judgement
stringlengths 593
808k
| dataset_name
stringclasses 3
values | summary
stringlengths 0
158k
|
|---|---|---|
Civil Appeal No. 1462 of 1971.
Appeal by special leave from the Judgment and Order dated 16th April 1971 of the Patna High Court in Tax Case No. 76/68.
A. K. Sen, section T. Desai, Somen Bose, D. N. Mukherjee and K. N. Jain, for the appellant.
V. section Desai and B. P. Singh for the Respondent.
The Judgment of the Court was delivered by GOSWAMI, J.
This appeal by special leave is directed against the judgment of the Patna High Court in a reference under section 21B(1) of the Bihar Taxation on Passengers and Goods (Carried by Public Service Motor Vehicles) Act, 1961 (briefly the Act) as amended.
The facts as appearing from the statement of case annexing the various orders of the authorities may briefly be stated: The appellant, M/s. National Transport Company, is a transport undertaking without its transport.
The appellant (hereinafter to be described as the assessee) was the sole transporter by road of the cement manufactured by the Associated Cement Company at Sindri (briefly the company) from Sindri to different stockists at various places in Bihar and West Bengal.
In order to have some sort of uniformity in price at different places the manufacturing company used to fix the transport charges according to a schedule.
The assessee 's contract with the manufacturing company commenced some time on October 12, 1963.
Since the assessee did not have its own fleet of trucks, it used to engage thirty six trucks covered by public carrier permits belonging to various persons at different times for transporting the cement.
The assessee was not registered under section 4 of the Act.
On September 3, 1966, there was a surprise inspection of the office of the assessee and certain books of accounts containing accounts of transport charges realised by the assessee for transporting of cement from the Sindri factory to the stockists in Bihar and West Bengal were seized.
The assessee also produced some books of accounts during the hearing before the Officer.
The assessee maintained his accounts ledger wise in respect of the transport charges realised and realisable from different stockists of Bihar and West Bengal for transport of cement by it from the Sindri factory to their godowns.
There were two ledgers.
One was party wise showing charges realised or realisable from the stockists and other truck wise showing hire charges 899 paid to various trucks.
The assessee also produced a list of trucks showing the names of the truck owners with their respective places of residence.
Out of thirty six trucks, twenty four were registered in Bihar and twelve in West Bengal.
Agreements with the truck owners were also produced by the assessee.
The Bills from the petrol supplying company which were paid by the assessee were also filed showing the total amount and the truck wise amount.
The ledger party wise showed rates charged from the stockists.
The ledger truck wise showed hire charges and also deductions on account of petrol, diesel and other lubricants and also for loss in the way as per agreement.
On the basis of the statement furnished by the assessee as corroborated by the books of accounts maintained by it the Assessing Officer determined the total taxable amount and imposed a tax of Rs. 1,41,618.37 by his order of November 1, 1966.
A penalty of Rs. 5000/ was also imposed under section 7(5) of the Act.
The assessee appealed to the Additional Deputy Commissioner of Commercial Taxes without success.
Thereafter the assessee preferred an application in revision before the Commercial Taxes Tribunal, Bihar, which also met with the same fate.
The Tribunal, however, on the application of the assessee under section 218(1) of the Act referred the following question of law to the High Court: "Whether in the facts and circumstances of the case the Tribunal has rightly held the applicant to be the 'owner ' of the vehicles within the meaning of section 2(d) of the Act and whether the imposition of tax and levy of penalty was legal and justified".
The High Court noted the facts found by the Tribunal as follows: (a) The assessee was the sole transporting company of the cement of the manufacturing company, (b) it had engaged certain trucks for use in his (sic) transport work, (c) it was providing petrol and oil for the running of the trucks in the transport work, although the prices paid by the assessee were later on adjusted in the hiring charges, (d) it was obtaining receipts for delivery of the goods to the stockists, (e) it was maintaining a complete record of the trucks used by it for the transport work, (f) it was keeping a complete record of the charges realisable and realised from the stockists on account of freight payable by them, (g) it was keeping a complete record of the charges actually paid to the real owners of the trucks, and 900 (h) the receipts given by the stockists indicated that they had received from the assessee, certain quantities of cement by a particular vehicle".
From the above eight factors the Tribunal came to the conclusion that the assessee was in charge of the trucks for the time being within the meaning of section 2(d) of the Act.
The High Court agreed with the Tribunal in the following words: "In any case, even if the conclusion that the assessee was in charge of the trucks, for the time being, be a conclusion in law, I do not think that any error in law has been committed by the Tribunal, in arriving at its conclusion against the contentions raised on behalf of the assessee.
Relevant facts have been found and a relevant finding has been given on them, before saddling the assessee with liability".
The High Court thereupon upheld the Tribunal 's decision against the assessee.
The only question that is canvassed by Mr. A. K. Sen on behalf of the appellant is that, on the various facts found by the Tribunal, it has erred in law in holding that the assessee is an 'owner ' within the meaning of section 2(d) of the Act.
We may, therefore, immediately turn to the definition of owner as given under section 2(d) 2(d) " 'owner ' means the owner of a public service motor vehicle in respect of which a permit has been granted by a Regional or State Transport Authority under the provisions of the (IV of 1939) and includes the holder of a permit under the said Act in respect of a public service motor vehicle or any person for the time being in charge of such vehicle or responsible for the management of the place of business of such owner".
It is clear that the above definition is an inclusive definition.
Owner means not only the owner of the specified type of vehicle but also includes the permit holder in respect of such a vehicle as also any person for the time being in charge of such vehicle or any person responsible for the management of the place of business of such owner.
The definition has fairly widened the meaning of "owner".
We are only concerned in this appeal with one category included in the definition, namely, that an owner is a person for the time being in charge of a public service motor vehicle.
There is no dispute that the trucks in question are public service motor vehicles.
We are only required to consider whether the assessee is a 'person ' "for the time being in charge of such vehicle".
As the preamble shows the Act is to provide for the levy of tax on passengers and goods carried by public service motor vehicles.
The taxing event is, thus, the carriage of goods and passengers by public service motor vehicles.
By section 2(a) 'business ' means the business of the owner for the purpose of this Act.
901 Section 3 in the charging section and may be read: 3(1) "On and from the date on which this Act is deemed to have come into force under sub section (3) of section 1, there shall be levied and paid to the State Government a tax on all passengers and goods carried by a public service motor vehicle; such tax shall be levied and paid at the rate of twelve and a half per centum of the fares and freights payable to the owner of such vehicle; * * * * (2) Every owner shall, in the manner prescribed in section 9, pay to the State Government, the amount of tax due under this section.
(3) Every passenger carried by a public service motor vehicle and every person whose goods are carried by such vehicle shall be liable to pay to the owner the amount of tax payable under this section and every owner shall recover such tax from such passenger or person, as the case may be." * * * * Under section 4(1) every owner liable to pay tax shall apply for his registration within such period and in such manner as may be prescribed.
Under sub section (2) of section 4, if the application is in order, the prescribed authority shall grant a certificate of registration in the prescribed form.
Under section 6 every owner shall furnish to the prescribed authority such returns, within such period, as may be prescribed.
There is a provision under this section for imposition of penalty on failure to submit a return without any reasonable cause.
Section 18 is the penal section for various offences under the Act including failure to apply for registration or to submit return or for contravention of any other provision of the Act of the Rules and the offender is punishable with fine which may extend to Rs. 1000/ , and when the offence is a continuing one, with a daily fine not exceeding fifty rupees during the period of the continuance of the offence.
By section 3(h) of the Act, a 'public service motor vehicle ' means any motor vehicle used or adopted to be used for the carriage of passengers and goods for hire or reward and includes a motor cab, a stage carriage, a contract carriage or a public carrier.
For the purpose of tax under the Act not every public service motor vehicle but only such a vehicle carrying goods and passengers is exigible to tax for the carriage of those goods and passengers under the Act.
The tax again is a percentage of the fares or freights realised.
The fares and freights have to be realised as a fact.
Such a vehicle carrying goods and passengers driven by employees of the owner of the 902 vehicle would ordinarily be in charge of that owner or of the permit holder wherever it may ply.
The physical presence of the owner or the proprietor or of the permit holder in the running vehicle is not essential.
Even if the driver or the conductor realises the freight it is done on behalf of the owner of the vehicle or of the permit holder and the former is accountable to the latter.
Suppose the conductor misappropriates the collection en route, that will not absolve the permit holder from liability to pay the tax actually realised for the carriage of the goods or the passengers.
In view of the terms of the agreement, on which great reliance has been placed by Mr Sen, it can be safely assumed that the appellant took full responsibility for the carriage of the goods from the Sindri factory to various destinations.
This is manifest even in absence of production by the appellant of agreements, if any, between it and the company or the stockists.
Cement bags will not be loaded on any and every vehicle that reports at the factory but only on those vehicles whose registration numbers must have been communicated to the company or which were taken there by the appellant 's representative who has to be present at the time of loading the trucks with cement as will appear from clause (1) of the agreement.
Clause (1) reads "Cement will be loaded into your lorry at the Sindri Works through us".
The Sindri factory, therefore, entrusted the carriage of their cement bags to the appellant for delivery to various stockists who again in turn, at destinations, gave buyer 's receipts as per clause (3) of the agreement.
Clause (3) States: "You will obtain proper receipts for such deliveries from the consignees on the challans handed over to you and bring back all the documents including the challan duly signed by the consignees leaving one copy of the challan with the consignees".
On delivery to the appellant of the buyer 's receipt by the truck owner or his representative.
"the bills of hire charges" of the truck owner are paid with three weeks thereafter at the rates "as per our schedule" agreed between the appellant and the truck owners".
Clause (12) of the agreement says: "Your bills of hire charges as per our schedule will be prepared every fortnight and will be paid within 3 weeks thereafter." The truck owners, in this case, received as per agreement, only "hire charges" and there is nothing to show nor is there any averment by the appellant that those charges included taxes under the Act although freight had been admittedly realised by the appellant from the stockists.
In the above background of facts and circumstances, there is no escape from the conclusion that the appellant was in charge of the trucks for the purpose of the 'business ' of the appellant during the entire course of transportation of the cement bags from the Sindri factory to the various stockists and as such comes within the third clause of the definition under section 3(d) of the Act.
903 The fact that under the terms of the agreement some incidental arrangement involving contingent financial implications in respect of carriage of the goods had been entered upon does not entitle the appellant to be relieved of the "charge" of the loaded truck for the purpose of tax under the Act for the carriage of the goods.
The matter would have been different if the truck owners had been given the tax collections in addition to the hire charges, but absence of any provision for tax payment by the truck owners in the agreement militates against the contention that in this case the truck owners are liable for the payment of tax under the Act for the carriage of the cement bags.
The owner of the truck under a public carrier permit or a public carrier permit holder is undoubtedly an 'owner ' under section 2(d) of the Act.
But in a given case, the person who is for the time being in charge of the loaded truck and who or on whose behalf some one received the freight or fare is also an 'owner ' within the third clause of the definition under section 2(d) of the Act.
The significant words "for the time being in charge of such vehicle" have to be comprehended in the context of the provisions of the taxing statute and these words have nexus with the actual realisation and appropriation of the freight for the goods carried by the vehicle.
The meaning given to the words "in charge of vehicle" in connection with traffic cases in criminal prosecution, as has been referred to by Mr. Sen citing two English cases, is of no avail to the appellant in this case.
Mr. Sen forcefully submits that the present case is squarely covered by a decision of this Court in Jagir Singh & Ors. etc.
vs State of Bihar and Anr.(1) This was a case where the same Act with some identical Acts from other States came up for consideration.
It is submitted by Mr. Sen that the truck owners lost in that decision and in this appeal also, therefore, they cannot escape from their legal liability by shifting it to the appellant.
We must bear in mind that those applications were under article 32 of the Constitution while the present matter comes to us out of a reference in the fifth tier of litigation after the matter had been gone into in great detail taking note of various facets of the rival pleas by the respective authorities and lastly by the High Court.
In Jagir Singh 's case (supra) this Court was concerned merely with Booking Agents and Forwarding Agents who were sought to be made liable under the Act at the instance of the permit holders of the public service vehicles who did not own their liability for payment of tax under the Act.
This Court observed in that case as follows: "If the permit holder lets out the vehicle to any person on hire it is a matter of internal arrangement between the owner who is the permit holder and the person who is allowed by the permit holder to hire the vehicle to collect tax in order to enable the owner to discharge the liability.
If the owner does not make adequate provision in that behalf the owner cannot escape liability by pleading that the hirer of the vehicle is liable to pay tax and the owner is not liable".
904 From the terms of the agreement in the present case, it is clear that the liability to pay taxes was entirely upon the appellant as the owners of the trucks were only entitled to "hire charges".
Legal liability for payment of tax under the Act is well known to the appellant carrying on transport business.
The appellant has taken charge of the vehicles for the purpose of the collection of tax for the carriage of the goods.
The appellant has actually collected the freight from the stockists on delivery of cement bags.
The appellant has only paid to the truck owners "the hire charges" as per its own schedule of rates without any mention of tax.
These facts clearly distinguish the present case from what apears to have been pleaded in the writ application in Jagir Singh 's case (supra) and he decision is of no aid to the appellant.
Being "in charge" of the vehicle in the context of the provisions of the Act does not relate to mere physical charge or control in the process of movement of the vehicle from one place to another but to charge or control for fulfilment of the legal obligation under the Act for payment of taxes for the carriage of goods or passengers.
Whether a certain person is in charge of the vehicle for the time being depends always on the particular facts of each case and the answer cannot be put in the straitjacket of a formula.
On the facts of the present case we are clearly of opinion that the appellant comes within the meaning of the third clause of the definition under section 2(d) of the Act.
We should observe that once the tax is realised for a particular transaction from one category of owner as defined, no further tax can be collected for the same carriage from any other person even though that person also may come within the definition of "owner" under the Act.
The Tribunal was, therefore, justified in holding the appellant as "owner" for the purpose of the Act.
The High Court was right in not interfering with the conclusion of the Tribunal and in answering the question against the assessee.
In the result the appeal is dismissed but we make no order as to costs.
V.P.S. Appeal dismissed.
| IN-Abs | Under section 3(1) and (2) of the Bihar Taxation on Passengers and Goods (Carried by Public Services Motor Vehicles) Act, 1961, every owner shall pay to the State Government a tax on all passengers and goods carried by a public motor vehicle.
Under section 2(d), 'owner ' means not only the owner of the specified type of vehicle but also includes, inter alia, "any person for the time being in charge of such vehicle".
Under section 4(1) every owner liable to pay tax shall apply for registration, and under section 6 every owner shall furnish the prescribed return to the prescribed authority.
Section 18 provides for penalties for failure to apply for registration or to submit the return.
The assessee was the sole transporting company of the cement of a manufacturing company.
Since it did not have its own fleet of trucks, it used to engage trucks for use in its transport work.
It was providing petrol and oil for the running of the trucks in the transport work although the prices paid by the assessee were later on adjusted in the hiring charges.
The assessee was obtaining the receipts of delivery of the goods to the various stockists indicating the quantities of cement received through a particular vehicle.
On delivery to the appellant of the buyers ' receipt by the truck owner or his representative, the bills of hire charges of the truck owner were paid by the appellant as per the agreement between the appellant and the truck owner.
The assessee was maintaining a complete record of the trucks used by it for the transport work, of the charges realisable and realised from me stockists on account of freight payable by them, and of the charges actually paid to the truck owners.
The assessee was not registered under section 4.
After a surprise check, the total taxable amount of the assessee was determined and the tax and a penalty were imposed on the assessee.
The assessee 's appeal, revision to the tribunal, and reference to the High Court, were all decided against the assessee.
Dismissing the appeal to this Court, ^ HELD: The appellant was in charge of the trucks for the purpose of its business during the entire course of transportation of the cement from the factory to the various stockists and, as such, came within the definition of owner under section 2(d).
[904 D E] (1) Whether a certain person is in charge of the vehicle for the time being depends on the particular facts of each case.
Being in charge ' of the vehicle, in the context of the provisions of the Act, does not relate to mere physical charge or control in the process of movement of the vehicle from one place to another but 'to charge or control ' for fulfilment of the legal obligation under the Act for payment of taxes for the carriage of goods or passengers.
The words "for the time being in charge of such vehicle" have to be comprehended in the context of the provisions of the taxing statute and these words have nexus with the actual realisation and appropriation of the freight for the goods carried by the vehicle.
In a given case, the person, who is for the time being in charge of the loaded truck and who or on whose behalf some one like a driver or conductor received the freight or fare.
is also a owner within the meaning of the definition in section 2(d).[903 C D; 904 C D] (2) On the facts of the present case the appellant took full responsibility for the carriage of the goods from the factory to various destinations.
The freight had been realised by the appellant from the stockists and the truck 898 owner received only 'hire charges. ' There is nothing to show nor is there any averment by the appellant that those charges included the taxes under the Act.
The matter might have been different if the truck owners had been given the tax collections in addition to the hire charges.
Further the absence of any provision for tax payment by the truck owners in the agreement militates against the contention that it is only the truck owners that are liable.
[902 B C, G 903 B] (3) The case of Jagir Singh vs State of Bihar ; was an application under article 32 of the Constitution and was concerned with booking agents and forwarding agents who were sought to be made liable under the Act at the instance the truck owners but the truck owners were held to be liable.
Unlike that case, the liability to pay taxes was entirely upon the appellants in the present case as the truck owners were entitled only to hire charges.
[903 F G; 904 A]
|
N: Criminal Appeal No. 155 of 1971.
Appeal by Special Leave from the Judgment and Order dated 31 7 70 of the Andhra Pradesh High Court in Criminal Appeal No. 45/69 and Criminal Revision Case No. 391/69.
930 P. Ram Reddy and P.P. Rao for the Appellants.
Govind Das, Mrs. Sunanda Bhandare, A.K. Mathur, A.K. Sharma and M.S. Narasimhan for the Respondents.
The Judgment of the Court was delivered by SARKARIA, J.
This appeal by special leave is directed against a judgment of acquittal rendered by the High Court of Andhra Pradesh.
The facts may now be stated.
There are three villages, Konda Kala Vatala, Konda Papaya Palli and Govinda Palli situated at a short distance from each other There were warring factions in these villages One was led by Vellugoti Pedda Eswara Reddy deceased and Mumagala Narayana Reddy, the Sarpanch of Konda Kala Vatala.
The rival faction was headed by Akkammareddigari Venkata Kondareddy, Accused No. 1 (for short, A 1).
There was bad blood between the two factions.
Both the factions were proceeded against under sections 107/151, Cr.
P.C., also The deceased was a resident of Konda Papayapalli village.
On May 16, 1968, the deceased accompanied by PW 1, K. Venkatareddy, went to Jammalamadugu and stayed for the night there in the hotel of PW 12 (Dastagiri).
On the following morning at about 8 30 a.m., they boarded bus No. APD 2083 for proceeding to their village.
L. Venkata Ramanna (PW 14) was checking tickets on that bus.
When the bus stopped at Sanjamalavari House, Accused 2, 3, 5 to 8 (for short, A 2, A 3, A 5 to A 8) boarded it.
On seeing the accused, who belonged to his opposite faction, the deceased got apprehensive of his safety.
He therefore alighted from the bus, and, accompanied by PW 1, returned to the hotel of Dastagiri.
After remaining at the hotel for some time they returned to the bus stand, and boarded bus No. APD 2276, at about 9 30 a.m. for going to their village.
P.W. 11 (E. Solomon) was the driver and P.W. 9 (V. Bala Subbanna), the conductor of that bus.
There were about 30 passengers, including PW 2, PW 3 and PW 4, in the bus.
At about 10 30 a.m., the bus halted at Nossam near the hotel of Rangappa, PW 10.
This bus stop is at a distance of about 60 or 65 yards from the Police Outpost and is located in a populated quarter of the town which has a population of 3,000 souls.
The conductor, the driver and some of those passengers got down to take refreshments in the nearby hotel.
Some passengers including the deceased and P.Ws. 1, 2 and 4, however, remained inside the vehicle.
A 4 then came there.
He peeped into the bus through the door and went away towards the house of one Yerikala Reddy, situated at a distance of 200 feet from the bus towards the north.
Soon thereafter, A 1 and A 2, armed with revolvers, and A 3 to A 13, all armed with daggers, came there from Yerikala Reddy 's house, encircled the bus, and at the point of daggers forced the passengers including PWs 1 and 4, to get out of the bus.
The deceased also tried to get away but the accused prevented him from doing so.
A 1 and A 2 took positions in the doors of the vehicle.
They fired revolvers in the air while their companions immediately entered the bus and there, stabbed the deceased to death causing no less than 44 injuries.
The assailants were 931 yelling: "Stab ! kill !" P.Ws. 1 to 4 witnessed the occurrence P.W. 1 while raising an alarm proceeded towards the Police Outpost, but the accused obstructed and chased him over a short distance.
P.W. 1 took to his heels, went away from the village and concealed himself somewhere.
After about two hours he came out of his hiding and returned to the spot at about 12 30 p.m.
After murdering the deceased, the miscreants went away towards the north taking their weapons with them.
Thereafter, P.Ws. 2, 3 and 4 entered the bus and found the deceased lying dead in a pool of blood.
P.W. 2 then went to Papayapalli, five miles away, and informed the wife and the relations of the deceased about the occurrence.
He returned to the scene of the crime in the company of those relations at about 4 p.m.
In the meantime, the village Munsiff (P.W. 15) on learning about this incident, also came there.
At the dictation of P.W.1, the Munsiff recorded the complaint, exhibit P 3, and then prepared an injury statement of the deceased.
At about 3 p.m., he sent the complaint together with other documents prepared by him, through the Talyari to the Police Station, Vuyyalawada.
A copy of the complaint was sent to the Judicial Magistrate Koilkuntla.
Prior to the making of this complaint, Head Constable Abdul Khadar, PW 16, of the Police Out Post had sent an oral information to the Police Inspector about this murder.
The Head Constable had heard the reports of revolver fire at about 10 30 a.m.
Thereupon, he alongwith a Constable went out to the bus stand.
At the spot, he heard from the by standers that the deceased had been killed inside the bus.
But, despite inquiries, no one told him about the identity or particulars of the culprits.
He looked for the complainant, if any.
No one came forward to make a complaint.
The driver and the conductor of the bus were also found absent.
He therefore sent an oral information to the Inspector through the Talari, Pollana.
On receiving the information, Inspector Santhoji Rao (P.W. 25) reached the place of the murder at 6 p.m.
He examined P.Ws. 1, 15, 16 and 19 and recorded their statements under section 161, Cr.
P.C. Thereafter, he held an inquest over the dead body from 2 30 a.m. to 6 a.m. on May 18, 1968.
During the inquest he examined P.Ws. 2, 9 and 11.
The Inspector searched for the accused but could not find them.
A 4 to A 8 surrendered on May 22, 1968 and were taken into custody.
A 2, A 3, A 9, A 10, A 11 and A 13 were arrested by the police on June 24, 1968.
Thereafter, on some date before August 10, 1968, A 1, A 6 and A 12 were arrested.
All the accused persons were not previously known to the eyewitnesses.
They were put up for test identification at three parades held by Mr. Johnson, Magistrate 1st Class (P.W. 20) on June 7, 1968, July 18, 1968 and August 10, 1968.
After completing the investigation the police sent 13 accused persons under a charge sheet before the Magistrate for preliminary enquiry.
The Magistrate committed all the 13 accused for trial to the court of Session.
The Sessions Judge acquitted A 5, A 6, A 8, A 9 and A 11, but convicted the remaining seven under section 302, Penal Code and sentenced each of them to imprisonment for life.
932 Against that judgment, two appeals were preferred to the High Court, one by the State against the acquittal of A 5, A 6 and A 8, and the other by the convicted accused against their conviction.
The High Court dismissed the appeal preferred by the State but accepted the other filed by the accused and acquitted all of them.
Aggrieved, the State made a petition in this Court under Article 136 of the Constitution seeking leave to appeal against the acquittal of A 1 to A 9 and A 12.
This Court however granted special leave to appeal against the acquittal of A 1 to A 4, A 7, A 9 and A 12 only and refused it against A 5, A 6 and A 8.
Mr. Ram Reddy appearing for the appellant State contends that the judgment of the High Court acquitting all the accused persons is perverse in law and has occasioned gross failure of justice.
It is maintained that the reasons given by the High Court for wholesale rejection of the evidence of P.Ws. 1, 2, 3, 9 and 11 are manifestly erroneous and contrary to the fundamental canons of appraising evidence.
As against this, Mr. Govind Das maintains that the reasons given by the High Court for rejecting the evidence of these witnesses are quite sound and cannot, by any stretch of imagination, be branded as 'perverse '.
According to the Counsel since the view taken by the High Court is also reasonably possible, this Court should not, in deference to the well established ruler of practice, interfere with the order of acquittal.
To appreciate the rival contentions, it is necessary to examine the reasons given by the High Court for not accepting the evidence of these five witnesses.
P.W. 1 is the prime mover of the gear.
The case was registered on his complaint (exhibit P 3) lodged with the village Munsiff (P.W. 15) at 12 30 p.m.
At the trial, he narrated more or less the same story which has been set out at the commencement of this judgment.
The High Court found his evidence unworthy of credit for these reasons: (i) P.W. 1 is a confirmed partisan of the deceased.
(ii) He was unable to give a consistent and satisfactory account of the purpose of his going to Jammalamagdu on May 16, 1968.
(iii)In the First Information exhibit P 3, he did not state many material facts.
For instance, he did not mention there that, in the first instance, he and the deceased had boarded the Nandyal Koilkuntla bus at 8 30 a.m. and thereafter alighted from it on seeing the accused getting into the bus.
(iv) If P.W.1 was really in the ill fated bus, at the time of the occurrence, he could not have been left unharmed; (v) The conduct of P.W. 1 was so unnatural that it improbablises his presence at the time and place of the incident: (a) If he had really seen A 4 peeping into the bus and going back to the house of Erikala Reddy, 60 or 70 933 yards away, to inform the other accused, it was unlikely that P.W. 1 and the deceased would have remained sitting in the bus.
P.W. 1 knew that A 4 was a partisan of the other accused: (b) The conduct of P.W. 1 after the occurrence, was also artificial, unnatural and strange.
He did not go to the Police Outpost which was at a stone 's throw.
His explanation that he was prevented by the accused from going there and had to remain in hiding at some unspecified place towards the West for two hours till he returned to the bus stand at 12 30 p.m., was incredible.
Although he had ample opportunity and time to go to his village and inform the co villagers about the incident, he did nothing of the kind.
(vi) No bus ticket was found with P.W. 1.
(vii)The evidence of the witnesses produced to corroborate the version of P.W. 1 was also unsatisfactory.
P.W. 14, Ticket Checker of bus No. APD 2083 which the deceased and P.W. 1 are said to have boarded earlier at Jamalamadugu, admittedly did not know P.W. 1 prior to that date.
P.W. 14 was not asked to identify P.W. 1 at any test identification or even in court.
Moreover, P.W. 14 was examined by the investigating Police Officer about a week after the occurrence.
The evidence of Dastgiri, P.W. 12, owner of the hotel at Jamalamadugu was no better.
He had no record to show that P.W. 1 and the deceased had spent the night between the 16th and 17th May at his hotel.
His testimony was at variance with his statement recorded under section 164, Cr.
In that statement, he did not say that the sons (i.e. A 2, A 3 and A 6) of Kalavatala Reddy were also reported by the deceased to be in the bus.
He had simply stated there, that Kalavatala (Reddy) and his men were in the bus.
At the trial, he stated that the deceased had informed him about the presence of A 2, A 3 and A 6, also, in the bus.
P.W. 12 was not a disinterested witness.
Admittedly, the deceased had helped him in getting assignment of land for raising a building, before the revenue authorities.
His statement was also recorded by the police several days after the occurrence.
(viii)There was unexplained delay in registration of the case.
The Police Station Vuyyalawada is 12 miles from Nossam.
The complaint, exhibit P 3, was received there at 8 p.m. Copy of the complaint reached the Magistrate Koilakuntla, 16 miles away, at 6 p.m.
There was a bus leaving Nossam at 4 30 p.m. for Koilakuntla.
It was more likely that the copy of the complaint was sent to the Magistrate by that bus at 4 39 p.m., and not at 3 p.m. as the Munsiff P W. 15, wanted to have it believed.
This inordinate delay in registering the F.I.R. shows that the First Information was lodged after confabulation with other persons 934 who had come from the village of the deceased.
In these circumstances, the F.I.R. had little value as a corroborative piece of evidence.
These reasons given by the High Court for not relying on the evidence of P.W. 1, cannot, by any standard be said to be unsound or puerile.
There is a good deal of force in them.
We will now take up P.W. 2.
Mr. P. Ram Reddy contends that the High Court was in error in dubbing this witness as an interested witness.
It is maintained that his relationship or affinity with the deceased or his party had not been established.
It is argued that his evidence was almost impeccable.
The High Court has found that P.W. 2 is closely related to the deceased.
This is an inference drawn from the conduct of the witness in not denying a suggestion of such relationship put to him in crossexamination by the defence.
The pointed suggestion was, whether the son of his junior paternal uncle was married to the daughter of the deceased.
The witness replied that he did not know.
The relationship suggested was so near that the witness could not be unaware of it.
If the suggestion was wrong, he ought to have registered a categorical denial.
The High Court was therefore justified in presuming that the witness was the first cousin of the son in law of the deceased.
The next infirmity in his evidence noted by the High Court, is that his conduct in not trying to go to the Police Outpost or in not reporting the matter to the village Munsiff, was not the natural conduct of an eye witness of the murder.
The third weakness in his evidence noted by the High Court, is, that he was not examined by the investigator on the 17th May, although he claimed to be present at the spot at that time.
Another reason given by the High Court for doubting his veracity was, that there was no necessity for him to go to Proddutur to ascertain the price of castor oil cake because the same inquiry could be conveniently made telephonically.
The Court further found that he could not give a satisfactory account as to why he adopted the circuitous route via Nossam when buses starting at 6 30 and 7 30 a.m. from Jammalamadugu and plying directly to Allagaddi were available.
We need only add that this witness also was unable to produce any bus ticket.
We agree with the High Court that in view of the infirmities enumerated above, the evidence of P.W. 2 could not be safely acted upon without corroboration from independent sources.
This takes us to the evidence of P.W. 3.
The High Court found that P.W. 3, also, was not an independent witness.
He stood surety for five partisans of the deceased in security proceedings under section 107, Cr.
This fact was borne out by the documentary evidence furnished by the copies of the surety bonds, Exh.
D 10 to D 14, although the witness had the temerity to deny it 935 Mr. Ram Reddy laid great stress on the fact that the evidence of this witness with regard to his being among the passengers in the illfated bus at the time of occurrence, stands corroborated from the testimony of an independent witness, the bus conductor (P.W.9).
It is further maintained that this witness (P.W. 3) was examined during the inquest held on the night between the 17th and 18th May. Reference on this point has been made to the inquest report exhibit P.6.
These twin circumstances proceeds the argument were sufficient to lend assurance to the interested testimony of this witness so as to make it acceptable against A 1 and A 2, if not against the other accused respondents.
These circumstances were noticed by the High Court.
In its opinion, they did not furnish adequate confirmation of the testimony of P.W. 3.
In this connection, the High Court observed: "We do not think much assurance can be taken from the evidence of P.W. 9 about the presence of P.W. 3 on that day in that bus.
It is true that the name of P.W. 3 was mentioned as an eye witness in the inquest report.
Even though the inquest according to P.W. 25 was held in the early hours of the morning of 18 5 1968 and the inquest report was said to be ready on that morning, the inquest report was received in Court at 6 P.M. on 19 5 1968.
As provided under sec.
174(2) Cr.
P.C. the inquest report shall be forth with forwarded to the Court.
P.W. 3 was examined on 19 5 68 only.
With regard to the inquest report no other independent panchayatdar was examined apart from P.W. 15, the village Munsiff.
Having regard to these circumstances we do not think much can be taken from the fact that the name of P.W. 3 finds a place in the inquest report.
" Another infirmity in the testimony of PW 3, according to the High Court, was that documentary evidence of the sales allegedly made by the witness at the Shandy (periodical market) and the receipts of the fees/cess paid on such sales to the Panchayat, was not forthcoming and that the explanation given by the witness for non production of such documentary evidence was unsatisfactory.
It will be seen from the synopsis of the reasoning of the High Court, given above, that whereas the evidence of P.W.1 was considered to be wholly unreliable, the possibility of P.Ws. 2 and 3 being witnesses of the occurrence was not positively ruled out.
The conclusion reached in respect of these two witnesses was that their evidence suffered from several infirmities and, as such in the absence of corroboration from independent sources, it could not be accepted as a safe basis for convicting the accused.
We are also of the opinion that as a matter of prudence, it was not safe to convict any of the accused respondents merely on the basis of the testimony of P.Ws. 2 and 3 We, however, do not agree with the High Court that the evidence of P.Ws.9 and 11 did not furnish reliable corroboration of the testimony of the interested witnesses (P.Ws. 2 and 3 ) against any of the accused respondents whatever.
The sum and substance of the testimony rendered by P.W.9, the Conductor of the bus, was that when the bus halted at Nossam at 936 about 10 30 a.m., the witness accompanied by the Driver (P.W. 11), got down and both of them went to the nearby hospital for getting an injury on his leg (P.W 9 's) dressed up.
They however, did not find the Doctor there.
Consequently, both of them returned to the hotel of Rangappa which is hardly 18 ft.
from the scene of occurrence.
While the witness was standing in the verandah of the hotel, the driver took his meals inside and then came out and went to the adjacent hotel of Pullayya to take coffee.
The witness asked Rangappa 's wife to give him some water.
He was waiting in the doorway when he saw some persons coming from the northern side and going to the bus and encircling it.
Some of them were armed with daggers.
The witness heard the sound "dama dama" of the firing of a revolver.
The witness heard cries from the bus "kill ! stab !".
After the disturbance had subsided, the witness went out and saw the deceased lying dead inside the bus in a pool of blood.
Due to fear, the witness and the driver (P.W.11) went into the nearby Vaisya 's house and remained there till 7 30 or 8 p.m. when they came out on learning that the Police Inspector had come to the spot.
At the test identification parades, the witness had identified Accused 2 and 7.
He stated that P.W. 3 was one of the passengers who travelled in the ill fated bus.
The driver (P.W.11) substantially corroborated P.W.9.
He stated that he had seen five or six persons carrying white think like daggers in their hands going behind the bus.
The witness was then taking coffee at the hotel of Pullayya.
He then heard the "dum dum" sound from the bus.
At the test identification parades held before the Magistrate, the witness had identified A 7 and A 11.
The High Court while conceding that P.Ws. 9 and 11 were the "proper persons to have spoken about the occurrence", brushed aside their evidence even against the accused identified by them at the test identifications, mainly on the ground that they were "unwilling witnesses" and were not prepared to speak the whole truth.
The High Court noticed that there was a discrepancy with regard to the receipt of injury by P.W. 9 between his statement before the police and the subsequent statement recorded under section 164, Cr.
Before the police, P.W.9 had stated that he had received an injury.
But in his statement recorded under section 164, Cr.
P.C. he said that he had a boil on his leg.
It appears to us that this discrepancy was of no consequence.
P.Ws.9 and 11 were the conductor and the driver of the bus.
It is undisputed that the bus was parked close to the hotels of Rangappa (P.W.10) and Pullayya.
Their presence near the bus at the hotels was a highly probable fact.
Even if the reason for their going to the nearby hospital was disbelieved, it could not affect their being eyewitnesses of the incident.
Might be that they did not disclose all that they had seen and had not identified all the culprits whom they could identify; but that is no ground to hold that their evidence could not furnish valuable corroboration of the testimony of the interested witnesses (P.Ws. 2 and 3) even against the accused whom they identified at the test identifications and later in court.
The statements of P.Ws. 2, 9 and 11 were recorded by the Investigating Officer during the night between the 17th and 18th May 1968 937 from 2 30 a.m. to 6 a.m.
There was thus no good reason for wholesale rejection of the evidence of P.Ws. 9 and 11.
It therefore remains to be seen to what extent the independent testimony of P.Ws. 9 and 11 lends corrobation to the statements of the interested witnesses (P.Ws. 2 and 3).
At the test identification parade held on June 7, 1968, A 4, A 5, A 7 and A 8 were paraded along with 12 other prisoners.
P.Ws. 2, 3, 9 and 11 were called upon to identify the accused at this parade.
P.W. 2 while identifying A 7 at the parade, said: "I saw him while killing the deceased in the bus" P.W. 3 also identified A 7 as Konda Kalavatalavadu.
He also identified A 4 and A 8 by touching their hands.
P.W.9 identified A 7 saying: "I suspect this man".
He could not identify others.
P.W.11 also at this parade picked out A 7 who was then standing at No. 15 in the parade and said that he had seen him.
The second batch of the accused persons consisting of A 2, A 3, A 9, A 10, A 11 and A 13 was arrested on June 24, 1968.
These six accused persons were paraded at the test identification on July 18, 1968.
P.Ws. 1, 2, 3 and 9 were called upon to identify them at the parade.
P.W. 3 picked out A 2, A 3, A 9 and A 10 at the parade.
P.W. 9 similarly identified A 2 by touching his hand.
A 2 objected that in 1962 or 1963 P.W. 9 had served him as driver of his bus for 10 days.
The third test identification parade was held on August 10, 1968.
At this parade, nine accused persons A 1 to A 3, A 6, A 9 to A 13 were paraded.
P.Ws. 1, 2, 3 and 11 were called upon to identify.
P.W. 2 identified A 8, while P.W.11 identified A 11 only.
He could not identify A 2 or the other accused who were in this parade.
Thus the net result is that at the test identifications, P.Ws. 9 and 11 had correctly identified A 7, P.W 9 had identified A 2, also.
But P.W. 11 could not identify him.
The question is, whether the evidence of P.Ws.9 and 11 can be safely relied upon as against A 7 and A 2.
In our opinion, so far as A 7 is concerned, chances of mistake in identification by these witnesses were extremely remote.
Mr. Gobind Das, Counsel for the respondents, contends that the evidence of test identification is not substantive evidence.
It can be the Magistrate holding the parade did not mix up with the accused adequate number of other prisoners and did not hold separate parades for individual accused; (b) at the time of picking out A 7 and A 2 at the parade, the identifying witnesses did not say as to in what connection they were identifying them.
It is stressed that the evidence of test identification is not substantive evidence.
It can be used only to corroborate or lend assurance to the identification made by the same witness in court.
If at the time of picking out a particular accused at the parade, a witness does not say anything about the role of the person, thus identified, in the commission of the crime, such test identification little evidentiary value.
Further, it is pointed out that P.W. 9 was not called upon to identify A 2 and A 7 938 in court at the time of his examination as a witness.
Reference has made to a number of decisions including Kamal Gope vs State of Bihar,(1) Kanta Prasad vs Delhi Administration(2) and Sampat Tatyada Shinde vs State of Maharashtra(3).
In our opinion, so far as the identification of A 7 by P.Ws. 9 and 11 is concerned it can safely be relied upon as confirmatory of their evidence in court.
A 7 was identified by P.Ws. 9 and 11 at the test identification parade held on June 7, 1968.
It is true that while picking out this accused at the parade these witnesses did not say anything with regard to the specific part played by him in the commission of the crime.
That however does not render the evidence of such identification inadmissible.
The Magistrate (P.W. 20) who held the parade had mixed up 12 other persons at this parade with the four accused, including A 7.
It could not therefore be said that the number of other persons mixed with the accused was indequate.
The very fact that both P.Ws. 9 and 11 commonly identified A 7, dispels any suspicion of such identification being a chance identification.
In the witness box, at the trial, however, P.W. 9 specifically stated: "I could identify only accused 2 and 7 among those persons who came to the bus from the northern side armed with daggers".
Referring to the test identification parade, the witness added: "I identified A 7 as one of the persons who came with dagger to the bus".
In cross examination, the witness reaffirmed: "It is not true. that A 2 and A 7 were not among the persons who came to the bus.
It is not true that I have identified A 2 and A 7 at the parades not because they were seen near the bus but because Police showed them to me earlier to facilitate identification".
From the very fact that the witness while testifying as to the fact of identification was referring to this accused as A 7 implies that he had identified him in court, also, and had, in that connection, elucidated why he had picked out A 7 at the identification parade.
The evidence given by the witness in court was substantive testimony, while the identification made by him at the parade was confirmatory of that fact.
This proposition is well established and it is not necessary to discuss the rulings cited at the bar on this point.
No capital can be made out of the fact that the trial judge recorded the evidence of the witness with regard to identification of A 7, in court, in an inartistic, laconic manner.
In the case of P.W. 11, however, the trial Judge recorded this fact more clearly.
The witness stated: "I can identify 2 persons among the 5 or 6 persons who were seen going behind the bus with white things like daggers.
They are accused 7 and 11 (witness identified accused 7 and 11).
" 939 With reference to the test identification, the witness stated: "I identified A 7 in the 1st parade and A 11 in the second parade".
In cross examination, he refuted a suggestion made by the defence that he had identified accused 7 at the parade because the police had shown him to the witness, earlier.
For these reasons we think that the High Court was clearly in error in discarding the evidence of these independent witnesses (P.Ws. 9 and 11) so far as the participation of A 7 in the commission of the crime was concerned.
The evidence of the interested witnesses (P.Ws. 2 and 3) was sufficiently corroborated as against A 7 by the credible testimony of P.Ws. 9 and 11.
It could therefore be safely acted upon for convicting A 7 as one of the participants in the commission of the murder of P. Eswara Reddy, deceased.
As regards A 2, it is to be noted that neither PW 9 nor P.W. 11 stated that this accused was armed with a revolver.
Neither of these witnesses has stated that any of the five or six persons who were seen by them going to the bus and encircling it, was armed with a revolver.
They only say that those persons were carrying daggers.
The prosecution case however is that A 2 was armed with a revolver only, which he fired in the air.
Further when P.W. 9 picked out A 2 at the identification parade, the latter had objected that P.W. 9 was already known to him because he had served him as a driver for about 10 days.
It is true that this suggession was not repeated in the crossexamination of P.W. 9; but we have also to keep in mind in this connection that P.W. 11 had failed to identify A 2 at the test identification parade although both these witnesses had seen the culprits more or less from the same situation and distance.
As a matter of abundant caution, while hearing this appeal, we do not consider the identification of A 2 at the test identification parade by P.W. 9, can lend sufficient assurance to the testimony of P.Ws. 2 and 3 so as to justify the conversion of his acquittal into conviction.
Thus, the position that emerges is that the evidence of P.Ws. 2 and 3 has been adequately confirmed by the reliable and independent testimony of P.Ws. 9 and 11 as against A 7, while no such corroboration is forthcoming against any of the other accused respondents.
The High Court was therefore not justified in acquitting A 7.
The only question that remains to be considered is : What offence has been made out against A 7 ? The charge sheet by the police in this case was submitted against 13 named persons including A 7.
The charge under section 302 read with section 34, Penal Code was also framed by the Sessions Judge against all the 13 named accused.
In the charge, it was not mentioned that besides these named accused, there were some unidentified or un named persons who acted conjointly with the charged accused, A 1 to A 13.
But there was positive evidence on the record that besides the 13 named accused, there were four or more unidentified persons who participated in the commission of the crime.
940 Now the position which emerges is that excepting A 7, the participation of the other 12 named accused in the commission of the crime has not been established.
The effect of their acquittal is that they would be deemed to have never participated in the criminal enterprise which resulted in the death of the deceased.
There is nothing on the record to show as to who out of these persons dealt the fatal blows to the deceased.
The question that falls to be determined is : Can A 7, in such circumstances, be held vicariously liable by invoking section 149 or section 34, Penal Code for the murder in question ? In Maina Singh vs State of Rajasthan(1) after reviewing earlier decisions viz., Dalip Singh vs State of Punjab(2); Bharwad Mepa Dana and Anr.
vs State of Bombay(3), Kartar Singh vs State of Punjab(4); Krishna Govind Patil vs State of Maharashtra(5); Mohan Singh vs State of Punjab(6); Yeshwant vs State of Maharashtra(7); on this point this Court speaking through Shinghal J. reiterated the law, thus : "It would thus appear that even if, in a given case, the charge discloses only the named persons as co accused and the prosecution witnesses confine their testimony to them, even then it would be permissible to come to the conclusion that others named or unnamed, besides those mentioned in the charge or the evidence of the prosecution witnesses, acted conjointly with one of the charged accused if there was other evidence to lead to the conclusion, but not otherwise." (emphasis supplied) Let us now have another look at the case in hand, in the light of the above enunciation.
In the F.I.R., it was alleged by the informant that 8 named persons and 10 unnamed persons who were not known to the informant, had conjointly committed the crime.
At the trial, P.W. 2 testified that the total number of culprits who had participated in the commission of the murder was 20.
At the trial, he named A 2 to A 5 and identified A 7, A 10, and A 12 as 8 out of those 20 culprits who had committed the crime.
The evidence of P.W. 3 on this point was that the number of the culprits who committed the murder, while acting in concert, was 17.
This means according to the evidence, there were acting conjointly with A 7 at least 4 or 7 more persons in addition to the 13 who were charged by the Committing Magistrate.
The medical evidence shows that there were no less than 44 incised injuries, including penetrating wounds, apart from one lacerated wound, two contusions and one abrasion on the body of the deceased.
Practically, he was made minced meat.
The extremely large number of injuries on the body of the deceased lends assurance to the testimony of P.Ws. 2 and 3 that the number of assailants was more than 13 including some unnamed and unidentified persons.
This evidence on the record is thus sufficient to base a firm finding that apart from the 941 accused named in the charge, there were at least one or more unidentified persons who participated in the criminal action against the deceased con jointly with A 7.
While the precise number of those unidentified persons, other than the 13 named in the charge, cannot be ascertained with certitude, it can safely be said that apart from 13 named in the charge, there were some more confederates of A 7 and all of them participated in the fatal assault on the deceased in the manner alleged by the prosecution.
A 7 can therefore be safely convicted under section 302 read with section 34, Penal Code.
According, we allow this appeal against A 7, reverse his acquittal, convict him under section 302 read with section 34, Penal Code and sentence him to imprisonment for life.
V.P.S. Appeal allowed.
| IN-Abs | When the bus in which the deceased and P.Ws. 1 to 3 were travelling, along with other passengers, halted at a bus stop, a number of persons surrounded the bus, forced all the passengers out of the bus except the deceased, and inflicted multiple stabs on the deceased causing his death.
Thirteen persons were charged with offences under section 302, 34 and 149 I.P.C.
The trial court convicted some and acquitted the others.
In appeals against the conviction and acquittal, the High Court acquitted all the accused.
In appeal to this Court against the acquittal of seven accused, including A 7, ^ HELD: Confirming the acquittal of others, A 7 is guilty of an offence under section 302, read with section 34, I.P.C. (1) The evidence of the interested eye witnesses PWs 2 and 3 was sufficiently corroborated as against A 7 by the testimony of PWs 9 and 11 the conductor and driver of the bus.
They had identified A 7 at an identification parade.
It is true that while picking out this accused at the parade these witnesses did not say anything with regard to the specific part played by him in the commission of the crime.
That, however, does not render the evidence of such identification inadmissible.
From the fact that PW 9 while testifying as to the fact of identification was referring to this accused as A 7 implies that he had identified him in court.
He had in that connection elucidated why he had picked out A 7 at the identification parade.
The evidence given by the witness in court was substantive testimony, while the identification made by him at the parades was confirmatory of that fact.
As regards PW 11 his evidence was more clear.
The Magistrate who held the parade had mixed up 12 other persons at this parade with the four accused, including A 7.
It could not therefore be said that the number of other persons mixed with the accused was inadequate.
[936H; 937F; 938B F, G H; 939C] (2) The result is that excepting A 7, the participation of the other 12 named accused in the commission of the crime has not been established.
There is also no evidence to show as to which of the assailants dealt the fatal blow on the deceased.
The medical evidence, however, shows that there were not less than 44 incised injuries including penetrating wounds upon the body of the deceased.
The extremely large number of injuries on the body of the deceased lends assurance to the testimony of PWs 2 and 3 that the number of assailants was more than 13 including some unnamed and unidentified persons.
Therefore, apart from the accused named in the charge, there were at least one or more unidentified person who participated in the fatal assault on the deceased conjointly with A 7.
A 7 can, therefore, be convicted under section 302 read with section 34, I.P.C. [940B, G 941B] Maina Singh vs State of Rajasthan ; , followed.
|
Civil Appeal No. 847 of 1974.
Appeal by Special Leave from the Judgment and Decree dated the 3 10 72 of the Mysore High Court in Regular Second Appeal No. 729 of 1967.
section section Javali and H. K. Puri, for the Appellant.
Narain Nettar, for the Respondent.
The Judgment of the Court was delivered by JASWANT SINGH, J.
This appeal by special leave is directed against the judgment and decree dated October 3, 1972, passed by a Single Judge of the Mysore High Court whereby allowing the respondent 's second appeal No. 729 of 1967, he set aside the appellate judgment and decree dated April, 18, 1967 passed by Civil Judge, Belgaum, declaring the order dismissing the appellant from service as illegal and ultra vires.
Facts material for the purpose of this appeal are: The appellant herein was a Police Constable attached to Khade bazar Police Station at Belgaum in 1960.
In the small hours of the morning of November 17, 1960, the Cantonment Police intercepted a tonga transporting smuggled illicit liquor in four tubes from Devi Temple to the cantonment area with the intention of disposing of the same to bootleggers.
After registering a case under section 66(b) of the Bombay Prohibition Act, the Cantonment P.S.I. proceeded against the tonga driver and another person who was found following the tonga, in a criminal court of competent jurisdiction and succeeded in securing their conviction for the aforesaid offence.
On November 18, 1960, the Cantonment P.S.I. submitted a confidential report about the incident to the Superintendent of Police, Belgaum, and brought to the notice of the latter 915 that some police constables including the appellant who were newly recruited and attached to different police stations in Belgaum were indulging in smuggling illicit liquor.
On receipt of this report, the Superintendent of Police directed the P.S.I. Khade bazar police station, to record the statements of three constables namely M. Y. Akki, Waman Mangesh, and Nishikant Shimaji Satyannawar.
Pursuant to these directions, the P.S.I. recorded the statements of the aforesaid police constables in the presence of the Superintendent of Police.
The statement of Nishikant and Akki, constables disclosed their own and six other police constables, complicity in the aforesaid smuggling activity.
The Superintendent of Police thereupon suspended the appellant and the other six constables and ordered the S.D.P.O. to hold a departmental enquiry against them.
The Superintendent of Police also transferred all the seven deliquents from Belgaum and directed that they would not leave their new stations without his permission except for purposes of or in connection with the department enquiry.
Though the appellant sought permission to stay at Belgaum during the period of his suspension, his request was refused.
As the appellant did not plead guilty to the charge framed against him, the Enquiry Officer proceeded to hold the enquiry against him in accordance with the rules contained in the Bombay Police Manual, 1950.
On the conclusion of the enquiry during the course of which a number of witnesses were examined both by the prosecution and the defence, the Enquiry Officer reported to the Superintendent of Police on November 10, 1961, that the charge against the appellant was not established.
He, however, recommended that the appellant should be administered a severe warning as he was convinced that he had been guilty of misconduct and dereliction of duty.
The Superintendent of Police did not agree with the findings of the Enquiry Officer and directed him to examine police constable Akki whose statement had been recorded before the charge was framed against the appellant.
Akki was accordingly examined but he resiled from his earlier statement.
The Enquiry Officer in the course of his second report dated November 30, 1961, submitted to the Superintendent of Police that no fresh evidence was forthcoming against the appellant.
He, however, stuck to his former recommendation regarding administration of severe warning to the appellant.
The Superintendent of Police again disagreed with the report of the Enquiry Officer and found that there was sufficient evidence against the appellant to prove his guilt.
Accordingly he issued a notice to the appellant on December 20, 1961, calling upon the latter to show cause why he should not be dismissed from service.
Not feeling satisfied with the explanation tendered by the appellant, the Superintendent of Police passed an order on February 9, 1962, dismissing the appellant from service.
Aggrieved by this order, the appellant went up in appeal to the D.I.G. of Police but was unsuccessful.
He also took the matter in revision to the Government but there also he failed.
Eventually he brought a suit in the Court of the IInd Additional Munsiff, Belgaum, challenging the aforesaid orders of his dismissal and claiming the arrears of his pay.
916 The principal contentions raised by the appellant were two fold: (1) That no reasonable opportunity was given to him to dedend himself and (2) that the Superintendent of Police was wrong in relying on the statements of the witnesses recorded before the charge was framed against him and in re assessing the evidence contrary to the conclusion arrived at by the Enquiry Officer who held that there was no evidence to substantiate the charge against him.
After a regular trial, the suit was dismissed by the Munsiff, Belgaum.
On appeal, the Civil Judge, Belgaum reversed the judgment of the Munsiff and decreed the suit.
Aggrieved by the decision of the Civil Judge, Belgaum, the State Government preferred an appeal to the High Court of Mysore which, as stated above, was allowed.
Counsel for the appellant has, while supporting the appeal, vehemently contended that the aforesaid judgment and decree of the High Court cannot be sustained as the appellant was deprived of a reasonable opportunity of defending himself during the course of the departmental enquiry.
Elaborating his submission, counsel has urged that as restrictions were placed on the movement of the appellant and he was not permitted to remain at Belgaum during the period of his suspension and evidence of some of the prosecution witnesses was recorded in his absence, there has been a gross violation of the provisions of Article 311 of the Constitution and the principles of natural justice.
Counsel has further contended that the impugned judgment and decree cannot also be sustained as there is no cogent and legal evidence to establish the charge against the appellant.
It is well settled that whether a delinquent had a reasonable opportunity of effectively defending himself is a question of fact depending upon the circumstances of each case and no hard and fast rule can be laid in that behalf.
In the instant case, the order restricting the movement of the appellant on which strong reliance has been placed on his behalf for assailing the impugned order of his dismissal was not such as can be said to have deprived him of a reasonable opportunity of making his defence.
The order, it would be noted, did not place any embargo on the appellant 's going to Belgaum for the purpose of and in connection with the departmental enquiry.
In fact the appellant fully participated in the enquiry held at that place.
He also made full use of the assistance of a police man (called police friend) provided to him to conduct the defence on his behalf.
The police friend appeared on his behalf before the Enquiry Officer and cross examined all the witnesses whom the prosecution examined or tendered for cross examination.
He was also furnished with copies of the statements of the three police constables recorded by the Cantonment P.S.I. and allowed an adequate opportunity of cross examining them.
There is also nothing to indicate that the appellant 's request for an opportunity to examine any witness in his defence was refused.
In fact, he did examine some witnesses in his defence.
In view of all this, it cannot be held that a reasonable opportunity of defending himself as contemplated by Article 311 of the Constitution was denied to the appellant.
917 Regarding the appellant 's contention that there was no cogent evidence to substantiate the charge against him, it may be observed that neither the High Court nor this Court can re examine and ressess the evidence adduced in domestic enquiries of the nature with which we are at present concerned.
Whether or not there is sufficient evidence against a delinquent to justify his dismissal from service is a matter on which this Court cannot embark.
It may also be observed that departmental proceedings do not stand on the same footing as criminal prosecutions in which high degree of proof is required.
It is true that in the instant case, reliance was placed by the Superintendent of Police on the earlier statements made by the three police constables including Akki from which they resiled but that did not vitiate the enquiry or the impugned order of dismissal, as departmental proceedings are not governed by strict rules of evidence as contained in the Evidence Act.
That apart, as already stated, copies of the statements made by these constables were furnished to the appellant and he cross examined all of them with the help of the police friend provided to him.
It is also significant that Akki admitted in the course of his statement that he did make the former statement before the P.S.I. Khade bazar police station, Belgaum, on November 21, 1961 (which revealed appellant 's complicity in the smuggling activity) but when asked to explain as to why he made that statement, he expressed his inability to do so.
The present case is, in our opinion, covered by a decision of this Court in State of Mysore vs Shivabsappa(1) where it was held as follows: "Domestic tribunals exercising quasi judicial functions are not courts and therefore, they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence.
They can, unlike courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedures which govern proceedings in court.
The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it.
What is a fair opportunity must depend on the facts and circumstances of each case, but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts.
In respect of taking the evidence in an enquiry before such tribunal, the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation.
When the evidence is oral, normally the explanation of the witness will in its entirety, take place before the party charged who will have full opportunity of cross examining him.
The position is the same when a witness is called, the statement given previously by him behind the back of the party is put 918 to him, and admitted in evidence, a copy thereof is given to the party and he is given an opportunity to cross examine him.
To require in that case that the contents of the previous statement should be repeated by the witness word by word and sentence by sentence, is to insist on bare technicalities and rules of natural justice are matters not of form but of substance.
They are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged and he is given an opportunity to cross examine them." Following the above decision, this Court held in State of U.P. vs Om Prakash(1) that the enquiry is not vitiated if the statements taken at the preliminary stage of enquiry are made available to the delinquent officer and he is given an opportunity to cross examine the witnesses in respect of those statements.
The decision of this Court in Ghanshyam Das Shrivastava vs State of Madhya Pradesh(2) on which strong reliance is placed is clearly distinguishable and is not at all helpful to the appellant.
In that case the appellant was deprived of the opportunity to defend himself by participating in the enquiry which was held at Jagdalpur, 500 kilometres away from Rewa where the appellant was residing on account of paucity of funds resulting from non payment of subsistence allowance during his suspension.
For the foregoing reasons, we do not find any force in the contention of counsel for the appellant that there was no evidence on the record which could justify the appellant 's dismissal from service.
Both the contentions raised on behalf of the appellant being without any substance, we find ourselves unable to interfere with the judgment and decree passed by the High Court.
The appeal accordingly fails and is dismissed but in the circumstances of the case without any order as to costs.
P.H.P. Appeal dismissed.
| IN-Abs | The appellant was a Police Constable.
Some persons were convicted for transporting smuggled illicit liquor under section 66(b) of the Bombay Prohibition Act.
The Police Sub Inspector submitted a Confidential report on that incident to the Superintendent of Police and pointed out that some Police Constables including the appellant were indulging in smuggling illicit liquor.
The Superintendent of Police directed the P.S.I. to record the statements of three constables, Akki, Waman and Nishikant.
The Police Sub Inspector, therefore, recorded the statements of those constables in the presence of the Superintendent of Police.
The statements of Akki and Nishikant disclosed their complicity as well as complicity of six other Police constables including the appellant D.S.P. ordered the S.D.P.O. to hold a departmental enquiry against them.
They were all transferred from Belgaum and directed not to leave their new station without the permission of the D.S.P. except for purposes of or in connection with departmental enquiry.
The appellant did not plead guilty.
The Enquiry Officer held enquiry.
A number of witnesses were examined both by the prosecution and the defence.
The Enquiry Officer made a report to the Superintendent of Police that the charge against the appellant was not established.
He, however, recommended that the appellant should be administered a severe warning since he was guilty of misconduct and dereliction of duty.
The Superintendent of Police did not agree with the finding of the Enquiry Officer and directed him to examine Police Constable Akki whose statement had been recorded before the enquiry was ordered against the appellant.
Akki was accordingly examined but he resiled from his earlier statement.
The Enquiry Officer again submitted a further report and struck to his former recommendation regarding administration of severe warning to the appellant.
The Superintendent of Police disagreed with the report of the Enquiry Officer and found that there was sufficient evidence against the appellant to prove his guilt.
Accordingly, he issued a notice to the appellant calling upon him to show cause why he should not be dismissed from service.
Not feeling satisfied with the explanation tendered by the appelant the Superintendent of Police passed an order dismissing the appellant from service.
An appeal filed to the D.I.G. was unsuccessful and so was a revision to the Government.
Thereafter, the appellant filed a suit challenging the order of dismissal and claiming arrears of pay.
The Trial Court dismissed the suit.
The Lower Appellate Court reversed the judgment of the Trial Court.
The High Court allowed the second appeal filed by the State.
In an appeal by Special Leave, the appellant contended: (1) The appellant was deprived of a reasonable opportunity of defending himself during the course of the departmental enquiry.
He was not permitted to remain at Belgaum during the period of his suspension.
Evidence of some of the prosecution witnesses was recorded in his absence.
(2) The impugned judgment and decree cannot be sustained as there is no cogent legal evidence to establish the charge against the appellant.
Dismissing the appeal, ^ HELD: (1) Whether a delinquent had a reasonable opportunity of effectively defending himself is a, question of fact depending on circumstances of each 914 case and no hard and fast rule can be laid in that behalf.
In the instant case, the order restricting his movement was not such as can be said to have deprived him of reasonable opportunity of making his defence.
The order did not place any embargo on the appellant going to Belgaum for the purpose of and in connection with the departmental enquiry.
In fact, the appellant fully participated in the enquiry held at that place.
He also made full use of the assistance of a policeman called Police friend, Provided to him to conduct the defence on his behalf.
He was furnished with the statements recorded of the 3 constables before the enquiry was ordered.
The witnesses examined by the prosecution were tendered for cross examination.
It, therefore, cannot be held that a reasonable opportunity as contemplated by Article 311 of the Constitution was denied to the appellant.
[916 D G] (2) Neither the High Court nor this Court can re examine and reassess the evidence in domestic enquiries of the instant nature.
Whether or not there is sufficient evidence agaiast a delinquent to justify his dismissal from service is a matter on which this Court cannot embark.
The departmental proceedings do not stand on the same footing as criminal proceedings in which high degree of proof is required.
The departmental proceedings are not covered by strict rules of evidence as contained in the Evidence Act.
A copy of the statement made by Akki earlier was furnished to the appellant and he examined all the 3 constables including Akki who made statements before the enquiry was ordered.
[916 H, 917 A C] State of Mysore vs Shivasappa, ; ; ; ; State of U.P. vs Om Prakash, A.I.R. followed; Ghanshyam Das Shrivastava vs State of Madhya Pradesh, A.I.R. 1973 S.C. 1183 distinguished.
|
minal Appeal No. 20 of 1954.
Appeal from the Judgment and Order dated the 26th August, 1953, of the Bombay High Court in Criminal Revision Application No. 51 8 of 1953 arising out of the Judgment and Order dated the 9th December, 1952, of the Court of Presidency Magistrate, Bombay, in Case No. 3442/P of 1952.
section P. Verma, for the appellant.
M. C. Setalvad, Attorney General for India (Porus A. Mehta and P. G. Gokhale, with him), for the respondent.
97 1955.
March 25.
The following Judgments were delivered.
DAS J.
The appellant before us was on the 9th December, 1952 convicted by the Presidency Magistrate, 13th Court, Bombay, of an offence under section 66(b) of the Bombay Prohibition Act (Act XXV of 1949) and sentenced to undergo imprisonment till the rising of the Court and to pay a fine of Rs. 250 or to undergo rigorous imprisonment for one month.
The appellant preferred an appeal to the High Court of Judicature at Bombay but his appeal was summarily dismissed by a Bench of that Court on the 19th January 1953.
After the dismissal of that appeal the State of Bombay made a Criminal Revision application to the High Court for enhancement of the sentence.
Notice having been issued to the appellant under section 439(2) of the Code of Criminal Procedure, learned counsel for the appellant claimed the appellant 's right under section 439(6) to show cause against his conviction.
This the High Court did not permit him to do.
The High Court, however, did not think fit to make any order for enhancement of sentence.
On an application made on behalf of the appellant the High Court of Bombay has given leave to the appellant to appeal to this Court and granted a certificate of fitness under article 134(1) (c) of the Constitution of India.
The question for our consideration in this appeal is whether the summary dismissal of the appeal preferred by the appellant precluded him from taking advantage of the provisions of section 439(6) of the Code of Criminal Procedure when he was subsequently called upon to show cause why the sentence imposed upon him should not be enhanced.
The question depends for its answer upon a true construction of section 439.
That section, so far as it is material for our present purpose, reads as follows: "439.
(1) In the case of any proceeding the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, in its discre 13 98 tion, exercise any of the powers conferred on a Court of Appeal by sections 423, 426) 427 and 428 or on a Court by section 338, and may enhance the sentence; and when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 429.
(2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence.
(3). . . . . . . . . . . . . (4). . . . . . . . . . . . . (5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.
(6)Notwithstanding anything contained in this section,any convicted person to whom an opportunity has been given under sub section (2) of showing cause why his sentence should not be enhanced shall, in showing cause, be entitled also to show cause against his conviction".
For a correct appreciation of the real meaning, import and scope of the provisions of sub section (6) of section 439 it will be necessary to bear in mind its historical background.
In England there is no provision for an appeal by the Crown either against an order of acquittal or for the enhancement of sentence.
There the person convicted has a right of appeal both against his conviction and the sentence imposed upon him.
Under the English criminal procedure, therefore, the question of enhancement of sentence only comes before the Court of Criminal Appeal when there is an appeal by the convicted accused.
In this country the provisions relating to the Court 's power of enhancement of sentence have undergone radical changes from time to time.
Section 407 of the Code of Criminal Procedure, 1861 prohibited any appeal from acquittal.
Express power was given to the appellate Court to reduce the sentence (sections 425 and 426) and like power was given to the Sudder Court as a Court of revision (sections 405 and 406).
I find no provision 99 in that Code authorising the Sudder Court to enhance the sentence.
The Code of Criminal Procedure of 1872, however, by section 272 permitted the Government to file an appeal from acquittal.
This was repeated in section 417 of the Code of 1882 which corresponds to section 417 of the present Code.
Section 280 of the Code of 1872 expressly authorised all appellate Courts to enhance the sentence.
This power of enhancement, however, was taken away from the appellate Courts by section 423 of the Code of 1882 now reproduced in section 423 of the present Code and was vested in the High Court under section 439 of the Code of 1882 to be applied in exercise of its revisional power.
This has been continued in our present section 439.
This shows that the Legislature thought that this extraordinary power should be exercised only by the High Court and no other Court.
A practice, how ever, appears to have grown up that in cases coming up before it for enhancement of sentence the High Court accepted the conviction as conclusive and proceeded to consider the question of enhancement of sentence on that basis.
(See Emperor vs Chinto Bhairava (1)).
Then came Act XVIII of 1923 which, by section 119, amended section 439 by adding the present sub section (6) and also amended section 369 by substituting the words "save as otherwise provided by this Code or by any other law for the time being in force, or, in the case of a High Court established by Royal Charter, by the Letters Patent of such High Court, no Court" for the words "No Court other than a High Court" with which the section formerly opened.
The results of these amendments were (i) to make the judgment or order of the High Court passed in exercise of its original criminal jurisdiction final which it was not under section 369 as it originally stood and to make this finality subject to the other provisions of the Code or of the Letters Patent of the High Court and (ii) to nullify the practice referred to above and to give a statutory right to an accused person who was threatened with the risk of having the sentence imposed on him by the trial Court or the lower appel (1) Bom.
100 late Court enhanced by the High Court in exercise of its revisional jurisdiction suo motu or at the instance of the State or in exceptional cases even of any other interested person.
Sub section (6), therefore, confers a new and a very valuable right on the subject which is designed to be a safeguard against the State or other interested person making frivolous revision application for enhancement of sentence.
The State or the person interested must, if they ask for an enhancement of sentence, be prepared to face the risk of the accused being altogether acquitted.
It is the price or quid pro quo which the State or other interested person must be prepared to pay for the right or privilege of making an application for enhancement of sentence.
The language used in sub section (6) does not, in terms, place any fetter on the right conferred by it on the accused.
This new right is not expressed to be conditioned or controlled by anything that may have happened prior to the revision application under sub section (1) for enhancement of sentence.
The section quite clearly says that whenever there is an application for enhancement of sentence a notice must issue under sub section (2) to the accused person to show cause and whenever such notice is issued the accused person must, under sub section (6), be given an opportunity, in showing cause against enhancement, also to show cause against his conviction.
The sub section does not say that he will have this right to show cause against his conviction only if he has not already done so.
If the accused person appealed against his conviction and sentence to an appellate Court not being a High Court and lost that appeal after a full hearing in the presence of his opponent it must be conceded that he has had an opportunity to show cause against his conviction but nobody will contend that that circumstance will prevent him from having another opportunity of showing cause against his conviction and sentence either by a substantive application initiated by himself under sub section (1) or by way of defending himself when the State or other interested person applies to the High Court in revision under section 439(1) for enhancement of 101 sentence and a notice is issued on him under section 439(2).
(See Kala vs Emperor(1)).
Enhancement of sentence is undoubtedly an encroachment upon the liberty of the subject and a very serious matter for an accused person and the Legislature may quite properly have thought that whenever an accused person is sought to be laid open to the risk of having his sentence enhanced, the question of the legality and propriety of his conviction should be reexamined by the High Court in the context of this new jeopardy, irrespective of anything that might have happened prior to the application for enhancement of sentence and the issuing of the notice on the accused to show cause.
Indeed, there is, in sub section (6) itself, an indication in that behalf.
This sub section is to operate "notwithstanding anything contained in this section".
In some of the decisions (e.g. Emperor vs Jorabhai(2), Crown vs Dhanna Lal(3), Emperor vs Inderchand(4) and King vs Nga Ba Saing(5)) it has been said that the non obstante clause refers only to sub section (5).
I find it difficult to accept this limited construction as correct.
Sub section (5) only says that where an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.
The idea is that if a person has a right of appeal he must first pursue that remedy.
In other words, sub section (5) is a disabling provision.
By providing that no proceedings by way of revision shall be entertained at the instance of a person who, having a right of appeal, does not avail himself of it, the sub section precludes such a person from initiating proceedings by way of revision.
When the accused person under sub section (6) shows cause against his conviction he himself initiates no proceedings but only exercises the right to show cause against his conviction which is given to him because somebody else has taken proceedings against him for enhance ment and a notice has been issued on him under subsection (2).
In such a situation the accused person (1) A.I.R. 1929 Lah. 584.
(2) Bom.
(3) Lah.
(4) A.I.R. 1934 Bom.
(5) A.I.R. 1939 Rang.
392, 102 is on the defensive and the act of showing cause against proceedings initiated against him cannot properly be said to be, proceedings "at his instance" which the High Court, by sub section (5), is enjoined not to entertain.
Strictly speaking sub section (6) needs no exemption from sub section (5).
In any event and assuming that the act of showing cause against his conviction under sub section (6) is tanta mount to an application in revision initiated by him and such application is saved from the operation of sub section (5) by the non obstante clause of sub section (6) 1 do not see any reason for holding that the non obstante clause of sub section (6) is concerned only with sub section (5).
Although in showing cause against his conviction under sub section (6) the accused person can urge all that he could do in an appeal, if not more, this act of showing cause is, nevertheless, in form at least, a continuation and indeed an integral part of the proceedings in revision initiated by the Court suo motu or by the State or any other interested party.
The general rule is that the exercise of revisional power is entirely a matter of discretion which is to be exercised by the High Court not capriciously but on sound judicial principles.
Indeed, sub section (1) itself lays stress on this aspect of the matter by the use therein of the words "in its discretion".
The non obstante clause may well have been designed to emphasise that the new right conferred by sub section (6) is a matter of right and does not rest entirely on mere discretion of the Court.
Further the non obstante clause has a special significance even in a case where the accused person has already had an opportunity, by means of an appeal or revision filed by him in the High Court, to show cause against his conviction.
Under sub section (1) there can be a revision only of the judgment or order of Criminal Courts inferior to the High Court and it does not sanction any revision of the judgment or order of the High Court itself.
Therefore, where the accused person has unsuccessfully challenged the legality or propriety of his conviction in an appeal or revision application made by him before the High 103 Court he cannot again initiate a substantive application before the High Court under section 439(1) of the Code to re examine his conviction or sentence, for that will be to ask the Court to revise its own previous judgment or order, which the High Court cannot do under section 439(1).
But suppose that the dismissal of the appeal or revision application made by the accused takes place in such circumstances that it still leaves it open to the State or other interested person to apply in revision for enhancement of the sentence and proceedings are initiated by the Court or the State for enhancement of sentence under section 439(1) and notice is issued on the accused under section 439(2), there is nothing in subsection (6) which, in terms, prevents the accused, in that situation, to again show cause against his conviction and sentence.
The only argument that may, in those circumstances, be advanced with some semblance of plausibility is that to let the accused person to again challenge his conviction or sentence under sub section (6) is to cut across the provisions of sub section (1) and in effect to permit the accused to ask the High Court to revise its previous order, although no substantive application could be initiated by him under sub section (I).
It may well be that the non obstante clause in sub section (6) was also designed to negative such an argument.
Although ordinarily no substantive application can be initiated by an accused person, whose appeal or revision application has once been dismissed by the High Court.
for revision or review of that order of dismissal, I can find no difficulty in construing and reading section 439(6) as giving to the accused person, who is faced with the risk of having his sentence enhanced, a second opportunity to do what he had previously failed to do.
In other words, I see no incongruity in the Legislature giving a new right of revision to the accused person as a weapon of defence in the context of a new offensive taken by the State against him.
Even if the act of showing cause under sub section (6) is to be regarded as a revision, there was nothing to prevent the Legislature, in the interest of the liberty of the 104 subject, to provide for a limited right of revision of the judgment or decision or order of the High Court itself.
In my judgment that is what the Legislature has done by adding sub section (6) to section 439 and the non obstante clause is intended to meet and repel the objection that may possibly have been taken on the score that, under sub section (1), there can be no revision by the High Court of its own order.
In my opinion, so long as proceedings may be taken against the accused person for enhancement of his sentence and so long as notice may be issued on him to show cause against enhancement, so long must he have, in showing cause against enhancement of sentence, the right, under sub section (6), to show cause against his conviction, irrespective of anything that may have happened previously.
That is how I read the sub section.
Indeed, in Emperor vs Mangal Naran(1) McLeod, C. J., went further and expressed the view that if, after an appeal had been heard on its merits and dismissed, a notice to enhance sentence was issued, the accused would still have the right to show cause against his conviction although any attempt to set aside his conviction would not have much chance of success.
For reasons to be stated hereafter I would rather say that in such a situation no application for enhancement would lie at all and that consequently no question would arise of the accused person exercising his right under sub section (6).
This aspect of the matter that I am trying to indicate and emphasise does not appear to have been sufficiently adverted to in the subsequent decisions of the different High Courts in India except in one decision of a Full Bench of the Lahore High Court.
It will be convenient at this stage to refer to those decisions.
In Emperor vs Jorabhai (supra) the accused person was convicted by the Sessions Judge.
He preferred an appeal to the High Court and a Bench of the High Court dismissed the appeal on merits after full hearing of both sides after notice of appeal had been served on the State.
After the delivery of the judgment an oral application was made to the Bench by (1) Bom.
105 the Government pleader for the enhancement of the sentence.
Notice was issued to the accused under section 439(2) of the Code.
The accused claimed the right, under sub section (6) to challenge his conviction.
It was held by Fawcett and Madgavkar, JJ., that section 439(6) did not justify what would be tantamount to a rehearing of the appeal on merits.
In the case of Ramlakhan Chaudhury vs Emperor(1) the accused 's appeal had been previously dismissed after a full hearing and following the decision in Emperor vs Jorabhai (supra) it was held that the accused could not, under section 439(6), challenge the correctness of his conviction for the second time while showing cause against enhancement of sentence.
The same principle has been extended to cases where the appeal of the accused person had been previously dismissed by the High Court summarily but after hearing the accused or his advocate.
(See Emperor vs Batubai(2), Emperor vs Haji Khanhamoo(3), King vs Nga Ba Saing (supra), Emperor vs Naubat(4) ), to cases where the jail appeal of the accused had previously been dismissed summarily without hearing the accused or his advocate (see Emperor vs Koya Partab(5), Emperor vs Abdul Qayum(6), Ramchand vs Hiralal(7) and State vs Bhavani Shankar(8)) and to cases of dismissal of revision petition filed by the accused after hearing the advocate (see In re Saiyed Anif Sahib(1), Emperor vs Sher Singh("), Crown vs Dhanna Lal (supra) ) and also to the case of an accused whose revision petition has been summarily dismissed (see Emperor vs Inderchand (supra)).
It has been held that for the purposes of section 439(6) it makes no difference whether the judgment or order of dismissal was made by the High Court in appeal or in revision, or whether the appeal or revision was dismissed summarily or after a full hearing on notice to the State or other interested party and that any dismissal of the appeal or (1) Pat. 872.(6) A.I.R. 1933 All. 485.
(2) A.I.R. 1927 Bom.
666.(7) A.I.R. 1942 All. 339.
(3) A.I.R. 1936 Sind 233.(8) I.L.R. (4) I.L.R [1945] All. 527.
(9) A.I.A. (5) Bom.
822.(10) Lah.
521, 14 106 revision prevents the accused person from availing himself of the benefit of section 439(6).
In two cases Emperor vs Lukman(1) and Emperor vs Shidoo(2) the Sind Court took up an intermediate position that the accused person whose appeal had been dismissed summarily or after full hearing could not challenge his conviction for the second time except to the extent that the conviction was not founded on legal evidence or was manifestly erroneous.
In other words, lie could only go up to what was ordinarily permitted in a revision.
These two decisions appear to me, with respect,to be illogical and I need say no more about them.
In the other cases noted above it has been quite definitely held that the accused person whose appeal or revision application has been previously dismissed, summarily or after a full hearing, is not entitled, when called upon to show cause why the sentence should not be enhanced, to question the correctness of his conviction for the second time.
In other words, the previous dismissal, according to these decisions.
, is an adjudication by the High Court of the correctness of his conviction and on the principle of finality of judgment embodied in sections 369 and 430 of the Code of Criminal Procedure that adjudication cannot be called in question under section 439(6).
It has been pointed out in several cases (Crown vs Dhanna Lal (supra), Emperor vs Inderchand (supra) and King vs Nga Ba Saing (supra)) that subsection (6) opens with the words "notwithstanding anything contained in this section" and not with the words "notwithstanding anything contained in this Code" and from this the inference has been drawn that while the sub section is to operate notwithstanding the provisions of sub section (5) it cannot override the other provisions of the Code, and, therefore, the operation of sub section (6) is conditioned or control led by the principle of finality of judgment embodied in section 369 and section 430.
Some learned Judges have expressed the view (see In re Saiyed Anif Sahib (supra), Crown vs Dhanna Lal (supra)) that the words ( 'unless he has already done so" are to be read in sec (1) A.I.R. 1927 Sind 39.
(2) A.I.R. 1929 Sind 26.
107 tion 439(6), for this is to be implied from the presumption of finality.
In some cases (see Emperor vs Sher Singh (supra) and Ram Lakhan vs Emperor (supra)) the decision has been placed also oil the ground of the inherent incapacity of one Judge of the High Court to reconsider the decision of another Judge of that Court.
It is necessary to examine these grounds a little closely to ascertain their validity.
In order to appreciate the true meaning and exact scope of sections 369 and 430 on which the argument of finality of judgment is founded it is necessary to keep in view the general scheme of the Code.
Part VI of the Code deals with "Proceedings in Prosecutions".
Chapter XV lays down the jurisdiction of the Criminal Courts in Inquiries and Trials.
I pass over Chapters XVI to XVIII.
Chapter XIX prescribes rules for the framing and joinder of charges.
Chapters XX to XXIII deal with different kinds of trials, e.g., trial of summons cases, warrant cases, summary trials and trials before High Courts and Courts of Session.
Chapter XXIV contains general provisions as to Inquiries and Trials.
Mode of taking and recording evidence is prescribed by the sections grouped together in Chapter XXV.
then comes Chapter XXVI which is headed "Of the Judgment".
Section 369 is one of the sections included in this chapter.
Chapter XXVII provides for the submission of death sentences for the confirmation of the High Court.
Rules relating to the execution, suspension, remission and commutations of the sentences are to be found in Chapters XXVIII and XXIX.
Part VI ends with Chapter XXX which is not material for our present purpose.
Part VII deals with "Appeal, Reference and Revision".
Chapter XXXI is concerned with Appeals and we find section 430 in this chapter.
Chapter XXXII provides for reference and revision, section 439 being one of the sections included in this chapter.
In view of the scheme summarised above there can be no manner of doubt that the provisions of the sections collected in Chapter XXVI are concerned with judgments pronounced by the trial Court.
This conclusion is certainly reinforced by the language of some 108 of these sections.
Thus section 366 which is the very first section in this chapter refers to "The judgment in every trial in any Criminal Court of original jurisdiction".
Section 367 provides what must be contained in "every such judgment", that is to say judgment in an original trial.
Section 369 runs as follows: "369.
Court not to alter Judgment.
Save as otherwise provided by this Code or by any other law for the time being in force or, "in the case of a High Court by the Letters Patent or other instrument constituting such High Court", no Court, when it has signed its judgment, shall alter or review the same, except to correct a clerical error".
The opening words "save as otherwise provided by this Code. . constituting such High Court" were added by section 119 of the Amending Act XVIII of 1923 and were further adapted by Adaptation of Laws Order, 1950.
There can be no question that the finality embodied in this section is only in relation to the Court which pronounces the judgment, for it forbids the Court, after it has signed its judgment, to alter or review the same.
In other words, after pronouncing the judgment the Court that pronounces it becomes functus officio.
There is indication in the Code itself that the purpose of section 369 is not to prescribe a general rule of finality of all judgments of all Criminal Courts but is only to prescribe finality for the judgment of the trial Court so far as the trial Court is concerned.
That this section does not,.
by itself, apply to the judgment of an appellate Court is quite obvious, because if it did, there would have been no necessity for enacting section 424 specifically making the rules contained in Chapter XXVI, which includes section 369, applicable to the judgment of any appellate Court other than High Court, nor for again prescribing by section 430 a rule of finality for judgments and orders passed by an appellate Court.
It, therefore, follows that while, subject to the other provi sions of the Code or any other law and of the Letters Patent, the finality of section 369 attaches to the judgments pronounced by all trial Courts including the High Court in the exercise of its original criminal 109 jurisdiction it certainly has no bearing on the question of finality of appellate judgments which is specifically provided by section 430 of the Code.
Again, the rule of finality embodied in section 369 cannot, in terms, apply to the orders made by the High Court in exercise of its revisional jurisdiction, for section 442 of the Code which requires the result of the revision proceedings to be certified to the Court by which the finding, sentence or order revised was recorded or passed refers to it as its "decision or order" and not "judgment".
It is significant that section 425 which requires the result of appeal to be certified to the lower Court refers to it as its "judgment or order".
All these considerations herein alluded to quite clearly establish that section 369 cannot in any manner con trol section 439(6).
In any case, section 369 is "subject to the other provisions of the Code" and I see no reason why section 439(6) should not be regarded as one of such other provisions.
It cannot be overlooked that the words "subject to the other provisions of the Code, etc." were introduced into section 369 at the same time as sub section (6) was added to section 439.
As I read the new sub section, it is a substantive statutory right conferred on the subject and full effect should be given to it unless there is any in superable difficulty in the way of doing so.
If section 369 were susceptible of as wide a meaning as is read into it,, namely, that it applies to all judgments of all Courts, original, appellate or revisional, I would, in that case, bold that that meaning must be taken as cut down, by reason of the words "subject to the other provisions of the Code, etc.
" by the mandatory provision& of section 439(6).
In other words, section 439(6) must be read as controlling section 369 rather than the other way about.
Finally, section 369 being subject to the other provisions of the Code must be read as subject to section 430 and as the finality enshrined in the latter section does not attach to decisions or orders made in revision by reason of Chapter XXXII being expressly excepted from its operation, the rule of finality embodied in section 369, even if it be as wide as it is contended to be, 110 cannot affect cases provided for in Chapter XXXII.
I now pass on to section 430 which is also relied on as furnishing a principle of finality which is supposed to control the operation of section 439 6).
Section 430, in terms, applies to "judgments and orders" passed by an appellate Court.
It has no application to "decisions or orders" made by the High Court in revision.
It has been contended that the exception made in section 430 in respect of cases provided for in Chapter XXXII only exempts the judgments or orders of an appellate Court other than a High Court from the rule of finality embodied in section 430, because they are made revisable by the High Court under section 439(1).
Section 439(1) does not contemplate or permit judgments or orders made by the High Court in exercise of its original or appellate criminal jurisdiction to be revised by the High Court.
As, therefore, the appellate judgments or orders of the High Court cannot, under section 439(1), be made the subject matter of any revision application, such appellate judgments or orders did not fall within the exception made in section 430 and were accordingly left subject to the rule of finality embodied therein.
Two answers occur to me.
If the effect of the new subsection (6), as I have already explained, is to confer a new right on an accused person notwithstanding anything contained in section 439(1), that is to say, if sub section (6) is read, as I think it should be, as a statutory provision expressly making the judgment or decision or order of the High Court passed in exercise of its appellate or revisional jurisdiction subject, for the purpose of the protection of an accused person whose appeal or revision had been previously dismissed, to re examination by the High Court only as and when he is subsequently faced with an application for enhancement of sentence, then such judgment, decision or order of the High Court does, as a result of section 439(6), become the subject matter of a case provided for in Chapter XXXII of the Code.
In other words, the scope of Chapter XXXII having been enlarged by the addition of sub section (6) to section 439, the scope of the exception to sec 111 tion 430 must also stand enlarged so as to include within the exception whatever, after the amendment of section 439, may come within Chapter XXXII and, therefore, cases now coming within that Chapter must stand free from the rule finality embodied in section 430.
The other answer is to be found in two of the decisions of the Allahabad High Court, namely Emperor vs Abdul Qayum (supra) and Ram Chand Hiralal(1) where it has been field that section 430 by V. its own terms saves the revisional power of the High Court to enhance the sentence.
In each of these cases the jail appeal filed by the accused had been dismissed by the High Court summarily.
If the rule of finality of appellate judgments does not attach to the summary dismissal of the jail appeal by the High Court so as to prevent the State from invoking its revisional power to enhance the sentence, surely the accused 's right to show cause against his conviction under section 439 (6), which is consequential and arises only upon a rule for enhancement being issued under section 439(2) and is, therefore, a part of the revisional proceedings for enhancement of sentence, must, on a parity of reasoning be also free from the same principle of finality.
It, therefore, follows that section 434(6) is not, in terms, controlled by section 369 or section 430.
Whether the sub section is controlled by the general principle of finality of judgments and if so to what extent are different questions which will be discussed later.
The second ground on which some of the decisions rest, namely, the inherent incapacity of one Judge of the High Court to reconsider the decision of another Judge of the High Court may easily be disposed of The theory of inherent incapacity must give way to the statutory capacity conferred by section 439(6).
If on a true construction a statute states, expressly or by necessary intendment, that one Judge or one Bench shall have jurisdiction and power to decide something, the theory of inherent incapacity of such Judge or Bench cannot be invoked to prevent the exercise of such jurisdiction and power merely on (1) A.I.R. 1942 All.
112 the ground that the decision which may be arrived at in exercise of this new jurisdiction or power may run counter to the previous decision arrived at by another Judge or Bench in exercise of another jurisdiction or power.
I see no reason why section 439(6) may not be read as a provision which, by necessary implication, enables the High Court to re examine its own previous order on the happening of certain contingencies, namely, upon the accused person, whose appeal or revision has been dismissed, being faced with the risk of having his sentence enhanced and a notice being issued to him for enhancement.
To reinforce the argument that section 439(6) is controlled by sections 369 and 430 reference has been made to section 423(2) and it has been contended, on the authority of various decisions, that the right given by section 439(6) is not absolute but is controlled by the provisions of section 423(2) which lay down some limitations in the matter of appeal from convictions in a jury trial.
Even on that topic some learned Judges have taken divergent views.
It is not necessary, on this occasion, to express any opinion on that question and I reserve my right to examine the position as and when an occasion may arise in future.
Even if section 439(6) is controlled by section 423(2), that circumstance certainly does not indicate when and under what circumstances the right under section 439(6) may be availed of.
In any case, that consideration has no bearing on the argument of finality of judgments sought to be founded on sections 369 and 430.
It will be convenient at this stage to refer to the decision of a Full Bench of the Lahore High Court in Emperor vs Atta Mohammad(1) and to deal with the argument founded on and developed from some of the reasonings adopted by the learned Judges constituting that Full Bench.
In that case the revision application of the accused had been dismissed in limine by the High Court.
Subsequently the Crown applied for enhancement of sentence.
Notice having been issued under sub section (2) of section 439 the accused (1) Lah.
113 person claimed the right, under sub section(6), to show cause against his conviction in spite of the fact that his revision application had been dismissed.
The Advocate for the Crown relied on the cases referred to above and contended that the order of dismissal of the revision application by the High Court was final as regards the correctness of the conviction, that that order could not again be revised by the High Court, that the accused was no longer entitled to challenge his conviction and that it made no difference that his revision petition had been dismissed in limine.
The Full Bench overruled the earlier decision of the Court in Crown vs Dhanna Lal (supra) and held that the accused was, in the circumstances of the case, entitled to show cause against his conviction, notwithstanding the fact that his application for revision had been dismissed in limine.
The reasoning adopted by Blacker, J., was shortly as follows: That an order dismissing a revision petition in limine is an order made under section 435 and not under section 439; that such an order is not a judgment and, therefore, the principle of finality embodied in section 369 does not apply to such an order, because such a dismissal only meant that the Judge saw no adequate grounds disclosed in the petition or on the face of the judgment for proceeding any further; that, in the picturesque language of the learned Judge, in such a dismissal "there is no finding or decision unless it can be called a decision to decide to come to no decision"; that the jurisdiction exercised by the Court under section 439(6) was appellate jurisdiction and that an order of acquittal thereunder did not amount to a review of an order of dismissal under section 435; and finally that if the order under section 435 was a judgment or if an order of acquittal under section 439(6) was a review of such judgment, such review was not barred by section 369, because of the saving provisions with which the section begins.
Mahajan, J., as he then was, put in the forefront of his judgment the view that section 439(6) which was introduced by amendment in 1923 gave a new and unlimited right 15 114 to the subject; that the Judge hearing the application for enhancement was bound to go into the facts to satisfy himself as to the correctness of the conviction; that the exercise of revisional jurisdiction was a mere matter of favour and a dismissal in limine of such application amounted only to a refusal to look into the record and was in no sense a judgment.
Ram Lall, J., did not deliver any separate judgment but concurred generally with the other learned Judges.
It will be noticed that this decision of the Lahore High Court rests mainly on two grounds, namely, (1) that in a dismissal of a revision application in limine there is no finding or decision at all and that it is nothing more than a refusal to send for the records or to look into the matter and is, therefore, not a judgment.
, and (2) that, in any case, section 439(6) gives a new statutory right to the accused person to challenge the legality or propriety of his conviction, although his previous application for revision of the order of the lower Court had been dismissed in limine and that such a review of that dismissal order is not barred by section 369 because of the saving provision at the beginning of that section.
The Full Bench expressly declined to express any opinion as to the effect of dismissal of an appeal on the right given by sub section (6).
The principle of the first ground of the Lahore Full Bench decision has, however, been extended by the Rajasthan High Court in ' The State vs Bhawani Shankar (supra) to a case where the respondent 's jail appeal had been summarily dismissed.
According to Wanchoo, C.J., the accused, whose jail appeal had been dismissed summarily, was in the same position as the accused, whose revision petition had been dismissed in limine, for he too could not be said to have had an opportunity of showing cause against his conviction.
The learned Chief Justice, however, did not desire to go further and expressed the view that if an appeal were dismissed summarily but after hearing the party or his pleader the accused could not claim to have a second opportunity to challenge his conviction under section 439(6), because in that case he had been heard and, therefore, had had an oppor 115 tunity to show cause against his conviction when his appeal had been summarily dismissed.
It will be recalled that in Emperor vs Jorabhai supra) and the other cases which followed it it was said that for the purposes of determining the applicability of section 439(6) it made no difference in principle whether the proceeding filed by the accused which had been dismissed was an appeal or a revision or whether the dismissal was summary or after a full hearing and that in none of such cases could the accused person claim a second opportunity to question the legality or propriety of his Conviction when he was subsequently called upon to show cause why the sentence passed on him should not be enhanced.
In the Lahore Full Bench case and the Rajasthan case referred to above a distinction has, however, been made between a summary dismissal and a dismissal after a full hearing of the appeal or revision filed by the accused.
In my judgment there is a substantial distinction between these two kinds of dis missals as regards their effect on the rights of accused persons as I shall presently indicate.
I am, however, unable to accept the argument adopted by the Lahore Full Bench that a summary dismissal of a revision application filed by the accused must be regarded as an order made under section 435 and not one under section 439, that such a summary dismissal is nothing more than a refusal on the part of the High Court to go further or to look into the application and that in such a dismissal there is no finding or decision at all.
Far less am I able to accede to the proposition that a summary dismissal of a jail appeal also stands on the same footing.
Sections 421, 435 and 439 undoubtedly vest a very wide discretion in the Court.
Discretion, as Lord Halsbury, L.C., said, in Sharp vs Wakefield(1), means sound discretion guided by law.
It must be governed by rules of reason and justice and not according to private opinion; according to law and not by humour or caprice.
It must not be arbitrary, vague and fanciful but must be legal and regular.
This discretion is given to the (1) at p. 179.
116 High Court for the purpose of dealing with and disposing of the proceeding brought before it and not for not deciding it.
The primary and paramount duty of the Court is to decide the appeal or revision and it is to exercise its discretion in so deciding it.
In deciding the appeal or revision the High Court may choose which of its powers it will exercise if the circumstances of the case call for such exercise.
In a clear case, apparent on the grounds of appeal or revision or on the face of the judgment appealed from or sought to be revised it may come to the conclusion that the case has no merit and does not call for the exercise of any of its powers in which case it may dismiss it summarily.
If, however, it has any doubt, it may call for the record or may admit it and issue notice to the respondent and decide it after a full hearing in the presence of all parties.
But decide it must at one stage or the other.
The discretion conferred on the High Court does not authorise it to say that it will not look at the appeal or the revision.
The court 's bounden duty is to look into the appeal or revision and decide it, although in the process of arriving at its decision it has very wide discretion.
When the Court summarily dismisses an appeal whether without hearing the accused or his pleader as in the case of a jail appeal or after hearing the accused or his pleader but before issuing any notice to the respondent as in an appeal presented by the accused or his pleader, the Court does decide the appeal.
It is indeed a very serious thing to say that sections 421, 435 or 439 give the Court a discretion not to decide the appeal or revision brought before it and I, for one, am not prepared to countenance and much less encourage such an idea.
In my judgment a summary dismissal of an appeal or revision does involve an ad judication by the High Court just as a dismissal after a full hearing does.
The only difference, as we shall presently see, is as to the respective, nature, scope and effect of the two adjudications.
It has been said that when an appeal or revision is dismissed after a full hearing by the High Court the judgment of the lower Court merges in the High Court 117 judgment and the High Court judgment replaces the judgment of the lower Court and becomes the only operative judgment but that when the appeal or revision is summarily dismissed by the High Court there is, in such a dismissal, no finding or decision which can replace the judgment of the lower Court.
it is, therefore, said that there can be no showing cause against his conviction under sub section (6) in the first case, for it will involve a revision of the High Court 's decision but the position will be otherwise in the second case where the dismissal was summary.
This argument appears to me to be untenable and fallacious.
Section 425 of the Code requires that whenever a case is decided on appeal by the High Court under Chapter XXXI it must certify its judgment or order to the Court by which the finding, sentence or order appealed against was recorded or passed and that that Court shall thereupon make such orders as are conformable to the judgment or order of the High Court and that,, if necessary, the record shall be amended in accordance therewith.
Likewise, section 442 requires that when a case is revised under Chapter XXXII by the High Court, it shall, in the manner provided by section 425, certify its decision or order to the Court by which the finding, sentence or order revised was recorded or passed and that that Court shall thereupon make such orders as are conformable to the decision so certified and that, if necessary, the record shall be amended in accordance therewith.
This certificate is sent in every case, whether the appeal or revision is disposed of summarily or after a full hearing.
Where an appeal or revision is disposed of after a full hearing on notice to the respondent and allowed wholly or in part it becomes ex facie obvious that the judgment appealed against or sought to be revised has been altered by the judgment or decision of the High Court on appeal or revision and a note is made in the record of this alteration.
But when an appeal or revision is dismissed after full hearing and the sentence is maintained there is outwardly no change in the record when the certificate is sent by the High Court but nevertheless there is an adjudica 118 tion by the High Court.
In the first case it is judgment of acquittal or reduction of sentence and in the second case it is a judgment of conviction.
Likewise, when an appeal or revision is summarily dismissed, such dismissal maintains the judgment or order of the lower Court and a note is made of such dismissal in the record and in the eye of the law it is the judgment of the High Court that prevails.
To the uninstructed mind the change may be more easily noticeable in the first case than in the other two cases but on principle there is no difference.
I can see no reason for holding that there is a merger or replacement of judgment only in the first two cases and not in the last one.
In my opinion, it makes no difference whether the dismissal is summary or otherwise, and there is a judgment of the High Court in all the three cases.
It is, at once urged that if the summary dismissal of an appeal or revision is also a judgment then the rule of finality prescribed by sections 369 and 430 will at once apply to it and a cunning accused may by putting up an obviously untenable appeal or revision and procuring an order of summary dismissal of it, prevent the State or any other interested party from making an application for enhancement of the sentence.
The apprehension, to my mind, is unfounded for reasons more than one.
When an appeal or revision is filed by an accused person he sets out his grounds in detail, challenging both his conviction and sentence.
From the very nature of things he does not raise any question of enhancement of the sentence.
At that stage no notice or rule having been issued the respondent is not before the Court to raise the issue of enhancement.
So the summary dismissal only confirms the conviction and decides that the Court sees no ground for reducing the sentence.
It is in no sense a decision that the sentence should not be enhanced for that issue was not before the Court at all and so it has been said, I think rightly, in several cases, [e.g. In re Syed Anif Sahib (supra)], Emperor vs Jorabhai (supra) and Emperor vs Inderchand (supra)].
The fact the High Court simply dismisses the appeal or revision summarily without issuing the notice on 119 the accused under section 439(2) for showing cause against enhancement is a clear indication that the High Court has not considered the question of enhancement.
It is true that the rule of finality prescribed by section 430 applies to the appellate judgment of the High Court, subject to the exception regarding cases falling within Chapter XXXII.
It is also true that although the revisional power is not expressly or in terms controlled either by section 369 or section 430, the general principle of finality of judgments attaches to the decision or order of the High Court passed in exercise of its revisional powers.
But this finality, statutory or general, extends only to what is actually decided by the High Court and no further.
When an appeal or revision by the accused is allowed after a full hearing on notice to the respondent the conviction and sentence must be regarded as having been put in issue and finally decided.
When the accused person in the presence of the State claims an acquittal or reduction of his sentence, the State ought then and there to apply for enhancement of sentence and its failure to do so cannot but be regarded as abandonment of the claim.
The acceptance by the High Court of the appeal or revision on notice to the respondent and after a full hearing is, therefore, nothing less than a judgment of acquittal or a judgment for reduction of sentence.
On the other hand, the dismissal by the High Court of an appeal or revision after such a full hearing amounts to a judgment of conviction.
In both cases the judgment is final as regards both the accused and the respondent as regards the conviction as well as the sentence in all its aspects, namely, reduction or enhancement.
In that situation no further question of revision can arise at the instance of either party.
There can be no further application by the accused challenging his conviction or sentence.
Nor can there be any further application by the State for enhancement of the sentence, for that question could have been and should have been raised when the accused person in the presence of the respondent prayed for acquittal or reduction of sentence and not having then been raised it cannot be raised 120 subsequently and consequently no question can arise for the exercise of right by the accused under section 439(6).
This result is brought about not by any technical doctrine of constructive res judicata which has no application to criminal cases but on the general principle of finality of judgments.
The summary dismissal of an appeal or revision by the accused, with or without bearing him or his pleader but without issuing notice to the respondent is, so far as the accused is concerned, a judgment of conviction and confirmation of his sentence and he can no longer initiate revision petition against his conviction or sentence.
The judgment or decision is a final judgment qua the accused person, for otherwise he could go on making successive appeals or revision applications which obviously he cannot be permitted to do.
But the State or other interested person who has not been served with any notice of the appeal or revision cannot be precluded, by the summary dismissal of the accused 's appeal or revision, from asking for enhancement, for in that situation the State or the complainant not being present the question of enhancement was not in issue before the Court and the summary dismissal cannot be regarded as an adjudication on the question of enhancement.
That question not having been put in issue and not having been decided by the High Court, the finality attaching to the summary dismissal as against the accused does not affect the position.
This, I apprehend, is the true distinction between a summary dismissal of an appeal or revision and a dismissal of it after a full bearing.
The cases of Emperor vs Jorabhai (supra) and the other cases following it overlooked this vital distinction as also its effect on the new statutory right conferred on the accused person by section 439(6) and they cannot be accepted as correct decisions.
In those cases where the appeal or revision filed by the accused had been dismissed after a full hearing in the presence of the State and where there was no application by the State or other interested party for enhancement of sentence during the pendency of that appeal or revision it should have 121 been held that the dismissal must be regarded as a judgment which was final as against both parties on both points, conviction and sentence and there could be no further application for the enhancement of sentence and consequently no question of the accused having a further opportunity of showing cause against his conviction could arise.
In the cases where the appeal or revision filed by the accused had been summarily dismissed without notice to the respondent, it should have been held that although such dismissal was final as against the accused it did not preclude the State or the complainant, who was not a party to the dismissal, from applying for enhancement of sentence and that as soon as an application for enhancement was made subsequently and a notice was issued to the accused, the latter, faced with the risk of having his sentence enhanced, at once became entitled, under section 439(6), in showing cause against the enhancement of sentence, also to show cause against his conviction.
The Lahore Full Bench case has decided, inter alia that while the dismissal of the accused 's revision application in limine does not prevent the State from subsequently applying for enhancement of the sentence, section 439(6) gives the accused a fresh right to challenge his conviction when a notice for enhancement is issued to him.
That part of the decision may well be sustained on this ground as explained above but, with great respect, I do not agree with their view that the accused in that case had the second right because the summary dismissal of his revision was not a judgment at all or was not final even as regards him.
The Rajasthan High Court 's decision in so far as it extended the principle to the dismissal of a jail appeal without hearing the accused or his pleader under section 421 may also be supported on the ground I have mentioned.
A Bench of the Lahore High Court in The Crown vs Ghulam Muhammad(1) has held that where the accused 's revision application bad been dismissed on notice to the respondent and after a full hearing and the State sub.
(1) Pak.
16 122 sequently applied for enhancement of sentence, the accused person could again show cause against his conviction.
With great respect I think that the better reasoning would have been to say that such a dismissal of the revision after a full hearing, was a judgment final against both parties on both points of conviction and sentence and that as the State did not, during the pendency of that revision, apply for revision it had.
, after that dismissal which became a final judgment, no right subsequently to apply for enhancement of sentence and consequently no notice under section 439(2) could issue and no question could arise for the accused person asserting his right under section 439(6).
For reasons discussed above I have to hold that the summary dismissal of the appeal filed by the appellant in the High Court was a judgment of conviction by the High Court and was final so far as the appellant was concerned and he could not initiate any further revision application either against his conviction or for reduction of sentence after that dismissal but that it was not final so far as the State was concerned and the State was entitled to apply in revision for enhancement of sentence.
For reasons already stated I must further hold that as soon as the State applied for enhancement and a notice was issued on the appellant he became entitled under section 439(6) to again challenge his conviction.
As I have said this sub section gives a new and valuable weapon of defence to an accused person who is placed in fresh jeopardy by reason of an enhancement application having been filed against him and a notice to show cause having been issued to him.
I find nothing in sections 369 and 430 to cut down that right.
The previous dismissal of his appeal had no bearing on the new situation created by the enhancement application which the Legislature, in enacting section 439(6), may well and properly have thought to be sufficiently serious to deserve and require a thorough re examination by the High Court of the conviction itself in this new context.
There is nothing in principle that I can see which should prevent that sub sec 123 tion from giving a fresh right to the accused whose appeal or revision has been summarily dismissed to defend himself by challenging his conviction when a notice for enhancement is issued to him.
In my judgment, for the reasons stated above, this appeal should be allowed and the matter should go back to the High Court so that the State 's application for enhancement may be dealt with according to law after giving the appellant an opportunity to show cause against his conviction.
BHAGWATI J. delivered the Judgment of Bhagwati and Imam, JJ.
This appeal on certificate under article 134(1)(c) of the Constitution raises an important question as to the right of a convicted person to show cause against his conviction while showing cause why his sentence should not be enhanced under section 439(6) of the Criminal Procedure Code.
The appellant was charged before the Presidency Magistrate, 13th Court, Bombay with having committed an offence punishable under section 66(b) of the Bombay Act XXV of 1949 inasmuch as he was found in possession of one bottle of Mac Naughtons Canadian Whisky (Foreign) containing 8 drams valued at Rs. 20.
He was convicted by the learned Presidency Magistrate and was sentenced to imprisonment till the rising of the Court and a fine of Rs. 250 in default rigorous imprisonment for one month.
He presented his petition of appeal to the High Court of Judicature at Bombay through his advocate.
This petition of appeal was however summarily dismissed by the High Court after hearing the advocate on the 19th January 1953.
On the 18th May 1953 a criminal revision application for enhancement of sentence was filed by the State and a rule was granted by the Vaca tion Judge on the 12th June 1953.
This rule came for hearing and final disposal before a Division Bench of the High Court on the 26th August 1953.
After hearing the Government Pleader in support of the rule the Court was not satisfied that there was a case for enhancement of sentence.
The learned counsel for the Appellant then wanted to argue for an acquittal 124 relying upon the provisions of section 439(6) of the Criminal Procedure Code.
Relying however upon the decisions of the Bombay High Court in Emperor vs Jorabhai(1), and Emperor vs Koya Partab (2) , as also Emperor vs Inderchand(3), the Court did not allow the learned counsel to argue that the order of conviction itself could not be sustained.
The application for enhancement of sentence was thereupon dismissed and the rule was discharged.
The appellant applied for leave to appeal to this Court on the 15th October 1953.
The Division Bench of the High Court, hearing the application stated the point which arose for determination as under: "Whether a summary dismissal of an appeal preferred by an accused person precludes him from taking advantage of the provisions of section 439(6) of the Criminal Procedure Code, when he is subsequently called upon to show cause why the sentence imposed upon him should not be enhanced".
It pointed out that the consistent view taken by the Bombay High Court in this matter had been accepted by the Allahabad and the Patna High Courts in Emperor vs Naubat(4) and Ramlakhan Chaudhury vs Emperor(1) but the view taken by the Lahore High Court in Emperor vs Atta Muhammad(1), though not directly in point prima facie lent support to the contention urged by the learned counsel for the Appellant.
A certificate was therefore granted to the Appellant that it was a fit case for appeal to this Court.
It will be convenient at this stage to briefly indicate the relevant sections of the Criminal Procedure Code which will fall to be considered.
Section 417 provides for an appeal on behalf of the State Government to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.
Sections 419, 420, 421, 422 and 423 prescribe the procedure in cases of appeals.
Section 419 deals with petitions of appeal presented by the appellant or his pleader and section 420 with petitions of appeal (1) Bom.
(2) (3) (4) I.L.R. 1945 Allahabad 527.
(5) Patna 872.
(6) Lahore 391 (F.B 125 presented when the appellant is in jail.
Section 421 provides for summary dismissal of these appeals if the Appellate Court considers that there is no sufficient ground for interfering, save that no appeal presented by the appellant or his pleader is to be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same, and the Court might also before dismissing an appeal summarily call for the record of the case though not bound to do so.
If the Appellate Court does not dismiss the appeal summarily, notice of appeal is to be given to the appellant or his pleader or to such officer as the State Government may appoint in this behalf, under section 422 and the powers of the Appellate Court in dismissing the appeal are laid down in section 423, the only relevant provision for the present purpose being that in an appeal from a conviction the Appellate Court might with or without the reduction in sentence and with or without altering the finding alter the nature of the sentence but. . . . . not so as to enhance the same.
Section 430 incorporates the rule as to the finality of the Judgments and orders passed by an Appellate Court upon appeal except in cases provided for in section 417 which relates to appeals on behalf of the Government in cases of acquittal and Chapter XXXII which relates to reference and revision.
Section 435 deals with the exercise of the revisional powers inter alia by the High Court to call for the records of the inferior criminal courts for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior Courts.
Section 438 provides for a reference by the lower Appellate Court to the High Court recommending that a sentence which has been imposed on a convicted person be reversed or altered.
Section 439 with which we are immediately concerned is couched in the following terms: (1)In the case of any proceeding the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its 126 knowledge the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 423, 426, 427 and 428 or on a Court by section 338, and may enhance the sentence; and when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in manner provided by section 429.
(2)No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence.
(5)Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.
(6)Notwithstanding anything contained in this section, any convicted person to whom an opportunity has been given under sub section (2) of showing cause why his sentence should not be enhanced shall, in showing cause, be entitled also to show cause against his conviction.
Section 440 lays down that no party has any right to be heard either personally or by pleader before any Court when exercising its powers of revision provided however that the Court may if it thinks fit, when exercising such powers hear any party either personally or by pleader and nothing in that section shall be deemed to affect section 439(2) above.
A person convicted of an offence may file in the High Court a petition of appeal or an application for revision challenging his conviction and the sentence passed upon him.
The petition of appeal may be presented by him from jail or may be presented by him to the High Court in person or through his pleader.
An application for revision also may be similarly presented by him to the High Court.
A petition of appeal presented by him from jail or presented by him in person or through his pleader as aforesaid may be summarily dismissed by the High Court after perusing the same if it considers that there is no sufficient ground for interfering, the latter after giving him or 127 his pleader a reasonable opportunity of being heard in support of the same and in appropriate cases after calling for the record of the case.
A notice of appeal may issue only if the High Court does not dismiss the appeal summarily and in that event only there would be a full hearing of the appeal in the presence of both the parties.
In the case of an application for revision also the same may be dismissed summarily and without even hearing the party personally or by pleader.
If however the Court deems fit to issue notice to the opposite party there would be a full hearing in the presence of both the parties.
These proceedings would normally be concerned with the question whether the conviction can be sustained and the sentence passed upon the convicted person be set aside or reduced.
There would be no question here of the enhancement of the sentence.
The question of enhancement of the sentence would only arise when the High Court in exercise of its revisional jurisdiction.
under section 439(1) thought it necessary to issue a notice for enhancement of sentence to the convicted person.
Even though the Court exercising its powers of revision would not be bound to bear any party personally or by pleader no order under section 439(1) enhancing the sentence could be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence.
In that event simultaneously with the opportunity given to him under sub section (2) of showing cause why his sentence should not be enhanced he would be entitled in showing cause also to show cause against his conviction by virtue of the provision of section 439(6).
The exercise of this right of also showing cause against his conviction may arise in 4 different types of cases: (1) Where his petition of appeal has been summarily dismissed either without hearing him or after hearing him or his pleader as the case may be; (2) When his appeal has been dismissed after a full hearing following upon the notice of appeal being issued to the opposite party; 128 (3)When his application for revision has been summarily dismissed either without hearing, him or after hearing him or his pleader as the case may be; and (4)Where his application for revision has been dismissed after a full beating following upon a notice issued to the opposite party.
When the High Court issues a notice for enhancement of sentence it is exercising its revisional jurisdiction and the question that arises for consideration is whether in one or more of the cases above referred to the High Court has jurisdiction to issue the notice of enhancement of sentence and the convicted person is entitled while showing cause why his sentence should not be enhanced also to show cause against his conviction.
The view taken by the Bombay High Court in the cases noted above has been that in all the four cases mentioned above the accused has had an opportunity of showing cause against his conviction and that he is not entitled to a further or second opportunity of doing so while showing cause why his sentence should not be enhanced.
It has not made any dis tinction between the exercise of appellate or revisional jurisdiction by the High Court nor between appeals or revision applications dismissed summarily or in limine and appeals or revision applications dismissed after a full hearing in the presence of both the parties.
It has also extended the same principle to a reference made under section 438 and an order passed by the High Court thereupon "No order on reference", without even issuing notice to the applicant at whose instance the Sessions Judge made the reference.
(Vide Emperor vs Nandlal Chunilal Bodiwala(1)).
The Allahabad and the Patna High Courts have followed this view of the Bombay High Court in the decisions above referred to and the Lahore High Court in Emperor vs Dhanalal(2) also followed the same.
But this decision of the Lahore High Court was overruled by a Special Bench of that Court in Emperor vs Atta (1) [1945] 48 Bombay L.R. 41 (F.B.).
(2) Lahore 241.
129 Mohammad(1).
The Special Bench held that the exercise of revisional jurisdiction by the High Court is entirely discretionary, that an application for revision is entertained as a matter of favour, that no party is entitled to be beard either himself or by pleader when the Court in, Exercising its revisional jurisdiction and that therefore a dismissal of an application for revision in limine tantamounts to a refusal by the Court to exercise its revisional jurisdiction and the convicted person under those circumstances is at all events entitled while showing cause why his sentence should not be enhanced also to show cause against his conviction.
It went to the length of holding that section 439(6) confers upon the convicted person an unfettered and unlimited right of showing cause against his conviction, which right cannot be taken away unless there is a judgment in rem which only would operate as a bar to the decision of the same matter when it arises in the exercise of what is in effect the exercise of the ordinary appellate jurisdiction.
The Rajasthan High Court in State vs Bhawani Shankar(2) has drawn a distinction between cases where the accused has not been heard at all and given no opportunity to show cause against his conviction his jail appeal having been dismissed under section 421 or his revision application having been dismissed without hearing him and cases where he has already been heard and given an opportunity to show cause against his conviction whether it be in appeal or in revision and whether his dismissal is summary or on the merits and held that in the former cases he is entitled to ask the Court to hear him and thus allow him to show cause against his conviction under section 439(6) if a notice of enhancement is issued to him.
The principle as to the finality of criminal judgments has also been invoked while considering this question.
This principle has been recognised by this Court in Janardan Reddy & Others vs The State of (1) Lah.
391 (F.B.).
(2) I.L.R. 17 130 Hyderabad & Others(1) at page 367 where Fazl Ali, J. observed: "It is true that there is no such thing as the principle of constructive res judicata in a criminal case, but there is such a principle as finality of judgments, which applies to criminal as well as civil cases and is implicit in every system, wherein provisions are to be found for correcting errors in appeal or in revision.
Section 430, Criminal Procedure Code. . . . . . . has given express recognition to this principle of finality by providing that "Judgments and orders passed by an Appellate Court upon appeal shall be final, except in cases provided for in section 417 and Chapter XXXII" Section 417 relates to appeals on behalf of Government in cases of acquittal by any Court other than a High Court and Chapter XXXII relates to reference and revision which also are powers exercised by the High Court over the judgments or orders of inferior Courts, thus excluding from the purview of this exception all judgments and orders passed by the High Court as an Appellate Court.
Section 430 does not in terms give finality to the judgments of the High Court passed in exercise of its revisional jurisdiction, but the same principle would apply whether the High Court is exercising its appellate jurisdiction or its revisional jurisdiction, because in either case the High Court which is the highest Court of Appeal in the State would have pronounced its judgment,which judgment would replace the judgment of the lower Court and would be final.
Even while exercising its revisional powers under section 439 the High Court exercises any of the powers conferred on a Court of Appeal by sections 423, 426, 427 and 428 and it is in effect an exercise of the appellate jurisdiction though exercised in the manner indicated therein.
This principle of finality of criminal judgments therefore would equally apply when the High Court is exercising its revisional jurisdiction.
Once such a judgment has been pronounced by the High Court either in the exercise of its appellate or its revisional jurisdiction no review or (1) ; 131 revision can be entertained against that judgment and there is no provision in the Criminal Procedure Code which would enable even the High Court to review the same or to exercise revisional jurisdiction over the same.
The judgment of the High Court would replace that of the lower Court which would no longer be subsisting but would be replaced by the High Court judgment and thus it is only the High Court judgment which would be final and would have to be executed in accordance with law by the Courts below.
Section 425 requires that whenever a case is decided on appeal by the High Court it should certify its judgment or order to the Court by which the finding, sentence or order appealed against was recorded or passed and the Court to which the High Court certifies its judgment or order shall thereupon make such orders as are conformable to the judgment or order of the High Court and, if necessary, the record shall be amended in accordance therewith.
Section 442 similarly pro vides that when a case is revised under Chapter XXXII by the High Court it shall in the same manner certify its decision or order to the Court by which the finding, sentence or order revised was recorded or passed and the Court to which the decision or order is so certified shall thereupon make such orders as are conformable to the decision so certified and, if necessary, the record shall be amended in accordance therewith.
These provisions are enacted because the High Court itself does not execute or carry into effect the sentences or orders passed against the convicted persons but the work of such execution has necessarily to be done in conformity with the sentences or orders passed by the High Court by the Courts which originally passed the same.
Nevertheless the latter Courts execute or carry into effect the sentences or orders which are ultimately passed by the High Court and are invested with finality.
In these cases there is no occasion at all for the exercise of the revisional powers by the High Court under section 439(1) of the Criminal Procedure Code.
That jurisdiction can only be exercised by the High Court when the record of the proceedings of Subordinate Courts has been called for 132 by itself or the case has been reported to it for orders or has otherwise come to its knowledge and the High Court suo Motu on the application of the party interested thinks it fit to issue a notice for enhancement of sentence.
This is a clear exercise of the revisional jurisdiction of the High Court and can be exercised by it only qua the judgments of the lower Courts and certainly not qua its own judgments which have replaced those of the lower Courts.
The Criminal Procedure Code unlike the Civil Procedure Code does not define "judgment" but there are observations to be found in a Full Bench decision of the Madras High Court in Emperor vs Chinna Kaliappa Gounden and another(1), discussing the provisions of section 366 and section 367 of the Criminal Procedure Code and laying down that an order of dismissal under section 203 is not a judgment within the meaning of section 369.
The principle of autrefois acquit also was held not to apply as there was no trial when the complaint was dismissed under section 203 with the result that the dismissal of a complaint under section 203 was held not to operate as a bar to the rehearing of the complaint by the same Magistrate even when such order of dismissal had not been set aside by a competent authority.
Section 366 lays down what the language and contents of a judgment are to be and section 367 provides that the judgment is to contain the decision and the reasons for the decision and unless and until the judgment pronounced by the Court complied with these requirements it would not amount to a judgment and such a judgment when signed would not be liable to be altered or reviewed except to correct a clerical error by virtue of the provisions of section 369 save as therein provided.
These observations of the Madras High Court were quoted with approval by Sulaiman, J. in Dr. Hori Ram Singh vs Emperor(").
He observed that the Criminal Procedure Code did not define a judgment but various sections of the Code suggested what it meant.
He then discussed those sections and concluded that "judgment" in the Code meant a judg (1) Mad.
(2) A.I.R. 1939 Federal Court 43.
133 ment of conviction or acquittal.
Reference was then made to the observations of Sri Arnold White, C. J. in Emperor vs Chinna Kaliappa Gounden & another(1) which were followed by another Division Bench of the Madras High Court in Emperor vs Maheshwara Kondaya (2) and it was held that an order of discharge was not a judgment as "a judgment is intended to indicate the final order in a trial terminating in either the conviction or acquittal of the accused".
A Full Bench of the Bombay High Court in Emperor vs Nandlal Chunilal Bodiwala(3) pronounced that a judgment is the expression of the opinion of the Court arrived at after dueconsideration of the evidence and all the arguments.
It was pointed out that sections 366 and 367 applied to the judgments of the trial Court and section 424 dealing with the judgments of the Appellate Courts provided that the rules relating to the judgments of a Trial Court shall apply so far as may " be practicable to the judgment of any Appellate Court other than a High Court.
It followed therefore that there was no definite rule as to what the judgment of a High Court acting in its appellate as well as its revisional jurisdiction should contain.
It was quite natural because the judgment of the High Court in its criminal jurisdiction was ordinarily final and did not therefore require the statement of any reasons whether the High Court was exercising its appellate or revisional jurisdiction.
The judgment howsoever pronounced was however the expression of the opinion of the Court arrived at after due consideration of the evidence and all the arguments and would therefore either be a judgment of conviction or acquittal and where it would not be possible to predicate of the pronouncement that it was such an expression of opinion the pronouncement could certainly not be taken as the judgment of the High Court.
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 certainly be arrived at after (1) Mad.
(2) Madras 543.
(3) 134 due consideration of the evidence and all the arguments and would therefore be a judgment and such judgment when pronounced 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.
When however a petition of appeal presented by a convicted person from jail is summarily dismissed under section 421 or a revision application made by him is dismissed summarily or in liming without hearing him or his pleader what the High Court does is to refuse to entertain the petition of appeal or the criminal revision and the order passed by the High Court "dismissed or rejected" cannot be said to be the expression of the opinion of the Court arrived at after due consideration of the evidence and all the arguments.
It is a refusal to admit the appeal or the criminal revision so that notice be issued to the opposite party and the matter be decided after a full hearing in the presence of both the parties.
It would be only after the appeal or the criminal revision was admitted that such a notice would issue and the mere refusal by the High Court to entertain the appeal or the criminal revision would certainly not amount to a judgment.
The same would be the position when a reference was made by the lower Court to the High Court under section 438 and the High Court on perusing the reference made an order "no order on the reference" as the High Court on a consideration of the terms of the reference must have come to the conclusion that no prima facie case has been made out to warrant an interference on its part.
If the High Court thought that it was a prima facie case for its interference it would certainly entertain the reference and issue a notice to the parties concerned to show cause why the judgment and order passed by the lower Court should not be revised.
When a petition of appeal is presented to the High Court by the convicted person or his pleader section 421 provides that no such appeal should be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of 135 the same and the High Court might before dismissing an appeal under that section, call for the record of the case but would not be bound to do so.
Even in such a case the hearing accorded to the appellant or his pleader would be with a view to determine whether there was a prima ' facie case made out to warrant its interference in appeal.
The appellant or his pleader would be heard in support of that position and if he satisfied the High Court that there was a prima facie case for its interference the High Court would admit the appeal and order a notice to issue to the opposite party in which event the appeal would be.
decided after a full hearing in the presence of both the parties.
The calling for the records of the case also though not compulsory but discretionary with the Court would be for this very purpose, viz., to determine whether a prima facie case for its interference was made out.
The whole purpose of the hearing accorded to the appellant or his pleader even after calling for the records of the case would be to determine whether a prima facie case for its interference was made out and it would not be within the province of the Court at that stage to fully consider the evidence on the record and hear arguments from the appellant or his pleader with a view to determine whether the conviction could be sustained or the sentence passed upon the accused could be reduced.
The setting aside of the conviction and the reduction, if any, in the sentence could only be determined by the Court after notice was issued to the opposite party and a full hearing took place in the presence of both the parties.
Even in the case of a summary dismissal of a petition of appeal under these circumstances the position would certainly not be any different from that which obtains in the. case of a summary dismissal of the petition of appeal presented by the convicted person from jail or the summary dismissal of an application for criminal revision made by him or on his behalf to the High Court.
In all these cases there will be no judgment of the High Court replacing the judgment of the lower Court and the action of the High Court would only amount to a refusal by the High Court to admit the 136 petition of appeal or the criminal revision and issue notice to the opposite party with a view to the final determination of the questions &rising in the appeal or the revision.
The order dismissing the appeal or criminal revision summarily or in liming would no doubt be a final order of the High Court not subject to review or revision even by the High Court itself but would not tantamount to a judgment replacing that of the lower Court.
The convicted person would be bound by that order and would not be able to present another petition of appeal or application for criminal revision challenging the conviction or the sentence passed upon him by the lower Court.
But such order would not have the effect of replacing the judgment or order of the lower Court which would in that event be subject to the exercise of revisional jurisdiction by the High Court under section 439 of the Criminal Procedure Code at the instance of the State or an interested party.
In the cases (1) & (3) noted above therefore there being no judgment of the High Court replacing the judgment of the lower Court section 439 (1) would operate and the High Court in exercise of its revisional jurisdiction either Suo motu or on the application of the interested party would be in a position to issue the notice of enhancement of sentence which would require to be served on the accused under section 439(2) so that he would have an opportunity of being heard either personally or by pleader in his own defence.
In that event the convicted person in showing cause why his sentence should not be enhanced would also be entitled to show cause against his conviction.
It follows therefore that in the case of a summary dismissal or a dismissal in limine of petitions of appeal or applications for criminal revision even if the convicted person or his pleader has been heard by the High Court with a view to determine if there is a prima facie case for its interference, the convicted person to whom an opportunity has been given under section 439(2) of showing cause why his sentence should not be enhanced would in showing cause be entitled also to show cause against his conviction.
The 137 same would also be the position when a reference made by the lower Court to the High Court under section 438 of the Criminal Procedure Code is rejected by the High Court without issuing notice to the parties concerned by merely ordering "no order on the reference".
In cases where the petition of appeal or the application for criminal revision is admitted by the High Court and a notice is issued to the opposite party and the High Court maintains the conviction with or without reducing the sentence passed upon the accused the judgment of the High Court in the exercise of its appellate or revisional jurisdiction would replace the judgment of the lower Court and there would be no occasion at all for the exercise by the High Court of its revisional powers under section 439(1) which can only be exercised qua the judgments of the lower Courts and certainly not qua its own judgments.
The cases (2) & (4) noted above would therefore be outside the purview of section 439(1).
If that is so there would be no question accused an opportunity of being heart sonally or by pleader in his defence 439(2) act the provisions of section 439(6) would certainly not come into operation at all.
If no notice of enhancement of sentence could issue under these circumstances no question at all could arise of the convicted person showing cause why his sentence should not be enhanced and being entitled in showing cause also to show cause against his conviction.
It follows by way of a necessary corollary that no notice for enhancement of sentence can be issued by the High Court when a judgment is pronounced by it after a full hearing in the presence of both the parties either in exercise of its appellate or its revisional jurisdiction.
Such notice for enhancement of sentence can be issued by it either suo motu or at the instance of an interested party when the judgment of the lower Court subsists and is not replaced by its own judgment in the exercise of its appellate or its revisional jurisdiction.
When the judgment of the lower Court has been under its scrutiny on notice being issued to 18 18 138 the opposite party and on a full hearing accorded to both the parties notice for enhancement of sentence can only be issued by it before it pronounces its judgment replacing that of the lower Court.
When such hearing is in progress it is incumbent upon the High Court or the opposite party to make up its mind before such judgment is pronounced whether a notice for enhancement of sentence should issue to the accused.
There would be ample time for the opposite party to make up its mind whether it should apply for a notice of enhancement of the sentence.
The High Court also on a perusal of the record and after hearing the arguments addressed to it by both the parties would be in a position to make up its mind whether it should issue such notice to the accused.
But if neither the opposite party nor the High Court does so before the hearing is concluded and the judg ment is pronounced it will certainly not be open to either of them to issue such notice for enhancement of sentence to the accused, because then the judgment of the High Court in the exercise of its appellate or revisional jurisdiction would replace that of the lower Court and section 439(1) would have no operation at all.
Even in the case of a reference by the lower Court under section 438 of the Criminal Procedure Code the High Court if it did not summarily reject such a reference would issue notice to the parties concerned and then there would be occasion for it either suo motu or on the application of an interested party to issue a notice of enhancement of sentence before the hearing was concluded and a judgment was pronounced by it.
The procedure obtaining in the several High Courts to the effect that notice for enhancement of sentence can issue even after the appeal or the application for criminal revision is disposed of by the High Court and judgment pronounced thereupon is not correct and is contrary to the true position laid down above.
It was contended that the non obstante clause in section 439(6), viz. "notwithstanding anything contained in this section" was meant to confer upon the convicted person a right to show cause against his 139 conviction in those cases where a notice to show cause why his sentence should not be enhanced was issued against him, whatever be the circumstances under which it might have been issued.
Once you had a notice for enhancement of sentence issued against the convicted person this right of showing cause against his conviction also accrued to him and that right could be exercised by him even though he had on an earlier occasion unsuccessfully agitated the maintainability of his conviction either on appeal or in revision.
This non obstante clause could not in our opinion, override the requirements of section 439(1) which provides for the exercise of revisional powers by the High Court only qua the judgments of the lower Courts.
Section 439(6) would not come into operation unless a notice for enhancement was issued under section 439(2) and a notice for enhancement of sentence under section 439(2) could not be issued unless and until the High Court thought it fit to exercise its revisional powers under section 439(1) qua the judgments of the lower Courts.
The High Court has no jurisdiction to exercise any revisional powers qua its own judgments or orders, the same being invested with finality and otherwise being outside the purview of the exercise of its revisional jurisdiction, and the only purpose of the non obstante clause in section 439(6) can be to allow the convicted person also to show cause against his conviction when he is showing cause why his sentence should not be enhanced in spite of the prohibition contained in section 439(5).
Where an appeal lies under the Code and no appeal is brought no proceedings by way of revision can be entertained at the instance of the party who could have appealed.
If the convicted person could have 'filed an appeal but had failed to do so he could certainly not approach the High Court in revision and ask the High Court to set aside his conviction.
If he could not file any application in revision he could not show cause against his conviction under section 439 (1) of the Criminal Procedure Code and it was in order to remove this disability that the non obstante clause in section 439(6) was enacted so that when the High 140 Court was exercising its revisional jurisdiction the convicted person could show cause against his conviction in spite of the fact that otherwise he could not have been able to do so, be not having appealed when an appeal lay and therefore not being entitled to file an application in criminal revision and challenge the validity or maintainability of his conviction.
Section 439(6) therefore confers on the convicted person a right which he can exercise in the event of a notice for enhancement of sentence being issued against him in the exercise of the revisional jurisdiction by the High Court in spite of the fact that he was not entitled to question the validity or maintainability of his conviction in a substantive applica tion for criminal revision filed by him for the purpose and this right is available to him only if the High Court exercising its revisional jurisdiction under section 439(1) thinks it fit to issue a notice of enhancement of sentence against him under section 439(2) and in that event he has the right also to show cause against his conviction when showing cause why his sentence should not be enhanced.
We shall now review the decisions of the various High Courts to which our attention has been drawn by the learned counsel appearing before us.
Turning first to the decisions of the Bombay High Court we were referred to Emperor vs Chinto Bhairava (1), a decision given in the year 1908 which recognised the invariable practice of that Court for over 25 years according to which the accused in showing cause why the sentence should not be enhanced was not allowed to dis cuss the evidence and satisfy the Court that he had been wrongly convicted.
The practice of the Court in such cases was to accept the conviction as conclusive and to consider the question of enhancement of sentence on that basis.
It was open to the accused to apply for revision of the conviction, but having failed to avail himself of that, he could not be permitted to assail the conviction in a proceeding where the sole question was whether the sentence passed by the lower Court was adequate or not.
It may be (1) Bom.
141 noted that this decision was in the year 1908 long before the amendment of section 439 of the Criminal Procedure Code by Act XVIII of 1923 by adding subsection (6) thereto.
The next decision to which we were referred was Emperor vs Mangal Naran(1).
In that case simultaneously with the admission of an appeal filed by the accused the Court issued a notice for enhancement of sentence.
When the appeal and the notice came for hearing together before the Division Bench the Court observed that such a practice was not desirable.
It was likely to produce an impression on the mind of an illiterate accused in jail that it was proposed to enhance the sentence because he had appealed.
MacLeod, C.J. there expressed an opinion that if after an appeal had been heard on its merits and dismissed a notice to enhance the sentence was issued, the accused had still the right to show cause against his conviction, though any attempt to set aside the conviction would not have much chance of success.
He however expressed his preference in favour of the old practice, viz. first to deal with the appeal and then to consider whether a notice to enhance should issue.
No ques tion had arisen for consideration of the Court in that case as to the true construction of the provision of section 439(6) of the Criminal Procedure Code and the only question considered by the Court there was what should be the proper procedure to be adopted when issuing a notice for enhancement of sentence, whether it should be issued simultaneously with the admission of the appeal or after the appeal was finally heard and disposed of.
This opinion expressed by MacLeod, C.J. was therefore treated as obiter in Emperor vs Jorabhai Kisanbhai(2).
The question that arose for consideration of the Court in that case was whether after an appeal of an accused person against his conviction and sentence had been dismissed by a Division Bench of the High Court and a notice to enhance the sentence was issued on an application on behalf of the Government the application for enhancement of sentence could be (1) (2) Bom.
142 heard on its merits by another Division Bench of the High Court treating the conviction as correct or the accused was under such circumstances not entitled under section 439(6) to be re heard on the merits of his conviction.
The appeal filed by the accused against his conviction and sentence had been dismissed on the 7th April, 1926.
After judgment was delivered by the Court, the Government Pleader applied orally for issue of a notice for enhancement and that application was granted.
The application was heard on the 17th June 1926 and it was urged on behalf of the accused that the only proper procedure was to issue a notice for enhancement of sentence before the appeal had been actually disposed of and that once the appeal was disposed of by the Court there was no legal power to enhance the sentence under section 439 of the Criminal Procedure Code.
That contention was negatived the Court observing that so far as the point of procedure was concerned there was no hard and fast rule as to the appropriate time for the issue of notice of enhancement of sentence by the High Court and resorting, to the principle of the finality of judgments as regards the accused being concluded by the judgment of the High Court dismissing his appeal and confirming the sentence passed upon him.
The judgment there was interpreted as confirming the conviction and rejecting the appeal as to the sentence in the sense that it saw no reason to reduce it and that was not treated as a decision that the sentence should not be enhanced if a proper procedure was taken such as the Code allowed for the purpose and therefore so far as the judgment went there was nothing which in any way tied the hands of the Court.
Sections 369 and 430 of the Criminal Procedure Code were referred to and the Court held that the observations of MacLeod, C.J. in Emperor vs Mangal Naran(1) above referred to were obiter dicta not binding upon them and the application must be heard on the merits treating the conviction as correct in view of the dismissal of the appeal.
It is no doubt true as observed by Madgavkar, J. (1) 143 in regard to the practice as to the proper time for issuing of the notice of enhancement that the question of adequacy of punishment is, in the first instance, a matter for the Government and for the District Magistrate.
From the time when the sentence is passed, and at all events up to the time when anappeal is admitted and notice is received, it is open to Government to consider the sufficiency of a sentence and before hearing of the appeal, to apply to the High Court for enhancement of the sentence if they are so advised.
In that event the appeal as well as the notice of enhancement would be heard together and the Court hearing the appeal would apply its mind not only to the question whether the conviction should be confirmed but also to the question whether the sentence should be reduced or enhanced as the case may be ' It is only in rare instances that the High Court considers for itself the question of enhancement of sentence and only if no action has been taken by the Government and if the High Court thinks that the interests of justice imperatively demand it.
In such a case it would be a matter for consideration by the High Court whether it should issue notice at the very time of the admission or whether it should do so while disposing of the appeal on the merits as to the conviction.
The observations of the learned Judge however in so far as they seem to suggest that the appeal should be disposed of first and the question of enhancement of sentence should be considered by the same Bench immediately afterwards or that the notice for enhancement could be issued by the Court after the disposal of the appeal on the merits as to conviction do not take into account the fact that after the judgment is pronounced and the conviction is confirmed involving as a necessary corollary thereof the confirming of the sentence passed upon the accused also if the same is not reduced, the judgment of the High Court replaces that of the lower Court and the exercise of any revisional powers by the High Court by way of enhancement of the sentence is necessarily eschewed.
These revisional powers could only be exercised by the High Court qua the judg 144 ment of the lower Court and once that judgment is replaced by the judgment of the High Court, the High Court has no further powers to review or revise its own judgment and enhance the sentence which is thus passed by it upon the accused.
The principle as to the finality of judgments applied by the Court by virtue of the provisions of section 369 and section 430 of the Criminal Procedure Code should not have been confined merely to the question of confirming the conviction but also should have been extended to the confirming of the sentence in so far as the High Court did not see any reason to reduce the sentence already passed by the lower Court upon the accused.
When the High Court hears the appeal on its merits it does not apply its mind only to the question whether the conviction should be confirmed but also applies its mind to the adequacy of the sentence passed upon the accused by the lower Court.
In thus applying its mind to the question of sentence it also considers whether the sentence passed upon the accused by the lower Court is adequate in the sense that it is either such as should be reduced or is such as should be enhanced.
The questions of the reduction of the sentence or enhancement of the sentence are not to be viewed as if they fall into water tight compartments and the mind of the Court hearing the appeal on merits is directed to the consideration of the matter in all its aspects including the confirming of the conviction and the reduction or enhancement of the sentence as the case may be.
The principle of finality of judgments should therefore be extended not only to the question of the confirming of the conviction but also to the question as to the adequacy of the sentence, whether the sentence which is passed upon the accused by the lower Court should be reduced, confirmed or enhanced.
Once therefore the judgment of the High Court replaces that of the lower Court there is no question which can ever arise of the exercise by the High Court of its revisional powers under section 469(1) of the Criminal Procedure Code and the proper procedure therefore if the High Court thought it fit either suo motu or on the application of the interested party 145 to issue the notice of enhancement of sentence, is to issue the said notice before the hearing of the appeal is concluded and the judgment of the High Court in appeal is pronounced.
We are therefore of the opinion that the decision reached by the High Court of Bombay in Emperor vs Jorabhai(1) was not correct in so far as it held that the notice of enhancement could be issued by the High Court at the instance of the Government after the dismissal of the appeal on merits.
The notice for enhancement issued in that case was not competent and should not have been issued at all by the High Court.
The decision in Emperor vs Jorabhai(1) was followed in Emperor vs Koya Partab(2) which extended the same principle to an appeal which had been presented from jail and was summarily dismissed under section 421 of the Criminal Procedure Code.
While dismissing the same the Court issued a notice for enhancement.
When the notice came for hearing the accused contended that he was entitled to be heard on the merits as to whether he should have been convicted or not relying upon the provisions of section 439(6).
Beau mont, C.J. relied upon the provisions of section 430 and observed that the accused was not at liberty to be heard on the merits.
The judgment of the Court of Appeal dismissing the appeal on the 9th June 1930 was a final order which the Court was not at liberty to differ from and the non obstante clause in section 439(6) did not entitle the accused to go behind section 430 and to show cause against his conviction after his appeal had been dismissed.
The learned Chief Justice followed the decision in Emperor vs Jorabhai (1) and observed that the only distinction between that case and the one before him was that case had been heard on the merits and not summarily dismissed.
But in his view that distinction was not one of principle.
We are of the opinion that the order which had been pronounced by the Court of Appeal on the 9th June 1930 was not a judgment of the High Court which replaced that of the lower Court and (1) Bom.
(2) 19 146 even though it might come within the description of an order within the meaning of section 430 it was not a judgment within the meaning of the term set out above and not being a judgment was no bar to the accused showing cause also against his conviction when showing cause against the notice for enhancement.
The matter was one falling within the category of case No. I noted above and it was open to the accused even though his petition of appeal from jail was summarily dismissed under section 421 to urge while showing cause against the notice of enhancement of sentence also to show cause against his conviction.
This decision was therefore in our opinion incorrect and the accused ought to have been heard on the merits as to whether he should have been convicted or not.
Emperor vs Ramchandra Shankarshet Uravane(1) was a case where the High Court admitted the appeal and at the same time issued a notice to the accused for enhancement of sentence.
The observations of MacLeod, J. in Emperor vs Mangal Naran(2) were followed in spite of the fact that they bad been held obiter by the Division Bench of the Court in Emperor vs Jorabhai (3).
Emperor vs Jorabhai (3) was also referred to and it was held that it was neither necessary nor desirable for the High Court to issue a notice, for enhancement of sentence at the time of admission of the appeal.
It was however observed that it was open to consider the question of enhancement of sentence after the appeal had been heard.
If those observations were meant to convey that the question of enhancement of sentence could be considered after the appeal had been disposed of and judgment was pronounced by the High Court we do not agree with the same.
But if they were meant to convey that the High Court could hear the accused on the question of enhancement of the sentence at the same time when his appeal was heard, before pronouncement of the judgment on the question of the conviction and the (1) (2) (3) Bom.
147 sentence passed upon him, they were perfectly in order.
The decision in Emperor vs Inderchand(1) extended the principle enunciated in Emperor vs Jorabhai further by applying it to a case where an application for revision by the accused against his conviction and sentence had been dismissed by the High Court.
In that case the accused had filed an application for revision which was summarily dismissed by the Vacation Judge on the 30th April, 1954.
After such summary dismissal of the application the Government filed the criminal revision application for enhancement of sentence.
The Division Bench held that the criminal revision application of the accused having been fully disposed of by the learned Vacation Judge there was a valid order of dismissal, that section 430 debarred the accused from having that order of dismissal reviewed by the High Court that the right conferred by section 439(6) could not give an accused person a right to be heard against his conviction if such a right was in conflict with the other provisions of the Code, that under section 369 the Court had no power to alter the decision of the learned Vacation Judge dismissing the revision petition filed by the accused and that if the accused bad already unsuccessfully exercised his right of appeal or revision to the High Court he was not entitled in a subsequent application by the Government for enhancement of sentence to ask the High Court to go once more into the merits of the case and to set aside the conviction which the same Court had previously confirmed either in appeal or on a revision application.
Divatia, J. was conscious of the somewhat anomalous position so far as the accused was concerned and referred to the observations of the Court in Emperor vs Babu Pandurang Mhaske(3) where it was stated and rightly that where the High Court itself wanted to enhance the sentence, in order that the accused might have the right to challenge his conviction before the same bench which was hearing either the appeal or the (1) (2) (1926] I.L.R. (3) 148 application for enhancement, it was proper that the application for enhancement should be heard before the appeal was finally decided, so that the accused might be heard at the very time when the question of enhancement was before the Court.
While approving of these observations the learned Judge however observed that it was possible only in a case where the High Court itself wanted to enhance the sentence and gave notice to the accused and not so in a case where Government approached the High Court by way of a revisional application as it was entitled to do under section 439(1).
Government might approach the High Court in revision under section 439(1) at any time within six months after the decision of the lower Court and in the meanwhile the accused might have come to the High Court and his application might have been rejected.
That might result in this that the conviction might be confirmed by one Bench or a single Judge as might happen in a particular case and the application for enhancement might be heard by another Bench.
But, so far as the provisions of the section were concerned, whatever might be the anomaly in this procedure, the learned Judge did not think that the inconvenience or hardship to the accused should lead the Court to construe section 439 of the Criminal Procedure Code in a manner which, according to the view of the learned Judge, was not intended by the Legislature.
These observations however did not take count of the fact that if a petition of appeal or a criminal revision application filed by the accused was dismissed summarily or in limine there was no question of a judgment of the High Court replacing that of the lower Court and the order of the High Court merely amounted to a refusal by it to interfere either in the exercise of its appellate or revisional jurisdiction which order though final and not being susceptible of review or revision by the High Court itself, did not amount to a judgment of the High Court barring the application of section 439(1) of the Criminal Procedure Code.
In that event the judgment of the lower Court not being replaced by a 149 judgment of the High Court it could be the subjectmatter of criminal revision at the instance of the Government in the matter of the enhancement of the sentence and all the provisions of section 439 would then come into operation.
The High Court would be bound then under section 439(2) to give an opportunity to the accused to be heard in his defence before the sentence passed upon him by the lower Court was enhanced and the accused would under section 439(6) be entitled in showing cause against the notice of enhancement also to show cause against his conviction.
This decision of the High Court therefore was incorrect and the accused ought to have been allowed in spite of the summary dismissal of his application in revision to show cause against his conviction while showing cause against the notice for enhancement.
One more decision of the Bombay High Court may be referred to and that is Emperor vs Nandlal Chunilal Bodiwala(1).
That was a case where the Sessions Judge of Ahmedabad had at the instance of the petitioner made a reference to the High Court recommending that the Additional Magistrate had no jurisdiction, power or authority to pass the order complained against and that the High Court should quash the same.
On the reference coming before the High Court the following order was passed without issuing notice: "no order on this reference".
The petitioner thereupon filed a criminal revision application to the High Court praying that the order of the Additional District Magistrate be quashed.
This revision application came for hearing before a Division Bench and the Court requested the Chief Justice to constitute a Full Bench to consider the following point: "When on a reference made by the Sessions Judge under section 438 of the Criminal Procedure Code, a Division Bench of this Court passes an order without issuing notice, viz., 'No order on this reference ', whether the applicant at whose instance the Sessions Judge made the reference is entitled to make an application in revision to this Court in the same (1) 150 matter, in view of the provisions of section 369 of the Criminal Procedure Code?" The application was heard by a Full Bench and it was contended on behalf of the petitioner that when the High Court without issuing notice to the applicant disposed of the reference made by the Sessions Judge by stating "no order on the reference" there was no judgment given on the merits.
The order of the Court only meant that the Court would not allow the matter to be brought before it on the recommendation of the Sessions Judge and merely disposed of it on that view.
If a mere order of disposal of a reference or revision application amounted to a judgment the party in whose favour a reference was made by the Sessions Judge would be deprived of the right he had of approaching the High Court in revision against the order, if the Court disposed of the matter in the manner it had done in that case.
This argument was repelled by the Full Bench.
It held that section 369 of the Criminal Procedure Code debarred the petitioner from making the criminal revision application, that the order of the High Court passed upon the reference amounted to a judgment within the meaning of that term in section 369 of the Criminal Procedure Code and after it was signed it could not be altered or reviewed in a subsequent application for revision and that even though the Division Bench of the High Court passed the order "no order on this reference" without issuing notice to the applicant, the applicant whose favour the Sessions Judge made a reference was not entitled to make an application in revision to the High Court in the same matter.
Even though this conclusion was reached by the Full Bench they observed that they were not unaware that the applicant had a grievance that his position had been worsened and not improved by the Sessions Judge being in his favour, because if the recommendation of the Sessions Judge was turned down without hearing the petitioner, as had happened in that case he was worse off, while if the Sessions Judge would have been against him he could have still applied to the High Court in revision 151 and got an opportunity to put his case before the High Court.
This was recognised no doubt as an anomaly but it was caused by the provision of rule 26 of the Appellate Side Rules of the Bombay High Court which compelled a party to apply to a lower revisional Court before applying in revision to the High Court.
This disability which the petitioner suffered from was emphasised in that if the Sessions Judge had dismissed his application he could then have applied to and argued his case before the High Court, but because the Sessions Judge was in his favour and had therefore got to make a reference to the High Court recommending it to set aside the order and because the High Court was not satisfied with the reasons for the recommendation, and disposed of it without issuing a rule, the petitioner was debarred from urging his arguments before the High Court.
It might be that the reasons given by the Sessions Judge for the recommendation might be weak or might be insufficient, whereas the petitioner, if he appeared might be able to urge cogent and sufficient reasons for setting aside the original order.
In spite of pointing out this disability the only recommendation which was made by the Full Bench was that the Rule 26 of the Appellate Side Rules should be properly amended so as to issue notice to all the parties concerned when a reference was made by a Sessions Judge recommending the setting aside of an order of the Trial Court.
We are of the opinion that the Full Bench should not have stopped short at pointing out this disability which the applicant suffered from but should have gone further and held that the order passed by the High Court on the reference, though final under section 430 of the Criminal Procedure Code was not a judgment within the meaning of that term and therefore did not debar the applicant from making the criminal revision application which he did under section 439(1) of the Criminal Procedure Code.
Such an order did not amount to a judgment within the definition thereof given by the Full Bench itself which was: "a judgment is the expression of the opinion of the Court arrived at after due consideration of the 152 evidence and of the arguments" as pointed out earlier in the course of this judgment.
We are of the opinion that this decision of the Bombay High Court was also incorrect.
Emperor vs Jorabhai (1) was followed by the Lahore High Court in Emperor vs Dhanalal(2).
In that case a revision petition filed on a behalf of the convicted person was dismissed after hearing counsel.
Subsequently a report of the Sessions Judge was received and the learned Judge who had dismissed the revision petition issued a notice for enhancement of sentence and the Court held that section 439(6) was meant to give an accused person to whom a notice for enhancement was issued and who had not appealed or if no appeal lay had not applied for revision of his conviction an opportunity to question the correctness of his conviction if it was proposed to enhance his sentence.
But if a petition for revision against his conviction by a convict had been rejected by a Judge of the High Court and a notice had subsequently been issued to him to show cause why his sentence should not be enhanced the convict was barred from showing cause against his conviction and the fact that the previous order dismissing the revision was passed without issuing notice to the opposite party made no difference to the position.
The Court also invoked the principle of the finality of judgments and further held that the words "unless he had already done so" though not occurring at the end of the sub section were to be presumed to be implied from the ordinary presumption as to the finality of orders in criminal revision proceedings.
In arriving at this conclusion Addison, J. observed: "In the present case there has been a judgment of this Court on the very full revision application brought by the convict.
By that judgment the petition was dismissed and the conviction confirmed.
Under section 369, Criminal Procedure Code that judgment cannot be reviewed.
It is a final judgment of this Court, and in my opinion the provisions of sub (1) Bom.
(2) Lah.
153 section (6), section 439, do not give the convict another opportunity in these circumstances to be heard as regards his conviction".
There was no justification whatsoever for reading the words "unless he had already done so" in the section and the reasoning adopted by the learned Judge in our opinion wrongly invested the order passed by the High Court in the exercise of its revisional jurisdiction dismissing the application without issuing a notice to the opposite party with the character of a judgment which could only be enjoyed by it if it had been pronounced after a full hearing in the presence of both the parties after notice issued to the opposite party.
Then the pronouncement of the High Court would have been a judgment replacing the judgment of the lower Court and not subject to the exercise of any revisional jurisdiction under section 439(1) of the Criminal Procedure Code.
Where the petition for revision against his conviction presented by the convict had been rejected by the High Court in limine the order passed by the High Court did not tantamount to a judgment which would debar the convict from showing cause against the conviction when showing cause against a subsequent notice for enhancement of sentence issued by the High Court.
The learned Judge further observed: "There appears to be no distinction between dismissing a revision petition in limine or after notice.
The judgment is in either case an effective and final judgment of the Court.
In this respect there is no difference between a revision petition and a memorandum of appeal. . . .
In these circumstances I can see no force in the argument that an, order dismissing a revision petition without issuing notice is different from an order after the issue of notice, or that there is any distinction between a judgment of this Court passed on the revision side and one on the appellate side".
While agreeing with the observations of the learned Judge that for the purposes of section 439(1) there was no distinction between a judgment of 20 154 the High Court passed on the revision side and one on the appellate side we are of the opinion that there is a real distinction between orders dismissing a revision petition or a petition of appeal in limine without issuing notice to the opposite party and judgments pronounced by the High Court in the exercise of its appellate or revisional jurisdiction after a full hearing in the presence of both the parties after the issue of notice.
The latter are judgments in the true sense of the term which debar the exercise of revisional jurisdiction by the High Court under section 439 (1) of the Criminal Procedure Code.
This decision of the Lahore High Court was however overruled by a Special Bench of that Court in Emperor vs Atta Mohammad(1).
A criminal revision application had been dismissed in limine and thereafter a notice for enhancement of sentence was issued by the High Court.
The decision of that Court in Emperor vs Dhanalal(1) following Emperor vs Jorabhai(3) was cited as debarring the accused from showing cause against his conviction and Blacker, J. before whom the matter was argued in the first instance recommended a reference to a larger Bench and the reference came up for hearing and final disposal before a Special Bench of the Court.
It was held that the accused was entitled to show cause against his conviction notwithstanding the fact that his petition for revision of the order by which he was convicted had already been dismissed in limine under section 435 of the Criminal Procedure Code.
The question whether an order under section 435 was a judgment was discussed by Blacker, J. while pronouncing the judgment of the Special Bench.
He referred to the case of Dr. Hori Ram Singh vs Emperor(1) above referred to and quoted with approval the observations of Sulaiman, J. that every order in a criminal matter was not a judgment and that 'judgment ' in the Crimi nal Procedure Code meant a judgment of conviction or acquittal.
Applying this definition the learned Judge observed: (1) Lah.
391 (F.B.).
(2) Lahore 241.
(3) Bom.
(4) A.I.R. 1939 F.C. 43. 155 "It will be seen that an order under section 435 can with difficulty be called a judgment.
All that a Judge does at this preliminary stage is either to send for the records of the lower Court with a view to examining them under section 439(1) or to refuse to do so.
It is difficult to see how the latter can possibly be called a judgment of conviction.
When such an order consists of the one word 'Dismissed ' can it necessarily be taken as a judicial pronouncement that in the opinion of the Judge the respondent was rightly convicted upon the evidence? It seems to me that all that it means is that the Judge sees no adequate ground disclosed in the petition or on the face of the judgment for proceeding further".
This reasoning in our opinion was quite sound.
But the learned Judge proceeded further to make a distinction between the summary dismissal of a petition of appeal under section 421 and the summary dismissal of a criminal revision application under section 435 stating that the reasons for which the High Court would summarily dismiss an appeal were very different from those for which it would refuse to interfere in revision, and in the case of appeal it would only do so when the material before it was sufficient to satisfy it beyond any doubt of the accused 's guilt, whereas, on revision the High Court would not interfere merely because it did not agree on every point with the Court below,, as long as the Courts below have come to a reasonable decision on the evidence.
This distinction in our opinion does not affect the position that the order pronounced by the High Court dismissing the petition of appeal or a criminal revision application in limine without issuing notice to the opposite party is merely an order dismissing the same on the ground that there is no prima facie case for interference of the High Court and does not amount to a judgment pronounced by the High Court after full hearing in the presence of both the parties which only can debar the High Court from exercising its revisional jurisdiction under section 439(1).
Mr. Justice Mahajan as he then was delivered a concurring judgment but went a step further and observed that 156 the true interpretation of section 439(6) was that it gave an unlimited right to the accused to whom a notice of enhancement was issued under section 439(2) to show cause against his conviction and the Judge was bound to go into the evidence with a view to find for himself whether the conviction could be sustained.
This right accrued to the convict on service of notice of enhancement of sentence and could not be negatived by anything that had preceded the issue of that notice.
It was the Judge hearing the en hancement petition who had to give an opportunity to the convict to challenge his conviction before him and to satisfy him that the conviction was unsustainable.
That Judge could not substitute for his satisfaction the satisfaction of some other Judge in the matter.
It was a condition precedent to the passing of a prejudicial order against an accused person that he had another opportunity of establishing his innocence, even if he had failed to do so before.
The learned Judge rightly observed that an order made in the exercise of an extraordinary discretionary jurisdiction, unless it be a judgment in rem, could not in any way operate as a bar to the decision of the same matter when it arose in the exercise of ordinary appellate jurisdiction, and that therefore an order dismissing a criminal revision application in limine could not amount to a judgment of the High Court.
The learned Judge then invoked the principle of the finality of judgments and observed: "On the other band if the view be correct that all orders passed in exercise of revisional jurisdiction whether they be of dismissal of the petition in limine, or otherwise take away the right of the convict to challenge his conviction in view of section 369, Criminal Procedure Code as in such cases a decision given already cannot be altered or reviewed, then I do not see how for purposes of enhancement of the sentence, the previous decision can be altered.
Any Judge deciding a petition for revision under section 439(1) must consider the propriety of the sentence as well as the propriety and legality of the conviction, and in my opinion he must be presumed to 157 have done so.
If a previous decision on the question of conviction bars the applicability of section 439(6), it also bars the power to enhance the sentence.
Once it has been held that the sentence was proper, it cannot be enhanced.
I have not been able to see the ratio decidendi of the decisions which take the view, that the question of enhancement of the sentence is something distinct and separate from that of conviction, and that the question of the adequacy and propriety of sentence which comes before the court on a petition for revision presented by the accused is a matter different from the matter of enhancement.
, The Judge has to see if a proper sentence has been passed before he decides the case, and the question whether a sentence passed is adequate or inadequate cannot be split up in two different compartments.
The question is only one of the quantum of punishment and such a question can only be decided but once.
Therefore in my view either there is no power of re revision in the High Court, in that case there is no power to enhance the sentence on a separate petition made for the purpose; or there is such a power in that case it is available to the Crown as well as to the accused".
This reasoning again was in our opinion sound but led only to the conclusion that there was no power of re revision in the High, Court and in that case there was no power to enhance the sentence on a separate petition made for the purpose.
The learned Judge therefore ought to have held that if the order dismissing the criminal revision petition in limine tantamount to a judgment pronounced by the High Court it was not open to the High Court to issue a notice for enhancement of sentence subsequently under section 439(1) of the Criminal Procedure Code. 'Having held however that the order dismissing the criminal revision application in limine was merely an order and not a judgment pronounced by the High Court and also having held that the High Court was entitled to issue a notice for enhancement of sentence under section 439(1), under those circumstances the only logical conclusion to which the Court could come 158 was that under section 439 (6) the accused while showing cause against the enhancement of sentence was entitled also to show cause against his conviction.
Mr. Justice Mahajan confined his decision only to the case of a dismissal of a criminal revision application in limine and left open the question whether a decision on the Appellate Side of the High Court would bar the exercise of the right under section 439 (6) inasmuch as no arguments were heard on the point.
The principle of this judgment in our opinion is not con fined merely to cases where a criminal revision application has been dismissed in limine but also extends to cases where a petition of appeal whether presented from jail or presented to the Court by the appellant or his pleader has been similarly dismissed summarily or in limine without issuing notice to the opposite party and also to cases of references made by the lower Courts to the High Court where the High Court has merely passed an order without issuing notices, to any of the parties concerned "no order on this reference".
The Patna High Court in Ramlakhan Chaudhry vs The King Emperor(1) followed both these decisions Emperor vs Jorabhai(2) and Empeeror vs Dhanalal(3) in holding that the dismissal of an appeal by the High Court did not debar it from subsequently enhancing the sentence in the exercise of revisional jurisdiction after issuing notice to the accused.
In that case an appeal had.
been dismissed after full hearing by the High Court.
At the hearing of the appeal however the Court asked the counsel for the accused to show cause why the sentence passed upon them should not be directed to run consecutively thus in effect issuing a notice for enhancement of the sentence.
When the matter came on for hearing it was contended on behalf of the accused that with the disposal of the appeal the Bench and indeed the High Court was functus officio and had no jurisdiction to hear the matter at all.
This contention was repelled by observing that the appellate judgment was not concerned with the (1) Patna 872.
(2) Bom.
(3) Lahore 241.
159 question of enhancement of the sentence which only arose in the exercise of the revisional jurisdiction and the sentence to be revised and enhanced was the sentence passed not by the High Court but by the Court of Sessions.
These observations run counter to the observations of Mr. Justice Mahajan which we have quoted above and ignores the fact that once the High Court pronounced its judgment in the appeal after full hearing in the presence of both the parties the judgment of the High Court replaced that of the lower Court and the High Court had thereafter no power to issue a notice of enhancement of sentence purporting to exercise the revisional powers vested in it under section 439 (1) of the Criminal Procedure Code which could be exercised only qua the judgments of the lower Courts and not its own judgments.
The Allahabad High Court also in Emperor vs Naubat(1) followed the decisions of that Court which had approved of and followed Emperor vs Jorabhai(2) and repelled the contention which had been urged on behalf of the accused that the application in revision filed by the Government for enhancement of their sentence was incompetent, because their appeal from their convictions had been dismissed by the Court and it was not open to them again to show cause against their convictions.
The decisions above referred to were held by the Court to be an authority for the proposi tion that the Court could under the circumstances proceed to consider whether the sentence imposed upon the accused should be enhanced, even though it was not open to the accused to show cause against their conviction.
This decision was in our opinion not correct for the simple reason that once the judgment of the Appellate Court replaced that of the lower Court it was not competent to the High Court to issue a notice for enhancement of sentence in the exercise of its revisional jurisdiction under section 439(1) and no question could therefore arise of the accused being called upon to show cause why their sentence should not be enhanced.
(1) I.L.R. 1945 Allahabad, 527.
(2) Bom.
160 The High Court of Rajasthan in The Stafe, vs Bhawani Shankar(1) tried to reconcile the various points of view above noted by laying stress on the aspect of the accused having had an opportunity to show cause against his conviction and it observed that where an accused person had already been beard and thus given an opportunity to show cause against his conviction, whether it be in appeal or in revision and whether the dismissal was summary or on the merits, he could not be heard against his conviction a second time under section 439(6) as the principle of finality of orders in criminal proceedings would apply.
But if the accused had not been heard at all and given no opportunity to show cause against his conviction and his jail appeal had been dismissed under section 421 of the Criminal Procedure Code, or his revision had been dismissed without hearing, he was entitled to ask the Court to hear him and thus allow him to show cause against his conviction under section 439(6), if a notice of enhancement was issued to him.
The real question however in our opinion is not whether an opportunity has been given to the accused to show cause against his conviction at any time but whether the High Court is entitled to exercise its revisional powers under section 439(1) and issue a notice of enhancement of sentence upon the accused.
If the accused had an opportunity of showing cause against his conviction either in an appeal or a criminal revision application filed by him or on his behalf and the conviction was confirmed on a full hearing in the presence of both the parties after the issue of the reqiuisite notice by the Court to the opposite party the judgment of the High Court would replace that of the lower Court which judgment could not be reviewed or revised by the High Court at all in exercise of its revisional powers under section 439(1).
If however an order dismissing the petition of appeal or criminal revision application or even a reference made by the lower Court was made dismissing the same summarily or in limine without issuing notice to the opposite party or the parties concerned it would tanta (1) I.L.R. 161 mount to the High Court not entertaining any of these proceedings on the ground that no prima facie case had been made out for the interference of the Court.
If such a prima facie case had been made out the High Court would admit the appeal or the revision application or entertain the reference and hear the matter fully in the presence of both the parties, ultimately pronouncing its judgment which would take the place of the judgment of the lower Court which would certainly not be subject to the exercise of revisional jurisdiction under section 439 (1) of the Criminal Procedure Code.
We are of the opinion that the conclusion reached by the High Court of Rajasthan was correct and the accused in that case was rightly allowed by it to show cause against his conviction in spite of his petition of appeal from jail having been dismissed by it summarily, though we differ from the reasoning adopted by the Court in reaching that con clusion.
Section 439(6) gives the accused a right to show cause against his conviction.
It does not merely give him an opportunity to show cause against the same.
The opportunity is given to him to show cause against the enhancement of sentence under section 439(2) of the Criminal Procedure Code and once be has got that opportunity, while showing cause against the enhancement of his sentence he has a right to show cause against his conviction which right he can ,exercise whether he had on an earlier occasion an opportunity of doing so or not; The real test is not whether the accused has had an opportunity of showing 'cause against his conviction but whether a judgment of the High Court pronounced after a full hearing in the presence of both the parties after notice issued in that behalf has replaced the judgment of the lower Court.
If the judgment of the lower Court is so replaced there is no occasion at all for the exercise of the revisional powers under section 439(1) of the Criminal Procedure Code.
If however no such judgment has replaced that of the lower Court the High Court has got the power to issue a notice for enhancement of the sentence and the accused has, in 21 162 spite of whatever has happened in the past, while showing cause against the notice of enhancement also the right to show cause against his conviction.
The right which is thus conferred upon the accused under section 439(6) cannot be taken away by having resort to the principle of finality of judgments incorporated in section 369 of the Criminal Procedure Code.
As we have observed above that principle comes into operation when once a judgment of the High Court has replaced that of the lower Court and in those cases the High Court would not be compe tent to review or revise its own judgment.
The High Court would also not be then entitled to issue any notice for enhancement of sentence in the exercise of its revisional powers under section 439 (1) of the Criminal Procedure Code.
Where however the High Court in exercise of its revisional power over the judgments of the lower Courts under section 439(1) issues a notice for enhancement of sentence and gives an opportunity to the accused of being heard either personally or by pleader in his own defence under section 439(2) the right which is given by section 439(6) to him also to show cause against his conviction comes into exist ence and this right of his cannot be ' negatived by having resort to the provisions of either section 369 or section 430 of the Criminal Procedure Code.
Section 369 in terms provides, "save as otherwise provided in this Code" and section 439(6) would be an otherwise provision which is saved by this non obstante clause appearing in section 369.
It is significant to note that both these amendments, the one in section 369 and the other in section 439 were enacted by section 119 of Act XVIII of 1923 and the very purpose of these simultaneous amendments would appear to be to effectuate the right given to the accused to show cause against his conviction as enacted in section 439(6) of the Criminal Procedure Code.
It may also be noted that the right which is thus conferred on the accused under section 439(6) is not ,an unlimited or unfettered right as observed by Mr. Justice Mahajan in Emperor vs Atta Mohammad(1).
(1) Lah.
391 (F.B.).
163 In the case of trials by jury where an accused person has been convicted on the verdict of a jury and is called upon under section 439(2) of the Criminal Procedure Code to show cause why his sentence should not be enhanced he is entitled under section 439(6) to show cause against his conviction, but only so far as section 423(2) of the Code allows and has not an unlimited right of impugning the conviction on the evidence.
It has been held by the Allahabad High Court in Emperor vs Bhishwanath (1) that the combined effect of sections 439 (6) and 423 (2) is to entitle the accused to question the conviction by showing only that the Judge misdirected the jury or that the jury misunderstood the law laid down by the Judge in his charge.
A similar conclusion was reached by the majority of the Judges in The Superintendent and Remembrancer of Legal Affairs, Bengal vs Jnanendra Nath Ghose & Another(1), where it was held that a person who had been convicted on his own plea of "guilty" under section 271(2) of the Criminal Procedure Code, in showing cause against a notice for enhancement of sentence, could only while showing cause against his conviction attack the propriety or legality of sentence but could not withdraw the plea of 'guilty ' or go behind such a plea as a confession of the facts charged.
There are no doubt two other judgments, one of the Bombay High Court in Emperor vs Ramchandra Shankarshet Uravane (3) and the other of the Rangoon High Court in Nga Ywa and another vs King Emperor which appear to run counter to the ratio decidendi of these decisions of the Allahabad and the Calcutta High Courts respectively but we are not called upon to resolve that conflict, if any.
Suffice it so say that the right which is conferred on the accused of showing cause against his conviction under section 439(6) of the Criminal Procedure Code is a right which accrues to him on a notice for enhancement of sentence being served upon him and he is entitled to exercise the same irrespective of what has happened in the past unless and until there is a judgment of the (1) I.L.R. 1937 Allahabad 308.
(2) (3) (4) Rangoon 616.
164 High Court already pronounced against his conviction after a full hearing in the presence of both the parties on notice being issued by the High Court in that behalf.
This right of his is not curtailed by anything contained in the earlier provisions of section 439 nor by anything contained in either section 369 or section 430 of the Criminal Procedure Code.
We are therefore of the opinion that the decision reached by the High Court of Bombay in the case under appeal was wrong and must be reversed.
We accordingly allow the appeal and remand the matter back to the High Court of Judicature at Bombay with a direction that it shall allow the Appellant to show cause against his conviction and dispose of the same according to law.
BY THE COURT.
The appeal is allowed and the order of the High Court of Bombay is set aside, and the matter is sent back to the High Court with a direction that it shall allow the appellant an opportunity to show cause ' against his conviction and dispose of the matter according to law.
| IN-Abs | The appellant in this appeal was convicted by the Presidency Magistrate, Bombay, of an offence under section 66(b) of the Bombay Prohibition Act (Act XXV of 1949) and sentenced to undergo imprisonment till the rising of the court and to pay a fine of Rs., 250 or in default to undergo rigorous imprisonment for one month.
He preferred an appeal to the High Court at Bombay, which was summarily dismissed.
After the dismissal of that appeal, the State of Bombay made a revision application to the High Court praying for enhancement of the sentence.
Notice was issued to the appellant under section 439(2) of the Code of Criminal Procedure to show cause against enhancement.
95 Held that the summary dismissal of the appeal preferred by the appellant did not preclude him from taking advantage of the provisions of section 439(6) of the Code of Criminal Procedure and showing cause against his conviction when he was subsequently called upon to show cause why the sentence imposed on him should not be enhanced.
Per DAS J. Sub section (6) of section 439 of the Code of Criminal Procedure confers a new and a valuable right on the accused.
The language used in sub section (6) does not, in terms, place any fetter on the right conferred by it on the accused.
This new right is not expressed to be conditioned or controlled by anything that may have happened prior to the revision application under sub section (1) for enhancement of sentence.
Therefore, whenever there is an application for enhancement of sentence, a notice must issue under sub section (2) to the accused person to show cause and whenever such notice is issued, the accused person must, under sub section (6), be given an opportunity, in showing cause against enhancement, also to show cause against his conviction.
It is not correct to say that sections 421, 435 & 439 of the Code give the court a discretion not to decide the appeal or revision brought before it.
The discretion conferred on the High Court does not authorise it to say that it will not look at the appeal or revision.
The Court 's bounden duty is to look into the appeal or revision and decide it, although in the process of arriving at its decision it has a very wide discretion.
There is no reason for holding that there is a merger or replacement of the Judgment of the trial Court into or by the Judgment of the High Court only when the appeal or revision is heard on notice to the respondent and either allowed wholly or partially or dismissed but not when it is heard without notice to the respondent and dismissed summarily; for this purpose it makes no difference whether the dismissal is summary or otherwise, and there is a judgment of the High Court in all the three cases.
The only difference in substance is that in the first two cases the judgment is final qua both parties while in the third case, i.e., when an appeal or revision by the accused is summarily dismissed without issuing notice to the State, the judgment is final only qua the accused who preferred the appeal or revision.
This is based not on any technical doctrine of res judicata, for there is none in criminal cases, but on the general principle of finality of judgment.
In the first two cases there can, after the judgment, be no further application by the State for enhancement of sentence and therefore no question of the application of section 439(6) can arise.
In the last case, i.e., in case of summary dismissal the Judgment not being final qua the State, the State may apply for enhancement of sentence and if it does the accused becomes entitled again to show cause against his conviction also by reason of the special provisions of section 439(6).
Per BHAGWATI and IMAM JJ.
A Judgment pronounced by the High Court in the exercise of its appellate or revisional 96 jurisdiction after issue of a notice and a full hearing in the presence of both the parties would certainly be arrived at after due consideration of the evidence and all arguments and would therefore be a final judgment and such judgment when pronounced would replace the judgment of the lower court, thus constituting the only final judgment to be executed in accordance with law by the court below.
When however a petition of appeal presented by a convicted person from jail is summarily dismissed under section 421 or a revision application made by him is dismissed summarily or in limine without hearing him or his pleader what the High Court does in such a case is to refuse to entertain the petition of appeal or the revision application and the order passed by the High Court dismissed or rejected" cannot be said to be an expression of the opinion of the court arrived at after due consideration of the evidence and all the arguments.
No notice for enhancement of sentence can be issued by the High Court when a judgment is pronounced by it after a full hearing in the presence of both the parties either in exercise of its appellate or its revisional jurisdiction.
Such notice for enhancement of sentence can be issued by it either suo motu or at the instance of an interested party when the judgment of the lower court subsists and is not replaced by its own judgment given in the exercise of its appellate or revisional jurisdiction.
When the Judgment of the lower court has been under its scrutiny on notice being issued to the opposite party and on a full hearing accorded to both the parties notice for enhancement of sentence can only be issued by it before it pronounces its judgment replacing that of the lower court.
When such hearing is in progress it is incumbent upon the High Court or the opposite party to make up its mind before the judgment is pronounced whether a notice for enhancement of sentence should issue to the accused.
Case law discussed.
|
Civil Appeal Nos.
912 to 916 of 1971.
Appeals by Special Leave from the Judgment and Order dated the 2nd July 1969 of the Orissa High Court in Special Jurisdiction Cases Nos. 73, 74, 75 and 76 of 1964.
V. C. Mahajan and R. N. Sachthey: for Appellants (In CAs.
912 13/71) R. N. Sachthey; for Appellant in CAs.
914 16/71.
Gobind Das, amicus curiae for Respondent.
The Judgment of the Court was delivered by GOSWAMI, J.
Five quarters of assessment of sales tax are involved in these five appeals, by special leave, the period commencing from January 1, 1959 to March 31, 1960.
This judgment will govern all these appeals involving a common question.
The Assistant Sales Tax Officer, Cuttack, included in the turnover of the respondent the sale price of jeera, dhania (coriander), panmohuri, methi, postak and pipall and levied 5 per cent sales tax under the Orissa Sales Tax Act (briefly the State Act).
On appeal the Assistant Commissioner of Sales Tax, Puri, allowed the claim of the respondent and held that the above items are oil seeds within the meaning of section 14(vi) of the and gave the respondent the benefit of a lower tax of 2 per cent on the sale turnover of those goods instead of 5 per cent under the State Act.
On appeal by the State of Orissa to the Sales Tax Tribunal claiming 5 per cent on the sale turnover thereof under the provisions of the , the orders of the Assistant Commissioner were affirmed.
On application by the State for each of the five quarters, the Tribunal referred the following two common questions under section 24 of the State Act: "(1) Whether in the facts and circumstances of the case, the Sales Tax Tribunal is right in holding that jeera, dhania, panmohuri, methi, postak and pipali are oil seeds within the meaning of section 14 of the Central Act and the tax payable under the State Law in respect of the sale or purchase of these goods inside the State, cannot exceed 2 per cent of the sale or purchase price thereof.
(2) Whether the communication No. 4(8) ST/57 dated 31st January, 1958, issued by the Government of India which is only an official communication having no statutory sanction behind it can have any legal effect to hold the goods in question as oil seeds as understood in common parlance and whether such an official communication is binding on the State Government.
" We are not concerned with 'pipali ' in these appeals.
968 When these appeals came before us for hearing the respondent was not represented.
We, therefore, requested Mr. Gobind Das to act as amicus curiae in these appeals.
Before we may proceed further, we may immediately turn to section 14(vi) of the (briefly the Central Act): "14.
Certain goods to be special importance in inter State trade or commerce.
It is hereby declared that the following goods are of special importance in inter State trade or commence: (vi) Oil seeds, that is to say, seeds yielding non volatile oils used for human consumption, or in industry, or in the manufacture of varnishes, soaps and the like, or in lubrication, and volatile oils used chiefly in medicines, perfumes, cosmetics and the like".
The above definition is an explanatory one and uses mentioned therein cover a wide range.
If the particular items which are assessed under the State Act can be brought under the definition of "oil seeds", as given in the above provision, the assessee will be entitled to a lower levy of sales tax.
Mr. Mahajan appearing on behalf of the appellant sumbits that the Court should adopt the meaning given to these items in common parlance and by the people who use the articles.
He chiefly relies upon a decision of the Andhra Pradesh High Court in The State of Andhra Pradesh vs Kajjam Ramchandraiah Gari Anantaiah.
In that case the High Court was dealing, inter alia, with an identical item, viz., dhania (coriander) under item 3 of Schedule IV of the Andhra Pradesh General Sales Tax Act, 1957.
Item 3 is identical with item (vi) of section 14 of the Central Act giving the definition of "oil seeds".
The Andhra Pradesh High Court relied upon a letter from the Director of the National Chemical Laboratory, Poona, dated January 29, 1959, addressed to the Secretary, Council of Scientific and Industrial Research, New Delhi, as also upon another letter from the Central Food Technological Research Institute, Mysore, dated February 18, 1959, and came to the conclusion that, amongst other things, dhania (coriander) did not come "within the definition of oil seeds".
The High Court also held that it was not difficult to envisage with the increase in scientific knowledge and technological development that oil could be extracted from any seed which might not be known as an oil seed in common parlance.
That Court also observed that there was no evidence to show that any oil was extracted in this country or that the oil extracted from the seeds concerned was used commercially or industrially or could be bought in the market.
In this view of the matter the Andhra Pradesh High Court held that dhania and other seeds which came up for consideration were not oil seeds under item 3 of Schedule IV of the Andhra Pradesh Sales Tax Act.
It is interesting that on this finding of that Court coriander escaped altogether from assessment.
969 In Commissioner of Sales Tax, Madhya Pradesh, Indore, vs Bakhat Rai and Co., the Madhya Pradesh High Court also took the same view as that of the Andhra Pradesh High Court while dealing with item 3, Part II, Schedule 1 of the C.P. and Berar Sales Tax Act.
In the Madhya Pradesh case, however, the term 'oil seed ' has not been defined under the Act.
The Court, therefore, held that since it was an item of every day use it must be construed in its popular meaning, that is to say, in that sense which people conversant with the subject matter with which the statute was dealing would attribute to it.
The Division Bench of the Kerala High Court has also held in The Deputy Commissioner of Agricultural Income tax and Sales Tax, Kozikode vs V. Sreedhara Shenoy that dhania (coriander) and methi are not oil seeds under section 14(vi) of the Central Act.
Mr. Mahajan has strenuously submitted that the articles in question are spices to all indents and purposes and not "oil seeds".
He further submits that even if they are oil seeds in the sense that these yield non volatile oil to a certain extent, no evidence has been produced by the assessee that these are used for human consumption or in industry or in the manufacture of varnishes, soaps and the like, or in lubrication, or in medicines, perfumes, cosmetics and the like as mentioned in the definition.
Mr. Gobind Das, on the other hand, has drawn our attention to the fact that the High Court had before it the Condensed Chemical Dictionary (7th Edition) edited by Arther and Elizabeth Rose, from which the following informations regarding the seeds in question were available: "Dhania (coriander seed); botanical name coriandrum sativem.
Coriander oil is distilled from the coriander sativum a colourless or slightly yellowish, liquid having aromatic odour.
Jeera (cumin seed); Cumin oil is distilled from the cumin seed and is used for medicine, flavouring and perfumery.
It is a colourless or yellowish, limpid liquid having characteristic odour of cumin.
Postak (poppy seed); botanical name papover somniferum.
Poppy oil is a very pale, golden yellow liquid with pleasant taste and odour extracted from the seeds and it is used as food oil, artist 's colours, varnishes & lubrication.
Methi (Fenugreek); botanical name trigonella Foenumgraecum (vide p. 164, vol. 9 of the Encyclopaedia Britannica).
It is stated inter alia therein that it bears a sickle shaped pod, containing from 10 to 20 seeds, from which 6% of a foetid, fatty, and bitter oil can be extracted by ether".
Besides, the High Court also had before it the notification of the Ministry of Finance, Department of Economic Affairs, Government of India, dated January 3, 1959, wherein amongst other commodities 970 the following were stated to be included in the term "oil seeds" under item (vi) of section 14 of the Central Act: "(18)Poppy seed (Posta dana, Khaskhas); (37) Aniseed (saunf); (42) Coriander seeds (Dhania); (44) Cuminseed (Jeera, Safed Jeera); (49) Fenugreek seeds (Methi)".
Mr. Gobind Das also drew our attention to the Webster 's Third International Dictionary where coriander seed is described as "the ripened dried fruit of coriander used for flavouring especially of pickels, curries, confectioneries, and liquors.
" These appeals arise out of a decision in a reference under section 24 of the State Act under article 136 of the Constitution and we have to consider whether it is a fit case for interference with the order of the High Court when it held that the Sales Tax Tribunal was right in its conclusion.
It is true the High Court has rightly observed that the aforesaid notification of the Government of India has no statutory force and as such is not binding on the Sales Tax Officer.
It cannot, however, be denied that the Ministry of Finance, Department of Economic Affairs, is intimately conversant not only with the policy of legislation for the purpose of implementation of the provisions of the Central Act but is also familiar with the nature and quality of the commodities as also their use from time to time.
If, therefore, such an authority issued a notification including certain commodities under the head of 'oil seeds ', as defined under the Central Act, it cannot be said that the Tribunal and the High Court were not right in preferring such an opinion of the Government as good evidence for its conclusion, to the opinions relied upon by the Andhra Pradesh High Court on which great reliance has been placed by the appellant.
A persual of the contents of the letters referred to in the judgment of the Andhra Pradesh High Court would indicate that the opinions cannot be said to be very firm or even final.
Apart from this, it is not known whether all the uses which are mentioned in the definition of "oil seeds" were brought to the notice of the National Chemical Laboratory, Poona and of the Central Food Technological Research Institute, Mysore, in rendering their opinions.
If, therefore, the Tribunal in the facts and circumstances of the case held that the particular commodities came within the definition of clause (vi) of section 14 of the Central Act, it is not possible to hold that it was not right.
The answer to the first question by the High Court is, therefore, rightly in the affirmative.
We do not also see anything wrong in the High Court 's answering the second question in the way it did.
The appeals, therefore, fail and are dismissed.
There will be no order as to costs.
We are thankful to Mr. Gobind Das for assisting the Court as amicus curaie.
V.P.S. Appeals dismissed.
| IN-Abs | Under section 14(vi), , among goods declared to be of special importance in inter State trade and commerce are mentioned oil seeds, that is to say, seeds yielding non volatile oils used for human consumption, or in industry, etc., or volatile oils used chiefly in medicines etc.
The Assistant Commissioner under the Orissa Sales Tax Act, the Tribunal, and the High Court on reference, held that jeera dhania, panmohuri, methi and postak are oil seeds within the meaning of section 14(vi) and liable to a lesser rate of tax.
The High Court relied on ordinary and technical dictionaries and a notification of the Ministry of Finance, Department of Economic Affairs, Government of India, dated January 3, 1959 for its conclusion.
In appeal to this Court under article 136, it was contended by the State, relying on State of Andhra Pradesh vs Kajjam Ramchandraiah Gari Anantaiah (1961) 12 STC 795, that the Court should adopt the meaning given to these articles in common parlance by people who use them, that so understood they are spices and not oil seeds, and that though they yield non volatile oil to a certain extent, there is no evidence that they fall within the description in section 14(vi).
Dismissing the appeal, ^ HELD: It cannot be said that the Tribunal was not right, and so it is not a fit case for interference under article 136, when the High Court held that the Tribunal was right.
[970C D, G] (a) Item 3, Schedule IV, A.P. General Sales Tax Act, 1957, is identical with section 14(vi) of the Central Act.
In Kajjam Ramachandriah 's case, the Andhra Pradesh High Court held that dhania did not come within the definition of oil seeds relying on some letters from (i) Director, National Chemical Laboratory, Poona, and (ii) Central Food Technological Research Institute, Mysore.
[968F] (b) The High Court was right in the present case in holding that the notification of the Government of India had no statutory force and was not binding on the Sales Tax Officer, but it cannot be said that the High Court and Tribunal were not right in preferring the opinion therein as good evidence for their conclusion to the opinions in the letters relied upon by the Andhra Pradesh High Court.
The Ministry of Finance, which issued the notification, is intimately conversant not only with the policy of legislation for the purpose of implementation of the provisions of the Central Act, but is also familiar with the nature and quality of the commodities and also their use from time to time.
[970D F] (c) Further, the letters of the Director, National Chemical Laboratory and the Central Food Technological Research Institute, do not indicate that the opinions expressed therein were firm or even final or whether all the uses mentioned in the definition of oil seeds were brought to their notice.
[970F] Commissioner of Sales Tax, Madhya Pradesh, Indore vs Bakhat Rai and Co. (1966) 18 Sales Tax Cases 285 and The Deputy Commissioner of Agricultural Income tax and Sales Tax, Kozhikode vs Sreedhara Shenoy (1973) 32 Sales Tax Cases 181, referred to. 967
|
ivil Appeals Nos.
312 to 314 of 1972.
Appeals by Special Leave from the Judgment and Order dated the 19 3 71 of the Orissa High Court in C.W. Nos. 325 to 327/70.
Appellant No. 1 in person and D. N. Misra for the Appellants.
921 Gobind Das and G. section Chatterjee for the Respondent.
KRISHNA IYER, J. Three civil appeals, stemming from three revision petitions to the High Court of Orissa under the Orissa Estates Abolition Act, 1951 (Orissa Act I of 1952) (for short, the Act) have reached this Court, thanks to special leave granted to the appellant, who is common in all the cases.
The High Court, after deciding various issues, remanded the cases to the Compensation Officer under the Act, after over ruling most of the contentions pressed before it by the appellant.
Shri Achutananda Purohit, appellant, was the intermediary in respect of vast forests and other lands comprised in the estate of Jujumura in the district of Sambalpur.
This estate vested in the State on April 1, 1960 by force of the Act and the crucial question agitated before us, consequentially turns on the quantum of compensation awardable under Chapter V of the Act.
The appellant has received around Rs. 3,00,000/ but much more, according to him, is due and this controversy can be settled by examining his specific points.
Shri Purohit, appellant, is an Advocate by profession and is 83 years old.
He has argued in person and with passion.
We have listened with patience to all his submissions, good, bad and indifferent.
If we may anticipate ourselves, none of the nine submissions has appealed to us, save to the extent the High Court has upheld.
Even so, a minimal narration of the facts and a brief consideration of each argument is necessary and we proceed to do so.
While his arguments did not impress us, we were touched by his concluding words that he had been born and had grown in an adivasi village, in the only brahmin family and, in his evening years of life, proposed to give a substantial part of the compensation the State would give him for adivasi welfare.
Although he waxed sentimentally on this note, he did not convince us on his contentions.
With these prefatory observations, we proceed to formulate the many points urged and give our findings and reasons, one after the other.
We are directly concerned with the issue of compensation which is dealt with, as earlier stated, in Chapter V of the Act.
The Compensation Officer is charged with fixing the quantum in the prescribed manner.
A compensation assessment roll containing the gross asset and net income of each estate, together with the compensation payable in respect of such estate, has to be prepared by him.
Of course, when there is joint ownership, section 24 stipulates that the compensation shall be determined for the estate as a whole and not separately for each of the shares therein.
Section 26 has great relevance as it lays down the method of arriving at the gross asset and section 27 has like significance as it focuses on the manner in which the net income from an estate shall be computed by deducting certain items from the gross asset of the estate.
Section 28 states how the amount of compensation is to be determined and the methodology of payment.
There are a few other sections in Chapter VI which deal with payment of compensation.
The Act also provides for appeal, second appeal and 922 revision, the last being to the High Court and the earlier ones being to the Collector and a Board constituted under section 22.
The rule making power is vested in the government under section 47 and there is a routine 'removal of difficulties ' clause contained in section 50.
These furnish in bare outline the provisions with which we are directly concerned.
Against the background of law just projected, we may set out Shri Purohit 's points which, if we may say so, are substantially the same as have been argued by him in revision before the High Court with partial success.
For convenience of reference, we may extract the statement by the High Court of the contentions urged before it (and repeated before us) by the appellant: "(1) The provisions of section 37(3) read with section 26(2) (b) (v) of the Act make it clear that the date of vesting is the last date by which the calculation of compensation should have been made.
As admittedly compensation had not been calculated by the date of vesting, the Compensation Officer lost his statutory jurisdiction to do so.
It is this Court which, by its order dated 10 4 1969 in Civil Revisions 201, 202 and 203 of 1968 conferred new jurisdiction on the Compensation Officer to deal freshly with the case and therefore notwithstanding anything contained in the Act, the compensation has to be calculated according to the directions given by the Court; (2) The Court was fully aware of the statutory provision in section 26(2) (b) (v) of the Act, but in spite of it, the direction was that the Divisional Forest Officer should make the appraisement.
There was no direction that this report of the D.F.O. should be further subject to the approval of the Chief Conservator of Forests.
The calculation made by the Chief Conservator of Forests therefore has no statutory force but could be just a piece of evidence.
But as the Court directed that no further evidence on behalf of the State should be received, Ext.
A/1 is inadmissible in evidence.
(3) Assuming that in spite of the directions of the court the Compensation Officer is entitled to follow the procedure laid down in Section 26(2)(b)(v), the expression 'subject to the approval of the Chief Conservator of Forests ' does not refer to the appraisement made by the D.F.O. but refers to his appointment.
(4) Assuming that section 26(2) (b) (v) would have full force, what it contemplates is that the appraisement must be made by the D.F.O., and it is subject to the approval by the Chief Conservator of Forests.
But what has happened here is that the Chief Conservator himself made the appraisement without referring to the appraisement made by the D.F.O. and as such the appraisement made by the Chief Conservator is invalid.
(5) The report of the Chief Conservator of Forests is also invalid because of the fact that the appraisement is made 923 only with reference to the area of the disputed forests without taking into consideration the density of growth therein; (6) Unlike in case of fisheries etc., where the actual income is to be included in the gross assets, in the case of forests, the assumed income and not the actual income is to be included.
During the agricultural year immediately preceding the abolition, the petitioners had not actually derived any income from the forests and as such they were under no obligation to pay any income tax on such income.
Therefore, deduction of income tax from the gross assets is illegal and unwarranted.
(7) The slab system of calculation of compensation in the Act providing smaller multiples for estates yielding larger income is unconstitutional.
(8) Compensation money should be so calculated that the purchasing power of the amount of compensation to be paid on the date of actual payment will not be less than its purchasing power on the date of vesting; and (9) Interest should be calculated at not less than 12% per annum from the date of vesting till payment.
" The meat of the matter, the primary question agitated in the appeal, lopping off the fringe issues of lesser import, consists in the statutory methodology and functionaries prescribed by the Act for quantifying the compensation and the compliance therewith by the statutory machinery in the case of the appellant.
But before examining this essential issue we may dispose of the minor points pressed, so that the deck may be cleared for dealing with what deserves to be dealt with.
Point No. 9, in the catalogue already given, relates to the claim for 12% interest on the amount of compensation as against the statutory rate of 2 1/2%.
The policy of the law of agrarian reform postulates the extinguishment of ancient privileges and cornering of land resources, and the socio economic yardstick is different from what applies to ordinary purchases of real estate and this is manifest in the special provisions contained in article 31A and article 31B of the Constitution.
A similar principle applies to the award of interest which may sometimes be notional when feudal interests are puffed out.
We cannot import the notion of prevailing bank rates in such situations.
The dynamic rule of law, with a social mission, makes a meaningful distinction between rights steeped in the old system and compensation for deprivation of those interests, on the one hand, and the ordinary commercial transactions or regulation of rights untinged by social transformation urges, on the other.
This gives rationality to the seeming disparity.
Holmes once commented: 'It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV '.
Here there is good reason to depart from the old rule of full compensation and it perhaps legitimates the reduced rate of recompense.
Moreover, the High Court has rightly pointed 924 out that the validity of section 37(3) of the Act which fixes a small rate of interest on the compensation amount has been upheld by the Supreme Court in Gajapati Narayan 's Case(1).
Point No. 8 has only to be stated to be rejected.
The contention is that on the date of vesting, which was well over two decades ago, the purchasing power of the rupee was much higher than its present value.
It is more or less a world phenomenon that the erosi on in value of the unit of currency has been taking place, but this invisible devaluation owing to the inflationary spiral does not affect the quantum of monetary compensation prescribed by statute.
For the purposes of the law, the rupee of long ago is the same as the rupee of today, although for the purposes of the market place and cost of living, the housewife 's answer may be different.
Law is sometimes blind.
The next point in the reverse order is equally unsubstantial and may be disposed of right away.
The appellant challenges the slab system of compensation provided in the Act which awards smaller multiples for estates yielding larger incomes, on the score of violation of the fundamental rights under the Constitution.
The short answer is that article 31(3) read with article 31(2) bars any challenge to the amount of compensation on acquisition by the State subject to compliance with the prescriptions in the said sub Articles, on the ground that the amount so fixed or determined is not adequate.
Presidential assent has been accorded to this State Act and so the ban operates.
Moreover, article 31A repels the applicability of articles 14, 19 and 31 to the acquisition by the State of any estate or of any rights therein etc.
This provision directly demolishes the contention of the appellant.
Point No. 6 in the list of contentions earlier reproduced is also bereft of force and we may make short shrift of it.
The argument is that for certain reasons the appellant could not derive and actual income from the forests taken over by the State from him and therefore there was no income tax payable on any agricultural income from these forests.
The contention is that therefore in arriving at the next income the deduction of income tax is not permissible.
Here again, the flaw in the submission consists in mis reading section 27 of the Act which expressly states that the net income from an estate shall be computed by deducting from the gross assets of such estate any sum 'which was payable by the intermediary as income tax in respect of any income . . derived from such estate for the previous agricultural year '.
No income, therefore no income tax, and therefore no deduction, is the syllogism of Shri Purohit.
He forgets that in the case of forests it is the assumed income and not the actual income that forms the basis of calculation of compensation.
Indeed, if the actual income were to be the foundation for computation of compensation on the premise that not actual income has accrued, the compensation might be zero.
On the other hand, statutory compensation is provided for on the formula of assumed income in the previous year.
Similarly, an assumed income tax also has to be worked out and deducted.
If 925 a notional income on the assumed basis can be used for fixing compensation, a notional income tax can be calculated and deducted.
The confusion that vitiates the argument is prompted by a circular letter of government regarding non deductability of income tax due to the State from the amount of compensation lying to the credit of estateholders.
We have examined the circular letter and are satisfied that it has no relevance to a situation like the present and it deals with a totally different matter.
In short, section 27 properly construed, can not lend itself to the meaning imputed to it by the appellant.
The serious question that survives for consideration is covered by the remaining points which more or less overlap.
The statutory scheme of compensation for forest lands consists of a machinery for assessment of the net income which is multiplied on a sliding scale and the method of challenge to the determination by the aggrieved owner of State.
Section 26(2) (b) (v) is relevant here and may be set out: "26(2) 'gross asset ' when used with reference to an estate means the aggregate of the rents, including all cesses, which were payable in respect of the estate for the previous agricultural year (b) by the raiyats or any other persons cultivating the land other than the land settled with the intermediary or intermidaris under Sub section (1) of Section 7 and includes: (v) gross income from forests calculated on the basis of the appraisement made of annual yield of the forests on the date of vesting by a Forest Officer subject to the approval of the Chief Conservator of Forests, such Forest Officer being not below the rank of a Divisional Forest Officer to be appointed in this behalf by the State Government.
" The expression 'Forest Officer ', used here, has been explained in section 26.
So the first step is for the Government to appoint Forest Officers from out of D.F.Os.
in the Forest Department, for the purposes of the Act.
Those Officers ascertain the income from the forest concerned and the figure so fixed is subject to the approval of the C.C.F. (Chief Conservator of Forests), presumably the top expert in the department.
The power to approve implies the power to disapprove or modify but not to report or arrive at an income de hors the Forest Officer 's Report altogether.
The section is clear that the gross income from forests must be calculated on the basis of appraisal of the annual yield on the date of vesting firstly, by a Forest Officer and, secondly, by the Chief Conservator of Forests screening it and approving it.
Indeed, preliminary to the appraisal operation, the intermediary receives a notice in Form 'D ' (rule 13) and he is expected to furnish a return of the relevant particulars and supporting information to enable correct appraisement.
In the present case, the appellant did submit the 'D ' return to the Compensation Officer and adduced some evidence to substantiate it.
The Compensation Officer passed an order adverse to the appellant, where upon he filed an appeal to the Collector which was rejected.
A Second 926 Appeal followed before the Board of Revenue which was dismissed.
Later, revision petition were filed before the High Court and G. K. Misra J., set aside the order disallowing the inclusion of the income from forests for ascertainment of compensation and directed a remand to the Compensation Officer.
The said order (the relevant portion of which we are concerned) runs thus: "He would immediately call upon the Divisional Forest Officer to make appraisement within three months from the receipt of the record.
The appraisement can be scientifically done by looking to the age of the trees as they stand now.
It is open to the petitioners to give evidence that after the date of vesting many of the trees and forest produce have been removed.
Besides the evidence already on record would be taken into consideration.
The Divisional Forest Officer who would make the appraisement will be examined as a witness for the Compensation Officer and would be subjected to cross examination.
No other evidence would be permissible as the State has not chosen to give any other evidence.
Under Rule 13(1 c) of the Orissa Estates Abolition Rules, 1952 the compensation officer may rely upon such other materials as may otherwise be ascertained by him.
But in such a case the materials must be brought to the notice of the petitioners who would be entitled to cross examine the witnesses connected therewith and may give rebutting evidence.
The compensation case is to be disposed of by the compensation officer within six months from today (10 4 1969) with intimation to this Court.
" Strictly speaking, the statutory requirement is for initial appraisal of the annual income by the Forest Officer.
The use of the expression 'Divisional Forest Officers is erroneous although Forest Officers are appointed from among Divisional Forest Officers.
Equally clearly, a slight error has crept into the Judge 's order because he does not make any reference specifically to the statutory requirement of approval of the Chief Conservator of Forests of the appraisement made by the Forest Officer.
However, what followed is interesting though erroneous.
The District Forest Officer (who, incidentally, happens to be a Forest Officer under the Act, having been appointed as required thereunder) made his appraisal of the annual income and submitted to the Chief Conservator who altered the annual yield and reduced it substantially.
But he pointed out that the Forest Officer had omitted to include the income from kendu leaves and added that sum to the income from forests.
Even so, the total figure was less than what the Divisional Forest Officer had recommended.
The Compensation officer accepted the report of the Chief Conservator and made the statutory calculation on that date.
Both the State and the appellant filed appeals to the Collector which were dismissed.
A second appeal was filed by the appellant before the Board of Revenue without success.
Then followed three revision petitions to the High Court which led to the order of remand now attacked before us in the present appeals.
927 From this narrative, what follows is that the Chief Conservator had substituted his appraisement which was accepted by the statutory tribunal.
Indeed, there was a fundamental difference in the basis adopted by the Forest Officer and the Chief Conservator in the matter of assessing the income of the forests in question.
We need not go into this detail except for the purpose of noticing that what the Chief Conservator did was not to approve wholly or in a modified form what the Forest Officer did but to make his own appraisal independently and without reference to the report of the statutory functionary, viz., the Forest Officer.
This was wrong and contrary to section 26, as was contended by the appellant and in a way accepted by the High Court.
We are in agreement with the course adopted by the High Court and the reasoning which has prevailed with it.
The direction given by the learned Judge in the remand order is correct although it may require a little clarification.
Having heard the appellant at some length, we see no flaw in the High Court 's order on this aspect of the matter.
It is astonishing that anyone should urge, as the appellant did, that the date of vesting is the last date by which the calculation of compensation should have been made and since that had not been done, the Compensation Officer had become functus officio in awarding compensation.
Before the date of vesting the State never can, nor does, fix the compensation through the Compensation officer in any of the agrarian reform laws, and these compensation operations are poststatutory exercises.
Therefore there is no substance in the functus officio argument.
If the officer had no jurisdiction, the land would be gone because of the vesting provision and no compensation would be forthcoming for want of jurisdiction a consequence the appellant never wants.
Technicality can be frightened away by technicality.
Nor is it right to contend, as the appellant did, that the Compensation Officer 's jurisdiction was created by the order of remand by the High Court.
No, it was created by the statute and canalised by the order of remand.
It follows that, after the present second remand, the re appraisal of the annual net income cannot be done solely by the Forest Officer without securing the approval of the Chief Conservator.
Nor can the Compensation Officer by pass the Chief Conservator on the misunderstood strength of the High Court 's first order of remand.
The true legal drill is and this holds good after the second remand order that the Forest officer will do the appraisement of the annual income, forward his report to the Chief Conservator of Forests who will take the said report into consideration and, if necessary, make modifications therein or approve it with such changes as he deems fit.
Certainly the Chief Conservator cannot be ignored by the Compensation Officer nor can the Chief Conservator ignore the assessment made by the Forest Officer and go through an independent exercise.
The integrated process has already been explained by us and will be followed in the proceedings to ensue on remand.
We may make it clear that now that a Forest officer has made an appraisement, the Chief Conservator of Forests will apply his mind to it and approve it as a whole or with such modifications as he thinks necessary and forward it to the Compensation Officer.
This will, among other things, save time.
Thereafter, the appropriate statutory course will follow.
Substantially, this 928 is what has been done by the learned Judge when allowing the revisions and remitting the case back to the Compensation Officer.
The take over of the forests of the appellant was effected as early as 1960 and 16 years have passed without the intermediary being out of the litigative woods.
The High Court has stated that a large part of the delay has been 'due to laches committed from time to time by the Officers who have been charged with the duty to calculate the compensation.
It is again due to mistakes committed by the authorities concerned that the matter is being remitted back to the Compensation Officer for disposal '.
The force of these observations constrains us to direct that the proceedings before the Compensation Officer shall be completed within six months from today.
In this context, it is perhaps not irrelevant to remember that the appellant, a freedom fighter, is an 83 year old man and, at this stage of his life, the State should show commisseration not merely in quickly disposing of the proceedings but also in not being cantankerous in awarding and disbursing the balance compensation.
With these directions and observations we affirm the orders under appeal but, while dismissing the appeals, direct the parties to bear their costs in this Court.
P.H.P. Appeals dismissed.
| IN-Abs | The appellant was the intermediary in respect of vast forest and other lands in the State of Orissa.
The estates vested in the State in April 1960 by force of the Orissa Estates Abolition Act, 1951.
The appellant submitted necessary return for compensation as provided by the Act.
