.
dishonoured for non acceptance.
But whether the bill is payable after sight or at sight or on demand, acceptance by the drawee is necessary before he can be fixed with liability on it.
It is acceptance that establishes privity on the instrument between the payee and the drawee, and we agree with the learned Judges of the High Court that unless there is such acceptance, no action on the bill is maintainable by the payee against the drawees.
The main contention on behalf of the appellant was that such acceptance must be implied when the respondents received the bill and made payment there for.
The argument was that the very act of the payment of the hundi to Vrajlal was an acknowledgment that the defendants were liable on the hundi to whosoever might be the lawful holder thereof.
The answer to this contention is, firstly, that there was no valid presentment of the hundi for acceptance; and secondly, that there was no acceptance of the same as required by law.
On the question of the presentment of the hundi for acceptance, the position stands thus: The person who presented it to the defendants was Vrajlal; and if he had no authority to act in the matter, it is difficult to see how he could be held to have acted on behalf of the plaintiff in presenting the hundi.
There was only one single act, and that was the presentment of the hundi by Vrajlal and the receipt of the amount due thereunder.
If he had no authority to receive the payment, he had no authority to present the bill for acceptance.
It was argued that there was no provision (1) I.L.R. at P 141.
508 in the Act requiring that bills payable at sight should be presented for acceptance by the holder or on his behalf, as there was, for bills payable after sight, in section 61.
But, as already pointed out, in the case of a bill payable at sight, both the stages for presentment for acceptance and for payment are rolled up into one, and, therefore, the person who is entitled to receive the payment under section 78 of the Act is the person, who is entitled to present it for acceptance.
Under section 78, the payment must be to the holder of the instrument; and if Vrajlal had no authority to receive the amount on behalf of the plaintiff, there was no valid presentment of the hundi by him for acceptance either.
It has next to be considered whether, assuming that there was a proper presentment of the hundi for acceptance, there was a valid acceptance, thereof The argument of the appellant was that as the hundi had got into the hands of the defendants and was produced by them, the very fact of its possession would be sufficient to constitute acceptance.
Under the common law of England, even a verbal acceptance was valid.
Vide the observations of Baron Parke in Bank of England vs Archer(1).
It was accordingly held that such acceptance could be implied when there was undue retention of the bill by the drawee.
(Vide Note to Harvey vs Martin(1)).
But the law was altered in England by section 17(2) of the Bills of Exchange Act, 1882 which enacted that an acceptance was invalid, unless it was written on the bill and signed by the drawee.
Section 7 of the , following the English law, provides that the drawee becomes an acceptor, when he has signed his assent upon the bill.
In view of these provisions, there cannot be, apart from any mercantile usage, an oral accept ance of the hundi, much less an acceptance by conduct, where at least no question of estoppel arises.
But then, it was argued that the possession of the hundi was not the only circumstance from which acceptance could be inferred; that there was the plea (1) (1843) I. M. & W. 383 at PP.
389, 390; I52 E.R. 852, 855.
(2) (1808) 1 CAMP 425; I , 509 of the defendants that they had discharged the hundi; and that that clearly imported an acknowledgment of liability on the bill, and was sufficient to clothe the plaintiff with a right of action thereon.
Assume that the plea of discharge of a hundi implies an acknowledgment of liability thereunder an assumption which we find it difficult to accept.
The question still remains whether that is sufficient in law to fasten a liability on the defendants on the hundi.
What is requisite for fixing the drawees with liability under section 32 is the acceptance by them of the instrument and not an acknowledgment of liability.
As the law prescribes no particular form for acceptance, there should be no difficulty in construing an acknowledgment as an acceptance; but then, it must satisfy the requirements of section 7, and must appear on the bill and be signed by the drawees.
In the present case, the acknowledgment is neither in writing; nor is it signed by the defendants.
It is a matter of implication arising from the discharge of the instrument.
That is not sufficient to fix a liability on the defendants under section 32.
In conclusion, we must hold that there was neither a valid presentment of the hundi for acceptance, nor a valid acceptance thereof.
In the result, the appeal fails, and is dismissed with costs.
Appeal dismissed.
| IN-Abs | Under section 32 of the , the liability of the drawee arises only when he accepts the bill.
There is no provision in the Act that the drawee is as such liable on the instrument, the only exception being under section 31 in the case of a, drawee of a cheque having sufficient funds of the customer in his hands; and even then, the liability is only towards the drawer and not the payee.
There is no substance in the contention that section 61 of the Act provides for presentment for acceptance only when the bill is payable after sight, and not when it is payable on demand.
In a bill payable after sight, there are two distinct stages, 504 firstly when it is presented for acceptance, and later when it is presented for payment.
Section 61 deals with the former, and section 64 with the latter.
Presentment for acceptance must always and in every case precede presentment for payment.
But when the bill is payable on demand both the stages synchronise and there is only one presentment, which is both for acceptance and for payment and therefore the person who is entitled to receive the payment under section 78 of the Act is the person who is entitled to present it for acceptance.
Section 7 of the , following the English Law, provides that the drawee becomes an acceptor when he has signed his assent on the bill.
Accordingly there cannot be, apart from any mercantile usage, an oral acceptance of the hundi, much lose an acceptance by conduct, where at least no question of estoppel arises.
What is requisite for fixing the drawees with liability under section 32 is the acceptance by them of the instrument and not an acknowledgment of liability.
As the law prescribes no particular form for acceptance, there should be no difficulty in construing an acknowledgment as an acceptance; but then, it must satisfy the requirements of section 7, and must appear on the bill and be signed by the drawee.
Seth Khandas Narandas vs Dahibai (I.L.R. , Ram Raviji Jambhekar vs Prahladdas Subhakaran (I.L.R. 20 Bom.1 33), Bank of England vs Archer ((1843) ; and Harvey vs Martin ( referred to.
|
: Criminal Appeals Nos. 18 and 19 of 1969.
Appeal from the judgment and order dated October 16, 1968 ' of the Madras High Court in Criminal Misc.
Petition No. 980 of 1968.
642 A.K. Sen, N.C. Raghavachari, W.S. Sitaram and R. Gopalakrishnan, for the appellants.
S.T. Desai, B.D. Sharma and section P. Nayar., for the respondent.
P.R. Gokulakrishnan, Advocate General, Tamil Nadu and V. Rangam, for the intervener.
Bhargava, J.
These appeals, by certificate, challenge a .common Order of the High Court of Madras dismissing applications under section 561A of the Code of Criminal Procedure presented by the appellants in the two appeals for quashing proceedings being taken against them in the Court of the Chief Presidency Magistrate, Madras, on the basis of a complaint filed on 17th March; 1968 by the respondent, the Director of Enforcement, New Delhi.
The Rayala Corporation Private Ltd., appellant in Criminal Appeal No. 18 of 1969, was accused No. 1 in the complaint, while one M.R. Pratap, Managing Director of .accused No. 1, appellant in Criminal Appeal No. 19/1969 was accused No. 2.
The circumstances under which the complaint was filed may be briefly stated.
The premises of accused No. 1 were raided by the Enforcement Directorate on the 20th and 21st December, 1966 and certain records were seized from the control of the Manager.
Some enquiries were made subsequently and, thereafter, on the 25th August, 1967, a notice was issued by the respondent to the two accused to show cause why adjudication proceedings should not be instituted against them for violation of sections 4 and 9 of the Foreign Exchange Regulation Act VII of 1947 (hereinafter referred to as "the Act") on the allegation that a total sum of 2,44,713.70 Swedish Kronars had been deposited in a Bank account in Sweden in the name of accused No. 2 at the instance of accused No. 1 which had acquired the foreign exchange and had failed to surrender it to.
an authorised dealer as required under the provisions of the Act.
They were called upon to show cause in writing within 14 days of the receipt of the notice.
Thereafter, some correspondence went on between the respondent and the two accused and, later, on 4th November, 1967, another notice was issued by the respondent addressed to accused No. 2 alone stating that accused No. 2 had acquired a sum of Sw.
88,913.09 during the. period 1963 to 1965 in Stockholm, was holding that sum in a bank account, and did not offer or cause it to be offered to the Reserve Bank of India on behalf of the Central Government, so that he had contravened the provisions of section 4(1) and section 9 of the Act, and affording to him.
an opportunity under section 23(3) of the Act of showing, within 15 days from the receipt of the notice, that he had permission or special exemp 643 tion from the Reserve Bank of India in his favour for acquiring this amount of foreign exchange ,and for not surrendering the amount in accordance with law.
A similar show cause notice was issued to accused No. 1 in respect of the same amount on 20th January, 1968, mentioning the deposit in favour of accused No. 2 and failure of accused No. 1 to surrender the amount, and giving an opportunity to accused No. 1 to produce the permission or special exemption from the Reserve Bank of India.
On the 16th March, 1968, another notice was issued addressed to both the accused to show cause in writing.
within 14 days of the receipt of the notice why adjudication proceedings as contemplated in section 23 D of the Act should not be held against them in respect of a sum of Sw.
1,55,801.41 which were held in a bank account in Stockholm in the name of accused No. 2 and in respect of which both the accused had contravened the provisions of sections 4( 3 ), 4( 1 ), 5(1)(e) and 9 of the Act.
The notice mentioned that it was being issued in supersession of the first show cause notice dated 25th August, 1967, ,and added that it had since been decided to launch a prosecution in respect of Sw.
88,913.09.
The latter amount was the amount in respect of which the two notices of 4th November, 1967 and 20th January, 1968 were issued to the two accused, while this notice of 16th March, 1968 for adjudication proceedings related to the balance of the amount arrived at by deducting this sum from the original total sum of Sw.
2,44,71 3.70.
The next day, on 17th March, 1968, a complaint was filed against both the accused in the Court of the Chief PresidenCy Magistrate, Madras, for contravention of the provisions of sections 4( 1 ), 5( 1 ) (e) and 9 of the Act punishable under section 23 (1 ) (b) of the Act.
In addition, the complaint also charged both the accused with violation of Rule 132 A(2) of the Defence of India.
Rules (hereinafter referred to as "the D.I. Rs.") Which was punishable under Rule 132 A(4) of the said Rules.
Thereupon, both the accused moved the High Court for quashing the proceedings sought to be taken against them on the basis of this complaint.
Those applications having been dismissed, the appellants have come up in these appeals challenging the order of the High Court dismissing their applications and praying for quashing of the proceedings being taken on the basis of that complaint.
In these appeals.
Mr. A.K. Sen, appearing on behalf of the appellants, has raised three points.
In respect of the prosecution for violation of sections 4(1), 5(1)(e) and 9. of the Act punishable under section 23 (1 ) (b) of the Act, the principal ground raised is that section 23(1)(b) of the Act is ultra rites Article 14 of the Constitution inasmuch as it provides for a punishment heavier and severer than the punishment or penalty provided for the same acts under section 23(1)(a) of the Act.
In the alternative, the second point taken is that, even if section 23 ( 1 ) (b) is not void, the complaint in 644 respect of the offences punishable under that section has not been filed properly in accordance with the proviso to section 23 D (1 ) of the Act, so that proceedings cannot be competently taken on the basis of that complaint.
The third point raised relates to the charge of violation of R. 132 A(2) of the D.I. Rs. punishable under R. 132 A(4) of those Rules and is to the effect that R. 132 A of the D.I. Rs. was omitted by a notification of the Ministry of Home Affairs dated 30th March, 1965 and, consequently, a prosecution in respect of an offence punishable under that Rule could not be instituted on 17th March, 1968 when that Rule had ceased to exist.
On these three grounds, the order quashing the proceedings being taken on the complaint in respect of all the offences mentioned in it has been sought in these appeals.
To appreciate the first point raised before us and to.
deal with it properly, we may reproduce below the provisions of section 23 and section 23 D(1) of the Act : "23.
Penalty and procedure. (1) If any person contravenes the provisions of section 4, section 5, section 9, section 10, sub section.