The Compensation Officer passed an order adverse to the appellant whereupon the appellant filed an appeal to the Collector which was rejected.
A second appeal filed before the Board of Revenue was dismissed.
Later on, Revision Petitions were filed in the High Court.
The High Court set aside the order and directed remand to the Compensation Officer.
Thereafter, the District Forest Officer made his appraisal of the annual income and submitted to the Chief Conservator of Forests who altered the actual yield and reduced it substantially.
Both the State and the appellant filed appeals to the Collector which were dismissed.
A second appeal was filed by the appellant before the Board of Revenue without success.
In the Revision Applications filed before the High Court which led to the remand now challenged in the present appeals the appellant contended before this Court: (1) The interest ought to have been awarded at 12 per cent as against the statutory rate of 2 1/2 per cent from the date of the vesting till payment.
(2) Compensation money should be so calculated that the purchasing power of the amount of compensation to be paid on the date of actual payment will not be less than the purchasing power on the date of vesting.
(3) The slab system of calculation of compensation in the Act providing smaller multiples for estates yielding larger income is unconstitutional.
(4) Unlike in case of fisheries etc., where the actual income is to be included in the gross assets, in the case of forests, the assumed income and not the actual income is to be included.
During the agricultural year immediately preceding the abolition, the petitioners had not actually derived any income from the forests and as such they were under no obligation to pay any income tax on such income.
Therefore, deduction of income tax from the gross assets is illegal and unwarranted.
(5) The compensation has not been computed in accordance with the scheme of the Act.
(6) The date of vesting is the last date by which the calculation of compensation should have been made and since that had not been done the Compensation Officer had become functus officio in awarding compensation.
Dismissing the appeals, ^ HELD: 1.
The policy of the law of agrarian reforms postulates the extinguishment of ancient privileges and cornering of land resources and the socio economic yardstick is different from what applies to ordinary purchases of real estate and this is manifest in the special provisions contained in Article 31A and 31B of the Constitution.
A similar principle applies to the award of interest which may sometimes be notional when feudal interests are puffed out.
The 920 dynamic rule of law with a social mission makes a meaningful distinction between rights steeped in the old system and compensation for deprivation of those interests on the one hand and the ordinary commercial transactions on the other.
[923 F G] 2.
It is more or less a world phenomenon that the erosion in value of the unit of currency has been taking place.
But this invisible devaluation owing to the inflationary spiral does not affect the quantum of monetary compensation prescribed by statute.
For the purposes of the law, the rupee of long ago is the same as the rupee of today although for the purposes of the, market place and cost of living, the housewife 's answer may be different.
[924B C] 3.
Article 31(3) read with Article 31(2) bars any challenge to the amount of compensation on acquisition by the State subject to the compliance with the prescriptions in the said sub articles on the ground that the amount so fixed or determined is not adequate.
Presidential assent has been accorded to this State Act and so the ban operates.
[924C D] 4.
The submission of the appellant proceeds on a misreading of section 27.
In the case of forests it is the assumed and not the actual income that forms the basis for calculation of compensation.
Similarly an assumed income tax also has to be worked out and deducted.
[924F G] 5.
The scheme of the Act is that the compensation must be calculated on the basis of appraisal of the annual yield of the forests on the date of vesting firstly by a Forest Officer and secondly by the Chief Conservator of Forests,screening it and approving it.
In the present case, the Chief Conservator had substituted his appraisement which was accepted by the statutory Tribunal.
There was a fundamental difference in the basis adopted by the Forest Officer and the Chief Conservator of Forests in the matter of assessing in the income of the Forest in question.
What the Chief Conservator did was not to approve wholly or in a modified form what the Forest Officer did but to make his own appraisal independently and without reference to the report of the statutory functionary.
This was wrong and contrary to section 26.
This Court is in agreement with the course adopted by the High Court and the reasoning which has prevailed with it.
[925C, 927A B] 6.
Before the date of vesting the State never can nor does fix the compensation through the Compensation Officer in any of the agrarian reform laws and these compensation operations are post statutory exercises.
Therefore, there is no substance in the funtcus officio argument.
If the officer had no jurisdiction the land would be gone because of the vesting provision and no compensation would be forthcoming for want of jurisdiction; a consequence the appellant never wants.
Technicality can be frightened away by technicality.
[927D E] 7.
After remand the Forest Officer will do the appraisement of the annual income, forward his report to the Chief Conservator of Forests who will take the said report into consideration and, if necessary, make the modifications therein or approve it with such changes as he deems fit.
Certainly, the Chief Conservator cannot be ignored by the Compensation Officer nor can the Chief Conservator ignore the assessment made by the Forest Officer and go through an independent exercise.
The take over of the forest of the appellant was effected as early as in 1960.
The High Court has stated that a large part of the delay has been due to laches committed from time to time by the officers charged with the duty to calculate the compensation.
It is therefore directed that the proceedings before the Compensation Officer shall be completed within six months from today.
[927F H, 928A B]
|
Civil Appeal No. 2526 of 1972.
Appeal from the Judgment and Order dated the 13th January, 1972 of the Calcutta High Court in Matter No. 326 of 1967.
G. C. Sharma and section P. Nayar, for the Appellant.
D. Pal, B. Sen, (Mrs.) Leila Seth, P. K. Pal, section R. Agarwala and Parveen Kumar for the Respondent.
The Judgment of the Court was delivered by KHANNA, J.
This appeal on certificate is against the Full Bench judgment of the Calcutta High Court whereby on petition under article 226 of the Constitution of India filed by the respondent that court by majority quashed notice under section 148 of the Income tax Act, 1961 (hereinafter referred to as the Act) issued by appeallant No. 2 (Income tax Officer E Ward, Hundi Circle, Calcutta) (hereinafter referred to 958 as the appellant) for the purpose of reopening assessment of the income of the respondent for the assessment year 1958 59.
The respondent was assessed for the assessment year 1958 59 under section 23(3) of the Indian Income tax Act, 1922 on June 14, 1960.
His total income was assessed to be Rs. 37,872.
While making the assessment the Income tax Officer allowed deduction of a sum of Rs. 15,991 by way of expenses claimed by the respondent.
The expenses included Rs. 10,494/4 As/3 Pies by way of interest.
According to the respondent, he produced through his authorised representative all books of accounts, bank statements and other necessary documents in connection with the return.
On March 14, 1967 the respondent received notice dated March 8, 1967 issued by the appellant under section 148 of the Act stating that the appellant had reason to believe that the respondent 's income which was chargeable to tax for the assessment year 1958 59 had escaped assessment within the meaning of section 147 of the Act and that the notice was being issued after obtaining the necessary satisfaction of the Commissioner of Income tax.
The respondent was called upon to submit within 30 days from the date of the service of the notice a return in the prescribed form of his income for the assessment year 1958 59.
On May 2, 1967 the respondent through his lawyer stated that there was no material on which the appellant had reason to believe that the respondent 's income had escaped assessment and, therefore, the condition precedent for the assumption of jurisdiction by the appellant had not been satisfied.
The appellant was said to have no competence or jurisdiction to re open the assessment under section 147 of the Act on a mere change of opinion.
The appellant was also called upon to furnish all the materials on which he had reason to believe that income had escaped assessment.
As, according to the respondent, there was no satisfactory response from the appellant, he filed petition under article 226 of the Constitution for quashing the impugned notice.
It was denied in the affidavit on behalf of the appellant that all materials relevant and necessary for the assessment of the respondent 's income for the assessment year 1958 59 had been produced before the Income tax Officer at the time of the original assessment.
It was further stated: "Subsequent to the assessment for the assessment year 1958 59, it was discovered, inter alia, that some of the loans shown to have been taken and interests alleged to have been paid thereon by the petitioner during the relevant assessment year were not genuine.
The Income tax Officer had reason to believe and bona fide believed that the said alleged loans and the interest alleged to have been paid thereon are not genuine.
If necessary, I crave leave to produce before the hon 'ble Judge hearing the application, the relevant records on the basis of which the said Income tax Officer had reason to believe that the income of the petitioner escaped assessment as aforesaid at the hearing of the application.
" During the pendency of the proceedings the High Court directed that a copy of the report made by the appellant to the Commissioner of 959 Income tax for obtaining latter 's sanction under section 147 be produced.
The report was accordingly produced, and the same reads as under: "There are hundi loan credits in the name of Narayan singh Nandalal, D. K. Naraindas, Bhagwandas Srichand, etc., who are known name lenders, and also hundi loan credit in the name, Mohansingh Kanayalal, who has since confessed he was doing only name lending.
In the original assessment these credits were not investigated in detail.
As the information regarding the bogus nature of these credits is since known, action under section 147 (a) is called for to reopen the assessment and assess these credits as the undisclosed income of the assessee.
The assessee is still claiming that the credits are genuine in the assessment proceedings for 1962 63.
Commissioner 's sanction is solicited to reopen the assessment for 1958 59, under section 147(a).
" All the three Judges who constituted the Full Bench found that the assessee was not being charged with omission to disclose all facts: he was charged for having made an untrue disclosure because the assessee had stated that he had received certain sums of money from certain persons as loans when, in fact, he had not received any sum at all from these persons.
It was also stated by the assessee at the time of the original assessment that he had paid interest to certain persons when, in fact, he had not, if the information received later was true.
The duty of the assessee, it was held, was not only to make a full disclosure of all material facts, his duty was also to make a true disclosure of facts and not to mislead the assessing officer by disclosing certain things which did not represent facts.
The High Court accordingly held that once an assessee infringes this rule, any subsequent discovery of fact by the assessing officer which would raise a resonable belief in his mind that the assessee had not made a true and correct disclosure of the facts and had thereby been responsible for escapement of his income from assessment would attract section 147 of the Act.
Two of the learned Judges, A. K. Mukherjea and section K. Mukherjea JJ., however, took the view that the conditions precedent for the exercise of jurisdiction by the Income tax Officer under section 147 of the Income tax Act were not fulfilled in the case as the report submitted by the Income tax Officer to the Commissioner for sanction under section 147(a) was defective.
The defects in the report, in the opinion of the High Court, were the same as had been pointed out by this Court in the case of Chhugamal Rajpal vs section P. Chaliha.(1) The Commissioner, while according permission for taking action under section 147, it was observed, acted mechanically because the Commissioner had not expressly stated that he was satisfied that this was a fit case for the issue of notice under section 148.
As against the majority, Sabyasachi Mukherji J. held that notice under section 148 of the Act was valid and did not suffer from any infirmity.
It was 960 also observed that the Commissioner of Income tax had not acted improperly in giving sanction.
In the result, by majority the High Court quashed the notice issued by the appellant to the respondent.
In appeal before us Mr. Sharma on behalf of the appellants has assailed the judgment of the majority of the learned Judges in so far as they have held that the report submitted by the Income tax Officer to the Commissioner of Income tax for sanction was defective.
As against that, Dr. Pal on behalf of the assessee respondent has canvassed for the correctness of the view taken by the majority regarding the defective nature of the report.
Dr. Pal has in his own turn assailed the finding of all the three learned Judges of the High Court in so far as they have held that the assessee was being charged with omission to disclose true facts.
Contention has also been advanced by Dr. Pal that the material on the basis of which the Income tax Officer initiated these proceedings for reopening the assessment did not have a rational connection with the formation of the belief that the assessee had not made a true disclosure of the facts at the time of the original assessment.
Before dealing with the points of controversy, it would be useful to reproduce the relevant provisions of the Act.
Sections 147 and 148 which deal with income escaping assessment and issue of notice where income has escaped assessment read as under: "147.
Income escaping assessment.
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 under section 139 for any assessment year to the Income tax Officer or to disclose fully and truly all material facts necessary for his assessment for that year, income chargeable to tax has escaped assessment for that year, or (b) notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee, the Income tax officer has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of section 148 to 153, assess or ressess such income or recompute the loss or the depreciation allowance, as the case may be, for the assessment year concerned (hereinafter in sections 148 to 153 referred to as the relevant assessment year).
Explanation 1.
For the purposes of this section, the following shall also be deemed to be cases where income chargeable to tax has escaped assessment, namely: (a) where income chargeable to tax has been under assessed; or 961 (b) where such income has been assessed at too low a rate; or (c) where such income has been made the subject of excessive relief under this Act or under the Indian Income tax Act, 1922 (XI of 1922); or (d) where excessive loss or depreciation allowance has been computed.
Explanation 2.
Production before the Income tax Officer of account books or other evidence from which material evidence could with due diligence have been discovered by the Income tax Officer will not necessarily amount to disclosure within the meaning of this section.
Issue of notice where income has escaped assessment. (1) Before making the assessment, reassessment or recomputation under section 147, the Income tax Officer shall serve on the assessee a notice containing all or any of the requirements which may be included in a notice under sub section (2) of section 139; 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.
(2) The Income tax Officer shall, before issuing any notice under this section, record his reason for doing so.
" Sub section (1) of section 149 prescribes the time limit for notice and reads as under: "(1) No notice under section 148 shall be issued" (a) in cases falling under clause (a) of section 147 (i) for the relevant assessment year, if eight years have elapsed from the end of that year, unless the case falls under sub clause (ii); (ii) for the relevant assessment year, where eight years, but not more than sixteen years, have elapsed from the end of that year, unless the income chargeable to tax which has escaped assessment amounts to or is likely to amount to rupees fifty thousand or more for that year; (b) in cases falling under clause (b) of section 147, at any time after the expiry of four years from the end of the relevant assessment year.
" Section 151 pertains to the sanction for issue of notice and reads as under: "151.
Sanction for issue of notice. (1) No notice shall be issued under section 148 after the expiry of eight years from the end of the relevant assessment year, unless the Board is satisfied on the reasons recorded by the Income tax Officer that it is a fit case for the issue of such notice.
962 (2) No notice shall be issued under section 148 after the expiry of four years from the end of the relevant assessment year, unless the Commissioner is satisfied on the reasons recorded by the Income tax Officer that it is a fit case for the issue of such notice.
" The provisions of sections 147 to 153 of the Act correspond to those of section 34 of the Indian Income tax Act, 1922.
There have been some points of departure from the old law, but it is not necessary for the purpose of the present case to refer to them.
It would appear from the perusal of the provisions reproduced above that two conditions have to be satisfied before an Income tax Officer acquires jurisdiction to issue notice under section 148 in respect of an assessment beyond the period of four years but within a period of eight years from the end of the relevant year, viz., (1) the Income tax Officer must have reason to believe that income chargeable to tax has escaped assessment, and (2) he must have reason to believe that such income has escaped assessment by reason of the omission or failure on the part of the assessee (a) to make a return under section 139 for the assessment year to the Income tax Officer, or (b) to disclose fully and truly material facts necessary for his assessment for that year.
Both these conditions must co exist in order to confer jurisdiction on the Income tax Officer.
It is also imperative for the Income tax Officer to record his reasons before initiating proceedings as required by section 148(2).
Another requirement is that before notice is issued after the expiry of four years from the end of the relevant assessment years, the Commissioner should be satisfied on the reasons recorded by the Income tax Officer that it is a fit case for the issue of such notice.
We may add that the duty which is cast upon the assessee is to make a true and full disclosure of the primary facts at the time of the original assessment.
Production before the Income tax Officer of the account books or other evidence from which material evidence could with due diligence have been discovered by the Income tax Officer will not necessarily amount to disclosure contemplated by law.
The duty of the assessee in any case does not extend beyond making a true and full disclosure of primary facts.
Once he has done that his duty ends.
It is for the Income tax Officer to draw the correct inference from the primary facts.
It is no responsibility of the assessee to advise the Income tax Officer with regard to the inference which he should draw from the primary facts.
If an Income tax Officer draws an inference which appears subsequently to be erroneous, mere change of opinion with regard to that inference would not justify initiation of action for reopening assessment.
The grounds or reasons which lead to the formation of the belief contemplated by section 147(a) of the Act must have a material bearing on the question of escapement of income of the assessee from assessment because of his failure or omission to disclose fully and truly all material facts.
Once there exist reasonable grounds for the Income tax Officer to form the above belief, that would be sufficient to clothe him with jurisdiction to issue notice.
Whether the grounds are adequate or not is not a matter for the court to investigate.
The 963 sufficiency of grounds which induce the Income tax Officer to act is, therefore, not a justiciable issue.
It is, of course, open to the assessee to contend that the Income tax Officer did not hold the belief that there had been such non disclosure.
The existence of the belief can be challenged by the assessee but not the sufficiency of reasons for the belief.
The expression "reason to believe" does not mean a purely subjective satisfaction on the part of the Income tax Officer.
The reason must be held in good faith.
It cannot be merely a pretence.
It is open to the court to examine whether the reasons for the formation of the belief have a rational connection with or a relevant bearing on the formation of the belief and are not extraneous or irrelevant for the purpose of the section.
To this limited extent, the action of the Income tax Officer in starting proceedings in respect of income escaping assessment is open to challenge in a court of law [see observations of this Court in the cases of Calcutta Discount Co. Ltd. vs Income tax Officer and section Narayanappa & Ors.
vs Commissioner of Income tax while dealing with corresponding provisions of the Indian Income tax Act, 1922].
Keeping the above principles in view, we may now turn our attention to the facts of the present case.
Two grounds were mentioned in the report made by the Income tax Officer for reopening the assessment of the assessee respondent with a view to show that his income had been under assessed because of his failure to disclose fully and truly material facts necessary for the assessment.
One was that Mohansingh Kanayalal, who was shown to be one of the creditors of the assessee, had since confessed that he was doing only name lending.
The other ground was that Narayansingh Nandalal, D. K. Naraindas, Bhagwandas Srichand, etc., whose names too were mentioned in the list of the creditors of the assessee, were known name lenders.
So far as the second ground is concerned, neither the majority of the Judges of the High Court nor the learned Judge who was in the minority relied upon that ground.
Regarding that ground, the learned Judge who was in the minority observed that no basis had been indicated as to how it became known that those creditors were known namelenders and when it was known.
The majority while not relying upon that ground placed reliance upon the case of Chhugamal Rajpal (supra).
In that case the Income tax Officer while submitting a report to the Commissioner of Income tax for obtaining his sanction with a view to issue notice under section 148 of the Act stated: "During the year the assessee has shown to have taken loans from various parties of Calcutta.
From D.I. 's Inv.
No. A/P/Misc.
(5) D.I./63 64/5623 dated August 13, 1965, forwarded to this office under C.I.T., Bihar and Orissa, Patna 's letter No. Inv.
(Inv.) 15/65 66/1953 2017 dated Patna September 24, 1965 it appears that these persons are name lenders and the transactions are bogus.
Hence, proper investigation regarding these loans is necessary.
The names of some of the persons from whom money is alleged to have been taken on loan on hundis are: 1.
Seth Bhagwan Singh Sricharan 964 2.
Lakha Singh Lal Singh 3.
Radhakissen Shyam Sunder The amount of escapement involved amounts to Rs. 1,00,000.
" In dealing with that report this Court observed: "From the report submitted by the Income tax Officer to the Commissioner, it is clear that he could not have had reasons to believe that by reason of the assessee 's omission to disclose fully and truly all material facts necessary for his assessment for the accounting year in question, income chargeable to tax has escaped assessment for that year, nor could it be said that he, as a consequence of information in his possession, had reasons to believe that the income chargeable to tax has escaped assessment for that year.
We are not satisfied that the Income tax Officer had any material before him which could satisfy the requirements of either clause (a) or clause (b) of section 147.
Therefore he could not have issued a notice under section 148".
Reference to the names of Narayansingh Nandalal, D. K. Naraindas, Bhagwandas Srichand, etc., in the report of the Income tax Officer to the Commissioner of Income tax in the instant case does not stand on a better footing than the reference to the three names in the report made by the Income tax Officer in the case of Chuugamal Rajpal.
We would, therefore, hold that the second ground mentioned by the Income tax Officer, i.e., reference to the names of Narayansingh Nandalal, D. K. Naraindas, Bhagwandas Srichand, etc., could not have led to the formation of the belief that the income of the respondent assessee chargeable to tax had escaped assessment for that year because of the failure or omission of the assessee to disclose fully and truly all material facts.
All the three learned Judges of the High Court, in our opinion, were justified in excluding the second ground from consideration.
We may now deal with the first ground mentioned in the report of the Income tax Officer to the Commissioner of Income tax.
This ground relates to Mohansingh Kanayalal, against whose name there was an entry about the payment of Rs. 74 Annas 3 as interest in the books of the assessee, having made a confession that he was doing only name lending.
There is nothing to show that the above confession related to a loan to the assessee and not to someone else, much less to the loan of Rs. 2,500 which was shown to have been advanced by that person to the assessee respondent.
There is also no indication as to when that confession was made and whether it relates to the period from April 1, 1957 to March 31, 1958 which is the subject matter of the assessment sought to be reopened.
The report was made on February 13, 1967.
In the absence of the date of the alleged confession, it would not be unreasonable to assume that the confession was made a few weeks or months before the report.
To infer from that confession that it relates to the period from April 1, 1957 to March 965 31, 1958 and that it pertains to the loan shown to have been advanced to the assessee, in our opinion, would be rather far fetched.
As stated earlier, the reasons for the formation of the belief must have a rational connection with or relevant bearing on the formation of the belief.
Rational connection postulates that there must be a direct nexus or live link between the material coming to the notice of the Income tax Officer and the formation of his belief that there has been escapement of the income of the assessee from assessment in the particular year because of his failure to disclose fully and truly all material facts.
It is no doubt true that the court cannot go into the sufficiency or adequacy of the material and substitute its own opinion for that of the Income tax Officer on the point as to whether action should be initiated for reopening assessment.
At the same time we have to bear in mind that it is not any and every material, howsoever vague and indefinite or distant, remote and far fetched, which would warrant the formation of the belief relating to escapement of the income of the assessee from assessment.
The fact that the words "definite information" which were there in section 34 of the Act of 1922 at one time before its amendment in 1948 are not there in section 147 of the Act of 1961 would not lead to the conclusion that action cannot be taken for reopening assessment even if the information is wholly vague, indefinite, far fetched and remote.
The reason for the formation of the belief must be held in good faith and should not be a mere pretence.
The powers of the Income tax Officer to reopen assessment though wide are not plenary.
The words of the statute are "reason to believe" and not "reason to suspect".
The reopening of the assessment after the lapse of many years is a serious matter.
The Act, no doubt, contemplates the reopening of the assessment if grounds exist for believing that income of the assessee has escaped assessment.
The underlying reason for that is that instances of concealed income or other income escaping assessment in a large number of cases come to the notice of the income tax authorities after the assessment has been completed.
The provisions of the Act in this respect depart from the normal rule that there should be, subject to right of appeal and revision, finality about orders made in judicial and quasi judicial proceedings.
It is, therefore, essential that before such action is taken the requirements of the law should be satisfied.
The live link or close nexus which should be there between the material before the Income tax Officer in the present case and the belief which he was to form regarding the escapement of the income of the assessee from assessment because of the latter 's failure or omission to disclose fully and truly all material facts was missing in the case.
In any event, the link was too tenuous to provide a legally sound basis for reopening the assessment.
The majority of the learned Judges in the High Court, in our opinion, were not in error in holding that the said material could not have led to the formation of the belief that the income of the assessee respondent had escaped assessment because of his failure or omission to disclose fully and truly all material facts.
We would, therefore, uphold the view of the majority and dismiss the appeal with costs.
P.B.R. Appeal dismissed.
| IN-Abs | In March 1967, after obtaining the satisfaction of the Commissioner the appellant issued a notice under section 148 of the Income Tax Act, 1961 stating that he had reason to believe that the respondent 's income chargeable to tax for the assessment year 1958 59 had escaped assessment.
The respondent replied that the I.T.O. had no competence or jurisdiction to reopen the assessment under section 147 of the Act on a mere change of opinion.
Since there was no reply from the appellant, the respondent moved the High Court for a writ.
The High Court held that the conditions precedent for the exercise of jurisdiction by the Income Tax Officer were not fulfilled because the report submitted by the Income Tax Officer to the Commissioner under section 147(a) was defective.
On appeal to this Court it was contended that the High Court was not right in holding that the Income Tax Officer 's report was defective.
Dismissing the appeal, ^ HELD: The High Court was right in holding that the material before the Income Tax Officer could not have led to the formation of the belief that the income of the assessee had escaped assessment because of his failure or omission to disclose fully and truly all material facts.
[965H] 1.
(a) The two conditions required to be satisfied before the Income Tax Officer issued a notice under section 148 of the Income Tax Act are that he must have reason to believe (i) that the income chargeable to tax had escaped assessment and (ii) that such income had escaped assessment by reason of the omission or failure on the part of assessee, to disclose fully and truly material facts necessary for assessment for that year.
Both these conditions must co exist in order to confer jurisdiction on the Income Tax Officer.
Further the Income Tax Officer should record his reasons before initiating proceedings under section 148(2); before issuing the notice after the expiry of four years from the end of the relevant assessment year, the Commissioner should be satisfied on the reasons recorded by the Income Tax Officer that it was a fit case for the issue of such notice.
[962C D] (b) The duty cast upon the assessee does not extend beyond making a true and full disclosure of the primary facts.
It is then for the Income Tax Officer to draw the correct inference from the primary facts.
Where his inference subsequently appears to be erroneous, mere change of opinion with regard to that inference would not justify initiation of action for reopening the assessment.
[962F G] (c) The grounds or reasons leading to the formation of the belief under section 147(a) must have a material bearing on the question of escapement of income.
Once there exist reasonable grounds for the Income Tax Officer to form the above belief, that would be sufficient to clothe him with jurisdiction to issue notice.
While the sufficiency of grounds which induce the Income Tax Officer to act is not justiciable, it is open to the assessee to contend that the Income Tax Officer did not hold the belief that there was such non disclosure.
The expression "reason to believe" does not mean a purely subjective satisfaction on the part of the Income Tax Officer.
It is open to the Court to examine whether the reasons for the formation of the belief have a rational connection with or relevant bearing on the formation of the belief and are not extraneous or irrelevant for the purpose of the section.
[962H] 957 Chhugamal Rajpal vs section P. Chaliha , Calcutta Discount Co. Ltd. vs Income Tax Officer, 41 I.T.R. 191 and section Narayanappa & Ors.
vs Commissioner of Income Tax followed.
In the instant case the grounds given by the Income Tax Officer for reopening the assessment were (i) that the three persons whose names were mentioned in the list of creditors, were known name lenders and (ii) that another person shown as a creditor of the assessee had since confessed that he was doing only name lending.
The first ground mentioned by the Income Tax Officer could not have led to the formation of the belief that the income of the respondent had escaped assessment for that year because of his failure or omission to disclose fully and truly all material facts.
The High Court was justified in excluding that ground from consideration.
[963D E] As regards the second ground there is nothing to show that the confession of another person related to a loan to the assessee and not to someone else.
There is no indication as to when the confession was made and whether it related to the assessment year sought to be re opened.
To infer from that confession that it related to the period of assessment and that it pertained to the loan shown to have been advanced to the assessee would be far fetched.
[964G] 2(a).
Rational connection postulates that there must be a direct nexus or live link between the material coming to the notice of the Income Tax Officer and the formation of his belief that there had been escapement of income of the assessee from assessment in the particular year.
It is not any and every material, howsoever vague and indefinite or distant, remote and far fetched which would warrant the formation of the belief relating to escapement of the income of the assessee from assessment.
The fact that the words "definite information" in section 34 of 1922 Act before its amendment in 1948 do not find a place in section 147 would not lead to the conclusion that action could now be taken for reopening assessment even if the information was wholly vague, indefinite, far fetched and remote.
[965B D] (b) The powers of the Income Tax Officer to reopen assessment, though wide, are not plenary.
The words are "reason to believe" and not "reason to suspect".
The provisions of the Act depart from the normal rule that there should be finality about orders made in judicial and quasi judicial proceedings.
It is, therefore, essential that before such action is taken the requirement of the law should be satisfied.
[965E F] In the instant case the live link or close nexus between the material before the Income Tax Officer and the belief which he was to form regarding the escapement of the income was missing or at any rate the link was too tenuous to provide a legally sound basis for reopening the assessment.
|
Civil Appeal No. 2406 of 1968.
From the Judgment and Order dated 13 2 1968 of the High Court of Mysore at Bangalore in R.S.A. No. 477 of 1962.
M. section K. Sastri and M. section Narasimhan for the Appellant.
B. D. Bal, R. B. Datar and Rajan Yashpal for the respondents 1, 5, 6,10, 11, 17, 19, 23, 25, 26, 27, 35, 36 and 50.
The Judgment of the Court was delivered by BHAGWATI, J.
This appeal by special leave raises two questions relating to the interpretation of certain provisions of the Bombay Municipal Boroughs Act, 1925.
The facts giving rise to the appeal are few and may be briefly stated as follows: The respondents are rate payers liable to pay property tax in respect of their lands and buildings situate within the limits of the erstwhile Municipal Borough of Dharwar now converted into the Hubli Dharwar Municipal Corporation.
The Municipal Borough of Dharwar (hereinafter referred to as the Municipal Borough) was at the material time governed by the provisions of the Bombay Municipal Boroughs Act, 1925 (hereinafter referred to as the Act).
The Chief Officer of the Municipal Borough prepared an assessment list for the official year 1951 52 containing revised valuation and assessment of the lands and buildings situated within the limits of the Municipal Borough and published it on 1st May, 1951 in accordance with the provisions of the Act.
The respondents and several other rate payers filed their objections against the valuation and assessment in the assessment list and consequent on the decisions on the objections, modifications were made in the assessment list and the assessment list so finalised was authenticated on 24th July, 1952.
Since the authentication of the assessment list was made after the expiry of the official year, the respondents and other rate payers took the view that the assessment list was void and inoperative and the Municipal Borough was not entitled to recover property tax at the revised rates which were higher than the rates charged in the previous official years.
It seems, however, that from a few persons, whose names do not appear in the record property tax in accordance with the revised rates was collected by the Municipal Borough.
There was consequently an agitation amongst the rate payers and a body called the Citizens Welfare Association championing the causes of the rate payers addressed a communication dated 30th November, 1952 to the Director of Local Authorities requesting him to direct the Municipal Borough to refund the excess amount of property tax collected from the rate payers, because according to them the levy and collection of property 886 tax at the revised rates was illegal in view of the fact that the assessment list was authenticated only on 24th July, 1952 beyond the expiration of the official year for which the property tax was sought to be levied.
The Director of Local Authorities by his reply dated 16th December, 1952 informed the Citizens Welfare Association that the levy of property tax under the authenticated assessment list was, according to him, perfectly valid.
The President of the Municipal Borough thereafter issued a public notice dated 10th November, 1954 calling upon the rate payers to "pay immediately all the tax still due from them and extend their full cooperation to the Municipal Borough".
Since the Municipal Borough was determined to recover the amount of property tax from the rate payers at the enhanced rates appearing in the assessment list, the respondents, acting for and on behalf of themselves and other rate payers, filed a suit against the Municipal Borough on 6th June, 1955.
after giving notice dated 1st April, 1955 on the hypothesis that such notice was required to be given under s 206A of the Act.
The main reliefs claimed in the suit were, firstly, a declaration that the Municipal Borough was not entitled to recover property tax from the rate payers at the revised rates since the assessment list was authenticated beyond the expiration of the official year and secondly, an order directing the Municipal Borough to refund the excess property tax recovered by it from the rate payers.
The Municipal Borough in its written statement raised a preliminary objection that the suit was barred by limitation since it was not filed within six months of the accrual of the cause of action as required by section 206A of the Act and it also disputed the claim of the rate payers on merits on the ground that there was nothing in the Act which required that the assessment list should be authenticated before the expiration of the official year and that even if the assessment list was authenticated beyond the expiration of the official year, it did not have the effect of invalidating the assessment list.
The Trial Court negatived the plea of limitation based on section 206A of the Act and so far as the merits were concerned, held that since the authentication of the assessment list was admittedly made beyond the expiry of the official year, the assessment list was void and inoperative and the Municipal Borough was not entitled to levy and collect property tax at the revised rates on the strength of such assessment list.
The Municipal Borough, being aggrieved by this decision, filed an appeal to the District Court, but the appeal was unsuccessful and a second appeal to the High Court also failed.
Hence the present appeal by the Municipal Borough with special leave obtained from this Court.
The principal contention that was urged before us on behalf of the Municipal Borough was that on a true construction of the relevant provisions of the Act, the authentication of the assessment list, in client to impose liability to tax for the official year even if it is made the official year to which the assessment list relates and it is sufficient to impose liability to tax for the official year even if it is made at any time after the expiry of the official year and, therefore, in the present case, though the authentication of the assessment list for the official year 1951 52 was made on 24th July, 1952 after the expiry of 887 the official year, it was valid and effective and operated to create liability on the tax payers for payment of tax at the revised rates.
In order to appreciate this contention it is necessary to examine briefly the scheme of the Act in regard to assessment and levy of property tax.
The tascicunus or section from 78 to 89 deals with assessment of and liability to rates of buildings and lands.
These sections set out the procedure which must be followed for levy of rates on buildings and lands.
Section 78, sub section
(1) requires the Chief Officer to cause an assessment list of all lands and buildings in the Municipal Borough to be prepared containing various particulars set out in the section.
When the preparation of the assessment list is completed, the Chief Officer is required under section 80 to give public notice of the list and of the place where the list or a copy thereof could be inspected.
Simultaneously the Chief Officer has also to give public notice under sub section (1) of section 81 of a date not less than one month after such publication before which objections to the valuation or assessment in such list shall be made.
Sub section
(2) provides for the mode in which the objections must be made and sub section
(3) provides for the hearing and disposal of the objections by the Standing Committee and the proviso to this sub section permits the powers and duties of the Standing Committee to be transferred to another committee or to any officer of the government.
This sub section provides that before the objections are investigated and disposed of, the objector shall be given an opportunity of being heard in person or by an agent and it is only after the hearing the objectors that the objections can be disposed of.
When the objections are thus considered and disposed of, the assessment list with the modifications which may have been made consequent upon the decisions on the objections has to be authenticated in the manner set out in sub section
Sub section (5) provides that the list so authenticated shall be deposited in the Municipal office and shall be open for inspection during office hours to all rate payers.
The completion of this procedure leads to certain important consequences and they are set out in sub section
(6) which reads as follows: "(6) Subject to such alterations as may be made therein under the provisions of section 82 and to the result of any appeal or revision made under sec.
110, the entries in the assessment list so authenticated and deposited and the entries, if any, inserted in the said list under the provisions of sec.
82 shall be accepted as conclusive evidence (1) .
(ii) for the purposes of the rate for which such assessment list has been prepared, of the amount of the rate liable on such buildings or lands or both buildings and land in any official year in which such list is in force.
" section 82 then provides for amendment of assessment list in certain cases.
This section is rather material and it may be reproduced in full: "82.
(1) The standing committee may at any time alter the assessment list by inserting or altering an entry in respect of any property, such entry having been omitted from or 888 erroneously made in the assessment list through fraud, accident or mistake or in respect of any building constructed altered, added to or reconstructed in whole or in part, where such construction, alteration, addition or reconstruction had been completed after the preparation of the assessment list, after giving notice to any person interested in the alteration of the list of a date, not less than one month from the date of service of such notice, before which any objection to the alteration should be made.
(2) An objection made by any person interested in any such alteration, before the time fixed in such notice, and in the manner provided by sub section (2) of section 81, shall be dealt with in all respects as if it were an application under the said section.
(3) An entry or alteration made under this section shall subject to the provisions of section 110, have the same effect as if it had been made in the case of a building constructed altered, added to or reconstructed on the day on which such construction, alteration, addition or reconstruction was completed or on the day on which the new construction, alteration, addition or reconstruction was first occupied, whichever first occurs, or in other cases, on the earliest day in the current official year on which the circumstances justifying the entry or alteration existed; and the tax or the enhanced tax as the case may be shall be levied in such year in the proportion which the remainder of the year after such day bears to the whole year.
" The next important section is section 84 which provides for the adoption of valuation and assessment contained in the assessment list of any particular year for the year immediately following.
That section is in the following terms: "84.
(1) It shall not be necessary to prepare a new assessment list every year.
Subject to the condition that every part of the assessment list shall be completely revised not less than once in every four years, the Chief Officer may adopt the valuation and assessment contained in the list for any year, with such alterations as may be deemed necessary, for the year immediately following.
(2) But the provisions of sections 80, 81 and 82 shall be applicable every year as if a new assessment list had been completed at the commencement of the official year.
" The other sections in this group are not material and it is not necessary to refer to them.
It is clear from the scheme of these provisions that the official year is the unit of time for the levy of the tax.
The provisional assessment list is prepared for the official year.
This may be done before the commencement of the official year or even thereafter in the course of the official year.
Then objections are invited and when made, they are disposed of and amendments consequential upon the 889 decisions on the objections are carried out in the assessment list.
The assessment list is then authenticated.
The process of assessment and levy of the tax which begins with the preparation of the provisional assessment list is thus completed when the assessment list is authenticated.
The assessment list, when authenticated, becomes effective from the first day of the official year and gives rise to the liability to pay tax.
It is on the authentication of the assessment list that the liability of the rate payers to pay tax arises and the tax is levied on the rate payers.
This position would seem to be clear as a matter of plain interpretation and in any event there is a long line of decisions of the Bombay High Court commencing from Sholapur Municipality vs Governor General(1) and ending has Sholapur Municipal Corporation vs Ramchandra(2) which has consistently accepted this position and the learned counsel appearing on behalf of the Municipal Borough did not dispute the correctness of these decisions.
The only contention raised by him was as to within what time the assessment list must be authenticated, if it is to be a valid and effective assessment list.
It is to this contention that we must now address ourselves.
Now, once we take the view that the process of levying the tax is complete only when the assessment list is authenticated and it is only then that the tax is levied on the rate payers, it is difficult to resist the conclusion that the authentication must be made within the official year.
The tax, being a tax for the official year, must obviously be levied during the official year and since the levy of the tax is complete only when the assessment list is authenticated, it must follow a fortiori that the authentication on the making of which alone the levy of the tax is effected, must take place in the official year.
Any other view would result in an anomalous and rather absurd situation, namely, that the tax for an official year would be leviable at any time, even years after the expiration of the official year.
That could not possibly have been intended by the legislature.
That would indeed be a strange consequence in case of a tax which is annual in its structure and organisation and which is intended to be levied for each official year.
But, apart from this consideration, there is inherent evidence in the sections themselves which shows that the authentication was intended by the legislature to be a step which must be taken before the close of the official year.
Section 84 provides that it shall not be necessary to prepare a new assessment list every year but, subject to the conditions that every part of the assessment list shall be completely revised not less than once in every four years, the Chief Officer may adopt the valuation and assessment contained in the list for any year, with such alterations as may be deemed necessary, for the year immediately following.
This provision postulates that there would be an assessment list for each official year at the close of that official year, so that the valuation and assessment contained in it can be adopted by the Chief Officer for the immediately following year.
Now clearly the assessment list which can be adopted for the immediately following year 890 is the authenticated assessment list and it would, therefore, seem that the legislative assumption underlying this provision is that in respect or each official year, there would be an authenticated assessment list before the close of that official year, so that the valuation and assessment contained in it can be adopted by the Chief Officer for the immediately following year.
Otherwise, it would not be possible for the Chief Officer to adopt the valuation and assessment of the preceding official year and he would have to prepare a new provisional assessment list every time when the assessment list for the preceding year is not finalised and authenticated and this might lead to the rather startling result of there being several provisional assessment lists for different official years in the process of finalisation at the same time.
We should be slow to accept an interpretation which might lead to such a strange consequence.
Then again considerable light on this question is thrown by the provision enacted in section 82.
It is a well settled rule of interpretation that the Court is "entitled and indeed bound, when construing the terms of any provision found in a statute, to consider any other parts of the Act which throw light on the intention of the legislature, and which may serve to show that the particular provision ought not to be construed as it would be alone and apart from the rest of the Act.
" The statute must be read as a whole and every provision in the statute must be construed with reference to the context and other clauses in the statute so as, as far as possible, to make a consistent enactment of the whole statute.
Obviously, therefore, section 78 to 81 must be so construed as to harmonise with section 82.
They must be read together so as to form part of a connected whole.
Section 82, sub section
(1) provides for making of an amendment in the assessment list by insertion or alteration of an entry in certain events after hearing objections which may be made by any person interested in opposing the amendment.
Sub section (3) of section 82 makes the amendment effective from "the earliest day in the current official year on which the circumstances justifying the entry or alteration existed.
" The expression 'current official year ' in the context in which it occurs in section 82, sub section
(3) clearly signifies the earliest day in the official year which is current when the amendment in the assessment list takes place and that expression refers only to the official year which is running at the time when the amendment is made by insertion or alteration of an entry under sub section
(1) of section 82.
It would, therefore, seem clear, on a combined reading of sub sections
(1) and (3) of section 82, that an amendment, in order to be effective in levying tax for an official year, must be made during the currency of the official year.
That is now well settled as a result of several decisions of the Bombay High Court culminating in the Full Bench decision in Sholapur Municipal Corporation vs Ramchandra (supra) and we do not see any reason to take a different view.
Now the scheme of sections 78 to 81 is identical with that of section 82 and in both cases what is contemplated first is a proposal to which objections are invited and after the objections are investigated and disposed of, the assessment list in the one case and the altered entry in the other are authenticated giving rise to liability in the rate payer.
It must follow a fortiori that if an alteration in the assessment list, in order 891 to fasten liability on the rate payer, is required to be made during the currency of the official year, equally, on a parity of reasoning, the assessment list, in order to give rise to liability in the rate payer, must also be authenticated before the expiry of the official year.
Moreover, it is difficult to behave that the legislature did not intend that there should be any time limit in regard to the levy of tax for an official year and that the tax should be legally leviable at any time after the close of the official year.
There is, in our opinion, sufficient indication in the various provisions of the Act to show that the authentication of the assessment list, in order to be valid and effective, must be made within the official year, though the tax so levied may be collected and recovered even after the expiry of the official year.
We may point out that the Karnataka High Court is not alone in taking this view the present case.
This view has been consistently taken by the Bombay High Court in a series of decisions over the years and it has also been followed by the Gujarat High Court.
When we find that three High Courts having jurisdiction over the territories in which the Act is in force have all taken this view over a course of years, we do not think we would be justified in departing from it, merely on the ground that a different view is possible.
This Court is ordinarily loathe to interfere with the interpretation of a State statute which has prevailed in the State for a long number of years and which the State Legislature has chosen not to disturb by legislative amendment.
As a matter of fact, we find that, in the present case, the Bombay Legislature accepted this interpretation of sections 78 to 81 and gave legislative recognition to it by introducing section 84A by Bombay Act 53 of 1954.
That section provides that where in any year a new assessment list is prepared, or a list is revised, or the valuation and assessment contained in the list for the year immediately preceding is adopted with or without alteration, such new, revised or adopted assessment list shall be authenticated in the manner provided by section 81 at any time not later than the thirty first day of July of the official year to which the list relates, and if it is not so authenticated, then the State Government shall appoint such person or persons as it thinks fit to prepare, revise or adopt and authenticate the assessment list, and thereupon such person or persons shall duly authenticate such list at any time before the last day of the official year to which such list relates, and sections 78 to 81 or section 84 shall, as far as may be, apply to the preparation, revision or adoption of the list, as the case may be, by the person or persons appointed by the State Government.
It is clear from this provision that the Legislature not only did not amend the Act for the purpose of removing the time limit of the official year or enlarging such time limit, but on the contrary, made the time limit more stringent by providing that the authentication shall be made by the Municipal Borough not later than 31st July of the official year and if the authentication is not made within that time, the State Government shall be entitled to appoint a person for the purpose of authenticating the assessment list and the authentication by such person shall not.
in any event, be later than the last day of the official year.
We are, therefore, of the view that the assessment list, in order to be effective in levying the tax, not be authenticated before the expiry of the official year and if it is not, the assessment list would be void and inoperative and not give rise to liability in the rate payers to pay tax.
892 That takes us to the second contention urged on behalf of the Municipal Borough based on section 206A. That section provides inter alia that no suit shall lie against a municipality or against any officer or servant of any municipality in respect of any act done in pursuance or execution or intended execution of the Act, or in respect of any alleged neglect or default in the execution of the Act, unless it is commenced within six months next after the accrual of the cause of action.
The argument of the Municipal Borough was that the cause of action for the suit arose in favour of the respondents and other rate payers on 24th July, 1952 when the assessment list was authenticated and since the suit was not filed within six months from that date, it was barred by limitation under s.206A. This argument is plainly unsustainable.
The assessment list being authenticated on 24th July, 1952, after the expiry of the official year 1951 52, was void and inoperative and the respondents and other rate payers were entitled to ignore it as a nullity.
It is only when the Municipal Borough sought to recover the amount of tax from them on the strength of the assessment list, that it became necessary for them to challenge the validity of the assessment list with a view to resisting the demand of the Municipal Borough.
Then and then only could a cause of action be said to have accrued to them which they were required to enforce within a period of six months.
Now, in the present case, there is no material to show as to when notices of demand requiring the respondents and other rate payers to pay the amount of tax were issued by the Municipal Borough or which rate payers paid the amount of tax and when.
It is not possible to say, in the absence of such material, as to when the cause of action for filing the suit arose to the respondents and other rate payers and whether it arose within six months before the filing of the suit or at a point of time earlier than that.
The Municipal Borough cannot, in the circumstances, be held to have established that the suit was not commenced by the respondents and other rate payers within six months after the accrual of the cause of action and the plea of limitation based on section 206A must fail.
We are, therefore, of the view that there is no substance in the appeal and it must be dismissed, but in the peculiar circumstances of the case, we make no order as to costs.
V.P.S. Appeal dismissed.
| IN-Abs | The scheme of Ss. 78 to 84 of the Bombay Municipal Boroughs Act, 1925, shows that the official year is the unit of time for the levy of rates on buildings and lands.
Under these provisions the provisional assessment list is prepared for the official year, either before the commencement or in the course of the official year, objections are invited, and amendments consequential upon the decisions on the objections are carried out in the list.
The assessment list is then authenticated.
The process of assessment and levy of tax which begins with the preparation of the provisional assessment list is thus completed when the assessment list is authenticated.
The assessment list, when authenticated, becomes effective from the first day of the official year and gives rise to the liability or the rate payers to pay the tax levied.
[889 C] For the assessment year 1951 52, the appellant followed the procedure but the authentication was on July 24, 1952, after the expiry of the official year on March 31, 1952.
Since property tax in accordance with the revised rates was sought to be levied, the respondents filed a suit for a declaration that the appellant was not entitled to recover any property tax at the revised rates.
The suit was decreed and the decree was affirmed by the High Court.
In appeal to this Court, it was contended that, (1) the authentication of the assessment list in order to be valid and effective, need not be made before the expiry of the official year to which the assessment list relates; and (2) the suit was barred under section 206A of the Act.
Dismissing the appeal, ^ HELD: (1) The assessment list in order to be effective in levying the tax must be authenticated before the expiry of the official year and if it is not, the assessment list would be void and inoperative and would not give rise to any liability in the rate payers to pay tax.
[891 H] (a) Once the view is taken that the process of levying the tax is complete only when the assessment list is authenticated and it is only then that the tax is levied on the rate payers, it follows that the authentication must be made within the official year.
The tax being a tax for the official year must obviously be levied during the official year and since the levy of tax is complete only when the assessment list is authenticated it must follow a fortiori that the authentication must take place in the official year.
Otherwise, the tax for an official year would be leviable at any time, without any time limit, even years after the expiration of the official year, which could not have been the intention of the legislature, since it is an annual tax intended to be levied for each official year.
[889 D F] (b) Section 84 provides that it shall not be necessary to prepare a new assessment list every year but subject to the condition of revision once in every four years, the Chief Officer may adopt the assessment list for any year, with necessary alterations for the year immediately following.
The provision 884 postulates that there would be an assessment list, that is, the authenticated assessment list, for each official year before the close of that official year so that it can be adopted by the Chief Officer for the immediately following year.
Otherwise, he would have to prepare a new provisional assessment list every time when the Assessment List for the preceding year is not finalised and authenticated, and this might lead to the starting result of there being more than one provisional assessment list in the process of finalisation at the same time.
[889 G 890 C] (c) In interpreting a provision of a statute the court is entitled and indeed bound to consider any other parts of the Act which throw light on the intention of the legislature.
The statute must, therefore, be read as a whole and every provision in it must be construed with reference to the context and other clauses so as, as far as possible, to make a consistent enactment of the whole statute.
Section 82(1) provides for making of an amendment in the assessment list by insertion or alteration of an entry in certain events, after hearing any objections to the amendment, Section 82(3) makes the amendment effective from 'the earliest day in the current official year in which the circumstances justifying the entry or alteration existed. ' The expression clearly signifies the earliest day in the official year which is current when the amendment in the assessment list takes place, that is, the official year which is running at the time when the amendment is made by insertion or alteration of an entry.
Therefore, a combined reading of section 82(1) and (3) shows that an amendment, in order to be effective in levying tax for an official year, must be made during the currency of the official year.
The scheme of sections 78 to 81 is identical with section 82 and in both cases what is contemplated first is a proposal to which objections are invited and after the objections are investigated and disposed of, the assessment list in one case, and the altered entry in the other, are authenticated, giving rise to liability in the rate payer.
It must follow a fortiori that if an alteration in the assessment list in order to fasten liability on the rate payer, is required to be made during the currency of the official year equally, the assessment list, in order to give rise to liability in the rate payer, must also be authenticated before the expiry of the official year.
[890 C 891 B] Sholapur Municipality vs Governor General, 49 Bom.
L.R. 752 and Sholapur Municipal Corporation vs Ramchandra 74 Bom.
L.R. 489 referred to.
(d) Three High Courts having jurisdiction over the territories in which the Act is in force have all taken this view over a course of years and this Court will not be justified in departing from it, merely on the ground that a different view is possible.
This Court is ordinarily loathe to interfere with the interpretation of a State statute which has prevailed in the State for a long number of years and which the State Legislature has chosen not to disturb by legislative amendment.
[891 C D] (e) In the present case, the Bombay Legislature has accepted the interpretation of sections 78 to 81 by the three High Courts and given legislative recognition to it by introducing section 84A by Bombay Act 53 of 1954.
This provision makes it clear that the legislature not only did not amend the Act for the purpose of removing the time limit of the official year as interpreted by the High Courts or enlarging such time limit, but on the contrary, made the time limit more stringent by providing that the authentication shall be made by the Municipal Borough not late than July 31, of the official year, and that if the authentication is not made within that time, the State Government shall be entitled to appoint a person for the purpose of authenticating the assessment list and that the authentication by such person shall not, in any event, be later than the last day of the official year.
[891 D H] (2) Section 206A provides, inter alia, that no suit shall lie against a municipality in respect of any act done in pursuance of execution or intended execution of the Act unless it is commenced within 6 months next after the accrual of the cause of action.
It could not, however, be contended that the cause of action for the suit in the present case arose in favour of the respondents and other rate payers on July 24, 1952, when the list was authenticated and that the suit, not having been filed within 6 months of that date, is barred.
The assessment list in the present case was authenticated after the expiry of 885 the official year and was void and inoperative and the respondents and other rate payers were entitled to ignore it as a nullity.
Their cause of action arose only when the appellant sought to recover the amount of tax from them on the strength of that assessment list.
In the absence of material to show when the notices demand requiring the respondents and other rate payers to pay the amount of tax were issued, or which rate payers paid and when it is not possible to say whether the cause of action for filing the suit arose to the respondents within six months before the filing of the suit or earlier.
[892 A E]
|
Civil Appeal No. 1381 of 1968.
(Appeal by Special Leave from the Judgment and Decree dated the 22 2 1967 of the Bombay High Court in First Appeal No. 12/1960).
M. N. Phadke, M. N. Shroff and section P. Nayar, for the appellant.
V. section Desai and D. Goburdhan, for the respondent.
981 The Judgment of the Court was delivered by BHAGWATI, J.
This appeal by special leave raises a short question as to whether the Watan held by the respondent at the date of coming into force of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950 was a Watan of the soil, or a Watan of land revenue only, in respect of certain lands situate in village shirambe, Taluka Koregaon, District North Statara.
If the Watan was in respect of the soil, the respondent would not be entitled to any compensation for the resumption of the Watan lands, but if it was a Watan of land revenue only, the respondent would have a claim for compensation for a "a sum equal to ten times the amount of such land revenue" under section 6(2) of the Act.
The respondent claimed that the Watan was of land revenue only and not of the soil and he was, therefore, entitled to compensation as provided in section 6(2) of the Act and filed a suit for recovery of Rs. 15,074 4 0 by way of compensation against the State of Maharashtra in the Court of Civil Judge, Senior Division, Satara.
The claim was decreed by the learned Civil Judge, Senior Division and on appeal by the State of Maharashtra the High Court affirmed the view taken by the learned Civil Judge, Senior Division.
The High Court construed the Sanad granted by the British government in favour of the ancestors of the respondent in the light of the surrounding circumstances and particularly the entries contemporaneously made in the alienation register and came to the conclusion that the grant embodied in the Sanad was not a grant of the soil but was merely a grant of land revenue and the respondent was, therefore, entitled to claim compensation the basis laid down in section 6(2) of the Act.
The State of Maharashtra being aggrieved by the decree passed by the learned Civil Judge, Senior Division and affirmed by the High Court preferred the present appeal with special leave obtained from this Court.
We have carefully gone through the judgment of the High Court and we find ourselves completely in agreement with the conclusion reached there.
The judgment of the High Court is a well reasoned judgment and the learned counsel appearing on behalf of the State of Maharashtra has not been able to show any infirmity in it.
The opening part of the Sanad clearly shows that it was issued in recognition of a grant which was already made in favour of the ancestors of the respondent.
The Sanad undoubtedly used the word 'lands ' to describe the subject matter of the grant, but the word 'land ' is defined in Bombay Act 2 of 1863 to include share of land revenue and this meaning should apply in the construction of the word 'land ' in the Sanad, since the Sanad was apparently granted pursuant to the enquiry made under Bombay Act 2 of 1863.
The description of the subject matter of the grant as 'lands ' in the Sanad would not, therefore, necessarily indicate that it was a grant of the soil.
In fact, this description standing alone would rather indicate that it was a grant of land revenue only, since grant of the soil would ordinarily be accompanied by words such as 'Darobast ' or 'Jal ', 'Taru ', 'Truna ', 'Kastha ' and 'Pashan. ' Moreover, the entries contemporaneously made in the alienation register also showed that the grant referred to in the Sanad was a grant of land revenue only and not a grant of the soil.
The High 982 Court has discussed these entries and it is not necessary for us to reiterate what has been so ably said by the High Court.
The earlier documents relied upon by the respondent have also been referred to by the High Court and they clearly go to show that the grant was of land revenue and not of the soil.
This position was in fact accepted by the Revenue officers all throughout and that is evident from the order of the District Deputy Collector, Satara dated 19th August, 1937 (exhibit 28) and the decision dated 28th February, 1951 (exhibit 331) given by the Collector of North Satara allowing an appeal filed by the respondent.
We are, therefore, of the view that the High Court was right in holding that the grant in favour of the ancestors of the respondent was a grant of land revenue only and not a grant of the soil and since the Watan held by the respondent at the date of the coming into force of the Act was a Watan of land revenue, the respondent was entitled to compensation in the sum of Rs. 15,074 4 0 under section 6(2) of the Act.
It is indeed difficult to understand as to why the State of Maharashtra should have preferred the present appeal at all.
The judgment of the High Court was pre eminently a correct judgment based on a careful appreciation of the evidence on record and it did no more than adopt a construction of the grant which had throughout been accepted as the correct construction by the Revenue officers over the last 75 years.
The learned counsel appearing on behalf of the State of Maharashtra in fact found it impossible to assail the reasoning of the judgment.
It is evident that the appeal was filed by the State of Maharashtra without giving much thought to the question and caring to enquire whether the judgment of the High Court suffered from any errors requiring to be corrected by a superior court.
We do not think it is right that State Governments should lightly prefer an appeal in this Court against a decision given by the High Court unless they are satisfied, on careful consideration and proper scrutiny, that the decision is erroneous and public interest requires that it should be brought before a superior court for being corrected.
The State Governments should not adopt a litigious approach and waste public revenues on fruitless and futile litigation where there are no chances of success.
It is unfortunately a fact that it costs quite a large sum of money to come to this Court and this Court has become untouchable and unapproachable by many litigants who can not afford the large expense involved in fighting a litigation in this Court.
It is, therefore, all the more necessary that State Governments, which have public accountability in respect of their actions, should not lightly rush to this Court to challenge a judgment of the High Court which is plainly and manifestly correct and drag the opposite party in unnecessary expense, part of which would, in any event, not be compensated by award of cost.
The present appeal is an instance of the kind of unnecessary and futile litigation which the State Governments can and should avoid.
We accordingly dismiss the appeal with costs.
S.R. Appeal dismissed.
| IN-Abs | The respondent by virtue of the sanad granted to his ancestors by the British Government, claimed, in respect of certain lands situated in village Shiramba Taluka Koregaon, District North Satara, compensation under section 6(2) of the Bombay Paragana and Kulkarni Watans (Abolition) Act.
1950, for the resumption of the lands by the appellant.
The suit claim of Rs. 15,074 4 0 being "a sum equal to ten times the amount of such land revenue" was decreed by the trial court.
On appeal by the State, the High Court affirmed the same.
after construing the sanad granted by the British Government in favour of the respondents ' ancestors and other relevant records, as it was a watan of land revenue and not in respect of the soil.
Dismissing the State 's appeal by special leave to this Court, ^ HELD: (1) The High Court was right in holding that the grant in favour of the ancestors of the respondent was a grant of land revenue only and not a grant of the soil and since the watan held by the respondent at the date of the coming into force of the Act was a watan of land revenue the respondent was entitled to compensation in the sum of Rs. 15,074 4 0 under section 6(2) of the Bombay Paragana and Kulkarni Watan (Abolition) Act, 1950.
[982B C] (2) The sanad undoubtedly used the words "lands" to describe the subject matter of the grant, but the word "land" is defined in Bombay Act II of 1863 [The Exemption From Land Revenue (No. 1 ) Act 1863], to include share of land revenue and this meaning would apply in the construction of the word "land" in the sanad since the sanad was apparently granted pursuant to the enquiry made under Bombay Act II of 1863.
The description of the subject matter would not, therefore, necessarily indicate that it was a grant of the soil.
In fact, this description standing alone would rather indicate that it was a grant of land revenue only, since grant of the soil would ordinarily be accompanied by words such as 'Darobast ' or 'Jal ', 'Taru ', 'Truna ', 'Kastha ' and 'Pashan '.
[981F H] [Their lordships deprecated the litigious approach adopted by the State Government and observed "State Governments which have public accountability in respect of their actions should not lightly rush to this Court to challenge a judgment of the High Court which is plainly and manifestly correct and drag the opposite party in unnecessary expense.]
|
Civil Appeal Nos.
68 of 1974 and 936 of 1975.
Appeals by Special Leave from the Judgment and order dated 5 11 1973 of the Punjab & Haryana High Court in Sales Tax Reference Nos. 12 and 11 of 1969.
Desai, (In CA No. 936/75), P. C. Bhartari, R. Narain, K. J. John, O. C. Mathur for the Appellants.
B. Sen, (In CA No. 68/74), and R. N.Sachthey for the Respondent.
P. C. Bhartari for Applicant/Interveners (In CA No.68/74).
The Judgment of the Court was delivered by RAY, C.J.
This appeal by special leave is on the question whether the appellant is exempt from inter State tax on the sales of poles and cables to the Delhi Electric Supply Undertaking by reason of the provisions contained in section S(2)(a)(iv) of the Punjab Sales Act hereinafter referred to as the State Act.
Section 5(2) (a) (iv) of the State Act is as follows: "5(2) In this Act the expression "taxable turnover" means that part of a dealer 's gross turnover during any period which remains after deducting therefrom (a) his turnover during that period on (iv) sales to any undertaking supplying electrical energy to the public under a licence or sanction granted or deemed to have been granted under the , of goods for use by it in the generation or distribution of such energy.
" Under section 8 of the hereinafter referred to as the Central Act, every dealer, who in the course of inter State 994 trade or commerce sells to the Government any goods; or sells to a registered dealer other than the Government goods of the description referred to in sub section (3) shall be liable to pay tax under this Act, which shall be three per cent of his turnover.
The provisions in section 8(2A) of the Central Act are as follows : "Notwithstanding anything contained in sub section (1A) of section 6 or sub section (1) or sub section (2) of this section, the tax payable under this Act by a dealer on his turnover in so far as the turnover or any part thereof relates to the sale of any goods, the sale or, as the case may be, the purchase of which is, under the sales tax law of the appropriate State, exempt from tax generally or subject to tax generally at a rate which is lower than three per cent, (whether called a tax of fee or by any other name), shall be nil or, as the case may be, shall be calculated at the lower rate.
EXPLANATION: For the purposes.
, of, this sub section a sale or purchase of any goods shall not be deemed to be exempt from tax generally under the sales tax law of the ' appropriate State if under that law the sale or purchase of such goods is exempt only in specified circumstances or under specified conditions or the tax is levied on the sale or purchase of such goods at specified stages or otherwise than with reference to the turnover of the goods.
" The contention on behalf of the appellant is that by reason of the Explanation to section 8(2A) of the Central Act read with section 5(2)(a)(iv) of the State Act the appellant is exempt from payment of inter State sales tax.
The words "goods for use by it in the gene ration or distribution of such energy" occurring in section S (2) (a) (iv) of the State Act are said by counsel for the appellant to be descriptive of the goods.
In short, the appellant 's contention is that goods for use by the undertaking supplying electrical energy are generally exempt from taxation, and, therefore, they should not be included in the turn over.
The contention on behalf of the State is that the exemption granted under section 5(2)(a)(iv) of the State Act is exemption in specified circumstances and under specified conditions.
The specified circumstances are said to be sales to an undertaking supplying electrical energy to the public under the .
The specified conditions are that the goods are for use by the undertaking in the generation or distribution of such energy.
The answer to the question in this appeal is whether the exemption mentioned in section 5(2) (a) (iv) of the State Act is in specified cir circumstance or under specified conditions, as the Case may be, or it is a general exemption as the appellant contends in cases of sales of goods to an Electric Supply Undertaking for use by it in the generation or distribution of such energy.
995 The appellant referred to Schedule read with section 6 of the State Act and in particular Items 33 and 46 to illustrate what would be exemption under specified circumstances or specified conditions.
In Schedule there are two columns.
The first column describes the goods.
The second column describes the conditions which make the goods tax free.
In Item 33 in Schedule "Photographs including Xrays photographs" mentioned in the first column are tax free "when sold by photographers and radiologists preparing them" as mentioned in the second column.
In Item 46 "hand spun yarn" mentioned in the first column becomes tax free "when sold by one who deals in hand spun yarn exclusively" as mentioned in the second column Section 5(2) of the State Act deals with taxable turnover.
There is no dispute that electricity poles and cables sold to the undertaking supplying electric energy are exempt under the State Act from being included within the taxable turnover.
The question is whether such sales made in the course of inter State trade are also exempt from the levy of Central Sales Tax.
The appellant contends that the exemption in the State Act is general because exemption applies in respect of goods without any enumeration or classification of goods.
Further, it is said that exemption is general because the sales are for use in generation and distribution of electrical energy.
According to the appellants sales of all goods to the undertaking supplying electrical energy are exempt from being included in the taxable turnover as long as the goods answer the description that they are for use in the generation or distribution of electrical energy.
The appellant relied on the decision of the Madhya Pradesh High Court in Commissioner of Sales Tax, Madhya Pradesh vs Kapoor Dori Niwar & Co., Gwalior(1) tn support of the meaning of the expression "exempt from tax generally".
In the Madhya Pradesh case (supra) the State Government issued a notification in the year 1959 exempting from the payment of sales tax for a period of one year sales of niwar by a dealer registered under the 1958 relevant State Act.
The exemption was later on extended up to 31 March, 1963.
The assessee a registered dealer claimed exemption on inter State sales of niwar.
The Madhya Pradesh High Court held that during the period of the exemption, the sales of niwar by a registered dealer were exempt from tax generally within the meaning of section 8(2A) of the Central Act, and, therefore, the assessee 's inter State sales of niwar were exempt from tax under the Central Act.
The expression "exempt only in specified circumstances or under specified conditions" occurring in the Explanation to section 8(2A) of the Central Act was held to mean such circumstances or conditions the non existence or non performance of which precludes the grant of exemption.
In other words, if those circumstances do not exist or those conditions are not performed then the sales of goods cannot be exempted from tax even if they are effected by a class of dealers to whom exemption is granted and during the period for which exemption is granted.
996 In the Madhya Pradesh case (supra) there was no dispute that the sales effected by the assessee fell under section 8(1) of the Central Act.
The State Act granted exemption from sales tax on sales of niwar effected by a registered dealer.
The exemption granted to sales by a registered dealer under the notification was without any restriction or limitation so far as sales by a registered dealer were concerned.
Though the period of exemption was fixed, it was not regarded as a condition imposed in relation to the exemption.
It was also contended there that because the exemption was granted to the registered dealers the exemption was granted to a class of dealers, and, therefore, it should be construed to be an exemption in specified circumstances or under specified conditions.
The Court repelled the contention by stating that the exemption was to all registered dealers without any restriction or condition.
The other decision on which the appellant relied is of the Allahabad High Court in Hindustan Safety Glass Works (P.) Ltd. vs The State of Uttar Pradesh & Anr.(1) In the Safety Glass Works case (supra) the company manufactured toughened glasses and mirrors in its factories.
Under a notification issued by the State Government under the State Act sales of mirrors and safety glasses were liable to sales tax either at the point of sale by the importer of such goods or at the point of sale by the manufacturer thereof.
Subsequently, a notification was issued by the State Government exempting toughened glasses and mirrors manufactured by the company at Allahabad from payment of sales tax for a period of three years.
The company claimed that the turnover of sales of toughened glasses and mirrors manufactured by it, being generally exempt from tax under the State Act, was also not liable to Central Sales Tax because of the provisions contained in section 8(2A) of the Central 'Act.
It was held that for purposes of section 8(2A) of the Central Act, sale of mirrors and toughened glasses manufactured by the company was under no condition and in no circumstance liable to be taxed in the hands of the company.
The reasons given were that normally it will be taken that the sale of mirrors and toughened glasses by the company was exempt from to the generally unless it could be shown that such goods belonged to the class specified in the Explanation to section 8(2A) of the Central Act.
As the toughening glasses and mirrors manufactured by the company did not fall in such a category the turnover of the sales of those goods in the hands of the company was not liable to tax under the Central Act.
The stipulation in the notification in the Safety Glass Work case (supra) that the turnover of such sales would for a period of three years be exempt from payment of sales tax did not amount to exempting the turnover of such goods from tax under specified circumstances or specified conditions.
Section 6 of the State Act does not speak of exemption, but deals with tax free goods.
In other words, section 6 deals with specified goods on which no tax is payable.
Section S of the State Act deals with what has to be excluded from the taxable turnover of the dealer.
997 Both the sections deal with goods which do not suffer from sales tax.
A Section 8(2A) of the Central Act exempts goods from inter State sales tax where a tax law of the State has exempted them from sales tax.
The Explanation to section 8(2A) of the Central Act takes away the exemption where it is not general and has been granted in specified circumstances or under specified conditions.
The provisions contained in section 5 (2) (a) (iv) of the State Act exclude sales which are made under specified circumstances or specified conditions.
The specified circumstances are that the sale must be to an undertaking engaged in supplying electrical energy to the public under a licence or sanction granted under the .
The specified condition is that the goods purchased by the undertaking must be used for the generation or distribution of electrical energy.
If the circumstances do not exist or if the conditions are not performed then the sales of goods cannot be exempted from tax.
General exemption means that r the goods should be totally exempt from tax before similar exemption from the levy of Central sales tax can become available.
Where the exemption from taxation is conferred by conditions or in certain circumstances there is no exemption from tax generally.
The contention of the appellant that the words "in the generation or distribution of such energy" in section 5(2)(a)(iv) of the State Act are descriptive of goods is unacceptable.
The expression "generation or distribution of such energy" specifies the condition under which exemption is granted.
For these reasons we are of opinion that the High Court was correct in holding that the sales by the undertaking supplying electrical energy were not exempt from tax generally within the meaning of section 8(2A) of the Central Act read with section 5(2)(a)(iv) of the State Act.
The appeal is dismissed.
In view of the fact that the High Court directed the parties to pay and bear their own costs, similar order is made here.
S.R. Appeal dismissed.
| IN-Abs | Under section 5(2)(a)(iv) of the Punjab Sales Tax Act "taxable turnover" meant that part of a dealer 's gross turnover during any period which remains after deducting therefrom, his turnover during that period on sales to any undertaking supplying electrical energy to the public under a licence or sanction granted under the , of goods for use by it in the generation or distribution of such energy.
Under section 8 of the Central Sales Tax, every dealer.
who in the course of inter state trade or commerce sells to the Government any goods: or sells to a registered dealer other than the Government goods of the description referred to in sub section (3) shall be liable to pay tax under the Act, which shall be three per cent of his turnover.
Section 8(2A) reads as follows: "Notwithstanding anything contained in sub section (1A) of section 6 or sub section (1) or sub section (2) of this section, the tax pay able under this Act by a dealer on his turnover in so far as the turn over or any part thereof relates to the sale of any goods, the sale or, as the case may be, the purchase of which is, under the sales tax law of the appropriate state, exempt, from tax generally, or subject to tax generally at a rate which is lower than three per cent.
(whether called a tax or fee or by any other name), shall be nil or, as the case may be shall be calculated at tho lower rate.
Explanation: For the purpose of this sub section or sale or purchase of any goods shall not be deemed to be exempt from tax generally under the sales tax law of the appropriate state, if under the law the sale or purchase of such goods is exempt only in specified circumstances or under specified conditions or the tax is levied on the sale or purchase of such goods is exempt only in specified circumstances or under specified conditions or the tax is levied on the sale or purchase of such goods at specified stages or otherwise than with reference to the turnover of the goods.
" The appellants were suppliers of poles and cables to the Delhi Electric Supply Undertaking and the sales were in the course of inter state trade or commerce and admittedly exempt under the state sales tax u/s 5(2) (a) (iv).
The state assessed tax u/s 8 of tho on the ground that the exemption granted u/s 5(2)(a)(iv) of the state Act fell under Explanation to section 8(2A) of the .
The High Court held that the sales by the undertaking supplying electrical energy were not exempt from tax generally within the meaning of section 8(1A) of the Central Act read with Section 5(2)(a)(iv) of the State Act.
Dismissing the appeal, by special leave, the Court.
^ HELD: (I) General exemption means that goods should be totally exempt from tax before similar exemption from the levy of central sales tax can become available.
Where the exemption from taxation is conferred by conditions or in certain circumstances there is no exemption from tax generally.
Section 6 of the State Act does not speak of exemption but deals with tax free goods.
Section 6 deals with specified goods on which no tax is payable.
993 Section 5 of the State Act deals with what has to be excluded from taxable turnover of the dealer.
Both the sections deal with goods which do not suffer from Sales tax.
Section 8(2A) of the Central Act exempts goods from inter State Sales tax where a tax law of the state has exempted them from sales tax.
The explanation to section 8(2A) of the Central Act takes away the exemption where it is not general and has been granted in specified circumstances or under specified conditions.
The provisions contained in section 5(2) (a) (iv) of the state Act exclude sales which are made under specified circumstances or specified conditions.
The specified circumstances are that the sale must be to an undertaking engaged in supplying electrical energy to the public under a licence or sanction granted under the .
The specified condition is that the goods purchased by the undertaking must be used for the generation or distribution of electrical energy.
If the circumstances do not exist or if the conditions are not performed then the sales of goods cannot be exempted from tax.
The expression "generation or distribution of such energy" specifies the condition under which exemption is granted.
[996H, G97A D] Commissioner of Sales Tax, M.P. vs Kapoor Dari Niwar & Co., Gwalior 22 STC p. 152; Hindustan Safety Glass Works (P) Lrd.
vs The State of U.P. and Anr.
34 STC 209, discussed.
|
ION: Civil Appeal No. 119 of 1975.
Appeal by Special leave from the Judgement and order dated 15 4 1974 of the Punjab and Haryana High Court in Civil Writ Petition No. 4289 of 1973.
N. N. Goswami and Arvind Minocha for the Appellant.
G.B. Pai, section R. Agarwal, Parveen Kumar and Khaitan & Co. for Respondent No. 2.
1011 The Judgment of the Court was delivered by RAY, C.J.
This appeal by special leave turns on the question whether the State can be asked by a writ of mandamus to make a reference under section 10(1) of the Industrial Disputes Act (hereinafter referred to as the Act).
The appellant was employed by the respondent company Hindustan Dowidat Tools Ltd. The services of the appellant were terminated on 4th September, 1972.
The appellant thereafter demanded reinstatement.
The Conciliation officer started conciliation proceedings under section 12 of the Act.
No settlement could be arrived at.
The Conciliation officer sent a report to the State Government under section 12(4) of the Act.
The State Government by letter dated 7 June, 1973 informed the appellant that the Government had considered the appellant 's case not fit for reference to the Labour Court for adjudication.
The Government in the letter stated as follows: "The Government have not found your case fit for adjudication to a Labour Court because you were working as an Electrical Foreman in this concern, which was a supervisory job and your wages were more than Rs. 500/ per month.
Therefore, your case is not covered by the definition of the terms "Workman" given in the Industrial Disputes Act.
" The appellant under Article 226 of the Constitution applied for a writ of mandamus directing the State to make a reference.
The High Court dismissed the application.
The appellant contended that the question whether the appellant was a workman was a disputed question of fact and law which could be decided only by an appropriate Labour Court.
The appellant also submitted that if the dispute in question raises questions of law the appropriate Government should not give a final decision on the question.
In short, the appellant 's contention is that the issue whether the appellant is a workman or not could only be decided by the Labour Court and, therefore, reference should have been made.
Under Section 10 of the Act where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time refer the dispute, inter alia, to a National Tribunal for adjudication.
Section 12 of the Act deals with duties of Conciliation officers.
If the Conciliation officer cannot arrive at a settlement of the dispute he sends a report to the appropriate Government.
Under section 12(S) of the Act if, on a consideration of the report referred to in sub section (4), the appropriate Government is satisfied that there is a case for reference, it may make such reference.
Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor.
1012 This Court in State of Madras vs C.P. Sarathy and State of Bombay vs K.P. Krishnan & ors.
held that the order of the Government acting under section 10(1) read with section 12(5) of the Act is an administrative order and not a judicial or a quasi judicial one.
In Bombay Union of Journalists & ors.
vs The State of Bombay and Anr.
this Court said that in entertaining an application for a writ of mandamus against an order made by the appropriate Government under section 10(1) read with section 12(5) of the Act the Court does not sit in appeal over the order and is not entitled to consider the propriety or the satisfactory character of the reasons given by the Government.
If it appears that the reasons given show that the appropriate Government took into account any consideration irrelevant or foreign, then the Court may in a given case consider the case on a writ of mandamus.
In K.P. Krishnan 's case (supra) the issues in dispute related to a claim of classification for specified employees and additional bonus and the sole ground on which the Government refused to refer the dispute for adjudication under section 12(5) of the Act was that the employees had adopted go slow tactics during the relevant year.
The facts were that the company had nevertheless voluntarily paid three months ' bonus for that year and the report of the Conciliation officer was in favour of the employees.
This Court held that the Government acted on irrelevant considerations and issued a writ of mandamus.
In the present case, the fact is that the Government found that the appellant was not a workman within the definition of workman in the Act, and, therefore, it was not a fit case for reference for adjudication.
The High Court rightly rejected the application.
The appeal is, therefore, dismissed.
Parties will pay and bear their own costs.
S.R. Appeal dismissed.
| IN-Abs | Under section 12(5) read with 10(1) of the Industrial Disputes Act, if on consideration of a failure report u/s 12(4) from the conciliation officer, the appropriate Government is satisfied and is of opinion that there is an industrial dispute and a case for reference, it may make such reference to the labour court.
On considering the "failure report", of the conciliation proceedings in respect of the appellant, an Electrical foreman, the respondent state informed him that his duties being supervisory with wages more than Rs. 500/ his case was not covered by the definition of the terms "workman" under the Industrial Disputes Act and therefore, not a fit case for adjudication.
The appellant assailed the said orders under Art.226, which was dismissed.
On appeal by special leave the appellant contended that the question whether an employee is a workman or not was a disputed question of fact and law and, therefore could only be decided by a labour court and on a reference only but not by the State Government while exercising its powers u/s 12(5).
Dismissing the appeal, the Court ^ HELD: (1) The order of the Government acting under section 10(1) read with section 12(5) of the Industrial Disputes Act passed after subjective satisfaction is an administrative order and not a judicial or a quasi judicial one.
[1012A] Sate of Madras vs C. P. Sararthy, and State of Bombay vs K. P. Krishnan & ors.
[followed].
(ii) In entertaining an application for a writ of mandamus against an order made by the appropriate Government under section 10(I) read with section 12(S) of the Act the court does not sit in appeal over the order and is not entitled to consider the propriety or the satisfactory character of the reasons.
If it appears from the reasons given that the appropriate Government took into account any consideration irrelevant or foreign, then the court may in a given case consider the case for a writ of mandamus.
[1012 A C] Bombay Union of Journalists ors vs The State of Bombay
|
N: Criminal Appeal No. 250 of 1971.
Appeal by special leave from the judgment and order dated the 1st July, 1971 of the Gujarat High Court at Ahmedabad in Criminal Appeal No. 33 of 1970.
N. N. Keswani, for the appellant.
section N. Anand and M. N. Shroff, for the respondent.
1054 The Judgment of the Court was delivered by SARKARIA, J.
The appellant in this appeal was Accused No. 2 in the trial court.
He was a Head Constable (Jamadar) posted at the relevant time in Police Station, Zinzuwada.
His co accused (No. 1) was a Police Sub Inspector posted in the same station.
One Bai Sati,was alleged to have been abducted by Ghanshyamsinh alias Ghanuba.
She was in the Police Station on the 10th and 11th of July, 1968.
Accused 1 recorded her statement and thereafter asked one Fateh Sinh (PW 7) to bring and produce his cousin Ghanshamsinh.
Fateh Sinh accordingly produced Ghanshamsinh before Accused 1 on July 11, 1968.
Accused 1 directed the appellant to take charge of Ghanshamsinh.
The appellant did likewise and told Ghanshamsinh that if he wanted to get rid of the charge, he should gratify the Sub Inspector.
The appellant backed up the suggestion with a threat to handcuff Ghanshamsinh and put him in the police lock up.
The appellant further demanded a bribe of Rs. 2,000/ .
At first Ghanshamsinh expressed his inability to pay the amount.
Ultimately at the intervention of Accused 2, the demand was scaled down to Rs. 1,000/ and it was agreed that out of the amount, a sum of Rs. 500/ would be paid on the following evening at the latest.
Ghanshamsinh was then allowed to go.
He then talked about this deal to his cousin, Fatehsinh.
On the following day, Ghanshamsinh went to Ahmedabad and contacted Shri R. R. Desai (PW 8), Inspector of the Anti Corruption staff of Police and made a complaint which was recorded.
Shri Desai then in the presence of Panchas, supplied a sum of Rs. 500/ in five currency notes of the denomination of Rs. 100/ each to Ghanshamsinh for use in the trapping the accused persons in the act of taking the bribe.
The notes were smeared with anthracene powder and Ghanshamsinh was directed to hand over the same on demand to the accused, and then signal to the raiding party.
After settling the plan, the party came to Zinzuwada on July 12, 1968.
Ghanshamsinh was sent ahead with the tainted money to the Police Station.
On seeing Ghanshamsinh along with Panch Mahendra going to the residence of Accused 1, the appellant called him and took him to his office room in the Police Station.
Ghanshamsinh informed the appellant that he had brought the money as agreed for payment to Accused 1.
The appellant told him that Accused 1 being away, he was the acting Station House Officer and the money should be paid to him, adding that he would, in turn, pass it on to Accused 1 on his return.
Ghanshamsinh then handed over those five currency notes to the appellant who accepted the same and placed them in the drawer of his table.
All the three persons then came out of the room.
The appellant locked the room.
On receiving the agreed signal from Ghanshamsinh, the police party rushed in and caught hold of the appellant by the hand.
With the key found on the person of the appellant, Inspector Desai unlocked the room and recovered the currency notes from the drawer of the appellant 's table.
The hands of the complainant Ghanshamsinh, Panch Mahendra and the appellant were examined in the light of an ultra violet lamp.
Such examination revealed anthracene powder on the hands of the appellant and Ghanshamsinh; but no such powder was seen on Panch Mahendra.
Shri 1055 Desai prepared the Panchnama.
Certain police papers on the demand of Inspector Desai were produced by the Writer Constable, Kansanbhai.
These are: (1) Statement, dated July 11, 1968 of Bai Sati recorded by Accused 1; (2) Statement dated July 11, 1968 of Koli Mana Jiva, recorded by Accused 1; (3) the writing sent by Police Sub Inspector, Dasuda under Javak No. 2991 dated July 10, 1968 as per endorsement dated July 18, 1968 to the Police Inspector, Zinzuvada; (4) The Statement of Bai Sati recorded by the Police Sub Inspector at Dasuda on July 10, 1968.
The Inspector seized these records.
After completing the investigation, the police sent both the accused under a charge sheet for trial before the Special Judge, Surendranagar on charges under section 161 read with section 34 and section 165A of the Penal Code and under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act.
The trial Judge acquitted both the accused of all the charges levelled against them.
On appeal by the State, the High Court of Gujarat, reversed the acquittal of the appellant and convicted him on two counts, namely, one for an offence under section 161, Penal Code and the other under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act and sentenced him to suffer rigorous imprisonment for two years on the latter count.
No separate sentence under section 161, Penal Code was inflicted.
Hence this appeal by special leave.
The mainstay of the prosecution case is the testimony rendered by Ghanshamsinh (PW 1) and Panch Mahendra (PW 4) and Police Inspector Desai.
The first two are witnesses of the demand of the tainted currency notes and the acceptance thereof by the appellant from PW 1.
Inspector R. R. Desai, PW 8, was the Head of the raiding party who recovered the tainted notes.
Examined under section 342, Cr.
P.C., the appellant while denying the demand of the bribe on the 11th July, 1968 from Ghanshamsinh, gave this account of what happened on the 12th July 1968: ". the complainant Ghanubha Champubha and his companion came up to me.
I asked Ghanubha as to why he had come.
He informed me that his companion was related to the P.S.I.,and that he had some work with him.
He told me that he had accompanied him to show him the police station.
I offered them seats, and gave them water.
I questioned the above person about his relationship with the Sub Inspector.
He replied to me that he was the agnate of P.S.I. Joshi, and that he had come to hand over money to him as his son was sick and that, the said money was sent by his family from Ahmedabad.
I instructed him to approach his wife and give money to her.
He told me that if he met her, he would have to stop for the night, so that he would not be able to attend the H.L. College in the morning.
He told me to take the money and give it to P.S.I. 1056 Joshi, and that, I should arrange for his transport to Ahmedabad in some motor truck proceeding there.
He gave me Rs. 500/ in five G. C. Notes, which are now before the Court at article 2.
I placed them in a cloth purse, and kept it in my drawer, over the said application of Narubha exhibit 51.
I offered them tea and asked them to wait outside.
I also told him that I would arrange for his lift in the motor truck carrying salt to Ahmedabad.
So saying, we came out of the police station.
I locked my room because in it, are placed arms and ammunitions.
I was leaving the Police Station and going to the hotel for placing an order for tea, when two men held me by my two hands.
They brought me in the compound of the Police Station.
Other 3, 4 men turned up, and one Saheb from amongst them asked me to produce the money.
I exclaimed, "What money": I told him if the money, that was required, was the same, which the cousin of P.S.I. Joshi had handed over to me.
The officer insisted that the money must be produced.
I was then perplexed.
He took the key from one of my hands and opened my room, and took out the money.
I was seated in the verandah and was not allowed to go inside.
I then learnt that the said brother of the P.S.I. was none else but Panch No. 1.
The Officer asked from me the papers of investigation against Ghanubha.
I said that I had no such papers, and that I had not made any such investigation against him.
He then attached some papers from the Writer Constable Karsan Talshi.
" Thus, the appellant had admitted the acceptance of the tainted currency notes which were not his legal remuneration.
In variance with the prosecution case, he, however, alleged that this money was handed over to him by Mahendra, PW 4, with the representation that he was a cousin of P. section I. Joshi (who was then away) and the money was to be passed on to Mr. Joshi.
The appellant, further, admitted that after the recovery of the money, when his hands were examined in the light of the ultra violet lamp, shining powder was found thereon.
He expressed ignorance if the hands of Ghanshamsinh and Mahendra were also similarly examined.
He expressed a desire to appear in the witness box and make a statement on oath.
Subsequently, however, he did not do so, but examined one Naruba Dosubha (D.W. 1) in defence, who more or less supported the version of the appellant with regard to the receipt of Rs. 500/ by the appellant from PW Mahendra.
The trial Judge instead of appraising the evidence of the witnesses produced by the prosecution in the light of the admission made by the appellant in regard to the acceptance of money, rejected the prosecution case in toto against both the accused on grounds which were manifestly erroneous and unreasonable.
Without there being any evidence, he came to the conclusion that Ghanshamsinh was a tool in the hands of one Parbhat Singh Jhala, Girasdar of Ahmedabad, who was inimically disposed towards all the members of Zanzuwada Police, including the appellant.
He brushed aside the evidence of Mahendra with the puerile observation that he "as a trainee Press Reporter would be beguiled into 1057 getting this first class report of a sensational raid by acting as a panch witness in this raiding party, at the instance of Mr. Desai. .and in that event, Mahendra would be too willing to accompany the raiding party and in that context would be under the intelligent thumb of police, not by means of pressure, but as a result of human inquisitive, willingness induced in him.
" The trial Judge further stressed the fact that Mahendra had accompanied the raiding party from Ahmedabad to Zunzuwada and had travelled in the police van for over three hours and this in his opinion was sufficient to show that the witness was "not so much independent as he professed to be." He further found it unbelievable that the appellant would accept the sum of Rs. 500/ as a bribe from Ghanshamsinh in the presence of a stranger (Mahendra).
The conclusions reached by the trial Judge had no foundation in evidence.
They belonged to the realm of purespeculation.
Apart from mere suggestions put to the prosecution witnesses, in cross examination, (which were emphatically denied), there was no evidence to show that Parbhat Singh Girasdar was in any way hostile or inimically disposed towards the appellant.
There was no justification for the conjecture that Panch Mahendra was under the thumb of Inspector Desai and as such, was an interested witness.
We have examined the evidence of Mahendra and are satisfied that the High Court rightly found him a truthful and trustworthy witness who had no axe of his own to grind.
The defence version to the effect, that it was Mahendra who had actually passed on the tainted money to the appellant by holding himself out as a relation of the Sub Inspector, was falsified by the circumstance that no anthracene powder was found on Mahendra when immediately after the recovery of the tainted notes, his hands were examined in the light of ultra violet lamp; while such powder was admittedly found on the hands of the appellant, and Ghanshamsinh.
This circumstance was deposed to by Inspector Desai (PW 8) whose version on this point was not challenged in cross examination.
Thus, while DW 1 told a lie on this point, this uncontroverted circumstance could not.
The presence of Mahendra (PW 4) at the time of the receipt of the tainted notes was admitted by the appellant himself.
In the face of this admission, there was no justification for the surmise made by the trial Court, that the appellant, an experienced Head Constable, could not be so stupid as to receive Rs. 500/ as a bribe in the presence of an unknown person.
Thus it had been indubitably established that the appellant, a public servant accepted a gratification, that is, a sum of Rs. 500/ which was not his legal remuneration, from Ghanshamsinh (PW 1).
On proof of this fact, the statutory presumption under s.4(1) of the Prevention of Corruption Act was attracted in full force and the burden had shifted on to the appellant to show that he had not accepted this money as a motive or reward such as is mentioned in section 161, Penal Code.
Mr. Keswani contends that the appellant had rebutted this presumption by bringing on record circumstances which militate against it.
The 1058 first and the foremost of these circumstances, according to the Counsel, is that no complaint whatever against Ghanshamsinh in respect of the commission of an offence was under investigation with the police; that no F.I.R had been lodged by any person complaining of the abduction of Bai Sati against Ghanshamsinh or any other person.
Our attention has been drawn to the statement of Bai Sati, which is said to have been recorded by Accused 1 on the 11th January in which it is recorded that she had not been kidnapped or abducted by any person but had gone away from her father 's house of her own accord.
The second circumstance stressed by the Counsel is that Accused 1 has been acquitted of the charge of demanding a bribe directly or indirectly through the appellant, from Ghanshamsinh.
It is urged that the effect of the acquittal of Accused 1 is that the money passed on to the appellant on the 12th cannot be held to have been paid pursuant to any demand of bribe made by Accused 1 or by the appellant.
The third circumstance, pointed out by the Counsel is that Ghanshamsinh had a grudge against the appellant and a motive to falsely implicate him, because the appellant had previously investigated a criminal case under section 324, Penal Code against the appellant, who being aware of it, would be least disposed to accept the amount, as a bribe, for himself or for the Sub Inspector.
It is further contended that PWs Fatehsinh and Ghanshamsinh were persons of questionable antecedents, and their evidence in the absence of reliable independent corroboration in regard to the demand and acceptance of the money as a bribe could not be safely accepted.
We are unable to accept the contention that the presumption under section 4(1) of the Prevention of Corruption Act had been rebutted.
While it is true that no report or complaint had been made or registered in the Police Station that Ghanshamsinh had abducted Bai Sati, there was credible evidence on the record to believe that both the accused had asked Fatehsinh, PW 7, to produce his cousin Ghanshamsinh in the Police Station in connection with the investigation of a charge of abduction of Bai Sati against him.
Fatehsinh conveyed this message to Ghanshamsinh on July 10, 1968.
Consequently on July 11, 1968, Ghanshamsinh was produced by Fateh Singh before the Police Sub Inspector at the latter 's residence, and thereafter Accused 2, the appellant, took him into the Police Station and made him sit in his room.
It was the appellant who then accused Ghanshamsinh of having abducted Bai Sati and warned him that in case he did not pay money to the Sub Inspector, he would be arrested and paraded in handcuffs around the village.
Evidence of PWs Ghanshamsinh and Fatehsinh with regard to the summoning of Ghanshamsinh to the Police Station to answer a supposed charge of abduction, received assurance from the circumstance that on the 10th and 11th July 1968, Bai Sati was in the Police station.
It is no doubt correct that the High Court has not disturbed the acquittal of Accused 1 on the ground that Ghanshamsinh 's evidence with regard to the demand of the bribe by accused 1 on the 11th, had not been corroborated by other independent evidence.
The only effect of the acquittal of Accused 1, however, is that it cannot be now urged that Accused 1 had demanded any bribe from Ghanshamsinh on 1059 the 11th.
But his acquittal does not in any case discount the fact or obliterate the evidence in regard to the fact that Ghanuba was called to the Police Station and was told by the appellant that there was a charge of abduction of Bai Sati against him.
Nor does the acquittal of Accused 1 have the effect of exonerating the appellant of the demand of bribe on the 11th and again on the 12th.
As already noticed, the testimony of Ghanshamsinh both with regard to the demand of the gratification by the appellant and its payment to him, on the 12th stood fully corroborated by the independent and reliable testimony of Panch Mahendra.
Thus, so far as the appellant is concerned the testimony of Ghanshamsinh, having been fully confirmed by other trustworthy evidence, could safely be acted upon.
As regards the contention that the appellant was not in a position to show any favour or disfavour to Ghanshamsinh in connection with his official duties, it may be noted, in the first place, that on the 12th July at the relevant time, the Sub Inspector being away, the appellant was actually incharge of the Police Station.
This fact is borne out by the entry exhibit 47 in the Station Diary.
On seeing Ghansham and Mahendra going towards the residence of the Sub Inspector, the appellant called them and enquired from Ghanshamsinh if he had brought the money.
Ghanshamsinh replied in the affirmative but hesitated to hand over the money to him saying that the Sub Inspector was not present.
Thereupon, the appellant represented that he was the P.S.I. and that the money should be handed over to him, adding that he would pass it on to the P.S.I. on his return.
Thereupon, Ghanshamsinh paid the amount to the appellant saying that he should not be harassed any more, and that the demand for the balance be mercifully dispensed with.
The appellant while accepting the money assured Ghanshamsinh that he had nothing to fear so long as the appellant was concerned in that affair.
Secondly, this demand for payment and acceptance of the money by the appellant on the 12th July had to be appreciated in the context of the representation made by the appellant on the preceding day, to the effect, that if Ghanshamsinh would not pay the gratification, he would be arrested, handcuffed and paraded for the offence of abducting Bai Sati.
The proof of the foregoing facts was sufficient to establish the charge under section 161, Penal Code.
The mere fact that no case of abduction or of any other offence had been registered against Ghanshamsinh in the Police Station or that no complaint had been made against him to the Police by any person in respect of the commission of an offence, could not take the act of the appellant in demanding and accepting the gratification from Ghanshamsinh, out of the mischief of section 161, Penal Code.
The Section does not require that the public servant must, in fact, be in a position to do the official act, favour or service at the time of the demand or receipt of the gratification.
To constitute an offence under this section, it is enough if the public servant who accepts the gratification, takes it by 1060 inducing a belief or by holding out that he would render assistance to the giver "with any other public servant" and the giver gives the gratification under that belief.
It is further immaterial if the public servant receiving the gratification does not intend to do the official act, favour or forbearance which he holds himself out as capable of doing.
This is clear from the last Explanation appended to section 161, according to which, a person who receives a gratification as a motive for doing what he does not intend to do, as a reward for doing what he has not done comes within the purview of the words "a motive or reward for doing.
" The point is further clarified by Illustration (c) under this Section.
Thus, even if it is assumed that the representation made by the appellant regarding the charge of abduction of Bai Sati against Ghanshamsinh was, in fact, false, this will not enable him to get out of the tentacles of section 161, although the same act of the appellant may amount to the offence of cheating, also (see Mahesh Prasad vs State of U.P.,Dhaneshwar Narain Saxena vs Delhi Admn.
Indeed, when a public servant, being a police officer, is charged under section 161 Penal Code and it is alleged that the illegal gratification was taken by him for doing or procuring an official act, the question whether there was any offence against the giver of the gratification which the accused could have investigated or not, is not material for that purpose.
If he has used his official position to extract illegal gratification, the requirement of the law is satisfied.
It is not necessary in such a case for the Court to consider whether or not the public servant was capable of doing or intended to do any official act of favour or disfavour (see Bhanuprasad Hariprasad Dave and anr.
vs State of Gujarat, and Shri Raj Singh vs Delhi Administration.
In the light of what has been said above, it is clear that the appellant has failed to rebut the presumption arising against him under section 4(1) of the Prevention of Corruption Act.
It is true that the burden which rests on an accused to displace this presumption is not as onerous as that cast on the prosecution to prove its case.
Nevertheless, this burden on the accused is to be discharged by bringing on record evidence, circumstantial or direct, which establishes with reasonable probability, that the money was accepted by the accused, other than as a motive or reward such as is referred to in section 161.
The appellant had hopelessly failed to show such a balance of probability in his favour.
Thus the charge under section 161, Penal Code had been fully brought home to the appellant.
The charge under section 5(1)(d) read with section 5(2), also had been proved against him to the hilt.
Clearly he had obtained the money by grossly abusing his position.
Lastly, towards the fag end, in reply, Mr. Keswani attempted to assail the conviction recorded by the High Court on a ground which had not been raised in the courts below.
The charge against the 1061 appellant was that he had committed an offence under section 161, read with section 34, Penal Code.
No charge under section 161 simpliciter was separately drawn up against him.
This being the case, contends 'Mr. Keswani, the High Court was not, in the event of the acquittal of Accused 1, competent to convict the appellant under section 161 with the aid of section 34 Penal Code.
The contention must be repelled.
Firstly, the High Court has not convicted the appellant with the aid of section 34, Penal Code.
Secondly, although in the charge, only section 161, read with section 34, Penal Code was mentioned, the language of the charge, could leave the appellant in no doubt that in addition to the vicarious charge under section 161, read with section 34, he was being charged with the commission of an offence under section 161, simpliciter also.
This was manifest from the words : "You Accused 2 directly accepted from Shri Ghanshamsinh Champublia Zala Rs. 500/ .
" All the material circumstances appearing in evidence constituting an offence under section 161, Penal Code simpliciter were put to him during his examination.
This objection was not raised in any of the courts below at any stage.
No prejudice has therefore, been caused to the appellant by this technical defect in the charge.
In any case this irregularity stood cured under section 537, Criminal Procedure Code.
For the foregoing reasons, the appeal fails and is dismissed.
V.P.S. Appeal dismissed.
| IN-Abs | The appellant (a Head Constable) and the Sub Inspector of Police were charged with offences under section 161 read with section 34 and section 165A, IPC, and under section 5(2) read with section 5(1)(d) Prevention of Corruption Act, 1947.
The appellant admitted the receipt of money and its recovery from him but stated that PWS 1 and 4 came to the Police Station, that PW 4 claimed to be a relative of the Sub Inspector and that it was PW 4 and not PW 1 who gave him the money to be handed over to the Sub Inspector who was absent.
The prosecution adduced evidence to show that the two accused arranged for the production of PW 1 at the Police Station in connection with the investigation of a charge of abduction of a woman; that the Sub Inspector directed the appellant to take charge of PW 1 when he arrived; that the appellant demanded a bribe from PW 1 to save himself from the charge as well as the indignity of being handcuffed, locked up and paraded; that a trap was set the next day when PW 1 paid the amount in the presence of PW 4 and that the amount was recovered from the appellant in a raid.
The trial court acquitted both the accused, but on appeal, the High Court acquitted the Sub Inspector but convicted the appellant under section 161 IPC and section 5(2).
Prevention of Corruption Act.
In appeal to this Court, the appellant contended, (1) that PW 1 's evidence regarding the payment of gratification should not be accepted without independent corroboration, (2) that the statutory presumption under section 4(1).
Prevention of Corruption Act that the appellant accepted the gratification as a motive or reward such as is mentioned in section 161, I.P.C., should not be drawn against the appellant, because, (a) there was, in fact, no complaint whatever against PW 1 in respect of the commission of the offence of abduction; and (b) the effect of the acquittal of the Sub Inspector was that the money could not be held to have been paid to the appellant pursuant to any 161 demand of bribe; and (c) that since the two accused were charged under section 161 read with section 34, on the acquittal of the Sub Inspector the appellant could not be convicted under section 161 simpliciter.
Dismissing the appeal, ^ HELD: (1) The testimony of PW 1 stood fully corroborated by other independent and reliable testimony and hence could be safely acted upon.
The defence version that it was PW4 who paid the money was falsified by the fact that no anthracene powder, with which the notes used in the raid were smeared, was found on PW 4 's hands.
while it was found on the hands of the accused and PW1.
[1057E; 1059B C] (2)(a) The mere fact that no complaint of abduction or of any other offence had been made or registered against PW 1 could not take the act of the appellant in demanding and accepting the gratification from PW 1 in the context of the threat by the appellant out of the mischief of section 161, I.P.C. The section does not require that the public servant must,in fact,be in a 1053 position to do the official act, favour or service at the time of the demand or receipt of the gratification.
To constitute an offence under this section it is enough if the public servant who accepts the gratification takes it by inducing a belief or by holding out that he would render assistance to the giver, with any other public servant, and the giver gives the gratification under that belief.
It is also immaterial if the public servant receiving the gratification does not intend to do the official act, favour or forbearance which he holds himself out as capable of doing.
The last Explanation and Illustration (c) to the section show that the person who receives a gratification as a motive for doing what he does not intend to do, or as a reward for doing what he has not done, comes within the purview of the words "a motive or reward for doing".
When a public servant, being a police officer, is charged under section 161, I.P.C., and it is alleged that the illegal gratification was taken by him for doing or procuring an official act, the question whether there was any offence against the giver of the gratification which the accused could have investigated or not, is not material for that purpose.
If he has used his official position to extract illegal gratification the requirement of the law is satisfied.
[1059F 1060E] Mahesh Prasad vs State of U.P. ; ; Dhaneshwar Nariam Saxena vs Delhi Admn.
; ; Bhanuprasad Hariprasad Dave and anr.
vs State of Gujarat ; and Shiv Raj Singh vs Delhi Administration ; , followed.
In the present case, on the day of the payment the Sub Inspector was away and the appellant was actually in charge of the police station.
It was he who called PW 1 and asked if he had brought the money and when PW 1 replied in the affirmative but hesitated to hand over the money, represented that the money should be handed over to him, and that he would pass it on to the Sub Inspector, and that PW 1 would have nothing to fear.
[1059C F] (b) The only effect of the acquittal of the Sub Inspector is that it cannot be urged that the Sub Inspector had demanded any bribe from PW 1.
It does not in any way discount the evidence that PW 1 was called to the police station and was informed by the appellant that a charge of abduction was against him and that the appellant demanded and received a bribe from him.
[1058H 1059B] (c) The burden on the accused to displace a presumption is not as onerous as that on the prosecution to prove its case, but the accused has to discharge it by adducing evidence, circumstantial or direct, which establishes with reasonable probability that the money was accepted by the accused other than as a motive or reward such as is referred to in the section.
In the present case,the appellant had failed to show such a balance of probability in his favour.
[1060E G] (3) The language of the charge shows that in addition to the charge under s.161 read with section 34, the appellant was in substance also being charged under section 161 simpliciter.
All the material circumstances appearing in evidence, constituting an offence under section 161, were put to him during his examination under section 342, Cr.
The objection that he could not be convicted under section 161 simpliciter was not raised in any of the courts below.
No prejudice has, therefore, been caused to him because of this technical defect of there being no express charge under section 161 simpliciter, and the irregularity if any, is cured under section 537, Cr.
P.C. [1061B D]
|
N: Criminal Appeal Nos.
212 213/71.
Appeal from the Judgment and order dated the 21st November, 1970 of the Gujarat High Court in Criminal Revision Applications Nos. 321 and 322 of 1969.
section N. Anand and M. N. Shroff for the Appellant.
N. H. Hingorani and (Mrs.) K. Hingorani for the Respondent The Judgment of the Court was delivered by SARKARIA, J.
Controversy in these appeals centres round the interpretation of the words "specially empowered" appearing in section 2(c) of the Suppression of Immoral Traffic in Women and Girls Act, 1956 (to be (hereinafter referred to as the Act).
The facts giving rise to these appeals are as follows: Chaturbhuj Maganlal and Bai Sabita, respondents herein, are husband and wife residing together at Parvati Bhuvan, Rajkot.
Both 1078 of them together with Bai Hamida Basi Mohammed, respondent 3 herein, are accused 1, 2 and 3 respectively, in a trial for offences punishable under sections 5 and 6 of the Act before the Judicial Magistrate, First Class Rajkot in Cr.
Cases Nos. 1372 and 1404 of 1968.
When the trial was about to commence in these cases, the accused moved applications raising an objection that the Magistrate had no jurisdiction to try the offences as he had not been "specially empowered" as required by section 2(c) of the Act.
The Magistrate rejected those applications whereupon the accused went in revision before the Sessions Judge, Rajkot who dismissed the same.
Aggrieved, the accused filed two revisions (Cr. R. 321 and 322 of 1969) in the High Court of Gujarat.
A learned Judge of the High Court allowed the revisions on the ground that Mr. Modha, Magistrate 1st Class Rajkot, before whom these cases were pending, had no jurisdiction to try the same because the State Government notification, dated February 19, 1959 did not have the effect of making him a "Magistrate of the first class specially empowered" within the meaning of section 2(c) of the Act.
Accordingly, the Magistrate was directed to drop the proceedings pending against the revision petitioners.
Against that decision of the High Court, the State has now filed these appeals on a certificate granted by the High Court under Article 134 (1) (c) of the Constitution.
Section 2(c) of the Act defines a "Magistrate" to mean "a District Magistrate, a Sub Divisional Magistrate of the First Class specially empowered by the State Government, by notification in the Official Gazette, to exercise jurisdiction under the Act".
Section 22 further says: "No court inferior to that of a magistrate as defined in Clause (c) of Section 2 shall try any offence under Section 3, Section 4, Section 5, Section 6, Section 7 or Section 8".
The State Government Notification No. PPA/1257/84187/X of July 22, 1958, published in the Bombay Government Gazette of July 31, 1958, purporting to have been issued under section 2(c), runs as follows: "In the exercise of the powers conferred by section 2(c) of the Suppression of Immoral Traffic in Women and Girls Act, 1956, the Government of Bombay hereby empowers all the Judicial Magistrates of the First Class to exercise jurisdiction under the said Act, except under sections 12(1), 18(1), 19, 20(1) and (3) of the Act.
" The question is, whether this notification has the effect of making every Judicial Magistrate of the First Class in the State within the area of his respective jurisdiction, a Magistrate competent to try any offence under sections 3, 4, 5, 6, 7 and or 8 of the Act? 1079 Answer to this question depends on a correct interpretation of the expression "specially empowered" in Section 2(c).
There has been a sharp conflict of judicial opinion in regard to the meaning of this expression.
One line of decisions has taken the view (hereafter referred to us the narrow view) that the word "specially" in this expression has reference only to the mode of empowerment as indicated in section 39(1) of the Code of Criminal Procedure, 1898.
According to this view the word "specially" stands in contrast to the word "generally".
Therefore, if powers to try certain offences are conferred on a class of officials by their official title, they are "generally empowered"; but if the powers are conferred on particular individuals by name or by virtue of their office, they are "specially empowered".
On this reasoning it is deduced that the words "specially empowered" imply "the exercise by Government of a certain selection or discrimination as regards an individual on whom the special power is to be conferred".
Some of the cases in which this view has been expounded are: Mohd. Qasim and anr.
vs Emperor; Emperor vs Udho Chandumal; Polubha Vajubha vs Tapu Ruda; and Sabuddin Sheikh Mansur vs J. section Thakkar and anr.
A different view (hereafter referred to as the broad view) has been taken in these decisions: K. N. Vijavan vs State; State vs Judhabir Caetri; State of Mysore vs Kashambi and anr.
; Ashaq Hussain Khan vs section D. O. Monghir, C. V. Madhava Mannadiar vs District Collector and ors.
According to this view, the word "specially" has reference to the special purpose of the empowerment and is not intended to convey the sense of a "special" as contrasted with a "general" empowerment.
"Specially" qualifies the word "empowered" and not the person on whom the power is conferred.
In this view, the State Government is within its competence to confer powers under section 2(c) of the Act on some or all the Magistrates of the First Class in the State, in any of the modes known to law, and the Magistrate or Magistrates whom powers are so conferred will be "specially empowered" within the meaning of section 2(c).
In our opinion, this broad view rightly keeps in focus the special purpose of the empowerment and must be preferred to the narrow view.
It is will recognised that where the language of a statutory provision is susceptible of two interpretations, the one which promotes the object of the provision, comports best with its purpose and preserves its smooth working, should be chosen in preference to the other which introduces inconvenience and uncertainty in the working of the system.
This rule will apply in full force where the provision confers ample 1080 discretion on the Government for a specific purpose to enable it to bring about an effective result.
The Act has been enacted to suppress a special kind of mischief.
With that end in view it creates new offences, and confers wide powers on the Government to constitute special machinery for its enforcement.
Th narrow view taken in the decision led by Mohd. Qasim 's case, which reads, with external aid, into the expression "specially empowered" a restriction as to the mode or manner of empowerment, is neither congenial to the special purpose of the provision, nor conducive to the main object of the Act.
It tends to introduce unnecessary inconvenience, friction, confusion and artificiality in the working of the provision.
It also tends to reduce its efficacy and impede the exercise of the discretionary power which the Legislature has, in its wisdom, confided in full measure to the Government.
In the context of section 2(c) of the Act, therefore, the narrow, restrictive interpretation of the expression "specially empowered" has to be eschewed.
Incidently, it may be noticed that none of the decisions expounding the narrow view, was concerned with the interpretation of the expression "specially empowered" in the context of the Suppression of Immoral Traffic in Women and Girls Act.
In Mohammed Qasim vs Emperor, (supra) which leads the exponents of this view, the Madras High Court was concerned with the construction of this expression as used in section 3 of the Opium Act.
Similarly, the Full Bench decision of the Gujarat High Court in Sabuddin 's case (supra) (the ratio of which has been followed by the Judgment under appeal), turns on an interpretation of this expression in the context of section 56 of the Bombay Police Act.
On the other hand, in State of Mysore vs Kashambi and anr.
(supra) which is a prominent exponent of the broad view, the construction of section 2(c) of the Act was directly in issue before the Mysore High Court.
Therein, by a notification, the State Government conferred powers on all First Class Magistrates to try cases under the Act.
The accused, Kashambi and Mohadinbi were being prosecuted under section 8(a) of the Act in the court of Judicial Magistrate First Class, Saundatti.
The accused raised an objection that the Magistrate had no jurisdiction to try the cases because the aforesaid notification was invalid and ineffective to confer the jurisdiction on him as it did not satisfy the requirement of section 2(c) regarding "special empowerment".
Hegde, J., who spoke for the Bench, expressly dissented from the view taken in Polubha Vajubha vs Tepu Buda (supra) and Mohammed Qasim vs Emperor (supra) and held that the language of section 2(c) of the Act does not justify the contention that such a notification amounts to general conferment of power as opposed to special conferment of power as required by section 2(c) and therefore enlarges the scope of that section.
In the opinion of the Bench, the word "specially" is an adjective (adverb ?) to the verb "empowered" and not an adjective to the noun "Magistrate" and that this word means "specifically" or "for a particular purpose".
The Bench did not accept the contention that the word "specially" conveys the idea of picking and choosing of the Magistrate or Magistrates for the purpose 1081 of conferring the additional powers.
It was emphasised that the conferment of power under section 2(c) of the Act is not made by having recourse to section 39, Cr.
Procedure Code.
In our opinion, the view taken by the Mysore High Court in Kashambi 's case is the correct one.
It seems to be more in accord with the trend of the recent decisions of this Court, in which such an expression came up for construction.
In this connection, the first case to be noticed is Sindhi Lohana Chaithram vs State of Gujarat.
Therein the meaning of the expression "specially empowered" occurring in s.6(1) of the Bombay Prevention of Gambling Act, 1887 came up for consideration.
By a notification, dated January 22, 1955.
the Saurahtra Government empowered specially certain Assistant Superintendents and Deputy Superintendents of Police, Porbander Division, Porbander, to authorise by issue of special warrants in each case, a police officer not below the rank of Sub Inspector of Police to do the Varios things necessary in order to raid a house when the police officer suspected gaming to be carried on and which house, room or place was suspected us being used as a common gaming house.
The appellant 's house was raided by a Sub Inspector of Police,and on the basis of incriminating evidence the appellant and six others were charged under sections 4 and 6 of the Act.
At the trial the accused contended that Shri Pandhya, the Deputy Superintendent of Porbander who issued the search warrant, was not authorised to do so because the aforesaid notification did not specially empower Shri Pandhya within the contemplation of section 6.
This Court expressed that in view of the principle embodied in section 15 of the Bombay General Clauses Act, 1904 when power is conferred on a person by name or by virture of his office, the individual designated by name or as the holder of the office for the time being is empowered specially.
Judging by this test, the Court held that the notification, dated January 22, 1955, "specially empowered" Shri Pandhya, holder of the office of the Dy.
Superintendent of Police,Porbander to issue the search warrant under section 6.
The Court noticed the conflict of judicial opinion on the question whether a notification empowering all Magistrates of certain class to try certain class, can be said to be empowered specially every Magistrate of that class to try those cases,but left that question open.
However, it settled that a person can be specially empowered even by virtue of his office.
Again, in Abdul Husein Tayabali and ors.
vs State of Gujarat and ors.
decided on September 20, 1967, the construction of the expression "specially appointed" within the meaning of section 3(c) of the Land Acquisition Act, 1894 read with r. 4 of the Land Acquisition (Company 's) Rules, came up for consideration before this Court.
By a notification, dated October 1, 1963, issued under section 3(c) of the Land Acquisition Act, the State Government authorised all Special Land Acquisition Officers in the State to perform the functions of 1082 Collectors under that Act within the area of their respective jurisdiction.
Question arose whether that notification satisfied the requirements of section 3(c) and had the effect of specially empowering all the Land Acquisition Officers as a class to perform the duties under the Act.
Shelat, J., speaking for a Bench of three learned Judges, answered this question in the affirmative and made these apposite observations: "In our view, these words (specially appointed) simply mean that as such an officer is not a Collector and cannot perform the functions of a Collector under the Act, he has to be 'specially appointed ', that is, appointed for the specific purpose of performing those functions.
The word specially 'has therefore reference to the special purpose of appointment and is not used to convey the sense of a special as against a general appointment.
The word "specially" thus connotes the appointment of an officer or officers to perform functions which ordinarily a Collector would perform under the Act.
It qualifies the word "appointed" and means no more than that he is appointed specially to perform the functions entrusted by the Act to the Collector.
It is the appointment therefore which is special and not the person from amongst several such officers.
Besides sec.
15 of the General Clauses Act provides that where a Central Act empowers an authority to appoint a person to perform a certain function such power can be exercised either by name or by virtue of office.
" There would therefore be no objection if the appointment is made of an officer by virtue of his office and not by his name.
" The above observations are an apt guide to the interpretation of the expression "specially empowered" in section 2(c) of the Act with which we are concerned.
Although the word in section 3(c) of the Land Acquisition Act, the construction of which was considered in Abdul Hussain 's case, were "specially appointed", their connotation is the same as conveyed by the expression "specially authorised" or "specially empowered" (see Oxford Dictionary according to which the word "authorised" means "empowered" "appointed").
In constructing the expression "specially empowered" in the instant case, therefore,we can safely adopt the reasoning in Abdul Hussain 's case.
Thus considered, the term "specially" must be taken to have reference to the special purpose of the empowerment.
Even according to Oxford Dictionary, one sense of this word is "of special purpose".
It qualifies the word "empowered".
It is used in an attributive sense to highlight the special nature of the power.
It does not convey the sense of a contradistinction or contrast between "special" empowerment and "general" empowerment.
All that this word signifies is the investment of some or all the Magistrates of the First Class with powers which are 'special 'and are not part of the 'ordinary ' or 'additional 'powers which can be conferred on a Magistrate of the First Class under the Code of Criminal Procedure.
In short, the word "specially" 1083 cannotes that it is the empowerment which is special and not the person.
Thus considered, special empowerment does not necessarily involve selection of individuals by name or ex offico from the Magistrates of the 1st Class.
The fallacy in the narrow view stems from the undue stress it lays on the mode of empowerment at the cost of the special purpose of the empowerment, forgetting that the Act is a code by itself which creates new offences triables only by those Magistrates of the 1st Class who are specially empowered under section 2(c) of the Act,and not under the Code of Criminal Procedure.
Be that as it may,s.39 of the Code of Criminal Procedure, 1898 and s.32 of the Code of Criminal Procedure,1973, are concerned with the mode of conferring power.
"Power may be conferred on any person either by name or in virtue of his office", or "on classes of official generally by their official title".
The special mode or the general mode of conferring the power applies to the conferment of power both for a general purpose or a special purpose.
The mode of conferring power is not to be confused with the purpose of the power,as seems to have been done in the cases taking the narrow view.
The narrow view can be tested yet from another angle.
According to it if a Magistrate of the 1st Class is selected by name or by virtue of his office and invested with these powers to try offences under the Act,he would be "specially empowered".
If no such pick and chose is made and the power is conferred on all the Magistrates of the same class, they would be "generally empowered".
This distinction if taken to its logical and, breaks down, and exposes the inherent artificiality of the proposition.
If the empowering of a Magistrate of the First Class to try offences under this Act, by virtue of his office, satisfies the requirements of section 2(c), it is not understood how the empowerment of a whole class of Magistrates of the First Class by the same mode becomes ultra vires the section.
In Abdul Hussain 's case, the contention canvassed for the narrow view was considered from this aspect, also.
It was observed: ". even if the meaning of the word 'specially ' were to be that which is canvassed (by the appellant), the Government could have issued separate notification for each of the Sp. L. A. Officers authorising them individually to perform the functions of the Collector within their respective area of jurisdiction.
Instead of doing that, if one notification were to be issued authorising each of them to perform those functions there could be no valid objection.
Such a notification would have the same force as a separate notification in respect of each individual Sp. L. A. Officer.
Such a notification would mean that the Government thereby appoints each of the existing Sp. L. A. Officers to perform the functions of the Collector within their respective areas.
" 1084 On parity of reasoning ,it can be said that the empowerment of all the Magistrates of the First Class, in the State under one notification ,by virtue of their office to try offences under the Act in the area of their respective jurisdiction, must be held to be "special" and not "general".
It will not be out of place to mention here that Abdul Hussain 's case was decided by this Court on September 20, 1967, that is, about four and half months after the Full Bench decision of the Gujarat High Court in Sabuddin 's case (supra), Consequently, the Bench did not have the advantage of the guidance furnished by Abdul Hussain 's case.
In the light of the construction put by us on the expression "specially empowered" as used in section 2(c) of the Act, we hold that by virtue of the State Government Notification dated July 22, 1958, the Judicial Magistrate First Class Rajkot has the jurisdiction to try the offences under the Act.
Accordingly, we allow these appeals, set aside the judgment of the High Court.
The cases will now go back to the Judicial Magistrate, First Class, Rajkot for further proceedings in accordance with law.
The cases, being very old, it is directed that they be disposed of on top priority basis, with utmost expedition, if possible, within three months from today.
V.P.S. Appeals allowed.
| IN-Abs | Section 2(c), Suppression of Immoral Traffic in Women and Girls Act, 1956, defines a Magistrate to mean a District Magistrate, a Sub Divisional Magistrate of the First Class specially empowered by the State Government by notification in the official Gazette, to exercise jurisdiction under the Act.
The appellant State issued a notification under the section empowering all the Judicial Magistrates of the 1st Class to exercise jurisdiction to try certain offences under the Act.
The High Court held that the notification did not have the effect of making a Magistrate one specially empowered within the meaning of section 2(c).
Allowing the appeal to this Court, ^ HELD: It is not necessary that the State Government should pick and choose individual Magistrates and confer special power on them.
The notification had the effect of making every Judicial Magistrate of the First Class in the State, within the area of his respective jurisdiction, a Magistrate specially empowered to try those offences.
[1083E; 1084C] Mohd. Qasim & Anr.
vs Emperor, AIR, ; Emperor vs Udho Chandumal, AIR 1943 Sind 107; Polubha Vajubha vs Tapu Buda, AIR 1956 Sau.
73 and Sabuddin Sheikh Mansur vs J. section Thakkar & Anr.
ILR [1968] Guj. 4, disapproved.
K. N. Vijayan vs State, AIR 1953 Tr.
Co. 402.
State vs Judhabir Caetri AIR 1953 Assam 35; (F.B.); State of Mysore vs Kashambi & Anr: ; Ashaq Hussain Khan vs S.D.O. Manghir.
ATR 1965 Pat 446 and C. V. Madhava Mannadiar vs Distt.
Collector & Ors., AIR 1970 Kerala 50.
approved.
(1) Where the language of a statutory provision is susceptible of two interpretations, the one which promotes the object of the provision.
comports best with its purpose and preserves its smooth working, should be chosen in preference to the other which introduces inconvenience and uncertainty in the working of the system.
This rule will apply in full force where the provision confers ample discretion on the Government for a specific purpose to enable it to bring about an effective result.
[1079G 1080A] (2) The word "specially" has reference to the special purpose of the empowerment and is not intended to convey the sense of a "special" as Contrasted with a "general" empowerment.
"Specially" qualifies the word "empowered" and not the person on whom the power is conferred.
In this view the State Government is within its competence to confer powers under the section on some or all of the Magistrates of the First Class in the State in any of the modes known to law and the Magistrate or Magistrates.
On whom Powers are so conferred, will be "specially empowered" within the meaning of the section.
This broad view keeps in focus the special purpose of the empowerment and must be preferred to the narrow view, namely.
That the word "specially" stands in contrast to the word "generally".
According to 1077 the narrow view if powers to try certain offences are conferred on a class of officials by their official title, they are "generally empowered '; but if the powers are conferred on particular individuals by name or by virtue of their office, as a result of selection by the Government, they are 'specially empowered".
This view which reads into the expression "specially empowered" a restriction as to the mode or manner of empowerment, is neither congenial to the special purpose of the provision, nor conducive to the main object of the Act, and tends to reduce its efficacy and to impede the exercise of the discretionary power which the legislature has confided in full measure to the Government.[1079B D, E G; 1080B C, H; 1082G] (3) The word "specially" signifies the investment of some or all the Magistrates of the First Class with powers which are "special ' and are not part of the "ordinary" or "additional" powers which can be conferred on a Magistrate of the First Class under the Code of Criminal Procedure.
The fallacy in the narrow view stems from the undue stress it lavs on the mode empowerment at the cost of the special purpose of the empowerment ignoring the fact that the Act is a code by itself which creates new offences triable only by those Magistrates of the First Class who are specially empowered under section 2(c) of the Act, and not under the Code of Criminal Procedure.
Power may be conferred under section 39 of the Code of Criminal Procedure, 1898, corresponding to section 32 of the Code of Criminal Procedure, 1973, on any person either by name or in virtue of his office or on classes of officials generally by their official title.
The special mode or the general mode of conferring the power applies to the conferment of power both for a general purpose or a special purpose.
The mode of conferring power is not to be confused with the purposes of the power.
[1082H; 1083B D] (4) A person can be specially empowered even by virtue of his office.
If empowering a Magistrate of the First Class to try offences under the Act by virtue of his office satisfies the requirement of section 2(c), there is no reason why the empowerment of all the Magistrates of the First Class in the State under the notification by virtue of their office to try offences under the Act in the areas of their respective jurisdictions should not be held to be special but treated as general.
The Government could have issued separate notifications for each Magistrate.
Instead of doing so if one notification were to be issued authorising each of them to perform those functions, there could be no valid objection.
[1081F G; 1083E F, G 1084B] Sindhi Lokana Chajthram vs State of Gujarat, ; and Abdul Hussain Tayabali and ors.
vs State of Gujarat and ors.
; , followed.
|
Civil Appeal No. 1101 of 1969.
From the Judgment and Order dated the 26th April 1968 of the Calcutta High Court in Wealth Tax Matter No. 421 of 1964.
section T. Desai, B. B. Ahuja, S P. Nayar and R. N. Sachthey, for the Appellant.
section K. Sen, A. K. Nag and D. P. Mukherjee for the Respondents.
The Judgment of the Court was delivered by SHINGHAL, J.
This appeal by certificate has come before us as the question of law arising for decision is said to be of great importance.
The facts giving rise to the appeal are quite simple and may be shortly stated.
One Bireswar Chatterjee, who was admittedly governed by the Dayabhaga School of Hindu law, was assessed to income tax as an individual.
He died intestate on January 7, 1957, leaving his widow, sons and daughters.
The Wealth tax officer rejected their plea that on the death of Bireswar Chatterjee they held definite and determined shares in his properties and were liable to separate assessment, and assessed them as a Hindu undivided family for the assessment year 1958 59.
On appeal, the Appellate Assistant Commissioner held that since the assesses was governed by the Dayabhaga School of Hindu law, the properties could not belong to the Hindu undivided family and were to be taxed "in the hands of the co sharers separately.
" The department took an appeal to the Income tax Appellate Tribunal, 'B ' Bench, Calcutta.
There was difference of opinion between the members of the Tribunal, and in accordance with the opinion of the majority of the members it was ordered that "notwithstanding that there was no unity of ownership amongst members governed by the Dayabhaga School of Hindu law in respect of the family property and each member thereof had definite shares in it, such property, until partitioned, was assessable to wealth tax in the hands of the Hindu undivided family.
" The Tribunal however referred the following question of law to the Calcutta High Court for decision "Whether on the facts and in circumstances of the case, the Tribunal was right in holding that properties possessed jointly by the members governed by the Dayabhaga School of Hindu law were assessable to wealth tax jointly in the status of a Hindu undivided family?" 1098 The High Court accepted the contention that the question assumed that the property was owned jointly by the members of a Hindu undivided family governed by the Dayabhaga School of Hindu law, and reframed it as follows, "Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the property possessed by the heirs of a Hindu male governed by the Dayabhaga School of Hindu law were assessable to wealth tax jointly in the status of a Hindu undivided family?" It took the view that the matter was covered by its earlier decisions including Commissioner of Wealth tax.
West Bengal vs Gouri Shankar Bhar where it had been held that on the death intestate of a Dayabhaga male, his heirs do not inherit his estate as members of a Hindu undivided family, and remain as co owners with definite and ascertained shares in the properties left by the deceased unless they voluntarily decide to live as members of a joint family.
The High Court also took notice of the fact that a suit for partition had been filed and a preliminary decree had been obtained on July 4, 1959, and answered the reframed question in the negative.
As has been stated, the High Court has certified this to be fit case for appeal to this Court.
Mr. section T. Desai appearing for the Commissioner of Wealth tax has challenged the view taken by the High Court and has argued that under the Dayabhaga School of Hindu law the property left by the father is taken by the sons jointly by descent, as coparceners, as their joint family comes into existence by operation of law.
He has accordingly argued that the father 's property is liable to be taxed under section 3 of the Wealth tax Act, hereinafter referred to as the Act, as a unit until it is partitioned amongst its members by metes and bounds.
Reference has in this connection been made to certain commentaries and judgments and we shall refer to them as and when necessary.
Section 3 of the Act is the charging section and the correctness or otherwise of the view taken by the High Court depends on its meaning and content.
The section provides for the charge of wealth tax in these terms. "3.
Subject to the other provisions contained in this Act, there shall be charged for every assessment year commencing on and from the first day of April, 1957, a tax (hereinafter referred to as Wealth tax) in respect of the net wealth on the corresponding valuation date of every individual Hindu undivided family and company at the rate or rates specified in the Schedule.
" The liability to wealth tax therefore arises in respect of the "net wealth" of the assessee, which expression has been defined as follows in section 2(m), "(m) "net wealth" means the amount by which the aggregate value computed in accordance with the provisions 1099 of this Act of all the assets, wherever located, belonging to the assessee 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 owned by the assessee on the valuation date other than, . " The expression "belong" has been defined as follows in the Oxford English Dictionary. "To be the property or rightful possession of.
" So it is the property of a person, or that which is in his possession as of right, which is liable to wealth tax.
In other words, the liability to wealth tax arises out of ownership of the asset, and not otherwise.
Mere possession, or joint possession, unaccompanied by the right to, or ownership of property would therefore not bring the property within the definition of net wealth" for it would not then be an asset "belonging" to the assessee.
The question is whether the estate or property of Bireswar Chatterjee could be said to belong jointly to his heirs, after his death? It is not in controversy, and is in fact admitted, that the property in question belonged to Bireswar Chatterjee who was its sole owner in his life time and was assessed to income tax as an individual.
His family consisted of his widow, sons and daughters and was governed by the Dayabhaga School of Hindu law.
Bireswar Chatterjee 's property was therefore the heritage, or the wealth, which vested in his heirs on his death.
According to Jimuta Vahana, his wife or sons or daughters had no ownership in his property during his life time for "sons have not ownership while the father is alive and free from defect." (Hindu Law by Colebrooke, P.9) ownership of wealth is however vested in the heirs "by the death of their father" (page 54, supra) when they become coheirs and can claim partition.
It is on this basis that "Dayabhaga" (partition of heritage) has been expanded by Jimuta Vahana.
According to him, "since anyone parcener is proprietor of his own wealth, partition at the choice even of a single person is thence deducible." (page 16, supra).
The heritage does not therefore become the joint property of the heirs, or the joint family, on the demise of the last owner, but becomes the fractional property of the heirs in well defined shares.
This concept of fractional ownership has been stated as follows by Krishna Kamal Bhattacharya in his "Law relating to the Joint Hindu Family" (Tagore Law Lectures) with reference to the doctrine of negation of the son 's right by birth (page 168), "As a corollary of the doctrine set forth above, negativing the son 's right by birth, is another peculiar doctrine of the Bengal School, that of what is called the 'fractional ownership ' of the heirs, contrasted with the doctrine of 'aggregate ownership expounded by all other schools.
" That is why 'partition ' in Dayabhaga is defined as an act of "particularising ownership", and is not the act of fixing diverse ownerships on particular parts of an aggregate of properties as in Mitakshara.
The 1100 learned author has clarified the position in unmistakable terms as follows (pages 172 73), "From what has been said above, it is evident that there is no unity of ownership in Bengal joint family, although there may be something like a unity of possession." (Emphasis added) This is why Mitashara is designated as the School of "aggregate ownership", while Dayabhaga is known as the School of "fractional ownership.
" As has been stated in Gopalchandra Sarkar Sastri 's "Hindu law" (eighth edition page 465), while the joint family system prevails in Bengal, "there cannot be a real joint family consisting of father and sons during the father 's life time, inasmuch as joint property which is the essence of the conception of joint family, would be wanting to make them joint.
" This is why, according to the Bengal School, the sons become tenants in common and not joint tenants in respect of the estate inherited by them from their father.
The position of joint family under the Dayabhaga law has been stated as follows in Mayne 's Treatise on "Hindu Law and Usage" (eleventh edition, page 364), "It follows therefore that under the Dayabhaga law, a father and his sons do not form a joint family in the technical sense having coparcenary property.
But as soon as it has made a descent, the brothers or other co heirs hold their shares in quasi severalty.
Each coparcener has full powers of disposal over his share which is defined and not fluctuating with births and deaths as in the case of a Mitakshara family and his interest, while still undivided, will on his death pass on to his own heirs male or female or even to his legatees.
" That was stated to be the law in Sreemutty Soorjeemoney Dossee vs Denobundoo Mullick The position has been dealt with in Mulla 's "Principles of Hindu Law" (fourteenth edition, at page 348), as follows, "The essence of a coparcenary under the Mitakshara law is unity of ownership.
On the other hand, the essence of a coparcenary under the Dayabhaga law is unity of possession.
It is not unity of ownership at all.
The ownership of the coparcenary property is not in the whole body of coparceners.
Every coparcener takes a defined share in the property, and he is the owner of that share.
That share is defined immediately the inheritance falls in.
It does not fluctuate with births and deaths in the family.
Even before partition any coparcener can say that he is entitled to a particular share, one third or one fourth.
Thus if A dies leaving three sons, B, C, and D, each one will be the owner of his on third share.
The sons are coparceners in this sense that 1101 possession of the property inherited from A is joint.
It is the unity of possession that makes them coparceners.
So long as there is unity of possession, no coparcener can say that a particular third of the property belongs to him; that he can say only after a partition.
Partition then, according to the Dayabhaga law, consists in splitting up joint possession and assigning specific portions of the property to the several coparceners.
According to the Mitashara law, it consists in splitting up joint ownership and in defining the share of each coparcener.
" In fact we find that a case somewhat similar to the one before us arose when one Prafulla Chandra Bhar, a Hindu governed by the Dayabhaga School, died intestate.
His mother, widow, three sons and one daughter survived him.
Since the death took place before the came into operation, he was succeeded by his widow and three sons, each inheriting one fourth share in the estate.
Gouri Shankar Bhar, one of the sons, took out letters of administration and filed, a wealth tax return in his capacity as ad ministrator descrth the status of the assessee as a Hindu undivided family.
The Wealth Officer also treated the status as such, and made the assessment.
Gouri Shankar however filed an appeal and contended that the family being governed by the Dayabhaga School,the shares of the coparceners in the property of the deceased were definite and ascertained and the assessment should not have been made in their status as a Hindu undivided family and each member should have been assessed separately upon the value of his share in the inherited property.
The Appellate Assistant Commissioner overruled the contention and took the view that even though the shares of the coparcencrs were definite and ascertained, the income from the prperty of the family did not belong to the several members in specified shares but continued to belong to the Hindu undivided family as a whole.
On further appeal, the Tribunal held that as the coparcener under the Dayabhaga law had a definite share in the property left by the deceased and was legally the owner thereof, he had a defined share and that since the wealth tax was levied on the basis of ownership, it was proper that the assessment should have been made on the individual coparceners on their respective shares and assessment of the total wealth in the hands of the undivided family would be illegal.
The matter was referred to the High Court at the instance of the Commissioner of Wealth tax.
The High Court of Calcutta in Commissioner of Wealth tax case (supra) made a reference, inter alia, to the decision in Biswa Ranjan Sarvadhikari vs Income tax officer, F. Ward District, (2) Calcutta and upheld the view that where property is owned by two or more persons governed by the Dayabhaga School and their shares are.definite and ascertainable, then, although they are in Joint possession, the tax will be assessed on the basis of the share of the income in the hands of the assessee and not as of a Hindu undivided family.
It was held that the position was not different under the Wealth tax Act.
The matter was brought to this Court on appeal and it was conceded by Solicitor General appearing for the Commissioner of Wealth tax that as the property was the individual property of the 1102 deceased, it devolved on his heirs in severalty.
It was held that as each of them took a definite and separate share in the property, each of them was liable, in law, to pay wealth tax as an individual.
While upholding the decision of the High Court it was however observed by this Court that it was not necessary to decide, in that case, whether a Dayabhaga family could be considered as a Hindu undivided family within the meaning of section 3 of the Act.
That decision is Commissioner of Wealth tax, West Penal vs Gauri Shankar Bhar.
In the case before us, it is not in dispute that the property in question was the individual property of Bireswar Chatterjee and that it devolved on his heirs according to the provisions of the .
It will be recalled that a suit for partition was filed on June 21, 1957 and a preliminary decree was passed on July 4, 1959.
For reasons already stated, the coparcenary had unity of possession but not unity of ownership on the property.
Eac coparcener therefore took a defined share in the property and was the owner of his share.
Each such defined shar thus "belonged" the coparcener.
It was his "net wealth" within the meaning of section 2(m) of the Act and was liable to wealth tax as such under section 3.
The High Court was therefore right in answering the reframed question in the negative, and as we find no force in the argument of Mr. Desai, the appeal fails and is dismissed with costs.
| IN-Abs | Rejecting the respondents ' plea that as persons governed by the Dayabhaga School of Hindu Law they had held definite and determined shares in the properties inherited by them from their father and were liable to separate assessment of wealth tax, the Wealth Tax Officer assessed them as a Hindu Undivided Family.
On appeal the Appellate Assistant Commissioner held that the properties should be taxed in the hands of the co sharers separately.
On further appeal, the Appellate Tribunal held that notwithstanding that there was no unity of ownership amongst members governed by the Dayabhaga School of Hindu Law in respect of family property and each member thereof had no definite share in it, such property, until partitioned, was assessable to wealth tax in the hands of the Hindu Undivided Family.
On reference, the High Court held in favour of the assesses.
Dismissing the appeal to this Court, ^ HELD: Dayabhaga means partition of heritage.
A Dayabhaga male 's wife or sons or daughters have no ownership in his property during his lifetime.
Ownership of wealth is vested in the heirs by the death of their father, when they become co heirs and can claim partition.
The heritage of a Dayabhaga male does not become the joint property of the heirs or of the joint family on the demise of the last owner but becomes the fractional property of the heirs in well defined shares.
That is why partition in Dayabhaga is defined as an act of particularising ownership.
In Dayabhaga, the sons become tenants in common and not joint tenants in respect of the estate inherited by them from their father.
While Mitakshara is known as the School of "aggregate ownership", Dayabhaga is known as the school of "fractional ownership".
The essence of a coparcenary under the Mitakshara Law is unity of ownership; under the Dayabhaga it is unity of possession, not unity of ownership at all.
Under the Dayabhaga school every coparcener takes a definite share in the property and he is the owner of that share which is defined immediately the inheritance falls in.[1099D G: 1100B H] Sreemutty Soorjeemoney Dossee vs Denobundoo Mullick, 6 M.I.A. 526 at p. 553.
Hindu Law by Colebrooke p. 9. 2.
Law relating to the Joint Hindu Family (Tagore Law Lecrures) by Krishna Kamal Bhattacharya p. 168 and 3.
Principles of Hindu Law by Mulla (14th Edition) p. 348.
Hindu Law & Usage, by Mayne,11th Edition 364, approved.
(i) Under section 3, the liability of wealth tax arises in respect of the net wealth of the assesses.
The term "net wealth" means all the assets belonging to the assesses, on the valuation date.
The expression "belong" according to the Oxford Dictionary means "to be the property or rightful possession of".
[1098G H] (ii) The liability to wealth tax arises out of ownership of the asset and not otherwise.
Mere possession or joint possession unaccompanied by the right to or ownership of property would, therefore, not bring the property within the 1097 definition of "net wealth", for it would not then be the asset belonging to the assesses.
[1099C] In the instant case, the property in question was the individual property of the father of the respondents and it devolved on the heirs according to the provisions of the .
The coparcenary had unity of possession but not unity of ownership on the property.
Each coparcener took a defined share in the property and was the owner of his share.
Each such defined share thus belonged to the coparcener.
It was his net wealth within the meaning of section 2(m) of the Wealth Tax Act and was liable to wealth tax, as such, under section 3.
[1102C D] Commissioner of Wealth tax West Bengal vs Gouri Shankar Bhar, explained.
|
Criminal Appeal No. 88 of 1954.
Appeal by Special Leave from the Judgment and Order dated the 7th January, 1954 of the Allahabad High Court in Criminal Appeal No. 377 of 1953 connected with Criminal Revision No. 461 of 1953 arising out of the Judgment and Order dated the, 17th November, 1952 of the Court of Additional Sessions Judge at Meerut in Session Trial No. 113 of 1952.
B.B. Tawakley, (K. P. Gupta, with him), for the appellant.
K.B. Asthana and C. P. Lal, for the respondent.
September 28.
The Judgment of the Court was delivered by BOSE J.
The only.
question here is about sen. tence.
74 584 The appellant Bed Raj and another, Sri Chand, were jointly charged with the murder of one Pheru.
The Sessions Judge convicted Bed Raj under section 304, Indian Penal Code, and sentenced him to three years ' rigorous imprisonment.
He acquitted Sri Chand.
I Bed Raj appealed to the High, Court and that Court, on admitting the appeal for hearing, issued notice to the appellant to show cause why the sentence should not be enhanced.
The appeal and the revision were heard together.
The appeal was dismissed and the High Court enhanced the sentence to ten years.
Now, though no limitation has been placed on the High Court 's power to enhance it is nevertheless a judicial act and, like all judicial acts involving an exercise of discretion, must be exercised along, well known judicial lines.
The only question before us is whether those lines have been observed in the present case.
The facts that have been found by the Sessions Judge and accepted by the High Court are to be found in the opening paragraph of the learned Sessions Judge 's judgment.
They are as follows: "Roop Chand, the son of Bed Raj accused, was removing the dung.
of the bullocks of Pheru deceased from an open space near his cattle shed.
Pheru protested to, the boy and turned down the basket in which the boy had put the dung.
The two accused who are brothers then came to the scene from their own cattle shed which was near by and there was an exchange of abuses between them and Pheru.
The accused Sri Chand then caught hold of Pheru by the waist and Bed Raj accused took out a knife and stabbed him in 3 or 4 places.
The knife was then left sticking in the neck of the deceased and the accused ran away".
The assault occurred about 8 o 'clock on the morning of the 23rd February 1952.
Pheru was removed to the hospital and the Medical Officer Dr. Fateh Singh examined him and found that he was suffering from shock.
He found three injuries on his person: 585 all "simple".
He gave the following description of them: right side lower part.
(2) Incised wound: 1 " x 1/3" X1/3" right deltoid region frontal and lower part above downward.
(3) Incised wound 1/2" X 1/6" X 1/4"Epigastric region".
He said "When Pheru was admitted in the hospital he was under shock but his condition was not dangerous.
When Pheru came he could speak.
He was not unconscious.
As he was under shock no report was made for recording his dying declaration.
I cannot give the definite cause of death.
I cannot tell if sucH an InjurY can cause death.
There was no Haemorrhage from Pheru 's neck after his arrival in my hospital.
Speaking:of the inJurieis, the doctor said "Injuries 2 and 3 on the person of Pheru which were incised wounds were not punctured.
It was not possible to inflict them from a sharp pointed weapon".
The appellant was also examined by the doctor and a slight simple injury, which could have; been caused by a simple blunt weapon, was discovered.
This indicates that there was a scuffle between the appellant and the deceased, in which the appellant was hit over the nose and, up to a point, bears out what the appellant says in his defence, namely that Pheru was beating the appellant 's son Rup Chand; he went there and tried to extricate Rup Chand; Pheru started beating him (the appellant) and he, the appellant, received a flat blow on the nose.
The depth of the injury on Pheru 's neck was I of an inch.
In this connection the doctor says "A knife can penetrate 1 1/2 or 2 inches in a case of deliberate stabbing".
Pheru died about 12 45 A.M. on the 24th February 1952, that is to say, about 16 or 17 hours after the assault.
The post mortem was conducted by another doctor, Dr. J. K. Dwivedi.
Describing the injury on the neck the only one we need consider as the other two were slight he said that clotted blood was present all round injury No, 1, and, that 586 "the:right side dome of pleura is punctured under injury No. 1 and clotted blood present all round it.
Upper lobe of right lung (appex) is punctured for 1/4" X 1/4" X 1/2".
Clotted blood present over the lung surface all round the punctured area.
A branch of the external jugular vein was divided in right side neck under injury No. I. Death was due to shock, and haemorrhage as a result of injury to neck".
In cross examination he said "It was possible and impossible also that the bleeding could be stopped.
Such injury as injury No. I are more likely to cause death".
After reviewing the evidence 'the learned Sessions Judge held "It is evident that the whole scene took just a few moments.
Both of the accused must have been in a moment of heat and before either of them could think of doing any act, the whole thing was over. .
That the injuries with the knife were likely to cause death is clear but they were caused at a time when the parties were in a heat and there was a sudden fight and no room for premeditation".
Because of this, and seeing that there was no reason to infer pre concert, he acquitted the other accused, and by reason of those circumstances he considered that three years would be sufficient punishment and sentenced the appellant accordingly.
This was on 17 11 1952.
The appellant filed an appeal to the High Court on 1.8 12 1952 and that Court thereupon issued notice to him to show cause why the sentence I should not be enhanced.
The High Court directed enhancement on 7 1 1954.
On the same day the State Government ordered the release of the appellant on probation, under section 2 of the U.P. Prisoners ' Release on Probation Act, 1938, for the full term of the sentence imposed by the Sessions Court.
We are not concerned with the State Government 's order except in so far ' as it indicates the view that that Government took of the antecedents and conduct in prison of the appellant, matters that are also relevant for consideration by a Court 587 when determining a, question of sentence ' a prisoner can only be released on probation under that Act if the State Government is satisfied "from his antecedents and his conduct in the prison that he is likely to abstain from crime and lead a peaceable life, if he is released from prison".
These facts were not known to the High Court when it made its order of enhancement ' but it is a matter relevant for our consideration now that the appeal is before us.
Now the High Court accept the findings of the Sessions Judge about the circumstances in which the offence took place.
They agree that the attack was not premeditated and that there was a sudden quarrel and that the blows were inflicted in the heat of passion,.
They also say that there was counter abuse and they notice the abrasion on the appellant 's nose.
Despite this they hold that ' "it is possible that this injury was received by the appellant in the attempt of the deceased to resist the attack made by the appellant.
There was therefore no fight '.
This is a very half hearted finding and ignores the fact that the benefit of all doubts must be given to the accused.
If it was only "possible" that the injury was due to Pheru 's attempt to ward off an attack by the appellant, then it must be equally "possible" that it was received in the course of a, scuffle.
The appellant very definitely says in his examination that there was a fight and the abrasion on his nose which the doctor says was caused by a blunt weapon, bears out his version that Pheru struck him with his fist.
The circumstances also indicate that there must have been a scuffle.
Why else should it be necessary for the second accused to come and hold him down by the waist? When villagers or any man for that matter, come to blows after hot words and an interchange of abuse, there is nearly always resistance to the initial attack.
Very rarely does a man "turn the other cheek".
It must also be remembered that the incident started with the use of force by Pheru.
It was he who took hold of the basket of cow dung and 588 overturned it.
That occasioned the quarrel, and the finding is that there was abuse and counter abuse.
It was then that the second accused rushed in and caught Pheru by the waist.
That accused was acquitted because there was nothing to suggest that that was done in aid of the appellant 's intention to assault Pheru and he was absolved of all intention to assault on his own account; and the finding is that even the appellant had no such intention till the last moment.
If that was the case, then why should the second accused rush in and hold Pheru by the waist? If he had no intention to assault on his own account and none to assist the appellant in his assault, the only other reasonable conclusion is that he tried to stop a fight.
It would be fair in the circumstances to reach that conclusion, for the accused is as much entitled to the benefit of any doubt when a co accused is acquitted as in any other case.
In any case, it was incumbent on the High Court to reach a more definite finding than the one given before deciding to enhance the sentence.
The only reason that the learned Judges give is that Pheru was unarmed and as the attack was made with a knife it cannot be said that the appellant did not act in a cruel or unusual manner.
Nevertheless, they uphold the finding that the offence falls under section 304, Indian Penal Code, and not under section 302.
A question of a sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines, an appellate court should not interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the face of the judgment; see for example the observations in Dalip Singh vs State of Punjab(1) and Nar Singh vs State of Uttar Pradesh (2).
In a matter of enhancement there should not be interference when the sentence passed imposes substantial punishment.
Interference is only called for when it is manifestly inadequate.
In our opinion, these principles have not been observed.
It is (1) ; , 156.
(2) ; , 241, 589 impossible to hold in 'the circumstances described that the Sessions Judge did not impose a substantial, sentence, and no adequate reason has been assigned by the learned High Court Judges for considering the sentence, manifestly inadequate.
In the circumstances, bearing all the considerations of this case in mind, we are of opinion that the appeal (which is limited to the question of sentence) should be allowed and that the sentence imposed by the High Court should be set aside and that of the Sessions Court restored.
Ordered accordingly.
| IN-Abs | A question of sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines, an appellate court should not interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the face of the judgment.
In a matter of enhancement there should not be interference when the sentence passed imposes substantial punishment.
Interference is only called for when it is manifestly inadequate.
In the circumstances and bearing all the considerations of the present case in mind it was impossible to hold that the Sessions Judge did not impose a substantial sentence.
The Supreme Court set aside the sentence imposed by the Court and restored that of the Sessions Judge as no adequate reason bad been assigned by the High Court for considering the sentence passed by the Sessions Judge as manifestly inadequate.
Dalip Singh vs State of Punjab ([1954] S.C.R. 145) and Nar Singh vs State of Uttar Pradesh ([1956] 1 S.C.R. 238), referred to.
|
Civil Appeal No. 1521 of 1968 Appeal by special leave from the judgment and decree dated the 20th January, 1968 of the Court of Addl.
Judicial Commr., Goa Daman Diu in Civil Appeal No. 213 of 1966.
U. R. Lalit, K. Rajendra Chowdhary, Mrs. Veena Khanna and section L. Setia, for the appellants.
V. M. Tarkunde, V. N. Ganpule and A. G. Ratnaparkhi, for the respondents.
The Judgment of the Court was delivered by GOSWAMI, J.
The appellants in this appeal by special leave Jose da Costa and his wife, Isabela Braganca, are the defendants and the respondents, Bascora Sadashiva Sinai Narcornim and his wife, Durgabai Narcornim, are the plaintiffs in the original suit.
The plaintiffs instituted a suit in the court of Judge of Quempem Comarca on February 27, 1961, in accordance with the Portuguese law then in force in those territories for ejectment of the defendants from the suit property.
It was alleged that on the death of Sadashiva, father of the plaintiff, Bascora, in partition proceedings with minors (inventario), this plot was assigned to Bascora 's mother, Sitabai, towards her moiety in the estate.
On Sitabai 's death, the property devolved on the plaintiffs, Bascora and his six sisters.
Before the partition of the property among the legal heirs of Sitabai, Bascora 1069 acquired the rights from some of his sisters and became the owner of the suit property with other heirs.
Bascora 's parents had inherited this property from their ancestors.
The father of Bascora had permitted the ancestors of the defendants to build a house for their residence on a part of the property subject to the condition that they shall have to vacate the plot when called upon to do so.
In the latter event, they shall be entitled to remove the super structures of the building raised by them.
Even so, the plaint goes on to say that Caetana Esperanca Fernandes, the mother of the appellant, Jose da Costa, executed a deed on November 16, 1920, before the notary public of Comarca, which indicated that she and her family members were owners of the plot.
On the basis of this deed, the defendants asserted ownership of that part of the plot on which stands the house built by their ancestors and now in their occupation.
On the above allegations, the plaintiffs prayed for a declaration that the plaintiff, Bascora, and the other heirs of his mother, Sitabai, are the only owners of the plot in dispute and that the house in the occupation of the defendants on a part of that plot was constructed in the circumstances and subject to the terms mentioned in the plaint.
They further prayed that the defendants be directed to vacate the plot after removing the materials of their house.
The defendants denied the allegations and pleaded that it was Vishnu Bascora Sinai Narcornim, an ancestor of the plaintiffs, who had given the suit property on perpetual lease to Pascoal da Costa, an ancestor of the defendants in the year 1875, at an annual rent of rupees 2/4/ .
It was stated further that no such rent has been paid for over forty years before the suit nor has any rent ever been claimed by the family of the plaintiffs for such a long time.
It was Pascoal da Costa who possessed the plot as his own and originally built one house on it but subsequently his descendants constructed more houses so that at present there are three houses and one stable on the plot in dispute.
On Pascoal de Costa 's death, in inventario proceedings, this property on November 16, 1920, was "consolidated in full ownership in the patrimony of the descendants of the said Pascoal da Costa." The defendants further aver in their written statement that the suit property has been in their "open, peaceful and continuous" possession including that of their predecessors in interest, as owners for a period of more than 50 years and that they have acquired title by prescription.
The trial court decreed the suit on April 30, 1966, directing the defendants to remove their superstructures on the land or in the alternative to receive from the plaintiffs Rs. 1084/ which was found to be the value of the materials of the house in question as per estimate of the experts appointed for the purpose.
On appeal the learned Additional Judicial Commissioner dismissed the same on January 20, 1968, and affirmed the decree of the trial court.
The defendants came to this Court by special leave against the judgment of the Additional Judicial Commissioner and this Court by its order dated August 1, 1070 1975, which has since been reported in AIR 1975 S.C. 1853, remanded the appeal to the Judicial Commissioner for a finding on the plea of prescription raised by the defendants by observing as follows: "The plea of prescription goes to the root of the matter.
It was raised by the defendants in their pleadings and the matter was put in issue.
It was again taken up in the grounds of appeal filed in the Court of the Judicial Commissioner, but was left undecided.
For the purpose of doing complete justice in the case, we think it necessary to have the advantage of the finding of the court below on this issue.
Accordingly, we remit this case to the Court of the Judicial Commissioner, Goa Daman and Diu with the direction that it should after rehearing the parties record a specific finding on the issue as to whether the defendants had acquired full title to the suit property by prescription under the law in force at the relevant time.
The Judicial Commissioner shall submit his report with reasons therefor to this Court within four months from the date on which the records are received in his court.
In the meantime the appeal shall remain pending in this Court.
" We have actually taken the facts of this case from the above decision.
The Judicial Commissioner has since submitted his report dated December 5, 1975, and the appeal has come up before us for final hearing.
After examining the entire evidence, oral and documentary, the Judicial Commissioner has come to the conclusion that the defendants have failed to prove their acquisition of full title to the suit property by prescription under the law in force at the relevant time.
During the hearing we did not have before us any printed Portuguese Civil Code or any standard legal treatise to which we would have ordianily liked to refer.
Counsel for the appellants, however, produced certain extracts from various articles to which counsel for the respondents has not taken any exception.
There is also reference to certain articles from the Portuguese Civil Code in the earlier judgment of this Court as also in the Report submitted by the Judicial Commissioner, Both the parties accept those articles as correct, although the original books are not before us.
In view of the earlier decision of this Court and after hearing the parties we feel that we will be justified to decide this appeal only on the question relating to the plea of prescription.
Since the original perpetual lease was not produced in court and a certified copy of the original translation of the perpetual lease issued on November 23, 1920, was alone produced, we have no reason to disagree with the conclusion of the Judicial Commissioner that the defendants failed to establish their plea of perpetual lease of, the land.
Before we may proceed further it will be appropriate to note that even the plaintiffs themselves laid a nucleus for the plea of adverse 1071 possession to be easily taken up by the defendants.
Para 5 of the plaint may, therefore, be quoted: "5.
Notwithstanding this, the mother and mother in law of the defendants Caetana Esperanca Fernandes with the ambition of alleging to the said plot of the plaintiffs rights that do not assist her, participated as an executing party, in a deed drawn up on 16 November, 1920, by the former notary public of this Comarca, Salinho da Silva, wherein a plot having the denomination of "Deulacodil tucda" or "Mordi" was partitioned, one third of which was assigned to the said Caetana, and with basis in that partition the defendants allege to be the owners of the ground whereon the said house raised by their ascendants is situate." Indeed this repudiation of title of the plaintiffs by the defendants gave rise to the cause of action.
We cannot accept the submission of Mr. Tarkunde on behalf of the respondents that the word "allege" in the above paragraph in the present tense makes any difference in the matter of the plea.
Not only in the plaint, but also in the evidence, the plaintiff Bascora gave further reinforcement to the plea of adverse possession when he stated thus: ". in 1920 the deponent (that is the plaintiff), desiring to build the house existing in the plot of land, there were disputes raised by defendant 's mother and by one Santana Costa and then the deponent (that is the plaintiff) notified them through the Administration Office of Sanguem to vacate the plot land.
He does not know what subsequent course his petition had. " Mr. Tarkunde submits that there might have been some dispute which, however, was settled and the plaintiffs built the house on the suit land and the defendants also continued on the land under the earlier permissive arrangement.
Mr. Tarkunde draws our attention to the following passage in the evidence of defendant No. 1: "In 1920 more or less, the plaintiff built a house in the plot in question and begun to stay there.
The same house was built very near the house where the deponent (that is the defendant No. 1) stays and which already existed at the time of that building.
The dependent was about 14 or 15 years old.
The grandfather of the deponent Pascoal da Costa and his uncle Francisco Piedade Costa and even the deponent 's mother opposed the said building raised by the plaintiff.
The question was amicably solved at the house of Narcornins Bencares to which the plaintiff belongs, to the effect that the plaintiff should build the house and reside in it as well as the said persons who had their houses in it should continue to reside therein.
The deponent came to know of these facts regarding the dispute and its solution after hearing his said uncle Francisco Piedade da Costa.
" 1072 Apart from the fact that the above is hearsay evidence we are clearly of the view that the statement is not sufficient to annihilate the theory of repudiation of the title of the plaintiffs to the property.
It stands to reason that the defendants had been in continuous possession of the entire plot of land described in para 1 of the plaint which is a larger area including the portion where the house of the defendants stands.
In the year 1926 the plaintiffs sought to make their construction on the vacant portion of the land close to the defendants ' house which led to opposition and obstruction from the defendants.
At that time apparently the defendants later agreed to the construction by the plaintiffs and that seems to be the reference to the "amicable" solution in the above extract.
So far as the land on which the defendants had their house, there was no proof nor any evidence of any change on the part of the defendants to their open hostility to the plaintiffs ' title to the same.
The plaintiffs did not give any evidence of any such amicable solution.
On the other hand, it is admitted that they had reported to the Administrator without even caring to know the result of such action against the defendants.
The further fact that along with the plaint the plaintiffs annexed a certified copy of the partition deed of November 16, 1920, which copy was obtained as early as on December 22, 1920 goes to show that they were fully cognizant of the public assertion by the defendants of their own title to the land on which their house stands repudiating that of the plaintiffs.
Mr. Tarkunde submits that there is no evidence that this document had been actually obtained by the plaintiffs, but production of the document without any explanation from the side of the plaintiffs speaks a volume about their knowledge of the repudiation of title.
Mr. Tarkunde also invited our attention to the statement of defendant No. 1 to the effect: "that the plaintiff for reasons of enmity does not receive this rent nor he ever asked for its payment to the deponent (that is defendant No. 1) and other members of his family." This statement cannot be torn from the context of the alternative plea set up by the defendants.
This statement is fairly consistent with the alternative plea of perpetual lease of the land set up by the defendants.
According to the defendants the land had been in their occupation on perpetual lease from Vishnu Narcornim, the plaintiffs ' paternal uncle and once that would have been acknowledged by the plaintiffs the defendants would perhaps be willing to pay even to the plaintiffs the annual rent.
But it is the clear case of the plaintiffs that the story of perpetual lease was false and fraudulent and besides that Visnum Narcornim had no interest in the land and was not competent or authorised to lease out the same.
We, therefore, cannot accept the exaggerated importance to the above statement of the defendant No. 1 in his cross examination.
The Judicial Commissioner, however, rightly observed that "an overt act of possession to the knowledge of the plaintiffs and their 1073 ascendants must be shown to have taken palce.
" From the above discussion, we have no hesitation in arriving at the conclusion that the defendants have been able to establish the same and the Judaical Commissioner is not right in taking a contrary view.
According to Article 474 of the Portuguese Civil Code, "Possession is defined as holding or fruition of any thing or right.
Para 1.
The acts done by licence or permission do not constitute possession. " According to Article 505, things and rights are acquired by virtue of possession, just as obligations are extinguished by reason of not demanding their fulfillment.
The law lays down conditions and the period of time that are necessary for one as well as for the other thing.
This is called prescription.
Proviso.
The acquisition of things and rights is known as positive prescription; the discharge of the obligations by reason of not demanding their fulfillment is known as negative prescription.
" Article 528 reads thus: "In the absence of registration of possession or title of acquisition, prescription with respect to immovable property or rights to immovable will operate by virtue of possession for 15 years.
" Article 529 of the Code is as follows: "When, however, the possession of immovable property or rights to immovable property referred to in the foregoing article has lasted for a period of 30 years, prescription will operate; and no mala fide or absence of title can be averred, except the provisions of Article 510." Thus even under the Portuguese law what appears to be clear is that permissive possession is not sufficient to prescribe title of the owner of the land.
The Judicial Commissioner was not right in holding that possession of the defendants was permissive under the plaintiffs.
There is no evidence is against recognition by the defendants of any title the evidence is against recognition by the defendants of any title in the plaintiffs as such.
The Judicial Commissioner mistook the defendants ' admission of the alleged perpetual lease under Visnum Narcornim as permissive occupation under the plaintiffs even after holding that the defendants failed to establish perpetual lease.
We are, therefore, left with the long, continuous and peaceful possession by the defendants of the land with the residential house thereon since the time of their ancestors after a clear repudiation of the title of the plaintiffs to the land in 1920.
The fact that the defendants set up title in Visnum Narcornim describing him as plaintiffs ' ancestor, does not affect the position in view of the plaintiffs ' avowed denial that Visnum Narcornim had anything to do with the land.
Visnum Narcornim is survived by his own descendants and we are not dealing with a case where Visnum Narcomim 's heirs as such have sought 1074 eviction of the defendants from the land.
The plaintiffs do not accept Visnum Narcornim 's title to the land as their title.
The Judicial Commissioner fell into an error because of not keeping the distinction between Visnum Narcornim 's title to the land and the plaintiffs ' title to the same.
The origin of ownership of the suit land being dipped in the misty past what emerges from the evidence, in the absence of proof of lease or permission by the plaintiffs ' own ancestors, is the defendants have been in long and open possession of the land over which they have constructed their house for a period long enough for that possession to ripen into ownership.
The defendants in our opinion should be held to have acquired title to the said land by prescription.
There being no proof whatsoever of permissive possession under the plaintiffs or their ancestors, there is no question of application of the rule laid down under Article 510, relied upon by Mr. Tarkunde.
Article 510 reads thus: "One who possesses a thing in another 's name cannot acquire it by prescription except if the title of possession has been inverted, either due to an act of a third party, or by objection raised by the possessor to the right of the other in whose name he was possessing it and not refuted by the latter; but in such event the prescription shall run from the date of inversion of the title.
Sole para: The title is said to be inverted when it is substituted by another title capable of transferring the possession or ownership (dominio).
" According to the Judicial Commissioner the above Article is applicable and since the defendants could not prove that there had been at some time "inversion of title" their possession was merely "detencao" (namely, a precarious possession) and such physical detencao without "animus" cannot be invoked for the purpose of claiming any effect that possession in one 's own name or as of right connotes.
It is difficult to see how Article 510 can be attracted to the instant case.
The defendants had at no time possessed the land on which their house stands in the name of the plaintiffs.
They were never accepting the position of permissive possession under the plaintiffs and had asserted perpetual lease under Visnum Narconim, who, even according to the plaintiffs, was an unauthorised person.
Article 510 would not be attracted to this case when the defendants alternatively were possessing in the name of Visnum Narornim or his descendants.
Article 510 is, therefore, clearly out of the way.
We are, therefore, not even required to consider whether there was any "inversion of title" in this case or not.
It is clear that the defendants ' ancestors and, after them, the defendants have been in possession of the land since 1875.
Title of the plaintiffs was repudiated openly in the year 1920.
The defendants are in possession by occupying the house standing on the land and the house was constructed by the defendants ' ancestors.
The plaintiffs had made a complaint about their conduct in denying their title to the land and in opposing their construction as early as in 1920.
The 1075 passivity and inertness of the plaintiffs thereafter for over forty years till the institution of the suit in 1961 clearly establishes the plea of prescription set up by the defendants.
It is significant that even the plaintiffs, being out of possession of the land in suit for a long number of years and having constructed their house on a house on portion of the land only in the year 1920, sought to establish the title to the property "by virtue of the prescription that operated in their favour" (see paragraph 3 of the plaint).
Mr. Tarkunde has made a further submission, which appears to have received approval of the Judicial Commissioner, that the defendants ' witnesses while describing the land in suit acknowledged it as "the plaintiffs ' land".
It may not be overlooked that the plaintiffs also have their own house on a part of the land.
We, therefore, cannot agree that the defendants ' witnesses by identifying the land in suit in that manner defeated the claim of the defendants with regard to the adverse possession.
We may observe that Mr. Lalit, the learned counsel for the appellants, fairly conceded that he was confining his claim in this case only to the land on which the defendants have their house.
The appeal is, therefore, partly allowed.
The plaintiffs ' suit for title to the land in occupation of the defendants and for their eviction so far as that portion of the land with their house on it is concerned is dismissed.
The plaintiffs ' suit for declaration in respect of the remaining portion of the land, however, is decreed.
As there is no prayer for eviction of any person other than the defendants, that claim is rejected.
We express no opinion with regard to the claim of persons who may be in occupation of the land other than the defendants who are not impleaded in the suit and against whom no relief has been claimed.
The judgment and decree of the Additional Judicial Commissioner to the extent indicated in this judgment are set aside.
There will be, however, no order as to costs.
P.H.P. Appeal allowed in part.
| IN-Abs | The respondent plaintiffs instituted a suit in 1961 in accordance with the Portuguese law then in force in those territories for ejectment of the defendant appellants from the suit property.
It was alleged in the plaint that on the death of father of the plaintiff No. 1.
Sadashiva the suit land was assigned to Sitabai mother of plaintiff No. 1 and that on the death of Sitabai the property devolved on the respondent No. 1 and his 6 sisters.
It was also contended that the house built on a portion of the land in dispute and occupied by the defendants should be removed by the defendants and the defendants should be directed to hand over vacant possession of the plot to the respondents.
The appellants in their written statement pleaded that the suit property was given on perpetual lease to the ancestors of the appellants and that no rent was paid for over 40 years.
The appellants further contended that the suit property was in their open peaceful and continuous possession including that of their predecessors in interest as owners for a period of more than 50 years and that the have acquired a title by prescription.
The trial court decreed the suit.
An appeal filed by the appellants before the learned Additional Judicial Commissioner was dismissed.
When the matter came up before this Court by special leave this Court remanded the matter to the court of the Judicial Commissioner for a finding on the plea of prescription raised by the appellants.
The learned Judicial Commissioner after remand came to the conclusion that the appellants have failed to prove the acquisition of full title to the suit property by prescription under the law in force at the relevant time.
The learned Judicial Commissioner also held that the appellants failed to establish their plea of perpetual lease.
Partly allowing the appeal.
^ HELD: (1) In view of the earlier decision of this, Court this Court would be justified in deciding the appeal only on the question of plea of prescription.
The appellants had been in continuous possession of the entire plot of land described in para 1 of the plaint which has a larger area including the portion where the house of the appellant stands.
In the year 1920, the respondents sought to make their construction on the vacant portion of the land close to the appellants ' house which led to opposition and obstruction from the appellants.
Later on, the appellants agreed to the construction by the respondents.
However, so far as the land on which the appellants had their house is concerned there was no proof nor any evidence of any change on the part of the appellants to their open hostility to the respondents ' title to the same.
The respondents did not give any evidence of any such amicable solution.
On the other hand, it is admitted that they had reported to the Administrator without even caring to know the result of such action against the appellants.
The further fact that the respondents annexed to the plaint a certified copy of the partition deed of 1920 which was obtained as early as in 1920 goes to show that they were fully cognizant of the public assertion by the appellants of their own title, to the land on which their house stands repudiating that of the respondents.
The learned Judicial Commissioner has erred in holding that the appellants have not been able to prove an overt act of possession to the knowledge of the respondents.
According to article 474 of the Portuguese Civil Code possession is defined as holding or fruition of anything or right.
The acts done by licence or permission do not constitute possession.
According to Article 505 things and rights are acquired by virtue of possession, just as obligations are extinguished by reason of not demanding their fulfillment.
The law lays down conditions and the period of time 1068 that are necessary for one as well as for the other thing and that is called prescription.
Under Article 528 of the Portuguese Code in the absence of registration of possession or title of acquisition prescription with respect to immovable property or rights to immovable will operate by virtue of possession for 15 years.
Under article 529 when the possession of immovable property or rights to immovable property has lasted for a period of 30 years prescription will operate.
Under the Portuguese law what appears to be clear is that permissive possession is not sufficient to prescribe title of the owner of the land.
There is no evidence whatsoever for the conclusion of the Judicial Commissioner that the possession of the appellants was permissible under the respondents.
On the other hand, evidence is against recognition by the appellants of any title in the respondents.
We are, therefore, left with the long continuous and peaceful, possession by the appellants of the land with the residential house thereon since the time of their ancestors after a clear repudiation of the title of the respondents to the land in 1920.
The fact that the appellants set up title in Vishnu Narcornim describing him as respondents ' ancestor does not affect the position in view of the respondents ' denial that Vishnu had anything to do with the land.
The Judicial Commissioner fell into an error by not keeping the distinction between Vishnu 's title and the respondents ' title.
The origin of ownership of land being dipped in the misty past what emerges from the evidence in the absence of proof of lease or permission by the respondents ' own ancestors is that the appellants have been in long and open possession of the land over which they have constructed their house for a period long enough for that possession to ripen into ownership.
The appellants have acquired title to the said land by prescription.
Since there is no proof of permissive possession under the respondents or their ancestors there is no question of application of Article 510.
The learned counsel for the appellants has confined his claim in this case only to the land on which appellants have their house.
The suit of the respondents so far as it relates to the portion of the land on which the appellants have their house is dismissed and in respect of the remaining portion of land is decreed.
[1070G, 1072A D, 1073A H, 1074A C, 1075D E]
|
Civil Appeals Nos.
1076 1079 of 1971.
Appeals by special leave from the judgment and order dated the 8th January, 1970 of the Allahabad High Court in special appeals Nos.
965 to 968 of 1964.
V. M. Tarkunde, E.C. Agarwala and Miss Manik Tarkunde, for the appellant.
G. N. Dikshit, Shivapujan Singh, advocate for O. P. Rana, for the respondents.
The Judgment of the Court was delivered by KHANNA, J.
This judgment would dispose of four civil appeals Nos.
1076 to 1079 of 1971 which have been filed by special leave by Ratna Sugar Mills Ltd. against the judgment of Allahabad High Court affirming on appeal the decision of the learned single Judge 1063 whereby the appellant 's four petitions under article 226 of the Constitution of India to challenge the order dated December 18, 1963 of the Board of Revenue directing the levy of holding tax under the U.P. Large Land Holdings Act, 1957 (U.P. Act No. 31 of 1957) (hereinafter referred to as the Act) on the land of the appellant for the assessment years 1365, 1366, 1367 and 1368 Fasli had been dismissed.
In 1951 the appellant acquired land measuring 277.08 acres situated in village Argupur Kalan, tehsil Shahganj, district Jaunpur.
According to the appellant, the said land was acquired for the purpose of setting up a factory for the production of paper and pulp.
A licence was granted to the appellant in that connection.
The appellant filed an application under section 143 of the U.P. Zamindari Abolition and Land Reforms Act for treating its land situated in village Agrupur Kalan as industrial land.
In the course of those proceedings, the Tahsildar submitted a report on August 24, 1959 as under: "As regards Argupur Kalan the whole area is recorded as sirdari of Ratna Sugar Mills and they pay Rs. 1495/ as annual land revenue.
It is recorded in the Mills from before Zamindari Abolition and Mills Authorities continue to pay the recorded land revenue to Government.
The whole area is lying Banjir and lies on both the sides of the railway line and Belwai Station.
It has not at all been brought under cultivation nor the Mill has derived any benefit from it.
It is really meant for industrial purposes but due to financial difficulties, they could not use it as such.
" The Sub Divisional Officer, however, rejected the application filed on behalf of the appellant under section 143 of the U.P. Zamindari Abolition and Land Reforms Act.
The result was that the land in dispute could not be declared to be land for industrial purpose.
Appeal filed by the appellant against the order of the Sub Divisional Officer was dismissed by the Collector.
While the proceedings under section 143 of the U.P. Zamindari Abolition and Land Reforms Act were pending, the Commissioner held for assessment years 1365 and 1366 Fasli in an appeal filed by the appellant that the land in dispute was meant for industrial purposes and had on that account remained uncultivated.
The appellant was held not liable to pay holdings tax for the land in dispute for the assessment years 1365 and 1366 Fasli.
Two revisions were filed by the State against the above order of the Commissioner.
Subsequently for the years 1367 and 1368 Fasli the Commissioner held that the appellant was liable to pay holdings tax for the land in dispute under the Act.
The appellant filed two revisions to the Board of Revenue against that order of the Commissioner.
The four revisions, two filed by the State and two filed by the appellant, were decided by the Board of Revenue by a common order dated December 18, 1963.
The revisions filed by the State were accepted by the Board, while those filed by the appellant were rejected.
The 1064 Board held that as the land held by the appellant was sirdari and not Bhumidari land, it could not be declared to be meant for industrial purposes.
The appellant was held liable to pay holdings tax for the land in question.
Four petitions under article 226 of the Constitution were thereupon filed by the appellant to challenge the order of the Board of Revenue.
The learned single Judge held that the land in dispute constituted land as defined in the Act and the appellant was liable to pay holdings tax for the same.
The order of the learned single Judge, as already mentioned, was affirmed on appeal by the Division Bench.
Before dealing with the question involved in these appeals, it would be appropriate to refer to the relevant provisions as well as the objects and reasons.
The Act was published on November 1, 1957 but according to sub section (3) of section 1, it was to be deemed to have come in force on the first day of July 1957.
The objects and reasons which were mentioned in the Bill were as under: "For securing successful implementation of the Second Five Year Plan, it has become necessary to augment the revenues of the State.
The Agricultural Income Tax Act, which was enacted at a time when zamindari system was in force, has become out of date in the context of post war zamindari era.
The principle of social justice enshrined in our Constitution also demands that disparities between agricultural incomes be reduced.
More efficient exploitation of agricultural lands is essential for increasing the food production in the State.
Those big holders who do not fulfil their duty towards society will have to sell up, as they should, if they fail in making increased contribution to the exchequer in the form of holding tax under this legislation.
With these objects in view, the Agricultural Income Tax Act, 1948, is being replaced and this Bill is being introduced.
The Bill seeks to levy a holding tax on all land holdings the annual value of which exceeds Rs. 3,600.
A cultivator who does not cultivate more than 30 acres of land would be exempt from this tax.
The Bill is so designed as not to affect the small cultivator.
It is proposed to levy the tax on a graduated scale so that the larger the holding, the greater the incidence of the tax.
" Section 3 of the Act is the charging section.
According to sub section (1) of that section, there shall, save as hereinafter provided, be charged, levied and paid, for each agricultural year, on the annual value of each land holding, a tax called the holding tax at the rates specified in the Schedule provided that no such tax shall be charged on any land holding the area whereof does not exceed thirty acres.
Section 2(15) of the Act defines land as under: "(15) `land ' means land, whether assessed to land revenue or not, which is held or occupied for a purpose 1065 connected with agriculture, horticulture, animal husbandry, pisciculture or poultry farming and includes uncultivated land held by a landholder as such": The definition of land holder is given in section 2(16) and the same reads as under: "(16) 'land holder ' means (i) an intermediary, where the land is in his personal cultivation or is held as sir, khudkasht or grove, and (ii) any other person who holds or occupies land otherwise than as (a) an asami.
(b) a sub tenant.
(c) a tenant of sir, or (d) a sirtan.
and includes a manager or a principal officer, as the case may be: Explanation In this clause asami does not include an asami of Gaon Samaj:" The Act took the place of the U.P. Agricultural Income Tax Act, 1948 which stood repealed in pursuance of section 28 of the Act from the date the Act came into force.
It may also be pointed out that this Act has been itself subsequently repealed by section 45 of the U.P. Imposition of Ceilings on Land holdings Act, 1961 as from June 30, 1961.
In appeal before us Mr. Tarkunde on behalf of the appellant has argued that the land in question does not constitute land as defined in section 2(15) of the Act and as such the appellant is not liable to pay holding tax on the said land.
The land in question, according to the learned counsel, is held for industrial purposes and not for purposes of agriculture, horticulture, animal husbandry, pisciculture or poultry farming.
The above contentions have been controverted by Mr. Dikshit on behalf of the State and, in our opinion, the contentions are not well founded.
The land in dispute is shown to be Banjar land in the revenue records.
Although the appellant acquired the land in 1951 for the purpose of setting up a factory, somehow the factory could not be set up and the land remained uncultivated.
The appellant holds the land as a sirdr.
An application was filed by the appellant for permission to use the land in question for industrial purposes, but that permission was not granted, the order of the Sub Divisional Officer in this respect was affirmed on appeal by the Collector.
A sirdar under section 146 of the U.P. Zamindari Abolition and Land Reforms Act, has the right to the exclusive possession of the land and entitled to use it for any purpose connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming.
It is, therefore, apparent that after the order which was 1066 made on the appellant 's application under section 143 of the U.P. Zamindari Abolition and Reforms Act, the appellant cannot be said to hold the land in dispute for industrial purpose.
The purpose for which the appellant could after that date use the land was agriculture, horticulture or animal husbandry including pisciculture and poultry farming.
The fact that the appellant did not cultivate the land in question would not warrant exemption from the liability to pay the holding tax.
The definition of the "land" includes uncultivated land held by a land holder as such.
The High Court held that the words "as such" did not pertain to the purpose for which the land is held but have reference to the land being held by the land holder in his capacity as a landholder.
We see no sufficient ground to take a different view.
In any case even if the words "as such" be construed to mean that the land should be held for the purpose of agriculture, horticulture, animal husbandry, pisciculture or poultry farming, the land in question should be taken to satisfy that requirement, because those are the only purposes for which the said land can now be used.
The word "lands" used in the Act, as mentioned in the case of Raja Jagannath Baksh Singh vs State of Uttar Pradesh & Anr., is wide enough to include all lands whether agricultural or not.
The object of the Act, as mentioned in the objects and reasons, is more efficiency exploitation of agricultural land for increased food production.
The appellant, in our opinion, cannot escape liability for payment of holding tax by keeping the land in question uncultivated.
There is no merit in these appeals and the same are dismissed with costs.
One hearing fee.
M.R. Appeals dismissed.
| IN-Abs | The appellant acquired some land in district Jaunpur, for setting up a factory, but did not use the land for such purpose.
Under the U.P. Large Land Holdings Act, 1957, he was required to pay holdings tax for the assessment years 1365 to 1368 Fasli.
The appellant 's application section 143 of the U.P. Zamindari Abolition and Land Reforms Act, for treating his land as industrial land was rejected by the Sub Divisional Officer.
On appeal, the Collector affirmed the order.
In further appeal to the Commissioner, the appellant succeeded as regards the years 1365 and 1366 Fasli.
The State filed revision petitions.
Subsequently the Commissioner held that the appellant was liable to pay holdings tax for the years 1367 and 1368 Fasli.
The appellant also preferred revision applications.
The Board of Revenue decided all the revision petitions in favour of the State, holding that the appellant 's land was "sirdari" and not bhumidari, and it could not be meant for industrial purposes.
The appellant 's petitions under Article 226 of the Constitution were rejected by a Single Judge of the High Court on the ground that the disputed land constituted "land as defined in the Act, and that he was liable to pay the tax.
On appeal, the Division Bench of the High Court affirmed the order.
It was contended before this Court that the land is held for industrial purposes, and is not "land" under sec.
2(15) of the Act.
Dismissing the appeals, the Court, ^ HELD: The appellant holds the land as a sirdar.
Permission to use the land in question for industrial purposes was not granted.
The word "lands" used in the Act is wide enough to include all lands whether agricultural or not.
The appellant cannot escape liability for payment of holding tax by keeping the land in question uncultivated.
[1065 G, 1066C D] Raja Jagannath Baksh Singh vs State of Uttar Pradesh and Another, ; , referred to.
|
Civil Appeal No. 1434 1435 of 1968.
Appeal from the Judgment and order dated 6th April 1967 of the Calcutta High Court in Appeal from original order No. 175 of 1963 and 177 of 1963.
G. L. Sanghi and Girish Chandra, for the Appellant.
H. K. Puri and M. C. Dhingra, for Respondents.
The Judgment of the Court was delivered by GOSWAMI, J.
These two appeals are on certificate by the Calcutta High Court from its common judgment of April 6, 1967, in Appeal Nos. 175 and 177 of 1963.
Respondent No. 1 prior to its liquidation was a private limited company carrying on business as an importer and dealer in sewing machines.
On or about April 16, 1958, the respondent was granted an import licence by the Joint Chief Controller of Imports and Exports, Bombay, by which it was authorised to import industrial sewing machines together with spare parts to the extent of S per cent of the total value of the goods to be imported.
The total value of the imports authorised was Rs. 47,406/ .
The respondent could under the licence import the goods through any port in India.
Out of the permitted value under the licence, goods worth about Rs. 9,919/ were imported by the respondent through the Bombay port.
The respondent then wanted to arrange the rest of the import through the Calcutta port.
At the request of the respondent the Customs authorities of Bombay gave a release order in respect of the remaining goods to be imported in terms of the aforesaid licence through the Calcutta port.
By an indent of November 11, 1958, the respondent placed orders with M/s Fuji Trading Company Limited, Osaka, Japan, for supply of 162 pieces of industrial sewing machine head "Raruna Brand" and 973 208 dozen of oscillating rock shafts.
By two other indents of December 3, 1958, the respondent sent orders to M/s Alickson & Company, Osaka, for the supply of 59 sets of industrial sewing machine head "Prosper Brand" And certain industrial sewing machine parts.
All these three indents were accepted by the two Japanese Companies in , due course.
M/s Fuji Trading Company Limited shipped the goods against orders placed with them on January 30, 1959, by section section Sydney Maru.
M/s Alickson & Company also shipped the goods covered by the indents placed with them on January 28, 1959, by section section State of Andhra.
The respondent apparently had some financial difficulties for releasing the goods at Bombay, as, according to it, it did not have sufficient credit with the Bombay Bank "to open the letter of credit with payment of a nominal margin only".
The respondent, therefore approached the Bombay and Calcutta Cycle Company (briefly the Cycle Company), a partnership firm, which also used to carry on business as dealers in sewing machines and had previous dealings with the respondent.
The Cycle Company agreed to guarantee the letter of credit if it were opened through their Bankers at Delhi. 'the respondent agreed to do so and thereupon at the request of the Cycle Company the Mercantile Bank Limited of Delhi agreed to Act as the respondent 's Bankers and also to allow the respondent to open the letter of credit.
There after on or about December 29/30, 1958, the respondent opened with the Mercantile Bank Limited, Delhi, a letter of credit being L. C. No. 101/1085.
The respondent advanced a sum of Rs. 2884.50 np by way of marginal deposit to the extent of 10 per cent of the value of the letter of credit and the necessary Bank charges.
On February 20, 1959, while the said goods were on the high seas there was an agreement between the respondent and the Cycle Company by which the respondent agreed to sell and the Cycle Company agreed to buy at a future date certain quantities of industrial sewing machine heads and oscillating rock shafts.
The contract of sale may be quoted in extenso: "SALE CONTRACT" We Messrs. Pednekar and Co. Private Ltd., 172, Girgaon Road, Bombay 1 .
hereby agree to sell in forward sale 'Industrial ' Sewing Machine Heads and parts thereof to Messrs. Bombay & Calcutta Cycle Co.
Of 48, Popatwadi, Kalbadevi Road, Bombay, on the following terms and conditions: Items and quantity: 221 pcs.
IndustrialSewing Machine Head TA 1 Model complete with knee Lifter, accessories box Bobbin winder made in Japan.
200 dozen oscillating Rock Shaft "Coto" brand made in Japan.
Rates and value: 221 pcs.
Industrial Sewing Machine Heads @ 305/ per machine .
Rs. 67,405/ 20O dozen oscillating Rock Shaft @ Rs. 24/ per dozen .
Rs. 4,800/ __________ Total .
Rs. 72,205/ __________ 974 Payment: The sum of Rs, 13,300/ already recied by the sellers from the buyers (Rs. 7000/ received on 19th June, 1958, Rs. 2300/ received on 7th July, 1958, and Rs. 4000/ received on 22nd December, 1958) will by adjusted against the above payment.
The sum of Rs. 56,000/ (Rs. fifty six thousand only) will be paid by buyers as and when required before the delivery of the goods and the balance sum of Rs. 2,905/ will be paid by the buyer after the delivery of the goods to them in good condition in their godown.
Place of delivery: Buyers ' Godown at Bombay.
Time of Delivery : June July 1959 Sales Tax : Buyers will issue 'K ' From (Bombay Sales Tax) against sellers Bill for the goods.
For Pednekar & Co. Private Ltd. Sd/ Managing Director Bombay, dated 20th February, 1959.
We confirm.
For Bombay & Calcutta Cycle Co. Sd/ Partner".
section section State of Andhra and section section Sydney Maru arrived at the port 6 of Calcutta on February 26 and February 27, 1959, respectively The respondent instructed the Bankers to engage M/s Mackinon ,.
Mackenzie & Co. Pvt. Ltd. (briefly the Clearing Agents) as Agents for clearing the goods arriving by the said two ships.
The Bankers were also asked to despatch the shipping documents to the Clearing Agents.
The Bankers carried out these instructions and the Clearing Agents filed with the Customs authorities, Calcutta, bills of entry or in respect of the aforementioned goods for consumption in the name of the respondent.
On the requisition of the Customs authorities several documents, as required, were supplied to them.
Informations as to who guaranteed for the letter of credit, who retained the documents and who paid for the goods were also supplied to the Customs authorities by the Clearing Agents as desired.
On October 28, 1959, the Assistant Collector of Customs for Appraisement issued a show cause notice on the respondent under section 167(8) and section 167(37) of the , read with section 3(2) of the Imports and exports (Control) Act 1947 relating to the goods that arrived by section section Sydney Maru.
On November 18, 1959, an exactly similar show cause notice was served upon the respondent by the Assistant Collector of Customs in respect of the goods arrived by section section State of Andhra.
In these notices it was alleged that the importation of the goods in question had been " made by the Cycle Company without any valid import licence in their favour and not by the respondent and that the Cycle Company was the real owner of the goods.
It was further alleged that the respondent had aided and abetted in the unauthorized importation of the goods by the Cycle Company.
There was a further charge that the respondent had transferred the licence in favour of the Cycle 975 Company.
It was alleged in the show cause notice of October 28, A 1959, that the licence in any case did not cover the importation of oscillating rock shafts.
The respondent was asked to show cause within 14 days of receipt of the respective notices as to why the goods should not be confiscated and why a penalty should not be imposed on the respondent for being concerned in the unauthorized importation of the said goods.
The respondent was also asked in the first show cause notice to show cause why oscillating rock shafts of the value of Rs. 1373.19 np should not be confiscated under section 167(37) of the and why a penalty should not be imposed on the respondent.
The respondent submitted its explanation repudiating the allegations.
The respondent further contended that the oscillating rock shafts were spare parts of which clearance could be allowed to the extent of S per cent of the face value of the notices.
The respondent denied the applicability of clause 37 of section 167 of the and demanded the release of the goods immediately.
On December 17, 1959, the Assistant Collector addressed a letter to the respondent which is described as an additional show cause notice.
The substance of the allegations made in this letter is that the goods in question were ascertained and specific goods and that the property in the goods had passed from the respondent to the Cycle Company by reason of the agreement for forward sale dated February 20, 1959, and that the property in the goods had already vested in the Cycle Company at the time of importation so that the goods were not covered by the licence submitted by the respondent.
The respondent was asked to make further submissions within a fortnight from receipt of this letter.
There was a similar additional show cause letter dated December 22, 1959, addressed to the respondent with regard to goods which arrived by section section State of Andhra.
The respondent sent a reply to the additional show cause notices.
The respondent denied in its explanation that the property in the goods had passed to the Cycle Company before the goods were cleared On March 18, 1960, the Deputy Collector of Customs passed an order by which the go which arrived by section section State of Andhra were confiscated under section 167(8) of the read with section 3(2) of the Imports and Exports (Control) Act, 1947.
personal penalty.
Of Rs. 350/ was also imposed on the respondent as well as on the Cycle Company.
Thereafter on March 23, 1960, the Deputy Collector of Customs passed another order by which the goods which arrived by section section Sydney Maru were confiscated and a personal penalty of Rs. 1000/ was imposed on the respondent as well as on the Cycle Company.
The above is the background which led to two writ applications in the High Court against the aforesaid two orders under article 226 of the Constitution of India which the respondent filed against the appellants impleading also the Cycle Company as respondent No. 4 therein.
The learned single judge of the High Court dismissed the respondent 's writ applications except with reference to the oscillating rock 976 shafts.
According to the learned judge these shafts were properly imported under section 2, Part V, Item 76(a) of the Import 'trade Control Policy Book, but these shafts also except 8 dozen were liable to confiscation in view of his decision against the respondent in respect of 200 sewing machine heads.
The respondent then appealed to the Division Bench of the High Court.
The Division Bench allowed the appeals by setting aside the judgment of the single judge with out disturbing at the same time the aforesaid portion of the judgment regarding oscillating rock shafts.
The High Court granted certificates to appeal to this Court under article 133 (1) (a) of the Constitution of India to the appellants.
,; We may note in passing that during the pendency of the proceedings before the High Court, the respondent was wound up by an order of the High Court of Bombay and necessary substitution was made.
We are only concerned in these appeals with the confiscation of 200 sewing machine heads and of 200 oscillating rock shafts.
Since there had been no appeal by the appellant against that part of the order of the single judge with regard to the importation of 8 oscillating rock shafts, Mr. Sanghi has, rightly, not addressed us in respect of the same.
Mr. Sanghi at the commencement of his argument submitted, to quote his own words, that "the main thrust of the show cause notice was the realness of the transaction".
In other words, he wanted to raise the question, which had also been unsuccessfully pressed into service before the Division Bench that though everything ostensibly was done by the respondent the real importer in the case was the Cycle Company and the respondent merely lent his name.
The Division Bench, in our opinion, rightly rejected the submission holding that that was a completely new case which had not been made out either before the adjudicator or before the learned single judge.
The Division Bench further rightly held as follows: "It was never the contention of the Customs authorities that the importation of the goods was not done by the petitioner and that though everything is ostensibly done by the petitioner the real importer is B. C. Cycle Company.
In the show cause notice there is no allegation made on the part of the Customs that the contract with the Japanese supplier was a sham or that the petitioner 's contract with the B. C. Calcutta Cycle Co., was also a sham transaction.
" We are, therefore, unable to agree with Mr. Sanghi that he can be permitted to raise this question of a "make believe ' transaction by the respondent.
The only question, therefore, that arises for decision in this case and on which Mr. Sanghi has addressed us is as to the question whether property in the goods had passed to the Cycle Company when the contract had been entered by the respondent with it, that is to say.
prior to the arrival of the goods at Calcutta port for clearance 977 We may even quote what was stated in the additional show cause notice: "Thus it appears that the sale contract which purports to be an 'agreement to sell ' is actually a sale and that the property in the subject goods vested with M/s Bombay & Calcutta Cycle Co., at the time of importation." The learned single judge answered the question in the following words: "In this case the goods were specific goods in a deliver able state as already held.
There was nothing in the con tract indicating that the property in the goods would pass to the buyer at a later stage.
Therefore, under section 20 of the Sale of Goods Act, that property passed at the time of the contract of sale and it was immaterial that time for payment of price and also time for delivery were postponed.
" The Division Bench, on the other hand, after extensively dealing with all the facts and circumstances of the case including the terms of the contract, came to the conclusion that ". no property could pass before the goods were delivered at the Bombay godowns of the B. C. Cycle Company.
" The controversy has to be resolved by reference to sections 18, 19 and 20 of the .
It is, in our opinion, not possible to hold that the property in goods passed at the time of agreement dated February 20, 1959.
The contract to sell related not to the entire consignment of the goods which were being imported by the respondent but only to part of those goods, even though it may be a major 'part.
Out of 208 dozen rock shafts which were imported, 200 dozen were to be sold by the respondent company to respondent No. 2.
There was nothing to prevent the respondent company from selecting for itself any eight dozen rock shafts out of the whole consignment.
The place of delivery of the goods was buyer`s godown in Bombay.
The property in the goods could not pass in favour of respondent No. 2 until, after the arrival of the goods in Bombay, two hundred dozen rock shafts to be delivered to the buyer were separated.
So far as industrial sewing machines were concerned, the property in them could also not pass to the buyer before the passing of the property in rock shafts as the contract between the respondent company and the buyer was one indivisible contract.
The High Court, in our opinion, rightly held that the property in the goods did not pass to the buyer till the time of the delivery of the goods in Bombay.
No specific goods in a deliverable state were attached to the contract when it was made.
Mr. Sanghi summits that the fact that the Cycle Company was principally financing the whole transaction and stood guarantee to the Bankers in Delhi enabling the respondent to open a letter of credit for the importation of the goods clearly indicates that, notwithstanding the place of delivery in the contract, the parties intended that the 978 imported goods were appropriated to the contract when the same was made.
In many genuine commercial transactions guarantee can be arranged by a party importing or exporting goods under a valid licence.
The mere fact of financial guarantee to a Banker for the purpose of opening a letter of credit, without any thing more, would not convert the guarantor to be the owner of the property the moment the contract was entered if the terms therein pointed to the contrary.
We are unable to hold that the mere fact of the Cycle Company being the guarantor with regard to the financial arrangement, which the respondent made with the Bankers in Delhi, would lead to the in escapable conclusion that the property in the goods had passed to the Cycle Company at the time when the contract was made.
The cor respondent between the respondent and the Cycle Company, that between the parties and the Banker and the arraignments for clearing the goods through the Calcutta Clearing House relied upon by Mr. Sanghi, do not lead to a contrary conclusion.
It is clear that the respondent had a valid import licence under the cover of which It imported the goods from Japan and, as we have held above, the property in the goods had never passed during the importation as alleged by the Customs authorities.
The entire controversy before the adjudicator was with reference to the importation of the goods by the Cycle Company which fact was sought to be established against the respondent from the legal position urged with regard to the passing of property to the Cycle Company at the time the contract had been made on February 20, 1959.
Mr. Sanghi submits that if, on the facts and circumstances, conduct of the parties and the correspondences during the relevant period taken with the advance of finance and guarantee of the Cycle Company, the adjudicator came to the conclusion that the property had passed and the goods were liable to confiscation and the conclusion was prima facie reasonable the High Court had no jurisdiction to interfere with the order under article 226 of the Constitution.
p This would be true, says counsel, even if the High Court could on the same facts and circumstances take another view in the matter.
We are unable to accede to the submission.
We are dealing with an order of confiscation of certain goods imported under a licence granted to the respondent.
It was never disputed that it was a valid licence.
It was also not an Actual User licence. 'the respondent, therefore, could sell these imported goods to others.
The whole matter, therefore, turned on the legal issue as to whether property had passed at the time the respondent had enter ed into the contract for the sale of the imported goods.
Even the Customs Authority in its additional show cause notice made particular reference to section 20 of the appointed out that: "the ownership in the goods under consideration appears to have passed on to M/s Bombay & Calcutta Cycle Co. right from the time the sale contract was concluded.
" 979 When, therefore, on the terms of the contract along with other relevant facts and circumstances which had to be looked into by the adjudicator for application of section 20 of the , he committed a manifest error of law apparent on the face of the order the High Court 's jurisdiction to interfere under article 226 of the Constitution is clearly attracted.
The submission of Mr. Sanghi is, therefore, without any force.
In the view we have taken regarding passing of property in the goods we need not deal with Mr. Sanghi 's submission with reference to the provisions of warranty under section 12 of the .
The orders of confiscation of the goods and penalties imposed are invalid and the High Court was right in quashing the same by issuing the appropriate writs.
In the result the appeals are dismissed with costs.
V.P.S. Appeals dismissed.
| IN-Abs | The first respondent, an importer and dealer in sewing machines, was granted an import licence for importing industrial sewing machines and spare parts.
After importing some goods through the Bombay port, the first respondent was permitted by the Customs Authorities to import the rest through the Calcutta port, and the first respondent entered into contracts with Japanese companies for supply of a certain number of industrial sewing machines and oscillating rock shafts.
Being in some financial difficulty the first respondent approached the 2nd respondent, and the latter stood guarantee to Bankers at Delhi enabling the first respondent to open the necessary letter of credit.
Thereafter, while the goods contracted for from the Japanese companies were on the high seas, there was an agreement by which the first respondent agreed to sell to the second respondent at a future date, certain quantities of sewing machines, heads and oscillating rock shafts.
When the goods arrived at Calcutta, the Customs authorities took the view that the goods were ascertained and specific goods, that the property in them had passed to and vested in second respondent by reason of the agreement to sell, so that at the time of importation the goods were not covered by the licence in favour of the first respondent and ordered confiscation of the goods and the imposition of a penalty.
The first respondent thereupon moved the High Court and the High Court held against the appellant.
In appeal to this Court, the appellant Collector of Customs, also raised the contentions that though everything ostensibly was done by the 1st respondent the real importer was the 2nd respondent and that, therefore, the importation was unauthorized; and that the High Court had no jurisdiction to interfere Under article 226, with the order of the Customs authority.
Dismissing the appeal, ^ HELD: (I) It is not possible to hold on the facts of this case, that the property in the goods passed to the second respondent at the time of the agreement, and the High Court was right in holding that the property in the goods did not pass to the buyer till the time of delivery of the goods in Bombay., [977E, G H] (a) The agreement to sell related not to the entire consignment of the goods which were being imported by the first respondent but only to part of those goods even though it was a major part.
Out of 208 dozen rock shafts which were imported, 200 dozen were to be sold to the 2nd respondent.
There was nothing to prevent the first respondent from selecting for itself any 8 dozen rock shafts out of the consignment.
The Place of delivery was the second respondent 's godown in Bombay, and therefore, the property in the goods could not pass in favour of the second respondent until after the arrival of the goods in Bombay and the 200 dozen rock shafts to be delivered to the 2nd respondent were separated.
So far as the sewing machines were concerned, the property in them could also not pass to the buyer before the passing of the property in rock shafts as the contract was one indivisible contract.
No specific goods in a deliverable state were attached to the contract when it was made.
[977E G] 972 (b) [n many genuine commercial transactions guarantee can be arranged by a party importing or exporting goods under a valid licence.
The mere fact of financial guarantee by the second respondent to a banker for the purpose of enabling the first respondent to open a letter of credit, without anything more, would not convert the guarantor (2nd respondent) to be the owner of the property, the moment the contract was entered into, if the terms therein pointed to the contrary.
[978A B] (2) It was never the contention of the Customs authorities that the importation of the goods was not done by the 1st respondent or that the 1st respondent 's contracts with the Japanese suppliers were sham.
Therefore the appellant cannot be permitted to raise the contention that the real importer was the 2nd respondent.
[977E G] (3) The 1st respondent 's licence was not an Actual User Licence and there fore the 1st respondent could sell the imported goods to others.
The legal issue in the case was whether property had passed to the 2nd respondent at the time the agreement was entered into between the respondents and if on the terms of the agreement along with relevant facts and circumstances, the customs authorities had committed a manifest error of law apparent on the face of the order the High Court 's jurisdiction to interfere under article 226 is attracted.
[978G 979B]
|
Civil Appeal No. 571 of 1972.
Appeal by Special Leave from the Judgment and order dated the 15th June 1971 of the Madras High Court in W.P. No. 3112/70.
P. P. Rao and G. Chandra for the Appellant.
P. C. Bhartari and J. B. Dadachanji for the Respondent.
The Judgment of the Court was delivered by BEG, J.
The General Manager, Southern Railway obtained Special Leave to appeal to this Court against a judgment of a Division Bench of the Madras High Court.
The learned Judges, Veeraswami, C.J., and Raghavan, J., had held, in a very short judgment, a notification of the Railway Department, retiring the petitioner respondent from service with effect from 3rd October, 1970, to be inoperative.
The petitioner respondent had been appointed a temporary Clerk on 10th December, 1936, and had been confirmed in that post on 1st 1086 September, 1938.
He contended that he was entitled to continue in service until he had attained the age of 60 years.
He alleged that the notification retiring him had been issued on the wrong assumption that he had to retire at the age of 58 years which is the normal age of retirement.
He claimed the benefit of Rule 2046(b) of the Railway Establishment Code.
According to Rule 2046(b), a Ministerial Railway Servant was entitled to the higher age of retirement provided; firstly, he had entered Government service on or before 31st March, 1938; and, secondly, he had held "on that date" (i.e. on 31st March, 1938), either: (i) "a lien or, a suspended lien on a permanent post"; or (ii) "a permanent post in a provisional substantive capacity under clause (d) of Rule 2008 and had continued to hold the same without interruption until he was confirmed in that post".
It is clear that the respondent petitioner fulfilled the first condition inasmuch as he had entered Government service on 10th December, 1936, which was obviously before 31st March, 1938.
The High Court, however, proceeded to hold that, since he was confirmed on 1st September, 1938, he would be deemed to have been permanently appointed since 10th December, 1936, so that he would get the bene fit of the second condition which was also essential for him to satisfy before he could be held to be entitled to the higher age of retirement.
It is very difficult to appreciate the reasoning of the High Court when Rule 2046(b) clearly lays down that not only the first but one of the two alternatives of the second set of conditions must also be fulfilled by the Government servant "on that date", that is to say, on 31st March, 1938.
The specified requirements of the rule could not be over ridden by some deemed retrospective benefit accruing from a confirmation subsequent to 31st March, 1938.
The second of the two alternatives in the second set of conditions could not apply to the respondent petitioner as he was only a "temporary Government servant" and not a "provisional Government servant" as defined by Rule 2008(2).
Rule 2008 may be reproduced here.
It reads: "2008 Suspension of lien: (a) A competent authority shall suspend the lien of a railway servant on a permanent post which he holds substantively if he is appointed in a substantive capacity: (1) to a tenure post or (2) to a permanent post outside the cadre on which he is borne, or (3) provisionally, to a post on which another railway servant would hold a lien had his lien not been suspended under this rule.
1087 (b) A competent authority may, at its option, suspend the lien of a Railway servant on a permanent post which he holds substantively if he is deputed out of India or transferred to foreign service, or in circumstances not covered by clause (a) of this Rule, is transferred whether in a substantive or officiating capacity, to a post in another cadre, and if in any of these cases there is a reason to believe that he will remain absent from the post on which he holds a lien for a period of not less than three years.
(c) Notwithstanding anything contained in Clause (a) and (b) of this Rule a railway servant 's lien on a tenure post may, on circumstances, be suspended.
If he is appointed substantively to another permanent post, his lien on the tenure post must be terminated.
(d) If a railway servant 's lien on a post is suspended under clause (a) or (b) of this Rule, the post may be filled substantively and the railway servant appointed to hold it substantively shall acquire a lien on it provided that the arrangements shall be reversed as soon as the suspended lien revives.
NOTE: This clause applies if the post concerned is a post in a selection grade of a cadre".
The respondent petitioner having been confirmed on 1st September, 1938, could be said to be appointed in substantive capacity only on that date.
He could neither have a lien nor a suspended lien on a permanent post.
He could also not be found to hold a permanent post in a provisional capacity under clause (d) of Rule 2008 before 31st March, 1938.
The respondent petitioner had not been shown to hold a permanent post on 31st March, 1938.
Learned Counsel for the appellant, therefore, relied on: State of Punjab vs Dharam Singh State of Nagaland vs G. Vasantha Director of Panchayat Raj & Anr.
vs Babu Singh Gaur.
Learned Counsel for the respondent petitioner found it impossible to justify the order of the Madras High Court.
Learned Counsel for the appellant stated that the Railway Administration does not propose to claim any refund of salary paid to the respondent petitioner, who had worked until he retired at the age of sixty, and that this appeal was filed only to get the question of law involved settled.
The position was so clear, under the law, that it should not have been necessary at all for the parties to have had to come to this Court for a correct decision.
We allow this appeal and set aside the judgment and order of the High Court.
The parties will bear their own costs.
S.R. Appeal allowed.
| IN-Abs | Under Rule 2046 (b) of Railway Establishment Code a Ministerial Railway servant was entitled to the higher age of retirement at 60 years (i) if he had entered service on or before 31st March 1938 and (ii) if he held on 31st March 1938 either a lien or a suspended lien on a permanent post under Rule 2008(a) or a provisional lien on a permanent post under Rule 2008(d) without interruption until he was confirmed in that post.
The respondent had been appointed a temporary clerk on 10th December 1936 and was confirmed in that post on 1st September 1938.
When he was retired on attaining the age of 58, he challenged the orders claiming benefit of Rule 2046(b).
The High Court allowed the writ petition holding that since he was confirmed on 1st September 1938 he would be deemed to have been permanently appointed since 10th December 1936.
Allowing the appeal by special leave the court, ^ HELD: (1) Rule 2046(b) clearly lays down that not only the first but one of the two alternatives of the second set of conditions must also be fulfilled by the Government servant "on that date" i.e. 31st March 1938.
The specified requirement of the rule could not be overridden by some deemed retrospective benefit alleged to accrue from a confirmation subsequent to 31st March 1938.
[1086D E] State of Punjab vs Dharam Singh ; ; State of Nagaland vs G. Vasantha A.I.R. 1970 SC 537: Director of Panchayat Raj & Anr.
vs Babu Singh Gaur ; , (followed) [His Lordship observed that the position was so clear, under the law, that it should not have been necessary at all for the parties to have had to come to this Court for a correct decision]
|
Civil Appeal No. 222 of 1975.
Appeal by special leave from the judgment and order dated the 8th August, 1973 of the Allahabad High Court in Special Appeal No. 189 of 1972.
B. Sen, Mrs. Lela Seth, B. Mohan, Parveen Kumar and O.P. Khaitan for the appellant.
T. section Krishnamoorthy lyer and P. K. Pillai for Respondent No. 4 The Judgment of the Court was delivered by BEG, J.
The appellant, here, by special leave, is a tenant of premises in Dehradun in respect of which the landlord respondent No. 4 had sought permission, under Section 3 of the U.P. (Temporary) Control of Rent & Eviction Act III of 1947 (hereinafter referred to as 'the 1093 Act '), to sue for his eviction.
The permission was granted by the Rent Control and Eviction officer, Dehradun, as long ago as 11 August, 1969, and, thereafter, the suit for ejectment of the appellant was filed on 19th November, 1969.
Section 3, sub.
(1) of the Act had merely imposed a bar on suits in Civil Courts filed without the permission of the District Magistrate except on certain grounds which are given there.
The plaintiff respondent, one Mrs. Sheila Kalha wife of a retired army officer, was given permission to file her suit on the ground that she required the accommodation for personal residence.
She is said to have been living at considerable expense to her at New Delhi due to inability to live in her own house at Dehradun as it has been occupied by the appellant.
The tenant had applied on 19th August, 1969, for a certified copy of the order of the Rent Control officer granting the landlord permission to sue and got its copy on 25th August, 1969.
Thereafter, the tenant filed a revision application under section 3(2) of the Act, purporting to be made to the Commissioner, Meerut Division, but actually filed on 16th September, 1969, before an Additional District Magistrate of Dehradun who had forwarded it on to the Commissioner.
The Revision Application was received in the Commissioner 's office on 24th September, 1969.
It was rejected by the Commissioner on the ground that it was filed beyond the time prescribed by Section 3(2) of the Act which reads as follows: "(2) Where any application has been made to the District Magistrate for permission to sue a tenant for eviction from any accommodation and the District Magistrate, grants or refuses to grant the permission, the party aggrieved by his order may within 30 days from the date on which the order is communicated to him apply to the Commissioner to revise the order.
" The State Government also rejected the revision application of the appellant tenant, filed under section 7F of the Act, against the Commissioner 's order.
The appellant tenant then approached the Allahabad High Court with a petition under Article 226 of the Constitution.
The petition was rejected by a learned Judge on 21st October, 1972, on two grounds: firstly, under Section 3(2) of the Act; and, secondly, that the time spent on obtaining the certified copy of the order of the District Magistrate could not be excluded under Section 12(2) of the Limitation Act of 1963.
For the second proposition reliance was placed upon Shyam Sunder Bajpai vs Commissioner Allahabad Division, Allhabad & Anr.and Ram Lakhan vs Commissioner, Varanasi Division, Varanasi & ors.
A Division Bench of the Allahabad High Court had rejected the tenant 's Special Appeal summarily.
This Court, however, granted special leave to appeal under Article 136 of the Constitution on 20th 1094 July, 1975.
We need not express any opinion on the correctness of the second proposition here if we agree with the High Court 's view on the first point because, in that case, the tenant 's application would be time barred even if the time spent in obtaining the copy was excluded.
The only contention, put forward by Mr. B. Sen on behalf of the tenani appellant, on the first point, is that there is a practice in Dehradun, acting on some instruction of the Commissioner, Meerut Division, to receive revision applications to the Commissioner through an Additional District Magistrate of Dehradun, who has, therefore, the Commissioner 's authority to receive these applications.
It was urged that the filing of the Revision application before an Additional District Magistrate should be deemed, in these circumstances, to be sufficient compliance with the requirements of Section 3(2) of the Act which provides, as it clear from a bare look at it, that the revision application lies before the Commissioner.
It is difficult to see how a practice could possibly modify the provisions of the Act.
There is not even a rule on this subject made by the State Govt.
under the provisions of Section 17 of the Act which authorises the Govt.
to "make rules to give effect to the purposes of this Act.
" There are rules on other matters but not on such a matter.
Mr. B. Sen relied on a Division Bench decision of the Allahabad High Court in T. C. Pasricha & Anr.
vs The State of U.P.where it was held: "It appears that the Commissioner had authorised the District Magistrate to receive revisions meant for him.
By so authorising, the Commissioner was only indicating the place and, the manner of representation of the revisions.
Since the Rent Control Act did not either by itself or rules framed under it lay down the precise procedure in regard to the presentation of the revision, the Commissioner who was the authority entitled to entertain and decide the revisions was within his rights to prescribe the procedure in respect of rep resentation of the revisions.
The direction given by the Commissioner in 1946 with regard to the presentation of revision was valid and enforceable".
In Pasrich 's case (supra), the Single Judge decision in Seth Bal Gopal Das vs State of U.P. on the case now before us, was noticed by the Division Bench and distinguished on the ground that there was no evidence here to prove that there was any such practice.
Both Pasricha 's case (supra) and the case now before us come from the Dehradun District.
We think it is difficult to reconcile the Division Bench decision in Pasricha 's case, decided on 5th April, 1973, with the summary rejection of the Special Appeal No. 180 of 1973 on 8th August, 1973, which is under appeal before us, although we find that one of the learned Judges is common to both the Division Benches.
1095 We prefer the reasoning of the learned Single Judge in Seth Bal Gopal Das vs State of U.P. (supra) to the reasoning of the Division Bench in Pasricha 's case (supra).
A wrong practice cannot possibly modify what naturally and logically follows from the language in Section 3(2) of the Act.
This provision says that the party aggrieved must "apply to the Commissioner to revise the order".
The natural inference is that the party must apply to the Commissioner directly and not through some other authority or official.
It is true that Section 3(2) does not prescribe the manner and place of presentation of applications.
But, unless there is some rule made to confer authority, upon the District Magistrate or the Additional District Magistrate concerned or his office, to act as the agent of the Commissioner, or a clear and specific authorisation by the Commissioner is proved, we fail to see how filing a revision application before the Additional District Magistrate can be deemed to amount to making the application to the Commissioner.
In Pasricha 's case (supra), the Division Bench had gone to the extent of holding that some communication made by the Commissioner in 1946 to the District Magistrate of Dehradun, even a copy of which was not placed before the Court, could be shown by means of an affidavit of a party, to have been both established and to be enough to confer an authority on an Additional District Magistrate of Dehradun to receive applications on behalf of the Commissioner under the provisions of Section 3(2) of the Act which were introduced after 1946 according to the statement of facts in Pasricha 's case (supra) itself.
Primafacie, an authorisation cannot relate to a power or right conferred by a provision which could not be present to the mind of the Commissioner at all at the time when he is supposed to have made some communication to the District Magistrate as the provision for a revision in such a case did not even exist then.
We, therefore, think that the reasoning of the Division Bench in Pasricha 's case (supra) is unacceptable.
The alleged practice cannot be held to have been even established.
And, in any event, such a practice was not enough to confer authority to receive petitions on behalf of the Commissioner.
For that purpose, proof of at least specific authorisation by the Commissioner, after the introduction of the new provision, was required.
The result is that we are unable to find any merit in the case of the appellant who has been able to hold up proceedings for his eviction long enough in respect of accommodation which, on the allegations made on behalf of the landlord (this term includes the "land lady"), has been required to meet the landlord 's dire personal needs since at least 1969.
We hope that the trial of the suit in such a case will not be delayed now.
We dismiss this appeal with costs throughout.
M.R. Appeal dismissed.
| IN-Abs | The Rent Control and Eviction officer Dehradun.
granted permission to the respondent landlady under section 3 of the U.P. (Temporary) Control of Rent and Eviction Act, to file a suit for eviction of the appellant tenant, on the ground that the accommodation was required for her personal residence.
The tenant filed a revision application under section 3(2) of the Act, purporting to be made to the Commissioner, Meerut Division but actually filed before the Additional District Magistrate who rejected it as time barred.
The appellant tenant 's further revision application, made under section 7F of the Act.
was rejected by the State Government, and then his petition under Article 226 was rejected by a Single Judge of the Allahabad High Court on two grounds: Firstly that neither the Act, nor the rules made thereunder had any provision enabling the Additional District Magistrate to receive the tenant 's application under section 3(2).
and secondly that the time spent in obtaining the certified copy of the District Magistrate order could not be excluded under section 12(2) of the .
The appellant 's special appeal was summarily rejected by a Division Bench of the High Court.
In appeal by special leave, the appellant contended before the Court that.
as a practice had grown up in Dehradun, that the Additional District Magistrate receives the revision applications made to the Commissioner, the requirements of section 3(2) should be deemed to have been sufficiently complied with.
Dismissing the appeal, the Court, ^ HELD: There is not even a rule on this subject made by the State Government.
A wrong practice cannot possibly modify what naturally follows from the language if s.3(2) of the Act, that the party must apply to the Commissioner directly and not through some other authority or official.
For that purpose proof of at least specific authorisation by the Commissioner, after the introduction of section 3(2), was required.
[1094C; 1095A & F]
|
Civil Appeal No. 1097 of 1970.
Appeal from the Judgment and order dated the 25th April 1967 of the Delhi High Court in Letters Patent Appeal No. 106 D of 1964.
M. N. Phadke, section Balakrishnan and N. M. Ghatate, for the Appellant.
L. N. Sinha, Sol.
General, P. P. Rao and Girish Chandra, for Respondents.
The Judgment of the Court was delivered by UNTWALIA, J.
This appeal is by certificate granted by the High Court of Delhi under Article 133 (1) (a) & (b) of the Constitution of India as it stood prior to the 30th Constitution Amendment Act.
No substantial question of law is involved in this appeal.
It is to be decided mostly on facts.
And since we are in agreement with the judgment of the Division Bench of the High Court given in the Letters Patent appeal, we shall advert only to the necessary facts and the main points argued before us.
Shri H. C. Sarin the appellant was employed in the Indian Railways as Senior Railway Inspector attached to the Office of the India Stores Department at London.
He was in that job from the 6th August, 1954.
The Government of India placed orders with various firms in the United Kingdom and the continent for supply of rolling stock and other materials for the Indian Railways.
In December, 1956 the appellant was deputed to the Essen Area of West Germany as Senior Railway Inspector in which capacity he had to inspect and pass the goods in the first instance at the site.
Although this work of inspection in West Germany was entrusted to the German Federal Railway in January 1958, the appellant remained there associated with the work till April or May, 1958.
In July, 1956 orders were placed with M/s Leo Gottwald and Company for supply of several breakdown cranes both for meter gauge and broad gauge railway tracks in India.
This was a family concern of one Dr. Hans Dieter Gottwald.
Prior to the appellant 's going to the Essen Area 41 of West Germany, there were other Senior Railway Inspectors doing the work of inspection including one section N. Hussain (since deceased) immediately preceding the appellant.
One of the clauses in the contract with Gottwald was that he would be liable to pay liquidated damages in the specified sums if he made delay in the delivery of the cranes.
Eventually there being delay, the amount of such damages was quantified at a figure in the neighbourhood of & 45,000/ .
Dr. Gottwald carried on business of his firm at Dusseldorf in West Germany.
He came to London on July 30, 1958 to discuss with Shri L. T. Madmani, Railway Advisor certain technical aspects of the cranes contract.
A meeting took place in the morning wherein were present other officers including one Mr. Bayross.
In the afternoon, Gottwald saw section N. Hussain at the lndia Stores Department when the latter told the former that delay had occurred in the supplies of cranes and consequently the firm of contractors may have to pay liquidated damages.
Upon this, Gottwald disclosed that Sarin was responsible for the delay, he had taken money by way of bribes from the firm and in such a situation the firm was not liable to pay any damages.
Since the allegation made by Gottwald against Sarin was a serious one section N. Hussain advised him to inform Madnani about it.
He did accordingly.
After some preliminary steps Gottwald 's statement was recorded on September 8, 1958 at India Stores Department where he gave a detailed account of the allegedly corrupt practices of the appellant.
Shri Shukla was the Director General of the India Stores Department at the relevant time.
He directed Gottwald to furnish some tentative proof in support of his accusation against Sarin.
Gottwald 's second statement was recorded on October 21, 1958.
One Shri M. A. Hussain, I. C. section was the Deputy High Commissioner for India stationed in U. K. at the relevant time.
On cxamining the papers and the statements of Dr. Gottwald given before the various officers of the India Stores Department the Deputy High Commissioner formed an opinion that prima facie the accusations against the appellant were such that required to be investigated in a departmental enquiry.
He accordingly made a recommendation to that effect to the Government of India.
The Government, however, directed a preliminary enquiry to be made by Shri N. section Pandey, Financial Advisor to the Indian High Commission and then to start a departmental enquiry, if necessary.
Accordingly, Pandey went to Gottwald 's place in West Germany, made preliminary investigations and submitted a report dated January 19, 1959 finding a prima facie case made out against the delinquent government servant.
At the instance of the Government of India, Ministry of Works, Housing and Supply, charges were served upon the appellant on April 7, 1959 along with two Annexures containing various details of the accusations made by Gottwald against him.
The appellant was asked to indicate by April 15 the papers which he wanted to inspect and the papers the copies of which he required to enable him to enter his defence.
He was asked to submit his written explanation by 30th of April, 1959.
In the meantime he was placed under suspension.
42 Shorn of details which were to be found in the Annexures the Charge Sheet served on the appellant contained the following three charges: "CHARGE I.
That Shri H. C. Sarin, while functioning as the Senior Railway Inspecting Officer in the India Stores Department, London, during the period between December, 1956 and May, 1958, demanded and obtained illegal gratification from the firm of Messrs. Leo Gottwald of Dussaldorf.
CHARGE II.
That during the aforesaid period and while functioning as aforesaid, the said Shri H. C. Sarin violated Rule 10 of the Railway Services (Conduct) Rules, 1956 in that he accepted an Opel Car from Messrs. Talbots of Achen as a gift.
CHARGE III.
That during the aforesaid period and while functioning as aforesaid, the said Shri Sarin used his official influence for personal advancement.
" Time for filing the written defence by the appellant was extended.
It was filed on May 27, 1959.
The appellant denied all the charges against him.
The Board of Enquiry set up by the Government of India consisted of the following : (1) Shri M. A. Hussain, ICS, Deputy High Commissioner, Chairman.
(2) Col. Hendricks, Deputy Director General (Inspection), I. section D., London, Member.
(3) Shri T. M. Duraiswamy, Deputy Director General, I. section D., London, Member.
The correspondence which passed between the appellant and the Board in connection with the departmental enquiry instituted against him is too voluminous to be referred to in this judgment.
No useful return will be achieved by referring to the correspondence in any detail.
Suffice it to say at this stage that the correspondence does indicate a calculated design and planned attempt on the part of the appellant to non cooperate with the enquiry and an anxiety and earnestness on the part of the Board to proceed in the matter as fairly as possible in the circumstances of the case.
The Board was obliged to go to Dusseldrof, hold an enquiry at the spot by examining as many as 21 witnesses there, some of whom had been cited by the appellant as his defence witnesses and to examine the relevant papers, documents and account books of the contractor 's firm.
All this proceeded ex parte between July 14 to July 17, 1959.
The Board 43 returned to London on July 19 and examined some witnesses there who had been cited as defence witnesses by the appellant.
Almost the entire departmental enquiry had to be conducted ex parte as the appellant would not participate in it even with a pair of tongs.
The appellant had named S/Shri Bhalla, Sharma, Johri and Sen, Railway officers in India as his defence witnesses.
He was asked to examine them by quesionnaries as it was not possible to call them to London for the purpose of the enquiry.
Nor was their evidence so material as to necessitate their examination viva voca before the Board.
The appellant refused to cooperate and did not submit any questionnaire.
The Board, thereupon, sent to all the four officers aforesaid copies of the charges levelled against the appellant and asked them to state if they had anything to say in relation to them.
Bayross was examined by the Board in London on September 29, 1959 after copies of the earlier statements of the witnesses and other papers had been supplied to the appellant on September 21, 1959.
The appellant was present on September 29 but did not actively participate in the enquiry, in that he did not take any part in it by cross examining Bayross.
The Board submitted its report to the Government of India on November 2, 1959 holding that charges I and III had been proved against the appellant and charge II had neither been proved nor disproved.
The Government gave a show cause notice on November 4, 1960 to the appellant asking him to show cause against his removal.
He filed his reply on January 31, 1961.
Later, however, the Government gave another show cause notice dated September 20, 1961 to the appellant to show cause as to why he should not be dismissed from service.
In October/November, 1961 the appellant filed three show cause explanations in writing.
He made another representation to the Government on March 4, 1962 for holding a fresh enquiry which naturally was not acceded to.
Eventually the appellant was dismissed from service by an order of the Government of India dated September 10, 1962.
He filed a writ petition in the High Court on December 6, 1962 to challenge the order of dismissal on several grounds, in nut shell, on the ground of violation of principles of natural justice in the conduct of the enquiry.
A learned single Judge of the High Court by his judgment and order dated August 3, 1964 allowed the writ petition and quashed the order of dismissal without any further or consequential order.
A Letters Patent appeal was filed by the Government which was disposed of by a Bench of the Delhi High Court on April 25, 1967.
The judgment if the single Judge was set aside and the order of dismissal passed against the appellant by the Government was maintained holding that there was no violation of the principles of natural justice in any manner.
Since the amount of salary payable to the appellant if the dismissal order could be found to be bad would, indisputably have been more than Rs. 20,000/ certificate was granted under Article 133(1)(a) & (b), strictly speaking, under sub clause (b).
Thus comes this appeal in this Court.
44 Mr. M. N. Phadke, learned counsel for the appellant pressed only the following points in support of the appeal.
(1) That the appellant was not allowed to go to Germany to examine and assess various matters which were necessary for submission and conduct of his defence.
It was done so in gross violation of the principles of natural justice and requirement of Article 311 of the Constitution.
(2) That copies and inspection of certain relevant and necessary documents were not allowed to the appellant by the Board.
It was not possible for him to cooperate and participate in the enquiry without them.
(3) That no adequate and reasonable opportunity was given to the appellant to defend himself at the enquiry.
(4) That the accusation made by Gottwald against the appellant was maliciously false as it was made with the ulterior motive of saving his firm from the liability of liquidated damages.
As a matter of fact the firm was not made to pay any damages in view of Gottwald 's success in his false accusation against the appellant.
(5) That Shri M. A. Hussain.
Chairman of the Board of Enquiry was highly biased against the appellant and the enquiry conducted under his stewardship was a farce.
(6) That Shri section N. Hussain was inimically disposed to wards and adversely interested against the appellant.
(7) That the services of a professional lawyer for cross examining Gottwald and a Railway officer of his choice from India were not made available to the appellant for conducting his defence.
Learned Solicitor General appearing for the Union of India the respondent refuted all the submissions made on behalf of the appellant.
In particular he focussed his submissions on point nos.
1, 5 and 7 as the other four points, counsel submitted, did not require any detailed reply.
Point No. 1 When the appellant was placed under suspension, in accordance with the relevant service rules he was asked not to leave London without permission of the Board.
As soon as the Charge Sheet was served on him by his letter dated the 10th April, 1959 the appellant wanted permission to visit Germany stating in para 6: "In order for me to prepare my defence I would request permission to visit Germany to collect essential information 45 required when submitting my written defence, especially as the charges refer to periods two to three years ago.
" The Chairman of the Board of Enquiry in his reply dated the 15 April, 1959 stated in para 3 thus: "In regard to your request to be permitted to visit Germany, the Board would like to have in writing before April 20, 1959, the purpose for which you wish to visit Germany and the names and addresses of person/persons you wish to contact and the paper/papers you may wish to examine.
" The appellant sent his letter dated April 20, 1959 stating in para 4 thus: "Regarding the visit to Germany and the persons and documents to be interviewed and seen, I thought it was plain that this depended on the inspection of documents referred to in paras 4 and 5 of your letter under reply.
Consequently until I have done this properly, I shall not be in a position to know what items or facts I require to investigate or check ' in Germany.
I shall therefore be glad if you will postpone this application of mine so that I may in due course specify the visits, persons and papers.
" The Chairman, thereupon, by this letter dated April 21, 1959 asked the appellant to supply the information in respect of his visit to Germany by April 30, 1959.
In his letter dated April 30, 1959 the appellant stated in para 3 thus: "I submit in view of the grave charges, false allegations, it is necessary for me to examine in detail Leo Gottwald 's system of accounting, storekeeping, procedure for telephone accounting, mailing letters etc.
Likewise the system of telephone connecting, booking, mailing letters etc.
at other firms mentioned by Dr. Gottwald, This is absolutely imperative and my defence would be incomplete without this.
In the absence of full information, examination of all documents studying systems of working mentioned above, I am not in a position to submit names of persons.
I would request early arrangements may please be made for me to study the systems of working mentioned above at the respective firms in Germany.
" The Chairman in para 4 of his letter dated May 1, 1959 informed the appellant: "In regard to your request for visiting Germany in order to examine the Leo Gottwald 's system of accounting, store keeping, mailing letters etc.
, it is felt that it is not necessary for you to visit Germany for the purpose because witnesses pertaining to all these matters will be called by the Board for examination and you will be given full 46 opportunity to elicit all relevant information required by you.
" Further correspondence followed in the matter and the appellant was not given permission to visit Germany prior to the visit of the Board of Enquiry.
In the light of the relevant correspondence which passed between the appellant and the Chairman of the Board of Enquiry we have come to the conclusion that it was not at all necessary for the appellant to visit Germany for preparing his defence.
The Board committed no mistake and violated no principles of natural justice in refusing the permission.
No useful purpose would have been served by such a visit in the interest of the appellant 's defence, if any.
on the other hand his insistence to visit Germany at the earliest opportunity smacks of some ulterior design on his part in regard to his defence.
When the Board decided to visit Germany for holding the enquiry, it gave ample opportunity to the appellant to proceed to Germany to take part in it.
The main part of the enquiry.
rather, the only substratum of the materials was to be done and collected at Dusseldorf in Germany.
Yet on one excuse or the other the appellant, it appears, was advised to adopt an attitude of non cooperation which was likely to forge a ground of attack on the departmental enquiry, thinking that participation in it would.
perhaps, worsen his case.
It is found more often than not that Government servants who have no real defence to take against the accusations are advised, and sometimes not without success, to non cooperate with the enquiry.
It seems to us this was one such case.
The Chairman by his letter dated June 18, 1959 asked the appellant whether he proposed to be present at the enquiry at Dusseldorf and such other places as the Board may determine on the dates to be intimated to him.
The appellant was specifically asked this question because he cast some baseless aspertions against the Board in his letter dated the 4th June, 59.
The appellant in his letter dated the 14th June had stated in para 14: "In the circumstances that I have put into, and hardly been left any choice, I feel no useful purpose call be served by my attending such an enquiry or having anything further to do with such as enquiry.
" The appellant 's reply dated June 20, 1959 clearly demonstrates the unjustifiably non cooperative attitude of the appellant.
He was running from pillar to post to find out some excuse to justify his non cooperation at the enquiry.
He insisted that Dr. Gottwald 's statement recorded in September, 1958 should be got signed by him which the Board rightly did not consider it necessary to do.
Another with stand which the appellant had taken was that the contents of his written defence submitted on May 27 were made known to section N. Hussain by some members of the Board of Enquiry an allegation 47 which was strongly refuted by the Board.
Lastly in the 10th paragraph of his letter dated June 20 the appellant said: "What can I do Mr. Chairman in the position you have placed me, you may proceed in any way you consider reasonable, just and fair." In spite of the unreasonable and unsustainable stand of the appellant, the Board of Enquiry, constituted as it was of high officials of the Government of India headed by the Deputy High Commissioner stationed in London, time and again expressed their anxiety to make the appellant participate in the enquiry.
But the appellant under a wrong advice played a game of hide and seek, at times adopted a tantalizing attitude showing his willingness to cooperate, but backed out at the eleventh hour.
To justify this comment we just mention some other letters viz. letter of the Board dated June 22, appellant 's reply dated June 23, Board 's letter dated June 26, appellant 's sticking to his previous stand in his letter dated June 29, Board asking the appellant to proceed to Germany in their letter dated July 2 and the appellant 's reiterating his previous stand in his letter dated July 8.
From the report of the Board it would appear that Sarin did not give a categorical answer as to whether or not he would go to Dusseldorf on July 13.
On the 10th July, he agreed to go and came to India Stores Department to collect his advance of T. A.
But on the evening of July 11, he informed the Secretary to the Board that he would not proceed to Dusseldorf to be present at the oral enquiry.
Mr. Phadke drew our attention to Sarin 's show cause reply dated January 31, 1961 in which he stated that the Board permitted him to go to Dusseldorf only if he agreed to participate in the oral proceedings there, otherwise not.
He therefore, cancelled his reservations to proceed to Dusseldorf.
He also referred to the photostat copy of the appellant 's letter dated July 24, 1959 and the addendum to this letter.
Nothing new; the same stand was taken by the appellant.
This, to our mind, makes patent the latent factor in the mental attitude of the appellant.
Did he want to go to Dusseldorf without agreeing to take part in the enquiry ? or did he want to go there to participate in it? Having appreciated all that has been said for the appellant in support of his first point we have come to the conclusion that the appellant was not denied any reasonable opportunity of visiting Germany at the proper time to participate in the enquiry.
He has to thank himself for deciding not to go.
Point No. 2.
It is not necessary to enter into any detailed discussion of this point.
In agreement with the Bench of the High Court we hold that all relevant documents were made available to the appellant either for inspection or for copies.
Some file containing the field inspection papers was not traceable.
The suspicion of the Board was that the Prosecutor at the departmental enquiry was not to gain anything by making the file untraceable.
On the other hand it was the appellant who was to gain by it.
The very same letters exchanged between the appellant and the Board in June and July, 1959 dealt 48 with this aspect also.
The High Court has extracted passages from the relevant letters in this connection and has rightly held: "It appears to us to be clear from this correspondence that all legitimate demands of the respondent for the inspection of papers which were available in the ISD office in London were fulfilled, but the respondent went on making unfounded claims in this behalf without specifying the documents.
We therefore, hold that all documents which were available in the ISD office in London were made available to the respondent." Point No. 3.
In support of the third point arguments were advanced with reference to letters dated July 18, August 6 and October 6, 1959.
Notes were handed over to us referring to the other pieces of correspondence.
We have studied them but think it unnecessary to increase the bulk of our judgment by referring to the correspondence in any detail.
It merely shows that on one ground or the other the appellant was adopting delaying tactics, shifting stands and excuses for not presenting himself at the enquiry either to cross examine the prosecution witnesses or to examine his defence witnesses.
All the time he was reiterating his stand taken in his letters dated June 14, and June 20, 1959.
The detailed report of the Board of Enquiry, apart from the correspondence which preceded it, is a clear proof of the anxiety of the Board to conduct the encquiry as fairly and fully as they could in the circumstances of the case.
The submission of the appellant is rejected as being devoid of substance.
In view of the attitude taken by the appellant of complete noncooperation in his letters dated June 14 and June 20, 1959 no useful purpose would have been served by associating him with the examination of the witnesses in London.
Madnani and section N. Hussain were examined in July and August.
The appellant never expressed his willingness to cooperate and be present at the examination of the witnesses in London.
His presence at the time of the examination of Bayross was a make believe more of cooperation to colour and cloud his real attitude of non cooperation.
The Board committed no irregularity or illegality in sending a general questionnaire to S/Shri Bhalla, Sharma, Johri and Sen in India as the appellant had refused to submit a questionnaire.
Copies of all the relevant statements and papers given to the Board at Dusseldorf were given to the appellant in September, 1959.
Although there was some delay in supply of these papers, that did not cause any prejudice to the appellant.
Point No.4 This point mainly concerns the merits of the findings of the Board of Enquiry and their final acceptance by the Government of 49 India.
Whether a charge levelled against the appellant was true or false had to be and has been judged in the light of the appellant 's stand that Gottwald had a motive to accuse falsely the appellant of having taken bribe from him in order to establish that he was not at fault in the delay which was made in the delivery of the contracted cranes.
Without much elaboration we reject this argument.
Gottwald was to gain by merely throwing the blame on the shoulders of Sarin.
He had nothing to gain and only to lose by making an accusation of having paid bribe to Sarin under his pressure.
No person would like to involve himself in the deal of payment of bribe to a Government servant merely for the purpose of explaining the delay caused in effecting the deliveries.
Ordinarily bribe could be paid so that there may not be any delay in inspection.
But here was a case where it is said delay was caused in the inspection because there was delay in the payment of the bribe.
It is not for us to examine in any detail the correctness of the findings recorded against the appellant at the departmental enquiry; but in passing, we may just observe that it could not have been possible for Gottwald to make a false accusation against Sarin, and then support it before the Board by examining his father, the bank records, vouchers, account books and a large number of persons working in his firm.
There was nothing in the records of this case to show that the claim of liquidated damages against the contractor was given up in view of the finding of guilt of the appellant.
We were informed at the Bar by the Soilcitor General that the claim was settled and not given up.
Be that as it may, we find the fourth submission made on behalf of the appellant unsustainable.
Points 5 and 6 These points may be dealt with together as they have got some inter connection.
It could not be substantiated on behalf of the appellant that section N. Hussain had any animus against him or was adversely interested against him in the matter.
Some letters with reference to the work of section N. Hussain at Barmingham with comments of the appellant thereon were placed before us.
Mr. Phadke could not substantiate the point with reference to them.
Time and again he laid stress on the fact that Gottwald made this complaint to Madnani on July 30, 1958 on being asked to do so by section N. Hussain because he had his own axe to grind against Sarin.
This argument has been stated merely to be rejected.
It was just in the natural course of events that when section N. Hussain was finding fault with Gottwald for the delay in the execution of the contract the latter became forced by circumstances to blurt out the truth.
The accusation against Sarin was too serious to be taken note of by section N. Hussain alone.
Naturally, therefore, he advised him to go and make this complaint to the higher officer Madnani.
No connection between M. A. Hussain the Chairman of the Board and section N. Hussain a Senior Inspector who was in Essen Area of West Germany immediately before the appellant, was established.
It is an argument of desperation to suggest that M. A. Hussain was biased against the appellant to protect or help section N. Hussain.
The charge of being communal levelled against the Chairman by the appellant in his letter dated October 50 5, 1959 written to the Government of India was obviously made with an ulterior motive after conclusion of the enquiry and sensing that it had gone against the appellant.
Great stress was led in court to show M. A. Hussain 's bias on the ground that at the earlier stage in the later half of 1958 he had formed his opinion against the appellant and recommended and insisted for the starting of a departmental enquiry against him without any further preliminary enquiry.
Mr. Phadke submitted that the Government turned down the proposal of M. A. Hussain and directed a preliminary enquiry to be made by Pandey.
We do not appreciate the force of this argument.
It would appear from the enquiry report that M. A. Hussain did not want, as he had no time, to be the Chairman of the Board of Enquiry.
Being a Deputy High Commissioner he was too busy in other affairs of the State.
But since the matter to be enquired into was against a high official of the Government, M. A. Hussain was appointed as the Chairman of the Board.
The appellant never objected to his being on the Board, until after the conclusion of the enquiry.
We are dis tressed to find that the appellant was ill advised to invent at a late stage a crudse and false story that on the 5th October, 1959 Doraiswamy a member of the Board of Enquiry had shown the secret file to the appellant which showed the bias of M. A. Hussain as he had dealt with the matter in the latter half of 1958.
Although according to the statement in the Writ Petition (vide para 28) he had written his letter dated October 5, 1959 after the alleged showing of the confidential file by Doraiswamy to him, not a word is to be found in the said letter to this effect.
Such a story was put forward in the written explanations which the appellant filed in answer to the punishment show cause notices.
We reject points 5 and 6 of the appellant.
Point No. 7 The enquiry was being conducted in accordance with Rule 1730 of the Indian Railway Establishment Code, Volume I.
In the main body of the rule where a procedure for holding a departmental enquiry has been provided for, there is nothing said in relation to the engagement of a lawyer.
Certain notes are appended to the rule.
They seem to have been appended not on the basis of the executive instructions but as parts of the rule itself.
One such note was appended as note 4, which subsequently became note 3, on September 25, 1956 by the President of India who had framed Rule 1730.
This note reads as follows: "In a departmental enquiry, the accused railway officer may, if he so desires, be accompanied by another railway officer provided that the officer so nominated as the defence counsel is approved by the competent authority to act as such, and provided also that the person so nominated shall not be a professional lawyer.
The term 'professional lawyer includes those persons who are competent to practice in a court of law. ' In face of the above note, treating it as a part of the rule, the appellant was not entitled to the services of a professional lawyer.
Gottwald, 51 as it appears, was a lawyer in name but actively in business.
The services of a professional lawyer were not necessary to cross examine him.
The fact was a simple one as to whether he had paid money to the tune of about 24,000 D.M. to the appellant from time to time.
Even if we treat the note aforesaid as one based merely on the executive instructions and not a part of the rule itself, we see no reason to say that the authority was obliged not to follow the note but to go against it.
At the most it had a discretion in the matter.
The question is whether the discretion was rightly exercised or was it exercised so arbitrarily as to lead to the conclusion that principles of natural justice were violated when the services of a professional lawyer were not made available to the appellant.
We give the answers against the appellant.
Great reliance was placed for the appellant on a decision of this Court in C. L. Subramaniam vs Collector of Customs, Cochin(1).
In this case the argument that, rule or no rule, the services of a professional lawyer should be made available at a departmental enquiry when asked for was not accepted.
What was held in that case was that the disciplinary authority brushed aside the request of the appellant before the Surpreme Court on a wrong ground completely ignoring the circumstances which were relevant.
It was, therefore, said at page 490: "Therefore that authority clearly failed to exercise the power conferred on it under the rule.
It is not unlikely that the Disciplinary Authority 's refusal to permit the appellant to engage a legal practitioner in the circumstances mentioned earlier had caused serious prejudice to the appellant and had amounted to a denial of reasonable opportunity to defend himself." In Tara Singh etc. etc.
vs State of Rajasthan and Ors.(2) the importance which is to be attached to the note appended the rule has been emphasized by Ray, C. J. delivering the judgment on behalf of the Division Bench of this Court to which one of us (Krishna Iyer, J) is a party, in these terms: "The notes are promulgated with the rules in exercise of legislative power.
The notes are made contemporaneously with the rules.
The function of the notes is to provide procedure and to control discretion.
The real purpose of the notes is that when rules are silent the notes will fill up gaps.
" The appellant was not entitled as a matter of right to have the services of any railway officer stationed in India to assist him in the conduct of his defence.
He wanted an officer from India especially Shri Bhalla.
It was not possible to make available the services of an officer from India.
The appellant was given a wide field of choice either to choose any railway official stationed in London or in the continent or some other personnel of the Indian High Commission in London.
The accusations made against the appellant were not 52 such that required any expert or special skill.
The question was a simple one whether he had taken money from Gottwald in discharge of his official duties.
Having appreciated all the facts and circumstances of the case we have come to the conclusion that no principle of natural justice was violated in not making available to the appellant the services of Shri Bhalla or any other railway officer stationed in India for the conduct of his defence.
In the entire background of this case we find a passage occuring at page 803 in the Judgment of Lord Denning, Master of the Rolls in the case of R vs Secretary of State for the Home Department ex parte Mughal(1) quite apposite to be quoted.
The passage runs thus: "The rules of natural justice must not be stretched too far.
Only too often the people who have done wrong seek to invoke 'the rules of natural justice ' so as to avoid the consequences.
" In the result we find no merit in this appeal and dismiss it with costs.
V.P.S. Appeal dismissed.
| IN-Abs | Indian Railways Establishment Code, Vol.
I r. 1730 Right of delinquent officer to services of on advocate or another Railway offcial.
The appellant was a railway official of the Indian Railways, in London.
In connection with the purchase of stock from a West German firm three charges were framed against him that he obtained illegal gratification from the proprietor of that firm and that he had used official influence for personal advancement.
A board of enquiry as set up by the Government of India and the enquiry was held in London and West Germany.
The board held that two of the charges were proved and the appellant was dismissed from service.
He filed a writ petition in the High Court which was dismissed.
In appeal to this Court, it was contended that the enquiry was held in gross violation of the principles of natural justice and requirements of article 311 of the Constitution; that the proprietor of the German firm made the false accusation against him in order to escape payment of damages; that the chairman of the board of enquiry was biased against him, and that the appellant was denied the services of a professional lawyer or a railway official of his choice from India for conducting his defence and for cross examining the proprietor of the German Firm.
Dismissing the appeal, ^ HELD: (1) The correspondence that passed between the board and the appellant snows that there was no violation of any principle of natural justice, that the appellant was given inspection of all necessary documents; that he was given adequate and reasonable opportunity to defend himself and that the allegation that the chairman of the board was biased against the appellant was totally false.
[46 B C] (2) No principle of natural justice was violated in not making available to the appellant the services of a professional lawyer or of another railway official from India.
[51 B] (a) The enquiry was conducted in accordance with r. 1730 of the Indian Railways Establishment Code, Vol.
I, which prescribes the procedure for holding a departmental enquiry.
There is nothing in the rule about engagement of a lawyer but the note appended to the rule provides that in a departmental enquiry the accused may, if he so desires, be accompanied by another railway officer, provided he is approved by the competent authority, and provided that the person so nominated shall not be a professional lawyer.
[50 F G] (b) The notes are promulgated with the rules.
Their function is to provide procedure, to control discretion, and to fill up gaps when rules are silent.
Under the rule, the appellant was not entitled to the services of a professional lawyer.
[51 F G] Tara Singh etc.
vs State of Rajasthan and ors.
, [1975]3 SCR 1002, followed.
(c) Even if the note is treated as an executive instruction and not part of the rule itself, there is no reason why the authority should not follow the note.
The authority would still have a discretion in the matter.
In the present case, the question involved was a simple one whether he had taken money from the 40 proprietor of the German firm.
No prejudice was caused to the appellant, because the proprietor was only a lawyer in name but was actively in business and the services of a professional lawyer were not necessary to cross examine him.
[51 B] (d) The appellant wanted an officer from India to assist him in the conduct of his defence.
Under the rule, he was not entitled, as a matter of right, to have the services of any railway officer stationed in India.
He was in fact given a choice to choose either one stationed in London or on the Continent.
[51 G H] C. L. Subramaniam vs Collector of Customs, Cochin, [1972]3 SCR 485, explained and distinguished.
R. vs Secretary of State for the Home Department ex parte Mughal [1973] All England Law Reports, 796, referred to.
|
Civil Appeals Nos.
1867 1924, 1952 of 1975 and 9 to 66 of 1976.
From the Judgments and orders dated the 18 4 75, 28 4 75 and 27 5 75 of the Mysore (Karnataka) High Court in Writ Appeal Nos.
1034 1039/74 and 116 to 143/75, 951 74, 922 923/74, 32/75, 1035 of 1974 and 976 to 1033/74 respectively.
L. N. Sinha, Sol.
General in C.A. No. 1891 and 1952 for the appellants in C.As.
1867 1924 and Respondent in CA 1952/75 and K.S. Puttaswamy, 1st Addl.
Government Advocate (In Cas.
1867 1924 and 1952/75) B. R. G. K. Achar.
section G. Sundaraswamy, K. section Gourishanker and K. N. Bhatt for the Appellants in C.As.
1952/75 and Respondents in C.A. 1891/75.
L. N. Sinha, Sol.
General in (CA 9) K. section Puttaswamy, Asstt.
Government Advocate, Narayan Netter and B. R. G. K. Achar for the Appellants in C.As. 9 to 66 of 1976.
section V. Gupta (In CA 1890/75), section section Javali and B. P. Singh for Respondents in CAs.
1875 to 79, 1882 83 1885, 1887 90, 1893, 1895, 1897, 1902 08, 1909, 1910, 1912, 1914, 1917, 1920, 1923 24/75 and for R. 2 in C.As.
1867, 1874, 1880 81, 1884, 1889 1901, 1903 1906 07 and 1921/75 and for Respondent in Appeals Nos. 9, 13 18, 20, 21, 39 44, 54, 56, 58, 60 63 and for Respondent No. 1 in Cas 19, 22 23, 37, 43, 46, 51, 55, 59, 65 and Respondent No. 2 in C.As 38 of 1975.
The Judgment of the Court was delivered by RAY, C.J.
These appeals are by certificate from the judgment dated 18 April, 1975 of the High Court of Karnataka.
The respondents were the petitioners in the High Court.
The respondents are either holders of Bane lands in the District of Coorg or holders of such lands who purchased timber standing on them from such holders.
The respondents in the High Court asked for writ directing the Divisional Forest officer of the State to issue permits to the respondents to remove trees standing on Bane lands as particularised in the petition.
1090 The Divisional Forest Officer refused permits to the respondents to cut trees and remove timber.
The two grounds on which the respondents challenged the order of refusal are these.
First, the respondents claimed a vested right to redeem the trees on Bane lands on payment of 50 per cent of the value of timber under Coorg Land and Revenue Regulation of 1899 and the rules framed thereunder.
Second the respondents claimed that, by section 75 of the Karnataka Land Revenue Act, 1964, an absolute right was conferred on them in respect of trees on Bane lands and the Government have no right even to demand 50 per cent of the value.
The learned Single Judge referred to the provisions of Coorg Land and Revenue Regulation of 1899 and in particular rule 97 thereof.
The learned Single Judge came to the conclusion that rules conferred a right on the holders of Bane land to redeem the trees standing on such Bane lands.
He also held that under the rules, the respondents were required to pay 50 per cent of the value of the timber to the State along with other incidental charges.
The contention of the State that the Coorg Land and Revenue Regulation, 1899 was repealed and, therefore, the respondents had no right under those Regulations to remove timber was repelled by the learned Single Judge.
The learned Judge held that section 202 of the Karnataka Land Revenue Act of 1964 did not affect the right acquired by the holders of Bane lands in spite of repeal of the Coorg Land and Revenue Regulation of 1899.
In this view of the matter, the learned Single Judge did not consider it necessary to express any opinion on the second contention of the respondents whether under section 75 of the Karnataka Land Revenue Act of 1964, the State had no right to demand 50 per cent of the value.
The Division Bench on appeal held that the respondents could be divided into two categories.
As to the first category, the Division Bench in sub paragraph (1) of paragraph 59 of the judgment said that those who deposited before 15 January, 1974, 50 per cent of the value of timber as determined by the Divisional Forest officer, could be granted permits to cut and remove timber.
If there was any difference between the 50 per cent of the actual value of timber and the amount paid on the basis of determination by the Divisional Forest officer, the Divisional Forest officer would recover the difference as mentioned in the said paragraph 59(1).
In sub paragraph (2) of paragraph 59, the Division Bench dealt with respondents who did not fall within category 1, but made applications before 15 January, 1974.
The Solicitor General appearing for the State with his usual fairness said that he did not want to take up time of the Court in going into the merits of the appeals.
He accepted the conclusions of the High Court in paragraph 59 of the judgment.
The result is that the conclusions of the High Court in paragraph 59 are affirmed.
The matter, however, does not end there because counsel for the respondents submitted that the Division Bench went into the nature and tenure of Bane lands and expressed views which are not correct 1091 and which in any event were not necessary for the purpose of the present case.
The learned Single Judge rightly did not express any view on the second question as to whether the Bane land holders could ask for removal of trees without payment of full value.
The Division Bench, however, in paragraphs 16 and 20 dealt with the legal position of Bane lands prior to 1 November, 1899, in paragraph 30 on the legal position between 1 November 1899 and 1 April 1964 and in paragraphs 36 and 43 on the legal position after 1 April 1964.
The Division Bench of the High Court in paragraphs 17 and 19 of the judgment dealt with Bane and Kumki lands and equated the same.
It may be stated here that one of the respondents Consolidated Coffee Ltd., also filed an appeal from the judgment of the High Court.
The Solicitor General contended that the Consolidated Coffee Ltd. was not competent to file an appeal because the company had obtained relief and could not, therefore, attack the judgment.
Having heard the Solicitor.
General and counsel for the respondents, we are of opinion that the course adopted by the learned Single Judge was correct.
The Division Bench of the High Court need not have gone into the question on the nature and tenure of Bane lands and expressed opinion on rights of the parties.
These observations were not necessary.
We, therefore, hold that we affirm the conclusions of the Division Bench of High Court as stated in paragraph 59 of the judgment and make it clear that the observations and opinions expressed by the Division Bench on the nature and tenure of Bane lands and rights of the parties will not bind the parties on these questions in future.
It will be open to both parties, namely, the appellants and respondents to urge their rival contentions on these questions if in future there will be any dispute between the parties.
The directions given by the Division Bench in paragraph 59 of the judgment will be followed by the parties.
The directions are explicable because of 15 January 1974 being taken as the dividing line with regard to persons who made payment and persons who did not make payment consequent upon the repeal of Rule 137 of the Karnataka Forest Rule, 1969.
The appeals are dismissed.
Parties will pay and bear their own costs.
S.R. Appeals dismissed.
| IN-Abs | "Bane lands" are forest lands granted for the service of the "Warg", holding rice fields to which they are allotted to be held, free of revenue, for grazing, leaf manure/firewood and for timber required in the Warg, capable of being alienated only along with the Warg lands u/s 97 of the Coorg Land and Revenue Regulation 1899, which is in pari materia with Rule 151 A and B made under the Indian Forest Rules 1954.
The holders of the Bane Land had the right to redeem the trees standing on such Bane lands subject to the payment of seignorage etc.
Under Rule 137 of the Karnataka Forest Rules 1969, effective from 1st March 1969, redemption of the growth on "Bane lands" was allowed on payment of 50% of the value of the timber.
Rule 137 was however deleted w.e.f. 15th January 1974.
The various appellants who were holders of "Bane Lands" challenged, under article 226.
the orders of the Forest authorities demanding full value of the timber sought to be "redeemed" by them contending that (i) they had vested right to redeem the trees on Bane lands on payment of 50% of the value of timber under the Coorg Land and Revenue Regulations of 1899 and (ii) Section 75 of the Karnataka Land Revenue Act, 1964 vested in them an absolute right in respect of the trees on Bane lands and the Government therefore had no right even to demand 50% of the value.
All the writs were accepted by the Mysore High Court following its earlier decision in I.L.R. (Karnataka) 1975 Vol. 25, p. 443 (Ramaraju Naidu vs Divl.
Forest officer) holding that the Rules conferred a right on the holders of Bane lands to redeem the trees standing on such lands on payment of 50% of the value of the timber to the State along with other incidental charges.
The court did not express any opinion whether the State had no right to demand 50% of the value under the Karnataka and Revenue Act of 1964.
Allowing the State appeal against I.L.R. (Karnataka) 1975 Vol.
25 page 443 the Division Bench held [in State of Karnataka vs Ramaraju Naidu I.L.R. (Karnataka) 1975 Vol.
25 p. 1361] that (i) the Bane holders had no propriety right to the soil of Bane Land and to the trees standing thereon but only limited privilege to collect grass leaves timber etc.
for domestic purposes (ii) Even after section 75(1) of the Karnataka Land Revenue Act was enacted the Bane holders did not become holders or occupants as defined in the Act and ownership of trees did not accrue to them and (iii) Section 79 of the Karnataka Land Revenue Act which preserved the preexisting privileges of Bane holders has no application to Bane lands.
Keeping 15 1 74, the date of deletion of Rule 137 of the Karnataka Forest Rules 1969, the Division Bench, however directed that (1) the respondents who deposited before 15th January 1974, 50% of the value of timber as determined by the Forest officer could be granted permits to cut and remove timber, with liberty to the Forest officer to recover and any differential amount between the 50% of the actual value of timber and amount paid on the basis of prior determination and (ii) those respondents who have made applications under rule 137 before 15th January 1974, but not deposited the amount could also be granted permits on deposit of 50% of the value of timber.
Dismissing the State appeals, by certificate, the court ^ HELD: (1) The learned single judge in ILR (Karnataka) 1975 Vol.
25 p. 443 rightly did not express any view on the second question as to whether 1089 the Bane Land holders could ask for removal of trees without payment full of value u/s 75 of the Karnataka Land Revenue Act, 1964.
[1091A] Ramaraju Naidu vs Divl.
Forest Officer I.L.R. (Karnataka) 1975, Vol.
25 p. 443 (partly affirmed).
(ii) The directions given by the Division Bench are explicable because of 15th January 1974 being taken as the dividing line with regard to persons who made payments and persons who did not make payment consequent upon the repeal of Rule 137 of the Karnataka Forest Rules, 1969.
[109lF] [Their Lordships left open to the parties to urge their rival contentions on the questions of the nature and terms of Bane lands and right, if in future, there will be any dispute between them, in view of their making clear that the observations and opinions of the High Court Division Bench should not operate as res judicata]
|
Civil Appeal No. 1823 of 1969.
Apeal by Special Leave from the Judgment and Order dated the 27th/28th/30th January, 1967 of the Gujarat High Court in Special Civil Application No. 163 of 1962.
B. R. Agarwala for the Appellant.
I. N. Shroff for the Respondents.
Dr. L. M. Singhvi, Advocate General, Rajasthan, V. section Dave and section M. Jain for Intervener, Municipal Council, Jodhpur.
The Judgment of the Court was delivered by SHINGHAL, J.
This appeal by special leave arises from the judgment of the Gujarat High Court dated January 27, 28 and 30, 83 1967.
The two petitioners before the High Court were firms trading in certain commodities within the limits of the Municipal Borough of Broach.
The grievance in one of the petitions was that the Municipality had collected certain amounts wrongfully, and the grievance in the other petition was that the Municipality had refused some amounts even though they were refundable under its byelaws.
Both the petitions concerned goods which were "imported" within the octroi limits of the Municipality but came to be "exported" therefrom.
The first petition was in respect of a consignment which was designated as a through consignment, and the second petition concerned goods in transit and goods for export other than those which could be called goods in transit.
The amounts in dispute related to the levy of octroi under section 73(i) of the Bombay Municipal Boroughs Act, 1923, hereinafter called the Act, which provides as follows: "73 (i) Subject to any general or special orders which the State Government may make in this behalf and to the provisions of sections 75 and 76, a Municipality may impose for the purposes of this Act any of the following taxes, namely: * * * * * (iv) an octroi on animals or goods or both, brought, within the octroi limits for consumption, use or sale therein;.
" The word "sale" was included within the ambit of octroi when the Act was amended in 1954.
The High Court took note of the rules and the bye laws and held that it was not possible to take the view that the rules contemplated that no refund was payable in case the goods had undergone a sale during the course of their stay in octroi limits.
It accordingly came to the conclusion that in regard to goods meant for export in the sense defined in the rules, refund was claimable even if a sale transaction in the larger sense (i.e. in a sense other than a sale to a consumer or with the intention that the goods must pass into hands of the ultimate consumer) took place in regard thereto, provided that the other conditions were satisfied.
The High Court then examined the correct interpretation of the word "sale" in clause (iv) of section 73(i) of the Act and after considering this Court 's judgment in Burmah Shell Oil Storage and Distributing Co. India Ld.
vs The Belgaum Borough Municipality,(1) it held that the word "sale" could not be given the narrow meaning of a sale for consumption to the ultimate consumer because, in that sense, the Legislature would be guilty of having introduced a word which it was not necessary for it to introduce.
The High Court made a reference to the definition of "sale" in section 4 of the Sale of 84 Goods Act and held that the expression "sale" as used in the definition of 'through consignments" in the rules had the same connotation as in the Sale of Goods Act and therefore "if a consignment is brought within the octroi limits and if the municipal authorities are satisfied that the consignment has been brought in for the purpose of effecting a sale in the aforesaid sense, then the consignment does not become a through consignment." According to the High Court, it was not enough merely to prove that the consignment left the octroi limits within six hours after the goods were imported and that it was necessary to show that the goods were intended only to pass through in the sense that they were not meant for consumption, use or sale, and that in regard to such goods there was no intention of changing hands by way of sale or that there was no intention of breaking their bulk or detaining them beyond six hours or unloading them.
In the view it took, the High Court issued some directions for compliance by the authorities concerned.
The writ petitioners felt dissatisfied with the view taken by the High Court and applied for a certificate under articles 132(1) and 133(1) (c) of the Constitution.
The High Court held that no question arose under article 132, and no certificate could be granted under article 133 as there was no final order.
The petitioners however applied to this Court for special leave on the ground, inter alia, that the High Court put a wrong interpretation on the expression "sale" in section 73(i)(iv) of the Act inspite of the decision of this Court in Burmah Shell 's case (supra).
As has been stated, they succeeded in obtaining special leave from this Court.
When the case came up for hearing before a Division Bench, it noticed the decision in Burmah Shell 's case (supra) and felt that there were "burred areas" of sale within the territory which may attract a tax under entry 52 (List II of Seventh Schedule) left uncertain by the aforesaid decision of this Court so that the matter deserved consideration by a larger Bench.
This is how the case has come up before us for hearing.
We have allowed Municipal Council, Jodhpur, to intervene in the hearing at its request.
The short question before us is whether this Court 's decision in the Burmah Shell 's case (supra) squarely covers the present controversy or whether that decision requires reconsideration.
The learned counsel have in fact confined their arguments to this narrow field.
In order to appreciate the controversy, it will be desirable to refer to the basic facts of the Burmah Shell 's case (supra).
The Burmah Shell Oil Storage and Distribution Co. India Ltd., hereinafter referred to as the Company, was a dealer in petrol and other petroleum products which it manufactured in its refineries situated out side the octroi limits of Belgaum Municipality.
It brought these products inside that area either for use or consumption by itself or for sale generally to its dealers and licensees who in their turn sold them to others.
According to the Company the goods brought by 85 it within the octroi limits could be divided into four categories as follows: 1.
Goods consumed by the Company; 2.
Goods sold by the Company through its dealers or by itself and consumed within the octroi limits by persons other than the Company; 3.
Goods sold by the Company through its dealers or by itself inside the octroi limits to other persons but consumed by them outside the octroi limits; and 4.
Goods sent by the Company from its Depot inside the octroi limits to extra municipal points where they are bought and consumed by persons other than the company.
This Court examined the scheme of taxation under the Act and the rules and the bye laws made by the Municipality for the levy of octroi.
It also took note of the fact that the words "use or sale" were substituted for the words "or use" by Bombay Act 35 of 1954, which are the subject matter of a fresh controversy before us, and made a reference to the Legislative Lists in the Government of India Act, 1935 and the Constitution.
After examining the history of octrois and terminal taxes, this Court held that "octrois were taxes on goods brought into the local area for consumption, use or sale", and that "they were leviable in respect of goods put to some use or other in the area but only if they were meant for such user.
" It was specifically clarified that the word "sale" was included only in 1954 in order to bring the description of octroi in the Act in line with the Constitution, and that the expression "consumption" and "use" together "connote the bringing in of goods and animals not with a view to taking them out again but with a view to their retention either for use without using them up or for consumption in a manner which destroys, wastes or uses them up.
" Looking to the trade of the Company, this Court held that sale by it directly to consumers or to dealers was "merely the means for putting the goods in the way of use or consumption" and that the word "therein" does not mean that all the act of consumption must take place in the area of the municipality.
The Court therefore went to hold as follows. "In other words, a sale of the goods brought inside, even though not expressly mentioned in the description of octroi as it stood formerly, was implicit, provided the goods were not re exported out of the area but were brought inside for use or consumption by buyers inside the area.
In this sense the amplification of the description both in the Government of India Act, 1935 and the Constitution did not make any addition to the true concept of 'octroi ' as explained above.
That concept included the bringing in of goods in a local area so that the goods come to a repose there.
When the Government of India Act, 1935 was enacted, the word 86 'octroi ' was deliberately avoided and a description added to forestall any dispute of the nature which has been raised in this case.
In other words, even without the description the tax was on goods brought for 'consumption, use or sale '.
The word 'octroi ' was also avoided because terminal taxes are also a kind of octroi and the two were to be allocated to different legislatures.
In our opinion, even without the word 'sale ' in the Boroughs Act the position was the same provided the goods were sold in the local area to a consumer who bought them for the purpose of use or consumption or even for resale to others for the purpose of use or consumption by them in the area.
It was only when the goods were re exported out of the area that the tax could not legitimately be levied. " This Court categorically held that the Company was liable to pay octroi on goods brought into the local area (a) to be consumed by itself or sold by it to consumers direct, and (b) for sale to dealers who in their turn sold the goods to consumers within the municipal area irrespective of whether such consumers bought them for use in the area or outside it, but it was "not liable to octroi in respect of goods which it brought into the local area and which were re exported.
" The law on the subject matter of the present controversy has thus been laid down quite clearly in the Burmah Shell 's case (supra) and the present case squarely falls to be governed by it.
We are also in agreement with that interpretation of the law.
It may be mentioned that the learned counsel have not been able to advance any new argument justifying a reconsideration of the decision.
The appeal is allowed, the impugned judgment of the High Court is set aside and the respondents are directed to examine and determine the claims of the appellant in accordance with the above decision.
The appellant will be entitled to costs from the respondents.
P.B.R. Appeal allowed.
| IN-Abs | Section 73(i)(iv) of the Bombay Municipal Boroughs Act 1925 empowers a municipal borough to impose octroi on animals or goods or both brought within the octroi limits for consumption, use of sale therein.
The appellant imported certain consignments of goods within the octroi limits of the municipality and exported them, the consignments being termed as "through consignments" or "goods in transit" or "goods for export".
Octroi duty was imposed on the goods and the appellant filed a petition before the High Court challenging the levy.
The High Court held that the expression 'sale ' used in the definition of "through consignments" in the rules had the same connotation as in the Sale of Goods Act and, therefore, if a consignment was brought within the octroi limits and if the municipal authorities were satisfied that the consignment had been brought in for the purpose of sale, then the consignment did not become a through consignment.
Allowing the appeal to this Court, ^ HELD: The law on the subject has been clearly laid down in Burmah Shell Oil Storage and Distributing Company (India) Ltd. vs The Belgaum Borough Municipality and the present case is governed by that decision.
It was held in that case that the company was liable to pay octroi on goods brought into the local area, if the goods are: (a) to be consumed by the Company itself or sold by it to consumers direct and (b) for sale to dealers who in their turn sold the goods to consumers within the municipal area and irrespective of whether such consumer bought them for use in the area or outside it; but it was not liable to octroi in respect of goods which were brought into the local area and were re exported.
[86 C D] Buimah Shell Oil Storage and Distributing Co. India Ltd. vs The Belgaum Borough Municipality [1963] Suppl.
2 S.C.R. 216, explained and applied
|
Civil Appeals Nos. 1870 and 1871 of 1970 and 1445 of 1971.
Appeal from the Judgment and Order dated 25 4 1969 of the Gujarat High Court in Special Civil Appeals Nos. 218/68 and 1441/66 respectively and 29 D. V. Patel and M. N. Shroff, for the appellants in all the appeals.
section T. Desai (In CA 1871), P. H. Parekh & Manju Jetley for Respondents.
section M. Jain, section K. Jain and Inder Makwana for Respondent 1 in CAs.
1871 and 1445.
P. K. Pillai for Respondent 2 and 3 in CA 1871.
The Judgment of the Court was delivered by JASWANT SINGH, J.
These three appeals Nos.
1870 of 1970, 1871 of 1970 and 1445 of 1971 by certificate granted by the High Court of Gujarat at Ahmedabad under Article 133(1)(b) & (c) of the Constitution of India against its common judgment and order dated April 25, 1969 shall be disposed of by this judgment.
The facts giving rise to these appeals are: On May 20, 1961, the Government of Gujarat issued a notification under section 4 of the Land Acquisition Act 1894 (hereinafter referred to as 'the Act ') declaring that certain pieces of land in village Vasana, Taluka City, District Ahmedabad specified in Schedule thereto were likely to be needed for a public purpose viz. for construction of houses for members of Yogeshwarnagar Co operative Housing Society Limited, Ahmedabad.
On June 18, 1962, respondent No. 1 in Civil Appeal No. 1445 of 1971, owners of some pieces of the aforesaid land filed Special Civil Application No. 564 of 1962 in the High Court of Gujarat under Article 226 of the Constitution challenging the validity of the aforesaid notification dated May 20, 1961 made under section 4 of the Act and seeking to restrain the Government from proceeding further with the acquisition proceedings contending inter alia that the land could not be acquired for the benefit of the Company in which the public was not directly interested.
Interim injunction sought by the petitioner in that petition having been refused, the Additional Special Land Acquisition Officer, Ahmedabad, appellant No. 2 in these appeals proceeded to hold the requisite enquiry under section 5A of the Act and submitted report to the Government on a consideration whereof the latter issued a notification under section 6 of the Act on April 29, 1963.
The notification inter alia stated that the lands mentioned in the Schedule thereto were needed to be acquired at the public expense for the public purpose specified in column 4 of the Schedule to the notification viz., the scheme undertaken by Shri Yogeshwarnagar Co operative Housing Society Limited with the sanction of the Government.
Notices under section 9(i) of the Act were served and the Special Land Acquisition Officer after holding the requisite enquiry made an award on December 21, 1963 determining the amount of compensation payable by the Government to the owners of the land.
On demand being made for possession of land, respondent No. 1 in Civil Appeal No. 1870 of 1970, who is the owner of some pieces of land sought to be acquired brought another Special Civil Application 30 No. 1100 of 1963 under Article 226 of the Constitution in the High Court challenging the aforesaid notification under sections 4 and 6 of the Act and on his application, the High Court passed an interim order restraining the Government from taking possession of the lands.
On April 15, 1966, the Government of Gujarat in supersession of the earlier resolution dated December 21, 1962 whereby it had sanctioned rupee one towards the cost of acquisition, passed another resolution sanctioning contribution of Rs. 500/ towards the cost of acquisition.
Considering that the notification dated April 29, 1963, issued by it under section 6 of the Act was illegal and invalid, the Government of Gujarat by notification dated April 28, 1966, cancelled its earlier notification dated April 29, 1963 issued under section 6 of the Act and issued a fresh notification in respect of the same pieces of land under section 6 of the Act on June 6, 1966.
Respondent No. 1 in Civil Appeal No. 1445 of 1971 and petitioner in Special Civil Application No. 564 of 1962 thereupon amended its application with the leave of the Court so as to include a challenge to the validity of the fresh notification under section 6 of the Act.
The petitioner in the aforesaid Special Civil Application No. 1100 of 1963 did not amend his application but filed a fresh petition under Article 226 of the Constitution being Special Civil Application No. 218 of 1968 challenging the fresh notification under section 6 of the Act.
Yet another petition under Article 226 of the Constitution being Special Civil Application No. 1441 of 1966 was filed in the High Court on November 20, 1966 by respondent No. 1 in Civil Appeal No. 1871 of 1970 challenging the validity of the fresh notification dated June 6, 1966 issued under section 5 of the Act.
All these petitions were heard together.
While the High Court by common judgment dated April 25, 1969 dismissed petition No. 1100 of 1963 as infructuous in view of the fresh notification under section 6 of the Act, it allowed the other three aforesaid petitions following its earlier decision in Special Civil Application Nos. 316, 625 and 811 of 1965 and quashed the fresh notification dated June 6, 1966 issued by the Government of Gujarat under section 6 of the Act holding inter alia that the "cancellation of the first section 6 notification would, in any event, tantamount to withdrawal from acquisition and no subsequent notification under section 6 of the Act could, thereafter be issued without a fresh notification under section 4 of the Act.
" The appellants thereupon applied for and obtained certificate referred to above.
It is how these appeals are before us.
Although two important points were raised in the aforesaid writ petitions viz. (1) whether the acquisition of land for Co opertive Housing Society is a public purpose and (2) whether the Government could cancel the notification dated April 29, 1963 issued by it under section 6 of the Act and issue a fresh notification dated April 28, 1966 under the said section of the Act, the first point does not survive and has rightly not been canvassed before us in view of the decisions of this Court in Ratilal Shankerbhai & Ors.
vs State of Gujarat & Ors.(1) Pandit Jhandu Lal & Ors.
vs The State of Punjab(2) and Ram 31 Swarup vs The District Land Acquisition Officer, Aligarh & Ors.(1) In these cases, it has been made clear that ordinarily the Government is the best authority to determine whether the purpose in question is a public purpose or not; it cannot be contended that a housing scheme for a limited number of persons cannot be considered as a public purpose; and the need of a section of the public may be a public purpose.
The second contention raised on behalf of the contesting respondents that the cancellation of the first section 6 notification amounts to withdrawal from acquisition and no subsequent notification under section 6 of the Act can thereafter be issued without a fresh notification under section 4 of the Act cannot be countenanced in view of the decision of this Court in Girdharilal Amratlal Shodan and Ors.
vs State of Gujarat and Ors.(2) where it was categorically held that when a notification under section 6 of the Act is invalid, the Government may treat it as ineffective and issue in its place a fresh notification under section 6 and that nothing in section 48 of the Act precludes the Government from doing so and that the cancellation of the earlier notification is only a recognition of the invalidity of that notification.
The following observations made therein are apposite: "Counsel for the appellants next submitted that on issuing the notification dated July 18, 1961 (under section 6), the power of the State Government to issue a notification under section 6 was exhausted and the Government could not issue a fresh notification under section 6.
There is no substance in this contention.
The notification dated July 18, 1961 was invalid.
By the issue of this notification, the Government had not effectively exercised its power under section 6.
In the circumstances, the Government could well issue the fresh notification under section 6 dated August 14, 1964.
" No help can be derived by the contesting respondents from the decision of this Court in State of Madhya Pradesh and Ors.
vs Vishnu Prasad Sharma and Ors.(3) which turned on another point.
In that case after the issue of the notification under section 4(1) of the Act, a number notifications in respect of different items of land included in the locality specified in the notification under section 4(1) of the Act were issued under section 6.
The following observations made in that case are pertinent: "But as we read these sections (viz. sections 4, 5A and 6) together we can only find that the scheme is that section 4 specifies the locality, then there may be survey and drawing of maps of the land and the consideration whether the land is adapted for the purpose for which it has to be acquired, followed by objections and making up of its mind by the Government that what particular land out of that locality it needs.
This is followed by a declaration under section 6 32 specifying the particular land needed and that in our opinion completes the process. .
At the stage of section 4 the land is not particularised but only the locality is mentioned at the stage of section 6 the land in the locality is particularised . .
The sequence of events from a notification of the intention to acquire [section 4(1)] to the declaration under section 6 unmistakably leads one to the reasonable conclusion that when once a declaration under section 6 particularising the area out of the area in the locality specified in the notification under section 4(1) is issued, the remaining non particularised area stands automatically released".
Thus in view of the decision of this Court in Girdharilal Amartlal Shodan 's case (supra), the impugned judgment of the Gujarat High Court cannot be allowed to stand.
In the result, the appeals are allowed and the said judgment of the High Court is quashed.
The parties are left to bear and pay their own costs in these appeals.
P.H.P. Appeals allowed.
| IN-Abs | The Government of Gujarat issued a notification under section 4 of the Land Acquisition Act, 1894.
The validity of the said notification was challenged by the owners of the land.
The Government later issued a notification under section 6 of the Land Acquisition Act after holding enquiry under section 5A.
The owners of the land challenged the said notification under section 6 by filing another Writ Petition.
Thereafter the award was made by the Land Acquisition Officer.
The Government sanctioned a sum of Re. 1/ towards cost of acquisition.
The acquisition was for the purpose of a Cooperative Housing Society.
Later on, the Government passed a resolution in supersession of the earlier resolution and sanctioned a sum of Rs. 500/ toward cost of acquisition.
The Government considered section 6 notification to be illegal and invalid and cancelled the same and issued a fresh notification under section 6 in respect of the same land.
The owner of the land filed a further Writ Petition challenging the notification by which the earlier section 6 notification was cancelled and a fresh section 6 notification was issued.
The High Court dismissed the Writ Petition against the first section 6 notification as infructuous.
The High Court allowed the other Writ Petition against the second section 6 notification and quashed it on the ground that the cancellation of the first section 6 notification would in any event, tantamount to withdrawal from acquisition and secondly since section 4 notification was exhausted by the first section 6 notification no subsequent notification under section 6 of the Act could thereafter be issued.
Allowing the appeal by certificate ^ HELD: 1.
Acquisition of land for Cooperative Housing Society is for public purpose as laid down by this Court in Ratilal Shankarbhai and Ors.
vs State of Gujarat A.I.R. 1970 SC 984.
[31 C] 2.
The contention that the cancellation of the first section 6 notification amounts to withdrawal from acquisition and no subsequent notification under section 6 of the Act can thereafter be issued without a fresh notification under section 4 of the Act cannot be countenanced in view of the decision of this Court in Girdhari Lal Amratlal Shodan and Ors.
vs State of Gujarat reported in ; , when a notification under section 6 of the Act is invalid the Government may treat it as ineffective and issue in its place a fresh notification under section 6 and that nothing in section 48 of the Act precludes the Government from doing so.
The cancellation of the earlier notification is only a recognition of the invalidity of that notification and does not amount to withdrawal from acquisition.
[31 C D]
|
Civil Appeal No. 988 of 1968.
(From the Judgment and order dated the 8 4 1965 of the Punjab High Court, Circuit Bench Delhi now the High Court of Delhi in Civil Writ No. 228 G of 1962).
Hardyal Hardy, B. P. Maheshwari, Suresh Sethi and Bikaramjit Nayar; for the appellant.
A. K. Sen, D. P. Bhandare, Mrs. Laxmi Arvind Mathur and section section Khanduja; for the respondents.
The Judgment of the Court was delivered by GUPTA, J.
Respondent Kalu Ram was pavement vendor in Connaught place, New Delhi.
In 1950 the appellant.
New Delhi Municipal Committee, provided a number of displaced persons with small pre fabricated stalls to enable them to do their business.
Kalu 88 Ram who was also a displaced person was allotted one such stall on Irwin Road.
Rupees thirty was the licencee fee payable per month by the allottees of these stalls.
Later, the allottees, including the respondent, applied to the Rent Controller for reducing the rent.
It is not necessary to refer to the various proceedings arising from these applications for fixation of standard rent which were ultimately dismissed by the Circuit Bench of the Punjab High Court at Delhi as not maintainable.
In the meantime, many of the allottees fell in arrears in paying the licence fees.
So far as the respondent is concerned, the appellant took no steps to recover the dues till December 1960 when it demanded the entire amount in arrears from May 1950 to April 1957.
The respondent not having paid, the appellant asked the Estate Officer, appointed under section 3 of the , to take steps to recover the amount in arrears under section 7 of that Act.
The Estate Officer, who is the second respondent herein, made an order on September 28, 1961 under section 7(1) of the Act asking the respondent to pay the sum overruling his objection that the claim was barred by limitation.
The respondent 's appeal to the Additional District Judge from the Estate Officer 's order was disallowed.
The respondent then filed a writ petition before the Circuit Bench of the Punjab High Court at Delhi challenging the order against him.
One of the grounds of challenge was that section 7 could not be resorted to for recovery of the sum as the claim was time barred.
The High Court accepted the contention and allowed the petition.
In this appeal by certificate, the appellant, New Delhi Municipal Committee, questions the correctness of the High Court 's decision.
The only contention raised before us by Mr. Hardy appearing for the appellant is that the High Court was wrong in holding that the amount in question could not be recovered under section 7 because the time for instituting a suit to recover the sum had expired.
Admittedly, any suit instituted on the date when the Estate Officer made his order under section 7(1) would have been barred by time.
Mr. Hardy argued that the Limitation Act only barred the remedy by way of suit and did not extinguish the right, and section 7 of the providing a different and special mode of recovery was therefore available to recover rent in arrears beyond three years.
Section 7 as it stood at the relevant time reads : Power to recover rent or damages in respect of public premises as arrears of land revenue.
(1) Where any person is in arrears of rent payable in respect of any public premises, the estate officer may, by order, require that person to pay the same within such time and in such instalments as may be specified in the order.
(2) Where any person is, or has at any time been in unauthorised occupation of any public premises, the 89 estate officer may, having regard to such principles of assessment of damages as may be prescribed, assess the damages on account of the use and occupation of such premises and may, by order, require that person to pay the damages within such time and in such instalments as may be specified in the order: Provided that no such order shall be made until after the issue of a notice in writing to the person calling upon him to show cause within such time as may be specified in the notice why such order should not be made, and until his objections, if any, and any evidence he may produce in support of the same, have been considered by the estate officer.
(3) If any person refuses or fails to pay the arrears of rent or any instalments thereof payable under sub section (1) or the damages or any instalment thereof payable under sub section (2) within the time specified in the order relating thereto the estate officer may issue a certificate for the amount due to the Collector who shall proceed to recover the same as an arrear of land revenue.
" As would appear from the terms of the section, it provides a summary procedure for the recovery of arrears of rent.
It was argued that since section 7 did not put a time limit for taking steps under that section and as the limitation prescribed for a suit to recover the amount did not apply to a proceeding under this section, the High Court was in error in upholding the respondent 's objection.
In support of his contention that a debt remained due though barred by limitation, Mr. Hardy relied on a number of authorities, both Indian and English.
We do not consider it necessary to refer to these decisions because the proposition is not disputed that the statute of limitation bars the remedy without touching the right.
Section 28 of the Indian Limitation Act, 1908 which was in force at the relevant time however provided that the right to any property was extinguished on the expiry of the period prescribed by the Act for instituting a suit for possession of the property.
But on the facts of this case no question of a suit for possession of any property arises and section 28 has no application.
It is not questioned that a creditor whose suit is barred by limitation, if he has any other legal remedy permitting him to enforce his claim, would be free to avail of it.
But the question in every such case is whether the particular statute permits such a course.
Does section 7 of the create a right to realise arrears of rent without any limitation of time ? Under section 7 the Estate Officer may order any person who is in arrears of rent 'payable ' in respect of any public premises to pay the same within such time and in such instalments as he may specify in the order.
Before however the order is made, a notice must issue calling upon the defaulter to show cause way such order should not he made and, if he raised any objection, the Estate Officer must consider the same and the evidence produced in support of it.
Thus the Estate Officer has to determine 90 upon hearing the objection the amount of rent in arrears which is 'payable. ' The word 'payable ' is somewhat indefinite in import and its meaning must he gathered from the context in which it occurs.
'Payable ' generally means that which should be paid.
If the person in arrears raises a dispute as to the amount, the Estate Officer in determining the amount payable cannot ignore the existing laws.
If the recovery of any amount is barred by the law of limitation, it is difficult to hold that the Estate Officer could still insist that the said amount was payable.
When a duty is cast on an authority to determine the arrears of rent, the determination must be in accordance with law.
Section 7 only provides a special procedure for the realisation of rent in arrears and does not constitute a source or foundation of a right to claim a debt otherwise time barred.
Construing the expression "any money due" in section 186 of the Indian Companies Act, 1913 the Privy Council held in Hans Raj Gupta and others vs Official Liquidators of the Dehradun Mussorie Electric Tramway Company Ltd.(1) that this meant moneys due and recoverable in suit by the company, and observed: "it is a section which creates a special procedure for obtaining payment of moneys; it is not a section which purports to create a foundation upon which to base a claim for payment.
It creates no new rights.
" We are clear that the word "payable" in section 7, in the context in which its occurs, means "legally recoverable." Admittedly a suit to recover the arrears instituted on the day the order under section 7 was made would have been barred by limitation.
The amount in question was therefore irrecoverable.
This being the position, the appeal fails and is dismissed with costs.
M.R. Appeal dismissed.
| IN-Abs | In 1950, the appellant allotted small pre fabricated stalls to several displaced persons including the respondent, at the licence fee of rupee thirty payable per month.
Later, these allottees applied for a fixation of standard rent but ultimately lost in the Punjab High Court at Delhi, Meanwhile, the respondent fell in arrears in paying the licence fee.
In December, 1960, the appellant demanded from him the entire amount in arrears from May 1950 to April 1957 but he failed to pay.
In September 1961, the Estate Officer ordered the respondent under section 7(1) of the Act, to pay the sum, overruling his objection that the claim was barred by limitation.
The respondent 's appeal to the Additional District Judge was rejected, but the Punjab High Court at Delhi allowed his writ petition on the ground that section 7 could not be availed in case of time barred claims.
The appellant contended before this Court that the Limitation Act only barred the remedy by way of suit and did not extinguish the right which could still be exercised through section 7 of the Act.
Section 7 did not put a time limit for taking action under it, and was, therefore, not subject to the limitation prescribed for a suit to recover the amount.
Dismissing the appeal, the Court, ^ HELD: Section 7 only provides a special procedure for the realisation of rent in arrears and does not constitute a source or foundation of a right to claim a debt otherwise time barred.
The word "payable" in Section 7 in the context in which it occurs, means "legally recoverable".
[90 B & D] Hans Raj Gupta and others vs Official Liquidator of the Dehradun Mussoorie Electric Tramway Co. Ltd. 60 I.A. 13, followed.
|
Nos. 186 & 195 of 1954.
Under Article 32 of the Constitution of India for the enforcement of Fundamental Rights.
S.C. Isaacs, (Mohan Behari Lal and P. K. Ghosh, with him) for the petitioners in both petitions.
M. C. Setalvad, Attorney General of India (Porus A.Mehta and P. G. Gokhale, with him) for the respondents.
September 22.
The Judgment of the Court was delivered by IMAM J.
These petitions under article 32 of the Constitution of India question the validity of the notifications issued under section 52 A of the Insurance Act of 1938 (hereinafter referred to as the Act) and the appointment of an Administrator.
In the case of the Tropical Insurance Company Ltd. an Administrator was appointed, under notification dated the 14th of July, 1951 and in the case of the Jupiter General Insurance Company Ltd. another Administrator was appointed under notification dated the 10th of July, 519 1951.
These two insurance companies do insurance business of life insurance and general insurance.
Admittedly previous to the appointment of the Administrators the Controller issued notices under section 52 A to the petitioners and the Finance Ministry of the Central Government sent letters to them pointing out the allegations in the report of the Controller to which they replied.
The learned Counsel for the petitioners has candidly stated that he could not raise any constitutional point after the fourth amendment to the Constitution of India.
He assumed; therefore, that the provisions of sections 52 A to 52 G of the Act were constitutional but he urged that the notifications under section 52 A and the taking over of the management of the affairs of the companies were invalid inasmuch as they were in excess of the powers conferred by section 52 A of the Act and that the notifications appointing the Administrators do not fix the period of management as required by law.
He further urged that the provisions of the section 52 B of the Act had not been complied with and in consequence the management by the Administrator had been excessively prolonged and thus had become unlawful.
There has, therefore, been a violation of the fundamental rights of the petitioners.
Finally it was urged that there was no authority either under the provisions of the Act or of any other law by which the Government was empowered to take over management of the affairs of the company with respect to its general insurance business.
The power of the Government under section 52 A was restricted exclusively to life insurance business.
As to the first two contentions, they were urged in Petitions Nos. 94 of 1954 and 183 of 1954, but were not allowed to be put forward by this Court as these questions had not been specifically raised in the petitions under article 32 of the Constitution and they were accordingly dismissed.
The position is similar in this respect so far as the present applications are concerned and consequently it must be held that the petitioners cannot be allowed now to urge grounds which they had not taken in their petitions.
66 520 There remains, however, to consider the last contention urged on behalf of the petitioners.
It was pointed out by Mr. Isaacs that the petitioners are insurance companies doing both life insurance business and general insurance business.
He contends that a section 52 A of the Act, on a true interpretation of its provisions, applies only to the life insurance business carried on by an insurer and not to the general insurance business done by him.
The Administrator appointed under section 52 A of the Act could therefore take over management only of the life insurance business done by the insurer.
The notifications authorising him to take over the management of the insurance business of the insurer including his general insurance business were thus beyond the powers conferred on Government under section 52 A of the Act and such taking over of the management of the general insurance business of the petitioners by the Administrator was, therefore, without lawful authority.
In view of the submission made by the learned Counsel, it is necessary to set out the relevant provisions of the section 52 A. Sub section (1) of that section states: "If at any time the Controller has reason to believe that an insurer carrying on life insurance business is acting in a manner likely to be prejudicial to the interests of holders of life insurance policies, he may, after giving such opportunity to the insurer to be heard as he thinks fit, make a report thereon to the Central Government".
Sub section (2) states: "The Central Government, if it is of opinion after considering the report that it is necessary or proper to do so, may appoint an Administrator to manage the affairs of the insurer under the direction and control of the Controller".
Sub section (4) states: "The management of the business of the insurer shall as on and after the date of appointment of the Administrator vest in such Administrator, but except with the leave of the Controller, the Administrator shall not issue any further policies" 521 Section 52 B of the Act is concerned with the powers and duties of the Administrator.
Under this section, the Administrator shall conduct the management of the business of the insurer with the greatest economy ' compatible with efficiency and shall, as soon as may be possible, file with the Controller a report stating what specified courses under the section should be taken which would be most advantageous to the general interest of the holders of life policies.
One of the courses specified is the winding up of the business of the insurer.
Section 52 D of the Act is concerned with termination of the appointment of the Administrator.
Section 53 of the Act is concerned with the winding up by the Court and it enables the Controller to apply to the Court for winding up of an insurance company on certain grounds, one of them being that the continuance of the company would be prejudicial to the interests of the policy holders.
Mr. Isaacs urged that the Act made a clear distinction between life insurance business and general insurance business of an insurer.
He referred to various sections of the Act with reference to Registration, Separation of Accounts and Funds and Balance Sheets.
It was also pointed out by him that the Act defines "general insurance business" and "life insurance business" and these two kinds of businesses are quite distinct.
There could be little doubt that the Act does regard "life insurance business" as something distinct from "general insurance business".
It seems to us, however, that while keeping this distinction in mind, we have to give to the words used in section 52 A(1) their ordinary and natural meaning.
"Insurer" has been defined in section 2 of the Act.
The definition speaks of an insurer carrying on an insurance business.
This business may be either a life insurance business or a general insurance business or both.
Under section 7 of the Act deposits have to be made by every insurer other than an insurer specified in sub clause (c) of clause (9) of section 2.
The section specifies the amount of deposit to be made where the business done is life insurance only.
Similarly it specifies the deposit to be made in the case of business 522 done which comes within the description of general insurance business only.
It also contemplates a combination of life insurance business and general insurance business and specifies the deposit to be made in such event.
It is clear that section 52 A(1) does not apply to an insurer doing only general insurance business.
The question for decision is does it apply to him when he 'also does along with such business insurance business? Section 52_A(1) speaks of "an insurer carrying on life insurance business".
It does not speak of "only life insurance business".
It is permissible for an insurer to combine in his insurance business both life and general insurance business.
If he acts in a manner which is likely to be prejudicial to the interests of the holders of the life insurance policies with him, he makes himself amenable to the provisions of the section 52 A of the Act and the Controller is authorised to make a report to the Central Government.
The Central Government, after con sidering the report, may appoint an Administrator to manage "the affairs" of the insurer and the management of "the business" of the insurer shall vest in the Administrator.
The words "the affairs" and "the business" of the insurer are wide enough to empower the Central Government to take over the management of the entire business of the insurer including his general insurance business.
To hold otherwise would be to give an unnaturalmeaning to the words used in section 52 A of the Act.
In the present case the insurers are public limitedcompanies and it is difficult to conceive that the Act intended to vest in the Administrator the management of only the life insurance business while the insurers would be free to manage the general insurance business, because under section 52 B the Administrator may suggest to the Controller for the winding up of the company after managing its insurance business economically and efficiently.
Under section 53 a Court may order a winding up of an insurance company if on an appli cation by the Controller, it is satisfied that the con tinuance of the company is prejudicial to the interests of the policy holders.
The winding up of the com 523 pany would be concerned with its entire insurance business ,including life and general insurance business, because there could be no partial winding up of a company.
It is not difficult to imagine that the affairs of the company with reference to its general insurance business may be in such a hopeless state that winding up may be the only course to be taken to protect the interests of the life policy holders.
When the provisions of the Act are closely examined, it will be noticed that its main policy has been to safeguard the interests of life policy holders, who are deeply affected by the manner in which the insurance business of an insurer is carried on.
We have no difficulty in interpreting section 52 A(1) to mean that where an insurer is carrying on insurance business of various kinds which includes life insurance business, he becomes amenable to the provisions of section 52 A if he is acting in a manner prejudicial to the interests of the holders of life policies and he would have to suffer the consequences following the report made by the Controller and the appointment of an Administrator by the Government.
The provisions in the Act making a distinction between life insurance business and general insurance business, the keeping of separate accounts and balance sheets have been enacted for the safeguard of the holders of life insurance policies and they provide an over all picture of the business done by the insurer showing the exact state of affairs concerning the life insurance business of the insurer.
These provisions cannot and do not affect the provisions of of section 52 A of the Act.
These petitions are accordingly dismissed with costs to be paid by Petitioners 2, 3 and 4 in Petition No. 186 of 1954 and Petitioners 2 and 3 in Petition No. 195 of 1954.
| IN-Abs | The petitioners, two Insurance Companies, carrying on business both in life insurance and general insurance, questioned the validity of notifications issued against them under section 52 A of the Insurance Act for appointment of Administrators to take over management of their affairs on the ground, inter alia, that section 52 A was exclusively restricted to life insurance business and the Government had no power to take oyer management of general insurance busi ness.
Held, that the Insurance Act of 1938 no doubt makes a distinction between life insurance business and general insurance business, but its main concern is to protect life insurance policy holders.
Although section 52 A of the Act has no application to an insurer who carries on business in general insurance alone, it undoubtedly applies to an insurer who combines both and gives the Central Government the power, on the report of the Controller, to appoint an Administrator to take over the management of the entire business of the insurer including general insurance business when such insurer is found to act in a manner prejudicial to the interests of the life policy holders.
That grounds not specifically taken in petitions under article 32 cannot be urged at the time of the hearing.
|
Civil Appeal No. 1141 of 1974.
Appeal from the Judgment and Order dated 10th June 1974 of the Jammu & Kashmir High Court at Srinagar in Election Petition No. 4 of 1972.
3 A. K. Sen, Altaf Ahmed and M. Veerappa, for the appellant.
G. section Pathak, O. C. Mathur, Shri Narain and J. B. Dadachanji, for the Respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
This is an election appeal against the judgment of the High Court of Jammu & Kashmir dated June 10, 1974, by which the learned Judge allowed the election petition filed before him by the respondent Ali Akbar Khan and set aside the election of the returned candidate Mohd. Yasin Shah who is the appellant before us.
The returned candidate will, for short, be referred to by us as 'the appellant ' and the respondent Ali Akbar Khan will be referred to as 'the petitioner '.
It appears that during the elections held in the year 1972 in the State of Jammu & Kashmir both the appellant and the petitioner were the candidates for election to the Karnah Assembly Constituency of the District of Baramulla in the State of Jammu & Kashmir.
There were other candidates also some of whom had withdrawn.
One Mohd Yunis was the Congress candidate for this constituency but he was defeated.
The petitioner, according to the appellant was merely a covering or a shadow candidate for the Congress candidate Mohd Yunis.
The petitioner filed his nomination paper on February 7, 1972 and his proposer was P.W. 1 Ghulam Mohiuddin.
According to the petitioner the nomination paper was presented to the Returning Officer R.W. 3 Abdul Rehman Mir on February 7, 1972 by the petitioner who was accompanied with his proposer Ghulam Mohiuddin who had signed as the proposer.
The Returning Officer received the nomination paper and granted a receipt for the same.
A sum of Rs. 250/ being the election deposit was also deposited and other formalities were duly observed.
February 9, 1972, was the last date fixed for the scrutiny of the nomination papers of all the candidates.
According to the petitioner he reached the office of the Returning Officer at about 10 A.M. on February 9, 1972, but as he was suffering from dysentery he went to attend the call of nature and instructed his proposer P.W. 1 Ghulam Mohiuddin to take time on his behalf if the name of the candidate was called out.
The petitioner 's case before the High Court was that the Returning Officer after scrutinising the nomination papers accepted all of them but rejected the nomination paper of the petitioner on the ground of his absence in spite of the fact that P.W. 1 Ghulam Mohiuddin requested him to wait for the petitioner who had gone to attend the call of nature.
It was further alleged that when the petitioner returned he beseeched the Returning Officer not to reject his nomination paper but the Returning Officer refused to reopen the matter as the nomination paper of Mohd. Yunis the Congress candidate had been accepted.
The nomination paper of Mohd Yasin Shah the appellant was also accepted.
Thereafter the poll was held on March 8, 1972 and the results were declared on March 12, 1972.
The appellant Mohd Yasin Shah was declared elected, while Mohd Yunis was defeated.
After the results were declared the petitioner applied for a certified copy of the order of rejection of his nomination paper on April 1, 1972, and according to him the Returning Officer tried to avoid giving the copy of the said order which was ultimately given 4 to him on April 3, 1972, April 2, being a Sunday.
The sheet anchor of the case of the petitioner was that the Returning Officer was particularly biased against him and he rejected the nomination paper in order to support the returned candidate in whom he was interested.
The petitioner further pleaded that the only ground on which the nomination paper was rejected was that the petitioner did not appear when the Returning Officer called out his name at the time of the scrutiny of his nomination paper.
The petitioner further averred that under the law the Returning Officer could not have rejected his nomination paper on the ground of his absence even if it was so.
Not content with these allegations the petitioner went to the extent of making a serious and irresponsible allegation against the Returning Officer by averring that the Returning Officer had committed forgery by subsequently adding certain words in the order of rejection and overwriting the signature of the proposer Ghulam Mohiuddin on the nomination paper.
Thus, in short, according to the petitioner as his nomination paper was improperly rejected by the Returning Officer, the election of the appellant was void on that ground alone.
The petitioner filed the present election petition with the allegations aforesaid on April 12, 1972.
It was alleged that at the time when P.W. 1 Ghulam Mohiuddin was examined as a witness there was some overwriting on the signature of Ghulam Mohiuddin the proposer of the petitioner on the nomination form.
Accordingly the petitioner made an application to the Court for permission to file an amended petition by incorporating the fact that the overwriting was brought into existence after the scrutiny of the nomination papers was over and behind the back of the petitioner.
The learned Judge, after hearing the parties, ultimately allowed the application and accordingly an amended petition was filed by the petitioner where the allegations regarding interpolation etc. were made.
The appellant was also given an opportunity to file his additional written statement.
The petition was stoutly resisted by the appellant who denied, inter alia, all the allegations made by the petitioner and contended that there was absolutely no overwriting on the signature of Ghulam Mohiuddin nor was any forgery committed by the Returning Officer.
It was further averred that as neither the petitioner nor his proposer was present when the scrutiny of the nomination paper of the petitioner was taken up by the Returning Officer and as the appellant himself raised the objection that the signature of Ghulam Mohiuddin on the nomination paper was not genuine the Returning Officer having applied his mind upheld the objection and rejected the nomination paper on the ground that the signature of Ghulam Mohiuddin was not genuine as it could not be verified.
The appellant also vehemently denied the allegation that the Returning Officer was in any way biased or prejudiced against the petitioner.
On the other hand it was averred that the Returing Officer was an independent officer and since the petitioner was a candidate of the Congress if the Returning Officer could have any leaning at all it would be towards the petitioner rather than the appellant who was an independent candidate opposing the Congress party.
The learned Judge, after taking the evidence of the 5 parties, came to the conclusion that from the order of the Returning Officer it would appear that the nomination paper of the petitioner was rejected mainly on the ground of his absence which was not a lawful ground on which the nomination paper could have been rejected under section 47(2) of the Jammu & Kashmir Representation of the People Act.
On the question of the overwriting the learned Judge held that there was no doubt that there was overwriting on the signature of P.W. 1 Ghulam Mohiuddin on the nomination form of the petitioner and perhaps the overwriting was made some time after the scrutiny.
But the learned Judge refrained from giving any finding as to who made the interpolation and in what circumstances.
As regards the allegation that the Returning Officer had committed forgery the learned Judge does not appear to have accepted the same or given any clear finding on this point, and he steered clear of this fact by observing that as the first part of the order of the Returning Officer rejecting the nomination paper was based on the ground of the absence of the petitioner, the Returning Officer became functus offcio and any subsequent observation which he may have made was irrelevant.
The learned Judge further seems to have held that the petitioner was not present when the scrutiny of his nomination paper was taken up and the Returning Officer was not justified in law in rejecting his nomination paper on that ground alone.
On these findings the learned Judge held that as the nomination paper of the petitioner was illegally rejected the election of the appellant was void and was liable to be set aside under section 108(1)(c) of the Jammu and Kashmir Representation of the People Act hereinafter referred to as `the Act ', as amended upto date.
In support of the appeal Mr. Altaf Ahmed learned counsel for the appellant who was followed by Mr. Asoke Sen submitted that the learned Judge has misconstrued the order passed by the Returning Officer rejecting the nomination paper of the petitioner and that the judgment of the High Court is against the weight of the evidence on the record.
It was also argued that the learned Judge completely overlooked some of the essential features appearing in the case which completely demolished the petitioner 's case.
Mr. G. section Pathak appearing for the petitioner, however, supported the judgment of the High Court and contended that the order of the Returning Officer was mainly passed on the ground of the absence of the petitioner which was not justified by the provisions of section 47(2)(c) of the Act.
He also submitted that a bare perusal of the order of the Returning Officer would clearly show that the second part of the order regarding the genuineness of the signature of the proposer Ghulam Mohiuddin appears to have been inserted subsequently.
Lastly, it was submitted that although this Court could reappraise the evidence for itself it should not interfere with the judgment of the High Court on facts unless the High Court had committed an error in its appreciation of evidence or overlooked any material fact.
It was further argued that this Court should keep in mind the slowness of the appellate court to disturb a pure finding of fact based on appreciation of evidence by the Trial Court which had the initial advantage of watching the demeanour of the witnesses examined by it.
There can be no dispute with the propositions adumbrated by Mr. Pathak, but we would like 6 to mention that it is well settled that the sanctity and purity of electoral process in the country must be maintained.
The election of a duly returned candidate cannot be set at naught on the basis of interested or partisan evidence which is not backed by cogent circumstances or unimpeachable documents.
In Rahim Khan vs Khurshid Ahmed & Ors.(1) this Court observed as follows : "We must emphasize the danger of believing at its face value oral evidence in an election case without the backing of sure circumstances or indubitable documents.
x x x There is no x ray whereby the dishonesty of the story can be established and, if the Court were guillible enough to gulp such oral versions and invalidate elections, a new menace to our electoral system would have been invented through the judicial apparatus.
We regard it as extremely unsafe, in the present climate of kilkennycat election competitions and partisan witnesses wearing robes of veracity, to upturn a hard won electoral victory merely because lip service to a corrupt practice has been rendered by some sanctimonious witness.
The Court must look for serious assurance, unlying circumstances or unimpeachable documents to uphold grave charges of corrupt practices which might not merely cancel the election result, but extinguish many a man 's public life." In D. Venkata Reddy vs R. Sultan & Ors.(2) this Court, in which one of us (Fazal Ali, J.) was also a party, reiterated the principles in the following words : "In a democracy such as ours, the purity and sanctity of elections, the sacrosanct and sacred nature of the electoral process must be preserved and maintained.
The valuable verdict of the people at the polls must be given due respect and candour and should not be disregarded or set at naught on vague, indefinite, frivolous or fanciful allegations or on evidence which is of a shaky or prevaricating character.
It is well settled that the onus lies heavily on the election petitioner to make out a strong case for setting aside an election.
In our country election is a fairly costly and expensive venture and the Representation of the People Act has provided sufficient safeguards to make the elections fair and free.
In these circumstances, therefore, election results cannot be lightly brushed aside in election disputes.
" We would now proceed to discuss the various aspects of the case in the light of the principles enunicated by this Court in the aforesaid cases.
To begin with, we might mention that most of the facts on which evidence appears to have been led by the petitioner were not pleaded in the election petition at all.
For instance, the definite case made out by the petitioner in his evidence was that at the time of the scrutiny of the nomination papers when the name of the petitioner was called out P.W. 1 Ghulam Mohiuddin the proposer of the 7 petitioner was present who drew the attention of the Returning officer to the fact that the petitioner had gone to attend the call of nature and that he should wait for him but the Returning Officer refused to wait and rejected the nomination paper on the ground of the absence of the petitioner.
It was further sought to be proved in the evidence that on return the petitioner tried to persuade the Returning Officer to reopen the matter and in fact filed an application before him for recalling the order of rejection of the nomination paper but the Returning Officer was so much prejudiced against him that he tore of the petition submitted before him by the petitioner.
It will be noticed that neither in the original petition nor in the amended one there is any mention of the fact that P.W. 1 Ghulam Mohiuddin drew attention of the Returning Officer and asked him to wait, nor is there any mention of the fact that the petitioner on his return submitted a petition to the Returning Officer which was torn into pieces by the Returning Officer.
We shall show that these facts are also not proved even by some of the witnesses examined by the petitioner.
It may be pertinent to note here that while in paragraph 14 it was mentioned that when the nomination form of the petitioner was taken up it was reported to the Returning Officer that the petitioner had gone to attend the call of nature but significantly enough it is not mentioned therein as to who was the person who had drawn the attention of the Returning Officer.
It seems to us that even at the time of filing his amended petition which was filed after the trial had started the petitioner was not certain of his ease and had not yet decided to allot this part to his proposer Ghulam Mohiuddin.
P.Ws. 1, 2 and 6 have no doubt asserted in their evidence that P.W. 1 Ghulam Mohiuddin requested the Returning Officer to wait for the petitioner who had gone to attend the call of nature.
P.W. 1 Ghulam Mohiuddin who was the proposer of the petitioner and therefore the most interested witness in this case has no doubt testified to the fact that he had drawn the attention of the Returning Officer when the nomination paper of the petitioner was taken up for scrutiny but the Returning Officer did not heed his request and rejected the nomination paper.
This witness also stated that petitioner himself told the Returning Officer that he was going to attend the call of nature and that he should wait for him.
But the witness does not appear to be sure of his statement as he immediately volunteered to state that as there was lot of noise at that time evidently the Returning Officer did not hear him.
The petitioner also says the same thing.
P.W. 2 Qazi Mohammad Abdullah also tries to support the fact that at the time of scrutiny the petitioner was not present and Ghulam Mohiuddin P.W. 1 informed the Returning Officer that the petitioner had gone to attend the call of nature.
This witness, however, did not support the allegation of the petitioner that a petition was submitted by him before the Returning Officer which was torn by him.
The witness stated thus: "The petitioner did not submit any petition before the Returning Officer in my presence on the day of scrutiny.
There was no such incident in my presence such as the filing of a petition before the Returning Officer and the tearing off that petition by him." 8 P.W. 6 the petitioner himself no doubt supported his case that he had gone to attend the call of nature when the scrutiny of his nomination paper was taken up and had instructed P.W. 1 Ghulam Mohiuddin to remain present and to ask the Returning Officer to wait.
Thus this fact is not proved by any independent witness.
On the other hand the fact that Ghulam Mohiuddin did not respond to the call even though he was instructed, as the petitioner would have us believe, is admitted even by a witness of the petitioner, namely, P.W. 4 Ghulam Qadir Mir, who deposed as follows: "At the time when the scrutiny of the nomination paper of Ali Akbar Khan was taken up, he himself was not present there.
His proposer Ghulam Mohi ul Din was present there.
The name of Ali Akbar Khan was called out but no one responded and so the Returning Officer wrote down that the candidate was absent and his nomination paper was being rejected.
In my presence nothing else happened there.
" It would therefore appear from the evidence of this witness that even though Ghulam Mohiuddin was present he did not at all respond when the name of the petitioner was called out.
This knocks the bottom out of the story put forward by the petitioner that Ghulam Mohiuddin had been instructed to ask the Returning Officer to wait or that Ghulam Mohiuddin stood up and requested the Returning Officer to wait for the petitioner.
Thus the entire story given out by P.Ws. 1, 2 and 6 on this point is falsified by one of the witnesses examined by the petitioner himself.
There is yet another circumstance which throws considerable doubt on this part of the story of the petitioner.
P.W. 5 Girdhari Lal counsel engaged by the petitioner at the time of scrutiny according to whose evidence Ghulam Mohiuddin had signed the nomination form in his presence, was also present at the time when the scrutiny of the nomination paper of the petitioner was taken up and in spite of this fact when the name of the petitioner was called out and according to the witness the Returning Officer announced that since he was absent his nomination paper was rejected this witness did not enter a protest on behalf of his client, the petitioner, that the Returning Officer could not have rejected the nomination paper on the ground of the absence of the petitioner.
This somewhat unusual conduct on the part of the witness who is a lawyer of some experience clearly shows that neither Ghulam Mohiuddin was present nor the petitioner was present and it is therefore extremely doubtful if this witness was also present at the time when the scrutiny of the nomination paper of the petitioner was taken up by the Returning Officer.
As against this contradictory and discrepant evidence there is consistent evidence of the appellant 's witnesses R.Ws. 1, 2, 3 and 4 to the effect that neither the petitioner nor his proposer Ghulam Mohiuddin was present when the scrutiny of the nomination paper of the petitioner was taken up.
R.W. 3 is the Returning Officer himself and he appears to us to be an absolutely independent witness being a high Government officer of sufficient experience and there is abso 9 lutely no reason for him to depose falsely against the petitioner.
The Returning officer stated thus: "When in spite of repeated calls neither the petitioner nor his proposer turned up before me, then I began to write out the order on the back of the nomination form.
" R.W. 1 Mohammad Anwar Shah Masoodi also appears to be an independent witness who was an active Congress worker but he did not see eye to eye with the Congress on the candidature of Mohd Yunis for the constituency in question.
There is nothing to show that this witness was in any way interested in the appellant.
This witness also categorically stated that neither the petitioner nor the proposer of the petitioner turned up at the time when the name of the petitioner was called out.
R.W. 2 Ghulam Hassan Malik who was also one of the candidates from the Karnah Assembly Constituency and who is a lawyer also corroborated the evidence of the Returning Officer and of R.Ws. 1 & 3 that no one stood up on behalf of the petitioner when the name of the petitioner was called out and that the proposer of the petitioner was also not present at that time in the room.
This witness has further stated that no one brought it to the notice of the Returning Officer that the petitioner was ill or that he would be coming soon.
The evidence of the witnesses examined by the appellant, therefore, is fully corroborated by the evidence of P.W. 4 Gulam Qadir Mir a witness of the petitioner as shown above.
Furthermore we find it difficult to believe why the Returning Officer who was an independent person and a Government Officer would refuse to wait for the petitioner if his attention was really drawn to the fact that the petitioner was ill and had gone to attend the call of nature by Ghulam Mohiuddin or any body on behalf of the petitioner.
This fact, therefore, clearly shows that the case of the appellant that neither the petitioner nor his proposer was present at the time when the scrutiny of the nomination paper of the petitioner was taken up is true.
Even the learned Judge is also inclined to accept this part of the case of the appellant.
On a consideration of the evidence of the parties referred to above we are clearly of the opinion that the petitioner has failed to prove that at the time when the scrutiny of his nomination paper was taken up by the Returning Officer either the petitioner or his proposer Ghulam Mohiuddin was present and made any request to the Returning Officer to wait which was not acceded to by the Returning Officer.
Apart from the interested testimony of P.W. 1, 3 and 6 that the petitioner had submitted a petition to the Returning Officer which was torn out by him there is no reliable evidence to prove this fact.
To begin with, this fact is not at all mentioned even in the election petition filed by the petitioner even after amendment.
The petitioner admits in his statement that he did not mention this fact while instructing his lawyer.
Furthermore, if indeed the Returning Officer actually behaved in the manner as the petitioner would have us believe, then it was a very serious matter and the petitioner is not likely to have 10 slept over the matter but would have filed a regular complaint against the Returning Officer to his higher superiors.
In fact when there was a delay of only one day in the giving of the copy of the rejection order the petitioner made a great fuss and furore over this petty lapse.
Is it possible to believe that the petitioner would sit quiet if the Returning Officer had behaved in such a manner with him by tearing off the petition which was submitted to the Returning Officer ? Apart from that P.W. 3 Mohammad Maqbool Mir at p. 87 of the Paper Book has clearly admitted that in his presence no petition was filed by Ali Akbar Khan before the Returning Officer.
Even P.W. 5 who was the lawyer of the petitioner stated that he cannot say that Ali Akbar Khan presented any petition before the Returning Officer which the latter tore off.
P.W. 4 also says that he did not see the petitioner Ali Akbar Khan or his proposer presenting any application to the Returning Officer which the latter tore off.
Thus the mischievous allegation made by the petitioner against the Returning Officer is completely disproved not only from his own conduct but also by the evidence of his own witnesses as discussed above.
Finally even though a very serious allegation was made against the Returning Officer personally, yet, when he was deposing as a witness for the appellant, no suggestion was put to him that any petition was presented to him which he tore off instead of taking any action thereon.
Further while P.W. 1 Ghulam Mohiuddin categorically stated in his evidence that the petition which was submitted to the Returning Officer was scribed by Abdul Ahad the petition writer, yet the petitioner made no attempt to examine Abdul Ahad in order to prove this part of his case.
In these circumstances, therefore, we disbelieve this part of the case of the petitioner that he had filed any petition to the Returning Officer for reopening the order rejecting his nomination paper.
It seems to us that this allegation was a made up story and appears to have been invented in order to make out a case that the Returning Officer was biased against the petitioner and that is why the nomination paper of the petitioner was illegally rejected by him.
The petitioner has however miserably failed to prove this part of the case.
If this story is found to be false, it would also demonstrate the falsity of the main allegation made by the petitioner regarding the overwriting on the signature of Ghulam Mohiuddin as also interpolation in the order passed by the Returning Officer rejecting the nomination paper of the petitioner.
This brings us now to the question as to the nature of the order passed by the Returning Officer which is Ext.
RW 3/3.
Before, however, taking up this matter it may be necessary to dispose of the case of the petitioner regarding the overwriting alleged to have been made subsequently on the signature of Ghulam Mohiuddin on the nomination paper Ext.
PW 5/2.
The definite case of the petitioner was that at the time when the nomination paper was filed before the Returning Officer R.W. 3, or even at the time of the scrutiny on February 9, 1972, there was no overwriting at all which appears to have been made subsequently.
On the other hand the case of the appellant is that the overwriting was already there from before and in fact it was deliberately made so as to afford a ground to the peti 11 tioner to set aside the election of the appellant in case he was duly elected.
It was suggested that this lacuna was deliberately left so as to invite the Returning Officer to reject the nomination paper and then use this infirmity to upset the election of the appellant.
In support of this case the appellant relied upon the following circumstances: (i) that the petitioner was a mere covering or shadow candidate of the Congress and was not at all interested in contesting the election; (ii) that once the nomination paper of Mohd Yunis who was the official candidate of the Congress was accepted the petitioner was not at all interested in pursuing his election and it was for this reason that when the scrutiny of the nomination paper of the petitioner was taken up neither the petitioner nor his proposer was present and an imaginary story was invented that the petitioner was ill and had gone to attend the call of nature and Ghulam Mohiuddin the proposer asked the Returning Officer to wait but he rejected the nomination paper of the petitioner; and (iii) that P.W. 1 Ghulam Mohiuddin the proposer of the petitioner has in an unguarded moment admitted in his statement that on the very day when the nomination paper was rejected i.e. on February 9, 1972, the petitioner informed the witness that he will file a case in the Court against Mohd Yasin the appellant.
P.W. 1 deposed thus: "The petitioner had only then informed me after the rejection i.e. on 9 2 1972 that he will now file a case in the Court against Mohammad Yasin respondent.
" This statement clearly lets the cat out of the bag and shows that the petitioner 's intention really was to prepare a ground for setting aside the election of the appellant if he was duly elected.
Unless this was so, it is not understandable why the petitioner should have made such a statement to P.W. 1 on the date when the nomination paper was rejected and when he obviously did not know whether or not the appellant would succeed in the election.
We shall now deal with each of these circumstances relied upon by the appellant in support of his case that the entire story of overwriting etc.
was a figment of the imagination of the petitioner 's mind and perhaps the whole thing was stage managed so as to invite the Returning Officer to reject the nomination paper of the petitioner.
The appellant has clearly stated in his evidence that the petitioner was merely a covering candidate of the Congress and was put up only as a shield to take the place of Mohd Yunis if the nomination paper of Mohd Yunis was rejected.
R.W. 1 who, as we have already pointed out, was an independent witness and was an active worker of the Congress at one time has also categorically asserted that the petitioner was a covering candidate of the Congress.
The witness stated thus: "The petitioner was a candidate set up by the Congress that is to say he was a covering candidate.
The congress had given the mandate to Kh.
Mohd Yunis but the latter 12 had set up the petitioner as a candidate by way of precaution.
" The evidence of this witness appears to have a ring of truth in it.
He has clearly stated that he did not agree with the Congress Organization when a mandate was given to Mohd Yunis to stand from the Assembly constituency of Karnan, because in his opinion Mohd Yunis had lost his popularity and there was little chance of his being elected.
The result of the election demonstrated that the apprehension of this witness was undoubtedly correct, because while the appellant was duly returned, Mohd Yunis was defeated.
In these circumstances we do not see any reason to distrust the evidence of this witness on this point.
R.W. 2 Gulam Hassan Malik who was a lawyer and also a candidate has also stated that the petitioner Ali Akbar Khan was a covering candidate of Mohd Yunis.
The appellant also in his evidence categorically asserted that the petitioner was a covering candidate of the Congress for Mohd. Yunis.
It is true that the petitioner has not admitted this fact, but the somewhat contradictory stand taken by him on this point clearly shows that he was undoubtedly a covering candidate.
The witness (petitioner) said that if his nomination paper had been accepted he would not have contested as an independent candidate but he had been assured that if the nomination paper of Mohd. Yunis as also of the petitioner were accepted then the Congress was to decide as to who would contest the election.
At the same time the petitioner admitted that the mandate of the Congress was given to Mohd Yunis prior to the filing up of the nomination forms.
Indeed if the mandate was given by the Congress party to Mohd. Yunis alone, the petitioner was bound to be a dummy candidate only.
Another intrinsic circumstance that supports this fact is that while Mohd Yunis and other candidates filed a number of nomination papers so that if one of them was rejected on the ground of any defect or infirmity the remaining nomination forms may be accepted and the candidature of the candidates would not run into difficulty, the petitioner admittedly filed only one nomination paper and did not think it necessary to file another nomination paper.
These facts taken together with the subsequent conduct of the petitioner and his proposer Ghulam Mohiuddin in not being present at the time of the scrutiny of the nomination paper as found by us lends sufficient support to the case of the appellant that the petitioner was merely a dummy candidate.
As regards the other circumstances that after the nomination paper of Mohd. Yunis was accepted, the petitioner was not at all interested in fighting the elections, we find that there is overwhelming evidence to support this inference.
We have already pointed out that from the evidence led by the parties it has been established that neither the petitioner nor his proposer were present at the time when the scrutiny of nomination paper was taken up by the Returning Officer on February 9, 1972.
In these circumstances, therefore.
it follows as a logical corollary that the story of the petitioner that a request made to the Returning Officer by Ghulam Mohiuddin to wait for the petitioner or 13 that any petition was filed before the Returning Officer which was torn by him is a complete myth and has been invented to give credence to the made up story bolstered up by the petitioner.
Another intrinsic circumstance which shows that the petitioner was not at all interested in pursuing his election is the fact that the two important persons who were very much interested in his nomination paper not being rejected did not lodge any protest before the Returning Officer or took the trouble of drawing the attention of the Returning Officer that the nomination paper could not be rejected due to the absence of the petitioner.
One of these persons was no one else but Girdhari Lal the counsel of the petitioner himself.
According to his evidence he knew full well that P.W. 1 Ghulam Mohiuddin had signed the nomination paper in his presence and yet when the nomination paper was taken up for scrutiny he did not care to tell the Returning Officer that as the proposer had signed in his presence there was no question of rejecting his nomination paper.
Similarly Mohd. Yunis who was the official candidate of the Congress also remained completely silent and did not draw the attention of the Returning Officer when the nomination paper of the petitioner who was also a Congress candidate was rejected.
All these facts, therefore, lead to the inescapable conclusion that the petitioner was not at all interested in contesting the election and by his deliberate conduct he created a situation in which the nomination paper could be rejected so that if necessary he could use this lacuna to upset the election of the appellant.
As regards the last circumstance, namely, that the whole thing appears to have been stage managed by Mohd. Yunis in order to furnish a ground for setting aside the election of the appellant in case he was elected appears to be probable, particularly in view of the admission made by P.W. 1 Ghulam Mohiuddin to which a reference has already been made.
The best person to explain these facts would have been Mohd. Yunis himself and the petitioner has not examined him as a witness at all.
It appears from the order sheet that Mohd. Yunis was summoned and he was present but the petitioner did not choose to examine him.
It seems to us that Mohd. Yunis being fully aware that he was the architect of the whole drama did not want to face the Court.
Apart from this circumstance, the evidence led by the petitioner on the question that there was some overwriting in the signature of his proposer P.W. 1 Ghulam Mohiuddin on the nomination form subsequent to the date of the scrutiny is far from convincing.
In view of our finding that neither the petitioner P.W. 6 nor Ghulam Mohiuddin P.W. 1 were present on February 9, 1972 when the nomination paper of the petitioner was taken up for scrutiny by the Returning Officer, these two witnesses are not at all competent to depose as to whether or not on that date there was any overwriting in the signature of P.W. 1.
In these circumstances, therefore, the evidence of P.W. 1 and 6 will have to be excluded on this point.
Even so it will be interesting to note that the petitioner P.W. 6 does not say that there was any overwriting on the signature of P.W. 1 Ghulam Mohiuddin on the nomination form but he states that on a perusal of the nomination paper it appears that some ink was spread over his 14 signature.
An examination of the signature of Ghulam Mohiuddin would reveal to the naked eye that there is no question of the spreading of any ink over the signature but what has been done is that there is clear overwriting on the signature.
P.W. 2 Qazi Mohammad Abdullah appears to be a close acquaintance of the petitioner and had helped him in engaging the services of Girdhari Lal for the purpose of filling up the nomination paper which was also done at his own house.
This witness also states that Ghulam Mohiuddin had affixed his signature in his presence with the fountain pen of the petitioner.
He further asserts that on the date of his deposition he found that there was an overwriting over the signature of Ghulam Mohiuddin.
This witness was one of the proposers of Mohd. Yunis who had set up the petitioner as his dummy candidate as held by us.
In these circumstances, therefore, this witness was interested and has tried to help the petitioner.
Moreover he does not say that on February 9, 1972 when the scrutiny of the nomination paper of the petitioner was taken up by the Returning Officer he had an opportunity to inspect the nomination paper in order to find out whether there was any overwriting on the signature.
His evidence, therefore, does not exclude the possibility of the over writing having been made after Ghulam Mohiuddin had signed the nomination paper at the residence of the witness and before the nomination paper was filed or its scrutiny taken up.
Furthermore, the witness admits that he is also a Congress worker and knew the petitioner for the last four years.
For these reasons, therefore, in the first place the evidence of this witness is interested, and secondly it does not appear to be of any assistance to the petitioner.
The other witness examined on this point is P.W. 3 Mohd. Maqbool Mir.
A perusal of the evidence of this witness convinces us that he is an utterly unreliable witness.
Although a lawyer of sufficient experience the witness seems to have scant regard for the purity of the legal profession or the norms of professional ethics.
He was a counsel of the appellant and had been engaged by him at the time of filing of the nomination paper and its scrutiny.
He was present on February 9, 1972 before the Returning Officer on behalf of the appellant.
He further admits that he had also agreed to become the agent of other contesting candidates.
The order Ext.
RW 3/3 clearly mentions that the witness did raise objection on behalf of the appellant regarding the genuineness of the signature of P.W. 1 Ghulam Mohiuddin and yet the witness who appears to have transferred his loyalty to the petitioner deposes with impunity that he did not raise any objection regarding the genuineness of the signature of Ghulam Mohiuddin and that the overwriting did not exist at the time of the scrutiny.
The dramatic manner in which he has made his appearance as a witness for the petitioner speaks volumes against the credibility of his testimony.
He admits that he had never appeared before the High Court and he happened to come to Srinagar on November 13, 1972 to make some purchases for his uncle who was proceeding on a pilgrimage to Mecca.
As he happened to be in the Court premises his name was called out and he was directed to appear as a witness without receiving any summons from the Court.
The 15 appellant has categorically stated in his evidence that he had informed this witness that he might have to be examined on his behalf in the trial before the High Court and yet the witness knowing full well that he was the retained counsel of the appellant readily agreed to depose for the petitioner.
Finally the witness admits that he deals with about 100 cases per month and yet he does not pay any income tax.
In view of these circumstances, therefore, we are not in a position to place any reliance on the evidence of this witness.
In fact the learned Judge was also not inclined to place implicit reliance on the testimony of this witness and in this connection the learned Judge observed as follows: "There have been great comments made with regard to the veracity and dependability of the statement of this witness and if the matter had rested only on the testimony of this witness, then it could have been said that some how or other this witness had changed sides and has come to depose but his testimony and the statements made by him have to be judged in the light of the other evidence and the facts and circumstances of the case.
" We are now left with the evidence of P.W. 5 Girdhari Lal.
This witness was admittedly counsel for the petitioner and was therefore thoroughly interested in supporting the case of the petitioner.
The witness has also stated that the nomination paper bore the signature of Ghulam Mohiuddin but at the time when he was deposing there was some overwriting in his signature.
The witness says that he was present at the time of the scrutiny and had inspected the nomination form and found that the signature of Ghulam Mohiuddin did not contain any overwriting at that time.
He, however, admits that the petitioner Ali Akbar Khan was not present when the scrutiny was taken up and his nomination paper was rejected by the Returning Officer.
Indeed if this was so, as a retained counsel for the petitioner, it was his duty to point out to the Returning officer that under section 47 of the Act the Returning officer was not legally competent to reject the nomination paper merely on the ground of the absence of the petitioner or his proposer.
He, however, remained absolutely silent.
This clearly shows that either he was aware that the overwriting on the signature of Ghulam Mohiuddin was already there at the time of the scrutiny or that he did not know about it, nor did he care to examine the nomination paper at that time.
The witness admitted at p. 106 of the Paper Book that the rejection of the nomination paper on the ground of the absence of the candidate or his proposer was in his opinion improper under section 47 of the Act.
In spite of this fact it is not at all understandable why he did not draw the attention of the Returning officer to this fact, if the Returning officer had rejected the nomination paper merely on the ground of the absence of the petitioner or his proposer.
In these circumstances, therefore, there appears to have been a method in his silence which indicate that he was a privy to the whole show put up by the petitioner and wanted that somehow or the other the nomination paper of the petitioner may be improperly rejected so as to afford a ground to his client to 16 upset the election of the successful candidate.
In these circumstances, therefore, we are not in a position to place any reliance on the evidence of this witness.
This is all the evidence that the petitioner has led in support of his case that the overwriting on the signature of Ghulam Mohiuddin was made subsequent to the scrutiny of the nomination form.
As against this there is clear and categorical evidence of the appellant Mohd. Yasin Shah R.W. 4 who stated thus: "After examination of the nomination form, I raised objection that the signature of the proposer appeared to be doubtful and I also said that probably it is not his signature.
No one at that time appeared to rebut this objection of mine and to assert that it was the signature of the proposer.
" His evidence was fully corroborated by the Returning officer Abdul Rehman Mir, R.W. 3, who has clearly stated thus: "The nomination form already marked Ext.
P.W. 5/2 was presented before me in the same condition in which it is at present.
I was also the Returning officer of Lolab, Kupwara assembly constituencies besides the Karnah assembly constituency.
" We have already pointed out that R.W. 3 is an independent witness being a high Government officer.
The allegations made by the petitioner against him have not at all been substantiated and appear to be totally unfounded as found by us.
There is neither any suggestion nor any evidence to show that he was in any way interested in the appellant or biased against the petitioner.
On the other hand, R.W. 3 being an independent Government officer would naturally have no leanings towards either party.
Furthermore, the most important question to be determined was, if any overwriting was made, who would be interested in making the same ? It is obvious that the Returning officer had absolutely no motive to make any overwriting on the signature of P.W. 1.
The Returning officer has also admitted in his statement that after the scrutiny the record was deposited by him personally with the District Treasury Officer, Baramulla, as per the directions of the Deputy Commissioner, Baramulla, who was also the District Eelection officer.
In these circumstances, therefore, why should the Returning officer have taken the grave risk of tampering with the record after the same was deposited with the District Treasury officer on the directions of the Deputy Commissioner, Baramulla, and why should he at all do it ? Perhaps it was for this reason that the learned Judge did not like to go into this question at all and refrained from making any observation on this aspect of the matter but casually observed that the overwriting might have been brought into existence after the scrutiny.
We think that there is absolutely no evidence to support this fact.
Finally there is another intrinsic circumstance which shows that the overwriting must have been there when the nomination paper 17 was filed or was taken up for scrutiny by the Returning Officer.
The order of the Returning officer Ext.
R.W. 3/3 clearly shows that an express objection was taken by Mohammad Maqbool Mir on behalf of Mohammad Yasin that the signature of the proposer was not genuine.
If the overwriting would not have been there, there was absolutely no occasion for the appellant to have raised any such objection.
We have examined the signature purported to be of Ghulam Mohiuddin, P.W. 1, and we find that there is clear over writing by which various letters of the signature of Ghulam Mohiuddin have been tampered with.
The Returning officer has also deposed that he had given time to the candidates to examine the nomination papers at the time of the scrutiny in order to submit objections, if any.
The appellant and his counsel examined the nomination paper of the petitioner and did raise an objection regarding the genuineness of the signature of his proposer P.W. 1.
This objection has been recorded in the order passed by the Returning Officer.
In view of these circumstances we see no reason at all to distrust the evidence of the Returning officer R.W. 3 on the point that the nomination paper was in the same condition at the date of the scrutiny as it was on the date when he was deposing.
There is yet another matter on which there appears to be a serious controversy between the parties.
The petitioner 's case was that the appellant Mohd. Yasin had not at all raised any objection to the genuineness of the signature of P.W. 1.
Ghulam Mohiuddin on the nomination form and that the aforesaid objection was subsequently incorporated by the Returning officer in his order by committing interpolation.
On the other hand the appellant 's definite case was that after inspecting the nomination paper he raised a clear objection before the Returning officer regarding the genuineness of the signature of the proposer Ghulam Mohiuddin and this objection was not only recorded by the Returning officer at that very time but was also sustained.
The case of the appellant is substantially corroborated by the recitals in Ext.
R.W. 3/3 the order passed by the Returning officer which must be presumed to be genuine as there is nothing to show that it was either interpolated or brought into existence subsequently.
The petitioner 's case, however, rests purely on the oral evidence of a few interested witnesses.
To begin with, so far as the evidence of P.W. 1 Ghulam Mohiuddin and P.W. 5 The petitioner is concerned the same would be of no assistance in deciding this question because as held by us these two persons were not present at the time of the scrutiny and therefore they were not competent to depose whether or not any objection was taken by the appellant regarding the genuineness of the signature of Ghulam Mohiuddin.
It is true that P.W. 3 Mohammed Maqbool Mir.
who was the counsel for the appellant has stated that he never raised any objection on behalf of the appellant at the time of the scrutiny.
We have already discussed the evidence of this witness and held that he was an utterly uncreliable witness for the reasons which we have already given.
Moreover he appears to be a turn coat type of witness and has changed sides as observed by the learned Judge.
Finally his evidence is clearly contradicted by the document Ext.
R.W. 3/3 wherein it is clearly mentioned that the witness Mohd. Maqbool did raise objection regarding 18 the genuineness of the signature of P.W. 1 Ghulam Mohiuddin on behalf of the appellant before the Returning officer at the time of the scrutiny.
In these circumstances, therefore, we are not able to place any reliance on the evidence of this witness.
The last witness on the point is P.W. 4 Gulam Qadir Mir who has no doubt stated that no objection was taken by any body at the concerned time.
This witness, however, was an agent of a different candidate and was not at all interested in the appellant and as, according to him, he was at some distance from the Returning officer it is possible that he may not have heard the objection taken by the appellant before the Returning officer.
At any rate, the evidence of this witness by itself is not sufficient to demolish other circumstances appearing in the case, particularly the recitals in the documents R.W. 3/3.
As against this, R.W. 1, who, as we have already pointed out, is an independent witness, and being a candidate himself was present at the time when the scrutiny of the nomination took place, and his interest was by no means identical with the appellant and, therefore, had no reason to depose falsely to help the appellant.
This witness has categorically stated thus: "Respondent No. 1 (appellant) at that time raised an objection that he was challenging the signature of the proposer on the nomination paper of the petitioner.
* * * * * * When there was an objection to the nomination paper of the petitioner by Mohd. Yaseen then he (Returning officer) scrutinised the nomination paper and passed an order which was announced in the absence of the petitioner.
" Similarly, R.W. 3 the Returning Officer has also clearly deposed that an objection was raised by the appellant which was recorded in his order.
The evidence of R.Ws. 1 and 3 finds ample corroboration from the recitals in the document Ext.
R.W. 3/3.
Apart from this R.W. 2 who is no doubt a counting agent of the appellant has testified to the fact that the appellant had raised an objection regarding the genuineness of the signature of P.W. 1 Ghulam Mohiuddin.
As the evidence of this witness is corroborated by two independent witnesses R.Ws. 1 & 3 we see no reason to disbelieve him.
Lastly there is the categorical statement of the appellant himself that he did raise an objection.
In these circumstances, therefore, we are satisfied that the evidence led by the appellant far out weighs the interested oral testimony led by the petitioner.
In these circumstances, therefore, we find that it has been proved beyond doubt that the appellant did raise an objection regading the genuineness of the signature of P.W. 1 Ghulam Mohiuddin before the Returning officer on February 9, 1972, at the time of the scrutiny of nomination papers.
It is, therefore, established that at the time when the nomination paper of the petitioner was taken up for scrutiny the overwriting on 19 the signature of P.W. 1 Ghulam Mohiuddin was already there and there is a strong possibility that the overwriting had been deliberately made at the instance of the petitioner so as to furnish a ground for setting aside the election of the successful candidate if the official candidate of the Congress failed to win the election.
Mr. Pathak learned counsel for the petitioner submitted that a bare perusal of the order of the Returning officer would clearly show that there has been some tampering.
Before examining this contention we may mention that from the evidence and circumstances discussed above, the following facts emerge: (i) that the petitioner was a dummy candidate of the Congress; (ii) that R.W. 1 Mohd. Anwar Shah Masoodi had expressed his clear apprehension that there was very little chance of Mohd. Yunis the official candidate of the Congress to win the election, and, therefore, there was every motive for the petitioner to have prepared some ground for asailing the election of the appellant in case he was successful; (iii)that on the date of the scrutiny of the nomination papers neither the petitioner nor his proposer were present before the Returning officer; (iv) that at the time of the scrutiny the appellant either personally or through his counsel definitely raised an objection about the genuineness of the signature of P.W. 1 Ghulam Mohiuddin on the nomination paper Ext.
P.W. 5/2; and (v) that the overwriting on the signature of P.W. 1 Ghulam Mohiuddin was present even at the date of the scrutiny and perhaps even on the date when the nomination paper was filed before the Returning officer.
In the background of these proved facts, we would now examine whether or not the contention raised by the learned counsel for the petitioner is correct.
The order passed by the Returning officer rejecting the nomination paper of the petitioner which is Ext.
R.W. 3/3 runs thus: "The candidate and the proposer are not present.
Hence rejected, also an objection has been raised to the genuineness of the proposer 's signature by one Mohd. Maqbool counsel for Mohd. Yaseen Shah candidate.
I could not verify it for absence of candidate and the proposer.
" It was contended by Mr. Pathak that this order runs into two parts.
By the first part of the order the Returning officer appears to have rejected the nomination paper merely on the ground of the absence of the candidate and the proposer.
By the second part, which 20 according to the counsel for the petitioner appears to have been added subsequently, the objection taken by the appellant regarding the genuineness of the proposer 's signature has been recorded, and even so, the Returning Officer has not given any decision on this point.
We have perused the original order passed by the Returning officer very carefully, but we find that the entire order has been written in the same ink with the same pen and appears to have been written in one sitting.
There is nothing to show that the second part of the order was added subsequently because the strokes of the letters, the ink which has been used and the general tenor of the writing appears to be the same throughout.
In these circumstances, therefore, we reject the contention of the petitioner that the second part of the order was added subsequently.
We accordingly hold that the allegations made by the petitioner against the Returning Officer in paragraph 26 of the election petition are totally unfounded and the petitioner has miserably failed to prove the same.
The entire order of the Returning Officer was written in one sitting and there can be no question of any interpolation having been made by him nor had the Returning Officer any motive to do so.
Nevertheless it is true that after having written the order "Hence rejected", the Returning officer appears to have recorded the fact that an objection was raised regarding the genuineness of the proposer 's signature.
For this R.W. 3 the Returning officer appears to have given a very convincing and reasonable explanation.
He says that while he was writing his order and had not completed the same, an objection was taken by Mohd. Maqbool counsel for Mohd. Yaseen regarding the genuineness of the signature of the proposer.
At that time the clerk had already put the seal and, therefore, the Returning officer recorded the objection raised by the appellant in the space left and completed his order and thereafter he signed above the seal.
The Returning officer R.W. 3 in this connection stated thus: "When in spite of repeated calls neither the petitioner nor his proposer turned up before me, then, I began to write out the order on the back of the nomination form. .After the scrutiny by them, Mohammed Yaseen as; well as his counsel brought this fact to my notice that the signature of the proposer on the nomination form of the petitioner was not genuine. .
The portion in my order regarding the non appearance of the petitioner or his proposer as well as the portion regarding the objection about the genuineness of the signature were written by me contemporaneously at the time of passing the order on the nomination form in respect of the scrutiny.
The seal is not below my order but it is just in the midst of the portion of my order and the reason for this is that at the time of the scrutiny when I was passing the order, my clerk was also standing by my side and he was affixing the seal and it so happened that while I was hearing the objection in respect of this nomination form, the clerk affixed the seal at that place.
" The Returning officer further stated in his evidence that he upheld the objection of the appellant as there was no body on behalf of the 21 candidate to rebut the objection raised by the appellant.
The explanation given by the Returning Officer is fully corroborated by the evidence of the appellant and his witnesses, particularly R.W. 1, who is undoubtedly an independent witness.
As we have already held that the Returning Officer was an independent witness and a Government official, there is absolutely no reason why he should have added a part of the order subsequently.
It was then contended by Mr. Pathak that even though the Returning Officer recorded the objection taken by the appellant he has not expressed any final opinion or taken any decision in the matter.
Our attention was drawn to section 47(2) (c) of the Act which runs thus: "47.
(2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary enquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds: * * * * * * (c) that the signature of the candidate or the proposer on the nomination paper is not genuine.
" It was submitted that the Returning Officer has nowhere held as a fact that the signature of the proposer was not genuine.
He has merely indicated the objection raised by the appellant but has not examined the validity of that objection and, therefore, the order must be read as having rejected the nomination paper merely on the ground of the absence of the candidate and his proposer.
It is true that under section 47(2) (c) which is the only relevant provision which applies to this case it was not open to the Returning Officer to reject the nomination paper merely on the ground of the absence of the candidate or his proposer.
The learned Judge seems to have accepted the petitioner 's argument that on his interpretation of the order and found that the nomination paper was rejected merely on the ground of the absence of the candidate and his proposer.
The learned Judge has also held that having rejected the nomination paper any subsequent observations which the Returning Officer made would have to be ignored as he became functus officio.
This interpretation of the learned Judge has been adopted by Mr. Pathak learned counsel for the petitioner.
On a close and careful reading of the order of the Returning Officer, as a whole, we are unable to agree with the interpretation put by the learned Judge or adopted by the learned counsel for the petitioner.
We have already pointed out the facts proved which clearly show that at the time when the Returning Officer passed the order he had before him the signature of Ghulam Mohiuddin with an overwriting.
Both P.W. 1 Ghulam Mohiuddin and counsel for the petitioner have categorically admitted in their statements that the signature in the present form with the overwriting was not the signature of Ghulam Mohiuddin.
P.W. 1 at p. 66 of the Paper Book deposed as follows: 22 "Question: Do you accept this signature to be yours in its present form as it stands ? Answer: I do not accept this to be my signature in the forms as it stands at present." Similarly P.W. 5 who is counsel for the petitioner and in whose presence P.W. 1 had signed the nomination paper also admits in clear terms thus: "In the present form I do not accept that it is the signature of Ghulam Mohi ul Din." Thus if the person who had signed the nomination paper and the lawyer in whose presence Ghulam Mohiuddin had signed the nomination paper were convinced that the signature as overwritten was not the signature of Ghulam Mohiuddin, how can we find fault with the Returning Officer if he also, on a bare perusal of the nomination paper, doubted the genuineness of the signature ? The suspicion of the Returning Officer regarding the genuineness of the signature of the proposer was further reinforced by the fact that a specific objection on this point was taken by counsel for the appellant as recorded in the order itself.
Thus the order read as a whole clearly shows that the nomination paper was rejected not only on the ground that the candidate or his proposer was not present but also on the ground that the signature of the proposer on the nomination paper was not genuine.
It is true that the Returning Officer has not given any clear finding on this point, but section 47 of the Act does not require well reasoned decision.
All that is necessary is that the Returning Officer should apply his mind and determine the question in a summary manner.
The Returning Officer has, in the instant case, indicated objection taken by the appellant regarding the genuineness of the signature of the proposer and has also clearly observed that in view of the objection it is not possible to verify the signature in the absence of the candidate and the proposer.
Thus the absence of the candidate and the proposer has been used not for the purpose of rejecting the nomination paper but for the purpose of supporting the conclusion of the Returning Officer that the signature of the proposer was not genuine.
Even assuming for the sake of argument that the Returning Officer had in effect and in substance rejected the nomination paper on the ground of the absence of the candidate and the proposer which was not a valid ground for rejection of the nomination paper, this does not put an end to the controversy.
There is abundant authority for the proposition that even if the ground on which the nomination paper has been actually rejected is not a permissible ground, if the successful candidate can make out a case that the nomination paper could have been properly rejected on one of the grounds mentioned in section 47 of the Act, the rejection would not be improper and the election would be upheld.
This Court considered this question in N. T. Veluswami Thevar vs G. Raja Nainar & Ors.(1) and observed as follows: "The argument is that if the jurisdiction of the Tribunal is co extensive with that of the returning officer, then the 23 enquiry before it must be confined to the grounds which were urged before the returning officer.
Now, the observations quoted above were made statedly with reference to R. 47, and assuming that they apply to an enquiry under section 100(1)(c), the question still remains, what is the jurisdiction of the returning officer in hearing objections to nomination papers ? His jurisdiction is detined in section 36(2), and the Tribunal must therefore have jurisdiction to decide all the questions which can be raised under that section.
The fact that a particular ground which could have been raised was not, in fact, raised before the returning officer does not put an end to his jurisdiction to decide it, and what he could have decided if it had been raised, could be decided by the Tribunal, when raised.
" p. 635.
"They held, with one solitary exception, that it is permissible, and indeed, it is stated in Mengh Raj vs Bhimandas (1952) , 310 as settled law that the rejection of a nomination paper can be sustained on grounds not raised before the returning officer.
If the legislature which must be taken to have knowledge of the law as interpreted in those decisions wanted to make a departure from it, it would have said so in clear terms, and in the absence of such an expression, it would be right to interpret section 100(1) (c) as not intended to alter the law as laid down in those decisions." p. 636.
"The question now under consideration came up directly for decision before the High Court of Rajasthan in Tej Singh vs Election Tribunal, Jaipur it was held that the respondent to an election petition was entitled to raise a plea that the nomination of the petitioner rejected on one ground by the returning officer was defective on one or more of the other grounds mentioned in section 36(2) of the Act, and that such a plea, if taken, must be enquired into by the Election Tribunal.
" p. 637 "An unreported judgment of the Andhra Pradesh High Court in Badrivishal Pitti vs J. V.
Narsing Rao Special Appeal No. of 1957 has been cited before us, and that also takes the view that in an enquiry before the Election Tribunal, it is open to the parties to support an order of rejection of a nomination paper on grounds other than those which were put forward before the returning officer.
We are in agreement with these decisions." p. 637 Mr. Pathak learned counsel for the petitioner sought to distinguish this decision on the ground that while it is open to the Tribunal, or the High Court in the instant case, to examine other grounds on which the nomination paper could have been rejected, yet in the present state of pleadings no such question appears to have been raised before the High Court.
This argument does not appear to be factually 24 correct.
This plea was specifically raised by the appellant in paragraph 8 of his written statement relevant part of which may be extracted thus: "The answering respondent challenges the genuieness of the signature of the proposer of the petitioner which could neither be rebutted nor challenged by the petitioner or his proposer as both were absent and hence the rejection of the petitioner was announced by the Returning Officer, who under the circumstances was justified under section 47 of the R.P. Act to reject the nomination paper of the petitioner and as such this rejection cannot be deemed to be in law as improper rejection and the petitioner cannot now challenge the same as there is no infirmity in the order of rejection by the Returning Officer.
" Furthermore in the additional written statement, filed by the appellant after the learned Judge allowed the petitioner to amend his election petition, this point was reiterated in paragraph 2(iv) thus: "That the signature of the proposer on the nomination form as was also challenged before the Returning Officer is not genuine and the rejection is not improper." In paragraph 4 of the said additional written statement it was stated thus: "That the signature of the proposer Ghulam Mohi uddin not being genuine on the nomination form the rejection is not improper and the petition is liable to be dismissed." The learned Judge had framed issue No. 1 in the widest possible terms which includes rejection of the nomination paper even on the ground that the signature of the proposer was not genuine which is undoubtedly a valid ground under section 47(2) (c) of the Act.
The issue framed by the learned Judge was as follows: "1.
Whether the nomination paper of the petitioner was improperly and illegally rejected ? O.P.P." It is manifest that this issue covers the decision on the question as to whether various grounds on which the nomination paper could have been improperly rejected including the ground mentioned in section 47(2) (c) of the Act.
namely, the fact that the signature of the proposer was not genuine.
Even the learned Judge clearly understood the pleadings of the appellant to include the fact that the nomination paper was rejected because of the genuineness of the signature of the proposer.
In this connection the learned Judge in his order dated November 7, 1972 observed as follows: "It appears from the petition that the ground was the absence of the petitioner at the time of the scrutiny of the nomination paper but it also appears from the written statement filed by the respondent as well as from the order 25 of the Returning Officer that the nomination paper had also been rejected because of the genuineness of the signature of the proposer.
The nomination paper can be rejected on the question of the genuineness as contemplated by clause (c) of Section 47 of the J & K Representation of the People Act of the State.
" It was for these reasons that the learned Judge did not think it necessary to recast the issue, because he thought that the plea taken by the appellant in his written statement was fully covered by the issue already framed.
In these circumstances, it is clear that the appellant had clearly raised the question that the nomination paper of the petitioner could be properly rejected under section 47(2) (c) of the Act even on the ground that the signature of the proposer was not genuine.
The learned Judge committed and error in not deciding this particular plea taken by the appellant when he found that the Returning Officer had improperly rejected the nomination paper on the ground of the absence of the candidate and the proposer.
We have, however, examined the various aspects of this question and from the facts found by us it is clear that the overwriting in the signature which was present at the date of the scrutiny also throws considerable doubt on the genuineness of the signature of the proposer Ghulam Mohiuddin as clearly admitted by him and the lawyer of the petitioner himself.
The fact that the proposer and the petitioner were both absent on the date of the scrutiny lends sufficient support to the inference that the signature of the proposer Ghulam Mohiuddin on the nomination form does not appear to be genuine.
It is also clearly established as found by us that the appellant did raise an objection regarding the genuineness of the signature of the proposer Ghulam Mohiuddin on the nomination form and that there was no one present on behalf of the candidate to rebut or refute the objection taken by the appellant.
On the other hand P.W. 5 who was the counsel for the petitioner and in whose presence the proposer Ghulam Mohiuddin had signed the nomination form was actually present at the time of the scrutiny and yet, for reasons best known to him, he did not choose to stand up and point out to the Returning Officer that the objection raised by the appellant was not tenable because the proposer had signed the nomination form in his presence.
Lastly the signature which contains the overwriting ex facie shows that it was not genuine.
In these circumstances.
therefore, the only irresistible inference that could be drawn would be that the signature containing the overwriting in the present form, which was in existence even at the time of the scrutiny, could not have been the signature of P. W. 1 Ghulam Mohiuddin.
To add to this is the fact that P.W. 1 himself clearly admitted that in the present form, namely, the signature containing the overwriting, he was not in a position to admit that it was his signature.
This assertion was fully supported by P.W. 5 Girdhari Lal counsel for the petitioner in whose presence P.W. 1 is said to have signed the nomination form.
The learned Judge appears to have entered into the domain of speculation by brushing aside the clear and categorical admission made by P.W. 1 on the ground that the question put to him 26 had placed him on the horns of a dilemma.
Once it is proved that the signature in the present form existed even at the time of the scrutiny, then the question put to the witness P.W. 1 was most relevant and the answer given by the witness was both clear and unambiguous.
We do not see any vagueness or ambiguity in the answer given by the witness.
Instead of taking the clear admission of P.W. 1 on its face value the learned Judge tried to brush it aside on purely speculative grounds.
In these circumstances we are unable to agree with the view taken by the learned Judge which is based on a misreading and misinterpretation of the evidence of P.W. 1.
For the same reason, we reject the contention of Mr. Pathak that the admission of P.W. 1 was vague.
In these circumstances, therefore, we hold that it has been proved to the satisfaction of the Court that the signature of P.W. 1 Ghulam Mohiuddin which contained the overwriting was not his genuine signature.
The nomination paper of the petitioner, therefore, could have been properly rejected on the ground that the signature of the proposer was not genuine.
Thus the rejection of the nomination paper by the Returning Officer could be supported even on a ground different from the one which may have been taken by the Returning Officer.
This being the position the rejection of the nomination paper was proper, and the election of the appellant could not be assailed under section 108(1)(c) of the Act under which the election could be declared void only if there was an improper rejection of the nomination paper.
In the instant case, the rejection of the nomination paper by the Returning Officer being proper one, section 108(1)(c) was not at all attracted.
It was lastly contended by counsel for the petitioner that this Court ought not to interfere with the decision of the learned Judge unless there were special reasons for doing so.
In support of his contention the learned counsel relied upon a decision of this Court in Laxminarayan and another vs Returning Officer and others(1) where this Court observed as follows: "Section 116A of the Act provides for an appeal to this Court from an order of the High Court dismissing an election petition.
The appeal lies both on issues of law and of facts . . . .
The power of the appellate Court is very wide.
It can reappraise the evidence and reverse the trial court 's findings of fact.
But like any other power it is not unconfined: it is subject to certain inherent limitations in relation to a conclusion of fact.
While the trial court has not only read the evidence of witnesses on record but has also read their evidence in their faces, looks and demeanour.
The appellate Court is confined to their evidence on record.
appellate Court is confined to their evidence on record.
bility lies is entitled to great weight.
" (See Saraveeraswami vs Talluri A.I.R.
However, the appellate court may interfere with a finding of fact if the trial court is shown to have overlooked any material feature in the evi 27 dence of a witness or if the balance of probabilities as to the credibility of the witness is inclined against the opinion of the trial Court.
" The propositions enunciated by the Court are well established and there can be no dispute with the propositions mentioned above.
In the instant case, however, we find that the approach of the learned Judge was not correct.
We have already pointed out a number of salient features appearing in the evidence which have rendered the case of the petitioner inherently improbable.
The learned Judge appears to have overlooked these essential features.
Further, the learned Judge himself had observed that issue No. 1 which he had framed was wide enough to include the plea of the appellant, and even if the order of the Returning Officer in rejecting the nomination paper on the ground of the absence of the candidate or his proposer was wrong, it could still be supported on the ground that the signature of the proposer was not genuine.
The learned Judge has not determined this aspect of the matter.
In these circumstances, therefore, we feel that the judgment of the High Court is erroneous both on fact and in law and although the appellate Court is extremely slow in disturbing the findings of fact, in the instant case, we are satisfied that the judgment of the High Court is against the weight of the evidence on record and preponderance of probabilities.
For the reasons given above, the appeal is allowed, the order of the High Court setting aside the election of the appellant Mohd. Yasin Shah is quashed and the election petition filed by the petitioner is hereby dismissed.
The appellant will be entitled to his costs throughout.
P.B.R. Appeal allowed.
| IN-Abs | Section 47(2) of the Jammu & Kashmir Representation of the People Act enacts that the Returning Officer shall examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or in his own motion, after such summary enquiry, if any, reject any nomination on the ground, among others, that the signature of the candidate or the proposer on the nomination paper is not genuine.
For the general election to the State Assembly the appellant and the respondent (petitioner) filed nomination papers.
The nomination paper of the respondent was rejected by the Returning Officer on the ground that when his nomination was called neither he nor anyone on his behalf was present.
After the words 'Hence rejected ' recorded on the nomination paper the Returning Officer had also added that the signature of the proposer was not genuine.
In the election that ensued the appellant was declared elected.
The respondent in his election petition alleged (i) that though at the time of scrutiny the Returning Officer was informed by his proposer that the respondent had gone out to ease and requested him to wait for a while, the Returning Officer rejected the nomination paper and refused to reopen the matter even on the respondent 's request immediately thereafter and (ii) that the Returning Officer committed forgery by subsequently adding certain words in the order of rejection and by over writing the signature of the proposer on the nomination paper.
The High Court held (i) that the Returning Officer was not justified in law in rejecting the nomination paper of the respondent on the ground that he was not present at the time of scrutiny, and (ii) that the Returning Officer having become functus officio any subsequent observations which he might have made was irrelevant and since the nomination paper was illegally rejected the election was void and was liable to be set aside under section 108(1)(c) of the Act.
Allowing the appeal to this Court, ^ HELD: The judgment of the High Court is erroneous both on fact and in law and is against the weight of evidence on record and preponderance of probabilities.
[27 D] (1) Although the appellate Court should be slow to disturb a pure finding of fact based on appreciation of evidence by the Trial Court, it is well settled that the sanctity and purity of electoral processes must be maintained.
The election of a duly elected candidate cannot be set at naught on the basis of interested on partisan evidence not backed by cogent circumstances or unimpeachable documents.
[6 H] Rahim Khan vs Khurshid Ahmed & Ors.
[1975] 1 S.C.R. 643, 656 and D. Venkata Reddy vs R. Sultan & Ors.
; , referred to.
In the instant case the approach of the High Court was not correct.
It had overlooked many essential features.
Secondly the High Court had observed that issue No. 1 was wide enough to include the appellant 's plea that even if the order of the Returning Officer in rejecting the nomination paper on the ground of absence of the candidate or his proposer was wrong, it could 2 still be supported on the ground that the signature of the proposer was not genuine.
Yet it had not determined this aspect of the matter.
[27 C] (2) The order of the Returning Officer read as a whole clearly shows that the nomination paper was rejected not only on the ground that the candidate or his proposer was not present but also on the ground that the signature of the proposer on the nomination paper was not genuine.
It is true that the Returning Officer had not given any clear finding on this point but section 47 of the Act did not require a well reasoned decision.
All that was necessary was that the Returning Officer should apply his mind and determine the question in a summary manner.
Even if the ground on which the nomination paper had been actually rejected was not a permissible ground, if the successful candidate could make out a case that the nomination paper could have been properly rejected on one of the grounds mentioned in section 47 the rejection would not be improper and the election would be upheld.
[22 D H] N. T. Veluswami Thevar vs G. Raja Nainar & Ors.
[1959] Supp. 1 S.C.R. 623 followed.
(i) In the instant case the fact that P.W. 4 had stated in his evidence that when the Returning Officer called the name of the petitioner no one on his behalf responded knocks the bottom out of the respondent 's story that the proposer had been instructed to request the Returning Officer to wait or that the Returning Officer had not acceded to his request.
[8 D] (ii) On a perusal of the Returning Officer 's original order it was clear that the entire order had been written in the same ink, with the same pen and appears to have been written in one sitting.
There is nothing to show that the second part of the order was added subsequently because the strokes of the letters, the ink used and the general tenor of the writing are the same throughout.
[20 B] (iii) As regards that portion of the Returning Officer 's order written by him after writing "Hence rejected" his explanation was that while he was writing his order and had not completed the same, objection was taken by the appellant regarding the genuineness of the proposer 's signature and since the clerk had by then put the seal, he had recorded the appellant 's objection in this space left and completed his order and signed above the seal.
This was corroborated by independent witnesses and there is no reason why the Returning Officer should have added a part of the order subsequently.
[20E, 21 A] (iv) The Returning Officer, while indicating the appellant 's objection regarding the genuineness of the signature of the proposer also observed that it was not possible to verify the signature of the proposer in the absence of the candidate as well as the proposer.
Thus the absence of the candidate and the proposer had been used, not for the purpose of rejecting the nomination paper, but for the purpose of supporting the conclusion of the Returning Officer that the signature was not genuine.
[22 F] (v) It has been satisfactorily proved that the signature of the proposer which contained overwriting was not his genuine signature and, therefore, the nomination paper had been properly rejected and the election could not be assailed under section 108(1)(c) of the Act.
From the facts found it was clear that the over writing present in the signature at the time of scrutiny threw considerable doubt on the genuineness of the proposer 's signature.
The fact that the proposer and the respondent were absent at the time of scrutiny lends sufficient support to the inference that the signature of the proposer was not genuine.
[26 C D]
|
Civil Appeal No. 1633 of 1968.
Appeal by special leave from the judgment and order dated the 2nd December, 1967 of the Government of India, Ministry of Steel, Mines and Metals (Department of Mines and Metals) at New Delhi in No. M.V. 1 (141)/67.
section K. Mehta and K. R. Nagaraia, for the appellant.
section P. Nayar and Girish Chandra, for respondent No. 1.
U. P. Singh and Shambhu Nath Jha, for respondent No. 2.
The judgment of the Court was delivered by BHAGWATI, J.
This appeal can be disposed of on a very narrow point and we will, therefore, set out only so much of the facts giving rise t(s the appeal as bear on this point and omit what is unnecessary.
Since 23rd December, 1959 the appellants had a sub lease from the Receiver in Suit No. 203 of 1905 for extracting phosphate from 1043 an area of 400 hectares situate in Singhbhum District in the State of Bihar.
This sub lease, according to the State of Bihar, came to an end from 1st September, 1964 and the appellants, therefore, made an application to the State of Bihar on 22nd/24th March, 1965 for a grant of fresh mining lease for extraction of apatite and phosphate from the same area under Rule 22 of the Mineral Concession Rules, 1960 made by the Central Government under section 13 of the Mines Minerals (Regulation Development) Act, 1957.
The State Government failed to dispose of the application within a period of nine months from the date of its receipt and hence under Rule 24(3) of the Mineral Concession Rules, 1960 the application was deemed to have been refused by the State Government.
The appellants preferred a revision application to the Central Government on 16th February, 1966 against the deemed refusal of their application under Rule 54 of the Mineral Concession Rules, 1960.
The Central Government disposed of the revision application by an order dated 31st December, 1966 directing the State Government to consider the application of the appellants and to decide it on merits.
The State Government thereafter by an order dated 9th February, 1967 rejected the application of the appellants on the ground that the State Government had already taken a decision not to grant lease for phosphate ore to any individual or private party as it had decided "to work this mineral in the public sector".
The appellants again filed a revision application to the Central Government against the order of the State Government rejecting their application.
The Central Government invited comments of the State Government on the revision application and on the comments submitted by the State Government, the appellants were given an opportunity to submit their cross comments which they did on 8th August, 1967.
Whilst the revision application was pending, the appellants read an advertisement in the issue of Statesman dated 13th September, 1967 to the following effect: "Government of Bihar Department of Mines & Geology, Patna.
Mining and beatification of low grade apatite of Singhbhum.
A reserve of a little over 1 million tonnes of low grade Apatite Mineral with average 16% P.O. has been proved in a belt consisting of several mouzas in the Singhbhum District of Bihar.
The representative bulk samples of the minerals have laboratory Jamshedpur, and it has been found that the mineral can be suitably upgraded by benefication, to yield Apatite concentrate with 36% to 40% P.O., suitable for use as raw material for the manufacture of Phosphetic fertiliser.
Report of economic feasibility studies available.
The State Government may consider giving tax holidays for a filed period and also may guarantee the safety of the investment invested parties capable of making investment to the tuner of 40 to 50 lakhs in undertaking to above project may obtain further particulars from the 1044 Mines Commissioner, Department of Mines and Geology, Government of Bihar.
Patna.
Sd/ K. ABRAHAM, Commissioner of Mines & Geology.
" The appellant immediately addressed a communication dated 26th September, 1967 to the Central Government enclosing a copy of the advertisement and pointing out that it was clear from the advertisement that the State Government had abandoned the idea of working apatite and phosphate in the public sector and that the ground for rejecting the application of the appellants for mining lease no longer existed.
The Central Government, however by an order dated 2nd December, 1967 rejected the revision application stating that: ". the Central Government have come to conclusion that as the State`Government are anxious to do phosphate mining for their own fertilizer factory in public sector, there is no valid ground for interfering with the decision of the State Government rejecting your application for grant of mining lease for apatite and phosphate in Singhbhum district.
" The appellants thereupon preferred the present appeal against the order of the Central Government with special leave obtained from this Court.
It is apparent from the order of the Central Government dated 2nd December, 1967 that the Central Government rejected the revision application of the appellants on the ground that the State Government was anxious to do phosphate mining for its own fertilizer factory in the public sector.
This was undoubtedly the original ground put forward by the State Government for rejecting the application of the appellants for mining lease.
But it does appear prime facie from the advertisement in the issue of the Statesman dated 13th September, 1967 that the proposal of the State Government to mine apatite and phosphate for its own fertilizer factory in the public sector was abandoned and the State Government was prepared to give mining lease to a party which was prepared to undertake a project of setting up a plant for beatification of this mineral so as to make it suitable for use as raw material for the manufacture of phosphatic fertilizer.
The appellants brought this advertisement to the notice of the Central Government by their representation dated 26th September, 1967 and this was done before the revision application was disposed of by the Central Government.
Even so, the Central Government failed to take into consideration this advertisement which appeared to indicate a change in the stand of the State Government and made its order dated 2nd December, 1967 in complete disregard of it.
The order of the Central Government dated 2nd December, 1967 clearly shows that the Central Government failed to apply its mind to this advertisement though it was brought to its notice in time and proceeded to dispose of the revision application as if no such advertisement had been issued by the State Government.
The Central Government did not even care to invite the comments of the State 1045 Government in regard to the advertisement and ignored it altogether A in making its order rejecting the revision application.
This was clear non application of mind on the part of the Central Government to a very material circumstance which was brought to its notice before it disposed of the revision application.
The order of the Central Government, therefore, suffers from a patent error and it must be quashed and set aside and the matter must go back to the Central Government for fresh determination.
We accordingly set aside the order dated 2nd December, 1967 passed by the Central Government and remand the case to the Central Government with a direction to dispose of the revision application, after taking into account the entire material before it, including the advertisement given by the State Government in the issue of Statesman dated 13th September, 1967 and giving an opportunity to the State Government to offer its comments in regard to this advertisement and a further opportunity to the appellants to make their submissions on the comments, if any, offered by the State Government.
The State of Bihar will pay the costs of the appeal to the appellants.
M.R. Appeal allowed.
| IN-Abs | On the expiry of his sub lease for extracting phosphate form an area of 400 hectares situate in Singbhum district, Bihar, the appellant applied to the State Government for a grant of fresh lease.
For nine months the State Government failed to dispose of his application, and under section 24(3) of the Mineral Concession Rules, 1960, it was deemed to have been refused.
Under Rule 54 of the Mineral Concession Rules, 1960, the appellant applied for revision and the Central Government directed the State Government to consider his application on merits.
The State Government rejected the application on the ground that it had decided not to grant lease for phosphate to individuals or private parties, but to work this mineral in the public sector.
The appellant again applied for revision during the pendency of which an advertisement of the State Government appeared in the 'Statesman ' indicating the abandonment of its proposal to mine phosphate and apatite in the public sector.
The appellant brought the advertisement to the notice of the Central Government, but it rejected his revision application, completely disregarding the advertisement.
The appellant preferred an appeal to this Court by special leave.
Allowing the appeal and remanding the case to the Central Government, the Court, ^ HELD: The Central Government failed to take into consideration this advertisement which appeared to indicate a change in the stand of the State Government, and made its order in complete disregard of it.
This was clear non application of mind on the part of the Central Government to a very material circumstance which was brought to its notice before its disposal of the under revision application.
The order of the Central Government, therefore.
suffers from a patent error.
[1044G H, 1045A]
|
ivil Appeals Nos.
2075 & 2076 of 1968.
From the judgment and decree dated the 29th March & 1st April 1968 of the Gujarat High Court in First Appeals Nos. 769 and 1029 of 1960.
A.K. Sen, L.M. Singhvi.
section K. Bagga and Mrs. Bagga, for the appellant.
R.P. Bhatt, B.S. Trivedi H. section Parihar and I.N. Shroff, for the respondent.
The Judgment of the Court was delivered by KHANNA, J.
These two appeals on certificate by Mohatta Brothers plaintiff firm are directed against the judgment of Gujarat High Court whereby that court reversed on appeal the judgment of the trial court awarding a decree for recovery of Rs. 77,286/0 Anna/2 Pies in favour of the plaintiff appellant against the respondent company and dismissed the suit.
The plaintiff is a partnership firm doing business under the name and style of Mohatta Brothers.
The plaintiff firm carried on the business of managing agency of the defendant company up to September 4, 1950.
Sometime before that date, it appears the plaintiff firm expressed an intention of giving up the post of managing agents.
July 31, 1950 Chaturbhujdas on behalf of M/s. Chaturbhujdas, Kharawala Mohatta & Co. submitted scheme exhibit 168 in consultation with the plaintiff.
Paras 5, 6 and 7 of the scheme were as under: "(5) Before our this Scheme is approved by the Company the present Directors shall submit before the Company 1024 the Balance Sheets and the Profit and Loss Account upto the end of the year 1949 and get the same passed, and they shall get the Proforma Balance Sheet upto the date 31 7 50 prepared by the Auditors of the Company and shall hand over the same to us, and this Scheme has been given while understanding that at present everything is according to the list of machinery given to us by the present Agents.
And no one has any kind of charge or debt claimable from the Company till this day excepting the appropriate amount of Rs. 4,77,850/ due to the Agents and their kith and Kin till this day and the list of which is given to us.
We give this Scheme believing the said fact true.
(6) The amounts of the Agents of the Company and their kith and kin which may have been deposited in the Company on the day the date 31 7 50 and which come to about Rs. 4,77,850/ as told by the present Agents are to be kept credited in their accounts and interest thereon is not to be given from the date 1 8 50.
And when our Scheme is approved they have not to take any interest on the said amounts from the Company for five years from the date we start the work of the Mills and they have not to withdraw the said amounts for a period of ten years thereafter but the same are to be kept credited in the Company with interest at six per cent.
But the Company shall return the amount earlier if it so desires.
(7) At present the amount of Rs. 3,46,466 11 8 is due to the Punjab National Bank Ltd. by the Company and the demand of giving bonus to the workers for the year 1949 is outstanding from the Company.
The present Agent states that in both of the said matters payments can be made from the amounts obtained by selling the goods of stores, etc.
which is lying with the Company at present, the list of which is given to us by the present Agents, and from the amounts of E.P.T. deposit and advance payments of the income tax.
On making arrangement accordingly if the debt of the Bank is not fully paid or the liability of bonus is not fully fulfilled and if the Company is found responsible in any way, then the same is to be fulfilled by the present Agent.
But after fulfilling all liabilities accordingly if any amount remains in balance the same shall be treated as assets of the Company and half of the said amount shall be returned to wards the above mentioned amount deposited in the Company and which belongs to the present Agent and their kith and kin.
But on fulfilling completely the liability of the Bank from the sale of goods of the Stores, etc.
if there does not remain sufficient surplus or before getting the amount of E.P.T. deposit and income tax advance payment if the amount of bonus is required to be paid then the present Managing Agents has to give that amount first.
" 1025 On the following day, i.e. August 1, 1950, the following letter was addressed by the plaintiff firm to the Board of Directors of the defendant company : "We Messrs Mohatta Brothers, the Secretaries, Treasurers & Agents of the company hereby beg to tender our resignation as Secretaries, Treasurers and Agents of the Company on condition of the scheme of Sheth Chaturbhujdas Chimanlal dated 31 7 50 duly approved by the Board of Directors, being passed by the share holders of the company in the Extraordinary General Meeting of the company to be held on 4th September, 1950.
FOR MOHATTA BROTHERS Ahmedabad Shivaratan G. Mohatta Chandratan G. Moondhra D.R. Moondhra Brijratan section Mohatta S.R. Mohatta Satyavati Mohatta" A notice was then issued for convening a general meeting of the defendant company on September 4, 1950 for sanctioning the said scheme.
The said scheme was approved by the shareholders on September 4, 1950.
Accordingly, as from that date Messrs Chaturbhujdas Kharawala Mohatta & Co. took over as the new managing agents of the defendant company instead of the plaintiff firm.
The plaintiff 's case was that the liability of the Punjab National Bank was fully discharged by sale of the stores.
No bonus was held to be payable by the Industrial Court to the employees of the company for the year 1949.
It was stated that there was surplus left after discharging the liability of the Punjab National Bank from earmarked assets consisting of excess profit tax deposits, income tax advance amount and the amounts realised from the sale of the stores.
The plaintiff firm claimed half the surplus in terms of clause (7) of the scheme towards the deposit amounts of the plaintiff.
Prayer was made for accounts of the surplus and decree for the amount due as per terms of the scheme with 9 per cent interest.
It may be stated that the plaintiff firm with effect from April 1, 1949 consisted of five partners.
In addition to those five partners, Shashi Kumar, who was a minor and whose mother Satyavati was his guardian, was entitled to four Anna share in a rupee in the profits of the partnership but was not liable for its losses.
Partnership deed exhibit 116 was executed for this purpose on May 19, 1949 and was signed by the five partners and Satyavati.
On October 24, 1949 another partnership deed exhibit 116 was executed wherein Satyavati was shown as a partner of the plaintiff firm instead of her minor son Shashi Kumar.
1026 The suit was resisted by the defendant company.
Besides taking other pleas with which we are not concerned, the defendant contended that the plaintiff firm could not maintain the suit as the constitution of the old firm which acted as managing agents of the defendant company had been changed on October 24, 1949.
From that date, it was stated, the plaintiff firm consisted of six partners, including Satyavati.
The newly constituted firm, according to the defendant company, had not been registered and as such the suit was not maintainable.
The trial court held that the new partnership deed exhibit 116 by which Satyavati became a partner was not acted upon.
As the original partnership mentioned in the partnership deed dated May 19, 1949 had been registered, the plaintiffs suit was held to be not barred by section 69 of the Indian Partnership Act.
It is not necessary to refer to the other issues and the findings of the trial court on those issues.
Suffice it to say that the defendant was held entitled to deduct certain amounts from the amount claimed by the plaintiff.
The trial court accordingly passed the following order : "The plaintiff has filed this suit for account as the account was to be taken of the realisation and expenses of the stores.
But by pursis Exhibit 424 the parties have agreed about the net realisation of the stores and have therefore urged that no Commissioner be appointed and a final decree be passed.
The real account was to be taken of the actual receipts and expenses of the sale of stores.
But now nothing is required to be done and hence there is no necessity of passing any preliminary decree.
The plaintiffs as shown above are entitled to receive Rs. 77,286 0 2, from defendant towards their deposit amount being the net surplus which they are entitled.
Hence defendants are liable to pay the said amount to plaintiff.
The plaintiff should pay the remaining Court fee stamp within a month.
I, therefore, pass the following order.
ORDER Defendants do pay Rs. 77,286 0 2 and the cost of the suit to plaintiff with future interest at 6 per cent from 1st January, 1956.
The plaintiff should pay the remaining Court fees within a month.
Defendants to bear their own cost." Two cross appeals were filed against the judgment and decree of the trial Court.
One appeal was by the defendant company praying for the dismissal of the plaintiff 's suit.
The other appeal was by the plaintiff firm claiming for enhancement of the amount decreed by the trial court.
One of the contentions advanced by the defendant company was as under : "The plaintiff firm was not entitled to file a suit as the plaintiff firm was differently constituted from the firm of Mohatta Brothers as on 31st July 1950, and, in any event, as the minor Shashi kumar had become major in 1953 and had 1027 become a partner of the plaintiff firm Mohatta Brothers, Ahmedabad, and as even the name of Satyavati Devi who was the partner suing did not appear in the entry in the register of firms the present suit was barred under section 69(2) of the Act.
" Dealing with the above contention, the High Court disagreed with the finding of the trial court that partnership deed exhibit 116 dated October 24, 1949 had not been acted upon.
The learned Judges of the High Court held so far as the first part of the above contention is concerned that when a firm is reconstituted by introduction of a new partner, it would remain the same registered firm, and there would be no necessity of fresh registration if the continuing firm was registered with the Registrar of the Firms under section 59 of the Indian Partnership Act.
Dealing with the contention that Shashi Kumar had become major, the High Court found that there was no evidence to show the age of Shashi Kumar and the whole argument in this respect was based on mere conjecture.
On the latter part of the submission, the High Court held that the mandatory condition under section 69(2) of the Indian Partnership Act was not fulfilled in the present case as the name of Satyavati who was a partner of the reconstituted firm and in whose favour a cause of action had accrued was not shown in the register of the firms.
This defect was held to be fatal.
The High Court in this context observed .
"In view of this legal position which we have discussed the second mandatory condition under section 69(2) is not fulfilled in the present case as the name of Satyavati who was partner of the reconstituted firm and in whose favour the cause of action had accrued is not shown in the register of firms.
This defect would be fatal as the first defect of want of registration of the firm itself and in both the cases we would have no option but to dismiss the suit.
In that view of the matter it would be wholly unnecessary to go into any of the other contentions which have been raised in these two appeals and to record any finding on the issues relating to the merits of the case or as regards the other appeal of the plaintiff as well.
Howsoever much we may regret to dismiss the plaintiff 's suit which apparently is well founded by up holding this technical objection of the defendant company, we are bound to dismiss this suit as in law a non compliance of this second mandatory condition is also equally fatal as the non compliance of first condition.
At the same time, however, in the circumstances of the cases while dismissing the plaintiff 's suit we would order both the parties shall bear their own costs all throughout.
" In appeal before us Mr. Sen on behalf of the appellants has assailed the judgment of the High Court in so far as it has disagreed with the finding of the trial court that Satyavati was not a partner of the plaintiff firm and the deed of partnership dated October 24, 1949 had not been acted upon.
Mr. Sen has also questioned the correctness of the view taken by the High Court regarding the construction of section 1028 69(2) of the Indian Partnership Act.
As against that, Mr. Bhatt on behalf of the respondents has canvassed for the correctness of the view taken by the High Court.
both on the question of fact as well as on the question of law.
After hearing the learned counsel for the parties and after having been taken through the relevant material on the record, we are of the opinion that the trial court took a correct view of the matter in so far as it has held that Satyavati did not become a partner of the plaintiff firm and that the deed of partnership dated October 24, 1949 was not acted upon.
The main consideration which prevailed with the High Court in holding that Satyavati became a partner of the plaintiff firm was the execution of deed of partnership dated October 24, 1949.
According to this deed, Satyavati became a partner to the extent of 4 Annas share out of 16 Annas, which had been previously held by her minor son Shashi Kumar.
Shashi Kumar under the deed of partnership of May 19, 1949 was entitled to the share of profits to the extent of four Annas in a rupee and was not liable for the losses which were to be borne by the other five partners.
Satyavati became entitled under the deed of October 24, 1949 not only to the share of profit to the extent of 4 Annas in a rupee but also became liable to share losses to that extent.
The other circumstance relied upon by the High Court was resolution dated January 21, 1950 passed by the Board of Directors of the defendant company.
That meeting was presided over by Shivratan G. Mohatta, partner of the plaintiff firm.
In that resolution there was reference to partnership deeds dated May 19, 1949 and October 24, 1949 which had been received along with letter dated December 1, 1949 from Mohatta Brothers.
The Board of Directors took note of the changes mentioned in the above two partnership deeds and agreed to accept the partners therein mentioned.
The third circumstance relied upon by the High Court is letter dated August 1, which was sent on behalf of the plaintiff firm, Mohatta Brothers, for the purpose of tendering resignation as Secretaries, Treasurers and Agents of the defendant company.
This letter was signed, besides the other partners, by Satyavati.
There was, however, no indication in the letter as to whether Satyavati signed it in her capacity as a partner or as the guardian of her minor son Shashi Kumar.
As against the circumstances relied upon by the High Court, we find that in the register relating to the registration of firms kept under the Indian Partnership Act, an entry was made on May 5, 1952 relating to the registration of the plaintiff firm.
The above entry was plainly in pursuance of application filed on behalf of the plaintiff firm shortly before the making of that entry.
The above entry shows that the position taken up on behalf of the plaintiff firm even in the year 1952 was that there were only five partners of the plaintiff firm and that in addition to that, Shashi Kumar minor was admitted to the benefit of partnership.
The entry thus reveals that even in the year 1952 the stand of the partners of the plaintiff firm was that Satyavati was not a partner of the plaintiff firm and that it was her minor son 1029 Shashi Kumar who was entitled to share in the profits of the partnership.
This entry would be inexplicable if Satyavati had become a partner of the plaintiff firm with effect from October 24, 1949.
Another circumstance which goes to show that Satyavati did not become a partner of the plaintiff firm is the entry in the registers of the defendant company.
According to section 87 of the Indian Companies Act 1913, which was the Act in force at the relevant time, every company shall keep inter alia at its registered office a register d managing agents containing with respect to each of them the following particulars, that is to say, in the case of a firm, the full name, address and nationality of each partner, and the date on which each became a partner.
The entry which was made in the register of the defendant company regarding the partners of its managing agents showed that after April 1, 1949 there were five partners besides Shashi Kumar minor under the guardianship of his mother Satyavati, of the firm of the managing agents Mohatta Brothers.
Although the above entry was made on October 6, 1949, no subsequent entry was made there after showing Satyavati as partner of the firm of Mohatta Brothers.
Had Satyavati in fact become a partner since October 24, 1949 of Mohatta Brothers, it seems unlikely that an entry to that effect would Not be made in the register of the defendant company.
It may also be mentioned in the above context that return has to be sent to the Registrar of Firms under section 87 regarding any change in the particulars required to be contained in the register.
Failure to comply with the above directions entailed imposition of fine.
The third significant circumstance which tends to show that Satyavati despite the execution of the deed of partnership dated October 24, 1949 did not become a partner of the plaintiff firm is evidenced by applications in connection with the registration of that firm which were presented to the income tax authorities under section 26A of the Indian Income tax Act, to 286 are the applications which were filed on behalf of the plaintiff firm for the years 1949 50 to 1956 57.
In all these applications, Shashi Kumar minor under the guardianship of Satyavati was shown entitled to 4 Annas share in a rupee in the plaintiff firm.
Satyavati was not shown in any of these applications as partner of the plaintiff firm.
All these applications which were signed by Satyavati clearly go to show that during these years she did not claim herself to be partner of the plaintiff firm.
on the contrary, she acknowledged that it was her minor son Shashi Kumar who was entitled to 4 Annas share in the profits of the partnership.
Documentary evidence which has been brought on the record, in our opinion, clearly lends support to the statement of Shivratan (PW 1) that partnership deed dated`October 24, 1949 was not acted upon and that Satyavati did not become a partner of the plaintiff firm.
Jivan Das PW, who was an employee or the defendant company, has likewise deposed that Satyavati was never a partner of Mohatta Brothers.
During the hearing of the appeal, affidavit of Satyavati has been filed stating that she was never a partner of Mohatta Brothers and it 1030 was her son Shashi Kumar who was at all material times admitted to the benefit of the partnership.
Mr. Bhatt has objected to this Court taking notice of the contents of the affidavit of Satyavati including her disclaimer of any interest in the plaintiff firm.
In this respect we are of the view that even without the above affidavit, the material on the record clearly goes to show that Satyavati was not a partner of the plaintiff firm.
In addition to what has been pointed out, we find that in the statement of accounts of the plaintiff firm it is Shashi Kumar and not Satyavati who is shown to have 4 Annas share in the plaintiff firm.
Entries show that Shashi Kumar shared the profits as well as the losses in that proportion.
The significant thing which emerges from the account books is that Satyavati was not shown as the person entitled to 4 Annas share in the partnership firm.
Soon after the present suit had been filed, on application filed on behalf of the defendants under order XXX, Rule 2 of the Code of Civil Procedure, names of the partners of the plaintiff firm were declared on behalf of the plaintiff firm.
In the declaration the name of Satyavati was not mentioned as one of the partners of the plaintiff firm.
The question as to who should share the profits of the plaintiff firm and should be otherwise entitled to its assets is essentially a matter for the partners of the plaintiff firm.
The facts of the case disclose that the partners of the plaintiff firm have agreed between themselves that so far as the 4 Annas share in the profits and assets of the plaintiff firm are concerned, it would be Shashi Kumar who would be entitled to the same.
That position is also accepted by Satyavati in the applications in connection with the registration of the firm to the income tax authorities.
It would, in our opinion, be a wholly untenable plea for the defendant from whom money is claimed, to urge that even though Satyavati as well as the other partners claim that it is not she but her son Shashi Kumar who is entitled to 4 Annas share in the partnership, the court should hold that it is Satyavati who is entitled to that share.
The distinction between a plaintiff firm and a defendant firm in the above context should not be lost sight of.
So far as a defendant firm against whom a suit for recovery of money has been filed is concerned, it would be open to the plaintiff to prove that a person is a partner of the defendant firm despite the denial of that fact by that person as well as the other partners of the defendant firm.
The reason for that is that a creditor of a defendant firm can, except in some cases to which it is not necessary to refer, also proceed against the personal assets of each and every partner.
Such a consideration does not hold good when the dispute relates to the question as to who are the partners of the plaintiff firm.
It has been mentioned above that Shivratan stated in the course of his deposition that partnership deed dated October 24, 1949 had not been acted upon.
This statement is against the pecuniary interest of Shivratan.
It is plain that if Satyavati were a partner of the plaintiff firm, Shivratan and other partners would have to bear losses to the extent of 12 Annas in a rupee.
As against that, if Shashi Kumar be entitled to share profits to the extent of 4 Annas in a rupee and be not 1031 liable for the losses, in such an event Shivratan and other partners A would have to bear the losses to the full extent of 16 Annas in a rupee.
If despite that fact, Shivratan has deposed that Satayvati did not be come a partner of the plaintiff firm and the deed of partnership dated October 24, 1949 was not acted upon, his statement in this respect should not, in our view, be rejected, especially when there is over r whelming documentary evidence which lends support to the above statement.
The entire course of dealings shows that despite the execution of the deed of partnership dated October 24, 1949, the said partnership deed was not acted upon and the relations between the partners of the plaintiff firm continued to be governed by the deed of partnership dated May 19, 1949 according to which it was not Satyavati but her son Shashi Kumar who was entitled to four Annas share in the partnership.
The question, to which a reference has been made in the course of arguments, as to when it was decided not to act upon the deed of partnership dated October 24, 1949 is hardly of much importance, the material thing is that the said deed was not given effect to or acted upon by the parties concerned.
The firm which came into existence as per deed of partnership dated May 19, 1949 was admittedly registered under the Indian Partnership Act and its partners were shown in the Register of Firms.
Looking to all the facts we are of the opinion that the trial court took a correct view of the matter in so far as it held that Satyavati had not become a partner of the plaintiff firm and that the deed of partner ship dated October 24, 1949 had not been acted upon.
The High Court, in our opinion, was in error in reversing that finding of the trial court.
In view of this conclusion of ours, it is not necessary to go into the legal question as to, what should be the proper construction of section 69(2) of the Indian Partnership Act.
Learned counsel for the parties are agreed that such question would arise only in case we had marked the finding of the High Court that Satyavati had become a prtner of the plaintiff firm and that the deed of partnership dated October 24, 1949 had been acted upon.
F The High Court did not deal with the merits of the cross appeals filed by the parties in view of its finding on the point as to whether Satyavati had become partner of the plaintiff firm and the construction it placed upon section 69(2) of the Indian Partnership Act.
In the light of the conclusion we have arrived at, it becomes essential to remand the matter to the High Court so that the cross appeals filed by the parties may be disposed of on merits.
We accordingly accept the appeals, set aside the judgment of the High Court and remand the case to it for disposal of the appeals filed by the parties on merits Looking to all the circumstances, we leave the parties to bear their own costs of these appeals.
As the matter has been pending for a long time, the High Court may dispose of the appeals at an early date.
V.P.S. Appeals allowed.
| IN-Abs | The appellant, a registered partnership firm, was the managing agent of (he respondent.
After submitting its resignation to the board of directors of the respondent company, the appellant filed a suit claiming a sum of money in accordance with an agreed scheme.
The appellant firm consisted of 5 partners with effect from April 1, 1949, and in addition, a minor was entitled to a 4 anna share in the profits of the partnership but was not liable for the losses.
The minor was represented by his mother as guardian.
On October 24, 1949, another partnership deed was executed wherein the mother was shown as a partner of the appellant firm with a 4 anna share and the minor 's name was omitted.
The respondent contended that the suit was not maintainable.
because the constitution of the old firm had been changed on October 24, 1949, and that the newly constituted firm consisting of 6 partners had not been registered.
The trial court held that the new partnership deed was not acted upon and decreed the suit for a part of the amount claimed.
There were appeals by both sides.
The High Court disagreed with the finding of the trial court that the later partnership deed had not been acted upon and held that the mandatory condition of section 69(2), Indian Partnership Act, was not fulfilled as the name Of the mother.
who was a partner in the reconstituted firm and in whose favour cause of action had accrued, was not shown in the register of firms, and that this defect was fatal to the suit.
Allowing the appellant 's appeal to this Court and remanding the appeal to the High Court for disposal on merits, ^ HELD: The trial court took the correct view of the matter in so far as it held that the later partnership deed was not acted upon and that the mother did not become a partner of the appellant firm.
[1028B] (1) The question as to when it was decided not to act upon the later deed is not material.
The evidence of one of the partners of the appellant firm that it was not acted upon and that the mother was not a partner is admissible and is fully corroborated by the documentary evidence.
It is a statement made by him against his own Pecuniary interest, because, if the mother was a partner, the loss of the other partners would extend only to 12 anna share in the rupee; whereas if she was not a partner then they would have to bear losses to the full extent of 16 annas in the rupee.
[1029G H; 1030H 1031D] (2) In the register relating to the registration of firms kept under the Indian Partnership Act, an entry relating to the registration of the appellant firm dated May 5, 1952.
reveals that even in the year 1952, the stand of the partners of the appellant firm was that the mother was not a partner and that it was only her minor son who was entitled to a share in the profits of the partnership.
[1028G 1029A] (3) In the statement of accounts of the appellant firm it is only the minor that is shown to have a 4 anna share and not his mother.
[1030B C] (4) Applications in connection with the registration of that firm were pre rented to the Income Tax Authorities under section 26A, Indian Income Tax Act, 1922.
All there applications were signed by the mother and they show that the mother never claimed to be a partner of the appellant firm and that, on the contrary.
she acknowledged that it was her minor son who was entitled to the 4 anna share in the profits.
[1029E G] 1023 (5) The directors of the respondent company had passed a resolution in 1950 referring to the two partnership deeds.
But the entry which was made in the register of the respondent company regarding the partners of its managing agents as required by section 87, Indian Companies Act, 1913, shows that after April 1, 1949, there were only 5 partners, besides the minor under the guardianship of his mother of the appellant firm.
If the mother had become a partner since October 24, 1949, it is unlikely that an entry to that effect would not have been made in the register of the defendant company, because, under section 87, a return has to be sent to the Registrar of Firms regarding any change in the particulars required to be contained in the register and non compliance with the requirement would entail imposition of fine.
[1029A E] (6) The letter of resignation sent by the appellant firm was signed by the mother also, but there was no indication whether she signed in her capacity as partner or as the guardian of her minor son.
[1028F G] (7) Soon after the presentation of the suit, on an application under order XXX, r. 2, C.P.C., filed by the respondents, the appellant firm declared the names of its partners and the declaration did not show the mother as one of the partners.
The question as to who should share the profits of the appellant firm and should be otherwise entitled to its assets is essentially a matter for the partners of that firm.
Unlike the case of a defendant firm from which money is claimed where each partner may be personally liable, in the case of the plaintiff (appellant) firm claiming money, it would be a wholly untenable plea for the defendants, from whom money is claimed, to urge that even though the mother as well as other partners claimed that it was not she but her minor son that was entitled to the 4 anna share in the partnership, the Court should hold that it was the mother who was entitled to that share.
[1030C G]
|
Civil Appeal No. 1512 of 1971.
Appeal by Special Leave from the Judgment and order dated the 8th/9th December, 1970 of the Gujarat High Court in Sales Tax Reference No. 3/70.
section T. Desai and M. N. Shroff for the Appellant.
V. section Desai, Vimal Dave and Miss Kailash Mehta, for the Respondent.
The Judgment of the Court was delivered by GOSWAMI, J.
This is an appeal by special leave against the Judgment of the Gujarat High Court dated 8th/9th December, 1970.
The respondent (hereinafter to be described as the assessee) entered into a contract with the Public Works Department of the Government of Gujarat on September 6, 1965 for manufacture and supply of kiln burnt bricks to the said Department for the construction of the Capital Project, Ghandhinagar.
Large quantities of bricks were manufactured and supplied under the contract and the applicant received payment for the same in accordance with the agreed rates.
The assessee made an application under section 52 of the Bombay Sales lax Act, 1959, on November 19, 1967, to the Deputy Commissioner of Sales Tax, to determine the question whether the said supplies of bricks by the assessee to the Public Works Department were sales or works contract.
The Deputy Commissioner held the supplied of bricks by the assessee as sales.
The assessee then appealed to the Tribunal against that order.
The Tribunal following the ratio of the decision of this Court in Chandra Bhan Gosain vs The State of orissa and others(1) came to the conclusion that the supplies of bricks were sales.
At the instance of the assessee, the Tribunal referred the following question of law to the High Court: "Whether on the facts and in the circumstances of the case the transaction envisaged by the contract entered into by the applicant with the Public Works Department of the Govern (1) 14 S.T.C. 766: 119641 2 S.C.R. 879.
160 ment of Gujarat on 6th September 1965 for the manufacture and supply of kiln burnt bricks to the said Department and the supply of bricks to the said Department in terms of their running Bill No. XI dated 28th October 1967 is a sale or a works contract ? The High Court answered the question in favour of the assessee holding that the transaction was a works contract.
In coming to that conclusion the High Court hold as follows: In our opinion the decision of the Supreme Court in Chandra Bhan Gosai 's case (supra) is clearly distinguishable on facts.
The contract in that case though prima facie word cd as regards the relevant clauses in similar fashion as the contract in the instant case is in fact cast in a different mould and it would be difficult to hold in the light of the special features and characteristics of the contract with which we are concerned that the decision of the Supreme Court in that case would completely govern the facts of this case.
" Mr. section T. Desai, the learned counsel for the appellant submits that the present case is squarely governed by the decision in Chandra Bhan Gosain 's case (supra) and the High Court is wrong in holding to the contrary.
Mr. V. section Desai learned counsel appearing on behalf of the assesee, on the other hand submits that the High Court is right in distinguishing the present case in view of certain distinguishing features of the contract With which we are concerned.
It is well settled that whether a particular transaction is a contract of sale or works contract depends upon the true construction of all the terms and conditions of the document when there is one.
The question will depend upon the intention of the parties executing the contract.
As we have observed ill our judgment in State of Gujarat vs Variety Body Builders(1) which we have just delivered there is no standard formula by which one can distinguish a contract of Sale from contract for work and labour.
The question is not always easy and has for all time vexed jurists all over.
The distinction between a contract of sale of goods and a contract for work and labour is often a fine one.
A contract of sale is 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.
(Halsbury 's Laws of England Third Edition Volume 34 page 6.) The contract with which we are concerned in this appeal is found in a tender for the supply of materials containing a memorandum of the conditions.
The nature of work is described as manufacturing and supplying kiln burn bricks for construction of Gandhinagar .
The question will depend upon the true construction of the tender which on acceptance is treated here as the contract containing all the terms and conditions agreed upon between the two parties.
In the tender the assessee stated I/We chairman Sabarmati Rati Udyog Sahakari Mandi (1) 161 Ltd., the undersigned do hereby tender for the supply of the materials described in the Schedule attached herewith subject to the conditions annexed.
The schedule described materials as bricks and also stated quantities to be delivered", and "rate at which to be supplied".
The tender is described as "Supply of Materials Tender".
Although the above nomenclature, by itself, is not decisive, we find that the same is justified by the principal terms governing the contract to which we will presently refer. ` "Clause 6:The contractor shall give notice to the Executive Engineer or his Assistant of his intention of making delivery of materials and on the materials being approved, receipt shall be granted to him by the Executive Engineer or by his Assistant and no materials which is not so approved shall be considered to have been delivered.
Clause7: on the completion of the delivery of materials, the contractor shall be furnished with a certificate to that effect, but the delivery shall not be considered to be complete until the contractor shall have removed all rejected materials, and shall have the approved materials, stacked or placed in such position as may be pointed out to him.
Clause 8: The materials to be supplied shall be of the best quality and in strict accordance with the specification and the contractor shall receive payment for such materials only as are approved and passed by the Executive Engineer or his Assistant .
Should the Executive Engineer consider that any of the materials delivered are not of the best quality are not in strict accordance with the specification but that they may be accepted and made use of it shall be within his full discretion to accept the same at such reduced rates as he may fix thereon.
Clause 9: In the event of the material being considered by the officer in the charge OF the work to be inferior to that described in the specifications, the contractor shall on demand in writing, forthwith to remove the same at his own cost and in the event of his failure to do so, within such period as may be named by the Executive Engineer or his Assistant, the said officer may have such reject ed material removed at the contractor 's risk and expense, the expense so incurred being deducted from any sums due or which may become due to the contractor.
13 833 Sup.
C1/76 162 Clause 11: The contractor shall supply at his own expense all tools, plants and implements required for the due fulfilment of his contract, and the materials shall remain at his risk till the date of final deli very, except such portion as shall have been in the meantime removed for use by the Executive Engineer or his Assistant.
Clause 13:This contract shall not be sublet without the written permission of the Executive Engineer.
In the event of the contractor subletting his contract without such permission he shall be considered to have thereby committed a breach of the contract and shall forfeit his security deposit, and shall have no claim for any compensation for any loss that may accrue on account of the collection of the materials or engagements entered into.
Clause 16:No guarantee can be given that the total number of quantities of material indicated in the Schedule of the contract will be ordered during the period of the contract.
But, the Executive Engineer shall purchase from the contractor all such materials as are detailed in the Schedule which he may require to purchase during the period of the contract.
Clause 17:No claim or claims made by the contractor for increased rates on the grounds that the market or other rates included in the contract, have risen during the period of his contract, will be recognized that is to say, the contractor is bound to complete the work and or to supply materials at the rates mentioned in the contract.
Clause 22:ALL rates quoted by the contractors arc inclusive of sales tax and the contractor will pay the same himself, Clause24: The contractor hereby declares that the articles sold to the buyer under this contract shall be of the best quality (and workmanship) and shall be strictly in accordance with the specifications and particulars contained in the Schedule and accompaniments hereof and the contractor hereby guarantees that the said articles would continue to conform to the description and quality aforesaid for the period shown in the Schedule from the data of delivery of the said articles to the purchaser and that notwithstanding that fact that 163 the purchaser may have inspected and approved, the said articles if during the aforesaid period stated in the Schedule the said articles be discovered not to conform to the description and quality aforesaid or have deteriorated and the decision of the purchaser in that behalf shall be final and conclusive.
The purchaser will be entitled to reject the said articles on such portion thereof as may be discovered not to conform to the said description and quality on such rejection the articles will be at the sellers ' risk and all the provisions herein contained relating to rejection of goods, etc.
shall apply.
The cont tractor shall if so called upon to do, replace the articles etc.
Or such portion thereof as is rejected by the purchaser otherwise the contractor shall pay to the purchaser such damages as may arise by any of the breach of the condition herein contained, nothing herein contained shall prejudice any other right of the purchaser in that behalf under this contract or otherwise.
" Amongst some of the general conditions of the contract, we find the following: "Clause3: All the necessary arrangements of raw materials, equipment water, coal, labour etc.
required for supply and manufacture of bricks shall have to be made by the contractor at his own cost.
The Government shall give only land for excavating soil for manufacture of bricks to the contractors free of rent from the land reserved by the.
Government for this purpose.
The land shall have to be handed over back to the Government after the manufacturing of the brick work is completed.
* * * * Clause 10:The contractor shall have no right to sell these bricks, brick bats, chharas or any other mate rials manufactured on this site to any other private parties.
If, however, it is found that the materials have been sold by him to private parties or other bodies, he shall have to pay to Department at the rate of 10% of the value of materials at the tender rates.
" While giving the specifications Item No. l herein refers to "manufacturing and supplying of 1 Class kiln burnt bricks of standard size including stacking in regular consignments etc.
as directed".
164 Mr. V. section Desai brings to our notice the common as well as the distinguishing features of this case and of Chandra Bhan Gosain 's case (supra).
According to him the common features are the following: The land was given free for manufacture of bricks in both the cases.
The materials shall remain at the contractor`s risk till the date of final delivery.
in Chandra Bhan Gosain`s case (supra) the contractor could not sell the bricks to third parties without previous permission of the company .
Here also the contractor has no right to sell the bricks etc.
but if he does sell he will have.
to pay 10 percent of the value of the materials at the tender rates.
Both the Clauses are, therefore, permissive Clauses and are substantially the same.
In both the contracts the contracting parties have used the words such as sell, purchase, deliver or rate of supply etc.
in the contract.
In Chandra Bhan Gosain`s case (supra) dealing;, with those very common features this Court observed as follows: "lt may be presumed that it was understood that in quoting his rate for the bricks, the appellant would take into account the free supply of earth for making the bricks.
Again what was supplied to the company by the appellant was not the earth which he got from it but bricks, which, we think, are something entirely different.
It could not have been in intended that the property in the earth would continue in The company in spite of its conversion into such a different thing as bricks.
Further we find that the contract provided that the bricks would remain at the appellant`s risk till delivery to the company.
Now, obviously bricks could not remain at the appellants risk unless they were his property.
Another Clause provided that the appellant would not be able to sell the bricks to other parties without the permission of the company.
Apparently, it was contemplated that without such a provision the appellant could have sold the bricks to others.
Now he could not sell the bricks at all unless they belonged to him.
Then we find that in the tender which the appellant submitted and the acceptance of which made the contract, he stated, "I/we hereby tender for the supply to the Hindus than Steel Private Ltd.
Of the materials described in the undermentioned memorandum.
The memorandum described the materials as bricks, and also stated the 'quantities to be delivered ' and the 'rate at which materials are to be supplied '.
All these provisions plainly show that the contract was for sale of bricks.
If it were so, the property in the bricks must have been in the appellant and passed from him to the subject matter.
From the above extract, it is clear.
that the decision in Chandra Bhan Gosain 's case (supra) will govern the present case where terms and conditions are almost identical so far as relating to the relevant subject matter.
165 Mr. Desai, however, took pains to point out certain distinguishing features of the present case such as maintenance of qualified Executive Engineer for supervision of work subject to removal at the instance of the Government; restriction on employment of children under 12 years; labour welfare provisions regarding wages; workmen 's compensation, etc.; provisions in relation to prevention of cruelty to animals; non payment of royalty for excavating earth; use of tube wells standing on the Government site manner of execution of the work regarding moulding and drying and provision against subletting which shall constitute a breach of the contract resulting in forfeiture of security deposit.
All the above terms relate to a stage in the process of proper and efficient manufacturing of bricks and are not inconsistent in a contract of sale.
These terms do not appear to impinge on the character of the contract as one for sale of the bricks manufactured.
The Government in its overall interest and anxiety for general welfare could insist on compliance with certain beneficial legal measures.
It could also insist on certain terms which will ensure efficient production of the material.
Provision against subletting when the land was given free by Government is also understandable.
All the above features do not negate the concept of a contract of sale of the bricks that are ultimately manufactured.
The true test in this case is whether in making the contract to brick produced was transferred as a chattel for consideration and we are clearly of opinion that this has taken place in this case.
The property in the bricks was entirely of the assessee.
He had not only to manufacture that but also to stack them for facilitating delivery.
The essence of the contract was, therefore.
the delivery of the bricks after manufacture.
The present case cannot be distinguished from the decision of the Chandra Bhan Gosain`s case (supra).
We are, therefore, clearly of opinion that the contract in this case is a contract of sale and not a works contract.
The assessee is, therefore liable to sales tax.
The question is answered accordingly.
The High Court was not right in answering the question in favour of the assessee.
The decision of the High Court is set aside.
The appeal is allowed with costs.
S.R. Appeal allowed.
| IN-Abs | The respondent manufactured and supplied kiln burnt bricks to the appellant as per the works contract dated 8/9th December, 1970, which provided (1) that land would be given free, (ii) that the material shall remain at the contractor 's risk till the date of final delivery: and (iii) that the contractor had a right to sell to the third parties bricks subject to payment of 10 of the value of materials at the tender rates of the appellant.
the respondent was assessed to sales tax under the Bombay Sales Tax Act, 1959, on the basis that these supplies were sales.
The Deputy Commissioner of Sales Tax on an application under section 52 of the Bombay Sales Tax Act held the supplies as sales on appeal the Sales Tax Appellate Tribunal confirmed it, following the ratio of the decision in 1964 (2) SCR p. 879 (C. B. Gosain vs State of Orissa and Ors.) But, the High Court, on a reference answered it in favour of the assessee and against the revenue.
Allowing the Revenue 's appeal by special leave the Court, ^ HELD: (1) It is well settled that whether a particular transaction is contract of sale or a works contract depends upon the true construction of the terms and conditions of the document, when there is one.
The question will depend upon the intention of the parties executing the contract.
There is no standard formula by which one con distinguish a contract of a contract from the contract for work or labour.
The question is not always easy and has always easy jurists all over.
The distinction between contract of sale of goods and a contract for work and labour is often a fine one.
A contract of sale is a contract whose main object is the transfer of property in and the delivery of the possession of, a chattel as a chattel to the buyer.
[160 E G] State of Gujarat vs Variety Body Builders applied.
Halsbury 's Laws of England, referred to.
(2) As per terms and conditions of contract, the land was given free for manufacture of bricks; the materials remained at the risk of the contractor till the date of final delivery; the respondent could not sell the bricks to third d parties but could do so under certain restrictions; the contracting parties have used the words as sale, purchase, delivery or rates of supply etc.
in the contract.
All these terms and conditions are almost identical to the conditions in Chandra Bhan Gosailn 's case and hence the decision in that case will govern the present case as well .
The various other terms in the contract, namely, maintenance of a qualified executive engineer for supervision of work, restriction on employment of children under 12 years of age, labour welfare provisions regarding wages, workmen 's compensation etc., provision relating to cruelty to animals, non payment of royalty for excavating earth etc.
relate to 159 a process of proper and efficient manufacturing of bricks and are not inconsistent in a contract of sale.
These terms do not appear to impinge on the character of the contract as one for sale of bricks manufactured.
The Government in its overall interest and anxiety could insist on compliance of certain beneficial legal measures.
Provision against sub letting when the land was given free by the Government was also understandable.
All these features do not negate the concept of a contract of sale of bricks that are ultimately manufactured.
The true test in this case is whether in making the contract, brick produced was transferred as a chattel for consideration and this has taken place in this case.
The essence of the contract was, therefore, the delivery of the bricks after manufacturing.
[164 A H, 165 A D] (3) The contract in this case is contract of sale and not a works contract and the assessee is liable to sale tax.
[165 E] C. B. Gosain vs State of Orissa and Ors. ; , followed.
|
Civil Appeals Nos. 669 and 670 of 1971.
Appeal by Special Leave from the Judgment and order dated the 11th June, 1970 of the Calcutta High Court in Sales Tax reference No. 395 of 1969.
section T. Desai, H. section Parihar and 1.
N. Shroff, for the Appellant.
E L. N. Sinha, Solicitor General, Sukumar mar Basu and G. 5.
Chatterjee for respondent in C.A. 669/71.
Leila Seth, Sukumar Basu, G. section Chatterjee, for Respondent in C.A. 670/71.
The Judgement of the Court was delivered by JASWANT SINGH, J.
These two appeals Nos. 669 and 670 of 1971 by special leave from the common judgment dated June lt, 1970 of the High Court at Calcutta in Sales Tax References Nos. 395 of 1965; and 521 of 1967 which raise important questions as to the scope and extant of the revisional power of the Commissioner, Commercial Taxes, under section 20(3) of the Bengal Finance (Sales Tax) Act;, 1941 (Act VI of 1941) (hereinafter referred to as the Act '), and shall be disposed of by this judgment.