(2) of section 12, section 18, section 18A or section 18B or of any rule, direction or order made thereunder, he shall (a) be liable to such penalty not exceeding three .times the value of the foreign exchange in respect of which the contravention has taken place, or five thousand rupees, whichever is more, as may be adjudged by the Director of Enforcement in the manner hereinafter provided, or (b) upon conviction by a Court, be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.
(IA) If any person contravenes any of the provisions of this Act, or of any rule, direction or order made thereunder, for the contravention of which no penalty is expressly provided, he shall, upon conviction by a court be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.
(lB) Any Court trying a contravention under sub section (1) or sub section (IA) and the authority adjudging any contravention under clause (a) of sub section (1 ) may, if it thinks fit, and in addition to any sentence or penalty which it may impose for such contravention, direct that any currency, security, gold or silver, or goods or any other money or property, In respect of which the contravention has taken place, 645 shall be confiscated to the Central Government and further direct that the foreign exchange holdings, if any, of the person committing the contravention or any part thereof shall be brought back into India or shall be retained outside India in accordance with the directions made in this behalf.
Explanation.
For the purposes of this sub section, property in respect of which contravention has taken place shall include deposits in a bank, where the said property is converted into such deposits.
(2) Notwithstanding anything, contained in section 32 of the Code of Criminal Procedure, 1898 (Act 5 of 1898), it shall be lawful for any magistrate of the first class, specially empowered in this behalf by the State Government, and for.
any presidency magistrate to pass a sentence of fine exceeding two thousand rupees on any person convicted of an offence punishable under this section.
(3) No Court shall take cognizance (a) of any offence punishable under sub section (1) except upon complaint in writing made by the Director of Enforcement, or (aa) of any offence punishable under sub section (2) of section 191, (i) where the offence is alleged to have been committed by an officer of Enforcement not lower in rank than an Assistant Director of Enforcement, except with the previous sanction of the Central Government; (ii) Where the offence is alleged to have been committed by a Officer of Enforcement lower in rank than an Assistant Director of Enforcement, except with the previous sanction of the Director of Enforcement, or; (b) of any offence punishable under sub section (IA) of this section or section 23F, except upon complaint in writing made by the Director of Enforcement or any officer authorised in this behalf by the Central Government or the Reserve Bank by a general or special order; Provided that where any such offence is the contravention of any of the provisions of this Act or any rule, direction or order made thereunder which prohibits the doing of an act without permission, no such complaint shall be made unless the person accused of the offence has been given an opportunity of showing that he had such permission.
646 (4) Nothing in the first proviso to section 188 of the Code of Criminal Procedure, 1898 (Act 5 of 1898), shall apply to any offence punishable under this section." 23D. Power to adjudicate. (1) For the purpose of adjudging under ' clause (a) of sub section (1) of section 23 whether any person has committed 'a contravention, the Director of Enforcement shall hold an inquiry in the prescribed manner after giving that person a reasonable opportunity of being heard and if, on such inquiry, he is satisfied that the "person has committed the contravention, he may impose such penalty as he thinks fit in accordance with the provisions of the said section 23: Provided that if, at any stage of the inquiry, the Director of Enforcement is of opinion.
that having regard to the circumstances of the case, the penalty which he is.
empowered to impose would not be adequate, he shall, instead of imposing any penalty himself, make a complaint in writing to the Court.
" A plain reading of section 23 (1 ) of the Act shows that under this sub section provision is made for action being taken against any per son who contravenes the provisions.
of sections 4, 5, 9, 10, 12(2), 18,18A or 18B or of any rule, direction or order made thereunder;and cls.
(a) and (b) indicate the two different proceedings that can be taken for such contravention.
Under cl.
(a), the person is liable to a penalty only, and that penalty cannot exceed three times the value of the foreign exchange in respect of which the contravention has taken place, or Rs. 5,000/ , whichever is more.
This penalty can be imposed by an adjudication made by the Director of Enforcement in the manner provided in section 23D of the Act.
The alternative punishment that is provided in cl.
(b) is to be imposed upon conviction by a Court when the Court can sentence the person to imprisonment for a term which may extend to two years, or with fine, or with both.
Clearly, the punishment provided under section 23 (1)(b) is severer and heavier than the penalty to which the person is made liable if proceedings are taken under section 23(1)(a) instead of prosecuting him in a Court under section 23 (1)(b).
The argument of Mr. Sen is that this section lays down no principles at all, for determining when the per son concerned should be proceeded 'against under section 23(1)(a) and when under section 23(1)(b), and it would appear that it is left to the arbitrary discretion of the Director of Enforcement to decide which proceedings should be taken.
The liability of a person for more or less severe punishment for the same act at the sole discretion and arbitrary choice of the Director of Enforcement, 647 it is urged, denies equality before law guaranteed under article 14 of the Constitution.
The submission made would have carried great force with us but for our view that the effect of section 23D of the Act is that the choice in respect of the proceeding to be taken under section 23(1)(a) or s,.
23(1)(b) has not been left to the unguided and arbitrary discretion of the Director of Enforcement, but is governed by principles indicated by that section,.
In this connection, it is pertinent to note that section 23 (1) of the Act 'as origin.ally enacted in 1947 did not provide for alternative punishment for the same contravention and contained only one single provision under which any person contravening any of the provisions of the Act or of any rule, direction or order made thereunder was punishable with imprisonment for a term which could extend to two, years or with fine or with bOth, with the additional clause that any Court trying any such contravention might, if it thought fit and in addition to any sentence which it might impose for such contravention, direct that any currency, security, gold or silver, or goods or other property in respect of which the contravention has taken place shall be confiscated.
No question of the applicability of article 14 of the Constitution could, therefore, 'arise while the provision stood as originally enacted.
Parliament, by Foreign Exchange Regulation (Amendment) Act XXXIX of 1957, amended section 23(1) and, at the same time, also introduced section 23D in the Act.
It was by this amendment that two alternative proceedings for the same contravention were provided in section 23 (1 ).
In thus introducing two different proceedings, Parliament put in the forefront proceedings for penalty to be taken by the Director of Enforcement by taking up adjudication, while the punishment to be awarded by the Court upon conviction, was mentioned as the second type of proceeding that could be resorted to.
Section 23D(1) is also divisible into two parts.
The first part lays down what the Director of Enforcement has to do in order to adjudge penalty under section 23 ( 1 ) (a), and the second part, contained in the proviso, gives the power to the Director of Enforcement to file a complaint instead of imposing a penalty himself.
In our opinion, these two sections 23(D and 23D(1) must be read together, so that the procedure laid down in section 23D(1) is to be followed in all cases in which proceedings are intended to be taken under section 23 (1).
The effect of this interpretation is that, whenever there is any contravention of any section or rule mentioned in section 23( 1 ), the Director of Enforcement must first proceed trader the principal clause of section 23D(1) and initiate proceedings for adjudication of penalty.
He cannot, at that stage, at his discretion, choose to file a complaint in a Court for prosecution of the person concerned for the offence under section 23( 1 )(b).
The Director of Enforcement can only file a complaint by acting Ll4Sup./69 12 648 in accordance with the proviso to section 23D(1), which clearly lays down that the complaint is only to be filed in those cases where, at any stage of the inquiry, the Director of Enforcement comes to the opinion that, having regard to the circumstances of the case, the penalty which he is empowered to impose would not be adequate.
Until this requirement is satisfied, he cannot make a complaint to the Court for prosecution of the person concerned under section 23 (1) (b).
The choice of the proceeding to be taken against the person, who is liable for action for contravention under section 23 (1), is, thus, not left entirely to the discretion of the Director of Enforcement, but the criterion for making the choice is laid down in the proviso to section 23D(1).
It cannot possibly be contended, and no attempt was made by Mr. Sen to contend, that, if we accept this interpretation that the right of the Director of Enforcement to make a complaint to the Court for the offence under section 23 (1) (b) can be exercised only in those cases where in accordance with the proviso, he comes to the opinion that the penalty which he is empowered to impose would not be adequate, the validity of section 23 (1) (b) of the Act can still be challenged.
In this connection, it was urged before us that the language of the principal clause of section 23D(1) taken together with the language of the proviso does not justify an interpretation that a complaint for an offence under section 23 (1) (b) cannot be made by the Director of Enforcement except in accordance with the proviso, particularly because the principal clause of section 23D(1) merely lays down the procedure that has to be adopted by the Director Of Enforcement when proceeding under section 23 (1) (a), and contains No. words indicating that such a proceeding must invariably be resorted to by him whenever he gets information of a contravention mentioned in section 23(1).
The language does not contain any ,words creating a bar to his proceeding to file a complaint straightaway instead of taking proceedings for adjudication under section 23D(1).
It is true that neither in section 23(1) itself nor in section 23D(1) has the Legislature used specific words excluding the filing of a complaint before proceedings for adjudication are taken under section 23D(1).
If any such words had been used, no such controversy could have been raised as has been put forward before us in these appeals.
We have, however, to gather the intention of the Legislature from the enactment as a whole.
In this connection, significance attaches to the fact that section 23D(1) was introduced simultaneously with the provision made for alternative proceedings under section 23 (1) in its two cls.
(a) and (b).
It appears to be obvious that the Legislature adopted this course so as to ensure that all proceedings under section 23(1) are taken in the manner laid down in section 23D(1).
Parliament must be credited with the knowledge that, if provision is made for two alternative punishments for the same act one differing from the other without any limitations, such a provision would be void under article 14 of 649 the Constitution; and that is the reason why Parliament simultaneously introduced the procedure to be adopted under section 23D(1) in the course of which the Director of Enforcement is ' to decide whether a complaint is to be made in Court and under what circumstances he can do so.
We have also to keep in view the general principle of interpretation that, if a particular interpretation will enure to the validity of a law, that interpretation must be preferred.
In these circumstances, we have no hesitation in holding that, whenever there is a contravention by .any person which is made punishable under either cl.
(a)or cl.
(b) of section 23(1), the Director of Enforcement must first initiate proceedings under the principal clause of section 23D( 1 ) and he is empowered to file a complaint in Court only when he finds that he is required to do so in accordance with the proviso.
It is by resorting to the proviso only that he can place that person in greater jeopardy of being liable to a more severe punishment under section 23(1)(b) of the Act.
The view we have taken is in line with the decision of this Court in Shanti Prasad Jain vs The Director of Enforcement(1), where this Court considered the validity of section 23(1)(a) and section 23D which were challenged on the ground of two alternative procedures being applicable for awarding punishment for the same act.
The Court noticed the position in the following words : "It will be seen that when there is a contravention of section 4 (1 ), action with respect to it is to be taken in the first instance by the Director of Enforcement.
He may either adjudge the matter himself in accordance with section 23(1)(a), or he may send it on to a Court if he considers that a more severe penalty than he can impose is called for.
Now, the contention of the appellant is that when the case is.
transferred to a Court, it will be tried in accordance with the procedure prescribed by the Criminal Procedure Code, but that when the Director himself tries it, he will follow the procedure prescribed therefor under the Rules framed under the Act, and that when the law provides for the same offence being tried under two procedures, which are substantially different, and it is left to the discretion of an executive officer whether the trial should take place under the one or the other of them, there is clear ' discrimination, and article 14 is contravened.
Therefore, section 23(1)(a) must, it is argued, be struck down as unconstitutional and the imposition of fine on the appellant under that section set aside as illegal." (1)" ; 650 The Court then distinguished the provisions of the Act with the law considered in the case of State of West Bengal vs Anwar A1i(1) and held . "Section 23D confers authority on the very officer who has power to try and dispose of a case to send it on for trial to a Court, and that too only when he considers that a more severe punishment than what he is authorised to impose should be awarded.
" On this view about the effect of section 23D, the Court gave the decision that the power conferred on the Director of Enforcement under section 23D to transfer cases to a Court is not unguided and arbitrary, and does not offend article 14 of the Constitution; and section 23 (1) (a) cannot be assailed as unconstitutional.