The facts giving rise to these appeals are: The appellant which is a Private Limited Company, incorporated under the Indian Companies Act, 1913, and is registered as a dealer under the Act submitted a return for 4 quarters ending with the last date of Chaitra, 1364 B.S. (corresponding to the period commencing with April 14, 1957, And ending with April 13, 1958) showing a gross turnover of 112 sales of Rs. 35,93,402/ By his order dated December 7, 1959, the Commercial Tax officer, Rajakatra Charge, rejected the appellant 's books of accounts on the ground of absence of purchase and sale vouchers and of stock statements and enhanced the gross turnover shown by the appellant by Rs. 50,000/ and charged the entire enhanced amount to tax subject to deduction under section 5(2)(be of the Act.
He also imposed a penalty of Rs. 1,000/ under section 11(1) of the Act.
On appeal under section 20(1) of the Act, the Assistant Commissioner, Commercial Taxes, Burrabazar Circle, by his order dated September 10, 1960, reduced the enhancement of gross turnover from Rs. 50,000/ lo Rs. 25,000/ and the penalty from Rs. 1,000/ to Rs. 500/ .
Not satisfied with this reduction, the appellant moved The Commissioner, Commercial Taxes, West Bengal, in revision under section 20(3) of` the Act on November 10, 1960.
I before the filing of the said revision petition, the Commercial Tax officer, Central Section, to whom power under section 14(1) of the 11 Act has been duly delegated started an enquiry on January 20, 1960 to the and served on the appellant a notice dated October 25, 1960 to the following effect: "You are hereby directed to furnish the undersigned with the serial Nos. Of the cash memos printed by you in 1363 B.S., 1364 B.S., 1365 B.S., 1366 B.S. and 1367 B.S.
The names of the suppliers of these memos relevant bills Nos.and dates, amount, dates of payment and modes of l payment also are to be indicated.
I The information may be supplied to the undersigned on 31st October, 1960 at 4 p.m. positively.
" In response to the notice, the appellant appeared before the Commercial Tax Officer, who after hearing the former and examining the cash memos and other material submitted a report of the investigation made by him to the Assistant Commissioner, Central Section observing inter alia that two original cash memos issued by the appellant bearing serial No. 30727 26 dated January 24 for Rs. 69.50 in respect of sale of Banarsi Saree and No. 31310 37 dated December 25, 1966 for Rs. 62.20 in respect of sale of ready made garments were not properly recorded in the appellant 's books of accounts and records and that on reference to the appellant 's books of accounts and cash memos, it had been found that cash memo No. 30727 26 was issued in respect of mill made cloth for Rs. 11.75 on August 18, 1964 and not in respect of Banarsi saree for Rs. 69.50 an January 24 and cash memo No. 31310 37 was issued in respect of sale of mill made cloth for Rs. 9.37 and not in respect of sale of already made garments for Rs. 62.20 on December 25, 1966.
He also observed in his report that in cash memo No. 31310 37, the date appeared to have been tampered with by subsequent insertion of the numerals "66" after the date of issue and that the actual date appear ed to be December 25 and that the appellant had not been able to furnish a satisfactory explanation with regard to these discrepancies.
The Commercial Tax officer further stated in his report that his investigation revealed that the appellant got duplicate sets of 1,00,000 113 cash memos bearing serial Nos. 2850 to 29500 and 30501 to 31500 printed and supplied by M/s Blackwoods India Limited and did not record sales to the extent of Rs. 30,00,000/ which in the absence of any evidence to the contrary appeared to be entirely taxable.
This report was received by the Additional Commissioner, Commercial Taxes, while the aforesaid revision petition was still pending before him.
he, thereupon gave the following notice to the appellant: "on discovery of fresh materials, as reported by the Commercial Tax officer, Central Section, in his report dated 27 12 60 (copy enclosed), it appears that you have suppressed sales "estimated to be Rs. 30,00,000 in respect of the assessment of four quarters ending Chaitra 1364 B.S.
The above revision petition which has been filed before me is against the appellate order in respect of the assessment for the said period.
It also appears that sales to the extent of Rs. 30,00,000 (estimated) escaped taxation from the original assessment and consequently from the Assistant Commissioner 's appellate order.
The above revision petition will be heard by me on 5 10 61 at 11.30 a.m. and the report dated 27 12 60, submitted by the Commercial Tax officer, Central Section, will be considered at the time of hearing of the revision petition.
You should, therefore, appear before me on that date at the hour fixed either in person or by a duly instructed agent to represent your case, failing which the matter will be decided ex parte without any further reference to you.
" In reply to the notice, the appellant wrote back denying that it had any transaction with M/s Blackwoods India Ltd. in relation to the printing of the duplicate sets of the cash memos in question and stating inter alia that on the matter being referred to the later, they could not say from whom actually, the order in question was received nor could they give any relevant particulars.
It was further added by the appellant that the proposed enhancement of gross and taxable sales by Rs. 30,00,000/ was unjustified and unwarranted.
The Additional Commissioner disposed of the revision petition be enhancing the assessment by Rs. 20,00,000/ as against the admitted gross turnover of Rs. 35,93,402/ and charged the entire enhanced amount of Rs. 20,00,000/ to tax subject to deduction under section 5 (2) (b) of the Act, The appellant thereupon took the matter in further revision to the Board of Revenue, West Bengal contending that the conclusions arrived at by the Additional Commissioner, Commercial Taxes were wholly unwarranted and that while exercising his power of revision under section 20(3) of the Act, the Commissioner had to confine himself to the examination of the material before the Assessing officer and could not take additional facts into consideration.
The Board negatived both the contentions and rejected the revision application.
Thereupon the appellant made an application to the Board under section 21(1) of the Act requesting that the points of law arising 10 833SCI/76 114 from its decision be referred for decision to the High Court.
Although at the hearing of the application, the appellant stressed that reference be made on three points, the Board allowed the application in part and referred only the following question of law for decision to the High Court:
Whether on the facts and circumstances of the case, in 5 exercise of his powers under section 20(3) of the Bengal Financc (Sales Tax) Act, 1941, the Additional Commissioner was competent to reassess the gross turnover of the petitioner by taking into consideration additional material which had not been made available to the assessing officer".
The appellant did not rest content with this limited reference and made an application under sub sections 2(b) and (3) of section 21 of the Act to the High Court which directed the Board to submit for its decision.
The following further question of law: "Whether on the facts admitted or found by the Tribunals below, the Additional Commissioner of Commercial Taxes was vested with the authority or jurisdiction, under sub section (3) of section 20 of the Bengal Financc (Sales Tax) Act, 1941, read with rule 80A of the Rules framed thereunder to admit or rely on the purported report, dated December 27, 1960, of The Commercial Tax officer of the Central Section, pursuant to the enquiry, under subsection (1) of section 14 of the said Act, initiated long before.
The filing of the revision petition in question by the petitioner before the Commissioner of Commercial Taxes, West Bengal ?".
The Board thereupon referred the above quoted second question of law as well to The High Court for its decision.
After hearing The appellant and the Revenue, the High Court by its common judgment dated June 11, 1970 answered both the aforesaid questions in the affirmative.
Aggrieved by this judgment of the High Court, the appellant applied for and obtained special leave to appeal to this Court.
Appearing for the appellant, Mr. Desai has strenuously urged that the revisional power of the Additional Commissioner under section 20(3) of the Act was a limited one and he was not competent to act as an original assessing authority and reassess the gross turn over by taking into consideration the additional material comprising fresh sources of revenue which was not available to the Assessing officer.
He has further urged that the Additional Commissioner, could not admit or rely on the report dated December 27, 1960, of the Commercial Tax officer, Central Section, based on the enquiry under section 14(1) of the Act which was initiated long before The filing of The revision application before the Commissioner, Commercial Taxes,West Bengal.
115 Though both these contentions are inextricably linked up, we shall deal with them separately.
Turning to the first contention, we wish to make it clear that the scope and ambit of the revisional jurisdiction varies from statute to statute and it is difficult to make general observations in regard thereto.
For ascertaining the true scope, content and ambit of the revisional jurisdiction of the Commissioner or the Additional Commissioner, as the case may be, of Commercial Taxes under the Act, it is necessary to notice section 20 thereof which in so far as is material for the purpose of these appeals stood thus at the relevant time: "20(3).Subject to such rules as may be prescribed and for reasons to be recorded in writing, the Commissioner upon application or of his own motion may revise any assess made or order passed under this Act or the rules thereunder by a person appointed under section 3 to assist him, and subject as aforesaid, the Board of Revenue may, in like manner, revise any order passed by the Commissioner : Provided that before rejecting g any application for the revision of any such order the Commissioner or the Board of Revenue, as the case may be, shall consider it and shall record reasons for such rejection.
: Provided further that no application for revision shall lie to the Commissioner in respect of any assessment if an appeal lies under sub section (1) to the Commissioner in respect of such assessment (5) Before any order is passed under this section which is likely to affect any person adversely, such person shall be given reasonable opportunity of being heard.
" The section as extracted above is very widely worded.
The word 'revise ' occurring therein (which in dictionary is describe as meaning to 'reexamine, to review, to correct, or to amend the fault ') is not hedged or qualified by any condition or limitation.
The controlling expressions like 'for the purpose of satisfying himself as to the legality Or ' propriety of the order passed ' or 'regularity of the proceeding ' which are susceptible of being construed as restricting the reversional power to rectification of an illegality or impropriety of the order or of irregularity in the proceeding are also not to be found therein.
There is also nothing in the Bengal Sales Tax Rules, 1941 (hereinafter called 'the Rules ') to circumscribe or limit the power.
It is not, therefore, unreasonable to infer that the amplitude of the power conferred on the Commissioner or the Additional Commissioner is more extensive than the power exercisable by the High Court under section 115 OF the Code of Civil Procedure.
In fact, it can be easily equated with the power exercisable by the appellate authority in an appeal under sub section (2) of section 20 of the Act.
We are fortified in this view by the following observations made by this Court in Indira Sohanial vs custodian of Evacuee Property Delhi and others(1).
(1) A T R. 116 "Section 27 is very wide in its terms and it cannot be construed as being subject to any limitation such as filing of an appeal.
Nor can the scope of revisional powers be confined only to matters of jurisdiction or illegal lithe, because under section 27 the Custodian General, can exercise revisional powers for the purpose of satisfying himself as to "the legality or propriety" of any order of the Custodian The following observations made by Ramaswami, J. in East Asiatic Co. (India) Ltd. vs The State of Madras(1) are also relevant : "The purposes of this Act are two fold, viz., the levy of a general tax on the sale of goods to supplement the lost revenues and for promoting the general public good; and secondly, to see that this is done under the provisions of the Act and not by carrying out in a capricious or arbitrary manner.
Therefore, a revisional authority has to be created.
What is revision ?
The essence of revisional jurisdiction lies in the duty of the superior tribunal or officer entrusted with such jurisdiction to see that the subordinate tribunals or officers keep themselves within the bounds prescribed by law and that they do what their duty requires them to do and that they do it in a legal manner.
This jurisdiction being one of superintendent and correction in appropriate cases, it is exercisable even suo motu as is clear from the numerous statutory provisions relating to revision found in various Acts and Regulations such as the Civil Procedure Code, Criminal Procedure Code, Income Tax Act, etc.
The jurisdiction of suo motu revision is not cribbed and cabined or confined by conditions and qualifications.
The purpose of such an amplitude being given Suo motu revisions appears to be as much to safeguard the interests of the exchequer as in the interests of the assesses.
The State can never be the appellant and if there is an order against the State to its prejudice, and naturally the assesses in whose favour the order is passed does not prefer an appeal, the State would suffer unless its interests are safeguarded by the exercise of such supervisory jurisdiction as the one given to the authorities above mentioned."
Thus the Commissioner or the Additional Commissioner can, in exercise of his revisional power, re assess the turnover and while doing so rope in escaped items of turnover and thereby enhance the gross turnover.
Having found that the power of revision exercisable by the Com missioner, Commercial Taxes is not tramelled by any limitation, let us now see whether the commissioner while exercising the revisional power is confined to the order of assessment and the record of pro T.C. 299 117 ceedings of the Assessing officer or can he travel outside the same and re assess the gross turnover by taking additional material under consideration.
The following observations made in the majority judgment of this Court in the State of Kerala vs K. M. Cheria Abdulla Co.(1) are helpful in deciding this matter: "The words of section 12(2) of the Madras General Sales Tax Act, 1939, that the Deputy Commissioner 'may pass such order with respect thereto as he thinks fit ' means such order as may in the circumstances of the case for rec rectifying the defect be regarded by him as just.
Power to pass such order as the revising authority thinks fit may in some cases include power to make or direct such further enquiry as the Deputy Commissioner may find necessary for rectifying the illegality or impropriety of the order, or irregularity in the proceeding.
It is therefore not right baldly to propound that in passing an order in the exercise of his revisional jurisdiction, the Deputy Commissioner must in all cases be restricted to the record maintained by the Officer subordinate to him, and can never make enquiry outside that record.
Therefore, conferment of power under rule 14 A of the Madras General Sales Tax Rules, 1939, to make further enquiry in cases where after being satisfied about the illegality or impropriety of the order or irregularity in the proceeding, the revising authority thinks it just for rectifying the defect to do so does not amount to enlarging the jurisdiction conferred by section 12(2)."
It will also be apposite in this connection to refer to the following operations made by the Madras High Court in State of Madras vs The Madras Knitting Co. Ltd.(2) "The powers given to the revising authority under section 12(2) were not confined to errors patent on the face of the record but would extend to probing further into the records like calling for despatch registers and other evidence."
It will also be useful in this connection to refer to the decision of this Court in Swastik oil Mills Ltd. vs H. B. Munshi, Deputy Cont missioner of Sales Tax, Bombay(3) where this Court did not accept the principle laid down by the Andhra Pradesh High Court in State of Andhra Pradesh vs T. G. Lakshmaiah Chetty & Sons(4), that the Deputy Commissioner of Sales Tax while exercising revisional powers under the Sales Tax Act of 1946 or of 1953 or of 1959 could not travel beyond the material or record that is available to the assessing authority and was not entitled to find data to institute an enquire so as to include additional material in order to judge the correctness of the order sought to be revised and held: "Whenever a power is conferred on an authority to revise an order, the authority is entitled to examine the correctness, legality and propriety of the order and to pass such suitable orders as the authority may think fit in the circumstances of the particular case before it.
When exercising such powers, there is no reason why the authority should not be entitled, to hold an enquiry or direct an enquiry to be held and, for that purpose, admit additional material.
The proceedings for revision, if started suo motu, must not of course be based on a mere conjecture and there should be some ground for invoking the revision powers.
Once these powers are invoked, the actual interference must be based on sufficient grounds, and, if it is considered necessary that some additional enquiry should be made to arrive at a proper and just decision, there can be no bar to the revising authority holding a further enquiry or directing such an enquiry to be held by some other appropriate authority.
'This principle has been clearly recognised by this Court in the State of Kerala vs Abdullah and Company (1965) 16 S.T.C. 875."
" The decisions of this Court in Deputy Commissioner of Agricultural income tax and Sales Tax, Quilon and Anr.vs Dhanalakshmi Vilas Cashew Co.(1) the State of Kerala vs V.M. Appukutty and Commissioner of Income tax, Bombay vs Shapoorji Pallonji Mistry(3) relied upon by Mr. Desai in support of his contention that while exercising his revisional power under section 20(3) of the Act, the Com Commissioner cannot travel outside the return made by the assessee and the assessment order passed by the Sales Tax officer with a view to finding out suppressed or escaped items of turnover and enhance the assessment are distinguishable as in all those cases there were specific and separate provisions which enabled escaped turnover or income being brought to tax after following a special procedure.
In Dhanalakshimi Vilas Cashew Co`s case (supra), there was rule 33 of Kerala General Sales Tax Rules, 1950, in M. Appukutty case (supra), there was rule 17 of the Madras General Sales Tax Rules, 1939; and in Shapoorji Pallonji Mistry`s case (supra) there were sections 34 and 33B of the Income Tax Act, 1922 which enabled escaped turnover or escaped income to be brought to tax.
In the Act before us, however there are no separate or specific provisions for assessment of` escaped turnover which may, by implication, be said to exclude from the ambit of the revisional jurisdiction of the Commissioner the taking of additional facts into consideration and enhancing the gross turn over.
In view of the foregoing discussion we have no hesitation in repelling the first contention raised on behalf of the appellant by Mr. Desai and in holding that the High Court was right in answering the First question referred to it by the Board of Revenue in the affirmative.
This takes us to the second contention advanced on behalf of the appellant which is covered by the second question referred by the Board of Revenue at the requisition of the High Court.
For effectively dealing with this contention, it is necessary to advert to the following two previsions viz. section 14 of the Act and rule 80A of the Rules: "14.(1) The Commissioner may, subject to such conditions as may be prescribed, require any dealer (a) to produce before him any accounts, registers or documents, (b) to furnish any information, relating to stock of goods of, or purchases, sales or deliveries of goods by, the dealer or relating to any other matter, as may be deemed necessary for the purposes of this Act.
(2) (a) All accounts, registers and documents relating to the stocks of goods of, or purchases, sales and deliveries of goods by any dealer; and (b) all goods kept in any place of business of any dealer shall at all reasonable times be open to inspection of the Commissioner.
(3) If the Commissioner has reason to suspect that any dealer is attempting to evade payment of any tax under this Act, he may, for reasons to be recorded in writing, seize such accounts, registers or documents, of the dealer as may be necessary, and shall grant a receipt for the same, and shall retain the same only for so long as may be necessary for examination thereof or for a prosecution. "
Rule 80A. The appellate or revisional authority may, before finally disposing of the matter, make such inquiry or cause such inquiry to he made by such officer as it may think fit." A combined reading of the provisions of Section 20(3) of the Act and rule 80A of the Rules would show that the., Commissioner, Commercial taxes is empowered to make or cause to be made such enquiry as he may think fit for proper exercise of the revisional jurisdiction conferred on him under section 20(3) of the Act.
It would be further noticed that the Commissioner can, under; section 14 of the Act, call upon dealer to produce any accounts, registers or documents or to furnish any information relating to his business as may be deemed necessary for the purpose of the Act which include the exercise of recessional jurisdiction.
It would also be noticed that the powers under section 14 of the Act have been duly delegated to the Commercial Tax Officer.
In this state of affairs, it is immaterial whether the Commissioner proceeds to make the enquiry before or after filing of a revision petition so long as he affords to the person likely to be adversely affected by his action, an opportunity of being heard.
In the instant case, the whole thing was duly processed s already stated the Commercial Tax officer, Central Section, by his notice dated 120 October 25, 1960 gave adequate opportunity to the appellant to explain the discrepancies in its cash memos and books of accounts.
Another opportunity to explain the suspicions circumstances relating to the alleged suppression of the turnover as also to refute the material collected by the Commercial Tax officer, Central Section, as a result of the investigation made by him and to show cause why action to subject the escaped turnover to tax be not taken was afforded to the appellant by the Additional Commissioner, Commercial Taxes, when on receipt of the ,aforesaid report dated December 27, 1960 of the Commercial Tax officer, Central Section, he gave a notice to the former and furnished him with a full copy of the report.
It cannot therefore, be maintained with any show of force that, in admitting and relying, on the aforesaid report dated December 27, 1960 of the Commercial Tax officer, Central Section, the Additional Commissioner, Commercial Taxes committed any illegality or breach of any statutory provision or rule or transgressed the limits of his jurisdiction.
It will also not be out of place to mention that the contention which is the subject matter of the second question was never raised before the Board or Revenue as appears from the statement of the case drawn by it.
We are, therefore, clearly of the view that the High Court was right in answering the second question also in the affirmative.
In the result, the appeals fail and are hereby dismissed but in the circumstances of the case without any order as to costs.
P.B.R. Appeals dismissed.
| IN-Abs | Section 20(3) of the Bengal Finance (Sales Tax) Act, 1941 provides that the Commissioner, Upon application or of his own motion, may revise why assessment made or order passed under the Act or the Rules thereunder by a person appointed under section 3 to assist him and the Board of revenue may, in like manner, revise any order passed by the Commissioner.
At the time of assessment of the appellant 's sales tax return the Commercial Tax officer enhanced the gross turnover and charged the enhanced amount to tax and in addition imposed a penalty.
On appeal under section 20(1) of the Act, the Assistant Commissioner reduced the enhancement of gross turnover is as well as the penalty.
The appellant filed a revision application before the Commissioner of Commercial Taxes.
Before the filing of revision application, under orders of the Additional Commissioner an enquiry was conducted by a Commercial Tax officer who detected numerous discrepancies of a serious nature in the accounts.
On the basis of this report, the Additional Commissioner enhanced the assessment by a huge sum and charged the entire enhanced amount to tax.
On further revision to the Board of Revenue, the appellant contended that while exercising his power of revision under section 20(3) of the Act, the Commissioner had to confine himself to an examination of the mate rial before the assessing officer and could not take additional facts into consideration which plea was rejected by the Board.
The High Court held that (1) under section 20(3) the Additional Commissioner as competent to reassess the gross turnover by taking into consideration additional material which had not been made available to the assessing officer and (ii) the Additional Commissioner was vested with authority under.
section 20(3) read with r. 80A to rely on the report under section 14(1) initiated long before the filing of the revision petition.
Dismissing the appeal, ^ HELD: The Commissioner or Additional Commissioner can.
in exercise of his revisional power, re assess the turnover and while doing so, rope in the escaped items of turnover and thereby enhance the gross turnover [116G] (1) The word "Revise", the dictionary meaning of which is 'to re examine, to review, to correct or to amend the fault", is not hedged or.
qualified by any condition or limitation.
The controlling expressions like "for the purpose of satisfying himself as to the legality or propriety of the order passed ed" or "regularity of flue proceedings" which are susceptible of being construed as restricting the revisional power to rectification of an illegality or impropriety of the order or of ' irregularity in the proceeding are also not be found therein There is also nothing in the Bengal Sales Tax Rules.
1941 to cir circumscribe or limit the power.
It is not, therefore, unreasonable to infer that the amplitude of the power conferred on the Commissioner or the Additional Commissioner is more extensive than the power exercisable by the High Court under section 115 of the Code of Civil Procedure.
It can be eerily equated with the power exercisable be the appellate authority in an appeal under sub.
2 of section 20 of the Act.
[115F H] 111 Indira Sohanlal vs Custodian of Evacuee Property Delhi and Others ; East Asiatic Co. (India) Ltd. vs The State of Madras 7 S.T.C. 299, State of Kerala vs K. M. Cheria Abdulla & Co. [1965] 16 S.T.C. 875, Swastik.
Oil Mills Ltd. vs H. B. Munshi Deputy Commissioner of Sales Tax.
Bombay ; , State of Madras vs The Madura Knitting Co Ltd. (1959) 10 S.T.C. 155, referred to.
Deputy Commissioner of Agricultural Income Tax and Sales Tax , Quilon and Anr.
vs Chanalakshmi Vilas Cashe w Co. (1969) 24 S.T.C. 491, The State of Kerala vs M. Appukutty (1963) 14 S.T.C. 242 and Commissioner.
(of income.
tax, Bombay vs Shapoorji Pallonji Mistry (1962) 44 I.T.R. 891, distinguished.
(2) on a combined reading of section 20(3) and rule 80A of the Rules it is immaterial whether the Commissioner proceeds to make the enquiry before or after tho filing of a revision petition so long he affords to the person likely to be adversely affected by his action an opportunity of being hearer [119 H] In the instant case, the Commercial Tax officer called upon to make on enquiry, gave adequate opportunity to the appellant to explain the discrepancies And the suspicious circumstances, relating to the alleged suppression bn of the turnover and the Additional Commissioner gave notice to the former and furnished him with a full copy of the report.
It cannot be said that the Commercial Tax officer and Additional Commissioner committed any illegality or breach of any statutory provision or rule or transgressed the limits of their jurisdiction.
1120 A C
|
Civil Appeal No. 1985 of 1975.
Appeal by Special Leave from the Judgment and order dated the 28th November 1975 of the Andhra Pradesh High Court in Writ Appeal No. 1038 of 1973.
M. N. Phadke and B. Kantarao, for the Appellant.
V. section Desai K. R. Chaudhury, section L. Setia and Mrs. V. Khanna, for Respondent No. 1.
The Judgment of the Court was delivered by KRISHNA IYER, J.
Counsel for the appellant a jolted transport operator has assertively argued for an untenable position, heedless of the true nature of 'transport permit ' jurisprudence.
The sole issue on which limited leave has been granted to him by this Court under article 136 lends itself to straight forward resolution, once we grasp the .
public character of the litigation and public purpose of the jurisdiction where per nits regulating the plying of stage carriages are awarded or refused.
The conscience of this branch of public law is justice to the public, although, in the process of adjudication, private claims to carry on transport business through permits are comparatively evaluated.
Public interest is the paramount consideration, while private rights, fundamental though, apparently constitute the quasi lis for decision.
The touchstone of better merit is solely the ability to serve the public, and the hierarchy of transport tribunals, bearing true faith and allegiance to section 47 of the Motor Vehicles Act, 1948 (for short, the Act) have the duty and, therefore, the power to consider as factors pertinent to the larger scheme of efficient public transport.
To equate and thereby hamstring this jurisdiction and processual law with what governs a civil proceeding under the Civil Procedure Code, is to miss the policing policy of the law and maim the amplitude of the power duty complete.
In other words, the duplex scheme of the statute is the holding of a public enquiry to determine who will serve public interest best but ordinarily activated into that enquiry by private applicants for permits.
The pro bono publico character of the hearing cannot be scuttled in the name of competitive individual rights and narrow procedural trappings.
The minimal facts.
The appellant and the 1st respondent, among others, applied for permits to ply a stage carriage on a specified route in the Krishna District, Andhra Pradesh.
Although there were two permits for issuance, one was given to R2 and that has become final.
We are now concerned only with the other permit which had been granted by the Regional Transport Authority (acronymically, RTA) to the appellant but was switched over to the 1st respondent by the 1034 State Transport Appellate Tribunal (STAT) or taking into consideration a fresh ground and supporting evidence to the effect that the appellant was guilty of a transport tax violation and had compounded that offence under section 60(3) of the Act.
The power in this behalf was stated to be based on section 15 of the Andhra Pradesh State Transports Appellate Tribunal Rules, 1971 (hereinafter referred to as the Appellate rules), which reads: "15.
Additional Evidence (i) The parties to the appeal 9 or application shall not be entitled to produce additional evidence whether oral or documentary before the Tribunal but, (a) if the authority from whose order the appeal or application is preferred has refused to admit evidence which ought to have been admitted, or (b) if the party seeking to adduce additional evidence satisfies the Tribunal that such evidence, notwithstanding the exercise of due diligence was not within his knowledge or could not be produced by him at or before the time when the order under appeal was passed; or (c) if the Tribunal requires any documents to be produced or any witnesses to be examined to enable it to pass just orders, or (d) for any other sufficient reason, the Tribunal may allow such evidence or documents to be produced or witnesses examined: Provided that where such evidence is received the other party shall be entitled, to produce rebutting evidence, if any.
(ii) If the Tribunal is of opinion that any witness should be examined in connection with any case before it, it may instead of examining him before itself, issue a commission to the concerned Regional Transport Authorities or the State Transport Authority as.
the case may be, or to an Advocate or such other suitable person as it may deem fit, in the circumstances of the case.
" The vires of this rule was challenged before us and we will examine the contention.
But, to continue the narrative" when the appellate authority deprived the appellant of his permit he attacked the order without avail, before the High Court at both tiers.
Undaunted he has carried the appeal to this Court where the controversy is confined to the validity of section 15, although we have heard arguments on a wider basis to appreciate the point made by counsel.
The argument of ultra vires urged before us rests on The scope of sections 57(4) and 64 of the Motor Vehicles Act and the fitment of section 15 into the purpose and text of these provisions.
Having heard counsel on both sides, we are disinclined to accede to the submission of Shri Phadke for the appellant.
Why ? We will proceed to answer.
1035 Rulings galore, of this Court and the High Courts, have focussed A on section 47 of the Act to emphasize that the quasi judicial bodies entrust ed with the work of issuing stage carriage permits must be conscious of the brooding presence of public interest, in the midst of the sparring contest of private applicants.
A casual perusal of that provision brings home this juristic under pinning of the jurisdiction.
Against this background, we may notice the meaning of the clauses which broaden the nature of the enquiry and mark it off from a traditional civil litigation.
Passengers ' associations, police officers, local authorities and existing operators who may have nothing directly to do with the rivalry for a permit have a place in the scheme and may make representations on a variety of matters.
So also, in an appeal, the RTA itself may be heard.
Thus, the considerations going into the judicial verdict are dominated by public interest; non parties who have only to present points germane to public interest are allowed to represent their point of view.
Why? Because the object of thus regulatory statute is to promote smooth public transport and subject to the weighty factors bearing thereon set down in section 47(1) of the Act and, indeed, with a view to serve the public the better, applicants are chosen in recognition of their fundamental right under article 19 canalised by reasonable restrictions in public interest.
To imprison such an enquiry into the familiar mould of a civil proceeding in ordinary courts is to be pathological, if one may say so.
A freer, healthier, approach is the prescription.
Of course, Shri Phadke is right in that any representation, ground or evidence presented by anyone prejudicing the right of an applicant has to be considered only subject to the canons of natural justice and in the discretion of quasi judicial authority.
Justice to the public and the parties can and must be harmonised.
Such is the simplistic statement of the law.
A few more facts and some more law are necessary.
As stated earlier, the appellant got the permit from the RTA although both the contestants before us were equally qualified, having obtained equal marks on the basis of the Andhra Pradesh Motor Vehicles Rules (for short, the MV rules).
The appellate result went against the appellant because another applicant who had filed an appeal before the STAT produced, at that stage, a certificate from the concerned authority to prove that the present appellant had used a contract carriage as a stage carriage on a trip to Tirupati and had compounded this offence by payment of a fee of Rs. 2,340/ .
This circumstance was regarded by the STAT as a blot on the history sheet of the appellant, although inadvertently omitted from the history sheet prepared officially for the consideration of the RTA.
It is admitted on all hands that this semi punishment had not been mentioned in the representations of any party under section 57(3) of the MV Act.
Therefore, an objection was raised before the STAT that this ground was new, although the episode which formed its basis existed prior to the disposal of the applications by the RTA.
It was further urged that such new grounds could not be heard from an objector who had not included it in his representation made within the time limited by section 57(4) of the Act.
However, the STAT over ruled these objections and proceeded on the footing that this was material information 1036 A relevant to section 47(1) and used it, after giving a fair opportunity to the affected appellant to meet it.
Consequentially, he upset the award of the permit to the appellant since this factor tilted the scales against the appellant.
We cannot, in this Court, and especially on a limited leave, look into the evaluation.
These foundational facts are common ground, but the divergence rises on the exercise of the power under s.15 of the Appellate Rules.
Shri Phadke contended that a representationist, under section 57(3) & (4), had to abide by the time limit discipline of the provision and could not transgress it by making an additional representation at the appellate stage beyond the time limited by section 57(4).
If section 15 permitted such a course, it violated the substantive provision of the Act.
Since a stream cannot rise above its source and rules cannot go beyond the sections of the Act, this Court must hold the said rule avoid.
Any way, if section 57(3) & (4) had a more spacious connotation than was attributed to it by Shri Phadke, section 15 could have full play and be accommodated within the parent provision in the Act regulating procedure.
This was the counter contention of Shri V. section Desai for the contesting respondent.
Before proceeding further, it is useful to extract section 57(3) and (4) and test whether the rule making power has exceeded the ambit of section 57 or gone counter to it in framing section 15 (earlier extracted): "57.
Procedure in applying for and granting permits. x x x x (3) on receipt of an application for stage carriage permit or a public carrier 's permit, the Regional Trans port Authority shall make the application available for inspection at the office of the authority and shall publish the application or the substance thereof in the prescribed manner together with a notice of the date before which representations in connect`ion therewith may be submitted and the date, not being less than thirty days from such publication, on which and the time and place at which, the application and any representations received, will be considered: Provided that, if the grant of any permit in accordance with the application or with modifications would have the effect of increasing the number of vehicles operating in the region, or in any area or on any route within the region, under the class of permits to which the applications relate, beyond the limit filed in that behalf under sub section (3) of Section 47 or sub section (2) of Section 55, as the case may be, the Regional Transport Authority may summarily refuse the application without following the procedure laid down in this sub section.
(4) No representation in connection with an application referred to in sub section (3) shall be considered 1037 by the Regional Transport Authority unless it is made in writing before the appointed date and unless a copy thereof is furnished simultaneously to the applicant by the person making such representation.
" We unhesitatingly agree with Shri Phadke that natural justice that J fine facet of judicial ethos must broadly inform exercise of power by administrative tribunals.
This obligates such bodies to give an 'a affected party a fair opportunity to meet any evidence obnoxious to his case if it is to be pressed into service against him.
In the pre sent instance, it is not disputed, as the High Court has noted, that the canons of natural justice have been conformed to.
The surviving issue therefore is as to whether there is any soundness in the submission that section 57(3) & (4) read with section 47 builds barricades against receiving any information by the STAT from any representator beyond the time filed in the above sub sections of section 57.
Administrative law a growing branch of Indian jurisprudence has a mission.
Where the trellis work of technical procedures and rules of evidence usually applicable to ordinary courts under the Code contains too many taboos regarding pleadings and too many prescriptions regarding trials, administrative bodies, manned by lay and legal men, charged with duties which are wider than decision of individual disputes between specific parties and operating quasi judicially at the public interest level, have to enjoy more liberal powers and less formal and more flexible processes if they are to fulfil the statutory behest efficaciously.
To over judicialize is to undermine.
In the construction of statutes establishing administrative agencies and r defining their powers, there is little scope for the deep rooted shibboleth that into the statute must be, read, by lawyer 's instinct, the requirements of the trial of a civil suit or the hearing of an appeal by the ordinary courts of the land.
This may result in defeating their obvious purpose.
We will therefore briefly examine the legislative goal of the statute under construction, the general policy of the legislature in enacting the relevant sections and the definition of the sources from which information or evidence may be sought by the tribunal working within the framework of the Act.
Mr Justice Frankfurter has aptly stated that 'the answers to the problem of an art are in its exercise ' and John Chipman had paid that the process of statutory construction is a practical art (See: Extrinsic Aid in the Construction of Statutes by V. section Deshpande Journal of Indian Law Institute Vol.
II, April June 1969, p. 123, 126).
Thus, the true test of the amplitude and correct interpretation of section 57(3) & (4) is to be found in a study of its area and its exercise, as intended by its makers.
The oft quoted saying of Mr. Justice Holmes that 'the meaning of a sentence it to be felt rather than to be proved ' also helps us to feel our way through the public law area sketched by section 57(3) & (4) understood in the background of section 47 and the conspectus of other provisions.
We have to shake off from our minds that the type of litigation contemplated by section 57 is the thrust and parry in a civil suit or appeal.
With these observations we may take a bird 's eye view of the relevant provisions of the Act to give us a hang of the subject and help us interpret adequately.
1038 Section 42 of the Act insists on a permit being taken by every transport operator.
Section 44 lays down how the RTA is to be constituted.
It has a mixed composition of lay aud judicially trained me, the reason being that the process of adjudication is not purely legal pugilis but a broader search taking note of public considerations which may not be brought to its notice by contenders for permits.
The nature of the enquiry is reflected in the very structure of the body.
Section 46 speaks of applications for stage carriage permits.
When we reach section 47, we have to take a close up of that provision.
Properly understood, section 47 enjoins upon the RTA to have regard to the presiding idea of public interest generally and in its ramifications as set out in section 47(1) (a) to (f).
In addition, the RTA shall also receive representations as mentioned therein and take them into the reckoning.
It is not as if the sole source of decision making materials consists of the representations made under section 57(3) within the time stipulated in section 57(4).
The primary channel, it , looks, is the information that the RTA may gather, bearing on matters touched upon in section 47(1) (a) to (f), supplemented by facts stated in representations referred to in section 57(3).
Once we grasp this essential truth, the resolution of the conflict raised in this case is easy.
The focus is not on who, as between A and B, has the title to the permit, but on who, as between A and B, should be preferred to better sene the public interest.
We may, as a result of the above discussion, set down the following five propositions: 1.
Stage carriage permits are granted for providing an F. efficient public transport system.
The adjudicatory content has dual elements public interest in the best stage carriage service and private title to better sene the public.
The procedure is flexible, free from the rigidly of court trials, and this flexibility flows from the duty of the tribunal charged with the task of picking out him who has the best plus points for playing a good bus service, to discharge it properly.
A people conscious power cannot be pared down in a self defeating manner.
An activist tribunal (RTA, and, in exceptional case, even the STAT) may even collect useful information bearing on considerations set out in section 47 and, after public exposure of such information at the hearing and reasonable opportunity to meet it, if anyone is adversely affected, put it into the crucible of judgment.
The antithesis is not between the right of representation within the time limited by section 57(4) and beyond it but between representations by statutorily authorised entities under sections 47 and 57 and receipt of relevant 1039 evidence or information from any source whatsoever at any stage whatsoever but subject to the wholesome rules of natural justice.
These fivefold guidelines squarely accommodate section 15 within the framework of sections 47, 57 and 54 of the Act and there is no spill over breaching the banks of the provisions.
The rule merely gives effect to what the sections intend and is not therefore ultra vires.
Here the certificate of payment of compounding fees was filed by one of the appellants before the STAT and was received not as a representation under section 57(4) but as some information the STAT regarded had a bearing on matters falling under section 47.
It is important to note that section 15 does not entitle parties to the appeal or application to produce additional evidence but clothes the tribunal with discretionary power to allow such evidence.
What is received is not qua representation under section 57(4) but qua evidence with public interest flavor.
The rule is good and covers familiar ground to enable just orders being passed.
A reference to order XLI, rule 27 C.P.C. and section 540 Crl.
P.C. proves this point.
Justice to the public is the keynote of sections 47, 57 and section 15.
We are not lobbying for unconventional procedures of quasi judicial tribunals but interpreting the relevant provisions according to well established canons.
We must listen to the signature tune of quasi judicial justice to appreciate the note.
We may also highlight the basic principle that subject to statutory regulations, each tribunal has its inherent power to device its own procedure.
Novelty, if it improves purposeful efficiency, is not anathema.
But caution must be exercised in going against time tried procedures lest processual law prove a charter for chaos.
Like wise, it is necessary to mention that while a 'representator ' under section 47, read with section 57, has a right to make representations and be heard, subject to the limitations written into those provisions, those who fall under it or outside it have no right to bring in evidence or urge grounds as and when they please or at all unless the tribunal, in its discretion, chooses to accept such extra information.
The first is a right of the 'representator ' the second is the power of the tribunal.
F We are strengthened in our general approach and particular construction by a ruling of this Court in New Prakash Transport(l) and two rulings of the High Courts, one of a Full Bench of the Madras High Court (AIR 1965 Madras 79) and the other a Division Bench of the Patna High Court to which one of us (Untwalia, J.) was a party (AIR 1964 Patna 154).
In United Motor Works(2), the Patna Case, the Court observed: "It was also pointed out by the Supreme Court in that case that the Motor Vehicles Act and the rules framed thereunder do not contemplate anything like a regular hearing in a Court of Justice and no elaborate procedure has been prescribed as to how the parties interested have to be heard either before the Regional Transport Authority or 1040 before the Appellate Transport Authority.
The principle is well established that in the absence of any such prescribed procedure the appellate authority may adopt any procedure which it thinks best for hearing the appeal provide always that the rules of natural justice are observed.
The matter has been clearly put by Lord Loreburn in the course of his speech in Board of Education vs Rice as follows: "Comparatively recent statutes have extended, if they have not originated, the practice of imposing upon departments or officers of State the duty of deciding or determining questions of various kinds.
In the present instance, as in many others, what comes for determination is sometimes a matter to be settled by discretion, involving no law.
It will, I suppose, usually be of an administrative kind; but sometimes it will involve a matter of law as well as a matter of fact, or even depend upon matter of law alone.
In such cases the Board of Education will have to ascertain the law and also to ascertain the facts.
I need not add that ill doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything.
But I do not think they are bound to treat such a question as though it were a trial.
They have no power to administer an oath, and need not examine witnesses.
They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradieting any relevant statement prejudicial to their view." Ramaswami C. J., (as he then was) also laid down: "It is.
manifest that the power of the appellate authority is co extensive with the power of the Regional ' Transport Authority in this respect, and there is no reason why the appellate authority should not take these matters into consideration in deciding the appeal under section 64 of the Act" It is trite that an appeal is a re hearing and ordinarily appellate power is as wide as original power.
The facts of the Patna case (supra) bear a close parallel to our case.
Another point with which we are not concerned and also decided in the Patna judgment (one of the two writ petitions heard together) was challenged in the Supreme Court and reversed.
That bears upon the interstate routes which does not arise in the instant appeal before us.
In Cumbum Roadways(1) Kailsam J. (as he then was), speaking for the Full Bench, stressed the same view.
The head note in the Report is sufficiently explicit and we quote: "The representator, who makes the representation other wise than under section 57(4) will not have a right to have his 1041 objection heard and considered, but there is no prohibition against the authority taking the information furnished by the objector and acting on it after giving an opportunity to the affected party, to prove that the information is false or that it should not be acted upon.
The jurisdiction of the Regional Transport Authority or the Appellate Tribunal to act upon any information, whether it was brought to its notice by the objector or by the Transport Authority cannot be questioned.
But it is within the discretion of the Regional Transport Authority or the Appellate Tribunal to accept the information taking into account the relevant circumstances under which the information was brought before it.
If the authority decides to accept, it is bound to ` give a reasonable opportunity to the affected person to show cause as to why the information should not be acted upon.
r When the authority is acting on the information, but not as a representation by the objector, the person affected can not object to the authority considering the information on the ground that it was brought to its notice by one of the objectors without including the information in the representation made by the objector.
The right of the representer as such is no doubt limited, for, he has no right to insist that any representation made otherwise than under section 57(4) should be considered in the manner prescribed under section 57(5).
But that does not in any way debar the authority under section 47(1) of the Act from taking the information into account for deciding to whom the permit should be given in the interests of the public.
" The decision of the Assam High Court (AIR 1959 Assam 183) brought to our notice by Shri Phadke does not really consider the issue from the position we have delineated and turns on approach which is not quite correct.
Our conclusion therefore is that section 15 is intra vires and, further that the said rule merely makes patent what is otherwise latent in the statutory provisions.
The appeal accordingly, fails and is dismissed with costs.
P.B.R Appeal dismissed.
| IN-Abs | Tribunal If had power to admit evidence beyond the time limited by 57(4).
Rule 15 of the Andhra Pradesh State Transport Appellate Tribunal Rule 1971, states that parties to the appeal or application shall not be entitled to produce additional evidence, whether oral or documentary, before the Tribunal except in cases stated therein but it empowers the Tribunal to allow evidence or documents to be produced or witnesses to be examined for any other sufficient reason.
The Regional Transport Authority granted a stage carriage permit to the appellant.
Before the State Transport Appellate Tribunal another applicant produced certain information against the appellant which was not mentioned either in his history sheet or in the representations of any party under section 57(3) of the Act.
Rejecting the appellant 's objection that such new grounds could not be heard from an rejector at the stage of appeal, the State Transport Appellate Tribunal cancelled the appellant 's permit and gave it to respondent On appeal it was contended that a representation under section 57(4) could not be made at the appellate stage beyond the time limited by that section and if rule IS permitted it, it violated the substantive provisions of the Act.
Dismissing the appeal, ^ HELD: Rule 15 is intra vires and it merely makes patent what is otherwise latent in the statutory provisions.
Rule 15 does not entitle parries to the appeal or application to produce additional evidence but clothes the Tribunal with dn creationary power to allow such evidence.
What is received is not qua representation under 8.
57(4) but qua evidence with public interest flavor.
[1041F 1039C] United Motor Works, A.l.
R. 1964 Pat.
154 and Cumbum Roadways, A.I.R. 1965 Mad.
79, approved.
(a) Public interest is the paramount consideration in transport business while private rights apparently constitute a quasi lis for decision.
The touchstone of better merit is solely the ability to serve the public and the hierarchy of transport tribunals, bearing true faith and allegiance to section 47 of the Motor Vehicles Act.
1948 have the duty and, therefore, the power to consider all factors pertinent to the larger scheme of efficient public transport.
The duplex scheme of the statute is the holding of a public enquiry to determine who will serve public interest best but ordinarily activated into that enquiry by private applicants for permits.
The pro bono publico character of the hearing cannot be scuttled in the name of competitive individual rights and narrow procedural trappings.
[1033E G] (b) Section 47 enjoins upon the Regional Transport Authority to have regard to the presiding idea of public interest generally and in ib ramification as set out in section 47(1)(a) to (f).
In addition, the RTA shall also receive representations as mentioned therein and take them into the reckoning.
It is not as if the sole source of decision making materials consists of the representations made under section 57(3) within the time stipulated in section 57(4).
The primary channel the information that the RTA may gather bearing on matters touched upon in 47(1)(a) to (f) supplemented by facts stated in representation referred to In 1033 section 57(3).
Under section 47 passengers ' associations, police officers, local authorities and existing operators who may have nothing directly to do with the rivalry for A a permit have a place in the scheme and may make representation on a variety of matters.
So also, in an appeal, the RTA itself may be heard.
Thus the consideration going into the judicial verdict are dominated by public interest.
non parties who have Only to present points germane to public interest are allowed to represent their point of view.
[1038C; 1035B C]
|
Civil Appeal No. 491 of 1975.
Appeal by Special Leave from the Judgment and order dated the 24th June 1974 of the Orissa High Court in Second Appeal No. 8 of 471 Gobind Das and B. Parthasarthi, for the Appellant.
Santosh Chatterjee and G.S. Chatterjee, for the Respondent.
The Judgment of the Court was delivered by JASWANT SINGH, J.
This appeal by special leave which is directed against the judgment and decree dated June 24, 1974, of the High Court of Orissa at Cuttack reversing the judgment and decree dated September 23, 1970, of the first appellate court which in turn reversed the judgement and decree dated April 10, 1970, of the Trial Court relates to the controversy regarding the appellants right to store and sell dry 'Mahaprasad ' in the suit premises consisting of two pucca rooms standing on plot No. 167 in 'Bihar Bedha ' (outer compound) of the Hoary Holy public temple of Lord Jagannath Ji in Puri (here in after referred to as 'the Temple '), which to use the language of the illuminating and instructive preamble of Shri Jagannath Temple Act, 1954 (Orissa Act No. 11 of 1955) (hereinafter referred to as 'the Act ', has ever since its inception been an institution of unique national importance, in which millions of Hindu devotees from regions far and 103 wide have reposed their faith and belief and have regarded it as the epitome of their tradition and culture.
The facts giving rise to this appeal are: on August 7, 1969, one Gopal Suar, since deceased, who was the father and predecessor in interest of the present appellants describing himself as sevak of the temple brought a Suit in the Court of the Munsiff, Puri, being suit No. 160 of 1969, for permanent injunction restraining, the respondents herein from interfering with his right of storing and selling dry 'Mahaprasad ' in the suit premises.
The case of the original plaintiff was that by means of 'Sanand ' (Exhibit I) Raja Sri Dibyasingha Deb, the then Superintendent of the Temple, granted to his great grandfather, Gangadhar Suar, a permanent lease of the site on which the two suit rooms stood on an annual rent of Rs. 7/ that it was provided in the 'Sanad ' that the grantee or lessee would be entitled to enjoy the site from generation to generation and in case a permanent structure was constructed thereon, the rent would be enhanced to Rs. 14/ per year; that as a result of the death of his great grandfather, Gangadhar Suar, of his grandfather Bela Suar, and of his father, Chakhi Suar, he had become the sole owner of the property; that a few days after the commencement of the lease, two permanent pucca rooms for storing and selling 'Mahaprasad ' where constructed by his great grandfather, Gangadhar Suar, who according to the stipulation contained in the aforesaid Sanad ' became liable to pay an annual rent of Rs. 14% that since the commencement of the lease, his ancestors had from generation to generation been using the suit property as a store room and as a shop for selling dry 'Mahaprasad ' in their capacity as tenants of the Raja of Puri who was the Superintendent of the Temple and the said right of his had been acknowledged and duly recorded in the record of rights.
that ever since the taking over of the management of the Temple by tile Government, he had been paying annual rent as per terms of the lease to the respondent who had accepted him as a tenant; that he had been occupying and enjoying the suit property as before without any let or hinderence either by the respondents or by their predecessor in interest; that on August 1, 1969, his son intimated to him that respondent No. 2 had, by means of notice dated July 31, 1969, called upon him to close the shop on pain of daily fine of Rs. 100/ , as in the opinion of the respondent, he had been using the land in inner bedha of` the Temple for storage and sale of 'Mahaprasad ' which adversely affected the discipline and dignity of the Temple; that on being so informed, he personally approached respondent No. 2 and represented to him that he was the permanent lessee of the suit property and had acquired indefeasible right of storing and selling 'Mahaprasad ' thereon and the respondents could not interfere with that right but his representation fell flat and respondent No. 2 threatened to close his shop forcibly, to impose penalty on him, and to dismiss him from the 'seva '; that after sometime, respondent No. 2 served him within another notice imposing on accumulated penalty of Rs. 4,600/ at the rate of Rs. 100/ per diem and that there being no provision in the Act empowering the respondents to do any of the aforesaid things, there action was arbitrary, illegal and without jurisdiction.
104 The suit was vigorously contested by the respondent.
While denying The grant of the open site to the plaintiff 's ancestor.
Gangadhar Suar.
, as alleged, as also the construction of two pucca rooms by the latter and the storage and sale thereon of 'Mahaprasad ' by the plaintiffs ' ancestors, the respondents averred inter alia that the Raja of Puri being merely a Superintendent or a Manager of the Temple it was beyond his competence to transfer a portion of the Temple permanently in favour of any individual and the 'Sanand ' set up by the plaintiff was as such ineffectual, invalid and inoperative and did not confer any right , title or interest on him or his ancestors and was not binding on the Respondents; that according to the established custom and usage of.
the Temple. 'Mahaprasad ' could not be stored and sold in a 'saraghara ' but was to be sold in Anand Bazar the place specifically set apart for the purpose, and that since the plaintiff had been committing a breach of discipline and violating the orders of the respondents be storing and selling 'Mahaprasad ' in the 'Saraghara ' standing on plot No. 167 (which had been recorded in the record of rights as 'khas dakhali ' land of the respondents and was never intended for storage and sale of 'Mahaprasad ') and was thus acting in a manner derogatory to the dignity of the Temple, the respondents in whom the governance and administration of the Temple and its endowments vested under section 5 of the Act were competent to take action under sections 21 (A) and 30(A) of the Act.
After framing the necessary issues and recording the evidence adduced by the parties, the Trial Court dismissed the suit holding that as sections 15 and 30(A) of the Act cast statutory obligation on the respondents to ensure maintenance of order and discipline and proper hygienic conditions in the Temple and proper standard of cleanliness and purity of the offerings made therein, they could not be restrained by a permanent injunction from stopping the plaintiff to sell 'Mahaprasad ' at a place other than the one specified for the purpose.
On appeal, however, the Sub Judge (Additional District Magistrate) Puri, decreed the suit.
Aggrieved by this decision, the respondents preferred an appeal to the High Court which accepted the same and dismissed the suit Counsel for the appellants has urged before us suit the suit property did not form part of the Temple; that the transaction, evidenced by 'Sanands ' (Exhibits I & II) issued by the Raja of Puri as Superintendent of the Temple in exercise of his right of superintendent and management of the Temple amounted to a permanent lease of the suit property and not merely to a licence, and that the appellants had an indefeasible right of storing and selling Mahaprasad in the suit Saraonara.
We shall deal with these contention seriatim Regarding the first contention raised on behalf of the appellants we may observe that according to section 2(d) of Act No. XIV of 1952 called the Puri Shri Jagannath Temple (Administration) Act, 1952, 'Temple ' means "the Temple of Lord Jagannath of Puri, other temples within its premises, all their appurtenant and subordinate shrines other sacred places and tanks and any additions which may be made thereto after the commencement of the Act".
It may also he 105 mentioned that pursuant to section 3 of that Act a Special officer with prescribed qualifications was appointed by the State Government for preparation of the consolidated record of rights and duties of different sevaks and pujaries and other persons connected with the seva, puja or management of the Temple as also for preparation of a list of List immovable properties endowed to L ord Jagannath Temple and the extent of the premises of the Temple and what it comprises.
In the report prepared by the said officer which was published in the Orissa Gazette (Extraordinary) and is final and entries whereof cannot be questioned except in the manner provided in section 5 of that Act, it is recorded that the Temple of Lord Jagannath occupies an area of 10 acres and its premises include all appurtenance and subordinate shrines and the outer and inner compounds and that the suit plot No. 167 lies in the Baisi Pahacha ' area in between the inner and outer compounds of the Temple and that access to it is though the main gate li e. 'Singhadawara ' (lion 's gate) of the Temple.
It is, therefore, clear beyond any manner of doubt that the Suit premises form part of the Temple.
The first contention of counsel for the appellants is, therefore, repelled.
For a proper appreciation of the second contention, it is necessary to bear in mind the essential difference between a lease and a licence.
It is now well settled by a catena of decisions of this Court that it is the creation of an interest in immovable property that distinguishes a lease from a licence.
Reference in this connection may be made with advantage to the decision of this Court in Associated Hotels of India Ltd vs R. N. Kapoor(1) where Subba Rao, J. (with whom Das, J. agreed observed as follows: "If a document gives only a right to use the property in a Particular way or under certain terms while it remains in possession and control of the owner thereof, it will be a licence.
The legal possession, therefore, continues to be With the owner of the property, but the licensee in permitted to make use of the premises for a particular purpose.
But for the permission, his occupation would he unlawful.
It does not create in his favour any estate or interest in the property.
There is, therefore, clear distinction between the two con concepts.
The dividing line is clear though sometimes it be becomes very thin or even blurred.
At one time it was thought that the test of exclusive possession was infallible and if a person was given exclusive possession of a premises, it would conclusively establish that he was a lessee.
But there was a change and the recent trend of judicial opinion is reflected in Errington vs Errington , wherein Lord Denning reviewing the case law on the subject summarizes the result of his discussion thus at p. 155: The result of all these cases is that, although a person who is let into exclusive possession is, prima facie, to be considered to be tenant, nevertheless he will not be held to be so (1) A.I.R.1959.S.C.1262 106 if the circumstances negative any intention to create a tenancy".
"The Court of Appeal again in Cobb vs Lane 1952 I All ER 1199, considered the legal position and laid down that the intention of the parties was the real test for ascertaining the character of a document.
At p. 1201, Somervell L.J., stated: ". the solution that would seem to have been found is, has one would expect, that it must depend on the intention of the parties".
Denning L.J. said much to the same effect at p. 1202: 'The question in all these cases is one of intention: did the circumstances and the conduct of the parties show that all that was intended was that the occupier should have personal privilege with no interest in the land ?" The following propositions may, therefore, be taken as will established: (1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the forms; (2) the real test is the intention of the parties whether they intended to create a lease or a licence; (3) if the document creates all interest in the property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence; and (4) if under the document.
a party gets exclusive possession of the property, 'perima facie ' he is considered to be a tenant.
but circumstances may be established which negative the intention to create a lease".
Again in Quadrat Ullah vs Municipal Board, Bareiliy(1) this Court observed: "There is no simple litmus test to distinguish a lease as defined in section 105, Transfer of Property Act from a licence as defined in section 52, Easements Act, but the character of the transaction turns on the operative intent of the parties.
To put it pithily, if an interest is immovable property; entitling the transferees to enjoyment, is created, it is a lease; if permission to use land without right to exclusive possession is alone granted, a licence is the legal result.
" Then again in Board of revenue vs A. M.Ansari(2)this very Bench while approving the observations made by Lord Shaw while delivering the judgement of the Board in Kauri T Timber Company Limited vs The Commissioner of Taxes(3) held that in order that a (1) ; (2) ; (3) [1913] A. C. 771 (776).
107 agreement can be said to partake of the character of lease, it is necessary that the grantee should have obtained an interest m and possession of land.
The following observations made therein are apposite: "A licence does not create an interest ill the property to which it relates while a lease does.
There is in other words transfer of a right to enjoy the property in case of a lease.
As to whether d particular transaction creates a lease or a licence is always a question of intention of the parties which is to be inferred from the circumstances of each case.
For the purpose of deciding whether a particular grant amounts to a lease or a licence, it is essential, therefore, to look to the substance and essence of the agreement and not lo its from.
" Bearing in mind the above observations, let us now scrutinize the terms of Sanand (Exhibit I) which reads thus: "Order hereby is issued to the Parichhas Karjees (Officers) of the temple as follows: one Gangadhara Suar of Kundhaibenta Sahi has filed an application before the Raja for opening a 'Sera Ghara ' (store Room of Mahaprasad) at the top step of twenty two steps adjoining the inner compound of the temple and the Eastern Gate Way having space of 10 cubits of length to wards south and width of 10 cubits.
It is ordered that he is permitted to open the said store room with hereditary right on payment of` one gold Mohara as Salami and rupees seven as annual rent.
If he at any time constructs a pucca house, he shall pay rupees fourteen as annual rent.
" A careful '.
persual of the recitals in the Sanand (which does not reveal the identity of the plot with precision) would show that the Sanand did not create any interest in the size in question in favour of the plaintiff 's great grandfather.
It merely permitted him to open a Saraghara which meant a room for storing articles for the sole purpose of preparing Bhog for the three presiding deities.
The Sanand did not also confer the right of exclusive possession of the suit property on the grantee.
This is evident from the right of 'dakhale khas ' of the respondents in the suit property as also from the proved fact that 'Saraghara ' was not kept open by the Temple authorities from midnight to 6.00 A.M. during which interval, the plaintiff could in no case occupy it nor could he have access to it.
lt has also been found to have been established from the plaintiff 's evidence itself that the employees of the Raja of Puri used to clean the refuse etc.
which got accumulated before the suit 'Saraghara '.
Thus none of the elements of lease can be said to be present in the instant case.
In M N Chubwala vs Eide Hussain Sahib(1) this Court rejected the claim of holders of certain stalls in a market that they were lessees and not (1) A. I. R. 108 licences there of the ground that they had no right to us them after the closure of the market at night and the responsibility of cleaning and disinfecting the stalls and closing the market at night lay on the landlord and not on the stall holders.
No help can be derived by the appellants from Exhibit II which relates to a quarrel in 'Kotha Bhog Nities ' and is not relevant for the purpose with which we are concerned at the present stage.
Now assuming without holding that the Sanand amounted to a lease, it cannot even then be held to be valid as permanent alienation of the temple debutter property is prohibited.
The position is stated thus at page 489 of Mulla 's Treatise on Principles of Hindu law (11th Edition): "The power of a shebait or a mohunt to alienate debenture property is analogous to that of a manager for an infant heir as defined by the Judicial Committee in Hunooman Pershad vs Mussamat Babooee As held in that case, he has no power to alienate debutter property expect in a case of need or for the benefit of the estate.
He is not entitled to sell the property for the purpose of investing , the price of it so as to bring in an income larger than that derived from the property itself.
Nor can he, except for legal necessity grant a permanent lease of debutter property , though he may create proper derivative tenures and estates conformable to usage.
" In the present case, the position of the Raja of Puri who granted the Sanand (exhibit) was merely that of a shebait.
He could not have granted a permanent lease of the property in question to the great grandfather of the plaintiff without necessity or without benefit to the estat e which have not at all been made out hl this case Again the lease being a permanent one for a fixed rent could not have been granted at all by the Raja of Puri.
Reference in this connection may usefully be made to page 931 of Mayne`s Treatise on Hindu Law (11th Edition), where the position is stated as follows: "It is beyond the powers of a manager to grant a permanent lease at a fixed rent in the absence of unavoidable necessity ; for, to fix the rent, though adequate at the time in perpetuity.
in lieu of giving the endowment the benefit of an augmentation of a variable rent from time to lime would be a breach of duty on the part of the manager.
In Palaniappa Chetty vs Streemath Deivasikamony (1917 ) 44 I.A. 147.
Lord Atkinson observed: "Three authorities have been cited which establish that it is a breach of duty on the part or a shebait, unless constrained thereto by unavoidable necessity, to grant a lease in perpetuity of debutter lands at a fixed rent.
however adequate that rent may be at the time of granting, reason of the fact that, by this means, the debutter estate (1) 44 I. A 147 109 Is deprived of the chance it would have, if the rent were variable of deriving benefit from the enhancement in value in the future of the lands leased.
" In Palaniappa Chetty & Anr.
vs Deivasikamony Pandara(1) alluded to in the above quoted passage, it was also held: "A permanent lease of temple lands at a fixed rent, or rent free for a premium, whether the lands are agricultural lands or a building site, is valid only if made for a necessity of the institution.
It is not justified by a local custom, or by a practice of the institution, to grant lands in that manner.
The phrase "benefit of the estate", as used in the decisions with regard to the circumstances justifying an alienation by the manager for an infant heir or by the trustee of a religious endowment cannot be precisely defined but includes the preservation of the estate from extinction, its defence against hostile litigation, its protection from inundation, and similar circumstances.
" The present case is, in our opinion, fully covered by the decision in Shibessouree Debia vs Mothooranath Acharjo(2) where it was laid down a general rule that apart from unavoidable necessity to create a new and fixed rent for all time, though adequate at the time, in lieu of giving the endowment the benefit of an augmentation of a variable rent from time to time would be a breach duty in the mohunt.
Thus viewed from any angle the 'Sanand ' could not be held to be any more than a licence and could not clothe the ancestors of the plaintiff or the plaintiff with the status of a lessee.
This takes us to the last contention raised before us by counsel for the appellants which is also devoid of substance.
A bare perusal of Exhibit I is enough to show that it does not confer any right of selling 'Mahaprasad ' on the plaintiff or on his legal representatives.
Exhibit II cannot also be usefully pressed into service by the appellants as it relates to the sale of 'Rahani Bhog ', and not of 'dry Mahaprasad '.
Thus all the contentions raised by counsel for the appellants fail.
For the foregoing reasons, we affirm the judgment of the High Court and dismiss the appeal with costs.
The appellants are, however, as mutually agreed to between the parties, given one month 's time to vacate the premises.
The cumulative penalty of Rs. 4,600/ to which the appellants have been subjected also being excessive is reduced to Rs. 500%` P P. Appeal dismissed.
(1) 441.
A. 147 (2) 13 M. 1.
A. 270.
| IN-Abs | The appellant 's great grandfather was granted a Sanad in respect of 2 rooms in the Jagannath temple by the Superintendent of temple at the annual rent of Rs. 7/ .
The Sanad provided that the grantee would be entitled to enjoy the said 2 rooms from generation to generation and in case a permanent structure was constructed thereon the rent would be enhanced to Rs. 14/ per year.
After the death of great grand father of the appellant the grand father and thereafter the father of the appellant continued storing and selling dry 'Mahaprasad ' in the said property and continued to pay Rs. 14/ per year.
The respondents who have the management of Jagannath temple at present under the Puri Jagannath Temple (Administration) Act, 1952, called upon the appellants ' father to close and to hand over the possession of the two rooms to the management on the ground that the storage and sale of Mahaprasad in the Bihar Bedha of the temple affected adversely the discipline and dignity of the temple.
The appellant 's father was threatened with imposition of a penalty of Rs. 100/ per day in case he did not vacate the premises in question.
The appellant 's father, therefore, tiled the suit in the civil court which after his death has been continued by the present appellant for permanent injunction restraining the respondents from interfering with his right of storing and selling dry Mahaprasad in the suit premises.
According to the plaintiff the permanent lease was granted to him by the Raja Dibyasingha and that since he was continuing to pay the rent regularly he was entitled to continue in the suit premises from generation to generation.
The respondents contested the suit on the ground that it was beyond the competence of Raja of Puri as Manager of the temple to grant a permanent lease and that, therefore, the Sanad was ineffectual, invalid and inoperative, and conferred no rights on the appellant and his ancestors which would bind the present respondents.
Secondly, since the act of storing and selling Mahaprasad at the suit premises constitute a breach of order and discipline, the respondents under the above statute had right to ask the appellant to vacate.
Thirdly what was granted by the Sanad was licence and not a lease.
The trial court dismissed the suit.
However, an appeal was allowed.
The High Court accepted the second appeal and dismissed the suit.
In an appeal by special leave it was contended by the appellants : (1) The suit property did not form part of the temple.
(2) The Sanad granted a permanent lease of the suit property and not merely a licence and therefore the appellant had an indefeasible right of storing and selling Mahaprasad.
Dismissing the appeal, ^ HELD: (1) Section 2(d) of the Puri Sri Jagannath Temple (Administration Act, 1952, defines temple as including the temple of Lord Jagannath of Puri.
Other temples within its premises and all other appurtenant and subordinate shrines, other sacred places and tanks and any additions which may be 102 made there after commencement of the Act.
Records of right prepared under said Act also include the suit premises within the meaning of temple.
[104 H] (2) It is now well settled by a catena of decisions of the Supreme Court that it is the creation of an interest in immovable property that distinguishes a lease from a licence.
The intention of the parties is the real test for ascertaining the character of a document.
At one time it was thought that the test of exclusive possession was infallible and if a person was given exclusive possession of a premises it would conclusively establish that he was a lessee.
However, the result of the subsequent cases is that although a person who is let into exclusive possession in prima facie to be considered to be a tenant nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy.
To ascertain whether a document creates a licence or lease the substance of the document must be preferred to the form (entire English and Indian case Law reviewed).
[105 D H, 106 A, D] (3) A careful perusal of the recital in the Sanad, which does not revival the identity of the plot with precision would show that the Sanad did not create any interest in the rooms in question in favour of the grantee.
l he Sanad also did not confer the right of exclusive possession of the premises.
It is also evident from the right of "Dakhale Khas" of the respondents in the suit property as also from the proved facts that the Sarghara was not kept open by the temple authorities from mid night to 6 a.m. during which interval the plaintiff could in no case occupy it nor could he have access to it.
It proved that the employees of the Raja of Puri used to clean the refuse etc., which got accumulated in the suit premises.
The Sanad, therefore, created a licence and not a lease.
[107 E H] (4) Even if it is assumed that the Sanad created a lease it could not be valid lease since the Mohant or manager of a Hindu temple is prohibited from grantee a permanent lease except far legal necessity or benefit of the estate.
Tn the present case no such legal necessity or benefit of estate has been proved.
[108 B E]
|
Civil Appeal No. 2129 of 1970.
From the Judgment and order dated the 29th May, 1970 of the Calcutta High Court in Income Tax Reference No. I of 1967 and Civil Appeals Nos.
2455 2457 of 1972 Appeals by Special Leave from the judgment and order dated the 25th February, 1972 of the Kerala High Court in Income Tax Reference Nos. 9, to and 11 of 1970.
A. K. Sen, Mrs. Leila Seth, o. P. Khaitalz and B. P Maheshwari for the appellant in C.A. No. 2129 of 1970.
G. C. Sharma, B. B. Ahuja and section P. Nayar for the respondents in C.A. 2129 of 1970.
J. Ramamurthy and D. N. Gupta for intervener No. I, in C.A. No. 2129 of 1970.
A. K. Sen and D. N. Gupta for Intervener No. 2 in C.A. No. 2129 of 1970.
835 J. Ramamurthi and D. N. Gupta for Intervener No.3 in C.A. No. 2129 of 1970.
G. C. Sharma B. B. Ahuja and section P. Nayar for the appellants in C.AS.
NOS.2455 2457/72.
A K Sen and D. N. Gupta for respondent in C.As.
2455 57/72.
The Judgment of the Court was delivered by KRISHNA IYER, J.
These four appeals raise but one question, turning on the meaning of charitable purpose ', as defined in section 2(15) of` the Income Tax Act, 1961 (Act No. XLIII of 1961) (for short.
the Act) .
They may be disposed of by one common judgment, although the two High Courts (Calcutta and Kerala) from where the appeals have come have taken contrary views on the single point in issue.
What are the words set for earning exemption by a combined application of section 11(1) read with section 2(15) of the Act? What is the para meter of the legal concept of charitable purpose ? Are the triune activities, which have yielded income and have been assessed to tax, eligible for exemption as falling within the scope of section 2(15) as it now stands ? These points of law, in the conspectus of facts presented in the case, have been argued in the light of conflicting decisions of the High Courts and illumined in part by a very recent pronouncement of this Court in Loka Shikshana Trust vs C.I.T. , Mysore.(1) The assesses are the Indian Chambers of Commerce and the Cochin Chambers of Commerce.
their memoranda and articles of association are substantially similar and so the facts in the first case alone need be slated and the question of law discussed with reference to that case only.
Hardly any distinction on facts or law which desiderata a separate consideration exists.
The Indian Chamber of Commerce is a company registered under section 26 of the Indian Companies Act, 1913.
Its memorandum and articles of association spell out the broad objects and there is no doubt that they fall within the sweep of the expression 'the advancement of any .
Object of general public utility ' as set down in section 2 (15) of the Act.
Briefly put, they are primarily promotional and protective of Indian trade interests and other allied service operations.
A general concluding clause authorizes it 'to do all other things as may be Conducive to the development o trade, commerce and industries or incidental to attainment of the above objects or any of them '.
It is clear from clauses 4 and 8 of the Memorandum of Association that the Members of the Chamber do not and cannot stand to gain personally since no portion of 'income and property of the association ' shall be paid .
directly or indirectly, by way of dividend or bonus or otherwise howsoever by way of profit to the persons who at any time are .
Members of the Association . '.
Even on the dissolution of the Association the Members cannot claim any share in the assets.
These highlight the fundamental fact that the Chamber, by and large, strives to advance the general trade interests of India and Indians without [916] 1 S.C.R. 471 836 seeking to make profits for its Members.
In the light of this Court 's decision in C.I.T vs, Andhra Chamber of Commerce(1) one may readily state that the Chambers advance objects of general public utility and, prima facie more into the exclusionary area of charitable purpose.
However, the bone of contention in this case is as to whether the three source of income, viz., (a) arbitration fees levied by the Chamber; (b) fees collected for the certificates of origin; and (c) share of profit in M/s. Calcutta Licensed Measures for issue of certificates of weighment and Measurement fall within the exclusion.
It may be mentioned that all these three services were extended to Members and non Members or, rather, to the trade generally.
Had the law bearing on 'charitable purpose ' been what it was prior to 1961, the Chamber would have won hands down may be.
But then there is a significant change in the definition of 'charitable purpose ' by the addition of nine new words which cut back on the amplitude of the expression in the prior Act.
The straight question to be answered here is whether in plan English the there activities which have yielded profits to the chamber involve 'the carrying on of any activity for profit ', uncomplicated by casuistic, nicetics, semantic nuances and case law conflicts.
Unfortunately, legislative simplicity has not been accomplished by the draftsman in the amended definition and, consequently, interpretative complexity persists.
The Judges of the Andhra Pradesh High Court in A. P. State Road Transport Corporation vs C.I.T.(2) observed, while considering the import of section 2(15) of the 1961 Act: "It is one of the fundamental principles in legislation and the drafting of statutes that the provisions contained therein should be clear and cogent and, more so, with regard to the fiscal statutes which impose a burden on the public.
But, in this case, what we find is that the amendment, instead of being clear and cogent, is complicated and courts have taken different views in interpreting the same.
" We dare say that achieving greater simplicity and clarity in statute law will be taken up by the draftsmen of the legislative bills to avoid playing linguistic games in Court and promotion of interpretative litigation Lawyers and legislators must stop confusing each other and start talking to their real audience the people so that communication problems may not lead to prolific forensic battles.
We must confess to having been hard put to it to get at the controlling distinction between activities which fall on one side or the other of 'charitable purpose '.
The assesses the Indian Chamber of Commerce,, was assessed for the accounting year 1963 64 on the income which arose from the three heads of arbitration fees, fees for certificates of origin and the share of profits in the firm M/s. Calcutta Licensed Measurers which issued weighment and measurement certificates charging a fee therefore the return for the assessment year showed a profit of Rs. 1,58,690/ made up of a small amount from arbitration fees, and a similar sum from fees for issue of certificates of origin but a substantial sum by way of share of income from the fees charged for weighment and measurement.
Although the Income tax officer repelled the claim OF (1) (2) [1975] 100 I.T.R. 392, 397. 837 charitable purpose ' on the view that these activities were for profit the Appellate Tribunal took a contrary view reversing the concurrent findings of the Income tax officer and the Appellate Assistant Commissioner.
The conclusion of the Tribunal was that section 2(15) applied but the High Court on a reference under section 256(1) of the Act, answered the question in favour of the Revenue.
We have indicated earlier that the various High Courts have taken contrary views.
Kerala has consistently held on facts substantially identical that section 2(15) is attracted.
Andhra Pradesh has concurred, while Calcutta and Mysore have ranged themselves on the opposite side.
A recent decision of this Court earlier mentioned has given some telling guidelines although the precise facet pressed before us may not be said to have been wholly covered by it.
The scheme of the Act may be briefly indicated to the extent it is relevant, before entering on the discussion. 'Income ' is taxable, but certain incomes shall not be included in the total incomes of the previous years of the person in receipt of the income.
Section 11 excludes from the computation income derived from property held under trust wholly for charitable purpose.
The Chamber of Commerce is a trade association which renders specific services to its members and there fore section 28 will ordinarily apply to its income, unless section 11 read with section 2(15) excludes it from taxability.
The income drawn from non members by the Chamber will clearly be taxable unless section 2(15) comes to its rescue.
Thus the pivotal issue is as to whether the three channel of income may be treated as charitable purposes and therefore eschewed by section 11 from the charging provision.
At this stage we may read section 2(15): "2(15) In this Act, unless the context otherwise requires, charitable purpose ' includes relief of the poor, education medical relief, and the advancement of any other object of general public utility not involving the carrying on of any activity for profit. ' The obvious change as between the old and the new definitions is the exclusionary provision introduced in the last few words.
The history which compelled this definitional modification was the abuse to which the charitable disposition of the statute to charitable purposes was subjected by exploiting businessmen.
You create a charity, earn exemption from the taxing provision and run big industries virtually enjoying the profits with a seeming veneer of charity a situation which exsus citated Parliament and constrained it to engraft a clause deprivatory of the exemption if the institution fulfilling charitable purposes undertook activities for profit and thus sought to hoodwink the statute.
The Finance Minister 's speech in the House explicates the reason for the restrictive condition.
He stated in the House;(l) (1) Lok Sabha Dabates, Vol.
LVl.1961, p.3073 (Aug.18,1961) 838 The definition of 'charitable purpose in that clause is it present so widely worded that it can be taken advantage of even by commercial concerns which, while ostensibly serving a public purpose, get fully paid for the benefits provided by them, namely, the newspaper industry which while running its concern on commercial lines can claim that by circulating newspapers it was improving the general knowledge of the public.
In order to prevent the misuse of this definition in such cases, the Select Committee felt that the words 'not involving the carrying on or and activity for profit ' should be added to the definition.
Beg J., in Lok Shikshana Trust (supra) has adverted to this statement as throwing light on the new provision.
The evil sought to be abolished is thus clear.
The interpretation of the provision must naturally fall in line with the advancement of the object.
Of course, there are borderline cases where it becomes difficult to decide at first sight whether the undertaking which yields profit is a deceptive device or a bonafide adventure which results in nominal surplus although substantially intended only to advance the charitable object.
Chambers of Commerce dot this country and, by and large, they have the same complex of objects.
They exist to promote the trading interests of the Commercial community and, after the Andhra Chamber of Commerce Case (supra) have been regarded as pursuing charitable purposes.
This expression, defined in section 2(15), is a term of art and embraces objects of general public utility.
But, under cover of charitable purposes, a crop of camouflaged organisations sprung up.
The mask was charitable, but the heart was hunger for tax free profit.
When Parliament found this dubious growth of charitable chameleons, the definition in section 2(15) was altered to suppress the mischief by qualifying the broad object of 'general 'public utility ' with the additive 'not involving the carrying on of any activity for profit '.
The core of the dispute before us is whether this intentional addition of a 'cut back ' clause expels the Chamber from the tax exemption zone in respect of the triune profit fetching sub enterprises undertakes by way of service or facility for the trading community.
The rival constructions put forward by counsel at the bar may now be noticed.
Shri A. K. Sen 's argument for the Chamber is that the controlling distinction between what is 'charitable purpose ' and what is not lies in discovering the dominant intent as distinguished from the subsidiary consequence, the principal object" not the incidental inflow, the profit motive of the operation as against the service oriented activity which may or may not en passant yield an income His stress, a la the Kerala cases, is on whether the activity is wrapped up, entangled and intertwined with the public utility object.
If it is, the resultant surplus is not an exigible income.
Such, certainly, are the passwords and touch stones used in several Kerala decisions.
If this be the parameter, he argues, the three activities are saved because 839 they render service, promote trade and facilitate the wheels of business to move.
They do not form activities for making profit; they are in fulfillment of the objects of the Chamber.
Shri Sharma for the Revenue reads into the amended definition a total exclusion from the charmed circle of charitable purposes all activities which are prone to produce profits.
The telling test, according to this view, is to see that the means, like the ends, are charitable, untainted by gainful stimulus and purged of the potential for profit in reality By this canon the Chamber 's desire to serve businessmen by offering arbitral or certificate facilities in return for a price is prima, facie an 'activity for profit ' unless the circumstances, express or necessarily implicit eloquently proclaim a 'no profit ' foundation for the undertaking.
The linkage is not between object of public utility and the challenged activity but between the methodology adopted for the advancement of such objects and proneness for profit flowing from such method or activity.
If this standpoint be sound, the three services which have yielded profits, although wrapped in, entangled or inter twined with the object of promoting trade interests, are still liable to tax, there being no visible limitation on the revenues that Any arise from them and these precise activities could be carried on by private individuals for profit The legal break through lies along a realistic line of reasoning taking care to avoid the extreme position of Shri Sharma which will render the last limb of section 2(15) illusory or ineffectual and as serviceable for tax exemption of charities as the appendix to the human physiology.
In our view the key to the problem is furnished not merely by a careful ,.
Took at the history of the evil and the Parliamentary debate at least the Finance Minister 's speech on the new change but the language of section 2(15) itself read in the light of the guidelines in Lok Shikshana Trust (supra) .
Taking a close up of section 2(15) with special emphasis on the last concluding words, we have to interpret 'charitable purpose ' in such manner that we do not burke any word, treat any expression as redundant or miss the accent of the amendatory phrase.
So viewed, an institution which carries out charitable purpose out of income 'derived from property held under trust wholly for charitable purposes ' may still forfeit the claim to exemption in respect of such takings or incomes as may come to it from pursuing any activity for profit.
Notwithstanding the possibility of obscurity and of dual meanings when the emphasis is shifted from 'advancement ' to 'object ' used in section 2(15), we are clear in our minds that by the new definition the benefit of exclusion from total income is taken away where in accomplishing a charitable purpose the institution engages itself in activities for profit.
The Calcutta decisions are right in linking; activities for profit with advancement of the object.
If you want immunity from taxation, your means of fulfilling charitable purposes must be unsullied by profit making ventures.
The 11 advancement of the object of general public utility must not involve the carrying on of any activity for profit If it does, you forfeit.
The Kerala decisions fall into the fallacy of emphasizing the linkage between the objects of public utility and the activity carried on.
840 According to that view,.
whatever the activity, if it is intertwined with, A wrapped in or entangled with the object of charitable purpose even if profit results therefrom, the immunity from taxation is still available.
This will result in absurd conclusions.
Let us take this very case of a Chamber of Commerce which strives to promote the general interests of the trading community.
If it runs certain special types of services for the benefit of manufacturers and charges remuneration from them, it is undoubtedly an activity which, if carried on by private agencies, would be taxable.
Why should the Chamber be granted exemption for making income by methods which in the hands of other people would have been exigible to tax ? This would end up in the conclusion that a Chamber of Commerce may run a printing press, advertisement business market exploration activity or even export promotion business and levy huge sums from its customers whether they are members of the organisation or not and still claim a blanket exemption from tax on the score that the objects of general public utility which it has set for itself implied these activities even though profits or surpluses may arise therefrom.
Therefore, the emphasis is not on the object of public utility and the carrying on of related activity for profit.
On the other hand, if in the advancement of these objects the Chamber resorts to carrying on of activities for profit, then necessarily section 2(15) cannot confer cover.
The advancement of charitable objects must not involve profit making activites.
That is the mandate of the new amendment.
The opposite position in its extreme form is equally untenable.
While Shri Sharma is right that merely because service is rendered to traders escapement from tax liability does not follow.
Every type of service oriented activity, where some charge is levied from the beneficiary and at the end of the year some surplus is left behind, does not lose the benefit of section 2(15).
For, then., one cannot conceive of any object of general public utility which can be advanced by the Chamber of Commerce.
For every such activity some fee will have to be levied if the Chamber is not to turn bankrupt and merely because a fee is levied one cannot castigate the activity as one for profit.
Therefore it is a false dilemma to talk of activity for profit as against activity rendered free.
The true demarcating line lies in between.
In our view, the ingredients essential to earn freedom from tax are discernible from the definition, if insightfully read against the brooding presence of the evil to be suppressed and the beneficial object to be served.
The policy of the statute is to give tax relief for charitable purpose, but what falls outside the pale of charitable purpose ? The institution must confine itself to the carrying on of activities which are not for profit.
It is not enough if the object be one of general public utility.
The attainment of that object shall not involve activities for profit.
What then is an activity for profit ? An undertaking by a business organisation is ordinarily assumed to be for profit unless expressly or by necessary implication or by eloquent surrounding circumstances the making of profit stands loudly negatived.
We will illustrate to illumine.
If there is a restrictive provision in the bye laws of 841 the charitable organisation which insists that the charges levied for services of public utility rendered are to be on a 'no profit ' basis, it .
clearly earns the benefit of section 2(15).
For instance, a funeral home, an S.P.C.A. Or a cooperative may render services to the public but write a condition into its constitution that it shall not charge more than is actually needed for the rendering of the services,may be it may not be an exact equivalent, such mathematical precision being impossible in the case of variables,may be a little surplus is left over at the end of the year the broad inhibition against making profit is a good guarantee that the carrying on of the activity is not for pro fit.
As an antithesis, take a funeral home or an animal welfare organisation or a super bazaar run for general public utility by an institution which charges large sums and makes huge profits.
Indubitably they render services of general public utility.
Their objects are charitable but their activities are for profit Take the case of a blood bank which collects blood on payment and supplies blood for a higher price thereby making profit Undoubtedly the blood bank may be said to be a general public utility but if it advances its public utility by sale of blood as an activity for (making) profit, it is difficult to call its purposes charitable.
It is just blood business ! In the United States, for instance, there are many funeral homes which make considerable profits.
There are super bazaars and animal welfare institutions in many countries which may be run on a profit motive.
Inevitably these activities are caught in the meshes of the tax law.
Readymade nostrums like 'dominant intent '" 'incidental profits ', 'real object ' as against 'ostensible purpose ', 'entangled ', 'wrapped in, ' 'inter twined ' and the like fail as criteria in critical cases, although they have been liberally used in judicial vocabulary.
In this branch of law verbal labels are convenient but not infallible.
We have to be careful not to be victimised by adjectives and appellations which mislead, if pressed too far, although they may loosely serve in the ordinary run of case.
To sum up, section 2(15) excludes from exemption the carrying on of activities for profit even i they are linked with the objectives of general public utility, because the statute interdicts, for purposes of tax relief, the advancement of such objects by involvement in the carrying on of activities for profit.
We appreciate the involved language we use but when legislative draftsmanship declines to be simple, interpretative complexity becomes a judicial necessity.
Lok Shikshana Trust (supra) is the latest perhaps the only case of this Court dealing directly with section 2(15) of the Act.
Khanna J., speaking on behalf of himself and Gupta J. Observed: "As a result of the addition of the words 'not involving the carrying on of any activity for profit ' at the end of the definition in section 2(15) of the Act even if the purpose of the trust is 'advancement of any other object of general public utility ', it would not be considered to be 'charitable purpose ' unless it is shown that the above purpose does not involve the carrying on of any activity for profit.
The result 842 thus of the change in the definition is that in order to bring A a case within the fourth category of charitable purpose, it would be necessary to show that ( 1 ) the purpose of the trust is the advancement of any other object of general public utility, and ( 2 ) the above purpose does not involve the carrying on of any activity for profit.
Both the above conditions must be fulfilled before the purpose of the trust can be held to be charitable purpose." * *: * "It is true that there are some business activities like mutual insurance and cooperative stores of which profit making is not an essential, ingredient, but that is so because of a self imposed and innate restriction on making profit in the carrying on of that particular type of business.
Ordinarily profit motive is a normal incidence of business activity and if the activity of a trust consists of carrying on of a business and there are no restrictions on its making profit, the court would be well justified on assuming in the absence of some indication that the contrary that the object of the trust involves the carrying on of an activity for profit." (emphasis.
ours) "By the use of the expression 'profit motive ' it is not intended that profit must in fact be earned.
Nor does the expression cover a mere desire to make some monetary gain out of a transaction or even a series of transactions.
It predicates a motive which pervades the whole series of transactions effected by the person in the course of his activity." * * * * "We are not impressed by the submission of the learned counsel for the appellant that profit under section 2(15) of the Act means private profit.
The word used in the definition given in the above provision is profit and not private profit and it would not be permissible to read in the above definition the word 'private ' as qualifying profit even though such word is not there." Beg J., spoke on the subject with different accent but drew pointed attention to one aspect: "The deed puts no condition upon the conduct of the .1 newspaper and publishing business from which we co infer that it was to be on 'no profit and no loss ' basis.
I mention this as learned counsel for the appellant repeatedly asserted that this was the really basic purpose and principle for the conduct of the business of the trust before us.
This assertion seems to be based on nothing more substantial than that the trust deed itself does not expressly make profit 843 making the object of the trust.
But, as I have already indicated, the absence of such a condition from the trust deed would not determine its true character.
That character is determined for more certainly and convincingly by the absence of terms which could eliminate or prevent profit making from becoming the real or dominant purpose of the trust.
It is what the provisions of the trust make possible or permit coupled with what had been actually done without a illegality in the way of profit making, in the case before us, under the cover of the provisions of the deed, which enable us to decipher the meaning and determine the predominantly profit making character of the trust." (emphasis, ours) We do not think it necessary to discuss the various decisions of the High Courts cited before us nor need we seek light from the English Cases either.
After all, Indian law must bear Indian impress derived from Indian life.
In All India Spinners ' Association vs Commr.
Of Income tax Bombay, (1) Lord Wright, speaking for the Judicial Committee d considering the subject of 'charitable purposes ' as justifying exemption from Income tax, observed: `It is now recognised that the Indian Act must be construed on its actual words and is not to be governed by English decisions on the topic." * .
: * *: * "The Indian Act gives a clear and succinct definition which must be construed according to its actual language and meaning.
English decisions have no binding authority on its construction and though they may sometimes afford help or guidance, cannot relieve the Indian Courts from their responsibility of applying the language of the Act to the particular circumstances that emerge under conditions of Indian life." * * * Crypto colonial inclinations have sometimes induced Indian draftsmen and jurists to draw inspiration from English law but, for reasons felicitously expressed by Lord Wright, we are adopting interpretation of section 2(15) according to the language used there and against the background of Indian life.
Coming to the facts of the present case, the criteria we have evolved have to be applied.
Among the Kerala Cases which went on the wrong test we wish lo mention one" Dharmodayam.
The assessee company was conducting a profitable business of running chit funds and its memorandum (1) [1944] 12 ; 486.
(2) C. 1.
T. vs Dharmodayam Co. 844 of association had as one of its objects to do the needful for the promotion of charity, education and industry.
The court found it possible on these facts to (grant the benefit of section 2(15) by a recondite reasoning.
If this ratio were to hold good businessmen have a highroad to tax avoidance Dharmodayam (supra) shows how dangerous the consequence can be if the provisions were misconstrued.
The true test is to ask for answers to the following question (a), Is the object of the assessee one of general public utility? (b) Does the advancement of the object involve activities bringing in moneys ? (c) If so, are such activities undertaken (i) for profit or (ii) without profit ? Even if (a) and (b) are answered affirmatively, if (c) (i) is answered affirmatively, the claim for exemption collapses.
The solution to the problem of an activity being one for or irrespective of profit is gathered on a footing or facts.
What is the real nature of the activity? one which is ordinarily carried on by ordinary people for gain '? Is there a built in prescription in the constitution against making a profit? Has there been in practice, profit from this venture ? Although this last is a weak test.
The mere fact that a service is rendered is no answer to chargeability because all income is often derived by rendering some service or other.
Further, what is an activity for profit depends on the correct connotation of the preposition. 'For ' used with the active participle of a verb means 'for the purpose of (Sec judgment of Westbury C., 1127) 'For ' has many shades of meaning.
It connotes the end with reference to which anything is done.
It also bears the sense of 'appropriate or 'adopted to ': 'suitable to purpose ' vide Black 's Legal Dictionary.
An activity which yields a profit or.gain in the ordinary course must be presumed to have been done for profit or gain.
Of course, an extreme case could be imagined where without intent or purpose an activity may yield profit.
Even so, it may legitimately be said that the activity is 'appropriate or adapted to such profit '.
We may wind up with a brief rounding off and indication on the approach.
A pragmatic condition, written or un written, proved by.
a prescription of profits or by long years of invariable practice or spelt from strong surrounding circumstances indicative of anti profit motivation such a condition will qualify for 'charitable purposes ' and legitimately get round the fiscal hook.
Short of it, the tax tackle holds you fast.
A word about the burden of proof is necessary here.
Income.
Ordinarily chargeable, can be free from exigibility only if the assessee discharges the onus of bringing himself within section 2(15).
In so doing, he has to attract and repel attract the condition that his objects are of 'general public utility ' and repel the charge that he is advancing these objects by involvement in activities for profit.
Once this broad dual basis is made out, the Revenue will not go into meticulous mathematics and charge every chance excess or random surplus; If the activity is Prone to yielding income and in fact results in profits, the 845 Revenue will examine the reality or pretence of the condition, that the activity is not for profit.
Here, one may well say: 'Suit the action to the word, the word to the action '.
If such be the legal criteria for fixing charitable purpose, low does the Indian Chamber fare ? The substantial item of income comes from the share of profits in the firm called M/s. Calcutta Licensed Measurers.
True, the issuance of weighment and measurement certificates is a great facility for traders and under the only recognised institutions arc permitted to issue such certificates.
Recognition be speaks the status, integrity and efficiency of the institution but does not transmute a service for profit into nonprofitable activity.
It is irrelevant whether this service is in implementation of or interwoven with trade promotion.
What is partinent is whether the advancement of trade promotion by issuing such certificates is done for a nominal fee conditioned by the cost of the operation, and profit making by this means is tabooed.
For there is nothing in the memorandum or articles of association which sets any limit on making a large profit this way.
And, after all, any institution.or individual may set up a weighment and measurement business as a source of income and if it is of sufficient probity and competence recognition to may well be accorded under the .
We cannot mix up or confuse the two concept.
The activity of charging fees and issuing certificates of origin valuable as a service though it be, is in not different position.
Both these activities are amenable to tax as being carried on for profit, there being nothing to show that the Chamber was undertaking this job on a 'no profit ' basis.
The presumption, if at all, is that a businessman association does a business of it.
more so when the facility is available to members and non members.
Not infrequently one comes across weighment stations where loaded trucks are weighed for payment as a business.
So also approved valuers value property as business and charge for that service.
Merely because it is carried on by a Chamber of Commerce no difference in incidents arises and tax incidence can be repelled only if the work is done explicitly on a 'no profit ' basis.
Such is not shown to be the case here.
The objects of the Chamber include settlement of disputes among traders by arbitration.
This is undoubtedly a service of general public utility preventing protracted commercial litigation.
If the fee charged for doing so is more or less commensurate with the expense the Chamber has to incur, a minor surplus will not attract tax.
But no such restriction is written into the rules governing the Chamber.
It may charge a heavy sum and spend much less for hiring experts to decide the dispute.
There is no magna carta hiding the Indian or Cochin or Bengal Chamber of Commerce not to sell arbitral justice.
Suppose ; specialist in mercantile law and practice of reputable integrity offers himself regularly for arbitration of commercial disputes for a high fee, is he not making an income? The difference between the two is as between Tweedledum and Tweedledee.
Surely, if an innate, articulated, restraint on the levy for these undoubted services to Trade existed as a fact, so as to remove the slur of activity for profit, then the umbrella of charitable purpose would protect small surpluses.
846 We hold that the incomes of the Chambers sought to be taxed are taxable.
Civil Appeal No. 2129 of 1970 is dismissed and civil Appeals Nos. 2455 to 2457 of 1972 are allowed.
Parties will bear their respective costs.
Before parting with the case we may as well make it clear that our conclusion would have been the same even without reference to or reliance on the speech of the Finance Minister we have excerpted earlier.
V.P.S. Appeals partly allowed.
| IN-Abs | Under the Income tax Act 1961 one of the items not included in the total income of an assessee for purposes of tax is under s.11 income derived from property held under trust wholly for charitable purpose.
Charitable purpose is defined in s.2 (xv).
Chambers of commerce, promoting the trade interest of the commercial community, have been regarded as pursuing charitable purposes within the meaning of s.2 (xv).
But under cover of charitable purposes C ' they have been indulging in various activities, and deriving tax free profit.
Therefore, section 2 (xv) was amended by adding a clause at the end.
Under the amended definition, unless the context` otherwise requires, charitable purpose includes the advancement of any object of general public utility not involving the carrying on of any activity for profit.
^ HELD: The income of the assesses, which are chambers of commerce, from three sources, namely, (a) arbitration fees levied by them; (b) fees collected for issuing certificates of origin; and (c) share of profit in another company for issue of certificates of weighment and measurement, which services are extended to members and non members.
that is, to be trade generally, is not entitled to the exemption, and is liable to tax.[845E G] (1) The test is to ask for answers to the following questions: (a) Is the object of the assessee one of general public utility; (b) Does the advancement of the object involve activities bringing in money? (c) If so, are such activities undertaken (1) for profit or (ii) without profit.
Even if ' (a) and (b) are answered affirmatively, if (c) (1) is also answered affirmatively the claim for exemption collapses.
[844B C] (2) Section 2 (xv) must be interpreted in such a manner that every word is given a meaning and not to treat any expression as redundant or miss the accent of the amendatory phrase.
So viewed, an institution which carries out charitable purposes out of income 'derived from property held under trust wholly for charitable purposes ' may still forfeit the claim to exemption in respect of such takings or incomes as may come to it from pursuing any activity for profit.
By the new definition the benefit of exclusion from total income is taken away where, in accomplishing a charitable purpose, the institution engages itself in activities for profit If ' it wants immunity from taxation the means of fulfilling charitable purposes must be unsullied by profit making ventures.
The advancement of the object of general public utility must not involve the carrying on of any activity for profit.
otherwise, it will lead to the absurd conclusion that a Chamber of Commerce may run a printing press, advertisement business, market exploration activity or even export promotion business and levy huge sums from its customer whether they are members of the organisation or not and still claim a blanket exemption from tax on the score that the objects of general public utility which it had set forth for itself implied these activities even though profits or surpluses may arise therefrom.
If it runs special types of services for the benefit of manufacturers and charges remuneration from them.
it us undoubtedly an activity which.
if carried on by private agencies, would be taxable.
and there is no reason why a Chamber of Commerce should be exempt.
The policy of the statute is to give tax relief for charitable purposes.
An undertaking by a business organisation is ordinarily assumed to be for profit unless expressly or by necessary implication.
Or by eloquent surrounding circumstances the making of ' profit stands clearly negatived.
For example.
if ' there is a restructure provision in the bye laws which insists that the charges levied for services of public utility rendered are to be on a 'no profit ' basis, that is, that it shall not charge more 831 than is actually needed for the rendering of the services then it earns the benefit of s.2(xv).
It may not be an exact equivalent such mathematical precision being impossible in such case and there may be little surplus at the end of the year; but the broad inhibition against making profit is a good guarantee that the carrying on of the activity is not for profit.[839F 840D. G 841C] (3) The answer to the question whether an activity is one for or not for profit depends on the facts.
An activity which yields profit or gain in the ordinary course must be presumed to have been done for profit or gain There may be activities, where` without intent or purpose the activity may yield profit.
Even then it may legitimately be said that the activity is for profit in the sense that it is ` appropriate or adapted to such profit.
[844C E F] (4) If The activity is prone to yielding income and in fact results in profit the Revenue will examine the reality or pretence of the condition that the activity is not for profit But; if the broad basis that the activity is not for profit is made out, by the assessee, the Revenue will not be meticulous and charge every chance excess or random surplus.
[844G 845A] (5) The assesses contention that the Revenue should only look at the dominant intent or real object of the assessee and that if its activity is wrapped up entangled or intertwined with a public utility object then any incidental profit arising from it is not taxable.
does not afford a valid or satisfactory test.
[841D F.] (6) Equally The contention of the Revenue that all activities which are prone to produce profits should be excluded is not correct.
[840E F] (7) In the present case the issuance of weighment and measurement certificates the issuance of certificates of origin and the settlement of disputes by arbitration are great facilities for trader of general public utility.
There is however nothing in the memorandum or articles of association of the assesses which provides for only nominal fees and sets a limit on making large profits from the services.
[845B E G H] Loka Shikshana Trust vs C.I.T. Mysore [1976] 1 S.C.R: 471.
C.I.T. vs Andhra Chamber of Commerce [1965] 55 I.T.R. 722 applied.
C.I.T. vs Dharmodayam Co. overruled.
ARGUMENTS For the appellant l.
The primary or dominant or real objects of the Indian Chamber Of Commerce are to promote protect, aid and stimulate trade, commerce and industry in India.
(Clause 3 of the Memorandum of Association).
The Income received was to be applied solely for the promotion of the objects and upon dissolution no property was to be paid or distributed among the members but was to be given or transferred to some other institution having similar objects.
(Clauses 4 and 8 of the Memorandum of Association).
It is well settled that These objects which lead to economic prosperity and enure for the benefit of the entire community are objects of general public utility and as such as charitable.
See ITR 722 Commissioner of Income tax vs Andhra Chamber of Commerce.
The Indian Chamber of Commerce provides inter alia for arbitration facilities so that trade disputes may be speedily and efficiently settled.
It further provides for certificates of origin and certificates of weighment and measurement to be issued under the under Entry 18 and Entry 6 of the Schedule to the said Act respectively These certificates can only be issued by certain bodies such as recognised chambers of commerce.
The certificates are necessary for facilitating trade.
5 L1127SCI/75 832 The carrying on of the activities of granting certificate of origin and/or weighment and measurement and arbitration are not activities for profit hut are in he nature of services and/or facilities provided to the commercial community.
As fees are charged the result at the end of the year is sometimes a loss and on times surplus.
The dominant purpose for these service is not profit making but rendering a statutory service for trade and commerce generally.
The services cannot be gratuitous as the Chamber cannot be expected to be a charitable institution like as Dharamsala.
The fees charged are related to the services rendered by way of quid pro quo.
Quid pro quo does not mean an equivalent mathematically.
If incidental to the advancement of the objects of general public utility some services are rendered for fees as a result of which income results it does not means that the objects of the Chamber involves carrying on Any activity for profit in the sense of that being. the dominent object.
The dominant or real purpose is not to earn profit or income but to serve trade and help the commercial community.
As such the above mentioned activities carried on by the Chamber will not be activities for profit.
involving in the dominant object of the Chamber.
In order to be activities for profit the involvement of profit making should be by the object and must be of such a degree or to such an extent as to lead to the influence that profit making is the real object.
Since the real or dominant objects of the Chamber are not for profit and profit is not an essential ingredient but a mere bye product of the activities of the Chamber.
The income must be held to be exempt under section 11(1) d with section 2(15) of the Act.
See The Sole Trustee Loka Shikshana Trust vs Commissioner of Income tax, Mysore.
The purpose and/or dominant object must be distinguished from the powers which are incidental to the carrying out of the objects of The Trust.
See of Income tax vs Breach Candy Swimming Bath Trust.
[1918] Appeal Cases 514 Cotman vs Brougham 4.
Under section 2(15) of the Act the words carrying on of any activity for profit must mean an activity whose dominant object is profit making and not an activity which may incidentally result in some profit as a bye product.
Of this meaning is not given then there.
will be no activity of any institution doing work of general public utility which will he exempt including activities like those of All India Spinners Association.
If the primary and dominant purpose is charitable then even if there are some incidental powers which are not charitable it will not prevent the trust from being a valid charity.
The intention will have to be gleaned from the Constitution of the Trust or the Memorandum of Association.
See Re: Trustees of The Tribune.
All India Spinners Association vs Commissioner of Income tax of Income tax vs And/1/a Chamber of Commerce Andhra Pradesh State Transport Corporation vs Commissioner of Income tax.
Under Section 11 of the Income tax Act 1961 it is the income derived from property held under trust wholly for charitable purposes which is not to be included in the total income.
The word property is .
Of wide import and can include a business or an undertaking or fees and restaurant charges etc.
All India Spinners Association vs Commissioner of Income 833 of Income tax, Bombay City vs Breach Candy Swimming Bath Trust.
K Trust, Bombay vs Commissioner of Income tax, Excess profit Tax, Bombay.
of Income tax, Kerala & Coimbatore vs P. Krishna Warriar.
7 In any event the activities of arbitration and granting certificates of origin and weighment and/or measurement are not activities "for profit".
of Income tax, Kerala v Indian Chamber of Commerce.
Commissioner of Income tax vs Kochin Chamber of Commerce.
[1975] 40 Taxation (III) 15 Commissioner of Income tax Kerala vs Ernakulam Chamber of Commerce.
As such the Chamber is entitled to exemption under section 11 read with 2(15) of the Income tax Act.
For the Respondent 1.
The Appellant Chamber of commerce was deriving income by performing three kinds of services namely providing arbitration facilities for standard weights and measurements to traders in general.
This was in furtherance of its objects clause 2(a); 2(b); 2(c); 2(d); 2(z); 3(h); 3(i); 3(p); 2(q); 3(v) The performance of such services for remuneration clearly was an activity for profit and the said activity was closely linked with.
Or involved with the advancement of the aforesaid objects of the Chamber.
Such close linking and involvement by itself rendered the object non charitable within the meaning of section 2 (15) of the Income tax Act 1961.
If the Chamber of Commerce performed the same kind of services for it members for remuneration the income so derived was certainly liable to tax under section 28(iii) of the Income tax Act, 1961.
The position became worse if the income was so derived by rendering such services to non member traders in general.
It was assumed by the Tribunal and by the High Court for which there was no warrant that the income from the said three sources was income derived from property held under trust and the case proceeded on such assumption although the High Court doubted the validity of such an assumption as is clear from the text of their judgment at pp.
76 77 of the Paper Book.
The High Court.
therefore proceeded to consider only whether the production of the income from the aforesaid three sources was involved with the advancement of any object of general public utility.
The Tribunal had held that such income was derived by carrying out the ancillary object of the Trust and not the main object although it found as a fact that the income was deriv d from; carrying on an activity for profit.
The High Court did not recognise such .
distinction and it was urged that the High Court was right.
No valid reason could be found for making a distinction between any individual or any association of persons on the one hand, and the appellant on the other hand in respect of producing taxable income by carrying on identical activities for profit.
It was beyond any doubt that ii an Individual or an association of persons had carried on similar activities from profit they would not be entitled to any exemption from tax.
The appellant therefore could not be placed at a better level especially when the words of Statute themselves had debarred it from getting the exemption.
Prior to the introduction of the qualifying clause in section 2(15) of the Current Act such bodies or 834 Organisations were undoubtedly enjoying exemption by virtue of the repealed Indian Income tax Act of 1922.
The Legislature clearly intended to remove this unreasonable distinction by adding the qualifying clause as it is found in section 2(15) of the Income tax Act, 1961.
The effect of such amendment of the definition was that the institutions otherwise regarded as charitable trusts have now been placed at par with any private organisation or individual who would render the same kind of services to the public for profit.
Unless the memorandum or articles governing a Trust or any Institution prohibated the making of profit by carrying on any activity or the earning of the profits was not ruled out and in fact profit resulted, the Court would assume that the activity was carried on for profit.
In support of this the Revenue counsel relied upon the judgment of the Supreme Court recently delivered in the case of Sole Trustee Loke Shikshana Trust There was no such prohibition in the regulations governing the activities of the Indian Chamber of Commerce and therefore its case fell squarely within the principles valid by the Supreme Court in the case of Loke Shikshana Trust.
In order that an activity might be called a business activity or any other activity for profit it was not necessary to show that it was an organised activity or that it was indulged in with a motive on making profit.
it was well established that it was not the motive of a person doing in act which decided whether the act done by him was carrying on an activity for profit .
If any activity.
business of otherwise in fact produced an income that was taxable income and was none the less so because it was carried on without the motive of producing an income.
Reference was invited in this connection to the observations o the Supreme Court in the case of P. Krishna Menon vs Commissioner of Income tax, Mysore (35 I.T.R. p.
Even in the ease of classical charities such as promotion of education and giving of medical relief no exemption is available if these two activities of charitable nature are carried on for purposes of profit.
A fortiori, the exemption will be denied in the case of advancement of an object of general public utility howsoever charitable it may otherwise be regarded in character if the advancement involved the carrying on an activity for profit.
The intention of Legislature was fully vindicated in the language employed ins.
2(15) of the Act.
|
: Criminal Appeal No. 279 of 1975.
(From the Judgment and order dated 1.9.75 of the Madhya Pradesh High Court m M. P. No. 597 of 1975) and Criminal Appeals No. 355 356 of 1975.
(From the judgment and order dated 12.11.1975 of the Allahabad Court in W.P. Nos 7428 and 6885 of 75) and Civil Appeal Nos.
1845 1849 of 1975 (From the Judgment and order dated 26.11.1975 of the Karnataka High Court in W. N. Nos. 3318, 4101, 4103, 4177 and 4178 of 1975) and Criminal Appeal No. 380 of 1975.
(Appeal by Special Leave from the Judgment and order dated 31.10.1975 of the Delhi High Court in Criminal Writ No. 149/75) and Criminal Appeal No. 41 of 1976 (Appeal by Special Leave from the Judgment and order dated 19 11 1975 of Delhi High Court in Criminal Writ No. 158 of 149/75) and Criminal Appeal No. 41 of 1976 (Appeal by Special Leave from the Judgment and order dated 31 10.75 of the Delhi High Court in Criminal Writ No. 128/75) and Criminal Appeal No. 389 of 1975 (Appeal by Special Leave from the Judgment and order dated 5/ 6/8th Dec. 1975 of the Bombay High Court in Criminal Appln.
Nos. 171, 95, 97, 99, 109, 115, 116 and 168/75) and Criminal Appeal No. 3 of 1976 (From the Judgment and order dated 12.12.1975 of the High Court of Rajasthan in D. B. Crl.
Habeas Corpus petition No. 1606 of 1975) and Applicant/Interveners 1.
Manek Ben (In, Crl. A. No. 279/75) 2.
Maharaj Jai Singh (In Crl.
A. Nos. 279, 355 356/75) 3.
M/s. Surinder Mohan & Saraj Bhan Gupta (In Crl.
A. Nos. 279 353 356/75) 4.
Mr. V.K. Singh Chowdhry (In Crl.
A. No. 355/75) 5.
Mr. Deepchand Jain (In Crl.
A, Nos. 355 356/75) 215 I. N. Shroff and H. section Parihar M. C. Nihalani, Adv.
Genl., Ram Punjwani, Dy.
Genl., for the state of Madhya Pradesh for the appellant, in Criminal Appeal No. 279/75.
Shanti Bhushan, R. P. Goyal, section section Khanduja, B. R. Agarwala C. L. Sahu and R. N. Nath, for the respondent in Criminal Appeal No. 279 of 1975.
section N. Kakar, Adv.
Girdhar Malviya and o. P. Rana for the appellant State of U. P. in criminal appeals Nos.
355 356 of 1975.
Soli J. Sorabjee, section section Khanduja, Mrs. K. Hingorani, K. N. Tripathi R. P. Goyal and Yatindra Singh for the respondent in Crl.
A. No. 355/75.
G. C. Dwivedi, section section Khanduja, Dr. N. M. Ghatate, R. P. Goyal, K. N. Tripathi and K .K.
Jha, for the respondent in Crl.
A. No. 356/75.
For the applicant/lnterveners 1.
Manek Ben M/s. section Venkataswami, C. section Vaidianatha, Hardev Singh and R. section Sodhi.
Maharaj Jai Singh A. K. Sen, R. H. Dhebar, R. C. Bhatia and B. V. Desai 3.
M/s. Surinder Mohan & Suraj Bhan Gupta M/s Sharad Manohar and R N. Nath 4.
Mr. V. K. Singh Chowdhry Mr. Santokh Singh.
Mr. Deepchand Jain M/s. Sharad Manohar and Amlan Ghosh Niren De, Attorney General for India, V. P. Raman, Addl Sol.
General, R. N. Sachthey, Girish Chandra and section P. Nayar for the appellant in Civil Appeals Nos.
1846 1849/75 and 1926/75) Rama Joise, N. M. Ghatate and section section Khanduja for respondent in CA No. 1845/75 C. K Daphtary M. Veerappa N.M Ghatate Rama Joise, S.S. Khanduja Miss Lilly Thomas, Pramod Swaroop, M. Veerappa, section Balakrishnan Sharad Manmohan, M.K. Jain, Altaf Ahmed, R.P. Goyal, K.N. Tripathi, C.C. Dwivedi and Mrs. K. Hingorani for respondent in CA No. 1848/75.
S.S. Khanduja for respondent in CA No. 1849 and R.I. 1926/75 K. N. Byra Reddy and Narayan Nettar for the appellant in CA No. 1926/75.
V. M. Tarkunde, section K. Sinha, C. K. Ratnaparkhi, section K. Verma and M. P. Jha for respondent I in Criminal A. 380/75.
216 N. M. Qazi and M. N. Shroff, for the appellants in Criminal Appeal No. 380/75.
N. M. Ghatate and section Balakrishnan for respondents 3 & 8 and 2, 4 7 in Cr. A. No. 380/75.
section M. Jain for the appellant in Cr. A. No. 3/76.
V. section Krishnan and A. V. M. Krishnan for respondent No. 2 in Criminal Appeal No. 3/76.
Niren De, Attorney Genl., V. P. Raman, Addl.
R. N. Sachthey, Girish Chandra, section P. Nayar and P. P. Rad (in Cr. A. No. 279/75 only) for the Attorney General in Crl.
As No. 279 & 355 356/75) P. Ramchandra Reddy, Adv.
and P. P. Rao for the State of Andhra Pradesh in Crl.
279, 355 356/7S. Mr. Balbhadra Prasad Singh and Mr. U. P. Singh for the state of Bihar in Crl.
279, 355 356/75.
J. N. Kaushal, Adv.
General, P. P. Rao and G. D. Gupta far the State of Haryana in Crl.
A. No. 279/75.
Bakshi Sita Ram, Adv.
General, R. N. Sachthey and section P. Nayar for the state of Himachal Pradesh in Crl.
279, 355 356/75.
O. K. Tikhu, Advocate General and Vineet Kumar for the state of Jammu and Kashmir in CA.
1845 1849 R. N. Byra Reddy, Advocate General and N. Nettar for the State of Karnataka in Crl.
A. 279 and 1845/75.
M. M. Abdul Khader, Advocate General and D. K. M. K. Nair for the State of Kerala in Crh As. 279, 35S 3S6/75.
R. W. Adik Advocate General and D. R. Dhanuka and M. N. Shroff for the state of Maharashtra in Crl.
279, 355 356/75.
J. section Wasu, Advocate General and O. P. Rana for the state of Punjab in Crl.
279, 355 356/75.
A. V. Rangam and Miss A. Subhashini for the state of Tamil Nadu in Crl.
279, 355 356/75.
section N. Kakar, Advocate General and J. M. Nanavati (O.P. Rana) for the state of Uttar Predesh in Crl.
A. 279 and CA No. 1845 1849/75.
J. M. Thakore, Advocate General, J. M. Nanavati, section K. Dholakia and R. C. Bhatia for the state of Gujarat in an appeals.
The following Judgments were delivered: RAY, C.J. These appeals are by certificates in some cases and by leave in other cases.
The state is the appellant, The respondents were petitioners in the High Courts.
217 The respondents filed applications in different High Courts for the issue of writ of habeas corpus.
They challenged in some cases the validity of the 38th and the 39th Constitution Amendment Acts, the Proclamation of Emergency by the President under Article 352 of the Constitution made on 25 June, 1975.
They challenged the legality and validity of the orders of their detention in all the cases.
The State raised a preliminary objection that the Presidential order dated 27 June, 1975 made under Article 359 of the Constitution suspending the detenus right to enforce any of the rights conferred by Articles 14, 21 and 22 of the Constitution and the continuance of emergency during which by virtue of Article 358 all rights conferred by Article 19 stand suspended are a bar at the threshold for the resonants to invoke the jurisdiction of the High Court under Article 226 of the Constitution and to ask for writs of habeas corpus.
The Judgment are of the High Courts of Allahabad, Bombay (Nagpur Bench), Delhi, Karnataka, Madhya Pradesh, Punjab and Rajasthan.
The High Courts held that notwithstanding the continuance of emergency and the Presidential Order suspending the enforcement of fundamental rights conferred by Articles 14,21 and 22 the High Courts can examine whether an order of detention is in accordance with the provisions of (hereinafter referred to as the Act), which constitute the conditions precedent to the exercise of powers thereunder excepting those provisions of the Act which are merely procedural or whether the order was necessary.
The High courts also held that in spite of suspension of enforcement of fundamental rights conferred by Articles 21 and 22 of the Constitution a person 's right to freedom from arrest or detention except in accordance with law can be enforced only where such arrest and detention except in accordance with law can be enforced only where such arrest and detention are not in accordance with those provisions of the statue which form the conditions precedent to the exercise of power under the status as distinguished from merely procedural provisions or are malafide or are not based on relevant materials by which the detaining authority could have been satisfied that the order of detention was necessary.
The High Courts held that the, High Courts could not go into the questions whether the Proclamation of Emergency was justified or whether the continuance thereof was malafide.
The High Courts did not decide about the validity of the 38th and the 39th Constitution Amendment Acts.
The 38th Constitution Amendment Act amended Articles 123, 213, 239(b), 352, 356, 359 and 360.
Broadly Stated the 38th Constitution Amendment Act renders the satisfaction of the President or the Governor in the relevant Articles final and conclusive and to be beyond any question in any Court on any ground.
As for Article 359 clause (1A) has been inserted by the 38th Constitution Amendment Act.
The 39th Constitution Amendment Act amended Articles 71, 329.
329(A) and added Entries after Entry 86 in the Ninth Schedule.
218 No arguments were advanced on these Constitution Amendment Acts and nothing thereon falls for determination in these appeals.
It is appropriate lo mention here that on 3 December, 1971 in exercise of powers conferred by clause (1) of Article 352 of the Constitution the President by Proclamation declared that a grave emergency exists whereby he security of India is threatened by external aggression.
On 25 June, 1975 the President in exercise of powers conferred by clause (1) of Article 352 of the Constitution declared that a grave.
emergency exists whereby the security of India is threatened by internal disturbances.
On 27 June, 1975 in exercise of powers conferred by clause (1) of Article 359 the President declared that the right of any person including a foreigner to move any Court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution and all proceedings pending in any Court for the enforcement of the above mentioned rights shall remain suspended for the period during which the Proclamations of Emergency made under clause (1) of Article 352 of the Constitution on 3 December, 1971 and on 25 June, 1975 are both in force.
The Presidential order of 27 June, 1975 further stated that the same shall be in addition to and not in derogation of any order made before the date of the aforesaid order under clause (1) of Article 359 of the Constitution.
It should be noted here that on 8 January, 1976 there was a notification that in exercise of powers conferred by clause (1) article 359 of the Constitution the President declares that the right of any perh son to move any Court for the enforcement of the rights conferred by Article 19 of the Constitution and all proceedings pending in any Court for the enforcements the above mentioned rights shall remain suspended for the period during which the Proclamation of Emergency made under clause (1) of Article 352 of the Constitution on 3 December 1971 and on 25 June, 1975 are in force.
The questions which fall for consideration are two .
First, whether in view of the Presidential orders date 27 June, 1975 and 8 January, 1976 under clause (1) of Article 359 of the Constitution any writ petition under Article 226 before a High Court for habeas corpus to enforce the right to personal liberty of a person detained under the Act on the ground that the order of detention or the continued detention is for any reason not under or in compliance with the Act is maintainable.
Second if such a petition is maintainable what is the scope or extent of judicial scrutiny particularly in view of the Presidential order dated 27 June, 1975 mentioning, inter alia, Article 22 of the Constitution and also in view of sub section (9) of section 16A of the Act.
The Attorney General contended that the object and purpose of emergency provisions is that the Constitution provides special powers to the Executive because at such times of emergency the considerations of state assume importance.
It has been recognised that times of grave national emergency demand grant of special power to the Executive Emergency provisions contained in Part XVIII including Articles 358, 219 359(1) and 359(1A) are constitutional imperatives.
The validity of law cannot be challenged on the ground of infringing a fundamental right mentioned in the Presidential Order under Article 359(1).
Similarly, if the Executive take any action depriving a person of a fundamental right mentioned in the Presidential order any not complying with the law such Executive action can not be challenged because such challenge would amount in substance to and would directly impinge on the enforcement of fundamental rights mentioned in the Presidential order.
The reason given by the Attorney General behind e principle is that in times of emergency the Executive safeguards the life of nation.
Challenge to Executive actions either on the ground that these are arbitrary or unlawful has been` negatived in England in Liversidge vs Anderson(l) and Greene vs Secretary of State for Home Affairs( ') and also by this Court in Sree Mohan Chowdhury vs the Chief Commissioner, Union Territory of Tripura(3) and Makhan Singh v, State of Punjab(4).
The contentions of the respondents are as follows: The arguments on behalf of the state mean that during the emergency there is no right to life or liberty.
Article 358 is more extensive as the fundamental right itself is suspended.
The Presidential order under Article 359(1) does not suspend any fundamental right.
Second, the object of Article 359(1) is to bar moving the Supreme Court under Article 32 for the enforcement of certain specified rights without affecting in any manner the enforcement of common law and statutory rights to personal liberty under Article 226 before the High Court.
Third, Article 359(1) removes the fetter in Part III but does not remove the fetters arising from the principles of limited power of the Executive under the system of checks and balances based on separation of powers.
Fourth, while the Presidential order operates only in respect of fundamental rights mentioned in the Presidential order it would not affect the rights of personal liberty at common law or under statute law or under natural law.
Fifth, Article 359(1) is not to protect illegal orders of the Executive.
The Executive cannot flout the command of Parliament relying on a Presidential older under Article 359(1).
The suspension of fundamental right or of its enforcement cannot increase the power of the executive vis a vis the individual.
Sixth, there is no reason to equate the state with the Executive.
The suspension of the fundamental right or the right to enforce it has only this consequence that it enables the Legislature to make laws violative of the suspended fundamental rights and the Executive to implement such laws.
The suspension of the fundamental right does not unable the Executive to flout legislative mandates and judicial decisions.
(1) ; (2) (3) ; (4) [196414 Sr C. R. 797.
220 Seventh, the Executive can act to the prejudice of citizens only to the extent permitted by valid laws.
The Proclamation of Emergency does not widen the Executive power of the state under Article 162 so as to empower the State to take any Executive action which it is not otherwise competent to take.
Eighth, the right to arrest is conferred by the Act on the State and their officers only if the conditions laid down under section 3 of the Act are fulfilled.
Therefore, if the conditions laid down under section 3 of the Act are not complied with by the detaining authority then the order of detention would be ultra vires the said Act.
Ninth, Habeas corpus is a remedy not only for the enforcement of he right to personal liberty,, whether under natural law or a statute but is also a remedy for the enforcement of the principle of ultra vires viz., when the detaining authority has failed to comply with the conditions laid down in section 3 of the Act.
In such a case the High Court has jurisdiction to issue a writ af haheas corpus for the enforcement of the principle of ultra vire.;.
In England it was the practice in times of danger to the state to pass what were popularly known as Habeas Corpus Suspension Acts.
Suspension did not legalise illegal arrest; it merely suspended a particular remedy in respect of particular offences.
Accordingly it was the practice in England at the close of the period of suspension to pass an Indemnity Act in order to protect official concerned from the consequences of any incidental illegal acts which they might have committed under cover of the suspension of the prerogative writ.
In England the Defence of the Realm Acts 1914 18 empowered the Executive to make regulations by order in Council for securing the public safety or for the defence of the realm.
In The King vs Hallday Ex parte Zadiq(1) the House of Lords held that a regulation was valid which authorised the Secretary of state to detain a British subject on the grounds of his hostile origin or association.
It was contended on behalf of Zadiq that there was no provision for imprisonment without trial.
The substantial contention was that general words in a statute could not take away the vested right of a subject or alter the fundamental law of the Constitution because it would be repugnant to the Constitutional tradition of the country.
The majority of the court swept aside these arguments and held that on the construction of the Act.
the Executive had unrestricted powers.
During the Second World War the Emergency Powers (Defence) Act, 1939 in England empowered the making of regulations for the detention of persons by the Secretary of state in the interests of the public safety or the defence of the realm, and for authority to enter and search any premises.
Although access to the courts was not barred during the Second World War in England the scope for judicial review of executive action (1) ; 221 was limited.
The courts could not consider whether a particular regulation is necessary or expedient for the purpose of the Act which authorised it.
The question of necessity or expediency was one for the Government to decide.
The court could, however, hold an act to be illegal as being not authorised by the regulation relied upon to Justify it.
It was open to the subject in England to challenge detention by application for a writ of habeas corpus, but such application had little chance of success in view of the decision of the House of Lords in Liversidge 's case (supra).
The House of Lords took the view that the power to detain could not be controlled by the courts, if only because considerations of security forbade proof of the evidence upon which detention was ordered.
It was sufficient for the Home Secretary to have a belief which in his mind was reasonable.
The courts would not enquire into the grounds for his belief, although apparently they might examine positive evidence of mala fides or mistaken identity.
In Greece 's case (supra) the House of Lords held that a mistake on the part of the advisory committee in failing, as was required by the regulation, to give the appellant correct reasons for his detention did not invalid the detention order.
It is noticeable how the same House expressed this view without any dissent.
Dicey states that this increase in the power of the Executive is no trifle, but it falls far short of the process known in some foreign countries as ` 'suspending the constitutional guarantees" or in France as the proclamation or a State of siege '`.
Under the Act of 1881 the Irish executive obtained the absolute power of arbitrary and preventive arrest, and could without breach of law detain in prison any person arrested on suspicion for the whole period for which the Act continued in force.
Under the Prevention of Crime (Ireland) Act, 1882 the Irish Executive was armed with extraordinary powers in the case of certain crimes to abolish right to trial by jury.
The Act of Indemnity in England is a retrospective statute which frees persons who had broken the law from responsibility for its breach, and thus make acts lawful which when they were committed were unlawful.
A Habeas Corpus Suspension Act does not free any person from civil or criminal liability for a violation of the law.
The suspension, indeed, of the Habeas Corpus Act may prevent the person arrested from taking at the moment any proceeding against the Secretary of State.
While the suspension lasts, he will not be able to get himself discharged from prison.
If the prisoner has been guilty of no legal offence then on the expiration of the Suspension Act the Secretary of State and his subordinates arc liable to actions or indictments for their illegal conduct.
Dicey stated that the unavowed object of a Habeas Corpus Suspension Act is to unable the Government to do acts which, though politically expedient may not he strictly legal.
The Parliament which suspends one of the guarantees for individual freedom must hold that a crisis has arisen when the rights of individuals must be postponed to consideration or State.
A Suspension Act would in facts fail of it.
222 main object, unless the officials felt.
assured that, as long as they bonafide, and uninfluenced by malice or by corrupt motives, carried out the policy of which the Act was visible sign, they would be protected from penalties for conduct which, though it night be technically a breach of law, was nothing more than the free exertion for the public good of that discretionary power which the suspension of Habeas Corpus Act was intended to confer Upon the executive.
The position in America is described in Cooley on the General Principles of Constitutional Law in the U.S.A. Fourth Edition.
In America he right to the writ of Habeas Corpus is not expressly declared in the Constitution, but it is recognised in the provision Article 1 in section 9 clause (2) that the privilege of writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.
In America the power in suspend the privilege is a legislative power and the President cannot exercise it except as authorised by law.
The suspension does not legalise what is doing while it continues.
It merely suspends or the time this particular remedy.
All other remedies for illegal arrests remain, and may be pursued against the parties making or continuing them.
Liberty is confined and controlled by law, whether common law or statute.
It is in the words of Burke a regulated freedom.
It is not an abstract or absolute freedom.
The safeguard of liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved.
If extraordinary powers are given, they are given because the emergency is extraordinary, and are limited to the period of the emergency.
Unsuitability of a court of law for determining matters of discretionary policy was referred to by Lord Parker in the Zamora(1) case and Lord Finlay in the Zadiq case (supra).
In the Liversidge 's case (supra) it was held that the.
court is not merely an inappropriate tribunal, but one the jurisdiction of which is unworkable and even illusory in these cases.
A court of law could not have before it the information on which the Secretary acts still less the background of statement and national policy what is and what must determine the action which he takes upon it.
The Liversidge case (supra) referred to these observations in the Zadiq case (supra) "However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely, national success in the war or escape from national plunder or enslavement".
Liberty is itself the gift of the law and may by the law be forfeited or abridged.
There is no record of any life of an individual being taken away either in our country during emergency or in England or America during emergency in their countries.
It can never be reasonably assumed that such a think will happen.
Some instances from different countries were referred to by some counsel for the respondents as to what happened there when people were murdered in gas chambers or (1) 223 people were otherwise murdered.
Such instances are intend to produce a kind of terror and horror and are hortative in character.
People who have faith in themselves and in their country will not paint pictures of diabolic distortion and mendacious malignment of the governance of the country.
Quite often arguments are heard that extreme examples the given to test the power.
If there is power, extreme examples will neither add to the power nor rob the same.
Extreme examples tend only to obfuscate reason and reality.
The reffect of the Suspension of Habeas Corpus Acts and of Indemnity Acts in England has been to give every man security and confidence in periods of public danger or apprehension.
Rarely, however, has this been suffered without jealousy, hesitation and remonstrance.
Whenever the perils of the State have been held sufficient to warrant this sacrifice of personal liberty, no Minister or Magistrate has been suffered to tamper with the law at his discretion.
Where the Government believes the State be threatened by traitorous conspiracies during times of grave emergencies the rights of individuals of ordinary times become subordinate to considerations of the State.
The pre eminent questions are four.
First, is the Presidential order under Article 359 a bar at the threshold Second, is Article 21 the sole repository of right to the and personal liberty.
Third is the Presidential order subject to the rubric of Rule of Law ? Fourth is section 16A(9) of the Act a rule of evidence ? The first question turns on the depth and content of the Presidential order.
The vital distinction between Article 358 and Article 359 is that Article 358 suspends the rights only under Article 19 to the extent that the Legislature can make laws contravening Article 19 during the operation of a Proclamation of Emergency and the Executive can take action which the Executive is competent to take under such laws.
Article 358 does not suspend any fundamental right.
While a Proclamation of Emergency is in operation the Presidential order under Article 359(1) can suspend the enforcement of any or all fundamental rights.
Article 359(1) also suspends any pending proceedings for the enforcement of such fundamental right or rights.
The purpose and object of Article 359(1) is that the enforcement of any fundamental right mentioned in the Presidential order is barred or it remains suspended during the emergency.
Another important distinction between the two Articles is that Article 355 provides for indemnity where as Article 359(1) does not Article 359(1A) is on the same lines as Article 358 but Article 359(1A) now includes all fundamental rights which may be mentioned in a Presidential order and is therefore much wider than Article 358 which includes Article 19 only.
A person can enforce a fundamental right both in the case of law being made in violation of that right and also if the Executive acts in non compliance with valid laws or acts without the authority of law.
It cannot be said that the scope of Article 359(1) is only to restrict the application of the Article to the Legislative field and not to the Acts of the Executive.
The reason is that and enforcement of the fundamental rights mentioned in the Presidential order is barred 224 and any challenge either to law or to any act of the Executive on the ground that it is not in compliance with the valid law or without authority of law will amount to enforcement of fundamental rights and will, therefore, be within the mischief of the Presidential order.
The effect of the Presidential order suspending the enforcement of fundamental r right amounts to bar the locus standi of any person to move the court on the ground of violation of a fundamental right.
The Constitution is the mandate.
the Constitution is the rule of law.
No one can arise above the rule of law in the Constitution.
The decisions of this Court in Mohan Chowdhury 's (supra) case, Makhan Singh 's (supra) case and Dr. Ram Manohar Lohia vs State of Bihar & Ors (1) are that any court means all courts including this Court and high Courts and the right to initiate legal proceedings.
A person can enforce fundamental rights in this Court under Article 32 as well as in the High Courts under Article 226.
It is idle to suggest that the object of Article 359(1) is that the right to move this Court only is barred and not the right to move any High Court.
Article 226 does not provide a guaranteed fundamental right like Article 32.
This guaranteed right under Article 32 itself may be suspended by a Presidential order under Article 359(1).
In such a case it could not be said that the object of the makers of the Constitution is that a person could not move this Court for the enforcement of fundamental rights mentioned in the Presidential order but could do so under article 226.
the bar created by.
Article 359(1) applies to petitions for the enforcement of fundamental rights mentioned in the Presidential order whether by way of an application under Article 32 or by way of any application under Article 226.
[See Makhan Singh 's case (supra) and Ram Manohar Lohia 's case (supra)].
It is incorrect to say that the jurisdiction and powers of this Court under Article 32 and of the High Courts under Article 226 are virtually abolished by the Presidential order without any amendment of the Constitution.
No amendment of the Constitution is necessary because no jurisdiction and power either of this Court or of the High Court is taken away.
When a Presidential order takes away the locus standi of the detenus to move any court for the enforcement of fundamental rights for the time being the jurisdiction and powers of this Court and of the High Courts remain unaltered Article 359(1) is not directed against any court.
It is directed against an individual and deprives him of his locus standi.
The courts cannot either increase or curtail the freedom of individuals contrary to the provisions of the Constitution.
The courts interpret the Constitution and the laws in accordance with law and judicial conscience and not emotion.
It is wrong to say that the Executive has asked or directed any one not to comply with the conditions of the Act.
The question is not whether the Executive should comply or should not comply with the Act but whether a detenu has a locus standi to move any court for a writ in the nature of habeas corpus of the ground of non compliance with the provisions of the Act.
(1) ; 225 In period of public danger or apprehension the protective law which gives every man security and confidence in times of tranquility has to give way to interests of the State.
The opinion in England has been that when danger is imminent, the liberty of the subject is sub ordinated to the paramount interests of the State.
Ring leaders are seized and outrages anticipated.
Plots are disconcerted, and the dark haunts of conspiracy filled with distrust and terror (See May Constitutional History of England, Vol.
l, pp. 130 135).
While the courts of law are in normal times peculiarly competent to weigh the competing claims of individuals and government they are in equipped to determine whether a given configuration of events threatens the life of the community and thus constitutes an emergency.
Neither are they equipped, once an emergency has been recognised particularly a war emergency or emergency on account of security of the country being threatened by internal aggression to measure the degree to which the preservation of the life of the community may require governmental control of the activities of the individual.
Jurists do not have the vital sources of information and advice which are available to the executive and the legislature; nor have they the burden of formulating and administering the continuing programme of the government, and the political responsibility of the people, which, though intangibles, are of crucial importance in establishing the content within which such decisions must be made.
Article 359(1) makes no distinction between the threat to the security of India by war or external aggression on one hand and threat to the security of India by internal disturbance on the other.
In fact, both situations are covered by the expression "grave emergency" in Article 352(1).
Apart from Article 359(1) all provisions of the Constitution laying down the consequences of a Proclamation of Emergency under Article 352(1) would apply to both situations.
The consequences of a Proclamation of Emergency under Article 352(1) of our Constitution are much wider than in England or America.
Article 353 provides that the executive power of the Union shall extend to giving of directions to any State as to manner in which the executive power thereof is to be exercised.
The exercise of such executive power by the Union totally displaces the provisions of Article 162.
Non compliance with directions of the Union Executive under Article 353 by any State Executive may attract the provisions of Article 356 and the President 's Rule may be imposed on that State.
In such an event, Parliament may, under Article 357(1) confer on the President the power of the Legislature of that State to make laws or to delegate such legislative power to any other authority.
In such a situation, the federal structure and representative Government on which the Constitution is based may be completely changed in the State or States concerned.
Article 250 provides that during the operation of Proclamation of Emergency Parliament may make laws with respect to any of the matters enumerated in the State list.
The Federal Structure and representative government may suffer its full place in that situation.
17 833 SCI/76. 226 on the expiry of the operation of the Presidential order under Article 359(1), the infringement of the fundamental rights mentioned in the order, either by the legislative enactment or by an executive action, may be challenged in a court of law and if after such expiration Parliament passes an Act of Indemnity, the validity and the effect of such legislation may have to be scrutinised.
[See Makhan Singh 's case (supra) at 813].
The provisions in our Constitution relating to emergence, are of wide amplitude.
The Executive is armed with special powers because individual interests are subordinated to State security.
If law is invalid vis a vis fundamental rights there cannot be any challenge during the operation of Articles 358 and 359 on the ground that law violates fundamental rights.
It is contradictory to say that there can yet be challenge to orders under that law as being not in accordance with law.
Article 19 is a prohibition against law.
Article 19 has nothing to do with the Executive.
Law under Article 21 can be punitive or preventive.
In Article 22 reference is made to grounds and representation in cases of preventive detention.
If enforcement of Article 22 is suspended one is left with Article 21.
The Act in the present case is law.
The Executive orders are under that law.
Any allegation that orders are not under that law will not rob the orders of the protective umbrella of Article 359.
The challenge by a detenu that law is broken will be enforcement of Article 21 because law contemplated under Article 21 is substantive as well as procedural law.
A law can be broken either of substantive or procedural parts.
Neither enforcement of nor relief to personal liberty is based on Article 19.
No executive action is valid unless backed by law.
In the present cases there is law authorising detention.
In the present cases, the writs questioned the validity of detention.
The Legislature under Article 358 is authorised to act in breach of Article 19.
The executive can act only in terms of that law.
If this is pre emergency law it has to satisfy Part III of our Constitution.
If it is emergency law it can violate Article 19 because it is protected by Article 358.
Under Article 359 the Presidential orders have been of two types.
on 3 November, 1962 in exercise of powers conferred by clause (1) of Article 359 of the Constitution the President declared that "the right of any person to move any court for the enforcement of the rights conferred by Article 21 and Article 22 shall remain suspended for the period during which the Proclamation of Emergency issued under clause (1) of Article 352 on 26 October, 1962 is in force, if such a person has been deprived of any right under the Defence of India ordinance 1962 or of any rule or order made thereunder".
the 1975 Presidential order under Article 359(1) does not have the words "if such a person has been deprived of any such right under the Defence of India ordinance 1962 or any rule or order made thereunder".
In other words, the 1962 Presidential order is limited to the condition of deprivation of rights under the Defence of India ordinance or any rule or order made thereunder whereas in the 1975 Presidential order no statute is mentioned.
The illegality of orders was challenged in 227 Makhan Singh 's case (supra) in spite of the Presidential order under the 1962 Proclamation on the ground that the impeached orders are not in terms of the statute or they are made in abuse of law.
The decisions of this Court in Mohan Chowdhury 's and Makhan Singh 's cases (supra) are that during the operation of a Proclamation of emergency no one has any locus standi to move any court for the enforcement of any fundamental rights mentioned in the Presidential Order.
The ratio must necessarily apply to Executive acts because Executive acts are challenged on the grounds of being contrary to law and without the authority of law.
The submission of the respondents that a person in detention can come to a court of law in spite of the Presidential order under Article 359(1) and contend that a habeas corpus should be issued for his release or that the Executive should answer the detenu 's challenge that the Act complained of is without authority of law or the challenge of the detenu that the provisions of the Legislative Act under which the detention has been made have not been complied with are all rooted in the enforcement of fundamental rights to liberty under Articles 21 and 22.
If courts will in spite of the Presidential order entertain such applications and allow the detenus to enforce to start or continue proceedings or enforce fundamental rights.
Article 359(1) will be nullified and rendered notice.
This Court in Makhan Singh 's case (supra) said that if there was challenge to the validity of the detention order based on any right other than those mentioned in the Presidential order that detenu 's right to move any court could not be suspended by the Presidential order because the right was outside Article 359(1).
This was explained by stating that if the detention was challenged on the ground that it contravened the mandatory provisions of the relevant Act or that it was malafide and was proved to be so, the bar of the Presidential order could have no application.
This observation in Makhan Singh 's case (supra) is to be understood in the context of the question that arose for decision there.
Decision on a point not necessary for the purpose of or which does not fall to be determined in that decision becomes an obiter dictum [See Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors.
vs Union of India(1).
In Makhan Singh 's case (supra) the detention orders which were the subject matter of the judgment were orders made by the Executive under the Defence of India ordinance or Act and rules and orders made thereunder which was the express condition for detention in respect of which the Presidential order of 1962 under Article 359(1) applied.
The Presidential order in the present case is on the face of it an unconditional order and as such there is the vital and telling difference between the effect of the Presidential order of 1962 and the present Presidential order.
It is obvious that the Government fully conscious of the Presidential order of 1962 and its effect as determined by the decisions of this Court in Makhan Singh 's case (supra) and subsequent (1) at pp.
97 98, 193 194.
228 cases deliberately made the present Presidential order an unconditional order under Article 359(1).
Reference may be made to State of Maharashtra vs Prabhakar Pandurang Sangzgiri and Anr.(1) which clearly pointed out that the Presidential order of 1962 was a conditional one and therefore if a person was deprived of his personal liberty not under the Act or rules and orders made thereunder but in contravention thereof, his right to move the courts in that regard would not be suspended The decision of this Court in Pandurang 's case (supra) is by the Constitution Bench of five learned Judges, three of whom were on the Constitution Bench of seven learned Judges deciding Makhan Singh 's case (supra).
In Pandurang 's case (supra) the ratio was that if a personal was deprived of his personal liberty not under the Act or rules and orders made thereunder but in contravention thereof, his right to move the courts in that regard was not suspended It, therefore, follows from the decisions in Pandurang 's case and Makhan Singh 's case (supra) that the ratio in both the cases was that the 1962 Presidential order being a conditional one the enforcement of rights under Articles 21 and 22 was suspended only to the extent of the conditions laid down in the Presidential order and the suspension could not operate in areas outside the conditions.
There is no aspect whatever.
Of any condition in the present Presidential order.
Therefore, the decisions in Makhan Singh 's case (supra) and subsequent cases following it have no application to the present cases where the suspension is not hedged with any condition of enforcement of any right under Articles 21 and 22.
The conclusion for the forging reasons is that the Presidential order is a bar at the threshold.
The heart of the matter is whether Article 21 is the sole repository of the right to personal liberty.
If the answer to that question be in the affirmative the Presidential order will be a bar.
The contentions of the Attorney General are two fold.
First, the legal enforceable right to personal liberty for violation thereof by the Executive is a fundamental right conferred by the Constitution and is embodied in Article 21.
Second, apart from Article 21 the right to personal liberty against the Executive is neither a common law right nor a statutory right nor a natural right.
He relies on three decisions.
The earliest is Girindra Nath Banerjee vs Birendra Nath Pal(2).
The others are King Emperor vs Sibnath Banerjee(3) and Makhan Singh 's case (supra).
In the first two decisions it has been held that the right to habeas corpus is only under section 491 of the Code of Criminal Procedure.
In Makhan Singh 's case (supra) it has been said that this right under section 491 became embodied in Article 21.
The statutory right under section 491 of the Code of Criminal Procedure has been deleted from the new Code of Criminal Procedure which came into effect on 1 April, 1974.
(1) ; (2) I. L,.
R. (3) 72 I. A. 241 229 The arguments on behalf of the respondents are that the right to life and personal liberty is not only in Article 21 but also under common law and statutes for these reasons.
The right to personal liberty is contained in Articles 19, 20 and 22, and, therefore, Article 21 is not the sole repository to personal liberty.
The respondents rely on the decision is Rustom Cavasjee Cooper vs Union of India(1) where it was said that the ruling in A. K. Gopalan vs the State of Madras(2) that Articles 19 and 22 are mutually exclusive no longer holds the field.
The respondents also rely on the decisions if Shombhu Nath Sankar vs The state of West Bengal & Ors.(1), Haradhan Saha & Anr.
vs The State of West Bengal & Ors.(4) and Khudiram Das vs The State of West Bengal & Ors.(5) in support the proposition that these decisions followed the ruling in the Bank Nationalisation case (supra).
The respondents contend that the Presidential order bars enforcement of rights under Articles 14, 19, 21 and 22 but it is open to the respondents to enforce violation of right under Article 20.
The other reasons advanced by the respondents are dealt with hereinafter.
The majority view in His Holiness Kesavananda Bharati Sripadagalavaru vs State of Kerala(6) is that there are no natural rights.
fundamental rights in our Constitution are interpreted to lie what is commonly said to be natural rights.
The only right the life and liberty is enshrined in Article 21.
In A. K. Gopalan 's case (supra) it has been said that to read law as meaning natural law is to lay down vague standards.
Law means law enacted by the State.
Law must have some firmness.
Law means positive State made law.
Article 21 has been interpreted in A. K. Gopalan 's case (supra) to include substantive as well as procedural law in the phrase "procedure established by law".
The reason is obvious.
A law providing for procedure depriving a person of liberty must be a law made by statute.
P. D. Shamdasani vs Central Bank of India Ltd.(7) held that Article 21 is prohibition against unauthorised executive action.
In Shrimati Vidya Verma through next friend R. V. section Mani vs Dr. Shiva Narain Verma(8) law in Article 21 has been held in mean State made law.
In Makhan Singh 's case (supra) it was decided that during the subsistence of the Presidential order suspending the enforcement of fundamental rights neither a petition under Article 32 nor a petition under Article 226 could be moved invoking habeas corpus.
An application invoking habeas corpus under section 491 of the Code of Criminal Procedure cannot similarly be moved in the High Court.
Part III of our Constitution confers fundamental rights in positive as well as in negative language.
Articles 15(1), 16(1), 19, 22(2).
(1) ; (2) (3) ; (4) ; (S) ; (6) [1973] Supp.
section C. R. 1.
(7) ; (8) ; 230 22(5), 25(1), 26, 29(1), 30 and 32(1) can be described to be Articles in positive language.
Articles 14, 15(2), 16(2), 20, 21, 22(1), 22(4), 27, 28(1), 29(2), 31(1) and (2) are in negative language.
It is apparent that most categories of fundamental rights are in positive as well as in negative language.
A fundamental right couched in negative language accentuates by reason thereof the importance of that right.
The negative language is worded to emphasise the immunity from State action as a fundamental right.
[See The State of Bihar vs Maharajadhiraja Sir Kameshwar Singh of Darbhanga and ors (1) ] These fundamental rights conferred by our Constitution have taken different forms.
Some of these fundamental rights are said to have the texture of Basic Human Rights (See A. K. Gopalan 's case (supra) at pp.
96 97, 248, 249, 293 and Bank Nationalisation case (supra) at pp.
568 71, 576 78).
Article 31(1) and (2) subordinate the exercise of the power of the State to the concept of the Rule of Law enshrined in the Constitution.
(See Bank Nationalisation case (supra) at p. 568).
Similarly Article 21 is our Rule of Law regarding life and liberty.
No other rule of law can have separate existence as a distinct right.
The negative language of fundamental right incorporated in Part III imposes limitations on the power of the State and declares the corresponding guarantee of the individual to that fundamental right.
The limitation and guarantee are complementary.
The limitation of State action embodied in a fundamental right couched in negative form is the measure of the protection of the individual.
Personal liberty in Article 21 includes all varieties of rights which go to make personal liberty other than those in Article 19(1)(d).
(see Kharak Singh vs State of U.P. & Ors.(2).
The Bank Nationalisation case (supra) merely brings in the concept of reasonable restriction in the law.
In the present appeals, the Act is not challenged nor can it be challenged by reason of Article 358 and Article 359(1A) and the Presidential order mentioning Article 19 as well.
If any right existed before the commencement of the Constitution and the same right with its same content is conferred by Part III as a fundamental right the source of that right is in Part III and not in any pre existing right.
Such pre Constitution right has been elevated by Part III as a fundamental right.
The pre existing right and the fundamental right have to be grouped together as a fundamental right conferred by the Constitution.
See Dhirubha Devisingh Gohil vs The State of Bombay(3).
If there is a pre Constitution right which is expressly embodied as a fundamental right under our Constitution, the common law right has no separate existence under our Constitution.
(See B. Shanknra Rao Badami & Ors.
vs State of Mysore & Anr.(4).
If there be any right other than and more extensive than the fundamental right in Part III, such right may continue to exist under Article 372.
(1) at 988 89.
(2) [1964] 1 section C. R. 332.
(3) ; at 693 97.
(4) [19691 3 section C. R. 1 at 11 13 231 Before the commencement of the Constitution the right to personal liberty was contained in Statute law, e.g. the Indian Penal Code, the Criminal Procedure Code as also in the common law of Torts.
In the event of any wrongful infringement of the right to personal liberty the person affected could move a competent court by way of a suit for false imprisonment and claim damages.
Suits for false imprisonment are one of the categories of law of Torts.
The common law of Torts prevailed in our country before the Constitution on the basis of justice, equity and good conscience.
(See Waghela Rajsanji vs Shiekh Masludin & Ors.(1) Satish Chandra Chakravarti vs Ram Doyal Deo and Baboo s/o Thakur Dhobi vs Mt. Subanshi w/o Mangal Dhobi(3).
This principle of justice, equity and good conscience which applied in India before the Constitution is generally known as the English Common Law.
Apart from the law of Torts, there was no civil remedy for unlawful infringement of the right to personal liberty in India before the Constitution.
After the amendment of section 491 of the Code of Criminal Procedure in 1923, the right to obtain a direction in the nature of a habeas corpus became a statutory right to a remedy in India.
After 1923 it was not open to any party to ask for a writ of habeas corpus as a matter of common law.
(See Makhan Singh 's case (supra) at pp 818 19; District Magistrate, Trivandrum vs K. C. Mammen Mappillai(4), Matthen vs District Magistrate, Trivandrum(5), Girindra Nath Banerjee 's case (supra) and Sibnath Banerjee 's case (supra).
The provisions of section 491 of the Criminal Procedure Code have been repealed recently as being superfluous in view of Article 226.
(See 41st Report of Law Commission of India (Vol.1) p. 307).
The present appeals arise from petitions filed in High Courts for writs in the nature of habeas corpus.
The statutory right to remedy in the nature of habeas corpus under section 491 of the Criminal Procedure Code cannot be exercised now in view of the repeal of that section.
Even if the section existed today it could not be exercised as a separate right distinct from the fundamental right, the enforcement of which is suspended by the Presidential order as was held by this Court in Makhan Singh case (supra) at pp.
818 825.
There was no statutory right to enforce the right to personal liberty other than that in section 491 of the Criminal Procedure Code before the commencement of the Constitution which could be carried over after its commencement under Article 372.
Law means enacted law or statute law.
(See A. K. Gopalan 's case (supra) at pp.
112, 199, 276, 277, 288, 307, 308, 309, 321, 322).
It follows that law in Article 21 will include all post constitutional statute law including the Act in the present case and by virtue of Article 372 all pre constitutional statute law including the Indian Penal Code and the Criminal Procedure Code.
The expression "procedure established by law" includes substantive as well as procedural law.
(See A. K. Gopalan 's case (supra) at p. 111 and section Krishnan & ors.
vs The State of Madras(6).
It means (1) 14 I. A 59 at 96.
(2) I.L.R. at 407 10, 425.
(3) A.I.R. 1942 Nag.
(4) I.L.R. (5) L.R. 66 I.A. 222.
(6) ; at p. 639.
232 some step or method or manner of procedure leading upto deprivation of personal liberty.
A law depriving a person of personal liberty must be a substantive and procedural law authorising such deprivation.
It cannot be a bare law authorising deprivation of personal liberty.
The makers of the Constitution had the Criminal Procedure Code in mind.
The repealed Criminal Procedure Code as well as the present Criminal Procedure Code has substantive as well as procedural provisions.
The 13 substantive as well 35 the procedural parts in a law depriving a person of personal liberty must be strictly followed.
There is no distinction between the expression "save by authority of law" in Article. 31(1) and the expression "except by authority of law" in Article 265.
Laws under Article 31(1) must lay down a procedure containing reasonable restrictions.
Law under Article 265 also lays down a procedure.
Therefore, there is no difference between the expression "except according to procedure established by law" in Article 21 and the expression "save by authority of law" in Article 31(1) or the expression "except by authority of law" in Article 265.
When Article 21 was enacted it would be a blunder to suggest that the founding fathers only enshrined the right to personal liberty according to procedure and not frame the constitutional mandate that personal liberty could not be taken except according to law.
The Attorney General rightly submitted at the outset that Article 21 confers a fundamental right against the Executive and law in that Article means State law or statute law.
In the present appeals, the respondents allege that section 3 of the Act has not been complied with.
In the present appeals the Act is not challenged nor can it be challenged on the ground of infringement of Article 19 by reason of Articles 358, 359(1) and the Presidential order.
It has been pointed out earlier that non compliance with the provisions of the Act cannot be challenged as long as the Presidential order is in force.
Article 20 states that no person shall be prosecuted and published for the same offence more than once.
The present appeals do not touch any aspect of Article 20.
The reason why reference is made at this stage to Article 20 is to show that Article 20 is a constitutional mandate to the Judiciary and Article 21 is a constitutional mandate to the Executive.
The respondents contend that "State" in Article 12 will also include the Judiciary and Article 20 is enforceable against the Judiciary in respect of illegal orders.
The answer is that Article 20 is a prohibition against the Judiciary in the cases contemplated there.
If a person is detained after the Judiciary acts contrary to the provision, in Article 20 such detention cannot be enforced against the Judicially.
In the event of the Judiciary acting contrary to the provisions in Article 20 such, detention can be challenged by moving the court against the Executive for wrongful detention or conviction or punishment as the case may be.
The expression "No person shall be prosecuted for the same offence more than once" in Article 20 would apply only to the Executive The decision in Makhan Singh 's case (supra) is that fundamental rights cannot be enforced against the Judiciary in case of illegal 233 orders.
The decision in Ram Narayan Singh vs The State of Delhi & Ors.(1) is no authority for the proposition that fundamental rights can be enforced against the Judiciary.
This Court held that the detention of Ram Narayan was illegal because Ram Narayan was being detained without any order of remand by the Magistrate.
In Ram Narayan 's case (supra) there was no aspect of the bar.
under Article 359.
It is not correct to say that the suspension of fundamental rights or of their enforcement can increase the power of the Executive.
The effect of suspension or enforcement of fundamental rights is that an individual cannot move any court for the enforcement of his fundamental right to personal liberty for the time being;.
Reference to Articles 256, 265 and 361 has make by the respondents to show that Article 21 is not the repository of rights to life and liberty.
These references arc irrelevant.
Article 256 do.
not confer any right on any person.
It deals with relations between the Union and the State.
Article 265 has nothing to do with right to personal liberty.
Article 361 (3) refers to the issue of a process from any court which is a judicial act and not any Executive action.
In any event, these Articles have not relevance in the present appeals.
Reference was made by the respondents to an accused filing appeal relating to criminal proceedings to show that Article 21 is not the sole respository of right to life and liberty.
In a criminal proceeding the accused defends himself against the accusation of an offence against him.
He does not move any court for the enforcement of his fundamental right of personal liberty.
In an appellant against the order of conviction the accused challenges the correctness of the judicial decision.
An appeal or revision is a continuation of ' the original proceeding.
(See Garikapatti Veeraya vs N. Subbiah Choudhury(2) and Ahmedabad Mfg. & Calico Pvt. Co. Ltd. vs Ram Tahal Ramnand & Ors.(3).
The respondents posed the question whether a decree given against the Government could be enforced because of the Presidential order.
This is irrelevant.
However, a decree conclusively determines the rights of the parties in the suit and after a decree is passed the right of the decree holder is not founded on the right which is recognised by the decree but on the decree itself.
This right arising from a decree is not a fundamental right, and, therefore, will not be prima facie covered by a Presidential order under Article 359(1).
The other examples given by the respondents are seizure of property by Government, requisition by Government contrary to Articles 31 and 19(1) (f).
If any seizure of property is illegal or in acquisition or requisition is challenged it will depend upon the Presidential order to find out whether the proceedings are for the enforcement of fundamental rights covered by the Presidential Order (1) ; (2) ; (3) ; 234 Fundamental rights including the right to personal liberty are enforced by the Constitution.
Any pre Constitutional rights which are included in Article 21 do not after the Constitution remain in existence which can be enforced if Article 21 is suspended.
If it be assumed that there was any pre constitutional right to personal liberty included in Article 21 which continued to exist as a distinct and separate right then Article 359(1) will be an exercise in futility.
In Makhan Singh 's case (supra) there was not suggestion that apart from Article 21 there was any common law or pre Constitution right to personal liberty.
The theory of eclipse advanced on behalf of the respondents is untenable.
Reliance was placed on the decision in Bhikaji Narain Dhakras & Ors.
vs The State of Madhya Pradesh & Anr.(1).
The theory of eclipse refers to pre constitutional laws which were inconsistent with fundamental right.
By reason of Article 13 (1) such laws could not become void but became devoid of legal force.
Such laws became eclipsed for the time being.
The theory of eclipse has no relevance to the suspension of the enforcement of fundamental rights under Article 359 (1) .
The constitutional provisions conferring fundamental rights cannot be said to be inconsistent with Article 13 (1) .
Article 21 is not a common law right.
There was no pre existing common Law remedy to habeas corpus.
Further, no common law right which correspond 's to a fundamental right can exist as a distinct right.
apart from the fundamental right.
See Dhirubha Devisingh Gohil 's vs The State of Bombay (supra) and B. Shankar Rao Badami 's , case (supra).
In Gohil 's case (supra) the validity of the Bombay Act of 1949 was challenged on the ground that it took away or abridged fundamental rights conferred by the Constitution.
The Act was held to be beyond question in view of Article 31 B which had been inserted in the Constitution by the First Amendment and the Act being mentioned as Item 4 of the 9th Schedule.
It was said that one of the rights secured by Part III of our Constitution is a right that the property shall be acquired for a public purpose and under a law authorising such acquisition and providing for compensation.
That is also the very right which was previously secured to a person under section 299 of the Government of India Act, 1935.
is Court said that what under the Government of India Act was a provision relating to the competency of the Legislature, was also clearly in the nature of a right of the person affected.
The right under Article 299 which was pre existing, became along with other fundamental rights for the first time secured by our Constitution when grouping them together as fundamental rights.
The respondents gave the example that although section 12(2) of the Act makes it obligatory on the Executive to revoke the detention order and if the Executive does not do so such Executive action will amount to non compliance with the Act.
Here again, the detenu (1) ; 235 cannot enforce any statutory right under the Act for the same reason that it will amount to enforce his fundamental right to personal liberty by contending that the Executive is depriving him of his personal liberty not according to "procedure established by law".
Similarly, the example given of an illegal detention of a person by a Police officer will be met with the same plea.
An argument was advanced on behalf of the respondents that if n pre existing law is merged in Article 21 there will be conflict with Article 372.
The expression "law in force" in Article 372 cannot include laws which are incorporated in the Constitution viz., in Part III.
The expression "law" in Articles 19(1) and 21 takes in statute law.
The respondents contended that permanent law cannot be repealed by temporary law.
The argument is irrelevant and misplaced.
The Presidential order under Article 359(1) is not a law.
The order does not real any law either.
The suggestion that Article 21 was intended to afford protection to life and personal liberty against violation lay private individuals was rejected in Shamdasani 's case (supra) because there cannot be any question of one private individual being authorised by law to deprive another of his property or taking away the life and liberty of any person by procedure established by law.
The entire concept in Article 21 is against Executive action.
In Vidya Verma 's case (supra) this Court said that there is no question of infringement of fundamental right under Article 21 where the detention complained of is by a private person and not by a State or under the authority or orders of a State.
The Act in the present case is valid law and it has laid down procedure of applying the law.
The validity of the Act has not been challenged and cannot be challenged.
The Legislature has competence to make the law.
The procedure? therefore.
cannot be challenged because Articles 21 and 22 cannot be enforced.
The suggestion of the respondents that the power of the Executive is widened is equally untenable.
The suggestion on behalf of the respondents that the right to private defence is available and if any one resorted to private defence in resisting detention there might be civil war is an argument to excite emotion.
If there are signs of civil wars as the respondents suggestion, it is for the Government of our country to deal with the situation.
It is because of these aspects that emergency is not justifiable because no court can have proper standard to measure the problems of emergency in the country.
If any person detained finds that the official has the authority to arrest him no question of resistance arises and if there is no authority the same cannot be challenged during the operation of the Presidential order but the person shall have his remedy for any false imprisonment after the expiry of the Presidential order.
The respondents submitted that if Article 21 were the repository of a right to personal liberty it would mean that Article 21 destroyed pre existing rights and then made a fresh grant.
There is no 236 question of destruction of any right.
Our fundamental rights came into existence for the first time under the Constitution.
The fact that section 491 of the old Criminal Procedure Code has been abolished in the new Code establishes that the pre existing right was embodied as a fundamental right in the Constitution.
The right to personal liberty because identified with fundamental right to personal liberty under Article 21.
The third question is whether Rule of law overrides the Presidential Order.
The Presidential Order does not alter or suspended any law.
The Rue of law is not a mere catchword or incantation.
Rule of Law is not a law of nature consistent and invariable at all times and in all circumstances.
The certainly of law is one of the elements in the concept of the Rule of law but it is only one element and taken by itself, affords little guidance.
The essential feature if Rule of law is that the judicial power of the state is to a large extent, separate from the Executive and the Legislature.
The Rule of Law us a normative as much as it is a descriptive term.
It expresses an ideal as much as a juristic fact.
The Rule of Law is nit identical with a free society.
If the sphere of the Rule of Law involves what can be called the "Existence of the Democratic system" it means two things.
In the first place the individual liberties of a democratic system involves the right of the members of each society to choose the Government under the which they lie.
In the second place come freedom of speech, freedom of assembly and freedom f association.
These are not absolute tights, Their exceptions are justified by the necessity if reconciling the claims of different individuals to those rights, The criterion whereby this reconciliation an be effected is the concern of law to ensure that the status and dignity of all individuals is to the greatest possible extent observed.
Freedom of speech may be limited by conception as clear present danger", attack, on the free democratic order".
The institutions and procedures by which the fundamental regard for the status and dignity of the human person an be effected is that rights and remedies are complimentary to the other, The phrases such as "equality before law" or "equal protection of the laws: are in themselves equivocal.
The supremacy of the law means that the faith of civil liberty depends on the man who has to administer civil liberty much more than on any legal formula.
Aristotle, pointed out that the rigid certainty of law is not applicable to all circumstances.
this plea would be echoed by the modern administrator called upon to deal with the ever changing circumstances of economic and social life of the nation.
The respondents contend that all executive actions which operate to the prejudice of any person must have the authority of law to support it.
Reliance is placed on the decisions in Rai Sahib Ram Jawaya Kapur Ors.
vs The State of Punjab(1) M.P State vs Bharat Singh (2) Collector vs Ibrahim & Co. (3), Bennet Coleman & Co. vs Union of (1) (2) ; (3) 237 India(1) and Meenakshi Mills vs Union of India(2).
This is amplified by the respondents to mean that the Executive cannot detain a person otherwise than under any legislation and on the suspension of Article 21 or the right to enforce it, the Executive cannot get any right to act contrary to law.
The Executive cannot detain a person otherwise than under valid legislation.
The suspension of any fundamental right does not effect this rule of the Constitution.
In normal situations when there is no emergency and when there is no Presidential order of the type like the present tile situation is different.
In Bharat Singh 's case (supra) this Court was concerned with the pre emergency law and an order of the Executive thereunder.
It was held that the pre emergency law was void as violative of Article 19, and, therefore, such a law being pre emergency law could not claim the protection under Article 358.
The ratio in Bharat Singh 's case (supra) is this: Executive action which operates to the prejudice of any person must have the authority of law to support it.
[See also Ram Jawaya Kapur 's case (supra).
The provisions of Article 358 do not detract from that rule.
Article 358 expressly authorises the State to take legislative or Executive action provided such action was competent for the State to make or take but for the provisions contained in Part III of our Constitution.
Article 358 permits an Executive action under a law which may violate Article 19 but if the law is void or if there be no law at all, the Executive action will not be protected by Article 358.
Bharat Singh 's case (supra) considers the effect of Article 358 so far the Executive action is concerned, but was not concerned with any Executive action taken infringing any fundamental right mentioned in a Presidential order under Article 359 (1) .
Ibrahim 's case (supra), the Bannett Coleman case (supra) and the Meenakshi Mill 's case (supra) follow Bharat Singh 's case (supra) regarding the proposition that the terms of Article 358 do not detract from the position that the Executive cannot act to the prejudice of a person without the authority of law.
The ratio in Bharat Singh 's case (supra) is that the Madhya Pradesh Public Security Act was brought into force before the Emergency Article 358 empowers the legislature to make a law violating Article 19.
Article 358 does not mean that a pre emergency law violating Article 19 would have constitutional validity during the period of emergency.
The Executive action which was taken during the emergency on the basis of the pre emergency law did not have the authority of law inasmuch as the Madhya Pradesh Act of 1959 was a void law where it was enacted in violation of Article 19.
In Ibrahim 's case (supra), is the Sugar Control order 1963 permitted allocation of quotas of sugar.
The State Government ordered that the sugar allocated to the two cities of Hyderabad and Secunderabad were entirety to be given to the Co operative Stores.
Under Article (1) [1973] 2 section C. R .757.
(2) 238 358 the respondents there could not challenge an Executive action which, but for the provisions contained Article 19, the State was competent to take.
But the Executive order there was one which had the effect canceling the licenses of the respondents which could be done only after an enquiry according to the procedure prescribed in the order.
The Executive order there was contrary to the provisions contained in the Sugar Control order.
In other words, the Executive action which was in breach of the order could not be immune from attack under Article 358.
In the Bennet Coleman case (supra) it was said that the Newsprint Control order could not authorise the number of pages.
In the Meenakshi Mill case (supra) it was said that the Yarn Control order could not be resisted on the ground that it had no direct impact on the rights of the mills.
In these four cases referred to there was no question of enforcement of fundamental right mentioned in the Presidential order.
These four cases were not concerned with any Executive action taken infringing any fundamental right mentioned in a Presidential order under Article 359.
The suspension of right to enforce fundamental right has the elect that the emergency provisions in Part XVIII are by themselves the rule of law during times of emergency.
There cannot be any rule of law other than the constitutional rule of law.
There cannot be any pre Constitution or post Constitution Rule of Law which can run counter to the rule of law embodied in the Constitution, nor can there be any invocation to any rule of law to nullify the constitutional provisions during the times of emergency.
The respondents relied on the decision in Eshugbayi Eleko vs officer Administering the Government of Nigeria(1) support of the proposition that Rule of Law will always apply even when there is Presidential order.
It has to be realised that the decision in Eshuqbavi Eleko cannot over reach our Constitution.
Article 358 does not permit the Executive action to have the authority of law.
Article 359 prevents the enforcement of the fundamental rights mentioned in the Presidential order.
It bars enforcement against any legislation or executive! action violating a fundamental right mentioned in the Presidential order.
The principle in Eshugbayi Eleko 's case (supra) will not apply where Article 359 is the paramount and supreme law of the country.
There is no question of amendment of the concept of rule of law or any suggestion of destruction of rule of law as the respondents con tended because the Presidential order under Article 359 neither nullifies nor suspends the operation of any law.
The consequence of the Presidential order is of a higher import than the suspension of any law because the remedy for the enforcement of fundamental rights is barred for the time being because of grave emergency.
(1) ; 239 The respondents contend that if an individual officer acts outside his authority, it will be an illegal act and the High Court under Article 226 can deal with it.
Reliance is placed on the English decision in Christie & Anr.
vs Leachinsky(1) in support of the proposition that the action of an individual officer will be an Executive action when he acts within the scope of his authority.
, The decision in Leachinsky 's case (supra) is an action for false imprisonment and damages against two persons of Liverpool City Police for wrongfully arresting a person without informing that person of the grounds for arrest.
That case has no relevance here.
An individual officer acting within the scope of his official duty would not cease to be so if he makes an order which is challenged to be not in compliance with the statute under which he is authorised to make the order .
Any challenge to the order of detention would come within the fold of breach of fundamental right under Article 21, namely, deprivation of personal liberty.
The obligation of the Executive to act in accordance with the Act is ail obligation as laid down in Article 21.
If such an obligation is not performed, the violation is of Article 21.
It will mean that the right of the person affected will be a violation of fundamental right.
The expression "for any other purpose" in Article 226 means for any purpose other than the enforcement of fundamental rights.
A petition for habeas corpus by any person under Article 226 necessarily involves a question whether the detention is legal or illegal.
An Executive action if challenged to be ultra vires a statute cannot be challenged by any person who is not aggrieved by any such ultra vires action.
Section 18 of the Act has been argued by the respondents to mean that a malafide order of detention cannot be regarded as an order made under the Act.
Section 18 has also been challenged to suffer from the vice of excessive delegation.
Section 18 has been amended by the words "in respect of whom an order is made or purported to be made under section 3" in substitution of the words "detained under this Act".
The result is that no person in respect of whom and order is made or purported to be made under section 3 shall have any right to personal liberty by virtue of natural law or common law, if any.
It has been earlier held that there is no natural law or common law right to habeas corpus.
The respondents rely on the decisions in Poona Municipal Corporation vs D. N. Deodher(2), Kala Bhandar vs Munc.
Committee(3), Indore Municipality vs Niyamatulla(4) and Joseph vs Joseph(5) in support of the proposition that the expression "purports" means "has the effect of".
The respondents contend that (1) ; (2) ; (3) ; (4) A. I. R. (5) 240 Section 18 of the Act can apply only when a valid order of detention is made.
If the section be interpreted to include malafide orders or orders without jurisdiction then it is said that such interpretation will prevail upon the judicial power and violate Article 226.
The expression "purported to be done" occurs is section 80 of the Code of Civil Procedure.
The expression "purported to be made under section 3 of the Act" in section 18 will include an executive act made by the District Magistrate within the scope of his authority as District Magistrate, even if the order is made in breach of the section or is mala fide.
(See Hari Singh vs The Crown(1) Bhagchand Dagadusu vs Secretary of State for India(2), Albert West Meads vs The King(3), Anisminic vs Foreign Compensation etc.(4) and Dakshina Ranjan Ghosh vs Omar Chand Oswal(5).
As long as the District Magistrate acts within the scope of his authority as a District Magistrate an order passed by him is an order made or purported to be made under section 3 of the Act.
The section applies to any person in respect of whom an order as been made or purported to be made.
There is no question of excessive delegation.
Section 18 of the Act lays down the law.
Section 18 of the Act is only an illustration of an application of the act by the officers authorised by the Act.
Section 18 identifies the person to whom it applies and in what cases it applies to such a person.
The word "purport" covers acts alleged to be malafide.
The decisions to which reference has been made indicate that the acts whatever their effect be are all acts made or purported to be made under the Act.
A contention is advanced by the respondents that section 18 of the Act will apply only to post detention challenge.
This is wrong.
Sec lion 18 applies to all orders of detention.
Counsel on behalf of the respondents submitted that the High Courts had only heard the matters on preliminary points and not on the area of judicial scrutiny, and, therefore, this Court should not express any view on the latter question.
There are three principal grounds why this Court should express views.
First.
The Bombay High Court (Nagpur Bench) has read down section 16A(9) of the Act.
One of the appeals is from the judgment of the Bombay High Court (Nagpur Bench).
This judgment directly raises the question of section 16A(9) of the Act.
Second.
The Additional Solicitor General made his submissions on this part of the case and all counsel for the respondents made their submissions in reply.
Considerable time was spent on hearing submissions on both sides.
Time of the Court is time of the nation.
Third.
It is only proper that when so much time has been taken on these questions this Court should express opinions and lay down areas for judicial scrutiny.
(1) (2) L. R. 54 I. A. 338 at 352.
(3) A.I.R. 1948 P, C. 156 at 157_59 (4) ; at 212 13. 237.
(5) I. L. R. at 995 1003.
241 The respondents contend that if the Presidential order does not bar the challenge on the ground that the orders are malafide or that the orders are not made in accordance with the Act the non supply of grounds will not affect the jurisdiction of the Court.
It is said by the respondents that the scope of judicial scrutiny is against orders.
The respondents submit that court has gone behind the orders of detention in large number of cases.
The respondents submit as follows: It is open to the Court to judge the legality of the orders.
This the Court can do by going beyond the order.
Though satisfaction is recorded in the order and such recording of satisfaction raises the presumption of legality of order the initial onus on a detenu is only to the extent of creating "disquieting doubts" in the mind of the Court.
The doubts are that the orders are based on irrelevant non existing facts or on facts on which no reasonable person could be satisfied in respect of matters set out in section 3 of the Act.
If such a prima facie case is established the burden shifts and the detaining authority must satisfy the court about the legality of detention and the detaining authority must remove doubts on all aspects of legality which have been put in issue.
If the detaining authority for whatever reasons ] fails to satisfy the court either by not filing an affidavit or not placing such facts which may resolve the doubts about the legality of detention the court may direct release of the detenus.
The respondents submit that all that they want is that if the detenus challenge the orders to be malafide or to be not in compliance with the statute and if the court does not have any "disquieting doubts" the court will dismiss the petitions.
If the court has any such doubt the court will call for the return.
On a return being made if the court is satisfied that the return is an adequate answer the court will dismiss the petition.
If the court wants to look into the grounds the court will ask for the production M the grounds and the court itself will look into the grounds but will not show the grounds to the detenus.
In short, the respondents submit that the jurisdiction of the court to entertain the application should not be taken away as a result of the Presidential order.
F The appellants submit that if Article 359 is not a bar at the threshold and if the Court can entertain a petition, judicial review should be limited within a narrow area.
In the forefront 16A(9) of the Act is put because that section forbids disclosure of grounds and information in the possession of the detaining authority.
The Nagpur Bench of the Bombay High Court read down section 16A(9) but the Additional Solicitor General submitted that section 16A(9) should not be read down because it enacts a rule of evidence.
The Additional Solicitor General submitted as follows: the scrutiny by courts will extend to examining first whether detention is in exercise or purported exercise of law.
That will be to find out whether there is a legal foundation for detention.
The second enquiry will be whether the law is valid law.
If it is a pre emergency law the same can be tested as to whether it was valid with reference to Articles 18 833Sup.
CI/76 242 14, 19, 21 and 22.
If it is an emergency legislation the validity of law cannot be gone into first, because of Article 358, and, second, because of the Presidential order under Article 359.
The other matters which the court may examine are whether the detaining authority is a competent authority under the law to pass the order, whether the detenu has been properly identified, whether the stated purpose is one which ostensibly conforms to law and whether the procedural safeguards enacted by the law are followed.
With regard to grounds of detention it is said by the Additional Solicitor General that if the grounds are furnished or are required to be furnished the Court can examine whether such grounds ex facie justify reasonable apprehension of the detaining authority.
Where the grounds are not to be furnished, it is said that this enquiry does not arise.
The Additional Solicitor General submits that judicial scrutiny cannot extend to three matters first, objective appraisal of the essential subjective satisfaction of the detaining authority, second, examination of the material and information before the detaining authority for the purpose of testing the satisfaction of the authority, and, third, directing compulsory production of the file relating to detenu or drawing and adverse inference from the non production thereof.
Material and information on which orders of preventive detention are passed necessarily belong to a class of documents whose disclosure would impair the proper functioning of public service and administration.
The file relating to a detention order must contain intelligence reports and like information whose confidentiality is beyond reasonable question.
This was the view taken in the Live sidge (1) case.
See also Rogers(2) case.
If privilege were to be claimed in each case such a claim would in terms of sections 123 and 162 of the Evidence Act have been invariably upheld.
Article 22(G) also contemplates such claims on behalf of the State.
That is why instead of leaving it to individual decision in each case or to the discretion of individual detaining authorities to make a claim for privilege, the legislature has enacted section 16A(9) providing for a general exclusion from evidence of all such material as would properly fall within the classification.
Section 16A cannot be said to be an amendment to Article 226.
The jurisdiction to issue writs is neither abrogated nor abridged.
A claim of privilege arises in regard to documents or information where a party to a suit or proceeding is called upon to produce evidence.
Section 16A(9) enacts provisions analogous to a conclusive proof of presumption.
Such a provision is a genuine rule of evidence.
It is in the nature of an Explanation to sections 123 and 162 of the Evidence Act.
Section 16A(9) is a rule of evidence.
Therefore when the detaining authority is bound by section 16A(9) and forbidden absolutely from disclosing such material no question can arise for adverse inference against the authority.
If a detenu makes out a prime facie case and the court calls for a return, the affidavit of the (1) [19421 A. C. 206 at 221, 253, 254, 266, 267, 279 and 280 (2) at 400, 401 and 405.
243 authority will be an answer.
The Court cannot insist on the production of the file or hold that the case of the detenu stands unrebutted by reason of such non disclosure.
To hold otherwise would be to induce reckless averments of malafides to force production of the file which is forbidden by law.
Section 16A(9) cannot be read down implying an exception in favour of disclosure to the Court as was suggested by the Bombay High Court (Nagpur Bench).
Such disclosure to the court alone and not to the detenu will introduce something unknown to judicial procedure.
This will bring in an element of arbitrariness and preclude both parties from representing their respective cases.
Further, it would substitute or super impose satisfaction of the Court for that of the Executive.
This Court has held that the view of the detaining authority is not to be substituted by the view of the court.
(See State of Bombay vs Atma Ram Sridhar Vaidya (1), Shibban Lal Saksena vs The State of Uttar Pradesh & Ors(2).
, Rarneshwar Shaw vs District Magistrate, Burdwan & Anr.
,(.3) Jaichand Lal vs W. Bengal(4) and Ram Manohar Lohia 's case (supra).
The theory of good return mentioned in the English decisions is based on the language of Habeas Corups Act and the Rules of the Supreme Court of England.
The practice of our Court is different.
The respondents relied on M. M. Damnoo vs J. & K. State(5) in support of the proposition that the file was produced there and also contended that section 16A(9) can be struck down as happened in A. K. Gopalan 's case (supra) where section 14 of the Preventive Detention Act was struck down.
When A. K. Gopalan 's case (supra) was decided Article 22 was in force.
Prevention of court from on seeing the grounds contravened Article 22.
There was no question of privilege.
Section 14 of the Preventive Detention Act in A. K. Gopalan 's case (supra) offended Article 22.
(See A. K. Gopalan 's case 1950 section C. R. 88 at 130, 217, 242, 283 84, 332 33).
In Damnoo 's case (supra) there was no question of privilage.
The file was produced but there was no direction of the court to produce the file.
Second.
There was no aspect of Article 359.
Third.
In Damnoo 's case (supra) the analogy of section 14 of the Preventive Detention Act in Gopalan 's case was considered.
No provision like section 16A(9) was on the scene.
Fourth, The State did not rely on the proviso to section 8 of the relevant Act there to contend that the file could not be produced.
Section 16A(9) of the Act contains definite indications of implied exclusion of judicial review on the allegations of malafide.
It is not possible for the court to adjudicate effectively on malafides.
The reason why section 16A has been enacted is to provide for periodi (1) ; (2) ; (3) ; (4) [1966] Supp.
section C. R. 464.
(5) ; 244 cal review by Government and that is the safeguard against any unjust or arbitrary exercise of power.
It will be useless to attempt to examine the truth of the fact alleged in the order in a case when the fact relates to the personal belief of the relevant authority formed at least partly on grounds which he is not bound to disclose.
It is not competent for the court to decide whether the impugned order of detention under section 3(1) or the declaration under section 16A(2) and (3) or the Act during the emergency is a result of malice or ill will.
The reason is that it is not at all possible for the court to call for and to have a look at the grounds of the order of detention under section 3(1) or the declaration under section 16A(2) and (3) of the Act that induced the satisfaction in the mind of the detaining authority that it was necessary to detain the person or to make a declaration against him.
The grounds of detention and any information or materials on which the detention and the declaration were made are by section 16A(9) of the Act confidential and deemed to refer to matters of State and to be against public interest to disclose.
No one under the provisions of the Act and in particular section 16A(9) thereof shall communicate or disclose such grounds, materials or information except as provided in section 16A(5) and (8) of the Act.
Sub sections (5) and (8) have no application in these cases.
The court cannot strike down the order as vitiated by malafide and grant relief since it is not possible for the court without the examination of such grounds, materials and information to decide whether the order of detention is the result of malice or ill will.
When the court cannot give any relief on that basis the contention of malafides is not only ineffective but also untenable.
(See Lawrence Joachim Joesph D 'Souza vs The State of Bombay(1).
The provision for periodical review entrusted to the Government under section 16A(4) of the Act in the context of emergency provides a sufficient safeguard against the misuse of power of detention or arbitrary malafide detention during the emergency.
The Government is in full possession of the grounds, materials and information relating to the individual detentions while exercising the power of review.
The jurisdiction of the court in times of emergency in respect of detention under the Act is restricted by the Act because the Government is entrusted with the task of periodical review.
Even if the generality of the words used in section 3(1) of the Act may not be taken to show an intention to depart from the principle in ordinary times that the courts arc not deprived of the jurisdiction where bad faith is involved, there are ample indications in the provisions of the Act, viz., section 16A(2), proviso to section 16A(3), section 16A(4), section 16A(5), section 16A(7)(ii) and section 16A(9) of the Act to bar a challenge to the detention on the basis of mala (1) ; at 392 93.
245 fides.
(See Smith vs East Elloe Rural District Council & Ors.(1) and Ram Manohar Lohia 's case (supra) at 716, 732).
This Court said that an action to decide the order on the grounds of malafides does not lie because under the provisions no action is maintainable for the purpose.
This Court also referred to the decision in the Liversidge case (supra) where the Court held that the jurisdiction of the court was ousted in such way that even questions of bad faith could not be raised.
The production of the order which is duly authenticated constitutes a peremptory answer to the challenge.
The onus of showing that the detaining authority was not acting in good faith is on the detenu.
This burden cannot be discharged because of the difficulty of proving bad faith in the exercise of subjective discretionary power vested in the administration.
De Smith in his Judicial review of Administrative Actions 1973 Edition at page 257 seq.
has said that the reservation for the case of bad faith in hardly more than a formality.
Detenu will have to discharge the impossible burden of proof that the detaining authority did not genuinely believe he had reasonable cause In Lawrence Joachim Joseph D 'Souza 's case (supra) malafide exercise of power was untenable having regard to the grounds on which detention was based.
In the context of emergency section 3 (1) of the Act confers an unlimited discretion which cannot be examined by courts.
This rule of construction of the phrases "is satisfied", "in the opinion of", "it appears to be", "has reason to believe" adopted by courts in times of national emergency will be rendered nugatory and ineffective if allegations of malafides are gone into.
A distinction is to be drawn between purpose and motive so that where an exercise of power fulfils the purpose for which power was given, it does not matter that he who exercised it is influenced by an extraneous motive because when an act is done which is authorised by the Legislature it is not possible to contest that discretion.
So long as the authority is empowered by law action taken to realise that purpose is not malafide.
when the order of detention is on the face of it within the power conferred, the order is legal.
The width and amplitude of the power of detention under section 3 of the Act is to be adjudged in the context of the emergency proclaimed by the President.
The Court cannot compel the detaining authority to give the particulars of the grounds on which he had reasonable cause to believe that it was necessary to exercise this control.
An investigation into facts or allegations of facts based on malafides is not permissible because such a course will involve advertence to the grounds of detention and materials constituting those grounds which is not competent in the context of the emergency.
For the foregoing reasons the conclusions are as follows: First.
In view of the Presidential order dated 27 June, 1975 under clause (1) of Article 359 of our Constitution no person has locus (1) ; at 776.
246 standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to enforce any right to personal liberty of a person detained under the Act on the grounds that the order of detention or the continued detention is for any reason not under or in compliance with the Act or is illegal or malafide.
Second.
Article 21 is the sole repository of rights to life and personal liberty against the State.
Any claim to a writ of habeas corpus is enforcement of Article 21 and, is, therefore, barred by the Presidential order Third.
Section 16A(9) of the Act is valid.
It is a rule of evidence and it is not open either to the detenu or to the court to ask for grounds of detention.
Fourth.
It is not competent for any court to go into questions of malafides of the order of detention or ultra vires character of the order of detention or that the order was not passed on the satisfaction of the detaining authority.
The appeals are accepted.
The judgments of the High Courts are set aside.
KHANNA, J. Law of preventive detention, of detention without trial is an anathema to all those who love personal liberty.
Such a law makes deep inroads into basic human freedoms which we all cherish and which occupy prime position among the higher values of life.
It is" therefore not surprising that those who have an abiding faith ill the rule of law and sanctity of personal liberty do not easily reconcile themselves with a law under which persons can be detained for long periods without trial.
The proper forum for bringing to book those alleged to be guilty of the infraction of law and commission of crime, according to them, is the court of law where the correctness of the allegations can be gone into in the light of the evidence adduced at the trial.
The vesting of power of detention without trial in the executive, the assert, has the effect of making the same authority both the prosecutor as well as the judge and is bound to result in arbitrariness.
Those who are entrusted with the task of administering The land have another viewpoint.
According to them, although they are conscious of the value of human liberty, they cannot afford to be obvious of the need of the security of the State or the maintenance of public order.
Personal liberty has a value if the security of the State is not jeopardised and the maintenance of public order is not threatened.
There can be the administrator assert, no freedom to destroy .
Allegiance to ideals of freedom cannot operate in vacuum.
Danger lurks and serious consequences can follow when thoughts become encysted in fine phrases oblivious of political realities and the impact of real politik.
No government can afford to take risks in 247 matters relating to the security of the State.
Liberty, they accordingly claim, has to be measured against community 's need for security against internal and external peril.
It is with a view to balancing the conflicting viewpoints that the framers of the Constitution made express provisions for preventive detention and at the same time inserted safeguards to prevent abuse of those powers and to mitigate the rigour and harshness of those provisions.
The dilemma which faced the Constitution makers in balancing the two conflicting viewpoints relating to liberty of the subject and the Security of the State was not, however, laid to rest for good with the drafting of the Constitution.
It has presented itself to this Court in one form or the other ever since the Constitution came into force.
A. K '.
Gopalan 's(1) was he first case where in a Bench of six Judges of this Court dealt with the matter.
Another Bench of seven Judges again dealt with the matter in 1973 in the case of Shambhu Nath Sarkar vs State of West Bengal & Ors(2) In between a number of Benches have dealt with the various facets of the question one such facet has now presented itself to this Constitution Bench The question posed before us is whether in view of the Presidential order dated June 27, 1975 under clause (1) of article 359 of the Constiution, any petition under article 226 before a High Court for writ of habeas corpus to enforce the right of personal liberty of a person detained under the (Act 26 of 1971) (hereinafter referred to as MISA) as amended is maintainable.
A consequential question which may be numbered as question No. 2 is, if such a petition is maintainable, what is the scope or extent of judicial scrutiny.
The above questions arise in criminal appeals Nos. 279 of 1975" 355 and 356 of 1975, 1845 49 of 1975, 380 of 1975, 1926 of 1975 389 of 1975, 3 of 1976, 41 of 1976 and 46 of 1976.
These appeals have been filed against the orders of Madhya Pradesh High Court, Allahabad High Court, Karnataka High Court, Delhi High Court, Nagpur Bench of Bombay High Court and Rajasthan High Court whereby the High Courts repelled the preliminary objections relating to the maintainability of petitions under article 226 for writs of habeas corpus on account of Presidential order dated June 27, 1975.
On the second question" some of the high Courts expressed the view that this was a matter which would be gone into while dealing with individual cases on their merits.
The other High Courts went into the matter and expressed their view.
This judgment would dispose of all the appeals.
MISA was published on July 2, 1971.
Section 2 of the Act contains the definition clause.
Section 3 grants powers to make orders for detaining certain persons and reads as under: "3.
(1) The Central Government of the State Government may, (a) if satisfied with respect to any person including a foreigner) that with a view to preventing him from acting in any manner prejudicial to (1) ; (2) ; 248 (1) the defence of India, the relations of India with foreign powers, or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii)the maintenance of supplies and services essential to the community, or (b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained.
(2) Any of the following officers, namely: (a) district magistrates, (b) additional district magistrates specially empowered in this behalf by the State Government, (c)Commissioners of Police, wherever they have been appointed, may, if satisfied as provided in sub clauses (ii) and (iii) of clause (a) of sub section (1)" exercise the power conferred by the said sub section.
(3) When any order is made under this section by an officer mentioned in sub section (2), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been, made and such other particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making there of unless in the meantime it has been approved by the State Government: Provided that where under section 8 the grounds of detention are communicated by the authority making the order after five days but not later than fifteen days from the dates of detention, this sub section shall apply subject to the modification that for the words 'twelve days ', the words 'twenty two days ' shall be substituted.
(4) When any order is made or approved by the State Government under this section, the State Government shall within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as in the opinion of the State Government have a bearing on the necessity for the order." 249 Section 4 and 5 deal respectively with execution of detention orders and the power to regulate place and conditions of detention.
According to section 6, detention orders are not to be invalidated or inoperative on the ground that the person to be detained is outside the limits of the territorial jurisdiction of the Government or officer making the order ' or that the place of detention of such person is outside the said limits.
Section 8 requires that the Grounds of order of detention should be disclosed to persons affected by the order and he should be granted the earliest opportunity of making a representation against the order.
Section 9 deals with the constitution of Advisory Boards.
Section 10 makes provision for reference to Advisory Boards.
Section 11 prescribes the procedure of Advisory Boards and section 12 requires that action should be taken in accordance with the report of the Advisory Board.
According to section 13, the maximum period of detention shall be 12 months from the date of detention.
Section 14 confers power of revocation of detention orders.
Section 15 confers power upon the appropriate Government to temporarily release the detained persons.
Section 16 gives protection to action taken in good faith.
Section 17 provides for detention up to two years in certain cases of foreigners.
Section 18, which has subsequently been re numbered as section 19, provides for the repeal of the Maintenance of Internal Security ordinance and the saving clause.
According to clause (1) of article 352 of the Constitution, if the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened whether by war or external aggression or internal disturbance he may, by Proclamation, make a declaration to that effect.
On December 3 1971 the President of India issued the following proclamation of emergency: "In exercise of the powers conferred by clause (1) of article 352 of the Constitution, I, V. V. Giri, President of India; by this Proclamation declare that a grave emergency exists whereby the security of India is threatened by external aggression.
V. V. Giri President" Clause (1) of article 359 of the Constitution reads as under: "Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order.
" On November 16, 1974 the President of India made the following order: 250 "In exercise of the powers conferred by clause (1) of article 359 of the Constitution, the President hereby declares that (a) the right to move any count with respect to orders of detention which have already been made or which may hereafter be made under section 3 (1) (c) of the as amended by ordinance 11 of 1974 for the enforcement of the rights conferred by article 14, article 21 and clauses (4), (5), (6) and (7) of article 22 of the Constitution, and (b) all proceedings pending in any court for the enforcement of any of the aforesaid rights with respect of orders of detention made under the said section 3(1) (c) ' shall remain suspended for a period of six months from the date of issue of this order or the period during which the Proclamation of Emergency issued under clause (1) of article 352 of the Constitution on the 3rd December, 1971, is in force, whichever period expires earlier.
This order shall extend to the whole of the territory of India.
" On June 20, 1975 the President of India amended the above order by substituting twelve months" for "six months" in the order.
On June 25, 1975 the President of India issued another proclamation of emergency and the same reads as under: "PROCLAMATION OF EMERGENCY In exercise of the powers conferred by clause (1) of article 352 of the Constitution, I Fakhruddin Ali Ahmed, President of India, by this Proclamation declare that a grave emergency exists whereby the security of India is threatened by internal disturbance.
Sd/ F. A. Ahmed President" New Delhi the 25th June" 1975 On June 27, 1975 the President of India made the following order: exercise of the powers conferred by clause (1) of article 359 of the Constitution, the President hereby declares that the right of any person (including a foreigner) to move any court for the enforcement of their rights conferred by article 14, article 21 and article 22 of the Constitution 251 and all proceedings pending in any court for the enforce h men of the above mentioned rights shall remain suspended for the period during which the Proclamation of Emergency made under clause (1) of article 352 of the Constitution on the 3rd December, 1971 and on the 25th June, 1975 are both in force.
This order shall extend to the whole of the territory of India except the State of Jammu and Kashmir.
This order shall be in addition to and not in derogation of any order made before the date of this order under clause (1) of article 359 of the Constitution." On June 29, 1975 another order was issued by the President whereby the words "except the State of Jammu & Kashmir" in the order dated June 27, 1975 were omitted.
On September 25, 1975 another Presidential order was issued as a result of which the last paragraph in the Presidential order dated June 27, 1975 was omitted.
By Act 39 of 1975 Section 16A was introduced in MISA with effect from June 29, 1975 and the same reads as under : "16A. (1) Notwithstanding anything contained in this Act or any rules of natural justice, the provisions of this section shall have effect during the period of operation of the Proclamation of Emergency issued under clause (1) of article 352 of the Constitution on the 3rd day of December, 1971 or the Proclamation of Emergency issued under that clause on the 25th day of June, 1975, or a period of twelve months from the 25th day of June, 1975, whichever period is the shortest.
(2) The case of every person (including a foreigner) against whom an order of detention was made under this Act on or after the 25th day of June, 1975, but before the commencement of this section, shall, unless such person is sooner related from detention, be reviewed within fifteen days from such commencement by the appropriate Government for the purpose of determining whether the detention of such person under this Act is necessary for dealing effectively with the emergency in respect of which the Proclamations referred to in sub section (1) have been issued hereinafter in this section referred to as the emergency) and if, on such review, the appropriate Government is satisfied that it is necessary to detain such person for effectively dealing with the emergency, that Government may make a declaration to that effect and communicate a copy of the declaration to the person concerned.
(3) When making an order of detention under this Act against any person (including a foreigner) after the commencement of this section, the Central Government or the 252 State Government or, as the case may be, the officer making the order of detention shall consider whether the detention of such person under this Act is necessary for dealing effectively with the emergency and if, on such consideration, the Central Government or the State Government or, as the case may be, the officer is satisfied that it is necessary to detain such person for effectively dealing with the emergency, that Government or officer may make a declaration to, that effect and communicate a copy of the declaration to the person concerned.
Provided that where such declaration is made by an officer, it shall be reviewed by the State Government to which such officer is subordinate within fifteen days from 5 the date of making of the declaration and such declaration shall cease to have effect unless it is confirmed by the State Government, after such review, within the said period of fifteen days.
(4) The question whether detention of any person in respect of whom a declaration has been made under sub section (2) or sub section (3) continues to be necessary for effectively dealing with the emergency shall be reconsidered by the appropriate Government within four months from the date of such declaration and thereafter at intervals not exceeding four months and if, on such re consideration, it appears to the appropriate Government that the detention of the person is no longer necessary for effectively dealing with the emergency, that Government may revoke the declaration.
(5) In making any review, consideration or reconsideration under sub sections (2), (3) or (4), the appropriate Government or officer may, if such Government or officer considers it to be against public interest to do otherwise act on the basis of the information and materials in its or his possession without disclosing the facts or giving an opportunity of making a representation to the person concerned (6) In the case of every person detained under a detention order to which the provisions of sub section (2)S apply, being a person the review of whose case is pending under that sub section or inrespect of whom a declaration has been made under that sub section. (1) section 8 to 12 shall not apply; and (ii) section 13 shall apply subject to the modification that the words and figures which has been confirmed under section 12 shall be omitted.
(7) In the case of every person detained under a deten 253 tion order to which the provisions of sub section (3) apply being a person in respect of whom a declaration has been made under that sub section, (1) section 3 shall apply subject to the modification that for sub sections (3) and (4) thereof, the following sub section shall be substituted, namely: (3) when order of detention is made by a State Government or by an officer subordinate to it, the State Government shall, within twenty days, forward to the Central Government a report in respect of the order;" (ii) section 8 to 12 shall not apply; and (iii) section 13 shall apply subject to the modification that the words and figures 'which has been confirmed under section 12 ' shall be omitted.
" Act 39 of 1975 also inserted section 18 with effect from June 25, 1975 and the same reads as under: "18.
No person (including a foreigner) detained under this Act shall have any right to personal liberty by virtue of natural law or common law, if any.
" By the Constitution (Thirty eighth Amendment) Act, 1975 clauses (4) and (5) which read as under were added in article 352 of the Constitution : "(4) The power conferred on the President by this article shall include the power to issue different Proclamation on different grounds, being war or external aggression or internal disturbance or imminent danger of war or external aggression or internal disturbance, whether or not there is a Proclamation already issued by the President under clause (1) and such Proclamation is in operation.
(5) Notwithstanding anything in this Constitution, (a) the satisfaction of the President mentioned in clause (1) and clause (2) shall be final and conclusive and shall not be questioned in any court on any ground; (b) subject to the provisions of clause (2), neither the Supreme Court nor any other court shall have jurisdiction to entertain any question, on any ground, regarding the validity of (1) a declaration made by Proclamation by the President to the effect stated in clause (1); or (ii) the continued operation of such Proclamation." 254 Following clause (1A) was also added after clause (1) of article 359 and the same reads as under: (1A) While an order made under clause (1) mentioning any of the rights conferred by Part III is in operation, nothing in that Part conferring those rights shall restrict the power of the State as defined in the said Part to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the in competence, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect.
" The Constitution (Thirty ninth Amendment) Act, 1975 was published on August 10, 1975 and inserted the as item 92 in the Ninth Schedule to the Constitution.
On October 17, 1975 ordinance 16 of 1975 was issued making further amendment in section 16A of MISA and the same read as under: "(a) for sub section (5), the following sub section shall be substituted, namely: '(5) In making any review, consideration or re consideration under sub section (2), sub section (3) or sub section (4), the appropriate Government or officer may act on the basis of the information and materials in its or his possession without communicating or disclosing any such information or materials to the person concerned or affording him any opportunity of making any representation against the making under sub section (2), or the making or confirming under sub section (3), or the non revocation under sub section (4), of the declaration in respect of him. '; (b) in sub section (7), in clause (1), (1) in the opening portion, for the words 'the following sub section ', the words 'the following ' shall be substituted; (ii) in sub section (3), as substituted by that clause, for the words 'forward to the Central Government a report in respect of the order ', the words 'report the fact to the Central Government ' shall be substituted; (iii)after sub section (3) aforesaid, the following shall be inserted, namely: '(4) At any time after the receipt of a report under sub section (3), the Central Government may require the State Government to furnish to the Central Government the grounds on which the order has been made and such other particulars 255 as, in the opinion of the State Government, have a bearing on the necessity for the order. ': (c) after sub section (7), the following sub sections shall be inserted, namely: '(8) in the case of any person in respect of whom a declaration has been made by a State Government under sub section (2) or a declaration has been made by a State Government or an officer subordinate to it or confirmed by the State Government under sub section (3), or a declaration has not been revoked by a State Government under sub section (4), the Central Government may, whenever it considers it necessary so to do, require the State Government to furnish to the Central Government the information and materials on the basis of which such declaration has been made or confirmed, or not revoked, as the case may be, and such other information and materials as the Central Government may deem necessary.
(9) Notwithstanding anything contained in any other law or any rule having the force of law, (a) the grounds on which an order of detention is made under sub section (1) of section 3 against any person in respect of whom a declaration is made under sub section (2) or sub section (3) and any information or materials on which such grounds or a declaration under sub section (2) or a declaration or confirmation under sub section (3) or the non revocation under sub section (4) of a declaration are based, shall be treated as confidential and shall be deemed to refer to matters of State and to be against the public interest Lo disclose and save as.
Otherwise provided in this Act, no one shall communicate or disclose any such ground, information or material or any document containing such ground, information or material; (b) no person against whom an order of detention is made under sub section (1) of section 3 shall be entitled to the communication or disclosure of any such ground, information or material as is referred to in clause (a) or the production to him of any document containing such ground, information or material.
" On November 16, 1975 ordinance 22 of 1975 was issued making certain amendments in MISA.
By section 2 of the ordinance the words "twelve days" and "twenty days" in sub section (3) of section 3 of MISA were substituted by the words "twenty days" and "twentyfive days" respectively.
In section 14 of the principal Act following sub section was substituted for the original sub section: "(2) The expiry or revocation of a detention order (hereafter in this sub section referred to as the earlier detention order) shall not bar the making of another detention 256 order (hereafter in this sub section referred to as the subsequent detention order) under section 3 against the same person: Provided that in a case where no fresh facts have arisen after the expiry or revocation of the earlier detention order made against such person, the maximum period for which such person, may be detained in pursuance of the subsequent detention order shall, in no case, extend beyond a period of twelve months from the date of detention under the earlier detention order or until the expiry of the Defence and Internal Security of India Act, 1971, whichever is later.
" Following sub section (2A) was also inserted in section 16A of the principal Act: "(2A) If the State Government makes a declaration under sub section (2) that the detention of any person in respect of whom a detention order is made by an officer subordinate to that Government is necessary for dealing effectively with the emergency, the State Government shall be deemed to have approved such detention order and the provisions of sub section (3) of section 3, in so far as they relate to the approval of the State Government, and of sub section (4) of that section, shall not apply to such detention order.
" The amendments made by the ordinance were given retrospective effect for the purpose of validating all acts done previously.
During the pendency of these appeals, the Maintenance of Internal Security (Amendment) Act, 1976 (Act 14 of 1976) was published on January 25, 1976.
This amending Act incorporated and in same respects modified the changes which had been brought about in the principal Act by ordinance 16 of 1975 and ordinance 22 of 1975.
Section 2 and 3 of the amending Act incorporate the changes which had been introduced by sections 2 and 3 of ordinance 22 of 1975.
At the same time sections 2 and 3 of the amending Act make it clear that substitution brought about by those sections shall be with effect from June 29, 1975.
Sections 4, 5 and 6 of the amending Act read as under: "4.
In section 16A of the principal Act, (a) after sub section (2), the following sub section shall be inserted, and shall be deemed to have been inserted with effect from the 29th day of June, 1975, namely: '(2A) If the State Government makes a declaration under sub section (2) that the detention of any person in respect of whom a detention order is made by an officer subordinate to that Government is necessary for dealing effectively with the emergency, the State Government shall be 257 deemed to have approved such detention order and the provisions of sub section (3) of section 3, in so far as they relate to the approval of the State Government, and of sub section (4) of that section, shall not apply to such detention order. '; (b) for sub section (5), the following sub section shall be substituted, and shall be deemed to have been substituted with effect from the 29th day of June, 1975, namely: '(5) In making any review, consideration or reconsideration under sub section (2), sub section (3) or sub section (4), the appropriate Government or officer may act on the basis of the information and materials in its or his possession without communicating or disclosing any such information or materials to the person concerned or affording him any opportunity of making any representation against the making under sub section (2), or the making or confirming under sub section (3), or the non revocation under sub section (4), of the declaration in respect of him.
,; (c) in sub section (7), in clause (1), (1) in the opening portion, for the words the following sub section ', the words 'the following ' shall be substituted and shall be deemed to have been substituted with effect from the 29th day of June, 1975; (ii) in sub section (3), as substituted by that clause, for the words 'forward to the Central Government a report in respect of the order ', the words 'report the fact to the Central Government ' shall be substituted, E; and shall be deemed to have been substituted with effect from the 29th day of June, 1975; (iii)after sub section (3) aforesaid, the following shall be inserted.
and shall be deemed to have been inserted with effect from the 17th day of October, 1975 namely: '(4) At any time after the receipt of a report under sub section (3), the Central Government may require the State Government to furnish to the Central Government the grounds on which the order has been made and such other particulars as.
in the opinion of the State Government, have a bearing on the necessity for the order. ', (d) after sub section (7), the following sub sections shall be inserted, and shall be deemed to have been inserted with effect from the 29th day ' of June, 1975, namely: '(8) In the case of any person in respect of whom a declaration has been made by a State Government under sub section (2) or a declaration has been made by a State Government or an officer subordinate to it or confirmed by the State Government under sub section (3), or a declaration has not been revoked by a State Government under sub sec 19 833 SCI/76. 258 tion (4), the Central Government may, whenever it considers it necessary so to do, require the State Government to furnish to the Central Government the information and materials on the basis of which such declaration has been made or confirmed, or not revoked as the case may be, and such other information and materials as the Central Government may deem necessary.