In that case, the argument was that section 23(1)(a) should be struck down, because the procedure prescribed by it permitted proceedings to be taken by the Director of Enforcement himself which procedure did not confer the same rights on the defence as the procedure prescribed for trial if the Director of Enforcement filed a complaint for the offence under section 23 (1) (b).
In the case before us, it is section 23(1)(b) which is challenged and on a slightly different ground that it provides for a higher punishment than that provided by section 23 (1) (a).
The answer to both the questions is found in the view taken by us in the present case as well as by this Court in the case of Shanti Prasad Jain(2) that the Director of Enforcement, though he has power to try the case under section 23 (1) (a), can only send the case to the Court if he considers that a severer punishment than what he is authorised to impose should be awarded.
The Court in that case also thus accepted the principle that section 23D limits entirely the procedure the Director of Enforcement has to observe when deciding whether the punishment should be under section 23 (1) (a) or under section 23 (1) (b).
However, we consider that, in this case, there is considerable force in the second point urged by Mr. Sen on behalf of the appellants that the respondent, in filing the complaint on 17th March, 1968, did not act in accordance with the requirements of the proviso to section 23D(1).
We have held above that the proviso to section 23D(1) lays down the only manner in which the Director of Enforcement can make a complaint and this provision has been laid down as a safeguard to ensure that a person, who is being proceeded against for a contravention under section 23(1), is not put in danger of higher and severer punishment at the choice and sweet will of the Director of Enforcement.
When such a safeguard is provided by legislature, it is necessary that the authority, which takes the step of instituting against that person proceedings in which a severer punishment can be awarded, complies strictly (1) ; (2) [19631 2 S.C.R. 297. 651 with all the conditions laid down by law to be satisfied by him before instituting that proceeding.
in the present case, therefore, we have to see whether the requirements of the proviso to section 23D(1) were satisfied at the stage when the respondent filed the impugned complaint on 17th March, 1968.
The proviso 'to section 23D(1) lays down that the complaint may be made at any stage of the enquiry but only if, having regard to the circumstances, of the case, the Director of Enforcement finds that the penalty which he is empowered to impose would not be adequate.
It was urged by Mr. Sen that, in this case, the complaint was not filed as a result of the enquiry under the principal clause of section 23D(1) at all and, in any case, there was no material before the respondent on which he could have formed the opinion that the penalty which he was empowered to impose would not be adequate in respect of the stun of Sw.
88,913.09 which, it was alleged, had been acquired by the two accused during the period 1963 to 1965 and kept in deposit against law.
Arguments at some length were advanced before us on the question as to what should be the stage of the enquiry at which the Director of Enforcement should form his opinion and will be entitled to file the complaint in Court.
It appears to us that it is not necessary in this case to go into that question.
It is true that the enquiry in this case under section 23D( 1 ) had been instituted by the issue of the show cause notice dated 25th August, 1967, that being the notice mentioned in Rule 3 (1 ) of the Adjudication Proceedings and Appeal Rules, 1957.
On the record, however, does not appear that, even after the issue of that notice, any such material came before the respondent which could be relevant for forming an opinion that the penalty which he was empowered to impose for the contravention in respect of the sum of Sw.
88,913.09 would not be adequate.
The respondent, in the case of accused No. 2, appears to have formed 'a prima.
facie opinion that a complaint should be made against him in Court when he issued the notice on 4th November, 1967 under the proviso to section 23(3) of the Act, and a similar opinion in respect of accused No. 1 when he issued the notice on 20th January, 1968 under the same proviso.
There is, however, no information on the record to indicate that, by the time these notices were issued, any material had appeared before the respondent in the course of the enquiry initiated by him through the notice dated 25th August, 1967 which could lead to the opinion being formed by the respondent that he will not be in a position to impose adequate penalty by continuing the ,adjudication proceedings.
Even subsequently, when one of the accused replied to the notice, there does not appear to have been brought before the respondent any such relevant material.
Mr. S.T. Desai on behalf of the respondent drew our attention to para.
3(E) of the petition presented by accused No. 1 for 652 certificate under article 132(1) and article 134(1)(c) of the Constitution in this case which contains the following pleading : "In this case, having issued show cause notice dated 25 8 67 in respect of the subject matter of the pending prosecution and having taken various acts, taking statements, taking recorded statements, investigations, the respondent did not hold an enquiry for the purpose of his forming an opinion that the accused is guilty of violations and that the penalty is not adequate and as such, the prosecution filed in C.C. 8756 of 68 is liable to be quashed on this ground.
" Relying on this pleading, Mr. Desai urged that it amounts to a admission by accused No. 1 that, during enquiry, various statements were taken and recorded and investigations made, so that we should not hold that there was no material on the basis of which the respondent could ' have formed the opinion that it was a fit case for making a complaint.
The pleading does not show that any statements were taken or recorded during the course to the enquiry held under section 23D( 1 ) of the Act in the manner laid down by the Adjudication Proceedings and Appeal Rules, 1953 Under those Rules, after a notice is issued, the Director of Enforcement is required to consider the cause shown by such person in response to the notice and, if he is of the opinion that adjudication proceedings should be held, he has to fix a date for the appearance of that person either personally or through his lawyer or other authorised representative.
Subsequently, he has to explain that the person proceeded against or his lawyer or authorised representative the offence alleged to have been committed by such person indicating the provisions of the Act or of the rules, directions or orders made thereunder in respect of which contravention is alleged to have taken place, and then he has to give an opportunity to such person to produce such documents or evidence a he may consider relevant to the inquiry.
It is on the conclusion of such an inquiry that the Director can impose a penalty under section 23(1)(a).
In the present case, there is no material at all show that any proceedings were taken in the manner indicate by the Rules referred to above.
There does not appear to has been any cause shown by either of the two accused, or consideration of such cause by the respondent to decide whether adjudication proceedings should be held.
It is true that there is some material to indicate that, after the issue of notice dated 25 8 1967, some investigations were carried on by the respondent; but these investigations would not be part of the inquiry which had to be held in accordance with Adjudication Proceedings and Appeal Rules, 1957.
It appears that, at one stage, before the complaint was filed, a writ petition was moved under article 226 of the Constitution in the High Court of Madras praying for the quashing of 653 the notice dated 25th August, 1967.
The order made ' by the High Court on one of the interim applications in connection with that notice shows that, while that writ petition was pending, some investigations were permitted by the Court, but further penal proceedings in pursuance of that notice were restrained.
This clearly indicates that whatever statements were recorded by the respondent as mentioned in the petition of accused No. 1 referred to above must have been in the course of investigation and not in the course of the inquiry under section 23D ( 1 ) of the Act.
The record before us, therefore, does not show that any material at all was available to the respondent in the course of the enquiry under section 23D( 1 ) on the basis of which he could have formed an opinion that it was a fit case for making a complaint on the ground that he would not be able to impose adequate penalty.
The complaint has, therefore, to be held to have been filed without satisfying the requirements and conditions of the proviso to.
section 23D(1) of the Act and is in violation of the safeguard provided by the Legislature for such contingencies.
The complaint, insofar as it related to the contravention by the accused of provisions of sections 4 ( 1 ), 5 ( 1 ) ( e ) and 9 of the Act punishable under section 23(1)(13) is concerned, is invalid and proceedings being taken in pursuance of it must be quashed.
There remains for consideration the question whether proceedings could be validly continued on the complaint in respect of the charge under R. 132A(4) of the D.I.Rs.
against the two accused.
The two relevant clauses of Rule 132A are as follows: "132A. (2) No person other than an authorised dealer shall buy or otherwise acquire or borrow from, of sell or otherwise transfer or lend to, or exchange with, any person not being an authorised dealer, 'any foreign exchange. . . . .
(4) If any person contravenes any of the provisions this rule, he shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both; and any court trying such contravention may direct that the foreign exchange in respect of which the court is satisfied that this rule has been contravened, shall be forfeited to the Central Government.
" The charge in the complaint against the two accused was that they had acquired foreign exchange to the extent of Sw.
88,913.09 in violation of the prohibition contained in R. I32A(2) during the period when this Rule was in force, so that they became liable to punishment under R.132A(4).
Rule 132 A as a whole ceased to be in existence as a result of the notification issued by the Ministry 654 of Home Affairs on 30th March, 1955, by which the Defence of India (Amendment) Rules, 1965 were promulgated.
Clause 2 of these Amendment Rules reads as under : "In the Defence of India Rules, 1962, rule 132A (relating to prohibition of dealings in foreign exchange) shall be omitted except as respects things done or omitted to be done under that rule.
" The argument of Mr. Sen was that, even if there was a contravention of R. 132A(2) by the accused when that Rule was in force, the act of contravention cannot be held to be a "thing done or omitted to be done under that rule," so that, after that rule has been omitted, no prosecution in respect of that contravention can be instituted.
He conceded the .possibility that, if a prosecution had ,already been started while R. 132A was in force, that prosecution might have been competently continued.
Once the Rule was omitted altogether, no new proceeding by way of prosecution could be initiated even though it might be in respect of an offence committed earlier during the period that the rule was in force.
We are inclined to agree with the submission of Mr. Sen that the language contained in ' el. 2 of the Defence of India (Amendment) Rules, 1965 can only afford protection to action already taken while the rule was in force, but cannot justify initiation of a new proceeding which will not be a thing done or omitted to be done under the rule but a new act of initiating a proceeding after the rule had ceased to exist.
On this interpretation, the complaint made for the offence under R. 132A(4) of the D.I. Rs., after 1st April, 1965 when the rule was omitted, has to be held invalid.
This view of ours is in line with the general principle enunciated by.
this Court in the case of section Krishnan and Others ' vs The State of Madras(1), relating to .temporary enactments, in, the following words : "The general rule in regard to a temporary statute is that, in the absence of special provision to the contrary, proceedings which are being taken against a person under it will ipso facto terminate as soon as the statute expires." Mention may also be made to a decision of a learned single Judge of the Allahabad High Court in Seth Jugmendar Das and Others vs State(2), where a similar view was taken when considering the effect of the repeal of the Defence of India Act, 1939, and the (1) ; (2) A.I.R. 1951 All. 703.
655 Ordinance No. XII of 1946 which had amended section 1 (4) of that Act.
On the other hand, Mr. Desai on behalf of the respondent relied on a decision of the Privy Council in Wicks vs Director of Public Prosecutions(1).
In that case, the appellant, whose case came up before the Privy Council, was convicted for contravention of Regulation 2A of the Defence (General) Regulations framed under the Emergency Powers (Defence) Act, 1939 as applied to British subjects abroad by section 3 (1 )(b) of the said Act.
It was held that, at the date when the acts, which were the subjectmatter of the charge, were committed, the regulation in question was in force, so that, if the appellant had been prosecuted immediately afterwards, the validity of his conviction could not be open to any challenge at all.
But the Act of 1939 was a temporary Act, and after various extensions it expired on February 24, 1945.
The trial of the accused took place only in May 1946, and he was Convicted and sentenced to four years ' penal servitude on May 28.
In these circumstances, the question raised in the appeal was: "Is a man entitled to be acquitted when he is proved to have broken a Defence Regulation at a time when that regulation was in operation, because his trial and conviction take place after the regulation expired ?" The Privy Council took notice of sub section (3) of section 11 of the Emergency Powers (Defence) Act, 1939 which laid down that "the expiry of this Act shall not affect the operation thereof as respects things previously done or omitted to be done".
It was argued before the Privy Council that the phrase "things previously done" does not cover offences previously committed.
This argument was rejected by Viscount Simon on behalf of the Privy Council and it was held that the appellant in that cane could be convicted in respect of the offence which he had committed when the regulation was in force.
That case, however,is distinguishable from the case before us inasmuch as, in that case, the saving provision laid down that the operation of that Act itself was not to be affected by the expiry as respects things previously done or omitted to be done.
The Act could, therefore, be held to be in operation in respect of acts already committed, so that the conviction could be validly made even after the expiry of the Act in respect of an offence committed before the expiry.
In the case before us, the operation of R. 132A of the D.I. Rs. has not been continued after its omission.
The language used in the notification only affords protection to things already done under the rule, so that it cannot permit further application of that rule by instituting a new prosecution in respect of something already done.
The offence alleged against the accused in the present case is in respect of acts done by them which cannot be held to be acts under that rule.
The difference in the language thus makes (1) [1947] A.C. 362.
656 it clear that the principle enunciated by the Privy Council in the case cited above cannot apply to the notification with which we are concerned.
Reference was next made to a decision of the Madhya Pradesh High Court in State of Madhya Pradesh vs Hiralal Sutwala(1), but, there again, the accused was sought to be prosecuted for 'an offence punishable under an Act on the repeal of which section 6 of the had been made applicable.
In the case before us, section 6 of the cannot obviously apply on the omission of R. 132A of the D.I.Rs.
for the two obvious reasons that section 6 only applies to repeals and not to omissions, and applies when the repeal is of a Central Act or Regulation and not of a Rule.
If section 6 of the had been applied no doubt this complaint 'against the two accused for the offence punishable under R. 132A of the D.I.Rs.
could have been instituted even after the repeal of that rule.
The last case relied upon is 1.
K. Gas Plant Manufacturing Co., (Rampur) Ltd. and Others vs The King Emperor(2).
In that case, the Federal Court had to deal with the effect of sub section
(4) of section 1 of the Defence of India Act, 1939 and the Ordinance No. XII of 1946 which were also considered by the Allahabad High Court in the case of Seth Jugmendar Das & Ors.(2).
After quoting the amended sub section
(4) of section 1 of the Defence of India Act, the Court held : "The express insertion of these saving clauses was no doubt due to a belated realisation that the provisions of section 6 of the (X of 1897) apply only to repealed statutes and not to expiring statutes, and that the general rule in regard to the expiration of a temporary statute is that unless it contains some special provision to the contrary, after a temporary Act has expired, no proceedings can be taken upon it and it ceases to have any further effect.
Therefore, offences committed against temporary Acts must be prosecuted and punished before the Act expires and as soon as the Act expires any proceedings which are being taken against a person will ipso facto terminate.
" The Court cited.
with approval the decision in the case of Wicks vs Director of Public Prosecutions(4), and held that, in view section 1 (4) of the Defence of India Act, 1939, as amended by Ordinance No. XII of 1946, the prosecution for a conviction for an offence committed when the Defence of India Act was in force, was valid even after the Defence of India Act had ceased to be in force.
That case is, however, distinguishable from the case (1) A.I.R. 1959 M.P. 93.
(2) (3) A.I.R. 1951 All. 703.
(4) (1947) A.C. 362.
657 before us in two respects.
In that case, the prosecution had been started before the Defence of India Act ceased to be in force and, secondly, the language introduced in the amended sub section
(4) of section 1 of the Act had the effect of making applicable the principles laid down in section 6 of the , so that a legal proceeding could be instituted even after the repeal of the Act in respect of an offence committed during the time when the Act was in force.
As we have indicated earlier, the notification of the Ministry of Home Affairs omitting R. 132A of the D.I.Rs. did not make any such provision similar to, that contained ms. 6 of the .
Consequently, it is clear that, after the omission of R. 132A of the D.I.Rs., no prosecution could be instituted even in respect of an act which was an offence when that Rule was in force. ' In this connection, Mr. Desai pointed out to us that, simultaneously with the omission of R. 132A of the D.I.Rs., section 4(2) of the Act was amended so as to bring the prohibition contained in R. 132A(2) under section 4(1) of the Act.
He urged that, from this simultaneous action taken, it should be presumed that there was no intention of the Legislature that acts, which were offences punishable under R. 132A of the D.I.Rs., should go unpunished after the omission of that rule.
It, however, appears that when section 4(1) of the Act was amended, the Legislature did not make any provision that an offence previously committed under R. 132A of the D.I.Rs. would continue to remain punishable as an offence of contravention of section 4 ( 1 ) of the Act, nor was any provision made ' permitting operation of R. 132A itself so as to permit institution of prosecutions in respect of such offences.
The consequence is that the present complaint is incompetent even in respect of the offence under R. 132A(4).
This is the reason why we hold that this was an appropriate case where the High Court should have allowed the applications under section 561A of the Code of Criminal Procedure and should have quashed the proceedings on this complaint.
Consequently, as already directed by our short order dated 2nd May, 1969, the appeals are allowed, the order of the High Court rejecting the applications under section 561A of the Code of Criminal Procedure is set aside, and the proceedings for the prosecution of the appellants are quashed.
V.P.S. Appeals allowed.
| IN-Abs | The premises of the first appellant were raided by the Enforcement Directorate and certain records were seized.
The second appellant was the first appellant 's managing director.
Thereafter, on 25th August 1967, notice was issued by the respondent to the two appellants to show cause within fourteen days why adjudication proceedings should not be instituted against them under section 23D(1) of the Foreign Exchange Regulation Act, 1947, for violation of sections 4 and 9 of the Act, on the allegation that 2,44,713.70 Swedish Kronars had been deposited by them in a bank account in Sweden instead of surrendering the foreign exchange to an authorised dealer as required by the Act.
After investigation, on 4th November 1967, another notice was issued to the second appellant stating that out of the total sum mentioned, he had acquired, during 1963 to 1965, Sw.
88,913.09, that he held the amount in a bank in Sweden instead of offering it to the Reserve Bank of India and thereby contravened sections 4(1) and 9 of the Act, and asking him to show if he had any special exemption for acquiring the foreign exchange.
A similar show cause notice was issued to the first appellant in.
respect of the same amount on 20th January 1968.
On 16th March 1968, in supersession of the show cause notice dated 25th August 1967, a further notice was addressed to both the appellants to show cause within 14 days why adjudication proceedings under section 23D of the Act should not be held against them in respect of the balance of Sw.
1,55,801.41 and added that it had since been decided to launch a prosecution in respect of the Sw.
88,913.09 and on the 17th March 1968 a complaint was filed against both the 'appellants in the Chief Presidency Magistrate 's Court for contravention of sections 4(1), 5(1)(e) and 9 of the Act, punishable under section 23(1)(b) of Act, and for violation rule 132A(2) of the Defence of India Rules, 1962, punishable under rule 132A(4).
Thereupon, the appellants fried 'applications in the High Court under section 561A, Criminal Procedure Code, for quashing the proceedings in the Magistrate 's court, but the applications were dismissed.
In appeal to this Court, it was contended that: (1) The punishment under section 23(1)(b) is severer and heavier than the penalty to which a person is made liable if adjudication proceedings are taken under section 23(1)(a), but the section lays down no principles at all for determining when the person concerned should be proceeded against,under section 23(1)(a) and when under section 23(1)(b) and has left it to the arbitrary discretion of the respondent 'and hence violates Aft.
14 of Constitution; (2) Even if section 23(1)(b) is not void the respondent did not act in 'accordance with the 640 requirements of the proviso to section 23D(1)which lays down that a con plaint may be made at any stage of the enquiry, but only if, having regarto the circumstances of the case, the Director of Enforcement finds the the penalty which 'he is empowered to impose under section 23(1)(a) would not be adequate; and (3) Since the Notification issued by the Ministry of Home Affairs dated 30th March 1965 provided that R. 132A shall be omitted except 'as respects things done or omitted to be done under that Rule, a prosecution in respect of an offence punishable under that Rule could not be instituted on 17th March 1968 when that Rule had ceased to exist even though it might be in respect of an offence committed earlier during the period that the rule was in force.
HELD: (1) The choice whether the proceeding be taken under section 23(1)(a) or 23(1)(b) against the person who is liable for action for contravention under section 23(1), is not left entirely to the discretion of the Director of Enforcement but the criterion for making the choice is indicated in the proviso to section 23D(1).
[648 A B] The Foreign Exchange Regulation (Amendment) Act, 1957, amended section 23(1) and at the same also, introduced section 23D.
The intention of the Legislature from such simultaneous amendment was that the two sections are to be read together.
While providing for alternative proceedings under section 23(1)(a) and section 23(1)(b), the Legislature ensured that the procedure laid down in section 23D(1) was to be followed in all cases in which proceedings are intended to be taken under section 23 (1 ).
Thus, whenever there is any contravention of any section or rule mentioned in section 23 (1) the Director of Enforcement must first proceed under the principal clause of section 23D(1) and initiate proceedings for adjudication of penalty.
He cannot at that stage, in his discretion, choose to file a complaint in a court for prosecution of the person concerned for the offence under section 23(1)(b).
Though the Legislature has not used in either of the sub sections specific words excluding the filing of a complaint before proceedings for adjudication are taken under section 23D(1), it must be presumed that Parliament knew that if provision was made for two alternative punishments for the same act, one differing from the other, and without any limitations, such a provision would be void under article 14.
In view of the principle that an interpretation which would save a section should be preferred sections 23(1) and 23D(1) must be interpreted to mean that the Director of Enforcement must first initiate proceedings under the principal clause of section 23D(1) for adjudication of penalty and that he is empowered to file a complaint in court for the offence under section 23(1)(b) only when at any stage of the adjudication enquiry,, he comes to the opinion that, having regard to the circumstances of the case, the penalty which he is empowered to impose would not be: adequate.
[647 D, F H; 648 E H; 649 A C] Shanti Prasad Jain vs The Director of Enforcement,. ; ;. followed.
(2) When such a safeguard is provided by the Legislature it is necessary that the authority, which takes the steps of instituting against that person proceedings, in which, a severer punishment can be awarded, complies strictly with all the conditions laid down by law, that is, the Director could file a complaint for prosecution in court only if, having regard to the circumstances of the case, he finds that the. penalty that he is empowered to impose in the adjudication proceedings would not be adequate.
[650 G H] .
In the present case, the enquiry had been instituted by the issue of the show cause notice dated 25th August 1967.
But it does not appear on 641 the record that even after the issue of that notice, any such material came .before the respondent which could be relevant for forming an opinion that the penalty which he. was empowered to impose for the contravention in respect Sw.
88,913.09 would not be adequate.
No doubt some investigation was made, but the investigation would not be part of the enquiry which had to be held in accordance with the Act and the Adjudication Proceedings and Appeal Rules, 1957.
Neither of the appellants had shown cause in pursuance of the notice and there was no consideration, of such cause to decide whether adjudication proceedings should be held or not.
Nor were any statements taken or recorded during an enquiry under section 23D(1).
Whatever statements were recorded were in the course.
of investigation and not in the course of an enquiry under section 23D(1).
Therefore, the complaint must be held to have been filed without satisfying the requirements and conditions of the proviso to section 23D(1) of the Act, and in .so far as it related to the contravention of the provisions of sections 4(1), 5(1)(e) and 9 of the Act, punishable under section 23(1)(b), it must be held invalid.
[651 D E; 652 C D, F G; 653 B D] (3) The language used in the Notification of 30th March 1965 only affords protection to action already taken while the rule was in force, but cannot justify initiation of a new proceeding which will not be a thing done or omitted to be done under the rule but, a new act of initiating, a proceeding after the rule had ceased to exist.
The offence alleged against the appellants is in respect of acts done by them which cannot be held to be acts under that rule.
Unlike case of Wicks vs Director of Public Prosecutions, [1947] A.C. 362, where an express provision was made.
that the operation of the Emergency Powers (Defence) Act, 1939 (a temporary Act) was not to be affected by its expiry as respects things, previously done or omitted to, be done, in.
the present case, the operation of r. 132A of the Defence of India Rules has not been continued after its omission.
Section 6 of the , also could not be invoked,.
because, the section does not apply to temporary statutes, or rules and omissions.
It only applies to repeals to.
Central Acts.
Further, the Notification of the Ministry of Home Affairs omitting R. 132A, did not make any such provision similar to that contained in section 6 of the .