(9) Notwithstanding anything contained in any other law or any rule having the force of law, (a) the grounds on which an order of detention is made or purported to be made under section 3 against any person in respect of whom a declaration is made under sub section (2) or sub section (3) and any information or materials on which such grounds or a declaration under sub section (3) or the non revocation under sub section (4) of a declaration are based, shall be treated as confidential and shall be deemed to refer to matters of State and to be against the public interest to disclose and save as otherwise provided in this Act, no one shall communicate or disclose any such ground, information or immaterial or any document containing such ground, information or material; (b) no person against whom an order of detention is made or purported to be made under section 3 shall be entitled to the communication or disclosure of any such ground, information or material as is referred to in clause (a) or the production to him of any document containing such ground, information or material. ' 5.
In section 18 of the principal Act, for the words 'detained under this Act ', the words and figure 'in respect of whom an order is made or purported to be made under section 3 ' shall be substituted, and shall be deemed to have been substituted with effect from the 25th day of June, 1975.
Any act or thing done or purporting to have been done; before the 16th day of November, 1975, under the principal Act in respect of any person against whom an order of detention was made under that Act on or after the 25th day of June, 1975 or in respect of any such order of detention shall, for all purposes, be deemed to be as valid and effective as if the amendments made to the principal Act by sections 2 and 3, and clause (a) of section 4, of this Act had been in force at all material times." During the pendency of these petitions under article 226 of the Constitution of India before the High Courts for issue of writs of habeas corpus, it was contended on behalf of the Union of India and the States that in view of the Presidential order dated June 27, 1975 under article 359 suspending the right of all persons to move any court for the enforcement of the rights conferred by articles 14 21 and 22 of the Constitution, petitions for issue of writs of habeas corpus were not maintainable.
Particular stress was laid upon the fact that 259 the right to move the court for enforcement of the right under article 21 had been suspended and as such no petition for a writ of habeas corpus could be proceeded with.
The above mentioned Presidential order was stated to be an absolute bar to the judicial security of the detention orders.
This contention did not find favour with the High Courts and they held that despite the said Presidential order the petitions were maintainable and could be proceeded with.
Although opinions were not unanimous on the point as to whether the High Courts should without examining the individual facts of each case go into the question of the area of the judicial scrutiny and if so, what was the area of the judicial scrutiny, all the nine High Courts which dealt with the matter came to the conclusion that the Presidential order did not create an absolute bar to the judicial scrutiny of the validity of the detention.
The nine High Courts are: (1) Delhi (2) Karnataka (3) Bombay (Nagpur Bench) (4) Allahabad (5) Madras (6) Rajasthan (7) Madhya Pradesh (8) Andhra Pradesh (9) Punjab and Haryana.
In these appeals before us, learned Attorney General on behalf of the appellants has drawn our attention to the difference in phraseology of the Presidential order dated June 27, 1975 and the earlier Presidential orders dated November 3, 1962 and November 16, 1974 and has urged that in view of the absolute nature of the Presidential order of June 27, 1975, petition for a writ of habeas corpus is not maintainable.
There can be no doubt that the Presidential order dated June 27, 1975 has been worded differently compared to the earlier Presidential orders which were issued under clause (1) of article 359 and that there has been a departure from the pattern which used to be adopted while issuing such orders.
The Presidential order dated November 16, 1974 has already been reproduced earlier.
Presidential order dated November 3, 1962 issued under clause (1) of article 359 of the Constitution read as under: "ORDER New Delhi, the 3rd November, 1962 G.S.R. 146 In exercise of the powers conferred by clause (1) of article 359 of the Constiution, the President hereby declares that the right of any person to move any court for the enforcement of the rights conferred by article 21 and article 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency 260 issued under clause (1) of article 352 thereof on the 26th October, 1962 is in force, if such person has been deprived of any such rights under the Defence of India ordinance, 196 (4 of 1962) or any rule or order made thereunder.
" on November 6, 1962, the rules framed under the ordinance by the Central Government were published.
On November 11, 1962 the Presidential order reproduced above was amended and for the words and figure "article 21", the words and figures "articles 14 and 21" were substituted.
The Defence of India ordinance was subsequently replaced by the Defence of India Act and the rules framed under the ordinance were deemed to have been framed under the Act.
Perusal of the above Presidential order of 1962 shows that what was suspended was the right of any person to move any court for the enforcement of rights conferred by articles 14, 21 and 22.
The suspension was, however, conditioned by the circumstance that such person had been deprived of such rights under the Defence of India Act or any rule or order made thereunder.
It was plain that in case a detention order was made or any other action was taken not under the provisions of the Defence of India Act or any rule or order made thereunder, the same could not enjoy the protection of the Presidential order under article 359.
Another effect of the Presidential order was that as long as the proclamation of emergency was in force, the validity of the provisions of the Defence of India Act or the rules or orders made thereunder could not be assailed on the ground of being violative of articles 14, 21 and 22.
It is also clear that in view of article 358, while a proclamation of emergency was in operation, nothing in article 19 could have restricted the power of the State to make any law or to take any executive action which the State could but for the provisions contained in Part III was competent to make or to take.
Likewise, under the Presidential order dated November 16, 1974 which has been already reproduced earlier, what was suspended was the right to move any court with respect to an order of detention which might have been made or which might be made thereafter under section 3(1)(c) of the as amended for the enforcement of rights conferred by articles 14, 21 and clause (4) to (7) of article 22 of the Constitution.
Proceedings pending in any court for the enforcement of any of the aforesaid rights with respect to orders of detention made under section 3 (1) (c) too were suspended.
It was plain from the language of the Presidential order that there could be no suspension of the right mentioned in the Presidential order if the detention order could not be shown to have been made under section 3(1)(c) of MISA because an order not under section 3(1) (c) was outside the Presidential order.
The Presidential order of 1962 under article 359(1) of the Constitution came to be considered by this Court in the case of Makhan Singh vs State of Punjab.(1) Gajendragadkar J. (as he then was) speaking for six out of the Bench of seven Judges of this Court observed while dealing with the effect of the Presidential order on a petition of habeas corpus: (1) [1964] 4 section C. R. 797.
261 "We have already seen that the right to move any court which is suspended by article 359(1) and the Presidential order issued under it is the right for the enforcement of such of the rights conferred by Part III as may be mentioned in the order.
If in challenging the validity of his detention order, the detenu is pleading any right outside the rights specified in the order, his right to move any court in that behalf is not suspended, because it is outside article 359(1) and consequently outside the Presidential order itself.
Let us take a case where a detenu has been detained in violation of the mandatory provisions of the Act.
In such a case, it may be open to the detenu to contend that his detention is illegal for the reason that the mandatory provision of the Act have been contravened.
Such a plea is outside article 359(1) and the right of the detenu to move for his release on such a ground cannot be affected by the Presidential order.
Take also a case where the detenu moves the Court for a writ of habeas corpus on the ground that his detention i has been ordered malafide.
It is hardly necessary to ; emphasise that the exercise of a power malafide is wholly outside the scope of the Act conferring the power and can ; always be successfully challenged.
It is true that a mere allegation that the detention is malafide would not be enough; the detenu will have to prove the malafides.
But if the malafides are alleged, the detenu cannot be precluded from substantiating his plea on the ground of the bar created by article 359(1) and the Presidential order.
That is another kind of plea which is outside the purview of article 359(1).
" It was further observed : "It is only in regard to that class of cases falling under section 491(1) (b) where the legality of the detention is challenged on grounds which fall under article 359(1) and Presidential order that the bar would operate.
In all other cases falling under section 491(1) the bar would be inapplicable and proceedings taken on behalf of the detenu will have to be tried in accordance with law.
We ought to add that these categories of pleas have been mentioned by us by way of illustrations, and so, they should not be read as exhausting all the pleas which do not fall within the purview of the Presidential order.
There is yet another ground on which the validity of the detention may be open to challenge.
If a detenu contends that the operative provision of the law under which he is detained suffers from the vice of excessive delegation and IS, therefore, invalid, the plea thus raised by the detenu cannot at the threshold be said to be barred by the Presi 262 dential order.
In terms, it is not a plea which is relatable to the fundamental rights specified in the said order.
It is a plea which is independent of the said rights and its validity must be examined.
" In the case of State of Maharashtra vs Prabhakar Pandurang Sangzgiri & Anr(1).
Subba Rao J. (as he then was) speaking for the Constitution bench of this Court observed: "Article 358 of the Constitution suspends the provisions of article 19 of Part III of the Constitution during the period the proclamation of emergency is in operation; and the order passed by the President under article 359 suspended the enforcement, inter alia, of article 21 during the period of the said emergency.
But the President 's order was a conditional one.
In effect it said that the right to move the High Court or the Supreme Court remained suspended if such a person had been deprived of his personal liberty under the Defence of India Act, 1962, or any rule or order made thereunder.
If a person was deprived of his personal liberty not under the Act or a rule or order made there under but in contravention thereof, his right to move the said Courts in that regard would not be suspended.
The question, therefore, in this case is whether the first respondent 's liberty has been restricted in terms of the Defence of India Rules where under he was detained.
If it was in contravention of the said Rules he would have the right to approach the High Court under article 226 of the Constitution.
" Similar view was expressed in the case of Dr. Ram Manohar Lohia vs State of Bihar & Ors.(2) Sarkar J. (as be then was) in that case observed that where a person was detained in violation OF the mandatory provisions of the Defence of India Act, his right to move the court was not suspended.
Hidayatullah and Bachawat JJ.
referred to the fact that the Presidential order did not say that even if a person was proceeded against in breach of the Defence of India Act or the rules, he could not move the court or complain that the Act and the Rules under colour of which some action was taken did not warrant it.
The Presidential order was held to have not intended to condone an illegitimate enforcement of the Defence of India Act.
Raghubar Dayal J. held that the Court could go into the question as to whether the District Magistrate exercised the power of detention under the Defence of India Rules bonafide and in accordance with the rules.
Mudholkar J. Observed that if a detenu contends that the order.
though it purports to be under rule 30(1) of the Defence of India Rules, was not competently made, this Court had a duty to enquire into the matter.
Sarkar, Hidayatullah, Mudholkar and Bachawat JJ.
On consideration of the material before them found that as the detention order had been made with a view to present the detenu from acting in a manner prejudicial to the maintenance of (1) ; (2) ; 263 law and order and not public order, as contemplated by rule 30, the detention order was not in conformity with law.
The petitioner in that case was accordingly directed to be set at liberty.
The observations in the cases referred to above show that the validity of the detention orders could be assailed despite the Presidential orders of: 1962 and 1974 under article 359 in case the right relied upon was not one covered by these Presidential orders.
The protection afforded by those Presidential orders was not absolute, it Was conditional and confined to ruling out the challenge to detention orders and other actions taken under the provisions mentioned in those Presidential orders on the score of contravention of the articles specified in those orders.
If the detention of a detenu was not in accordance with the provisions mentioned in the Presidential orders, the Presidential orders did not have the effect of affording protection to the detention order and it was permissible to challenge the validity of the detention on the ground that it had not been made under the specified provisions but in contravention of those provisions.
We may now deal with the Presidential order dated June 27, 1975 with which we are concerned.
Unlike the Presidential orders under clause (1) of article 359 issued earlier, this Presidential order makes no reference to any detention order made under any specified provision.
It seeks to impose a blanket suspension of the right of any person, including a foreigner, to move any court far the enforcement of the rights conferred by articles 14, 21 and 22 of the Constitution and of all proceedings pending in any court for the enforcement of the above mentioned rights for the period during which the proclamation of emergency is in force.
The observations which were made by this court in the cases referred to above in the context of the phraseology of the earlier Presidential orders of 1962 and 1974 namely the detention orders made under specified provisions, cannot now be relied upon while construing the ambit of the Presidential order of June 27, 1975.
The difference in phraseology of the Presidential order dated June 27, 1975 and that of the earlier Presidential orders would not, however, justify the conclusion that because of the new Presidential order dated June '27, 1975 a detention order need not comply with the requirements of the law providing for preventive detention.
Such a detention order would still be liable to be challenged in a court on the ground that it does not comply with the requirement of law for preventive detention if ground for such challenge be permissible in spite of and consistently with the new Presidential order.
The effect of the change in phraseology would only be that such of the observations which were made in the cases mentioned above in the context of the language of the earlier Presidential orders cannot now be relied upon.
Reliance, however, can still be placed upon the observations made in those cases which were not linked with the phraseology of the earlier Presidential orders.
Question then arises as to what is the effect of the suspension of the right of a person to move any court for the enforcement of rights 264 conferred by articles 14, 21 and 22 of the Constitution.
One obvious result of the above is that no one can rely upon articles 14, 21 and 22 with a view to seek relief from any court.
According to the stand taken by the learned Attorney General, the effect of the suspension of the right of a person to move any court for the enforcement of the right conferred by article 21 is that even if the order for detention has been made without the authority of law, no redress can be sought from the court against such detention order.
Article 21 of the Constitution reads as under: "No person shall be deprived of his life or personal liberty except according to procedure established by law.
" It is urged that article 21 is the sole repository of one 's right to life or personal liberty.
The moment the right to move any court for enforcement of article 21 is suspended, no one can, according to the submission, complain to the court of deprivation of life or personal liberty for any redress sought from the court on that score would be enforcement of article 21.
Petition under article 226 for the issue of a writ of habeas corpus, it is contended by learned Attorney General, is essentially a petition to enforce the right of personal liberty and as the right to move any court for the enforcement of the right conferred by article 21 is suspended, no relief can be granted to the petitioner in such petition.
In order to assess the force of the above argument, it may be necessary to give the background and the history of article 21.
In the original draft of the Indian Constitution, in the article which now stands as article 21 the words used were "in accordance with due process of law" instead of the words "according to procedure established by law.
" The concept of expression "due process of law" or its equivalent "law of the land" traces its lineage for back into the beginning of the 13th century A.D.
The famous 39th chapter of the Magna Carta provides that "no free man shall be taken or imprisoned or disseized, or outlawed or exiled or in any way destroyed; nor shall we go upon him nor send upon him but by the lawful judgment of his peers and by the law of the land." Magna Carta as a charter of English liberty was confirmed by successive English monarchs.
It was in one of these confirmations (28 Ed.
III, Chap.
3) known as "Statute of Westminster of the liberties of London" that the expression "due process of law" appears to have been used for the first time.
Neither of the expressions "due process of law" or "law of the land" was explained or defined in any of the documents, but on the authority of Sir Edward Coke it may be said that both the expressions have the same meaning.
In substance, they guaranteed that persons should not be imprisoned without proper indictment and trial by peers, and that property should not be seized except in proceedings conducted in due form in which the owner or the person in possession should have an opportunity to show cause why seizure should not be made.
The expression "due process of law" came to be a part of the US Constitution by the Fifth Amendment which was adopted in 1791 and which provided that "no person shall be 265 deprived of life, liberty or property without due process of law.
" A Similar expression was used in the Fourteenth Amendment in 1868.
It has been said that few phrases in the law are so elusive of exact apprehension as "due process of law." The United States Supreme Court has always declined to give a comprehensive definition of it and has preferred that its full meaning should be gradually ascertained by the process of inclusion and exclusion in the course of the decisions as they arise.
The expression "due process of law," as used in the US Constitution, has been taken to impose a limitation upon the powers of the Government, legislative as well as executive and judicial.
Applied in England as protection against executive usurpation and royal tyranny, in America it became a bulwark against arbitrary legislation.
"Due process of law," according to Cooley, "means in each particular case such an exercise of the powers of Government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs" (Constitutional Limitations, Vol.
II, p. 741). 'Till about the middle of the 19th Century, due process clause was interpreted as a restriction upon procedure, and particularly the judicial procedure, by which the Government exercises its power.
Principally it related to the procedure by which persons were tried for crimes and guaranteed to accused persons the right to have a fair trial in Compliance with well established criminal proceedings.
The same principle applied to the machinery or proceedings by which property rights were adjudicated and by which the powers of eminent domain and taxation were exercised.
During this period it was not considered to have any bearing on substantive law at all.
Subsequently view came to be accepted that the concept of due process of law protected rights of life, liberty and property.
This change in judicial thinking was influenced in a great measure by the industrial development leading to accumulation of large capital in the hands of industrialists and the emergence of a definite labouring class.
What constituted legitimate exercise of the powers of legislation now came to be a judicial question and no statute was valid unless it was reasonable in the opinion of the Court.
The US Supreme Court laid stress upon the word "due" which occurs before and qualifies the expression "process of law." "Due" means "what is just and proper" according to the circumstances of a particular case.
The word introduces a variable element in the application of the doctrine, for what is reasonable in one set of circumstances may not be so in another set of circumstances.
The requirement of due process clause as a substantial restriction on Government control is also now becoming a thing of the past and the rule is being restricted more and more to its original procedural aspect (see observations of Mukherjea J. in the case of A. K. Gopalan, (supra).
At the time the Constitution was being drafted, the Constitutional Adviser Mr. B. N. Rau had discussions with US Constitutional experts some of whom expressed the opinion that power of review implied in due process clause was not only undemocratic because it 266 gave the power of vetoing legislation to the judges, but also threw an unfair burden on the judiciary.
This view was communicated by Mr. Rau to the Drafting Committee which thereupon substituted the words "except according to procedure established by law" for words "due process, of law.
" In dropping the words "due process of law," the framers of our Constitution prevented the introduction of elements of vagueness, uncertainty and changeability which had grown round the due process doctrine in the United States.
The words ' except according to procedure established by law" were taken from article 31 of the Japanese Constitution, according to which "no person shall be deprived of life or liberty nor shall any criminal liability be imposed, except according to procedure established by law.
The article is also somewhat similar to article 40(4)(1) of Irish Constitution, according to which no person shall be deprived of his personal liberty save in accordance with law.
" It was laid down in Gopalan 's case by the majority that the word "law" has been used in article 21 in the sense of State made law and not as an equivalent of law in the abstract or general sense embodying the principles of natural justice.
"The procedure established by law" was held to mean the procedure established by law made by the State, that is to say, the Union Parliament or the legislatures of the States, Law, it was also observed by Mukherjea J., meant a valid and binding law under the provisions of the Constitution and not one infringing fundamental rights.
The effect of the suspension of the right to move any court for the enforcement of the right conferred by article 21, in my opinion, is that when a petition is filed in a court, the court would have to proceed upon the basis that no reliance can be placed upon that article for obtaining relief from the court during the period of emergency.
Question then arises as to whether the rule that no one shall be deprived of his life or personal liberty without the authority of law still survives during the period of emergency despite the Presidential order r suspending the right to move any court for the enforcement of the right contained in article 21.
The answer to this question is linked with the answer to the question as to whether article 21 is the sole repository of the right to life and personal liberty.
After giving the matter my earnest consideration, I am of the opinion that article 21 cannot be considered to be the sole repository of the right to life and personal liberty.
The right to life and personal liberty is the most precious right of human beings in civilised societies governed by the rule of law.
Many modern constitutions incorporate certain fundamental rights, including the one relating to personal freedom.
According to Blackstone, the absolute rights of Englishmen were the rights of personal security, personal liberty and private property.
The American Declaration of Independence (1776) states that all men are created equal, and among their inalienable rights are life, liberty, and the pursuit of happiness.
The Second Amendment to the US Constitution refers inter alia to security of person, while the Fifth Amendment prohibits inter alia deprivation of life and liberty without due process of law.
The different Declarations of Human Rights and fundamental freedoms have all laid stress upon the sanctity 267 of life and liberty.
They have also given expression in varying words to the principle that no one shall be deprived of his life or liberty without the authority of law.
The International Commission of Jurists, which is affiliated to Unesco, has been attempting with considerable success to give material content to "the Rule of Law," an expression used in the Universal Declaration of Human Rights.
One of its most notable achievements was the Declaration of Delhi, 1959.
This resulted from a Congress held in New Delhi attended by jurists from more than 50 countries, and was based on a questionnaire circulated to 75,000 lawyers.
"Respect for the supreme value of human personality" was stated to be the basis of all law (see page 21 of the Constitutional and Administrative Law by o. Hood Phillips, 3rd Ed.
Freedom under law, it may be added, is not absolute freedom.
It has its own limitations in its own interest, and can properly be described as regulated freedom.
In the words of Ernest Barker, (1) the truth that every man ought to be free has for its other side the complementary and consequential truth that no man can be absolutely free.
that (ii) the need of liberty for each is necessarily qualified and conditioned by the need of liberty for all: that (iii) liberty in the State or legal liberty, is never the absolute liberty of all: that (iv) liberty within the State is thus a relative and regulated liberty; and that (v) a relative and regulated liberty; actually, operative and enjoyed.
is a liberty greater in amount an absolute liberty could ever be if indeed such liberty could ever exist, or even amount to anything more than nothing at all.
Rule of law is the antithesis of arbitrariness.
Plato believed that if philosophers were kings or kings philosophers government by will would be instrinsically superior to government by law, and he so proclaimed in his Republic.
Experience eventually taught him that this ideal was not obtainable and that if ordinary men were allowed to rule by will alone the interests of the community would be sacrificed to those of the ruler.
Accordingly.
in the Laws he modified his position and urged the acceptance of the "second best", namely government under law.
Since then the question of the relative merits of rule by law as against rule by will has been often debated.
In the aggregate the decision has been in favour of rule by law.
On occasions however, we have slipped back into government by will only to return again, sadder and wiser men, to Plato 's "second best" when the hard facts of human nature demonstrated the essential egotism of men and the truth of the dictum that all power corrupts and absolute power corrupts absolutely.
Bracton 's dicta that if the king has no bridle one ought to be put upon him, and that although the king is under no man he is under God and the law Fortescue 's insistence that the realm of England is a reginem politicium et regale and hence limited by law.
Coke 's observation that "Magna Carta is such a fellow that he will have no sovereign"; these are but a few of the beacons lighting the way to the triumph of the rule of law (see pages 3 6 of the Rule of Law by Malcolm Macdonald & ors.).
Rule of law is now the accepted norm of all civilised societies.
Even if there have been deviations 268 from the rule of law, such deviations have been covert and disguised for no government in a civilized country is prepared to accept the ignominy of governing without the rule of law.
As observed on page 77 of Constitutional Law by Wade and Phillips, 8th Ed., the rule of law has come to be regarded as the mark of a free society.
Admittedly its content is different in different countries, nor is it to be secured exclusively through the ordinary courts.
But everywhere it is identified with the liberty of the individual.
It seeks to maintain a balance between the opposing notions of individual liberty and public order.
In every State the problem arises of reconciling human rights with the requirements of public interest.
Such harmonising can only be attained by the existence of independent courts which can hold the balance between citizen and State and compel Governments to conform to the law.
Sanctity of life and liberty was not something new when the Consitution was drafted.
It represented a fact of higher values which mankind began to cherish in its evolution from a state of tooth and claw to a civilized existence.
Likewise, the principle that no one shall be deprived of his life and liberty without the authority of law was not the gift of the Constitution.
It was a necessary corollory of the concept relating to the sanctity of life and liberty; it existed and was in force before the coming into force of the Constitution.
The idea about the sanctity of life and liberty as well as the principle that no one shall be deprived of his life and liberty without the authority of law are essentially two facets of the same concept.
This concept grew and acquired dimensions in response to the inner urges and nobler impulses with the march of civilisation.
Great writers and teachers, philosophers and political thinkers nourished and helped in the efflorescence of the concept by rousing the conscience of mankind and by making it conscious of the necessity of the concept as necessary social discipline in self interest and for orderly existence.
According even to the theory of social compact many aspects of which have now been discredited, individuals have surrendered a part of their theoretically unlimited freedom in return or the blessings of the government.
Those blessings include governance in accordance with certain norms in the matter of life and liberty of the citizens.
Such norms take the shape of the rule of law.
Respect for law, we must bear in mind, has a mutual relationship with respect for government.
Erosion of the respect for law, it has accordingly been said, affects the respect for the government.
Government under the law means, as observed by Macdonald, that the power to govern shall be exercised only under conditions laid down in constitutions and laws approved by either the people or their representatives.
Law thus emerges as a norm limiting the application of power by the government over the citizen or by citizens over their fellows.
Theoretically all men are equal before the law and are equally bound by it regardless of their status, class, office or authority.
At the same time that the law enforces duties it also protects rights, even against the sovereign.
Government under law thus seeks the establishment of an ordered community in which the individual, aware of his rights and duties, comprehends the area of activity within which, as a responsible and intelligent person, he may 269 freely order his life, secure from interference from either the government or other individuals (see Rule of Law, page 6).
To quote further from Professor Macdonald: "It is clear enough that high echelon administrators are understandably impatient with the restraints imposed upon them by the traditional concept of the rule of law as developed by Dicey.
Administrators deal with the implementation of highly technical and complex matters involving the immediate interests of many citizens, To accomplish this they are granted wide discretion in the use of administrative power to effectuate broad policies laid down by the legislators.
It is natural that they should desire to have the conflicts which arise as the result of the exercise of their discretion adjudicated by tribunals composed of experts acquainted with the details of the matters at issue, rather than by judges trained only in the law.
Hence their resistance to judicial review of administrative 'findings of fact ' as opposed to 'findings of law '.
The very things which a court of law prizes rules of evidence, common law procedures, even due process frequently appear to the administrators as obscurantist devices employed by those who oppose the very principle of the policy he is attempting to effectuate.
Often, secretly if not openly, the administrator considers his policy to be the incarnation of the best interests of the people, or at least of their best interests if they really understood them, and hence considers himself as arrayed on the side of progress and light against the dark forces of reaction.
E Thus our 'wonderland of bureaucracy ', as Beck has called it, has sought autonomy from the traditional rule of courts and law.
If it should succeed we should then indeed be confronted with a vital segment of govern mental power which would have escaped from legal control and become arbitrary in its acts.
To prevent this we have subjected the acts of administrators to challenge in the courts on the basis of ultra vires, and provided for judicial review of administrative tribunals ' finding of law." (see ibid page 8) .
To use the words of Justice Brandeis(1) with some modification, experience should teach us to be most on our guard to protect liberty when the Government 's purposes are beneficent.
Men born to freedom are naturally alert to repel invasion of their liberty by evil minded persons.
Greatest danger to liberty lies in insidious encroachment by men of zeal, well meaning but lacking in due deference for the rule of law Even in the absence of article 21 in the Constitution, the State has got no power to deprive a person of his life or liberty without (1) Olmstead vs United States, ; (1928).
270 the authority of law.
This is the essential postulate and basic assumption of the rule of law and not of men in all civilised nations.
Without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning.
The principle that no one shall be deprived of his life or liberty without the authority of law is rooted in the consideration that life and liberty are priceless possessions which cannot be made the plaything of individual whim and caprice and that any act which has the effect of tampering With life and liberty must receive sustenance from and sanction of the laws of the land.
Article 21 incorporates an essential aspect of that principle and makes it part of the fundamental rights guaranteed in Part III of the Constitution.
It does not, however, follow from the above that if article 21 had not been drafted and inserted in Part III, in that event it would have been permissible for the State to deprive a person of his life or liberty without the authority of law.
No case has been cited before us to show that before the coming into force of the Constitution or in countries under rule of law where there is no provision corresponding to article 21, a claim was ever sustained by the courts that the State can deprive a person of his life or liberty without the authority of law.
In fact, any suggestion to such a claim was unequivocally repelled.
In the case of James Sommersett(1) Lord Mansfield dealt with a case of a negro named Sommersett, who was being taken in a ship to Jamaica for sale in a slave market.
When the ships anchored at London port, a habeas corpus petition was presented by some Englishmen who were moved by the yelling and cries of Sommersett.
In opposition to the petition the slave trader took the plea that there was no law which prohibited slavery.
Lord d Mansfield while repelling this objection made the following observation in respect of slavery which is one of the worst forms of deprivation of personal freedom: "It is so odious that nothing can be suffered to support it but positive law: whatever inconveniences, therefore, may follow from this decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged.
" In other case, Fabriqas vs Mostyn(2) Lord Mansfield observed on page 173: "To lay down in an English court of Justice that a Governor acting by virtue of Letters Patent.
under the Great Seal, is accountable only to God and his own con science; that he is absolutely despotic and can spoil, plunder.
and affect His Majesty 's subjects, both in their liberty and property, with impunity, is a doctrine that cannot be maintained" The above observations were relied upon in the matter of Ameer Khan(3).
I may also refer to the observations of Lord Atkin in the (1) [1772], 16 Cr.
Pract.
(2) ; (3) 6 Bengal Law Reports 392.
271 case of Eshuqbavi Eleko vs Officer Administering the Government of Nigeria (1) "In accordance with British jurisprudence, no member of the executive can interfere with the liberty or property of ;3 British subject except on the condition that he can sup port the legality of his action before a Court of Justice.
And it is the tradition of British Justice that Judges should not shrink from deciding such issues in the face of the executive The above rule laid down in Eleko 's case was followed by the High Courts in India before the coming into force of the Constitution in Prabhakar Kesheo Tare & ors.
vs Emperor(2), Vimlabai Deshpande vs Emperor(2), Jitendranath Ghosh v, The Chief Secretary to the Government of Bengal(4) and In re: Banwari Lal Roy & ors.(5).
The rule laid down in Eleko 's case was also followed by the Constitution Benches of this Court after the coming force of the Constitution in the cases of Bidi Supply Co. vs The Union of India & ors.(6) and Basheshar Nath vs The Commissioner of Income tax, Delhi & Rajasthan & Anr.(7).
I am unable to subscribe to the view that when right to enforce the right under article 21 is suspended, the result would be that there would be no remedy against deprivation of a person 's life or liberty by the State even though such deprivation is without the authority of law or even in flagrant violation of the provisions of law.
The right not to be deprived of one 's life or liberty without the authority of law was not the creation of the Constitution.
Such right existed before the Constitution came into force.
The fact that the framers of the Constitution made an aspect of such right a part of the fundamental rights did not have the effect of exterminating the independent identity of such right and of making article 21 to be the sole repository of that right.
Its real effect was to ensure that a law under which a person can be deprived of his life or personal liberty should prescribe a procedure for such deprivation or, according to the dictum laid down by Mukherjea, J. in Gopalan 's case, such law should be a valid law not violative of fundamental rights guaranteed by Part III of the Constitution.
Recognition as fundamental right of one aspect of the pre Constitutional right cannot have the effect of making things less favourable so far as the sanctity of life and personal liberty is concerned compared to the position if an aspect of such right had not been recognised as fundamental right because of the vulnerability of fundamental rights accruing from article 359.
I am also unable to agree that in view of the Presi (1) (2) AIR 1943 Nag. 26.
(3) A. I. R. (4) I. L. R. (5) (6) ; (7) [1959] Supp.
(1) section C. R. 528.
272 dential order in the matter of sanctity of life and liberty, things would be worse off compared to the state of law as it existed before the coming into force of the Constitution.
The case of Dhirubha Devisingh Gohil vs The State of Bombay(1) upon which reliance has been placed by learned Attorney General cannot be of much assistance to him.
In that case this Court held that the validity of the Bombay Taluqdari Tenure Abolition Act, 1949 cannot be questioned on the ground that it takes away or abridges the fundamental rights conferred by the Constitution of India in view of the fact that Act had been inserted, in the Ninth Schedule of the Constitution.
This Court also repelled the contention that the said Act was violative of section 229 of the Government of India Act, 1935 because, in the opinion of the Court, the right secured by section 229 was lifted into the formal category of a fundamental right.
The principle laid down in that case cannot be invoked in a case like the present wherein the area covered by the right existing since before the Constitution is wider than the area covered by the fundamental right and the fundamental right deals with only an aspect of such pre existing right.
Moreover, the correctness of the view taken in the above case, in my opinion, is open to question in view of the later decision of Makhan Singh (supra) decided by a Bench of seven Judges wherein it has been observed on page 821 that after the coming into force of the Constitution, a detenu has two remedies, one under article 226 or article 32 of the Constitution and another under section 491 of the Code of Criminal Procedure.
Makhan Singh 's case, as discussed elsewhere, shows that the remedy under an earlier statuory provision would not get obliterated because of the identical remedy by a subsequent Constitutional provision and that the two can co exist without losing their independent identity.
Preventive detention, though not strictly punishment, is akin to punishment, because of the evil consequences of being deprived of one 's liberty.
No one under our laws can be deprived of his life or liberty without the authority of law.
This would be evident from the fact that if a person without the authority of law takes another person 's life, he would normally be guilty of the offence of culpable homicide.
Likewise, if a person deprives another of his liberty by confining him, he would in the absence of any valid justification, be guilty of wrongful confinement.
It is for that reason that courts have insisted upon the authority of law for a public servant to take away someone 's life or liberty.
An executioner carrying out the sentence of death imposed by the court would not commit the offence of homicide, because he is executing the condemned man in obedience to a warrant issued by a court having jurisdiction in accordance with the law of the land.
Likewise, a jailor confining a person sentenced to imprisonment is not guilty of the offence of wrongful confinement.
The principle that no one shall be deprived of his life or liberty without the authority of law stems not merely from the basic assumption in every civilised society governed by the rule of law of the (1) ; 273 sanctity of life and liberty, it flows equally from the fact that under our penal laws no one is empowered to deprive a person of his life or liberty without the authority of law.
The fact that penal laws of India answer to the description of the word "law", which has been used in article 21 would not militate against the inference that article 21 is not the sole repository of the right to life or personal liberty and that the principle that no one shall be deprived of his life or personal liberty without the authority of law flows from the penal laws of India.
Nor is it the effect of article 21 that penal laws get merged in article 21 because of the fact that they constitute "law" as mentioned in article 21 for were it so the suspension of the right to move a court for enforcement of fundamental right contained in article 21 would also result in suspension of the right to move any court for enforcement of penal laws It has been pointed out above that even before the coming into force of the Constitution, the position under the common law both in England and in India was that the State could not deprive a person of his life and liberty without the authority of law.
The same was the position under the penal laws of India.
It was all offence under the Indian Penal Code, as already mentioned, to deprive a person of his life or liberty unless such a course was sanctioned by the laws of the land.
An action was also maintainable under the law of torts for wrongful confinement in case any person was deprived of his personal liberty without the authority of law.
In addition to that, we had section 491 of the Code of Criminal Procedure which provided the remedy of habeas corpus against detention without the authority of law.
Such laws continued to remain in force in view of article 372 after the coming into force of the Constitution.
According to that article, notwithstanding the repeal by this Constitution of the enactments referred to in article 395 but subject to the other provisions of this Constitution, all the law 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 competent legislature or other competent authority.
The law in force, as observed by the majority of he Constitution Bench in the ease of Director of Rationing and Distribution vs The Corporation of Calcutta & Ors. include not only the statutory law but also custom or usage having the force of law as also the common law of England which was adopted as the law of the country before the coming into force of the Constitution.
The position thus seems to be firmly established that at the time the Constitution came into force, the legal position was that no one could be deprived of his life or liberty without the authority of law.
It is difficult to accede to the contention that because of article 21 of the Constitution, the law which was already in force that no one could be deprived of his life or liberty without the authority of law (1) ; 18 833SCI/76 274 was obliterated and ceased to remain in force.
No rule of construction interpretation warrants such an inference.
Section 491 of the Code of Criminal Procedure continued to remain an integral part of that Code despite the fact that the High Courts were vested with the power of issuing writs of habeas corpus under article 226.
No submission was ever advanced on the score that the said provision had become a dead letter of unforceable because of the fact that article 226 was made a part of the Constitution.
Indeed, in the case of Malkha Singh (supra) Gajendragadkar J. speaking for the majority stated that after the coming into force of the Constitution, a party could avail of either the remedy of section 491 of the Code of Criminal Procedure or that of article 226 of the Constitution.
The above observations clearly go to show that constitutional recognition of the remedy of writ of habeas corpus did not obliterate or abrogate the statutory remedy of writ of habeas corpus.
Section 491 of the Code of Criminal Procedure continued to be part of that Code till that Code was replaced by the new Code.
Although the remedy of writ of habeas corpus is not now available under the new Code of Criminal Procedure, 1973, the same remedy is still available under article 226 of the Constitution.
Our attention has been invited to section 18 of the maintenance of Internal Security Act as amended.
According to that section, no person, including a foreigner, in respect of whom an order is made or purported to be made under section 3 shall have any right to personal liberty by virtue of natural law or common law, if any.
This section would not, in my opinion, detract from my conclusion that article 21 is not the sole repository of the right to personal liberty.
It has been pointed out above that the principle that no one shall be deprived of his life and personal liberty without the authority of laws follows not merely from common law, it flows equally from statutory law like the penal law in force in India.
The above principle, as would appear from what has been discussed elsewhere, is also an essential facet of the rule of law.
Section 18, therefore, cannot be of much assistance to the appellants.
I am also unable to subscribe to the view that section 18 would have the effect of enlarging the ambit of the power of the detaining authority for the purpose of passing an order for detention.
There has been, it needs to be emphasised, no amendment of section 3 of the Act.
Section 18 cannot be construed to mean that even if an order for detention is made on grounds not warranted by section 3 of the Act, it shall be taken to be an order under section 3 of the Act.
Apart from the fact that such an inference is not permissible on the language of section 18, the acceptance of this view would also render the validity of section 18 open to question on the ground that it suffers from the vice of excessive delegation of legislative power.
The legislature is bound to lay down the legislative policy by prescribing the circumstances in which an order for detention can be made.
It is not permissible for the legislature to confer a power of detention without laying down guidelines and prescribing the circumstances in which such order should be made.
To do so would be tantamount to abdication of legislatitve function for in such 275 an event it would be open to the detaining authority to detain a person on any ground whatsoever.
l agree with the learned Attorney General that if we are to accept his argument about the scope of the Presidential order of June 27, 1975, in that event we have to accept it in its entirety and go the whole hog; there is no half way house in between.
So let us examine the consequences of the acceptance of the above argument.
This would mean that if any official, even a head constable of police, capriciously or maliciously, arrests a person and detains him indefinitely without any authority of law, the aggrieved person would not be able to seek any relief from the courts against such detention during the period of emergency.
This would also mean that it would not be necessary to enact any law on the subject and even in the absence of any such law, if any official for reasons which have nothing to do with the security of State or maintenance of public order, but because of personal animosity, arrests and puts behind the bar any person or a whole group or family of persons, the aggrieved person or persons would not be able to seek any redress from a court of law.
The same would be the position in case of threat of deprivation or even actual deprivation of life of a person because article 21 refers to both deprivation of life as well as personal liberty.
Whether such things actually come to pass is not the question before us; it is enough to state that all these are permissible consequences from the acceptance of the contention that article 21 is the sole repository of the right life and personal liberty and that consequent upon the issue of the Presidential order, no one can approach any court and seek relief during he period of emergency against deprivation of life or personal liberty.
In order words, the position would be that so far as executive officers are concerned, in matters relating to life and personal liberty of citizens, they would not be governed by any law, they would not be answerable to any court and they would be wielding more or less despotic powers.
To take another illustration.
Supposing the Presidential order under article 359(1) were to mention article 21 but not article 22.
The acceptance of the above submission advanced on behalf of the appellants would mean that if the State does not release a detenu despite the opinion of the Advisory Board that there is no sufficient cause for his detention and thus keeps him in detention in fragrant violation of the provisions of article 22, no habeas corpus petition would be maintainable and this would be so even though article 22 itself is a fundamental right.
The right to move a court for enforcement of a right under article 19 has now been suspended by the President under an order issued under article 359(1).
The effect of that, on a parity of reasoning advanced on behalf of the appellant would be, that no one can file a suit during the period of emergency against the State for recovery of property or money (which is a form of property) because such a suit, except in some contingencies, would be a Suit to enforce the right contained in article 19.
276 Not much argument is needed to show that if two constructions of Presidential order were possible, one leading to startling results and the other not leading to such results, the court should lean in favour of such construction as would not lead to such results.
Equally well established is the rule of construction that if there be a conflict between the municipal law on one side and the inter national law or the provisions of any treaty obligations on the other, the courts would give effect to municipal law.
If, however, two constructions of the municipal law are possible, the courts should lean in favour of adopting such construction as would make the provisions of the municipal law to be in harmony with the inter national law or treaty obligations.
Every statute, according to this rule, is interpreted, so far as its language permits, so as not to be inconsistent with the committee of nations or the established rules of international law, and the court will avoid a construction which would give rise to such inconsistency unless compelled to adopt it by plain and unambiguous language.
But if the language of the statute is clear, it must be followed notwithstanding the conflict between municipal and international law which results (see page 183 of Maxwell on the Interpretation of Statutes, Twelfth Edition.) As observed by Oippenheim 's International law, although municipal courts must apply Municipal Law even if it conflicts with the Law of Nations, there is a presumption against the existence of such a conflict.
As the Law of Nations is based upon the common consent of the different States, it is improbable that an enlightened State would intentionally enact a rule conflicting with the Law of Nations.
A rule of Municipal Law, which ostensibly seems to conflict with the Law of Nations, must, therefore, if possible, always be so interpreted as to avoid such conflict (see Vol. 1, pages 45 46), Lord Denning gave expression to similar view in the case of Corocraft craft Ltd. vs Pan American Airways Inc. (1) when he observed "The Warsaw Convention is an international convention which is binding in international law on all the countries who have ratified it and it is the duty of these courts to construe our legislation so as to be in conformity with international law and not in conflict with it.
" The rule about the construction of municipal law also holds good when construing the provisions of the Constitution as would appear from International Law by Fenwick, Third Edition, page 90, wherein is observed: "But while in the case of a direct conflict between national and international law, the rule of national law will of necessity take priority until changed to conform to the international obligations of the state, there are numerous cases in which the provisions of the national constitution of the provisions of a particular legislative act are not so but that they may be interpreted so as to enable the executive and the judicial agencies of the state to act in accordance with the obligations of international law." (1) [1969] 1 All E. R.80. 277 According to article 51 our Constitution, the State shall endeavour to inter alia foster respect for international law and treaty obligations in the dealings of organised peoples with one another.
Relying upon that article, Sikri CJ.
Observed in the case of Kesavananda Bharathi vs State of Kerala(1): "It seems to me that, in view of art 51 of the directive principles, this Court must interpret language of the Constitution, if not intractable, which is after all a municipal law, in the light of the United Nations Charter and the solemn declaration subscribed to by India." Articles 8 and 9 of the Universal Declaration of Human Rights in respect of which resolution was passed by the United Nations and was supported by India read as under: ARTICLE 8 Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
ARTICLE 9 No one shall be subjected to arbitrary arrest, detention or exile. ' While dealing with the Presidential order under article 359(1), we should adopt such a construction as would, if possible, not bring it in conflict with the above articles 8 and 9.
From what has been discussed elsewhere, it is plain that such a construction is not only possible, it is also preeminently reasonable.
The Presidential order, therefore, should be so construed as not to warrant arbitrary arrest or to bar right to an effective remedy by competent national tribunals for acts violating basic right of personal liberty granted by law.
It has been argued that suspending the right of a person to move any court for the enforcement of right to life and personal liberty is done under a constitutional provision and therefore it cannot be said that the resulting situation would mean the absence of the rule of law.
This argument, in my opinion, cannot stand close scrutiny for it tries to equate illusion of the rule of law with the reality of rule of law.
Supposing a law is made that in the matter of the protection of life and liberty, the administrative officers would not be governed by any law and that it would be permissible for them to deprive a person of life and liberty without any authority of law.
In one sense, it might in that event be argued that even if lives of hundreds of persons are taken capriciously and maliciously without the authority of law, it is enforcement of the above enacted law.
As observed by Friedmann on page 500 of Law in Changing Society, 2nd Ed., in a purely formal sense, any system of norm based on a hierarchy of orders, even the organised mass murders of Nazi regime qualify as law.
This argument cannot however, disguise the reality of the matter that hundreds of innocent lives have been taken because of the absence of rule of law.
A state of negation of rule of law would not cease to be such a state because of the fact that such a state of negation of rule of law has been brought about by a statute.
Absence of rule (1) [1973] Supp.
S.C.R. 1.
278 of law would nevertheless be absence of rule of law even though it is brought about by a law to repeal all laws.
In the words of Wade, Government under the rule of law demands proper legal limits on the exercise of power.
This does not mean merely that acts of authority must be justified by law, for if the law is wide enough it can justify a dictatorship based on the tyrannical but perfectly legal principle quod principi placuit legis habet vigorem.
The rule of law requires something further.
Powers must first be approved by Parliament, and must then be granted by Parliament within definable limits (see Administrative Law, Third Edition, page 46).
It is no doubt true that Dicey 's concept of rule of law has been criticised by subsequent writers since it equates the rule of law with the absence not only of arbitrary but even of wide discretionary power.
The following reformulation of Dicey 's ideas as applicable to modern welfare state given by H.W. Jones eliminates the equation of arbitrary and wide discretionary powers: "There are, I believe, ideas of universal validity reflected in Dicey 's 'three meanings ' of the rule of law (1) in a decent society it is unthinkable that government, or any .
Officer of government, possesses arbitrary power over the person or the interests of the individual; (2) all members of society, private persons and governmental officials alike, must be equally responsible before the law; and (3) effective judicial remedies are more important than abstract constitutional declarations in securing the rights of the individual against encroachment by the State" (see Law in a Changing Society by Friedmann, 2nd Ed., page 501).
One of the essential attributes of the rule of law is that executive action to the prejudice of or detrimental to the right of an individual must have the sanction of some law.
This principle has now been well settled in a chain of authorities of this Court.
In the case of Rai Sahib Ram Jawaya Kapur & Ors.
vs The State of Punjab(1) Mukherjea C.J. speaking for the Constitution Bench of this Court observed: "Specific legislation may indeed be necessary if the Government require certain powers in addition to what they possess under ordinary law, in order to carry on the particular trade or business.
Thus when it is necessary to encroach upon private rights in order to enable the Government to carry on their business a specific legislation sanctioning such course would have to be passed.
" The above attribute of the rule of law has been specially high lighted in the decision of this Court in the case of State of Madhya Pradesh & Anr.
vs Thakur Bharat Singh(2).
In that case the State Government made an order under section 3 of the Madhya Pradesh Public Security Act, 1959, directing that the respondent (1) shall not be in any place in Raipur District, (ii) shall immediately proceed (1) , (2) ; 279 to and reside in a named town, and (iii) shall report daily to a police station in that town.
The respondent challenged the order by a writ petition under articles 226 and 227 of the Constitution on the ground inter alia, that section 3 infringed the fundamental rights guaranteed under article 19 of the Constitution.
The High Court declared clauses (ii) and (iii) of the order invalid on the ground that clauses (b) and (c) of section 3 (1) of the Madhya Pradesh Public Security Act on which they were based contravened article 19.
On appeal this Court held that section 3 (1) (b) violated article 19 and as it was a pre emergency enactment, it must be deemed to be void when enacted.
Section 3 (1) (b) was further held not to have revived as a result of the proclamation of emergency by the President.
Counsel for the State submitted in the alternative that even if section 3 (1) (b) was void, article 358 protected action, both legislative and executive, taken after proclamation of emergency, and therefore any executive action taken by the State would not be liable to be challenged on the ground that it infringed the fundamental freedoms under article 19.
This contention was repelled.
Shah J. (as he then was) speaking for the Court observed: "All executive action which operates to the prejudice of any person must have the authority of law to support it, and the terms of article 358 do not detract from that rule.
Article 358 expressly authorises the State to take legislative or executive action provided such action was competent for the State to make or take, but for the provisions contained in Part III of the Constitution.
Article 358 does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others: it merely provides that so long as the proclamation of emergency subsists laws may be enacted, and executive action may be taken in pursuance of lawful authority, which if the provisions of article 19 were operative would have been invalid.
Our federal structure is founded on certain fundamental principles: (1) the sovereignty of the people with limited Government authority i. e. the Government must be conducted in accordance with the will of the majority of the people.
The people govern themselves through their representatives, whereas the official agencies of the executive Government possess only such powers as have been conferred upon them by the people; (2) There is distribution of powers between the three organs of the State legislative, executive and judicial each organ having some check direct or indirect on the other: and (3) the rule of law which includes judicial review of arbitrary executive actions.
As pointed out by Dicey in his Introduction to the study of the Law of the Constitution ', 10th Edn., at P. 202 the expression 'rule of law ' has three meanings, or may be regarded from three different points of view. 'It means in the first place, the absolute supremacy or predominance of regular law as opposed to the HE influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative or even of wide discretionay 280 authority on the part of government. ' At p. 188 Dicey points out: 'In almost every continental community the executive exercises far wider discretionary authority in the matter of arrest, of temporary imprisonment, of expulsion from its territory, and the like, than is either legally claimed or in fact exerted by the government in England: and a study of European polities now and again reminds English readers that wherever there is discretion there is room for arbitrariness, and that in a republic no less than under a monarchy discretionary authority.
On the part of the government must mean insecurity for legal freedom on the part of its subjects.
' We have adopted under our Constitution not the Continental system but the British system under which tile rule of law prevails.
Every act done by the Government or by its officers must, if it is to operate to the prejudice of any person, be supported by some legislative authority.
" In Chief Settlement Commissioner, Rehabilitation Department, Punjab & Ors.
vs Om Parkash & Ors.
(1) a Division Bench of this Court observed: "In our constitutional system, the central and most characteristic feature is the concept of the rule of law which means, in the present context, the authority of the law courts to test all administrative action by the standard of legality.
The administrative or executive action that does not meet the standard will be set aside if the aggrieved person brings the appropriate action in the competent court.
" In District Collector of Hyderabad & Ors.
vs M/s. Ibrahim & Co. etc.
(2) the respondents who were recognized dealers in sugar were prevented by an executive order from carrying on the business.
The question which actually arose for decision before this Court was whether the said order was protected under articles 358 and 359 because of the declaration of state of emergency by the president.
Shah J. speaking for Bench of six Judges of this Court observed: "But the executive order immune from attack is only that order which the State was competent, but for the provisions contained in article 19, to make.
Executive action of the State Government which is otherwise invalid is not immune from attack, merely because a proclamation of emergency is in operation when it is taken.
Since the order of the State Government was plainly contrary to the statutory provisions contained in the Andhra Pradesh Sugar Dealers Licensing Order and the Sugar Control order, it was not protected under article 358 of the Constitution.
Nor had it the protection under article 259." (1) ; (2) 281 In Bennett Coleman & Co. & ors.
v Union of India(l) Ray J. (as he then was) speaking for the majority of the Constitution Bench relied upon Thakur Bharat Singh and M/s Ibrahim & Co. cases (supra) and observed: "Executive action which is unconstitutional is not immune during the proclamation of emergency.
During the proclamation of emergency Article 19 is suspended.
But it would not authorise the taking of detrimental executive action during the emergency affecting the fundamental rights in Article 19 without any legislative authority or in purported exercise of power conferred by any per emergency law which was invalid when enacted.
" In Shree Meenakshi Mills Ltd. vs Union of India(2) this Court dealt with petitions challenging the validity of the fixation of price of cotton yarns under an executive order.
Objection was raised to the maintainability of the petitions on the score of proclamation of emergency.
This objection was repelled and reliance was placed on the decision of the Court in the case of Bennett Coleman & Co. In Naraindas lndurkhya vs The State of Madhya Pradesh (3) the Constitution Bench of this Court to which three of us (Ray C. J, I) Khanna and Bhagwati JJ.) were parties placed reliance on the decisions in the cases of Ram Jawaya Kapur, Thakur Bharat Singh and Bennett Coleman & Co. (surpa) These authorities clearly highlight the principle that executive authorities cannot under the rule of law take any action to the prejudice of an individual unless such action is authorised by law.
A fortiori it would follow that under the rule of law it is not permissible to deprive a person of his life or personal liberty without the authority of law.
It may be appropriate at this age to refer to other eases in which stress has been laid on rule of law by this Court.
Wanchoo J. in the case of Director of Rationing and Distribution vs The Corporation of Calcutta & ors.(l) stated.
that in our county the rule of law prevails and our Constitution has guaranteed, it by the provisions contained in Part III thereof as well as other provisions in other Parts.
In Bishan Das & ors.
vs The State of Punjab & ors.(5) section K. Das J. speaking for the Constitution Banch of this Court deprecated action C; taken by the State and its officers on the ground that it was destructive of the basic principles of the rule of law.
In G. Sadanandan vs State of Kerala & Anr.
(supra) Gajendragadkar CJ.
speaking for the Constitution bench observed that the Paramount requirement of the Constitution was that even during (1) ; (2) (3) A. I. R. 1974 section C. 1232.
(4) ; (5) 11962] 2 section C.R. 69. 282 emergency.
the freedom of Indian citizens would not be taken away without the existence of justifying necessity specified by the Defence of India Rules.
In section G. Jaisinghani vs Union of India & ors.(1) Ramaswami J. speaking for the Constitution Bench of this Court observed as under: "In this context it is important to emphasise that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based.
In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits.
The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is.
If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law.
(See Dicey 'Law of the Constitution ' Tenth Edn., Introduction ex). 'Law has reached its finest moments ', stated Douglas, J. in United States vs Wunderlick(2), 'when it has freed man from the unlimited discretion of some ruler .
Where discretion is absolute, man has always suffered '.
It is in this sense that the rule of law may be said to be sworn enemy of caprice.
Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilkes(3), 'means sound discretion guided by law.
It must be governed by rule, not by humour: It must not be arbitrary, value and fanciful. ' " In the case of Shrimati Indira Nehru Gandhi vs Shri Raj Narain(4) both Ray CJ.
and Chandrachud J. laid stress on the rule of law in our constitutional scheme.
It would not, in my opinion, be correct to consider rule of law as a vague or nebulous concept because of its description as an unruly horse by Ivor Jennings.
Indeed, according to Jennings, the rule of law demands in the first place that the powers of the Executive should not only be derived from law, but that they should be limited by law.
Whatever might be the position in peripheral cases, there are certain aspects which constitute the very essence of the rule of law.
Absence of arbitrariness and the need of the authority of law for official acts affecting prejudicially rights of individuals is one of those aspects.
The power of the courts to grant relief against arbitrariness or absence of authority of law in the matter of the liberty of the subject may now well be taken to be a normal feature of the rule of law.
To quote from Halsbury 's Laws of England, Third Edition, Vol. 7, (1) [1967] 2 section C. R. 703.
(2) ; (3) at 2539.
(4) [19761 2 section C. R. 347 283 para 416, the so called liberties of the subject are really implications drawn from the two principles that the subjects may say or do what he pleases, provided he does not transgress substantive law, or infringe the legal rights of others, whereas public authorities including the Crown) may do nothing but what they are authorised to do by some rule of common law or statute.
The essence of rule of law, according to Prof. Goodhart, is that public officers are governed by law, which limits their powers.
It means Government under law the supremacy of law over the Government as distinct from Government by law the mere supremacy of law in society generally which would apply also to totalitarian states (See page 42 of constitutional and Administrative Law by Hood Phillips, Third Edition).
I may mention that there has been an amendment of article 359 inasmuch as clause (1A) has been added in that article.
The effect of the insertion of that clause in article 359 is that while an order made under clause (1) mentioning any of the rights conferred by Part III is in operation, nothing ill that Part conferring those rights shall restrict the power of the State to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall.
to the . extent of the incompetency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects thing done or omitted to be done before the law so ceases to have effect.
Clause (1A) thus protects laws and executive actions from any attack on validity on the score of being violative of the fundamental rights mentioned in the Presidential order in the same way as article 358 protects the laws and executive actions from being challenged on the ground of being violative of article 19 during the period of emergency.
If the existence of article 358 did not have the effect of dispensing with the necessity for an executive action operating to the prejudice of tile right of a citizen of the authority of law, the same must necessarily be the position after the insertion of clause (1A) in article 359.
It is significant that the language of clause (1A) of article 359 in material respect is substantially the same as that of article 358.
The language of clause (1A) of article 359 makes it clear that the protection which is afforded by that clause is to such law or executive action is the State would but for the provisions contained in Part III of the Constitution be competent to make or take.
The word "competent" has a significance and it is apparent that despite the Presidential order under article 359(1), in the case of executive action the competence of the State to take such action would have to be established.
Such competence would, however, be judged ignoring the restriction placed by the provisions of Part III of the Constitution.
To put it in other words, clause (1A) of article 359 does not dispense with the necessity of competence to make law or take executive action.
The only effect of that clause is that during the period of emergency the restriction placed upon the competence by fundamental rights would not be there.
But it would still be necessary to establish the competence dehors the restrictions of the fundamental rights.
284 The matter can also be looked at from another angle.
Before any public authority can deprive a person of his life or personal liberty, two requirements are to be satisfied: (1) Power must be conferred by law upon such authority to deprive a person of his life or liberty; and (2) Law must also prescribe the procedure for the exercise of such power.
Suspension of the right to move any court for the enforcement of the right under article 21 can at the best impinge upon the second requirement; it cannot affect the first requirement which is a cardinal principle of the rule of law.
l am conscious of the fact that though article 21 refers to procedure established by law, there are observations in Gopalan 's case that the article would also cover substantive law for affording protection to life and liberty.
What article 21 lays down is that no person shall be deprived of his life or personal liberty except according to procedure established by law.
Procedure about the exercise of power of depriving a person of his life or personal liberty necessarily presupposes that the substantive power of depriving a person of his life or personal liberty has been vested in an authority and that such power exists.
Without the existence of such substantive power, no question can arise about the procedure for the exercise of that power.
It has, therefore, been held that though there is no reference to substantive power in article 21, the said article would cover both the existence of the substantive power of depriving a person of his life and personal liberty as well as the procedure for the exercise of : that power.
The question with which we are concerned is as Lo what is the effect of the suspension of the right to move a court for.
the enforcement of the right contained in article 21.
The effect.
it may possibly be argued, is that consequent upon such suspension if a person is deprived of his life or personal liberty under a law not satisfying the second requirement indicated above, he cannot seek judicial redress on that score.
Would it, however, follow from the suspension of such right that no judicial remedy would be available if a personal is deprived by an authority of his life or personal liberty even though such an authority has not been vested with the substantive power of deprivation of life and personal liberty.
The answer to this question in my opinion, should plainly be in the negative.
The suspension of the right to move a court for the enforcement of the right contained in article 21 cannot have the effect of debarring an aggrieved person from approaching the courts with the complaint regarding deprivation of life or personal liberty by an authority on the score that no power has been vested in the authority to deprive a person of life or liberty.
The presupposition of the existence of substantive power to deprive a person of his life or personal liberty in article 21 even though that article only mentions the procedure, would not necessarily point to the conclusion that in the event of the suspension of the right to move any court for the enforcement of article 21, the suspension would also dispense with the necessity of the existence of the substantive power.
The coexistence of substantive power and procedure established by law for depriving a person of his life and liberty 285 which is implicit in article 21 would not lead to the result that even if there is suspension of the right regarding procedure, suspension would also operate upon the necessity of substantive power.
What is true of a proposition need not be true of the converse of that proposition.
The suspension of the right to move any court for the enforcement of the right contained in article 21 may have the effect of dispensing with the necessity of prescribing procedure for the exercise of substantive power to deprive a person of his life or personal liberty, it can no case have the effect of permitting an authority to deprive a person of his life or personal liberty without the existence of substantive personal.
The close bond which is there between the existence of substantive power of depriving a person of his life or personal liberty and the procedure for the exercise of that power, if the right contained in article 21 were in operation, would not necessarily hold good if that right were suspended because the removal of compulsion about the prescription of procedure for the exercise of the substantive power would not do away with the compulsion regarding the existence of that power.
It is significant that there is a difference in the language of article 21 and that of article 31(1) wherein the framers of the Constitution said that no one shall be deprived of his property save by the authority of; law.
In considering the effect of Presidential order suspending the right of a person to move any court for enforcement of right guaranteed by article 21, we should not treat the words "except according to procedure established by law" to be synonymous with save by authority of law".
The President can in exercise of powers conferred by article 359(1) suspend when the proclamation of emergency is in operation, the right to move any court for the enforcement of such of the fundamental rights as may be mentioned in the order.
On the plain language of article 359(1), the President has no power to suspend the right to move any court for the enforcement of rights which are not fundamental rights conferred by Part III of the Constitution.
Rights created by statutes are not fundamental rights conferred by Part III of the Constitution and as such enforcement of such statutory rights cannot be suspended under article 359(1).
Likewise, article 359(1) does not deal with obligations and liabilities which flow from statutory provisions, and it would follow that an order under article 359(1) cannot affect those obligations and liabilities arising out of statutory provisions.
Nor can a Presidential order under article 359(1) nullify or suspend the operation of any statute enacted by a competent legislature.
Any redress sought from a court of law on the score of breach of statutory provisions would be outside the purview of article 359 ( 1 ) and the Presidential order made hereunder.
The Presidential order cannot put the detenu in a worse position than that in which he would be if article 21 were repealed It cannot be disputed that if article 21 were repealed, a detenu would not be barred from obtaining relief under a statute in case there is violation of statutory provisions.
Likewise, in the event of repeal of article 21, a detenu can rightly claim in a court of law that he cannot be deprived of his life or personal liberty without the authority of law.
Article 286 359(1) ousts the jurisdiction of the court only in respect of matters specified therein during the period of emergency.
So far as matters not mentioned in article 359(1) and the Presidential order thereunder concerned, the jurisdiction of the court is not ousted.
A provision which has the effect of ousting the jurisdiction of the court should be construed strictly.
No inference of the ouster of the jurisdiction of the court can not be drawn unless such inference is warranted by the clear language of the provision ousting such Jurisdiction.
I may in this context refer to the observations of the Constitution Bench of this Court in the case of K. Anandan Nambiar & Anr.
vs Chief Secretary, Government of Madras & Ors(1) Gajendragadkar J. speaking for the Constitution Bench observed: "In construing the effect of the Presidential order, it is necessary to bear in mind the general rule of construction that where an order purports to suspend the fundamental rights guaranteed to the citizens by the Constitution, the said order must be strictly construed in favour of the citizens ' fundamental rights." ; I am also unable to accede to the argument that though the position under law may be that no one can be deprived of his right to life or personal liberty without the authority of law, the remedy to enforce the right to life or personal liberty is no longer available during the period of emergency because of the suspension of right to move any court for enforcement of right conferred by article 21.
The basic assumption of this argument is that article 21 is the sole repository of right to life and personal liberty.
Such an assumption, as already ` I stated above, is not well founded.
This apart, a Presidential order under article 359(1) cannot have the effect of suspending the right to enforce rights flowing from statutes, nor can it bar access to the courts of persons seeking redress on the score of contravention of statutory provisions.
Statutory provisions are enacted to be complied with and it is not permissible to contravene them.
Statutory provisions cannot be treated as mere pious exhortations or words of advice which may be abjured or disobeyed with impunity.
Nor is compliance with statutory provisions optional or at the sufferance of the official concerned.
It is the presence of legal sanctions which distinguishes positive law from other systems of rules and norms.
To be a legal system a set of norms must furnish sanctions for some of its precepts.
A legal sanction is usually thought of as a harmful consequence to induce compliance with law.
Non compliance with statutory provision entails certain legal consequences.
The Presidential order cannot stand in the way of the courts giving effect to those consequences.
To put it differently, the executive authorities exercising power under a statute have to act in conformity with its provisions and within the limits set out therein.
When a statute deals with matters affecting prejudicially the rights of individuals, the ambit of the power of the authorities acting under the statute would be circumscribed by its provisions, and it would not be permissible to invoke some indefinite general powers of the executive.
As observed by Lord Atkinson in (1) ; (oh p. 410).
287 the case of Attorney General vs De Keyser 's Royal Hotel Ltd.
,(l) the constitutional principle is that when the power of the Executive to interfere with the property or liberty of subjects has been placed under Parliamentary control, and directly regulated by statute, the Executive no longer derives its authority from the Royal Prerogative of the Crown but from Parliament, and that in exercising such authority the Executive is bound to observe the restrictions which Parliament has imposed in favour of the subject.
It is also not the result of the Presidential order, as discussed elsewhere, that because of the suspension of the right to move any court for enforcement of right under article 21, the remedy of a writ of habeas corpus ceases to be available against the State.
The Presidential order would not preclude a person from challenging the validity of a law or order on grounds other than violation of articles 14, 19, 21 and 22.
It may be pertinent to refer to a decision of this Court in the case of Jaichand Lall Sethia vs State of West Bengal(2) wherein the Constitution Bench of this Court observed after referring to the case of Makhan Singh (supra): "It was pointed out that during the pendency of the Presidential order the validity of the ordinance or any rule or order made thereunder cannot be questioned on the ground that it contravenes articles 14, 21 and 22.
But this limitation cannot preclude a citizen from challenging the validity of the ordinance or any rule or order made thereunder on; any other ground.
If the appellant seeks to challenge the validity of the ordinance, rule or order made thereunder on ally ground other than the contravention of articles 14.
21 and 22, the Presidential order cannot come into operation.
It is not also open to the appellant to challenge the order on the ground of contravention of article 19, because as soon as a Proclamation of Emergency is issued by the President under article 358 the provision of article 19 are automatically suspended.
But the appellant can challenge the validity of the order on a ground other than those covered by article 358, or the Presidential order issued under article 359(1 ) .
Such a challenge is outside the purview of the Presidential order.
For instance.
a citizen will not be deprived of the right to move an appropriate Court for a writ of habeas corpus on the ground that his detention has been ordered mala fide Similarly, it will be open to the citizen to challenge the order of detention on the ground that any of the grounds given in the order.
of detention is irrelevant and there is no real and proximate connection between the ground given and the object which the legislature has in view.
It may be stated in this context that a mala fide exercise of power does not necessarily imply any moral turpitude as a matter of law.
It only means that the statutory power is exercised for purposes foreign to those for which it is in law intended.
In other words, the power conferred by the statute has been utilised (1) ; (2) [1966] Supp.
R. 464.
288 for some indirect purpose not connected with the object of the statute or the mischief it seeks to remedy." Similar view was expressed in the case of Durgadas Shirali vs Union of India & ors(1) In G. Sadanandan vs State of Kerala & Anr.(2) the Constitution Bench of this Court speaking through Gajendragadkar CJ.
struck down a detention order on the ground that it was mala fide.
Our founding fathers made article 226 which confers power on the High Court to issue inter alia writs in the nature of habeas corpus an integral part of the Constitution.
They were aware that under the US Constitution in accordance with article 1 section IX the privilege of the writ of habeas corpus could be suspended when in cases of rebellion or invasion the public safety may require it.
Despite that our founding fathers made no provision in our constitution for suspending the power of the High Courts under article 226 to issue writs in the nature of habeas corpus during the period of emergency.
They had perhaps in view the precedent of England where there had been no suspension of writ of habeas corpus since 1881 and even during tile course of First and Second World Wars.
It would, in my opinion, be not permissible to bring about the result of suspension of habeas corpus by a strained construction of the Presidential order under article 359(1) even though Article 226 continues to remain in force during the period of emergency.
The writ of habeas corpus ad subjiciendum, which is commonly known as the writ of habeas corpus, is a process for securing the liberty of the subject by affording an effective mean or immediate release from unlawful or unjustifiable detention, whether in prison or in private custody.
By it the High Court and the judges of that Court, at the instance of a subject aggrieved, command the production of that subject, and inquire is the cause of his imprisonment.
If there is no legal justification for the detention, the party is ordered to be released.
Release on habeas corpus is not, however, an acquittal, nor may the writ be used as a means of appeal (see Halsbury 's Laws of England" Vol. 11, Third Edition, page 24).
In Greene vs Secretary of State for Home Affairs(3) Lord Wright observed : "It is clear that the writ of habeas corpus deals with the machinery of justice, not the substantive law, except in so far as it can be said that the right to have the Writ is itself part of substantive law.
it is essentially a procedural writ, the object of which is to enforce a legal right .
The inestimable value of the proceedings is that it is the most efficient mode ever devised by any system of law to end unlawful detainments and to secure a speedy release where the circumstances and the law so required." (1) ; (2) (3) 289 Writ of habeas corpus was described as under by Lord Birkenhead in the case of Secretary of State for Home Affairs vs O 'Brien(1): "It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement.
It is of immemorial antiquity, an instance of its use occurring in the thirtythird year of Edward I.
It has through the ages been jealously maintained by courts of law as a check upon the illegal usurpation of power by the executive at the cost of the liege.
" The existence of the power of the courts to issue a writ of habeas corpus is regarded as one of the most important characteristic of democratic states under the rule of law.
The significance of the writ for the moral health of the society has been acknowledged by all jurists.
Hallam described it as the "principal bulwark of English liberty".
The uniqueness of habeas corpus in the procedural armoury of our law cannot be too often emphasised.
It differs from all others remedies in that it is available to bring into question the legality of a person 's restraint and to require justification for such detention.
of course this does not mean that prison doors may readily be opened.
It does mean that explanation may be exacted why they should remain closed.
It is not the boasting of empty rhetoric that has treated the writ of habeas corpus as the basic safeguard of freedom.
The great writ of habeas corpus has been for centuries esteemed the best and sufficient defence of personal freedom (see Human Rights & Fundamental Freedoms by Jagdish Swarup, page 60).
As article 226 is an integral part of the Constitution, the power of the High Court to enquire in proceedings for a writ of habeas corpus into the legality of the detention of persons cannot" in my opinion, lie denied.
Although the Indian Constitution, as mentioned by Mukherjea CJ.
in the case of Ram Jawaya Kapur (supra), has not recognised the doctrine of separation of powers in its, absolute rigidity, the functions of the different parts, or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another.
The executive can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature.
It can also, when so empowered exercise judicial function in a limited way.
The executive however, can never go against the provisions of the Constitution or of any law.
To quote the words of Dr. Ambedkar in the Constituent Assembly: "Every Constitution, so far as it relates to what we call parliament democracy requires three different organs of the State, the executive, the judiciary and the legislature.
I have ; .
not anywhere found in any Constitution a provision saying that the executive shall obey the legislature, nor have I found anywhere in any Constitution a provision that the executive shall obey the judiciay.
Nowhere is such a provision to be (1) (609).
22 833 Sup CI/76 290 found That is because it is generally understood that the provisions of the Constitution are binding upon the different organs of the State.
Consequently, it is to be presumed that those who work the Constitution, those who compose the Legislature and those who compose the executive and the judiciary know their functions, their limitations and their duties.
It is therefore to be expected that if the executive, is honest in working the Constitution, then the executive is bound to obey the Legislature without any kind of compulsory obligation laid down in the Constitution.
Similarly if the executive is honest in working the Constitution, it must act in accordance with the judicial decisions given by the Supreme Court.
Therefore my submission is that this is a matter of one organ of the State acting within its own limitations and obeying the supremacy of the other organs of the State.
In so far as the Constitution gives a supremacy to that is a matter of constitutional obligation which is implicit in the Constitution itself.
" It was further observed by him: "No constitutional Government can function in any country unless any particular constitutional authority remembers the fact that its authority is limited by the Constitution and that if there is any authority created by the Constitution which has to decided between that particular authority and any other authority,, then the decision of that authority shall be binding upon any other organ.
That is the sanction which this Constitution gives in order to see that the President shall follow the advice of his Ministers, that the executive shall not exceed in its executive authority the law made by Parliament and that the executive shall not give its own interpretation of the law which is in conflict with! the interpretation of the judicial organ created by the Constitution." Article 226 of the Constitution confers power upon the High Courts of issuing appropriate writs in case it is found that the executive orders are not in conformity with the provisions of the Constitution and the laws of the land.
Judicial scrutiny of executive orders with a view to ensure that they are not violative of the provisions of the Constitution and the laws of the land being an integral part of our constitutional scheme, it is not permissible to exclude judicial scrutiny except to the extent such exclusion is warranted by the provisions of the Constitution and the laws made in accordance with those provisions.
There is, as already mentioned, a clear demarcation of the spheres of function and power in our Constitution.
The acceptance of the contention advanced on behalf of the appellants would mean that during the period of emergency, the courts would be reduced to the position of being helpless spectators even if glaring and blatant instances of deprivation of life and personal liberty in contravention of the statute are brought to their notice.
It would also mean that whatever 291 may be the law passed by the legislature, in the matter of life and personal liberty of the citizens, the executive during the period of emergency would not be bound by it and would be at liberty to ignore and contravene it.
It is obvious that the acceptance of the contention would result in a kind of supremacy of the executive over the legislative and judicial organs of the State, and thus bring about a constitutional imbalance which perhaps was never in the contemplation of the framers of the Constitution.
The fact that the government which controls the executive has to enjoy the confidence of the legislature does not detract from the above conclusion.
The executive under our constitutional scheme is not merely to enjoy the confidence of the majority in the legislature, it is also bound to carry out the legislative intent as manifested by the statutes passed by the legislature.
The Constitution further contemplates that the function of deciding whether the executive has acted in accordance with the legislative intent should be performed by the courts.
The cases before us raise questions of utmost importance and gravity, questions which impinge not only upon the scope of the different constitutional provisions, but have impact also upon the basic , .
values affecting life, liberty and the rule of law.
More is at stake in these cases than the liberty of a few individuals or the correct construction of the wording of are order.
What is at stake is the rule of law.
If it could be the boast of a great English judge* that the air of England is too pure for a slave to breathe, cannot we also say with ' I justifiable pride that this sacred land shall not suffer eclipse of the rule of law and that the Constitution and the laws of India do not permit life and liberty to be at the mercy of absolute power of the executive, a power against which there can be no redress in courts of law.
even if it chooses to act contrary to law or in an arbitrary and capricious manner.
The question is not whether there can be curtailment of personal liberty when there is threat to the security of the State.
I have no doubt that there can be such curtailment even on an extensive scale, in the face of such threat.
The question is whether the laws speaking through the authority of the courts shall be absolutely silenced and rendered mute because of such threat.
No one can deny the power of the State to assume vast powers of detention in the interest of the security of the State.
It may indeed be necessary to do ' so to meet the peril facing the nation.
The considerations of security of the State must have a primacy and be kept in the forefront compared to which the interests of the individuals can only take a secondary place.
The motto has to be "Who lives, if the country dies".
Extraordinary powers are always assumed by the. government in all countries in times of emergency because of the extraordinary nature of the emergency.
The exercise of the power of detention, it is well settled" depends upon the subjective satisfaction of the detaining authority and the courts can neither act as courts of appeal over the decisions of the detaining authority nor can they substitute their own opinion for that of the authority regarding the necessity of detention.
There is no antithesis between the power of the *Lord Mansfield in the case of James Sommersett (1772 State Trials page 1) 292 State to detain a person without trial under a law of preventive detention and the power of the court to examine the legality such detention.
As observed by Lord Atkin in Rex vs Halliday(l) while dealing with the argument that the Defence of Realm Consolidation Act or 1914 arid the regulation made under it deprived the subject of his right under the several Habeas Corpus Acts, that is all entire misconception.
The subject retains every right which those statutes confer upon him to have tested and determined ill a court of law, by means of a writ of Habeas Corpus, addressed to the person in whose custody he may be, the legality of the order or warrant by virtue of which he is given into or kept in that custody.
To quote the words of Lord Macmillan in the case of Liversidge vs Anderson(2).
"It is important to have in mind that the regulation question is a war measure.
This is not to say that the Court sought to adopt in war time canons of construction different from those they follow in peace time.
The fact that the nation is at war is no justification for any relaxation of the vigilance of the Courts in seeing that the law is duly observed, especially in a matter so fundamental as the liberty of the subject.
Rather the contrary.
" In dealing with an application for a writ of habeas corpus, the court only ensure that the detaining authorities act in accordance with the law of preventive detention.
The impact upon the individual of the massive and comprehensive powers of preventive detention with which the administrative officers are armed has to be cushioned with legal safeguards against arbitrary deprivation of personal liberty if the premises of the rule of law is not to lose its content and become meaningless.
The chances of an innocent person being detained under a law providing for preventive detention on the subjective satisfaction of an administrative authority are much greater compared to the possibility of an innocent person being convicted at trial in a court of law.
It would be apposite in this context to refer to the observations of Professor Alan M. Dershowitz: The available evidence suggest that our system of determining past guilt results in erroneous conviction of relatively few innocent people.
We really do seem to practice what we preach about preferring the acquittal of guilty men over the conviction of innocent men.
But the indications are that any system of predicting future crimes would result in a vastly larger number of erroneous confinements that is confinements of persons predicted to engage in violent crime who would not, in fact" do so.
Indeed, all the experience with predicting violent conduct suggests that in order to spot a significant proportion of future violent criminals, we would have to reverse the traditional maxim of the criminal law and adopt a philosophy that it is 'better to confine ten people who would not commit predicted crimes, than to release one who would '." (1) (on page 272).
; 293 (see p. 313 Crime, Law and Society by Goldstein and Goldstein) .
It would, therefore, seem to be a matter of melancholy reflection if the courts were to stay their hand and countenance laxity or condone lapses in relation to compliance with requirements prescribed by law for preventive detention.
In England there was no suspension of the power of the courts to issue a writ of habeas corpus during the First World War and the Second World War.
In India also, there was no absolute bar to approaching the courts during the Sino Indian hostilities of 1962 and the Indo Pak wars of 1965 and 1971.
It has not been suggested that because of the existence of the powers of the court to issue writs of habeas corpus war efforts were in any way prejudicially affected.
The United Nations ' Economic and Social Council endorsed the general agreement reached at the Baguio Seminar that "the writ of habeas corpus or similar remedy of access lo the courts to test the legality and bona fides of the exercise of the emergency powers should never be denied to the citizen".
It drew attention to the following passage from the report of the seminar: "All members recognised that in times of emergency it might be necessary to restrict temporarily the freedom of the individual.
But they were firmly of the view that, whatever temporary restrictive measures might be necessary, recourse to the courts through the right of habeas corpus or other similar remedy should never be suspended.
Rather the legislature could, if necessary,, subject to well defined procedures safeguarding human dignity.
authorise the temporary detention of persons for reasons specified in the law.
By that means the executive can act as emergency may require but the ultimate judicial protection of individual liberty is preserved.
Members hold strongly that it is a fundamental principle that the individual should never be deprived of the means of testing the legality of his arrest or.
custody by recourse to judicial process even in times of emergency.
If that principle is departed from, the liberty of the individual is immediately put in great peril".
l am, therefore, of the view that there is no sufficient ground to interfere with the view taken by all the nine High Courts which went into the matter, that the Presidential order of June 27, 1975 did not affect the maintainability of the habeas corpus petitions to question the legality of the detention orders and that such petitions could be proceeded with despite that order.
We may now deal with the second question regarding the scope and extent of judicial scrutiny in petitions for writ of habeas corpus relating to persons detained under MISA.
For this purpose it would be appropriate to first deal with the position under the above law so far as cases not covered by section 16A are concerned.
According to section 3(1) of MISA, the authorities specified in the sub section may if satisfied with respect to any person (including a foreigner) that with a view to preventing him from acting in any manner prejudicial to (i) the defence of India, the relations of India with foreigner powers, or the security of India, or (ii) the security of 294 the State or the maintenance of public order, or (iii) the maintenance of supplies and services essential to the community, it is necessary so to make an order that such person be detained.
The words 'if satisfied" indicate that the satisfaction of the authority concerned is a condition precedent to the making of a detention order.
Unless therefore the authority concerned is satisfied on the material before it than it is necessary to detain a person with a view to prevent him from indulging in any of the specified prejudicial activities, it has no power to make an order for his detention.
Section 3 also contains an implied injunction that the said authority shall not detain a person under that section for reasons other than those specified therein.
Although the satisfaction contemplated by the sub section is the subjective satisfaction of the authority concerned, it is necessary that it should be arrived at in an objective manner.
It is consequently essential that the facts on the basis of which the authority concerned reaches the conclusion that it is necessary to detain a person should have a rational nexus or probative value and by germane to the object for which such detention is allowed under section 3(1) of MISA.
In case the facts which are taken into account are extraneous, not germane or do not have any live link or reasonable connection with the object for which the detention order can be made, the order would be liable to be quashed.
Even if one out of the many grounds on which a detention order is based is not germane or legally not tenable, the detention order would be quashed because it is difficult to predicate that the detaining authority would have come to the requisite satisfaction even in the absence of that ground.
It is plainly not possible to estimate as to how far the irrelevant or untenable ground operated on the mind of the appropriate authority and contributed to the creation of the satisfaction on the basis of which the detention order was made.
To Say that the other ground which still remains is quite sufficient to sustain the order would be to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the statute.
A law of preventive detention is not punitive but precautionary.
and preventive.
The power of detention under such law is base(l on circumstance of suspicion and not on proof of allegation as is required at a regular trial for the commission of an offence.
Such a power is exercised because of apprehension of future prejudicial activity on the part of the person ordered to be detained judged in the light of his past conduct and propensity.
The order for preventive detention in such cases postulates prior restraint so that the mischief apprehended at the hands of the person ordered to be detained might not materialise.
The consequences of waiting and declining to take action against that person till the mischief is actually clone would quite often be disastrous and the nation may in some cases have to pay a heavy price for such abstention.
The quantum of material available regarding the conduct and propensity of a person may not be sufficient to warrant his conviction in a court of law for an offence and yet if the material is germane to the object for which detention order can legally be made and the detaining authority is satisfied in view of that material regarding the necessity of making a detention order, such order made by that authority would be upheld as being in accordance with 295 law.
It is also not difficult to visualise a situation wherein serious crimes are committed in broad daylight and yet the witnesses to the crime are so much terrified and awestricken that they dare not depose against the culprits in a court of law.
In such cases also because of the difficulty of securing the conviction of the culprits, the courts have upheld the detention orders, if the activities of the culprits are of such a nature as has a nexus with the object for which detention order can be made.
In a petition for a writ of habeas corpus the courts do not normally question the veracity and sufficiency of the material on the basis of which the authority concerned arrives at the conclusion regarding the necessity of detention.
In case the detenu challenges the correctness or truth of the allegations on the basis of which the detention order is made, he should normally do so by means of representation contemplated by clause (5) of article 22.
It is legitimate to expect that the authority concerned and the advisory board when the matter comes up before them shall take into account the stand taken by the detenu regarding those allegations.
It would be also their function to give consideration to any fresh material which may be produced before them regarding the truth and correctness of those allegations.
In a habeas corpus petition, if it becomes apparent on the record from the admission made by the detaining authority in the return or some other evidentiary material of unquestioned authenticity and probative value that some of the alleged facts upon the basis of which detention order is made are non existent, the court would be well justified in quashing the detention order.
A, court apart from that cannot go behind the truth of the alleged facts If the material is germane to the object for which detention is legally permissible and an order for detention is made on the basis of that material, the courts cannot sit as a court of appeal and substitute their own opinion for that of the authority concerned and hold that the authority concerned should not have arrived at the conclusion regarding the necessity of detention.
At the same time, it is necessary that the authority concerned before deciding to detain a person should apply its mind to the facts before lit in a fair and reasonable manner.
If the conclusion arrived at is so unreasonable that no reasonable authority could ever come to it, the legitimate inference would be that the authority concerned did not apply its mind to the relevant facts and did not honestly arrive at the conclusion.
To use the words of Lord Halsbury in Shrape vs Wakefield (1): " . when it is said that something is to be done with in the discretion of the authorities . that something is to be done according to the rules of reason and justice, not according to private opinion . according to law and not humour.
It is to be, not arbitrary, vague" fanciful, but legal and regular.
" Likewise, if there were no grounds, as observed by Lord Morton in Ross vs Papadopollos(2), or which the authority concerned could he satisfied, the court might infer either that the authority did not honestly form that view or that in forming it, the authority could not (1) p. 179.
(2) (on p. 33).
296 have applied its mind to the relevant facts.
The courts would also interfere if the power of detention is exercised malafide, not in good faith or for an ulterior purpose.
It would follow from the above that if the power of detention is exercised for an improper purpose, i.e., a purpose not contemplated by the statute, the order for detention would be quashed.
Between malice in fact and malice ill law, as observed by Viscount Haldana L.C. in the case of Shearer vs Shields(1), there is a broad distinction which is not peculiar to any particular system of jurisprudence.
A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law.
He may, therefore, be guilty of malice in law, although, so far as the state of his mind is concerned.
, he acts ignorantly, and in that sense innocently.
Malice in fact is quite a different thing; it means an actual malicious intention on the part of the person who has done the wrongful act, and it may be, in proceedings based on wrongs independent of contract, a very material ingredient in the question of whether a valid cause of action can be stated.
The above principle was applied by this Court in detention matters in Bhut Nath vs State of West Bengal(2).
Normally, it is the past conduct or antecedent history of a person which shows a propensity or attendency to act in a particular manner The past conduct or antecedent history of a person can, therefore be appropriately taken into account in making a detention order.
It is indeed largely from the past events showing tendencies or inclinations of a person that an inference can be drawn that he, is likely in the future to act in a particular manner.
In order to justify such an inference.
it is necessary that such past conduct or antecedent history should ordinarily be proximate in point of time.
It would, for instance, be normally irrational to take into account the conduct and activities of a person which took place ten years before the date of his detention and say that even though after the said incident took place nothing is known against the person indicating his tendency to act in a prejudicial manner, even so on they strength of the said incident which is ten.
years old, the authority is satisfied that his detention is necessary.
It is both inexpedient and undesirable to lay down an inflexible test as to how far distant the past conduct or the antecedent history should be for reasonably and rationally justifying the conclusion that the person concerned if not detained may indulge in prejudicial activities.
The nature of the activity would have also a bearing in deciding the question of proximity.
If, for example, a person who has links with a particular foreign power is known to have indulged in subversive activities when hostilities broke out with that foreign power and hostilities again break out with that foreign power after ten years, the authorities concerned, if satisfied on the basis of the past activities that it is necessary to detain him with a view to preventing him from acting in a manner prejudicial to the security of India, might well pass a (1) (2) ; 297 detention order in respect of that person.
The fact that in such a case there is a time lag of ten years between the activities of the said person and the making of the detention order would not vitiate such an order.
Likewise, a remote prejudicial activity may be so similar to a recent prejudicial activity as may give rise to an inference that the two are a part of chain of prejudicial activities indicative of a particular inclination.
In such an event the remote activity taken along with the recent activity would retain its relevance and reliance upon it would not introduce an infirmity.
If, however, in a given case and in the context of the nature of activity the time lag between the prejudicial activity of a detenu and the detention order made because of that activity is ex facie long, the detaining authority should explain the delay in the making of the detention order with a view to show that there was proximity between the prejudicial activity and the detention order.
If the detaining authority fails to do so, in spite of an opportunity having been afforded to it, a serious infirmity would creep into the detention order (see Rameshwar Singh vs District Magistrate Burdwan & Anr.(1) and Sk.
Abdul Munnaf vs State of West Bengal(2) .
One other requirement of a valid order of detention is that the grounds of detention which are communicated to the detenu should not be vague so that he may not be handicapped in making an effective representation against the detention order.
Both article 22(S) of the Constitution and section 8 ( 1 ) of MISA refer to such representation and provide that the detaining authority shall as soon as may be, and in any case not later than the prescribed period, communicate to the person detained the grounds on which the detention order has been made "and shall afford him the earliest opportunity of making representation against the order".
In view of the Presidential order suspending the right of a person to move any court for enforcement of specified fundamental rights, including the one under article 22(5), it may with plausibility be argued that the vagueness of grounds of detention would not warrant the quashing of such detention order during the pendency of the Presidential order on the score of violation of article 22(S).
The Presidential order would, however, not stand in the way of the court quashing the detention order on the score of the infirmity of the vagueness of grounds of detention because of the contravention of section 8 ( 1 ) of MISA.
Every law providing for preventive detention contains certain procedural safeguards.
It is imperative that there should be strict compliance with the requirements of those procedural safeguards to sustain the validity of detention.
Detention without trial results in serious inroads into personal liberty of an individual.
In such cases it is essential to ensure that there is no deviation from the procedural safeguards provided by the statute.
In, the matter of even a criminal trial? it is procedure that spells out much of the difference between the rule of law and the rule by whim and caprice.
The need for strict adherence to strict procedural safeguards is much greater when we are dealing with preventive detention which postulates detention of a (1) ; A. 1.
R 298 person even though he is not found guilty of the commission of an offence.
To condone or allow relaxation in the matter of compliance with procedural requirements would necessarily have the effect of practically doing away with even the slender safeguards provided by the legislature against the arbitrary use of the provisions relating to preventive detention.
The history of personal liberty, we must bear in mind, is largely the history of insistence upon procedure.
I am, therefore, of the view that it would be wholly inappropriate to countenance any laxity in the matter of strick compliance with procedural requirements prescribed for preventive detention.
The observations made in the case of Kishori Mohan vs State of West Bengal(1) have relevance.
It was observed by this Court in that case .
"The Act confers extraordinary power on the executive to detain a person without recourse to the ordinary laws of the land and to trial by courts.
Obviously, such power places the personal liberty of such a person in extreme peril against which he is provided with a limited right of challenge only.
There can, therefore, be no doubt that such a law has to be strictly construed.
Equally also, the power con feared by such a law has to be exercised with extreme care and scrupulously within the bounds laid down in such a law.
Question then arises as to how far are the recitals in the order of detention binding upon the court, and upon whom and to what extent does the onus lie in a petition for a writ of habeas corpus relating to a detained person.
In this respect I find that in the case of King Emperor vs Sibnath Banerji(2) the Judicial Committee, speaking through Lord Thankerton" approved the following observation of the learned Chief Justice of the Federal Court: "It is quite a different thing to question the accuracy of a recital contained in a duly authenticated order, particularly where the recital purports to state as a fact the carrying out of what I regard as a condition necessary to the valid making of that order.
In the normal case the existence of such a recital in a duly authenticated order will, in the absence of any evidence as to its accuracy, be accepted by a court as establishing that the necessary condition was fulfilled.
The presence of the recital in the order will place a difficult burden on the detenu to produce admissible evidence sufficient to establish even a prima facie case that the recital is not accurate.
" The matter was considered by this Court ' by the Constitution Bench of this Court in the case of G. Sadanandan vs State of Kerala & Anr.
(supra) and it was observed as under: "After all, the detention of a citizen in every case is the result of the subjective satisfaction of the appropriate authority; and so, if a prima facie case is made by the petitioner that his detention is either mala fide, or is the result of the casual approach adopted by the appropriate authority, the (1) A. T, R. (1) 71 1. A. 241 .
299 appropriate authority should place before the Court sufficient material in the form of proper affidavit made by a duly authorised person to show that the allegations made by the petitioner about the casual character of the decision or its mala fides, are not well founded.
The failure of respondent No. 1 to place any such material before us in the pre sent proceedings leaves us no alternative but to accept the plea made by the petitioner that the order of detention against him on the 20th October, 1965.1 and more particularly, his continued detention after the 20th October, 1965, ale totally invalid and unjustified.
" The initial burden is on the detenu to show that at his detention is mala fide or not in accordance with law.
If the detenu makes out a prima facie case, the burden shifts on the State and it becomes essential for the State to file a good return.
Once substantial disquieting doubts are raised by the detenu in the mind of the court regarding the validity of his detention, it would be the bounden duty of the State to dispel those doubts by placing sufficient material before the court with a view to satisfy it about the validity of the detention.
In case the detenu fails to discharge the initial burden, his petition for writ of habeas corpus would be dismissed.
Even if the detenu discharges the initial burden and makes out a "prima facie case against the validity of his detention, but the State files a good return and adduces sufficient material before the court to show that his detention is valid, the detenu 's petition would be dismissed.
In case, however,, the detenu discharges the initial burden and makes out a prima facie case against the validity of his detention and the State fails to file a good return and does not place sufficient material on the record to show that the detention is valid, a serious infirmity would creep into the State case as might justify interference by the court and release of the detenu.
More than that, it is not necessary to say for everything in the final analysis would depend upon the individual facts of the case.
We may now turn to the newly added section 16A of MISA.
This section was inserted by section 6 of Act 39 of 1975 with effect from June 29, 1975.
Subsequently, there was a further amendment of section 16A by Act 14 of 1976 which was published on January 25 1976.
According to subsection (1) of section 16A, the provisions of the section would have effect notwithstanding anything contained in MISA or any rules of natural justice during the period of emergency proclaimed on December 3, 1971 and June 25, 1975 or a period or 12 months from June 25., 1975 whichever period was the shortest.
Sub sections (2) and (3) provides for the making of a declaration to that effect by the authorities concerned if they are so satisfied on consideration that it is necessary to detain a person for effectively.
dealing with the emergency.
Sub section (2) deals with cases of persons against whom orders of detention were made under the Act on or after June 25, 1975 but before the coming into force of this section, viz., June 29, 1975? while sub section (3) deals with cases of detention in respect of persons against whom orders for detention were made after the coming into force of the section.
The provision to sub sectional (3) provides for review and the necessity of confirmation within fifteen days of the declaration by the State Government in case 300 such declaration is made by an officer subordinate to the State Government.
Sub section (2A) provides for deemed approval of a detention order made by an officer subordinate to the State Government in case the State Government makes a declaration that the detention of the person ordered to be detained is necessary for dealing effectively with the emergency.
Sub section (4) provides for reconsideration at intervals not exceeding four months of the necessity of detention of a person in respect of whom a declaration is made under sub section (2) or (3).
According to sub section (5), in making any review, consideration or reconsideration under sub sections (2), (3) or (4), the appropriate Government or officer may act on the basis of the information and materials in its or his possession without communicating or disclosing any such information or materials to the person concerned or affording him any opportunity of making any representation against the making under sub section (2)" or the making or confirming under sub section (3), or the non revocation under sub section (4), of the declaration in respect of him.
Sub sections (6) and (7) provide inter alia that sections 8 to 12 shall not apply in the case of a person detained under a detention order to which the provisions of sub sections (2) and (3) apply.
Sub section (8) authorises the Central Government whenever it considers it necessary so to do to require the State Government to furnish to the Central Government the information arid materials on the basis of which declaration has been made or confirmed or not revoked and such other information and materials as the Central Government may deem necessary.
It would appear from what has been stated above that once a declaration is made with respect to a detenu under sub sections (2).
or (3) of section 16A of MISA, the provisions of sections 8 to 12 of MISA would not apply to such a detenu.
The result would be that the grounds of the order of detention would not be disclosed to the person affected by the order.
There would also be no reference of the case of such a person to the Advisory Board.
We may now turn to sub section (9) of section 16A.
According to this sub section, notwithstanding anything contained in any other law or any rule having the force of law, the grounds on which an order of detention is made or purported to be made under sections against any person in respect of whom a declaration is made under sub section (2) or sub section (3) and any information or materials on which such grounds or a declaration under sub section (2) or a declaration or confirmation under sub section (3) or the non revocation under sub section (4) of a declaration are based, shall be treated as confidential and shall be deemed to refer to matters of State and to be against the public interest to disclose and save as otherwise provided in this Act, no one shall communicate or disclose any such ground information or material or any document containing such ground information or material.
According to clause (b) of sub section (9) no person against whom an order of detention is made or purported to be made under section 3 shall be entitled to the communication or disclosure of any such ground, information or material as is referred to in clause (a) or the production to him of any document containing such ground, information or material.
301 So far as the impact of section 16A(9) is concerned on the extent of the power of judicial scrutiny in writs of habeas corpus relating to persons detained under MISA, I am of the view that the matter should not be gone into in these appeals for the following reasons.
Out of the nine High Courts which dealt with the question of maintainability of petitions for writs of habeas corpus, only two, namely, Rajsthan High Court and Nagpur Bench of Bombay High Court have gone into this aspect, while the other seven have not expressed and view in the matter.
Both Rajasthan High Court and Nagpur Bench of the Bombay High Court have upheld the validity of section 16A(9).
While Rajasthan High Court has not read down the provisions of section 16A(9) the Nagpur Bench of the Bombay High Court has expressed the view that it would be permissible for the High Court to can for and peruse the grounds in certain circumstances.
The Nagpur Bench, it may be pointed out, dealt with the provisions of section 16 A(9), as they then existed before its amendment by Act 14 of 1976.
Before us arguments have been addressed on behalf of the respondents challenging the validity of section 16,A(9) on the ground that it is violative of article 226 inasmuch as it prevents the High Court from effectively exercising the jurisdiction under that article to issue was of habeas corpus.
In my opinion, it would not be permissible in these appeals against orders disposing of preliminary objection to decide the question of validity of section 16A(9).
It is manifest that any decision on the question of the validity of section 16A(9) would result either in upholding the validity of the provision or in striking it down.
The latter course is out of question for it would be plainly impermissible to strike down the provision in appeal by the State when the validity of such provision has been upheld by the High Court.
Like wise, it would he impermissible in these appeals to record a finding that the ambit of judicial scrutiny is greater than that found by the High Court even though this Court on consideration of the relevant provisions comes to that conclusion.
There is no appeal before us by the detenu respondents.
This Court in appeal by the State cannot enlarge the area of the unfavourable decision qua the State and make its position worse compared to what it was before the filing of the appeal.
Procedural propriety in matters relating to appeals forbids such a course.
The appeals before us are primarily against the orders of the High Court disposing of the preliminary objections relating, to the maintainability of petitions under article 226 for writs of habeas corpus in view of the Presidential order.
The question of extent of judicial scrutiny in the light of section 16A should, in my opinion be gone into when the whole matter is at large before us and we are not inhibited by procedural and other constraints from going into certain aspects which have a vital bearing.
It is primarily for the High Courts before which the matters are pending to decide the question area of judicial scrutiny in the light of section 16A(9), as amended by Act 14 of 1976.
A course which has the effect of bypassing the High Courts and making this Court in appeals from orders on preliminary objection to decide the matter even before the matter has been considered by the High Court in the light of section 16A, as amended by Act 14 of 1976" should, in my opinion, be avoided.
302 The observations on pages 658 and 659 in the case of J. K. Synthetics Ltd. vs J. K. Synthetics Mazdoor Union (1) can be of no assistance in this case because what has been laid down there is that the respondent can support an award of an Industrial Tribunal on a ground no adopted by the Tribunal so long as in the final result the amount award ed is not exceeded.
The observations in that case do not warrant the enlargement of the area of unfavourable decision against an appellant in the absence of an appeal by the respondent.
Nor does that decision justify adoption of a course which might conceivably lead to such result.
Likewise, no assistance can be derived from clause (3) of article 132 of the Constitution because of the fact that the appeal against the order of the Rajsthan High Court has been filed in pursuance of a certificate of fitness granted under that article.
The only point on which the Rajasthan High Court has decided against the appellant is regarding the maintainability of the petition under article 226.
The effect of article 132(3) would only be that it would be permissible to assail the order of the High Court on the question of Maintability of the petition under article 226 not only on the ground relating to the question of as to the interpretation of the Constitution mentioned in the order granting the certificate but also with the leave of this Court on other grounds.
It is, however, not the effect of article 132(3) that if the High Court in the impugned order decides two distinct preliminary issues, one in favour of one party and the other in favour of the opposite party, this Court in an appeal by only one party against that order of the High Court can also go into the correctness of the issue which has been decided in favour of the appellant.
The fact that the respondents in these appeals have as a matter of abundant caution addressed arguments on sub section (9) of section 16A, so that the submissions of the appellants on that point may not remain unanswered, would not justify departure from the principle that this Court cannot, in the absence of an appeal by the respondent, adopt a course which might conceivably enlarge the area of unfavourable decision against the appellant.
I am, therefore, of the view that the appropriate occasion for going into the question of the constitutional validity of section 16A(9) of MISA and its impact on the power and extent of judicial scrutiny in writs of habeas corpus would be when the State or detenu, whosoever is aggrieved, comes up in appeal against the final judgment in any of the petitions pending in the High Courts.
The whole matter would then be at large before us and we would not be inhibited by procedural and other constraints referred to above.
It would not, in my opinion, be permissible or proper to short circuit the whole thing and decide the matter by bypassing the High Courts who are seized of the matter.
I may now summarise my conclusions: (1) Article 21 cannot be considered to be the sole repository of the right to life and personal liberty.
(2) Even in the absence of article 21 in the Constitution, the State has got no power to deprive a person of his life or personal liberty without the authority of law.
That is (1) ; 303 the essential postulate and basic assumption of the rule of law in every civilised society.
(3) According to law in force in India before the coming into force of the Constitution, no one could be deprived of his life or personal liberty without the authority of law.
Such a law continued to be in force after the coming into force of the Constitution in view of article 372 of the Constitution.
(4) Startling consequences would follow from the acceptance of the contention that consequent upon the issue of the Presidential order in question no one can seek relief from courts during the period of emergency against deprivation of life and personal liberty.
If two constructions of the Presidential order were possible, the court should lean in favour of a view which does not result in such consequence.
The construction which does not result in such consequences is not only possible, it is also preeminently reasonable.
(5) In a long chain of authorities this Court has laid stress upon the prevalence of the rule of law in the country, according to which the executive cannot take action prejudicial to the right of an individual without the authority of law.
There is no valid reason to depart from the rule laid down in those decisions some of which were given by Benches larger than the Bench dealing with these appeals.
(6) According to article 21, no one can be deprived or his life or personal liberty except in accordance with procedure established by law.
Procedure for the exercise of power of depriving a person of his life or personal liberty necessarily postulates the existence of the substantive power.
Then article 21 is in force, law relating to deprivation of life and personal liberty must provide both for the substantive power as wen as the procedure for the exercise of such power.
When right to move any Court for enforcement of right guaranteed by article 21 is suspended, it would have the effect of dispensing with the necessity of prescribing procedure for the exercise of substantive power to deprive a person of his life or personal liberty, it cannot have the effect of permitting an authority to deprive a person of his life or personal liberty without the existence of such substantive power.
(7) A Presidential order under article 359(1) can suspend during the period of emergency only the right to move any court for enforcement of the fundamental rights mentioned in the order.
Rights created by statutes being not fundamental rights can be enforced during the period of emergency despite the Presidential order.
Obligations and liabilities flowing from statutory provisions likewise remain unaffected by the Presidential order.
Any redress sought from a court of law on the score of breach of statutory pro visions would be outside the purview of article 359(1) and the Presidential order made thereunder.
304 (8) Article 226 under which the High Courts can issue writs of habeas corpus is an integral part of the Constitution.
No power has been conferred upon any authority in the Constitution for suspending the power of the High Court to issue writs in the nature of habeas corpus during the period of emergency.
Such a result cannot be brought about by putting some particular construction on the presidential order in question (9) There is no antithesis between the power of the State to detain a person without trial under a law of preventive detention and the power of the court to examine the validity of such detention.
In exercising such power the courts only ensure that the detaining authority acts in accordance with the law providing for preventive detention.
(10) There is no sufficient ground to interfere with the view taken by an the nine High Courts which went into the matter that the Presidential order dated June 27, 1975 did not affect the maintainability of the habeas corpus petitions to question the legality of the detention orders.
(11) The principles which should he followed by the courts in dealing with petitions for writs of habeas corpus to challenge the legality of detention are well established.
(12) The appropriate occasion for this Court to go into the constitutional validity of section 161A(9) of MISA and its impact on the power and extent of judicial scrutiny in writs of habeas corpus would be when the State or a detenu whosoever is aggrieved, comes up in appeal against the final judgment in any of the petitions pending in the High Courts.
The whole matter would then be at large before this Court and it would not be inhabited by procedural and other constraints.
It would not be permissible or proper for this Court to short circuit the whole thing and decide the matter by by passing the High Courts who are seized of the matter.
Before I part with the case, I may observe that the consciousness that the view expressed by me is at variance with that of the majority of my learned brethern has not stood in the way of my ex pressing the same.
I am aware of the desirability of unanimity, if possible.
Unanimity obtained without sacrifice of conviction comments the decision to public confidence.
Unanimity which is merely formal and which is recorded at the expense of strong conflicting views is not desirable in a court of last resort.
As observed by Chief Justice Hughes (1) judges are not there simply to decide cases, but t to decide them as they think they should be decided, and while if may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognized than that unanimity should be secured through its sacrifice.
A dissent in a court of last resort to use his words, is an appeal lo the brooding spirit of the law to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.
The appeals are disposed of accordingly.
(1) Prophets with Honor by Alan Barth, 1974 Ed.
P. 3 6.
305 BEG, J. The two principal questions placed before us for determination in these appeals from decisions given by various High Courts, on certain preliminary objections to the maintainability and hearing of Habeas Corpus petitions, under Article 226 of our Constitution, have been stated as follows by the Attorney General of India: 1.
Whether, in view of the Presidential order dated June 27, 1975, under Clause (1) of Article 359, any writ petition is maintainable under Article 226, before a High Court for Habeas Corpus to enforce the right to personal liberty of a person detained under the on the ground that the order of detention or the continued detention is, for any reason, not under or in compliance with ? 2.
If such a petition is maintainable, what is the scope or ex tent of judicial scrutiny, particularly, in view of the aforesaid Presidential order which covers, inter alia, Clause (5) of Article 22, and also in view of sub section (9) of Section 16A of the ? If the only reason on which a detention is assailed, could be that the provisions of the 26 of 1971 (hereinafter referred to as 'the Act ') have not been complied with, there could be little difficulty in holding, having regard to the natural and obvious meaning of the suspension of "the right to move any Court for the enforcement" of the fundamental right to personal liberty, protected by Article 21 of the Constitution, that this right, with whatever it evolved from or embraced, could not be the basis for any claim to its enforcement during the Emergency.
An that would then remain to consider would be the exact point at which and the form in which the order of the Court denying the petitioner an enforcement of the right could be passed.
The last part of the first question, however, also brings into the area of discussion the case where a petitioner alleges that "for any reason" his detention fans completely outside the Act.
Detenues allege not merely infraction of some provision of the Act, under which a detention is ordered, but, more often, that the detention is for extraneous reasons falling either entirely or partially outside the Act.
"Malafides" is almost invariably alleged presumably on the assumption that almost everything the detenue considers either wrong or erroneous or improper must be "mala fide".
Arguments addressed to us on behalf of the detenues have raised a host of hypothetical questions, such as: What would be the position if the order of detention, on the face of it, either fans outside the provisions of the Act or is made mala fide ? Would a detention order, by any Government servant without even an ostensible or purported statutory authority to support it, not stand on the same footing as a detention by a private person? Would remedy against detention which may be patently illegal.
without need for any real investigation into facts at an also be barred ? Could remedy by way of a writ of Habeas Corpus against any illegal detention by any one in this country, 22 833 Sup CI/76 306 under any circumstances, be held to be suspended during the Emergency ? The next steps in the argument on behalf of detenues consisted of attempts to show that there could be no distinction in principle, between an order which is, prima facie, ultra vires or made mala fide and one which can be shown to be that only if the facts and circumstances surrounding a detention were fully investigated in a Court.
Processes of reasoning, based on hypothetical cases put forward for consideration by us, by learned Counsel for tile detenus seek, by stages to so expand the area of maintainability and investigation on claims for writs of Habeas Corpus in the High Courts that, if we accept them, the result would be that Article 359 of the Constitution and the Presidential orders of 1975 made under it would become entirely meaningless and infructuous.
It seems to me that the two questions set out above, could very wen be compressed into a single question: To what extent, if at an, can a High Court be moved to assert a right to personal liberty, by means of a petition under Article 226 for a writ of Habeas Habeas Corpus during the operation of the Presidential order of 27th June, 1975 ? Speaking for myself, I am extremely reluctant to embark on a consideration and decision of any "pure" question of law.
In cases coming up before Courts, no question of law can be "pure" in the sense that it has no bearing on the facts of a particular case to which it must necessarily be related.
Neither Article 136 nor Article 226 of the Constitution is meant for the exercise of an advisory jurisdiction.
Attempts to lay down the law in an abstract form, unrelated to the facts of particular cases, not only do not appertain to the kind of jurisdiction exercised by this Court or by the High Courts under the provisions mentioned above, but may result in misapplications of the law declared by Courts to situations for which they were not intended at an.
Learned Counsel for the detenus have tried to induce us to answer many questions which may arise in purely hypothetical situations some of which seem to me to be far removed from the realms of reality.
We cannot assume that those who exercise powers of detention are bound to do so, as a rule, as though they were demented reports without any regard for law, justice, reason, or honesty of purpose, solely for achieving objects other than those which are really meant to be served by the Act.
Both sides, however, desire that we should answer questions indicated above on the assumption that the provisions of law contained in the Act have been infringed, in some way, by the detaining authorities in a particular case.
They want us to indicate degrees of transgression of the provisions of the Act, if any, which can justify interference by the High Courts in Habeas Corpus proceedings.
As the facts of no particular case are before s, we can only answer the questions before us with the help, where necessary, of appropriate hypothetical examples.
The learned Attorney General has, very frankly and honestly, submitted that there was no need to bestow upon actions of the detaining authorities the protection given to them only for the duration of the Emergency proclaimed under Article 352(1 ) of the Constitution, if the 307 President did not really intend to confer certain immunities from judicial scrutiny and interference upon detentions by executive authorities, even if some of them were contrary to the letter of the law, so that certain over riding interests of national security and independence may not be jeopardized.
The Attorney General 's submission is that the risks of misuse of powers by the detaining officers and authorities, which are certainly there, must be presumed to have been over ridden by the higher claims of national security which the proclamation of emergency denotes.
It was pointed out that a citizen, or other person who may have been unfairly or illegally detained due to some unfortunate misapprehension or error, does not loose his remedy altogether.
Only his right to move a Court for the enforcement of any of the rights conferred by Part III of the Constitution would be suspended for the time being.
He could always approach higher Governmental authorities.
All of them could not be so unreasonable as to deny redress in a case of genuine injustice.
The propositions thus stated appear to be so reasonable and are so wen founded, as I shall endeavour to show later, in the course of this judgment, in the Constitutional and legal history and the case law of other countries, during periods of Emergency, from whose constitutions what has been described as the "ancient writ of habeas Corpus" has been taken and transplanted into our Constitution that it may seem somewhat surprising that their correctness should be doubted or denied at an.
The propositions have, however, not only been vehemently assailed but the attacks upon them were sought to be supported by attempts to engraft theories upon our Constitution which, if accepted, win destroy the basic principle of the supremacy of the written Constitution which I attempted, in Smt.
Indira Nehru Gandhi vs Shri Raj Narain (1), to explain at some length.
If the clear and unequivocal language of Article 359(1) of our Constitution is the bed rock on which the Attorney General 's arguments to sustain the preliminary objections to the maintainability of Habeas Corpus petitions during the Emergency rest, learned Counsel for the detenus have put forward theories of a nebulous natural law and a common law which, on close scrutiny, appear to me to resolve themselves into what according to the notions of learned Counsel for the detenus, the law ought to be.
Strenuous attempts have been made to dress up these notions in the impressive garb of the "Rule of Law" which evokes the genuine and our and respectful devotion of lawyers and public spirited citizens.
But, the mere veneration of a caption without an understanding of what it really denoted in the past and what it means or should mean today, is another name for obfuscation of thought.
Even in England, the reputed home of the Rule of Law, the rather loose, general, and in exact meaning given to the term by Dicey to describe and glorify certain assumedly special characteristics of the English Constitution, have given place to more realistic, critical, and scientific views of the "Rule of Law" and what Dicey meant: by it.
Sir (1) [1976] 2 S.C.R.347.
308 Ivor Jennings, in "The Law and the Constitution" (3rd Edn.
p. 296) pointed out: .
"Dicey honestly tried (in The Law of the Constitution, not in his polemical works) to analyse, but, like most, he saw the Constitution through his own spectacles, and his vision was not exact.
The growth of the new functions of the State has made much of his analysis irrelevant.
Moreover, the argument from history or, what is the same thing, from the Constitution must be used with discretion.
To say that a new policy is 'unconstitutional ' is merely to say that it is contrary to tradition, and it must always be considered whether the tradition is relevant to new circumstances.
Even if the rule of law as Dicey expounded it had been exact, it would not be a sufficient argument to say of any proposal, as the Committee on Ministers ' Powers said on a minor point, that it was contrary to the rule of law".
Those who glibly talk of the Rule of Law, as expounded by Dicey, forget that Prof. Dicey had made a very gallant and effective (I would not like to use here a colloquial expression, "desperate", to describe it) attempt to repel the correctness of what he caned "the dark saying" of de Tocqueville that the largely conventional "English Constitution has no real existence 'elle n 'existe point)" (See: page 22 of the Dicey 's "Introduction to the Study of the Law of the Constitution" 10th Edn.).
He was at pains to show that the Constitutional Law of Eng land did exist.
It lived and functioned not only in the hearts and minds of Englishmen, also reflected in Parliament, but through the force of healthy conventions and highly disciplined habits of life and thought of the British people.
These conventions and habits had, behind them, the sanction not only of a powerful and intelligent public opinion but also of the control by the Houses of Parliament, wrested from the Crown in the course of historic constitutional struggles, over the finances of the nation.
Dicey distinguished this peculiarly British Constitutional Law from "political ethics" which, according to him, was "mis called Constitution Law".
It was not, he pointed out, International law, the "vanishing point" of law.
Dicey succeeded, at least so far as his statement of the Rule of Law is concerned, in doing nothing more than indicating, under this heading, certain common guiding principles for Courts as wen as Legislators to follow when they needed these.
Hence, he said that the Rule of law and the legal Sovereignty of Parliament were allies in England.
According to him, both these principles so operated as to always support and strengthen each other.
This idealistic rosy optimism, reflecting the Whig tradition of minimum interference with individual freedoms and representing the Constitutional jurisprudence of the hey day of a laissez faire British economic prosperity, was destined to be displaced by the more "down to the earth" pragmatism of the Twentieth Century Britain, attempting to meet economic difficulties and distress through socialistic planning and to build a welfare State by making laws which appeared to those brought up on the traditional postulates of Dicey 's Rule of Law to deny the validity of its basic assumptions.
309 The first of these assumptions or meanings was that any depravation of personal liberty or property must not only be for a "distinct breach of law" but "established in the ordinary legal manner before the ordinary Courts of the land".
He contrasted this "with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint".
He concluded, from what he regarded as a basic Feature of the British Constitution, that an modes of dispensing justice, through specialised administrative authorities and bodies, must necessarily be autocratic and unfair.
He compared the British system with the one under which Voltaire, in 1717, was "sent to the Bastille for a poem which he had not written, of which he did not know the author, and with the sentiments of which he did not agree".
The second assumption of Dicey 's Rule of law was.
"Every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals".
He overlooked the not infrequent injustice caused in England of his time, due to want of adequate remedies against the servants of the Crown, by applications of the maxim: "The King can do no wrong".
He wrote "With us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen".
The third assumption on which Dicey 's Rule of Law rested was what he caned "the predominance of the Legal Spirit" which he described "as a special attribute of English Institutions".
He explained: "We may say that the constitution is pervaded by the rule of law on the ground that the general principles of the constitution (as for example the right to personal liberty, or the right of public meeting) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the Courts; whereas under many foreign constitutions the security (such as it is) given to the rights of individuals results, or appears to result from the general principles of the constitution".
Dicey observed: "There is in the English constitution an absence or these declarations or definitions of rights so dear to foreign constitutionalists.
Such principles? moreover, as you can discover in the English constitution are, like an maxims established by judicial legislation, mere generalisations drawn either from the decisions or dicta of judges, or from statutes which, being passed to meet special grievances, bear a close resemblance to judicial decisions, and are in effect judgments pronounced by the High Court of Parliament.
To put what is really the same thing in a somewhat different shape, the relation of the rights of individuals to the principles of the constitution is not quite the same in countries like Belgium, where the Constitution is the result of a legislative act, as` it is in England, where the constitution itself is based upon legal decisions".
310 Thus, Dicey depicted the British Parliament, while performing even its legislative functions, as if it was a Court following the path shown by judges fined with the spirit of law and with meticulous concern for an the canons of justice.
He concluded: "Our Constitution, in short, is a Judge made Constitution and it bears on its face an the features, good and bad, of judge made law".
Dicey thought that the difference between the unwritten British Constitution and a written Constituion, such as that of Belgium, was not merely a formal one, but revealed entirely differing approaches to basic freedoms.
He observed .
"The matter to be noted is, that where the right to individual freedom is a result deduced from the principles of the constitution, the idea readily occurs that the right is capable of being suspended or taken away.
Where, on the other hand, the right to individual freedom is part of the constitution because it is inherent in the ordinary law of the land, the right is one which can hardly be destroyed without a through revolution in the institutions and manners of the nation." After making the distinction mentioned above, Dicey deals with "the so called suspension of the Habeas Corpus Act".
He said that it bears "a certain similarity to what is caned in foreign countries 'suspending the constitutional guarantees ' ".
He euphemistically, explained: "But, after an, a statute suspending the Habeas Corpus Act falls very far short of what its popular name seems to imply; and though a serious measure enough, is not, in reality, more than a suspension of one particular remedy for the protection of personal freedom.
The Habeas Corpus Act may be suspended and yet Englishmen may enjoy almost all the rights of citizens.
The constitution being based on the rule of law, the suspension of the constituion, as far as such a thing can be conceived possible, would mean with us nothing less than a revolution".
If Dicey, bewitched by the beauties of an unwritten British Constitution could have been shocked by any modern transgressions of the basic principles of his "Rule of Law" in the Introduction to later editions of his book, Dicey modified his earlier views, to some extent, about.
the nature and purposes of "Droit Administratif", accepted the inevitability of change, and noticed the logical consequences of what he himself had described, in his "Law and opinion in England", as the Collectivist or Socialistic trend he would have been even more shocked by the proposition that the cherished principles of his Rule ' of Law could override the statute law which the British Parliament could make and unmake in the exercise, of what Dicey called the "Sovereignty of Parliament".
The truth is that Dicey did not, at first visualise the possibility of any conflict between the Rule of Law and the principles of Parliamentary Sovereignty in England.
And, correctly understood and applied, there should not be serious conflict between them.
But, are principles always correctly understood and applied ? 311 Jennings critically commented upon Dicey 's views (See: "The Law and the Constitution" 3rd Edn.
p. 294) as follows: The rules which in foreign countries naturally form part of a constitutional code "mostly do not exist in England, for the recognised (or legal) supremacy of Parliament presents any fundamental distribution of powers and forbids the existence of fundamental rights.
The supremacy of Parliament is the Constitution.
It is recognised as fundamental law just as a written constitution is recognised as fundamental law Various Public., authorities the Crown, the Houses of Parliament, the courts, the administrative authorities have powers and duties.
Most of them are determined by statute.
Some are traditional, and so are 'determined ' by the common law.
The powers of administrative authorities in respect of 'fundamental liberties ' are mainly contained in statutes.
But even if they were not, I do not understand how it is correct to say that the rules are the consequence of the rights of individuals and not their source.
The powers of the Crown and of other administrative authorities are limited by the rights of individuals; or the rights of individuals are limited by the powers of the administration.
Both statements are correct; and both powers and rights come from the law from the rules".
Thus, Jennings pointed out that what was material was the existence of rules, as a part of Constitutional law, and not their sources or forms.
He tried to show that the basic rule being the supremacy of Statutory law that was "The Constitution" in Britain.
No other rule could compete with it or stand in its way or be a substitute for it.
Dicey, on the other hand, believed that the difference in sources and forms of rules made a great difference in approach and outlook.
But, Dicey also treated the judge made Rule of Law and the rights "guaranteed" by a written constitution as alternatives or different modes of protecting same species of rights.
He never dreamt of looking upon them both as simultaneously existing and available Under a written Constitution in addition to what such a Constitution contained.
Dicey, indicated the basic distinction between the Constitutional position in England" with an unwritten Constitution where the supremacy of Parliament prevailed, and that in the United States of America, with a written Constitution which was supreme.
But, despite the differences in the logical consequences of an unwritten constitution, in a country so largely governed by its conventions and disciplined habits of life and thought as Dicey 's England, and those of the written Constitution of the U.S.A., one common feature, snared by both English and American systems, was the large amount of judicial Constitutional law making which took place in both countries.
In Britain, although the Parliament is the supreme law giver, yet, as Dicey pointed out, there was, out of respect for the judicial function and the Rule of Law, an acceptance of judge made law as the constitutional law of the land which the Parliament could alter, whenever it 312 liked, but did not think of altering presumably because it served very wen, the needs of British people who took pride in their judge made law.
Of course, if Parliament did make a law on any subject and it has made some laws on Constitutional matters also the Courts could not think of questioning the validity of the law so made.
In America, not only was the doctrine of judicial review of legislation, established by Marshall, C. J., in Marbury vs Madison (1) but the "due process" clauses, introduced by the 5th amendment (1791) and by the 14th amendment (1868) of the American Constitution, became the most prolific sources of judicial law making.
They gave to the American Courts an amplitude of power to indulge in what is caned "judicial legislation" which our Constitution makers, after considerable debate, deliberately eschewed by using the expression ' 'procedure established by law" instead of the "due process of law".
Willis, adverting to the very skeletal character of the American Constitution, said: "Our original Constitution was not an anchor but a rudder.
The Constitution of one period has not been the Constitution of another period.
As one period has succeeded another, the Constitution has become larger and larger." In A. K. Gopalan vs The State of Madras,(2) the earliest case in which a comprehensive discussion of fundamental guaranteed freedoms in our Constitution took place, Kania, C. J., after referring to observations of Munro, of James Russen Lowen, of Winis, and of Cooley, on the American Constitution, noted about the nature of our Constitution (at p. 109): "The Constitution itself provides in minute details the legislative powers of the Parliament and the State Legislatures.
The same feature is noticeable in the case of the judiciary, finance, trade, commerce and services.
It is thus quite detailed and the whole of it has to be read with the same sanctity, without giving undue weight to Part III or article 246, except to the extent one is legitimately and clearly limited by the other".
The position in this country is clearly one in which the fundamental law found in the Constitution is paramount.
The Constitution provides the test for the validity of an other laws.
It seeks to deter mine.
the spheres of executive and legislative and judicial powers with meticulous care and precision.
The judicial function, though wider in range when interpreting or applying other articles of the Constitution, particularly Articles 14 and 19, the enforcement of which is also suspended during the current Emergency, is especially constricted by the elaborate provisions of Articles 21 and 22, which deal with personal liberty and preventive detention.
The wider the sweep of the provisions of Article 21 and 22 the more drastic must be the effect of suspending their enforcement.
After an, suspension does not and cannot mean retention under a disguise.
(1) ; (2) ; @ p. 109.
313 The only Rule of Law which can be recognised by Courts of our country is what is deducible from our Constitution itself.
The Constitution is, for us, the embodiment of the highest "positive law" as wen as the reflection of an the rules of natural or ethical or common law Lying behind it which can be recognised by Courts.
It seems to me to be legally quite impossible to successfully appeal to some spirit of the Constitution or to any law anterior to or supposed to lie behind the Constitution to frustrate the objects of the express provisions of the Constitution.
I am not aware of any Rule of Law or reason which could enable us to do that.
What we are asked to do seems nothing short of building some imaginary parts of a Constitution, supposed to lie behind our existing Constitution, which could take the place of those parts of our Constitution whose enforcement is suspended and then to enforce the substitutes.
And, we were asked by some learned Counsel, though not by an, to perform this ambitious task of judicial Constitution making without even using the crutches of implied imperatives of our Constitutional provisions as though we had some plenary legislative Constituent powers.
Fortunately, Judges in this country have no such powers.
And, those who are meant to so function as to keep the other authorities and organs of State within the limits of their powers cannot themselves usurp powers they do not possess.
That is the path of descent into the arena of political controversy which is so damaging for the preservation of the impartiality and prestige of the Judicial function.
We cannot, therefore, satisfy those who may feel the urge, as Omar Khayyam did "to shatter" what they regard as "this sorry scheme of things entire" and to "remould" it nearer their "heart 's desire" '.
I think we must make it clear that the spirit of law or the Rule of Law, which we recognise, cannot, however ominously around like some disembodied ghost serving as a substitute for the living Constitution we actually have.
It has to be found always within and operating in harmony with and never outside or in contact with what our Constitution enjoins.
An that we can do is to faithfully explain what the Constitution and its spirit mean.
We cannot alter or twist these.
The distinction made above between law as it exists and as it has to be recognised and enforced by the State 's judicial organs, and "the law", if we may can it that at an, which could only constitute some rules of ethics but could not be enforced at an, whatever may be its moral worth, was thus stated by John Codman Hurd in his "Law of Freedom and Bondage in the United States" (Negro Universities Press New York (Vol.
I, at p. 3): "Now, jurisprudence is taken to be the science of a rule not merely existing, but one which is actually operative or enforced in or by the win of society or the state.
The Science of what rule ought to be made operative by the win of the state is a different thing; it is a science of rules regarded only as existing, whether operative in civil society that is enforced or not.
A rule made operative by the authority of society, or of the state, is a rule identified with the expressed win of so 314 ciety or of the State.
The win of the state, indicated in some form of expression, is the law, the subject of jurisprudence, and no natural rule which may exist, forms a part of the law unless identified with the win of the state so indicated.
What the state wins is the conterminous measure of law, no pre existing rule is the measure of that win".
John Codman Hurd went on to point out that judicial authorities constituted by the State can only carry out the mandates of the positive law which, for purposes of enforcement, must be deemed to embody an the pre existing enforceable natural and ethical values.
Enforceability, as an attribute of a legal right, and the power of the judicial organs of the State to enforce the right, are exclusively for the State, as the legal instrument of Society, to confer or take away in the legally authorised manner.
It follows from these basic premises of our Constitutional jurisprudence that Courts cannot, during a constitutionally enjoined period of suspension of the enforceability of Fundamental Rights through Courts, enforce what may even be a "fundamental right" sought to be protected by Part III of the Constitution.
The Attorney General has, very fairly and rightly, repeatedly pointed out that no substantive right, whether declared fundamental or not.
except the procedural rights converted into substantive ones by Article 32. could be suspended.
Even the enforcement in general of an such rights is not suspended.
Even the enforcement of specified rights through Courts is suspended for the time being.
The enforceability of a right by a constitutionally appointed judicial organ has necessarily to depend upon the fulfillment of two conditions: firstly its recognition by or under the Constitution as a right.
and, secondly, possession of the power of its enforcement by the judicial organs.
Now, if a right is established, on facts, as a right, it will certainly satisfy the first condition.
But, if the right is unenforceable, because the power of its enforcement by Courts is constitutionally suspended or inhibited, for the duration of the Emergency, its mere recognition or declaration by Courts, either as a right or as a fundamental right, could not possibly help a petitioner to secure his personal liberty.
Article 226 of the Constitution is not meant for futile and unenforceable declarations of right.
The whole purpose of a writ of Habeas Corpus is to enforce a right to personal freedom after the declaration of a detention as illegal when it is so found upon investigation.
It may be that many moral and natural obligations exist outside the Constitution and even outside any positive law this is not denied by the learned Attorney General at an but, their existence is not really relevant for purposes of petitions for writs of Habeas Corpus which lie only to enforce Legally enforceable rights.
Neither the existence nor the possibilities of denials of any rights by the detaining officers of the State, due to frailities of human nature and errors of judgment, are denied by the Attorney General.
ALL that is denied is the correctness of the assertion that they are enforceable, during the period of Emergency, through Courts, if they fan within the purview of rights whose enforcement is suspended.
315 The result of the few very general observations made above by me, before examining, in greater depth, any of the very large number of connected questions and side issues raised I doubt whether it is necessary or of much use, in view of my opinion on the preliminary issue of enforceability, to consider an of then even if it were possible for me to do so may be summarised as follows .
Dicey 's Rule of Law, with special meanings given to it, was meant to prove the existence and peculiarities of the uncodified English Constitutional Law.
According to Dicey himself, these features either did not exist elsewhere or were the very objectives of provisions of written Costitutions of other countries.
On Dicey 's very exposition, no ordinary Judge made law or common law could survive in opposition to statutory law in England, or, in conflict with a written Constitution where there was one.
Enforceability of rights, whether they are constitutional or common law or statutory, in constitutionally prescribed ways by constitutionally appointed judicial organs, is governed solely by he term of the written instrument in a constitution such as curs.
The scope for judicial law making on the subject of enforcement of the right to personal freedom was deliberately restricted by our Constitution makers.
In any case, it is difficult to see any such scope when "enforcement" itself is suspended.
All we can do is to determine the effect of this suspension.
We have now to consider in greater detail: What is it the enforcement of which is suspended and what, if anything remains to be enforced ? In this country, the procedure for the deprivation as wen as enforcement. Of a right to personal freedom is governed partly by the Constitution and partly by ordinarily statutes.
Both fan within the purview of procedure".
Article 21 of the Constitution guarantees, though the guarantee is negatively framed, that "no person shall be deprived of his life or personal liberty except according to procedure established by law.
If an enforcement of this negatively framed right is suspended, a deprivation contrary lo the prescribed procedure is not legalised.
The suspension of enforcement does not either authorise or direct any authority to violate the procedure.
It has to be clearly understood that who. is suspended is really the procedure for the enforcement of a right through Courts which could be said to flow from the infringment of a statutory procedure.
If the enforcement of a right to be free resulting derivatively from both the Constitutional and statutory provisions, based on an infraction of the procedure, which is statutory in cases of preventive detention, is suspended, it seems to me to be impossible to lay down that it becomes enforceable when that part of the procedure which is mandatory is violated but remains unenforceable so long as the part of the procedure infringed is directory.
Such a view would, in any opinion, introduced a distinction which is neither warranted by the language of Article 359 of the Constitution nor by that of the Presidential orders of 1975.
If the claim to assert the right is one based on violation Of procedure, the degree of violation may affect the question whether the right to be free is established at all, but, it should not, logically speaking, affect the result where the enforcement of the right, even in a case in which it has become apparent, is suspended.
316 The question, however, which has been most vehemently argued is: Does Article 21 exhaust every kind of protection given to rights to personal freedom ? Another way in which this question was put is Article 21 of the Constitution "the sole repository" of the substantive as wen as procedural rights embraced by the expression "personal liberty" ? one of the contentions before us was that Article 21 does not go beyond the procedural protection to persons who may be deprived of personal liberty.
Mr. Jethmalani, learned Counsel appearing for one of the detenues, contended that personal freedom was a by product of the removal of constraints or hindrances to the positive freedom of action of the individual.
The contention seemed to be that procedure for depreciation of personal liberty being one of the ways of imposing positive constraints, the removal of a negative procedural protection could not dispense with the necessity to establish a right of the detaining authority under some positive or statutory law to deprive a person detained of his liberty whether the authority concerned followed the right procedure or not in doing so.
The argument is that proof of a just and reason able cause, falling within the objects of the Act so as to create a liability to be detained, must precede the adoption of any procedure to detail a person under the Act.
A "satisfaction" that one of the grounds of detention, prescribed by Section 3 of the Act, is there, was thus said to be a "condition precedent" to the exercise of jurisdiction to detain.
This argument obviously proceeded on a restricted meaning given to the "procedure established by law".
It is very difficult to see why the satisfaction, required by Section 3 of the Act, is not really part of "procedure established by law".
There is, however, an even more formidable difficulty in the way of this argument.
If, as it is undeniable, the procedure under Article 226 is the direct procedural protection, which is suspended by the terms of the Presidential order, read with Article 359, Article 226 win not be available to the detenue at an, for the time being, for showing absence of the required "satisfaction", as a condition precedent to a valid detention order under Section 3 of the Act.
If the "right to move any Court" can be suspended Article 359 is very clear on the point there remains no right, for the time being, to an inquiry into conditions which may enable a party to secure release in assertion of rights guarantee either by Article 21 or by other articles whose "enforcement" is suspended.
Indeed, the clear object of such a suspension seems to me to be that Courts should not undertake inquiries into the violations of the alleged right.
If the fundamental rights in Part III of the Constitution are not suspended, as they obviously are not, but only their enforcement can be and is suspended what is really affected is the power conferred on Courts by Articles 32 and 226 of the Constitution.
The power of the Courts is the direct and effective protection of the rights sought to be secured indirectly by Article 21, and perhaps less indirectly, by some other articles and laws.
Indeed, it is the basic protection because other protections operate through it and depend on it.
If this is curtailed 317 temporarily, the other affected protections become automatically inoperative or ineffective so far as Courts are concerned.
It is no answer to say that the Constitutional power of High Courts cannot be affected by a Presidential order under Article 359 which is as much a part of the constitution as Article 226.
Both articles were there from the commencement of the Constitution.
I do not see how it can be reasonably urged that our Constitution makers did not visualise and intend that the Presidential order under Article 359 must, for the duration of the Emergency, necessarily limit the powers of High Courts under Article 226 albeit indirectly by suspending rights to enforcement of fundamental rights.
It is also not possible for a detenue to fan back upon the last part of Article 226 of the Constitution which enables the use of powers given by this Article "for any other purpose".
Sq long as that purpose is enforcement of a right which is covered by Articles 14 or 19 or 21 or 22 either separately or conjointly, as the enforcement of each of these is now suspended, the inhibition win be there.
Moreover, we have no case before us in which a detenu asks for an order for any purpose other than the one which can only be served by tho issue of a writ of Habeas Corpus.
Each detenu asks for that relief and for no other kind of writ or order.
Therefore, there is no need to consider 'any other purpose".
It is true that some of the learned Counsel for the detenus have strongly relied upon "any other purpose", occurring at the end of Article 226, for enabling the High Court to undertake an investigation suo motu into the question whether the executive is performing its duties.
Other Counsel have submitted that such an enquiry such motu can be undertaken by this Court or by a High Court in exercise of powers to issue writs of Habeas Corpus quite apart from the enforcement of the right of a detenu to any writ or order.
As I have indicated earlier, I am not prepared to answer purely hypothetical questions, except within certain limits, that is to say, only so far as it is necessary for the purposes of illustrating my point of view.
I do not think that the powers of Courts remain unaffected by the suspension of rights or locus standi of detenus.
A Court cannot, in exercise of any supposed inherent or implied or unspecified power, purport to enforce or in substance enforce a right the enforcement of which is suspended.
To permit such circumvention of the suspension is to authorise doing indirectly what law does not allow to be done directly.
Assuming, for purposes of argument, that there is some unspecified residue of judicial ' power in Courts of Record in this country, without deciding what it could be, as that question does not really arise in cases before us, there must be undeniable facts and circumstances of some very grave, extraordinary, and exceptional character to justify the use of such powers, if they exist at and either by this Court or by the High Courts.
So long as the powers of Government are exercised by the chosen representatives of the people, their exercise is presumed to be of the people and for the people.
It has to be borne in mind that the validity of the declaration of Emergency under Article 352 has neither been nor can it be constitutionally challenged in view of Article 352(5) 318 of the Constitution.
And, the validity of Presidential orders of 1975 under Article 359 has not been questioned.
So far, I have only indicated the nature of the problems before us and` my general approach to them.
Before specifically answering questions, stated at the outset, I win deal, as briefly as possible, Under the following Six main heads, with such of the very large number of points raised and authorities cited before us as appear to me to be really necessary for answering the questions caning for our decision: (A) "Rights conferred by Part III" of our Constitution from the point of view of Personal Freedom.
(B) Power to issue writs of Habeaus Corpus and other powers of High Courts under article 226 of the constitution.
(C) The objects of the ( 'the Act ') and the amendments of it.
(D) The purpose and meaning of Emergency provisions, particularly Article 359 of our Constitution.
(E) The effect of the Presidential orders, particularly the order of 27th June, 1975, on the rights of Detenus.
(F) The Rule of Law, as found in our Constitution, and how it operates during the Emergency.
(A) "Rights conferred by Part In" from the point of view of personal freedom.
It is somewhat difficult to reconcile the language of a purported conferment of rights upon themselves by citizens of India with their political sovereignty.
The language of the preamble to the Constitution recites that it is they who were establishing the legally Sovereign Democratic Republic with the objects given there.
Of course, some rights are "conferred" even on non citizens, but that does not remove the semantic difficulty which gave rise to some argument before us.
It seems to me that if, as this Court has already explained earlier (e.g. by me in Shrimati Indira Nehru Gandhi 's case (supra), the Constitution, given unto themselves by the people, is legally supreme, it win not be difficult to assign its proper meaning to the term "conferred".
I do not find the theory unacceptable that There was a notional surrender by the people of India of control over their several or individual rights to a sovereign Republic by means of a legally supreme Constitution to which we owe allegiance.
It only means that we recognise that the Constitution is supreme and can confer rights and powers.
We have to look to it alone and not outside it for finding out the manner in which and the limits subject to which individual citizens can exercise their separate freedoms.
There has to be necessarily, as a result of such a process of Constitution making, a notional surrender of individual freedom so as to convert the possibility of "licence" to an, which ends in the exploitation and oppression of the many weak by the few strong, into the actuality of a freedom for an regulated by law or under the law applicable to an.
This seems to 319 me to be a satisfactory explanation of the language of conferment used with reference to rights.
Apart from the explanation given above, of the language or conferment, the meaning of placing some rights in Part III, whatever be tile language in which this was done, is surely to select certain rights as most essential for ensuring the fulness of lives of citizens.
The whole object of guaranteed fundamental rights is to make those basic aspects of human freedom, embodied in fundamental rights, more secure than others not so selected.
In thus recognising and declaring certain basic aspects of rights as fundamental by the Constitution of the country, the purpose was to protect them against undue encroachments upon them by the legislative, or executive, and, sometimes even judicial (e.g. Article 20) organs of the State.
The encroachments must remain within permissible limits and must take place only in prescribed modes.
The intention could never be to preserve something concurrently in the field of Natural Law or Common Law.
It was to exclude an other control or to make the Constitution the sole repository of ultimate control over those aspects of human freedom which were guaranteed there.
I have already referred to Dicey 's attempt to show that one of the meanings of the Rule of Law in England was that the law made by the ordinary Courts served purposes sought to be achieved in other countries by means of written Constitutions.
This meant that one of the two systems governs the whole field of fundamental rights but not both This very idea is thus put by Keir & Lawson in "Cases in Constitutional Law (5th Edn.
p. 11) :" "The judges seem to have in their minds an ideal constitution, comprising those fundamental rules of common law which seem essential to the liberties of the subject and the proper government of the country.
These rules cannot be repealed but by direct and unequivocal enactment.
In the absence of express words or necessary intendment, statutes win be applied subject to them.
They do not override the statute, but are treated, as it were, as implied terms of the statute.
Here may be found many of those fundamental rights of man which are directly and absolutely safeguarded in the American Constitution or the Declaration des droits de 1 ' homme".
In the passage quoted above, Rules of Natural Justice, which are impliedly read into statutes from the nature of functions imposed upon statutory authorities or bodies, are placed on the same footing as "fundamental rights of men which are directly and absolutely safeguarded" by written Constitutions.
There is, however, a distinction between these two types of basic rights.
The implied rules of natural justice do not, as has been repeatedly pointed out by us, over ride the express terms of a statute.
They are only implied because the functions which the statute imposes are presumed to be meant to the exercised in accordance with these rules.
Hence, they are treated as though they were parts of enacted law.
This Court has repeatedly 320 applied this principle (see: e.g. State of Orissa vs Dr. (Miss) Binapani Dei & Ors)(1) The principles of natural justice which are so implied must always hang, if one may so put it, on pegs of statutory provisions or necessarily follows from them.
They can also be said sometimes to be implied as necessary parts of the protection of equality and equal protection of laws conferred by Article 14 of the Constitution where one of the pillars of Dicey 's principles of the Rule of Law is found em bodied.
Sometimes, they may be implied and read into legislation dealing with rights protected by Article 19 of the Constitution.
They could, at times, be so implied because restrictions on rights conferred by Article 19 of the Constitution have to be reasonable.
Statutory provisions creating certain types of functions may become unreason able, and, therefore, void unless rules of natural justice were impliedly annexed to them.
And, the wen known method of construction is: ut res magis valeat guam pereat" to prefer the construction which upholds rather than the one which invalidates.
Thus, rules of natural justice, even when they are read into statutory provisions, have no independent existence.
They are annexed to statutory duties or fundamental rights so long as they are not expressly excluded.
Their express exclusion by statute may, when the enforcement of fundamental rights.
It is not suspended, affect the validity of a statute.
But, that is so because of the requirements of Articles 14 and 19 of the Constitution and not because they are outside the Constitution altogether.
It is also very difficult for me to understand what is meant by such "Common Law" rights as could co exist and compete with constitutional provisions or take their place when the constitutional provisions become unenforceable or temporarily inoperative.
The whole concept of such alleged Common Law is based on an utter misconception of what "Common Law" means.
The origin of Common Law in England is to be found in the work done by the King 's Judges, who, through their judicial pronouncements, gave to the people of that country a law common to the whole country in the place of the peculiar or conflicting local customs.
Let me quote here from a recent book by Prof. George W. Keeton on "English Law The Judicial Contribution" (at p. 68 69), about what Judges appointed by Henry the II of Anjou did: "It is in his reign that something recognisable as a Common Law begins to emerge.
It is an amalgam of Anglo Saxon and Danish customs and Norman laws governing military tenures, both of which are about to be transformed by several mighty agencies the ever expanding body of original writs, of which Glanville wrote; the assizes which Henry introduced and finally, by the activities of his judges, whether 3 at Westminster or on Circuit.
It is significant that although for some centuries to come, English law was to remain remarkably rich in local customs, we no longer hear, after t Henry 's reign, of the laws of Mercia, Wessex and Northumbria, but of a Common Law of England that is to say, (1)[1967] 2 section C. R. 625.
321 the law of the king 's courts, about which treatises of the calibre of Bracton and Fleta would be written almost exactly a century later, and as the concluding words of Pollock and Maitland 's great work remind us, they and their judicial colleagues were building, not for England alone but 'for king less common wealths on the other shore of the Atlantic ocean and now, one can perhaps add, for many other commonwealths, too.
This we owe ultimately, not to a Norman Conqueror, nor even to a distinguished line of Saxon kings, but to a bow legged and unprepossessing prince of Anjou, of restless energy and great constancy of purpose who built, perhaps, a good deal better than even he knew".
Such were the origins of the Common Law in England.
It is true that Common Law did try to dig its tentacles into Constitutional Law as well.
Chief Justice Coke not only denied to King James the 1st the power to administer justice directly and personally, but he went so far as to claim for the King 's Courts the power to proclaim an Act of Parliament invalid, in Dr. Bonham 's case, if it sought to violate a principle of natural law.
Such claims, however, were soon abandoned by Common Law Courts.
It is interesting to recall that, after his dismissal, by King James the 1st, in 1616, Sir Edward Coke entered politics and became a Member of the House of Commons in Liskeard.
He led a group which resisted Royal claims.
He was the principal advocate of the Petition of Rights which Parliament compelled a reluctant King of England to accept in 1628.
Courts of justice, unable to withstand Royal onslaughts on their authority, joined hands with Parliament and laid down some of the rules which, according to Dicey, gave the Rule of Law to England.
Thus, the judge made fundamental rights, which Parliament would not disturb, out of innate respect for them, existed, legally speaking, because Parliament, representing the people, wanted them.
They could not compete with or obstruct the legal authority of Parliament.
Coke 's doctrine, however, found expression in a constitution which enabled judges to test the validity of even legislation P ' with reference to fundamental rights.
This is also one of the primary functions of Chapter III of our own Constitution.
Another function of provisions of this chapter is to test the validity of the State 's executive action.
So far as Article 21 of the Constitution is concerned, it is abundantly clear that it protects the lives and liberties of citizens primarily from legally unwarranted executive action.
It secures rights to 'procedure established by law '.
If that procedure is to be established by statute law, as it is meant to be, this particular protection could not, on the face of it, be intended to operate as a restriction upon legislative power to lay down procedure although other articles affecting legislation on personal freedom might.
Article 21 was only meant, on the face of it, to keep the exercise of executive powers in ordering deprevations of life or liberty, within the bounds of power prescribed by procedure established by legislation.
23 833 Sup C I/76 322 The meaning of the expression "procedure established by law" came in for discussion at considerable length, by this Court, in A. K. Gopalan 's case (supra).
The majority of the learned James clearly held there that it furnishes the guarantee of "Lex", which is equated with statute law only, and not of "Jus" or a judicial concept of what procedural law ought really to be.
The whole idea, is using this expression, taken deliberately from the Japanese Constitution of the advice, amongst others, of Mr. Justice Felix Frankfurter of the American Supreme Court was to exclude judicial interference with executive action in dealing with lives and liberties of citizens and others living in our country on any ground other than that it is contrary to procedure actually prescribed by law, which, according to the majority view in Gopalan 's case, meant only statute law.
The majority view was based on the reason, amongst others, that, according to well established canons of statutory construction, the express terms of "Lex" (assuming, of course, that The "Lex" is otherwise valid), prescribing procedure, will exclude "Jus" or judicial notions or "due process" or what the procedure ought to be.
Appeals to concepts of "Jus" or a just procedure were made in Gopalan 's case (supra), as implied by Article 21, in an attempted application of "Jus" for testing the validity of statutory provisions.
Although no such question of validity of the procedure established by the Act in ordering actual deprivations of personal liberty has arisen before us, yet, the argument before us is that we should allow use of notions of "Jus" and the doctrine of ultra vires by the various High Courts in judging the correctness of applications of the established procedure by executive authorities to each case at a time when the Presidential order of 27th June 1975 precludes the use of Article 21 by Courts for enforcing a right to personal liberty.
Therefore, the question which arises here is whether "Jus" held by this Court.
in Gopalan 's case, to have been deliberately excluded from the purview of procedure established by law", can be introduced by Courts, through a back door, as though it was an independent right guaranteed by Chapter III or by any other Part of the Constitution.
I am quite unable to accede to the suggestion that this could be done.
We have been referred to the following passage in R. C. Cooper v, Union of India(1) to substantiate the submission that the decision of this Court in Gopalan 's case (supra), on the question mentioned above, no longer holds the field: "We have found it necessary to examine the rationale of the two lines of authority and determine whether there is anything the Constitution which justifies this apparently inconsistent development of the law.
In our judgment, the assumption in A.K. Gopalan 's case that certain articles in the Constitution exclusively deal with specific matters and in determining where there is infringement of the individual 's guaranteed rights, the object and the form of the State action alone need be considered, and effect of the laws on fundamental rights of the individuals in general will be ignored cannot be accepted as correct.
We hold that the (1) ; @ 578, 323 validity 'of law ' which authorises deprivation of property and 'a law ' which authorises compulsory acquisition of property for a public purpose must be adjudged by the application of the same tests.
A citizen may claim in an appropriate case that the law authorising compulsory acquisition of property imposes fetters upon his right to hold property which are not reasonable restrictions in the interests of the general public".
It seems to me that Gopalan 's case (supra) was merely cited, in Cooper 's case (supra), for illustrating a line of reasoning which was held to be incorrect in determining the validity of "law" for the acquisition of property solely with reference to the provisions of Article 31.
The question under consideration in that case was whether Articles 19(1)(f) and 31(2) are mutually exclusive.
Even if, on the strength of what was held in Cooper 's case (supra), we hold that the effects of deprivation upon rights outside Article 21 have also to be considered in deciding upon the validity of "Lex", and that the line of reasoning in Gopalan 's case (supra), that the validity of a law relating to preventive detention must be judged solely with reference to the provisions of Article 21 of the Constitution, is incorrect? in view of the opinion of the majority of learned Judges of this Court hl Cooper 's case (supra), it seem to me that this is hardly relevant in considering whether any claims based on natural law or common law can be enforced.
There is no challenge before us based on Article 19, to any provision of the Act.
Moreover, now that the enforcement of Article 19 is also suspended, the question whether a law dealing with preventive detention may directly or indirectly infringe other rights contained in Article 19 of the Constitution is not relevant at all here for this additional reason.
Mr. Shanti Bhushan, appearing for some of the detenu, seems to have seriously understood the meaning of the majority as well as minority views of Judges of this Court in His Holiness Kesavananda Bharati Sripadagalavaru vs State of Kerala.(1) when he submitted that, as the majority view there was not that natural rights do not exist, these rights could be enforced in place of the suspended guaranteed fundamental rights.
One learned Judge after another in that case emphatically rejected the submission that any theory of natural rights could impliedly limit powers of Constitutional amendment contained in Article 368 of the Constitution.
Tn doing so, none or us held that any natural rights could impliedly become legally enforceable rights.
G Dwivedi, J., in Kesavananda Bharti 's case (supra) said about what could be characterised as a far more "unruly horse" than public policy (at p. 918): "Natural law has been a sort of religion with many political and constitutional thinkers.
But it has never believed in a single Godhead.
It has a perpetually growing pantheon.
Look at the pantheon, and you will observe there: 'State (1) @ 918. 324 of Nature ', 'Nature of Man ', 'Reason, ' 'Cod ', 'Equality ', 'Liberty ', 'Property ', 'Laissez Faire ', 'Sovereignty ', 'Democracy ', 'Civilised Decency ', 'Fundamental Conceptions of Justice ' and even 'War '.
The religion of Natural Law has its illustrious Priestly Heads such as Chrysippus, Cicero, Seneca, St. Thomas Acquinas, Grotius, Hobbes, Locke, Paine, Hamilton, Jefferson and Trietschke.
The pantheon is not a heaven of peace.
Its gods are locked in constant internecine c nflict.
Natural Law has been a highly subjective and fighting faith.
Its bewildering variety of mutually warring gods has provoked Kelson to remark: "outstanding representatives of the natural law doctrine have proclaimed in the name of Justice or Natural Law principles which not only contradict one another, but are in direct opposition to many positive legal orders.
There is no positive law that is not in conflict with one or the other of these principles; and it is not possible to ascertain which of them has a better claim to be recognised than any other.
All these principles represent the highly subjective value judgments of their various authors about what they consider to be just or natural.
" If the concepts of natural law are too conflicting to make them a secure foundation for any alleged "right", sought to be derived from it, until it is accepted and recognised by a positive laws notions of what Common Law is and what it means, if anything, in this country, are not less hazy and unsettled.
Mr. Setalvad, in his Harnlyn Memorial Lectures on "Common Law in India", treated the whole body of general or common statute law and Constitutional Law of this country as though they represented a codification of the Common Law of England.
If this view is correct, Common Law could not be found outside the written constitution and statute law although English Common Law could perhaps be used to explain and interpret our statutory provisions where it was possible to do so due to some uncertainty.
Sometimes, Judges have spoken of the principles of "Justice, equity, and good conscience" (See: Satish Chandra Chakramurthi vs Ram Dayal De(1) Waghela Raj Sanji vs Sheik Mashuddirl & ors.
(2); Baboo S/o Thakur Dhodi vs Mst.
Subanshi W/o Mangal(8), as sources of "Common Law" in this country.
One with some knowledge of development of law in England will distinguish the two broad streams of law there: one supposed to be derived from the customs of the people, but, actually based on judicial concepts of what custom is or should properly be; and another flowing from the Court of the Chancellor, the "Keeper of the King 's Conscience", who used to be approached (1) I. L. R. @ 407 410.
(2) 14 Indian Appeals p. 89 @ 96.
(3) A. I. R. 325 when plain demands of justice failed to be met or caught in the meshes of Common Law, or, were actually defeated by some statute law which was being misused.
The two streams, one of Common Law and an other of Equity, were "mixed" or "fused" by statute as a result of the Judicature Acts in England at the end of the last century in the sense that they became parts of one body of law administered by the same Courts, although they are still classified separately due to their separate origins.
In Stroud 's Judicial Dictionary, we find (See: Vol.
I, 4th Edn.
p. 517): "The common law of England is that body of law which has been judicially evolved from the general custom of the realm".
Here, all that I wish to indicate is that neither rights supposed to be recognised by some natural law nor those assumed to exist in some part of Common Law could serve as substitutes for those conferred by Part III of the Constitution.
They could not be, on any principle of law or justice or reason, virtually added to part III as complete replacements for rights whose enforcement is suspended, and then be enforced, through constitutionally provided machinery, as the unseen appendages of the Constitution or as a separate group of rights outside the Constitution meant for the Emergency which suspends but does not resuscitate in a new form certain rights.
A submission of Dr. Ghatate, appearing for Mr. Advani, was that we should keep in mind the Universal Declaration of Human Rights in interpreting the Constitution.
He relied on Article Sl of the Constitution, the relevance of which for the cases before us is not at all evident to me.
He also relied on the principle recognised by British Courts that International Law is part of the law of the land.
Similarly, it was urged, it is part of our law too by reason of Article 372 of the Constitution.
He seemed to imply that we should read the universal declaration of human rights into our Constitution as India was one of the signatories to it.
These submissions appear to me to amount to nothing more than appeals to weave certain ethical rules and principles into the fabric of our Constitution which is the paramount law of this country and provides the final test of validity and enforceability of rules and rights through Courts.
To advance such arguments is to forget that our Constitution itself embodies those rules and rights.
It also governs the conditions of their operation and suspension.
Nothing which conflicts with the provisions of the Constitution could be enforced here under any disguise.
Emergency provisions in our Constitution are, after all, a recognition and extension of the individual 's natural law right of self defence, which has its expression in positive laws, to the State, the legal organisation through which society or the people in its collective aspect, functions for the protection of the common interests of all Such provisions or their equivalents exist in the Constitutions of even the most advanced democratic countries of the world.
No lawyer can seriously, question the correctness, in Public International Law, of the proposi 326 tion that the operation and effects of such provisions are matter which are entirely the domestic concern of legally sovereign Slates and ca brook no outside interference.
Subba Rao, C.J., speaking for five learned Judges of this Court, in 1.
C. Gorakhnath & ors.
vs State of Punjab & Anr(1) said: (at p. 789 ): "Now, what are the fundamental rights ? They are em bodied in Part III of the Constitution and they may be classified thus: (1) right to equality (ii) right to freedom, (iii) right against exploitation, (iv) right to freedom of religion, (v) cultural and educational rights, (vi) right to property, and (vii) right to constitutional remedies.
They are the rights of the people preserved by our Constitution.
"Fundamental rights ' are the modern name for what have been traditionally known as "natural rights".
As one author puts: "they are moral rights which every human being everywhere at all times ought to have simply because of the fact that in contradistinction with other beings, he is rational and moral".
They are the primordial rights necessary for the development of human personality.
They are the rights which enable a man to chalk out his own life in the manner he likes best.
our Constitution, in addition to the well known fundamental rights, also included the rights of the minorities, untouchables and other backward communities, in such rights".
I do not know of any statement by this Court of the relation between natural rights and fundamental constitutional rights which conflicts with what is stated above.
Hidayatullah, J., in Golaknath 's case (supra) observed (at p 877 ): "What I have said does not mean that Fundamental Rights are not subject to change or modification.
In the most inalienable of such rights a distinction must be made between possession of a right and its exercise.
The first is fixed and the latter controlled by justice and necessity.
Take for example article 21: "No person shall be deprived of his life or personal liberty except according to procedure established by law '.
of all the rights, the right to one 's life is the most valuable.
This article of the Constitution, therefore, makes the right fundamental.
But the inalienable right is curtailed by a murderer 's conduct as viewed under laws.
he deprivation, when it takes place, is not of the right which was immutable but of the continued exercise of the right".
The contents of Article 21 were considered at some length and given a wide connotation by this Court ill Gopalan 's case (supra).
Patanjali Sastri, J., held at pages 195 196: (1) ; @ 789.
327 "It was further submitted that article 19 declared the substantive rights of personal liberty while article 21 provided the procedural safeguard against their deprivation.
This view of the correlation between the two articles has found favour with some of the Judges in the High Courts which have occasion to consider the constitutional validity of the impugned Act.
It is, however, to be observed that article 19 confers the rights therein specified only on the citizens of India, While article 21 extends the protection of life and .
personal liberty to all persons citizens and non citizens alike.
Thus, the two articles do not operate in a conterminous field, and this is one reason for rejecting the correlation suggested.
Again, if article 21 is to be understood as providing only procedural safeguards, where is the substantive right to personnel liberty, of non citizens to be found in the Constitution ? Are they denied such right altogether ? If they are to have no right of personal liberty, why is the procedural safeguard in article 21 extended to them ? And where is that most fundamental right of all, the right to life, provided for in the Constitution? The truth is that article 21, like its American prototype in the Fifth and Fourteenth Amendments of the Constitution of the United States, presents an example of The fusion of procedural and substantive rights in the same provision.
The right to live, though the most fundamental of all, is also one of the most difficult to define and its protection generally takes the form of a declaration that no person shall be deprived of it save by due process of law or by authority of law. 'Process ' or 'procedure ' in this context connotes both the act and the manner of` proceeding to take away a man 's life or personal liberty.
And the first and essential step in a procedure established by law for such deprivation must be a law made by a competent legislature authorising such deprivation".
Mahajan, J., also observed at pages 229 230: "Article 21, in my opinion, lays down substantive law as giving protection to life and liberty inasmuch as it says that they cannot be deprived except according to the procedure established by law; in other words, it means that before a person can be deprived of his life or liberty as a condition precedent there should exist some substantive law conferring authority for doing so and the law should further provide for a mode of procedure for such deprivation.
This article gives complete immunity against the exercise of despotic power by the executive.
It further gives immunity against invalid laws which contravene the Constitution.
It gives also further guarantee that in its true concept there should be some form of proceeding before a person can be condemned either in respect of his life or his liberty.
It negatives the idea of fantastic arbitrary and oppressive forms of proceedings.
The principles therefore underlying article 21 have been kept in view in drafting article 22".
328 Das, J., said at page 295: "If personal liberty as such is guaranteed by any of the sub clauses of article 19(1) then why has it also been protected by article 21 ? The answer suggested by learned counsel for the petitioner is that personal liberty as a substantive right is protected by article 19(1) and article 21 gives only an additional protection by prescribing the procedure .
according to which that right may be taken away.
I am unable to accept this contention.
If this argument were correct, then it would follow that our Constitution does not guarantee to any person, citizen or non citizen, the freedom of his life as a substantive right at all, for the substantive right to life does not fall within any of the sub clauses of clause (1) of article 19".
He also said at p. 306 307: "Article 21, as the marginal note states, guarantees to every person 'protection of life and personal liberty '.
As I read it, it defines the substantive fundamental right to which protection is given and does not purport to prescribe any particular procedure at all.
That a person shall not be deprived of his life or personal liberty except according to procedure established by law is the substantive fundamental right to which protection is given by the Constitution.
The avowed object of the article, as I apprehend it, is to define the ambit of the right to life and personal liberty which is to be protected as a fundamental right.
The right to life and personal Liberty protected by article 21 is not an absolute right but is a qualified right a right circumscribed by the possibility or risk of being lost according to procedure established by It will thus be seen that not only all steps leading up to the deprivation of personal liberty but also the substantive right to personal Freedom has been held, by implication, to be covered by Article 21 of the Constitution.
In Kharak Singh vs the State of U.P. & Ors(1) he wide import of personal liberty, guaranteed by Article 21, was considered.
By a majority of 4 against 2 learned Judges of this Court, it was held that the term "personal liberty", as used in Article 21, is a compendious one and includes all varieties of rights to exercise of personal freedom, other than those dealt with separately by Article 19 which could fall under a broad concept of freedom of person.
It was held to include freedom from surveillance, from physical torture, and from all kinds of harassment of the person which may interfere with his liberty.
Thus, even if Article 21 is not the sole repository of all personal freedom, it will be clear, from a reading of Gopalan 's case (supra) and (1) [1964] 1 section C. R. 332.
329 Kharak Singh 's case (Supra), that all aspects of freedom of person are meant to be covered by Articles 19 and 21 and 22 of the Constitution.
If the enforcement of these rights by Courts is suspended during the Emergency an inquiry by a Court into the question whether any of them is violated by an illegal deprivation of it by executive authorities of the State seems futile.
For the reasons indicated above I hold as follows: Firstly, fundamental rights are basic aspects of rights selected from what may previously have been natural or common law rights.
These basic aspects of rights are elevated to a new level of importance by the Constitution.
Any other co extensive rights, outside the Constitution, are necessarily excluded by their recognition as or merger with fundamental rights.
Secondly, the object of making certain general aspects of rights fundamental is to guarantee them against illegal invasions of these rights by executive, legislative, or judicial organs of the State.
This necessarily means that these safeguards can also be legally removed under appropriate constitutional or statutory provisions.
although their Suspension does not, or itself, take away the illegalities or their legal consequences.
Thirdly, Article 21 of the Constitution has to be interpreted comprehensively enough to include, together with Article 19, practically all aspects of personal freedom.
It embraces both procedural and substantive rights.
Article 22 merely makes it clear that deprivations of liberty by means of laws regulating preventive detention would be included in "procedure established by law" and indicates what that procedure should be.
In that sense, it could be viewed as, substantially, an elaboration of what is found in Article 21, although it also goes beyond it inasmuch as it imposes limits on ordinary legislative power.
Fourthly, taken by itself, Article 21 of the Constitution is primarily a protection against illegal deprivations by the executive action of the State 's agents or officials, although, read with other Articles, it could operate also as a protection against unjustifiable legislative action purporting to authorise deprivations of personal freedom.
Fifthlty, the most important object or making certain basic rights fundamental by the 'Constitution is to make them enforceable against the State and its agencies through the Courts.
Sixthly, if the protection of enforceability is validly suspended for the duration of an Emergency, declared under constitutional provisions the Courts will have nothing before them to enforce so as to be able to afford any relief to a person who comes with a grievance before them.
(B) Power to issue writs of Habeas Corpus and other powers of High Courts under Article 226 of the Constitution Reliance has been placed on behalf of the detenus on the following statement of the law found in Halsbury 's Laws of England (Vol. 11, p. 27, paragraph 15), where dealing with the jurisdiction to issue such writs in England it is said: 330 "The right to the writ is a right which exists at common law independently of any statute, though the right has been confirmed and regulated by statute.
At common law the jurisdiction to award the writ was exercised by the Court of Queen 's Bench, chancery and Common Pleas, and, in a case of privilege, by the Court of Exchequer".
It is, therefore, submitted that the High Courts as well as this Court which have the same jurisdiction to issue writs of Habeas Corpus as English Courts have to issue such writs at common law The argument seems to me to be based on several misconceptions Firstly, there are no Courts of the King or Queen here to issue writs of Habeas Corpus by reason of any "prerogative" of the British Monarch.
The nature of the writ of Habeas Corpus is given in the same volume of Halsbury 's Laws of England, dealing with Crown proceedings at page 24, as follows: "40.
The prerogative writ of habeas corpus.
The writ of habeas corpus and subjiciendum, which is commonly known as the writ of habeas corpus, is a prerogative process for securing the liberty of" the subject by affording an effective means of immediate release from unlawful or unjustifiable detention, whether in prison or in private custody.
It is a prerogative writ by which the Queen has a right to inquire into the causes for which any of her subjects are deprived of their liberty.
By it the High Court and the judges of that Court, at the in stance of a subject aggrieved, command the production of that subject, and inquire into the cause of his imprisonment.
If there is no legal justification for the detention, the party is ordered to be released.
Release on habeas corpus is not, however, an acquittal? nor may the writ be used as a means of appeal".
It will be seen that the Common Law power of issuing the writ of Habeas Corpus is possessed by only certain courts which could issue "prerogative" writs.
It is only to indicate the origin and nature of the writ that the writ of habeas corpus is known here as a "prerogative" writ.
The power to issue it is of the same nature as a "prerogative" power inasmuch as the power so long as it is not suspended, may carry with it an undefined residue of discretionary power.
Strictly speaking.
it is a constitutional writ.
The power to issue it is conferred upon Courts in this country exclusively by our Constitution.
All the powers of our Courts flow from the Constitution which is the source of their jurisdiction.
If any provision of the Constitution authorises the suspension of the right to obtain relief in any type of cases, the power of Courts is thereby curtailed even though a general jurisdiction to afford the relief in other cases may be there.
If they cannot issue writs of Habeas Cor pus to enforce a light to personal freedom against executive authorities during the Emergency, the original nature of this writ issuing power comparable to a "prerogative" power, cannot help the detenu.
331 Secondly, as I have already indicated, whatever could be formerly even said to be governed by a Common Law prerogative power becomes merged in the Constitution as soon as the Constitution makes it over and regulates that subject.
This is a well recognised principle or law.
I will only cite Attorney General vs De Keyser 's Royal Hotel Limited(1).
Where Lord Dunedin, in answer to a claim of the Crown based on prerogative, said (at p. 526): None the less, it is equally certain that if the whole ground of something which could be done by the prerogative is covered by the statute, it is the statute that rules.
On this point I think the observation of the learned Master of the Rolls unanswerable.
He says: "What use could there be in imposing limitations, if the Crown could at its pleasure disregard them and fall back on prerogative ? ".
Thirdly, if there is no enforceable right either arising under the Constitution or otherwise, it is useless to appeal to any general power of the Court to issue a writ of Habeas Corpus.
The jurisdiction to issue an order of release, on a Habeas Corpus petition, is only exercisable after due enquiry into the cause of detention.
If the effect of the suspension of the right to move the Court for a writ of Habeas Corpus is that no enquiry can take place, beyond finding out that the cause is one covered by the prohibition, mere possession of some general power will not assist the detenu.
If the right to enforce personal freedom through a writ of habeas corps suspended, it cannot be said that the enforcement can be restored by resorting to "any other purpose".
That other purpose could not embrace defeating the effect of suspension of the enforcement of a Constitutional guarantee.
To hold that would be to make a mockery of the Constitution.
Therefore, I am unable to hold that anything of the natural of a writ of habeas corpus or any power of a High Court under Article 226 could come to the aid of a detenu when the right to enforce a claim to personal freedom, sought to be protected by the Constitution, is suspended.
(C)The objects of the (the Act) and the amendments of it.
As this Court has recently held, in Haradhan Saha & Anr vs The State of West Bengal & ors.(2) preventive detention is to be differentiated from punitive detention.
Nevertheless, it is evident, whether detention is preventive or punitive, it necessarily results in the imposition of constraints.
which, from the point of view justice to the detenu should not be inflicted or continue without fair and adequate and careful scrutiny into its necessity.
This Court pointed out that, Article 22 of the Constitution was designed to guarantee these requirements of fairness and justice which are satisfied by the provisions of the Act.
It said in said Haradhan Saha & Anr.
(supra) (at p. 784).
(1) ; @ 526.
(2) ; 332 "Constitution has conferred rights under Article 19 and also adopted preventive detention to prevent the greater evil of elements imperilling the security, the safety of a State and the welfare of the Nation.
It is not possible to think that a person who is detained will yet be free to move or assemble or form association or union or have the right to reside in any part of India or have the freedom of speech or expression Provision for preventive detention, in itself, is a departure from ordinary norms.
It is generally resorted to either in times of war or of apprehended internal disorders and disturbances of a serious nature.
Its object is to prevent a greater danger to national security and integrity than any claim which could be based upon a right, moral or legal, to individual liberty.
It has been aptly described as a "jurisdiction of suspicion.
" See: Khudiram Das vs State of West Bengal., (1) State of Madras vs V. G. Row; (2) R. vs Halliday (3).
It enables executive authorities to proceed on bare suspicion which has to give rise to a "satisfaction", as the condition precedent to passing a valid detention order, laid down as follows in Section 3 of the Act: "3 (1) (a) if satisfied with respect to any person (including a foreigner) that with a view to preventing him from acting in any manner prejudicial to (1) the defence of India, the relations of India with foreign powers, or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii) the maintenance of supplies and services essential to the community, or (b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or With a view to making arrangements for his expulsion from India, It is necessary so to do, make an order directing that such person is detained" The satisfactions as held consistently by a whole line of authorities of this Court, is a "subjective" one.
In other words, it is not possible to prescribe objective standards for reaching that satisfaction.
Although the position in law, as declared repeatedly by this Court, has been very clear and categorical that the satisfaction has to be the subjective satisfaction of the detaining authorities, yet, the requirements for sup ply of grounds to the detenus as provided in Section 8 of the Act, in actual practice, opened up a means of applying a kind of objective test by Courts upon close scrutiny of these grounds.
The result has been, according to the Attorney General, that the subjective satisfaction of the detaining authorities has `tended to be substituted by the (1) [1975] 2 section C. R. p. 832 @ p. 842.
(2) A. I. R. @ 200.
(3) ; @ 275.
333 subjective satisfaction of Court on the objective data provided by the grounds, as to the need to detain for purposes of the Act.
The`question thus arose: Did this practice not frustrate the purposes of the Act ? The position of the detenu has generally evoked the sympathy of lawyers and law Courts.
They cherish a tradition as zealous protectors of personal liberty.
They are engaged in pointing out, day in and day out, the essentials of fair trial.
They are used to acting strictly on the rules of evidence contained in the Indian Evidence Act.
The possibility of indefinite incarceration, without anything like a trial, not unnaturally, seems abhorrent to those with such traditions and habits of thought and action.
There is an aspect which perhaps tends to be overlooked in considering matters which are generally placed for weighment on the golden scales of the sensitive judicial balance.
It is that we are living in a world of such strain and stress, satirised in a recent fictional depiction of the coming future, if not of a present already enveloping us.
in Mr. Alva Toffler 's "Future Shock", with such fast changing conditions of life dominated by technological revolutions as well as recurring economic, social, and political crises, with resulting obliterations of traditional values, that masses of people suffer from psychological disturbances due to inability to adjust themselves to these changes and crises.
An example of such maladjustment is provided by what happened to a very great and gifted nation within having memory.
The great destruction, the inhuman butchery, and the acute suffering and misery which many very civilised parts of the world had to pass through, because some psychologically disturbed people led by Adolf Hitler, were not prevented in time from misleading and misguiding the German nation, is still fresh in our minds.
Indeed the whole world suffered, and felt the effects of the unchecked aberrant Nazi movement in Germany and the havoc it unleashed when it acquired a hold over the minds and feelings of the German people with all the vast powers of modern science at their disposal.
With such recent examples before them, it was not surprising that our constitution makers, quite far sightedly, provided not only for preventive detention in our Constitution but also introduced Emergency provisions of a drastic nature in it.
These seem to be inescapable concomitants of conditions necessary to ensure for the mass of the people of a backward country, a life of that decipline without which the country 's security, integrity, independence, and pace of progress towards the objectives set before us by the Constitution will not be safe.
I do not know whether it was a too liberal application of the principle that courts must lean in favour of the liberty of the citizen, which is, strictly speaking, only a principle of interpretation for cases of doubt or difficulty, or, the carelessness with which detentions were ordered by Subordinate officers in the Districts, or the inefficiency in drafting of the grounds of detention, which were not infrequently found to be vague and defective, the result of the practice developed by Courts was that detenus did, in quite a number of cases, obtain 334 from High Courts, and, perhaps even from this Court, orders of release on Habeas Corpus petitions on grounds on which validity of criminal trials would certainly not be affected.
In Prabhu Dayal Deorah etc etc.
vs District Magistrate Kamrup :& Ors.
I ventured, with great respect, in my miniority opinion, to suggest that the objects of the Act may be frustrated if Courts interfere even before the machinery of redress under the Act through Advisory Boards, where questions relating to vagueness or irrelevance or even sufficiency of grounds could be more effectively thrashed out than in Courts in proceedings under Article 32 or 226 of the Constitution, had been allowed to complete its full course of operation.
In some cases, facts were investigated on exchange of affidavits only so as to arrive at a conclusion that some of facts upon which detention orders were passed did not exist at all.
In other cases, it was held that even if a single non existent or vague ground crept into The grounds for detention, the detention order itself was vitiated as it indicated either the effects of extraneous matter or carelessness or non application of mind in making the order.
Courts could not separate what has been improperly considered from what was properly taken into account.
Hence detentions were held to be vitiated by such detects.
In some cases, the fact that some matter ton remote in time from the detention order was taken into consideration, in ordering the detention, was held to be enough to invalidate the detention.
Thus, grounds supplied always operated as an objective test for determining the question whether a nexus could reasonably exist between the grounds given and the detention order or whether some infirmities had crept in.
The reasonableness of the detention became the justiciable issue really decided.
With great respect, I doubt whether this could be said to be the object of preventive detention provisions authorised by the Constitution and embodied in the Act.
In any case, it was the satisfaction of the Court by an application of a kind of objective test more stringently than the principle of criminal procedure, that a defective charge could be amended and would not vitiate a trial without proof of incurable prejudice to the accused, which became, for all practical purposes, the test of the correctness of detention orders.
I have ventured to indicate the background which seems to me to have probably necessitated certain amendments in the Act in addition to the reasons which led to the proclamation of Emergency, the effects of which are considered a little later below.
We are not concerned here with the wisdom of the policy underlying the amendments.
It is, however.
necessary to understand the mischief aimed at so as to be able to correctly determine the meaning of the changes made The Central Act 39 of 1975 which actually came into effect after Emergency added Section 16A to the Act, to sub sections of (1) A. 1.
R. 335 which have been the subject matter of arguments before us.
They read as follows: "(2) The case of every person (including a foreigner) against whom an order of detention was made under 'this Act on or after the 25th day of June, 1975.
but before the commencement of this section, shall, unless such person is sooner released from detention, be viewed within fifteen days from such commencement by the appropriate Government for the purpose of determining whether the detention of such person under this Act is necessary for dealing effectively with the emergency in respect of which the Proclamations referred to in sub section (1) have been issued (here after in this section referred to as the emergency) and if, on such review, the appropriate Government is satisfied that it is necessary to detain such person for effectively dealing with the emergency, that Government may make a declaration to that effect and communicate a copy of the declaration to the person concerned.
(3) When making an order of detention under this Act against any person (including a foreigner) after the commencement of this section, the Central Government or the State Government or, as the case may be, the officer making the order of detention shall consider whether the detention of such person under this Act is necessary for dealing effective by with the emergency and if, on such consideration, the Central Government or the State Government or, as the case may be, the officer is satisfied that it is necessary to detain such person for effectively dealing with the emergency, that Government or officer May make a declaration to that effect and communicate a copy of the declaration to the person concerned: Provided that where such declaration is made by an officer it shall be reviewed by the State Government to which such officer is subordinate within fifteen days from the date of making of the declaration and such declaration shall cease to have effect unless it is confirmed by the State Government, after such review, within the said period of fifteen days".
Act No. 14 of 1976, which received the Presidential assent on 25th January 1976, added Section 16A(9) which runs as follows: "16A(9) Notwithstanding anything contained in any other law or any rule having the force of law, (a) the Grounds on which an order of detention is made or purported to be made under section 3 against any person in respect of whom a declaration is made under sub section (2) or sub section (3) and any information or materials on which such grounds or a declaration under sub section (2) or declaration or confirmation under sub section (3) or the non 336 revocation under sub section (4) of a declaration are based, shall be treated as confidential and shall be deemed to refer to matters of State and to be against the public interest to disclose and save as otherwise provided in this Act, on one shall communicate or disclose any such ground, information or material or any document containing such ground, information or material; (b) No person against whom an order of detention is made or purported to be made under section 3 shall be entitled to the communication or disclosure of any such ground, information or material as is referred to in clause (a) or the production to him of any document containing such ground, information or material".
This Section and Section 18 of the Act are the only provisions whose validity is challenged before us.
It appears to me that the object of the above mentioned amendments was to affect the manner in which jurisdiction of Courts in considering claims for reliefs by detenus on petitions for writs of Habeas Corpus was being exercised so that the only available means that had been developed for such cases by the Courts, that is to say, the scrutiny of grounds supplied under section 8 of the Act" may be re moved from the judicial armoury for the duration of the Emergency.
It may be mentioned here that article 22(5) and 22(6) of the Constitution provided as follows: "22(5) When any person is detained in pursuance of the order made under any law providing for preventive detention, the authority making the order shall, as soon as may he, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
22(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose".
The first contention, that Section 16A(9) affects the jurisdiction of High Courts under Article 226, which an order under Article 359(1) could not do, appears to me to, be untenable.
I am unable to see how a Presidential order which prevents a claim for the enforcement of a fundamental right from being advanced in a Court during the existence of an Emergency, could possibly be said not to be intended to affect the exercise of jurisdiction of Courts at all.
The second argument, that Section 16A(9) amounts to a general legislative declaration in place of judicial decisions which Courts had themselves to give after considering" on the facts of each case, whether Article 22(6) could be applied, also does not seem to me to be.
acceptable.
The result of Section 16A(9), if valid, would be to leave the presumption of correctness of an order under Section 3 of the Act, good on the face of it, untouched by any investigation relating 337 to its correctness.
Now, if this be the object and effect of the amendment, it could not be said to go beyond making it impossible for detenus to rebut a presumptions of legality and validity which an order under Section 3 of the Act, if prima facie good, would raise in any event.
The same result could have been achieved by enacting that a detention order under section 3, prima facie good, will operate as "conclusive proof" that the requirements of Section 3 have been fulfilled.
But, as the giving of grounds is not entirely dispensed with under the Act even as it now exists this may have left the question in doubt whether Courts could call upon the detaining authorities to produce the grounds.
Enactment of a rule of conclusive proof is a well established form of enactments determining substantive rights in the form of procedural provisions.
In any case, so far as the rights of a detenu to obtain relief are hampered, the question raised touches the enforcement of the fundamental right to personal freedom.
Its effect upon the powers of the Court under Article 226 is, as I have already indicated, covered by the language of Article 359(1) of the Constitution.
It is not necessary for me to consider the validity of such a provision if it was to be applied at a time not covered by the Emergency, or whether it should be read down for the purposes of a suit for damages where the issue is whether the detention was ordered by a particular officer out of "malice in fact" and for reasons completely outside the purview of the Act itself.
That sort of inquiry is not open, during the Emergency, in proceedings under Article 226.
On the view I take, for reasons which will be still clearer after a consideration of the remaining questions discussed below.
, I think that even the issue that the detention order is vitiated by "malice in fact" will not be justiciable in Habeas Corpus proceedings during the Emergency although it may be in an ordinary suit which is not filed for enforcing a fundamental right but for other reliefs.
The question of bona fides seems to be left open for decision by such suits on the language of Section 16 of the Act itself which says: "16.
No suit or other legal proceedings shall lie against the Central Government or a State Government, and no suit, prosecution or other legal proceedings shall lie against any person, for anything in good faith done or intended to be done in pursuance of this Act.
Section 16 of the Act seems to leave open a remedy by way of suit for damages for wrongful imprisonment in a possible case of what may be called "malice in fact".
In the cases before us, we are only concerned with Habeas Corpus proceedings under Article 226 of the Constitution where in my opinion, malice in fact could not be investigated as it is bound to be an allegation subsidiary to a claim for the enforcement of a right to personal liberty, a fundamental right which cannot be enforced during the Emergency.
In Sree Mohan Chowdhury vs The Chief Commissioner, Union Territory of Tripura(1) a Constitution Bench of this Court, after pointing out that Article 32(4) contemplated a suspension of the guaranteed right only as provided by the Constitution, said (at p. 450 451 ) : (1) ; at 450.
24 833 Sup CI/76 338 "The order of the President dated November 3, 1962, already set out, in terms, suspends the right of any person to move any Court for the enforcement of the rights conferred by articles 21 and 22 of the Constitution, during the period of Emergency Prima facie, therefore, the petitioner 's right to move this Court for a writ of Habeas Corpus, as he has purported to do by this petition, will remain suspended during the period of the Emergency.
But even then it has been contended on behalf of the petitioner that article 359 does not authorise the suspension of the exercise of the right guaranteed under article 32 of the Constitution, and that, in terms, the operation of article 32 has not been suspended by the President.
This contention is wholly unfounded.
Unquestionably, the Court 's power to issue a writ in the nature of habeas corpus has not been touched by the President 's order, but the petitioner 's right to move this Court for a writ of that kind has been suspended by the order of the President passed under article 359(1). 'the President 's order does not suspend all the rights vested in a citizen to move this Court but only his right to enforce the provisions of articles 21 and 22.
Thus, as a result of the President 's order aforesaid, the petitioner 's right to move this Court, but Mot this Court 's power under article 32" has been suspended during the operation of the Emergency, with the result that the petitioner has no locus standi to enforce his right, if any, during the Emergency".
It is true that the Presidential order of 1975, like the residential order of 1962, does not suspend the general power of this Court under Article 32 or the general powers of High Courts under Article 226, but the effect of taking away enforceability of the right of a detenu to personal freedom against executive authorities is to affect the locus standi in cases which are meant to be covered by the Presidential order.
Courts, even in Habeas Corpus proceedings, do not grant relief independently if rights of the person deprived of liberty.
If the locus standi of a deteneu is suspended no one can claim,, on his behalf, to get his right enforced.
The result is to affect the powers of Courts, even if this be an indirect result confined to a class of cases, but, as the general power to issue writs of habeas Corpus is not suspended, this feature was, quite rightly, I respectfully think, pointed out by this Court in Mohan Chowdhury 's case (supra).
It would not e correct to go further and read more into the passage cited above than seems intended to have been laid down there.
The passage seems to me to indicate quite explicitly, as the language of article 359(1) itself; shows that the detenu 's right to move the Courts for the enforcement of his right to personal freedom, by proving an illegal deprivation of it by executive authorities of the State, is certainly not there for the duration of the Emergency.
And, to the extent that Courts do not, and, indeed.
cannot reasonably, act without giving the detenu some kind of a right or locus standi, their power to proceed with a Habeas petition against executive authorities of the State is itself impaired.
It may be that in form and even in subs (1) ; @ 450.
339 tance, a general power to issue writs of Habeas Corpus remains with Courts.
But, that court only be invoked in cases falling entirely outside the purview of the Presidential order and Article 359(1).
That is how I, with great respect, understand the effect of Sree Mohan Chowdhury 's case (supra).
It is possible that, if a case so patently gross and clear of a detention falling, on the face of the order of detention or the return made to a notice from the Court outside the provisions of the Act on the ground of personal malice of the detailing authority, or, some other ground utterly outside the Act, arises so that no further investigation is called for.
, it may be possible to contend that it is not protected by the Presidential order of 27th June, 1975, and by the provisions of Article 359(1) of the Constitution at all.
If that, could be patent, without any real investigation or inquiry at all, it may stand on the same footing as an illegal detention by a private individual.
The mere presence of an official seal or signature on a detention order, in such a purely hypothetical case, may not be enough to convert it into a detention by the State or its agents or officers.
That is the almost utterly inconceivable situation or type of case which could still be covered by the general power to issue writs of Habeas Corpus.
There may, for example, be a case of a fabricated order of detention which, the alleged detaining officer, on receipt of notice, disclaims.
It is admitted that Part Ill of the Constitution is only meant to protect citizens against illegal actions of organs of the State and not against wrongs done by individuals.
The remedy by way of a writ of Habeas Corpus is more general.
It lies even against illegal detentions by private persons although not under Article 32 which is confined to enforcement of fundamental rights (Vide: Shrimati Vidya Verma through next friend R. V. section Mani, vs Dr. Shiv Narain (1).
The Attorney General also concedes that judicial proceedings for trial of accused persons would fall outside the interdict of the Presidential order under Article 359 ( 1 ) . 'therefore it is unnecessary to consider hypothetical cases of illegal convictions where remedies under the ordinary law are not suspended.
Now, is it at all reasonably conceivable that a detention order would, on the face of it, state that it is not for one of the purposes for which it can be made under the Act or that it is made due to personal malice or animus of the officer making it ? Can we, for a moment, believe that a return made on behalf of the State, instead of adopting a detention order, made by an officer duly authorised to act, even if there be a technical flaw in it, admit that it falls outside the Act or was made mala fide and yet the State is keeping the petitioner in detention ? Can one reasonably conceive of a case in which, on a Habeas Corpus petition, a bare look at the detention order or on the return made, the Court could hold that the detention by a duly authorised officer under a duly authenticated order, stands on the same footing as a detention by a private person? I would not like to consider purely hypothetical, possibly even fantastically imaginary, cases lest we are asked to act, as we have practically been asked to, on the assumption that reality is stranger than fiction.
, and that be (1) 119551 2 section C. R. p. 983.
340 cause, according to the practice of determining validity of detention orders by the contents of grounds served, a number of detentions were found, in the past, to be vitiated, we should not present that executive officers will act according to law.
Courts must presume that executive authorities are acting in conformity with both the spirit and the substance of the law: "omina praesumutur rite esse acts", which means that all official acts are presumed to have been rightly and regularly done.
If the burden to displace that presumption is upon the detenu, he cannot, on a Habeas Corpus petition under Article 226 of the Constitution., ask the Court to embark upon an inquiry, during the Emergency, to allow him to rebut this presumption.
To do so would, in my opinion, be plainly to countenance a violation of the Constitution.
A great deal of reliance was placed on, behalf of the detenus, on the principle stated by the Privy Council in Eshuqbayi Eleko vs Officer Administering the Government of Nigeria & Anr.
(1) where Lord Aktin said (at p. 670): "Their Lordships are satisfied that the opinion which has prevailed that the Courts cannot investigate the whole of the necessary conditions is erroneous.
The Governor acting under the ordinance acts solely under executive powers, and in no sense as a Court.
As the executive he can only act in pursuance of the powers given to him by law.
In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a court of justice.
And it is the tradition of British justice that judges should not shrink from deciding, such issues in the face of the executive.
The analogy of the powers of the English Home Secretary to deport alience was invoked in this case.
The analogy seems very close.
Their Lordships entertain no doubt that under the legislation in question, in the Home Secretary deported a British subject in the belief that he was an alien,, the subject would have the right to question the validity of any detention under such order by proceedings in habeas corpus, and that it would be the duty of the Courts to investigate the issue of alien or not".
" The salutary general principle, enunciated above, is available, no doubt, to citizens of this country as well in normal times.
But it was certainly not meant to so operate as to make the executive answerable for all its actions to the Judicature despite the special provisions for preventive detention in an Act intended to safeguard the security of the nation, and, muchless, during an Emergency" when the right to move Courts for enforcing fundamental rights is itself suspended.
Principles applicable when provisions, such as those which the Act contains, and a suspension of the right to move Courts for fundamental rights, during an Emergency, are operative, were thus (1) ; @ 670.
341 indicated, in Liversidge vs Sir John Anderson & Anr.,(1) by Viscount Maughan (at p. 219): "There can plainly be no presumption applicable to a regulation made under this extraordinary power that the liberty of the person in question will not be interfered with, and equally no presumption that the detention must not be made to depend (as the terms of the Act indeed suggest) on the unchallengeable opinion of the Secretary Of State".
Following the ratio decidendi of Rex vs Secretary of State for Home Affairs, Ex party Lees,(2) the learned Law Lord said (at p. 217).
"As I understand the judgment in the Lees case it negatived the idea that the court had any power to inquire into the grounds for the belief of the Secretary of State His good faith not being impugned) or to consider whether there were grounds on which he could reasonably arrive at his belief".
In Liversidge 's case (supra), the Court 's power to inquire into the correctness of the belief of the Secretary of State was itself held to be barred merely by the terms of a Regulation made under a statute without even a constitutional suspension of the right to move Courts such as the one we have before us.
In Liversidge 's case (supra), Lord Wright explained Eshuqbayi Elekos ' case (supra) , cited before their Lordships as follows: (at p. 273): "The other matter for comment is the decision in Eshuqbayi Eleko vs Officer Administering the Government of Nigeria (1931) (A.C. 662), where the government claimed to exercise certain powers, including deportation, against the appellant.
The appellant applied for a writ of habeas corpus, on the ground that the ordinance relied on gave by express terms the powers contained only against one who was a native chief, and who had been deposed, and where there was a native custom requiring him to leave the area, whereas actually not one of these facts was present in the case.
It was held in effect that me powers given by the ordinance were limited to a case in which these facts existed.
It was a question of the extent of the authority given by the ordinance.
That depended on specific facts capable of proof or disproof in a court of law, and unless these facts existed, there was no room for executive discretion.
This authority has, in my opinion, no bearing in the present case, as I construe the powers and duties given by the regulation.
There are also obvious differences between the ordinary administrative ordinance there in question and an emergency power created to meet the necessities of the war and limited in its operation to the period of the war.
The powers cease with the emergency.
But that period still continues and, it being assumed that the onus is on the respondents in this action of unlawful imprisonment, the onus (1) [1942] A. C. p. 206 & 217 & 219 & 273.
(2) 342 is sufficiently discharged, in my opinion, by the fact of the order having been made by a competent authority within the ambit of the powers entrusted to him and being regular on its face".
Viscount Maugham, in Greene vs Secretary of State for Home Affairs,(1) after referring to a very comprehensive opinion of Wilmot C. J.
On the nature of Habeas Corpus proceedings in Common Law, pointed out that a return, good on its face and with no affidavit in support of it, could not be disputed on the application for a writ.
At Common Law, the "sacred" character of the return, as Wilmot C. J. called it, even without a supporting affidavit, could not be touched except by the consent of the parties", because the whole object of the writ was to enquire into the existence of a legally recognised cause of detention, in a summary fashion, and not into the truth of facts constituting the cause.
By the Habeas Corpus Act of 1816, the powers of Courts were extended so that it became possible to go behind the return in suitable cases other than those where a person was confined for certain excepted matters including criminal charges.
In these excepted matters the return was and is still collective that English Courts do not go behind them.
In Greene 's case, (supra), the rule of presumptive correctness of the return was applied to the return made on behalf of the Secretary of State to the extent of treating it as practically conclusive.
It was held that the mere production of the Home Secretaries order, the authenticity and good faith of which were not impugned, constituted a complete answer to an application for a writ of Habeas Corpus and that it was not necessary for the Home Secretary to file an affidavit.
It is interesting to note that, in that case, which arose during the Emergency following the war of 1939, the failure of the Advisory Committee to supply the correct reasons for his detention to the petitioner were not held to be sufficient to invalidate his incarceration.
On the other hand, in these country" a violation of the obligation to supply grounds of detention has been consistently held to be sufficient to invalidate a detention before the changes in the Act and the Presidential order of 1975.
By Section 7 of the Act 39 of 1975 Section 18 was added to the Act with effect from 25th June 1975.
This provision reads: "18.
No person (including a foreigner) detained under this Act shall have any right to personal liberty by virtue of natural law or common law, if any".
In view of what I have pointed out earlier, this provision was not necessary.
It appears to have been added by way of abundant caution.
By Section 5 of the amendment Act 14 of 1976 another amendment was made in Section 18, substituting , for the words "under this Act" used in Section 18, the words "in respect of whom an order is made or purported to have been made under Section 3", respectively from 25th day of June, 1975.
These amendments are covered by Article 359 (1A) of the Constitution., so that their validity is unassailable during the Emer (1) [1942] A. & .
284 @ 293.
343 gency on the ground of violation of any right conferred by Part III Of the Constitution.
Nevertheless, the validity of Section 18 of the Act, as it stands, was challenged on the ground, as I understand it that is described as "the basic structure. ' of the Constitution was violated because, it was submitted, the Rule of Law, which is a part of the "basic structure" was infringed by the amended provisions.
As` I have indicated below.
, I am unable to subscribe to the view that the theory of basic structure amounts to anything more than a mode of interpreting the Constitution.
It cannot imply new tests outside the constitution or be used to defeat Constitutional provisions.
I am unable to see any force in the attack on the validity of Section 18 of the Act on this ground.
The result of the amendments of the Act, together with the emergency provisions and the Presidential order of 27th June, 1975, in my opinion, is clearly that the jurisdiction of High Courts is itself affected and they cannot go beyond looking at the prima facie validity of the return made.
The production of a duly authenticated order, purporting to have been made by an officer competent to make it under Section 3 of the Act, is an absolute bar to proceeding further with the hearing of a Habes Corpus petition.
(D) The purpose and meaning g of Emergency y provisions , particularly Article 359 of our Constitution.
From the inception of our Constitution, it was evident that the framers of it meant to establish a secular democratic system of Government with certain objectives before it without which real democracy is a mirage.
Hence, they provided us not only with an inspiring Preamble to the Constitution and basic Fundamental Rights to citizens, but also with Directive Principles of State Policy so as to indicate how not only a political, but, what is more important, social and economic democracy, with maximum practicable equality of status and opportunity, could be attained.
They foresaw that it may be necessary, for preserving the system thus set up and for ensuring a rapid enough march towards the objectives placed before the people of India, to give the executive branch of Government wide powers, in exceptional situations, so that it may deal with all kinds of emergencies effectively, and., thereby, safeguard the foundations of good Government which lie in discipline and orderliness combined with speedy and substantial justice.
The late Prime Minister Jawaharlal Nehru once said: "You may define democracy in a hundred ways, but surely one of its definitions is self discipline of the community.
The more the self discipline, the less the imposed discipline".
Laws and law Courts are only part of a system of that imposed discipline which has to take its course when self discipline fails.
Conditions may supervene, in the life of a nation, in which the basic values we have stood for and struggled to attain, the security, integrity, and independence of the country, or the very conditions on which existence of law and order and of law courts depend, may be imperilled By forces operating from within or from outside the country.
What these forces are how they are operating, what information exists for the involvement of various individuals, wherever placed, could not 344 possibly be disclosed publicly or become matters suitable for inquiry into or discussion in a Court of Law.
In Liversidge vs Sir John Anderson (supra) the following passages from Rex vs Halliday,(2) were cited by Lord Romer to justify principles adopted by four out five of their Lordships in Liversidges case in their judgments: (1) Per Lord Atkins (at p. 271): "However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent sacrificed by legal enactment, namely, national success in the war, of escape from national plunder or enslavement .
(2) Per Lord Finlay, L.C. (at p. 269).
"It seems obvious that no tribunal for investigating the question whether circumstances of suspicion exist warranting some restraint can be imagined less appropriate then a Court of law" After citing the two passages quoted above, Lord Romer observed in Liversidge 's case (supra) (at p. 281): "I respectfully agree.
I cannot believe that the legis legislature or the framers of the regulation ever intended to constitute the courts of this country the ultimate judges of the matters in question".
If, as indicated above, the opinion of the overwhelming majority of the Law Lords of England" in Liversidge 's cause (supra), following the principles laid down earlier also in Rex.
vs Halide Ex Parte Zadig 's (supra) was that the jurisdiction of Courts is itself ousted by a statutory rule vesting the power of detention on a subjective satisfaction, based possibly on nothing more than a detenu 's descent from or relationship or friendship with nationals of a country with which England may be at war, and that the Secretary of State 's order indicating that he was satisfied about one of these matters, on hearsay information which could not be divulged in courts, in the interests of national safety and security, was enough, I do not think that either our Constitution contemplating an ouster of jurisdiction of Courts in such cases, or our Parliament, in enacting provisions which have that effect, was going beyond the limits of recognised democratic principles as they operate during emergencies.
In fact.
decisions on what restraints should be put and on which persons" during a national emergency, in the interests of national security, are matters of policy as explained below, which are outside the sphere of judicial determination.
Situations of a kind which could not even be thought of in Eng land are not beyond the range of possibility in Asian and African countries or even in Continental Europe or in America judging from events of our own times.
Indeed, we too have had our fill of grim tragedies, including the assassination of the father of the nation, which (1) ; (a) n. 271. 269. 345 could rock the whole nation and propel it towards the brink of an unfathomable abyss and the irreparable disaster which anarchy involves.
Let me glance at the Constitutional History of England from where we took the writ of Habeas Corpus.
Sir Erskine May wrote (See: Constitutional History of England, B Chapter XI): "The writ of habeas corpus is unquestionably the first security of civil liberty.
It brings to light the cause of every imprisonment, approves its lawfulness" or liberates the prisoner.
It exacts obedience from the highest courts: Parliament itself submits to its authority.
No right is more justly valued.
It protects the subject from unfounded suspicions, from the aggressions of power, and from abuses in the administration of justice.
Yet, this protective law, which gives every man security and confidence, in times of tranquillity, has been suspended, again and again, in periods of public danger or apprehension.
Rarely.
, however, has this been suffered without jealousy, hesitation, and re monstrance; and whenever the perils of the State have been held sufficient to warrant this sacrifice of personal liberty, no Minister or magistrate has been suffered to tamper with the law at his discretion.
Parliament alone, convinced of the exigency of each occasion, has suspended, for a time, the right of individuals, in the interests of the State.
The first years after the Revolution were full of danger.
A dethroned king, aided by foreign enemies, and a powerful body of English adherents, was threatening the new settlement of the Crown with war and treason.
Hence, the liberties of Englishmen, so recently assured, were several times made to yield to the exigencies of the State.
Again, on occasions of no less peril the rebellion of 1755 the Jacobite conspiracy of 1722, and the invasion of the realm li by the Pretender in 1745 the Habeas Corpus Act was suspended.
Henceforth, for nearly half a century, the law remained inviolate.
During the American War, indeed, it had been necessary to empower the king to secure persons suspected of high treason, committed in North America, or on the high seas, or of the crime of piracy: but it was not until 1794 that the civil liberties of Englishmen at home were again to be suspended.
The dangers and alarms of that dark period have already been recounted.
Ministers, believing the State to be threatened by traitorous conspiracies once more sought power to countermine treason by powers beyond the law.
Relying upon the report of a secret committee, Mr. Pitt moved for a bill to empower his Majesty to secure and detain persons suspected of conspiring against his person and Government.
He justified this measure on the ground that 346 Whatever the temporary danger of placing such power in the hands of the Government" it was far less than the danger with which the Constitution and society were threatened.
If Ministers abused the power entrusted to them, they would be responsible for its abuse.
It was vigorously op posed by Mr. Fox, Mr. Grey, Mr. Sheridan, and a small body of adherents.
They denied the disaffection imputed to the people ridiculed the revelations of the committee and declared that no such dangers threatened the State as would justify the surrender of the chief safeguard of personal freedom.
This measure would give Ministers absolute power over every individual in the kingdom.
It would empower them to arrest, on suspicion, any man whose opinions were abnoxious to then the advocates of reform.
, even the members of the Parliamentary opposition.
Who would be safe, when conspiracies were everywhere suspected, and constitutional objects and language believed to be the mere cloak of sedition '? Let every man charged with treason be brought to justice; in the words of Sheridan, 'where there was guilt, let the broad axe fall, but why surrender the liberties of the innocent ?" "The strongest opponents of the measure, while denying its present necessity, admitted that when danger is imminent, the liberty of the subject must be sacrificed to the paramount interests of the State.
Ring leaders must be seized, outrages anticipated, plots disconcerted, and the dark haunts of conspiracy filled with distrust and terror.
And terrible indeed was the power now entrusted to the executive .
Though termed a suspension of the Habeas groups Act, it was.
in truth, a suspension of Magna Charta, and of the cardinal principles of the common law.
Every man had hitherto been free from imprisonment until charged with crime, by information upon oath, and entitled to a speedy trial, and the judgment of his peers.
But any subject could now he arrested on suspicion of treasonable practices, with out specific charge or proof of guilt, his accusers were unknown ; and in vain might he demand public accusation and trial.
Spies and treacherous accomplices" however circumstantial in their narratives to Secretaries of State and law officers, shrank from the witness box; and their victims rotted in gaol.
Whatever the judgment, temper, and good faith of the executive, such a power was arbitrary, and could scarcely fail to be abused.
Whatever the danger by which it was justified, never did the subject; so much need the protection of the laws, as when Government and society were filled with suspicions and alarm".
It was not until 1801 that the Act was considered "no longer defensible on grounds of public danger and Lord Thurlow announced that he could "not resist the impulse to deem men innocent until tried and convicted".
It was urged in defence of a Bill indemnifying an those who may have misused or exceeded their powers during the 347 period of suspension of the Habeas Corpus in England that, unless it was passed, "those channels of Information would be stopped on which Government relied for guarding the public peace".
Hence a curtain was drawn to shield all whose acts could have been characterized as abuse or excess of power.
It is unnecessary to cite from dicey or modern writers of British Constitutional Law, such as M/s Wade and Phillips, to show how, in times of emergency, the ordinary functions of Courts, and, in particular, powers of issuing writs of Habeas Corpus, have been curtailed.
In such periods, legislative measures known as "suspension of the Habeas Corpus Act".
Followed by Acts of Indemnity, after periods of emergency are over, have been restored to England.
But, during the first world war of 1914 and the last world war of 1939, it was not even necessary to suspend the Habeas Corpus Act in England .
The Courts themselves, on an interpretation of the relevant regulations under the Defence of Realm Act, abstained from judicial interference by denying, themselves power to interfere .
In Halsbury`s Laws of England (4th Edn.
Vol. 8, para 871, page 624), we find the following statement about the Crown 's Common Law prerogative power in an Emergency: "The Crown has the same power as a private individual of taking all measures which are absolutely and immediately necessary for the purpose of dealing with an invasion or other emergency".
And, as regards statutory powers of the Crown (See: Emergency Powers Act.