Moreover, though section 4(1) of the Foreign Exchange Regulation Act was amended simultaneously with the omission of the r. 132A, the Legislature did not make any provision that an offence previously committed, under r. 132A would continue to remain punishable as an offence of contravention of section 4(1) of the Act nor was any provision made permitting operation of r. 132A itself to permit institution of prosecutions in respect of such offences.
Consequently, after the omission of r. 132A the complaint is, incompetent even in respect of the offence under Rule 132A(4).
[654 A D; 655 F H; 656 B C, E F; 657 A F] section Krishnan & Ors.
vs The State of Madras, [1951] S.C.R. 621, applied.
State of M.P.v.
Hiralal Sutwala, A.I.R. 1959 M.P. 93, 1.
K. Gas: Plant Manufacturing Co. Ramput vs The King Emperor, , distinguished.
Seth Jugmendar Das vs State, A.I.R. 1951 All. 703, referred to.
|
Criminal Appeal No. 189 of 1966.
Appeal by special leave from the judgment and order dated July 4, 1966 of the Patna High Court in Criminal W.J.C. No. 11 of 1966.
B.R.L. lyengar and U.P. Singh, for the appellants.
V. A. Seyid Muhammad and S.P. Nayar, for respondent No. 1.
The Judgment of the Court was delivered by Hegde J.
This appeal against the decision of the High Court of Patna in Criminal W.J.C. No. 11 of 1966 was brought after obtaining special leave from this Court.
The principal question raised herein is whether the investigation which is being carried on against the 'appellants under sub rule (3 ) of rule 3 of Sugarcane (Control) Order, 1955 (to be hereinafter referred to as the Order) read with section 7 of the (to be hereinafter referred to as the Act) is in accordance with law.
The appellants are office bearers of M/s. S.K.G. Sugar, Ltd.(Lauriya).
A complaint has been registered against them under sub rule (3) of rule 3 of the Order read with section 7 of the Act on the ground that they have failed to pay to the sellers the price of the sugarcane purchased by them, within the time prescribed.
The said complaint is being investigated.
The appellants are objecting to that investigation on various grounds.
They unsuccessfully sought 'the intervention of the High Court of Patna under article 226 of the Constitution in Cr.
W.I.C. No. 11 of 1966.
Hence this appeal.
675 Mr. B.R.L. Iyengar appearing for the appellants challenged the validity of the investigation in question on various grounds.
We shall now proceed to deal with each one of those grounds.
The 1st contention of Mr. Iyengar was that sub rule (3) of rule 3 could not have been validly issued under section 3 of the Act.
According to him the said section 3 cannot be used for controlling the payment of the price of food crops; it can only deal with foodstuffs; food crops are outside its scope.
This contention has been negatived by the High Court.
We agree with the High Court that there is no merit in this contention.
Section 2(a) of the Act defines "essential commodity".
Sub cl.
(v) of that clause brings. foodstuffs within the definition of essential commodity.
Clause (b) of section 2 provides that food crops include sugarcane.
The next important provisions in the Act are cls.
(b) and (c) of section 3(1).
Section 3 (1 ) provides that if the Central Government is of opinion, that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, it may, by order, provide for regulating or prohibiting the production,.
supply and distribution thereof and trade and commerce therein.
Sub section
(2)of that section says that without prejudice to the.
generality of the _powers conferred by sub section
(I ) an order made.
thereunder may provide . . "(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified food crops, and for otherwise maintaining or increasing ' the cultivation of food crops generally, or of specified food crops;" Clause (c) provides for controlling the price at which any essential commodity may be bought or sold.
From the scheme of cls.
(b) and (c) of section 2 and section 3 of the Act, it is clear that the Parliament intended to bring under control the cultivation and ' sale of food crops.
In view of these provisions it is idle to contend that sugarcane does not come within the ambit of the Act.
The question whether the cultivation and sale of sugarcane can be regulated under section 3 of the Act came up for the consideration of this Court in Ch.
Tika Ramji and Ors.
vs The State of U.P. and Ors.(1) At pages 432 and 433 of the report it is observed : "Act X of 1955 included within the definition of essential commodity foodstuffs which we have seen above would include sugar as well as sugarcane.
This Act was enacted by Parliament in exercise.
of ' the con (1) 676 current legislative power under ' Entry 33 of List III as amended by the.
Constitution Third Amendment Act, 1954.
Foodcrops were there defined as including crops of sugarcane and section 3 (1 ) gave the Central Government powers to control the production, supply and distribution of essential commodities and trade and commerce therein for maintaining or increasing the supplies thereof or for securing their equitable distribution and availability at fair prices.
Section 3(2)(b) empowered the Central Government to provide inter alia for bringing under cultivation any waste or arable land whether appurtenant to a building or not for growing thereon of foodcrops generally or specified foodcrops and section 3(2)(c) gave the Central Government power for controlling the price at which any essential commodity may be bought or sold.
These provisions would certainly bring within the scope of Central legislation the regulation of the production of sugarcane as also the controlling of the price at which sugarcane may be bought or sold, and in addition to the Sugar Control Order, 1955 which was issued by the Central Government on 27th August, 1955, it also issued the Sugarcane Control Order, 1955, on the same date investing it with the power to fix the price of sugarcane and direct payment thereof as also the power to regulate the movement of sugarcane.
Parliament was well within its powers in legislating in regard to sugarcane and the Central Government was also well within its powers in issuing the Sugarcane Control Order, 1955 in the manner it did because all this was in exercise of the concurrent power of legislation under Entry 33 of List III.
" It is needless to say anything more on this question.
It was next contended by Mr. Iyengar that the regulation of the price of sugarcane is expressly dealt with by the Bihar Sugar Factories Control Act, 1937 and therefore we should not impliedly spell out the same power from the provisions of the Order and the Act.
Mr. Iyengar is not right in contending that the power that is sought to be exercised in the instant case is an implied one.
Sub rule (3) of rule 3 specifically provides that unless there is an agreement in writing to the contrary between the parties the purchaser shall pay to the seller the price of the sugarcane purchased within 14 days from the date of the delivery of the sugarcane.
This is a .specific mandate.
If the Bihar Act provides anything to the contrary the same must be held to have been 677 altered in view of article 372 of the Constitution which provides that all laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority.
Quite clearly the Bihar Act is a pre Constitution Act and it could have continued to be in force only till it was altered, repealed o.r amended by a competent legislature or other competent authority.
We shall presently see that the authority that altered or amended that law is a competent one.
The next contention of the learned Counsel for the appellants was that the Parliament had no competence to enact any law relating to the control of sugarcane as that subject is within the exclusive legislative jurisdiction of the State, the same being a part of agriculture.
This contention is again unsustainable in view of Entry 33 of List III of the Constitution which empowers the Parliament to legislate in respect of production, supply and distribution of foodstuffs.
It is not disputed that the Parliament had declared by law that it is expedient in public interest that it should exercise control over foodstuffs.
That being so it was well within the competence of Parliament to enact the Act and hence the power conferred on the Government ,under section 3 of the Act cannot be challenged as invalid.
There is no substance in the contention that the impugned order contravenes the fundamental right guaranteed to the citizens under article 19 (1 ).
No fundamental fight is conferred on a buyer not to pay the price of the goods purchased by him or to pay the same whenever he pleases.
The contention that in view of section 11 of the Act, no cognizance could have been taken of the offence alleged is premature.
This question does not arise in this ease.
No court has yet taken cognizance of the case.
That stage has Still to come.
There is no substance in the contention that the complaint made before the police does not disclose a Cognizable offence and as such the police could not have taken up the investigation of that complaint.
The offence complained of is punishable with three years ' imprisonment and as such it falls within the 2nd Sch.
of the Cr.
P.C. and consequently the same is a cognizable offence as defined in section 4(1)(f) of the Cr.
Hence it was open to the police to investigate the same.
For the reasons mentioned above we are unable to accept any of the contention advanced on behalf of the appellants.
In the result this appeal fails and the same is dismissed.
G.C. Appeal dismissed.
| IN-Abs | The appellants were the office bearers of a sugar concern.
A complaint with the police was registered against them under sub rule 3 of Rule '3 of the Sugarcane (Control) Order, 1955 read with section 7 of the , On the ground that they had failed to pay to the sellers within the time prescribed the price of the sugarcane purchased by them.
Objecting to the investigation of the alleged offence the appellants filed a writ petition under article 226 of the Constitution but the High Court ' refused to interfere.
By special leave they came to this Court.
The contentions urged on behalf of the appellants were (i) that sub rule 3 of rule 3 could not have been validly issued under section 3 of the because the latter section applied only to foodstuffs and not to food crops (ii) that the regulation of the price of sugarcane being expressly dealt with by the Bihar Sugar Factories Control Act, 1937 the same power could not by implication be spelt out from the provisions of the Order and the Act, (iii) that Parliament had no competence to enact any law relating to the control of sugarcane as that subject was within the exclusive legislative jurisdiction of the State, the same being a part of agriculture.
(iv) that there was violation of the fundamental right under article 19(1) of the Constitution by the impugned order.
(v) that in view of section 11 of the Act no cognizance could have been taken of the offence, (vi) that the complaint made before the police did not disclose a cognizabIe offence and as such the police was not empowered to investigate the complaint.
HELD: (i) In view of the scheme of sections 2 and 3 of the Act and the judgment of this Court in Ch.
Tika Ramji 's case the contention that food crops were outside the purview of section 3 of the Act must be rejected.
[675 B G] Ch.
Tika Ramji & Ors.
vs State o/U.P. & Ors. , applied.
(ii) The power sought to be exercised in the present case was not implied one for sub rule (3) of rule 3 gives a specific mandate that unless there is an agreement in writing to the contrary between the parties the purchaser shall pay to the seller the price of the sugarcane purchased within 14 days.
[676 G H] 674 Even if the Bihar Sugar Factories Control, Act, 1937 provides anything to the contrary it must be held to have been altered by a competent authority namely Parliament, under Art, 372 of the Constitution.
[677 A B] (iii) Parliament was competent to enact the and to confer power on the Government under section 3 of the Act as Entry 33 of List III of the Constitution empowers Parliament to legislate in respect of production, supply and distribution of foodstuffs.
[677 C D] (iv) There was no contravention of article 19(1) because no fundamental right is conferred on a buyer not to pay the price of the goods purchased by him or to pay the same whenever he pleases.
[677 E] (v) The plea based on section 11 of the Act was premature because no ,court had yet taken cognizance of the case.
[677 F] (vi) The offence complained of was punishable with three years ' imprisonment and fell within the 2nd Schedule of the Code of Criminal Procedure.
It was therefore a cognizable offence as defined in section 4(1)(f) of the Code.
[677 G]
|
vil Appeals Nos.
1079 to 1086 and 1088 to 1099 of 1966.
Appeals from the judgment and orders dated August 31, 1965 of the Kerala High Court in Writ Appeals Nos.
134 of 1964 etc.
630 H.R. Gokhale, B. Datta, 1.
B. Dadachanji and O.C. Mathur, for the appellants (in all the appeals).
C.K. Daphtary, A. section Nambiar and Lily Thomas, for respondent No. 1 (in all the appeals).
D.P. Singh and M.R.K. Pillai, for respondent No. 2 (in all the appeals).
The Judgment of the Court was delivered by Shah, J.
In a group of petitions presented before the High Court of Kerala the appellants challenged the validity of the levy of "timber tax" by the Corporation of Calicut on the grounds, inter alia, that the State Legislature is incompetent to impose that tax under the Kerala Act 30 of 1961.
Govindan Nair, J., declared that the Legislature was incompetent to enact section 126 of the Calicut City Municipal Act, 1961 (30 of 1961).
The decision of Govindan Nair, J., was reversed in appeal by a Division Bench of the High Court and the petitions were dismissed.
By virtue of article 246 read with Sch.
VII, Item 52, List II of the Constitution, the State may legislate in the matter of "tax on the entry of goods into a local area for consumption, use or sale therein.
" The appellants contend that section 126 conferring authority to impose timber tax violates the restrictions upon the legislative power imposed by the Constitution and on that account is void.
Section 98 of the Act enumerates the taxes and duties which the Muncipality may levy and one of the taxes described in el.
(e) is "tax on timber brought into the city".
Section 126 declares a charge of tax on timber brought into the city: it provides, (insofar as it is material): "(1) If the Council by a resolution determine that a tax shall be levied on timber brought into the city, such tax shall be levied at such rates, not exceeding five rupees per ton, and in such manner as may be determined by the Council; Provided that no tax shall be levied on any timber brought into the city in the course of transit to any place outside the city and directly removed out of the city by rail, road or water.
(2) No timber shall, except in the case referred to in the proviso to sub section (1) be brought into the city unless the tax due thereon has been paid.
(3) The tax shall be levied on timber kept within the city for sale if the Commissioner has reason to 631 believe that the tax, if any, due thereon has not been paid: . .
Power to make bye laws for sale and seizure of timber in respect of which tax is not paid and for carrying out the provisions relating to the levy of tax is conferred by section 126(6) and section 1369(1) of the Act.
The Corporation of Calicut has framed byelaws relating to the levy and collection of timber tax.
It is provided by el. 3 that the tax on timber shall be paid immediately on timber being brought into the city.
Bye law 7 provides: "(1) If timber is brought into the city and it is ', claimed that it is in the course of transit to a place outside the city and not for consumption, use or sale within.
the city and if in the opinion of the authority or officer authorised to collect the tax on timber, such timber brought into the city is not for the purpose of 'transit but for the purpose of consumption, use or sale therein, such authority or officer may demand from the person claiming exemption an amount equal to the tax leviable for such timber as security.
(2) If the person, who has paid the security satisfies Commissioner within 14 days from the date of payment that the timber in respect Of which the amount was paid was brought into the city in the course of transit 'wad not for consumption, use or sale therein the Commissioner shall refund the amount to such person.
Otherwise the same shall be appropriated to wards tax due on such timber.
The High Court held that timber may be imported within the limits of the Corporation for four purposes ( 1 ) for consumption in the city; (2) for use in the city; (3) for sale in the city; and (4) for transit through the city, and since all the four purposes were within the enacting part of the section and the proviso.
to section 126(1) having eliminated the right of the Municipality to levy tax for transit through the city, "the taxing power conferred by entry 52, List II of the Seventh Schedule was ensured and its constitutional strength and validity upheld" thereby.
Counsel for the appellants contends that the High Court was in error in holding that entry of timber into the Municipal area may be only for consumption, use, or sale within the Municipality or in the course of transit through the limits of the municipality.
He says that the entry may for instance be merely for storage of the goods within the limits of the municipality and a provision levying tax on goods entering the limits of the municipality with L14 Sup.
CI/69 11 632 out specification of the purpose is beyond the legislative power of the State.
Entry of goods within the local area for consumption, use or sale therein is made taxable by the State Legislature: authority to impose a general levy of tax on entry of goods, into a local area is not conferred on the State Legislature by item 52 of List II of Sch.
VII of the Constitution.
The Municipality derives its power to tax from the State Legislature and can obviously not have authority more extensive than the authority of the State Legislature.
If the State Legislature is competent to levy a tax only on the entry of goods for consumption, use or sale into a local area, the Municipality cannot under a legislation enacted in exercise of the power conferred by item 52, List II have power to levy tax in respect of goods brought into the local area for purposes other than consumption, use or sale.
The authority of the State Legislature itself.
being subject to a restriction in that behalf, section 126 may reasonably be read as subject to the same limitations.
When the power of the Legislature with limited authority is exercised ' in respect of a subject matter, but words of wide and general import are used, it may reasonably be presumed that the Legislature was using the words in regard to that activity in respect of which it is competent to legislate and to no other; and that the Legislature did not intend to transgress the limits imposed by the Constitution: see In re Hindu Women 's Rights to Property Act, 1937(1).
To interpret the expression "brought into the city" used in section 126(1) as meaning brought into the city for any purpose and without any.
limitations would, in our judgment, amount to attributing to the Legislature an intention to ignore the constitutional limitations.
The expression "brought into the city ' 'in section 126 was therefore rightly interpreted by the High Court as meaning brought into the municipal limits for purposes of consumption, use or sale and not for any other purpose.
While we agree with the ultimate conclusion of the High Court we may observe that we do not agree_ with the assumption made by the High Court that the entry of goods into the city may be only for the four purposes mentioned by the High Court; nor do we hold that the proviso exempts from taxation timber brought into the city in the course of transit even when it is not directly removed out of the city by rail, road or water.
The proviso, in our judgment, has a limited operation.
It merely provides that the municipality shall not be entitled to levy a tax on timber brought into the city in the course of transit to any place outside the city and directly removed out of the city by rail, road or water.
But on that account we are unable to hold that the proviso is enacted with the object of bring (1) 633 ing to tax all entry, of timber which is not brought into the city in the course of transit to any place outside .the city and directly removed out of the city by rail, road or water.
The appeals fail and are dismissed.
There will be no order as to costs in these appeals.
R.K.P.S. Appeals dismissed.
| IN-Abs | Section 126 of the Calicut City Municipal Act 30 of 1961 provided for the levy of a timber tax on timber brought into the city.
The proviso to the section exempted from the levy any timber brought into the city in the course of transit to any place outside the city and directly removed out of the city by rail, road or water.
On a petition filed by the appellants, a single bench of the Kerala High Court held that the legislature was incompetent to enact section 126.
But this decision was reversed in appeal by a division bench.
It was contended in the appeal to.
this Court the High Court had wrongly considered that entry of timber into the Municipal area could only be for consumption, use, or sale within the Municipality or in the course of transit through the limits of the Municipality; such entry could be for storage or other purposes and a provision levying tax on goods entering the area.
of the Municipality without specification of the purpose was beyond the legislative powers of the State under entry 52, List II of the 7th schedule to the Constitution.
HELD: Dismissing the appeal, If the State Legislature was competent under Entry 52 List II to levy a tax only on the entry of goods for consumption, use or sale into a local area, the Municipality could not under legislation enacted in exercise of the power conferred by that Entry have power to levy tax in respect of goods brought into the local area for purposes other than consumption, use or sale.
The authority of the State Legislature itself being subject to a restriction in that behalf, section 126 may reasonably be read as subject to the same limitations.
When the power of the Legislature with limited authority is exercised in respect of a subject matter, but words of wide and general import are used, it may reasonably be presumed that the Legislature was using the words in regard to that activity in respect of which it is competent to legislate and no other; and that the Legislature did not intend to transgress.
the limits imposed by the Constitution.
[632 B E] In re Hindu Women 's Rights to Property Act, 1937, ; referred to.
The expression "brought into the city" in section 126 was rightly interpreted by the High Court as meaning brought into the municipal limits for purposes of consumption, use or sale and not for any other purpose.
|
vil Appeals Nos. 700 to 703 of 1965.
Appeals by special leave from the judgment and order dated March 27, 1964 of the Allahabad High Court in Civil Misc.
Writs Nos. 3302, 3381, and 3382 of 1963.
Sukumar Mitra, S.K. Aiyar, R.H. Dhebar and B.D. Sharma, for the ,appellant (in all the appeals).
M.C. Chagla, S.C. Manchanda, P.N. Pachauri, P.N. Duda and D.N. Mukherjee, for respondent No. 1 (in C.A. No. 700 of 1965).
S.C. Manchanda, P.N. Pachauri, P.N. Duda and D.N. Mukherjee for respondent No. 1 ' (in C.A. No. 701 of 1965).
S.C. Manchanda, P.N. Pachauri, S.M. Jain and B.P. Maheshwari, for respondent No. 1 (in C.As.
702 and 703 of 1965).
The Judgment of the Court was delivered by Shah, J.
M/s. Seth Brothers run a flour mill in the name and style of "Imperial Flour Mills".
From April 1, 1953 to March 1956 the business was carried on by M/s. Seth Brothers, of which the partners were Baikunth Nath and Vishwa Nath.
Between March 1956 and March 31, 1957, the business was carried on by Baikunth Nath, Vishwa Nath, Dr. Manmohan Nath, Mrs. Rama Rahi and Mrs. Sushila Devi.
On April 7, 1957 Mrs. Prem Lata was admitted as a partner.
The partners were engaged in carrying on other businesses in the names of Seth Brothers (Private) Ltd., Nath Brothers (Private) Ltd., and Meerut Cold Storage and General Mills.
The owners of the business were, year after year, assessed to income tax in respect of the income arising in the course of the business.
On March 14, 1963 the Income tax Officer, Meerut issued a notice under section 148 of the Income tax Act, 1961, intimating M/s. Seth Brothers that there was reason to believe that their income chargeable to tax had escaped assessment and it was proposed to reassess this income for the assessment year 1954 55.
In response to the notice Baikunth Nath and Vishwa Nath flied a return under protest.
In the meantime information was received by the Income tax Commissioner, U.P., that M/s. Seth Brothers were maintaining "duplicate records" and were evading assessment of their true income and that it was necessary to seize the records which may be found at "Shanti Niketan," Meerut in which M/s. Seth Brothers carried on the business of Imperial Flour Mills and other business.
The Commissioner of Income tax, U.P., on May 29, 1963 drew up a memorandum that on a report of the Income tax Officer, D Ward,, Meerut requesting for 604 authorisation under section 132 of the Income tax Act, 1961, to.
enter and search the premises of M/s. Seth Brothers, he was satisfied about the need for the issue of the authorisation.
The Commissioner also issued an order in Form 45 prescribed under Rule 112 of the Income tax Rules, 1962, authorising two Income tax Officers R. R. Agarwal and R. Kapoor to enter the premises known as "Shanti Niketan", at Meerut and to search for and seize such books and documents as may be considered relevant or useful for the purpose of the proceeding of reassessment, and to place identification marks thereon and to convey them to the Income tax Office.
On the. 7 and 8 of June, 1963 the premises described in the order were searched and account books and certain documents found therein were seized and were carried to the Income tax Office.
M/s. Seth Brothers then moved a petition in the High Court of Allahabad, for an order quashing the proceedings of the Income tax authorities.
Petitions were also filed by Nath Brothers (Private) Ltd., Seth Brothers (Private) Ltd. and Seth Brothers, Meerut for the same relief.
By these petitions they claimed writs of certiorari quashing the letters authorising search of the premises at Shanti Niketan, and writs of mandamus directing the Income tax Officer to return all the books, papers and articles seized during the search and for writs of prohibition restraining the Income tax Department from using any information gathered as a result of the search.
It was submitted by the petitioners that K.L. Ananda, Income tax Officer and Satya Prakash an "ex employee" of M/s. Seth Brothers had given false information to the Deputy Director of Inspection with a view to blackmail the partners of M/s. Seth Brothers, and that the order of search was made by the Commissioner of Income tax at the direction of the Deputy Director of Inspection, that the action of the Income tax Officer in searching the premises and in seizing the books of account was malicious and that in any event section 132 of the Income tax Act, 1961, and the rules framed thereunder, were violative of the fundamental freedoms guaranteed by articles 14, 19(1)(f) & (g) and 31 of the Constitution.
Affidavits were filed on behalf of M/s. Seth Brothers.
It was affirmed that "the so called duplicate records" seized by the Income tax Officer were copies of the books of account and that action had been taken by the Commissioner of Income tax, not on his own initiative but at the behest of the Directorate of Inspection.
In reply to the contentions raised by the assessees several affidavits sworn by Officers of the Income tax Department were filed.
The Commissioner of Income tax stated in his affidavit that before issuing letters of authorisation and the warrant of search he was satisfied that it was necessary to take action 605 under section 132 of the Indian Income tax Act, 1961, and that the letters of authorisation were not issued at the direction of the Directorate of Inspection.