, 1920, Sec.
l; Emergency Powers Act, , we find (see para 983, page 627): "If it appears to Her Majesty that events of a specified nature have occurred or are about to occur, Her Majesty may by proclamation declare that a state or emergency exists.
These events are those of such a nature as to be calculated, by interfering with the supply and distribution of food, water fuel or light , or with the means of locomotion, to deprive the community or any substantial portion of the community, or the essentials of life.
No proclamation is to be in force for more than one month.
, without prejudice to the issue of another proclamation at or before the end of that period.
xxx xxx xxx xxx Where a proclamation of emergency has been made, and, so long as it remains in force, the Crown has power by order in Council to make regulations for securing the essentials of life to the Community." In America also, the suspension of the right to writes of Habeas Corpus, during emergencies, so as to temporarily remove the regular processes of law, is permissible by legislation (See: Cooley`s Constitutional Law ' 4th Edn.
Chapter 34.
p. 360), but it is limited by (Article 1.
Sec. 9, clause 2) the American Constitution to situations in which there may be a rebellion or an invasion (See: Willis on 348 "Constitutional Law of United States", 1936 edn.
p. 441 and p. 570.
Even more drastic consequences flow from what is known in France as declaration of a "State of Seige", and, in other countries, as a "Suspension of Constitutional Guarantees".
Under our Constitution, it will be seen, from an analysis of emergency provisions, that there is no distinction between the effects of a declaration of Emergency, under Article 352(1), whether the threat to the security of the State is from internal or external sources.
Unlike some other countries" powers of Presidential declarations under Article 352(1) and 359(1) of our Constitution are immune from challenge in Courts even when the Emergency is over.
Another noticeable feature of our Constitution is that, whereas the consequences given in Article 358, as a result of a Proclamation under Article 352 (1), are automatic, Presidential orders under Article 359(1) may have differing consequences, from emergency to emergency, depending upon the terms of the Presidential orders involved.
And then, Article 359 (1A), made operative retrospectively by the 38th Constitutional amendment, of 1st August, 1975, makes it clear that both the Legislative and Executive organs of the State, are freed, for the duration of the Emergency, from the limits imposed by Part III of the Constitution.
It is unnecessary to refer to the provisions of Articles 356 and 357 except to illustrate the extremely wide character of Emergency powers of the Union Govt.
which can, by recourse to these powers, make immune from judicial review, suspend the federal features of our Constitution which have, sometimes, been elevated to the basic level.
These provisions enable the Union Govt.
to supersede both the legislative and executive wings of Government in a State in the event of a failure of Constitutional machinery in that State, and to administer it through any person or body of persons under Presidential directions with powers of the State Legislature "exercisable by or under the authority of Parliament".
Article 360, applicable only to Proclamations of financial emergencies, with their special consequences, indicates the very comprehensive character of the Emergency provisions contained in part XVIII of our Constitution.
We are really directly concerned only with Articles 352 and 353 and 358 and 359 as they now stand.
They are reproduced below: "352.
(1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by Proclamation, make a declaration to that effect.
(2) A Proclamation issued under clause (1) (a) may be revoked by a subsequent Proclamation; (b) shall be laid before each House of Parliament; (c) shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolution of both Houses of Parliament.
349 Provided that if any such Proclamation is issued at a time when the House of the People has been dissolved or the dissolution of the House of the People takes place during the period of two months referred to in sub clause (c), and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People.
(3) A Proclamation of Emergency declaring that the security of India or of any part of the territory thereof is threatened by war or by external aggression or by internal disturbance may be made before the actual occurrence of war or of any such aggression or disturbance if the President is satisfied that there is imminent danger thereof.
(4) The power conferred on the President by this Article shall include the power to issue different Proclamations on different grounds, being war or external aggression or internal disturbance or imminent danger of war or external aggression or internal disturbance whether or not there is a Proclamation already issued by the President under clause (1) and such Proclamation is in operation.
(5)Notwithstanding anything in this Constitution, (a) the satisfaction of the President mentioned in clause (1) and clause 3) shall be final and conclusive and shall not be questioned in any court on any ground; (b) subject to the provisions of clause (2), neither the Supreme Court nor any other court shall have jurisdiction to entertain any question, on any ground, regarding the validity of (i) a declaration made by Proclamation by the President dent to the effect stated in clause (1); or (ii) the continued operation of such Proclamation".
While a Proclamation of Emergency is in operation, then (a) notwithstanding anything in this Constitution, the executive power of the Union shall extend to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised; (b) the power of Parliament to make laws with respect to any matter shall include power to make laws conferring 350 powers and imposing duties, or authorising the conferring of powers and the imposition of duties, upon the Union or officers and authorities of the Union as respects that matter, notwithstanding that it is one which is not enumerated in the Union List." "358.
While a Proclamation of Emergency is in operation, nothing in article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect".
"359 (1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is ill force or for such shorter period as may be specified in the order.
(1A) While an order made under clause (1) mentioning any of the rights conferred by Part III is in operation, nothing in that Part conferring those rights shall restrict the power of the State as defined in said Part to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the in competency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect.
(2) An order made as aforesaid may extend to the whole or any part of the territory of India.
(3) Every order made under clause (1) shall, as soon as may be after it is made, be laid before each House of Parliament".
Before dealing with relevant authorities on the meaning and effects of Article 358 and 359 of the Constitution, I will indicate the special features and context of the Presidential order of 27th June, 1975, as compared with the Presidential order of 3rd November, 1962, which was the subject matter of earlier pronouncement of this Court on which considerable reliance has been placed on behalf of the detenus.
In fact, the next two topics are so connected with the Emergency provisions that there is bound to be a good deal of overlapping between what I have, for the sake of convenience only, tried to discuss under three heads.
Different heads or names are not infrequently used only to indicate different aspects of what is really one connected subject 351 matter.
Perhaps the last and concluding topic is wide enough to cover the scope of the whole discussion.
The effect of the Presidential orders and particularly the order of 27th June, 1975, on the rights of detenus.
The Presidential order of 3rd November 1962 was issued after the proclamation of Emergency under Article 352(1) on 26th October, 1962.
That proclamation said: ". a grave emergency exists whereby the security of India is threatened by external aggression".
On the other hand, the Presidential order of 27th June, 1975, with which we are concerned here was issued under a proclamation which declares "that a grave emergency exists whereby the security.
Of India is threatened by internal disturbances".
There was also a Presidential proclamation of 3rd December, 1971, repeating the terms of the proclamation of 26th October, 1962, as under: "In exercise of the powers conferred by clause (1) of article 352 of the Constitution, I, V. V. Giri, President of India, by this Proclamation declare that a grave emergency exists whereby the security of India is threatened by external aggression .
The Presidential order of 3rd November, 1962, reads as follows: "In exercise of the powers conferred by clause (1) of article 359 of the Constitution, the President hereby declares that the right of any person to move any court for the enforcement of the rights conferred by article 21 and article 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under clause (1) of Article 352 thereof on the 26th October, 1962 is in force, if such person has been deprived of any such rights under the Defence of India ordinance, 1962 (4 of 1962) or any rule or order made thereunder".
The Presidential order of 27th June, 1975, runs as follows: "In exercise of the powers conferred by clause (1) of article 359 of the Constitution the President hereby declares that the right of any person (including a foreigner) to move any Court for the enforcement of the rights conferred by article 14, article 21 and article 22 of the Constitution and ail proceedings pending in any court for the enforcement of the above mentioned rights shall remain suspended for the period during which the Proclamations of Emergency made under clause (1) of article 352 of the Constitution on the 3rd December, 1971 and on the 25th June, 1975 are both in force 352 (2) This order shall extend to the whole of the territory of India except the State of Jammu and Kashmir.
(3) This order shall be in addition to and not in derogation of any order made before the date of this order under clause (1) of article 359 of the Constitution".
The striking differences in the terms of the two Presidential orders set out above are: (1) The Presidential order of 1962 did not specify Article 14 of the Constitution, but Article 14, guaranteeing equality before the law and equal protection of laws to all persons in India, is mentioned in the 1975 order.
To my mind, this does make some difference between the intentions behind and effects of the two Presidential orders.
(2) The Presidential order of 1962 expressly hedges the suspension of the specified fundamental rights with the condition, with regard to deprivations covered by articles 21 and 22 of the Constitution that, "if such person is deprived of such right under the Defence of India, Act, 1962, or any rules or order made thereunder".
In other words on the terms of the 1962 Presidential order, the Courts were under a duty to see whether a deprivation satisfies these conditions or not.
They could adjudicate upon the question whether a detention was under the Act or a rule made thereunder.
On the other hand, the Presidential order of 1975 unconditionally suspends the enforcement of the rights conferred upon "any person including a foreigner" to move any Court for the enforcement of the rights conferred by Articles 14, 21, and 22 of the Constitution.
The Courts are, therefore, no longer obliged or able to test the validity of a detention by examining whether they conform to statutory requirements.
They will have to be content with compliance shown with forms of the law.
(3) Presidential order of 1962 makes no mention of pending proceedings, but the 1975 order suspends all pending proceedings for the enforcement of the rights mentioned therein.
This further clarifies and emphasizes that the intention behind the Presidential order of 1975 was to actually affect the jurisdiction of Courts in which proceedings were actually pending.
The inference from this feature also is that all similar proceedings in future will, similarly, be affected.
The result is that I think that there can be no doubt whatsoever that the Presidential order of 27th June, 1975, was a part of an unmistakably expressed intention to suspend the ordinary processes.
Of law in those cases where persons complain of infringement of their fundamental rights by the executive authorities of the State.
The intention of the Parliament itself to bring about this result, so that the jurisdiction of Courts under Article 226, in this particular type of cases is itself affected for the duration of the emergency, seems clear enough from the provisions of Section 16A(9) of the Act, introduced by Act No. 14 of 1976, which received Presidential assent on 25th January 1976, making Section 16A(9) operative retrospectively from 25th June, 1975.
353 The question before us is: What is the intention behind the Presidential order of 27th June, 1975.
After assigning a correct meaning to it, we have to determine whether what was meant to be done lay within the scope of powers vested by Article 359 of the Constitution in the President.
There is no doubt in my mind that the object of the Presidential order of 27th June, 1975, by suspending the enforcement of the specified rights, was to affect the powers of Courts to afford relief to those the enforcement of whose rights was suspended.
I have already indicated, this was within the purview of Article 359(1) is the Constitution.
Hence, the objection that the powers of the Court under Article 226 may indirectly be affected is no answer to the direct suspension of rights which was bound to have its effect upon the manner in which jurisdiction is or could reasonably be exercised even if that jurisdiction cannot be itself suspended for all types of cases.
It is enough if the ambit of the power to suspend under Article 359(1) is such as to make exercise of the jurisdiction to protect guaranteed fundamental rights not reasonably possible.
Section 16A(9) also appears to me, as held by My lord the Chief Justice, to make it impossible for Courts to investigate questions relating to the existence or absence of bona fides at least in proceedings under Article 226 of the Constitution.
It is clear that the validity of Section 16A(9) cannot be challenged on the ground of any violation of Part III of the Constitution in view of the provisions of Article 359 (1A) .
No previous decision of this Court deals with a situation which results from the combined effect of a Presidential order couched in the language of the order of 27th June 1975, and a statutory provision, such as Section 16A(9) of the Act, the validity of which cannot be challenged.
Hence, strictly speaking, earlier decisions are not applicable.
I will, however, consider them under the next heading as considerable argument has taken place before us on the assumption that these cases do apply to such a situation.
(F)The Rule of Law as found in our Constitution, and how it operates during the Emergency.
As I have indicated earlier in this judgment, the term Rule of Law is not a magic wand which can be waved to dispel every difficultly.
It is not an Aladin 's Lamp which can be scratched to invoke a power which brings to any person in need whatever he or she may desire to have.
It can only mean, for lawyers with their feet firmly planted in the realm of reality, what the law in a particular State or country is and what it enjoins.
That law in England is the law made by Parliament.
That is why Sir Ivor Jennings said (See: Law and the Constitution III Edn.) that "in England supremacy of Parliament is the Constitution".
And naturally, the Constitution of a country and not something outside it contains the Rule of Law of that country.
This means that the Rule of Law must differ in shades of meaning and emphasis from time to time and country to country.
It could not be rigid unchanging, and immutable like the ' proverbial laws of the Medes and Persians.
Nevertheless, one has to understand clearly what it means 25 833 Sup C I/76 354 in a particular context.
It cannot be like some brooding omnipotence in the skies.
Its meaning cannot be what anyone wants to make it.
It has to be, for each particular situation, indicated by the Courts which are there to tell the people what it means.
This Court has, in no unmistakable terms, indicated what the Constitution means and how the Rule of Law embedded in it works even during Emergencies.
A statement of the Rule of Law by Jackson, J., in Youngstown Sheet & Tube Co. vs Sawyer(1), quoted with approval by this Court, in Chief Settlement Commissioner, Rehabilitation Department Punjab & ors.
vs Om Prakash & ors.(2) etc.
(at page 661): "With all its defects delays and inconveniences men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by Parliamentary deliberations".
It was explained there: In our constitutional system, the central and most characteristic feature is the concept of the rule of law which means, in the present context, the authority of the law courts to test all administrative action by the standard of legality.
The administrative or executive action that does not meet the standard will be set aside if the aggrieved person brings the appropriate action in the competent court.
The rule of law rejects the conception of the Dual State in which governmental action is placed in a privileged position of immunity from control of law.
Such a notion is foreign to our basic constitutional concept".
This statement, no doubt, includes the concept of determination by Courts of the question whether an impugned executive action is within the bounds of law.
However, it presupposes: firstly, the existence of a fixed or identificable rule of law which the executive has to follow as distinguished from a purely policy decision open to it under the wide terms of the statute conferring a discretionary power to act.
and, secondly, the power of the Courts to test that action by reference to the Rule.
Even, in Emergencies, provided the power of the Court to so test the legality of some executive act is not curtailed, Courts will apply the test of legality "if the person aggrieved brines the action in the competent Court".
But, if the locus standi of the person to move the Court is gone and the competence of the Court to enquire into the grievance is also impaired by inability to peruse the grounds of executive action or their relationship with the power to act, it is no use appealing to this particular concept of the Rule of law set out above.
It is just inapplicable to the situation which arises here.
Such a situation is governed by the Emergency provisions of the Constitution These provisions contain the Rule of Law for such situations in our country.
(1) ; , 655.
(2) ; @ 661. 355 In Mohd. Yaqub etc.
vs the State of Jammu & Kashmir(1), a seven Judge bench of this Court pointed out that, whereas Article 358, by its own force, suspends the guarantees of Article 19, Article 359(1) has the effect of suspending the operation of specified fundamental rights (strictly speaking it is enforcement only which is suspended) so that these concepts cannot be used to test the legality of executive action.
Now, much of what Dicey meant by the Rule of Law was certainly sought to be embodied in Part III of our Constitution.
If, however, the application of Articles 14, 19, 21 and 22 of the Constitution is suspended, it is impossible to say that there is a Rule of Law found there which is available for the Courts to apply during the emergency to test the legality of executive action.
Makhan Singh vs State of Punjab(2), a seven Judge decision of this Court was sought to be made a foothold for several arguments on behalf of the detenus.
It, however, seems to me to have laid down more propositions which demolish various contentions advanced on behalf of the detenus than those which could assist them.
One main question considered in that case was whether Section 491(1)(b) of the Code of Criminal Procedure could afford a statutory remedy, by an order or direction in the nature of a writ of Habeas Corpus, at a time when enforcement of the fundamental right to personal liberty was suspended by the Presidential order of 1962 already set out above.
The suggestion that a Common Law remedy by way of writ of Habeas Corpus exists, even after Section 491 was introduced in the Criminal Procedure Code in 1923, was negatived.
The sweep of Article 359(1) of the Constitution, taking in the jurisdiction of "any Court", was held wide enough to cover any kind of relief claimed by a petitioner for the enforcement of a specified fundamental right.
Inter alia, it was held (at p. 821 822): "If article 359(1) and the Presidential order issued under it govern the proceedings taken under section 491(1)(b) the fact that the court can act suo motu will not make any difference to the legal position for the simple reason that if a party is precluded from claiming his release on the ground set out by him in his petition, the Court cannot, purporting to act suo motu, pass any order inconsistent with the provisions of article 359(1) and the Presidential order issued under it.
Similarly, if the proceedings under section 491(1)(b) are hit by article 359(1) and the Presidential order, the arguments based on the provisions of article 372 as well as articles 225 and 375 have no validity.
The obvious and the necessary implication of the suspension of the right of the citizen to move any court for enforcing his specified fundamental rights is to suspend the jurisdiction of the Court pro tanto in that behalf" This is exactly the interpretation which I have adopted above of Sree Mohan Chowdhury 's case (supra).
(1) [1968] 2 section C. R. p. 227 @ 234.
(2) [1964] 4 section C. R. 797 @ 821 822 356 It was also held in Makhan Singh`s case (supra) that, as no attack on the validity of the Defence of India Act of 1962 and the Rules framed thereunder, on the ground of violation of fundamental rights, was open during the emergency, no petition was maintainable on the ground of such alleged invalidity.
It was held (at p. 825 826) there: "Therefore, our conclusion is that the proceedings taken on behalf of the appellants before the respective High Courts challenging their detention on the ground that the impugned Act and the Rules are void because they contravene articles 14, 21 and 22, are incompetent for the reason that the fundamental rights which are alleged to have been contravened are specified in the Presidential order and all citizens are precluded from moving any Court for the enforcement of the said specified rights".
After having decided the questions actually calling for determination in that case, Gajendragadkar, J., speaking for the majority, ex pressed some views on the possible pleas which may still be open to petitioners in hypothetical cases despite the Presidential order of 1962, set out above, passed under Article 359(1).
He said (at page 828): "If in challenging the validity of his detention order, the detenu is pleading any right outside the rights specified in the order, his right to move any court in that behalf is not suspended, because it is outside article 359(1) and consequently outside the Presidential Order itself.
Let us take a case where a detenu has been detained in violation of the mandatory provisions of the Act.
In such a case, it may be open to the detenu to contend that his detention is illegal for the reason that the mandatory provisions of the Act have been contravened.
Such a plea is outside article 359(1) and the right of the detenu to move for his release on such a ground cannot be affected by the Presidential order.
" Again, it was observed (at page 828 829): "Take also a case where the detenu moves the Court for a writ of habeas corpus on the ground that his detention has been ordered malafide.
It is hardly necessary to emphasis that the exercise of a power malafide is wholly outside the scope of the Act conferring the power and can always be successfully challenged.
It is true that a mere allegation that the detention or malafide would not be enough, the detenu will have to prove the malafides.
But in the mala fides are alleged, the detenu cannot be precluded from substantiating his plea on the ground of the bar cleated by article 359(1) and the Presidential order.
That is another kind of plea which is outside the purview of article 359(1)" The two passages set out above, stating what may be the position in purely hypothetical cases, are the mainstrays of some of the argu 357 ments for the petitioners But, none of the Counsel for the petitioners has stated how these observations are applicable to facts of the case to the particular petitioner for whom he appears.
Assuming, however, that the hypothetical cases indicate good grounds on which a Habeas Corpus petition could be allowed even in an Emergency, it was certainly not decided in Makhan Singh`s case (supra) what the process could be for ascertaining that one of these grounds exist.
if that process involves a consideration of evidence in support of a plea, such as that of mala fides in proceedings under Article 226" the most important, evidence would be grounds of detention.
These grounds constituted the lever which could have been and was used in the past by Courts to reach decisions on various pleas, such as the plea that the order was not passed after due application of mind to the facts of the detenu 's case or that the ' satisfaction reached was not with regard to legally relevant grounds at all.
No such means are available now.
This difficulty was certainly not in the way at the time of the decision in Makhan Singh`s case (supra).
I am therefore, of the opinion that pleas which involve any adduction of ' evidence would, at any rate, be entirely excluded by the combined effect of the terms of the Presidential order of 27th June, 1975, read with the amended provisions of Section 16A(9) of the Act.
A perusal of section Pratap Singh vs State of Punjab,(1) will show the kind of evidence which often becomes necessary to justify a plea of "malice in fact".
Pleas about vires of the detention order itself e.g. whether it is based on, irrelevant grounds or was not passed after due application of mind) often require investigation or questions of fact involving scrutiny of actual grounds of detention which is hit by the embargo against an assertion of a right to move for enforcement of the right to personal`freedom and prohibition against disclosure of grounds.
So long as the executive authorities of the State purport to act under the Act,, their preliminary objection against further hearing will prevail unless, of course, the officer purporting to detain had, in fact, not been invested at all with any authority to act in which case the detention would, in my opinion, be on the same footing as one by a private person who has no legal authority whatsoever to detain.
But, such a defect has to be apparent either on the face of the order or admitted in the return.
Moreover, it can be cured by an adoption of the order by the State.
Detentions which not only do not but could not possibly have ally apparent, ostensible" or purported executive authority of the State whatsoever to back them, could be equated with those by private persons.
The suspension of enforcement of specified fundamental rights operates only to protect infringements of rights by the State and its authorised agents, acting or purporting to act? in official capacities which they could and do hold.
A claim to an order of release from such a patently illegal detention, which is not by the State or on its behalf.
could be enforced even during the current Emergency.
But there is no such case before us.
All the cases before us are, as far as I know.
OF detentions by duly empowered official under, prima facie, good orders.
The possibility, however, of so unlikely a hypothetical case (1)[1964] 4 section C. R. 733.
358 where there is a lack of legal power to act, which could be easily removed by the executive authorities of the State concerned themselves, whenever they desire to do so, is only mentioned to illustrate my view that the test of legality, applied by Courts, is not entirely abrogated and abandoned in the current emergency.
But, it can be only one.
which should be applicable without going into facts lying behind the return.
The presumption of validity of a duly authenticate order.
of an officer authorized to pass it is conclusive in Habeas Corpus proceedings during the current emergency State of Madhya Pradesh & Anr.
vs Thakur Bharat Singh,(1) was another decision of the Constitution Bench of this Court relied upon strongly on behalf of detenus.
In that case, an order prohibiting petitioner from residing in a specified area under section 3(1)(b) of the Madhya Pradesh Public Security Act, 1959, which was found to be void, because the provision infringed Article 19 of the Constitution, was held to be challengeable during an Emergency despite the provisions of article 358 of the Constitution.
The ground of the decision was that, although, the empowering provision could not have been challenged if it was contained in an enactment made during the emergency, yet as the provision was made by an Act passed at a time when Article 19 was operative the invalidity of the provision could be demonstrated despite the existence of the emergency.
I do not think that there is any such case before us.
It seems to me to he possible to distinguish the case on the ground that it was a case of patent voidness of the order passed so that the principle of legality, which is not suspended, could be affirmed even apart from enforcement of a specified fundamental right.
I think it was placed on such a footing by Shah J., speaking for this Court.
State of Maharashtra vs Prabhakar Pandurang Sangzgiri & Anr.
,(2) another decision of the Constitution Bench of this Court, was also cited.
There, an illegal order prohibiting the sending out of jail by a detenu of a book on matters of scientific interest only, for publication, was quashed by a High Court, under Article 226 of the Constitution" despite the Presidential order under Article 359 of the Constitution, on the ground that there was no condition at all in the Bombay Conditions of Detention order, 1951, authorising the Government of Maharashtra to prohibit the publication of a book of purely scientific interest just because the petitioner happened to be detained under the Defence of India Rules, 1962.
The High Court 's view was affirmed by this Court.
This case has nothing to do with preventive detention.
It is a case in which this Court held that an ultra vires order could be set aside.
This could be done under the residuary jurisdiction of the High Court, which could operate for "any other purpose".
The mere existence of the emergency could not, it was held, suspend this power.
The test applied was of bare illegality outside Article 19 of the constitution .
(1) 11967] 2 section C. R. 454.
(2) [1966] Supp section section C. R 702.
359 In Dr. Ram Manohar Lohia vs State of Bihar & ors.
,(1) this Court did, in a petition under Article 32 of the Constitution apply the test of a satisfaction required on relevant grounds, by Rule 30, subrule 1, Defence of India Rules, 1962, as a condition precedent to detention, because the grounds of detention were mentioned in the detention order itself so that they could be used to determine whether the detention order fell within the purposes of the Act.
The writ petition was allowed.
The alleged satisfaction of the District Magistrate, who was the detaining authority, was found, on the ground given for detention, to fall outside Rule 30.
It was held that the Presidential order under Article 359 was not intended to condone violations of the defence of India Act or the rules made thereunder and did not authorise ultra vires or mala fide detentions.
It was pointed out here that satisfaction about the need to detain in the interests of "law and order ' was not the same thing as one in the interests of "public order".
In this case, a well known distinction between ` 'public order" and "law and order", was drawn by Hidayatullah, J., in the following terns: "It will thus appear that just as "public order" in the rulings of the Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of State", "law and order" also comprehends disorders of less gravity than those affecting "public order".
One has to imagine three concentric circles.
Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State.
It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State.
By using the expression 'maintenance of law and.
Order" the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rulers.
I take the decision of this Court in Dr. Lohia`s case to mean that if the order, on the face of it., is bad and does not satisfy the requirements of the law authorising detention, the detenu may be released.
Sarkar, J., pointed out there: "The satisfaction of the Government which justifies the order under the rule is a subjective satisfaction.
A court cannot enquire whether grounds existed which would have created that satisfaction on which alone the order could have been made in the mind of a reasonable person.
If that is so and that indeed is what the respondent State contends it seems to me that when an order is on the face of it not in terms of the rule a court cannot equally enter into an investigation whether the order of detention was in fact, that is to say, irrespective of what is stated in it, in terms of the rule.
In other words.
in such a case the State cannot be heard to say or prove that the order was in fact made for example, to prevent acts prejudicial to public.
Order which would (1) ; 360 bring it within the rule though the order does not say so.
To allow that to be done would be to uphold a detention without a proper order".
The case was also decided on a consideration of evidence on the ground that there was an area of enquiry opened up by the grounds given for entry by the Court.
I do not know how any decision could have been given in Dr. Lohia 's case if grounds of detention were not found to be bad on the very face of the order stating those grounds, or, if there was no door left open for judicial scrutiny due to a provision such a Section 16A(9) of the Act before us.
Thus, the law considered and applied in Dr. Lohia`s case was different from the law we have to apply under a different set of circumstances as explained above.
In K. Anandan Nambiar & Anr.
vs Chief Secretary, Government of Madras & ors.(1) a writ petition under Article 32 of the Constitution by a Member of Parliament during the currency of an emergence and a Presidential order, was dismissed although his locus standi to maintain the petition was affirmed on the following ground: "The petitioners contend that the relevant Rule under which the impugned orders of detention have been passed is invalid on grounds other than those based on articles 14, 19, 21 and 22" and if that plea is well founded, the last clause of the Presidential order is not satisfied and the bar created by it suspending the citizens ' fundamental rights under Articles 14, 21 and 22 cannot be pressed into service".
Apparently, the view adopted in Nambiar 's case (supra) was that to question the validity of the provision under which the detention order is made could not be equated with an allegation of infringement of procedure established by law.
Moreover, this decision was also in a different context with a different set of applicable provisions.
None of the cases before us involves the assertion that the power under which the detention order purports to be made itself did not exist in the eye of law.
In Durga Dass Shirali vs Union of India & ors.
a Habeas Corpus petition against a detention order under Rule 30 of the Defence of India Rules, 1962, was again dismissed.
But, it was held that Article 358 and the Presidential order under Article 359(1) did not debar the petitioner from assailing his detention on the ground of mala fides or on the ground that any of the grounds mentioned in the order of detention is irrelevant.
This case is also distinguishable on the ground that the context" from the point of view of the applicable law, was different.
In Jai Lal vs State of West Bengal, (8) this Court, after taking evidence by affidavits into account and considering the pleas of mala fides, rejected the petitioner 's case although the petitioner was held on the strength of earlier decisions of this Court, entitled to raised the (1) [1966] 2 Sr C. R. 406.
(2) ; (3) [1966] Supply.
section C. R. p. 4, 64.
361 pleas of mala fides despite the Proclamation of emergency and the Presidential order.
Again, the context and the applicable law there were different We, however, see that, despite the Proclamation of emergency and a Presidential order under Article 359(1), this Court has held that High Courts, in exercise of their supervisory jurisdiction, could entertain Habeas Corpus petitions and enforce the principle of legality against the detaining authorities.
No doubt, the executive and the legislative organs of the State were fully aware of the nature and effect of the decisions of this Court.
It is, therefore., not surprising that, by means of a differently phrased Presidential order of 17th Junc.
1975, and the amendment in the Act, introducing rather drastic provisions of Section 16A of the Act, the intention has been made clear that preventive detention should be a matter controlled exclusively by the executive departments of the State.
It was contended by Mr. Tarkunde that the Rule of Law under our Constitution is embodied in the principle of Separation of Powers.
It is very difficult for me to see the bearing of any such doctrine on a pure and simple question of determination of the meaning of constitutional and statutory provisions couched in words which leave few D ' doubts unresolved.
However, as arguments based on this doctrine were advanced, I will deal with the manner in which, I think, laws relating to preventive detention fit in with the extent to which our constitution recognises the doctrine.
In Rai Sahib) Ram Jawaya Kapur & ors.
vs The Stale of Punjab,(1) Mukherjea, C.J., speaking for this Court, said: E "The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts of branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumptions, by one organ or part of the State, of functions that essentially belong to another.
The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature".
He further added: "Our Constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of Governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State".
If an order of preventive detention is not quasi judicial, as it cannot be because of the impossibility or applying any objective (1) A. I. R 1955 section C. 549.
362 standards to the need for it in a particular case, there could be no question of violating any principle of separation of powers by placing preventive detention exclusively within the control of executive authorities of the State for the duration of the Emergency.
That seems lo me to the effect of the emer ency provisions of the Constitution and the amendments of the Act already dealt with by me.
Commenting upon Liversidge 's case (supra) in "The Law Quarterly Review" (1942) (Vol.
58 p. 2).
, the celebrated jurist and authority on English Constitutional history and law, Sir William Holdsworth, supporting majority decision there, opined: "The question turns not, as Lord Atkin says upon whether the common law or the statute law has postulated a 'reasonable ' cause for a decision or an action, but upon the question whether or not the decision or the action to be taken on a reasonable cause raises a justifiable issue.
Clearly the question whether a person is of hostile origin or associations so that it is necessary to exercise control over him, raises, not a justifiable,, but a political or administrative issue".
He added "On principle this distinction seems to me be he clearly right.
If the issue is justifiable, if, that is, it raises an issue within the legal competence of the Court to try, the Court can decide on the facts proved before it whether a cause or a suspicion is reasonable, for it knows the law as to what amounts in the circumstances to a cause or a suspicion which is reasonable.
If, on the other hand, the issue is not justifiable, if, that is, it turns, not on a knowledge of the law as to what amounts in the circumstances to a reasonable cause or suspicion, but on political or administrative considerations it can have no knowledge of the weight to be attached to facts adduced to prove the reasonableness or unreasonableness of the cause or suspicion. for it has neither the knowledge nor the means of acquiring the know ledge necessary to adjudicate upon the weight to be attach ed to any evidence which might be given as to the existence of circumstances of suspicion or as to the reasonableness of belief Since, therefore, it is impossible to apply an objective standard through the agency of the Courts? the only possible standard to be applied the subjective standard, so that the Secretary of State 's statement that he had a reason able cause for his belief must be conclusive".
If the meaning of the emergency provisions in our Constitution and the provisions of the Act is clearly that what lies in the executive field, as indicated above., should not be subjected to judicial scrutiny or judged by judicial standards of correctness, I am unable to see how the Courts can arrogate unto themselves a power of judicial superintendence which they do not, under the law during the emergency , possess.
363 Dean Roscoe Pound, in the Green Foundation Lectures on "Justice h According to Law" (Yale University Press, 1951) begins his answer to the question as to what justice is by a reference to the jesting Pilate, who would not stay for the answer because he knew that philosophers disagreed so much, in their answers, that there could be no completely satisfactory answer.
He divides justice itself into three heads according to the three types of bodies or authorities which could administer it, and discusses the advantages and disadvantages of each: Legislative, Executive, Judicial.
He rejects "Legislative Justice", said to be most responsive to popular will, as too "uncertain, unequal, and capricious '.
He said that its history, even in modern times, was filled with "legislative lynchings"" and that this kind of justice was ton susceptible to "the influence of personal solicitation, lobbying, and even corruption", and subject to guests of passion, prejudice, and partisanship.
He thought that executive or administrative justice, which becomes inevitable in carrying out vast schemes of modern socialistic control and planning of economic, social, and cultural life of the people by the State was also, despite its own mechanisms of control against misuse of power" fraught with serious dangers indicated by him.
Finally, Dean Pound finds judicial justice, though not entirely immune from error and, sometimes, grievous and costly error to be superior to the other two types of justice despite its own inherent shortcomings as compared with executive or administrative justice for special types of cases.
Now , the question before us is not whether Courts should apply the high standards of "judicial justice" to the facts of each individual case which are not before us for consideration at all.
The question before us is purely one of the interpretation of laws as we find them.
on a correct interpretation of the legal provisions, we find that the jurisdiction of Courts was itself meant to be ousted, for the duration af the emergency, to scrutinise the facts or reasons behind detention orders purporting to have been made under the Act.
because the judicial process suffers from inherent limitations in dealing with cases of this type, we are bound, by the canons of "judicial justice" itself to declare that this is what the laws mean.
It appears to me that it does not follow from a removal of the normal judicial superintendence, even over questions of vires, of detention orders, which may require going into facts behind the returns, that there is no Rule of Law during the emergency or that the principles of ultra vires are not to be applied at all by any authority except when, on the face af the return itself, it is demonstrate in a Court of Law that the detention does not even purport to be in exercise of the executive power or authority or is patently outside the law authorising detention.
It seems to me that the intention behind emergency provisions and of the Act is that although such executive action as is not susceptible to judicial appraisement, should not be subjected to it, yet, it should be honestly supervised and controlled by the hierarchy of executive authorities themselves It enhances the powers and, therefore, the responsibilities of the Executive.
A maxim of justice is sometimes said to be :"Let the heavens fall but justice must be done ".
As applied to judicial justice, it means 364 that justice must accord with the highest standards of objective, impartial , unruffled dictates a clear judicial conscience working "without t fear or favour, affection or ill will".
It does not mean that the object of "judicial justice" is either to make the heavens fall ' or that it should be oblivious to consequences of judicial verdicts on the fate of the nation.
It fully recognises the legal validity of the principle adopted by the English House of Lords in both Sadiq`s case (supra and Liversidge 's case (supra): "Salus Populi Est Supreme Lex" (regard for the public welfare is the highest law).
This is the very first maxim given Broom 's Legal Maxim under the first head "Rules founded on public policy" (See Broom 's 'legal Maxims" p. 1).
It is not my object to animadvert here at length on any weakness in our legal or judicial system.
I would however, like to point out that judicial justice can only be "justice according to law".
It tends more often to accord with legal justice than moral justice.
Not only are the fact finding powers of Courts limited by rules of evidence and procedure, but the process of fact finding and adjudication can miss their objects due to the buying power of money over venel witnesses and the capacity of the wealthy to secure the best forensic talents in the country even if we do not take into account the liability of judges.
like the rest of human beings, to err.
Ends of justice can be frustrated by all kinds of abuses of the processes of Courts The machinery of executive justice, though not hide bound by technical rules of evidence and procedure, can also be and often is inordinately dilatory.
Its wheels can be clogged by red tape and by corrupt clerical underlings if their palms are not greased by honest citizens.
Even those in the upper echelons of the bureaucracy can be sometimes hopelessly unable to see the true objects of an administrative scheme or of the policy embodied in a statute.
They tend to be more anxious to please their superiors than to do justice so that matters in which executive heads may not get interested are liable to be neglected for years and even forgotten, whereas others, in which they are interested, received speedy attention.
They are not even aided by lawyers who, whatever else may be said about them, have undoubtedly imagination, courage, independence, and devotion to their client 's interests.
In any case, executive justice lacks the appearance of detachment.
Justifiable disputes between the State and the citizen.
On principles of natural justice? require independent authorities for their resolution.
It is for this reason that Article 226 of the Constitution places administrative action and inaction, even at the highest levels, under judicial superintendence, when it impinges on rights of persons, although this may have given rise to problems of its own either due to misuse by litigants of the powers of High Courts under Article 226 of the Constitution or want of clarify in the drafting of our statutes or the difficulties experienced by the executive officers of Government in understanding the laws or the manner in which their own duties are to be carried out.
Considerations, such as those mentioned above, arising out of alleged carelessness with which, according to the learned Counsel for the detentes, detentions are sometimes ordered, were placed before us so 365 that we may not deny powers of rectification of apparent errors of detaining officers to High Courts.
It was stated by one learned Counsel that a detention order was once issued against a person who was dead.
Obviously, no detention order could be executed against a dead person and no writ petition could be moved on behalf of such a person.
I have, however.
, no doubt, that the machinery of the preventive detention is not so defective as to prevent executive authorities at the highest levels from doing justice in appropriate cases where real injustice due to misrepresentations or mis apprehensions of fact is brought to their.
notice.
Not only are the highest executive authorities, under whose supervision the administration of preventive detention laws is expected to take place, better able than the High Courts, acting under Article 226 of the Constitution, to go into every question of fact and are in a much better position to know all relevant facts, but their knowledge f the meaning of laws to be administered and the policies underlying them could not be less, even if they are not better, known to them than to the High Courts on such a matter as preventive detention.
As already indicated, it raises essentially matters of policy.
Courts cannot decide what individuals with what kind of associations and antecedents should be detained.
In some cases,, the associations and affiliations of individuals with groups or originations may certainly be matters of common public knowledge.
But, it is only the membership and associations of persons which may be matters of public knowledge.
The nature of information, and the manner in which individuals or organisations concerned may do something, which may constitute a danger to the security of the State, are matters of appraisement of situations and policies on which information could certainly not be broadcast.
I, therefore, think that a challenge to the validity of Section 16A(9) based either on the submission that grounds for detention do not call for secrecy or that the provision is an unwarranted invasion of judicial power, even in an emergency, is not well founded.
I will indicate below the safeguards which exist in the Act itself for obtaining redress on the executive side in cases` of preventive detention.
As was held by this Court in Ram Jawaya Kapur 's case (supra), there is no such strict separation of powers under our Constitution as one finds in the American Constitution.
No particular provision of the Constitution could be pointed out in support of the proposition that preventive detention is a matter in which judicial superintendence must necessarily be preserved as a part of the doctrine of separation of powers.
Section 3.
3 of the Act shows that the detaining officer has to submit a report forthwith on a case of preventive detention, to ether with grounds of detention and particulars of the case, for the approval of the State Government.
The detention order itself unless approved by the State Government, lapses automatically after 12 days.
In special cases, covered by Section 8 of the Act, the proviso to Section 3, sub.
3, makes the initial order, subject to the approval of the State Government" operative for 22 days.
In cases covered by Section 16A(2) and (3) of the Act, in which no grounds of detention are to be supplied to the detenu, the State Government has to review and confirm the order if the detention is to continue beyond 15 days.
366 Section 14 of the Act provides for revocation of detention orders without prejudice to the provisions of Section 21 of the .
The power of revocation may be exercised not only by the detaining officer concerned, but by the State Government or the Central Government also Temporary release of persons detained is also provided for by Section 15 of the Act on the order of the appropriate Government as to prevent undue hardship and to Meet special con contingencies.
The provisions of Article 353(a) of the Constitution also the Union Government to issue directions to a State Government relating to the manner in which a State 's executive power is to be exercised during the Emergency.
Means of redress, in cases such as those of mistaken identity or misapprehension of facts or detentions due to false and malicious reports circulated by enemies, are thus still open to a detenu by approaching executive authorities.
There is no bar against that.
What is not possible is to secure a release by an order of a Court in Heabeas Corpus proceedings after taking the Court behind a duly authenticated prima facie good return.
An argument before us, to which would like to advert here, was that, notwithstanding the emergency provisions.
, some undefined or even defined principles of Rule of Law, outside the emergency provisions, can be enforced by the High Courts in exercise of their powers under Article 226 of the Constitution because the Rule of Law has been held by this Court to be a part of the inviolable 'basic structure" of the Constitution.
It was submitted that, as this basic structure was outside even the powers of amendment of the Constitution under Article 368 of the Constitution, it could not be affected by emergency provisions or by provisions of the Act.
We were asked to atleast interpret the emergency provisions and the Act in such a way as to preserve what was`represented to be the "Rule of Law" as a part of the basic structure of the Constitution.
It seems to me that the theory of a "basic structure" of the Constitution cannot be used to build into the Constitution an imaginary part which may be in conflict with Constitutional provisions.
The Constitution cannot have a base cut away from the super structure.
Indeed, as explained above, it seems to me that the emergency provisions could themselves be regarded as part of the basic structure of the Constitution.
At any rate, they are meant to safeguard the basis of all orderly Government according to law.
Speaking for myself, I do not look upon the theory of a basic structure of the constitution an anything more than a part of a well recognised mode of construing a document.
The constitution, like any other document, has to be read and construed as a whole.
This is the common principle which was applied, though in different ways and with differing results, both by Judges taking the majority as well as minority views in Kesavananda Bharti`s case (supra).
Some of the learned Judges thought that, by an application of this rule, the scope of the power of amendment, contained in Article 368 of the Constitution , was limited by certain principles which, though not expressly laid down in Article 368, could be read into the word "amendment" as implied limitations upon powers under Article 368.
On the other 367 hand other learned Judges (including myself) took the view that, considering the provisions of the Constitution as a whole, the powers of amendment of the Constitution in Article 368, which operated on all parts of the Constitution itself and embraced even the power of amending Article 368 of the Constitution, could not reasonably be so limited.
The theory, therefore, was nothing more than a method of determining the intent behind the constitutional provisions.
It could not and did not build and add a new part to the Constitution It was then urged that want of bona fides was expressly left open for determination by Courts even in an emergency in Liversidge`s s case.
It must not, however, be forgotten that Liversidge`s case was not a decision upon a habeas corpus proceeding, but, it came to the House of Lords at an interlocutory stage of a suit for damages for false imprisonment when Liversidge was denied access to particulars of grounds of his detention.
The question considered there was whether he could ask for them as a matter of right.
The House of Lords denied him that right.
In Greene 's case (supra)" which was heard with Liversidge 's case (supra) by the House of Lords, the decision was that the return made on behalf of the Secretary of State could not be questioned.
It is true that even in Greene 's case (supra), a theoretical exception was made for a case of want of bona fides.
I call it "theoretical" because such a case is perhaps not, easily conceivable in England.
It also requires some explanation as to what could be meant by holding that a return is "conclusive", but the bona fides of the order can be challenged.
The explanation seems to me to be that want of bona fides or "malice in fact" was placed on the same footing as fraud, which nullifies and invalidates the most solemn proceedings.
It may, however, be pointed out that, in Greene`s case (supra), it was not held that mala fides or any other invalidating fact could be proved during the emergency in habeas corpus proceedings.
An explanation of an almost formal exception for a case of want of bona fides could be that the reservation of such a plea was meant only for such proceedings in which "malice in fact" could reasonably be gone into and adjudicated upon.
The position before us, however., is very clear.
Section 16A(9) imposes a bar which cannot be overcome in Habeas Corpus proceedings.
In addition, a specific suspension or enforcement of the right of personal freedom against executive authorities places the presumption arising from a duly authenticated order of a legally authorised detaining officer on a higher footing than a merely ordinary rebuttable presumption for purposes of proceedings under Article 226 of the Constitution.
These are, as already indicated summary proceedings.
I may point out here that the term "mala fide" is often very loosely used.
Even in England, the scope of malice is wide enough to include both "malice in law" and "malice in fact".
Lord Haldane in Shearer vs Shields,(1) said: "Between 'malice in fact ' and 'malice in law ' there is a broad distinction which is not peculiar to any system of jurisprudence.
The person who inflicts a wrong or an injury upon any person in contravention of the law is not allowed (1) 368 to say that he did so with an innocent mind.
He is taken to know the law and can only act within the law.
He may, therefore, be guilty of 'malice in law ', although.
so far as the state of his mind was concerned he acted ignorantly, and in that sense innocently. 'Malice in fact ' is a different thing.
It means an actual malicious intention on the part of the Person who has done the wrongful act".
Now, applying the broad concepts of "malice in law` ', as stated t above, it has often been argued before us, in cases of preventive detention, that the burden is upon the executive authorities of proving the strict legality and correctness of every step in the procedure adopt ed in a case of deprivation of personal liberty.
To ask the executive authorities to satisfy such a requirements in accordance with what has been called the principle in Eshuqbayi Eleko 's case (supra)) would be in my opinion, to nullify the effect of the suspension of the enforceability of the procedural protection to the right of personal freedom.
To do so is really to make the Presidential order under Article 359(1) of the Constitution ineffective.
Therefore, no question of "malice in law ' can arise in Habeas Corpus proceedings when such a protection is suspended.
As regards the issue of "malice in fact", as I have already pointed out, it cannot be tried at all in a Habeas Corpus proceeding although it may be possible to try it in a regular suit the object of which is not be enforce a right to personal freedom but only to obtain damages for a wrong done which is not protected by the terms of Section 16 of the Act.
The possibility of such a suit should be another deterrent against dishonest use of these powers by detaining officers.
Mr. Mayakrishnan, learned Counsel for one of the detenus, con tended that state of emergency, resulting from the Presidential order of 27th June, 1975, cannot be equated with a situation in which Martial Law has been proclaimed.
The argument seems to be that if the jurisdiction of Courts to enforce the right ht to personal freedom is affected, the resulting position would be no different from that which prevails when Martial Law is declared.
There is no provision in our Constitution for a declaration of Martial Law.
Nevertheless, Article 34 of the Constitution recognises the possibility of Martial Law in this country.
It provided: "34 notwithstanding anything in the foregoing provisions of this Part, Parliament may by law indemnify any person in the service of the Union or of a State or any other t person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area? ' As there is no separate indication in the Constitution of conditions in which Martial Law could be "proclaimed", it could be urged that a Presidential order under Article 359(1) has a similar effect and 369 was intended to provide for situations in which Martial Law may have to be declared in any part of the country.
But, a Presidential order under Article 339(1) of the Constitution would, ordinarily, have a wider range and effect throughout the country than the existence of Martial Law in any particular part of the country.
The Presidential Proclamations are meant generally to cover the country as a whole.
"Martial Law" is generalIy of a locally restricted application.
Another difference is that conditions in which what is called "Martial Law" may prevail result in taking over by Military Courts of powers even to try offences; and, the ordinary or civil Courts will not interfere with this special jurisdiction under extraordinary conditions.
Such a taking over by Military Courts is certainly outside the provisions of Article 359(1) of the Constitution taken by itself.
lt could perhaps fall under Presidential powers under Articles 53 and 73 read with Article 355.
Article 53(2) lays down: "53 (2) Without prejudice to the generality of the foregoing provision the supreme command of the Defence Forces of the Union shall be vested in the President and the exercise thereof shall be regulated by law".
And, Article 355 provides: "355.
It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution.
" A similarity in results however between Martial Law and conditions, resulting from a Presidential order under Article 359(1) is that, if no provision is made by an Act of Indemnity the civil liabilities of military or civil officers, acting mala fide and outside the law, are not removed ipso facto by either Martial Law or the Proclamation of Emergency.
In Halsbury 's Laws of England (4th Edn. vol.
8, para 982, page 625), an explanation of Martial Law, as it is known in British Constitutional Law, is given as follows: "The Crown may not issue commissions in time of peace to try civilians by martial law; but when a state of actual war, or of insurrection, riot or rebellion amounting to war exists, the Crown and its officers may use the amount of force necessary in the circumstances to restore order.
This use or force is sometimes termed "martial law".
When once a state of actual war exists the civil courts have no authority to call in question the actions of the military authorities, but it is for the civil courts to decide, if their jurisdiction is invoked, whether a state of war exists which justifies the application of martial law.
The powers.
such as they are, of the military authorities cease and those of the civil courts resumed ipso facto with the termination of the State of war.
and in the absence of an act of Indemnity, the civil courts may inquire into the 24 833SCI 76 370 legality of anything done during the state of war.
Even if there is an Act of Indemnity couched in the usual terms, malicious acts will not be protected.
Whether this power of using extraordinary measures is really a prerogative of the Crow, or whether it is merely an example of the common law right and duty of all, ruler and subject alike, to use the amount of force necessary to suppress disorder, is not quite free from doubt.
it is, however, clear that so called military courts set up under martial law are not really courts at all, and So an order of prohibition will not issue to rest rain them.
Probably the correct view to take of ' martial law itself is that it is no law at all.
It is not at all necessary for the purposes of the decision of cases before us to determine how proclamations of emergency are related to the more drastic conditions in which "Martial Law" if it is "law" at all, may come into existence due to the very necessities of a situation.
It is evident that the emergency provisions of our Constitution arc very comprehensive.
They are intended not merely to deal with situations when actual out break of hostilities with another country try has taken place and a war is going on but also when the country 's peace, progress, security and independence are threatened by dangers either internal or external or both.
Whether there is a "grave emergency", falling within Article 352(1), is a matter entirely for the President to determine.
Attempts were made by some learned Counsel to paint very gloomy pictures of possible consequences if this Court held that no relief was open to petitioners against deprivation of their personal freedoms by executive officers in an emergency of indefinite duration, when a number of cases of serious misuse of their powers by the detaining officers were said to be in evidence.
I do not think that it is either responsible advocacy or the performance of any patriotic or public duty to suggest that powers of preventive detention are being misused in the current emergency when our attention could not be drawn to the allegations in a single case even by way of illustration of the alleged misuse instead of drawing upon one s own imagination to conjure up phantoms.
In fact, I asked some learned Counsel to indicate the alleged facts of any particular case before us to enable us to appreciate how the power of preventive detention had been misused.
Mostly, the answers given were that the facts of the cases were not before us at this stage which is true.
But, it is significant that no case of alleged "malice in fact" could be even brought to our notice.
It seems to me that Courts can safely act on the presumption that powers of preventive detention are not being abused.
The theory that preventive detention serves a psycho therapeutic purpose may not be correct.
But, the Constitutional duty of every Govt.
faced with threats of wide spread disorder and chaos to meet it with appropriate steps cannot be denied.
And, if one can refer to a matter of common knowledge, appearing from newspaper reports, a number of detenus arrested last year have already been released.
This shows that whole situation is periodically reviewed.
Furthermore, we under 371 stand that the care and concern bestowed by the State authorities upon the welfare of detenus who are well housed, well fed, and well treated.
is almost maternal.
Even parents have to take appropriate preventive action against those children who May threaten to burn down the house they live in.
If there are, under our Constitution, some supreme obligations or overriding powers or duties, vested in superior Court s, as learned Counsel for the detenus seemed to be contending for, to enforce the claims of constitutionality, quite apart from the suspended powers and duties of Courts to enforce fundamental rights, I am sure that the current emergency, justified not only by the rapid improvement.
due to it in the seriously dislocated national economy and discipline but also by the rapid dangers of tomorrow, apparent to those who have the eyes to see them, averted by it, could not possibly provide the occasion for the discharge of such obligations towards the nation or the exercise of such powers, if any, in the Courts set up by the Constitution.
Where there are such great obligations and powers they must always be guided by the principle already indicated: "Sauls Populi Est Suprema Lex".
Indeed, as I understand even the majority view in Golaknath`s case (supra), it was that, despite the invalidity of constitutional amendments of provisions containing fundamental 1) rights, to give effect to the view would be contrary to this principle.
The case for the detenus before us, however, fails on preliminary hurdles.
Despite strenuous efforts, their learned Counsel were quite unable to show any constitutional invalidity, directly or indirectly, in any of the measures taken, whether legislative or executive, by or on behalf of the State.
The real question for determination by us relates only to the meaning and effect of the Constitutional and statutory provisions indicated above which are applicable during the current Emergency.
A large number of other questions including even some quite remotely connected with the real question involved, were permitted Court to be argued because of the great concern and anxiety of this Court when problems relating to personal liberty are raised.
On the interpretation of the relevant provisions adopted by me, the validity of detention orders purporting to be passed under the Act cannot.
be challenged in Habeas Corpus proceedings.
Judicial proceedings in criminal Courts, not meant for the enforcement of fundamental rights, are not, either at the initial or appellate or revisional stages, covered by the Presidential order of 1975.
Habeas Corpus petitions are not maintainable in such cases on another ground.
It is that the prisoner is deemed to be in proper custody under orders of a Court.
My answer to the two questions set out in the beginning of this judgment which I compressed into one, is as follows: A prima facie valid detention order, that is to say, one duly authenticated and passed by an officer authorised to make it, recording purported satisfaction to detain the petitioner under the maintenance of Internal Security Act, which is operative either before or after its confirmation by the Government, is a complete answer to a petition for a writ of Habeas Corpus.
Once such an order is shown 372 to exist in response to a notice for a writ of Habeas Corpus, the High Court cannot inquire into its validity or vires on the ground of either mala fides of any kind or of non compliance with any provision of the in Habeas Corpus proceedings.
The preliminary objection of the State must be accepted in such a case.
The result is that the appeals before us are allowed and the judgment and order of the High Court in each case is set aside.
The High Court concerned will itself now pass an order on each petition in accordance with law as laid down by this Court and the provisions of Article 359(1) of the Constitution.
CHANDRACHUD, J.
During, the last few years, many questions of far reaching constitutional importance have engaged the attention of this Court but these appeals, perhaps, present problems of the gravest magnitude.
They involve an adjustment between two conflicting considerations, the liberty of the individual on one hand and exigencies of the State on the other.
This balancing of the most precious of human freedoms the liberty of the subject as against the most imperative of the State 's obligations the security of the State gives rise to multi dimensional problems quite beyond the scope and compass of each right considered separately and in isolation.
Can the freedom of the individual be subordinated to the exigencies of the State and if so, to what extent ? The Constitution concedes to the Executive the power of Preventive detention, but in the name of national security can that jurisdiction of suspicion be so exercised as to reduce the guarantee of personal liberty to a mere husk ? Detention without trial is a serious inroad on personal freedom but it bears the sanction of our Constitution.
The Constituent Assembly composed of politicians.
statesmen, lawyers and social workers who had attained a high status in their respective specialities and many of whom had experienced the travails of incarceration owing solely to their political beliefs resolved to put Article 22, clauses (3) to (7) into the Construction.
may be as a necessary evil.
But does that mean that, more as a rule than as an exception, any person can be detained without disclosing the grounds of detention to him or to the Court which may be called upon to try his Habeas Corpus petition ? And can such grounds and the information on which the grounds are based be deemed by a rule of evidence to relate to the affairs of the State, therefore, confidential , and therefore privileged ? Blind, unquestioning obedience does not flourish on English soil, said Lord Simonds in Christie vs Leachinsky(1).
Will it flourish one Indian soil ? These broadly are the sensitive questions for decision and importantly, they arise in the wake of Proclamations of Emergency issued by the President.
Part XVIII of the Constitution, called "Emergency provisions", consists of Articles 352 to 360.
Article 352(1) provides that if the President is satisfied that a grave emergency exists whereby the secu (1) ; 591.
373 rity of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by Proclamation, make a declaration to that effect.
A Proclamation issued under clause (1) is required by clause (2) (b) to be laid before each House of Parliament and by reason of clause (2) (c) it ceases to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament.
By clause (3) of Article 352, a Proclamation of Emergency may be made before the actual occurrence of war or of external aggression or internal disturbance, if the President is satisfied that there is imminent danger thereof.
Clause (5) (a) makes the satisfaction of the President under clauses (1) and (3) final, conclusive and non justiciable.
By clause (5) (b), neither the Supreme Court nor any other court has jurisdiction, subject to the provisions of clause (2), to entertain any question on any ground regarding the validity of a proclamation issued under clause (1) or the continued operation thereof.
Article 358 provides that: "While a Proclamation of emergency is in operation, nothing in Article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect.
" Article 359(1) empowers the President, while a Proclamation of emergency is in operation to declare by order that: ". the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order.
" Clause (1A), which was inserted retrospectively in Article 359 by section 7 of the Thirty eighth Amendment Act, 1975, provides: "While an order made under clause (1) mentioning any of the rights conferred by Part III is in operation, nothing in that Part conferring those rights shall restrict the power of the State as defined in the said Part to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect." 374 Clause (3) of Article 359 requires that every order made under clause (1) shall, as soon as may be after it is made, be laid before each house of Parliament.
Article 352 was resorted to for the first time when hostilities broke out with China.
On October 26, 1962 the President issued a Proclamation declaring that a grave emergency existed whereby the security of India was threatened by external aggression.
This proclamation was immediately followed by the defence of India ordinance, 4 of 1962, which was later replaced by the Defence of India Act, 1962.
on November3, 1962 the President issued an order under Article 359(1) of the Constitution, which was later amended by an order dated November I 1, 1962 stating that: "the right of any person to move any court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution shall remain suspended for the period during which the proclamation of emergency issued under clause (1) of Article 352 thereof on the 26th October, 1962, is in force, if such person has been deprived of any such rights under the Defence of India ordinance, 1962 (4 of 1962) or any rule or order made thereunder(Emphasis supplied).
Article 14 was added to the order of November 3, 1962 by the amendment dated November 11, 1962.
The emergency declared on October 26, 1962 was revoked by a Proclamation dated January 10, 1968 issued under Article 352(2)(a) of the Constitution.
The Defence of India Act, 1962 was to remain in force during the period of operation of the Proclamation of Emergency issued on October 26, 1962 and for a period of six months thereafter .
The Act of 1962 expired on July 10, 1968.
The maintenance of Internal Security Act, 26 of 1971, (MISA) was brought into force on July 2, 1971 in the shadow of hostilities with Pakistan.
Section 3(1) of that Act provides as follows: "3.(1) The Central Government or the State Government may, (a) if satisfied with respect to any person (including a foreigner) that with a view to preventing him from acting in any manner prejudicial to (1) the defence of India, the relations of India with foreign powers, or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii)the maintenance of supplies and services essential ll to the community, or (b) if satisfied with respect to any foreigner that with a view 2to regulating his continued presence in India or 375 With a view to making arrangements for his expulsion from India.
It is necessary so to do make an order directing that such person be detained.
" Section 8 of the Act requires that the grounds on which the order of detention is made shall be communicated to the detenu within a certain period but that the authority making the order may not disclose facts which it considers to be against the public interest to disclose Consequent on the Pakistani aggression, the President issued a Proclamation of Emergency on December 3, 1971 on the ground that the security of India was threatened by external aggression.
By on.
Order dated December S, 1971 issued under Article 359(1) of the Constitution, the right of 'foreigners ' to move any court for the enforcement of rights conferred by Articles 14, 21 and 22 was suspended.
In September 1974 the MISA was amended by ordinance 11 of 1974 to include sub section (c) in section 3(1), by which the right to detain was given as against smugglers and offenders under the Foreign Exchange Regulation Act, 1947.
On November 16, 1974 the President issued a Declaration under Article 359(1) suspending the right of persons detained under section 3 (1) (c) of the MISA lo move for enforcement of tile rights conferred by Article 14, Article 21 and clauses (4), (5), (6) and (7) of Article 22 of the Constitution On June 25, 1975 the President issued a Proclamation under Article 352(1) declaring that a grave emergency existed whereby the security of India was threatened by internal disturbance.
On June 27, 1975 The President issued an order under Article 359(1) which reads as follows: "G.S.R. 361 (E) In exercise of powers conferred by clause (1) of Article 359 of the Constitution, the President hereby declares that the right of any person (including a foreigner) to move any court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution and all proceedings pending in any court for the enforcement of the above mentioned rights shall remain suspended for the period during which the proclamation of emergency made under clause (1) of Article 352 of the Constitution on the 3rd December, 1971 and on the 25th of June, 1975 are both in force.
The order shall extend to the whole of the territory of India.
This order shall be in addition to and not in derogation of any order made before the date cf this order under Clause (1) of Article 359 of the Constitution." Various persons detained under section 3(1) of the MISA filed petitions in different High Courts for the issue of the writ of Habeas Groups.
When those petitions can.
up for hearing, the Government 376 raised a preliminary objection to their maintainability on the ground that in asking for release by the issuance of a writ of habeas corpus, the detenus were in substance claiming that they had been deprived of their personal liberty in violation of the procedure established by law, which plea was available to them under Article 21 f he Constitution only.
The right to move for enforcement of the right conferred by that Article having been suspended by the Presidential order dated June 27, 1975 the petitions, according to the Government, were liable to be dismissed at the threshold.
The preliminary objection has been rejected for one reason or another by the High Courts of Allahabad, Bombay, Delhi, Karnataka, Madhya Pradesh, Punjab and Rajasthan.
Broadly, these High Courts have taken the view that despite the Presidential order it is open to the detenus to challenge their detention on the ground that it is ultra vires, as for example,.
by showing that the order on the face of it is passed by an authority not empowered to pass it, or it is in excess of the power delegated to the authority, or that the power has been exercised in breach 0 the conditions prescribed in that behalf by the Act under which the order is passed, or that the order is not in strict conformity with the provision of the Act.
Some of these High Courts have further held that the detenus can attack the order of detention on the grounded that it is malafide, as for example, by showing that the detaining authority did not apply its mind to the relevant considerations, or that the authority was influenced by irrelevant considerations, or that the authority was actuated by improper motives.
Being aggrieved by the finding recorded by these High Courts on the preliminary point the State Governments and the Government of India have filed these appeals, some under certificates granted by the High Courts and some by special leave granted by this Court.
The High Courts of Andhra Pradesh, Kerala and Madras have upheld the preliminary objection.
During the pendency of these appeals and while the hearing was in Progress, the President issued an order dated January 8, 1976 under Article 359(1) declaring that the right to move any court for the enforcement of the rights conferred by Article 19 and the proceedings pending in any court for the enforcement of those rights shall suspended during the operation of the Proclamations of Emergency dated December 3, 1971 and June 25, 1975.
On behalf of the appellants, the appeals were argued by the learned Attorney General and the learned Additional Solicitor General.
The learned Advocates General of various States argued in support of their contentions.
A string of counsel appeared on behalf of the respondents, amongst them being Shri Shanti Bhushan, Shri V. M. Tarkunde, Shri R. B. Jethmalani, Shri section J. Sorabji, Shri A. B. Dewan, Shri C. K. Daphtary, Dr. N. M. Ghatate, Shri G. C. Dwivedi.
Shri Santokh Singh, Shri Sharad Manohar, Shri Daniel Latifi and Shri Mayakrishnan.
The learned Advocate General of Gujarat generally supported their submissions.
The learned Attorney General contended that Article 21 is the sole repository of the right to life and personal liberty and if the right to move any court for the enforcement of that right is suspended by 377 the Presidential order issued under Article 359(1), the detenus have no locus standi to file the writ petitions and therefore these petitions must be dismissed without any further inquiry into the relevance of the material on which the grounds of detention are based or the relevance of the grounds or the bona fides of the detaining authority.
If the MISA permits the non disclosure of grounds and indeed prevents their disclosure, there is no question of inquiring into the reasons or grounds of detention and courts must accept at its face value the subjective satisfaction of the detaining authority has recorded in the order of detention.
"There is no half way house" asserted the Attorney General.
But, not inconsistently with the basic submission that the detenus have no locus standi to file the petitions for habeas corpus, he conceded that the court may grant relief if the detention order is on the face of it bad, as for example, if it is passed by a person not authorised to pass it, or if it is passed for a purpose outside those mentioned in section 3(1) of the MISA or if it does not bear any signature at all.
The learned Additional Solicitor General indicated during the course of his argument the limits of judicial review in the event of the court rejecting the main submission of the Attorney General.
He contended that section 16A(9) of MISA contains but a rule of evidence and is therefore not open to attack on the ground that it encroaches upon the jurisdiction of the High Court under Article 226 of the Constitution.
Since section 16A(9) is not unconstitutional, no court can ask for the prosecution of the file relating to a detente or ask for the disclosure of the grounds of detention.
If such disclosure is not made, no adverse inference can be raised by holding that by reason of non disclosure, the detenu case stands unrebutted.
The learned Additional Solicitor General contended that there was no warrant for reading down section 16A(9) so as to permit disclosure to the court to the exclusion of the petition and if any inquiry is permissible at all into a habeas corpus petition, the inquiry must be limited to the following points: (1) Whether the order is made in exercise or purported exercise of power conferred by a law; (ii) If such law was pre emergency law, is it a valid law; (iii) whether the authority which passed the order is duly empowered to do so by the law.
(iv) Whether the person sought to be detained is the person named in the order of detention; (v) Whether the stated purpose of the detention is one that comes within the law; (vi) Have the procedural safeguards enacted by the law been followed; and (vii) Where grounds are furnished (i.e. when 16 A does not apply) do such grounds ex facie justify the apprehension of the detaining authority or is it vitiated by a logical non sequitur ? Such an inquiry, according to the learned counsel, can never extend to an objective appraisal of the material and the information for the purpose of testing the validity of the subjective satisfaction of the detaining authority.
The arguments advanced on behalf of the respondents covered a evidence but they may be summarized thus: H 1.
The object of Article 359(1) and the effect of an order issued under it is to remove restraints against the 378 Legislature so that during the emergency, it is free to make laws in violation of the fundamental rights mentioned in the Presidential order.
Under a Constitution which divides State functions into Executive, Legislative and Judicial, the executive functions must be discharged consistently with the valid laws passed by the Legislature and the orders and decrees passed by the Judiciary.
The suspension of the right to enforce fundamental rights cannot confer any right on the Executive to flout the law by which it is bound as much in times of emergency as in times of peace.
Since there is a valid law regulating preventive detention, namely, the MISA, every order of detention passed by the Executive must confconfirm to the conditions prescribed by that law.
Article 359(1) may remove fetters imposed by Part Ill but it cannot remove those arising from the principle or rule of law or from The principle of the limited power of the Executive under the system of checks and balances based on separation of powers .
The obligation cast on the Executive to act in accordance with the law does not arise from any particular Article of the Constitution but from the inherent com compulsion arising from the principle of rule of law which is a central feature our constitutional system and is a basic feature of the Constitution.
The suspension of the right to enforce Article 21 does not automatically entail the suspension of the rule of law.
Even during emergency, the rule of law is not and cannot be suspended.
The Presidential order under Article 359(1)may bar the enforcement of fundamental rights mentioned in the order by a petition under Article 32 before the Supreme Court.
But, the Presidential order cannot bar the enforcement of rights other than fundamental rights by a petition filed under Article 226 in the High Court.
Common law rights as well as statutory rights to personal liberty can be enforced through writ petitions filed under Article 226, despite the Presidential order issued under Article 359(1).
Similarly, contractual rights, natural rights and non fundamental constitutional rights like those under Articles 256, 265 and 361(3) of the Constitution, can be enforced under Article 226.
Article 226 empowers the High Courts to issue writs and directions for the enforcement of fundamental rights" "and for any other purpose".
The essence of the inquiry in a Habeas Corpus petition ;9 whether the detention is justified by law or is ultra 379 vires the law.
Such an inquiry is not shut out by the suspension of the right to enforce fundamental rights.
If the Presidential order is construed as a bar to the maintainability of the writ petitions under Article 226 of the Constitution, that Article shall have bee amended without a proper and valid constitutional amendment.
Article 21 of the Constitution is not the sole repository of the right to life or personal liberty.
There is no authority for the proposition that on the conferment of fundamental rights by Part III, the corresponding, pre existing rights merged with the fundamental rights and that with the suspension of fundamental rights, the c corresponding pre existing rights also got suspended.
Suspension of the right to enforce Article 21 cannot put a citizen in a worse position than in the pre constitution period.
The pre Constitution right of liberty was a right in rem and was totally dissimilar from the one created by Article 21. 'The pre constitution rights was merely a right not to be detained, save under the authority of law.
Civil liberty or personal liberty is not a conglomeration of positive rights.
It is a negative concept and constitutes an area of free action because no law exists curtailing it or authorising its curtailment.
Section 16A(9) of the MISA is unconstitutional as it encroaches upon the High Courts ' powers under Article 226 of the Constitution by creating a presumption that the grounds on which the order of detention is made and any information or materials on which the grounds are based shall be treated as confidential and shall be deemed to refer to matters of State, so that it will be against the public interest to disclose the same.
Section 18 of MISA as amended by Act 39 of 1975 which came into force with effect from June 25, 1975 cannot affect the maintainability of the present petitions which were filed before the Amendment.
The dismissal of writ petitions on the around that such petitions are barred by reason of the Presidential order issued under Article 359(1) would necessarily mean that during the emergency no person has any right to life or personal liberty; and 15.
If the detenus are denied any forum for the redress of their grievances, it would be open to the Executive to whip the detenus to start them, to keep them in solitary confinement and even to shoot them, which would 380 be a startling state of affairs in a country governed by a written Constitution having in it a chapter on Fundamental Rights.
The Presidential order cannot permit the reduction of Indian citizens into slaves.
The validity of the 38th and 39th Constitution (amendments Acts was not challenged by the respondents.
The key to these rival contentions can be found in the emergency provisions contained in Chapter XVIII of the Constitution.
The Presidential declaration of emergency is made final, conclusive and non justiciable by clause (5) of Article 352, which was introduced by the 38th Amendment retrospectively.
But apart from the fact that the Constitution itself has given Finality to declarations of emergency made by the President, it is difficult to see how a Court of law can look at the declaration of emergency with any mental reservations.
The facts and circumstances leading to the declaration of emergency are and can only be known to the Executive, particularly when an emergency can be declared, as provided in Article 352(3), before the actual occurrence of war, external aggression or internal disturbance, so long as the President is satisfied that there is imminent danger thereof.
The actual occurrence of war or external aggression or internal disturbance can be there for anyone to see but the imminent danger of these occurrences depends at any given moment On the perception and evaluation of the national or international situation, regarding which the court of law can neither have full and truthful information nor the means to such information.
Judge and Jury alike may form their personal assessment of a political situation but whether the emergency should be declared or not is a matter of high State policy and questions of policy are impossible to examine in courts OF law.
The High Courts whose judgements are under appeal have, with the greatest respect, failed to perceive this limitation on the power of judicial review, though in fairness to them it must be stated that none of them has held that the declaration of emergency is open to judicial scrutiny.
But at the back of one 's mind is the facile distrust of executive declarations which recite threat to the security of the country, particularly by internal disturbance.
The mind then weaves cobwebs of suspicion and the Judge, without the means to knowledge of full facts, covertly weighs the pros and cons of the political situation and substitutes his personal opinion for the assessment of the Executive, which, by proximity and study, is better placed to decide whether the security of the country is threatened by an imminent danger of internal disturbance.
A frank and unreserved acceptance of the Proclamation of emergency, even in the teeth of one 's own pre disposition, is conducive to a more realistic appraisal of the emergency provisions.
A declaration of emergency produces far reaching constituencies.
While it is in operation the executive power OF the Union, by reason of Article 353, extends the giving of directions to any State as to the manner in which the executive power thereof is to be exercised.
Secondly, the power of Parliament to make laws with respect to any matter includes, during emergency, the power to make laws conferring powers and imposing duties or authorising the conferring of powers 381 and imposition of duties upon the Union or Officers and authorities of the Union as respects that matter, notwithstanding that the matter is not enumerated in the Union List.
Article 354 confers power on the President direct that the provisions of Articles 268 to 279, which deal with distribution of revenues between the Union and the States, shall have effect subject to such exceptions or modifications as the President thinks fit, but not extending beyond the expiration of the financial year in which the proclamation ceases to operate.
A Proclamation of emergency automatically curtails the operation of Article 19.
As provided in Article 358, while the Proclamation is in operation nothing in Article 19 shall restrict the power of the State to make any law or to take any executive action which the Stale would but for the provisions contained in Part III be competent to make or to take.
Any law so made ceases to have effect to the extent of the incompetency as soon as the proclamation ceases to operate.
Then comes Article 359 which is directly in point.
It authorises the President to issue an order declaring the suspension of the right to move any court for the enforcement of such of the rights conferred by Part III as the President may specify in his order.
Clause (1A) which was introduced in Article 359 by tile 38th Amendment Act retrospectively has, inter alia, transported the provisions of Article 358 into Article 359 during the operation of an order made by the President under Article 359(1).
The orders issued by the President in the instant case under Article 359(1) provide for the suspension of the right to move any court for the enforcement of the rights conferred by Articles 14, 19, 21 and clauses (4) to (7) of Article 22.
Article 21 of the Constitution runs thus: "No person shall be deprived of his life or person liberty except according to procedure established by law.
" The principal question for decision in these appeals is whether notwithstanding the fact that the order issued by the President under Article 359(1) suspends the right of every person to move any court for the enforcement of the right to personal liberty conferred by Article 21, it is open to a person detained under a law of preventive detention like the MISA to ask for his release by filing a petition in the High Court under Article 226 of the Constitution for the writ of habeas corpus.
The writ of habeas corpus is described by May in his 'Constitutional History of England(1) as the first security of civil liberty.
Julius Stone in 'Social Dimensions of Law and Justice(2) calls it a picturesque writ with an extraordinary scope and flexibility of application.
The Latin term "habeas corpus" means 'you must have the body ' and a writ for securing the liberty of the person was called habeas corpus ad subjiciendum.
The writ affords an effective means of immediate release from an unlawful or unjustifiable detention whether in prison or in private custody.
The writ is of highest constitutional importance being a remedy available to the lowliest subject against the most powerful government.
(1) Ed 1912, Vol.
II, p. 130 (Chapter XI).
(2) Ed. 1966.
p. 203.
382 The liberty of the individual is the most cherished of human freedoms and even in face of the gravest emergencies, Judges have played a historic role in guarding that freedom with real and jealousy, though within the bounds, the farthest bounds, of constitutional power.
The world wide interest generated by the lively debate in Liversidge vs Sir John Anderson and Anr.(1) has still not abated.
And repeated citation has not blunted the edge of Lord Atkin 's classic dissent where he said: "I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executing minded than the executive.
In this country, amid the clash of arms, the laws are not silent.
They may be changed, but they speak the same language in war as in peace In this case I have listened to arguments which might have been addressed acceptably to the Court of King 's Bench in the time of Charles I." Sir William Blackstone in his 'Commentaries on the Laws of England '(2) says that the preservation of personal liberty is of great importance to the public because if it were left in the power of ever the highest person to imprison anyone arbitrarily there would soon be an end of all other rights and immunities.
"To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom; but confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government." The learned commentator goes on to add: "And yet, sometimes, when the state is in real danger, even this may be a necessary measure.
But the happiness of our Constitution is, that it is not left to the executive power to determine when the danger of the state is so great, as to render this measure expedient; for it is the parliament only, or legislative power, that, whenever it sees proper, can authorize the Crown, by suspending the Habeas Corpus Act for a short and limited time, to imprison suspected persons without giving any reason for so doing. ' ' May in his Constitutional History of England(3) says that during the course of the last century every institution was popularise and every public liberty was extended but long before that period English men had enjoyed personal liberty as their birthright.
It was more prized and more jealously guarded than and other civil right.
"The Star Chamber had fallen: the power of arbitrary imprisonment had been wrested from the Crown and Privy Council: liberty had been guarded by the Habeas Corpus Act . ".
Speaking of the writ of habeas corpus May says that it protects the subject from unfounded suspicions, from the aggressions of power and from abuses in the (1) ; ; Lord Atkin, p. 244.
(2) 4th Ed.
Vol I. pp.
105 to 107.
(3) Ed. 1912, p. 124, 130.
383 administration or justice.
"Yet this protective law, which gives every man security and confidence, in times of tranquillity, has been suspended, again and again, in periods of public danger or apprehension.
Rarely, however, has this been suffered without jealousy, hesitation, and remonstrance; and whenever the perils of the State have been held sufficient to warrant this sacrifice of personal liberty, no Minister or magistrate has been suffered to tamper with the law at his discretion.
Parliament alone, convinced of the exigency of each occasion, has suspended, for a time, the rights of individuals, in the interests of the State.
" Dicey in his Introduction to the Study of the Law of the Constitution(1) says that: "During periods of political excitement the power or duty of the courts to issue a writ of habeas corpus, and thereby compel the speedy trial or release of persons charged with crime, has been found an inconvenient or dangerous Limitation on the authority of the executive government.
Hence has arisen the occasion for situates which are popularly called Habeas Corpus Suspension Acts." E.C.S. Wade and Godfrey Phillips observe in their Constitutional Law(2) that in times of grave national emergency, normal constitutional principles must if necessary give way of the overriding need to deal with the emergency.
According to the learned authors: "It has always been recognised that times of grave national emergency demand the grant of special powers to the Executive.
At such times arbitrary arrest and imprisonment may be legalised by Act of Parliament.
Modern war demands the abandonment of personal liberty in that the duty of compulsory national service necessarily takes away for the time being the right of the individual to choose his occupation. ' The learned authors refer to the English practice of passing Habeas Corpus Suspension Acts in times of danger to the State.
These Acts prevented the use of habeas corpus and as soon as the period of suspension was over anyone who for the time being had been denied the assistance of the writ could bring an action for false imprisonment.
Suspension did not legalise illegal arrest, it merely suspended a particular remedy and therefore, a practice grew under which at the close of the period of suspension an Indemnity Act would be passed in order to protect officials from the consequences or any illegal acts which they might have committed under cover of the suspension of the prerogative writ.
Thomas M. Cooley says in the "General Principles of Constitutional Law"(3) in the U.S.A. that though the right to H (1) 10th Edition.
(2) 8th Ed., Chapter 48, 717, 718.
(3) 4th Ed., Chapter XXXIV.
360 361.
384 the writ of habeas corpus by which the liberty of the citizens is protected against arbitrary arrests is not expressly declared in the American Constitution, it is recognised in Article I, section 9, cl. 2 which says that: The privileges of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.
" It would appear that in America something similar lo the passing of Acts of Indemnity has been done by making provisions in State Constitutions.
Thus, though the liberty of the individual is a highly prized free dom and though the writ of habeas corpus is a powerful weapon by which a common man can secure his liberty, there are times in the history of a Nation when the liberty of the individual is required to be subordinated to the larger interests of the State.
In times of grave disorders, brought about by external aggression or internal disturbance, the stability of political institutions becomes a sine qua non of the guarantee of all other rights and interests.
"To assert an absolute exemption from imprisonment in all cases, is inconsistent with every idea of law and political society; and in the end would destroy all civil liberty, by rendering its protection impossible.(1) The "clear and present danger test" evoked by Justice Holmes in Schenck vs United Slates( ), may well be extended to cases like the present where there is a threat of external aggression.
On the heels of American entry into the first World War on June 15, 1917, the Congress adopted the Espionage Act creating three new offences which went beyond the prohibition of spying and sabotage.
It prescribed punishment of a fine of 10,000 dollars and 20 years imprisonment.
A year later, the Act was amended by what is popularly called the Sedition Act which is rendered it illegal even to say anything to obstruct the sale of United States bonds or to say anything contemptuous regarding the form of Government of the United States.
A unanimous court upheld Schenck 's conviction under the Act for propagating that compulsory service in the Armed Forces was "a monstrous wrong against humanity in the interest of Wall Street 's chosen few".
The judgment was delivered in 1919 when the war was already over and Holmes J. held that things that can be said in times of peace will not be endured during times of war and no court will regard them as protected by any constitutional right.
The emergency provisions were incorporated into our Constitution on the strength of experience gained in England and U.S.A. But the object of Article 359 is to confer wider power on the President than the power to merely suspend the right to file a petition for the writ if habeas corpus.
Article 359 aims at empowering the President to suspend the right to enforce all or any of the fundamental rights conferred by Part III.
It is in order to achieve that object that Article (1) Blackston 's Commentaries on the Laws of England, 4th Ed.
III pp.125 126.
(2) ; (1919).
385 359 does not provide that the President may declare that the remedy by way of ' habeas corpus shall be suspended during emergency.
Personal liberty is but one of the fundamental rights conferred by Part III and the writ of habeas corpus is peculiar to the enforcement of the right to personal liberty.
lt must follow that the suspension of the right to enforce the right conferred by Article 21 means and implies the suspension of the right to file a habeas corpus petition or to take any other proceeding to enforce the right to personal liberty conferred by Article 21.
But then it is urged on behalf of the respondents that by their writ petitions, respondents did not seek to enforce the right to personal liberty conferred by Article 21 or possessed by them apart from it.
They were really seeking a declaration that the order of detention was illegal for the reason that it did not comply with the requirements of the law under which it was passed.
In support of this argument reliance is placed upon a passage in H.W.R. Wade 's Administrative Law(1) to the effect that habeas corpus is a remedy not only for the enforcement of the right to personal liberty but is also a remedy for the enforcement of the principle of ultra vires.
This argument lacks substance and overlooks the realities of the situation.
lt ay be open to a detenu by filing a petition for the writ of habeas corpus to contend that order under which he is detailed is ultra vires of the statute to which the order owes its existence.
But one must have regard to the substance of the matter and not to mere from the real and substantial relief which the detention for by a writ of habeas corpus is that he should be freed from detention and the reason for the relief is that the order of detention is ultra vires.
It is clear, apart from the Form in which the relief may or may not be clothed, that the respondents through their writ petitions were moving the High Courts for enforcing their right to personal liberty.
The history of the writ of habeas corpus which is succinctly narrated in the late Mr. M. C. Setalvad 's 'The Common Law in India '(1) shows that the writ of habeas corpus which was in its inception a purely procedural writ gradually developed into a constitutional remedy furnishing a most powerful safeguard for individual freedom.
Mr. Setalvad quotes that the writ has been described as "the key that unlocks the door to freedom".
Respondents were surely not interested in obtaining an academic declaration regarding the ultra vires ' character of their detention.
They wanted the door to freedom to be opened by the key of the habeas corpus writ.
Equally untenable is the contention that article 226 which occurs in Chapter V, Part VI of the Constitution is an entrenched provision and, therefore, under Article 368 no amendment can be made to Article 226 without ratification by the Legislatures of not less than one half of the States.
It is true that Article 220 is an entrenched provision which cannot suffer an amendment except by following the procedure prescribed by the proviso to Article 368 (2).
But the Presidential order is issued under the Constitution itself and if its true construction produces a certain result, it cannot be said that some (1) 3rd Ed., pp. 127, 128 (2) Pages 37 41 (Ed 1960, Hamlyn Lectures) 27 833 SCI/76 386 other Article of the Constitution stands thereby amended.
Article 359(1) provides for the passing of an order by the President declaring that the right to move for the enforcing of fundamental rights mentioned in the order shall be suspended.
That may, in effect, affect the jurisdiction of the High Courts to entertain a petition for the issuance of the writ of habeas corpus.
But that does not bring about any amendment of Article 226 within the meaning of Article 368, which speaks of amendments to the Constitution by the Parliament in the exercise of its constitutional power.
Article 226 and Article 359(1) are parts of the same fundamental instrument and a certain interpretation of one of these Articles cannot amount to an amendment of the other.
It is also not correct to say that any particular interpretation of Article 359(1) will mean the abolition of the jurisdiction and power of the Supreme Court under Article 32 and of the High Courts under Article 226 of the Constitution.
The true implication of the Presidential order is to take away the right of any person to move any court for the enforcement of the rights mentioned in the order.
In strict legal theory the jurisdiction and powers of the Supreme Court and the High Courts remain the same as before since the Presidential order merely takes away the locus standi of a person to move these Courts for the enforcement of certain fundamental rights during the operation of the Proclamation of Emergency.
It is important to appreciate that the drive of Article 359(1) is not against the courts but is against individuals, the object of the Article being to deprive the individual concerned of his normal right to move The Supreme Court or the High Court for the enforcement of The fundamental rights conferred by Part III of the Constitution.
In Sree Mohan Chowdhury vs The Chief Commissioner, Union Territory of Tripura(1) a Constitution Bench of this Court, dealing with an order issued by the President on November 3, 1962 under Article 359(1), observed: ".
Unquestionably, the Court 's power to issue a writ in the nature of Habeas corpus has not been touched by the President 's order, but the petitioner 's right to move this Court for a writ of that kind has been suspended by the order of the President passed under article 359 (1) .
The President 's order does not suspend all the rights vested in citizen to move this Court but only his right to enforce the provisions of articles 21 and 22.
Thus, as a result of the President 's order aforesaid, the petitioner 's right to Move this Court, but not this Court 's power under article 32 has been suspended during the operation of Emergency, with the result that the petitioner by no locus standi to enforce his right, if any, during the Emergency, According to the respondents, the limited object of Article 359(1) is to remove restrictions on the power of the legislature so that during the operation of the emergency it would be free to make laws in violation of the fundamental rights specified ;11 the Presidential order.
This argument loses sight of the distinction between the provisions or (1) ; , 451 387 article 358 and article 359(1A) on the one hand and of article 359(1) on the other.
article 358, of its own force, removes the restrictions on the power of the Legislature to make laws inconsistent with article 19 and on the power of the executive to take action under a law which may thus violate article 19.
Article 358 does not suspend any right which was available under article 19 to any person prior to the Proclamation of Emergency.
Under article 359(1) the President is empowered to suspend the right of an individual to move any court for the enforcement of the rights conferred by Part III as may be mentioned in the order.
Consequent upon such order, all proceedings pending in any court for the enforcement of the rights so mentioned remain suspended during the period that the Proclamation is in force or such shorter period as the order may specify.
Article 359 (1) is thus wider in scope than article 358.
This distinction has an important bearing on the main point under consideration because it shows that it was not enough to provide that nothing in article 19 shall restrict the power of the State to make any law or to take any executive action which the State would, but for the provisions contained in Part III, be competent to make or take.
In order to effectuate the purposes of emergency, it was necessary further to provide that no person would have any right to move for the enforcement of his fundamental rights mentioned hl the Presidential order and that pending proceedings in that behalf shall remain suspended during the operation of the emergency.
It seems elementary that a fundamental right can be enforced as much in regard to a law which takes away that right contrary to the provisions of the Constitution as against the Executive, if it acts contrary to the provisions of a law or without the authority of ' law.
In view of he language of article 359(1) and considering the distinction between it and the provisions of article 358, there is no justification for restricting the operation of article 358 (1) as against laws made by the Legislature in violation of the fundamental rights.
Reliance was placed by the respondents on the decisions of this Court in Sree Mohan Chowdhury vs The Chief Commissioner, Union Territory of Tripura(1) and Makhan Singh vs State of Punjab(2) in support of their contention that article 359(1) operates in the legislative and not in the executive field.
These decisions do not support such a proposition.
On the contrary, it is clear from the to decisions that the effect of the Presidential order under article 359(1) is to take away the locus standi of a person to move any court for the enforcement or his fundamental rights which are mentioned in the order.
Neither of the two cases deals directly with the question G whether the operation of article 359(1) is restricted to the legislative field but, if at all, the ratio of those cases may be logically extended to cover executive acts also.
During times of emergency, it is the Executive which commits encroachments on personal liberties and the object of article 359(1) is to empower the President to suspend the right to move any court for the enforcement of a right to complain against the actions of the Executive, no less than against the (1) (2) [1964] 4 section C. R. 797.
388 laws passed by The Legislature, if either the one or the other contravenes any of the fundamental rights mentioned in the order.
This position was controverted by the respondents from several angles.
It was contended that in a Constitution which divides State functions into Executive.
Legislative and Judicial.
the executive functions must be discharged consistently with the laws passed by the Legislature and the orders and decrees passed by the judiciary.
The suspension of the right to enforce fundamental rights cannot confer any privilege on the Executive to flout the law by which it is bound as much in times of emergency as in times of peace.
Therefore, the argument proceeds, there being a valid law regulating preventive detention, namely the MISA, every order of detention passed by the Executive must conform to the conditions prescribed by that law.
The current of thought underlying this argument was highlighted by a learned counsel for the respondents by saying that it is strange that in the face of a law passed by the Parliament, which in passing the law must assume that it will be obeyed, the Executive can flout the law with impunity by relying on the Presidential order issued under Article 359(1).
Yet another point of view presented on this aspect of the case was that permitting the Executive to defy and disobey the law made by the Legislature is tentamount to destroying one of the important basic features of the Constitution that the Executive is bound by the laws made by the Legislature.
Finally, it was urged that the Preamble to the Constitution speaks of a Sovereign Democratic Republic and, therefore, the Executives which is subordinate to the Legislature cannot act to the prejudice of the citizen save to the extent permitted by laws validly made by the Legislature which is the chosen representative of the people.
In view of the true scope and object of Article 359(1), which has already been dealt with above, these arguments have to be rejected.
In the first place, it is difficult to appreciate the argument of 'basic features ' because we are not concerned to pronounce upon tile validity of an amendment made to the Constitution by a parliamentary measures.
We are concerned to understand the scope of Article 359(1) and what it implies.
That Article is as much a basic feature of the Constitution as any other and it would be inappropriate to hold that because in normal times the Constitution requires the Executive to obey the laws made by the Legislature, therefore, Article 359(1) which is an emergency measure, must be construed consistently with that position.
The argument of basic feature is wrong for yet another reason that Article 359(1) does not provide that the Executive is free to disobey the laws made by the Legislature.
Al the cost of repetition it must be said that what Article 359(1) achieves is merely the suspension of the right of an individual to move a court for the assertion of ' his fundamental rights which have been mentioned in the Presidential order, even if such rights are contravened either by the Legislature or by the Executive.
To permit a challenge in a court of law to an order of detention, which is an executive action, on the ground that the order violates a fundamental right mentioned in the Presidential order, is to permit the detenu to enforce a fundamental right during emergency in a manner 389 plainly contrary to Article 359(1).
The language of that Article, it is admitted on all hands, is clear and unambiguous.
The constitutional consequences of a Proclamation of Emergency are grave and far reaching.
Legislatures can, during emergency, make laws in violation of the seven freedom guaranteed by Article 19 the President has the power to suspend the right to move for the enforcement of all or any of the fundamental rights mentioned in the order issued under Article 359(1); the Executive power of the Union extends during emergencies to giving directions to any State or to the manner in which the executive power thereof is to be exercised.
This particular power conferred on the Union Executive is in total violation of the provisions of Article 162 of the Constitution and indeed of the federal structure which is one of the principal features of our Constitution; in any State Executive fails to comply with the directions given by the Union Executive under Article 353(a), the "President 's rule" can be imposed on that State under Article 356, in which event the Parliament is entitled under Article 357(1) to confer on the President the power of the Legislature of that State to make laws The Parliament can even authorize the President to delegate such legislative power to any other authority.
The democratic structure of the Constitution stands severely eroded in such a situation.
Finally, Parliament acquires during emergencies the power to make laws on matters which are numerated in the State List.
If consequences so fundamentally subversive of the basic federal structure of the Constitution can ensure during emergencies, it is not as revolting as may be appear at first sight that even if the Executive does not obey the mandate of the Legislature, the citizen is powerless to move any court for the protection of his fundamental rights, if these rights are mentioned in the Presidential order.
A facet of the same argument was presented on behalf of the respondents with even greater force.
It was urged that article 359(1) may remove fetters imposed by Part III but it cannot ever remove the fetters arising from the principle of rule of law or from the principle of the limited power of the Executive under a system of checks and balances based on separation of powers.
The obligation cast on the Executive to act in accordance with law does not, according to the respondents, arise from any particular article of the Constitution but it arises from the inherent compulsion of the rule of law which is a central basic feature of our constitutional system.
The suspension of the right to enforce Article 21 cannot automatically entail the suspension of the rule of law because even during an emergency the argument proceeds, the rule of law is not and cannot be suspended.
The Executive has a limited authority under the Indian Constitution and it can act within the residual area as it pleases, so long as it does not act to the prejudice of the citizen.
It is always incumbent on the Executive to justify its action on the basis of law and this, according to the respondents, is the principle of legality or the rule of law.
The respondents ' argument that all executive action which operates to the prejudice of a person must have the authority of law to support it is indisputably valid in normal situations.
In the absence of Proclamation of Emergency and in the absence of a Presidential order 390 Article 359(1) of the kind that we have in the instant case, the I executive is under an obligation to obey the law and if it acts to the prejudice of anyone by disobeying the law, its action is liable to be challenged by an appropriate writ.
That the rule of law must prevail in normal times is the rule of law under the Indian Constitution.
But it is necessary to clear a misconception.
Even though the compulsion to obey the law is a compulsion of normal times, Article 358 takes in those cases only in which the executive purports to act under the authority of a law.
It does not envisage that the executives can ' act without the apparent authority of law.
In other words, Article 358 enables the Legislature to make laws in violation of Article 19 and the Executive to act under those laws, despite the fact that the laws constitute an infringement of the fundamental rights conferred by Article 19.
The argument of the respondents that the Presidential order under Article 359(1) cannot ever suspend the rule of law requires a close examination, particularly in view of some of the decisions of this Court which apparently support that contention.
In State of Madhya Pradesh & Anr.
vs Thakur Bharat Singh(1) the State Government, on April 24, 1963 made an order under section 3 of the Madhya Pradesh Public Security Act, 1959 directing that the respondent shall not be in any place in Raipur District, that he shall immediately proceed to and reside in a named town and that he shall report daily to a police station in that town.
The order was challenged by the respondent by a writ petition under Articles 226 and 227 of the Constitution on the ground that section 3 infringed the fundamental rights guaranteed by Article 19(1)(d) and (e) of the Constitution.
The respondent succeeded in the High Court which declared a part of the order invalid on the ground that section 3 (1) (b) of the Act was violative of Article 19(1)(d) of the Constitution.
In appeal.
it was contended in this Court on behalf of the State Government that so long as the state of emergency declared on October 20, 1962 was in force, the respondent could not move the High Court by a petition under Article 226 on the plea that by the impugned order his fundamental right guaranteed under Article 19(1)(d) was infringed.
It was further contended on behalf of the State Government that even if section 3(1)(b) was held to be void.
Article 358 protected legislative as well as executive action taken after the Proclamation of Emergency and therefore the order passed by the Government after the emergency was declared could not be challenged as infringing Article 19.
Describing this latter argument as involving "a grave fallacy" a Constitution Bench of this Court dismissed the State 's anneal holding, that for acts done to the prejudice of the respondent after the declaration of emergency under Article 352.
no immunity from" the process of the Court could be claimed under Article 358 of the Constitution since the order was not supported by and, valid legislation.
Shah J who spoke on behalf of the Bench observed in his judgment that an executive action which operates to the prejudice of any person must have the authority of law to support it and that the (1) [1967] 2 S.C.R.454 391 terms of Article 358 do not detract from that rule.
Article 358, according to this Court, did not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others but it merely provides that so long as the Proclamation of Emergency subsists, laws may be enacted and executive action may be taken in pursuance of lawful authority, which if the provisions of Article 19 were operative would have been invalid.
It is important to bear in mind that Bharat Singh 's case was concerned with a pre emergency law, though the impugned order was passed thereunder during the operation of emergency.
The law having been passed in 1959, which was before the declaration of emergency, it had to comply with Article 19 and if it did not, it was void to the extent of the inconsistency.
Since the law was held to be violative of Article 19 it could not claim any protection under Article 358.
That article lifts restrictions on legislative power "while a proclamation of Emergency is in operation," that is to say, it enables laws to be made during the emergency, ever if they conflict with Article 19.
The executive is then free to act under those laws.
But, if the law is void for the reason that having been made prior to the emergency it violates Article 19, or if there is no law at all under the purported authority of which the executive has acted, the executive action is not protected by Article 358.
Bharat Singh 's case is distinguishable for the additional reason that it was only concerned with the effect of Article 358 and no question arose therein with regard to any executive action infringing a fundamental right mentioned in a Presidential order issued under Article 359(1).
I have already indicated the vital difference between Article 358 and Article 359(1).
The latter bars the enforcement of any fundamental right mentioned in the Presidential order, thereby rendering it incompetent for any person to complain of its violation whether the violation is by the Legislature or by the Executive.
In other words, Article 359(1) bars the remedy by depriving an grieved person of his locus to complain of the violation, of such of his fundamental rights as are mentioned in the Presidential Order.
Respondents also relied in support of the same submission on the decisions of this Court in District Collector of Hyderabad & ors.
vs M/s. 'Ibrahim & Co. etc.(1) Bennett Coleman & Co. and ors.
vs Union of India & ors.
,(2) and Shree Meenakshi Milk Ltd. vs Union of India.
(3) These decisions are founded on the same principle as Bharat Singh 's case and are distinguishable for the same reason.
In Ibrahim case.
the existing licences of recognised dealers in sugar were cancelled by the State Government and a monopoly licence was given to a Cooperative Stores thereby preventing the dealers by a mere executive order from carrying on their business.
A question arose in the appeal whether the order of the State Government canceling the licences of the dealers was protected under Articles 358 and (1) (2) ; , 773 775.
(3) , 405, 406 and 428 392 359 the Constitution as the President had declared a state of emergency on October 20, 1962.
This question was answered in the negative on the ground that the executive order which was immune from attack is only that order which the State was competent to make but for the provisions contained in Article 19.
Since the executive action of the State Government was invalid apart from Article 19, it was not immune from attack merely because a Proclamation of Emergency was in operation.
The important point of distinction is that in Ibrahim 's case, the impugned order was not made under the authority reserved by the Defence of India ordinance or the rules made thereunder but was issued merely in pursuance of the policy laid down by the Central Government in entrusting the distribution of sugar exclusively to co operative societies.
In Bennett Coleman Company 's case the impugned Newsprint Control Policy was an emanation of the old policy which was enunciated prior to the Proclamation of Emer ency.
Relying on Ibrahim 's case and Bharat Singh 's case, this Court held that Article 358 does not authorise the taking of detrimental executive action during the emergency without any legislative authority or in purported exercise of power conferred by a pre emergency law which was invalid when enacted.
The decision in Bennett Coleman Company 's case was followed in Meenakshi Mills ' case where the executive action taken during the emergency did not have the authority of any valid law and the impugned orders having been made under a pre emergency law were not immune from attack under Article 358.
Respondents relied on a passage in the judgment of Ramaswami who spoke on behalf of the Court in ' Chief Settlement Commissioner, Rehabilitation Department, Punjab & Ors etc.
vs Om Parkash & ors.
,(1) to the. effect that whatever legislative Power the executive administration possesses must be derived directly from the delegation of the legislature and exercised validly only within the limits prescribed.
The Court emphatically rejected the notion of inherent or autonomous law making power in the executive administration of the country and observed that the rule of law rejects the conception of the Dual State in which governmental action is placed in a privileged position of immunity from control by law on the ground that such a notion is foreign to our basic constitutional connects.
Respondents also relied upon the decision of the privy council in Eshuqbayi Eleko vs Officer Administering the Government of Nigeria (2) where Lord Atkin observed that in accordance with the British jurisprudence no member of the Executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of Justice.
Our attention was repeatedly drawn to a further observation made by Lord Atkin that it is a tradition of British justice that judges should not shrink from deciding such issues in the face of the executive.
These observations have been considered by this court in Makhan Shingh 's case where, speaking of behalf of the majority, Gajendragad (1) [1968]3 section C. R. 655.
(2) ; , 670.
393 kar J. said that the sentiments expressed by Lord Aktin were noble and eloquent but it was necessary to have regard to the provision of our Constitution by which were governed and which has itself made emergency provisions in order to enable the nation to meet the challenge of external aggression or internal disturbance.
The principle enunciated in Eleko 's case, however lofty and stirring, has no relevance here because we have to consider the meaning and effect of Article 359 (1) which has no parallel in the English law.
Eleko 's principle is unquestionably supreme in times of peace and so is the validity of the observations made by Ramaswami J. in Om Prakash 's case.
Both of those cases were concerned with a totally different problem, the problem of peace, not of war or internal disturbance.
The 'Rule of Law ' argument like the 'Basic Feature ' argument is intractable.
Emergency provisions contained in Part XVIII of the Constitution which Lure designed Lo protect the security of the State are as important as any other provision of the Constitution.
If the true constriction and effect of article 359(1) is as I have stated it to be, it is impossible to hold that such a construction violates the rule of law.
The rule of law, during an emergency, is as one finds it in the provisions contained in Chapter XVIII of the Constitution.
There cannot be a brooding and omnipotent rule of law drowning in its effervescence the emergency provisions of the Constitution.
The Advocate General of Gujarat had peculiar problems to voice.
arising out of the fluid and uncertain political situation in his State.
He was unable to appreciate how the Executive Government of the State could defy a parliamentary mandate contained in the MISA, either as regards the procedural or the substantive part of that law.
Whatever may be the requirements of emergency he seemed to contend, the Gujarat Government could not, save at grave peril to its existence, defy the provisions of a law made by the Parliament.
The anguish and embarrassment of the learned Advocate General is understandable, but the short, answer to his contention is that, on the record.
the Government of Gujarat has not been asked to flout the MISA and indeed no one can dispute the right of the State Government to ensure compliance with the laws of the land.
Indeed that is its plain and foremost duty.
The important consideration is that in the event of State Government coming to pass an order of detention in violation of MlSA the detenu will have no right to enforce his Corresponding fundamental right if it is mentioned in the Presidential order.
The learned Advocate General built his argument as if.
during emergencies, the executive is under an obligation to flout the law or the h ind.
Article 359(1) neither compets nor condones the breaches by the executive of the laws made by the legislature.
Such condonation is the function of an Act of Indemnity.
I must now take up for consideration a very important plank of the respondents ' argument that Article 21 is not the sole repository of the right to life and personal liberty This argument has been presented before us from aspects too numerous to mention and scores of instances have been cited to buttress it.
This was to some extent inevitable because quite a few counsel argued the same point and each 394 had his peculiar, favourite accent.
I will try to compress the arguments without, I hope, sacrificing their thematic value The respondents ' arguments may be put thus: (1) Article 21 is not the sole repository of the right to personal liberty because that right can be found in Articles 19(1) (b), 20 and 22 also.
In view of the decision in the Bank Nationalisation(1) case, which overruled Gopalan 's case, these rights are not mutually exclusive and therefore the suspension of the right to enforce Article 21 cannot affect the right conferred by Articles 19, 20 and 22.
(2) Article 21 is not the sole repository of the right to personal liberty because, (i) an accused convicted of murder and sentenced to death can assert his right to life by challenging the conviction and sentence in appeal, in spite of the Presidential order under Article 359(1); (ii) if a person is wrongfully confined.
he can ask for his personal liberty by prosecuting the offender in spite of the Presidential order; and (iii) if a money decree is passed against the Government, the decree can lie enforced even if the right to enforce the right to property is suspended by the 'Presidential order.
(3) Prior to the enactment of the Constitution statutory, contractual and common law rights were in existence and those rights can be taken away only by the Legislature.
They cannot be affected by the Presidential order.
The pre Constitution common law and statutory rights to personal liberty continued in force by reason of Article 372 of the Constitution, since those rights were not repugnant to any provision of the Constitution.
If the fundamental right to personal liberty is suspended by the Presidential order, the pre Constitution laws will begin to operate by reason of the their of eclipse.
There is no authority for the proposition that on the conferment of fundamental rights by the Constitution, the corresponding pre existing rights Merged in the fundamental rights and that with the suspension of fundamental rights, the corresponding pre existing rights also got suspended.
Article 21 is different in content from the common law right to personal liberty which was available against private individuals also.
Since Article 21 merely elevates the right of personal liberty to the status of a fundamental right, the pre Constitution rights cannot be suspended by the Presidential order.
The object of Article 21 is to give and not to take.
In fact, the very language of that Article shows that instead of conferring the right to personal liberty, it assumed its existence in the first place and then proceeded by a negative provision to prohibit its deprivation.
Examples of such pre Constitution rights are: (1) rights available under the Indian Penal Code and the Criminal Procedure Code; (ii) rights available under the law of torts.
especially the rights to sue for damages for false imprisonment.
and (iii) the remedy of habeas corpus available under section 491, Criminal Procedure Code, since the year 1923.
(1) ; , 578.
(2) ; , 395 (4) Non fundamental constitutional rights like those arising under Articles 256, 265 and 361(3) or natural rights or contractual rights or the statutory rights to personal liberty are not affected by the Presidential order.
Statutory rights can only be taken away in terms of the statute and not by an executive flat.
By reason of Article 256.
the executive power of every state must ensure compliance with the laws made by the Parliament.
The executive power of the States must therefore comply with section 56 and 57 of the Criminal Procedure Code and a person aggrieved by the violation of those provisions can enforce his statutory right to personal liberty in spite of the Presidential order.
By Article 265 no tax can be levied or collected except by authority of law.
A person affected by the violation of this provision can enforce his right to property even if Article 19 is suspended.
If a process happens to be issued against the Governor of a State in contravention of Article 361(3), the Governor can exercise his right to personal liberty despite the Presidential order under Article 359(1) .
Similarly, in cases not covered by section 16A of the MISA, if the Advisory Board opines that the detention is unjustified, the detenu can compel the Government to accept that opinion, in spite of the Presidential order.
(5) Even after the passing of a Presidential order, Parliament may create new rights to personal liberty and such rights can be enforced in spite of the Presidential order.
(6) Civil liberty or personal liberty is not a conglomeration of position rights.
It operates in an area of free action and no law can possibly curtail it.
(7) If a law affecting the fundamental right to personal liberty is void for want of legislative competence.
, it can be challenged in spite of the Presidential order (8) The suspension of the right to enforce personal liberty cannot confer a licence on executive officers to commit offences against the law of the land, and if they do so, they can be brought to book in spite of the Presidential order.
I look at the question posed by the respondents from a different angle.
The emergency provisions of the Constitution are designed to protect the Security of the State and in order to achieve that purpose, various powers have been conferred on the Parliament and the President by Chapter XVIII of the Constitution.
One of such powers is to be found in Article 359(1) under which the President, during the operation of the emergency, can issue an order suspending the right to move any court for the enforcement of all or any of the fundamental rights conferred by Part III.
Proceedings commenced prior to the issuance of such an order, including proceeding s taken prior to the declaration of the emergency itself, automatically remain suspended during the emergency or for such shorter period as the President may in his order specify.
The object of empowering the President to issue an order under Article 359(1) suspending the enforcement of the right to personal liberty conferred by Part III of the 396 Constitution cannot be to save all other rights to personal liberty except the one conferred by Part III, which to the seems totally devoid of meaning and purpose.
There is nothing peculiar in the content of the right to personal liberty conferred by Part III so that the Constitution should provide only for the suspension of the right to enforce that particular kind of right, leaving all other rights to personal liberty intact and untouched.
In times of emergencies the executive, unquestionably though unfortunately, is constrained to take various forms of action in derogation of the rights of citizens and others, including the cherished right to personal liberty.
The Constitution aims at protecting the executive, during the operation of emergency, from attacks on the action taken by it in violation of the rights of individuals.
Accordingly, in so far as the right to personal liberty, for example, is concerned one of the objects of the emergency pro visions is to ensure that no proceeding will be taken or continued to enforce that right against the executive during the operation of the emergency.
The executive is then left free to devote its undiluted attention to meeting the threat to the security of the State.
This purpose cannot ever be achieved by interpreting Article 359(1) to mean that every right to personal liberty shall be enforceable and every proceeding involving the enforcement of such right shall continue during the emergency, except to the extent to which the right is conferred by Part III of the Constitution, The existence of the right to personal liberty in the pre Constitution period was surely known to the makers of the Constitution.
The assumption underlying the respondent 's argument is that in spite of that knowledge, the Constituent Assembly decided that all those rights will reign supreme in their pristine glory even during the emergency and what will remain in abeyance is only the enforcement of the right to personal liberty conferred by Part III.
The right to personal liberty has no hallmark and therefore when the right is put in action it is impossible to identify whether the right is one given by the Constitution or is one which existed in the pre Constitution era.
If the arguments of the respondents is correct no action to enforce the right to personal liberty can at all fall within the mischief of the presidential order even if it mentions Articles19, 20, 21 and 22 because, every preliminary objection by the Government to a petition to enforce the right to personal liberty can be effectively answered by contending that what is ' being enforced is either the natural right to personal liberty or generally, the pre Constitution right to personal liberty.
The error of the respondents ' argument lies in its assumption, and in regard to the argument of some of the counsel in the major articulate premise, that the qualitative content of the non constitutional or pre constitutional right to personal liberty is different from the content of the right to personal liberty conferred by Part III of the Constitution.
The right to personal liberty is the right or the individual to personal freedom.
nothing more and nothing less.
That right along with certain other rights was elevated to the status of a fundamental right in order that it may not be tinkered with and in order that a mere majority should not be able to trample over it.
Article 359 (1) enables the President to suspend the enforcement even of those rights which were sanctified by being lifted out of the common morass of human rights.
If the enforcement of the fundamental 397 rights can be suspended during an emergency, it is hard to accepts That the right to enforce non fundamental rights relating to the same subject matter should remain alive.
Article 359(1) contains three important clauses: (1) The Proclamation of Emergency must be in operation at the time when the President issues his order; (2) The President must issue an order declaring the suspension of the right to move any court; and (3) The power of the President to declare such suspension can extend to such rights only as are conferred by Part III.
If these three conditions are satisfied, no person can move any court for the enforcement of such of the rights conferred by Part III as are mentioned in the Presidential order.
The first and foremost question to ask when a proceeding is filed to enforce a right as against the Government while a Proclamation of Emergency is in operation is, whether the right is mentioned in the Presidential order and whether it is the Kind of right conferred by Part III.
Article 21, for example, confers the right to life and personal liberty.
The power of the President therefore extends under Article 359(1) to the suspension of the right to move any court for the enforcement of the right to life and personal liberty.
The President cannot suspend the enforcement of any right unless that right is included in Part III which confers fundamental rights.
The President, in my opinion, would be acting within the strict bounds of his constitutional power if, instead of declaring the suspension of the right to enforce the right conferred by Article 21 he were to declare that "the right not to be deprived of life and personal liberty except according to procedure established by law" shall remain suspend during the emergency.
Article 359 (1) does not really contemplate that while declaring the suspension of the right to move any court, the President must or should specify the Article or the Articles of the Constitution the enforcement of rights conferred by which shall be suspended.
What Article 359 (1) contemplates is that the President can declare the suspension of the right to move any court for the enforcement cf the rights mentioned in Part III.
The words "conferred by Part III" which occur in Article 359(1) are not intended to exclude or except from the preview of the Presidential order, rights of the same variety or kind as are mentioned in Part III but which were in existence prior to the Constitution or can be said to be in existence in the post Constitution era, apart from the Constitution.
The emphasis of the Article is not the right to suspend the enforcement of the kind of rights mentioned in Part III and not on the fact that those rights are conferred by Part III.
To put it differently.
the words ' 'conferred by Part III" are used only in order to identity the particular rights the enforcement of which can be suspended by the President and not in order to impose a limitation on the power of ' the President so as to put those rights which exist or which existed apart from the Constitution, beyond the reach of ' the Presidential order.
The respondents by their petitions are enforcing their right to personal liberty and that right is a right conferred by or mentioned in Part III or the Consti 398 tution.
As I have said above, if instead of saying that the right to enforce the right conferred by Article 21 shall be suspended the President were to say that the right not to be deprived of life or personal liberty except according to procedure established by law will remain suspended, no argument of the kind made before us could reasonably have been made.
The true effect of the Presidential order, though worded in the way it is, is the same as it would have been, had it been worded in the manner I have indicated.
It therefore does not make any difference whether any right to personal liberty was in existence prior to the enactment of the Constitution, either by way of a natural right, statutory right, common law right or a right available under the law of torts.
Whatever may be the source of the right and whatever may be its justification, the right in essence and substance is the right to personal liberty.
That rights having been included in Part III, its enforcement will stand suspended if it is mentioned in the Presidential order issued under Article 359(1).
The view which I have taken above as regards the scope and meaning of Article 359(1) affords in my opinion a complete answer to the contention of the respondents that since Article 21 is not the 1) sole repository of the right to personal liberty, the suspension of the right to enforce the right conferred by that Article cannot affect the right to enforce the right of personal liberty which existed apart from that Article.
I have held that on a true interpretation of the terms of the Presidential order read with Article 359(1), what is suspended is the right to move for the enforcement of the right to personal liberty whether that right is conferred by Constitution or exists apart from and independently of it.
Otherwise, the Constitution has only done much ado about nothing.
All the same I would like, briefly, to deal with the argument of the respondents on its own merit, particularly the illustrations cited in support of that argument.
It is true that in view of the decision in the Bank Nationalisation case,(1) the right conferred by Articles 21 and 19 cannot be treated as mutually exclusive.
But the suspension of the right to enforce the right of personal liberty means the suspension of that right wherever it is found unless its content is totally different as from one Article to another .
The "right conferred by Article 21" is only a description of the right of personal liberty in order to facilitate its exact identification and such a description cannot limit the operation of the Presidential order to those cases only where the right to personal liberty is claimed under Article 21.
The circumstance that the pre Constitution rights continued in force after the enactment of the Constitution in view of Article 372 does not make any difference to this position because, even assuming that certain rights to personal liberty existed before the Constitution and continued thereafter as they were not repugnant to any provision (1) ; , 578 399 of the Constitution, all rights to personal liberty having the same content as the right conferred by Article 21 would fall within the mischief of the Presidential order.
The theory of 'eclipse ' has no application to such cases because; that theory applies only when a pre Constitution law becomes devoid of legal force on the enactment of the Constitution by reason of its repugnancy to any provision of the Constitution.
Such laws are not void but they are under an eclipse so long as the repugnancy lasts.
When the repugnancy is removed, the eclipse also is removed and he law becomes valid.
As regards the doctrine of 'merger ' it is unnecessary to go to the length of saying that every prior right to personal liberty merged in the right to personal liberty conferred by Part III.
Whether it merged or not, it cannot survive the declaration of suspension if the true effect of the Presidential order is the suspension of the right to enforce all and every right to personal liberty.
In that view, it would also make no difference whether the right to personal liberty arises from a statute or from a contract or from a constitutional provision contained in some Part other than Part III.
As regards the illustrations, it is neither proper nor possible to take each one of them separately and answer them.
Hypothetical illustrations cannot establish a point and practical difficulties have to be solved as and when they arise.
But some of the more important illustrations taken by the respondents ' counsel seem to me to have a simple answer.
For example, when an accused challenges his conviction for murder and the sentence of death imposed on him for that offence, his remedy by way of an appeal is not barred by the Presidential order because he is only trying to get rid of a judgment which holds him guilty of murder.
It is not he who moved the court for his personal liberty but it is the prosecution which dragged him to the court to prove the charge of murder against him.
The accused only defends the charge of criminality whether it is in the trial court or in a higher court.
Similarly, if a person is wrongfully confined, the prosecution of the offender is not intended or calculated to secure the personal liberty of the victim he court may in proper cases pass an order releasing the complainant from wrongful confinement but the true object of the prosecution is to punish the person who has committed an offence against the penal law of the land.
As regards decretal rights against the Government, what the decree holder enforces in execution is not his right to property.
The original cause of action Merges in the decree and therefor what is put into execution is the rights arising under the decree.
The illustration regarding The issuance of a process against the Governor of a State need not be pursued seriously because such an event is hardly ever likely to happen and id it does, the gubernatorial rights may possibly withstand the Presidential order under Article 359(1) .
As regards the flouting of the opinion of the Advisory Board by the Government, a writ of mandamus compelling the Government to obey the mandate of the law may perhaps stand on a different hooting as the very nature of such a proceeding is basically different.
Lastly, it is unrealistic to believe that after the passing of the Presidential order suspending the 400 existing constitutional rights, Parliament would create new rights to personal liberty so as to nullify the effect of the Presidential order.
The easier way for the Parliament would be to disapprove of the Proclamation of emergency when it is placed before it under Article 352(2) (b) of the Constitution or to disapprove of the Presidential order issued under Article 359(1) when it is placed before it under Article 359(3) of the Constitution.
But as I have said earlier, it is difficult to furnish a clear and cogent answer to hypothetical illustrations.
In the absence of necessary facts one can only make an ad hoc answer, as I have attempted to do regarding the possible issuance of a process against the Governor of a State.
Actually, Article 361(3) speaks of a "Process" for the arrest or imprisonment of a Governor issuing from any court.
Fundamental rights can be exercised as against judicial orders but the circumstances in which such a process may come to be issued, if at all, may conceivably affect the decision of the question whether a presidential order issued under Article 359(1) can bar the remedy of an aggrieved Governor.
In so far as the illustrative cases go, I would like to add that Article 256 which was chosen by the respondents as the basis of an illustration cases not seem to confer any right on any individual.
That Article appears in Part XI which deals with relations between the Union and the States.
A failure to comply with Article 256 may attract serious consequences but no court is likely to entertain a grievances at the instance of the private party that Article 256 has not been complied with by a State Government.
As regards the claim to personal liberty founded on a challenge to an order on the ground of excessive delegation, I prefer to express no firm opinion though the greater probability is that such a challenge may fail in face of a Presidential order of the kind which has been passed in the instant case.
I have held above that the existence of common law rights prior to the Constitution will not curtail the operation of the Presidential order by excepting those rights from the purview of the order.
I may add that the decision of this Court in Dhirubha Devisingh Gohil vs The State of Bombay(1) is an authority for the proposition that if any pre Constitution right has been elevated as a fundamental right by its incorporation in Part III, the pre existing right and the fundamental right are to be considered as having been grouped together as fundamental rights "conferred" by the Constitution.
The decision in Makhan Singh vs State of Punjab) also shows that once right to obtain a direction in the nature of habeas corpus became in 1923 a statutory right to a remedy after the enactment of section 491 of the Code of Criminal Procedure, it was not open to any party to ask for a writ of habeas corpus as a matter of common law.
It was contended for the respondents that the High Court have jurisdiction under Article 226 to issue writs and directions not only for the enforcement of fundamental rights but "for any other purpose" and since by their petitions they had really asserted their non (1) ; (2) [1964] 4 section C. R. 797, 818 819.
401 fundamental rights the High Courts had the jurisdiction to issue appropriate writs or directions upholding those rights in spite of the Presidential order.
This argument cannot be accepted because the entire claim of the resonants is that the order of detention are in violation of the MISA, which in substance means that the respondents have been deprived of their personal liberty in violation of Article 21 of the Constitution.
By that Article, no person can be deprived of his life or personal liberty except according to procedure established by law.
The grievance of the respondents is that they have been deprived of their personal liberty in violation of the procedure established or prescribed by the MISA.
In substance therefor they are complaining of the violation of a fundamental right, which it is not open to them to do in view of the Presidential order by which the right to move any court for the enforcement of the right conferred by Article 21 has been suspended.
This judgment, long as it is, will be incomplete without least a brief discussion of some of the important decisions of this Court which were referred to during the course of arguments time and again.
Before doing so, a prefatory observation seems called for.
The Earl of Halsbury L. C. said in Quinn vs Leathem( ') that the generality of the expressions which may be found in a judgment are not intended to be expositions of the whole law but are governed and qualified by the particular facts of the case in which such expression are to be found.
This Court in the State of orissa vs Sudhansu Sekhar Misra & Ors.(2) uttered the caution that it is not a profitable task to extract a sentence here and there from a judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein.
Counsel have not done any such shearing but I thought I might beging the study of cases with I se1f admonition.
A decision of this Court on which the greatest reliance was placed by the respondents is Makhan Singh vs State of Punjab (3) The appellants therein were detained under Rule 30(l ) (b) of the Defence of India Rules made by the Central Government under section 3 of the Defence of India Ordinance, 1962.
They applied for their release to the Punjab and Bombay High Court under section 491(1)(b) of the Code of Criminal Procedure? their contention being that certain section of the Defence of India Act and Rule 30(l) (b) of the Defence of India Rules were unconstitutional since they contravened their fundamental rights under Articles 14, 21 and 22(4) (5) and (7) of the Constitution.
The High Court held that in view of the Presidential order which was issued on November 3, 1962 under article 359(1) of the Constitution, the petitions of habeas corpusfiled by the appellants were barred.
Being aggrieved by the orders dismissing their petitions, the detenus filed appeals in this Court which were heard by a Constitution Bench consisting of 7 Judges.
The judgment of the majority was delivered by Ganjendragadkar J. Sulbba Rao J. gave a dissenting judgment.
(1) ; , 506.
(2) ; , 163.
(3) [1964l 4 section C. R. 797.
28 833 Supr Cl/76 402 Both the majority and the minority judgments agree that the Presidential order would take away the right to move the Supreme Court under article 32 and the High Court under article 226 for the enforcement of the rights mentioned in the order.
But while the majority took the view that the petition under section 491 of the Criminal Procedure Code was also barred, Subha Rao J. held that the petitioners ' right to ask for relief by filing an application under section 491 was not affected by the Presidential order.
This difference in the view of the majority and the minority is now of no consequence as section 491 has ceased to be on the Statute Book after April 1, 1974 when the new Code of Criminal Procedure came into force.
The conclusion of the Court in Makhan Singh 's case may be summed up thus: 1.
article 359 is reasonably capable of only one construction as its language is clear and unambiguous.
The suspension of article 19 contemplated by article 358 removes during the pendency of the emergency the fetters created on the legislative and executive powers by article 19 and if the legislatures make laws or the executive commits acts which are inconsistent with the rights guaranteed by article 19, their validity is not open to challenge either during the continuance of the emergency or even thereafter.
As soon as the Proclamation ceases to operate, the legislative enactments passed and the executive actions taken during the course of the said emergency shall be inoperative to the extent to which they conflict with the rights guaranteed under article 19 because as soon as the emergency is lifted, article 19 which was suspended during emergency is automatically revived and begins to operate.
4. article 359, on the other hand, does not purport expressly to suspend any of the fundamental rights.
What the Presidential order purports to do by virtue of the power conferred of the President by article 359 ( 1 ) is to bar the remedy of the citizens to move any court for the enforcement of the specified rights.
The Presidential order cannot widen the authority of the legislatures or the executive; it merely suspends the rights to move any court to claim a relief on the ground that the rights conferred by Part III have been contravened if the said right are specified in the order.
If at the expiration of the Presidential order, Parliament passes any legislation to protect executive action taken during the pendency of the Presidential order and afford indemnity to the executive in that behalf, the validity and the effect of such legislative action may have to be carefully scrutinised.
403 6.
The words "the right to move any court" which occur article 359(1) refer to the right to move any court of .
competent jurisdiction including both the Supreme Court and the High Court.
In determining the question as to whether a particular proceeding falls within the mischief of the Presidential order or not, what has to be examined is not so much the form which the proceeding has taken, or the words in which the relief is claimed, as the substance of the matter and whether before granting the relief claimed by the citizen it would be necessary for the Court to enquire into the question whether any of his specified fundamental rights have been contravened.
If any relief cannot be granted to the citizen without determining The question of the alleged infringement of the said specified fundamental rights that is a proceeding which falls under article 359(1) and would, therefore, be hit by the Presidential order issued under the said Article.
The right to ask for a writ in the nature of habeas cor pus which could once have been treated as matter of Common Law has become a statutory right after 1923, and after section 491 was introduced in the Cr. P. C., it was not open to any citizen in India to claim the writ of habeas corpus on grounds recognised by Common Law apart from the provision of section 491(1)(b) itself.
Whether or not the proceedings taken under section 491 (1) (b) fall within the purview of the Presidential order, must depend upon the construction of article 359 ( 1 ) and the order, and in dealing with this point, one must look at the substance of the matter and not its form.
It is true that there are two remedies open to a party whose right of personal freedom has been infringed; he may move the Court for a writ under article 226(1) of article 32(1) of the Constitution, or he may take a proceeding under section 491(1)(b) of the Code.
But despite the fact that either of the two remedies can be adopted by a citizen who has been detained improperly or illegally, the right which he claims is the same if the remedy sought for is based on the ground that there has been a breach of his fundamental rights; and that is a right guaranteed to the citizen by the Constitution, and so, whatever is the form of the remedy adopted by the detenu, the right which he is seeking to enforce is the same.
Therefore the prohibition contained in article 359(1) and the Presidential order will apply as much to proceedings under section 491(])(b) is to those under article, 226(1) & article 32(1).
If the detenu is prohibited from asking for and order of release on account of the Presidential order, it would not 404 be open to him to claim a mere declaration either under A section 491 or under Articles 32 or 226 that the detention unconstitutional or void.
The right specified in article 359(1) includes the relevant right, whether it is statutory, constitutional or constitutionally guaranteed.
After recording these conclusions the majority judgment proceeded to consider the question as to which are the pleas which are open to a person to take in challenging the legality or the propriety of his detention, either under section 491 ( I ) (b) or under article 226(1 ) .
The conclusions of the Court on this question are as follows: (a) "If in challenging the validity of his detention order, the detenu is pleading any right outside the rights specified in the order, his right to move any court in that behalf is not suspended, because it is outside article 359(1) and consequently outside the Presidential order itself." (Emphasis supplied) Accordingly if a detenu is detained in violation of the mandatory provisions of the Act it would be open to him to contend that his detention is illegal.
"Such a plea is outside article 359(1) and the right of the detenu to move for his release on such a ground cannot be affected by the Presidential order. '` (b) The exercise of a power malafide is wholly outside the scope of the Act conferring the power and` can always be successfully challenged.
(c) It is only in regard to that class of cases falling under section 491(1)(b) where the legality of the detention is challenged on grounds which fall under article 359(1) and the Presidential order that bar would operate.
In all other cases falling under section 491(1) the bar would be inapplicable and proceedings taken on behalf of the detenu will have to be tried in accordance with law.
(d) If a detenu contends that the operative provision of the law under which he is detained suffers from the vice of excessive delegation and is, therefore.
ill valid, the plea thus raised by the detenu cannot at the threshold be said to be barred by the Presidential order.
In terms, it is not plea which is relatable to the fundamental rights specified in the said order.
lt is a piea which is independent of the said rights and its validity must be examined.
(The Court, however, rejected the contention that the impugned provisions of the Act suffered from the vice of excessive delegation.) 405 No judgment can be read as if it is a statute.
Though the judgment of the majority contain the conclusions set out in (a) to (d) above, I see no doubt that these conclusions owe their justification to the peculiar wording of the Presidential order which was issued in that case.
The order dated November 3, 1962, which was the subject matter of Makhan Singh 's case, has been set out at the beginning of this judgment.
That order suspends the right of a person to enforce the rights conferred by Articles 14, 21 and 22 "if.
such person has been deprived of any such rights under the Defence of India Ordinance, 1962 (4 of 1962) or any rule or order made thereunder".
The Presidential order dated June 27, 1975 with which we are concerned in the instant case docs not contain ally clause similar to the one extracted above from the order dated November 3, 1962.
The inclusion of that clause ill the earlier order has a significant impact on the question under consideration because, under the earlier Presidential order the right to Move the court was taken away only i f a person was deprived of his rights under the Defence of India ordinance or under any rule or order made under the ordinance.
A petition for habeas corpus file(l during the operation of the Presidential order dated November 3, 1962 was not barred at the threshold because the detenu was entitled to satisfy the court that though his detention purported to be under the Defence of India Ordinance or the Rules it was in fact not so.
The detenu could establish this by satisfying the court that the detaining authority had no power to detain him, which could be shown by pointing out that the pre conditions of the power to detain were not fulfilled.
It was also open to the petitioner to establish that the order was vitiated by mala fides because a mala fide order has no existence in the eye of law and mala fides would take the order out or the statute.
The same state of affairs continued under the two subsequent Presidential orders dated November 16, 1 974 and December 23 , l974.
All the three orders were conditional and were dependent for their application on the fulfillment of the condition that the person concerned was deprived of his rights under the Defence of India ordinance or any rule or order made under it.
The Presidential order of June 27, 1975 makes a conscious and deliberate departure from the three earlier orders, the object obviously being to deprive the detenu of the argument that he has been detained under an order only purports to have been passed under a particular Act but is ill fact n derogation thereof, the terms of the Act having not been complied with.
The order of June 27, 1975 is not subject to ally condition precedent for its application and, therefore, there is no question of the detenu satisfying the court that any pre condition of the power of detention has not fulfilled.
Some of the observations in Makhan Singh case may appear to support the argument that certain pleas which are refferred to therein are outside the scope of Article 359(1) itself.
Which great respect, those observations really mean that the pleas are outside the Presidential order.
Article 359(1) is only an enabling provision and the validity of a plea cannot be tested which reference to that Article.
The right to move a court for the enforcement of the rights conferred by Part III is not taken away by Article 359 (1) 406 It is the Presidenial order passed in pursuance of the powers conferred by, that Article by which such a consequence can be brought about.
It would be useful in this connection to refer Lo the decision of this Court in Dr. Ram Manohar Lohia vs State of Bihar & ors.
( ') The appellant therein was also detained under rule 30(l)(b) of the Defence of India Rules, 1962, and he moved this Court under Article 32 of the Constitution for his release.
the petition was argued on the basis that it was filed for the enforcement of the right to personal liberty under Articles 21 and 22 of the Constitution.
A preliminary objection was raised on behalf of the Government that the petition was barred by reason of the Presidential order dated November 3, 1962, the same as in Makhan Singh 's case (supra) Sarkar J., who shared the majority view repelled the preliminary objection by saying that the petition could have been dismissed at the threshold if the order of November 3, 1962 were to take away all rights to personal liberty under Articles 21 and 22.
According to the learned Judge, the particular Presidential order did not do so in that, it was a conditional order which deprived a person of his right to move a court for the enforcement of a right to personal liberty only if he was deprived of it by the Defence of India Act or any rule or order made under it.
"If he has not been so deprived, the order does not take away his right to move a court.
" This shows that if the first Presidential order was unconditional like the order in the instant case, Dr. Lohia 's petition would have been rejected by this Court at the threshold.
The judgment of Hidayatullah J., who on behalf of himself and Bachawat J. concurred with the view of Sarkar J., also shows that the conditional Presidential order left an area of inquiry open as to whether the action was taken by a competent authority and was in accordnce with the Defence of India Act and the rules made thereunder.
Yet another case arose under rule 30(l)(b) of the Defence of India Rules, 1962 involving the interpretation of the first Presidential order dated November 3, 1962.
That case is K. Anandan Nambiar & Anr vs Chief Secretary, Government of Madras & ors.(2) Gajendrgadkar C. J., who delivered the judgment of the Constitution Bench referred to Makhan Singh 's case and pointed out that the sweep of the.
Presidential order dated November 3, 1962 was limited by its last clause and, therefore, it was open to the detenu to contend that the order of detention was contrary to the conditions prescribed in that behalf by the Defence of India Act or the rules made thereunder In State of Maharashtra vs Prabhakar Pandurang Sangzgiri & Anr.(3) the respondent, who was detained under an order passe under section 30(l) (b) of the Defence of India Rules, 1962, sought permission from the State Government for publishing a book which he had written while ill jail.
On the Government refusing the per (1) ; (2) [1966] 2 .S.C.R.406.
(3) [1966] 1 S.C.R.702 407 mission, he filed a petition under Article 226 of the Constitution for an appropriate direction and after that petition was allowed by the A High Court, the Government of Maharashtra filed an appeal in this Court.
Subba Rao J., who delivered the judgment of the Bench, observed while dismissing the appeal that the President 's order dated November 3, 1962 was a conditional order and, therefore, if a person was deprived of his personal liberty not under the Act or a rule or order made thereunder but in contravention thereof, his right to move the court in that regard would not be suspended.
These judgments bring out clearly the ratio of Makhan Singh 's case which arose out of the first Presidential order dated November 3, 1962.
The Presidential order with which we are concerned in The instant case is not subject to the pre condition that the detenu should have been deprived of his rights under any particular Act and, therefore, there is no scope for the inquiry whether the order is consistent or in conformity with any particular Act.
This important distinction has not been fully appreciated in some of the judgments under appeal.
The observations contained in the majority judgment in Makhan Singh 's case that the exercise of a power mala fide is wholly outside the scope of the Act conferring the power and can always be successfully challenged at once raises the question whether in spite of the Presidential order dated June 27, 1975 it is open to the respondents to show that the order of detention in any particular case is vitiated by mala fides.
The proposition that a mala fide order has no existence in the eye of law is not peculiar to Makhan Singh 's case but has been accepted in various decisions of this Court, two of them being Jaichand Lall Sethia vs State of West Bengal or.(2), and Durgadas Shirali vs Union of India & ors.(2) A mala fide exercise of power does not necessarily imply 'any moral turpitude and may only mean that the statutory power is exercised for purposes other than those for which the power was intended by law to be exercised.
In view of the fact that an unconditional Presidential order of the present kind affects the locus standi of the potitioner to move any court for the enforcement of any of his fundamental rights mentioned in the order, it would not be open to him to show that the statutory power has been exercised for a purpose other than the one duly appointed under the .
So long as the statutory prescription can be seen on the face of the order to have been complied with, no further inquiry is permissible as to whether the order is vitiated by legal mala fides.
As regards mala fides in the sence of malice in fact, the same position must hold good because the Presidential order operates as a blanket ban on any and every judicial inquisition into the validity of the detention order.
Makhan Singh 's case as also Jaichand Lall Sethia 's and Durgadas Shirali 's arose under the Defence of India Rules, 1962 and the relevant Presidential order which applied was the one dated November 3, 1962 which, as stated above, was a condi H (1)[1966] Supp.
S.C.R.464.
(2)[l966] 2 S.C.R.573.
408 tional order.
If in any given case an order of detention appears on the very face of it to be actuated by an ulterior motive, the court would have jurisdiction to set it aside because no judicial inquiry of any sort is required to be undertaken in such a case.
But short of such ex facie vitiation, any challenge to a detention order or.
the ground of actual mala fides is also excluded under the Presidential order dated June 27, 1975.
Section 16A(9) of the MISA which was introduced by the Third Amendment Ordinance, 16 of 1975, with effect from June 29, 1975 must make a significant difference to the question whether in spite of the Presidential order, it is open to a detenu to challenge hi detention on the ground of make files.
Prior to the enactment of section 16A(9), the detaining authority was under an obligation by reason of section 8(1) of the MISA to communicate to the detenu the grounds of detention.
The only exception was as stated in section 8 (2 ), that the detaining authority need not disclose facts which it considers to be against the public interest to disclose.
Section 16A(l) provides that the pro visions of section 16A shall have effect during the period of operation of Proclamation of Emergency issued on December 3, 1971 and on June 25, 1975 or for a period of 12 months from June 25, 1975 whichever period is the shortest.
By sub section (2) of section l6A, the case of every person against whom an order of detention was made under the MISA on or after June 25, 1975 but before the commencement of section 16A on June 29, 1975 is required to be reviewed by the appropriate Government for the purpose of determining whether the detention of such person is necessary for dealing effectively with the emergency.
the answer be in the affirmative, the Government is required to make a declaration to that effect By sub section (3), whenever an order of detention is made under the Act after June 29, 1975 the officer making the order of detention or the appropriate Government is similarly required to consider whether the detention of the persons is necessary for dealing effectively with the emergency.
If so a declaration is required to be made to that effect.
Sub section (9)(a) of section 16A provides that the grounds on which an order of detention is made against any person in respect of whom a declaration is made under sub section (2) or sub section (3) of section 16A and any information or materials on which such grounds are based "shall be treated as confidential and shall be deemed to refer to matters of State and to be against the public interest to disclose and save as otherwise provided in this Act, no one shall communicate or disclose any such grounds, information or material or any document containing such ground, information or material.
" Clause (b) of section 16A (9) provides that no person against whom an order of detention is made under sub section (1) of section 3 shall be entitled to the communication or disclosure of any such ground, information or material, as is referred to in clause (a) or the production to him of ally document containing such ground, information or material.
409 I will deal with the constitutionality of section 16A(9) later but on the assumption that it is valid, it is plain that not only is a detenu in regard to whom the necessary declaration is made not entitled to be furnished with the grounds of detention or the material or information on which the grounds are based, but neither the Government nor the officer passing the order of detention can communicate or disclose the grounds, material or information they are deemed to refer to matters of State and against the public interest to disclose In view of this cast iron prohibition, it is difficult to see how, at least those detenus falling within sub sections (2) and (3) of section 16A can possibly establish, even prima facie a charge of factual mala fides It is the grounds of detention from which generally a plea of mala fides is spelt out and if the court has access to the grounds, the material and the information, it becomes possible to unravel the real motive of detention.
on the absence of these aids, a charge of fides can only The a fling in the air and cannot hope to succeed.
The observation in Makhan Singh 's case, therefore, that the exercise, of a power mala fide can always be successfully challenged could not apply to cases falling under sub sections (2) and (3) of section 16A, by reason of the provisions contained in sub section (9) of that section.
Turning to the constitutional validity of section 16A(9), the contention of the respondents is that clause (a) of section 16A(9) by which the grounds of detention and the information and materials on which the grounds are based shall be treated as confidential and shall be deemed to refer to matters of State and to be against the public interest to disclose is not a genuine rule of evidence but is designed to encroach upon the jurisdiction of the High Courts under Article 226 of the Constitution and is, therefore, void.
It is urged that the amendment made by the Parliament in the exercise of its ordinary legislative power comes into direct conflict with the High Court 's jurisdiction under Article 226 because it would be impossible for any High Court to consider the validity of an order of detention when a petition for habeas corpus comes before it, if the law prohibits the disclosure of the grounds of detention and the necessary information or materials to the High Court.
It is a relevant consideration for examining the charge that the true purpose of section 16A(9) is to encroach on the powers of the High Court under Article 226, that the operation of section 16A itself is limited to the period during which the two proclamations of emergency dated December 3, 1971 and June 25, 1975 are in operation or for a period of 12 months from June 25, 1975 whichever period is the shortest.
Following the proclamations of emergency, the President has issued orders under Article 359 (1) By the order dated Junc 27, 1975 the very locus standi of the detenu to enforce any of his fundamental rights mentioned in the Presidential order is taken away and consequently, there is no matter of substance into which the High Courts in the exercise of their writ jurisdiction can legitimately inquire.
The injunction contained in section 16A(9) is from this point of view innocuous, for it purports to create a check 410 on a power which for all practical purposes has but a formal existence.
Section 16A(9) is in aid of the constitutional power conferred by Article 359(1) and further effectuates the purpose of the Presidential order issued under that Article.
If so it cannot be declared unconstitutional.
Quite apart from this position, I am unable to agree that the rule enunciated in section 16A(9) is not a genuine rule of evidence.
It is true that grounds of detention used to be disclosed before the emergence of section 16A(9) but that does not mean that the grounds on which the order of detention is based or the information or materials on which the grounds are based are not or cannot be of a confidential nature.
More likely than not, such grounds, material and information would be of a confidential nature relating to matters of State which would be against the public interest to disclose.
Instead of leaving each individual matter to be judged under section 123 of the Evidence Act by the Head of the Department concerned, who can give or withhold the permission as he thinks fit, Parliament would appear to have considered that since the grounds, material and information in detention cases are of a confidential nature, it would be much more satisfactory to provide that they shall be deemed to refer to matters of State.
If section 16A(9) is unconstitutional so would sections 123, 124 and 162 of the Evidence Act.
Section 123 gives the necessary discretion to the Head of the Department concerned.
By reason of section 124, the High Court cannot compel any public officer to disclose communications made to him in official confidence if the officer considers that the public interest would suffer by the disclosure.
By section 162, the High Court cannot inspect a document if it refers to matters of State.
But these provisions do not constitute an invasion of the High Court 's jurisdiction under Article 226.
The writ jurisdiction of the High Court under that Article has to be exercised consistently with the laws made by competent legislatures within the area of their legislative power.
I do not think that it is open to any High Court to say that the law may be otherwise valid but since it interferes with the High Court 's power to undertake the fullest enquiry into the matter before it.
the law becomes unconstitutional.
The principles of res judicata and estoppel, the conclusive presumptions of law and various provisions of substantive law deny a free play to courts in the exercise of their jurisdiction.
These are not for that reason unconstitutional qua the High Court 's jurisdiction under Article 226.
Counsel for the respondents cited the parallel of section 14 of the which was struck down by this Court in A. K. Gupalan vs The State(1).
Sub section (1) of that section provided, in substance,that no court shall, except for certain purposes.
allow any statement to be made or any evidence to be given before it of the substance of any communication of the grounds on which a detention order was made against any person or of any representation made by him.
Sub section (2) of section 14 made it an offence for (1) ; 411 any person to disclose or publish without the previous authorization of the Government any contents or matter purporting to be contents of any communication or recpresentation referred to in sub section (1).
The right to enforce Article 22 of the Constitution was not suspended by any Presidential order when Gopalan 's ease was decided and therefore the court was entitled to find whether that Article was complied with.
The limits of judicial review have to be co extensive and commensurate with the right of an aggrieved person to complain of the inversion of his rights.
Since in Gopalan 's case, it was open to the detenu to contend that the grounds of detention did not bear any connection with the order of detention, the Court was entitled to examine the grounds in order to determine whether the plea of the detenu was well founded.
As section 14 debarred the court from examining the material which it was entitled under the Constitution to examine, it was declared ultra vires.
(See pages 130 131, 217 218, 244, 285 and 333).
In the instant ease the Presidential order deprives the respondents of their very locus standi and therefore section 16A(9) cannot be said to shut out an inquiry which is other wise within the jurisdiction of the High Court to make.
Reliance WAS also placed by the respondents on the decision of this Court in Mohd. Maqbool Danmool vs State of Jammu and Kashmir( ') in which it was observed that the proviso to section 8, which was inserted by the Jammu and Kashmir Preventive Denotation (Amendment) Act, 1967, would have been unconstitutional if it had the same effect as section 14 of the was found to have in Gopalan 's case Damnoo 's case did not involve any question of privilege at all and in fact the relevant file was produced by the Government for the perusal of the High Court.
The case also did not involve any question under Article 359(1) and the effect of a provision like section 16A(9) was not even hypothetically considered the Court.
The view of the Bombay High Court that section 16A(9) may be read down so as to enable the court to examine the forbidden material is impossible to sustain.
What use can a court make of material which it cannot disclose to the detenu and how can it form a judicial opinion on matters not disclose to a party before it? The High Court, at the highest, could satisfy its curiosity by tasting the forbidden fruit but its secret scrutiny of the grounds and of the file containing the relevant information and material cannot enter into its judicial verdict.
G I am, therefore of the opinion that the challenge made by the respondents to the constitutionality of section 16A(9) must fail.
Section 18 need not detain me long because it merely declares that no person who is detained under the Act shall have any right to personal liberty by virtue of natural law or common law, any.
the 'natural law ' theory was discarded in Kesavanadun Bharati 's( ') (1) ; (1) [1973] Supp.
section C. R. I. 412 case and likewise the common law theory was rejected in Makhan Singh 's case.
The section only declares what was the true law prior to its enactment on June 25, 1975.
The amendment of section 18 by the substitution of the words "in respect of whom all order is made on purported to be made under section 3" in place of the words 'detained under this Act" does not render the section open to a challenge on the ground of excessive delegation.
The words "purported to be made" have been inserted in order to obviate the challenge that the detention is not in strict conformity with the MISA.
Such a challenge is even otherwsie barred under the Presidential order.
The object of the added provision is not to encourage the passing of lawless orders of detention but to protect during emergency orders which may happen to be S in less than absolute conformity with the MISA.
The executive is bound at all times to obey the mandate of the legislative but the Presidential order bars during a certain period the right to complain of any deviation from that rule.
In numerous cases detenus have been released by this Court and by the High Courts on.
the ground that there is no nexus between the grounds of detention and the object of the law under which the order of detention is made or that the acts complained of are too distant in point of time to raise an apprehension that the past con duct of the detenu is likely to project itself into the future or that the ground are too vague for the formation even of subjective satisfaction or that irrelevant and extraneous considerations have materially influenced the mind of the detaining authority.
On some few occasions detention orders have also been set aside on the ground of factual mala fides.
An unconditional Presidential order obliterates this jurisprudence by striking at the very root of the matter.
locus of the detenu is its chose in target and it deprives him of his legal capacity to move any court for the vindication of his rights to the extant that they arc mentioned in the Presidential order.
In their passion for personal liberty courts had evolved, carefully and laborously, a sort of "detention jurisprudence" over the years with the sale object of ensuring that the executive does not transcend its duty under the law.
In legal theory that obligation still remains but its violation will now furnish no cause of action.
at least to an extent.
and to a significant extent.
Amidst the clash of arms and conflict of ideologies, laws will now be silent but in times when the Nation is believed to be going through great strains and stresses, it may be necessary to entrust sweeping powers to the State.
And it is no smail comfort that those powers are granted with the consent of the Parliament.
The people of this country are entitled to expect when they go to the ballot box that their chosen representatives will not willingly suffer an erosion of the rights of the people.
And the Parliament.
while arming the executive with great and vast powers of Government, may feel fairly certain that such powers will be reasonably exercised.
The periodical reviews of detention orders.
the checks and counter checks which the law provides and above all 413 the lofty faith in democracy which ushered the birth of the Nation will, h l hope, eliminate all fear that great powers are capable of the greatest abuse.
Ultimately, the object of depriving a few of their liberty for a temporary period has to be to give to many the perennial fruits of freedom.
I find it not so easy to summarize my conclusions in simple, straightforward sentences.
The many sided issues arising before us do not admit of a monosyllabic answer 'yes ', or 'no '.
All the same these broadly are my conclusions: (1) The order issued by the President on June 27, 1975 under Article 359(1) of the Constitution does not suspend the fundamental principle that all executive action must have the authority of law to support it.
Nor does the Presidential order give to the executive a clatter to disobey the laws made by the Parliament, which is the supreme law making authority.
(2) The aforesaid Presidential order, however, deprives a person of his locus standi to move any court, be it the Supreme Court or the High Court, for the enforcement of his fundamental rights which are mentioned in the order.
Such deprivation or suspension ensures during the period that the Proclamation of Emergency is in force or for such shorter period as may be specified in the order.
(3) The dominant purpose of the petitions filed by the respondents in the High Courts is to obtain an order of release from detention by enforcing the right to personal liberty.
The purpose is not to obtain a mere declaration that the order of detention is ultra vires the Act under which it is passed.
The former plea is barred by reason of the Presidential order.
The latter plea is also barred because regard must be had to the substance of the matter and not to the form in which the relief is asked for.
(4) The Presidential order dated June 27, 1975 baring investigation or inquiry into the question whether the order of detention is vitiated by mala fides factual or legal, or whether it is based on extraneous considerations or whether the detaining authority had reached his subjective satisfaction validly on proper and relevant material.
(5) Whether or not Article 21 of the Constitution is the sole repository of the right to personal liberty, in a petition filed in the High Court under Article 226 of the Constitution for the release of a person detained under the MISA, no relief by way of releasing the detenu can be granted because no person has the legal capacity to move any court to ask for such 414 relief.
The Presidential order takes away such legal capacity by including Article 21 within it.
the source of the right to personal liberty is immaterial because the words" "conferred by" which occur i Article 359(1) and in the Presidential order are not words of limitation.
(6) The Presidential order does not bring about any amendment of Article 226 and is not open to challenge on that ground.
(7) The Presidential order neither bars the right of an accused to defend his personal liberty in the court of first instance or in a higher court, nor does it bar the execution of decrees passed against the Government, nor does it bar the grant of relief other or less than the release of the detenu from detention.
(8) Section 16A(9) of the MISA is not unconstitutional on the ground that it constitutes an encroachment on the writ jurisdiction of the High Court under Article 226.
There is no warrant for reading down that section so as to allow the court to inspect the relevant files to the exclusion of all other parties.
(9) Section 18 of the MISA does not suffer from the vice of excessive delegation and is a valid piece of legislation.
And so we go back to The Zamora(1) ', Rex vs Holliday(2), Liversidge vs Anderson(3), Greene vs Secretary of State( ').
A jurisdiction of suspicion is not a forum for objectivity.
"These who are responsible for national security must be the sole judges of what the national security requires"; "However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely, national success in the war, or escape from national plunder or enslavement".
As a result, perhaps the only argument which the court can entertain is whether the authority which passed the order of detention is duly empowered to pass it, whether the detenu is properly identified and whether on the face of the order the stated purpose of detention is within the terms of law.
These questions, in almost all cases, will have an obvious answer.
Counsel after counsel expressed the fear that during the emergency, the executive may whip and strip and starve the detenu and if this be our judgment, even shoot him down.
Such misdeeds have not tarnished the record of Free India and I have a diamond bright, diamond hard hope that such things will never come to pass.
(1) (2) ; , 271.
(3) [1942] A. 206.
(4) [l942] A. 284.
415 BHAGWATI, J.
These appeals by special leave raise issues of gravest constitutional importance.
They affect personal liberty which is one of our most cherished freedoms and impinge on the rule of law which is one of the great principles that lies at the core of constitutional democracy and gives content to it.
Does a Presidential order under Article 359, clause (1) specifying Article 21 silence the mandate of the law and take away personal liberty by making it unenforceable in a court of law, or does judicial scrutiny of legality of detention stand untouched and unimpaired, so that, despite such Presidential order, a person who is illegally detained can seek his freedom by invoking the judicial Process.
That is the anodizing question before the Court.
The facts giving rise to these appeals have been fully set out in the judgment of my Lord the Chief Justice and it is not necessary for me to reiterate them as nothing turns on the facts.
None of the writ petitions out of which these appeals arise has in fact been finally disposed of on merits.
Barring the writ petitions before the Rajasthan High Court and the Nagpur Bench of the Bombay High Court, where one additional question has been considered, the only question that has been decided in these writ petitions is as to their maintainability.
in view of the Presidential order dated 27th June, 1975 issued under Article 359, clause (1) of the Constitution.
The High Courts of Allahabad, Madhya Pradesh, Andhra Pradesh, Delhi, Karnataka and Rajasthan and the Nagpur Bench of the Bombay High Court before whom these writ petitions were heard on the preliminary issue as to maintainability, took the view that the Presidential order, dated 27th June, 1975, did not wholly bar the maintainability of these petitions, but left open certain grounds of challenge which could yet be urged against the validity of the order of detention.
These different High Courts were not agreed upon what were the grounds of challenge which were thus available to an applicant despite the Presidential order dated 27th June, 1975.
There were differences of opinion amongst them, but for the purpose of the present appeals, it is not necessary to refer to those differences as they are not material.
The Rajasthan High Court and the Nagpur Bench of the Bombay High Court also considered the interpretation and validity of section 16A, sub section (9) of the and while the Rajasthan High Court accepted the interpretation of that sub section canvassed on behalf of the Government and upheld its validity even on that interpretation, the Nagpur Bench of the Bombay High Court held the sub section to be valid by reading it down so as not to exclude the power of the High Court under Article 226 of the Constitution to call for the grounds, information and materials on which the order of detention was based.
Since in the view of these High Courts, the writ petitions filed by the detenus were maintainable, though on certain limited grounds of challenge, each of the writ petitions was directed to be set down for hearing on merits.
There upon each of the aggrieved State Governments obtained special leave to appeal against the decision of the concerned High Court and that is how the present appeals have come before this Court.
416 Two questions arise for consideration in these appeals.
They have been formulated by the learned Attorney General appearing on behalf of the Union of India in the following terms: (1) Whether, in view of the Presidential order dated June 27, 1975 under clause (1) of Article 359, any writ petition under Article 226 before a High Court for habeas corpus to enforce the right to personal liberty of a person detained under MISA on the ground that the order of detention or the continued detention is for any reason, not under or in compliance With MISA is maintainable ? (2) If such a petition is maintainable, what is the scope or extent of judicial scrutiny, particularly, in view of tile said Presidential order mentioning, inter alia, clause (5) of Article 22 and also in view of sub section (9) of section 16A of MISA? So far as the second question is concerned, it may be pointed out straightaway that the learned Attorney General with his usual candor conceded that if his first contention in regard to maintainability of a writ petition for habeas corpus is not accepted and the writ petition is held maintainable, the area of judicial scrutiny would remain the same as laid down in the decisions of this Court, subject only to the qualification that the grounds, information and materials, on which the order of detention is based, would not be available either to the detenu or to the High Court by reason of suspension of enforcement of the right conferred by clause (S) of Article 22 and the enactment of section 16A, sub section (9) of the .
The only point which would, therefore, require to be considered under the second question is in regard to the interpretation and validity of sub section (9) of section 16A. Before we proceed to consider the first question which turns on the true interpretation and effect of the Presidential order dated 27th June, 1975, it would help to place the problem in its proper perspective if we first examine what is an emergency and how institutions and procedures different from those in normal times are necessary to combat it.
It would be both profitable and necessary to embark upon this inquiry, because Article 359, clause (1) under which the Presidential order dated 27th June, 1975 has been issued is a consequential provision which comes into operation when a Proclamation of emergency is issued by the President under Article 352.
It is evident that a national emergency creates problems for a democracy no less than for other governments.
A totalitarian Government may handle such a situation without embarrassment.
But the apparent necessities evoked by danger often conflict gravely with the postulates of constitutional democracy.
The question arises and that was a question posed by Abraham Lincoln on July 4, 1861: can a democ 417 ratic constitutional government beset by a national emergency be strong enough to maintain its own existence without at the same time being so strong as to subvert the liberties of the people it has been instituted to defend.
This question is answered affirmatively by the incontestable facts of history if we have regard to the experience of emergency governments of three large modern democracies the United States, Great Britain and France.
There is no reason why the Indian experience should be otherwise, if the basic norms of constitutionalism in assumption of emergency powers are observed.
What are these basic norms in a constitutional democracy and what is the purpose behind assumption of emergency powers are matters which I shall presently discuss.
But before I do so, let me first consider what are the different types of emergency which may plague the government of a country.
There are three types of crisis in the life of a democratic nation, three well defined threats to its existence both as nation and democracy.
The first of these is war, particularly a war to repel invasion when "a State must convert its peace time political and social order into a war time fighting machine and over match the skill and efficiency of the enemy".
There may be actual war or threat of war or preparations to meet imminent occurrence of war, all of which may create a crisis situation of the gravest order.
The necessity of concentration of greater powers in the Government and of contraction of the normal political and social liberties cannot be disputed in such a case, particularly when the people are faced with a grim horror of national enslavement.
The second crisis is threat or presence of internal subversion calculated to disrupt the life of the country and jeopardize the existing of the constitutional government.
Such activity may stem from a variety of causes.
Perhaps the most common is disloyalty to the existing form of government, often accompanied by a desire to effect changes by vio1ent means.
Another cause may be strong disaffection with certain government policies.
Communal demands for States within the Federal on linguistic or religious lines may fall within this category.
Or the presence of powerful lawless elements with perhaps no political motivation, but for various reasons beyond the scope of ordinary machinery of the law, may give rise to this problem.
The third crisis, one recognised particularly in modern times as sanctioning emergency action by constitutional government, is break down or potential break down of the economy.
It must be recognised that an economic crisis is as direct a threat to a nation 's continuing constitutional existence as a war or internal subversion.
These are three kinds of emergencies which may ordinarily imperil the existence of a constitutional democracy.
Now, it is obvious that the complex system of government of a constitutional democratic State is essentially designed to function under normal peaceful conditions and is often unequal to the exigencies of a national crisis.
When there is an emergency arising out of a national 29 833 Sup CI/76 418 crisis, a constitutional democratic government has to be temporarily altered to whatever degree necessary to overcome the peril and restore normal conditions.
This alteration invariably involves government of a stronger character.
The government has to assume larger power in order to meet the crisis situation and that means that the people would have fewer rights.
There can be no doubt that crisis government means strong and arbitrary government and as pointed out by Cecil Carr in his article on "Crisis Legislation in Great Britain" published during the Second World War "in the eternal dispute between Government and liberty, crisis means more government and less library.
" In fact Scrutton, L.J. never a fulsome admirer of government departments, made the classic remark in his judgment in Ronnfeldt vs Phillips( ') that war cannot be carried on according to the principles of Magna Carta and there must be same modification of the liberty of the subject in the interests of the State.
The maxim salus populi suprema lex esto, that is publicsafety is the highest law of all, must prevail in times of crisis and the people must submit to temporary abdication of their constitutional liberties in order to enable the government to combat the crisis situation which might otherwise destroy the continued existence of the nation.
While dealing with the emergency powers which may be assumed by a constitutional democracy to deal effectively with a national crisis, it is necessary to refer to the celebrated writ of habeas corpus.
It is the most renowned contribution of the English common law to the protection of human liberty.
It is one of the most ancient writs known to the Common Law of England.
It is a writ of immemorial antiquity "throwing its roots deep into the genius" of the Common Law.
It is not necessary to trace the early history of this writ which is to be found in the decision of this Court in Kanu Sanyal vs District Magistrate, Darjeeling & ors (2) Suffice it to state that by the 17th Century this writ had assumed great constitutional importance as a device for impugning the validity of arbitrary imprisonment by the executive and by invoking it, a person unlawfully imprisoned could secure his release.
As pointed out by Holdsworth in Vol.
1 of his "History of English Law", "its position as the most efficient protector of the liberty of the subject was unquestioned after the great Rebellion".
It was for this reason that men began to assign as its direct ancestor the clauses of the Magna Carta which prohibited imprisonment without due process of law.
This may not be strictly accurate, but there can be no doubt that, far more effective than any other remedy, this writ helped to vindicate the right of freedom guaranteed by the famous words of the Magna Carta.
The decision in Darnel 's case(3) was a set back in the struggle for liberty since it eroded to some extent the effectiveness of the writ by taking the view that a return that the arrest was "by the special command of the King" was a good and sufficient return to the writ, which meant that a lawful cause of imprisonment was shown.
But the Petition of Right. 1627 overruled this decision by declaring such a case of imprisonment to (1) 35 Times Law Reports 46.
(2) ; (3) 419 be unlawful.
In the same way, it was enacted in the Habeas Corpus A Act, 1640 abolishing the Star Chamber that any person committed or imprisoned by order of the Star Chamber or similar bodies or by the command of the King or of the Council should have his habeas corpus.
There were also various other defects which were revealed in course of time and with a view to remedying those defects and making the writ more efficient as an instrument of securing the liberty of the subject unlawfully detained, reforms were introduced by the Habeas Corpus Act, 1679, and when even these reforms were found insufficient, the Habeas Corpus Act, 18 1 6 was enacted by which the benefit of the provisions of the Habeas Corpus Act, 1679 was made available in cases of civil detention and the judges were empowered to inquire into the truth of the facts set out in the return to the writ.
The machinery of the writ was thus perfected by legislation and it became one of the most important safeguards of the liberty of the subject and, as pointed out by Lord Halsbury, L.C., in Cox vs Hakes,(i) it has throughout "been jealously maintained by courts of law as a check upon the illegal usurpation of power by the executive at the cost of the liege .
Now, in the United States of America, the right to this important writ of habeas corpus by means of which the liberty of a citizen is protected against arbitrary arrest, is not expressly declared in the Constitution, but it is recognised in Article I, Placitum 9, clause (2) of the Constitution which declares that "The privilege of the writ of habeas corpus shall not be suspended, unless, when in cases of rebellion or invasion, the public safety may require it".
Cooley in his "General Principles of Constitutional Law in the U.S.A." points out: The privilege of the writ consists in this: that, when one complains that he is unlawfully imprisoned or deprived of his liberty, he shall be brought without delay before the proper court or magistrate for an examination into the cause of his detention, and shall be discharged if the detention is found to be unwarranted.
The suspension of the privilege consists in taking away this right to an immediate hearing and discharge, and in authorising arrests and detentions without regular process of law.
" The suspension of the privilege of the writ does not legalise what is done while it continues: it merely suspends for the time being the remedy of the writ.
The decision of Chief Justice Taney in ex P. Merryman(2) contains the leading American discussion of the suspension of the writ of habeas corpus in a temporary emergency.
In the spring of 1861.
the eve of the American Civil War, President Lincoln was confronted by a state of open insurrection in the State of Maryland following the fall of Fort Sumter on April 15.
Railroad communication to the northern United States had been severed by the Marylanders on April 20 and the Sixth Massachusetts Militia reached Washington only after fighting its way through the City of Baltimore.
In these circumstances and under the increasing threat of secession, President Lincoln issued a Proclamation on April 27 authorising General Pinfield Scot to suspend H (1) [1890] 15 A. C.506.
(2) 17 Fed.
144 (C. C. D. Md. 1861).
420 the writ of habeas corpus "at any point on or in the vicinity of the military line which is now, or shall be used between the City of Philadelphia and the City of Washington".
Another Proclamation of July 2 extended this power to a similar area between Washington and New York.
John Merryman who was a Marylander openly recruited a company of soldiers to serve in the Confederate Army and became their drill master and in consequence he was arrested by the army of Lincoln and held prisoner in Fort McHenry.
He applied for a writ of habeas corpus and, despite the Presidential authorisation suspending the writ, the Supreme Court presided over by Chief Justice Taney granted the writ on the view that the power to suspend the privilege of the writ is a legislative power and the President cannot exercise it except as authorised by law.
History tells us that President Lincoln declined to implement the order of the Supreme Court and this would have led to a major constitutional crisis, but the Congress hastened to resolve the controversy by enacting legislation authorising the President to suspend the privilege of the writ whenever in his judgment the public safety requires it.
It would, therefore, be seen that even in United States of America, where personal liberty is regarded as one of the most prized possessions of man, the Congress has the power to suspend the writ of habeas corpus and this power has been exercised in the past, though very sparingly.
So also in Great Britain the writ of habeas corpus which, as May points out, "is unquestionably the first security of liberty" and which "protects the subject from unfounded suspicions, from aggressions of power" has been suspended, again and again, in periods of public danger or apprehension.
Parliament, convinced of the exigencies of the situation, has on several occasions suspended, for the time being, the rights of individuals in the interests of the State.
This of course has had the effect of arming the executive with arbitrary power of arrest by making it impossible for a person detained to secure his release even if his detention is illegal.
It has resulted in great diminution in the interest of personal freedom, for, suspension of habeas corpus is verily, in substance and effect, suspension of the right of personal liberty granted in Magna Carta, But it has been justified on the ground that whatever be the temporary danger of placing such power in the hands of the Government, it is far less than the danger with which the constitution and the society are threatened, or to put it differently "when danger is imminent, the liberty of the subject must be sacrificed to the paramount interests of the State".
Moreover, on each occasion when the writ of habeas corpus has been suspended, the suspension of the writ has invariably been followed by an Act of Indemnity "in order to protect officials concerned from the consequences of any incidental illegal acts which they might have committed under cover of suspension of the propogative writ".
During the period of emergency, many illegalities might have been committed by the executive in order to deal with a crisis situation and all such illegalities have been retrospectively legalised by an Indemnity Act.
I may now turn to consider the emergency provisions under our Constitution.
Unlike many of the older constitutions, our Constitution speaks in detail on the subject of emergency in Part XVIII.
That Part 421 consists of a fasciculus of Articles from Article 352 to Article 360.
A Article 352 enacts that if the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by Proclamation, make a declaration to that effect and such Proclamation is required to be laid before each House of Parliament and approved by resolutions of both Houses before the expiration of two months.
It is not necessary that there should be actual occurrence of war or external aggression or internal disturbance in order to justify a Proclamation of Emergency.
It is enough if there is imminent danger of any such crisis.
It will be seen that this Article provides for emergencies of the first two types mentioned above.
The third type of emergency threatening the financial stability of India or any part thereof is dealt with in Article 360 but we are not concerned with it and hence it is not necessary to consider the provisions of that Article.
So far as the emergencies of the first two types are concerned, the constitutional implications of a declaration of emergency under Article 352 are much wider than in the United States or Great Britain.
These are provided for in the Constitution itself.
In the first place, Article 250 provides that while a Proclamation of Emergency is in operation, Parliament shall have the power to make laws for the whole or any part of the territory of India with respect to any of the matters enumerated in the State List, which means that the federal structure based on separation of powers is put out of action for the time being.
Secondly, Article 353 declares that during the time that Proclamation of Emergency is in force, the executive power of the Union of India shall extend to the giving of direction to any State as to the manner in which the executive power thereof is to be exercised and this provision also derogates from the federal principle which forms the basis of the Constitution.
If there is non compliance by any State with the directions given by the Union under Article 353, such non compliance may attract the provisions of Article 356 and 'President 's rule ' may be imposed under that Article and in such event.
Parliament may, under Article 357, clause (1), confer on the President the power of the legislature of the ' State to make laws or to delegate such legislative power to any other authority.
This not only contradicts the federal P principle, but also strikes at the root of representative form of Government.
Then there are two Articles, Article 358 and Article 359 which set out certain important consequences of Proclamation of Emergency and they read as follows: "358.
While a Proclamation of Emergency is in operation nothing in article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency.
cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect. "359.
(1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to 422 move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the proclamation is in force or for such shorter period as may be specified in the order.
(1A) While an order made under clause (1) mentioning any of the rights conferred by Part III is in operation, nothing in that Part conferring those rights shall restrict the power of the State as defined in the said Part to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the order aforesaid ceases to operate.
except as respects things done or omitted to be done before the law so ceases to have effect.
(2) An order made as aforesaid may extend to the whole or any part of the territory of India.
(3) Every order made under clause (1) shall, as soon as may be after it is made, be laid before each House of Parliament.
" It may be pointed out that clause (1A) did not form part of Article 359 when the Constitution was originally enacted but it was introduced with retrospective effect by the Constitution (Thirty eighth Amendment) Act, 1975.
We are not directly concerned in these appeals with the interpretation of Article 358 and clause (1A) of Article 359, but in order to arrive at the proper meaning and effect of clause (1) of Article 359, it will be relevant and somewhat useful to compare and contrast the provisions of Article 358 and clause (1A) of Article 35 on the one hand and clause (1) of Article 359 on the other.
It would be convenient at this stage to set out the various steps taken by the Government of India from time to time in exercise of the emergency powers conferred under Part XVIII of the Constitution.
When hostilities broke out with Pakistan in the beginning of December 1971, the President issued a Proclamation of Emergency dated 3rd December, 1971 in exercise of the powers conferred under clause (1) of Article 352 declaring that "a grave emergency exists whereby the security of India is threatened by external aggression".
This was followed by two orders, one dated 5th December, 1971 and the other dated 23rd December, 1974, issued by the President under clause (1) of Article 359.
It is not necessary to reproduce the terms of these two Presidential orders since they were subsequently rescinded by a Presidential order dated 25th December, 1975 issued under clause (1) of Article 359.
Whilst the first Proclamation of Emergency dated 3rd December, 1971 based on threat of external aggression continued in force, the President issued another Proclamation of Emergency dated 25th June, 1975 declaring that "a grave emergency exists whereby the security of India is threatened by internal disturbance".
This Proclamation of Emergency was also issued in exercise of the powers confer red under Article 352, clause (1) and it was followed by a fresh Presi 423 dential order dated 27th June, 1975 under clause (1) of Article 359.
A The President, by this order made under clause ( l ) of Article 359, declared that "the right of any person, (including a foreigner) to move any court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution and all proceedings pending in any court for the enforcement of the above mentioned rights shall remain suspended for the period during which the Proclamations of Emergency made under clause (1) of Article 352 of the Constitution on the 3rd December, 1971 and on the 25th June, 1975 are both in force".
The writ petitions out of which the present appeals arise were filed after the issue of this Presidential order and it was on the basis of this Presidential order that it was contended on behalf of the State Governments and the Union of India that the writ petitions were not maintainable, since, by moving the writ petitions, the detenus sought enforcement of the right of conferred by Article 21.
This contention was substantially negatived by the High Courts and hence the present appeals were brought by the State Governments and the Union of India raising the same contention as to the maintainability of the writ petitions.
It may be pointed out that whilst the present appeals were pending before this Court, the President issued another order dated 8th January, 1976 under clause (1) of Article 359 suspending the enforcement of the rights conferred by Article 19.
This Presidential order is not material, but I have referred to it merely for the sake of completeness.
Now the orders of detention challenged by the detenus in the different writ petitions were all expressed to be made in exercise of the powers conferred by section 3 of the .
The detenus challenged them on various grounds, namely, the orders of detention were not in accordance with the provisions of the Act, they were not preceded by the requisite subjective satisfaction, which constitutes the foundation for the making of a valid order of detention, they were actuated by malice in law or malice in fact or they were outside the authority conferred by the Act.
The substance of these grounds according to the Union of India and the State Governments, was that, by these orders of detention, the detenus, were deprived of their personal liberty otherwise than in accordance with the procedure established by law.
This constituted infraction of the fundamental right conferred by Article 21 and the writ petitions of the detenus were, therefore, clearly proceedings for enforcement of that fundamental right.
But by reason of the Presidential order dated 27th June, 1975, the right to move any court for enforcement of the fundamental right conferred by Article 21 was suspended during the period when the Proclamations of Emergency dated 3rd December, 1971 and 25th June, 1975 were in force and, therefore, the detenus had no locus standi to file the writ petitions and the writ petitions were barred.
The answer to this contention given on behalf of the detenus was and here we are setting out only the broad general argument that Article 21 merely defines an area of free action and does not confer any right and hence it is outside the scope and ambit of Article 359, clause ( I ) and consequently outside the Presidential order itself.
It was also urged on behalf of the detenus that it is a basic principle of the rule of 424 law that no member of the executive can interfere with the liberty of a person except in accordance with law.
The principle of the rule of law was recognised and declared by the Judicial Committee of the Privy Council in Eshugbayi Eleko vs Officer Administering the Government of Nigeria(l) and it was uniformly administered by courts in India as the law of the land prior to the coming into force of the Constitution.
It was consequently law in for in the territory of India immediately before the commencement of the Constitution and by reason of Article 372, it continued in force ever after the coming into force of the Constitution and since then it has been repeatedly recognised and adopted by this Court as part of Indian jurisprudence in several decided cases.
Moreover, apart from being continued under Article 372 as law in force, this principle of the rule of law stems from the constitutional scheme itself which is based on the doctrine of distribution of powers amongst different bodies created by the Constitution.
Under the constitutional scheme the executive is a limited executive and it is bound to act in accordance with law and not go against it.
This obligation of the executive not to act to the detriment of a person without the authority of law can be enforced under Article 226 by issue of a writ "for any other purpose".
When a detenu files a petition under Article 226 challenging the validity of the order of detention on the ground that it is not in accordance with the Act or is outside the authority conferred by the Act, he seeks to enforce this obligation against the State Government and the suspension of enforcement of the fundamental right under Article 21 does not affect the maintainability of his writ petition.
The detenus also contended that in any event the right to personal liberty was a statutory right and the suspension of the fundamental right conferred by article 21 did not carry with it suspension of the enforcement of this statutory right.
The Union of India and the State Governments rejoined to this contention of the detenus by saying that Article 21 was the sole repository of the right of personal liberty and there was no common law or statutory right in a person not to be deprived of his personal liberty except in accordance with law, apart from that contained in Article 21 and therefore, the writ petitions filed by the detenus were in substance and effect petitions for enforcement of the right conferred by Article 21 and hence they were not maintainable.
Before we proceed to consider these contentions which have been advanced before us, it is necessary to remind ourselves that the emergency provisions in Part XVIII of the Constitution make no distinction whether the emergency is on account of threat to the security of India by war or external aggression or on account of threat to the security of India by internal disturbance.
The same provisions are applicable alike in both situations of emergency, irrespective of the reason for which emergency, has been declared.
The legal consequences are the same and, therefore, whatever interpretation we place on Article 359, clause (1) in the present case which relates to declaration of emergency on account of internal disturbance would apply equally where the emergency is declared on account of war or external aggression by a hostile power.
If we take the view that the Presidential order under Article 359, clause (1) suspending enforcement of (1) ; 425 Article 21 does not bar the remedy of a detained person to seek his release on the ground that his detention is illegal, it would be open to a detained person to challenge the legality of his detention even when there is emergency on account of war or external aggression, because, barring Article 359, there is no other provision in the Constitution which can even remotely be suggested as suspending or taking away the right to move the Court in cases of illegal detention.
The consequence would be that even in a perilous situation when the nation is engaged in mortal combat with an enemy, the courts would be free to examine the legality of detention and even if a detention has been made for efficient prosecution of the war or protecting the nation against enemy activities it would be liable to be struck down by the courts if some procedural safeguard has been violated though it may be bona fide and through inadvertence.
This would imperil national security and the Government of the day would be helpless to prevent it.
The question is: whether such is the interpretation of Article 359, clause (1).
Of course, if that is the only possible interpretation, we must give effect to it regardless of the consequence, leaving it to the constituent authority to amend the Constitution, if it so thinks fit.
But we may ask ourselves: could the Constitution makers have intended that even in times of war or external aggression, there should be no power in the President, as the head of the Nation, to bar judicial scrutiny into legality of detention.
It may be pointed out that even in the United States of America, the President has power under Article I Placitum 9, clause (2) of the United States Constitution to suspend the privilege of the writ of habeas corpus "when in cases of rebellion or invasion the public safety may require it".
The British Parliament has also on several occasions in the past suspended the writ of habeas corpus by legislative enactment, though in limited classes of cases.
The Constitution makers were obviously aware that even in these countries which are essentially democratic in character and where the concept of constitutional government has had its finest flowering, the power to exclude judicial review of legality of detention through the means of a writ of habeas corpus has been given to the Supreme legislature or the head of the State and they must have realised that this was a necessary power in times of national peril occasioned by war or external aggression.
Could the Constitution makers have intended to omit to provide for conferment of this power on the head of the State in our Constitution ? We must also disabuse our mind of any notion that the emergency declared by the Proclamation dated 25th June, 1975 is not genuine, or to borrow an adjective used by one of the lawyers appearing on behalf of the interveners, is 'phoney '.
This emergency has been declared by the President in exercise of the powers conferred on him under Article 352, clause (1) and the validity of the Proclamation dated 25th June, 1975 declaring this emergency has not been assailed before US.
Mr. Shanti Bhushan and the other learned counsel appearing on behalf of the detenus in fact conceded before us that, for the purpose of the present appeals, we may proceed on the assumption that the declaration of emergency under the Proclamation dated 25th June, 1975 is valid.
But if this emergency is taken as valid, we must equally presume that 426 it is genuine and give full effect to it, without any hesitation or reservation.
With these prefatory observations I will now turn to examine clause (1) of article 359 under which the Presidential order has been issued.
The language of this clause is clear and explicit and does not present any difficulty of construction.
It says that where a Proclamation of Emergency is in operation, the President may by order suspend the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order.
Any or all of the rights conferred by Part III can find a place in the Presidential order.
Whilst the Presidential order is in force, no one can move any court for the enforcement of any of the specified fundamental rights.
I shall presently discuss whether Article 21 can be said to confer any right, but assuming it does and, as will be evident shortly, that is my conclusion the right to move any court for the enforcement of the fundamental right guaranteed by Article 21 may be suspended by specifying it in the Presidential order.
When that is done, no one can move any court, and any court would mean any court of competent jurisdiction, including the High Courts and the Supreme Court., for enforcement of the right conferred by Article 21.
The words "the right to move any court for the enforcement" are wide enough "to include all claims made by citizens in any court of competent jurisdiction when it is shown that the said claims cannot be effectively adjudicated upon without examining the question as to whether the citizen is, in substance, seeking to enforce any of the specified fundamental rights".
Vide Makhan Singh vs State of Punjab(1).
Therefore, there can be no doubt that in view of the Presidential order which mentions Article 21, the detenus would have no locus standi to maintain their writ petitions, if it could be shown that the writ petitions were for enforcement of the right conferred by Article 21.
That should logically take me straight to a consideration of the question as to what is the scope and content of the right conferred by article 21, for without defining it, it would not be possible to determine whether the right sought to be enforced by the detenus in their writ petitions is the right guaranteed under Article 21 or any other distinct right.
But before I examine this question, it would be convenient first to deal with clause (1A) of Article 359 and ascertain its meaning and effect.
Clause (1A) of article 359 did not find a place in the Constitution when it was originally enacted, but it was inserted with retrospective effect by the Constitution (Thirty eighth) Amendment Act, 1975.
It provides that while an order made under cl.
(1) of Article 359 mentioning any of the rights conferred by Part III is in operation, nothing in that Part conferring those rights shall restrict the power of the State to make any law or to take any executive action which the State would, but for the provisions contained in that Part, be competent to make or to take.
It will be noticed that the language of cl.
(1A) of article 359 is in the same terms as that of Article 358 and the decisions interpreting Article 358 would, therefore, afford considerable guidance in the interpretation of cl.
(1A) of article 359.
But before I (1) [1964] 4 section C. R. 797.
427 turn to those decisions, let me try to arrive at the proper meaning of that clause on a plain interpretation of its language.
In the first place, it is clear that clause (1A) of article 359 is prospective in its operation, for it says that, while a Presidential order is in operation, nothing in the Articles mentioned in the Presidential order shall restrict the power of the State to make any law or to take any executive action which the State would, but for the provisions contained in Part III, be competent to make or to take.
This clause does not operate to validate a legislative provision or executive action which was invalid because of the constitutional inhibition before the Proclamation of Emergency.
Secondly, it may be noted that the fundamental rights operate as restrictions on the power of the State, which includes the executive as well as the legislature.
When a Presidential order is issued under article 359, clause (1), the fundamental right mentioned in the Presidential order is suspended, so that the restriction on the power of the executive or the legislature imposed by the fundamental right is lifted while the Presidential order is in operation and the executive or the legislature is free to make any law or to take any action which it would, but for the provisions contained in Part III, be competent to make or to take.
The words "but for the provisions contained in that Part", that is, but for the fundamental rights, means "if the fundamental rights were not there".
The question which has, therefore, to be asked is: if the fundamental rights were not there in the Constitution, would the executive or the legislature be competent to make the impugned law or to take the impugned executive action '? If it could, it would not be restricted from doing so by reason of the particular fundamental right mentioned in the presidential order.
The Presidential order would, therefore, have the effect of enlarging the power of the executive of the legislature by freeing it from the restriction imposed by the fundamental right mentioned in the Presidential order, but it would not enable the legislature or the executive to make any law or to take any executive action which it was not otherwise competent to make or to take.
Now it is clear that, if the fundamental rights were not there in the Constitution, the executive being limited by law would still be unable to take any action to the prejudice of a person except by authority of law and in conformity with or in accordance with law and, therefore, even if the Presidential order mentions article 21, clause (1A) of Article 359 would not enable the executive to deprive a person of his personal liberty without sanction of law and except in conformity with or in accordance with law.
If an order of detention is made by the executive without the authority or law, it would be invalid and its invalidity would not be cured by clause (1A) of Article 359, because that clause does not protect executive action taken without lawful authority.
An unlawful order of detention would not be protected from challenge under Article 21 by reason of clause (1A) of Article 359 and the detenu would be entitled to complain of such unlawful detention as being in violation of Article 21, except in so far as his right to move the court for that purpose may be held to have been taken away by clause (1) of Article 359.
This interpretation of clause (1A) of Article 359 is clearly supported by the decision of this Court in State of Madhya Pradesh vs 428 Thakur Bharat Singh(l) and the subsequent decisions following it, which relate to the interpretation of the similarly worded Article 358.
What happened in Bharat Singh 's case (supra) was that whilst the Proclamation of Emergency dated October 20, 1962 was in operation, the State Government made an order under sub section (1) of section 3 of the Madhya Pradesh Public Security Act, 1959 directing that Bharat Singh shall not be in any place in Raipur District and shall immediately proceed to and reside in Jhabua.
Bharat Singh challenged the validity of the order inter alia on the ground that sub section (1) of section 3 of the Act infringed the fundamental rights guaranteed under clauses (d) and (e) of Article 19(1).
The State Government sought to meet the challenge by pleading the bar of Article 358.
But this Court held that Article 358 had no application because sub section (1) of section 3 of the Act which was impugned in the petition was a pre emergency legislation.
This Court, speaking through Shah, J. observed: "Article 358 which suspends the provisions of article 19 during an emergency declared by the President under article 352 is in terms prospective: after the proclamation of emergency nothing in article 19 restricts the power of the State to make laws or to take any executive action which the State but for the provisions contained in Part III was competent to make or take.
Article 358 however does not operate to validate a legislative provision which was invalid because of the constitutional inhibition before the proclamation of emergency." This Court accordingly proceeded to consider the validity of section 3, sub section (1) of the Act and held that clause (b) of that sub section was unconstitutional as it infringed the fundamental rights under clauses (d) and (e) of article 19(1) and if it was void before the proclamation of Emergency, "it was not revived by the Proclamation".
But on this view, another contention was put forward on behalf of the State Government and that was that Article 358 protects not only legislative but also executive action taken after the Proclamation of Emergency and, therefore, executive action taken by the State would not be liable to be challenged on the ground that it infringes the fundamental rights under article 19, and consequently, the order of the State Government, though made under void law was protected against challenge under article 19.
This contention was also rejected by the Court in the following words: "In our judgment, the argument involves a grave fallacy.
All executive action which operates to the prejudice of any person must have authority of law to support it, and the terms of article 358 do not detract from that rule.
Article 358 does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others .
it merely provides that so long as the proclamation of emer (1) ; 429 gency subsists laws may be enacted, and executive action may be taken in pursuance of lawful authority, which if the provisions of article 19 were operative would have been invalid.
The view taken by the Court was that it is only where executive action ii taken in pursuance of lawful authority that it is immune from challenge under article 19 and in such a case even if it conflicts with the fundamental rights guaranteed under that Article, it would be valid But where executive action is taken without lawful authority, as for example, where it is taken without the authority of any law at all or in pursuance of a law which is void, it is not protected from challenge under article 19 by Article 358 and it would be void to the extent it violates article 19.
The same view was taken by this Court in District Collector of Hyderabad vs M/s Ibrahim Co.(1) where this Court said, without referring expressly to the decision in Bharat Singh 's case (supra) that i ' the executive order immune from attack is only that order which the State was competent, but for the provisions contained in Art 19, to make", and that "executive action of the State Government, which is otherwise invalid, is not immune from attack merely because the Proclamation of Emergency is in operation when it is taken".
The reference here was to immunity from attack under article 19 and it was held that executive action which was contrary to law and hence invalid was not protected from attack under article 19 by reason of article 358.
So also in Bennett Coleman & Co. vs Union of India(2), this Court referred to the decisions in Bharat Singh ' case (supra) and Ibrahim 's case (supra) and observed: "Executive action which is unconstitutional is immune during Proclamation of Emergency.
During the Proclamation of Emergency article 19 is suspended.
But it would not authorise the taking of detrimental executive action during the emergency affecting fundamental rights in article 19 without any legislative authority or any purported exercise of power conferred by any pre emergency law which was invalid when enacted".
This Court also said to the same effect in Shree Meenakshi Mills Ltd. vs Union of India(3): " if it can be shown that the executive action taken during the emergency has no authority of a valid law, its constitutionality can be challenged".
These observations clearly show that where executive action is taken without any legislative authority or in pursuance of a law which is void it would not be protected by article 358 from challenge under article 19 and it would be unconstitutional to the extent to which it conflicts with that Article.
If this be the interpretation of article 358 as laid down in the decisions of this Court, a fortiori a like interpretation must be placed on clause (1A) of article 359, as both are closely similar in form as well as language.
It must, therefore, be held that even though a Presidential order issued under clause (1) of article 359 mentions article 21, where it is found that a detention has not been made in pursuance of lawful (1) (2) [19731 2 section C. R. 757 (3) [19741 2 section C. R. 398.
430 authority or in other words, the detention is without the authority of law, whether by reason or there being no law at all or by reason of the law under which the detention is made being void, clause ( 1A) of article 359 would not protect it from challenge under article 21 and it would be in conflict with that Article.
The only question then would be whether the detenu would be entitled to challenge the validity of tile detention as being in breach of article 21, in view of clause (1) of article 353 read with the Presidential order mentioning article 21.
Now, at the outset, a contention of a preliminary nature was advanced by Mr. Shanti Bhushan, learned Advocate appearing on behalf of some of the detenus, that clause (1) of article 359 can have no operation in cases where a detenu seeks to enforce his right of personal liberty by challenging the legality of his detention.
Mr. Shanti Bhushan contended, and in this contention he was strongly supported by Mr. Jethmalani, that personal liberty is not a conglomeration of positive rights but is merely a negative concept denoting an area of free action to the extent to which law does not curtail it or authorise its curtailment and such a negative right cannot by its very nature be the subject of conferment under article 21.
The argument of counsel based on this contention was that when article 359 clause (1) speaks of suspension of "the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order", it cannot include reference to the right of personal liberty in article 21, because it cannot be said of such a right that it is conferred by article 21.
It was urged that article 21 cannot therefore appropriately find a place in a Presidential order under clause (l) of article 359 and even if it is erroneously mentioned there; it can have no legal sequitur and cannot give rise to the consequences set out in clause (1) of article 359.
This argument was sought to be supported by reference to two well known text books on jurisprudence, one by Salmond and the other by Holland and the Declaration of the Rights of Man and the Citizen adopted by the French National Assembly was also relied upon for this purpose.
There is, however, no merit in this argument.
The words 'rights conferred by Part III ' cannot be read in isolation, `nor can they be construed by reference to theoretical or doctrinaire considerations.
They must be read in the context of the provisions enacted in Part III in order to determine what are the rights conferred by the provisions in that Part.
Part III is headed ' 'Fundamental Rights" and it deals with fundamental rights under seven heads, namely, right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, right to property and right to constitutional remedies.
articles 19 to 22 occur under the heading "Right to Freedom" and what is enacted in article 21 is a right, namely, the right to life and personal liberty.
It is true that article 21 is couched in negative language, but it is axiomatic that to confer a right it is not necessary to use any particular form of language.
It is not uncommon in legislative practice to use negative language for conferring a right.
That is often done for lending greater emphasis and strength to the legislative enactment.
One instance may be found in section 298, sub section
(1) of the Government of India Act, 1935 which provided that no subject of His Majesty domiciled in India shall on 431 grounds only of religion, place of birth descent, colour or any of them A be ineligible for office under the Crown in India, or be prohibited on any such grounds from acquiring, holding or disposing of property or carrying on any occupation, trade, business or profession in British India.
Though this provision was couched in negative language, the Judicial Committee of the Privy Council in Punjab Province vs Daulat Singh(1) construed it as conferring a right on every subject of His Majesty, domiciled in India.
B Similarly, article 14 also employs negative language and yet it was construed to confer a fundamental right on every person within the territory of India, section R. Das, C.J., pointed out in Basheshar Nath vs The Commissioner of Income Tax, Delhi & Rajasthan(2) that it is clear from the language of article 14 that "The command of that Article is directed to the State and the reality of the obligation thus imposed on the State is the measure of the fundamental right which every person within the territory of India is to enjoy." (emphasis supplied).
Article 31, clause (1) is also couched in negative language: it is almost in the same form as Article 21.
Speaking about Article 31, section R. Das, J. Observed in State of Bihar vs Maharajadhiraj Kameshwar Singh of Dharbhanga & ors.(3).
"It confers a fundamental right in so far as it protects private property from State action.
The only limitation put upon the State action is the requirement that the authority of law is prerequisite for the exercise of its power to deprive a person of his property.
This confers some protection on the owner, in that, he will not be deprived of his property save by authority of law and this protection is the measure of the fundamental right.
It is to emphasise this immunity from State action as a fundamental right (that the clause has been worded in negative language .
" (emphasis supplied) If Article 31 (1), by giving a limited immunity from State action, confers a fundamental right, it should follow equally on a parity of reasoning that Article 21 also does so.
In fact, this Court pointed out in so many terms in P. D. Shamdasani vs Central Bank of India Ltd.(4): that clause (1) of article
31 "is a declaration of fundamental right of private property in the same negative form in which Article 21 declares the fundamental right to life and liberty".
Then again in R. C. Cooper v, Union of India(5) this Court in a majority judgment to which ten out of eleven judges were parties said: " it is necessary to bear in mind the enunciation of the guarantee of fundamental rights which has taken different forms.
In some cases it is an express declaration of a guaranteed right: article 29(1), 30(1), 26, 25 and 32, in others to ensure protection of individual rights they take specific forms of restrictions on State action legislative or executive articles 14, 15, 16, 20, 21, 22(1), 27 and 28; The enunciation of rights either express or by implication does not follow a uniform pattern.
But one thread runs through (1) 73 Indian Appeals 59.
(2) [1959] Supp.
(I) section C. R. 529.
(3) at p. 988.
(4) ; (5) 119701 3 section C. R. 530.
432 them; they seek to protect the rights of the individual or groups of individuals against infringement of those rights within specific limits.
Part Ill of the Constitution weaves a pattern of guarantees on the texture of basic human rights.
" This statement of the law establishes clearly and without doubts that Article 21 confers the fundamental right of personal liberty.
Let us, for a moment, consider what would be the consequences if article 21 were construed as not conferring a right to personal liberty.
Then there would be no fundamental right conferred by article 21 and even if a person is deprived of his personal liberty otherwise than in accordance with the procedure established by law and there is infringement of article 21, such person would not be entitled to move the Supreme Court for a writ of habeas corpus under article 32, for that Article is available only for enforcement of the rights conferred by Part III.
That would be a startling consequence, as it would deprive the Supreme Court of a wholesome jurisdiction to protect the personal liberty of an individual against illegal detention.
Let it not be for gotten that the Supreme Court has exercised this jurisdiction in a large number of cases over the last 25 years and set many detenus at liberty where it found that they were illegally detained.
All this exercise of jurisdiction in the past would be rendered illegal and void.
Ever since the commencement of the Constitution, this Court has always regarded Article 21 as conferring the fundamental right of personal liberty which can be enforced in this Court by a petition under Article 32 and there is no justification for departing from this well settled constructional position.
What then is the scope and ambit of this fundamental right conferred by Article 21 ? The first question that arises in this connection is: what is the meaning and content of the word 'personal liberty ' in this Article ? This question came up for consideration before a Bench of six judges of this Court in Kharak Singh vs State of U.P. & Ors.(1).
The majority judges took the view "that 'personal liberty ' is used in the Article as a compendious term to include within itself all the varieties of rights which go to make up the 'personal liberties ' of man other than those dealt with in the several of clauses of Article 19(1).
In other words, while Article 19(1) deals with particular species or attributes of that freedom, 'personal liberty ' in Article 21 takes in and comprises the residue".
The minority judges, however disagreed with this view taken by the majority and explained their position in the following words: "No doubt the expression 'personal liberty ' is a comprehensive one and the right to move freely is an attribute of that freedom personal liberty.
It is said that the freedom to move freely is carved out of personal liberty and, therefore, the expression 'personal liberty ' in Article 21 excludes that attribute.
In our view, this is not a correct approach.
Both are independent fundamental rights.
though there is overlapping.
There is no question of one being carved out of another.
The fundamental right of life and personal liberty have many attributes and some of them are found in Article 19.
If a person 's fundamental right under Article 21 is infringed, the State can rely upon a law (1) [1964] 1 section C. R. 332. 433 to sustain the action, but that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned.
" There can be no doubt that in view of the decision of this Court in R. C. Cooper 's case (supra) the minority view must be regarded as correct and the majority view must be held to have been overruled.
No attribute of personal liberty can be regarded as having been carved out of Article 21.
That Article protects all attributes of personal liberty against executive action which is not supported by law.
lt is not necessary for the purpose of the present appeals to decide what those attributes are or to identify or define them.
It is enough to say that when a person is detained, there is deprivation of personal liberty within the meaning of Article 21.
Now Article 21 gives protection against deprivation of personal liberty but what is the nature and extent of this protection ? In the first place, it may be noted that this protection is only against State action and not against private individuals.
Vide P. D. Shamdasani vs Central Bank of India Ltd. (supra) and Smt.
Vidya Verma vs Dr. Shiv Narain(l).
Secondly, it is clear from the language of article 21 that the protection it secures is a limited one.
It says and I am quoting here only that part of the Article which relates to personal liberty, that no one shall be deprived of his personal liberty except by the procedure prescribed by law.
The meaning of the word 'law ' as used in this Article came to be considered by this Court in A. K. Gopalan vs State of Madras(2) and it was construed to mean 'enacted law ' or 'State law '.
Kania, C.J., observed: "It is obvious that law must mean enacted law", and to the same effect spoke Patanjali Sastri, J., when he said: "In my opinion 'law ' in article 21 means 'positive or State made law ' ".
So also Mukherjee, J., said that his conclusion was that "in article 21 the word 'law ' has been used in the sense of State made law",,and Das J. too expressed the view that law in article 21 must mean State made law.
The only safeguard enacted by Article 21, therefore, is that a person cannot be deprived of his personal liberty except according to procedure prescribed by 'State made law.
If a law is made by the State prescribing the procedure for depriving a person of his personal liberty and deprivation is effected strictly in accordance with such procedure, the terms of Article 21 would be satisfied and there would be no infringement or the right guaranteed under that Article.
Now, based on the phraseology "except according to procedure established by law" in Article 21, an argument was advanced on behalf of the detenus that it is only where procedure prescribed by the law as not been followed in making the order of detention that Article 21 is attracted and the right conferred by that Article is breached and not where an order of detention is made without there being any law at all or where there is a law, outside the authority conferred by it.
It was urged that where an order of detention is challenged as mala (1) ; (2) ; 833 SCI/76 434 fide or as having been made without the requisite subjective satisfaction, the challenge would not be on the ground of breach of the procedure prescribed by the Act but it would be on the ground that the order of detention is outside the authority of the Act and such a challenge would not be covered by Article 21.
This argument is, in my opinion, wholly unsustainable.
It is clear on plain natural construction of its language that Article 21 imports two requirements: first, there must be a law authorising deprivation of personal liberty, and secondly, such law must prescribe a procedure.
The first requirement is indeed implicit in the phrase "except according to procedure prescribed by law".
When a law prescribes a procedure for depriving a person of personal liberty, it must a fortiori authorise such deprivation.
Article 21 thus provides both substantive as well as procedural safeguards.
This was pointed out by Patanjali Sastri, J. in A. K. Gopalan vs State of Madras (supra) at page 195 of the Report where the learned Judge said: "If article 21 is to be understood as providing only procedural safeguards, where is the substantive right to personal liberty of non citizens to be found in the Constitution ? Are they denied such right altogether ? If they are to have no right of personal liberty, why is the procedural safeguard in article 21 extended to them ? And where is that most fundamental right of all, the right to life, provided for in the Constitution? The truth is that article 21, presents an example of the fusion of procedural and substantive rights in the same provision the first and essential step in a procedure established by law for such deprivation must be a law made by a competent legislature authorising such deprivation.
" Mahajan, J. also pointed out in the same case at page 229 of the Report: Article 21, in my opinion, lays down substantive law as giving protection to life and liberty inasmuch as it says that they cannot be deprived except according to the procedure established by law; in other words, it means that before a person can be deprived of his life or liberty as a condition precedent there should exist some substantive law conferring authority for doing so and the law should further provide for a mode of procedure for such deprivation." section R. Das, J. too spoke in the same strain when he negatived the argument "that personal liberty as a substantive right is protected by Article 19(1) and article 21 gives only an additional protection by prescribing the procedure according to which that right may be taken away.
" It would, therefore, be seen that both the safeguards of Article 21, substantive as well as procedural, have to be complied with in order that there should be no infraction of the right conferred by that Article.
Where there is a law authorising deprivation of personal liberty, but a person is detained otherwise than in conformity with the procedure prescribed by such law, it would clearly constitute 435 violation of Article 21.
And so also there would be breach of Article A 21, if there is no law authorising deprivation of personal liberty and yet a person is detained, for then the substantive safeguard provided in the Article would be violated.
Therefore, when a detenu challenges an order of detention made against him on the ground that it is mala fide or is not preceded by the requisite subjective satisfaction, such challenge would fall within the terms of Article 21.
B It is also necessary to point out two other ingredients of Article 21.
The first is that there must not only be a law authorising deprivation of personal liberty, but there must also be a procedure prescribed by law, or in other words, law must prescribe a procedure.
Vide observations of Fazal Ali, J. at page 169, Patanjali Sastri, J. at page 205, Mahajan, J. at pages 229 and 230 and section R. Das, J. at page 319 of the Report in A .
K. Gopalan 's case ( supra) .
Article 21, thus, operates not merely as a restriction on executive action against deprivation of personal liberty without authority of law, but it also enacts a check on the legislature by insisting that the law, which authorises deprivation, must establish a procedure.
What the procedure should be is not laid down in this Article, but there must be some procedure and at the least, it must conform to the minimal requirements of Article 22.
Secondly, 'law ' within the meaning of Article 21 must be a valid law and not only must it be within the legislative competence of the legislature enacting it, but it must also not be repugnant to any of the fundamental rights enumerated in Part III.
Vide Shambhu Nath Sarkar vs The State of West Bengal(1) and Khudiram Das vs The State of West Bengal & ors.(2).
It was contended by Mr. Jethmalani on behalf of some of the detenus that when a Presidential order suspends enforcement of the right conferred by article 21, its effect is merely to suspend enforcement of the aforesaid two ingredients and, therefore, the only claims which a detenu is interdicted from enforcing, whilst the Presidential order is in operation, are: (1) that the law authorising deprivation does not prescribe a procedure, and (2) that it does not impose reasonable restrictions on the freedom guaranteed under article 19.
This contention is plainly erroneous and does not need much argument to refute it.
In the first place, the requirement that the law which authorises deprivation of personal liberty should not fall foul of Article 19, or for the matter of that, with any other fundamental right set out in Part III, is not a requirement of Article 21, but it is a requirement of article 13.
Secondly, the effect of suspension of enforcement of Article 21 by the Presidential order is that no one can move any court for a enforcement of the right conferred by article 21, whilst the Presidential order is in operation.
The right conferred by Article 21 is the right not to be deprived of personal liberty except according to procedure prescribed by law.
Therefore, when the executive detains a person without there being any law at all authorising detention or if there is such law, otherwise than in accordance with its provisions, that would clearly be in violation of the right conferred by article 21 and such vio (1) [1974] S.C.R.1.
(2) ; 436 lation would a fortiori toe immune from challenge by reason of the Presidential order: It must follow inevitably from this that when a detenu challenges an order of detention on the ground that it is mala fide or is not in accordance with the provisions of the Act or is outside the authority conferred by the Act, he would be seeking to enforce the right of personal liberty conferred on him under article 21 and that would be inhibited by the Presidential order.
That takes me to a consideration of the concept of the rule of law on which so much reliance was placed on behalf of the detenus in order to save their writ petitions from the lethal effect of the Presidential order.
The contention on behalf of the detenus was that their writ petitions were for enforcement of the right of the personal iiberty based on the principle of the rule of law that the executive cannot interfere with the liberty of a person except by authority of law and that was not within the inhibition of the Presidential order.
The question is: what is this principle of the rule of law and does it exist under our Constitution as a distinct and separate constitutional principle, independently and apart from Article 21, so as to be capable of enforcement even when enforcement of Article 21 is suspended by the Presidential order.
The Great Charter of Liberties of England, commonly known as the Magna Carta, was granted under the seal of King John in the meadow called Runnymede on 15th June, 1215.
This was followed within a couple of years by a revised version of the Charter which was issued in the name of Henry III in 1217 and ultimately with slight amendments, another Charter was re issued by Henry III in 1225 and that document has always been accepted as containing the authorised text of Magna Carta.
Whenever reference is made to Magna Carta, it is to the Charter of 1225.
which is also described as "9 Henry III (1225)".
Magna Carta, according to Sir Ivor Jennings symbolises "what we should now call the rule of law, government according to law or constitutional government" which means that all power should come from the law and that "no man, be he king or minister or private person is above the law".
It recognised that "the liberties of England, which means the liberties of all free men depended on the observance of law by King, lord and commoner alike", and "without law there is no liberty".
XXIX contains the famous clause of the Magna Carta which provided that: "No free man shall be taken, or imprisoned, or dispossessed, of his free tenement, or liberties, or free customs, or be outlawed, or exiled, or in any way destroyed; nor will we condemn him, nor will we commit him to prison, excepting by the legal judgment of his peers, or by the laws of the land." Thus for the first time the great principle was enunciated though even before, it was always part of the liberties of the subject that no one shall be imprisoned or deprived of his liberty except by the authority of the law of the land.
The power of the King to arrest a person or to deprive him of his liberty was circumscribed by law.
That is why Bracton said about the middle of the 13th Century " the king himself ought not to 437 under man but under God and under the law, because the law makes A the King.
Therefore, let the King attribute to the law what the law attributes to the King, namely, lordship and power, for there is no king where will governs and not law".
Magna Carta was confirmed again by the successive kings on the insistence of Lords and commons and the rule of law embodied in Magna Calla governed the actions of the King vis a vis his subjects.
But this great principle of liberty was placed in jeopardy in the 17th Century when a claim was made by the King that he had a prerogative right to arrest and detain subject and this prerogative right was necessary for the defence of the Realm.
When the King sought to raise moneys from the subjects without the sanction of the Parliament, it was resisted by Darnel and others and they were on that account committed to prison under the orders of the King.