The Income tax Officers stated that in consequence of the search a large number of "duplicate account books and records" maintained by M/s. Seth Brothers were recovered, that the search was carried out according to law and in the presence of two of the partners of the firm and their advocates, that all the documents seized were relevant for the purpose of reassessment, that there was close connection between the different business activities of the partners of M/s. Seth Brothers and that all the documents which were seized were in relation to those activities.
The Deputy Director of Inspection in his affidavit stated that he did not give any direction to the Commissioner to issue authorization for search and seizure.
The High Court of Allahabad held on a consideration of the averments made in the affidavits filed on l behalf of M/s Seth Brothers and the revenue that "there was reason to believe" that instructions were issued by the Directorate of Inspection for a general raid and seizure of all account books and papers which may be found at the premises of the firm; that some out of the documents seized by the Income tax Officers were irrelevant for the purpose of any proceeding under the Act: that besides the documents belonging to M/s Seth Brothers the Income tax Officers seized documents relating to the transactions of the allied concerns; that marks of identification were not placed on certain documents at the time they were seized; that the documents seized were detained by the Income tax Officer for more than two months; and that the police force employed during the raid was excessive.
The High Court concluded: "It is true that there was no iII will between the . (partners of Seth Brothers) on one side and respondent Nos. 1, 3 and 4 (Commissioners of Income tax, U.P. & Punjab and Income tax Officer, Special Investigation Circle A, Meerut) on the other side.
But the extent of the seizure was far beyond the limits of section 132 of the Act.
The action was mala fide in the sense that, there was abuse of power conferred on Income tax Officers by section 132 of the Act.
The act being main fide, the proceedings .should be quashed by this Court by issuing a writ of mandamus.
" The Income tax Officer, S.I. Circle has appealed to this Court with special leave.
Section 132 as originally enacted by Act 43 of 1961 was substituted by a modified provision by the Finance Act of 1964 which in its turn was replaced by section 1 of the Income tax (Amendment) Act, 1965.
By section 8 of that Act it was provided, inter alia, 606 that any search of a building or place by an .
Income tax Officer purported to have been made in pursuance of sub section
(1) of section 132 of the principal Act shall be deemed to have been made in accordance with the provisions of that sub section as amended by the Act of 1965 as if those provisions were in force on the day the search was made .
The relevant part of section 132 as substituted by the Income tax (Amendment) Act, 1965 may, there.fore, be set out: "132.
Search and seizure. (1) Where the Director of Inspection or the Commissioner, in consequence of information in his possession, has reason to believe that (a) any person to whom a summons under sub section (1) of section 37 of the Indian Income tax Act,1922 (XI of 1922), or under sub seCtion (1) of section 131 of this Act, or a notice under sub section (4) of ' section 22 of the Indian Income tax Act, 1922,or under sub section (1) of section 142 of this Act was issued to produce, or cause to be produced, any books of account or other documents has omitted or failed to produce, or cause to be produced, such books of account or other documents as required by such summons or notice, or (b) any person to whom a summons or notice as aforesaid has been or might be issued will not, or would not, produce or cause to be produced, any books of account or other documents.
which will be useful for, or relevant to.
, any proceeding under the Indian Income tax Act, 1922 (XI of 1922), or under this Act, or (c) any person is in possession of any money, bullion, jewellery or other valuable article or thing and such money, bullion, jewellery or other valuable article or thing represents either wholly or partly income or property which has not been disclosed for the purposes of the Indian Income tax Act, 1922 (XI of 1922), or this Act (hereinafter in this section referred to as the undisclosed income or property), he may authorise any Deputy Director of Inspection, Inspecting Assistant Commissioner, Assistant Director of Inspection or Income tax Officer (hereinafter referred to as the authorised officer) to (i) enter and search any building or place where he has reason to suspect that such books of account, other documents, money, bullion, jewellery or other valuable article or thing are kept; 607 (ii) break open the lock of any door, box, locker, safe, almirah or other receptacle for exercising the powers conferred by clause (i) where the keys thereof are not available; (iii) seize any such books of account, other documents, money, bullion, jewellery or other valuable article or thing found as a result of such search; (iv) place marks of identification on any books of account or other documents or make ' or cause to be made extracts or copies therefrom; (v) make a note or an inventory of any such money, bullion, jewellery or other valuable article or thing.
(2) The authorised officer may requisition the services of any police officer or of any officer of the Central Government or of both, to assist him for all or any of the purposes specified in sub section (1) and it shall be the duty of every such officer to comply with such requisition.
(3) The authorised officer may, where it is not practicable to seize any such books of account, other document, money, bullion, jewellery or other valuable article or thing, serve an order on the owner or the person who is in immediate possession or control thereof that he shall not remove, part with or otherwise deal with it except with the previous permission of such officer and such officer may take such steps as may be necessary for ensuring compliance with this sub section.
. . . . . . (8) The books of account or other documents seized under sub section (l ) shall not be retained by the authorised officer for a period exceeding one hundred and eighty days from the date of the seizure unless the reasons for retaining the same are recorded by him in writing and the approval of the Commissioner for such retention is obtained: Provided (13) The provisions of the Code of Criminal Procedure, 1898 (V of 1898), relating to searches and seizures shall apply, so far as may be, to searches and seizure under sub section (1).
" 608 The Central Board of Direct Taxes has, in exercise of the power conferred by section 295(1) of the Act, framed r. 112 prescribing the procedure to be followed by the Commissioner and the authorised officers.
The Commissioner or the Director of Inspection may after recording reasons order a search of premises, if he has reason to believe that one or more of the conditions in section 132(1) exist.
The order is in the form of an authorization in favour of a subordinate departmental officer authorising him to enter and search any building or place specified in the order, and to exercise the powers and perform the functions mentioned in section 132 (1 ).
The Officer so authorised may enter any building or place and make a search where.
he has reason to believe that any books of account or other documents which in his opinion will be useful for, or relevant to any proceeding under the Act, may be found.
The Officer making a search may seize any books of account or other documents and place marks of identification on any such books of account or other documents or make or cause to be made extracts or copies therefrom and may make an inventory of any articles or things found in the course of any search which in his opinion will be useful for, or relevant to.
any proceeding under the Act, and remove them to the Income tax Office or prohibit the person in possession from removing them.
He may also examine on oath any person in possession of or control of any books of account or documents or assets.
The section does not confer any arbitrary authority upon the Revenue Officer.
The Commissioner or the Director of Inspection must have, in consequence of information, reason to believe that the statutory conditions for the exercise of the power to order search exist.
He must record reasons for the belief and he must issue an authorization in favour of a designated officer to search the premises and exercise the powers set Out therein.
The condition for entry into and making search of any building or place is the reason to believe that any books of account or other documents which will be useful for, or relevant to, any proceeding under the.
Act may be found. ' If the Officer has reason to believe that any books of account or other documents would be useful for, 0r relevant to, any proceedings under the Act, he is authorised by law to seize those books of account or other documents, and to.
place marks of identification therein, to make extracts or copies therefrom and also to make a note or an inventory of any articles or other things found in the course of the search.
Since by the exercise of the power a serious invasion is made upon the rights, privacy and freedom of the tax payer, the power must be exercised strictly in accordance with the law and only for the purposes for which the law authorizes it to.
be exercised.
If the action of the Officer issuing the authorization, or of the designated 609 Officer is challenged the Officer concerned must satisfy the Court about the regularity of his action.
If the action is maliciously taken or power under the section is exercised for a collateral purpose, it is liable to be struck down by the Court.
If the conditions for exercise of the power are ' not satisfied the proceeding is liable to be quashed.
But where power is exercised bona fide, and in furtherance of the statutory duties of the tax officers any error of judgment on the part of the Officers will not vitiate the exercise of the power.
Where the Commissioner entertains the requisite belief and for reasons recorded by him authorises a designated Officer to enter and search premises for books of account and documents relevant to or useful for any proceeding under the Act, the Court in a petition by an aggrieved person cannot be asked to substitute its own opinion whether an order authorising search should have been issued.
Again, any irregularity in the course of entry, search and seizure committed by the Officer acting in pursuance of the authorisation will not be sufficient to vitiate the action taken, provided the Officer has in executing the authorisation acted bona fide.
The Act and the Rules do not require that the warrant of authorisation should specify the particulars of documents and books of account: a general authorisation to search for and seize documents and books of account relevant to.
or useful for any proceeding complies with the requirements of the Act and the Rules.
It is for the Officer making the search to exercise his judgment and seize or not to seize any documents or books of account.
An error committed by the Officer in seizing documents which may ultimately be ' found not to be useful for or relevant to the proceeding under the Act will not by itself vitiate the search, nor will it entitle the aggrieved person to an omnibus order releasing all documents seized.
The aggrieved party may undoubtedly move a competent Court for an order releasing the documents seized.
In such a proceeding the Officer who has made the search will be called upon to prove how the documents seized are likely to be useful for or relevant to a proceeding under the Act.
If he is unable to do so, the Court may order that those documents be released.
But the circumstance that a large number of documents have been seized is not a ground for holding that all documents seized are irrelevant or the action of the Officer is mala fide.
By the express terms of the Act and the Rules the Income tax Officer may obtain the assistance of a police officer.
By sub section
(13) of section 132 the provisions of the Code of Criminal Procedure, 1898, relating to searches apply so far as may be, to searches under section 132.
Thereby it is only intended that the officer concerned shall issue the necessary warrant, keep present respectable persons of the locality to witness the search, and generally carry out the search 610 in the manner provided by the Code of Criminal Procedure.
But sub s.(2) of section, 132 does not imply that the limitations prescribed by section 165 of the Code of Criminal Procedure are also incorporated therein.
In Income tax Officer, A Ward, Agra & Others vs Firm Madan Mohan Demma Mal and Another(1), it was observed that the issue of a search warrant by the Commissioner is not a judicial or a quasi judicial act and even if the Commissioner is enjoined to issue a warrant only when in fact there is information in his possession in consequence of which he may form the necessary belief, the matter is not thereby subject to scrutiny by the Court.
Section 132 of the Income tax Act does not require specific mention by description of each particular document which has to be discovered on search: it is for the Officer who is conducting the search to decide whether a particular document found on search is relevant for the purpose or not.
That statement of the law, in our judgment, accurately states the true effect of section 132.
The mere fact that it may ultimately be found that some document seized was not directly relevant to any proceeding under the Act or that another officer with more information at his disposal may have come to a different conclusion will not be a ground for setting aside the order and the proceeding for search and seizure.
The authorisation issued by the Commissioner was, in the view of the High Court, open to challenge on the ground that the Commissioner did not apply his mind to the existence of circumstances which justified the exercise of the power to issue authorisation.
The action of the Income tax Officers who.
searched the premises was quashed on the ground that they seized some documents which were irrelevant to the process of reassessment.
In our judgment, in reaching their conclusion that the Commissioner acted at the behest of the Director of Inspection, the High Court ignored important evidence on the record.
It was averred in the petition of M/s Seth Brothers that "(56) It appears that the Deputy Director of Inspection at the instigation of Shri K.L. Nanda and Sri Satya Prakash, without making any enquiries or having any material, 'ordered a raid for search and seizure of all ,the account books and papers, which could be found.
(57) That, according to such directions of the Directorate, the Commissioner of Income tax, U.P. Lucknow, was made to issue authorisations under section 132 of the Act of 1961 in favour of opposite Parties Nos. 3 and 4 to search out the (1) 611 premisses of Shanti Nikethan ',Civil Lines, Meerut, premises of 'Shanti Niketan 'and to seize the account 'books, documents and papers, which could be recovered therefrom.
. . . . . .
The High Court observed that even though a number of affidavits were ' filed by the Income tax authorities, no reference to paragraph 56 of the writ petition was made and the "only affidavit filed by Shri A.L.Jha, Commissioner of Income tax was vague in the extreme".
The allegation in paragraphs 56 & 57 of the writ petition made no definite allegation.
that the Commissioner of Income tax acted at the behest of the Deputy Director of Inspection and not on his own satisfaction reached in consequence of information in his possession.
In the verification clause Baikunth Nath stated that the contents of paragraph 57 were true on information received from Deputy Director of Inspection (Investigation), Income tax, Central Revenue Buildings, New Delhi.
but said nothing about the contents of paragraph 56.
The 'affidavits filed on behalf of the Income tax Department specifically denied the allegations made in paragraphs 56 & 57.
R. R. Agarwal (one of the Income tax Officers authorised to conduct the search) in his affidavit affirmed that the letter of authorisation was issued to him by the Commissioner of Income tax, U.P. Lucknow, after the Commissioner had been satisfied on the report submitted by the deponent.
The Commissioner of Income tax, Mr. A.L. Jha, by his affidavit denied that letters of authorisation were issued under the directions of the Deputy Director of Inspection or anybody connected with Directorate.
He also stated that in respect of the case of M/s. Seth Brothers some information was brought to him by the Directorate and that information corroborated the report made to him by Mr. R.R. Agarwal and that after taking into consideration all those materials he was satisfied that a search of the premises of M/s. Seth Brothers "was called for" and that he issued the impugned letters of authorisation.
Mr. R.V. Ramaswamy, Deputy Director of Inspection (Investigation) in paragraph 6 of his affidavit denied that the raid or search of the premises of M/s. Seth Brothers was ordered by him.
The affidavit of R. Kapur, Income tax Officer, Special Investigation Circle, who was authorised by the Commissioner of Income tax to make the search is also relevant.
Mr. Kapur averred that some information was received by Mr. R.R. Agarwal from which it appeared that the firm of M/s. Seth Brothers and its partners were "evading tax by maintaining duplicate sets of accounts" and by suppressing relevant documents and papers 612 from the Department; that Mr. R.R. Agarwal made a written request to the Commissioner of Income tax for letters of authorisation in order to carry out the search of the assessee 's premises and in pursuance thereof on May 29, 1963 the Commissioner of Income tax issued three authorisation letters, two in favour of Mr. R.R. Agarwal and one in favour of the deponent authorising them to, carry out the search in accordance with the terms of the 'authorisation letters.
In this state of the record we are unable to agree with the High Court that the letters of authorisation were issued by the Commissioner of Income tax at the direction of the Director of Inspection (Investigation).
The attention of the Court was presumably not invited to the relevant paragraphs of the 'affidavits of the Officers concerned.
It is true that a large number of documents were seized from the premises of M/s. Seth Brothers but that has by itself no direct beating on the question whether the Income tax Officer acted mala fide.
If the Income tax Officer in making 'a search had reason to believe that any books of account or other documents useful for, or relevant to, any proceeding under the Act may be found, he may make a search for and seize those 'books of account 'and other, documents.
Some books, maps of the cold storage, assessment returns, and doctor 's prescriptions were seized by the Income tax Officer.
It appears, however, from the inventory that a large number of documents which related to the business of the assessees and their allied concerns were also seized.
It would be impossible merely from the circumstance that some of the documents may be shown to have no clear or direct relevance to any proceeding under the Act that the entire search and seizure was made not in bona fide discharge of official duty but for a collateral purpose.
The suggestion that the books of 'account and other documents which could be taken possession of should only be those which directly related to the business carried on in the name of M/s. Seth Brothers has, in our judgment, no substance.
The books of account and other documents in respect of other businesses carried on by the partners of the firm of the assessees would certainly be relevant because they would tend to show interrelation between the dealings 'and supply materials having a bearing on the case of evasion of income tax by the firm.
We are unable to hold that because the Income tax Officers made a search for and seized the books .of account and documents in relation to business carried on in the names of other firms and companies, the search and seizure were illegal.
It is also said that marks of identification were not placed on several documents.
Assuming that this allegation is true, in the absence of anything to show that the documents were ' either re 613 placed or tampered with, that irregularity will not bY itself supply a ground for holding that the search was mala fide.
A delay of two months in issuing a notice calling for explanation is also not a ground for holding that the action was taken for a collateral purpose.
It is not disputed that 'assistance of the, police may be obtained in the course of a search.
The High Court has, however, found that the police force employed was excessive.
But we are unable to hold that on the evidence, in keeping police officers present at the time of the search in the house of influential businessmen to ensure the protection of the officers and the record, "excessive force was used.
" We accordingly see no good grounds to accept the finding recorded by the High Court that the manner in which the search and seizure were conducted "left no room for doubt that the Income tax Officer did not apply his mind and formed no opinion regarding the relevancy or usefulness of the account books and documents for any proceedings under the Income tax Act." The High Court accepted that the correctness of the opinion actually formed by the Income tax Officer .was no.t open to scrutiny, in a writ petition, but in their view no opinion was in fact formed by the Officer and the search and seizure of documents and books of account must on that account be held as made in excess of the powers conferred upon the Income tax Officer and mala fide.
For these observations we find no warrant.
The Income tax Officers concerned have sworn by their affidavits that they did in fact form the requisite opinion under section 132 of the Act and the other evidence and the circumstances do not justify us in discarding that assertion.
These proceedings were brought before the High Court by way of a writ petition under article 226 of the Constitution before any investigation was made by the Income tax Officers pursuant to the action taken by them.
In appropriate eases a writ petition may lie challenging the validity of the action on the ground of absence of power or on a plea that proceedings were taken maliciously or for a collateral purpose.
But normally the High Court in such a ease does not proceed to determine merely on affidavits important issues of fact especially where serious allegations of improper conduct are made against public servants.
The Income tax Officers who conducted the search asserted that they acted in good faith in discharge of official duties and not for any collateral purpose.
The Commissioner of Income tax also denied that he acted at the direction of the Deputy Director of Inspection and that case was supported by the Deputy Director of Inspection.
If the ,learned Judges of the High Court were of the view that the question was one in respect of which an investigation 614 should be made in a petition for the issue of a writ, they should have directed evidence to be taken viva voce.
The High Court could not, on the assertions by the partners of the firm which were denied by the Income tax Officer, infer that the premises of M/s. Seth Brothers were searched and documents were seized for a collateral purpose, merely from the fact that many documents were seized or that on some of the documents seized marks of identification were not put or that the documents belonging to the "sister concerns" of the "Imperial Flour Mills" were seized.
In our view the decision of the High Court that the action of the Commissioner of Income tax, U.P., and the Income tax Officers who purported to act in pursuance of the letters of authorisation was mala fide, cannot be accepted as correct.
Counsel for M/s. Seth Brothers contended that opportunity may be given to the assessees to lead evidence viva voce to prove that the revenue officers acted for a collateral purpose.
We do not entertain this request since we propose to remand the case to the High Court to decide questions which have not been decided.
The applicants, if so advised, may move the High Court for leave to lead evidence.
It is for the High Court to decide whether at this stage after nearly six years leave to examine witnesses should be granted.
The order passed by the High Court is set aside and the proceeding is remanded to the High Court.
The High Court will deal with and dispose of the proceeding according to law.
We may observe that counsel for the Income tax Officer did not invite us to decide the question of the vires of section 132 of the Income tax Act on which the High Court has expressed no opinion.
M/s. Seth Brothers and the other petitioners in the High Court will pay the costs of these appeals in this Court.
There will be one hearing fee.
Costs in the High Court will be costs in the petition.
V.P.S. Appeals allowed and case remanded.
| IN-Abs | Under section 132 of the Income tax Act, 1961, the Commissioner of Income tax or the Director of Inspection may, after recording reasons, order the search of premises if he has reason to believe that one or more of the conditions in section 132(1) exist.
The officer authorised may enter any place and make a search where he has reason to believe that books or documents relevant to any proceeding under the Act may be ,found.
He may seize any books or documents and place marks of identification on them, and may remove them to the income tax office.
By the express terms of the Act and the Income tax Rules, the officer designated to make the search may obtain the assistance of the police.
The Income tax Officer issued notice to the respondent firm that its income chargeable to tax had escaped assessment and that it was proposed to reassess the income.
He also gave information to the Commissioner of Income tax that the respondent was maintaining duplicate records for evading assessment of the true income and requested the Commissioner for authorisation under section 132 to enter and search the premises where the respondent was carrying on business.
The Commissioner recorded his reasons and issued an order in the prescribed form authorising two Income tax Officers to enter the premises, to search for and seize such books and documents as may be considered relevant or useful for the purpose of reassessment, and to place identification marks thereon and to convey them to the income tax office.
The premises were accordingly searched and the account books and certain documents found therein were seized and carried to the income tax office.
Petitions were filed in the High Court for writs of certiorari for quashing the proceedings of the Income tax authorities, and consequential reliefs.
The High Court granted the writs on the grounds: (1) that the order of search was made by the Commissioner at the direction of the Directorate of Inspection and without satisfying himself about the existence of circumstances justifying search; (2) that besides the documents belonging to the respondent the Income tax Officers seized documents relating to the transactions of their allied concern which documents were irrelevant to the process of reassessment of the respondent; (3) that marks of identification were not placed on certain documents at the time they were seized; (4) that the documents seized were detained by the Income tax Officer for more than two months; and (5) that the police force employed during the raid was excessive.
In appeal to this Court, HELD: (1) The Commissioner stated in his counter affidavit that before issuing the authorisation he was satisfied that it was necessary to take action under section 132 and that the authorisation was not issued at the 602 direction of the Directorate of Inspection.
The Deputy Director of Inspection also stated in his affidavit that he never gave any direction to the Commissioner to issue authorisation for search and seizure.
Therefore, in reaching the conclusion that the Commissioner acted at the behest of the Director of Inspection, the High Court was in error, because, having held that the correctness of the opinion formed by the income tax authorities was not open to scrutiny in a writ petition the High Court acted on mere affidavits and accepted the assertions of the respondents which were specifically denied by the Revenue authorities.
[612 B C; 613 D; 614 A B] (2) Since the power conferred, though not arbitrary, is a serious invasion upon the rights and privacy of the tax payer, the power must be strictly exercised in accordance with law and only for the purposes for which the law authorises it to be exercised.
If the action of the officer issuing the authorisation or of the officer designated to make the search is challenged, they must satisfy the court about the regularity of the action taken.
If the action is maliciously taken or for a collateral purpose it is liable to be struck down.
But where the power is exercised bona fide and in furtherance of the statutory duties of the Revenue Officers any error of judgment on the part of the officers will not vitiate the exercise of the power.
The Act and the Rules do not require that the authorization should specify the particulars of documents and books of account; a general authorisation to search for and to seize documents and books of account relevant to or useful for the proceeding under the Act complies with the requirements of the Act and the Rules.
It is for the officer making the search to exercise his judgment and seize or not to seize any documents or books of account.
An error committed by the officer in seizing documents which may ultimately be found not to be useful for or relevant to the proceeding will not by itself vitiate the search, nor will it entitle the aggrieved person to an omnibus order releasing all documents seized.
[608 G H; 609 A F] In the present ease, therefore, merely because a large number of documents, some of which related to the concerns allied to the respondent firm, were seized, it could not lead to the inference that the search and seizure were for a collateral purpose.
On the contrary, the books of account and the documents in respect of other businesses carried on by the partners of the respondent firm through the allied firms would be relevant, because, they would show inter relation between the dealings and supply materials having a bearing on the case of evasion of income tax by the respondents.
Therefore, the search and seizure were not illegal or mala fide.
[609 G; 612 F ]H Income tax Officer, A ward, Agra vs Firm Madan Mohan, , approved.
(3) Assuming that marks of identification were not placed On some documents, it was a mere irregularity and, unless the documents were shown to be tampered with, would not make the search and seizure mala fide.
[612 H] (4) A delay of two months in issuing a notice calling for explanation is also not a ground for holding that the action was taken for a collateral purpose.
[613 A B] (5) Keeping police officers present at the time of search in the house of influential businessmen to ensure the protection of the officers and the record, would not be a case of excessive use of force.
[613 B C]
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