On the application of these persons, who were so imprisoned, a writ of habea corpus was issued and the return made to it on behalf of the King was that they were imprisoned per speciale mandate Domini Regis warnel 's case).
This return was considered sufficient and the writ was discharged.
The effect of this decision was that King needed no authority of law in order to deprive a subject of his personal liberty.
But the Parliament was quick to nullify this decision by enacting the Petition of Right, 1628 and it reaffirmed the right to personal liberty in section 3 of that Act and declared such a cause of imprisonment to be unlawful.
The principle that the Executive cannot interfere with the liberty of a subject unless such interference is sanctioned by the authority of law was thus restored in its full vigour.
Blackstone in his Commentaries on the Laws of England, vol. 1, 4th ed.
p. 105 stated the principle in these terms: E " the law of England regards, asserts and preserves the personal liberty of individuals.
This personal liberty consists in the power of locomotion, of changing situation, or removing one 's person to whatsoever place one 's own inclination may direct, for imprisonment or restraint, unless by due course of law It cannot ever be abridged at the mere discretion of the magistrate, without the explicit per mission of the laws.
Here again, the language of the Great Charter is, that no free man shall be taken or imprisoned, but by the lawful judgment of his equals, or by the law of the land." (emphasis supplied) Since then, the validity of this principle has never been doubted and the classical statement of it is to be found in the oft quoted passage from the judgment of Lord Atkin in Eshugbayi (Eleko) vs Officer Administering the Government of Nigeria (supra) where the learned Law Lord said: "The Governor acting under the ordinance acts solely under executive powers, and in no sense a Court.
As the. executive he can only act in pursuance of the powers given to him by law.
In accordance with British jurisprudence no member of the executive can interfere with the liberty or 438 property of a British subject except on the condition that he can support the legality of his action before a Court of Justice.
And it is the tradition of British justice that Judges should not shrink from deciding such issues in the face of the executive.
" Since in this country prior to the commencement of the Constitution, we were administering British jurisprudence, this constitutional principle was equally applicable here.
That was the direct result of the binding authority of the decision of the Privy Council in the aforementioned case.
But quite apart from that, the courts in India uniformly accepted this constitutional principle as part of the law of the land.
Vide Secretary of State for India vs Hari Bhanji(1) and Province of Bombay vs Khushaldas Advani(2).
Bose, J., in P. K. Tare vs Emperor(3) quoted with approval the aforesaid passage from the judgment of Lord Atkin and pointed out that before the executive can claim power to override the rights of the subject "it must show that the legislature has empowered it to do so".
The learned Judge also referred to the following passage from the dissenting judgment of Lord Atkin in Liversidge vs Anderson(4) "It has always been one of the pillars of freedom, one of the principles of liberty for which, on recent authority, we are now fighting that the Judges are no respecter of persons and stand between the subject and any attempted encroachments on his liberty by the executive; alert to see that any coercive action is justified in law." (emphasis supplied), and, pointing out that Lord Macmillan and Lord Wright also agreed with this principle, observed that these principles of liberty "to which Lord Atkin refers, apply as much to India as elsewhere".
So also in Vimlabai Deshpande vs Emperor(5) the same two passages, one from the judgment of Lord Atkin in Eshugbayi 's case (supra) and the other from the judgment in Liversidge 's case (supra) were referred to with approval by Bose and Sen, JJ.
It was also accepted by a Division Bench of the Calcutta High Court consisting of Malik and Remfry, JJ.
in Jitendranath Ghosh vs The Chief Secretary to the Government of Bengal( 'i) that " in accordance with British jurisprudence, and with the jurisprudence of British India, no member of the excutive can interefere with the liberty or property of a British subject, or of a foreigner in our land, except on the condition that he can, and, if duly called upon, must support the legality of his action before a court of justice".
The Division Bench pointed out that "the courts can, and in a proper case must consider and determine the question whether there has been a fraud on an Act or an abuse of powers granted by the legislature, Eshugbayi Eleko 's case".
Ameer Ali, A.C.J., and section R. Das, J. also quoted with approval in re : Banwarilal Roy(7) the aforesaid passage from the judgment (1) Mad. 273.
(2) ; (3) A. I. R. (4) (5) A. I. R. (6) I. L. R. at 377.
(7) (48 Cal.
Weekly Notes 766 at 780) 439 of Lord Atkin in Eshugbayi Eleko 's case (supra) and relied on the decision in Jitendranath Ghosh 's case (supra) and particularly the observations from the judgment in that case which I have just reproduced.
These observations clearly show that in our country, even in pre constitution days, the executive was a limited executive, that is, an executive limited by law and it could act only in accordance with law.
B It would be seen from the above discussion that, even prior to the Constitution, the principle of rule of law that the executive cannot act to the prejudice of a person without the authority of law was recognised as part of the law of the land and was uniformly administered by the courts.
It was clearly 'law in force ' and ordinarily, by reason of Article 372, it would have continued to subsist as a distinct and separate principle of law even after the commencement of the Constitution.
But when the Constitution was enacted, some aspects of this principle of rule of law were expressly recognised and given constitutional embodiment in different Articles of the Constitution.
Thereafter they did not remain in the realm of unwritten law.
Article 21 enacted one aspect of the principle of rule of law that executive cannot deprive a person of his life or personal liberty without authority of law and added a requirement that the law which authorises such deprivation must prescribe a procedure.
Another aspect of the principle of rule of law was enacted in clause (1) of Article 31.
namely, that no one shall be deprived of his property save by authority of law.
That is why it was pointed out by Shah, J. in R .C.
Cooper 's case (supra) that "Clauses (1) and (2) of Article 31 subordinate the exercise of the power of the State to the basic concept of the rule of law".
A third aspect was constitutionailsed in various sub clauses of clause (1) of Article 19 inhibiting executive action unsupported by law, which conflicted with the different freedoms guaranteed in these sub clauses.
Then Article 265 recognised and enacted a yet fourth aspect, namely, that no tax shall be levied and collected without authority of law.
Article 19, clause (1), Article 21, Article 31, clause (1) and Article 265 thus embody different aspects of the principle of rule of law.
We are concerned in these appeals only with Article 21 and, therefore, I shall confine my discussion only to that Article.
Now, to my mind, it is clear that when this principle of rule of law that the executive cannot deprive a person of his liberty except by authority of law, is recognised and embodied as a fundamental sight and enacted as such in Article 21, it is difficult to comprehend how it could continue to have a distinct and separate existence, independently and apart from this Article in which it has been given constitutional vesture.
l fail to see how it could continue in force under Article 372 when it is expressly recognized and embodied as a fundamental right in article 21 and finds a place in the express provisions of the Constitution.
Once this principle is recognised and incorporated in the Constitution and forms part of it, it could not have any separate existence apart from the Constitution, unless it were also enacted as a statutory principle by some positive law of the State.
This position 440 indeed become incontrovertible when we notice that, while recognising and adopting this principle of rule of law as a fundamental right, the Constitution has defined its scope and ambit and imposed limitation on it in the shape of Article 359A, clauses (1) and (1A).
When the constitution makers have clearly intended that this right should be subject to the limitation imposed by Article 359, clause (1) and (1A), it would be contrary to all canons of construction to hold that the same right continues to exist independently, but free from the limitation imposed by Article 359, clauses (1) and (1A).
Such a construction would defeat the object of the constitution makers in imposing the limitation under Article 359, clauses (1) and (1A) and make a mockery of that limitation.
The consequence of such a construction would be that, even though a Presidential order is issued under clause (1) of Article 359 suspending the right to move the court for enforcement of the right guaranteed under Article 21, the detenu would be entitled to ignore the Presidential order and challenge the order of the detention on the ground that it is made otherwise, than in accordance with law, which is precisely the thing which is sought to be interdicted by the Presidential order.
The Presidential order would in such case become meaningless and ineffectual.
Can an interpretation be accepted which would reduce to futility Article 359, clause (l) in its application in relation to Article 21 ? Could the constitution makers have intended such a meaning? The only explanation which could be offered on behalf of the detenus was that the object of Article 359, clause (1) is merely to prevent a person from moving the Supreme Court under Article 32 for enforcing the right of personal liberty and it is not intended to effect the enforcement of the right of personal liberty based on the rule of law by moving the High Court under Article 226.
But this explanation is wholly unconvincing.
It is difficult to understand why the constitution makers should have intended to bar only the right to move the Supreme Court under Article 37 in so far as the.
right of personal liberty is concerned.
There would be no point in preventing a citizen from moving the Supreme Court directly under Article 32 for securing his release from illegal detention, while at the same time leaving it open to him to move the High Court for the same relief and then to come to the Supreme Court in appeal, if necessary.
That would be wholly irrational and meaningless Therefore, the only way in which meaning and effect can be given to the Presidential order suspending the enforcement of the right of personal liberty guaranteed under Article 21 is by holding that the principle of rule of law, that the executive cannot interfere with the personal liberty of any person except by authority of law, is enacted in Article 21 and it does not exist as a distinct and separate principle conferring a right of personal liberty, independently and apart from that Article.
Consequently, when the enforcement of the right of personal liberty conferred by Article 21 is suspended by a Presidential order, the detenu cannot circumvent the Presidential order and challenge the legality of his detention by falling back on the supposed right of personal liberty based on the principle of rule of law.
It was also said on behalf of the detenus that under our constitutional set up, the executive is bound to act in accordance with law and 441 this obligation of the executive arises from the very basis of the doctrine of distribution of powers amongst different bodies created by the Constitution as also from the terms of Articles 73, 154 and 256 of the Constitution.
This obligation, contended the detenus, could be enforced against the executive under Article 226 by issue of a writ "for any other purpose".
Now, it is true that under our Constitution, the executive is a limited executive and it is bound to act in accordance with law and cannot disobey it.
If the says that the executive shall be entitled to detain a person only on the fulfillment of certain conditions and according to a specified procedure, it cannot make an order of detention if the prescribed conditions are not fulfilled or the specified procedure is not followed.
The executive is plainly and indubitably subordinated to r the law and it cannot flout the mandate of the law but must act in accordance with it.
The Judicial Committee of the Privy Council pointed out this constitutional position in Eastern Trust Company vs Mckenzie Mann & Co. Ltd.( ') in an appeal from the Supreme Court of Canada: "The non existence of any right to bring the Crown into Court does not give the Crown immunity from all law, or authorize the interference by the Crown with private rights at its own mere will It is the duty of the Crown and of every branch of the Executive to abide by and obey the law.
(emphasis supplied)".
This rule must naturally apply with equal force in our constitutional set up and that was recognised by this Court in Rai Sahib Ram Jawaya Kapur vs The State of Punjab(2) where Mukherjea, J., speaking on behalf of the Court said: "In India, as in England, the executive has to act subject to the control of the legislature" and proceeded to add: " the executive Government are bound to conform not only to the law of the land but also to the provisions of the Constitution " In Bharat Singh 's case (supra) also, this Court pointed oui: "our federal structure is founded on certain fundamental principles: (1) the sovereignty of the people with limited Government authority i.e. the Government must be conducted in accordance with the will of the majority of the people.
The people govern themselves through their representatives, whereas the official agencies of the executive Government possess only such powers as have been conferred upon them by the people; (2) There is distribution of powers between the three organs of the State Legislative, executive and judicial each organ having some check direct or indirect on the other.
and (3) the rule of law which includes judicial review of arbitrary executive action".
The obligation of the executive to act according to law and not to flout or disobey it is, therefore, unexceptionable and cannot be disputed.
But this obligation, in so far as personal liberty is concerned, is expressly recognised and enacted as a constitutional provision inter alia in Article 21 and when the Constitution itself has provided that the enforcement of this obligation may be suspended by a Presidential order, it is difficult to see how the intention of the constitution makers can be allowed to be defeated by holding that this obligation exists independently of article 21 and it can be enforced despite the limitation imposed by the constitutional provision The same reasoning which I (1) (2) [19551 2 section C. R. 225 442 have elaborated in the preceding paragraph would equally apply to repel the present argument.
Before I go to the decided cases, I must refer to one argument which strongly supports the view I am taking.
It is almost conclusive.
It is an argument for which I must express my indebtedness to Prof. P. K. Tripathi.
In an article written on 'Judicial and Legislative Control over the Executive during Martial Law ' and published in the Journal Section of All India Reporter at page 82, Prof. P. K. Tripathi has suggested that considerations of Martial Law may support the conclusion that a Presidential order mentioning Article 21 takes away, wholly and completely, the right of an individual to obtain a writ of habeas corpus challenging the legality of his detention.
I must of course hasten to make it clear that there is no Martial law any where in the territory of India at present and I am referring to it only in order to buttress the conclusion otherwise reached by me.
The concept of Martial law is well known in the British and American jurisprudence.
When a grave emergency arises in which the executive finds itself unable to restore order by employing the ordinary `civilian machinery and it becomes necessary for it to use force, it may declare what is commonly termed 'martial law '.
Martial law means that the executive calls the military to its aid and the military, acting under the general authority of the executive, proceeds to quell violence by violence.
When martial law is in force, it is well settled that the courts cannot issue a writ of habeas corpus or otherwise interfere with the military authorities or the executive to protect the life or liberty of an individual, even if illegal or mala fide action is taken or threatened to be taken by the military authorities or the executive.
To give only one example: In Ireland in John Allen 's case( '), the martial law authorities ordered all persons to deposit their fire arms within twenty four hours with the army authorities on pain of death.
John Allen.
who failed to obey, was arrested and sentenced by the military tribunal, which was, in law, a mere body of army men advising the officer commanding, to death, and the martial law authorities announced the day and date when he was to be executed.
The court was moved on behalf of John Allen on the ground that the order of the military tribunal was invalid, but the court refused to interfere on the theory that when martial law is properly declared, the court will not issue habeas corpus during the period when martial law is in force.
It is the basic characteristic and essence of martial law that during the time that it is in force, the individual cannot enforce his right to life and liberty by resorting to judicial process and the courts cannot issue the writ of habeas corpus or pass any similar orders.
Now, under our Constitution there does not appear to be any express provision conferring power on the executive to declare martial law.
But it is implicit in the text of Article 34 of the Constitution that the Government may declare martial law in any area within the territory of India.
What are the legal implications and consequences of declaration of martial law is not provided any where in the Cons (1) [1921] 2 Irish Reports 241.
443 titution.
It is, therefore, obvious that merely declaring martial law Would not, by itself, deprive the courts of the power to issue the writ of habeas corpus or other process for the protection of the right of the individual to lie and liberty.
In our country, unlike England, the right to life and liberty is secured as a fundamental right and the right to move the Supreme Court for enforcement of this right is also guaranteed as a fundamental right.
Also the power to issue a writ or order in the nature of habeas corpus has been expressly conferred of the High Courts by a constitutional provision, namely, Article 226.
Therefore, the declaration of martial law, which is not even expressly provided in the Constitution, cannot override the provisions of the Article conferring the right to life and liberty as also of Articles 32 and 226 and, unless the right of an individual to move the courts for enforcement of the right to life and liberty can be suspended or taken away by or under an express provisions of the Constitution, the individual would be entitled to enforce the right to life and liberty under Article 32 or Article 226 or by resorting to the ordinary process of law, even during martial law.
That would be contradictory of the basic and essential feature of martial law and make it impossible to impose effective martial law anywhere at any time in the territory of India.
Such a consequence could never have been imagined by the constitution makers.
They could never have intended that the Government should have the power to declare martial law and yet it should be devoid of the legal effect which must inevitably follow when martial law is in force.
Moreover, Article 34 itself presupposes that acts contrary to law may be committed by The military authorities or the executive during the time when martial law is in force and that is why it provides that after the martial law ceases to be in force, Parliament may by law indemnify "any person in the service of the Union or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area".
This provision clearly postulates that during the time that martial law is in force, no judicial process can issue to examine the legality of any act done by the military authorities or the executive in connection with the maintenance or restoration of order.
But, how is this result to be achieved under the Constitution ? The only provision in the constitution which authorises temporary suspension or taking away of the right of an individual to move any court for enforcement of his right to life and liberty is Article 359, clause ( I ) .
If the Presidential order under clause (1) of Article 359 suspending enforcement of the fundamental right under Article 21 were construed not to have the effect of barring an individual from moving the court for impugning the legality of the act of the executive interfering with his life or liberty, on the assumption that in doing so, he is merely enforcing his right to life or personal liberty based on the rule of law.
the result would be that even when and where martial law is in force, courts will continue to have the power to examine the legality of the act of the executive, because, as explained earlier, the mere 444 declaration of martial law does not, under our Constitution, have the effect of taking away that power.
That would be plainily an insufferable situation which would carry the power of courts even beyond that claimed by the United States courts in the case of the ex parte Milligan( ') which case went to the farthest limit and which has for that reason been criticised by great authorities like E. section Corwin and has not been consistently followed even by the United States Supreme Court Vide Moyer vs Peabody(2) and Duncan vs Kohanmeku.(3) There can be no two opinions that during martial law the courts cannot and should not have power to examine the legality of the action of the military authorities or the executive on any ground whatsoever, including the ground of mala fide.
But, if the courts are to be prevented from exercising such power during martial law, that situation call be brought about only by a Presidential order issued under Article 359, clause (1) and in no other way and the Presidential order in so far as it suspends the enforcement of the right of personal liberty conferred under Article 21 must be construed to bar challenge to the legality of detention in any court, including the Supreme Court and the High Courts, whilst the Presidential order is in operation.
I may also in this connection refer to the decision of the House of Lords in Attorney General Y. De Keyser 's Royal Hotel.(4) There, in May 1916, the Crown, purporting to act under the Defence of Realm Consolidation Act, ]914 and the Regulations made thereunder took possession of a hotel for the purpose of Housing the Headquarters ' personnel of the Royal Flying Corps and denied tthe legal right of the owners to compensation.
The owners yielded up possession under protest and without prejudice to their right and by a Petition of Right, they asked for a declaration that they were entitled to compensation under the Defence Act.
The Crown was plainly liable to pay compensation under the Statute, but it sought to justify its action in taking possession of the hotel without payment of compensation, under the sanction of the Royal Prerogative.
Tile question which, therefore, arose for consideration before the House of Lords was whether the Royal Prerogative was available to the Crown for taking possession of the Hotel without compensation, when the statute authorised taking of such possession but on condition on payment of compensation.
The House of Lords unanimously held that, in view of the statutory provision on the subject, the Royal Prerogative to take property without payment of compensation did not subsist and the principle laid down was that where by Statute, the Crown is empowered to do what it might heretofore have done by virtue of its prerogative, it can no longer act under the prerogative and must act under and subject to the conditions imposed by the statute.
Lord Dunedin in the course of his speech observed: "None the less, it is equally certain that if the whole ground of something which could be done by the prerogative is covered by the statute, it is the statute that rules." (1) (1866) 4 Wallace 2.
(2) (3) ; (4) ; 445 Lord Atkinson quoted with approval the following pregnant passage A from the judgment of the Master of the Rolls in the same case .
"Those powers which the executive exercises without Parliamentary authority are comprised under the comprehensive term of the prerogative.
Where, however, Parliament has intervened and has provided by statute for powers, previously within the prerogative, being exercised in a particular manner and subject to the limitations and provisions contained in the statute, they can only be so exercised.
otherwise, what use would there be in imposing limitations, if the Crown could at its pleasure disrgard them and fall back on prerogative ?", and pointed out that the question posed by the Maqster of the Rolls was unanswerable.
The learned Law Lord then proceeded to add: "It is quite obvious that it would be useless and meaning less for the Legislature to impose restrictions and limitations upon, and to attach conditions to, the exercise by the Crown of the powers conferred by a statute, if the Crown were free at its pleasure to disregard these provisions, and by virtue of its prerogative do the very thing the statutes empowered it to do." The other learned Law Lords who participated in the decision also made observations to the same effect in the course of their speeches.
Now it is obvious that the contention of the detenus in the present case is very similar to that advanced on behalf of the Crown in De Keyser 's Royal Hotel 's case (supra).
It almost seems to be an echo of that contention and it must inevitably be answered the same way.
When the right of personal liberty based on the rule of law which existed immediately prior to the commencement of the Constitution has been enacted in the Constitution as a fundamental right in Article 21 with the limitation that, when there is a Proclamation of Emergency, the President may, by order under Article 359, clause (1) suspend its enforcement, it is impossible to imagine how that right of personal liberty based on the rule of law can continue to exist as a distinct and independent right free from the limitation as to enforcement contained in Article 359, clause (1).
It would be meaningless and futile for the constitution makers to have imposed this limitation in regard to enforcement of the right of personal liberty guaranteed by Article 21, if the detenu could, with impunity, disregard such limitation and fall back on the right of personal liberty based on the rule of law.
There is a decision of this Court in Dhirubha Devisingh Gohil vs The State of Bombay(l) which clearly supports this view.
The question which arose for determination in this case was whether the Bombay Taluqdari Tenure Abolition Act, 1949 was a valid piece of legislation.
When this Act was enacted by the Bombay Legislature, (1) [1955] I section C. R. 691.
446 the Government of India Act, 1935 was in force and the validity of this Act was challenged on the ground that it was in violation of section 299, sub section (2) of the Government of India Act, 1934.
Since this Act was included in the Ninth Schedule to the Constitution by the Constitution of India (First Amendment) Act, 1951, the State con tended that by reason of Article 31 B, this Act was immune from attack of the kind put forward on behalf of the petitioner.
article 31 1 provides inter alia that none of the Acts specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void or ever to have become void on the ground that such act or provision is inconsistent with or takes away or abridges ally of the right conferred by any provisions of Part III.
The petitioner disputed the applicability of article 31 B on the ground that the protection under that article was confined only to a challenge based on the provisions of Part III of the Constitution and did not extend to a challenge.
based on violation of section 299, sub section
(2) of the Government of India Act, 1935.
The petitioner relied on the words " is inconsistent with or takes away or abridges any rights conferred by any provisions" of Part III and contended that inconsistency with or taking away or abridgement of the right conferred by section 299, sub section
(2) of the Government of India Act, 1935 was not within the protection of Art 31 B.
This contention of the petitioner was negatived and it was held by this Court speaking through Jagannatha Das, J.: "When Article 31 B protects is not a mere "contravention of the provisions" of Part III of the Constitution but an attack on the grounds that the impugned Act is "inconsistent with or takes away or abridges any of the rights conferred by any provisions of this Part.
" one of the rights secured to a person by Part III of the Constitution is a right that his property shall be acquired only for public purposes and under a 'law authorising such acquisition and providing for compensation which is either fixed by the law itself or regulated by principles specified by the law.
That is also the very right which was previously secured to the person under section 299 of the Government of India Act.
The challenge now made to the validity of the impugned Act is based on the alleged violation of that right." '7 But it is urged, that even so, article 31 B protects only the violation of the fundamental right in so far as "it was conferred by Part III of the Constitution" and that this right cannot be said to have been "conferred" by the Constitution.
We cannot agree with this contention.
This is clearly a case where the concerned right which was secured under section 299 of the Government of India Act in the form of a fetter on the competency of the Legislature and which in substance was a fundamental right, was lifted into the formal category of a fundamental right along with other fundamental rights recognised in the present Constitution.
There is therefore nothing inappropriate in referring to this right which was pre existing, along with the other fundamental rights for the first time secured by this Constitution, when grouping them 447 together, as fundamental rights "conferred" by the Constitution." This Court held that when Article 31 B protected the Act against attack on the ground that the Act is "inconsistent with or takes away or abridges any of the rights conferred by any provisions of "Part III, the protection extended to giving immunity against violation of the 8 right secured by section 299, subsection (2) of the Government of India, 1935 because that was the very right lifted into the category of fundamental right and enacted as Article 31, clause (2) of the Constitution and it could accordingly with appropriateness, be referred to as the right conferred by Article 31, clause (2).
On the parity of reasoning, it may be said that the right based on the principle of rule of law that no one shall be deprived of his life or personal liberty except by authority of law, which was a pre existing right, was lifted into the category of fundamental right and enacted as Article 21 and hence it became a fundamental right conferred by Article 21 and ceased to have any distinct and separate existence.
The maxim 'expressum facit cessare tacitum ' that is what is expressed makes what is silent cease, would also clearly be applicable in the present case.
This maxim is indeed a principle of logic and common sense and not merely a technical rule of construction.
It was applied in the construction of a constitutional provision in Shankara Rao Badami vs State of Mysore(1).
The argument which was advanced in that case was that the existence of public purpose and the obligation to pay compensation were necessary concomitants of compulsory acquisition of private property and so the term 'acquisition ' in Entry 36 of List II of the Seventh Schedule to the Constitution must be construed as importing by necessary impliction the two conditions of public purpose and payment of adequate compensation, and consequently, the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1955, which provided for acquisition of the rights of the inamdars in inam estates in Mysore State without payment of just and adequate compensation was beyond the legislative competence of the State Legislature.
This argument was rejected on the ground that the limitations of public purpose and payment of compensation being expressly provided for as conditions of acquisition in Article 31 (2), there was no room for implying either of these limitations in the interpretation of the term 'acquisition ' in Entry 36 of List II.
Ramaswamy, J., speaking on behalf of the Court observed G "It is true that under the Common law of eminent do main as recognised in Anglo Saxon jurisprudence the State cannot take the property of its subject unless such property is required for a public purpose and without compensating the owner for its loss.
But when these limitations are expressly provided for in Article 32(2) and it is further enact cd that no law shall be made which takes away or abridges (1) ; 448 these safeguards, and any such law, if made, shall be void, there can be no room for implication, and the words 'acquisition of property ' in entry 36 must be understood in their natural sense of the act of acquiring property, without importing into the phrase an obligation to pay compensation or a condition as to the existence of a public purpose.
In other words, it is not correct to treat the obligation to pay compensation as implicit in the legislative entry 33 of List I or legislative entry 36 of List II for it is separately and expressly provided for in Article 31(2).
The well known maxim expresum fact cessare tacitum is indeed a principle of logic and commonsense and not merely a technical rule of construction.
The express provision in Article 31 (2) that a law of acquisition in order to be valid must provide for compensation will, therefore, necessarily exclude all suggestion of an implied obligation to provide for compensation sought to be imported into the meaning of the word "acquisition" in entry 36 of List II.
In the face of the express provision of Article 31(2), there remains no room for reading any such implication in the legislative heads.
" Similarly, in the present case, on an application of the maxim expressum facit cessare tacitum, the express provision in Article 21 that no person shall be deprived of his life or personal liberty except according to procedure prescribed by law will necessarily exclude a provision to the same effect to be gathered or implied from the other provisions of the Constitution.
I find myself fortified in this conclusion by the view taken on a similar question under the Irish Constitution which also contains a catena of articles conferring fundamental rights Kelly in his book one, 'Fundamental Rights in the Irish Law and Constitution ' points out "that the various fundamental rights which were previously notionally present in the common law have been subsumed in and replaced by the written guarantees" and, therefore.
, these rights cannot be found elsewhere than in the Constitution.
The decision of the High Court of Justice in Ireland in 'State (Walsh and others) vs Lennon and others"(1) has also adopted the same view.
The petitioners in this case, who were detained in Arbour Hill Military Detention Barracks awaiting trial on a charge of murder before a Military Court established under Emergency Powers (No. 41) order, 1940, made an application to the High Court for an order of habeas corpus directed to the Governor of the Detention Barracks in which they were held and for an order of prohibition directed to the President and members of the Military Court before whom it was ordered by Emergency Powers (No. 41F) order, 1941 that they should be tried.
The application inter alia challenged the validity of the Emergency Powers (No. 41 F) order, 1941 on the ground that it was ultra vires the Government, as it directed that the Military Court, which was to try the petitioners.
should try them together and so precluded the Court from exercising its discretion and control over its own procedure and was thus violative of the right of a citizen to insist that he shall not be (1) 1942 Irish Reports 112.
449 tried on a criminal charge save in due course of law and was, also in A conflict with the right of a citizen to personal liberty.
The right of personal liberty was guaranteed by Article 40, section 4, sub section (1) of the Constitution, while the right of a citizen charged with a criminal offence to insist that he shall not be tried save in due course of law was to be found in article 38, section 1.
The respondents relied on Article 28, section 3, sub section (3) of The Constitution which provided: "Nothing in this Constitution shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be For the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion or to nulify any act done or purported to be done in pursuance of any such law." and contended that by reason of this provision, the Emergency Powers (No. 41 F) Order, 1941 was protected from challenge on the ground of contravention of Article 38, section 1 and Article 40, section 4, sub section ( 1 ) of the Constitution.
This contention clearly had the effect of putting the petitioners out of court and" therefore, they sought to get round this difficulty by arguing that the constitutional rights, which they claimed to have been infringed were derived not from the written constitution, but from the Common Law, and consequently Article 28, section 3, sub section (3) of the Constitution did not stand in their way.
This argument, which was very similar to the present argument advanced before us, was unhesitatingly rejected by all the three judges who took part in the decision.
Maguire J. said: "The contention is that the constitutional principles which assure to a citizen his personal liberty, his right to resort to this Court for an order of habeas corpus, his right that he shall not be tried on a criminal charge save in due course of law, have as their source the Common Law, and exist side by side with these rights in the written Constitution.
In support of this contention reliance is placed on the decision of the Supreme Court in Burke 's Case , particularly on the passage in the judgment of Murnaghan J. at p. 171, where he says 'certain constitutional principles are stated in the Constitution but many other important constitutional principles have been accepted as existing in the law then in force. ' " I do not find in the judgment of Murnaghan J.
Or else where in the judgments in that case any basis for the contention that these rights are to be found in a body of principles which exist side by side with the written Constitution having their source in the Common Law, and of equal validity with the principles stated in the Constitution, and which on the argument here, would have the added virtue that they are uncontrolled by article 28, section 3 sub section 3.
The constitutional rights relied upon in this case find clear expression in Article 40 and 38 of the Constitution.
In my view they cannot be found elsewhere than in the Constitution.
The advantages of a written Constitution are manifest.
Such a Constitution can, and our Constitution does, give 31 833SCI/76 450 rights such as these definite and clear expression.
Our Constitution can, and does, protect them against being whittled away save with great difficulty.
The framers of the Constitution have provided that, after the passage of a limited time, many, though not all of the rights which it gives are put beyond the reach of interference by ordinary law.
The framers have however, deliberately inserted article 28, section 3, sub section 3, which is clearly designed to prevent the Courts from invoking anything in the Constitution to in validate enactments passed, or to nullify acts done, or which purport to be done, in pursuance of Acts passed for securing the public safety or the preservation of the State in time of war.
" Gavan Duffy, J. also observed to the same effect: "The applicants seek, in the alternative, to base their claims to habeas corpus and prohibition upon antecedent rights of personal liberty and regular trial at Common Law; but, whether or not the imminent Common Law of Ireland needed generally any article 50 (containing the laws in force) to retain its vigour, the particular Common Law principles here invoked must both, in my opinion, of necessity have merged in the express provisions declaring how the two corresponding rights are to be in force under the new polity established by An Bunreacht." And so did Martin Maguire, J. when he said: "It is argued, in the alternative, that, apart from the Constitution and existing side by side with it,, there is a body of constitutional law, founded on Common Law, and comprising the same constitutional rights which the prosecutors seek to assert, and in respect of which they demand the relief claimed in these proceedings.
This argument involves the propositions that the State has two Constitutions, the one enacted by the people, written and defined the other un written and undefined, and that the latter may be invoked, or called in aid, to the extent even of defeating the clear terms of the Constitution where a conflict real or apparent is alleged between them.
There is no authority for these propositions.
I am unable to accept this argument.
" On this view, all the three judges of the High Court held that the Emergency Powers (No. 41 F) Order" 1941 was immune from challenge by reason of Article 28, section 3, sub section (3) of the Constitution.
This decision was taken in appeal and affirmed by the Supreme Court, but this point about the continuance of the common law rights side by side in the constitution, was not examined since it was obvious that the Emergency Powers (No. 41 F) order, 1941 could not be set at naught on the ground of repugnancy to any supposed Common Law rights.
It will be seen that there is a close analogy between this decision of the High Court and the present case 451 and the observations of the three judges quoted above are directly applicable here.
The detenus, however, strongly relied on the decisions of this court in Bharat Singh 's case (supra), Ibrahim & Co. 's case (supra) Bennet Coleman & Co. 's case (supra) and Shree Meenakshi Mills ' case (supra) in support of their contention that the principle of rule of law that the executive cannot act to the prejudice of a person except by authority of law continues to exist as a distinct and independent principle unaffected inter alia by the enactment of Article 21.
I have already referred to these decisions earlier and it will be evident from what l have said, that these decisions do not lay down any such proposition as is contended for on behalf of the detenus.
What these decisions say is only this, namely, that Article 358 protects against challenge under Article 19 only such executive action ac is taken under lawful authority and if any executive action is taken without authority of law or.
in pursuance OF a law which is void, it will not he protected from challenge under Article 19 by Article 353 and it will be void to the extent to which it conflicts with Article 19.
These decisions, properly read, do not support the thesis put forward on behalf of the detenus.
The detenus then relied on the decision of this Court in Bidi Supply Co. vs Union of India.(1) There, an omnibus order was made under section 5, sub section (7A) of the Income Tax Act transferring cases of the petitioner form one place to another.
the petitioner challenged this order as being outside `the power conferred under section 5, sub section (7A) and hence violative of the fundamental rights guaranteed to him by Articles 14, 19(1)(if) and (b) and 31 of the Constitution.
This Court held that the omnibus order made in this case was not contemplated or sanctioned by sub section (7A) of section 5 and.
therefore, the petitioner was still entitled to the benefit of the provisions of sub sections (1) and (2) of section 64 and since the Income Tax authorities had by an executive order, unsupported by law, picked out the petitioner for discriminatory treatment there was violation OB the equality clause of the Constitution and hence the petitioner was entitled to relief under Article 32 of the Constitution setting aside the impugned order.
S.R. Das, C.J., speaking on behalf of the Court, observed: "As said by Lord Aktin in Eshugbayi Eleko 's case the executive can only Act in pursuance of the powers given to it by law and it cannot interfere with the liberty, property and rights of the subject except on the condition that if can support the legality of its action before the Court.
were there was no such order of transfer as is contemplated or sanctioned by subsection (7A) of section 5 and, therefore.
the present assessee still has the right, along with all other Bidi merchants carrying on business in Calcutta to have his assessment proceedings before the Income tax: officer of the. area in which his place of business is situate.
The income tax authorities have by an executive order, unsupported by (1) [1156] section C. R. 267.
452 law, picked out this petitioner and transferred all his cases by an omnibus order unlimited in point of time." (emphasis supplied).
and Since the action of the Income tax authorities was contrary to sub sections (1) and (2) of section 64, the impugned order was held to be bad.
Hence it will be noticed that the impugned order operated to the prejudice of the petitioner by affecting his rights under section (1) and (2) of Section 64 but it did not affect any of his rights under Article 19 or Article 21 or clause Cl) of Article 31 and therefore, the principle of rule of law that the executive cannot act to the prejudice of a person without authority of law could by legitimately invoked.
It continued to be in law in force to the extent to which it was not recognised and enacted in any provision of the Constitution.
The next decision to which I must refer in this connection is Bishan Das & Ors vs The State of Punjab.
This was a petition under Article 32 of the Constitution and the action of the officers of the State Government impugned in this case was forcible dispossession of the petitioners of properties which were in their management and possession.
The challenge to the impugned action of the officers of the State Government was based on violation of the fundamental right guaranteed under clause (1) of Article 31.
This Court upheld the challenge and struck down the impugned action as being without the authority of law and while doing so.
made the following observations which were strongly relied onp on behalf of the detenus: "Before we part with this case, we feel it our duty to say that the executive action taken in this case by the State and its officers is destructive of basic principle of the rule of law the action of the Government in taking the law into their hands and dispossession the petitioners by the display of force, exhibits a callous disregard of the normal requirements of the rule of law We have here a highly discriminatory and autocratic act which deprives a person of the possession of property without reference to any law or legal authority".
(emphasis supplied).
These observations Made in the context of a petition for enforcement of the fundamental right under Article 31.
clause (1) clearly show that this Court regarded the principle of rule of law that no person shall be deprived of his property "without reference to any law or legal authority '" as embodied in Article 31, clause (1) and did not rely upon this principle of rule of law as a distinct and independent principle apart from Article 31, clause (1): otherwise the petition under Article 32 would not have been maintainable and this Court could not have granted relief.
The last decision to which I must refer is the decision of this Court in State of Bihar vs Kameshwar Prasad Verma.(2) That was a case arising out of a petition for a writ of habeas corpus filed under.
Article 226 for release of one Bipat Gope from illegal detention.
This Court held that the State Government had failed to show under what lawful authority Bipar had been re arrested and in the absence of such lawful authority, the detention was illegal.
Kapur, J., speaking on behalf of the Court referred with approval to the observations of Lord Atkin (1) ; (1) ; 453 in Eshugbayi Eleko 's case (supra) and pointed out: "It is the same A jurisprudence which has been adopted in this country on the basis of which the courts of this country exercise jurisdiction".
These observations were relied upon on behalf of the detenus to contend that the principle of rule of law in Eshugbayi Eleko 's case (supra) was held by this Court to have been adopted in this country and it must, there fore, be enforced independently of Article 21.
But I do not think that is the elect of these observations.
What Kapur, J., said was only this, namely that the principle of rule of law in Eshugbayi Eleko 's case (supra) had been adopted in this country.
He did not make it clear how it had been adopted nor did he say that it had been adopted as a distinct and independent principle apart from the fundamental rights.
There can be no doubt that the principle in Eshogbayi Eleko 's case (Supra) had been adopted in this country in Article 21 to the extent to which it protects personal liberty.
I will, therefore, be seen that there is no decision of this Court which says that there is a right of personal liberty based on the rule of law distinct and independent from that guaranteed by Article 21.
I must now turn to the decision of this Court in Makhan Singh vs State of Punjab (supra) on which very strong reliance was placed on behalf of the detenus.
That was a decision given in a batch of twenty six appeals from the decisions of the High Courts of Bombay and Punjab.
The appellants in these six appeals were detained respectively by the Punjab and the Maharashtra State Governments under Rule 30(i)(b) of the Defence of India Rules made by the Central Government in exercise of the powers conferred on it by section 3 of the Defence of India ordinance, 1962.
They applied to the Punjab and the Bombay High Courts respectively under section 491(1) (b) of the Code of Criminal Procedure and alleged that they had been improperly and illegally detained.
Their contention was that section 3(2)(15)(i) and section 40 of the Defence of India Act, 1962 which replaced the Defence of India ordinance and Rule 30(l)(b) under which they were detained were constitutionally invalid because they contravened their fundamental rights under articles 14, 21 and 22(,4) (5) and (7) of the Constitution and so they claimed that an order should be passed in their favour directing the respective State Governments to set them at liberty There was in operation at that time a Proclamation of Emergency dated 26th October, 1962 issued by the President under article :352, clause (1 ) on account of the Chinese aggression.
The President had also issued an order dated 3rd November, 1962 under article 359, clause (1) suspending the right of any person to move any court for the enforcement of the rights conferred by articles 21 and 22 "if such person has been deprived of any ,such rights under the Defence of India ordinance, 1962 (4 of 1962) or any rule or order made thereunder.
" The contention of the State Governments based on this Presidential order was and that contention found favour with both High Courts that the Presidential order created a bar which precluded the appellants from maintaining the petitions under section 491 (1)(b) of the Code of criminal Procedure.
On this contention.
two questions arose for determination before this Court.
The first was as to what was the true scope and effect of the Presidential order and the second was whether the bar created by the Presidential order 454 operated in respect of applications made by the appellants under section 491(1) (b) of the Code of Criminal Procedure.
This Court in a majority judgment delivered by Gajendragadkar, J., analysed the pro visions of article 359, clause (1) and held that the words "any court" in that Article must be given their plain grammatical meaning and must be construed to mean any court of competent jurisdiction which would include the Supreme Court and the High Courts before which the specified rights can be enforced by the citizens".
The majority judgment then proceeded to add: "The sweep of article 359(1) and the Presidential order issued under it is thus wide enough to include all claims made by citizens in any court of competent jurisdiction when lt is shown that the said claims cannot be effectively adjudicated upon without examining the question as to whether the citizen is, in substance, seeking to enforce any of the said specified fundamental right" Having thus disposed of the first question, the majority judgment went on to consider the second question and after analysing the nature of the proceedings under section 491(1)(b) of the Code of Criminal Procedure, held that the prohibition contained in article 359, clause (1) and the Presidential order would apply "as much to proceedings under section 491 ( 1 ) (b) as to those under article 226(1) and article 32 (1)".
It was obvious that on this view, the petitions under section 491(1)(b) were not maintainable" since the only ground on which they challenged the orders of detention was that the provisions of section 3(2)(15)(i) as well as rule 30(l)(b) were invalid as offending against Articles 14, 21 and 22 and in the circumstances it was not necessary for the.
; Court to express any opinion on the questions to what were the pleas available to a citizen under the Presidential order in challenging the legality or propriety of his detention.
Still however, the majority judgment proceeded to give its opinion on this question in the following terms: It still remains to consider what are the pleas which are now open to the citizens to take ill challenging the legality or the propriety of their detentions either under section 491(1) (b) of the Code or article 226(1) of the Constitution.
We have already seen that the right to move any court which is suspended by article 359(1 ) and the Presidential order issued under it is the right for the enforcement of such of the lights conferred by Part III as may be mentioned in the order.
If in challenging the validity of his detention order, the detenu is pleading any right outside the rights specified in the order, his right to move any court in that behalf` is not suspended, because it is outside article 359(l) and consequently outside the Presidential order itself.
Let us take a case where a detenu has been detained in violation of the mandatory provisions of the Act.
In such a case, it may be open to the detenu to contend that his detention is illegal for the reason that the mandatory provisions of the Act have been contravened.
Such a plea is outside article 359(1) and the right of the detenu to move for his release on such a ground cannot be affected by the Presidential order.
455 Take also a case where the detenu moves the Court for A a writ of habeas corpus on the ground that his detention has been ordered malafide.
It is hardly necessary to emphasise that the exercise of a power malafide is wholly outside the scope of the Act conferring the power and can always be successfully challenged.
It is true that a mere allegation that the detention is malafide would not be enough the detenu will have to prove the malafides.
But if the malafides are alleged, the detenu cannot be precluded from substantiating his plea on the ground of the bar created by article 359(1) and the Presidential order.
That is another kind of plea which is outside the purview of article 359(1).
We ought to add that these categories of pleas have been mentioned by us by way of illustration" and so, they should not be read as exhausting all the pleas which do not fall within the purview of the Presidential order.
" The strongest reliance was placed on behalf of the detenus on these observations in the majority judgment.
It was contended on behalf of the detenus that the observations clearly showed that if an order of detention is challenged on the ground that it is in violation of the mandatory provisions of the Act or is made malafide, such a plea would be outside article 359, clause (1) and would not be barred by a Presidential order specifying article 21.
The detenus, in support of this contention leaned heavily on the words 'such a plea is outside article 359(1) and the right of the detenu to move for his release on such a ground cannot be affected by the Presidential order", and "that is another kind of plea which is outside the purview of article 359(,1)" occurring in these observations and urged that such a plea was held to be permissible because it was outside the purview of Art 359, clause (1) and not because it was outside the terms of the particular Presidential order.
Now, at first blush, these observations do seem to support the contention of the detenus.
But there are two very good reasons why I do not think these observations can be of much help in the determination of the question before us.
In the first place, the questions to what were the other pleas available to a detenu in challenging the legality or propriety of his detention, despite the Presidential order dated 3rd November, 1962, was not in issue before the Court and did not fall to be decided and the aforesaid observations made by the Court on this question were, therefore, clearly obiter.
These observations would undoubtedly be entitled to great weight, but, as pointed out by this Court in H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors.
vs Union of India(1) "an obiter cannot take the place of the ratio.
Judges are not oracles".
These observations do not, therefore, have any binding effect and they cannot be regarded as conclusive on the point.
Moreover, it must be remembered that when we are considering the observations of a high judicial authority like this Court, the greatest possible care must be taken to relate the observations of a judge to the precise issues before him (1) ; 456 and to confine such observations, even though expressed in broad terms, in the general compass of the question before him" unless the makes it clear that he intended his remarks to have a wider ambit.
It is not possible for judges always to express their judgments so as to exclude entirely the risk that in some subsequent case their language may be misapplied and any attempt at such perfection of expression can only lead to the opposite result of uncertainty and even obscurity as regard the case in hand.
It may be noted that, in this case the Presidential order dated 3rd November, 1962, which came up for consideration before the Court,, was a conditional order, inasmuch as it operated to suspend the right of any person to move any court for enforcement of the rights conferred by Articles 21 and 22, only if he was deprived of any such rights under the Defence of India Act, 1962 or any rule or order made under it.
It was in the context of this Presidential order that the aforesaid observations were made by this Court.
It is obvious that, on the terms of this Presidential order, if a person was deprived of his personal liberty otherwise than in accordance with the provisions of the Defence of India Act, 1962 or any rule or order made under it, his right to move the Court for enforcement of his right of personal liberty under Article 21 would not be barred by the Presidential order.
That is why it was said in this case, that, if the detention is illegal for the reason that the mandatory provisions of the Defence of India Act,, 1962 or any rule or order made thereunder have been contravened or that the detention has been ordered mala fide, such a plea would not fall within the terms of the Presidential order and hence it would be outside the purview of article 359, clause (1).
That is the only way in which these observations can and must be understood.
It was pointed out by the House of Lords as far back as 1901 in Queen vs Leatham(l) "Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be exposition of the whole law, but are governed and qualified by the particular facts in which such expressions are to be found.
" This Court had also occasion to point out in the State of Orissa vs Sudhansu Sekhar Misra( ') that the observations in a judgment must be "only in the context of the question that arose for decision.
" It would not be right, as observed by this Court in Madhav Rao vs Union of India (supra), "to regard a word, a clause or a sentence occurring in a judgment of this Court, divorced from its context, as containing a full exposition on the law on a question" particularly "when the question did not even fall to be answered in that judgment".
Here, in the present case, unlike the Presidential order dated 3rd November, 1962, which was a conditional order, the Presidential order dated 27th June, 1975 is, on the face of it.
an unconditional one and as such there is a vital difference ill effect between the Presidential order dated 3rd November, 1962 and the present Presidential order.
In fact, it appears that because of the interpretation and effect of the Presidential Order dated 3rd November, ]962 given in this case and the subsequent cases following it, the President deliberately and advisedly departed from the earlier precedent and (1) ; (2) ; 457 made the present Presidential order an unconditional one.
These observations made in the context of a conditional Presidential order cannot, therefore, be read as laying down that a plea that an order of detention is not in accordance with the provisions of law or is mala fide is outside the purview of article 359" clause (1) and would not be barred even by an unconditional Presidential order such as the one we have in the present case.
This distinguishing feature of Makhan Singh 's case.
(supra) was.
in fact highlighted and emphasised in the subsequent decision of this Court in A. Nambiar vs Chief Secretary.(1).
There Gajendragadkar, C.J., stressed the conditional nature of the Presidential order dated 3rd November, 1962 and indicated that it was in view of the last clause of the Presidential Order, that the aforesaid observations were made by this Court in Makhan Singh 's case.
The learned Chief Justice explained the position in the following words .
"In Makhan Singh Tarsikka vs The State of Punjab a Special Bench of this Court has had occasion to consider the effect of the Proclamation of Emergency issued by the President and the Presidential order with which we are concerned in the present writ petitions. this Court took the precaution of pointing out that as a result of the issue of the 1 Proclamation of Emergency and the Presidential order, a citizen would not be deprived of his right to move the appropriate court for a writ of habeas corpus on the ground that his detention has been ordered mala fide.
Similarly, it was pointed out that if a detenu contends that the operative provisions of the Defence of India ordinance under which he is detained suffer from the vice of excessive delegation, the plea thus raised by the detenu cannot, at the threshold, be said to be barred by the Presidential order, because, in terms, it is not a plea which is relateable to the fundamental rights specified in the said order.
Let us refer to two other pleas which may not fall within the purview of the Presidential Order.
If the detenu, who is detained under an order passed under Rule 30(1) (b), contends that the said order has been passed by a delegate outside the authority conferred on him by the appropriate Government under section 40 of the Defence of India Act, or it has been exercised, inconsistently with the conditions prescribed in that behalf.
, a preliminary bar against the competence or the detenu 's petition cannot be raised under the Presidential order, because the last clause of the Presidential order would not cover such a petition, and there is no doubt that unless the case falls under the last clause of the Presidential order, the bar created by it cannot be successfully invoked against cl decided.
Therefore, our conclusion is that the learned Additional Solicitor General is not justified in contending that the present petitions are incompetent under article 32 because of the Presidential Order.
The petitioners contend that the relevant Rule under which the (1) 458 impugned orders of detention have been passed, is invalid on grounds other than those based on articles 14, 19, 21 and 22" and if that plea is well founded, the last clause of the presidential Order is not satisfied and the bar created by it suspending the citizens ' fundamental rights under Articles 14, 21 and 22 cannot be pressed into service." These observations, and particularly the portions underlined by me, clearly show that it was because of the conditional nature of the Presidential Order that the view was taken that if a detenue contents that the order of detention has been made mala fide or that it has been passed by a delegate outside the authority conferred on him under the Act or that it has been exercised inconsistently with the conditions prescribed in that behalf", that is, it is not in accordance with the provisions of law, such a plea would not be barred at the threshold by the Presidential order.
The conditional nature of the Presidential order was also stressed by this Court in State of Maharashtra vs Prabhakar Pandurang Sangzgiri(1) where this Court, speaking through Subba Rao, J., pointed out that in view of the last cause of the Presidential order, "if a person was deprived of his personal liberty nor under the Act or a rule or order made thereunder, but in contravention thereof, his right to move the said courts", that is the High Court and the Supreme Court "in that regard would not be suspended '.
lt was then contended on behalf of the detenus that in any event the right of personal liberty is a natural right which inheres in every one from the moment of his birth and this right can always be enforced by the detenus under article 226 by a writ "for any other purpose" and the Presidential order does not operate as a bar.
When, in answer to this contention the Union of India and the State Governments relied on High Holiness Kesavananda Bharati Sripadagalavaru vs State of.
Kerala,(2) the detenus urged that Kesavanand Bharati 's case (supra) did not say that there is no natural right inhering in a person, but all that it said was that natural rights do not stand in the way of amendment of the Constitution.
Kesavanand Bharati 's case (supra) according to the detenus, did not negative the existence and enforceability of natural rights.
But this contention of the detenus is clearly belied by the observation from the judgments of at last seven of the judges who decided Kesavanand Bharati 's case (supra).
Ray, C. J. said at pages 419 of the Report: "Fundamental rights are conferred by the Constitution.
There are no natural rights under our Constitution.
" Palekar, J., also said at page 594 of the Report: "The so called natural rights have in course of time lost their utility as such in the fast changing world and are recognised in modern political constitutions only to the extent that organised society is able to respect them." So also Khanna, J. said at page 703 of the Report: " the later writers have generally taken the view that natural rights have no proper place outside the constitution and the laws of the State.
It is up to the State to incorporate natural rights, or such (1) [1966] I section C. R. 702.
(2) [1963] Supp.
section C. R. 1.
459 of them as are deemed essential, and subject to such limitations as are considered appropriate, in the constitution of the laws made by it.
But independently of the constitution and the laws of the State, natural rights can have no legal sanction and cannot be enforced.
" Mathew, J., too, spoke to the same effect when he said at page 814 of the Report: 'Although called 'rights ', they are not per se enforceable in courts unless recognised by the positive law of a State".
Beg, J. also discounted the theory of natural rights at pages 881 and 882 of the Report and Dwivedi, J. Observed at page 910 of the Report that to regard fundamental rights as natural rights overlooks the fact that some of These rights did not exist before the Constitution and "were begotten by our specific national experience".
Chandrachud, J., was equally emphatic in saying at pages 975 and 976 of the Report that "There is intrinsic evidence in Part III of the Constitution to show that the theory.
Of natural rights was not recognised by our constitution makers The natural theory stands, by and large, repudiated today The belief is now widely held that natural rights have no other than political value".
It may be pointed out that Subba Rao, J., also in l.
C. GolakNath & Ors vs Slate of Punjab(1) at page 789 of the Report rejected the theory of natural rights independent and apart from fundamental rights in Part III.
He said: '.
Fundamental rights are the modern name for what have been traditionally known as natural rights".
There is, therefore, no scope for the contention that even if the enforcement of the Fundamental right conferred by Article 21 is suspended by the Presidential order, the detenu can still enforce a supposed natural right of personal liberty in a court of law.
I may also refer to one other argument advanced on behalf of the detenus that in any event the right not to be deprived of personal liberty except by authority of law is a statutory right which can be enforced despite the Presidential order suspending enforcement of the right of personal liberty guaranteed under Article 21.
I agree and there can be no doubt about it that if the positive law of the State decrees that no person shall be deprived of his personal liberty except according to the procedure prescribed by law, the enforcement of such statutory right would not be barred by the Presidential order.
But 1 am afraid, the premise on which this argument is founded is incorrect.
There is no legislation in which country which confers the right of personal liberty by providing that there shall be no deprivation of it except in accordance with law.
On the contrary, section 18 of the enacts that no person in respect of whom an order of detention is made or purported to be made under section 3 shall have any right to personal liberty by virtue of natural law or common law.
if any.
The Indian Panel Code in section 342 undoubtedly makes it penal to wrongfully confine any person and the offence of wrongful confinement postulates that no one shall be deprived of his personal liberty except by authority of law.
But it can hardly be said on that acount that section 342 of the Indian Penal Code confers a right of personal liberty.
The utmost that can be said is that this section proceeds on a recognition of the right of personal (1) ; 460 liberty enacted in Article 21 and makes it an offence to wrongfully confine a person in breach of the right conferred by that constitutional provision.
Then I must refer to one other contention of the detenus and that is that the remedy under Article 226 can be invoked not only for the purpose of enforcement of the fundamental rights, but also "for any other purpose".
These words greatly enlarge the jurisdiction of the High Court and the High Court can issue a writ of habeas corpus if it finds that the detention of a person is illegal.
It is not necessary for this purpose that the court should be moved by the detenu.
It is sufficient if it is moved by any person affected by the order of detention.
When it is so moved and it examines the legality of the order of detention, it does not enforce the right of personal liberty of the detenu, but it merely keeps the executive within the bounds of law and enforces the principle of legality.
The remedy of habeas corpus is a remedy in public law and hence it cannot be excluded by suspension of enforcement of the right of an individual.
This contention of the detenus does appear, at first sight, to be quite attractive, but I am afraid, it is not well founded.
It fails to take into account the substance of the matter.
When an applicant moves the High Court for a writ of habeas corpus, he challenges the legality of the order of detention on the ground that it is not in accordance with law.
That challenge proceeds on the basis that the executive cannot deprive a person of his personal liberty except by authority of law and that is why the order of detention is bad.
But once it is held that the obligation of the executive not to deprive a person of his personal liberty except in accordance with law is to be found only in Article 21 and no where else, it must follow necessarily that, in challenging the legality of the detention, what the applicant claims is that there is infraction by the executive of the right of persona] liberty conferred under Article 21 and that immediately attracts the applicability of the Presidential order.
If we look at the substance of the matter and analyse what is it exactly that the High Court is invited to do, it will be clear that what the applicant wants the High Court to do is to examine whether the executive has carried out the obligation imposed upon it by Article 21 not to deprive a person of his persona] liberty except according to the procedure prescribed by law and if it finds that the executive has failed to comply with this obligation, then to strike down the order of detention.
That is precisely what is not permitted to be done by the Presidential order, for it plainly amounts to enforcement of the right of personal liberty conferred by Article 21.
The words "any other purpose" cannot be availed of for the purpose of circumventing the constitutional inhibition flowing from the Presidential order.
It is necessary to point out that article 359 clause (1) and the Presidential order issued under it do not have the effect of making unlawful actions of the executive lawful.
There can be no doubt that the executive is bound to act in accordance with law and cannot that the command of law.
The executive cannot also act to the detriment of a person without authority of law or except in accordance with law.
If the executive takes any action which is not supported by law or is 461 contrary to law, its action would be unlawful.
This unlawful characteristic of the action is not obliterated by the Presidential order issued under article 359 clause (1).
Article 359, clause (1) and the Presidential Order issued under it do not give any power to the executive to alter or suspend or flout the law nor do they enlarge the power of the executive so as to permit it to go beyond what is sanctioned by law They merely suspend the right of a person to move any court for redress against the unlawful action of the executive, if his claim involves enforcement of any of the fundamental rights specified in the Presidential order.
This is a position akin in some respects to that in the United States when the privilege of the writ of habeas corpus is suspended under article l, Placitium 9, clause (2) of the United States Constitution and in Great Britain when the Habeas Corpus Suspension Act is passed.
It must inevitably follow from this position that as soon as the emergency comes to an end and the Presidential order ceases lo be operative, the unlawful action of the executive becomes actionable and the citizen is entitled to challenge it by moving a court of law.
It will be clear from what is stated above that whilst a Presidential order issued under Article 359, clause (1) is in operation, the rule of law is not obliterated and it continues to operate in all its vigour.
The executive is bound to observe and obey the law and it cannot ignore or disregard it.
If the executive commits a breach of the law, its action would be unlawful, but merely the remedy would be temporarily barred where it involves enforcement of any of the fundamental rights specified in the Presidential order.
This would be obvious if we consider what would be the position under the criminal law.
If the executive detains a person contrary to law or shoots him dead without justifying circumstances, it would clearly be an offence of wrongful confinement in one case and murder in the other, punishable under the relevant provisions of the Indian Penal Code, unless the case falls within the protective mantle of section 76 or 79 and the officer who is responsible for the offence would be liable to be prosecuted, if there is no procedural bar built by the Code of Criminal Procedure against the initiation of such prosecution.
The Presidential order suspending the enforcement of Article 21 would not bar such a prosecution and the remedy under the Indian Penal Code would be very much available.
The offence of wrongful confinement or murder is an offence against the society and any one can set the criminal law in motion for punishment of the offender.
When a person takes proceedings under the Code of Criminal Procedure in connection with the offence of wrongful confinement or murder or launches a prosecution for such offence, he cannot be said to be enforcing the fundamental right of the detenu or the murdered man under Article 21 so as to attract the inhibition of the Presidential order.
So also, if a positive legal right is conferred on a person by legislation and he seeks to enforce it in a court, it would not be within the inhibition of a Presidential order issued under Article 359, clause(1).
Take for example the class of cases of detention where no declaration has been made under sub sections (2) and (3) of section 16A. This category would cover cases where orders of detention have been passed 462 prior to June 25, 1975, because in such cases no declaration under subsections (2) or (3) of section 16A is contemplated and it would also cover the rather exceptional cases where orders of detention have been made after 25th June, 1975 without a declaration under sub section (2) or sub section (3) of section 16A. Sections 8 to 12 would continue to apply in such cases and consequently the detaining authority would be under an obligation to refer the case of the detenu to the Advisory Board and if the Advisory Board reports that there is in its opinion no sufficient cause for the detention of the detenu, the State Government would be bound to revoke the detention order and release the detenu. 'That is the plain requirement of sub section (2) of section.
Now? suppose that in such a case the State Government fails to revoke the detention order and release the detenu in breach of its statutory or obligation under sub section (2) of section 12.
Can the detenu not enforce this statutory obligation by filing a petition for writ of mandamus, The answer must obviously be: he can.
When he files such a petition for a writ of mandamus, he would be enforcing his statutory right under sub section (2) of section 12 and the enforcement of such statutory right would not be barred by a Presidential order specifying Article 21.
T he Presidential order would have no operation where a detenu is relying upon a provision of law to enforce a legal right conferred on him and is not complaining of absence of legal authority in the matter of deprivation of his personal liberty.
I may also refer by way of another illustration to section 57 of the Code of Criminal Procedure Code, 1973.
This section provides that no police officer shall retain in custody a person arrested without warrant for a longer period than under all the circumstances of case is reasonable, and such period shall not, in the absence of a special order of a magistrate under section 167, exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the magistrate 's court.
There is clearly a legal injunction enacted by this section requiring a police officer not to detain an arrested person in custody for a period longer than 24 hours without obtaining a special order of a magistrate and to release him on the expiration of such period of 24 hours, if in the meantime such special order is not obtained.
If, in a given case, an arrested person is detained in custody by the police officer for a period longer than 24 hours without obtaining an order of a magistrate, can he not apply to the magistrate that he should be directed to be released by the police officer under section 57 ? Would such an application be barred by a Presidential order specifying article 21? I do not think so.
When the arrested person makes such an application, he seeks to enforce a statutory obligation imposed on the police officer and a statutory right created in his favour by section 57 and that would not be barred, because what is suspended by a Presidential order specifying article 21 is the right to move the court for enforcement of the fundamental right conferred by that Article and not the right to move the court for enforcement of the statutory right to be released granted under section 57.
I may take still another example to illustrate the point I am making.
Take a case where an order of detention has been made without a declaration under subsection (2) or sub section (3) of section 16A).
463 Sections 8 to 12 would admittedly apply in such a case and under section 8, A the detaining authority would be bound to communicate to the detenu the grounds on which the order of detention has been made and to afford him the earliest opportunity of making a representation to the appropriate government.
If, in a given case, the detaining authority declines to furnish the grounds of detention to the detenu or to afford him an opportunity of making a representation, in violation of the statutory right conferred on him under section 8, can be detenu not enforce this statutory right by filing a petition for a writ of mandamus against the detaining authority ? Would it be any answer to such an application that the enforcement of the fundamental right conferred by article 22, clause (5) has been suspended by the Presidential order? The answer is plainly: No.
There are two rights which the detenu has in this connection: one is the fundamental right conferred by article 22, clause (5) and the other is the statutory right conferred by art 22.
Though the contention of both these rights is the same, they have distinct and independent existence and merely because enforcement of one is suspended, it does not mean that the other also cannot be enforced.
The 'theory of reflection ' which found favour with the Kerala High Court in Fathima Beebi vs M. K. Ravindranathan(l) is clearly erroneous.
I the right conferred under section 8 were ;1 reflection of the fundamental right conferred by Article 22, clause (S) as the Kerala High Court would have us believe, the removal of the fundamental right under Article 22, clause (S), which is the object reflected, must necessarily result in the effacement of the right under section 8 which is said to constitute the reflection.
But even if Article 22 clause (S) were deleted from the Constitution, section 8 would still remain on the statute book until repealed by the legislature.
The Presidential order would not, therefore, bar enforcement of the right conferred by section 8.
To my mind, it is clear that if a petition or other proceeding in court seeks to enforce a positive legal right conferred by some legislation, it would not be barred by the Presidential order.
I may also point out that, in the present case, if I had taken the view that there is.
independently and apart from Article 21, a distinct and separate right not to be deprived of personal liberty except according to law, I would have held, without the slightest hesitation, that the Presidential order suspending enforcement of the fundamental right conferred by Article 21 does not have the effect of suspending enforcement or this distinct and separate legal right.
But since I have come to the conclusion, for reasons already discussed, that there is no such distinct and separate right of personal liberty apart from and existing side by side with Article 21, it must be held that when a detenu claims that his detention is not under the Act or in accordance with it, he seeks to enforce the fundamental right conferred by Article 21 and that is barred by the Presidential order.
Of course, this does not mean that whenever a petition for a writ of habeas corpus comes before the Court, it must be rejected straightaway without even looking at the averments made in it.
The Court would have to consider whether the bar of the Presidential Order is attracted and for that purpose, the Court would have to see whether the order of detention is one made by an authority empowered to pass (I) 464 such an order under the Act; if it is not, it would not be State action and the petition would not be one for enforcement of the right conferred by Article 21.
On this view in regard to the interpretation of the constitutional provision, it is unnecesasry to go into the question of construction and validity of section 18 of the Act.
It was strongly urged upon us that if we take the view that the Presidential order bars the right of a person to move a court even when his detention is otherwise than in accordance with law, there would be no remedy against illegal detention.
That would encourage the executive to disregard the law and exercise arbitrary powers of arrest.
The result would be so ran the argument that the citizen would be at the mercy of the executive: every one would be living in a state of constant apprehension that he might at any time be arrested and detained: personal liberty would be at an end and our cherished values destroyed.
Should we accept a construction with such fearful consequences was the question posed before us.
An impassioned appeal was made to us to save personal liberty against illegal encroachments 'l by the executive.
We were exhorted to listen to the voice of judicial conscience as if judicial conscience were a blithe spirit like Shelley 's Skylark free to sing and soar without any compulsions.
I do not think I can allow myself to be deflected by such considerations from arriving at what I consider to be the correct construction of the constitutional provision.
The apprehensions and fears voiced on behalf of the detenus may not altogether be ruled out.
It impossible that when past powers are vested in the executive, the exercise of which is immune from judicial scrutiny, they may sometimes be abuse d and innocent persons may be consigned to temporary detention.
But merely because power may sometimes be abused, it is no ground for denying the existence of the power.
All power is likely to be abused.
That is inseparable from the nature of human institutions.
The wisdom of man has not yet been able to conceive of a government with power sufficient to answer its legitimate end and at the same time incapable of mischief.
In the last analysis a great deal must depend on the wisdom and honesty,, integrity ' and character of those who are incharge of administration and the existence of enlightened and alert public opinion.
It was Lord Wright who said in Liversidge vs Siglov Anderson (supra) that "the safeguard of British liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved.
" It is true that, if, in a situation of emergency, judicial scrutiny into legality of detention is held to be barred by a Presidential order specifying Article 21, illegalities might conceivably be committed by the executive in exercise of the power of detention and unlawful detentions might be made against which there would be no possibility of redress.
The danger may not be dismissed as utterly imaginary, but even so, the fact remains that when there is crisis situation arising out of an emergency, it is necessary to best the Government with extra ordinary powers in order to enable it to overcome such crisis situation and restore normal conditions.
Even Harold Laski conceded in his article on "Civil Liberties in Great Britain in Wartime that "the necessity of concentrating immense power in a Government waging total war is 465 beyond discussion" and what he said there regarding a Government A waging total war must apply equally in relation to a Government engaged in meeting internal subversion or disturbance, for the two stand on the same footing, so far as our Constitution is concerned.
Now, when vast powers are conferred on the executive and judicial scrutiny into the legality of exercise of such powers is excluded" it is not unlikely that illegalities might be committed by the executive in its efforts to deal with the crisis situation.
Dicey, in his "Introduction to the study of Law of the Constitution" frankly admits that it is "almost certain that, when the suspension of the Habeas Corpus Act makes it possible for the Government to keep suspected persons in a prison for a length of time without bringing them to trial, a smaller or greater number of unlawful acts will be committed, if not be the members of Ministry themselves, it any rate by their agents.
" But howsoever unfortunate this situation might be, that cannot be helped.
The Constitution permits judicial scrutiny to be barred during times of emergency, because it holds that when a crisis arises in the life of the nation, the rights of individuals must be postponed to considerations of State and national safety must override any other considerations.
I may add that there is nothing very unusual in this situation because? as already pointed out above,, such a situation is contemplate even in countries like the United States of America and Great Britain which are regarded as bastions of democracy.
But at the same time it must be remembered by the executive that, because judicial scrutiny for the time being is excluded, its responsibility in the exercise of the power of detention is all the greater.
The executive is under an added obligation to take care to see that it acts within the four corner of the law and its actions are beyond reproach.
It must guard against misuse or abuse of power, for, though such misuse or abuse may yield short term gains, it is a lesson of history which should never be forgotten that ultimately means have a habit of swallowing up ends.
Before I leave this question, I may point out that, in taking the view 1 have, T am not unaware of the prime importance of the rule of law which, since the dawn of political history, I both in India of Brahadaranyaka Uunishad and Greece of Aristotle, has tamed arbitrary exercise of power by the government and constitutes one of the basic tenets of constitutionalism.
I am not unmindful of the famous words of Lord Atkin in his powerful dissent in Liversidge vs Anderson(supra) that "amid the clash of arms and much more so in a situation of emergency arising from threat of internal subversion "laws are not silent.
They may be changed, but they speak the same language in war and in peace".
I am also conscious and if I may once again quote the words of that great libertarian Judge "Judges are no respector of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law".
But at the same time it cant be overlooked that, in the ultimate analysis, the protection of persona] liberty and the supremacy of law which sustains it must be governed by the constitution itself.
The Constitution is the paramount and supreme law of the land and if it says that even if a person is detained otherwise than in accordance with the law, he shall not be entitled to enforce his right of personal liberty, whilst a Presidential order under 3 2 833SCI/76 466 Article 359, clause (l) specifying Article 21 is in force I have to give effect to it.
Sitting as l do, as a Judge under the constitution, I cannot ignore the plain and emphatic concerned of the Constitution or what I may consider to be necessary to meet the end of justice.
It is said that law has the feminine capacity to tempt each devotee to find his own image in her bosom.
No One escapes entirely.
Some yield badly, some with sophistication.
Only a few more or less effectively resist.
I have always leaned in favour of upholding personal liberty, for, I believe, it is one of the most cherished values of mankind.
Without it life would not be worth living.
It is one of the pillars of free democratic society.
Men have readily laid down their lives at is altar, in order to secure it, protect it and preserve it.
But I do not think it would be right for me W allow my love of personal liberty to cloud my vision or to persuade me to place on the relevant provision of the constitution a construction which its language cannot reasonably bear.
I cannot assume to myself the role of Plato 's Philosopher king 's in order to render what I consider ideal justice between the citizen and the State.
After all" the Constitution is the law of all laws and there alone judicial conscience must find its ultimate support ,and its final resting place.
It is in this spirit of humility and obedience to the Constitution and driven by judicial compulsion, that I have come to the conclusion that the Presidential order dated 27th June, 1975 bars maintainability of a writ petition for habeas corpus there an order of detention is challenged on the ground that it is mala fide or not under the Act or not in compliance with it.
On the view I have taken in regard to the answer to be given to the first question, it would be unnecessary to consider the second question, but since the second question has been debated fully and elaborate arguments have been l advanced before us touching not only the interpretation but also the validity of sub section (9) (a) of section 16A, I think it will be desirable if I pronounce my opinion on this question as well.
But before I proceed to do sot, I may make it clear once again that though this question is framed in general terms and so framed it invites the Court to consider the area of judicial security in a petition for a writ of habeas corpus, it is not really necessary to embark on a consideration of this issue, since it was conceded by the learned Attorney General, and in my opinion rightly, that the area of judicial scrutiny remains the same as laid down in the decision of this Court, subject only to such diminution or curtailment as may be made by sub section (9)(a) of section 16A.
The learned Additional Solicitor General , who argued this question on behalf of the Union of India, took us through various decisions of English courts on the issue as to what is the nature of the jurisdiction which the Courts on the issue as to what is the nature of the jurisdiction which the Court exercises in a petition for a writ of habeas corpus, and what is the manner in which such jurisdiction must be exercised.
it is not necessary for the purpose because the practice in our country in regard to the exercise of this jurisdiction , as it has evolved over the years as a result of the decisions of this Court, is a little different from that prevailing in England.
This court has never insisted on strict rules of pleading in cases involving the liberty of a person nor placed undue emphasis on the question as to on whom the burden of proof lies.
Even a postcard written by a 467 detenu from jail has been sufficient to activise this Court into examining the legality of detention.
This Court has consistently shown great anxiety for personal liberty and refused to throw out a petition merely on the ground that it does not disclose a prima facie case invalidating The order of detention.
Whenever a petition for a writ of habeas corpus has come up before this Court, it has almost invariably issued a rule calling upon the detaining authority to justify the detention.
This Court has any occasions point out that when a rule is issued, it is incumbent on the detaining authority to satisfy the Court that the detention of the petitioner is legal and in conformity with the mandatory provisions of the Act.
Vide Naranjan Singh vs State of Madhya pradesh,(1) Saikh hanif, Gudma Majhi & Kamal Saha vs State of West Bengal (2) and Dulal Roy vs The District Magistrate, Burdwan ors.(3) .
It has also been insisted by this court that, in answer to the Rule, the detaining authority must place all the relevant facts before the Court which would show that the detention is in accordance with the detention is in accordance the provisions of the Act.
It would be no argument on the part of the detaining authority to say that particular ground is not taken in the petition .
vide Nizamuddin vs The State of West Bengal .(4) Once the Rule is issued, it is the bounden duty of the Court to satisfy itself that all the safeguards provided by law have been scruplously observed and the citizen is not deprived of his personal liberty otherwise than in accordance with law.
Vide Mohd. Alam vs State of West Bengal (5) and Khudiram Das vs state of West Bengal & Ors.(6) This practice marks a slight departure from that obtaining in England but it has been adopted by this court in view of the peculiar socio economic conditions prevailing in the country.
Where large masses of people are poor, illiterate and ignorant and access to the courts is not easy on account of lack of financial resources it would be most unreasonable to insist that the petitioner should set out clearly and specifically the grounds on which he challenges the order of detention and make our a prima facie case in support of those grounds before a rule can be issued on he petition and when the Rule is issued, the detaining authority should not be liable to do any thing more than just meet the specific grounds of challenge put forward by the petitioner in the petition.
Of course, I must make it clear that where an order of detention is challenged as mala fide, a clear and specific averment to that effect would have to be made in the petition and in the absence of such averment, the court would not entertain the plea of mala fide.
The petitioner would have to make out a prima facie case of mala fide before the detaining authority can be called upon to meet it.
Whether a prima facie case has been made out or not would depend on the particular facts and circumstances of each case, but the test would be whether the prima facie case made out is of such a nature that the Court feels that it requires investigation.
The Court would then investigate and decide the question of mala fide on the basis of the material which may be placed before it by both parties.
468 What is the area of judicial scrutiny in a petition for a writ of habeas corpus has been laid down by this Court is numerous decisions.
It is not necessary to refer to all these decisions, since there is one recent decision, namely, Khudiram Das vs State of West Bengal (supra) where the entire law on the subject has been reviewed by a Bench of four judges! of this Court.
There, the effect of the previous decisions has been considered and the law has been summarised at pages 843 to 845 of the Report in a judgement delivered by me on behalf of the Court.
I have carefully listened to the most elaborate arguments advanced before us in this case and even after giving my most serious consideration to them, I still adhere to all that I said in Khudiram Das 's case (supra).
I maintain that the subjective satisfaction of the detaining authority is liable to be subjected to judicial scrutiny on the grounds enumerated by me in Khudiram Das 's case (supra) and the decision in Khudiram Das 's case(supra) lays down the correct law on the subject.
The only question is: how far and to what extent sub section (9) (a) of section 16A has encroached upon this area of judicial scrutiny and whether it is a valid piece of legislation.
Now the first question that arises for consideration is as to what is the correct interpretation of section 16A, sub section (9) (a).
That sub section reads as follows: "(9) Notwithstanding anything contained in any other law or any rule having the force of law (a) the grounds on which all order of detention is made or purported to be made under section 3 against any person in respect of whom a declaration is made under sub section (2) or sub section (3) and any in formation or materials on which such grounds or a declaration under sub section (2) or a declaration or confirmation under sub section (3) or the non revocation under sub section (4) of a declaration arc based, shall be treated as confidential and shall be deemed to refer to matters of State and to be against the public inter est to disclose and save as otherwise provided in this Act, no on shall communicate or disclose any such ground, information or material or any document containing such ground, information or material;" the argument urged on behalf of the detenus was that sub section (9) (a) of section 16A should be read down and construed so as not to exclude the power of the High Court in the exercise of its jurisdiction under Article 226 to call for the grounds, information and materials on which the order of detention is made and the declaration under sub section (2) is based with a view to satisfying itself as regards the legality of the detention.
It was pointed out on behalf of the detenus that, unlike section 54 of Indian Income tax Act, l 922 and section 14 of the , sub section (9) (a) of section 16A does not include any reference to a court and it is clear that it is not directed against the Court.
Reliance was also placed on behalf of the detenus on the following statement of the law in Wigmore on Evidence (3rd ed.) vol. 8 at page 801, Article 2379: "Any statute declaring in general terms that official records are confidential should 469 be liberally construed to have an implied exception for disclosure when A needed in court of justice, and reference was also made to the decision of the English Court in Lee vs Burrell(1) in support of the proposition that in a statutory provision, like sub section (9) (a) of section 16A, the Court must read an implied exception in favour of the Court and particularly the High Court exercising constitutional Function under Article 226.
It was also stressed on behalf of the detenus that if a wider construction is placed on sub section (9) (a) of section l 6A taking within its sweep the High Court exercising jurisdiction under Article 226, that sub section would be rendered void as offending Article 226 and hence the narrower construction must be preferred which excludes the High Court from the purview of the sub section.
This contention, attractive though it may seem because it has the merit of saving judicial scrutiny from being rendered ineffectual and illusory, is not justified by the plain language of sub section (9) (a) of section 16A and hence, despite these weighty considerations which have been pointed out on behalf of the detenus, I find myself unable to accept it.
It is true that sub section (9) (a) of section 16A does not specifically refer to any court.
It does not say in so many terms, as did section 54 of the Indian lncome tax Act, 1922, that no court shall require any officer to produce before it the grounds, information and materials on which the order of detention is made or the declaration under sub section (2) or sub section (3) is based, nor does it contain any provision, like section 14 of the that no court shall allow any statement to be made or any evidence to be given of such grounds, information and materials.
But there is inherent evidence in the sub section itself to show that it is intended to prevent disclosure of such grounds, information and materials before a court.
It says that the grounds, information and materials on which the order of detention is made or the declaration under subsection (2) or sub section (3) is based "shall be treated as confidential and shall be deemed to refer to matters of State and to be against public interest to disclose".
There is clearly an echo here of section 123 of the Indian Evidence Act.
That section is intended to prevent disclosure in a court of "unpublished official records relating to and affairs of State" and likewise, sub section (9) (a) of section 16A must also be held to be designed to achieve the same end, namely prevent, inter alia, disclosure in a court.
The words "shall be treated as confidential" and " shall be deemed to be against the public interest to disclose" are very significant.
If they are to have any meaning at all, they must be construed as prohibiting disclosure even to a Court.
How can the grounds, information and materials referred to in this sub section remain 'confidential if they can be required to be produced before a court? How can they be permitted to be disclosed to a court when the legislature says in so many terms that it would be against the public interest to disclose them.
Even if the court holds its sittings in camera, there would be a real danger Of leakage and that might, in a given case, jeopardize national security and weaken the efforts towards meeting the crisis situation arising (1) 170 English Reports ]402.
470 out of the emergency.
Vide observations in the speech of Lord Wright at page 266 in Liversidge 's case (supra) .
Sub section (9) (a) of section 16A cannot, therefore, be read down as to imply an exception in favour of disclosure to a court.
But then it was contended on behalf of the detenus that if, on a proper construction of its language, sub section (9) (a) of sectio 16A precludes the High Court ill exercise of its jurisdiction under Article 226, from calling for the production of the grounds, ill formation and materials on which the order of detention is made or the declaration under sub section (2) or sub section (3) is based, it would impede the exercise of its constitutional power by the High Court and make i t virtually ineffective and hence it would be void as offending Article 226.
This contention requires serious consideration.
Prima facie it appears to be formidable, but for reasons which.
I shall immediately proceed to state, I do not think it is well founded.
There can be no doubt that Article 226 is a constitutional pro vision and it empowers the High Court to issue a writ of habeas corpus for enforcement of the fundamental right conferred by Article 21 and also for any other purpose.
The High Court has, therefore, constitutional power to examine the legality of detention and for that purpose, to inquire and determine whether the detention is in accordance with the provisions of law.
Now, obviously this being a constitutional power, it cannot be taken away or abridged by a legislative enactment.
If there is any legislative provision which obstructs of retards the exercise of this constitutional power, it would be void.
There arc several decisions of this Court which recognise and lay down this proposition.
It was said by this Court in one of its early decisions in Hari Vishnu Kamath vs Syed Ahemad Ishaque & ors.(1) that the jurisdiction under Article 226 having been conferred by the Constitution, limitation cannot be placed on it except by the Constitution itself So also n Durga Shankar Mehta vs Thakur Raghuraj singh & ors.(2) this Court, while considering the effect of section 105 of the Representation of the People Act, 1951 which gave finality to an order made by the Election Tribunal, observed that that section cannot "cut down and affect the overriding power which this Court can exercise in the matter of grant of special leave under Article 136`, and tile same rule was applied to Article 226 in Raj Krushna Bose vs Binoci Kanungo vs ors.
where the Court held that section 105 cannot take away or whittle do the power of the High Court under Article 226.
The same view was taken by this court in In re: The Kerala Education Bill, 1957(4) where section R. Das C. J. speaking on behalf of the Court said in relation to Article 226 that "No enactment of a State legislature can, as long as that Article stands.
take away or abridge the jurisdiction and power conferred on the High Court by that Article.
This Court in Prem Chand Garg vs Excise commissioner U P Allahabad actually struck down Rule 12 of order XXXV of the Supreme Court Rules which required the (1) [1955] 1 section R. 1104.
(2) [1955] 1 section C. R. 267.
(3) ; (4) [1959] section C. R. 995 (5) [1963] supp.
1 section C. R 885.
471 petitioner in a writ petition under Article 32 to furnish security for A the cost of the respondent, on the ground that it retarted or obstructed the assertion or vindication of the fundamental right guaranteed under Article 32 by imposing a pecuniary obligation on, the petitioner.
The principle of this decision must equally apply in a case there the legislative provision impedes or obstruct the exercise of the constitutional power of the High Court under Article 226.
It is, therefore, clear that if it can be shown that sub section (9) (a) of section 16A abridges or whittles down the constitutional power of the High Court under Article 226 or obstructs or retards its exercise, it would be valid as being in conflict with Article 226.
Now, it is settled law that when a petition for writ of habeas corpus filed and a Rule is issued, it is the bounden duty of the Court to satisfy itself that all the safeguards provided by law have been scrupulously observed and the liberty of the detenu has not been taken away otherwise than in accordance with law, Vide Khudiram Das vs State of West Bengal (supra).
The Court may also for the purpose of satisfying itself as regards the legality of detention, call for the record of the case relating to the detention and look into it.
That is what the Court did in Biren Dutta & ors vs Chief Com missioner of Tripura & Anr.(l) There, an interim order was made by this Court "directing that the Chief Secretary to the Tripura Administration shall forthwith transmit to this Court the original file in respect of the detenus concerned" since the Court wanted to satisfy itself that the Minister or the Secretary or the Administrator had reviewed the cases of the detenus and arrived at a decision that their detention should be continued.
So also in M. M. Damnoo vs J & K State(2) this Court required the State Government to produce the file confining the grounds of detention so that the Court could satisfy itself That "the grounds on which the detenu has been detained have relevance to the security of the State".
It would, therefore, be seen that if there is a legislative provision which prohibits disclosure of the grounds, information and materials on which the order of detention is based and prevents the Court from calling for the production of such grounds, information and materials, it would obstruct and retard the exercise of the constitutional power of the High Court under Article 226 and would be void as offending that Article.
This was the basis on which section 14 of the The Preventive detention Act, 1950 was struck down by this court in A K Gopalan 's case (supra).
That section prohibited the disclosure of the grounds of detention communicated to the person detained and the representation made by him against the order of detention and barred the court from allowing such disclosure to be made except for purposes of a prosecution for such disclosure.
It was held by this Court in fact by all the judges who participated in the decision that this section was void as it contravene(l inter alia Article 32.
Kanta, C. J. Observed at page 130 of the Report in a passage of which certain portions have been underlined by me for emphasis: (1) ; i (2) ; 472 "By that section the Court is prevented (except) for the purpose of punishment for such disclosure) from being informed, either by a statement or by leading evidence, of the substance of the grounds conveyed to the detained person under section 7 on which the order was made, or of any representation made by him against such order.
It also prevents the Court from calling upon any public officer to disclose the substance of those grounds or from tile production of the proceedings or report of the advisory board which may be declared confidential.
It is clear than if this provision is permitted to stand, the Court can have nominate rial before it to determine whether the grounds are sufficient or not.
I do not mean whether the grounds are sufficient or not.
It even prevents the Court from ascertaining whether the alleged grounds of detention have anything to do with the circumstances or class or classes of cases mentioned in section 12(l)(a).
" Patanjali Sastri, J.,also observed to the same effect at page 217 of the Report: "If the grounds are too vague to enable him to take any such representation, or if they are altogether irrelevant to the object of his detention, or are such as to show that his detention is not bona fide, he has the further right of moving this Court and this remedy is also guaranteed to his under article 32.
These rights and remedies, the petitioner submits, cannot be effectively exercised, if he is prevented on pain of prosecution, from disclosing the grounds to the Court.
There is great force in this contention The argument (of the Attorney General) overlooks that it was recognised in the decision referred to above that it would be open to the Court to examine the grounds of detention in order to see whether they were relevant to the object which the legislature had in view, such as, for instance, the prevention of acts prejudicial to public safety and tranquillity, or were such as to show that the detention was not bona fide.
An examination of the grounds for these purposes is made impossible by section 14, and the protection afforded by article 22(5) and article 32 is thereby rendered nugatory.
It follows that section 14 contravents the provisions of article 22 (S) and article 32 in so far is it prohibits the person detained from disclosing to the Court the grounds of his detention communicated to him by the detaining authority or .
the representation made by him against the order of detention, and prevents the Court from examining them for the purpose aforesaid.
and to that extent it must be held under article 13 (2) to be void." (emphasis supplied).
And so did the other learned Judges.
It is clear from what they said that inasmuch as section 14 prohibited the disclosure of the grounds of detention and prevented the Court from looking at 473 Them for the purpose of deciding whether the detention is legal, it A was violative of Article 32 which conferred a fundamental right on a detenu to move this Court for impugning the legality of his detention.
The same view was taken by a Constitution Bench of this Court in M. M. Damnoo vs J. & K. State (supra).
In fact, the observations of Kania, C. J. in A. K. Gopalan 's case (supra) which I have reproduced above, were quoted with approval in this decision.
The petitioner in this case challenged the legality of his detention by the State of Jammu & Kashmir on several grounds.
One of the grounds was that the proviso to section 8 of the Jammu & Kashmir was void as it conflicted with section 103 of the Constitution of Jammu & Kashmir.
Section 103 was in the same term as Article 226 and it conferred power on the High Court of Jammu & Kashmir to issue after alia a writ of habeas corpus Section 8 of the required the detaining authority to communicate to the detenu the grounds on which the order of detention was made, but the proviso to that section dispensed with the requirement in case of "any person detained with a view to preventing him from acting in any manner pre judicial to the security of the State if the authority making the order directs that the person detained may be informed that it would be against the public interest to communicate to him the grounds on which his detention has been made".
The argument of the petitioner was that the proviso to section 8 of the was violative of section 103, since it debarred the High Court and this Court from calling for the grounds of detention and thus made it virtually impossible for the High Court and this Court to examine the legality of the detention.
This Court agreed that there would have been some force in the contention of the petitioner, if the High Court and this Court were prevented from calling upon the State Government to produce the grounds of detention, but it pointed out that the proviso to section 8 was not ultra vires "because the proviso and the Act do not bar the High Court and this Court from looking into the validity of the detention".
This Court, after referring to the observations made by Kania, C.J. in A. K. Gopalan 's case (supra) in regard to section 14 of the said: "But fortunately there is no similar provision in this Act: and it leaves the High Court and the Supreme Court free to exercise the jurisdiction by calling upon the State in appropriate cases to produce before it the grounds of detention and other material in order to satisfy itself that the detenu was being detained in accordance with law.
If it were not so, we would have difficulty in sustaining the proviso.
" It will, therefore, be seen that prima facie this Court was of the view that if the proviso to section 8 had debarred the High Court and this Court from requiring the grounds of detention to be produced before them, it would have been difficult to sustain that proviso.
The learned Additional Solicitor General, however, sought to distinguish ' these two decisions and contended that sub section (9) (a) 474 of section 16A merely enacts a rule of evidence and it cannot, therefore, be said to obstruct or retard the exercise of the constitutional power of the High Court under Article 226 so as to be in conflict with that Article.
Now, there can be no doubt, although at one time in the course of his arguments Mr. Shanti Bhushan contended to the contrary, that a rule of evidence can always be enacted by the legislature for the purpose of regulating the proceedings before the High Court under Article 226.
A rule of evidence merely determines what shall be regarded as relevant and admissible material for the purpose of enabling the Court to come to a decision in the exercise of its jurisdiction and it does not in any way detract from or affect the jurisdiction of the Court and it cannot, in the circumstances, he violative of Article 226.
But in order that it should not fall foul of Article 226, it must be a genuine rule of evidence.
If in the guise of enacting a rule of evidence, the legislature in effect and substance disables and impedes the High Court from effectively exercising its constitutional power under Article 226, such an enactment would be void.
It will be colourable exercise of legislative power.
The legislature cannot be permitted to violate a constitutional provision by employing an indirect method If a legislative provision, though in form and outward appearance a rule of evidence, is in substance and reality something different, obstructing or impeding the exercise of the .
jurisdiction of the High Court under Article 226, the form in which the legislative provision is clothed would not save it from condemnation.
Let us, therefore, examine whether sub section (9) (a) of section 16A enacts a genuine rule of evidence or it is a colourable piece of legislation in the garb of a rule of evidence.
If it is the former it would be valid; but if it is latter, it would be an indirect and covert infringement of Article 226 and hence void.
Now, it is well settled that in order to determine the true character of a legislative provision, we must have regard to the substance of the provision and not its form.
We must examine the effect of the provision and not be misled by the method and manner adopted or the phraseology employed.
Sub section (9) (a) of section 16A is in form and outward appearance a rule of evidence which says that the grounds.
information and materials on which the order of detention is made or the declaration under sub section (2) or sub section (3) is based shall be treated as confidential and shall be deemed to refer to matter of State and be against the public interest to disclose.
But in substance and effect, is it a genuine rule of evidence ? The argument on behalf of the detenus was that it is only a legislative device adopted by the legislature for the purpose of excluding the grounds, information and materials from the scrutiny of the Court and thereby making it virtually impossible for High Court to examine the legality of the detention and grant relief to the detenu.
If the veil is removed, contended the detenus, the position is no different from that obtaining in A. K. Gopalan 's case (supra) where section 14 of the was struck down as constituting a direct assault on Article 226.
It was pointed out that, in every case of detention, the Grounds, information and materials would not necessarily refer to, matters of State and be against the public interest to disclose.
Since, even order 475 of detention purported to be made under section 3 are brought within the purview of sub section (9)(a) of section 16A, the grounds, information and materials in cases of such detention may be wholly unrelated to the objects and purposes set out in section 3 and in that event, they would mostly have nothing to do with matters of State and it may not be possible to say that their disclosure would injure public interest.
But even so, sub section (9)(a) of section 16A surrounds such grounds, information and materials with the veil of secrecy and, the use the words of Mahajan, J. in A. K. gopalan 's case (supra), places "an iron curtain around them".
This sub section, according to detenus, compels the Court to shut its eyes to reality and presume by a legal fiction that in every case, whatever be the actuality and many cases the actuality may be otherwise the grounds, information and materials shall be deemed to refer to matters of State and shall be against that public interest to disclose.
This contention of the detenus is undoubtedly very plausible and it caused anxiety to me t on deeper consideration, I think it cannot be sustained.
It is significant to note that sub section (9)(a) of section 16A is a provision enacted to meet the emergency declared under the Proclamations dated 3rd December, 1971 and 25th June, 1975.
Vide subjection (1) of section 16A.
It comes into operation only when there a declaration made under sub section (2) or sub section (3) that the detention of the person concerned is necessary for dealing effective with the emergency.
The condition precedent to the applicability of sub section is that there should be a declaration under sub section (2) or sub section (3) in respect of the person detained.
It may also be noted that though the words or purported to be made were added after the words "an order of detention is made" in the sub section by the Maintenance of Internal Security (Amendment) Act, 1976, no such or similar words were added in relation to the declaration in under sub section (2) or sub section (3).
Sub section (9) (a) of section 16A, therefore, assumes a valid declaration under subsection (2) or sub section (3) and it is only when such a declaration i been made, that sub section (9) (a) of section 16A applies or n other words it is only in cases where a person is detained in order deal effectively with the emergency that the disclosure of the grounds , information and materials is prohibited by sub section (9) (a) of section 16A.
I have already pointed out how emergency can create a crisis situation imperilling the existence of constitutional democracy and jeopardizing the functioning of the social and political machine.
It is, therefore, reasonable to assume that where a person is detained is order to deal effectively with the emergency, the grounds, information and materials on which the order of detention is made or the declaration under sub section (2) or sub section (3) is based would.
and large, belong to a class of documents referring to matters of State which it would be against public interest to disclose.
What was observed by two of the Law Lords in Liversidge 's case (supra) would be applicable in such a case.
Viscount Maugham said at page 221 of the Report. " it is obvious that in many cases he will be acting 476 on information of the most confidential character, which could not be communicated to the person detained or disclosed in court without the greatest risk of prejudicing the future efforts of the Secretary of State in this and like matters for the defence of the realm It is sufficient to say that there must be a large number of cases in which the information on which the Secretary of State is likely to act will be of a very confidential nature," and Lord Wright also observed to the same effect at page 266 of the Report: "In these cases full legal evidence or proof is impossible, even if the Secretary does not claim that disclosure is against the public interest, a claim which must necessarily be made in practically every case, and a claim which a judge necessarily has to admit." In view of the fact that the detention is made in order to deal effectively with the emergency, the grounds, information and materials would in most cases be confidential and if a claim of` privilege were made under section 123 of the Indian Evidence act, it would almost invariably be held justified.
The Legislature, therefore, taking into account the privileged character of the grounds, information and materials in the generality of cases, enacted sub section (9) (a) of section 16A laying down a rule that the grounds, information and materials shall be deemed to refer to matters of State which it would be injurious to public interest to disclose, instead of leaving it to the discretion of the detaining authority to make a claim of privilege in each individual case and the court to decide it.
The rule enacted in sub section (9) (a) of section 16A bears close analogy to a rule of conclusive presumption and in the circumstances, it must be regarded as a genuine rule of evidence.
I may make it clear that if the grounds, information and materials were not, by and large, of such a character as to fall within the class of documents relating to matters of State which it would be injurious to public interest to disclose, I would have found it impossible to sustain this statutory provision as a genuine rule of evidence.
If the grounds, information and materials have no relation to matters of State or they cannot possibly be of such a character that their disclosure would injure public interest, tha Legislature cannot, by merely employing a legal fiction, deem them to refer to matters of State which it would be against public interest to disclose and thereby exclude them from the judicial ken.
That would not be a genuine rule of evidence: it would be a colourable legislative device a fraudulent exercise of power.
There can be no blanket ban on disclosure of the grounds, information and materials to the High Court or this Court, irrespective of their true character.
That was the reason why section 14 of the was struck down by this Court in A. R. Gopalan 's case (supra) and this Court said in M. M. Damnoo 's case (supra) that if the proviso to section 8 had debarred the High Court and this Court from calling for the grounds of detention and looking into them, it would have been difficult to sustain that proviso.
But here, on account of the declaration under sub section (2) or sub section (3), which, as I said above, must be a valid declaration in order to attract the applicability of sub section (9) (a) of section 16A, the grounds, information and materials in almost all cases would be of a confidential character falling within the class of documents privileged under section 123 and hence the rule enacted in the sub section genuinely partakes of the character 477 of a rule of evidence.
It may be pointed out that if the declaration A under sub section (2) or sub section (3) is invalid sub section (9) (a) of section 16A will not be attracted and the grounds, information and materials on which the order of detention is made would not be privileged under that sub section.
I am, therefore, of the view that sub section (9) (a) of section 16A enacts a genuine rule of evidence an it does not detract from or affect the jurisdiction of the High Court under Article 226 and hence it cannot be successfully assailed as invalid.
I accordingly answer the first question by saying that the Presidential under dated June 27, 1975 bars maintainability of a petition for a writ of habeas corpus where an order of detention is challenged on the ground that it is vitiated by Mala fides, legal or factual, or is based on extraneous considerations or is not under the Act or is not in compliance with it.
So far as the second question is concerned, I do not think there is any warrant for reading down sub section (9) (a) of section 16A so as to imply an exception in favour of disclosure to the Court, and, on the interpretation placed by me on that provision, I hold that it does not constitute an encroachment on the constitutional jurisdiction of the High Court under Article 226 and is accordingly not void.
In the circumstances, I allow the appeals and set aside the judgments of the High Courts impugned in the appeals.
ORDER By majority In view of the Presidential order dated 27 June 1975 no person has any locus standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an, order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by malafides factual or legal or is based on extraneous consideration.
Section 16A(9) of the is constitutionally valid; 3.
The appeals are accepted.
The judgments are set aside; 4.
The petitions before the High Courts are now to be disposed of in accordance with the law laid down in these appeals.
| IN-Abs | 174 In exercise of the powers conferred by Clause (1) of article 352 of the Constitution The President of India, by proclamation dated December 23, 1971 declared that a grave emergency exists whereby the security of India is threatened by external aggression and the Maintenance of Internal Security Act (Act 26 of 1971), 1971 was published on July 2 1971, for effectively dealing with the emergency.
On November 16, 1974, the President of India, in exercise of the powers conferred by Clause (1) of article 359 of the Constitution declared: (a) that the right to move any court with respect to orders of detention which have already been made or which may hereafter be made under section 3(1)(c) of the (as amended by ordinance ll of 1974) for the enforcement of the rights conferred by Articles 14, 21 and Clauses (4) (5), (6) and (7) of Article 22 of the Constitution; and (b) All proceedings pending in any court or the enforcement of any of the aforesaid rights with respect to all orders of detention made under the said section 3(1)(c) shall remain suspended for a period of six months from the date of issue of the order.
Or the period during which the proclamation of emergency issued under Clause ll) of article 352 of the Constitution of India on December 3, 1971, is in force, whichever period expires earlier.
the order stood extended to the whole of the territory of India.
On June 20, 1975, the President of India, amended the above order by substituting 12 months for '6 months ' in the order.
On June 25, 1975, the President, in exercise of his powers conferred by Clause (2) of Article 352 of the Constitution declared that a grave emergency exists whereby the security of India is threatened by internal disturbances.
On June 27, 1975, in exercise of powers conferred by Clause (1) of article 359 the President declared that the right of any person (including a foreigner) to move any court for the enforcement of the rights conferred by Articles 14 21 and 22 of the Constitution and all proceedings pending in any court for the enforcement of the above mentioned rights shall remain suspended for the period during which the proclamation of emergency made under Clause (1) of Act.
352 of the Constitution on December 3, 1971, and on June 25, 1975, are both in.
force.
The Presidential order of June 27, 1975, further stated that the same shall be in addition to and not in derogation of any order made before the date of the aforesaid order under Clause (1) of article 359 of the Constitution.
on June 29, l 975, by another order, the President made the ordinance of June 27, 1975, applicable to the State of Jammu and Kashmir as well.
On September 25, 1975, the last paragraph in the Presidential order dated June 27 1975, was omitted.
The President promulgated the amending ordinances No. i and 7 of 1975, and replaced by the Maintenance of Internal Security (Amending Act) (No. 39 of 1975) Act introducing a new section 16A, and .
giving a deemed effect to section 7 of the Act as on from June 25, 1975, while the rest having a deemed effect from June 29, 1975.
By the same Act a new section 18 was also inserted with effect from June 25, 1975.
By the Constitution (Thirty eighth Amendment) Act, 1975, Articles 123, 213, 239(b), 352, 356, 359 and 368 were amended.
Clauses (4) and (5) were added in article 352 of the Constitution.
Broadly stated, the Thirty eighth Con Constitution (Amendment) Act renders the satisfaction of the President or the Governor in the relevant Articles final and conclusive and to be beyond any .
question in any court on any ground.
The power conferred on the President by article 352 shall include the power.
to issue different proclamations on different grounds being war or external aggression or internal disturbance or imminent danger of war or external aggression or internal disturbance whether or not there is a proclamation already issued by the President By Constitution Thirty Eight Amendment Act l '1975 new Clause (1A) was also added after Clause (1) of Article 359.
The Constitution Thirty ninth Amendment Act was published on August 10 1975, amending Articles 71, 329 and 329(A) and added Entries after Entry 86 in the 9th Schedule and the (Act 26 of 1971) 1971 as item 92 in the said Schedule.
175 On October 17, 1975, on ordinance 16 of 1975 was issued making further amendments ill section 16A of the maintenance of internal Security Act introducing sub Clause (8) and (9) to section 16A. On November 16, 1975 ordinance 22 of 1975 was issued making certain amendments in the Maintenance of Internal security Act inserting also sub section 2A ill section 16A.
All the amendments made by the (ordinance were given retrospective effect for the purpose of validating all Acts done previously. 'The said ordinances were published as the Maintenance of Internal Security (Amendment) Act 1976 (Act 14 of 1976) on Janurary ' '5, 1976.
The respondents detained under section 3(IA)(ii) read with section 3(2) of the maintenance of Internal Security Act (Act 26 of 1971 j as amended by the (Amendment Act 39 of 1975), 1975 challenged in several High Courts, the vires of the ordinance issued on June 27, 1975, by the President of India as unconstitutional and inoperative in law and prayed for (a) the setting aside of the said order and (b) for directing their release forthwith.
In come cases, they challenged the validity of the Thirty eight and I thirty ninth constitution Amendment Acts.
When these petitions came up for hearing, the appellant raised the preliminary objection to the maintainability on the ground that in asking For l release by the issuance of a writ of habeas Corpus.
the respondents were, in substance, claiming that they have been deprived of their personal liberty in violation of the procedure established by law, which plea was available to them under.
article 21 of the Constitution only and in view of the Presidential order dated June 27 1975, suspending the right to move for enforcement of the right conferred by that article, the petitions were liable to be dismissed at the threshold.
While the High Courts of Andhra Pradesh, Kerala and Madras have upheld The preliminary objection, this contention did not find favour with the High Courts of Allahabad, Bombay (Nagpur Bench), Delhi Karnataka, Madhya Pradesh, Punjab and Haryana respectively. 'I these High (courts broadly took the view that (a) despite the Presidential order it is open to the detenus to challenge their detention on the ground that it is ultra vires, as for example, by showing that the order, on the face of it, IS passed by an authority not empowered of pass it or it is not in exercise of the power delegated to the authority or that the power has been exercised in breach of the conditions prescribed in that behalf by the Act under which the order is passed, or that he order is not in strict conformity with the provisions of the Act.
Some of these High Court have further held that the detenus can attack the order of detention on the ground that it is mala fide, as for example, by showing that the authority did not supply its mind to the relevant considerations, or that the authority was influenced by irrelevant considerations or that the authority was influenced by improper motives.
The Nagpur Bench of the Bombay High Court read down section 16A(9) of the 1 implying an exception in favour of disclosure to the Court.
The High Court did not decide about the validity of the Thirty eighth and Thirty ninth Constitution Amendment Acts.
Accepting the States ' appeals, some by certificates granted by the High Court and some by special leave, the Court by majority (Khanna, J. dissenting), ^ HELD .
(Per majority A.N. Ray C.J. M.H. Beg.
Y.V. Chandrachud and P.N. Bhagwati JJ.) (1) In view of the Presidential Order.
Dated June 27, 1975, under Clause (1) of article 359.
no person has any locus standi to move any writ petition under Art 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order.
Of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fides factual or legal or is based on extraneous considerations.
[477 E F].
(2) Section 16A(9) of the is constitutionally valid.
[477 F] (3) Section 18 of the Maintenance of ' Internal Security Act, 1971 is not invalid.
[240 A D, 342 F G, 414 D] 176 (4)Article 21 of the Constitution is the sole repository of rights to life and personal liberty against State.
[246 B] Per A. N Ray J In view of the Presidential order dated June 27, 1975, under Clause (1) of article 359, no person has locus standi to move writ petitions under article 226 of the Constitution before a High Court for habeas corpus or any other writ or order or direction to enforce any right to personal liberty of a person detained under the on the grounds that the order of detention or the continued detention is for any reason not in compliance with the Act or is illegal or male fide [245 H, 246 A] Article 21 is the sole repository of rights to life and personal liberty against a State.
Any claim to a writ of hebeas corpus is enforcement of article 21 and .
is, therefore, barred by the Presidential order.
[246 B] Girindra Nath Banerjee v Birendra Nath Lal ILR 54 Cal. 727; Kinng emperor vs Shib Nath Banerjee 1972 Indian Appeals 241 and Makhan Singh vs State of Punjab [1964] (4) SCR 797 referred to.
Scope of judicial reivew in emergency.
In times of emergency the executive safeguards the life of the nation and, therefore, its actions either on the ground that these are arbitrary or unlawful cannot be challenged in view of the fact that considerations of security forbid proof of the evidence upon which the detention was ordered.
[219 B E] Liversidge vs Sir John Anderson ; Greene vs Secretary of State for Home Affairs ; Mohan Chaudhary vs Chief Commissioner Union Territory of Tripura ; and Makhan Singh vs ," State of Punjab [1964] 4 SCR 797 followed.
Queen vs Halliday Ex Parte Zadiq , referred.
Liberty is confined and controlled by law, whether common law or statute.
The safeguard of liberty is in the good sense of the people and in the system of representative and responsible Government which has been evolved.
If extraordinary powers are given, they are given because the emergency is extraordinary and are limited to the period of emergency.
Liberty is itself the gift of the law and may by the law forfeited or abridged.
[222 D, G] Zamora 's case [1916]2 Ac 107 and Liversidge vs Sir John Anderson ; , referred to.
The vital distinction between articles 358 and 359 is that Art 358 suspends the rights only in Article 19 to the extent that the Legislature can make laws contravening article 19 during the operation of a Proclamation of emergency and the Executive can take action which The Executive is competent to take under such laws Article 358 does not suspend any Fundamental Right.
While a proclamation of emergency is in operation the Presidential order under article 359(1) can suspend the enforcement of any or all Fundamental Rights.
Article 359(1) also suspends any pending proceedings for the enforcement of such Fundamental Right or Rights.
Another important distinction between the two Articles is that article 358 provides for indemnity.
whereas Article 359(1) does not: Article 359(1A) is on the same lines as article 358, but Article 359(1A) includes all Fundamental Rights which may be mentioned in a Presidential order aud is, therefore, much wider than article 358 which includes article lg only.
[223 E G] The purpose and object of article 359(1) is that the enforcement of any Fundamental Right mentioned in the Presidential order is barred or it remains suspended during the emergency.
The scope of article 359(1) is not only to restrict the application of the Article to the legislative field.
bet also to the acts of the Executive.
The object of Article 359(1) is not only that the right 177 to move this Court only is barred but also the right to move any High Court The bar created by article 359(1) applies to petitions for the enforcement of Fundamental Rights mentioned in the Presidential order whether by way of an application under article 32 or by way of application under article 226.
An application invoking habeas corpus under section 491 of the Code of Criminal Procedure cannot simultaneously be moved in the High Court.
[223 H, 224 D] Shri Mohan Chaudhary vs Chief Commissioner Union Territory of Tripura ; Makhan Singh vs State of Punjab [1964] 4 SCR 797 and Dr. Ram Manohar Lohia vs State of Bihar & ors. ; , applied.
The argument that jurisdiction and powers of this Court under article 32 and of the High Courts under article 226 are virtually abolished by the Presidential order without any amendment of the Constitution is incorrect.
No amendment to the Constitution is necessary because no jurisdiction and power either of this Court or of the High Court is taken away.
When a Presidential order takes away the locus standi of the detenu to move any court for the enforcement of Fundamental Rights for the time being, the jurisdiction and powers of this Court and of the High Courts remain unaltered.
[224 E F] Article 359(1) is not directed against any court, it is directed against an individual and deprives him of his locus standi.
If courts will in spite of the Presidential order entertain the applications and allow the detenu to enforce to start or to continue proceedings or enforce Fundamental Rights, Article 359(1) will be nullified and rendered otiose.
C D] Unlike the 1962 Presidential order, in the 1975 order, the suspension is not hedged with any condition of enforcement of any right under Articles 21 and 22.
The Presidential order is, therefore, a bar at the threshold.
[228 D E] Makhan Singh vs State of Punjab [1964] 4 SCR 797 and State of Maharashtra vs Prabhakar Pandurang Sangzgiri & Anr. ; , distinguished.
There are no natural rights.
Fundamental Rights in our Constitution are interpreted to be what is commonly said to be natural rights.
[229 C D] H. H. Kesvananda Bharti Sripadagalavaru vs State of Kerala [1973] SUPP.
I SCR 702.
followed.
Law means law enacted by the State.
Law means positive State made law The phrase "Procedure established by law" in article 21 includes substantive and procedural law.
A law providing for the procedure depriving a person of liberty must be a law made by statute.
[229 D E] A K. Gopalan vs Stale of Madras ; ; P. D. Shamdasani & ors vs Central Bank of India Ltd. ; ; Smt.
Vidya Verma through next friend R. V. section Mani vs Dr. Shiv Narain Verma ; , applied.
There is no difference between the expression "except according to procedure established by law" in article 21 and the expression "save by the authority of law" in article 31(1) or the expression "except by authority of law" in article 265.
It is incorrect to suggest that when article 21 was enacted, the founding fathers only enshrined the right to personal liberty according to procedure and did not frame the constitutional mandate that personal liberty could not be taken except according to law.
[232 B D] Part III of our Constitution confers Fundamental Rights in positive as well as negative language.
A Fundamental Right couched Couched negative language accentuates by reason thereof the importance of that right.
The negative language is worded to emphasize the immunity from State action as Fundamental Right.
Fundamental Rights have the texture of Basic Human Rights.
[229 G, 230 A B] State of Bihar.
vs Maharaja Dhiraja Sir Kameshwar Singh of Dhrbhanga & Ors.
at 988 989; A. K Gopalan vs State of Madras ; ; Rustom Cavasjee Cooper vs Union of India 571 and 576 to 578: Shambhu Nath Sarkar vs The State of West Bengal & Ors.
[1974] 14 833SupCI/76 178 1 SCR; Haradahan Saha & Anr.
vs State of West Bengal ; and Khudiram Das .v State of West Bengal & ors.
; , referred to.
Article 21 is our Rule of Law regarding life and liberty.
No other Rule of Law can have separate existence as a distinct right.
The negative language of Fundamental Right incorporated in Part III imposes limitations on the power of the State and declares the corresponding guarantees of the individual to that fundamental Right.
Limitation and guarantee are complementary.
The limitation of State action embodied in a Fundamental Right couched in a negative form is the measure of the protection of the individual.
[230 C D] Rustom Cavasji Cooper vs Union of India , applied.
Personal liberty in Article 21 includes all varieties of rights which go to make personal liberty other than those in article 19(1)(d).
[230 C C] Kharak Singh vs State of U.P. and ors.
[1964] 1 SCR 332 and Rustom Cavasjee Cooper v Union of India ; , referred to.
If any right existed before the commencement of the Constitution and the same right with its content is conferred by Part III as a Fundamental Right the source of that right is in Part III and not in any pre existing right.
Such pre constitutional rights have been elevated in Part III as Fundamental Rights.
If there is a pre constitution right which is expressly embodied as a Fundamental Right under our Constitution, the common law right has no separate existence Under Our Constitution.
If there be any right other than and more extensive than the Fundamental Right in Part III, such right may continue to exist under article 372.
[230 F H] Dhirubha Devi Singh Gohil vs State of Bombay , referred to.
B. Shankara Rao Badami and ors.
vs State of Mysore and Anr. ; @ 11 13, applied.
Apart from the remedy under the common law of torts, by way of suit for false imprisonment and claim for damages, there was no civil remedy for unlawful infringement of the right to personal liberty in India before the Constitution.
Even this remedy, after the amendment of section 491 of the Code of criminal Procedure became a statutory right in the nature of a habeas corpus.
The provisions of section 491 of the Criminal Procedure Code have been repealed by Act II of 1974 as being superfluous in view of article 226.
[231 C D] Waghela Rajsanji vs Sheik Masludin and ors.
14 I.A. 89 1) 96.
Satish Chandra Chakravarti vs Ram Dayal De I.L.R. @ 407 10, 425 426.
Baboo S/o Thakur Dhobi vs Mst.
Subanshi w/o Mangal Dhobi AIR 1942 Nagpur 99; Makhan Singh vs State of Punjab [1964] 4 SCR 797; District Magistrate Trivandrum vs K. C. Mammen Mappillai I.L.R. ; Matthen vs District Magistrate Trivandrum L.R. 66 I.A. 222.
Girindranath Banerjee vs Birendranath Pal ILR and King Emperor vs Sibnath Banerjee 72 1.A. 241, referred to.
There was no statutory right to enforce the right to personal liberty other than that in section 491 of the Criminal Procedure Code before the commencement of the Constitution which could be carried over after its commencement under article 372.
Law in article 21 will include all post constitutional statute, law including and by virtue of article 372 all pre constitutional statute law, including the I.P.C. and the Cr.
P.C. [231 F G] The present appeals do not touch any aspect of article 20.
Article 20 is a constitutional mandate to the judiciary and article 21 is a constitutional mandate to the Executive.
The expression "no person shall be prosecuted for the same offence more than once" in article 20 would apply only to the executive.
It is 179 incorrect to say that "State" in article 12 will also include the Judiciary and article 20 is enforceable against the Judiciary in respect of illegal orders.
[232 E F, G H] Makhan Singh vs State of Punjab [1964] 4 SCR 797 and Narayan Singh vs State of Delhi and ors.
; not applicable.
Articles 256, 265 and 361 have no relevance to displace the proposition that article 21 is the repository of rights to life and liberty.
Nor does an appeal in a criminal proceedings have anything to do with article 21.
[233 C D] Garikapatti Veerayya vs N. Subbiah Choudhury ; and Ahmedabad Mfg. & Calico Ptg.
Co. Ltd. vs Ram Tahal Ramnand and ors.
; , referred to.
The right arising from a decree is not a Fundamental Right and, therefore, will not be prima facie covered by a Presidential order under article 359(1) [233 G] Fundamental Rights including the right to personal liberty are conferred by the Constitution.
Any pre constitution rights which are included in article 21 do not after the Constitution remain in existence which can be enforced, if article 21 is suspended If it be assumed that there was any pre constitutional right to personal liberty included in article 21 which continued to exist as a distinct and separate right then article 359(1) will be an exercise in futility.
[234 A B] Makhan Singh vs State of Punjab explained.
The theory of eclipse is untenable.
The theory of eclipse refers to pre constitutional laws which were inconsistent with Fundamental Rights.
By reason of article 13(1) such laws did not became void but became devoid of legal force.
Such laws became eclipsed for the time being.
The theory of clipse has no relevance to the suspension of the enforcement of fundamental Rights under article 359(1).
The constitutional provisions conferring Fundamental Rights cannot be said to be inconsistent with article 13(1).
[234 B D] P. D. Shamdasani vs Central Bank of India Ltd. ; and Smt.
Vidya Verma through next friend R. V. section Mani vs Dr. Shiv Narain Verma ; , reiterated.
The Act in the present case is valid law and it has laid down procedure of applying the law.
The validity of the Act has not been challenged and cannot be challenged.
The Legislature has competence to make the law.
The procedure, therefore, cannot be challenged because article 21 and 22 cannot be enforced. 'The suggestion that the power of the Executive is widened is equally untenable.
[235 E F] The fact that section 491 of the Criminal Procedure Code has been abolished in he new Code establishes that the pre existing right was embodied as a Fundamental Right in the Constitution.
The right to personal liberty became identified with Fundamental Right to personal liberty under article 21.
[236 A] The Presidential orders does not alter or suspend any law.
The rule of law is not a mere catchword or incantation.
The certainty of law is one of the elements in the concept of the rule of law.
The essential feature of rule of law is that the judicial power of the State is, to a large extent, separate from the Executive and the Legislature.
[236 B C] It is not correct to argue that if pre existing law is merged in article 21, there will be conflict in the Article 372.
The expression "law in force" in article 372 cannot include laws which are incorporated in the Constitution, viz. in Part III.
The expression "law" in Articles 19(1) and 21 takes in the statute law.
[235 B] The Presidential order under article 359(1) is not a law.
The order does not repeal any law either.
The contention that permanent law cannot be repealed by temporary law is misplaced.
[235 C] The entire concept in article 21 is against Executive action.
There is no question of infringement of Fundamental Right under article 21 where the detention 180 complained of is by a private person and not by a State or under the authority or orders of a State.
[235 D] The Executive cannot detain a person otherwise than under valid legislation.
The suspension of any Fundamental Right does not affect this rule of the Constitution.
Article 358 does not detract from the position that the Executive cannot act to the prejudice of a person without the authority of law.
[237 A F] Rai Sahib Ram Jawaya Kapur & ors.
vs The State of Punjab ; MP.
State vs Bharat Singh ; ; Dy.
Collector vs Ibrahim & Co. Bennet Coleman & Co vs Union of India ; and Meenakshi Mills vs Union of India , discussed and distinguished.
The Constitution is the mandate.
The Constitution is the rule of law.
No one can arise above the rule of law.
The suspension of right to enforce Fundamental Rights has the effect that the emergency provisions in Part XVIII are by themselves the rule of law during times of emergency.
There cannot be any rule of law other than the constitutional rule of law. 'There cannot be any pre constitution or post constitution rule of law which can run counter to the rule of law embodied in the Constitution, nor can there be any invocation to any rule of law to nullify the constitutional provisions during the times of emergency.
[224 B, 238 D E] Eshugbayi Eleko vs Officer Administering the Govt.
Of Nigeria ; and Christie and Anr.
vs Leachinsky ; not applicable.
The expression "for any other purpose" in article 226 means for any purpose other than the enforcement of Fundamental Rights.
A petition for habeas corpus by any person under article 226 necessarily invokes a question whether the detention is legal or illegal.
An executive action if challenged to be ultravires a statute cannot be challenged by any person who is not aggrieved by any such ultra vires action.
[239 D E] The expression "purported to be made under section 3 of the Act" in section 18 will include an Executive act made by the District Magistrate within the scope of his authority as District Magistrate even if the order is made in breach of the section or is mala fide.
[240 A B] Hari Ram Singh vs The Crown Bhagchand Dagadusa vs The Secretary of State for India L.R. 54 I.A. 338 @ 352; Albert West Meade vs The King AIR 1948 P.C. 156 at 157 59; Animistic vs Foreign Compensation etc. ; at 212, 213 and 237 and Dakshina Ranjan Ghosh vs Omar Chand Oswal I.L.R. SO Cal.
992 at 995 1003, applied.
Poona Municipal Corporation vs D. N. Deodhar ; ; Kala Bhandar vs Municipal Committee and Indore Municipality vs Niyamultulla AIR 1971 SC 97 and Joseph vs Joseph not applicable.
There is no question of excessive delegation in section 18 which lays down the law.
To contend that section 18 applies only to post detention challenge is wrong.
Section 18 applies to all orders of detention.
Section 18 of is only an illustration of the Act by the officers authorised by the Act.
[240 C E] Section 16A(9) of the Act is valid.
It is a rule of evidence and it is not open either to the detenu or the Court to ask for the grounds of detention.
[246 C] Materials and information on which orders of preventive detention are passed necessarily belong to a class of documents whose disclosures would impair the proper functioning of Public service and administration.
[242 D] Liversidge vs John Anderson ; at 221, 253, 254, 266, 267, 279, 280 and Roger 's case @ 400, 401, 405, applied.
181 Legislature has enacted 5.
16A(9) providing for a general exclusion from evidence of all such material as would properly fall within the classification instead of forcing the State to claim in individual cases privilege under sections 123, 162 of the Evidence Act or under article 22(6) of the Constitution.
[242 E F] Section 16A cannot be said to be an amendment to article 226.
The jurisdiction to issue writs is neither abrogated nor abridged.
Section 16A(9) enacts provisions analogous to a conclusive proof of presumption.
Such a provision is a genuine rule of evidence.
It is in the nature of an explanation to sections 123 and 162 of the Evidence Act.
Section 16A(9) is a rule of evidence.
When the detaining authority is bound by section 16A(9) and forbidden absolutely from disclosing such material no question can arise of adverse inference against the authority.
[242 G H] Section 16A(9) cannot be read implying an exception in form of disclosure to the Court.
Such disclosure to the Court alone and not to the detenu will introduce something unknown to judicial procedure and will bring in an element of arbitrariness and preclude both the parties from representing their respective cases.
The view of the detaining authority is not to be substituted by the view of the court.
[243 A C] State of Bombay v Atma Ram Sridhar Vaidya ; ; Shiban Lal Saksena vs State of Uttar Pradesh and ors.
; ; Rameshwar Shaw vs District Magistrate Burdwan and Anr. ; ; Jaichand Lal vs W. Bengal [1966] Supp.
SCR 464 and Dr. Ram Manohar Lohia vs State of Bihar [1966] I SCR 709, referred to.
The theory of good return mentioned in the English decisions is based on the language of Habeas Corpus Act and the Rules of the Supreme Court of England.
The practice of our Court is different.
[243 C D] M. M. Damnoo vs J. K. State ; and A. K. Gopalan vs State of Madras ; , distinguished.
It is not competent for any court to go into questions of malafides of the order of detention or ultra vires character of the order of detention or that the order was not passed on the satisfaction of the detaining authority.
Section 16A of the Act contains definite indications of implied exclusion of judicial review on the allegations of mala fide.
The reason why section 16A has been enacted is to provide for periodical review by Government and that is the safeguard against any unjust or arbitrary exercise of power.
The production of the order which is duly authenticated constitutes a peremptory answer to the challenge.
[243 G H, 244 A, 245 B] In view of the inability of the court to grant any relief on the basis whether order of detention is the result of malice or ill will, the detention of malafides is not only ineffective but also untenable.
[244 DE] Lawrence loachim Joseph D 's Souza vs The State of Bombay ; @ 392, 393; Smith vs East Elloc Rural District Council & ors.
at 776 and Dr. Ram Manohar Lohia vs State of Bihar and ors.
; , referred to.
A decision on a point not necessary for the purpose or which does not fall to be determined in that decision becomes obiter dictum.
[227 F] Maharaja Dhiraja Madhav Rao Jivaji Rao Scindia Bahadur and 193 to 194, referred to.
Per M. H. Beg, 1.
A prima facie valid detention order, that is to say, one duly authenticated and passed by an officer authorised to make it recording a purported satisfaction to detain the petitioner under the , which is operative either before or after its confirmation by the Government, is a 182 complete answer to a petition for a writ of habeas corpus.
Once such an order is shown to exist in response to a notice for a writ of habeas corpus, the High Court cannot inquire into its validity or vires on the ground of either mala fides of any kind or of non compliance with any provision of the in habeas corpus proceedings.
[371 G H, 372 A] The fundamental law found in the Constitution is paramount.
The Constitution provides the test for the validity of all other laws.
It seeks to determine the spheres of executive and legislative and judicial powers with meticulous care and precision.
The judicial functions though wider in range when interpreting or applying other articles of the Constitution, particularly Articles 14 and 19, the enforcement of which is also suspended during the current emergency, is especially constricted by the elaborate provisions of Articles 21 and 22, which deal with personal liberty and preventive detention.
The wider the sweep of the provisions of Articles 21 and 22 the more drastic must be the effect of suspending their enforcement.
Suspension does not and cannot mean retention under a disguise.
[312 F H] Marbury vs Madison [1803] I Cranch 137; A. K. Gopalan vs State of Madras ; @ p. 109, referred.
The only Rule of Law which can be recognised by courts of our country is what is deducible from our Constitution itself.
The Constitution is an embodiment of the highest "positive law" as well as the reflection of all the rules of natural or ethical or common law Lying behind it which can be recognised by courts.
The spirit of law or the Rule of Law Cannot hover ominously around like some disembodied ghost serving as a substitute for the living Constitution.
It has to be found always within and operating in harmony with and never outside or in conflict with what our Constitution enjoins.
[313 A, D E] The most important object of making certain basic rights fundamental by the Constitution is to make them enforceable against the State and its agencies through the Courts.
[329 F] Under our constitutional jurisprudence courts cannot, during a constitutionally enjoined period of suspension of the enforceability of fundamental rights through courts, enforce hat may even be a Fundamental Right sought to be protected by Part III of the Constitution.
[314 C D] The enforceability of a right by a constitutionally appointed judicial organ has necessarily to depend upon the fulfillment of two conditions: firstly, its recognition by or under the Constitution as a right; and, secondly, possession of the vower of its enforcement by the judicial organs.
Article 226 of the Constitution is not meant for futile and unenforceable declarations of right.
The whole purpose of a writ of habeas corpus is to enforce a right to personal freedom after the declaration of the detention as illegal when it is so found upon investigation.
Enforceability of rights, whether.
they are constitutional or common law or statutory, in constitutionally prescribed ways by constitutionally appointed judicial organs is governed solely by the terms of the written instrument in n Constitution such as ours.
The scope for judicial law making on the subject of enforcement of the right to personal freedom was deliberately restricted by our Constitution makers.
It is difficult to see any such scope when enforcement itself is suspended.
[314 E F, 315 B C] What is suspended is really the procedure for the enforcement of a right through courts which could be said to flow from the infringement of a statutory procedure.
If the enforcement of a right to be free, resulting derivatively from both the constitutional and statutory provisions based on an infraction of the procedure.
which is statutory in cases of preventive detention, is suspended, it is impossible to lay down that it becomes enforceable when that part of the procedure which is mandatory is violated but remains unenforceable so long as the part of the procedure infringed is directory.
Such a view would introduce a ' distinction which is neither warranted by the language of Article 359 of the Constitution nor by that of the Presidential order of 1975.
[315 F G] 183 If the protection of enforceability is validly suspended for the duration of an Emergency, declared under constitutional provisions, the courts will have nothing before them to enforce so as to able to afford any relief to a person who comes with a grievance before them.
[329 G] A court cannot.
in exercise of any supposed inherent or implied or unspecified power, purport to enforce or, in substance enforce, a right the enforcement of which is suspended.
To permit such circumvention of the suspension is to authorise doing indirectly what law does not allow to be done directly.
[317 E F] [His Lordship felt that it was unnecessary to consider "any other purpose" in article 226 of the Constitution in view of the fact that each of detenus asked for a writ or habeas corpus and for no other kind of writs or orders.] The Constitution given unto themselves by the people, is legally supreme.
A notional surrender by the people of India of control over their several or individual rights to a Sovereign Republic by means of a legally supreme Constitution only means that the Constitution is supreme and can confer rights and powers.
One has to look to it alone and not outside it for finding out the manner in which and the limits subject to which individual citizens can exercise their separate freedoms.
A satisfactory explanation of the language of conferment used with reference to rights is that there has to be necessarily, as a result of such a process of Constitution making, a notional surrender of individual freedom so as to convert the possibility of "licence" to all, which ends in the exploitation and oppression of the many weak by the few strong into the actuality of a freedom for all regulated by law or under the law applicable to all.
[318 F H] Smt.
Indira Nehru Gandhi vs Raj Narain [1976] 2 SCR referred to.
Rules of natural justice, which are impliedly read into statutes from the nature of Functions imposed upon statutory authorities or bodies have sometimes been placed on the same footing as "Fundamental Rights of men which are directly and absolutely safeguarded" by written Constitutions.
The implied rules of natural justice do not override the express terms of a statute.
They are only implied because the functions which the statute imposes are presumed to be meant to be exercised in accordance with these rules, and therefore treated as though they were parts of enacted law.
The principles of natural justice which are so implied must always hang, if one may so put it on pegs of statutory provisions or necessarily flow from them and have no independent existence.
[319 G H, 320 A] State of Orissa vs Dr. Miss Binapani Dei & ors.
; , applied.
Fundamental Rights are basic aspects of rights selected from what may previously have been natural or common law rights.
These basic aspects of rights are elevated to a new level of importance by the Constitution.
Any other co extensive rights, outside the Constitution, are necessarily excluded by their recognition as or merger with Fundamental Rights.
[329 B] The object of making certain general aspects of rights fundamental is to guarantee them against illegal invasions of these rights by executive, legislative.
Or judicial organs (i e. Article 20) of the State.
This necessarily means that these safeguards can also be legally removed under appropriate constitutional or statutory provisions, although their suspension does not, by itself, take away the illegalities or their legal consequences.
The intention was to exclude all other control or to make the Constitution, the sole repository of ultimate control over those aspects of human freedom which are guaranteed in Part m. [319 A C & 329 C] Article 21 of the Constitution has to be interpreted comprehensively enough to include, together with article 19 practically all aspects of personal freedom.
It embraces both procedural and substantive rights.
Article 22 merely makes it clear that deprivations of liberty by means of laws regulating preventive detention would be included in "procedure established by law" and indicates what that procedure should be.
In that sense, it could be viewed as, sub 184 stantially, an elaboration of what is found in Article 21, although it also goes beyond it inasmuch as it imposes limits on ordinary legislative power.
[329 D E] Taken by itself, article 21 of the Constitution is primarily a protection against illegal deprivations by the executive action of the State 's agents or officials although, read with other Articles, it could operate also as a protection against unjustifiable legislative action purporting to authorise deprivations of personal freedom.
[329 F] Article 21 was only meant, on the face of it, to keep the exercise of executive power, in ordering deprivations of life or liberty, within the bounds of power prescribed by procedure established by legislation Article 21 furnishes the guarantee of "Lex", which is equated with statute law only, and not of "jus" or a judicial concept of what procedural law ought really to be.
The whole idea in using this expression was to exclude judicial interference with executive action in dealing with lives and liberties of citizens and others living in our country on any ground other than that it is contrary to procedure actually prescribed by law which meant only statute law.
According to well established canons of statutory construction, the express terms of "Lex" (assuming, of course, that the "Lex" is otherwise valid), prescribing procedure, will exclude "Jus" or judicial notions of "due process" or what the procedure.
Ought to be.
[321 H. 322 A C] A. K. Gopalan vs State of Madras ; referred to.
The suggestion that 'jus", which has been deliberately excluded from the purview of "procedure established by law", can be introduced by courts, through a back door, as though it was an independent right guaranteed by Chapter III or by any other part of the Constitution, cannot be acceded to.
[322 E F] R. C. Cooper vs Union of India ; , 578, distinguished.
Neither rights supposed to be recognised by some natural law nor those assumed to exist in some part of Common Law could serve as substitutes for those conferred by Part III of the Constitution.
They could not be, on any principle of law or justice or reason, virtually added to Part III as complete replacements for rights whose enforcement is suspended, and then be enforced, through constitutionally provided machinery, as the unseen appendages of the Constitution or as a separate group of rights outside the Constitution meant for the emergency which suspends but does not resuscitate in a new form certain rights.
[325 B D] His Holiness Kesavananda Bharati Sripadagalavaru vs State of Kerala [1973] Supp.
SCR @ 1.
Satish Chandra Chakraworti vs Ram Dayal De ILR P @ 407 410, 425 and 426: Waghela Rajsanji vs Sheikh Masludin and ors.
14 Indian Appeals p. 89 and Baboo Seo Thakur Dhobi vs Mst.
Subanshi w/o Mangal Dhobi, AIR 1942 Nagpur 99, referred to.
Not only all steps leading up to the deprivation of personal liberty but also the substantive right to personal freedom.
by implication, is covered by Article 21 of the Constitution.
[328 E F] 1.
C. Golaknath & ors.
vs Sate of Punjab and Another Even if article 21 is not the sole repository of all personal freedom, it will be clear, that all aspects of freedom of person are meant to be covered by Articles 19, 21, and 22 of the Constitution.
If the enforcement of these rights by Courts is suspended during the emergency, an inquiry by a court into the question whether any of them is violated by an illegal deprivation of it by executive authorities of the State seems futile.
[328 H, 329 A] A. K. Gopalan State of Madras ; and Kharak Singh vs State of UP & ors.
[1964] I SCR 332, applied.
The power to issue a writ is conferred upon courts exclusively by our Constitution All the powers of our courts flow from the Constitution which is the source of their jurisdiction.
If any provision of the constitution authorises the 185 suspension of the right to obtain relief in any type of cases, the power of courts is thereby curtailed even though a general jurisdiction to afford the relief in other cases may be there.
If they cannot issue writs of habeas corpus to enforce a right to personal freedom against executive authorities during tho emergency, the original nature of this writ issuing power comparable to a "prerogative" power cannot help the detenu.
[330 G H] It is a well recognised principle of law that whatever could be formerly even said to be governed by a common law prerogative power becomes merged in the Constitution as soon as the Constitution takes it over and regulates that subject.
[331 A] Principle in Attorney General vs De Keyser 's Royal Hotel Limited, ; @ 526 applied.
If there is no enforceable right either arising under the Constitution or otherwise, it is useless to appeal to any general power of the court to issue a writ of habeas corpus.
If the effect of suspension of the right to move the court for a writ of habeas corpus is that no inquiry can take place beyond finding out that the cause is one covered by the prohibitions mere possession of general power will not assist the detenu.
[331 C D] If the right to enforce personal freedom through a writ of habeas corpus is suspended, it cannot be said that the enforcement can be restored by resorting to "any other purpose".
That other purpose could not embrace defeating the effect of suspension of the enforcement of a constitutional guarantee and if held so would be making a mockery of the Constitution.
[331 D E] Nothing in the nature of a writ of habeas corpus or any power of a High Court under article 226 could come to the aid of a detenu when the right to enforce a claim to personal freedom, sought to be protected by the Constitution is suspended.
[331 E F] Provision for preventive detention in itself aptly described as "jurisdiction of suspicion" is a departure from ordinary norms, and resorted to either in times of war or of apprehended internal disorders and disturbances of a serious nature, with the object of preventing a greater dager to national security and integrity than any claim which could be based upon a right, moral or legal, to individual liberty.
[332 B C] Haradhan Saha & Anr.
vs The State of West Bengal and ors.
; ; Khudiram Das vs State of West Bengal [1975] 2 SCR p.832 @ p. 842; State of Madras vs V.G. Row AIR 1952 SC 197 @ 200 and Rex vs Halliday ; @ 275, referred to.
It is true that the Presidential order of 1975 like the Presidential order of 1962, does not suspend the general power of this Court under article 32 or the general powers of High Courts under article 226, bot the effect of taking away enforceability of the right of a detenu to personal freedom against executive authorities is to affect the locus standi in cases which are meant to be covered by the Presidential order.
Courts, even in habeas corpus proceedings, do not grant relief independent of the rights of the person deprived of liberty.
If the locus standi of a detenu is suspended, no one car.
claim to get his right enforced.
, [338 E F] If a case so patently gross and clear of a detention falling, on the face of the order of detention or the return made to a notice from the court, outside the provisions of the Act on the ground of personal malice of the detaining authority, or, some other ground utterly outside the Act, arises so that no further investigation is called for, it may be possible to contend that it is not protected by the Presidential order of June 27, 1975, and by the provisions of article 359(1) of the Constitution at all.
The mere presence of an official seal or signature on a detention order, in such a purely hypothetical case, may not be enough to convert it into a detention by the State or its agents or officers.
That is the almost utterly inconceivable situation or type of case which could still 186 be covered by the general power to issue writs of habeas corpus.
The remedy by way of a writ of habeas corpus is more general than relief against official action.
It lies even against illegal detentions by private persons although not under article 32 which is confined to enforcement of Fundamental Rights.
[339 A E] Shrimati Vidya Verma, though next friend R.V.S. Mandi vs Dr Shiv Narain Verma [1955] 2 SCR p. 983, referred to.
Courts must presume that executive authorities are acting in conformity with both the spirit and the substance of the law: The maxim "omnia praeswumuntur rite esse actus" means that all official acts are presumed to have been rightly and regularly done.
If the burden to displace that presumption is upon detenu, he cannot, in a habeas corpus petition under article 226 of the Constitution, ask the court to embark upon an inquiry, during the emergency, and allow him to lead evidence to rebut this presumption.
To do so would be plainly to countenance a violation of the Constitutional mandate suspending the procedure.
[340 A C] Eshughayi Eleko vs Officer Administering the Government of Nigeria & Anr.
@ 670; Liversidge vs Sir John Anderson and Anr.
[1942] A.C. p. 206 @ 217 and 219 and 273.
Rex vs Secretary of State of Home Affairs, Ex parte Lees and Green vs Secretary of State of Home Affairs, @ 293, discussed.
Decisions on what restraints should be put and on which persons during a national emergency, in the interests of national security, are matters of policy which are outside the sphere of judicial determination.
[344 G] Liversidge vs Sir John Anderson ; and Rex vs Halliday Ex Parte Zadiq ; , referred to.
Under our Constitution, there is no distinction between the effects of a declaration of emergency under article 352(1) whether the threat to the security of the State is from internal or external sources.
Presidential declarations under article 352(1) and 359(1) of ' our Constitution are immune from challenge in courts even when the emergency is over.
A noticeable feature of our Constitutions is that, whereas the consequences given in article 358 as a result of a Proclamation under article 352(1) are automatic, Presidential orders under Article 359(1) may have differing consequence, from emergency to emergency depending upon the terms of the Presidential orders involved.
And then, Article 359(1A) made operative retrospectively by the 38th Constitutional amendment of 1st August 1975, makes it clear that both the legislative and executive organs of the State are freed for the duration of the emergency from the limits imposed by Part III of the Constitution.
[348 A D] The striking differences in the terms of the two Presidential orders are: (1) The Presidential order of 1962 did not specify Article 14 of the Constitution, but article 14, guaranteeing equality before the law and equal protection of laws to all persons in India, is mentioned in the 1975 order.
This does make some difference between the intentions behind and effects of ' the two Presidential orders.
[352 B C] (ii) The President Order of 1962 expressly hedges the suspension of the specified Fundamental Rights with the condition, with regard to deprivations covered by Article 21 and 22 of the Constitution that the detenu should be deprived of his rights "under the Defence of India Act, 1962 or any rules or order made thereunder".
In other words.
On the terms of the 1962 Presidential Order, the courts were under a duty to see whether a deprivation satisfies these conditions or not.
They could adjudicate upon the question whether a detention was "under " the Act or a rule "made thereunder".
On the other hand, the Presidential order of 1975 unconditionally suspends the enforcement of the rights conferred upon "any person including a foreigner" to move any court for the enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution.
The Courts are.
therefore, no longer obliged or able to test the validity of a detention by examining whether they conform to statutory 187 requirements.
They will have to be content with compliance shown with forms of the law.
[352 C E] (iii) Presidential order of 1962 makes no mention of pending proceedings, but.
the 1975 order suspends all pending proceedings for the enforcement of the rights mentioned therein.
This further clarifies and emphasizes that the intention behind the Presidential order of 1975 was to actually affect the jurisdiction of courts in which proceedings were actually pending.
the inference from this feature also is that all similar proceedings in future will similarly be affected.
[352 E F] There can be no doubt whatsoever that the Presidential order of June 27, 1975, was a part of a unmistakably expressed intention to suspend the ordinary processes of law in those cases where persons complain of infringement of their fundamental rights by the executive authorities of the State.
The intention of the Parliament itself to bring about this result so that the jurisdiction of courts under article 226 in this particular type of cases is itself affected for the duration of the emergency, seems clear enough from the provisions of section 16A(9) of the Act, introduced by Act No. 14 of 1976, which received Presidential assent on January 25. 1976, making section 16A(9) operative retrospectively from June 25, 1975.
[352 F H] There is no doubt that the object of the Presidential (order of June '27, 1975, by suspending the enforcement of the specified rights, was to affect the powers of courts to afford relief to those the enforcement of whose rights was suspended.
This was within the purview of Article 359(1).
Hence objections that powers of the courts under.
article 226 may indirectly be affected is no answer to the direct suspension of rights which was bound to have its effect upon the manner in which jurisdiction is or could reasonably be exercised even if that jurisdiction cannot be itself suspended for all types of cases.
[353 A B] The term Rule of Law is hot a magic wand which can he waved to dispel every difficulty.
It is not an Aladin 's lamp which can be scratched to invoke a power which brings to any person in need whatever he or she may desire to have It can only mean what the law in a particular State or country is and what it enjoins.
This means that the Rule of Law must differ in shades of meaning and emphasis from time to time and country to country.
It could not be rigid, unchanging, and immutable like the proverbial laws of the Medes and Persians.
It cannot be like some brooding omnipotence in the skies.
Its meaning cannot be what anyone wants to make it.
It has to be, for each particular situation.
indicated by the courts as to what it means.
[353 F H, 354 A] The Rule of Law includes the concept of determination by courts, of the question whether an impugned executive action is within the bounds of law.
It pre supposes, firstly, the existence of a fixed or identifiable rule of law which the executive has to follow as distinguished from a purely policy decision open to it under the wide terms of the statute conferring a discretionary power to act.
and secondly the power of the courts to test the action by reference to the rule.
[354 E F] Even in emergencies provided the power of the court to so test the legality of some executive act is not curtailed, courts will apply the test ' of legality "if the person aggrieved brings the action in the competent court".
But, if the locus standi of the person to move the court is gone and the competence of the court to enquire into the grievance is also impaired by inability to peruse the ground of executive action or their relationship with the power to act, it is no use appalling to this particular concept of the Rule of Law.
It is just inapplicable to the situation which arises here.
Such a situation is governed by the emergency provisions of the Constitution.
[354 F H] Youngs Town Sheet & Tube Co. vs Sawyer, ; , 655 and Chief Settlement Commissioner, rehabilitation Department Punjab & Ors. etc.
vs Om Prakash & Ors.
; @ [354 F H] Whereas article 358, by its own force.
suspends the guarantees of article 19, Article 359(1) has the effect of suspending the operation of specified Funda 188 mental Rights.
If, however, the application of Articles 14, 19, 21 and 22 of the Constitution is suspended it is impossible to say that there is a Rule of Law found there which is available for the courts to apply during the emergency to test the legality of executive action.
[355 A C] Mohd. Yaqab etc.
vs The State of Jammu & Kashmir [1968] 2 SCR p. 227 @ 234, referred to.
The suggestion that a common law remedy by way of writ of habeas corpus exists, even after section 491 was introduced in the.
Criminal Procedure Code in 1923, is incorrect.
The sweep of article 359(1) of the Constitution taking in the jurisdiction of "any court" is wide enough to cover any kind of relief claimed by a petitioner for the enforcement of a specified Fundamental Right.
[355 D E] Pleas which involve any adduction of evidence would be entirely excluded by the combined effect of the terms of The Presidential order of June 27, 1975 read with the amended provisions of section 16A(9) of the Act.
In a case in which the officer purporting to detain had in fact, not been invested at all with any authority to act, the detention would be on the same footing as one by a private person who has no legal authority whatsoever to detain.
[357 C E] Makhan Singh vs State of Punjab [1964] 4 SCR 797 @ 821 822 and 5.
Pratap Singh vs State of Punjab ; , referred to.
The suspension of enforcement of specified Fundamental Rights operates only to protect infringements of rights by the State and its authorised agents, acting or purporting to act, in official capacities which they could and do hold.
A claim to an order of release from such a patently illegal detention, which is not by the State or on its behalf, could be enforced even during the current emergency.
[357 G] The presumption of validity of a duly authenticated order or an officer authorised to pass it is conclusive in habeas corpus proceedings during the current emergency.
By means of a differently phrased Presidential order of June 17, 1975 and the amendments in the Act, introducing rather drastic provisions of section 16A of the Act, the intention has been made clear that preventive detention should be a matter controlled exclusively by the executive departments of the State.
[358 B, 361 B C] State of Madhya Pradesh and Anr.
vs Thakur Bharat Singh ; State of Maharashtra vs Prabhakar Pandurang Sangzgiri and Anr. ; Dr. Ram Manohar Lohia vs State of Bihar and ors.
; ; K. Anandan Nembiar and Anr.
vs Chief Secretary, Government of Madras and ors.
; ; Durga Das Dhirali vs Union of India and ors ; Jai Lal vs State of West Bengal [1966] Supp.
SCR p. 4, 64, discussed and distinguished.
lt is very difficult to see the bearing of any such doctrine that the Rule of Law under our Constitution is embodied in the principle of Separation of Powers on a pure and simple question of determination of the meaning of constitutional and statutory provisions couched in words which leave few doubts unresolved.
[361 C D] If an order of preventive detention is not quasi judicial, as it cannot be because of the impossibility of applying any objective standards to the need for it in a particular case, there could be no question of violating any principle of Separation of Powers by placing preventive detention exclusively within the control of executive authorities of the State for the duration of the emergency.
[361 H. 352 A] Rai Sahib Ram Jawaya Kapur and ors.
vs The State of Punjab, , referred to.
Means of redress in cases such as those of mistaken identity or misapprehension of facts or of detenus due to false and malicous reports circulated by enemies are still open to detenu by approaching executive authorities.
There 189 is no bar against that.
What is hot possible is to secure a release by an order in habeas corpus proceedings after taking the courts behind a duly authenticated prima facie good return.
[366 B C] If the meaning of the emergency provisions in our Constitution and the provisions of ' the Act is clearly that what lies in the executive field should not be subjected to judicial scrutiny or judged by judicial standards of correctness the courts cannot arrogate unto themselves a power of judicial superintendence which they do not, under the law during the emergency, possess.
[362 H] It does not follow from a removal of the normal judicial superitendence even over questions of vires, of detention orders, which may require going into facts behind the returns that there is no Rule of Law during the emergency or that the principles of ultra vires are not to be applied at all by any authority except when, on the face of the return itself, it is demonstrated in a court of law that the detention does not even purport to be in exercise of the executive power or authority or is patently outside the law authorising detention The intention behind emergency provisions and of the Act is that although such, executive action as is not susceptible to judicial appraisement, should not be subjected to it, yet, it should be honestly supervised and controlled by the hierarchy of executive authorities themselves.
It enhances the powers and therefore, the responsibilities of the Executive.
[363 F H] In actual practice, the grounds supplied always operate as an objective test for determining the question whether a nexus could reasonably exist between the grounds given and the detention order or whether some infirmities had crept in.
The reasonableness of the detention because the justiciable issue because it related to the decision.
It is doubtful whether this could be said to be an object of preventive detention authorised by the Constitution and embodied in the Act.
[334 D E] The object of the amending Acts 39 of 1975 and 14 of 1976 was to affect the manner in which jurisdiction of courts in considering claims for reliefs by detenus oh petitions for writs of habeas courts was being exercised so that the only available means that has been developed for such cases by the courts, that is to say, the scrutiny of grounds supplied under section 8 of the Maintenance.
Of Internal Security Act may be removed from the judicial armoury, for the duration of emergency.
[336 C D] Prabhu Dayal Deorah etc.
vs District Magistrate Kamrup and ors.
; , referred to.
The contention that section 16A(9) affects the jurisdiction of High Courts under article 226 which an order under article 359(1) could not do, is untenable.
A Presidential Order which prevents a claim for the enforcement of a Fundamental Right from being advanced in a court, during the period of an emergency could possibly be said not to be intended to affect the exercise of jurisdiction of courts at all, is not correct.
[336 F G] That section 16A(9) amounts to a general legislative declaration in place of judicial decisions which courts had themselves to give after considering, on the facts of each case, whether article 226 could be applied, is also not acceptable.
the result of section 16A(9) to be valid would be to leave to the presumption of correctness of an order under section 3 of the Act untouched by any investigation relating to its correctness.
Now if this be the object and effect of The amendment, it could not be said to go beyond it to rebut a presumption of legality and validity or an order under section 3 of the Act, if prima facie case is made out.
[336 G H, 337 A] Observation [The same result could have been achieved by enacting that a detention order under section 3, prima facie good, will operate as "conclusive proof" that the requirements of section 3 have been fulfilled.
But, as the giving of grounds is not entirely dispensed with under the Act even as it now exists, this may have left the question in doubt, whether courts could call upon the detaining authorities 190 to produce the grounds.
Enactment of a rule of conclusive proof is a well established form of enactments determining substantive rights in the form of procedural provisions].
[337 A B] Section 16A(9) makes it impossible for courts to investigate questions relating to the existence or absence of bona fides at least in proceeding under An. 226, It is clear that the validity of section 16A(9) cannot be challenged on the ground, of any violation of Part III of ' the Constitution in view of the provisions of article 359(1)(A).
[353 C D] A challenge to the validity of section 16A(9) based either on the submission on hat grounds for detention do not call for secrecy or that the provision is an unwarranted invasion of judicial power, even in an emergency, is not well founded.
There is no such strict separation of power under our Constitution No particular provision of the Constitution could be pointed out in support of the proposition that preventive detention is a matter in which judicial superintendence must necessarily be preserved as a part of the doctrine of separation of powers.
[365 E F] Rai Sahib Ram Jawaya Kapur and ors vs State of Punjab , referred to.
Section 16A(9) imposes a bar which cannot be overcome in habeas corpus proceedings during the emergency.
In addition, a specific suspension or enforcement of the right of personal freedom against executive authorities places the presumption arising from a duly authenticated order of a legally authorised detaining officer on a higher footing than merely ordinary rebuttable presumption for purposes of proceedings under article 226 of the Constitution.
[367 F G] [His Lordship felt it unnecessary to consider the validity of section 16A(9) if it was to be applied at a time not covered by the emergency, or whether it should, be read down for the purposes of a suit for damages where the issue is whether the detention was ordered by a particular officer out of malice in, fact and for reasons completely outside the purview of the Act itself.
[337 C D] Section 16 of the Act seems to leave open a remedy by way of suit for Damages for wrongful imprisonment in a possible case of what may be called "malice in fact".
In the cases for habeas corpus, proceedings under article 226 of the Constitution where "malice in fact" could not be investigated.
as it is bound to be an allegation subsidiary to a claim for the enforcement of a right to personal liberty, a Fundamental Right which cannot be enforced during the Emergency.
[337 G H] Sree Mohan Chowdhury vs The Chief Commissioner, Union Territory of Tripura ; @ 450, followed.
Even the issue that the detention order is vitiated by "malice in fact ' will not be justifiable in habeas corpus proceedings during the emergency although it may be in an ordinary suit which is not filed for enforcing a Fundamental Right but for other reliefs.
The question of bona fides seems to be left open for decision by such suits on the language of section 16 of the Act itself.
[368 D E] In the case of preventive detention, placing the burden upon the executive authorities of proving the strict legality and correctness of every step in the procedure adopted in a case of deprivation of personal liberty, and asking the executive authorities to satisfy such a requirement, in accordance with what has been called the principle in Eschugbayi Eleko 's case; , @ 670, would be to nullify the effect of the suspension of the enforceability of the procedural protection to the right of Personal freedom.
To do so is really to take the Presidential order under Article 359(1) of the Constitution ineffective.
[368 B C] No question of "malice in law" can arise in habeas corpus proceedings when such a protection is suspended.
As regards the issue of "malico in fact" it cannot be tried at all in a habeas corpus proceedings although it may be possible to try it in a regular suit the object of which is not to enforce a right to personal freedom but only to obtain damages for a wrong done which is not 191 protected by the terms of section 16 of the Act.
The possibility of such a suit should be another deterrent against dishonest use of these powers by detaining officers.
[1368 D E] Section 18, though unnecessary, appears to have been added by way of abundant caution.
It cannot be assailed on the ground of violation of basic structure.
[342 F G] The theory of basic structure oil the Constitution cannot be used to build into the Constitution an imaginary part which may be in conflict with the constitutional provisions.
The Constitution cannot have a base out away from the superstructure.
Indeed, the emergency provisions could themselves be regarded as part of the basic structure of the Constitution.
[366 E F] The theory of basic structure of the constitution cannot be considered as anything more than a part of a well recognised mode of constructing a document The Constitution like any other document has to be read and constructed as a whole.
The theory was nothing more than a method of determining the intent behind the constitutional provisions it could not and did not build and add a new part to the Constitution.
It cannot imply new tests outside he Constitution or be used to defeat constitutional provisions.
[366 G, 367 A] His Holiness Kesavananda Bharati Sripadagalavaru vs State of Kerala, [1973] Supp SCR 1, applied.
There is no provision in our Constitution for a declaration of Martial Law except article 34 of the Constitution which recognises the possibility of Martial Law in this country.
There is no separate indication in the Constitution of conditions in which Martial Law could be "proclaimed".
A Presidential order under article 359(1) of the Constitution would, ordinarily, have a wider range and effect throughout the country than the existence of Martial Law in any particular part of the country.
The Presidential proclamations are meant generally to cover the country as a whole.
Martial Law is generally of a locally restricted application.
The conditions in which what is called "martial law" may prevail result in taking Military Courts of powers even to try offences: and, the ordinary or civil courts will not interfere with this special jurisdiction under extraordinary conditions.
Such a taking over by Military courts is certainly outside the provisions of Alt.
359(1) of the Constitution taken by itself.
It could perhaps fall under Presidential powers under Articles 53 and 73 read with article 355.
[368 F H. 369 A C] Judicial proceedings in criminal courts not meant for the enforcement of Fundamental Rights, are not either at the initial or appellate or revisional stages, covered by the Presidential order of 1975.
Habeas corpus petitions are not maintainable, in such cases since the prisoner is deemed to be in proper custody under orders of a court.
[371 F G] Neither Article 136 nor Art 226 of the Constitutional is meant for the exercise of an advisory jurisdiction.
Attempts to lay down the law in an abstract form, unrelated to the facts of particular cases, not only do not appertain to the kind of jurisdiction exercised by this Court or by the High Courts under the provisions of article 136 and 226 respectively, but may result in misapplications of the law declared by courts to situations for which they were not intended at all.
[306 D E].
Per Chandrachud, J. The order issued by the President on June 27, 1975, under Article 359(1) does not suspend the fundamental principle that all executive action must have the authority of law to support it.
Nor does the Presidential order give to the executive a charter to disobey the laws made by the Parliament which is the supreme law making authority.[413 B C] The aforesaid Presidential order, however, deprives a person of his locus stand; to move any court, be it the Supreme Court or the High Court, for enforcement of his Fundamental Rights which are mentioned in the order 192 Such deprivation or suspension enures during the period that the proclamation of emergency is in force or for such shorter period as may be specified in the order.
[413 C D] The dominant purpose of the present petitions is to obtain an order of release from detention by enforcing the right to personal liberty.
The purpose is not to obtain a mere declaration that the order of detention is ultra vires the Act under which it is passed.
The former plea is barred by reason of the Presidential order.
The latter is also barred because regard must be had to the substance of the matter and not to the form in which the relief is asked for.
[413 E F] The Presidential order dated June 27, 1975, bars any investigation or inquiry into the question whether the order of detention is vitiated by mala fides, factual or legal, or whether it is based on extraneous considerations or whether the detaining authority had reached his subjective satisfaction validly on proper and relevant material [413 F G] Whether or not article 21 of the Constitution is the sole repository of the right to personal liberty, in a petition filed in the High Court under article '226 for the release of a person detained under the , no relief by way of releasing the detenu can be granted because no person has a legal capacity to move any court to ask for such relief.
The Presidential order takes away such legal capacity by including article 21 within it.
The source of the right to personal liberty is immaterial because the words "conferred by" which occur in article 359(1) and in the Presidential order are not words of limitation.
[413 G H, 414 A] The Presidential order does not bring about any amendment of article 226 and is not open to challenge on that ground.
[414 B] The contention that article 226 which occurs in Chapter V, of the Constitution is an entrenched provision and, therefore, under article 368 no amendment can be made to article 226 without ratification by the Legislatures of not less than one half of the States is untenable.
It is true that article 226 is in entrenched provision which cannot suffer an amendment except by Following the procedure prescribed by the proviso to article 368(2).
But the presidential order is issued under the Constitution itself and if its true constitutional produces a certain results it cannot be said that some other Article of the Constitution stands thereby amended article 359(1) provides for the passing of an order by the President declaring that the right to move for the enforcement of Fundamental Rights mentioned.
in the order shall be suspended.
That may, in effect.
affect the jurisdiction of the High Courts to entertain a petition for the issuance of the writ of habeas corpus.
But, that does not bring about any amendment of Article 226 within the meaning of article 368, which speaks of amendments to the Constitution by the Parliament in the exercise of its constitutional power.
Article 226 and Article 359(1) are parts of the same fundamental instrument and a certain interpretation of one of these Article cannot amount to an amendment of the other.
1;385 G H, 386 A B] The Presidential order neither bars the right of an accused to defend his personal liberty in the court of first instance or in a higher court nor does it bar the execution of decrees passed against the Government, nor dos it bar the grant of relief other than or less than the release of the detenu from detention.
[414 B C] Detention without trial is a serious on personal freedom but it bears the sanction of our Constitution.
The "clear and present danger test" evolved by Justice Holmes in Schenck vs United States, may well be extended to cases where there is a threat of external aggression.
[384 D E] The object of Art 359 is to confer wider powers on the President than the power merely to suspend the right to file a petition for the writ of habeas corpus.
Article 359 aims at empowering the President to suspend the right to enforce all or any of the Fundamental Rights conferred be Part III.
It is in order to achieve that object that Article 359 does not provide that the President may declare that the remedy by way of habeas corpus shall be suspended during emergency.
Personal liberty is but one of the Fundamental Rights conferred by Part m and the writ of habeas corpus is neculiar to the enforcement of the 193 right to personal liberty and, therefore the suspension of the right to enforce the right conferred by article 21 means and implies the suspension of the right tc file a habeas corpus petition or to take any other proceeding to enforce the right to personal liberty conferred by Article 21.
[384 G H, 385 A B] The true implication of the Presidential order is to take away the right of any person to move any court for the enforcement of the rights mentioned in the order.
In strict legal theory the jurisdiction and powers of the Supreme Court and the High Courts remain the same as before since the Presidential order merely take away the locus standi of a person to move these courts for the enforcement of certain Fundamental Rights during the operations of the Proclamation of Emergency.
The drive of Article 359(1) is not against the courts but is against individuals, the object of the Article being to deprive the individual concerned of his normal right to move the Supreme Court or the High Court for the enforcement of the Fundamental Rights conferred by Part III of the Constitution [386 C E] Sree Mohan Chowdhury vs The Chief Commissioner, Union Territory of Tripura ; , 451, referred to.
The argument that the limited object of article 359(1) is to remove restrictions on the power of the Legislature so that during the operation of the Emergency it would be free to make laws in violation of the Fundamental Rights specified in the Presidential order loses sight of the distinction between the provisions of article 358 and article 359 (1A) on the one hand and of Art 359(1) on the other.
Article 358, of ' its own force, removes the restrictions on the power of the Legislature to make laws inconsistent with article 19 and on the power of the Executive to take action under a law which may thus violate article 19.
Article 358 does not suspend any right which was available under article 19 to any person prior to the Proclamation of Emergency.
Article 359(1) is wider in scope than article 358.
In view of the language of article 359(1) and considering the distinction between it and the provisions of article 358, there is no justification for restricting the operation of article 359(1) as against laws made by the Legislatures in violation of the Fundamental Rights.
[386 G H, 387 A E] Sree Mohan Choudhary vs The Chief Commissioner, Union Territory of Tripura ; and Makhan Singh vs State of Punjab [1964] 4 SCR 797.
referred to.
Article 359(1) is as much a basic feature of the Constitution as any other, and it would be inappropriate to hold that because in normal times the Constitution requires the Executive to obey the laws made by the Legislature, therefore.
Article 359(1) which is an emergency measure, must be construed consistently with that position.
The argument of basic feature is wrong for yet another reason that article 359(1) does 'not provide that the Executive is free to disobey the laws made by the Legislature.
To permit a challenge in a court of law to an order of detention, which is an Executive action, on the ground that the order violates ar Fundamental Right mentioned in the Presidential order, is to permit the detenu to enforce a Fundamental Right during emergency in manner plainly contrary to article 359(1).
[388 E H, 389 A] All executive action which operates to the prejudice of any person must have the authority of law to support it.
article 358 does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and other.
It provides that so long as the Proclamation of Emergency subsists laws may be enacted and executive action may be taken ill pursuance of such laws, which if the provisions of article 19 were operative would have been invalid.
Article 359(1) bars the enforcement of any Fundamental Right mentioned in the Presidential order, thereby rendering it incompetent for any person to complain of its violation, whether the violation is by the Legislature or by the Executive.
[389 H, 390 A, 391 E F] State of Madhya Pradesh and Anr.
vs Thakur Bharat Singh ; ; District Collector of Hyderabad & ors.
vs M/s. Ibrahim & Co. etc. ; Bennett Coleman & Co. and ors.
vs Union of India & ors.
[1973] 833SCI/76 194 2 SCR 757, 773, 775 and Shree Meenakshi Mills Ltd. vs Union of India, , 405, 406 and 428, distinguished.
The Rule of Law rejects the conception of the dual State in which governmental action is placed in a privileged position of immunity from control be.
Such a notion is foreign to our basic constitutional concepts.
[392 F] Chief Settlement Commissioner, Rehabilitation Department, Punjab and ors vs Om Parkash & ors. ; 660 661 and Eshugbayi Eleka vs Officer Administering the Government of Nigeria ; 670.
distinguished.
The Rule of Law argument like the "basic feature" argument is intractable.
Emergency provisions contained in Part XVIII of the Constitution which are designed to protect the security of the State are as important as any other provision.
Of the Constitution.
The Rule of Law during an emergency, is as one finds it in the provisions contained in Chapter XVIII of the Constitution.
There cannot be a brooding and omnipotent Rule of Law drowning in its effervescence the emergency provisions of the Constitution.
[393 B D] Article 359(1) neither compels nor condones the breaches by the executive of the laws made by the Legislature.
Such condonation is the function of an act of indemnity.
[393 G] The object of empowering the President to issue an order under Alt.
359(1) suspending the enforcement of the right to personal liberty conferred by Part III of the Constitution cannot be to save all other rights to personal liberty except the one conferred by Part III which seems totally devoid of meaning and purpose.
Their is nothing peculiar in the content of the right to personal liberty conferred by Part III so that the Constitution should provide only for the suspension of the right to enforce that particular kind of right leaving all other rights to personal liberty intact and untouched.
This purpose cannot ever be achieved by interpreting Article 359(1) to mean that every right to personal liberty shall be enforceable and every proceeding involving the enforcement of such right shall continue during the emergency except to the extent to which the right is conferred by Part III of the Constitution.
The existence of the right to personal liberty in the pre constitution period was surely known to the makers of the Constitution.
[395 H, 396 A D] The right to personal liberty is the right of the individual to personal freedom, nothing more and nothing less.
That right along with certain other rights was elevated to the status of a Fundamental Right in order that it may not be tinkered with and in order that a mere majority should not be able to trample over it Article 359(1) enables the President to suspend the enforcement even of the right which were sanctified by being lifted out of the common morass of human rights.
If the enforcement of the Fundamental Rights can be suspended during an emergency it is hard to accept that the right to enforce no Fundamental Rights relating to the same subject matter should remain alive.
[396 G H 397 A] The words "conferred by Part Ill ' which occur in article 359(1) are not intended to exclude or except from the purview of the Presidential Order rights of the same variety or kind as are mentioned in Part III but which were in existence prior to the Constitution or can be said to be in existence in the post Constitution era.
apart from the Constitution.
The words "conferred by Part III are used only in order to identify the particular rights the enforcement of which can be suspended by tho President and not in order to impose a limitation the power of the President so as to put those rights which exist or which existed apart from the constitution beyond the reach of that power.
It therefore does not make any difference whether any right to personal liberty was in existence prior to the enactment of the Constitution either by way of a natural right statutory right common law right or a right available under the law of port.
Whatever may be the source of the right and whatever may be its justification.
the right in essence and substance is the right to personal liberty.
That 195 right having been included in Part III, its enforcement will stand suspended if it is mentioned in the Presidential order issued under Article 359(1).
[397 E H 398 A C] The rights conferred by article 21 and 19 cannot be treated as mutually exclusive But the suspension of the right to enforce the right of personal liberty means the suspension of that right wherever it is found unless its content is totally different as from one Article to another.
The right conferred by Article 21 is only a description of the right of personal liberty in older to facilitate its exact identification and such a description cannot limit the operation of the Presidential order to those cases only where the right to personal liberty is claimed under Article 21.
[398 F G] Rustom Cavasajee Cooper vs Union of India ; , 578, referred to.
The circumstance that The pre constitution rights continued in force after the enchantment of the Constitution in view of article 372 does not make any difference to this position because even assuming that certain rights to personal liberty existed before the Constitution and continued thereafter as they were not repugnant to any provision of the Constitution all rights to personal liberty.
having the same content as the right conferred by article 21 would fall within the mischief to the Presidential order.
[398 C H, 399 A] The theory of eclipse has no application to such cases because that theory applies only when a pre Constitution law becomes devoid of legal force on the enactment of the Constitution by reason of its repugnancy to any provision of the Constitution.
Such laws are not void but they are under an eclipse so long as the repugnancy lasts.
When the repugnancy is removed the eclipse also is removed and the law becomes valid.
[399 A B] As regards the doctrine of merger, every prior right to personal liberty merged in the right to personal liberty conferred by Part III.
But whether it merged or not, it cannot survive the declaration of suspension if the true effect of the Presidential order is the suspension of the right to enforce all and every right to personal liberty.
In that view, it would also make no difference whether the right to personal liberty arises from a statute or from a contract or from a constitutional provision contained in some Part other than Part III.
[399 B C] Article 361(3) speaks of a process for the arrest or imprisonment of a Governor issuing from any court.
Fundamental Rights can be exercised as against judicial orders but the circumstances in which such a Process may come to be issued.
if at all, may conceivably affect the decision of the question whether a Presidential Order issued under Article 359(1) can bar the remedy of an aggrieved Governor.[400 B C] A failure to comply with Article 256 may attract serious consequences but no court is likely to entertain a grievance at the instance of a private party that article 256 has not been complied with by a State Government.
[400 D] [As regards the claim to personal liberty founded on a challenge to an order on the ground of excessive delegation His Lordship preferred to express no firm opinion though, the greater probability is that such a challenge may tail in face of a Presidential order of the kind which has. been passed in the instant case.
[400 D E] The existence of common law rights prior to the Constitution will not curtail the operation of the Presidential order by excepting.
those rights from the purview of the order.
[400 E] Dhirubha Devisingh Gohil vs The State of Bombay [1955] 1 SCR and Makhan Singh v State of Punjab [1964] 4 SCR 797, 818 819, applied.
The Presidential order dated June 27, 1975, does not contain any clause like the one in the order dated November 3, 1962 Article 359(1) is only an 196 enabling provision and the validity of a plea cannot be tested with reference to that Article.
The right to move a court for the enforcement of the rights conferred by Part III is not taken away by Article 359(1).
It is the Presidential order passed in pursuance of the powers conferred by that Article by which such a consequence can be brought about.
The Presidential order in the instant case is not subject to the preconditions that the detenu should have been deprived of his right under any particular Act and therefor, there is no scope for the enquiry whether the order is consistent or in conformity with any particular Act.
[405 B H, 406 A, 407 B C] Makhan Singh vs State of Punjab [1964] 4 SCR 797; Dr. Ram Manohar Lohia vs State of Bihar ; K. Anandan Nambiar and Anr.
vs Chief Security Government of Madras & ors.
; State of Maharashtra vs Prabhakar Pandurang Sangzgiri & Anr. ; , discussed and distinguished.
A mala fide exercise of power does not necessarily imply any moral turpitude and may only mean that the statutory power is exercised for purposes Other than those for which the power was intended by law to be exercise.
In view of the fact that an unconditional Presidential order of the present kind effects the locus standi of the petitioner to move any court for the enforcement of any of his Fundamental Rights mentioned in the order, it would not be open to him to show that the statutory power has been exercised for a purpose other than the one duly appointed under the law.
So long as the statutory prescription can be seen on the face of the order to have been complied with no further inquiry is permissible as to whether the order is vitiated by legal mala fides.
[409 E F] Makhan Singh vs State of Punjab [1964] 4 SCR 797; Jai Chand Lall Sethia vs State of West Bengal & ors.
[1966] Supp.
SCR 464 and Durgadas Shirali vs Union of India & ors.
; , referred to.
As regards mala fides in the sense of malice in fact, the same position must hold good because the Presidential order operates as a blanket ban on any and every judicial inquisition into the validity of the detention order.
If in any given ease an order of detention appears on the very face of it to be actuated by an ulterior motive, the court would have jurisdiction to set it aside because no judicial inquiry of any sort is required to be undertaken in such a case.
But, short of such ex facie vitiation, any challenge to a detention order on the around of actual mala fides is also excluded under the Presidential order dated June 27, 1975.
1407 G H, 408 A B] Section 16A(9) is not unconstitutional on the ground that it constitutions an encroachment on the writ jurisdiction of the High Court and article 226.
There is no warrant for reading down that section so as to allow the courts to inspect the relevant files, to the exclusion of all other parties.
[409 D, D] Section 16A (9) is in aid of the constitutional power conferred by article 359(1) and further effectuates the purpose of the Presidential order issued under that Article.
If so, it cannot be declared unconstitutional.
[410 A] The rule enunciated in section 16A(9) is a genuine rule of evidence.
[410 B] A. K. Gopalan vs State of Madras ; and Mohd. Maqbool Damnoo vs State of Jammu & Kashmir ; , distinguished.
The principles of res judicata and estoppel, the conclusive presumptions of law and various provisions of substantive law deny a free play to courts in the exercise of their jurisdiction.
These are not for that reason unconstitutional qua the High Court 's jurisdiction under article 226.
[410 F] The limits of judicial review have to be co extensive and commensurate with the right of an aggrieved person to complain of the invasion of his rights.
Section 16A(9) cannot be said to shut out an inquiry which is otherwise within the jurisdiction of the High Court to make.
[411 B] 197 Section 18 does not suffer from the vice of excessive delegation and is a valid piece of legislation.
[414 D] That section only declares what was the true position prior to its enactment on June 25, 1975.
The amendment of section 18 by the substitution of the words "in respect of whom an order is made or purported to be made under section 3", in place of the words "detained under this Act", does not render the section open to a challenge on the ground of excessive delegation.
The words "purported to be made" have been inserted in order to obviate the challenging that the detention is not in strict conformity with the Act.
Such a challenge is even otherwise barred under the Presidential order.
The object of he said provision is not to encourage the passing of lawless orders of detention but to protect during emergency orders which may happen lo be in less Than absolute conformity with the .
[412 B C] His Holiness Kesvananda Bharati Sripadagalarvaru vs State of Kerala [1973] Supp.
SCR I and Makhan Singh.
v State of Punjab [1964] 4 SCR 797 referred.
A jurisdiction of suspicion is not a forum for objectivity.
The only argument which the court can entertain is whether the authority which passed the order of detention is duly empowered to pass it, whether the detenu is properly identified and whether on the face of its order, the stated purpose of detention is within the terms of law.
[414 E F] Zamora 's case ; Rex vs Halliday ; , 271.
liversidge vs Sir John Anderson ; and Greene vs Secretary of State , referred to.
No judgment can be read as if it is a statute.
The generality of the expressions which may be found in a judgment are not intended to be expositions of the who 's law, but are governed and qualified by the particular facts of the case in which such expressions are to be found.
It is not a profitable task to extract a sentence here and there from a judgment and to build upon it because .
the essence of the decision is its ratio and not every observation found therein.
[401 C E] Quinn vs Leatham, ; , 506 auld State of Orissa vs Sudhansu Sekhar Misra & Ors.[1968] 2 SCR 154, 163, reiterated.
Per P. N. Bhagwati, J.
The Presidential order dated June 27, 1975, bars maintainability of a petition for a writ of habes corpus when an order of detention is challenged on the ground that it is vitiated by mala fides, legal, factual or is based on extraneous considerations or is not under the Act or is not in compliance with it.
[477 B C] The suspension of the privilege of the writ does not legalise what is done while it continues: it merely suspends for the time.
being the remedy of the writ.
[461 A B] The words "the right to move any court" are wide enough to include all claims made by citizens in any court of competent jurisdiction where it shown that the said claims cannot be effectively adjudicate upon.
without examining the question as to whether the citizen is, in substance, seeking to enforce any of the specified Fundamental Rights.
There can be no doubt that in view of the Presidential order which mentions article 21, the detenus would have no locus standi to maintain the writ petitions if it could be shown that the writ petitions were for the enforcement of the rights conferred by article 21.
[424 C E] Makhan Singh vs State of Punjab [1964] 4 SCR 797, followed.
When a Presidential order is issued under article 353, clause (1), the Fundamental Right mentioned in the Presidential order is suspended so that the restriction on the power of the executive or the legislature imposed by the Fundamental Right is lifted while the Presidential order is in operation and 198 the executive or the legislature is free to make any law or to make any action which it would, but for the provisions contained in Part 111, be competent to make or to take.
the words 'but for the provisions contained in that part" that is, but for the Fundamental Rights, mean "if the Fundamental Rights were not there in the Constitution, the executive being limited by law would still be unable to take any action to the prejudice of a person except by authority of law and in conformity with or in accordance with law and, therefore, even the Presidential order mentions article 21, clause (1A) of article 359 Would not enable the executive to deprive a person of his Personal liberty without sanction of law and except in conformity with or in accordance with law.
It ' an order or dentention is made by the executive without the authority of law it would be invalid and its invalidity would not be cured by clause (IA) or article 359 because that clause does not protect executive action taken without lawful authority.
An unlawful order of detention would not be protected from challenge under article 21 by reason of clause (IA) of article 359 and the detenu would be entitled to complain of such unlawful detention as being, in violation of ' article 21 except in so far as his right tor move the court for that purpose may be held to have been taken away by clause (1) of article 359.
[427 C H] State of Madhya Pradesh v Thakur Bharat Singh ; ; District Collector of Hyderabad vs M/s Ibrahim & Co. ; Bennett Coleman & Co. vs Union of India ; and Shree Meenakshi Mills Ltd. vs Union of India , applied.
Even though a Presidential Order issued under clause (1) of Art, 359 mentions article 21, where it is found that a detention has not been made in pursuance of lawful authority or in other words, the detention is without the authority of law, whether by reason of there being no law at all or by reason of the law under.
which the detention is made being void, clause (1A) of Art, 359 would not protect it from challenge under article 21 and it would be in conflict with that Article [429 H. 430 A] , The words "rights, conferred by Part III" cannot be read in isolation nor can they be construed by reference to theoretical or doctrinaire considerations.
'They must be read in the context of the provisions enacted in Part 111 in order.
to determine what are the rights conferred by the provisions in that Part, It is true that Art, 21 is couched in negative language.
It is not uncommon in legislative practice to use negative language for conferring a right.
That is often done for lending greater emphasis and strength to the legislative enactment.
Article 21 confers the Fundamental Right of personal liberty.
[430 F H] Punjab Province vs Daulat Singh 73 Indian Appeals 59; Basheshar Nath vs The Commissioner of Income Tax Delhi & Rajasthan [1959] Supp.
(1) SCR 529; State of Bihar vs Maharajidhiraj Kameshwar Singh of Derbhanga & Ors.
at p.988; P.D. Shamdasani vs Central Bank of India Ltd. ; AND R.C. Cooper vs Union of India ; referred to If article 21 were construed as not conferring a right to personal liberty, then there would be no Fundamental Right conferred by article 21 and even if a person is deprived of his personal liberty otherwise than in accordance with the procedure established by law and there is infringement of Art .21, such person would not be entitled to move the Supreme Court for a writ of habeas corpus under article 32, for that Article is available only for enforcement of the rights.
conferred by Part III.
That would be a starting consequence, as it would deprive the Supreme Court of a wholesome jurisdiction to protect the personal liberty of an individual against illegal detention, resulting in a departure from the well settled constructional position of article 21.
[432 B D] No attribute of personal liberty can be regarded as having been calved out of article 21.
That Article protects all attributes of persona; liberty against, executive action which is not supported by law.
When a person is detained.
there is deprivation of personal liberty within the meaning of article 21.
1433 A BI Kharak Singh vs State of U.P. & Ors.
[1964] 1 SCR 332.
referred to 199 The protection under article 21 is only against State action and not against private individuals and the protection, it secures, it is a limited one.
The only safeguard enacted by article 21 is that a person cannot be deprived of his persona liberty except according to procedure prescribed by "State made" law.
It is clear on plain natural construction of its language that article 21 imports two requirements: first, there must be a law authorising deprivation of personal liberty and secondly, such law must prescribe a procedure.
The first requirement is indeed implicit in the phrase "except according to procedure prescribed by law".
When a law prescribes a procedure for depriving a person of personal liberty, it must a fortiori authorise such deprivation.
Article 21, thus, provides both substantive as well as procedural safeguards.
Two other ingredients of article 21 are that there must not only be a law authorising deprivation of personal liberty there must also be a procedure prescribed by law or in other words law must prescribe a procedure.
[433 C F; 434 A C,H: 435 B] P. D. Shamdasani vs Central Bank of India Ltd. ; Smt.
Vidya Verma vs Dr. Shiv Narain and A. K. Gopalan vs State of Madras ; , followed.
Article 21, operates not merely as a restriction on executive action against deprivation of ' personal liberty without authority of law, but it also enacts d check on the legislature by insisting that the law, which authorises depravation, must establish a procedure.
What the procedure should be is not laid down in this Article, but there must be some procedure and at the least, it must conform to the minimal requirements of article 22.
"Law" within the meaning of article 21 must be a valid law and ' not only must it be within the legislative competence of the legislature enacting it, but it must also not be repugnant to any of the Fundamental Rights enumerated in Part III.
[435 C D] Shambhu Nath Sarkar vs The State of West Bengal ; ; and Khudiram Das vs The State of West Bengal & ors.
; , referred The constitutional principle in Eshugabayi E eko vs The officer Administrating the Government of Nigeria has been accepted by the courts in India as part of the law of the land.
In our country, even in pre Constitution days, the executive was a limited executive, that is, an executive limited by law and it could act only in accordance with law.
[438 B, 439 A] Liversidge vs Sit.
John Anderson , Vimlabai Deshpande vs Emperor AIR 1945 Nag. 8.
Jitenderanath Ghosh vs The Chief Secretary to the Government of Bengal, ILR at 377; In re: Banwarilal Roy 48 Cal.
Weekly Notes 766 at 780; Secretary of State for India vs Hari Bhanji Mad. 373; Province of Bombay vs Khushaldas Advani ; and P. K. Tare vs Emperor AIR 1943 Nag. 26, referred.
Even prior the Constitution, the principle of rule of law that the executive cannot act to the prejudice of a person without the authority of law was recognised as part of the law of the land and was uniformly administered by the courts.
It was, clearly "law" in force" and, ordinarily, by reason of article 372 it would have continued to subsist as a distinct and separate principle of law hr even after the commencement of the Constitution, until some aspects of ' this principle of Law were expressly recognised and given constitutional embodiment in different Articles of the Constitution.
[439 B C] When this principle of rule of law that the executive cannot deprive a person of his liberty except by authority of law, is recognised and embodied as a Fundamental light and enacted as such in article 21, it cannot continue to have a distinct and separate existence, independently and apart from this Article in which it has been given constitutional vesture, unless it were also enacted as a statutory principle by some positive law of the State.
It cannot continue in force under article 372 when it is expressly recognised and embodied as a Fundamental Right in article 21 and finds a place in the express provisions of the Constitution When the Constitution makers have clearly intended 200 that this right should be subject to the limitation imposed by article 359, clause (1) and (1A), it would be contrary to all canons of construction to hold that the same right continues to exist independently, but free from the limitation imposed by article 359, clauses (1) and (1A) Such a construction would defeat the object of the constitution makers in imposing the limitation under article 359, clauses (1) and (1A) and make a mockery of that limitation.
The Presidential order would in such a case become meaningless and ineffectual.
[439 F H, 440 A C] The only way in which meaning and effect can be given to the Presidential order suspending the enforcement of the right of personal liberty guaranteed under article 21 is that the principle of Rule of Law, on what the executive cannot interfere with the personal liberty of any person except by.
authority of law, is enacted in article 21 and it does not exist as a distinct and separate principle conferring a right of personal liberty independently and apart from that Article.
Consequently, when the enforcement of the right of personnel liberty conferred by article 21 is suspended by a Presidential order the detenu cannot circumvent the Presidential order and challenge the legality of his deletion by falling back on the supposed right of personal liberty based on the principle of Rule of Law.
[440F H] The executive is plainly and indubitably subordinated to the law and it cannot flout the mandate of the law but must act in accordance with the law.
[441 B] Eastern Trust Company vs Mckenzie Mann.
& Co. ; Rai Sahib Ram Jawaya Kapur vs The State of Punjab and State of Madhya Pradesh vs Thakur Bharat Singh ; referred to The Presidential orders issued under article 359 clause (1) do not give any power to the executive to alter or suspend or flout the law nor do they enlarge the power.
Of the executive so as to permit it to go beyond what is sanctioned by law.
As soon as the emergency comes to an end and the Presidential order ceases to be operative, the unlawful action of the executive becomes actionable and the citizen is entitled to challenge it by moving a court of law.
[161 A C] Whilst a Presidential Order issued under article 359, clause (1) is in operation, the Rule of Law is not obliterated and it continues to operate in all its vigour.
The executive is bound to observe and obey the law and it cannot ignore or disregard it.
If the executive commits a breach of the law its action would be unlawful but merely the remedy would be temporarily baned where it involves enforcement of any of the Fundamental Rights specified in the Presidential order.
[461 C D] When the right of personal liberty based on the Rule of Law which existed immediately prior to the Commencement of the Constitution has been enacted in the Constitution as a Fundamental Right in article 21 with the limitation that when there is a Proclamation of Emergency, the President may by order under article 359, clause (1) suspend its enforcement, that right of personal liberty based on the Rule of law cannot continue to exist as a distinct and independent right free from the limitation as to enforcement contained in article 359 clause (1).
It would be meaningless and futile for the Constitution makers to have imposed this limitation in regard to enforcement of the right of personal liberty guaranteed by article 21, if the detenu could with impunity, disregard such limitation and fall back on the right of personal liberty based on the Rule of Law.
[445 E G] Attorney General vs De Keyser 's Royal Hotel, ; , discussed.
Dhirubha Devisingh Gohil vs The State of Bombay [1955] I SCR 691, followed.
On an application of the maxim expressum facit cessare tacitum.
that is what is expressed makes what is silent cease a principle of logic and common 201 sense and not merely a technical rule of construction the express provision in article 21 that no person shall be deprived of his life or personal liberty except according to procedure prescribed by law will necessarily exclude a provision to the same effect to be gathered or implied from the other provisions of the Constitution.
[447 D E, 448 D] Shankara Rao Badami vs State of Mysore ; and State (Walsh and ors.) vs Lennon and ors.
1942 Irish Report.
of 112, applied.
The contention that the principle of Rule of Law that the executive cannot act to the prejudice of a person except by authority of law continues to exist as a distinct and independent Principle unaffected inter alia by the enactment of article 21, is not correct.
[451 Al State of Madhya Pradesh vs Thakur Bharat Singh [19671 2 SCR 454; District Collector, Hyderabad vs M/s. Ibrahim & Co. ; Bennet Coleman & Co. vs Union of India ; ; Shree Meenakshi Mills Ltd. vs Union of India & ors. ; Bidi Supply Co. vs Union of India ; ; Bishan Das & Ors.
v State of Punjab ; ; State of Bihar vs Kameshwar Prasad Verma ; ; Eshugbayi Eleko vs The officer Administering the Government of Nigeria AIR 1931 PC and Makhan Singh V. Sate of Punjab [1964] 4 SCR 797, distinguished.
The words 'any court in Article 21 must be given their plain grammatical meaning and must be construed to mean any court of competent jurisdiction which would include the Supreme Court and the High Courts before which the specified rights in article 359 clause ( 1 ) can be enforced by the citizens.[454 Al Makhan Singh V. State of Punjab , followed.
When the Presidential order is without any condition, in a detenu contends that the order of detention has been made mala fide or that it has been passed by a delegate outside the authority conformed on him under the Act or that it has been exercised inconsistently with the conditions prescribed in that behalf, that is, it is not in accordance with the Provisions of law, such a plea would be barred at the threshold by the Presidential order.
[458 B C] Quinn & Leathen ; , State of Orissa vs Sudhansu Sekhar Misra ; Makhan Singh Tarsikka vs 'The State of Punjab ; A. Nambiar vs Chief Secretary ; and Sate of Maharashtra vs Prabhakar Pandurang Sangzgiri ; , distinguished.
There is no scope for the contention that even if the enforcement of the Fundamental Right conferred by article 21 is suspended by the Presidential order, the detenu can still enforce a supposed natural right of personal liberty in a court of law.
[459 D] His Holiness Kesavananda Bharati Sripadagalavaru vs State of Kerala [1973] Supp.
SCR 1 and Golak Nath & Ors.
vs State of Punjab ; , referred to.
If the positive law of the State degrees that no person shall be deprived of his personal liberty except according to the procedure described by law, the enforcement of such statutory right would not be barred by the Presidential order.
But, there is no legislation in our country which confers the right of personal liberty by providing that there shall be no deprivation of it except in accordance with law.
(in the contrary, section 18 of the , enacts that no person in respect of whom an order of detention is made or purposed to be made under section 3 shall have any right to personal liberty by virtue of natural law or common law, if any.
h Because the Indian Penal Code in section 342 makes it penal to would fully confine any person and the offence of wrongful confinement postulates that no one shall be deprived of his personal liberty except by authority of law, it cannot 202 be said on that account that section 342 of the Indian Penal Code confers a right of personal liberty.
The utmost that can be said is that this section proceed on a recognition of the right of personal liberty enacted in article 21 and makes it an offence to wrongfully confine a person in breach of the right conferred by that constitutional provision [459 E H, 460 A] The words four any other purpose in article 226 greatly enlarge the jurisdiction of the High Court and the High Court can issue a writ of habeas corpus if it finals that the intention of a person is illegal.
It is not necessary for this purpose that the court should be moved by the detenu.
It is sufficient if it is moved by any person affected by the order of intention.
When it is so moved and it examines the legality of the order of detention it does not enforce the right of personal liberty of the detenu, but it merely keeps the executive within the bounds of law and enforces the principle of legality.
The words .
any other purpose cannot be availed of for the purpose of circumventing the constitutional inhibition flowing from the Presidential order.
[460 B G] Article 359 clause (1) and the Presidential order issued under it do not have the effect of making unlawful actions of the executive lawful.
[461 F G] When a person takes proceedings under the Code of Criminal Procedure in connection with the offence of wrongful confinement or murder or launches of prosecution for such offence, he cannot be said to be enforcing the fundamental Right of the detenu or the murdered man under article 21 so as to attract the inhibition of the Presidential order.
[461 F G] An application seeking to enforce a statutory obligation imposed on the police officer and a statutory right created in favour of an arrested person by section 57 of the Criminal Procedure Code would not be barred, because what is suspended by a Presidential Order specifying article 21 is the right to move the court for enforcement of the Fundamental Right conferred by that article and not the right to move the court for enforcement of the statutory right to be released granted under section 57, Cr.
P C. [462 G] If a positive legal right is conferred on a person by legislation and he seeks to enforce it in a court, it would not be within the inhibition of a Presidential Order issued under article 359, clause (1).
[463 G H] This does not mean that whenever a petition for a writ of habeas corpus comes before the court it must be rejected straightaway without even looking at the averments made in it.
The court would have to consider where the bar of the Presidential order is attracted and for that purpose the court would have to the whether the order of detention is one made by an authority empowered to pass such an order under the Act.
If it is not, it would not be State action.
and the petition would not be one for enforcement of the right confirmed by article 21.
[463 G H, 464 A] Once it is held that the obligation of the executive is not a deprive a person of his personal liberty except in accordance with law, is to be found only an article 21 and no where else it must follow necessarily that in challenging the legality of the detention, what the applicant claims is that there.
is, , in fact fact, by the executive of the right of personal liberty conferred by Art 21 and that immediately attracts the applicability of the Presidential order.
[460 D E] It is the basic characteristic and essence of martial law that during the time that it is in force, the individual cannot enforce his right to life and liberty by resorting to judicial process and the courts cannot issue the writ of habeas corpus or pass any suitable orders [442 G] John Allen 's case (1921) 2 Irish Reports 241, referred to: Merely by declaring martial law would not by itself deprive the courts of the power to issue the writ of habeas corpus or other process for the protection of the right of the individual to life and liberty.
[443 A] 203 The declaration of martial law, which is not even expressly provided in the Constitution, cannot override the provisions of the Articles conferring the right to life and liberty as also of Articles 32 an l 226 and unless the right of an individuals to move the courts for enforcement of the right to life and liberty can be suspended or taken away by or under an express provision of the Constitution, the individual would be entitled to enforce the right to life and liberty under article 32 or article 226 or by resorting to the ordinary process w. even during martial law.
[443 A C] Article 34 clearly postulates that during the time that material law is in force no judicial process can issue to examine the legality of an act done by the military authorities or the executive in connection with the maintenance of restoration or order.
[443 E F] During the martial law, the courts cannot and should not have the power to examine the legality of the action of the military authorities or the executive on any ground whatsoever, including, the ground of mala fides.
But, if the courts are to be prevented from exercising such power during, martial law the situation can be brought about only by a Presidential order issued under C. Act 359 clause (i) and in no other way, and the Presidential Order.
in so far as it suspends the enforcement of the right of personal liberty confirmed under article 21 must be constructed to bar challenge to the legality of detention in am, court including the Supreme Court and the High Courts whilst the Presidential Order is in operation, [444 A C] Ex parte Milligan (1866) 4 Wallace 2; Moyer vs Peabody , and Duncan vs Kohanmeku ; , referred to.
There are two rights which the detenu has in this connection: one is the Fundamental Right conferred by article 22, clause (5) and the other is the statutory right conferred by section 8.
Though the content of both these rights is the same, they have distinct and independent existence and merely because enforcement of one is suspended, it does not mean that the other also cannot be enforced.
[463 B C] The theory of reflection is clearly erroneous.
If the right conferred under section 8 were a reflection of the Fundamental Right conferred by article 22, clause (5) which is the object reflected must necessarily result in the effacement of the right under section 8 which is said to constitute the reflection.
But even if article 22 clause (5) were deleted from the Constitution, section 8 would still remain on the statute book until repealed by the legislature.
The Presidential Order would not therefore, bar enforcement of the right conferred by section 8.
[463 C D] Fathima Beebi vs M. K. Ravindranathan (1975) Crl.
1164, over ruled.
It is true that sub sec.
(9) (a) of section 16A does not specifically refer to any court.
But, there is inherent evidence in the sub section itself to show that it is intended to prevent disclosure of such grounds, information and materials before a court.
There is clearly an echo of section 123 of the Indian Evidence Act.
Sub section (9) of section It is must also be held to be designed to achieve the same intention as prohibiting disclosure even to a court.
Sub section (9) (a) of section 16A cannot, therefore, be read down so as to imply an exception in favour of disclosure to a court.
[469 D, F] Khudiram Das vs The State of West Bengal & Ors.
[1375] ` SCR 832; , Lee vs Burrel 170 English Reports 1402 and Liversidge vs Sir John Anderson ; referred to.
There can be no doubt that article 226 is a constitutional provision and it empowers the High Court to issue a writ of habeas corpus for enforcement of the Fundamental Right by article 21 and also for any other purpose.
The High Court has.
therefore, constitutional power to examine the Legality of detention and for that purpose to inquire and determine whether the detention is in accordance with the provisions of law.
The constitutional Power cannot be taken away or abridged by a legislative enactment.
If there is any legislative.
204 provision which obstructs or retards the exercise of this constitutional power it would be void.
It is, therefore, clear that if it can be shown that sub section (9) (a) of section 16A abridges or whitles down the constitutional power of the High Court under article 226 or obstructs or retards its exercise, it would be void as being in conflict with article 226.
If there is a legislative provision which prohibits disclosure of the grounds, information and materials on which the order of detention is based and prevents the court from calling for the production of such grounds, information and materials, it would obstruct and retard the exercise of the constitutional power of the High Court under article 226 and would be void as offending that Article.
[470 C D, 471 A B, E F] Hari Vishnu Kamath vs Syed Ahmad Ishaque & Ors. ; ; Durga Shankar Mehta vs Thakur Raghuraj Singh & Ors.
[1955] 1 SCR 267; Raj Krushna Bose vs Binod Kanungo & Ors.
; ; The Kerala Education Bill 1957, [1959] SCR 995; Prem Chand Garg vs Excise Commissioner, U.P. Allahabad [1963] Supp.
1 SCR 885; Khudiram Das vs State of West Bengal ; ; Biren Dutta & Ors.
v, Cheif Commissioner of Tripura & Anr.
; ; M.M. Damnoo vs J & K State ; and A.K. Gopalan vs State of.
Madras [1950] SCR p. 80, referred.
A rule of evidence merely determines what shall be regarded as relevant and admissible material or the purpose of enabling the court to come to a decision in the exercise of its jurisdiction and it does not in any way detract from or affect the jurisdiction of the court and it cannot, in the circumstances, be violative of article 226.
But in order that if should not fall foul of article 226, is must be a genuine rule of evidence.
If in the guise of enacting a rule of evidence the legislature in effect and substance disable and impedes the High Court from effectively exercising its constitutional power under article 226.
such an enactment would be void.
It will be colourable exercise of legislative power.
The legislature cannot be permitted to violate a constitutional provision by employing an indirect method.
It a legislative provision, though in form and outward appearance a rule of evidence, is in substances and reality something different obstructing or impeding the exercise .
The jurisdiction of the High Court under article 226, the form in which the legislative provision is clothed would not safe it from condemnation.
[474 B C] It is well settled that in order to determine the true character of a legislative provision.
the court must have regard to the substance of the provision and not its form.
Sub section (9)(a) of section 16A is in form and outward appearance a rules of evidence which says that the grounds, information and materials on which the order of detention is made or the declaration under sub section) or sub section (3) is based shall be treated as confidential and shall be deemed to refer to matters of State and be against the public interest to disclose.
Sub section
(9) (a) of section 16A assumes valid declaration under sub section
(2) or sub section
(3) and it is only when such a declaration has been made that sub section
(9)(a) of section 16A applies or in other words.
It is only in cases where a person is detained in order to deal effectively with the emergency.
that the disclosure of the grounds, information and materials is prohibited by sub sec.
(9)(a) of section 16A. [474 E F 475 B C, E F] The rule enacted in sub section
(9)(a) of section 16A bears close analogy to a rule of conclusive presumption and in the circumstance it must be regard as a genuine rule of evidence.
[476 D] If the grounds, information and materials have no relation to matter of State or they cannot possibly be of such a character that their closure would injure public interest, the legislature cannot, by merely employing a legal function, deem them to refer to matters of State which it would be against public interest to disclose an 1 thereby exclude them from the judicial ken.
That would not be a genuine rule of evidence: it would be a colourable legislative device a fraudulent exercise of power.
There can be no blanket ban on disclosure of the grounds, information and materials to the High Court of this Court irrespective of their true character in such cases [476 E F] 205 M. M. Damnoo vs State of J & K ; ; A. K. Gopalan vs State of Madras ; and Liversidge vs Sir John Anderson ; referred to.
The grounds, information and materials in almost all cases would be of a confidential character falling within the class of documents privileged under section 123 and hence the rule enacted in sub section genuinely partakes of the character of a rule of evidence.
Sub section
(9) (a) of section 16A enacts a genuine rule of evidence and it does not detract from or affect the jurisdiction of the High Court under article 225 and hence it cannot be successfully assailed as invalid.
[476 G H, 477 A] There is no warrant for reading down sub section 9A of section 16 so as to imply a favour in favour of disclosure to the court The provision does not constitute an encroachment on the constitutional jurisdiction or the High Court under article 226 and is accordingly not void.
[477, C D] If the declaration under sub section (2) or sub section
(3) is invalid, subs 9(a) of section 16A will not be attracted on the grounds of information and materials on which the order of detention is made, would not be privileged under sub section therefore, sub section 9(a) of section 16A enacts a genuine rule of evidence.
[477 A B] [His Lordship thought it unnecessary to go into the question of construction and validity of section 18 of the .] [464 A] An obiter cannot take the place of the ratio.
Judges are not oracles.
It has no binding effect and it cannot be regarded as conclusive on the point when considering the observations of a High judicial authority like this Court, the greatest possible care must be taken to relate the observations of a Judge to the precise issues before him and to confine such observations, even though expressed in broad terms, in the general compass of the question before him unless he makes it clear that he intended his remarks to have a wider ambit.
It is not possible for Judges always to express their judgments so as to exclude entirely the risk that in some subsequent case their language may be misapplied and any attempt at such perfection of expression can only lead to the opposite result of uncertainty and even obscurity as regard the case in hand.
[1455 F H, 456 A C] H. M. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors.
vs Union of India ; , applied Per H. R. Khanna, J. (dissenting) Article 21 cannot be considered to be the role repository of the right to life and personal liberty.
The right to life and personal liberty is the most decisions right of human beings in civilised societies governed by the rule of law.
H] Sanctity of life and liberty was not something new when the Constitution was drafted.
It represented a facet of higher values which mankind began to cherish in its, evolution from a state of tooth and claw to a civilized existence.
The principle that no one shall be deprived of his life and liberty without the authority of law was not the gift of the Constitution.
It was a necessary corollary of the concept relating to the sanctity of life and liberty, it existed and was in force before the coming into force of the Constitution.
[268 C D] Even in the absence of article 21 in the Constitution, the State has got no power to deprive a person of his life or liberty without the authority of law.
That is the essential postulate and basic assumption of the Rule of Law and not of men in all civilised nations.
Without such sanctity of life and liberty, the distinction between a Lawless society and one governed by laws would cease to have any meaning.
the principle that no one shall be deprived of his life or liberty without the authority of law is rooted in the consideration that life and liberty are priceless possessions which cannot be made the plaything of individual whim and caprice and that any act which has 206 the effect of tampering with life and liberty must receive substance from and sanction of the laws of the land.
Article 21 incorporates an essential aspect of that principle and makes it part of the Fundamental Rights guaranteed in part III of the Constitution.
It does not, however, follow from the above that if article 21 had not been drafted and inserted in Part III, in that even would have been permissible for the State to deprive a person of his life or liberty without the authority of law.
There are no case, to show that before the coming into force of the Constitution or in countries under Rule of Law where there is no provision corresponding to article 21, a claim was ever sustained by the court, that the State can deprive a person of his life or liberty without the authority of law.
[302 H, 269 H, 270 A C] Olmstead vs United States ; (1928); James Sommersett 's case (1772), 16 Cr.
Pract.
Fabrigas vs Mostyn ; Ameer Khan 's case 6 Bengal Law Reports 392.
Eshugbai Eleko vs Officer Administering the Government of Nigeria, ; Prabhakar Kesheo Tare & Ors.
vs Emperor AIR (1943) Nag. 26; Vimlabai Deshpande vs Emperor A.I.R. 1945 Nag. 8: Jitendranath Ghosh vs The Cheif Secretary to the Government of Bengal ILR ; In re: Banwari Lal Roy & Ors.
Bidi Supply Co. vs The Union of India & Ors. ; and Baheshar Nath vs The Commissioner of Income tax, Delhi & Rajasthan & Anr.
[1959] Supp.
(1) 528, referred to.
The view, that when right to enforce the right under article 21 is supplied the result would be that there would be no remedy against deprivation of a persons life or liberty by the State even though such deprivation is without the authority of law or even in flagrant violation of the provisions of law is hot acceptable.
the facts that the framers of the Constitution made an aspect of such right a part or the fundamental Rights did not have the effect of determining the independent identity of such right and of making article 21 to be the sole repository.
Of that right.
The real effect was to ensure that a law under which a per on can be deprived of his life or personal liberty should prescribe a procedure for such deprivation or such law should be a valid law not violation of Fundamental Rights guaranteed by Part III of the Constitution Recognition as Fundamental Right of one aspect of the pre constitutional right cannot have the effect of making things less favourable so far as the sanctity of life and personal liberty is concerned.
compared to the position if an aspect of such right had not been recognised as Fundamental Right because of The vulnerability of Fundamental Rights accruing from article 359.
1271 D G] A. K. Gopalan vs State of Madras ; and Dhirubha Devisingh Gohil vs The State of Bombay [1955] I SCR 691, referred to.
After the coming into force of the Constitution a detenu has two remedies one under article 226 or article 32 of the Constitution and another under section 491 of the Code of Criminal Procedure.
The remedy under an earlier statutory provision would not get obliterated because of the identical remedy by a subsequent Constitutional provision and that the two can co exist without losing their independent identity.
1272 D E] Makhan Singh vs State of Punjab [1964] 4 SCR 797, applied.
Dhirubha Devisingh Gohil vs The State of Bombay [1955] I SCR 691, not invokable.
The principle that no one shall be deprived of his life or liberty without the authority of law stems not merely from the basic assumption in every civilised society governed by the Rule of Law of the sanctity of life and liberty, it flows equally from, the fact that under our penal laws no one, is empowered to deprive a, person of his life or liberty without the authority of law [272 l I, 273 A] The fact that penal laws of India answer to the description of the word law which has been used in article 21 would not militate against the inference 207 that article 21 is not the sole repository of the right to life or personal liberty.
Nor is it the effect of article 21 that penal laws get merged in article 21 because of the act that they constitute law as mentioned in article 21, for were it so the suspension of the right to move a court for enforcement of Fundamental Right contained in article 21 would also result in suspension of the right to move any court for enforcement of penal laws.
At one time the Constitution came into force, the legal position was that no one could be deprived of his life or liberty without the authority of law.
[273 A C] Director of Rationing and Distribution vs 'The Corporation of Calcutta & ors.
; , relied on.
It is difficult to accede to the contention that because of article 21 of the Constitution, the law which was already in force that no One could be deprived of his life or liberty without the authority of law was obliterated and ceased to remain in force.
No rule of construction or interpretation warrants such an inference.
The constitutional recognition of the remedy of writ of habeas corpus did not obliterate or abrogate the statutory remedy of writ of habeas corpus.
Section 491.
Of the Code of Criminal Procedure continued to he a part of that Code till that Code was replaced by the new Code.
Although the remedy of writ of habeas corpus is not now available under.
the new Code of Criminal Procedure.
1973, the same remedy is still available under article 226 of the Constitution.
[273 H, 274 A Ci Makhan Singh vs State of Punjab [1964] 4 SCR 797, relied on.
According to the law in force in India before the coming into force of the Constitution, no one could be deprived of his life and personal liberty without the authority of law.
Such a claw continued to be in force after the coming into force of the Constitution in view of article 372 of the Constitution.
[303 The word law has been used in article 21 in the sense of State made law and not as an equivalent of law in the abstract or general sense embodying, the principles of natural justice.
The procedure established by law means the procedure established by law made by the State, that is to say, the Union Parliament or the legislatures of the States.
Law meant a valid and binding law under the provisions of the Constitution and not one infringing Fundamental Rights.
[266 C D] A, K. Gopalan vs State of Madras ; , explained.
The effect of the suspension of the right to move any court for the enforcement of the right conferred by article 21 is that when a petition is filed in a court, the court would have to proceed upon the basis that no reliance can be placed upon that Article for obtaining relief from the court during the period of emergency.
[266 D E] Starting consequences would follow from the acceptance of the contention that consequent upon the issue of the Presidential order in question, no one can seek relief from courts during the period of emergency against deprivation of life and personal liberty.
If two constructions of the Presidential order were possible, the court should lean in favour of a view which does not result in such consequence.
The construction which does not result in such consequences is not only possible, it is also pre eminently possible.
1303 B C] Equally well established is the`rule of construction that if there be a conflict between the municipal law on one side and the international law or the provisions of any treaty obligations on the other, the courts would give effect to municipal law.
however, two constructions of the municipal law are possible, The court should lean in favour of adopting such construction as would make the provisions of the municipal law to the in harmony with the international law or treaty obligations.
While dealing with the Presidential Order under article 359(1) such a construction should be a adopted.
as would, if possible, not bring it in conflict with the above Articles 8 and 9 of U.N Charter.
It is plain that such a constructional is not only possible, it is a also pre eminently 208 reasonable The Presidential orders therefore, should be so constructed as not to warrant arbitrary arrest or to bar right to an effective remedy by competent national tribunals for acts violating basic right of personal liberty granted by law.
1276 A B. 277 D E] Corocraft Ltd. vs Pan American Airways Inc ; Article 51 of` the Constitution, H. H. Kesavananda Bharati vs State of Kerala [1973] Supp.
SCR I, referred to.
The argument that suspending the right of a person to move any court for the enforcement of right to life and personal liberty is done under a constitutional provision and, therefore, it cannot be said that the resulting situation would mean the absence of the Rule of law.
cannot stand close scrutiny for it tries to equate illusion of the Rule of Law with the reality of Rule of Law.
A state of negation of Rule of Law would not cease to be such a slate because of the tact that such a state of negation of Rule of Law has been brought About by a statute.
Absence of Rule of Law would nevertheless be absence of Rule of Law even though it is brought about by a law to repeal all laws.
The Rule of Law requires something, more the legal principle "quod principi placuit legis habet vigorem." [277 E H, 278 A Bl Freedom under law is not absolute freedom.
It has its own limitations in its own interest, and can properly be described as regulated freedom.
The truth that every man ought to be free has for its other side the complementary and consequential truth that no man can be absolutely free.
The need of liberty for each is necessarily qualified and conditioned by the need of liberty for all Liberty in the State, or legal liberty.
is never the absolute liberty or all, but relative and regulated liberty.
Rule of law is true antithesis of arbitrariness.
The rule of law has come to be regarded as the mark of a free society.
Its content is different in different countries.
It is, however, identified with the liberty of 'he individual.
It seeks to maintain a balance between the opposing notions of individual liberty and Public order.
1267 C D; 268 B C] In a long chain of authorities the Supreme Court has laid stress upon the prevalence of the Rule of Law in the country, according to which the executive cannot take action prejudicial to the right of an individual without the authority of law.
There is no valid reason to depart from the rule laid down in those decisions.
1278 E. 281 E, 303 C D] Rai Sahib Ram Jawaya Kapur & Ors. vs The State of Punjab State of Madhya Pradesh & Anr.
vs Thakur Bharat Singh ; Chief Settlement Commissioner, Rehabilitation Department Punjab & Ors.
vs Om Parkash & Ors.
; ; District Collector of Hyderabad & Ors.
vs M/s. Ibrahim & Co. etc.
; Bennett Coleman & Co. and Ors.
vs Union of India ; Shree Meenaksi Mills Ltd. vs Union of India ; Naraindas Indurkhya vs The State of Madhya Pradesh ; Director of Rationing and Distribution vs The Corporation of Calcutta & Ors ; ; Bishan Das & Ors.
vs The State of Punjab & Ors. ; ; section G. Jaisinghani vs Union of India & Ors. ; United States vs Wunderlick ; ; John Wilkes 's case at 2539 and Smt.
Indira Nehru Gandhi vs Shri Rai Narain. , referred to.
According to article 21.
no one can be deprived of his right to personal liberty except in accordance with the procedure established by law.
Procedure for the exercise of power of depriving a person of his right of personal Liberty necessarily postulates the existence of the substantive power.
When article 21 is in force, law relating to deprivation of life and personal liberty must provide both for the substantive power as well as the procedure for the exercise of such power.
When right to move in court for enforcement of right guaranteed by Art 21 is suspended, it would have the effect of dispensing with the necessity of prescribing procedure for the exercise of substantive power to deprive a person of his life and personal liberty, it cannot have the effect of permitting an authority to deprive a person of his life or personal liberty without the existence of such substantive power.
[303 D F] 209 The difference in phraseology of the Presidential order dated June 27, 1975 and that of the earlier Presidential orders would not, however, justify the Conclusion that because of the new Presidential order dated rune 27, 1975, a detention order need not comply with the requirements of the law providing for preventive detention.
Such a detention order would still be liable to be challenged in a court on the ground that it does not comply with the requirement of law For preventive detention if ground for such challenge be permissible in spite of and consistently with the new Presidential order.
The effect of the change in phraseology would only be that such of the observation made by his Court fn the context of the language of the earlier Presidential orders cannot now be relied upon.
Reliance, however, can still be placed upon the observations made in various cases which were not linked with the phraseology of the earlier Presidential orders.
[263 F H] Makhan Singh vs Stare of Punjab [1964] 4 SCR 797; State of Maharashtra vs Prabhakar Pandurang Sangzgiri & Anr. ; and Dr. Ram Manohar Lohia vs State of Bihar & Ors. , referred to.
A Presidential order.
under article 359(1) can suspend during the period of emergency only the right to move any court for enforcement of the Fundamental Rights mentioned in the order.
Rights created by statutes being not Fundamental Rights can be enforced during the period of emergency despite the Presidential order.
Obligations and liabilities flowing from statutory provisions likewise remain unaffected by the Presidential order.
Any redress sought from a court of law on the score of breach of statutory provision would be outside the purview of article 359(1) and the Presidential order made thereunder.
1303 C Hl Anandan Nambiar & Anr.
vs Chief Secretary, Govt.
Of Madras ; @ 410, referred to.
Clause (1A) of article 359 protects laws and executive actions from any attack on validity on the score of being violation of the Fundamental Rights mentioned in the Presidential order in the same way as article 358 protect the laws and executive actions from being challenged on the ground of being violative of article 19 during the period of emergency.
The language of clause (IA) of It.
359 makes it clear that the protection which is afforded by that clause h is to such law or execute action as the State would but for the provisions contained in Part 111 of the Constitution be competent to make or take.
The word competent has a significance and it is apparent that despite the Presidential order under article 359(1) in the case of executive action the competence of the State to take such action would have to be established.
Such competence .
Would, however, be judged ignoring the restriction placed by the provisions or Part III of tho Constitution.
To put it in other words, clause (IA) of article 359 does not dispense with the necessity of competence to make laws.
Or take executive action.
But it would still be necessary to establish the competence de hors the restrictions of the Fundamental Rights.
[283 D E] Though, there is no reference to substantive power in article 21, it would cover both the existence of the substantive power of depriving a person of his life and personal liberty as well as the procedure for the exercise of that power [284 D] The suspension of the right to move a court for the enforcement of the right contained in article 21 cannot have the effect of debarring an aggrieved person from approaching the courts with the complaint regarding deprivation of life or personal liberty by an authority on the score that no power has been vested in the authority to deprive a person of life or liberty.
The pre supposition of the existence of substantive power to deprive a person of his life or personal liberty in article 21 even though that article only mentions the procedure, would not necessarily point to the conclusion that in the event of the suspension of the right to move any court for the enforcement of article 21, the suspension would also dispense with the necessity of the existence of the substantive power The co existence of substantive power and procedure established by law for depriving R person of his life and liberty which is implicit in article 21 would not lead to the result that even if there is suspension of the right regarding 16 833 SCI/76.
210 procedure, suspension would also operate upon the necessity of substantive power.
What is true of a proposition need not be true of the converse of that proposition.
The suspension of the right to make.
any court for the enforcement of the right contained in article 21 may have the effect of dispensing with the necessity of prescribing procedure for the exercise.
Of substantive power to deprive a person of his life or personal liberty, it can in no case have the effect of permitting an authority to deprive a person of his life or personal liberty without the existence of substantive power.
The close bond which is there between the existence of substantive power of depriving a Person of his life or personal liberty and the procedure for the exercise of that power, if the right contained in article 21 were in operation, would not necessarily hold good if that right were suspended because the removal of compulsion about the prescription of procedure for the exercise of the substantive power would not do away with the compulsion regarding the existence of that power.
[284 G H, 285 A G] In considering the effect of Presidential order suspending the right of a person tn move my court for enforcement of right guaranteed by Art, 21, the words "except according to procedure established by law should not be treated to be synonymous with save by authority of law .
[285 D] A Presidential order under article 359(1) cannot have the effect of suspending the right to enforce rights flowing from statutes, nor can it bar access to the courts of persons seeking redresses on he s ore of contravention of statutory provisions.
Statutory provisions are enacted to be complied with and it is not permissible to contravene them.
Statutory provisions cannot be treated as mere pious exhortations or words of advice which may be adjured or disobeyed with impunity.
Nor is compliance with statutory provisions optional or at the sufference of the official concerned.
It is the presence of legal sanctions which distinguished positive law from other systems of rules and norms.
To be a legal system a set of norms must furnish sanctions for some of its precepts.
A legal sanction is usually thought of as a harmful consequence to induce compliance with law.
Non complince with statutory provisions entails certain legal consequences.
The Presidential order cannot stand in the way of the courts giving effect to those consequences.
To put it differently, the executive authorities exercising power under a statute have to act in conformity with its provisions and within the limits set out therein.
When a statute deals with matters effecting prejudicially the rights of individuals, the ambit of the power of the authorities acting under the Statute would be circumscribed by its provisions and it would not the permissible to involve some indefinite general powers of the executive.
[286 D H] Attorney General vs De Keyser 's Royal Hotel Ltd. , Jaichand Lall Sethia vs State of West Bengal [1966] Supp.
SCR 464; Durgadas Shirali V. Union of India & ors. ; and G. Sadanandan vs State of Kerala .
& Anr. , referred to.
Article 226 under which the High Courts can issue writs of habeas corpus is an integral part of the Constitution.
No power has been conferred upon any authority in the Constitution for suspending the power of the High Court to issue writs in the nature of habeas corpus during the period of emergency.
Such a result cannot be brought about by putting some particular construction on the Presidential order in question.
[288 B, 304 A B] Greene vs Secretary of State for Home Affairs , Secretary of State for Home Affairs vs O 'Brien (609) and Rai Sahib Ram Jawaya Kapur & Ors.
vs The State of Punjab , referred to.
Article 226 of the Constitution confers power upon the High Courts of issuing appropriate writs in case it is found that the executive orders are not in conformity with the provisions of the Constitution and the laws of the land.
Judicial scrutiny of executive orders with a view to ensure that they are not violative of the provisions of the Constitution and the laws of the land being an integral part of our constitutional scheme.
it is not permissible to exclude judicial scrutiny except to the extent such exclusion is warranted by the provi 211 sions of the Constitution and the laws made in accordance with those provisions.
[290 F &] There is a clear demarcation of the spheres of function and power in our .`Constitution.
The acceptance of the contention advanced on behalf of the appellants would mean that during the period of emergency, the courts would be reduced to the position of being helpless spectators even if glaring and blatant instances of deprivation of Life and personal liberty in contravention of the statute are brought to their notice.
It would also mean that whatever it may be the law passed by the legislature, in the matter of life, and personal liberty of the citizens, the executive during the period of emergency would not be bound by it and would be at liberty to ignore and contravene it.
It is obvious that the acceptance of the contention would result in a kind of supremacy of the executive over the legislate and judicial organs of the State, and thus bring about a constitutional imbalance which perhaps was never in the contemplation of the framers of the Constitution.
The fact the the government which controls the executive has to enjoy the confidence so the legislator does not d tract from the above conclusion.
The executive under our constitutional scheme is nob merely to enjoy the confidence of the majority in the legislature it is also bound to carry out the legislative as manifested by the statutes passed by the legislature.
The Constitution further contemplated that the function of deciding whether the executive has acted in accordance with the legislative intent should be performed by the Courts.
[290 G H, 291 A C] No one can call deny the power of the State to assume vast powers of the detention in the interest of the security of the State.
It may indeed the necessary to do so to meet the peril acing the nation.
The consideration of security of the State must have a primacy and be kept in the forefront compared to which the interests of the individual can only take as secondary piece.
The motto has to be who lives, if the country dies.
Extraordinary powers are always assumed by the Government in all countries in times of emergency because of the extraordinary nature of the emergency.
The exercise of the power of detention.
it is well settled depends upon the subjective satisfaction of the detaining authority and the courts can neither act as courts of appeal over the decisions of the detaining authority nor can they substitute their own opinion for that of the authority regarding the necessity of detention.
There is no antithesis between the power of the State to detain a person without trial under a law or preventive detention and the power of the court to examine the legality of such detention.
Tn dealing with an application for a writ of habeas corpus, the courts only, ensure that the detaining authorities act in accordance with the law of preventive detention.
The impact upon the individual of the massive and comprehensive powers of preventive detention with which the administrative officers are armed l has to be cushioned with legal safeguarded. against arbitrary deprivation of personal liberty if the premises of the rule of law is not to lose its content and become meaningless.
The chances of an innocent person being detained under a law providing for preventive detention on the subjective satisfaction of an administrative authority are much greater compared on the possibility of an innocent person being convicted at trial in a court of law.
1291 F H, 292 A, D E] Rex vs Halliday Ex parte Sadiq ; @ 272 and Liversidge vs Sir John Anderson ; referred to 7 The Presidential order of June 27.
1975, did not aspect maintainability of the habeas corpus petitions to question the legality of the detention orders and such petitions could be proceeded with despite that order.
[293 F] Principle in James Commersett 's case 1772 State Trials p. 1, referred to.
A law of preventive detention is not punitive but precautionary and preventive.
The power of detention under such law is based on circumstance of suspicion and not on proof of allegation as is required at a regular trial for the commission of an offence.
[294 F] A court cannot go behind the truth of the alleged facts.
If The material is germane to the object for which detention is legally permissible and an 212 order.
for detention is made don the basis of that material, the courts cannot sit as a court of appeal and substitute their own opinion for that of the authority concerned regarding the necessity of detention.
[295 E F] Sharpe vs Wakefield at p. 179 and Ross vs Papadopollos (on P. 33), referred to.
Malice in fact is quite a different thing: it means an actual malicious intention on the part of the person who has done the wrongful act, and it May be, in proceedings based on wrongs independent or contract, a very material ingredient in the question of whether a valid cause of action can be stated.
[269 C D] Shearer vs Shields Bhut Nath vs State of West Bengal, ; , referred to.
In view of the Presidential Order suspending the right of the person to move any court for enforcement of specified Fundamental Rights including the one under article 22(5), it may with plausibility be argued that the vagueness of grounds of detention would not warrant the quashing of such detention order during the pendency of the Presidential order on the score of violation of article 22(5).
The Presidential order would.
however not stand in the way of the infirmity of the vagueness of grounds of detention because of the contravention of section X(l) of .
[297 E F] Every law providing for preventive detention contains certain procedural safeguards.
It is imperative that there should be strict compliance with the requirements of those procedural safeguards to sustain the validity of detention.
Detention without trial results in serious inroads into personal liberty of an individual.
In such case it is essential to ensure.
that there is no deviation from the procedural safeguards provided by the statute.
In the matter of even a criminal trial.
it is procedure that spells out much of the difference between the rule of law and the rule by whim and caprice.
The need for strict adherence to`strict procedural safeguards is much greater when we are dealing with preventive detention which postulates detention of a person even though he is not found guilty of the commission of an offence.
To condone or allow relaxation in the matter of compliance with procedural requirements would necessarily have the effect of practically doing away with even the slender safeguards is provide by the legislature against the arbitrary use of the provisions relating to prevention detention.
The history of personal Liberty is largely the history of insistence upon procedure.
It would.
therefore be wholly inappropriate to countenance and laxity in the mutter of strict compliance with procedural requirements prescribed for preventive detention.
[297 G H, 9`s A B] Once substantial disquieting doubt: are raised by the detenue in the mind of the court regarding the validity or his detention.
it would be the bounden duty of the State to dispel those doubts by placing sufficient material before the court with a view to satisfy it about the validity of the detention by filing a good return.
[299 C D] Kishori Mohan vs State of West Bengal AIR 1974 SC` 1749; king Emperor vs Sibnath Banerji 71 IA 241 and G. Sadanandan vs State of Kerala & Anr., , referred to.
[His Lordship did not express any opinion on the question of the validity of s 16A(9) of the .
[ 301 A] The appropriate occasion for the High Court to go into the constitutional validity of section 16A(9) and external all judicial scrutiny in writs of habeas corpus would be when the State or a detenu whoever is aggrieved upon, comes in appeal against the final judgments in any of the petitions pending in the High courts.
The whole matter would then be at large before the Supreme Court and it would not be inhibited by procedural or other constraints.
It would not be permissible or proper for the Supreme Court to short circuit the whole 213 thing and decide the matter by by passing the High Courts who are seized of the matter.
[302 F G and 304 D E] Section 18 of the would not detract from the view that article 21 is not the sole repository of the right to personal liberty.
The principle that no one shall be deprived of his life and personal liberty without the authority of law is also an essential facet of the Rule of law.
Section 18, therefore, cannot be of much assistance.
The view that section 18 would have the effect of enlarging the ambit of the power of the detaining authority for the purpose of passing an order for detention is not correct.
There has been no amendment of section 3 of the Act.
[274 D F] Section 18 cannot be construed to mean that even if an order for detention is made on grounds not warranted by section 3 of the Act, it shall be taken to be an order under section 3 of the Act.
Apart from the fact that such an inference is not permissible on the language of section 18, the acceptance of this view would also render the validity of section 18 open to question on the ground that it suffers from the vice of excessive delegation of legislative power.
The legislature is bound to lay down the legislative policy by prescribing the circumstances in which an order for detention can be made.
It is not permissible for the legislature to confer a power of detention without laying down guidelines and prescribing the circumstances in which such order should be made.
To do so would be tantamount to abdication of Legislation function for in such an event it would be open to the detaining authority to detain a person on any ground whatsoever.
[274 F H, 275 A] This Court in appeal by the State enlarge the area of the Unfavourable decision qua the state and make its position worse compared to what it was before the filing of the appeal.
Procedural propriety in matters relating to appeals forbids such a course.
The question of event of judicial scrutiny in the light of section 16A should be gone into when the whole matter is at large before this court and this court is not inhibited by procedural and other constraints from going into certain aspects which have a vital bearing.
It is primarily for the High Courts before which the matters are pending to decide the question of the of judicial scrutiny in the light of section 16A(9), as amended by Act.
14 of 1976.
A course which has the effect of bypassing the High Courts and making this Court in appeals from orders on preliminary objection to decide the matter even before the matter has been considered by the High Court in the light of section 16A(9), as, amended by Act 14 of 1976 should be avoided.
[301 F H] There is no sufficient ground to interfere with the view taken by all the nine High Courts which went into the matter that the Presidential order dated June 27, 1975, did not affect the maintainability of the habeas corpus petitions to question the legality of the detention orders.
[304 C] The principles which should be followed by the courts in dealing with petitions for writs of habeas corpus to challenge the legality of detention are well established.
1304 D] Unanimity obtained without sacrifice of conviction commends the decision to public confidence.
Unanimity which is merely formal and which is recorded at the expense of strong conflicting views is not desirable in a court of last resort.
[304 E] A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting Judge believes the court have been betrayed.
[304 G] Prophets with Honor by Alan Barth 1974 Ed.
p. 3 6.
referred to.
Observation: Judges are not there simply to decide cases, but to decide them as they think they should be decided, and while it may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognise than that unanimity should be secured through its sacrifice.
|
Civil Appeal Nos.
1491 and 1693 of 1971.
Appeals by Special Leave from the Judgment and order dated the 13th January 1971 of the Calcutta High Court in I.T. Reference No. 192 of 1966.
K. Kay and D. N. Gupta, for the Appellant in CA No. 1491/71 for respondent in C.A. 1693/71.
Hardayal Hardy, B. B. Ahuja and section P. Nayar for Respondent in CA1491/71 and for Appellant in 1693/71.
The Judgment of the Court was delivered by KHANNA, J.
This judgment would dispose of two cross civil appeals Nos. 1491 and 1693 of 1971 which have been filed by special leave by the assessee M/s Tea Estate India (P) Ltd. and the Commissioner of Income tax West Bengal respectively against the judgment of the Calcutta High Court answering the following question referred to it under section 66(1) of the Indian Income tax Act 1922 (hereinafter referred to as the Act) partly in favour of the assessee and partly in favour of the revenue: Whether on the facts and in the circumstances of the case the balances in the under noted accounts are includible in the accumulated profits within the meaning of section 2(6A)(c) and if so to what extent? 148 Dibru Darang Taikrong Tea Tea Co. Ltd. Co. Ltd. Rs. Rs. Land A/o 19,30,374, 10,11,216/ Profit & Loss Account 16,69,285/ 18,73,125/ General Reserves and liabilities for taxation 3,50,799/ 2,243/ Reserve created on writing up the value of the assets of the ten estates 15,69,828/ 58,772/ The matter relates to the assessment year 1956 57, the corresponding accounting year for which ended on June 30, 1955.
The assessee company held 52,350 shares out of the total issued shares of 54,600 in Dibru Darang Tea Co. Ltd (hereinafter referred to as DDT Co.) and 22,998 shares out of the total issued shares of 23,000 in Taikrong Tea Co. Ltd. (hereinafter referred to as TT Co.).
DDT Co. and TT Co. were tea companies growing, manufacturing and selling tea.
For this purpose, those two companies owned large tea estates consisting of land, building, plant and machinery.
On August 11, 1947 the said tea companies sold their entire lea estates, including all the assets, to Brooke Bond Estate India Ltd. As a result of these sales, DDT Co. received a surplus of Rs. 17,l8,081 over the book value of its assets.
Likewise, TT Co. received a surplus of Rs. 13,11,339 over the book value of its assets.
The amount relating to the land of the tea estate of DDT Co. was Rs. 19,30,374 and that relating to TT Co. was Rs. l0,11,216.
DDT Co. realized Rs. 2,12,313 less than their book value on the sale of the other assets.
It may also be mentioned that in 1936 the assets of the two companies were revalued.
On such revaluation the hook value of the assets of DDT Co. appreciated by an amount of Rs. l 5,69,828 and Those of TT Co. by an amount of Rs. 58,772.
These amounts were carried to the respective reserves of the two companies.
DDT Co. and TT Co. went into voluntary liquidation on october 29, 1954.
On account of the liquidation of the two companies, the assessee company became entitled to receive Rs. 57,69,186 out of the total distributable assets of DDT Co. and Rs. 36,53,453 out of the total distributable assets of TT Co. During the relevant accounting period the assessee received Rs. 52,23,786 and Rs. 34,15,500 (in all Rs. 86,39,286) from the liquidators of DDT Co. and TT Co. respectively.
On behalf of the assessee company, it was urged before the lncome tax officer that apart from Rs. 2,47,921 which had been assessed as capital gain under section 12B of TT Co. for the assessment year 1949 SO, no other amount could be included in the computation of the accumulated profits available for distribution under section 2(6A) (c) of the Act.
The Income tax officer rejected this 149 contention and allowed only a deduction of Rs. 27,000 being payment on share premium account and included the balance of Rs. 86,11,986 (grossed up to Rs. 91,64,075) as the assessees dividend income under section 2(6A)(c) of the Act.
On appeal the Appellate Assistant Commissioner allowed a further deduction of Rs. 1,77,964 representing pre incorporation advances in the case of TT Co. The Appellate Assistant Commissioner rejected all other contentions of the assessee including the contention that 60 per cent of the amounts appearing under the head balance of appropriation account in the balance sheets as also the general reserves and liabilities for taxation appearing in the books of the two tea companies should be excluded from the computation of accumulated profits.
On further appeal before the Tribunal two main contentions were raised on behalf of the assessee: (1) that in determining the quantum of the accumulated profits the surplus arising from sale of land of the two tea estates as also the reserves created on the revaluation of the agricultural assets should be left out and (2) that only 40 per cent of the balance in the profit and loss account and the general reserves of the two companies should be included as only 40 per cent of these amounts had been assessed under the Act.
Regarding the first contention the Tribunal observed: In the case before us since the lands of the two tea estates were utilised for producing and selling the tea it can not be said that the said assets could be termed as land from which the income derived was agricultural income.
At best what can be said is that barring 40% of such income the balance was agricultural income.
We must, therefore hold that only 40% of the profits derived on sale of the land of tea estates as also the reserves created on writing up the value of the assets of the land of the tea estates was referable to land from which income derived was agricultural income.
To that extent therefore the total of the profit on sale of the land of tea estates and reserves created on revaluation were to be excluded in computing the accumulated profits for finding out the section 2(6A) (c) dividend.
Dealing with the second contention of the assessee the Tribunal observed that the ratio of 60:40 as laid down in rule 24 of the Income tax Rules 1922 could not be applied for finding out the proportion of accumulated profits in a tea business and that profit whether capitalised or did not admit of such a bifurcation for determination of accumulated profits.
General and taxation reserves having been included in the pool of distributable surplus could.
in the opinion of the Tribunal only be held to be excess provisions out of the profit of the two tea companies which were not required to be paid out in discharge of any liability.
The Tribunal accordingly held that balance left over after making the deduction indicated above from the total distributable pool, was accumulated profits of the two tea companies 150 and the share received by the assessee on distribution of such accumulated profits was dividend within the meaning.
Of section 2(6A) (c) of the Act.
Accumulated profits in the case of two tea companies immediately before the liquidation were determined as under: "DDT Co. 40% of (Rs. 19,30,374+Rs.
15,69,828)+the whole of (Rs. 16,69,285+Rs.
3,50,799)=Rs.
34,20,165.
TT Co. 40% of (Rs. 10,11,216 Rs. 58,772) the whole of (Rs. 18,73,125 + Rs. 2,243)=Rs.
23,03,363".
The Tribunal accordingly came to the conclusion that out of the distributable surplus an amount of Rs. 57,23,528 was attributable to accumulated profits and hence was dividend within the meaning of section 2(6A) (c) of the Act.
The assessee s appeal was allowed to that extent.
Both the assessee company as well as the Commissioner applied to the Tribunal for reference of certain questions arising from the order of the Tribunal to the Court.
The Tribunal thereupon referred the question reproduced above in a composite reference to the High Court.
Dealing with items 1 and 4 mentioned in the question the High Court held as under: "As both the learned counsel agree that the same treatment should be given to the reserves created on writing up the value of the assets as to the excess and/or profit realised on sale either of the lands or of the assets or the tea estates it should be sufficient to consider the case of such excess arising from the sale and or transfer by the two tea companies.
Whether the excess of the price realised over the book value of the lands as shown in the land account balance and as envisaged in the question referred or whether the excess on the sale of the entire tea estates over the book value of the assets are to be considered for inclusion in the accumulated profits under section 2(6A)(c) there can be no doubt that such excess or profit is a realisation of capital rise and not profit of the business.
As according to the decision of the Supreme Court in Short Brothers '(1) case unless such appreciation has been included in capital gains distribution thereof by the liquidator will not be deemed to be divided for the purpose of the Income tax Act we have to find out how much of such excess or profit has been included in the computation of capital gains of the two tea companies on the transfer of the tea estates in 1947.
In his order the Appellate Assistant Commissioner has recorded that for the assessment year 1949 50 the assessment order on Dibru Darang Tea Company Ltd. showed that the com 151 pany was not liable to capital gains tax while the assessment order for that year of M/s.
Taikrong Tea Co. Ltd. showed that a sum of Rs. 2,47,921 was brought under tax under the head of Capital gains.
It must therefore be held that it is only the sum of Rs. 2,47,921 which could be included in accumulated profits for the purpose of determining the dividend under section 2(6A) (c).
Mr. B. L. Pal contended that there was no conclusive finding in the order of the Appellate Assistant Commissioner as to the capital gains of the two tea companies in respect of the transfer of the tea estates and the proper determination of capital gains payable in respect thereof had not been established.
We are unable to accept this contentions.
Accordingly so far as the first and last items in the referred question are concerned the answer would be that only the sum of Rs. 2,47,921 was includible in the accumulated profits within the meaning of section 2(6A) (c) .
Regarding items 2 and 3 in the question the finding of the High Court was as under: The balance in the profit and loss account is arrived at after deducting or providing for all out goings including the estimated liability for both income tax and agricultural income tax.
Therefore the balance carried to the balance sheet is pure profit that is to say the commercial profit of the undertaking.
We are unable to accept Mr. Rays contention that each item in the balance sheet contains in itself the proportion of the income attributable to the business activity and to the agricultural activity of the tea companies and must be distintegrated into its component parts at the time of inclusion in dividends.
Tea companies carry on a business activity though such activity may include agricultural operation as part thereof.
Overall excess of incomings over out goings as reflected in the balance of profit and loss account, would represent the commercial profits of the business undertaking of the tea companies and though a bifurcation is necessary for the purpose of assessment and imposition of tax no further bifurcation could be made once the balance of profit was finally determined of such balance it could not be said that a part represents agricultural income and the rest represents income from business.
So far as the general and taxation reserve is concerned, Mr. Ray agrees that such reserve is usually built up out of the profits to meet future liabilities but contends that is in this case also such reserve had been built up of 60 per cent.
agricultural profit such reserve should again be disintegration into the component parts.
We are entirely unable to accept this contention As pointed out by Mr. Pal the Supreme Court in Girdhar das 's(2) case advocated disintegration of the amount distributed into two components namely, capital and accumulated profits.
There is no scope for further distintegration of profits into its component parts.
(1) 63 I.T.R.300 152 The amounts mentioned in terms 2 and 3 of the question were accordingly held to be wholly includible in the accumulated profits within the meaning of section 2(6A) (c) of the Act.
Before dealing with the contentions advanced by the counsel for the parties it would be convenient to set out the relevant provisions of the Act.
section 2(1) defines agricultural income to mean, inter alia "(a) any rent or revenue derived from land which is used for agricultural purposes and is either assessed to land revenue in the taxable territories or subject to a local rate assessed and collected by officers of the Government as such; (b) any income derived from such land by (1) agriculture or (ii) the performance by a cultivator or receiver of rent in kind of my process ordinarily employed by a cultivator or receiver of rent in kind to render the produce raised or received by him fit to be taken to market, or (iii)the sale by a cultivator or receiver of rent in kind of the produced raised or received by him in respect of which no process has been performed other than process of the nature described in sub clause (ii); (c). . "Capital asset in section 2(4A) means property of any kind held by an assessee whether or not connected with his business profession or vocation but does not include (1) . . . . (ii) . . . .
(iii)any land from which the income derived is agricultural income.
"Dividend" according to section ? (A) (c) includes any distribution made to the shareholders of a company on its liquidation to the extent to which the distribution is attributable to the accumulated pro fits of the company immediately before its liquidation whether capitalised or not.
The explanation to clause 2(6A) reads as under: "Explanation.
The expression `accumulated profits, wherever it occurs in this clause shall not include capital gains arising before the 1st day of April 1946 or after the 31st day of March 1948, and before the 1st day of April 1956.
"Income" has been defined in section 2(C6) to include dividend.
Total income has been defined in section 2(15) to mean the total amount of income profits and gains referred to sub section (1) of section 4 computed in the matter laid down in the Act.
Section 3 153 provides inter alia that income tax shall be charged for a year in respect of the total income of the previous year of every individual and company.
Section 4 relates to total income of a previous year of any person.
According to clause (8) of sub section (3) of that section agricultural income shall not be included in the total Income chargeable to tax under section 3 of the Act.
Section 6 enumerated the six heads of income to be: (1)salaries (ii) interest on securities (iii) income from property.
(iv) profits and gains of business profession or vocation (v) income from other sources and (vi) capital gains.
According to section 12(1A) income from other sources shall include dividends.
Under section 12B as it stood at the relevant time capital gains tax shall be charged in respect of any profits or gains arising from the sale exchange relinquishment or transfer of a capital asset affected after the 31st day of March 1946 and before the 1st day of April 1948 and such profits and gains shall be deemed to be income of the previous year in which the sale, exchange relinqishment or transfer took place.
Section 59 empowers the Central Board of Revenue subject to the control of the Central Government to make rules for carrying out the purposes of the Act.
Indian Income tax Rules 1922 were framed in pursuance of that section.
Rule 23 of the said rules provides for assessment of income which is partly agricultural and partly income chargeable to income tax.
Rule 24 with which we are concerned reads as under: "Income derived from the sale of tea grown and manufactured by the seller in the taxable territories shall be computed as if it were income derived from business and 40 per cent.
Of such income shall be deemed to be income profits and gains liable to tax. " There is a proviso to this rule but it is not necessary to reproduced the same.
In appeal filed by the assessee company, its learned counsel Mr. Ray, has contended before us in respect of items 2 and 3 of the question that 60 per cent of the amounts mentioned in these items were agricultural income and as such were not income for the purpose of the Act.
To that extent it is urged the amounts did not constitute accumulated profits within the meaning of section 2(6A)(c) of the Act.
The High Court according to the contention was in error in holding to the contrary.
The above contentions has been controverted by Mr. Hardy on behalf of the revenue and in our opinion is not well founded.
In Inland Revenue Commissioners vs George Burrell(1) it was held that super tax was not payable on the undivided profits of past years and of the year in which the winding up of a company occurred were distributed among the shareholders, because in the winding up (1) 154 they had ceased to be profits and were assets only.
It was further observed in Burrell 's case that the only thing the liquidator of a company in liquidation may do is to turn the assets into money and divide the money among the shareholders in proportion to their shares.
Surplus of trading profit made in a particular year are distributable rateably among all the shareholders as capital and it is not right to built up the sums received by the shareholders into capital and income and thus disintegrate the sums received by the shareholders subsequently into component parts based on an estimate of what might possibly have been done but was not done.
As the Indian Companies Act 1913.
closely followed the scheme of the English Companies Act and the view expressed in Burrell 's case (supra) applied to the Indian Income tax Act a special definition of "dividend" was devised by the legislature by the enactment of the Income tax (Amendment) Act 7 of 1919 with a view to undo the effect of Burrell 's (supra) case.
Clause (c) of sub section (6A) as originally enacted stood as follows: " `Dividend ' includes (c) any distribution made to the shareholders of a company out of accumulated profits of the company on the liquidation of the company: Provided that only the accumulated profits so distributed which arose during the six previous years of the company preceding the date of liquidation shall be so included.
By the Finance Act 1955 the proviso to sub clause (c) of clause (6A) was omited.
There was a further amendment made by the Finance Act,.
1956 and clause (c) to the amended section read as follows: " `Dividend ' includes (c) any distribution made to the shareholders of a company on its liquidation to the extent to which the distribution is attributable to the accumulated profits of the company immediately before its liquidation whether capitalised or not.
As a result of the above distribution which is attributable to the accumulated profits of the company immediately before its liquidation is deemed to be dividend and as such liable to be taxed.
Sixty per cent of the profits made by DDT Co. and TT Co. by sale of tea grown and manufactured by them were not liable to be taxed under the Act in view of rule 24 of 19?.2 Rules because they were to be treated as agricultural income of these two companies.
The question with which we are concerned however is that even though 60 per cent of the said profits constitute agricultural income in the hands of DDT Co. and TT Co, once these profits got accumulated with those two companies did they answer to the description of accumulated profits as used in the definition of dividend in section 2(6A) (c) ? The answer to this question in our opinion should plainly be in the affirmative.
We were unable to accede to the contention of Mr. Ray that as only 40 per cent of the profits which got 155 accumulated were liable to be taxed in the hands of DDT and TT companies under the Act and 60 per cent were not liable to be so taxed only 40 per cent of the amount of accumulated profits should be treated as accumulated profits for the purpose of section 2(6A) (c).
The acceptance of the contention would necessarily postulate reading in section 2(6A) (c) the words accumulated profits as are liable to be taxed under the Act .
The words as are liable to be taxed under the Act are not there in the definition and it would not in our opinion be permissible to so construe the clause as if these words were a part of that clause.
There is also nothing in the language or context of that clause as would warrant such a construction.
Accumulated profits would remain their character as such even though a part of them were not taxed as profits under the Act.
It is pertinent to mention in this connection that we are concerned in the appeal of the assessee with items 2 and 3 of the question which relate to accumulated profits in the ordinary sense and not to accumulated profits arising out of capital gains which are dealt with by the explanation to section 2(6A) of the Act.
There can also be no doubt that whatever amount has been distributed to the assessee company and is attributable to accumulate profits in items 2 and 3 mentioned in the question would constitute dividend in the hands of the assessee and the whole of the amount so received would be liable to be taxed as such.
This is clear from the Constitution Bench decision of this Court in the case of Mrs. Bacha F. Guzdar, Bombay vs Commissioner of Income tax Bombay(1).
The assessee in that case was a shareholder in certain tea companies.
60 per cent of whose income was exempt from tax as agricultural income under section 4(3) (viii) of the Indian Income tax Act.
The assessee claimed that 60 per cent of the dividend income received by her on her shares in those companies was also exempt from tax as agricultural income.
This claim was rejected and it was held that the dividend income received by the assessee was not agricultural income but was income assessable under section 12 of the Act.
Agricultural income as defined in the Act according to that decision was intended to refer to revenue received by direct association with the land which is used for agricultural purposes and not by indirectly extending it to cases where that revenue or part thereof changes hands either by way of distribution of dividends or otherwise.
Mr. Ray has assailed the correctness of the view taken by the Constitution Bench of this Court in the above decision and has submitted that the matter should be reconsidered.
Apart from the fact that this Bench is bound by the decision of the Constitution Bench we find nothing in that decision as warrants reconsideration of the matter.
We would therefore uphold the answer given by the High Court in respect of items 2 and 3 of the question.
In appeal by the Commissioner of Income tax his learned counsel Mr. Hardy has submitted in respect of items 1 and 4 that as 60 per cent of the income from the land held by DDT Co. and TT Co. was to be treated as agricultural income in view of rule 24 of 1922 Rules (1) 156 the said land to the extent of only 60 per cent would not answer to the description of capital asset as defined in section 2(4A) of the Act.
As 40 per cent of the income derived from that land was not agricultural income 40 per cent interest in that land according to the submission should be held to be capital asset for the purpose of section 2(4A) of the Act.
Forty per cent interest in that land it is further submitted.
would not be taken out of the definition of capital by virtue of clause (iii) of section 2(4A) and any appreciation in the value of the land to the extent of 40 per cent would constitute capital gain.
As such gain arose during the period from April 1 1946 to March 31 1948 the same according to Mr. Hardy would answer to the description of accumulated profits as mentioned in the explanation to section (6A) of the Act.
The above contention of Mr. Hardy, in our opinion is not well founded.
Income which is realised by sale of tea by a tea company which grows tea on its land and thereafter subjects it to manufacturing process in its factory is an integrated income.
Such income consists of two elements or components.
One element or component consists of the agricultural income which is yielded in the form of green leaves purely by the land over which tea plants are grown.
The second element or component consists of non agricultural income which is the result of subjecting green leaves which are plucked from the tea plants grown on the land to a particular manufacturing process in the factory of the tea company.
Rule 24 prescribes the formula which should be adopted for apportioning the income realised as a result of the sale of tea alter it is grown and subjected to the manufacturing process in the factory.
Sixty per cent is taken to be agricultural income and the same consists of the first element or component while 40 per cent represents non agricultural income and the same comprises the second element or component.
We are fortified in the above conclusion by two decisions of this Court in the cases of Karimtharuvi Tea Estates Ltd. vs State of Kerala(1) and Anglo American Direct Tea Trading Co. Ltd. vs Commissioner of Agricultural Income tax, Kerala(2).
In the case of Karimtharuvi Tea Estates Ltd. it was observed while dealing with the income derived from the sale of tea grown and manufactured by the seller in the context of rule 24: Of the income so computed 40 per cent is under rule 24 to be treated as income liable to income tax and it would follow that the other 60 per cent only will be deemed to be agricultural income within the meaning of that expression in the Income tax Act.
In the case of Anglo American Direct Tea Trading Co. Ltd. the Constitution Bench of this Court held that income from the sale of tea grown and manufactured by the assessee is derived partly from business and partly from agriculture.
This income Las to be computed as if it were income from business under the Central Income tax Act and the Rules made thereunder.
Forty per cent of the income or com (1) (2) 157 puted is deemed to be income derived from business and assessable to non agricultural income tax.
The balance of 60 per cent of the income so computed is agricultural income within the meaning of the Central Income tax Act.
So far as the lands held by DDT Co. and TT Co. were concerned they yielded purely agricultural income in the shape of green tea leaves.
Forty per cent of the income on sale of tea which was received by DDT Co. and TT Co. was not income from land.
It was income which should be ascribed to manufacturing process to which the green tea leaves were subjected in the factories of those companies.
As the lands held by DDT Co. and TT Co. yielded agricultural income it would allow that those lands did not constitute capital asset as defined in section (4A) of the Act.
Clause (iii) appended to section 2(4A) expressly states that capital asset does not include any land from which income derived is agricultural income .
Any gain arising from the transfer of such land would not constitute capital gain under the Act and consequently would not be liable to be taxed as such.
The distribution; of that amount on the liquidation of the companies would also not partake of the character of dividend.
It may be apposite in this context to refer to the case of First Income tax officer, Salem vs Short Brothers (P.) Ltd. (supra) wherein this Court dealt with the sale of a coffee estate by a company which went into liquidation was held by this Court that the capital appreciation ill respect of the lands for which the income was derived as agricultural income and was not to able in the hands of the company as capital gains would not of distribution be liable to be so taxed as dividend under section 12 of the Act.
We therefore see no reason to interfere in the appeal filed by the Commissioner of Income tax with the answer given by the High Court in respect of items 1 and 4 or the question.
It is the common case of the parties that items 1 and 4 share the same fate.
As a result of the above we dismiss both the appeals.
In view of the divided success we leave the parties to bear their own costs of the appeals.
| IN-Abs | The assessee company held certain shares in Dibru Darang Tea Co. Ltd. (D.D.T. Company) and Taikron Tea Company Ltd. (TT Company) .
Both the Companies were companies growing, manufacturing and selling tea and owned large tea estates consisting of land, building plant, machinery etc.
In 1947, both the said companies sold their entire tea estates including all assets to Brooke Bond Estate India Ltd. Consequently DDT Company received a surplus is Rs. 17,18,081/ over the book value of its assets.
The amount relating to the land of DDT Company was Rs. 19,30,374/ and that relaung to the T.T. company was Rs. 10,11,216/ .
Both the companies went into voluntary liquidation in 1954.
On account of the liquidation of the two companies the assessee company became entitled to receive Rs. 57,69,186/ out of the total distributable assets of DDT Company and Rs. 36,53,453/ out of the total distributable assets of T.T. Company.
Section 2(1) defines agricultural income.
Section 2(4A) defines capital asset to mean property of any kind held by an assessee whether or not connected with his business, profession or vocation but does not include any land from which the income derived is agricultural income.
It was defined to include any distribution made to the shareholders of a company on its liquidation to the extent to which the distribution is attributable to the accumulated profits of the company immediately before its liquidation, whether capitalised or not.
Explanation provides that expression "accumulated profits" shall not include capital gain arising during certain periods.
The income has been defined by section 2(6C) to include dividend.
Section 2(3)(8) provides that; agricultural income shall not be included in the total income chargeable to tax under section 3 or the Act.
Rule 23 provides for assessment of income which is partly agricultural income and partly income chargeable to income tax.
Rule 24 provides that income derived from the sale of tea grown and manufactured by the seller in the taxable territories shall be computed as if it were income derived from business and 40 per cent or such income shall be deemed to be income, profits and gains liable to tax.
The assessee contended before the Income Tax officer that apart from Rs. 2,47,921/ which had been assessed as capital gain under section 12B of Income Tax Act 1922 in respect of T.T. company, no other amount could be included in the computation of the accumulated profits available for distribution under section 2(6A)(c) of the Act.
The Income Tax officer rejected the claim of the assessee.
On an appeal, the Appellate Assistant Commissioner rejected the main claim of the assessee.
On further appeal the Tribunal held as far as item 1 (land) and item 4 (reserve on revaluation) are concerned that since the lands of the two tea estates were utilised for producing and selling tea it cannot be said that the said assets were lands from which the income derived was agricultural income.
At best, what could be said is that barring 40 per cent of such income the balance was agricultural income.
As far as item 2 (profit and loss a/c) 12 833Sup CI/76 146 and item 3 (general reserve) are concerned, the Tribunal held that the ratio of 60 : 40 as laid down in rule 24 of the Income Tax Rules, 1922 could not be applied for finding out the proportion of accumulated profits in a tea business and that profits whether capitalised or not did not admit of such a bifurcation for the determination of accumulated profits.
The Tribunal held that the general and taxation reserves were accumulated profits and the share received by the assessee company on the distribution of such accumulated profits was taxable as dividend within the meaning or section 2(6A) (c) of the Act.
Both the assessee as well as Revenue approached the High Court in two references arising out of the judgment of the Tribunal.
The High Court held: (1) Regarding item No. 1 and 4 the excess of the prices is not profit of the business, unless such appreciation has been included in the capital gains.
The High Court arrived at certain figures of excess profit which was included in the computation of capital gains and held that only that figure was includible in the accumulated profits within the meaning of section 2(6A) (c).
(2) Regarding items 2 and 3 the High Court held that the balance in the profit and loss account is arrived at after deducting or providing for all out goings including the estimated liability for both the income tax and agricultural income tax.
Therefore, the balance carried to the balance sheet is pure profit, i.e. the accumulated profit.
The High Court negatived the contention that each item in the balance sheet contains in itself the proportion of the income attributable to business activity and to the agricultural activity of the companies or that they must be disintegrated into 6 components parts at the time of inclusion in dividends.
Tea companies carry on a business activity though such activity may include agricultural operation as part thereof.
Overall excess of incomings over out goings as reflected in the balance of profit and loss account would represent the commercial profits of the business undertaking and though in bifurcation is necessary for the purpose of assessment and imposition of tax no further bifurcation could be made once the balance of profit was finally determined.
In appeals filed by both the assessee and Revenue by special leave the assessee contended that 60 per cent of the amounts mentioned in items 2 and 3 were agricultural income and as such, were not income for the purpose of the Act.
To that extent the said amount did not constitute accumulated profits within the meaning of section 2(6A) (c).
Revenue contended that 10% of income derived in respect of item 1 not being agricultural should be held to be capital asset and, therefore, accumulated profits.
Dismissing both the appeals, ^ HELD: (1) Clause 2(6A) (c) provides that dividend shall include any distribution made to the shareholders of a company on its liquidation to the extent to which the distribution is attributable to the accumulated profits of the company immediately before its liquidation whether capitalised or not.
The proviso is, however, to the effect that only the accumulated profits so distributed which arise during the 6 previous year of the company proceeding the date of liquidation shall be so included.
60 per cent of the profits made by both the companies by sale of tea grown and manufactured by them were not liable to be taxed in view of rule 24.
However, once those profits got accumulated with the two companies they became accumulated profits within the meaning of h. 2(6A)(c).
The contention of the assessee that only 40 per cent of the profits which got accumulated were liable to be taxed and therefore only 40 per cent should be treated as accumulated profit for the purpose of 147 section 2(6)A) (c) cannot be accepted.
I`he assessee wants to add to section 2(6A) (c) the following words: "as are liable to be taxed under the Act" It is not permissible for us to construe the clause by adding those words.
[152 F G, 154 G H, 155 A B] (2) The decision of the case in Mrs. Bacha F. Guzdar Bombay vs Commissioner of Income Tax Bombay 27 I.T.R. 1, followed with approval.
[155 E] (3) The contention of the Revenue that the land in question to the extent of 60 per cent would not answer the description of capital asset, and as 40 per cent of the income derived from that land was not agricultural income 40 per cent interest in that land should be held to be capital asset for the purpose of section 2(4A), is not well founded.
The income which is realised by sale of tea by a tea company which grows tea on its land and thereafter subject is to manufacturing process in its factory is an integrated income consisting of agricultural and non agricultural components.
Rule 24 prescribes the formula which should be adopted for apportioning the income realised as a result of the sale of tea after it is grown and subjected to manufacturing process in the factory.
So far as the lands held by the company were concerned they yielded purely agricultural income in the shape of green tea leaves.
40 per cent of the income on sale of tea which was received by both the companies was not income from land.
It was income which could be ascribed to manufacturing process to which the green tea leaves were subjected in the factories of those companies.
As the lands held by both the companies yielded agricultural income it would follow that those lands did not constitute capital asset as defined in section 2(4A).
Section 2(4A) expressly states that capital asset does not include any land from which income is derived as agricultural income.
Any gain arising from the transfer of such land would not constitute capital under the Act and consequently would not be liable to be taxed as such.
[155H, 156 A D, 157 B D]
|
Appeal No. 42 of 1948.
Appeal against the judgment and decree dated the 21st April, 1943, of the High Court of Judicature at Patna (Fazl Ali C.J. and S.C. Chatterji J.) in First Appeal No. 17 of 1939 arising out of decree dated the 19th July, 1939, of the Subordinate Judge at Puri in Original Suit No. 62 of 1936.
Manohar Lal (G. P. Das, with him) for the appellant.
B.N. Das (Sri Kant Mahanti, with him) for the respond ents.
March 27.
The dispute in this appeal is between the fishermen residing in nine villages of Kills Marichpur, a permanently settled zamindari in the Puri Collectorate (Orissa State) and the Raja of Aul, the owner of seven annas, seven pies, and ten karants share in the zamindari.
The other sharers in the zamindari are defendants 19 to 29.
Within the ambit of the estate flows "Devi Nadi" with its several branches and tributaries.
Three fisheries ' 'Madhur dia, "Marichpurdia" and "Maladia" appertain to this es tate.
The controversy in this appeal concerns the fishery known as the "Madhurdia" fishery.
In the year 1936, three suits, Nos. 62, 63 and 64, were brought by the Raja of Aul against defendants 1 to 18 on behalf of themselves and other fishermen residing in the nine villages of Killa Marichpur for a declaration in re spect of his rights in the three above mentioned fisheries.
All these suits were decided in his favour by the trial court.
The defendants preferred no appeal in suits 63 and 64, with the result that the controversy regarding the two fisheries involved in these two suits stands concluded by the decision of the trial court.
In suit No. 62 of 1936, however, the 433 defendants preferred an appeal to the High Court and it was partially allowed.
The decree of the trial Judge in favour of the plaintiff was modified and it was held that the defendants had exclusive rights as tenants at will to fish in this fishery during the Hilsa season (Margasir to Bai sakh) and that the plaintiff was not entitled to a declara tion or an injunction in respect of that period.
The plain tiff thereupon obtained leave to appeal to His Majesty in Council and that appeal is now before us for decision.
It was alleged in the plaint that the proprietors of Marichpur zamindari are the exclusive owners of the fishery in question and have all along been exercising their right of catching fish in the same sometimes by employing fisher men and sometimes by letting out the fishery to them, that the plaintiff has ever since his acquisition of the zamind ari interest been the owner in khas possession of the fish ery right according to his share in the zamindari, that the defendants fishermen were never in possession of the said fishery, nor have they any right to it, that in the year 1918 they started proceedings under section 145, Criminal Procedure Code, to create evidence of their possession but in spite of those proceedings the plaintiff continued to be in possession of the fishery and has been catching fish by employing fishermen, that by taking advantage of the fact that there are several co sharers in the zamindari and there is mismanagement of the estate, the defendants wrong fully and unlawfully trespassed on the fishery from time to time between May, 1933, and November, 1933, and disturbed the plaintiff in the enjoyment of his right and have caused loss to him and his co sharers by catching large quantity of fish without any leave or licence.
On these allegations, the plaintiff claimed a declaration to the effect that defendants 1 to 18 in their personal and representative capacity have no right or title in the fishery known as "Madhurdia" fishery or to the fishery in the southern por tion of the area recorded as the river block, Risilo and Husgarh.
Prayer was also made for the grant of a perpetual injunction restraining the defendants from 434 fishing in the above fishery and in the above mentioned blocks and for the award of a sum of money by way of damages and on account of price of fish.
, The defendants contested the allegations made in the plaint and asserted that the fishermen of Killa Marichpur including the principal defendants and their ancestors, about 846 persons in all, have all along remained in undis turbed actual physical possession of the fishery known as "Charkhatia" alias "Madhurdia" fishery on a fixed annual rental of Rs. 135 7 0, and have a right to remain in posses sion in perpetuity on payment of that rent; that they have acquired this right in all possible ways, i.e., by grant, custom, adverse possession and easement.
On these pleadings of the parties the trial Judge framed as many as nine issues, the material ones being issues 6 and 7, which are in these terms : "6.
Has the plaintiff any title to the disputed fishery ? 7.
Have the defendants Nos. 1 to 18 acquired any right, by adverse possession, prescription or custom ?" The trial Judge on these issues held that the defendants neither in their personal nor in their representative capac ity had any right or title in the fishery in question and issued a permanent injunction against them from fishing in it.
The claim for damages was disallowed.
It was observed by the learned Judge that the defendants did not claim the right to catch all the fish found in the fishery but that they had confined their claim in respect to Hilsa fish only during the Hilsa season between the months of Margasir and Baisakh (November to April) and that as regards the other varieties of fish found in these waters during the rest of the year they did not assert any right to catch fish.
He also observed that 'the defendants did not deny that the plaintiff was the owner of the zamindari and as such owner of the soil and of the waters of the fishery, but that they claimed a subordinate right, i.e., the right of fishing in the 435 waters belonging to the plaintiff and his co sharers during the Hilsa season to the exclusion of the plaintiff and his co sharers.
In view of these contentions the onus was laid on the defendants to prove their permanent right of fishing in these waters by grant, custom, prescription or adverse possession and it was held that the defendants failed to discharge the onus that rested on them.
Acquisition of the right by grant, prescription and adverse possession was held not provable in law in favour of an indeterminate and fluc tuating body of persons.
The claim for permanent tenancy in the fishery was negatived on the ground that there was no evidence to show that the tenancy came by descent to these 846 persons from the persons who actually took it in the year 1842, or that it was obtained from all the sixteen anna landlords, or that there was any fixity of rent.
It was further said that there was no certainty as to who were the owners of the right, as to the local area over which the right was to be exercised, as to the measure of the right and of the periods during which the right could be exercised and that in these circumstances the defendants ' claim could not be upheld.
The defendants ' contention that under article 47 of the Indian Limitation Act the plaintiff had lost his right was held unsustainable and the plea of custom was ruled out on the ground that the custom alleged would be of an unreasonable kind.
All the questions raised in the trial court excepting the question of custom were canvassed by the defendants before the High Court.
The High Court in a judgment, by no means clear or satisfactory, reached the conclusion that the defendants since the time of their predecessors had all along been fishing in the disputed fishery as of right under a lost grant and that the plaintiff 's story that he had been in enjoyment of the fishery was not true and that the de fendants ' right to fish in the disputed fishery was estab lished.
One would have thought that in view of this finding the plaintiff 's suit would have been dismissed 436 but this did not happen.
The High Court proceeded to find that though from the evidence it appeared that the right was being exercised by the defendants or their predecessors from a very long time, that is to say, from the year 1842, yet there was no evidence to justify the inference that they had got a permanent right.
The defendants ' plea therefore that they were permanent tenants of the fishery in dispute was not upheld.
As regards the defendants ' contention that the plaintiff was bound by the order passed in proceedings under section 145, Criminal Procedure Code, it was found that he not having challenged that order within the prescribed period, his right to khas possession of the disputed fishery except to the extent of five pice share was extinguished under section 28 of the Limitation Act but that his proprie tary right subsisted as it was never denied.
It was further held that the plaintiff 's right to khas possession of this fishery was also extinguished by operation of article 144 of the Indian Limitation Act.
Plaintiff 's evidence that he had been catching fish during the Hilsa season by employing other fishermen was disbelieved and it was held that the defendants had been exercising exclusive right to fish in the disputed fishery during the Hilsa season adversely to the plaintiff and the other co sharers for more than twelve years.
In spite of these findings the High Court reached the somewhat strange conclusion that the defendants acquired by adverse possession a mere tenancy at will and that it could be determined by the entire body of landlords and the plain tiff being only a co sharer could not bring the present suit in his own behalf and it had not the effect of determining the tenancy and hence the plaintiff could not be granted the declaration and the injunction restraining the defendants from fishing during the Hilsa season.
As regards the point raised by the plaintiff that by reason of the change in the course of the river the fishery in dispute was not the same regarding which an order was made under section 145 proceed ings or in which the defendants have been exercising their right, it was held that this contention was without force because 437 the river was identical and the channels, whether old or new, which comprise the Madhurdia or Charikhati fishery, have always formed one connected sheet of water and that fishing in different parts of such a connected sheet of water comprised in the same fishery can hardly be said to be a separate act of aggression so as to disturb the continuity or extent of adverse possession and that the fishermen though a fluctuating body, have unity of interest and pos session and could not be described as several independent trespassers.
As a result of these findings the decree of the trial Judge was modified and the plaintiff was given a permanent injunction restraining the principal defendants from fishing in the disputed fishery except during the Hilsa season (Margasir to Baisakh) during which the defendants were declared to have exclusive right of fishing.
Against the decision of the High Court no appeal was pre ferred by the defendants though they had only been found to be in possession of the fishery in the status of mere ten ants at will.
The plaintiff challenged this decision and contested the finding that the defendants were lawfully in possession of the fishery and could exercise their right of fishing during the Hilsa season exclusively.
The real grievance of the plaintiff seems to be that by the decision under appeal the High Court has declared a fluctuating body of persons tenants at will, and that such a tenancy cannot be determined as its constitution is liable to vary with each birth and death and with influx or efflux of fishermen to and from these villages.
It was argued that the High Court has erroneously found that the defendants were in possession of the fishery and were in enjoyment of the fishing right under a lost grant and that the plaintiff 's right to khas possession of the fishery had been extin guished by operation of articles 47 and 144 of the Limita tion Act read with section 28 of the Act.
It was contended that from the evidence placed on the record the only correct conclusion to draw was that from time to time some fishermen were allowed tot fish in these waters by a number of land lords 438 on payment of rent but that the present defendants were not the descendants of those fishermen who were occasionally granted leave to fish and that those isolated acts of letting the fishery were not connected with one another and from these it could not be inferred that the defendants or their predecessors were in continuous possession of the fishery on payment of a fixed rent and that the present defendants were mere trespassers and had no right to fish in the disputed fishery.
It was further contended that no title of any kind could be presumed to exist in the defend ants to the fishery in suit and on the basis of a lost grant as in this case there was no capable grantee and that even title by adverse possession or prescription could not be acquired by them as they form an indeterminate and fluctuat ing body of persons.
As regards the finding of the High Court that the plaintiff 's suit was barred by article 47 of the Limitation Act and his title to khas possession was extinguished by operation of the provisions of section 28 of the Indian Limitation Act, it was contended that the pro ceedings that took place in the year 1918 were wrongly labelled under section 145, Criminal Procedure Code, and that in substance the order made in those proceedings fell within the ambit of section 147 of the Code and therefore article 47 had no application to the case and the plaintiff was not bound to bring his suit within three years of that order to enforce his right.
It was further contended that the order could only benefit the parties impleaded in those proceedings and the other defendants could not derive any assistance from it, that in any case the order could not bind the plaintiff to the extent of the share purchased by him from co sharers not made parties in those proceedings and that the river having changed its course in the year 1925, the fishery as it stood in 1918 was no longer in existence and in ,the substituted fishery the plaintiff 's right could not be held to have been extinguished by the effect of the order made in section 145, Criminal Procedure Code, proceedings.
The learned counsel for the respondents contended that the defendants had in the status of 439 tenants an exclusive right to fish in the fishery 'and were entitled to remain in enjoyment of it on payment of a fixed rent of Rs. 135 7 0 in perpetuity, that the plaintiff 's right of fishing in the fishery during Hilsa season had become extinguished by operation of article 47 and article 144 of the Indian Limitation Act.
It was denied that by a change in the course of the river, if any, the defendants ' right had in any way been affected.
In order to appreciate the respective contentions of the parties it is necessary to state a few facts which emerge from the documentary evidence produced in the case.
The State of Orissa came under the British rule in the year 1803.
A revenue settlement of the State was made in 1904 05.
From the village note prepared during the settle ment, it appears that Killa Marichpur was Originally owned by one Padmalav Mangaraj and that during the time of his great grandson Balabhadra Mangaraj the estate was sold in auction for satisfaction of debts incurred by him and was purchased by (1) Mohan Bhagat, (2) Chakradhar Mahapatra, and (3) the ancestors of one Haziran Nisa Bibi in equal shares.
From the jamabandi of the year 1842 (Exhibit C) it appears that the jalkor income of Killa Marichpur zamindari at that time was Rs. 135 7 0, and this was being realised from Hari Behera and Brundu Anukul Singh, two fishermen.
It is not clear from this document in what status they were paying this amount and what was the nature of their tenancy.
Exhibit A is a kabuliyat of the year 1845 by Brundu Anukul Singh and Hari Behera in favour of Babu Mohan Bhagat and Bibi Mobarak Nisa, and it shows that these two fishermen took a lease of the fishing right in Devi river on payment of Rs. 135 as rent, from the landlords.
It was stated there in that these fishermen will catch fish from these waters according to former custom and will pay "machdia sarbara" of Rs. 135 in accordance with the instalments.
There is no indication in the kabuliyat that these two persons were executing it in a representative capacity or that the lease taken by them was of a permanent character or 440 that the rent payable was not liable to enhancement in the future.
It was contended on behalf of the defendants that these two persons executed the kabuliyat in a representative capacity and on behalf of all the fishermen who originally resided in four villages of Killa Marichpur and who subse quently came to reside in the nine villages mentioned in the plaint.
The only evidence placed on the record in support of the suggestion and relied upon by the High Court is the statement of D.W. 11 who was born some time in the year 1873, about 28 years after the execution of the kabuliyat and who has no special means of knowledge to depose as to the relationship of persons mentioned in the kabuliyat with the defendants in the present case or to know the capacity of persons who executed the kabuliyat.
It is not possible therefore to hold that the kabuliyat was executed in a representative capacity by these two persons and on behalf of all the persons interested in the present controversy.
There is no evidence on the record to prove the state of affairs of this fishery between the years 1845 and 187 a Reliance was placed by the defendants on a number of rent receipts produced by them in evidence.
The first of these is dated 30th 'March, 1873, and was executed by one of the Mahapatra co sharers on account of the instalment of fishery rent of "Charkhati" paid through Hari Behera and Rama Behera in the sum of Rs. 8 12 0.
All the co sharers were not par ties to this receipt and it is not stated what was the total rent payable for the whole fishery.
On the 11th May, 1875, another receipt was executed by Bibi Masudannisa and Others, co sharers of five anna four pies in the zamindari in favour of Hari Behera and Ananta Behera and others for a sum of Rs. 18.
It seems that different co sharers were giving permis sion to different persons to fish in the fishery on payment of certain sums of money.
There is no evidence whatsoever connecting the receipt of 1873 given by two co sharers to two persons with the receipt given by another set of co sharers to these two persons and it is not possible to say that these payments were made towards a fixed 441 rent of Rs. 135 7 0 payable for the whole fishery.
The state of affairs of this fishery between 1876 to 1893 remains shrouded in mystery as no evidence for that period has been filed on the record.
On the 1st May, 1894, Mohan Bhagat 's descendant gave a receipt to Pandab Behera and Phagu Behera for Rs. 10, which was to be set off against fishery rent.
It is difficult to connect this receipt with the other receipts or to treat it as evidence in support of the de fendants ' case of a permanent tenancy.
Similar receipts by different co sharers in favour of different persons were executed on the 1st May, 1895, 5th May, 1896, 9th May, 1897, and 22nd October, 1899; but in none of those receipts is any mention made of any fixed rental of Rs. 135 7 O for the fishery in respect of the whole year and payable to all the landlords.
A printed rent receipt on behalf of one of the proprietors to Hurshi Behera and Agani Behera of village Alsahi was given on the 22nd October, 1899.
The receipt relates to payment of twelve annas as arrears of fishery rent and in the receipt it is stated that the cash rent payable was Rs. 150.
This receipt, if it relates to the rent payable to all the co sharers, is inconsistent with the defendants ' case that the fishery had been leased out from time immemorial on a fixed rent of Rs. 135 7 0.
On the 23rd August, 1902, a receipt was given on behalf of nine anna seven pie co sharers in the zamindari to Maguni Behera and Ram Behera of Kalia Kona and to Sapani Behera of some other village in the sum of Rs. 83 12 11 stating that the amount of total rent of which Rs. 83 12 11 was the fractional share of these landlords was a sum of Rs. 135 7 0.
It was contend ed on behalf of the defendants that the sum of Rs. 135 7 0 mentioned in this receipt was the identical amount that was mentioned in the jamabandi of 1842 as payable to the zamin dars as income of the jalker and from this entry an infer ence should be drawn that the fishery had been continuously leased for this sum from 1842 to the date of this receipt.
The coincidence relied upon undoubtedly exists, but on that basis it is not possible to draw the reference suggested as such an inference would be 442 of a conjectural nature.
All these receipts are consist ent with the contention of the plaintiff that from time to time different co sharers permitted different fishermen to fish in the fishery on payment of a certain rental.
A re ceipt similar to the one above mentioned was also executed on the 5th March, 1906, by certain co sharers owning eight pies in the zamindari in favour of some fishermen, the annual rent being Rs. 135 7 0.
The "Remarks Column" states that if the rent is more than mentioned therein, the further amount due would be made good.
Same remarks are applicable to this receipt as to the previous one.
The next rent re ceipt is dated 19th April, 1907, and is for a sum of Rs. 168 6 0.
No inference either way can be drawn from this receipt.
On the 21st June, 1912, a receipt was given in favour of twelve persons in respect of rent for the year 1317.
The receipt was given by the nine anna seven pie co sharer in the zamindari but it is not clear how this amount was made up.
On the 4th February, 1914, a receipt was given by an eight pie co sharer in the zamindari to 174 persons, described as tenants and residing in different villages of the zamindari for a sum of Rs. 5 13 6 as rent for the year 1319.
The entry in the "Remarks" column is similar to the receipt above mentioned.
The amount of annual rent is mentioned as Rs. 135 7 0 and it is stated that it is being paid in accordance with a decree of court No. 181.
It is difficult to connect this receipt with the other documents previously discussed.
Another receipt dated 30th March, 1914, was given by nine anna seven pie co sharers in the fishery to twelve persons for the year 1320.
It seems to us that these occasional receipts given to different persons by different sets of co sharers can lead to no definite conclu sion in regard to the rights of the parties.
They are con sistent with the case argued on behalf of the plaintiff that by leave and licence a number of fishermen used to fish in ' the waters from time to time and they do not necessarily lead to the inference of the existence of a permanent tenan cy of the fishery in favour of the defendants on a fixed rent of Rs. 135 7 0.
443 By a registered deed dated 24th May, 1914, the plaintiff for the first time acquired an eight pie interest in the zamindari in the name of Smt.
Mahisthali Patamahadei, his wife, from one Balaram Das Bhagat, a descendant of Mohan Bhagat.
Subsequently he in his own name and sometimes in the name of the Rani purchased some further shares in the za mindari and eventually became the owner of seven anna seven pie and ten kranth share in it.
The acquisition of interest by the plaintiff (Raja of Aul) in the zamindari coincides with the period of the first world war, the aftermath of which was a rise in prices.
Fish which was a cheap commodity and brought no appreciable income to the fishermen or to the owners became a source of considerable income and this circumstance led to disputes between the owners of the fishery and the fishermen.
A number of letters of the years 1914 to 1918 have been proved on behalf of the plaintiff showing that he was deriving income from this fishery.
Similar letters for subsequent periods have also been proved but no regular accounts of the income so realized were produced in the case.
The enhanced income of the fishery created a scramble for its possession between the landlords and the fishermen and there was an apprehension of a breach of peace which resulted in proceedings under section 145, Criminal Procedure Code.
A report was made to the police on the 11th February, 1918, that a dispute had arisen which was likely to cause a breach of the peace between the landlords of Killa Marichpur and twelve fishermen in regard to the possession of Charikhati fisheries in Debi river.
The Magis trate on receipt of the police report issued notice to the parties for the 10th February, 1018, and decided the case on the 10th June, 1918.
From his order it appears that notice was given to all concerned and they were invited to put their respective claims as regards the facts of the actual possession of the fishery in dispute before him.
On behalf of certain co sharers evidence was led to prove that they were in possession of the fishery through one Sundari Behera and other fishermen numbering about 100.
The Rani 444 of Aul who had then eight pie interest in the zamindari as benamidar of her husband led evidence to establish that she was in possession of the fishery through fishermen employed by her agent.
Ram Behera, Hrushi Behera and other fishermen of the second party, twelve in number, led evidence to show that they were in possession of the fishery on payment of rent and that the owners of the zamindari had never been in actual possession of the fishery.
The Magistrate found that this contention was true.
He disbelieved the story of the witnesses produced by the Rani of Aul, and also rejected the testimony of the witnesses produced by other owners.
Some Aul fishermen were produced on behalf of the Rani but their evidence was also not accepted.
The same kind of documentary evidence that has been placed on this record on behalf of the plaintiff was also placed before the Magistrate but it was not accepted by him.
From these proceedings, it further appears that all the sixteen anna owners of Killa Marichpur issued a notice to the second party, the fishermen, for surrendering possession of the fishery with effect from September, 1917, but after service of notice they took no legal steps to eject them from possession of the fishery; on the other hand, they took the law into their own hands and made attempts to take forcible possession of the fishery.
These attempts, however, were unsuccessful.
The result of these proceedings was that the Magistrate found that the fishermen (the second party) were in possession of the disputed fishery and he directed ' the issue of an order declaring their possession until evicted therefrom in due course of law and forbidding all disturbance of such posses sion until such eviction.
This order indicates that though all the landlords were not named as parties in the case, yet all of them had notice of the proceedings and all of them were actually interested in turning out the fishermen from possession by forcible means, and notice had been given to them on behalf of all of them.
It also appears from those proceedings that though one dozen people were named as second party in the case, there were certain other persons also interested in the 445 fishery along with them, but it is difficult to ascertain their number, names and addresses from these proceedings.
Evidence has been led on behalf of the plaintiff to prove that after the determination of these proceedings the plain tiff has been deriving income from this fishery by leasing his right through the agency of fishermen of Aul.
The High Court has not placed any reliance on this evidence and, in our opinion, rightly.
It is not possible to believe that after a successful fight in the criminal court, the fisher men would have allowed the men of the Raja or of the Rani to fish in these waters during the Hilsa season.
Both parties led oral evidence to prove that each party exercised exclu sive right of fishing during Hilsa season in the fishery.
We have been taken through the evidence and after examining it, have reached the conclusion that it is of an unsatisfactory character and valuable rights cannot be decided on its footing.
No steps were taken by the landlords to question the order of the Magistrate within three years from its date as required by article 47 of the Limitation Act.
The land lords, however, refused to receive any rent from these persons after the termination of the proceedings and they have been depositing it in court under the provisions of the Orissa Tenancy Act.
The last purchase by the Raja of Aul of some interest in the zamindari was made in the year 1935 and having acquired by this date a substantial interest in it and having discov ered that the fishery was a paying proposition, he brought this suit in the year 1986 on the allegations set out above and asserted that since about three years the defendants had started disturbing his possession of the fishery in dispute.
In the circumstances mentioned above this assertion cannot be taken seriously.
In order to get out of the effects of the proceedings under section 145, Criminal Procedure Code, he alleged that he had been in possession of the fishery in spite of the proceedings taken under that section and that his possession had only been disturbed recently.
The evi dence on this point was 446 rejected by the High Court and we see no reason to disagree with that finding.
It is now convenient to consider the different points canvassed before us by the learned counsel appearing on behalf of the parties.
We find it difficult to uphold the view of the High Court that the defendants were in posses sion of the disputed fishery under a lost grant.
This doc trine has no application to the case of inhabitants of particular localities seeking to establish rights of User to some piece of land or water.
As pointed out by Lord Rad cliffe in Lakshmidhar Misra vs Rangalal(1) the doctrine of lost grant originated as a technical device to enable title to be made by prescription despite the impossibility of proving immemorial user and that since it originated in grant, its owners, whether original or by devolution, had to be such persons as were capable of being the recipients of a grant, and that a right exercisable by the inhabitants of a village from time to time is neither attached to any estate in land nor is it such a right as is capable of being made the subject of a grant, there being no admissible grantees.
Reference in this connection may be made to a Bench decision of the Calcutta High Court in Asrabulla vs Kiamatulla(2), wherein the law on this subject has been examined in some detail.
In that case the question arose whether the right of pasturage claimed by a whole body of villagers could be acquired by grant, express or presumed.
After an examination a number of English and Indian cases it was held that no lost grant could be presumed in favour of a fluctuating and unascertained body of persons who constitute the inhabitants of a village and that such a right could only be acquired by custom.
The defendants in this case are a fluctuating body of persons and their number increases or decreases by each birth or death or by influx or efflux of fishermen to or from these villages.
From the evidence of D.W. 11 it appears that formerly the Kouts (fishermen) claiming the right to fish were residents of four villages, then some of them shifted to other villages on account of their (1) A.I.R. 1950 P.C. 56.
(2) A.I.R. 1937 Cal.
447 houses being washed away, and settled themselves in other villages.
At the time of the suit they were residing in nine villages.
He further deposed that during the last ten or twelve years there were 600 bohanias and that their families increased, their present number being 846.
It is in evidence that since this evidence was given their number has gone up to 1500.
From the documentary evidence it appears that up to the year 1918 their number was not very large.
Only twelve persons were impleaded in the section 145, Criminal Procedure Code, proceedings and it was said that there were some more interested.
The maximum number given in one or two receipts is 174.
It is again not possible to hold that the fishermen residing in these villages are a corporate body and that being fishermen by profession it has the effect of incorpo rating them.
We find ourselves unable to subscribe to the view of the High Court that the defendants constitute some kind of a unit simply because they are a body having a common interest to fish in this fishery; unless the defend ants fishermen form a corporate body, or it is found that a trust was created for their benefit, such a body of persons could acquire no right by the doctrine of lost grant.
A right to fish from the fishery based on mere inhabitancy is capable of an increase almost indefinite and if the right exists in a body which might increase in number, it would necessarily lead to the destruction of the subject matter of the grant.
Moreover, there could not be a valid grant to a body so incapable of succession in any reasonable sense of the word so as to confer a right upon each succeeding inhab itant.
For the reasons given above, the defendants ' right to remain in possession of the fishery on the basis of a lost grant or on the basis of prescription or adverse possession stands negatived.
All that appears from the evidence is that a number of fishermen from time to time have been exercising the right of fishing with the leave and licence of some of the owners.
This is not sufficient for the acquisition of the right either by 448 adverse possession or by prescription.
Further, no finding can be given in their favour as the evidence does not estab lish that they have been paying uniformly the same amount of rent.
The next finding of the High Court that the landlords have lost their right to khas possession of the fishery in dispute by reason of the operation of article 47 of the Indian Limitation Act is, in our opinion, sound.
The High Court, however, was not right in holding that the order made in the section 145, Criminal Procedure Code, proceedings was not binding on the plaintiff to the extent of five pies share.
Its true scope and effect do not seem to have been fully appreciated.
The order appears to have been made after notice to all the landlords and was brought about by reason of the action of all of them and binds the full sixteen anna interest in the zamindari.
In clear and unambiguous terms the Magistrate declared that the second party were in exclu sive possession of the disputed fishery and that the land lords had no right to disturb their possession and they were directed to bring a suit to establish their right to posses sion.
This they failed to do with the result that the order became final and the right of the landlords to get into possession of the fishery became extinguished.
This order therefore affirmed the defendants ' possession of the fishery on payment of a certain rental.
This right, however, can only be exercised by those who were parties to the section 145, Criminal Procedure Code, proceedings or their succes sors in interest.
It was argued by the learned counsel for the appellant that the proceedings that took place in the year 1918 were in substance under section 147, Criminal Procedure Code, and were wrongly labelled under section 145 of the Code.
We are not able to accede to this contention because the dispute raised in the year 1918 related to possession of the fishery itself and was a dispute ,concern ing any water or the boundaries thereof in the language of section 145, Criminal Procedure Code.
Sub section 2 of section 145 provides that for the purpose of the section the expression "land or water" includes fisheries.
It 449 was then argued that in any case the benefit of the order made under section 145, Criminal Procedure Code, could only be taken by the persons in whose favour that order was made and that it could not operate for the benefit of all the 846 fishermen represented by the eighteen defendants or in favour of all fishermen who would come to reside in these nine villages in times to come.
In our opinion, this con tention has force and the High Court was in error in holding otherwise.
There is no evidence whatsoever to show that besides the twelve persons mentioned as second party in the section 145, Criminal Procedure Code, proceedings who else was represented by them and we are therefore bound to hold that the benefit of that order can only be given to those defendants who are represented by those twelve persons.
The learned counsel for the appellant gave us a list of the persons who were parties in section 145 proceedings and of those out of the defendants who stand in their shoes.
According to this list, defendants 1, 2, 3, 5, 6, 7, 9 and 12 are the persons who themselves or through their predeces sors in interest were parties in the former case and are entitled to the benefit of the result of those proceedings.
All the other defendants, whether impleaded personally in this suit or in a representative capacity, or those whom they represent, are not entitled to take advantage of those proceedings.
The result therefore is that the defendants above mentioned only are entitled to remain in possession of the fishery on payment of a rent of Rs. 135 7 0 per annum till it is enhanced in due course of law or for good cause they lose their right to remain in possession of the fish ery.
In an earlier litigation it has been decided that the right to possession of the fishery for fishing during Hilsa season is not assignable or transferable, it however can be enjoyed by the heirs and successors.
The contention that there has been a change in the course of the river and that the fishery now in dispute is not the same fishery which was in dispute in the proceedings of 1918 cannot be sustained.
We see no reason to differ from the view of the High Court 450 that the change in the course of the river has not in any way affected the defendants ' possession, as the channels, whether old or new, which comprise the Madhurdia or Chark hati fishery form one connected sheet of water.
It is well settled that the fish follow the course of the river and the fishermen follow the fish.
It was then argued that an exclusive right of fishing could not be acquired in respect of a particular kind of fish and during any particular season.
This argument is not tenable in view of section 145, Criminal Procedure Code, proceedings.
Moreover an exclusive right of fishing in a given place means that no other person has a coextensive right with the claimant of the right.
The mere fact that some other person has a right to a particular class of fish in the fishery or that another person is entitled to fish at a certain time of the year does not destroy the right of exclusive fishing in any manner (Vide Halsbury 's Laws of England, Hailsham Edn., Vol. 15, para. 59).
The result is that the appeal is allowed partially, the decree of the High Court is modified and the plaintiff 's suit for a declaration and injunction is decreed as follows: (i) It is declared that the plaintiff is entitled to fish in the disputed fishery except during the Hilsa season (Margasir to Baisakh) during which season defendants 1, 2, 3, 5, 6, 7, 9 and 12 have an exclusive right of fishing in the fishery in respect to Hilsa fish which right they can exercise either personally or with the help of other fisher men, on payment of a rent of Rs. 135 7 0 per year till it is enhanced in due course of law or for good cause they lose their right to remain in possession of the fishery; (ii) The defendants are restrained from interfering with his right of fishing during the months during which the defendants named above have not the exclusive right of fishing; (ii) That defendants other than defendants 1,2, 3, 5, 6, 7, 9 and 12 have no right of any kind whatsoever 451 in this fishery and cannot interfere with the plaintiff 's right.
In the circumstances of the case we will make no order as to costs of the appeal.
Appeal allowed in part.
| IN-Abs | A right exercisable by the inhabitants of a village from time to time is neither attached to any estate in land nor is it such a right as is capable of being made the subject of a grant, there being no ascertainable grantees.
The doctrine of lost grant originated as a technical device to enable title to be made by prescription despite the impossibility of proving immemorial user and since it originated in grant, its owners, whether original or by devolution, had to be such persons as were capable of being the recipients of a grant.
Where all that appeared from the evidence was that the fishermen who were residents of certain villages had been for a long time exercising the right of fishing in certain rivers which flowed through a zemindari with the consent of some of the zemindars: Held, that the fishermen residing in these villages cannot be treated as a corporate body or a kind of unit in whose favour a lost grant could be presumed or who could acquire a right to fish either by adverse possession or by prescription.
Where, however, there were proceedings under section 145 of the Criminal Procedure Code between the zemindars and certain fishermen and the Magistrate found that the fisher men were in possession of the disputed fishery and he di rected the issue of an order declaring their possession until evicted therefrom in due course of law and forbidding all disturbance of such possession until such eviction, and no steps were taken by the zemindars to set aside the order of the Magistrate within three years as required by article 47 of the Limitation Act: Held.
, that so far as the fisher men who were parties to the proceedings under section 145, the order of the Magistrate had become final and they were entitled to remain in possession of the fishery.
An exclusive right of fishing in a given place means that no other person has a co extensive right with the claimant of the right.
The mere fact that some other person has a right to a particular class of fish in the fishery or that another person is 56 432 entitled to fish at a certain time of the year does not destroy the right of exclusive fishing in any manner.
|
iminal Appeal No. 9 of 1955.
Appeal by special leave from the Judgment and Order dated the 26th September, 1951, of the Hyderabad High Court in Criminal Confirmation No. 638/6 of 1951 and Criminal Appeal No. 770 of 1951, arising out of the Judgment and Order dated the 27th June, 1951, of the Court of the Sessions Judge, Osmanabad, in Criminal Case No. 12/8 of 1951.
525 R. Patnaik for the appellant.
Porus A. Mehta and P. G. Gokhale for the respondent.
September 27.
The Judgment of the.
Court was delivered by BOSE J. This is another of those cases in which Courts are compelled to acquit because Magistrates and Sessions Judges fail to appreciate the importance of section 342 of the Criminal Procedure Code and fail to carry out the duty that is cast upon them of questioning the accused properly and fairly, bringing home to his mind in clear and simple language the exact case he has to meet and each material point that is sought to be made against him, and of afford ing him a chance to explain them if he can and so desires.
Had the Sessions Judge done that in this case it is possible that we would not have been obliged to acquit.
The facts are simple.
The appellant Machander was charged with the murder of one Manmatb.
Machander 's brother Gona was also challaned but as he absconded he could not be tried.
The appellant and the deceased and Gona reside in the same village.
There was some ill feeling between the appellant and the deceased and it can be accepted that Gona shared his brother 's sentiments because, so far as the latest cause for enmity goes, Gona is equally concerned; and this also applies to Pandu, the appellants father, and Bhima, another brother.
The causes for enmity are the following.
In or about the year 1947 the appellant appears to have stolen a pair of bullocks and a cart belonoing to the deceased.
The deceased prosecuted him for the theft and also instituted a civil suit for the price of the cart 'and bullocks.
He succeeded in both cases.
The appellant was convicted of the theft and sent to jail.
A decree was also passed against him for Rs. 520 and that decree was duly executed.
We now come to the events immediately preceding the murder.
The appellant and his family took forcible possession of some land belonging to the 526 deceased 's sister Parubai.
She sued the whole family for possession of this land, that is to say, she impleaded the appellant 's father Pandu, the appellant and his two brothers Bhima and Gona.
The last hearing was on 15 12 1950 and the decision was announced on 16 12 1950.
It was in Parubai 's favour.
The deceased conducted this litigation on behalf of his sister.
He was present in Court on the 15th and was present at Parenda, where the Court is situate, up to 3 P.m.
on the 16th, the day the decision was announced.
That was the last that was seen of him.
These facts are said to be the cause of the ill feeling.
But, as the facts themselves indicate, a similar cause for enmity (though not to the same degree) could be assigned to the father and the other brothers; equally, they had similar opportunities.
The movements of the appellant have been traced to Parenda and back but not the movements of the rest of the family.
So it is not shown that they had no similar opportunity to murder.
It can however be accepted that cause for enmity on the appellant 's part is established.
It is proved that the deceased went to Parenda on the 15th for the last hearing of the case and that he was also there on the 16th up to 3 p.m.
It is also proved that the appellant was in Court on the 15th and that he was in Parenda on the following day.
It can be accepted that both the deceased and the appellant were present in Court at the same time on the 15th and that therefore the appellant knew that the deceased had attended the Court that day.
But there is no proof that the two met each other or that either knew about the movements of the other on the 16th.
All we know is that both went to see their respective pleaders at different places and times and learned the result of the case.
Four or five days after the case, the appellant came home but not the deceased.
The deceased 's son Shantiling (P.W. 10), who knew that the appellant bad also gone to Parenda for the case, asked him where his father was.
The appellant said that the father had not attended court.
This made the son 527 anxious, 'so he went to Parenda to make enquiries.
The pleaders there told him that his father had attended court on the 15th and that he was in Parenda till,3 P.m. on the 16th.
Shantiling (P.W. 10) immediately informed the police that his father was missing and gave them a description of him and also a list of the things he was wearing and a description of the horse he was riding.
This was on the 26th.
Three days later, on the 29th, he lodged a regular complaint and said that he was afraid his father had been murdered and said that he suspected the appellant and his brother Gona.
The appellant was arrested the same day and after his arrest he led the police and Panchas to a place where blood stained earth and grass were found and a bloo dstained stone, also some of the articles which Shantiling (P.W. 10) had described to the police on the 26th, namely pieces of a silver linga, two silver kadas, a silver spike and a white gilt button.
All except the kadas were found to be stained with human blood.
About 25 paces from here the appellant pointed out another place where the corpse of the deceased was found to be buried.
Pearl ear rings and a kardoda of yarn with three iron keys were still on the body.
They were all stained with human blood and are proved to have belonged to the deceased.
On the 1st of January 1951 the appellant took the police and the Panchas to a place where two saddle straps and two iron stirrups were buried.
One of the stirrups was stained with human blood.
On the 3rd the reins of the horse and the horse itself were discovered but this discovery was not at the instance of the appellant.
Except for the confession, which has been excluded, this is all there is against the appellant.
The question is whether that is enough to bring guilt home to him.
Stated briefly, the circumstances are 1.
That the appellant knew that the deceased had attended the Court at Parenda on the 16th and that he had seen him there but when questioned about it he told a lie.
67 528 In passing it is to be observed that this is not the .lass of case in which an accused person is last seen with a murdered man within a few hours of the murder.
Though the deceased and the appellant were both in Court at the same time, they were not there "together" and in view of the ill will between them and in view of the fact that the deceased went on a horse it is unlikely that they travelled together either going or coming; and the appellant was not with the deceased when he was last seen at 3 P.m. on the 16th.
But it is clear that the appellant wanted to hide something.
2.That thirteen days after the murder he knew that Manmath had been murdered.
He also knew where the murder had been committed and where the body and certain articles belonging to the deceased were hidden.
3.That there was ill will between them, but an ill will that other members of the appellants family might be expected to share.
4.That he had full opportunity to commit the crime, but the same kind of opportunity that the other members of his family also had.
The question is whether these four circumstances, regarded in the background of this case, are sufficient to warrant a conclusion of murder by the appellant.
In our opinion, they are not because the same circumstances could be said to point with equal suspicion at other members of the appellant 's family.
It has to be remembered that the brother Gona was also suspected and that he absconded and could not be traced.
We do not say that he was the murderer and it would be wrong to suggest that in his absence, but if he was, then the appellant 's knowledge of the murder and of the concealment, thirteen days later, might have been derived from Gona, or it might even be that he saw his brother commit the crime and hide the corpse and the articles.
Those are hypotheses that are not unreasonable on the facts of this particular case and they have not been reasonably excluded.
Consequently, we are unable to bold that mere knowledge thirteen days later, coupled with a motive which three others 529 share, and a lie about the deceased 's movements told four or five days after the murder, are enough; and, as that is all that the High Court has based on, the conviction must be set aside.
We have assumed throughout that the identity of the corpse that was discovered on the 29th and the fact of murder have been established.
Those facts were not admitted before us but we need not discuss the point.
It is enough to say that, in our opinion, both facts are satisfactorily proved.
We referred, earlier in our judgment, to a confession which the High Court has excluded.
This was excluded from evidence because the appellant was not questioned about it under section 342, Criminal Procedure Code.
We gather that the High Court thought that that occasioned prejudice though the learned Judges do not say so in so many words.
The appellant was arrested on the 29th and he made many discoveries on the 29th December 1950 and on the 1st, 2nd and 3rd January 1951 but did not confess till the 6th.
Much might have happened in the eight days between his arrest and the 6th, so the High Court was not unjustified in refusing to take that into consideration without bearing the appellant 's side of the story.
We were asked to reopen the question and, if necessary, to remand the case.
But we decline to do that.
Judges and magistrates must realise the importance of the examination under section 342 of the Criminal Procedure Code and this Court has repeatedly warned them of the consequences that might ensue in certain cases.
The appellant was arrested in December 1950 and has been on his trial one way and another ever since, that is to say, for over 4 1/2 years.
We are not prepared to keep persons who are on trial for their lives under indefinite suspense because trial judges omit to do their duty.
Justice is not one sided.
It has many facets and we have to draw a nice balance between conflicting rights and duties.
While it is incumbent on us to see that the guilty do not escape it is even more necessary to see that persons accused 530 of crime are not indefinitely harassed.
They must be given a fair and impartial trial and while every reasonable latitude must be given to those concerned with the detection of crime and entrusted with the administration of justice, limits must be placed on the lengths to which they may go.
Except in clear cases of guilt, where the error is purely technical, the forces that are arrayed against the accused should no more be permitted in special appeal to repair the effects of their bungling than an accused should be permitted to repair gaps in his defence which he could and ought to have made good in the lower courts.
The scales of justice must be kept on an even balance whether for the accused or against him, whether in favour of the State or not; and one broad rule must apply in all cases.
The error here is not a mere technicality.
The appellant appears to have been ready to disclose all on the 29th and make a clean breast of everything and yet the police waited eight days before getting a confession judicially recorded.
That may be capable of explanation but the difficulty of asking an accused person to establish facts of this kind in his favour four and a half years later is obvious.
Without therefore attempting to lay down any general rule, we are not prepared to order a retrial in this case because of the facts that appear here.
The appeal is allowed.
The conviction and sentence are set aside and the appellant is acquitted.
| IN-Abs | The appellant was put up on his trial on a charge of murder.
The trial continued for 41/2 years.
His brother who was a co accused absconded.
The evidence against the appellant was circumstantial.
His confession, made 8 days after his arrest, led to certain discoveries but he was never questioned about it by the trial court under section 342 of the Code of Criminal Procedure.
The High Court excluded the confession from the evidence, upheld the conviction but altered the death sentence to one of rigorous imprisonment for life.
The Supreme Court took the view that the High Court was right in excluding the confession from the evidence and the conviction was unsustainable on the evidence on record.
Held, that in the particular facts of the case the omission to examine the accused under section 342 of the Code was no more technicality and it would be unjust to the accused to remand the case for a retrial and the order of conviction and sentence passed on him must be set aside.
That while it is no doubt incumbent on the court to see that no guilty person escapes, it is still more its duty to see that justice is not delayed and accused persons indefinitely harassed.
The scales must be held even between the prosecution and the accused.
That it is imperative that Magistrates and Sessions Judges should remember the duty that section 342 of the Code of Criminal Procedure imposes on them of questioning the accused person fairly and properly telling him in clear and simple language the case he has to meet and the material points made against him so that he can, if he so desires, explain and meet them.
|
Civil Appeal No. 325 of 1970.
From the Judgment and order dated 28th March 1969 of the Madras High Court in Writ Appeal No. 490/68.
K. section Ramamurthy, K. Jayaram and R. Chandrashekhar for the Appellant.
L. N. Sinha, Solicitor General of India, section N. Prasad and Girish Chandra for the Respondents.
The Judgment of the Court was delivered by RAY J.
This appeal is by certificate from the judgment dated 28 March 1469 of the High Court of Madras.
The question in this appeal is whether the appellant in a writ petition can challenge the telephone rates and charges and obtain any relief in that behalf.
The appellant is a retired District Manager (Telephones), Madras.
He filed a writ petition in the High Court for a writ of prohibition, directing the General Manager (Telephones), Madras to forbear from preferred to the Appellate Tribunal but that too proved abortive.
The Tribunal, however, referred the following question of law for the opinion of the High Court: (1).[1966] 487 enforcing the revised Telephone Tariff as per the Indian Telegraph Amendment Rules, 1966.
Under the rules, the rental and call charges were increased by 50 per cent and Trunk call charges by about 30 to 35 per cent.
The petitioner alleged that the telephone system is a public utility service and not a Revenue earning establishment and the charges can be only in the nature of a fee which must be commensurate with the cost of rendering the service.
The petitioner further alleged that the loss incurred by the Government in another establishment service is not a legitimate ground for raising telephone rates.
The Trial Court held that Telephone Tariff was unjust and unreasonable.
The Trial Court allowed the writ petition.
The High Court on appeal held that the High Court could not interfere with the Tariff.
The High Court said that the principal upon which public utility rates regulation as has developed in the United States is not applicable here in our country.
It should be said at the outset that there was some discussion in the judgment on Article 19 but counsel for the appellant properly abandoned any reference to Article 19.
The appellant 's contentions are three.
First, the expression.
"rates" in section 7(2) of the Indian Telegraph Act means rates which are to be determined should be fair, just and reasonable from the point of view of both the consumer and the producer.
Second, the Court has jurisdiction to determine whether the rates filed by the Government are reasonable.
Third, the rates are increased expressly for the purpose of off setting the E losses in the Post and Telegraph Services.
If a proper allocation.
is made according to proper commercial accounting it will be found that there is a wrongful deduction of crores of rupees as revenue expense and unlawful debit.
These errors in the accounting have resulted in reducing the profits earned by the Telephones.
There are three principal reasons why the writ petition is incompetent and not maintainable and the appeal should fail.
First, when any subscriber to a telephone enters into a contract with the State, the subscriber has the option to enter into a contract or not.
If he does so, he has to pay the rates which are charged by the State for installation.
A subscriber cannot say that the rates are not fair.
No one is compelling one to subscribe.
Second.
Telephone Tariff is subordinate legislation and a legislative process.
Under Indian Telegraph Act, section 7 empowers the Central Government to make rules inter alia for rates.
These rules are laid before each House of Parliament.
The rules take effect when they are passed by the Parliament.
Third, the question of rates is first gone into by the Tariff Enquiry Committee.
The Committee is headed by non officials.
The Tariff rates are placed before the House in the shape of Budget proposals.
The Parliament goes into all the Budget proposals.
The rates are sanctioned by the Parliament.
The rates.
therefore, become a legislative policy as well as a legislative process.
488 The Courts have no jurisdiction under Article 226 to go into reasonableness of rates.
These rates are decided as policy matter in fiscal planning.
There is legislative prescription of rates.
Rates are a matter for legislative judgment and not for judicial determination.
The appeal is dismissed.
There will be no order as to costs.
S.R. Appeal dismissed.
| IN-Abs | The appellant challenged under article 226 the reasonableness of the increase in the telephone rental and call charges brought about by the Indian Telegraph Amendment Rules.
1966 on the ground that (1) The telephone system is a public utility service and the charges can be only in the nature of a fee which must be commensurate with the cost of rendering the service; and (2) The loss incurred by the Government in another establishment service is not a legitimate ground for raising the rates.
The writ petition was accepted and on appeal the judgment was reversed holding that (1) the High Court could not interfere with the tariff.
and (2 ) the principle upon which the public utility rates regulation as developed in the United States is not applicable in our country.
Dismissing the appeal by certificate, the Court, ^ HELD: (I) The courts have no jurisdiction under Article 226 to go into the reasonableness of rates.
These rates are decided as policy matters in fiscal planning.
There is legislative prescription of rates.
Rates are a matter for legislative judgment and not for judicial determination.
[488A]
|
ase, there was not a whisper of the application under section 25A (1) of the Act by the appellant on March 15, 1957, when the penalty proceedings were initiated against it.
Even on March 20, 1958.
when the penalty was imposed, there was no order under section 25A(l) of the Act lt was only on March 26, 1962, that the partition was recognised and order 506 under section 27A(1) of the Act was passed.
There was, thus, no bar to the imposition or the impugned penalty.
[509E F] & CIVIL APPELLATE JURISDICTION: Civil Appeal No. 886 of 1971.
(From the judgment and order dated the 18.9.1969 of the Allahabad High Court in I. T. R. Misc.
Case No. 836 of 1963.) G. C. Sharma, V. N. Ganpule, D. K. Jain, Anup Sharma and P. C. Kapur, for the appellant.
B. Sen and 5.
P. Nayar, for the respondent The Judgment of the Court was delivered by JASWANT SINGH, J.
This is an appeal by certificate of fitness granted by the High Court of Judicature at Allahabad under section 66 A(2) of the Indian Income tax Act, 1922 (hereinafter referred to as 'the Act ') from its judgment dated September 18, 1969 in I.T.R. Misc.
Case No. 836 of 1963.
The facts giving rise to this appeal are: The appellant, a Hindu undivided family consisted of Gauri Shankar, the father, and his three sons viz. Chandrabhan, Bengali Lal and Brij Kishan.
Gauri Shankar, the karta of the family who was incharge of the affairs of the family during the relevant year which extended from April 13, 1945 to April 12, 1946, the assessment year being 1946 47, died on April 2, 1946.
He was succeeded by his son, Chandrabhan as Karta of the family.
The appellant had, in the first instance, filed a return showing an income of Rs. 9,701 j .
On scrutiny of the relevant material, the Income Tax Officer found a number of discrepencies in the accounts of the appellant and also noted the existence of cash credits to the appellant 's account in the books of another firm viz. M/s. Tilyani Glass Works and a certain sum deposited in an account styled as Abdul Wahid Khan & Sons.
He thereupon issued a notice dated March 15, 1957, calling upon the appellant to explain the discrepencies in the accounts as also in the cash credits and to show cause why a penalty under section 28(1)(c) of the Act be not imposed upon it.
In response to the notice, a representative of the appellant appeared before the Income Tax officer and voluntarily agreed to a sum of Rs. 15,000/ being treated as its income.
After hearing the Appellant 's representative the Income Tax Officer felt satisfied that the appellant had deliberately concealed its income and furnished an inaccurate return.
Accordingly, by his order dated March 20, 1958, he added a sum of Rs. 68,550/ to the income of the appellant and imposed on it a penalty of Rs. 26,000/ .
Meanwhile, on March 19, 1957, an application under section 25 A of the Act was made to the Income Tax officer for an order recording partition of joint family property in definite portions, which according to the application had taken place amongst the members of the Hindu undivided family on June 22, 1956.
The Income Tax Officer on being satisfied after making enquiries that a complete partition of the joint family property has taken place, recorded an order under section 25A (1) of the Act on March 26, 1962, accepting the partition with effect 507 from June 22, 1956, as claimed.
Against the penalty of Rs. 26,000/ imposed the Income Tax Officer by his order dated March 20, 1958, the appellant preferred an appeal to the Appellate Assistant Commissioner, who reduced the Penalty to Rs. 15,000/ .
Not satisfied with THIS reduction, the appellant went up in further appeal to the Income tax appellate Tribunal and raised before it a number of contentions Amongst other things, it was urged before the Tribunal that since the Hindu undivided family had disrupted on June 22, 1956, as accepted by the Income Tax officer in his aforesaid order date March 26, 1962, passed under section 25 A(l) cf the Act, the imposition of the penalty by the Income Tax officer on March 20, 1958, after the disruption of the family was bad in law and could not be sustained.
While rejecting the other contentions raised on behalf of the appellant, the Tribunal upheld this contention by its order dated March 6, 1963.
Thereupon the Commissioner of Income tax, U.P. made application before the Income tax Appellate Tribunal under section 66(1) of the Act requesting that the following question of law arising from its decision be referred to the High Court: "Whether in the facts and circumstances of the case the imposition of penalty under section 28 ( 1 ) (c) on the Hindu Undivided family after it had disrupted within the meaning of section 25 A is bad in law".
Acceding to the request of the Commissioner of Income Tax, the Tribunal referred the above mentioned question to the High Court which answered the same in the negative The appellant thereupon applied to the High Court and obtained the aforesaid certificate of fitness for appeal to this Court.
This is the matter is before us.
E Relying on Commissioner of Income Tax vs Sanichar Sah Bhim Sah(1), section A. Raju Chattiar & Ors.
vs Collector of Madras & Anr.(2) Mahankali Subha Rao, Mahankali Nageswara Rao & Anr.
vs Commissioner of Income Tax Hyderabad(3) and Commissioner of Income tax Punjab vs Mothu Ram Prem Chand(4) counsel for the appellant has reiterated before us that since the Hindu undivided family had dissolved on June 22, 1956 as accepted by the Income Tax officer vide his order dated March 26, 1962 passed under section 25 A of the Act and the Act did not provide any machinery for imposition of the penalty on the Hindu family after its disruption, the imposition of penalty on March 20, 1958 was had in law and could not be sustained.
Counsel appearing on behalf of the Revenue has, on the other hand, urged that imposition of impugned penalty cannot be challenged as in view of section 25 A(3) of the Act, a Hindu undivided family must be (deemed to have continued in existence till the date of the passing of the order under section 25 A(l) of the Act.
For a proper determination of the question, it is necessary to refer to section 25 a of the Act which at the relevant time stood as under: 25 A. (1) Where, at the time of making an assessment ll under section 23, it is claimed by or on behalf of any member (1) (1957) 27 (2) (3) (4) 508 of a Hindu family hitherto assessed as undivided that a partition has taken place among the members of such family, the Income tax Officer shall make such inquiry thereinto as he may think fit, and if he is satisfied that the joint family property has been partitioned among the various members or groups of members in definite portions, he shall record an order to that effect: Provided that no such order shall be recorded until notices of the inquiry have been served on all the members of the family (2) Where Such an order has been passed, or where any person has succeeded to a business, profession or vocation formerly carried on by a Hindu undivided family, whose joint family property has been partitioned on or after the last day on which it carried on such business.
profession or vocation, The Income tx Officer shall make an assessment of the total income received by or on behalf of the joint family as such, as if no partition(LPN had taken place, and each member or group of members shall in addition to any income tax for which he of may be separately liable and notwithstanding anything contained in sub section (1) of section 14, be liable for a share of the tax on the income so assessed according to the portion of the joint family property allotted to him or it; and the Income tax officer shall make assessments accordingly with provisions of section 23.
Provided that all the members and groups of members whose joint family property has been partitioned shall be liable jointly and severally for the tax assessed on the total income received by or on behalf of the joint family as such.
(3) Where such an order has not been passed in respect of a Hindu family hitherto assessed as undivided, such family shall be deemed, for the purposes of this Act, to continue to be a Hindu undivided family.`` lt will be noticed that sub section (3) of the above quoted section embodies a legal fiction according to which a Hindu family which has been previously assessed as 'undivided ' is to be continued to be treated as 'undivided ' till the passing of the order under sub section of the section.
This view strength from two decisions of this Court in Additional Income tax Officer Quddapah A. Thimmayya & Anr(1) and Joint family of Udayan Chinubhai etc vs Commissioner of Income tax Gujarat(2) where it was held that so long(r as No order under section 25 a(I) of the Act is recorded, the jurisdiction of the Income tax officer to continue to assess as undivided despite partition under personal law a Hindu family which has hitherto been asseesed in that status remains unaffected.
It will be profitable in this connection (1) (2) 509 to refer to the following observation made in A. Thimmayya 's case (supra) "The section makes two substantive provisions (i) that a Hindu undivided family Which has been assessed to tax shall he deemed, for The purposes of The Act, to continue to be treated as undivided and therefore liable to be take in that stats unless an order is passed in respect of that family recording, partition of its property as contemplated by sub station (t); and (ii) if at the time of making an assessment it is claimed by or on behalf the members of the family that the property of the joint family has been partitioned; the members or groups of members in definite portions, i.e. a complete partition of the entire estate is made resulting in such physical division of the estate as it is capable of being made.
the Income tax Officer shall hold an inquiry, and if he is satisfied that the partition had taken place the shall record an order to that effect .
The Income tax Officer may assess the income of the Hindu family hither to assessed as undivided notwithstanding partition, is no claim in that behalf has been make to him or is he is not satisfied about the truth of the claim that the joint family property has been partitioned in definite politics if on account of some error or inadvertence he fails Lo dispose of the claim.
In all these cases his jurisdiction to assess the income of the family hitherto assessed as undivided remain unaffected, for the procedure for making assessment of tax is statutory".
In face of the aforesaid decisions of this court, it is Court it is not necessary to burden the record by discussing the decisions cited by counsel for the appellant.
In the present case, there was not a whisper of the application under section 25 A(1) of the Act by the appellant on March 15, 1957 when the penalty proceedings were initiated against it.
Even on March 20, 1958, when the penalty was imposed, there was no order under section 25 A(1 ) of the Act.
It was only on March 26, 1962, that the partition was recognised and order under section 25 A(1) of the Act was passed.
There was thus no bar to the imposition of the impugned penalty.
Accordingly, we find no force in the contention of counsel for the appellant and are of the opinion that the question as was in the rightly by the High Court.
| IN-Abs | In response to a show cause notice dated March 15, 1957, under section 28(1)(c) of the Income Tax Act, before imposing a penalty for deliberate concealment of its income, the appellant, through its authorised representative, voluntarily agreed to a slum of Rs. 15,000/ being treated as income of Hindu Undivided Family.
The Income Tax officer, by his order dated March 20,1958, added a sum of Rs. 68,550/ to the income of the appellant and imposed on it a penalty of Rs. 26,000/ which on appeal was reduced to Rs. 15,000/ .
Meanwhile, on March 19, 1957, the appellant filed an application under section 25A of the Act for an order recording partition of joint family property in definite portions from June 22, 1956, claiming that date to be the date of partition.
The Income Tax officer, after due enquiries, accepted the disruption of the Hindu Undivided Family as claimed by his order dated March 26, 1962.
This led the appellant to contend that, in view of ' the orders dated March 26, 1962, of the Income Tax officer, the imposition of the penalty by him on March 20, 1958 was bad in law and could not be sustained.
The Tribunal uphold the contentions of the appellant resulting in a reference under section 66(1) of the Act to the High Court of Allahabad (Lucknow Bench), which reversed the decision or the Tribunal.
However, the High Court granted a certificate of fitness for appeal to this Court.
Dismissing the appeals the Court, ^ HELD: Sub section (3) of section 25A of the Income Tax Act embodies a legal fiction according to which a Hindu family which has been previously assessed as "undivided" is to be continued to be treated as "undivided" till the passing of the order under sub section
(1) of section 25A.
So long as no order under section 25(A)(1) 1 of the Act is recorded, the jurisdiction of the Income Tax officer to continue to assess as undivided despite a partition under personal law, a Hindu family which has hitherto been assessed in that status, remain unaffected.
[508G H] Additional Income Tax Officer, Quddapah vs A. Thimmayya vs Commissioner of Income Tax, Gujrat , applied.
Commissioner of Income Tax vs Sanchar Sah Bhim Sah section A. Raju Chattiar & Ors.
vs Collector of Madras & Anr. ; Mahankali Subba Rao Mahankali Nageswara Rao & Anr.
v, Commissioner of income Tax.
Hyderabad and Commissioner of Income Tax, Punjab vs Mothu Ram Prem Chand , not applicable
|
APPELLATE JURISDICTION: Writ Petition No. 49 of 1973.
Under Article 32 of the Constitution and Civil Appeals Nos. 43 and 44 of 1973 Appeals by Special Leave from the Judgment and order dated the 27th October 1972 of the Rajasthan High Court in D. B.
Civil Writ Petition Nos. 398/72 and 1 885/71 respectively.
A. K. Sen, B. Sen and H. K. Puri for the Appellants.
section T. Desai, section M. lain and section K. Jain for the Respondents.
J. We have before us a petition under Article 32 of the Constitution and two appeals by Special leave from the judgment of the High Court of Rajasthan between the same parties.
The three cases before us raise the same question of law.
It is: Do the goods called "Rayon tyre Cord Fabric" sold by the Delhi Cloth & General Mills Co. Ltd. to manufacturers of tyres, who use it for the purpose of impregnating it with rubber, fall under entry 18 of the Schedule of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as 'the Act ' ) ? The schedule mentioned above gives a list of goods on the sale or purchase of which no tax is payable under the Act. "The relevant entry 18, which was omitted in 1973, reads as follows: "18.
All cotton fabrics, rayon or artificial silk fabrics, woollen fabrics, sugar and tobacco, as defined in the Additional Duties cf Excise (Goods of Special Importance) Act, 1957 (Central Act 58 of 1957)".
Section 2(C) of the Additional Duties of Excise (Goods of Special Importance) Act, 1957, lays down: "2 (C) the words and expressions 'sugar ', 'tobacco ', 'cotton fabrics ', 'silk fabrics ', 'woollen fabrics ' and rayon or artificial silk fabrics shall have the meanings respectively assigned to them in Items Nos. 1, 4, 19, 20, 21 and 22 of the First Schedule to the Central Excise and Salt Act, 1944".
The Writ Petition of the Delhi Cloth and General Mills Co. Ltd. states that "rayon tyre cord fabric" is "manufactured out of rayon yarn and cord".
It goes on to explain that this fabric is "a textile consisting of rayon threads in the warp and cotton threads in the weft and is manufactured on weaving looms in the same manner as in other ordinary textile".
It is also stated there: "The fabric consists of more than 60% by weight of rayon and is unprocessed.
The weft threads are not used merely for tying the warp threads together for the purpose of convenient transport or storage but form an integral part of the whole fabric".
500 The petitioners state that the manufacturers of tyres to whom the fabric is supplied "impregnate the fabric with rubber and weave it into a fabric in the same way as is being done by the first petitioner".
Thus, the petitioners allege that they manufacture "a textile" and also that it serves as part of raw material for what ultimately also goes into the manufacture of a fabric.
After indicating the manner in which and the substance out of which "rayon tyre cord fabric" is made and its composition, the petition sets out item 22 of the first schedule of the Central Excises and Salt Act, 1941, as the applicable entry covering the goods manufactured by the petitioner.
This item reads as follows: "Rayon or artificial silk fabrics 'means all varieties of fabrics manufactured either wholly or partly from rayon or artificial silk and includes embroidery in the piece, in strips or in the motifs and fabrics impregnated or derivatives or of other artificial plastic materials, but does not included any such fabrics: (i) If it contains 40% or more by weight of wool.
(ii) lf it contains 40% or more by weight of silk.
(iii)If it contains cotton and less than 60% by weight of rayon or artificial silk; or (iv) If it contains no cotton and less than 40% by weight of wool and less than 40% by weight of rayon or artificial silk".
The petitioners assert that, from years 1966 to 1969, the respondent Commercial Tax officer was not subjecting the goods of this description to sales tax and accepted the case of the petitioners that they were exempt from taxation.
The reasoning of the Commercial Tax Officer, in exempting these goods, is also mentioned.
It is then stated that, as some questions were put in the Rajasthan State Legislative Assembly, on or about 20th April, 1971, asking for the reason why this particular type of goods of the petitioners were exempted from Sales tax, the Commissioner of Commercial Tax issued a letter to the Commercial Tax Officer to levy Sales tax on the "rayon cord fabric" manufactured by the petitioner.
Thereafter, notices under the proviso to section 12(1) of the Act were issued for the years 1965 to 1969 with a view to reopening the assessments on the ground that the sales of these goods had wrongly escaped assessment.
but these were dropped due to some preliminary 501 objections.
Fresh notices were then issued and proceedings for subsequent assessment years were also taken.
By orders passed on various dates, the Commercial Tax officer rejected the petitioners ' objections to Sales tax on "rayon tyre cord fabric".
The petitioners have, however, come up to this Court directly against the order and provisional assessment dated 21 st November, 1 972.
It also appears from the writ petition that proceedings fol the assessment year 1972 73 arc still pending before the Commercial Tax officer.
Civil Appeals Nos.
43 of 1973 and 44 of 1973 by special leave are directed against a common judgment of a Division Bench of the High Court of Rajasthan, given on 27.10.1972, dismissal, the appellants ' Writ Petitions against the assessment order dated 26th March, 1971, for the years 1968 69 and 1969 70 made by the Commercial Tax officer.
The view of the Commercial Tax Officer, questioned by the petitioners, was that the goods now sought to be taxed are not the "end product".
The High Court did not go into the merits of the case.
It accepted the preliminary objection of the State of Rajasthan that the petitioner should first resort to alternative remedies provided Under the Act so that the appellate authority under Section 13 of the Act may go into the whole evidence and decide disputed questions of fact.
There is also provision for revision by the Board of Revenue under Section 14 when moved by the assessing authority.
The High Court did not find any error "apparent upon the face of the record" The taxing authorities have the.
jurisdiction to decide the question before them either rightly or wrongly.
In any case, its view was that, until the statutory remedies had not been exhausted, leaving some "error apparent on the face of the record" still to be rectified by the High Court, a case for interference under Article 226 of the Constitution will not arise.
It is urged on behalf of the Delhi Cloth Mills that no disputed question of fact arises.
It is submitted that, on admitted facts, it could be decided whether the "tyre cord fabric" is an exempted "fabric" or not.
We think that this view over looks several matters, indicated below, including the admission on behalf of the Delhi Cloth Mills that, in the case before us, the "tyre cord fabric" manufactured by it is woven by its purchasers "into a fabric in the same way as is being done by the first petitioner".
This certainly means that the tyre cord fabric serves as raw material for another fabric which ultimately emerges by subjecting the goods manufactured by Delhi Cloth Mills to a process of impregnating with rubber.
502 A sample of the tyre cord fabric was actually produced before us.
It is said that the "fabric" is manufactured in the same way as cloth is woven on looms.
It consists of cords which could be said to constitute warps, running length wise, and wefts, running breadth wise.
But, the spaces left between them are so wide, presumably for purposes of impregnation with rubber, that it may not pass for an ordinary "fabric '.
Like one of those mentioned in entry 19 of the first schedule to the , such as "tussors", "corduroy", "gaberdine", "denim` '.
Indeed, if the "lyre cord fabric" is so well established a category of rayon "fabric", it could have found mention specifically in item 22 in the same way as the numerous varieties of cotton fabrics are mentioned in item 19.
In answer to this argument, it could be urged that, for some reason, entry No. 22 does not enumerate rayon and silk fabrics in the same fashion as the cotton fabrics are specified by name in item 19.
It is certainly a question which appertains to the knowledge of technical aspects of textile weaving and production to determine at what stage threads or cords forming warps and wefts really amount to a "fabric".
It is true that the term fabric has a wide meaning.
Its first meaning given in the Oxford English Dictionary is: "A product of skilled workmanship".
The first example of such a product is: "An edifice, a building".
The fourth example of the first meaning is: I "a manufactured material; now only a 'textile fabric ', a woven stuff".
We think that we are necessarily concerned here only with "textiles" as fabrics.
This is clear from entries 19 to 22(D) of the first Schedule of the .
Entry 22AA is "textile fabrics not elsewhere specified".
This residuary entry and the descriptions in preceding entries seem to us to make it abundantly clear that we are dealing here only with "textile fabrics".
The case of the Delhi Cloth Mills also is that the product is a. "textile".
There fore, the essential question to determine is the stage at which the goods under consideration become a 'textile fabric".
The meaning of the term "textile", given in the Oxford Dictionary, is: "A woven fabric; any kind of cloth".
It must acquire a body and a texture.
Presumably it is not just the skeleton of a textile.
Apparently, it is more than that.
But, against pushing this point of view too far it may be urged that in the technical and commercial parlance we are dealing with a "fabric".
It is, therefore, difficult to find fault with the view of the High Court that there is no error apparent on the face of the record and 503 that the taxing authorities should be left to determine whether the "tyre cord fabric" is more correctly capable of being described as a fabric or as merely cord pretending to pass off as ar textile fabric This is really a technical question.
In any case, it is a question on which two views seem possible on apparent facts.
And, neither of the two views can be rejected outright as untenable.
It requires careful consideration of the technical processes of manufacturing, of the composition of the "tyre cord fabric ', and an evaluation of opinion of experts on the subject, to be able to decide the question satisfactorily rt may also require some examination of commercial usage and terminology or the language of the market in goods of this type.
We, therefore, think that the High Court was right in not interfering with the decisions of the taxing authorities at this stage.
We also think that for the same reason we could not interfere under Article 32 with the decision of the Commercial Tax officer.
Indeed, no fundamental right is shown to be affected by a mere determination of the question indicated above.
There is no absence of jurisdiction of the taxing authorities who had the power to decide the question either rightly or wrongly.
It has been urged, on behalf of the Delhi Cloth Mills that the High Court should have interfered as the question whether the tyre cord fabric is the end product or not in the final manufacture of an other fabric was quite irrelevant.
It was submitted that, so far as the Delhi Cloth Mills is concerned, the goods under consideration constitute the "end product" which they sell in the market.
The example given was that of cloth which is the "end product" for the mills which manufacture cloth, but, it becomes the raw material for tailors and for those who make ready made clothes to sell them.
This argument overlooks that it is not so much the point of manufacture at which the Mills sell their own product which determines the nature of goods which are entitled to exemption, but it is the stage reached by this product, in the process of manufacture of fabrication of a "textile", which should decide the question.
As we have already indicated, the context in which the entry occurs shows that it is meant for "textile" fabrics and not for any kind of fabric.
Therefore even if the tyre cord fabric may be the end product for the Delhi Cloth Mills, the crucial question is: Does this product constitute a fabric which is a textile? A textile fabric does not cover everything which could be made into a fabric.
Mere cord does not become a textile fabric just because it requires some skill to make it.
The rather wide dictionary meanings of the term "fabric" do not appear to us to give the exact meaning of the term "fabric" as 504 used in the relevant entries entitled to exemption.
In the entries, it evidently means a fabric which is also a textile.
The question, therefore, to be determined by the Tax authorities themselves is whether the product for which the Delhi Cloth Mill claims exemption Is a textile fabric and not any other kind of fabric.
Having indicated the nature of the enquiry which must by undertaken by the taxing authorities, we find that there is no sufficient reason for overriding and discarding the High Court 's view that, on what appeared to the High Court to be a question Of fact, it should not decide whether the product under consideration constitutes a fabric entitled to exemption.
There was no appeal by the State of Rajasthan.
It does not, therefore, seem propel.
for us to finally decide, on merits, the question argued before us in the appeals by the Delhi Cloth Mills which are before us unless we could have decided the matter in favour of the appellant.
We could have only done that if we were of opinion that the taxing authorities had committed error apparent on the face of the record.
But, as already indicated above, we are not of this opinion.
For all the reasons given above, we think that the Writ Petition as well as the appeals by special leave are liable to be dismissed, and, we hereby dismiss them with one set of costs.
P. B. R. Appeal dismissed.
| IN-Abs | Rayon tyre cord fabric which is a textile consisting of rayon threads in the warp and cotton threads in the weft is manufactured on weaving looms in the same manner as any other ordinary textile.
The tyre manufacturers to whom the product is supplied.
impregnate the fabric with rubber and weave it into fabric.
Under Entry 18 of Schedule of the Rajasthan Sales Tax Act, 1954, rayon fabrics were exempt from sales tax.
When the Commercial Tax officer rejected the petitioners ' objections to sales tax being levied on rayon tyre cord fabric, the e petitioners filed a petition under Article 32 of the Constitution alleging breach of Fundamental Rights.
In respect of certain earlier assessment years, however, the view of the Commercial Tax officer was that the goods were not the end product.
when, the matter was taken to the High Court, it held that, until the statutory remedies had been exhausted, no case for interference under article 226 arose.
It did not find any error apparent on the face of the record.
Hence, the appeals by special leave.
E In the write petition as well as in the appeals it was contented that the goods constituted the end product which the petitioners sell in the market and, therefore, were exempt from sales tax.
Dismissing the petition and appeals.
^ HELD: (1)(a) It is difficult to find fault with the view of the, High Court there was no error apparent on the face of the record and that the taxing authorities should be left tb determine whether the tyre cord fabric is more correctly capable of being described as a fabric or as merely cord passing of as a textile fabric.
This is really a technical question.
In any case.
it is a question on which two views may be possible.
[503C] (b) The fact that the tyre cord fabric manufactured by the petitioners is woven by its purchases into a fabric in the same way as is being done by the petitioners means that the tyre cord fabric serves also as raw material for another fabric which ultimately emerges by subjecting the goods to a process of impregnating it with rubber.
The essential question to determine is the stage at which the goods under consideration became textile fabrics if they do become that at all.
[502C; 503A] (2) This Court cannot interfere under article 32 with the decision of the Commercial Tax Officer, because no Fundamental Right is shown to be affected by the mere determination of the question.
There was no absence of jurisdiction of the taxing authorities who had the power to decide the question either rightly or wrongly.
[503E] 34 833 SUP CI/76 498 ARGUMENTS For the petitioners Respondent No. 1 did not produce or get any evidence from the commercial community dealing with rayon tyre yarn and cord and rayon tyre fabric for the purpose of controverting the conclusive evidence produced by the petitioners to the effect that in the commercial community dealing with the said goods these goods were different both from the point of view of manufacture and also from the point of view of ultimate end product and are considered to be different by the commercial community, which heats rayon tyre cord fabric as fabric.
There was no evidence on the contrary to come to the conclusion that the rayon tyre fabric was not fabric.
The High Court wrongly relied on 25 STC 407 which had no application in the present case, ignoring the decision in 22 STC 470 and 28 STC 431.
It was therefore not a case of disputed question of fact, but a case of admitted fact by the commercial community against which there was no evidence before the respondent.
The alternative remedy of appeal is not at all efficacious in the facts and circumstances of the present case inasmuch as the Commissioner and the State Government having already made up their mind to levy tax, no relief could be expected by the appellants from him and the High Court should have interfered under articles 226 and 227.
Further ill this case there was no question of disputed facts.
The sample was admitted.
There was uncontradicted evidence that the product of the petitioners is known as rayon cord fabric by the commercial community and by common parlance.
The case is a misdirection of law on the part of the assessing authority.
For the respondents There was no error of law apparent on the face of the record as contended by the petitioners.
The High, Court rightly rejected the writ petitions on the ground that there were disputed facts and there are alternative remedies and full and adequate machinery under the Act itself.
The assessee mills, when paying excise duty, paid it only as on yarn under entry 18 of the First Schedule to the Central Excise and Salt Act.
The mills did not pay additional duty under the Additional Duties of Excise (Goods of Special Importance) Act 1956 on the ground that the material was not fabric.
When it suited the mills the material wag said to be yarn and in case of sales tax it contended that it was fabric.
This fact itself was a strong indication that this was a disputed question of fact.
|
Civil Appeal 1277 of 1968.
(Appeal by special leave from the order No. 2674 of 1967 of the Ministry of Finance, Government of India) Hardev Singh, Ishwar Chand Jain and R. section Sodhi; for the Appellant.
section N. Prasad and section P. Nayar, for respondents.
The Judgment of the Court was delivered by BHAGWATI, J.
This appeal by special leave raises a short question as to what is the correct amount of import duty chargeable on pot motors when imported separately from Rayon Spinning frames: do they fall within Item 72(3) or Item 73(21) of the First Schedule to the Indian Customs Tariff? The facts giving rise to the appeal are few and may be briefly stated as follows: Some time in 1956 a licence for setting up a plant for manufacture of Rayon was granted to one Kesoram Industries & Cotton Mills Ltd. under the Industries Development and Regulation Act, 1951.
Since the machinery and equipment required for setting up the plant were not available in India, Kesoram Industries and Cotton Mills Ltd. applied for an import licence and on the basis of this application, import licence was granted to them for importing "complete continuous filament Rayon plant with spares and accessories" of the CIF value of Rs. 5.50 crores from general currency area excluding South Africa.
491 It appears that Kesoram Industries & Cotton Mills Ltd. imported, on the strength of this import licence, Rayon Spinning frames, excluding pot motors, from Japan, but so far as pot motors were concerned, they authorised the appellants to import from Germany 4000 of these motors for initial installation of the Spinning frames.
Pursuant to the authority so given, the appellants placed orders for 4000 pot motors with manufacturers in Germany and imported the same in seven different consignments under the Import licence of Kesoram Industries & Cotton Mills Ltd. These seven consignments arrived at Calcutta port between September and December 1961.
The appellants claimed before the Customs authorities at the time of assessment of import duty on these seven consignments that pot motors imported by them fall within Item 72(3) of the First Schedule to the Indian Customs Tariff and were chargeable to import duty under that item at the rate of 15 percent of their accepted value.
This claim was accepted by the Customs authorities and these seven consignments were allowed to be cleared on payment of import duty under Item 72(3).
However, within a short time thereafter, the Assistant Collector of Customs issued seven separate notices of demand in respect of these seven consignments claiming that customs duty at the rate of 15 per cent had been short levied, because pot motors were assessable at the rate of 20 per cent and requiring the appellants to pay up the difference within 15 days from the date of demand under section 39 of the .
The appellants sent representations against these notices pointing out that and we are quoting here from the representation dated 8th December, 1961 which is: "These pot motors are vital component part of the Rayon Spinning machines already imported and are not in excess of the quantity required for the first installation of the said plant.
The pot motors are required for 24 Spinning frames having 2 sides each.
On each side of these frames, 66 motors are connected.
Hence total initial requirement of pot motors for running 24 frames is 3168.
In view of general experience with this type of plant approximately 25% additional motors are required for trial runs and commissioning 4000 Nos.
Of not motors should, there fore, be supplied for first installation of the Rayon plant.
These pot motors are of very high speed and are specially designed for use in spinning frames for manufacturing rayon thread.
They run at 7700 RPM and are designed for a rated voltage of 130 V. at 130 cycles per second for use in circuits of less than 10 amps.
As such, these motors can in no circumstances be used for any other purpose excepting as stated above.
The accessories of these motors are specially designed to suit particular size of spinning pots as well as spinning chambers.
The smooth running of these motors is achieved after a great research by using flexible elastic and hollow shaft, special rubber bushings for support as well as specially designed bearings, to take care of severe stresses, 492 which are normally encountered by these motors during operation.
Hence, it is inevitable that any deviation in the design of the above component parts would mean defeating the purpose for which these motors are meant.
In view of the above, these motors cannot be classified other than an integral part of the Rayon Spinning plant.
We, therefore, claimed as assessment of duty under proviso 72(3) at the time of clearing.
" The appellants did not receive any reply from the Assistant Collector in regard to these representations for a period of about three years and hence they thought that their representations had been accepted and the demand for differential duty had been dropped.
This, however, turned out to be a vain hope, for seven communications dated 19th January, 1965 were received by the appellants from the Assistant Collector stating that the demand for differential duty in respect of each of the seven consignments was confirmed and would be enforced in due course if the differential duty was not paid by the appellants.
Each of those seven communications contained an intimation that "an appeal against this decision lies to the Appellate Collector within three months hereof".
The appellants, however, did not prefer an appeal to the Collector and instead tried to persuade the Assistant Collector to change his opinion by pointing out the relevant facts.
It appears that in the meantime the Assistant Collector recovered the aggregate amount of the differential duty from the deposit account of the appellants.
The appellants once again made a representation to the Assistant Collector and requested him to refund the amount of differential duty collected by him but the representation did not meet with any favourable response from the Assistant Collector.
The appellants ultimately filed a representation to the Collector on 15th July, 1965 setting out their case in regard to the assessment of customs duty and pointing out that the original assessment of customs duty made under Item 72(3) was correct and that the differential duty had been wrongly recovered from them.
This representation was treated by the Collector as a revision application against the orders of the Assistant Collector and on this application, the Collector made an order which was conveyed to the appellants by the Assistant Collector by his letter dated 23rd December, 1965.
The Assistant Collector pointed out that the Collector had: " examined the merits of the case in question and it is his consideration that the duty was correctly chargeable because the Spinning Machinery excluding the pot motors were being imported under one contract from Japan and the pot motors were being imported under another contract from Germany.
Separate importation under a separate contract from a separate country would not justify treatment of the two consignments as one article, when the goods are not specified 493 in the Tariff as one article.
Therefore, he does not see any reason to revise the Assistant Collector 's order concerning the demands.
" The appellants thereupon preferred a revision application to the Government of India, but by a short and pithy order dated 23rd September, 1967, the Government of India rejected the revision application stating that they had carefully considered the revision application B but saw no reason to interfere with the order passed by the Collector.
This led to the filing of the present appeal against the order of the Government of India with special leave obtained from this Court.
Though the appellants, initially, when the hearing of the appeal commenced, raised two or three contentions against the validity of the order of the Government of India confirming the demand for differential duty, they ultimately pressed only one contention and that related to the category in which the pot motors imported by the appellants fell.
The Assistant Collector originally assessed these pot motors to customs duty at the rate of 15 per cent of their accepted value under Item 72(3), but later, demanded differential duty from the appellants on the footing that these pot motors were really assessable at the rate of 20 per cent of their accepted value under Item 73(21) D. and this demand was confirmed by the Collector in revision and on further revision, by the Government of India.
The appellant disputed the correctness of these orders and contended that the original assessment made by the Assistant Collector was proper and the demand for differential duty was unjustified, because the correct item under which those pot motors were assessable was Item 72(3), and not Item 73(21).
Item 72(3), as it stood at the material time, was in the following terms: "72(3) Component parts of machinery as defined in Item Nos. 72, 72 ( 1 ) and 72 (2) and not otherwise specified, essential for the working of the machine or apparatus and have been given for that purpose some special shape or quality which would not be essential for their use for any other purpose but excluding small tools like twist drills and reamers, dies and taps, gear cutters and hacksaw blades: provided that articles which do not satisfy this condition shall also be deemed to be component parts of the machine to which they belong if they are essential to its operation and are imported with it in such quantities as may appear to the Collector of Customs to.
be reasonable.", while Item 73(21) comprised "Electric motors, all sorts, and parts thereof.
" The competition was between these two Items and the question is which of them covered pot motors imported by the appellant.
Now, pot motors imported by the appellants were clearly component parts of Rayon Spinning machines and this was not and indeed could not be disputed on behalf of the respondents.
Since Rayon Spinning machines were admittedly textile machinery as defined in Item 72(1), these pot motors were covered by the opening part of 494 Item 72(3), namely, "component parts of machinery as defined in Item Nos.
72 ( 1 ) ".
Moreover, these pot motors were clearly and indubitably essential for the working of the Rayon Spinning machines and, as pointed out by the appellants in their representation dated 8th December, 1961, they were "specially designed for use in spinning frames for manufacturing rayon thread" and for the purpose, they were given special shape and quality which was not only not essential for their use for any other purpose but actually rendered them incapable of being used for any other purpose.
This position, as pointed out by the appellants in their representation dated 8th December, 1961, was not disputed either by the Assistant Collector in his communication dated 19th January, 1965 or by the Collector in his order dated 23rd December, 1965 rejecting the representation of the appellants and the Government of India also did not controvert this position in its order dated 23rd September, 1967.
If the Assistant Collector or the Collector or the Government of India did not accept the facts set out in the representation of the appellants dated 8th December, 1961, we should have expected a clear statement to that effect in the orders of these authorities.
The Assistant Collector maintained sphinx like silence and preferred not to give any reasons for confirming the demand for differential duty.
The Collector was a little less reticent.
He briefly gave a reason for confirming the orders of the Assistant Collector, but that reason had nothing to do with the nature, quality or condition of the pot motors.
What it said was this, namely, that the pot motors were imported under a separate contract from Germany while the Spinning machinery excluding pot motors were imported from Japan and that did not "justify the treatment of two consignments as one article.
" The Government of India also did not articulate its reasons while rejecting the revision application of the appellants, but since it confirmed the order of the Collector, we may presume that the same reason which prevailed with the Collector appealed to the Government of India.
It will, therefore, be seen that at no stage was the factual position in regard to The pot motors, as set out in the representation of the appellants dated 8th December, 1971, disputed by the Assistant Collector of Customs or the Collector or the Government of India.
The pot motors, therefore, clearly fell within the description given in Item 72(3), The respondents, however, leaned heavily on the words "not otherwise specified" in item 72(3) and contended that even if the pot motors were component parts of Rayon Spinning machines, they were not covered by Item 72(3), since they were otherwise specified in item 73(21).
The argument of the respondents was that if any component parts of machinery were specifically dealt with in any other item, they would go out of Item 72(3) and since pot motors were electric motors within Item 73(21), they were not covered by Item 72(3).
This argument is clearly unsustainable.
It seeks to read the words "not otherwise specified" as qualifying "component parts" but that is plainly incorrect as a matter of both grammar and language.
Structurally, the conjunction 'and ' joins the two clauses "as defined in Item Nos. 72, 72(1) and 72(2)" and "not otherwise specified" and since the former qualifies 'machinery ', the latter also must be read as 495 doing the same duty.
What Item 72(3) contemplates are component parts of that machinery which is defined in Item Nos. 72, 72(1) and 72(2) and which is `not otherwise specified.
The words 'not otherwise specified ' do not qualify "component parts": they qualify machinery '.
Otherwise, the conjunction 'and ' would have no meaning.
In fact, the sentence would become ungrammatical if the words "not otherwise specified" were read to govern "component parts".
This construction also receives support from the description of the component parts which follows the words 'not otherwise specified '.
This description starts with the word `namely ', which shows that it is intended to be a complete description of the component parts covered by this item and that would not contextually fit in with "component parts not otherwise specified".
There can be no doubt that on a plain grammatical construction, the words "not otherwise specified" qualify "machinery" and not "component parts" and, there fore, the pot motors imported by the appellants, which satisfied the other requirements of Item 72(3) could not be held to fall outside that Item, because they were otherwise specified in Item 73(21).
Item 72(3) is a specific Item which covers these pot motors as against Item 73(21)which is a general item and hence it must be held that these pot motors were assessable under Item 72(3) and not under Item 73(21).
The original assessment of these pot motors made by the Assistant Collector was, in the circumstances, correct and the subsequent, demand of differential duty made by the Assistant Collector and confirmed by the Collector in revision and by the Government of India on further revision, was unjustified.
The orders made by the Assistant Collector, the Collector and the Government of India confirming the demand for differential duty would, therefore, have to be quashed and set aside and the amount of differential duty recovered from the appellants pursuant to these orders would have to be refunded to the appellants.
Before we part with this appeal, we must express our regret at the manner in which the Assistant Collector, the Collector and the Government of India disposed of the proceedings before them.
It is incontrovertible that the proceedings before the Assistant Collector arising from the notices demanding differential duty were quasi judicial proceedings and so also were the proceedings in revision before the Collector and the Government of India.
Indeed, this was not disputed by the learned counsel appearing on behalf of the respondents.
It is now settled law that where an authority makes an order in exercise of a quasi judicial function it must record its reasons in support of the order it makes.
Every quasi judicial order must be supported by reasons.
That has been laid down by a long line of decisions of this Court ending with N. M. Desai vs The Testeels Ltd. & Anr.
( ') But, unfortunately, the Assistant Collector did not choose to give any reasons in support of the order made by him con firming the demand for differential duty.
This was in plain disregard of the requirement of law.
The Collector in revision did give some sort of reason but it was hardly satisfactory.
He did not deal in his order with the arguments advanced by the appellants in their representa (1) C. A.245 of 1970 decided on 17th December.
496 tion dated 8th December, 1961 which were repeated in the subsequent representation dated 4th June, 1965.
It is not suggested that the Collector should have made an elaborate order discussing the arguments of the appellants in the manner of a court of law.
But the order of the Collector could have been a little more explicit and articulate so as to lend assurance that the case of the appellants has been properly considered by him.
If courts of law are to be replaced by administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of Administrative law, they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them.
Then alone administrative authorities and tribunals exercising quasi judicial function will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process.
The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law.
The Government of India also failed to give any reasons in support or its order rejecting the revision application.
But we may presume that in rejecting the revision application, it adopted the same reason which prevailed with the Collector.
The reason given by the Collector was, as already pointed out, hardly satisfactory and it would, therefore, have been better if the Government of India had given proper and adequate reasons dealing with the arguments advanced on behalf of the appellants while rejecting the revision application.
We hope and trust that in future the Customs authorities will be more careful in adjudicating upon the proceedings which come before them and pass properly reasoned orders, so that those who are affected by such orders are assured that their case has received proper consideration at the hands of the Customs authorities and the validity of the adjudication made by the Customs authorities can also be satisfactorily tested in a superior tribunal or court.
In fact, it would be desirable that in cases arising under Customs and Excise laws an independent quasi judicial tribunal, like the Income tax Appellate Tribunal or the Foreign Exchange Regulation Appellate Board, is set up which would finally dispose of appeals and revision applications under these laws instead of leaving the determination of such appeals and revision applications to the Government of India.
An independent quasi judicial tribunal would definitely inspire greater confidence in the public mind.
We accordingly allow the appeal, set aside the orders passed by the Assistant Collector, the Collector and the Government of India demanding differential duty from the appellants and direct the Government of India to refund to the appellants the amount of differential duty recovered from the appellants in respect of the seven consignments of 4000 pot motors imported by them.
The respondent will pay the costs of the appeal to the appellant.
P.B.R. Appeal allowed.
| IN-Abs | Under item 72(3) of the First Schedule to the Indian Customs Tariff, component parts of machinery as defined in item nos.
72, 72(1) and 72(2) aand not otherwise specified are chargeable to customs duty.
Item 73(21) comprises of "electric motors, all sorts, and parts thereof".
On the strength of a licence for importing "complete continuous filament Rayon Plant with spares and accessories" certain spinning frames excluding pot motors were imported from Japan but not motors were imported from Germany by the appellants.
The customs authorities accepted the claim of the appellants that the consignment of pot motors fell within item 72(3) and charged import duty accordingly.
Sometime later, the Assistant Collector of Customs, claiming that customs duty on pot motors was short levied as they fell within item 73(21) called upon the appellants to pay the difference, against which the appellants made a representation to the Assistant Collector.
But the Assistant Collector held against the appellants without giving any reasons.
The appellants thereafter filed a representation to the Collector but he held that since the spinning frames and the pot motors were imported under separate contracts from separate countries the two consignments could not be treated as one article and hence rejected the representation.
The appellants thereupon applied to the Government of India in revision but the revision application was also rejected.
Allowing the appeal to this Court.
^ HELD: (1) (i) Item 72(3) is a specific item covering pot motors as against item 73(21) which is a general item.
Pot motors were, therefore, assessable under the former and not under the latter.
The original assessment of the Assistant Collector was correct and the subsequent demand of differential duty which was confirmed by the Collector and the Government of India was unjustified (ii) Pot motors fell within the description given in item 72(3).
They were specially designed for use in spinning machines for manufacturing rayon thread.
and they were indubitably essential for the working of the rayon spinning machines and were incapable of being used for any other purpose.
They were, therefore, clearly component parts of the rayon spinning machines.
[495 D, 494A] (2 ) The argument of the respondents that if any component parts of machinery were specifically dealt with in any other item, they would go out of item 72(3) and since pot motors were electric motors within item 72(21) they were not covered by item 72(3) was clearly unsustainable.
As a matter of both grammar and language the words "not otherwise specified" cannot be read as qualifying "component parts".
They qualify "machinery".
Otherwise the conjunction "and" would have no meaning.
The sentence would become ungrammatical if the words "not otherwise specified" were read to govern "component parts".
The description of the component parts which follows the words "not otherwise specified" starts with the words "namely" which shows that it is intended to be a complete description of the component parts covered 490 by this item and that would also not actually fit in with component parts "not otherwise specified".
Therefore, pot motors could not be held to fall outside that item because they were otherwise specified in item 73(21).
[494H] (3)(a) Where an authority makes an order in exercise of a quasi judicial function it must record its reasons in support of the order it makes.
Every quasi judicial order must be supported by reasons.
[495G] M. M. Desai vs The Testeels Ltd. & Anr.
CA 245 of 1976, decided on 17th Dec. 1975, referred to.
(b) If courts of law were to be replaced by administrative authorities and tribunals and with the proliferation of administrative law, they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them.
The rule requiring reasons to be given in support of an order is like the principal of audi alteram partem, a basic principle of natural justice which must inform every quasi judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law.
[496B D] In the instant case the Assistant Collector did not give any reasons in support of his order which was in plain disregard of the requirement of law.
The reason given by the Collector was hardly satisfactory.
His order could have been a little more explicit and articulate so as to lend assurance that the case had been properly considered by him.
The Government of India too failed to give any reasons in support of its order rejecting the revision application.
[496 H] [The Court expressed the view that it would be desirable that in cases arising under customs and excise laws an independent quasi judicial tribunal is set up which would finally dispose of the appeals and revision applications under these laws instead of leaving the determination of such appeals to the Government of India.
An independent quasi judicial tribunal would inspire greater confidence in the public mind.] [496F]
|
: Criminal Appeal No 219 of 1975 (Appeal by special leave from the judgment and order dated the 20th October, of the Andhra Pradesh High Court at Hyderabad in Criminal Misc.
Petition No 1890 of 1975) P B Basi Reddy, and AV V Nair for the appellants.
M R K Chaudhary and B K Kanta Rao for respondent No 1 525 P. Ram Reddy, and P Parameshwara Rao, for respondent Nos. 2 and 3 The Judgment of the Court was delivered by SARKARIA, J.
Whether in view of Clause (a) of the First Proviso to s, 22(1) of the Code of Criminal Procedure, 1973, a Magistrate who receives a complaint, disclosing an offence exclusively triable by the Court of Session, is debarred from sending the same to the police for investigation under section 156(3) of the Code, is the short question is that falls to be determined in this appeal by special leave.
The question arises in these circumstances: Respondent 1 herein made a complaint on July 26" 1975 before the Judicial Magistrate, First Class, Dharamavaram against the appellants herein alleging that.
On account of factions existing village Thippapalli the appellants formed themselves into an unlawful assembly, armed with deadly weapon, such as axes, spears and sticks, on the night of June 20" 1975 and entered the houses of several persons belonging to the opposite party, attacked the inmates and forcibly took way jewels, paddy, ground nuts and other valuables of the total value of two lakhs of rupees.
It was further alleged that the miscreants thereafter went to the fields and removed parts of machinery worth over Rs. 40,000/ , installed at the wells of their enemies.
On these facts it was alleged that the accused had committed offences under sections 147, 148, 149, 307, 395, 448, 378 and 342 of the Penal Code.
The offences under sections 307 and 395 are exclusively triable by the Court of Session.
The Magistrate on receiving the complaint forwarded ii to the Police for investigation with this endorsement: "Forwarded under section 156(3), Cr.
Procedure Code to the Inspector of Police, Dharmavaram for investigation and report on or before 5 8 1975.
" The appellants moved the High Court of Andhra Pradesh by petition under section 482 of the Code of Criminal Procedure, 1973 (which corresponds to section 561 A of the old Code) praying that the order passed by the Magistrate be quashed inasmuch as "it was illegal, unjust and gravely prejudicial to the petitioners".
The learned Judge of the High Court.
who heard the petition.
, dismissed it by an order dated October 20, 1975.
Hence this appeal.
Mr. Basi Reddy appearing for the appellants contends that the High Court has afield to appreciate the true effect of the changes brought by the Code of 1973.
According to the Counsel, under the new Code, is a complaint discloses an offence triable exclusively be court of Session, the Magistrate is bound to proceed with that complaint himself before issuing process to the accused.
The point pressed into argument is that clause (a) of the first Proviso to section 202(1), the new Code peremptorily prohibits the Magistrate, to direct investigation of such a complaint by the Police or any other person.
The cases, Gopal Da vs State of Assam(l),.
Jamuna Singh vs Bhadai She (2), referred to by the High Court are sought to be distinguished (1) (1961) A.I.R. 19(;1 section C. 986 (2) [1964] 5 S S.C.R. 37.
526 on the ground that they were decided under the old Code, section 21)2 of which did not provide for any such ban as has been expressly enacted in the 1st Proviso to section 202 of the new Code.
As against this, Mr. Ram Reddy, whose arguments have been adopted by Mr. Chaudahry, submits that the powers conferred on the Magistrate under section 156(3) of the Code are independent of his power to send the case for investigation under.
section 22 of the Code; that the power under section 156 (3) can be invoked at a stage when the Magistrate has not taken cognizance of the case while section 202 comes into operation after the Magistrate starts dealing with the complaint in accordance with the Provisions of Chapter XV.
It is urged that since in the instant case, the Magistrate had sent the complaint for police investigation without taking such cognizance section 202 including the ar enacted therein, was not attracted.
In the alternative, it is submitted that the ban in the 1st Proviso to section 202, becomes operative only when the Magistrate after applying his mind to the allegations in the com plaint and the other material" including the statement of the complainant and his witnesses, if any, recorded under section 200,, is prima facie satisfied that the offence complained of is triable exclusively by the Court of Session.
The point sough to be made out is that a mere allegation in the complaint that the offence committed is one exclusively triable by the Court of Session, does not oust the jurisdiction of the Magistrate to get the case investigated by the police or other person.
The word "appears" according to Counsel, imports a prerequisite or condition precedent, the existence of which must be objectively and judicially established before the prohibition in the 1st Proviso to section 202 becomes operative.
It is added that in the instant case,, the existance of this condition precedent was not, and indeed could not he established.
It appears to us that this appeal can be disposed of on the first ground canvassed by Mr. Ram Reddy.
Before dealing with the contention raised before us, it will be appropriate to notice the relevant provisions of the old and the new Code.
Section 156 of the Code of 1973 reads thus: "156(1).
Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case Which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate, (3) Any Magistrate empowered under section 190 may order such an investigation as above mentioned.
" 527 This provision is substantially the same as section 156 of the Code of A 1898, excepting that in sub section
(1) for the words "Chapter XV relating to the place of inquiry or trial," the words "Chapter XIII" have been substituted.
Sections 200 and 202 of the 1898 Code and the 1973 Code, placed in juxtaposition, read as follows: 1898 Code section 200: A Magistrate taking cognizance of an offence on complaint shall at once examine the complaint and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided as follows: (a) when the complaint is made in writing, nothing herein contained shall be deemed to require a Magistrate to .
examine the complainant before transferring the case under section 192; (aa) when the complaint is made in writing, nothing herein contained shall be deemed to require the examination of a complainant in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties: (b) where the Magistrate is a Presidency Magistrate, such examination may be on oath or not as the Magistrate in each case thinks fit, and where the complaint is made in writing need not be reduced to writing.
but the Magistrate may, if he thinks fit, before the matter of the complaint is brought before him, require it to be reduced to writing; (c) when the case has been transferred under section 192 and the Magistrate so transferring it has already examined the complainant, the Magistrate to whom it is so transferred shall not be bound to re examine the complainant.
202 Postponement of issue of Process: (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance, or 1973 Code section 200: A Magistrate taking cognizance of an offence on complaint shall ex.
mine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate.
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for enquiry or trial to another Magistrate under section 192; Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re examine them.
202 Postponement of Issue of process: (1) Any Magistrate, on receipt of a complaint of an offence which he is authorised to take cognizance or 528 which has been transferred to him under section 192, may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case himself or, if he is a Magistrate other than a Magistrate of the third class, direct an inquiry or investigation to be made by any Magistrate subordinate to him, or by a police officer, or by such other person as he thinks fit for the purpose of ascertaining the truth or falsehood of the complaint; Provided that, save where the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on oath under the provisions of section 200.
(2) If any inquiry or investigation under this section is made by a person not being a Magistrate or a Police officer.
such person shall exercise all the powers conferred by this Code on an officer in charge of a Police station.
except that he shall not have the power to arrest without warrant.
(2A) Any Magistrate inquiring into a Case under this section may, if he thinks fit, take evidence of witnesses on oath.
(3) This section applies also to the police in the towns of Calcutta and Bombay.
which has been made over to him under sec.
192, may if he thinks fit, postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made: (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complaint and the witnesses present (if any) have been examined on oath under Section 200. ` (2) If any inquiry under sub section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath : Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainants to produce all his witnesses and examine them on oath.
(3) If an investigation under sub section (I) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer incharge of a police station except the power to arrest without warrant.
Before proceeding further, we may have a look at section 190 of the new Code.
This section is captioned "Cognizance of offences by Magistrates".
This section so far as it is material for our purpose, n provides: "Subject to the provisions of this Chapter, any Magistrate of the First Class and any Magistrate of the second class specially empowered in this behalf may take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence; 529 (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) . . . . . It is well settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, disclose the commission of an offence.
This is clear from the use of the words "may take cognizance" which in the context in which they occur cannot be equated with must take cognizance".
The word "may" gives a discretion to the Magistrate in the matter.
If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself.
This raises the incidental question: What is meant by "taking cognizance of an offence` ' by a Magistrate within the contemplation of section 190? This expression has not been defined in the Code.
But from the scheme of the Code, the content and marginal heading of section 190 and the caption of Chapter XIV under which sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein.
The was in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1).
Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted and the nature of the preliminary action, if any, taken by the Magistrate.
Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of section 190(l)(a).
If, instead of proceeding under Chapter XV, he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under section 156(3), he cannot be said to have taken cognizance of any offence.
This position of law has been explained in several cases by this Court.
the latest being Nirmaljit Singh Hoon vs The State of West Bengal and anr(1).
The position under the Code of 1898 with regard to the powers of a Magistrate having jurisdiction, to send a complaint disclosing a cognizable offence whether or not triable exclusively by the Court of (1) ; 36 833SCI/76 530 Session to the Police for investigation under section 156(3)" remains unchanged under the Code of 1973.
The distinction between a police investigation ordered under section 156(3) and the one directed under section 202, has also been maintained under the new Code; but a rider has been clamped by the 1st Proviso to section 202(1) that if it appears to the Magistrate that an offence triable exclusively by the Court of Session has been committed, he shall not make any direction for in vestigation.
Section 156(3) occurs in Chapter XII, under the caption: "Information to the Police and their powers to investigate"; while section 202 is in Chapter XV which bears the heading "Of complaints to Magistrates".
The power It order police investigation under section 156(3) is different from the power to direct investigation conferred by section 202(1).
The two operate in distinct spheres at different stages.
The first is exercisable at the pre cognizance stage, the second at the post cognizance stage when the Magistrate is in seisin of the case. 'That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under section 190(1)(a).
But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre cognizance stage and avail of section 156(3).
It may be noted further that an order made under sub section (3) of section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under section 156(1).
Such an investigation embraces the entire continuous process which begins with the collection of evidence under section 156 and ends with a report or chargesheet under section 173.
On the other hand section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure.
In such a situation, the Magistrate is empowered under section 202 to direct within the limits circumscribed by that section, an investigation "for the purpose of deciding whether or not here is sufficient ground for proceeding ".
Thus the object of an investigation under section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.
In the instant case the Magistrate did not apply his mind to the complaint for deciding whether or not there is sufficient ground for proceeding; but only for ordering an investigation under section 156(3).
He did not bring into motion the machinery of Chapter XV.
He did not examine the complaint or his witnesses under section 200, Cr.
P.C., which is the first step in the procedure prescribed under that Chapter.
The question of taking the next step of that procedure envisaged in section 202 did not arise.
Instead of taking cognizance of the offence he has.
, in the exercise of his discretion, sent the complaint for investigation by police under section 156.
531 This being the position, section 202(1), 1st Proviso was not attracted.
A Indeed, it is not necessary for the decision of this case to express any final opinion on the ambit and scope of the 1st Proviso to section 202(1) of the Code of 1973.
Suffice it to say, the stage at which section 202 could become operative was never reached in this case.
We have therefore in keeping with the well established practice of the Court, decided only that much which was essential for the disposal of this appeal, and no more.
For the foregoing reasons, we answer the question posed" in the negative, and dismiss this appeal.
M.R. Appeal dismissed.
| IN-Abs | On receiving a complaint against the appellants, for allegedly Committing offences under sections 147, 148, 307, 395, 448, 378 and 342, I.P.C., the Judicial Magistrate, F.C. Dharmavaram., forwarded it to the police under section 156(3) Cr.
P.C. for investigation The appellants filed an application in the High Court under section , against the Magistrate 's order, hut the same was dismissed.
it was contended before this Court that the complaint included offences triable exclusively by the Sessions Court, and under section 202(1) Proviso l(a), 1973, the Magistrate was prohibited from directing the police to investigate it, that he was bound to proceed with it himself before issuing process to the accused.
The appeal was, inter alia, contested on the ground that .
the powers conferred on the Magistrate under section 156(3) of the Code are independent of his power to send the case for investigation under section 2021 af the Code.
Section 156(3) can be invoked before the Magistrate takes congnizace of the case but section 202 comes into operation only after he start; dealing with the com Plaint in accordance with the provisions of Chapter XV.
Dismissing the appeal of the Court, ^ HELD: (1) The power to order police investigation under , 156(3) different from the power to direct investigation conferred by section '202(1). 'The.` two operate in distinct spheres at different stages.
The first is exercisable at the re cognizance stage, the second at the post cognizance stage when the Magistrate is in seisin of the case.
An investigation under section 202 is "for the purpose or deciding whether or not there is sufficient ground for proceeding".
its not to initiate a fresh case on police report, but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.
The stage at which section 202 could become operative was never reached in this case.
[530 H; 531B] (2) When on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under section 200 and the succeeding sections in chapter XV of the Code of 1973 he is said to have taken cognizance of the offence within the meaning of section 190(l)(a).
If instead of ' proceeding under Chapter XV.
he has in the exercise of his discretion, taken action of some other kind, he cannot be said to have taken cognizance of any offence.
[526D G] Nirmaljit Singh Hoon .
The State West Bengal ond Anr.
[1973] 3 section ,53, referred to.
|
Civil Appeal Nos.
1122 and 1123 of 1970 Appeals by special leave from the Judgment and order dated the 13th February 1970 of the Allahabad High Court in S.A. Nos. 267 and 268 of 1962.
520 section C. Manchanda, section K. Bagga, (Mrs.) Sureshta Bagga and (Mrs) Yash Bagga; for the Appellant.
R. N. Sharma and C. P. Lal; for Respondent.
The Judgement of the Court was delivered by CHANDRACHUD, J.
These appeals by special leave arise out of the judgment rendered by the High Court of Allahabad on February 13, 1970 in Second Appeals 267 and 268 of 1962.
Mahant Vishwa Nath Bharthi, the sarbrahkar of the temple of Shankarji Maharaj, Khowja, gave lands belonging to the temple, ad measuring about 44 acres, on Theka to one Sukai.
The Thekanama was executed on June 5, 1942 to be effective from July 1, 1942.
The lease was to enure for a period of 10 years and was due to expire on June 30, 1952.
The Thekanama contained an express term that the Thekadar will not sub let the leasehold property and that on the expiry of the period of lease he shall hand over the possession of the property to the lessor.
In spite of this term against sub letting, on July 27, 1942 the Lessee executed a power of attorney in favour of his nephews Haqiqullah and Ghani, apparently authorising them to cultivate the lands on his be half.
On the expiry of the period of lease the Mahant instituted a suit for ejectment of the lessee which was decreed on November 25, 1 952.
The Mahant then filed an application for executing the decree but an objection was raised thereto by the respondents, Sanaullah and Fakhrul Hasan who are respectively the brother and cousin of Haqiqullah.
They filed two separate applications objecting to the execution of the decree on the ground that they had been cultivating the lands for several years and that they were entitled to continue in possession as Sirdars.
On June 2, 1954 the objection raised by the respondents was allowed by the executing court which passed an order that the possession of the lands which on March 13, 1953 was given to the decree holder in execution of the decree should be re delivered to the respondents.
Accordingly, the respondents were put back in possession in July, 1954.
The lessor then instituted two separate suits under order XXI, Rule 103 of the Civil Procedure Code, the suit filed against Fakhrul Hasan being No. 17 of 1954 and the one against Sanaullah being No. of 1954.
His case was that the lands were given on lease to Sukai on condition that he shall not sublet them, that a decree for possession was accordingly passed against Sukai on the expiry of the lease and that the respondents had got their names entered fraudulently in the revenue record as the cultivators of the lands.
Respondents took up various inconsistent pleas in answer to the suits.
They contended that they were in possession of the lands with the consent of the original lessor.
that they had become hereditary 521 tenants and that they must be deemed to have become Adhivasis of the lands.
The learned Munsiff who tried the suits framed six issues, issue No. 2 being whether the respondents were Sirdars of the lands as alleged in paragraphs 17 and 18 of their written statements.
This issue was referred to the revenue court for decision.
The lessor having died during the pendency of those suits, the appellant was substituted in his placed as the Mahant of the Math.
The revenue court found in favour of the respondents and accepting that finding the trial court dismissed the suits.
In appeal, the District Court took the view that there was no justification for referring the particular issue to the revenue court and that the trial court ought to have decided all the issues for itself.
The District Court accordingly remanded the suit with a direction that the Munsiff should decide the suit afresh uninfluenced by the finding given by the revenue court.
The trial court then assessed the evidence, held the respondents and dismissed both the suits by its judgment dated November 17, 1961 The District Court reversed the findings of the trial court in appeal and held that the appellant, being the Bhumidar of the lands, was entitled to recover possession thereof from the respondents.
The appeals were accordingly allowed by the District Court by its judgment dated April 18, 1962.
The respondents filed Second Appeals Nos. 267 and 268 of 1962 against the decrees passed by the District Court.
The High Court having allowed those appeals the Mahant of the Math has filed these appeals by special leave.
The decision of these appeals involves a very narrow question as regards the power of the High Court in second appeal.
Section 10 of the Code of Civil Procedure provides to the extent that the appeal can lie to the High Court from a decree passed ill appeal by any court subordinate to it if the decision is contrary to law or to some usage having the force of law.
The only question for decision before the High Court was whether the respondents were entitled to the protection of section 20(b)(ii) of the U.P. Zamindari Abolition and Land Reforms Act, 1 of 1951.
That section provides, in so far as material, that every person who was recorded as an occupant of any land in the Khasra or Khatauni of 1356 Fasli but who was not in possession in the year 1359 Fasli shall be called an 'Adhivasi ' of the land and shall be entitled to retain possession thereof.
The names of the respondents were entered as occupants in the revenue record of 1356 Fasli but after considering the entire evidence, the District Court rejected those entries on the ground that they were fraudulent.
Thus, the only question before the High Court was whether the entries on which the respondents relied were genuine or fraudulent.
That is a question of fact and the High Court had no jurisdiction to set aside in second appeal the finding recorded on that question by the district Court.
522 The High Court assumed erroneously that the District Court had not given any finding on the question of fraud and on that assumption, it accepted mechanically the entries in the revenue record showing that the respondents were in possession of the lands as occupants.
The learned District Judge, by his judgment dated April 18, 1962 had gone in great details into the question whether the particular entries showing that the respondents were occupants of the land were genuine or fraudulent.
Those entries are Exs.
A 5 to A 12.
As pointed out by the learned Judge, the original lessee Sukai had migrated to Bombay after handing over the charge of the lands to his nephews who got the names of the respondents entered in the revenue record "surreptitiously".
The learned Judge points out that Fakhrul Hasan, who alone was examined on behalf of the respondents, was just a lad of 10 at the time when he is alleged to have entered into adverse possession of the lands.
Neither Sukai, who was the original lessee, nor Haqiqullah and Ghani who were said to : be cultivating the lands under a power of attorney executed by Sukai, were examined by the respondents.
The other respondent Sanaullah was not living in the village at all and is said to have been doing business in second hand spares in Bombay.
Haqiqullah was summoned by the appellant for producing the power of attorney dated July 27, 1942 and taking advantage of that opportunity the respondents cross examined him.
Haqiqullah, being a close relation of the respondents was only too willing to oblige them by giving pre conceived answers in the so called cross examination.
But the learned trial Judge overlooked that Haqiqullah was only summoned to produce a document and by reason of section 139 of the Evidence Act he could not become a witness in the case and could not therefore have been cross examined on the merits of the case.
But, even her considering the evidence of Haqiqullah the learned District Judge recorded a finding that "The entries were all fictitious".
He then proceeded to examine the documentary evidence in the case and held: "After a careful consideration of the pros and cons of the whole case I am of opinion that the Thekedar Sukai had I cultivated the sir and Khudkashi of the temple land which was given to him on Theka through his brother and his cousin, namely Haqiqullah and Ghani and these two per sons in order to create permanent rights in the Theka property, had fraudulently got the names of their boys entered , in the revenue records right from the inception.
I am also of the opinion that these by of the house hold never cultivated the land and they acquired no right, title or interest in the Theka land".
We find it quite difficult to understand how the High Court could hold that the District Court had not recorded any "clear finding" that the entries in the revenue record for the year 1356 Fasli were fraudulent.
Evidently, the attention of the High Court was not drawn to at least half a dozen reasons given by the District Court for holding that the entries were "fictitious" and were made "surreptitiously" and "fraudulently".
523 We could have even appreciated if, under section 103 of the Code of Civil Procedure, the High Court were to determine the issue whether the entries were fraudulent, if it though, wrongly though, that the District Court had not recorded a clear finding on that issue.
But the High Court did not discuss the evidence at all and chose instead to place a blind and easy reliance on the entries which are utterly uninspiring.
B It is true that the entries in the revenue record ought, generally, to be accepted at their face value and courts should not embark upon an appellate inquiry in to their correctness.
But the presumption of correctness can apply only to genuine, not forged or fraudulent, entries.
The distinction may be fine but it is real.
The distinction is that one cannot challenge the correctness of what the entry is the revenue record states but the entry is open to the attack that it was Made fraudulently or surreptitiously.
Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title.
In Amba Prasad vs Abdul Noor Khan and ors.(1), it was held by this Court that section 20 of the U.P. Act 1 of 1.951 does not require proof of actual possession and that its purpose is to eliminate inquiries into disputed possession by acceptance of the entries in the Khasra or Khatauni of 1356 Fasli.
While commenting on this decision, this Court observed in Sonawati and ors.
vs Sri Ram and Anr.(2) that "the Civil Court in adjudging a claim of a person to the rights of an adhivasi is not called upon to make an enquiry whether the claimant was actually in possession of the land or held the right as an occupant: cases of fraud apart, the entry in the record alone is relevant".
We have supplied the emphasis in order to show that the normal presumption of correctness attaching to entries in the revenue record, which by law constitute evidence of a legal title, is displaced by proof of fraud.
For these reasons we allow these appeals, set aside the judgment li.
Of the High Court and restore that of the District Court.
The suits filed by the appellant shall stand decreed.
Respondents shall pay to the appellant the costs of these appeals in one set.
P.H.PAppeals allowed.
(1) ; (2) [1968] 1 S.C.R. 617, 620.
| IN-Abs | Entries in record of rights Presumptive value of Presumption if applies to forged or fraudulent entries Effect of fraud or forgery on a document.
Mahant Bharati of temple of Shankarji Maharaj gave lands belonging to the temple on Theka to one Sukai for a period of 10 years.
The Mahant obtained a decree for eviction against Sukai but it could not be executed because of the objections raised by the respondents on the ground that they have been cultivating the lands for several years and they were entitled to continue in possession as Sirdars in spite of the decree against Sukai.
The lessor, therefore, instituted two separate suits under order 21 Rule 103, C.P.C. Respondents contended inter alia, that they had become hereditary tenants and they must be deemed to have become Adhivasis of the land.
The trial court dismissed the suit.
The district court reversed the finding of the trial court in appeal and held that the appellant being the Bhumidar of the lands was entitled to recover possession thereof from the respondents.
The district Judge held that the entries in the record of rights showing the occupation of the respondents were fraudulent.
The High Court in second appeal upset the decree of the district court.
Allowing the appeal, ^ HELD: (1) The only question before the High Court was whether the entries on which the respondents relied were genuine or fraudulent.
This is as question of fact and the High Court had no jurisdiction to set aside the finding on that question in second appeal.
The High Court erroneously assumed that the district Court had not given any finding on the question of fraud.
The district Court had given at least half a dozen reasons for holding that the entries were fictitious and were made surreptitiously and fraudulently.
[521H; 522A H] (2) If the High Court thought that the district court had not recorded a clear finding on that issue and if the High Court were to determine under section 103 C.P.C. the issue under whether the entries were fraudulent or not it was necessary for it to discuss the evidence.
But, the High Court instead placed blind and easy reliance on the entries which are utterly uninspiring.
[523A B] (3) Entries in the revenue record ought generally to be accepted at their lace value and courts should not embark upon an appellate enquiry into the correctness.
But the presumption of correctness can apply only to genuine, not formed or fraudulent entries.
The distinction may be fine but it is real.
Fraud and forgery rob a document of all its legal effect and cannot found a claim lo possessory title.
[523B C]
|
ivil Appeal Nos.
1399 to 1403 of 1970.
479 Appeal from the Judgment and order dated 20th December 1 968 A the Madras High Court in Tax Case No. 314/64 (Reference No. 82 of 1964) and Civil Appeal No. 301 of 1974 Appeal from the Judgment and order dated 3rd April 1972 of the Madras High Court in Tax Case No. 328 of 1966 (Reference No. 88/66).
section T. Desai, J. Ramamurthi; for the appellant (In CA 1399 1403 of 1970).
section Swaminathan, Mrs. section Gopalakrishnan for the Respondent in all the appeals.
The Judgment of the Court was delivered by JASWANT SINGH, J.
These Appeals Nos.
1399 to 1403 of 1970 and 301 of 1974 by certificates granted by the High Court of Madras shall be disposed of together by this judgment as they raise common question of law and fact.
The circumstances giving rise to these appeals are: The late R. Sridharan along with his father and brothers constituted a Hindu undivided family governed by Mitakshara law.
On June 28, 1952, while he was still unmarried, a partition took place between him, his brothers and his father.
As a result of this partition, a block of shares in T. V. Sundaram Iyengar and Sons Private Limited and three other limited companies fell to his share.
On June 14, 1956, Sridharan married Rosa Maria Steinbchler, a Christian woman of Austrian descent, under the .
On November 29, 1957, a son named Nicolas Sundaram was born out of this wedlock.
For the assessment years 1957 58, and 1958 59, Sridharan was assessed to income tax and wealth tax in the status of an 'individual ' on his own declaration to that effect.
In the assessment proceedings in respect of income tax and wealth tax for the assessment years 1959 60, 1960 61 and 1961 62 and in the assessment proceedings under the Expenditure Tax Act for the year 1961 62, he claimed to be assessed in the status of a member of Hindu undivided family consisting of himself and his son, Nicolas Sundaram, contending that the property held by him was ancestral and Nicolas Sundaram was a Hindu.
The Income Tax officer, Wealth Tax officer and Expenditure Tax officer refused to accede to the contention of Sridharan and assessed him in the status of an `individual ' as in the previous years on the grounds that the value of the share and other investments standing in his name being his exclusive properties and by virtue of section 21 of the , succession to the property of a person whose marriage has been solemnized under that Act being governed by the , and not by the ordinary Hindu law, Nicolas Sundaram could not become a member of Hindu undivided family with his father.
Sridharan thereupon went up in appeal to the Appellate Assistant Commissioner but remained unsuccessful.
The orders passed by the Income 480 Tax /Wealth Tax/Expenditure Tax officers and the Appellate Assistant Commissioner were also affirmed in appeals against the assessments respectively made under the Income tax Act`, Wealth Tax Act and the Expenditure Tax Act by the Appellate Tribunal.
In the course of its consolidated order rejecting the appeals, the appellate Tribunal observed that although section 21 of the pre served some of the rights in the family property of the children born out of marriage solemnized under that Act, it did not clothe such off spring with the character of Hindus and therefore, there was no Hindu undivided family of Sridharan and his son which could claim to be taxed as Hindu undivided family.
Thereafter on the applications made by Sridharan under section 27 ( 1 ) of the Wealth Tax Act, section 66 ( 1 ) of the Income tax Act and section 25(l) of the Expenditure Tax Act, the Income tax Appellate Tribunal referred the following common question of law arising from its aforesaid decision for the opinion of the High Court: "Whether, on the facts and in the circumstances of the case, the assessee and his son constituted a Hindu undivided family for purposes of assessment under the Income tax, Wealth tax and Expenditure tax Acts ?" The High Court following the decision of this Court in Gowli Buddanna vs Commissioner of Income tax(l) held that Sridharan 's claim to be reckoned as Hindu undivided family was well merited and the Tribunal was in error in holding that there was no Hindu undivided family of Sridharan and his son which could claim to be assessed and taxed as such either under the Income tax Act, or Wealth Tax Act or the Expenditure Tax Act.
The High Court accordingly answered the question in the affirmative but granted certificate of fitness for appeal to this Court.
Sridharan died on April 9, 1962.
A few days after the valuation date relevant for the assessment year 1963 64, his widow Mrs. Rosa Maria Steinbchler filed a wealth tax return claiming that the assessment for the assessment year 1962 63 should be made in the status of Hindu undivided family.
The Wealth Tax officer following his earlier decision in the assessment proceedings in respect of the previous years rejected the claim of Rosa Maria Steinbchler holding that she was not a Hindu and in any case since her marriage with Sridharan was under the , Nicolas Sundaram had no right by birth in the properties obtained by the assessee on partition.
He further held that Nicolas Sundaram could claim Sridharan 's property only under the and not under the Hindu law.
on appeal, the Appellate Assistant Commissioner affirmed the order of the Wealth Tax officer.
A further appeal was 481 "Whether the assessee, Sridharan and his son constituted A in law a Hindu undivided family for the purpose of assessment under the ?" The High Court answered the question in the affirmative i.e.
against the Revenue observing that the decision in the previous reference directly governed the facts of the fresh reference.
Aggrieved by this order of the High Court, the appellant applied and obtained leave to appeal to this Court under section 29(1) of the q and Article 133(1)(c) of the Constitution of India.
This is how the appeals are before us.
Counsel appearing for the appellants and respondents have repeated before us the contentions respectively advanced on behalf of the parties before the High Court.
It cannot be disputed that a joint Hindu family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters.
It cannot also be disputed that property obtained by Sridharan on partition between his father and brothers could become ancestral property so far as his sons, grandsons and great grandsons were concerned who could according to Mitakshara law acquire an interest therein by birth.
The sole question which, however, falls for our consideration in these appeals is whether Nicolas Sundaram is a Hindu governed by Hindu law.
It is a matter of common knowledge that Hinduism embraces within itself so many diverse forms of beliefs, faiths, practices and worship that it is difficult to define the term 'Hindu ' with precision.
The historical and etymological genesis of the word "Hindu" has been succinctly explained by Gajendragadkar, C.J. in Shastri Yagnapurushdasji & ors.
vs Muldas Bhundardas Vaishya & Anr.(l).
In Unabridged Edition of Webster 's Third New International Dictionary of the English language, the term 'Hinduism ' has been defined as meaning "a complex body of social, cultural, and religious beliefs and practices evolved in and largely confined to the Indian subcontinent and marked by a caste system, an outlook tending to view all forms and theories as aspects of one eternal being and truth, a belief in ahimsa, karma, dharma, sansara, and moksha, and the practice of the way of works, the way of knowledge, or the way of devotion as the means of release from the bound of rebirths; the way of life and form r of thought of a Hindu".
In Encyclopaedia Britannica (15th Edition), the term 'Hinduism ' has been defined as meaning "the civilization of Hindus (originally, the inhabitants of the land of the Indus River).
It properly denotes the Indian civilization of approximately the last 2,000 years, which (1) ; 33 833 SCI/76 482 gradually evolved from Vedism, the religion of the ancient Indo European peoples who settled in India in the last centuries of the 2nd millennium BC.
Because it integrates a large variety of heterogeneous elements, Hinduism constitutes a very complex but largely continuous whole, and since it covers the whole of life, it has religious, social, economic, literary, and artistic aspects.
As a religion, Hinduism is an utterly diverse conglomerate of doctrines, cults, and way of life .
In principle, Hinduism incorporates all forms of belief and worship without necessitating the selection or elimination of any.
The Hindu is inclined to revere the divine in every manifestation, whatever it may be, and is doctrinally tolerant, leaving others including both Hindus and non Hindus whatever creed and worship practices suit them best.
A Hindu may embrace a non Hindu religion without ceasing to be a Hindu, and since the Hindu is disposed to think synthetically and to regard other forms of worship, strange gods, and divergent doctrines as inadequate rather than wrong or objectionable, he tends to believe that the highest divine powers complement each other for the well being of the world and mankind.
Few religious ideas are considered to be finally irreconcilable.
The core of religion does not even depend on the existence or non existence of God or on whether there is one god or many.
Since religious truth is said to transcend all verbal definition it is not conceived in dogmatic terms.
Hinduism is, then both a civilization and a conglomerate of religions, with neither a beginning, a founder, nor a central authority, hierarchy, or organization.
Every attempt at a specific definition of Hinduism has proved unsatisfactory in one way or another, the more so because the finest Indian scholars of Hinduism, including Hindus themselves, have emphasized different aspects of the whole".
In his celebrated treatise "Gitarahasaya", B.G. Tilak has given the following broad description of the Hindu religion: : "Acceptance of the Vedas with reverence; recognition of the fact that the means or ways of salvation are diverse; and realisation of the truth that the number of gods to be worshipped is large, that indeed is the distinguishing feature of Hindu religion".
In Bhagwan Koer vs J. C. Bose & ors.(l) it was held that Hindu religion is marvellously catholic and elastic.
Its theology is marked by eclecticism and tolerance and almost unlimited freedom of private worship.
Its social code is much more stringent, but amongst its different castes and sections, exhibits wide diversity of practice.
No trait is more marked of Hindu society in general than its herror of using the meat of the cow.
This being the scope and nature of the religion, it is not strange that it holds within its fold men of divergent views and traditions who have very little in common except a vague faith in what may be called the fundamentals of the Hindu religion.
(1) Cal.
483 It will be advantageous at this stage to refer to page 671 of Mulla 's A Principles of Hindu Law (Fourteenth Edition), where the position is stated thus: : "The word 'Hindu ' does not denote any particular religion or community.
During the last hundred years and more it has been a nomenclature used to refer comprehensively to various categories of people for purposes of personal law.
It has been applied to dissenters and non comformists and even to those who have entirely repudiated Brahminism.
It has been applied to various religious sects and bodies which at various periods and in circumstances developed out of or split off from, the Hindu system but whose members have nevertheless continued to live under the Hindu law and the Courts have generally put a liberal construction upon enactments relating to the personal laws applicable to Hindus".
In paragraph 6 of Chapter I of Mulla 's aforesaid Treatise, the following have been enumerated as persons to whom Hindu law applies: "(i) not only to Hindu by birth, but also to Hindus by religion, i.e. converts to Hinduism; (ii) to illegitimate children where both parents are Hindus; (iii)to illegitimate children where the father is a Christian and the mother is a Hindu, and the children are brought up as Hindus.
But the Hindu law of coparcenary, which contemplates the father as the head of the family and the.
sons as coparceners by birth with rights of survivorship, cannot from the very nature of the case apply to such children; (iv) to Jains, Buddhists in India, Sikhs and Nambudri Brahmins except so far as such law is varied by custom and to Lingayat who are considered Sudras; (v) to a Hindu by birth who, having renounced Hinduism, has reverted to it after performing the religious rites of expiation and repentence.
Or even without a formal ritual of reconversion when he was recognised as a Hindu by his community; (vi) to sons of Hindu dancing girls of the Naik caste converted to Mahomedanism, where the sons are taken into the family of the Hindu grandparents and are brought up as Hindus; (vii) to Brahmos; to Arya Samajists; and to Santhals of Chota Nagpur and also to Santhals of Manbhum except so far as it is not varied by custom; and 484 (viii) to Hindus who made a declaration that they were not Hindus for the purpose of the Special Marriage Act, 1872.
" This enumeration is based upon decisions of various courts relating to old uncodified Hindu law.
In Lingappa vs Esudasen(l) which related to maintenance, it was held that Hindu law does not apply to the illegitimate children of a Hindu father by a Christian mother who are brought up a Christians.
This decision indirectly leads to the conclusion that legitimate children of a Hindu father by a Christian mother who are brought up as Hindus would be governed by Hindu law.
In Mothey Anja Ratna Raja Kumar vs Koney Narayana Rao & ors.(2) whole approving the observations made in Ananthaya vs Vishnu(3) this Court inter alia held that under the Mitakshara law, an illegitimate son is entitled to maintenance as long as he lives, in recognition of his status as a member of his father 's family.
Under the codifying Acts namely the , the , the Hindu Minority and Guardian ship Act, 1956 and the Hindu Adoption and Maintenance Act, 1956, the orthodox concept of the term 'Hindu ' has undergone a radical change and it has been given an extended meaning.
The aforesaid codifying Acts not only apply to Hindus by birth or religion i.e. to converts to Hinduism but also to a large number of other persons.
According to explanation (b) to section 2(1) of the , Hindu Adoption and Maintenance Act, 1956 and as also according to explanation (ii) to section 3(1) of the Hindu Minority and Guardianship Act, 1956, any child legitimate or illegitimate, one of whose parents is a Hindu by religion and who is brought up as a Hindu is a Hindu.
In the present case, Sridharan is a Hindu by birth and was lawfully married to Rosa Maria Steinbchler.
Even after his marriage, he did not renounce Hinduism but continued to profess that religion.
Having been begotten out of the aforesaid valid and lawful wedlock, Nicolas Sundaram is a legitimate child and lineal descendant of Sridharan.
There is no material on the record to show that Nicolas Sundaram was not brought up as a Hindu or that he did not conform to the habits and usages of Hinduism or that he was not recognised as a Hindu by the society surrounding him or that he became a convert to another faith.
Sridharan has also unequivocally acknowledged and expressly declared that he and his son, Nicolas Sundaram formed a Hindu undivided family.
This declaration in the circumstances is sufficient, as also found by the High Court? to establish that Nicolas Sundaram was brought up as a Hindu member of the family to which his father belonged.
At page 290 of his Treatise on Hindu Law, and Usage (Eleventh Edition), Mayne says that a child in India, under ordinary circumstances, must be presumed to have his father 's (1) (2) A.I.R. 1953 S.C. 433.
(3) 17 Mad.
485 religion, and his corresponding civil and social status.
He, there A fore, have no hesitation in holding that Nicolas Sundaram is a Hindu and he could validly be a member of the Hindu undivided family headed by his father and be governed by Hindu law.
Section 21 of the Special Marriage Act which has been heavily relied upon by the Revenue has, in our opinion, no bearing on the present case.
That section provides that succession to the property of a person whose marriage has been solemnized under the and the property of the issue of such marriage shall be governed by the provisions of the (XXXIX of 1925).
In other words, the section guarantees inter alia to the issue of the person whose marriage has been solemnized under the a collateral statutory right of succession to the estate of the latter in case he dies intestate.
It does not in any way impair or alter the joint family structure between an assessee and his son.
Nor does it effect, as observed by the High Court, the discretion vested in a Hindu assessee to treat his properties as joint family properties by taking into his fold his Hindu sons so as to constitute joint family properties.
For the foregoing reasons, we are of the opinion that the aforesaid question referred to the High Court was rightly answered by it on both the occasions.
In the result, we find no merit in these appeals which are dismissed with costs.
M.R. Appeals dismissed.
| IN-Abs | The late R. Sridharan married Rosa Maria Steinbichler, a christian Austrian of descent, under the and a son Nicolas Sundaram was born out of the wedlock.
In the assessment proceedings i respect of income tax, wealth tax and expenditure tax, Sridharan claimed to be assessed in the status of a member of Hindu Undivided Family consisting of himself and his son, contending that the property held by him was ancestral and Nicolas Sundaram was a Hindu.
The officers dealing with these taxes rejected the contention and assessed him as an individual on the ground that succession to the property of a person married under the , is governed by the and not by ordinary Hindu Law and Nicolas Sundaram could not become a member of Hindu Undivided Family With his father.
these orders were affirmed by the Appellate Assistant Commission i the Appellate Tribunal in appeals by Sridharan against the assessments.
On further applications made by Sridharan, the Income Tax Appellate Tribunal referred the matter to the High Court which decided in favour of Sridharan but granted a certificate of fitness.
Meanwhile, Sridharan died, and his widow filed wealth tax returns, claiming the status of a member of Hindu Undivided Family.
The Revenue authorities followed their earlier decisions, and ultimately the matter was referred to the High Court which decided in favour of respondent Mrs. Sridharan, but granted Leave to appeal to this Court.
Dismissing the appeals, the Court, ^ HELD: ( 1 ) Under the codifying, Acts.
the orthodox concept of the term "Hindu" has undergone a radical change and it has been given an extended meaning.
The Acts not only apply to Hindus but also to a large number of other persons.
Any child legitimate or illegitimate, one of whose parents is a Hindu by religion and who is brought up as a Hindu, is a Hindu.
[478D E] (2) Section 21 of the has no bearing on the present case.
The section does not in any way impair or alter the joint family structure between n assessee and his son.
Nor does it affect the discretion vested in a Hindu assessee to treat his properties as joint family properties by taking into his fold his Hindu sons so as to continue joint family properties [479 A C] Shastri Yagnapurushdasji & Ors.
vs Muldas Bhundardas Vaishya and Anr. ; ; Bhagwan Koer vs J. C. Bose & Ors.
11; Lingappa vs Esudasan ; Mothey Anja Ratna Raja Kumar vs Koney Narayana Rao & Ors.
AIR 1953 SC 433 and Ananthaya vs Vishnu , referred to.
Webster 's 3rd New International Dictionary of the English Language; Encyclopaedia Britannica (15th Edn.); Gitarahasya by B. G. Tilak Principles of Hindu Law (14th Edn.) pp. 671 and chap.
I para 6 by Mulla, and Hindu Law & Usage (11th Edn.) pp. 290 by Mayne, referred to.
|
: Criminal Appeal No. 99 of 1976.
Appeal by Special Leave from the Judgment and order dated 16 12 75 of the Karnataka High Court in Criminal Petition No. 50 of 1975.
N. B. Datar and R. B. Datar for the Appellant.
M. C. Bhandare, (Mrs.) section Bhandare, M. section Narsimhan Sharma, and A. K. Mathur for Respondents I and 2.
Narayan Nettar for Respondent No. 3.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave is directed against the judgment of the Karnataka High Court by which it set aside the order of the Additional Judicial Magistrate, First Class, Gokak issuing process against respondents 1 & 2 in exercise of his discretion under section 204 of the Code of Criminal Procedure.
The facts of the case lie within a very narrow compass and although the High Court has taken great pains to write a laboured judgment the point involved is short and simple and does not merit a detailed discussion.
The police of Gokak Police Station submitted a charge sheet against Nagappa Giddannavar and seven others under sections 302, 114, 148, 147 and other sections on the allegations that on July 19, 1973 the accused persons had waylaid and murdered one Nagappa son of the appellant in this Court.
The appellant, who had filed the report before the police does not appear to have bean satisfied with the investigation by the police which according to her was tainted and had suppressed some important materials, filed a complaint before the Magistrate at Gokak on October 4, 1973 alleging that respondents 1 & 2 had in fact abetted the offence of murder committed by the other accused but as they were influential 125 persons their names were deliberately left out in the report as also in the dying declaration.
On receiving the complaint on October 4, 1973 the Magistrate decided to hold an inquiry into the complaint himself and in pursuance of his decision he recorded some evidence on October 8, 1973.
Thereafter the case was posted for October 10, 1973 for arguments and further evidence, if any.
On October 10, 1973 the Magistrate observed that six witnesses had been examined and the evidence recorded so far was sufficient for the Court to determine the question as to whether or not process should be issued to respondents 1 & 2.
He then adjourned the case for argument for October 12, 1973.
On that day arguments were heard but before any order could be passed the Magistrate who had recorded the evidence was transferred and therefore the case had to be adjourned.
The new Magistrate took up the matter on November 26, 1973 and after hearing the complainant he adjourned the case to December 3, 1973 and on this day he directed that further inquiry may be made by Superintendent of Police, Belgaum and he accordingly referred the matter for inquiry and report to the Superintendent of Police, Belgaum asking him to submit his report within six weeks.
It seems to us that in view of the change of the Magistrate the successor Magistrate was not able to grasp the implications of the proceedings which had been taken by his predecessor who had in fact first decided to hold an inquiry himself and after recording the evidence had decided to pass an order under section 204 of the Code of Criminal Procedure.
Before however he could pass any order he was succeeded by the present Magistrate.
The appellant filed an application in revision to the High Court on December 11, 1973 against the order of the Magistrate dated December 3, 1973 referring the matter to the Superintendent of Police for inquiry and report.
While the application was pending before the High Court, respondents 1 & 2 filed a petition before the High Court praying for an early hearing of the revision and for vacation of the stay order.
Along with this petition the respondents filed a number of documents including the copies of the petitions sent by the appellant to the Chief Minister and the Speaker.
We might indicate here that there was absolutely no occasion for the respondents to have filed the documents before the High Court in a miscellaneous petition nor did they obtain any permission of the Court for filing those documents.
The High Court, after hearing the revision application filed be the appellant, allowed the same mainly on the ground that as the Magistrate had ultimately decided to hold an inquiry into the truth or falsehood of the complaint himself he had no jurisdiction to stop that inquiry and then make a reference to the police afresh.
The High Court accordingly quashed the order of the Magistrate and directed him to decide the case in accordance with the law after recording further evidence, if any.
It appears that the High Court did not give any directions to the Magistrate for considering the documents which had been filed by the respondents before it but by a subsequent order merely forwarded the documents to the Magistrate.
The papers were sent back to the Magistrate on January 7, 1975 and by his order dated January 27, 1975 the Magistrate was informed that the appellant did not want to adduce any further evidence.
The matter was accordingly posted for argument on February 7, 1975 and after hearing the 126 arguments and considering the evidence recorded by the Magistrate he by his order dated February 11, 1975 directed process to be issued against respondents 1 & 2 under section 204(1) (b) of the Code of Criminal Procedure.
Respondents 1 & 2 then preferred a revision against this order to the High Court under section 482 of the Code of Criminal Procedure praying that the order of the Magistrate may be quashed.
This revision was allowed by the High Court by the impugned order against which special leave was granted by this Court at the instance of the appellant.
In support of the appeal Mr. H. B. Datar submitted that the Magistrate had given cogent reasons for holding that there were sufficient grounds for proceeding against respondents 1 & 2 and the High Court was in error in interfering with the order of the Magistrate by examining the merits of the case after taking into consideration the documents filed by the respondents which could not be looked into by the Magistrate as they did not form part of the complaint or the evidence recorded in support thereof.
In our opinion the contention raised by the learned counsel for the appellant is well founded and must prevail.
Mr. M. C. Bhandare sought to repel the argument of the appellant on the ground that the order of the Magistrate was perverse and as the case was full of patent absurdities and was politically motivated the prosecution of respondents 1 & 2 would amount to unnecessary harassment resulting in abuse of the process of the Court.
In the view we take in the instant case it is not necessary for us to enter into the merits of the case at this stage.
It is well settled by a long catena of decisions of this Court that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused.
It is not the province of the Magistrate to enter into a detailed discussion of the merits or demerits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one.
In Chandra Deo Singh vs Prokash Chandra Bose(1) this Court had after fully considering the matter observed as follows: "The courts have also pointed out in these cases that what the Magistrate has to see is whether there is evidence in support of the allegations of the complainant and not whether the evidence is sufficient to warrant a conviction.
The learned Judges in some of these cases have been at pains to observe that an enquiry under section 202 is not to be likened to a trial which can only take place after process is issued, and that there can be only one trial.
No doubt, as stated in sub section(1) of section 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant (1) (1964)1 section C. R. 639, 648 127 and the statements made before him by persons examined at the instance of the complainant.
" Indicating the scope, ambit of section 202 of the Code of Criminal Procedure this Court in Vadilal Panchal vs Dattatrya Dulaji Ghadigaonker and Another(1) observed as follows: "Section 202 says that the Magistrate may, if he thinks lit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against and direct an inquiry for the purpose of ascertaining the truth or falsehood of the complaint; in other words, the scope of an inquiry under the section is limited to finding out the truth or falsehood of the complaint in order to determine the question of the issue of process.
The inquiry is for the purpose of ascertaining the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned.
The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage; for the person complained against can` be legally called upon to answer; the accusation made against him only when a process has issued and he is put on trial."
It would thus be clear from the two decisions of this Court that the scope of the inquiry under section 202 of the.
Code of Criminal Procedure is extremely limited limited only to the ascertainment of the truth of falsehood, of the allegations made in the complaint (1) on the materials placed by the complaint before the Court.
(ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that, the accused may have.
In fact it is well settled that in proceedings under section 202 the accused has got absolutely no locus us standi and is not entitled to be heard on the question whether the process should be issued against him or not.
Mr. Bhandare laid great stress on the words "the truth or falsehood of the complaint" and contended that in determining whether the complaint is false the Court can go into the question of the broad probabilities of the case or intrinsic infirmities appearing in the evidence.
It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant ill support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him.
The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him.
Once the Magistrate has exercise his discretion it is not for (1) , 9. 128 the High Court, or even this Court, to substitute its own discretion for.
that of the Magistrate or to examine the case on merits with view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused.
These considerations, in our opinion, are totally foreign to the scope and ambit of an inquiry under section 202 of the Code of Criminal Procedure which culminates into an order under section 2042 of the Code.
Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside: (1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does net disclose the essential ingredients of an offence which is alleged against the accused; (2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and .
(4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.
The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings.
Applying these principles to the facts of facts present case it seems to US that the present case is not one in which the High Court should have quashed the proceedings.
To begin with, the order of the Magistrate dated February 11, 1975 issuing process against respondents 1 and `2 is a very well reasoned one which takes into consideration the allegations in the complaint as also the evidence adduced in support of it.
The Magistrate clearly applied his mind and has analysed the evidence into three categories (1) those witnesses who have deposed as eye witnesses regarding the actual occurrence and the part attributed to respondents 1 and 2.
The Magistrate then refers to other witnesses who corroborated the evidence of the complainant, and thirdly the Magistrate relied on the evidence of witnesses who were admittedly signatories to the dying declaration and had clearly stated on oath that the names of respondents 1 and 2 were mentioned in their presence by the deceased but were not recorded by the Police Patel in the dying declaration and in spite of the protest by the witnesses they were made to sign the dying declaration as attesting witnesses under threat and duress.
On a consideration of this evidence the Magistrate was satis 129 fied that a prima facie case against respondents 1 and 2 was made out and he accordingly issued process against them.
It was not a case where the Magistrate had passed an order issuing process In a mechanical manner or just by way of routine.
The High Court appears to have gone into the whole history of the case, examined the merits of the evidence, the contradictions and what it called the improbabilities and after a detailed discussion not only of the materials produced before the Magistrate but also of the document which had been filed by the defence and which should not have been looked into at the stage when the matter was pending under section 202, has held that the order of the Magistrate was illegal and was fit to be quashed.
In the first place the High Court ought not to have considered the document filed by respondents 1 and 2 in the previous revision without obtaining the permission of the Court and` particularly when the High Court itself gave no directions whatsoever to the Magistrate to consider those documents.
In fact the Magistrate considering the question as to whether process should be issued against the accused or not cannot be into the materials placed by the accused and therefore the High Court could not have given any such directions while disposing of the previous, revision.
The impugned order of the High Court proceeds on the basis that it was incumbent on the Magistrate to have considered the documents and their effect on the truth or falsehood of the allegations made by the complainant.
This was an entirely wrong approach As we arc clearly of the opinion that the Magistrate was fully justified in completely excluding the documents from consideration, we refrain from making any observation regarding the, effect of those documents.
In fact the documents filed by the respondents were mere copies and they were, therefore, not admissible.
At any rate, at the stage of section 202, or section 204 of the Code of Criminal Procedure as the accused had no locus standi the Magistrate had absolutely no jurisdiction to go into any materials or evidence which may be produced by the accused who could be present only to watch the proceedings and not to participate in them.
Indeed if the documents or the evidence produced by the accused is allowed to be taken by the Magistrate then an inquiry under section 202 would have to be converted into a full dress trial defeating the very object for which this section has been engrafted he High Court in quashing the order of the Magistrate completely failed.
to consider the limited scope of an inquiry under section 202.
Having gone through the order of the Magistrate we do not find any error or law committed by him.
The Magistrate was exercises ' his discretion and has given cogent reasons for his conclusion.
Whether the reasons were, good or bad, sufficient or insufficient, is not a matter which could have been examined by the High Court ill revision.
We are constrained to observe that the High Court went out of its way write a laboured judgment highlighting certain aspect of the case of the accused as appearing from the documents filed 'of them which they were not entitled to file and which were not entitled in law to be considered.
For these reasons, therefore, we arc satisfied that the order of the High Court suffers from a serious legal infirmity and the High Court 11 833 SCI/76 130 has exceeded its jurisdiction in interfering in revision by quashing the order of the Magistrate.
We, therefore, allow the appeal, set aside the order of the High Court dated December 16, 1975 and restore the order of the Magistrate issuing process against respondents 1 and 2.
At the time of granting the special leave, we has directed the Sessions Judge who was trying the original case resulting from the F.I.R. lodged before the police to stay proceedings to the extent that the judgment was not to be pronounced until this appeal was disposed of.
We understand that the Sessions case is now concluded before the learned Sessions Judge and arguments have also been heard.
1 view of the order of the Magistrate issuing process against respondents 1 and 2 which has been confirmed by us, the respondents will have to face a supplementary trial and it is not conducive in the interests of justice to allow the other trial to be stayed any further.
The Sessions Judge is therefore directed to dispose of the Sessions Case and the stay granted by this Court earlier is Vacated.
Appeal allowed.
| IN-Abs | The appellant filed a complaint before the Magistrate alleging that the police did not deliberately charge sheet unrespondents 1 and 2 despite the fact that they abetted in the murder of her son because they were influential persons.
After the inquiry the Magistrate issued a process to respondents 1 under 2 under section 204(1)(b) of the Code of Criminal Procedure, 1973.
The revision petition of respondents I and 2 filed under section 482 Cr.
P.C. was allowed by the High Court.
in appeal to this Court it was contended for.
the appellant that the High Court was in error in examining the order of the Magistrate on merits after taking into consideration the documents filed by the respondents, which did not form part of the complaint or evidence recorded in support thereof before the Magistrate.
Allowing the appeal, ^ HELD: The order of the High Court suffers from a serious legal infirmity and the High Court has exceeded its jurisdiction in interfering in revision by question the order of the Magistrate.
[129 H] (1) In the following cases an order or the Magistrate can be quashed or set aside: (a) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (b) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused.
(c) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (d) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.
[128 C E] (2) (a) At the stage of issuing the process the Magistrate is mainly concerned with allegations made in the complaint or the evidence led and he is only.
to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused.
It is not the province of the Magistrate to enter into a detailed discussion on the merits or demerits of the case.
The scope of the inquiry under section 202 Cr.
P.C. is extremely limited limited to the ascertainment of the truth or falsehood of the allegations made in the complaint: (1) on the materials placed by the complainant before the court (ii) for the limited purpose of finding out whether a prima facie case for issue of process had been made out and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have.
In proceedings under section 202 the accused has got absolutely no locus standing and is not entitled to be heard on the question whether the process should be issued against him or not.
E F] 124 Chandra Deo Singh vs Prokash Chandra Bose, ; and Vadilal Panchal vs Dattatraya Dulaji Ghadigaonker and Another, followed.
(b) In coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in evidence led by the complainant in support of the allegations.
Once the Magistrate has exercised judicially the discretion given to him it is not for the High Court or even this Court to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused.
These considerations are totally foreign to the scope and ambit of inquiry under 5. 202 of the Code of Criminal Procedure, which culminates in an order under section 204 of the Code.
[127G H; 128A B] (3) In the instant case the High Court should not have quashed the proceedings.
The order of the Magistrate was a reasoned one which took into consideration the allegations in the complaint as also the evidence adduced in support of it.
It was not a case where the Magistrate had passed an order ill a mechanical manner or just by way of routine.
The High Court could not to into this matter in its revisional jurisdiction which is a very limited one.
[ 128 F G]
|
Civil Appeal No. 1155 of 1971.
(Appeal by Special Leave from the Judgment and Order dated 17 11 1969 of the Allahabad High Court in First Appeal No. 178/61).
section C. Manchanda, Sadhu Singh, R. N. Kapoor, Mrs. Nirmala Gupta, Uzzal Singh and J. M. Khanna for the appellant.
Gobind Das, P. P. Rao, Girish Chandra and section P. Nayar for the respondents.
The Judgment of the Court was delivered by BEG, J.
This is an appeal by special leave against the judgment and order of a Division Bench of the Allahabad High Court given by it on 17th November, 1969, dismissing a plaintiff 's first appeal arising out of an original suit for a declaration that the order passed by the Commissioner of Income tax, Lucknow, on 2nd April, 1956, reducing the appellant in rank from the post of an Income tax Officer to that of an Income tax Inspector, was void and inoperative.
It appears that the appellant was in service upto 30th April 1958, when he was prematurely retired.
The appellant also claimed Rs. 20,904/ as arrears of salary, but he reduced this claim to Rs. 16,561.29.
The appellant was originally appointed on 22nd November 1922, as Lower Division Clerk, and, thereafter, promoted as Income tax Inspector in 1942.
He was promoted to the post of Income tax Officer in 1945.
His case was that he had worked to the entire satisfaction of his immediate superior officers and higher authorities and had earned a number of certificates highly appreciative of his work.
He was confirmed early in 1952 as an Income tax Officer.
He was, however, placed under suspension on 30th September, 1953, by the Commissioner of Income Tax, U.P., Lucknow, on the basis of a preliminary enquiry on allegations involving corruption and violation of service rules.
582 Charges were framed on 30th December, 1953, by Shri A. K. Bose, Deputy Director of Investigations, who was appointed by the Commissioner of Income tax as the Inquiring Officer.
The preliminary enquiry had been conducted by Shri G. section Srivastava, Inspecting Assistant Commissioner of Income tax, Meerut.
That first charge was that the appellant had entered into partnership with others, under the name of Gautam Cycle Mart, Meerut, in 1939, in contravention of the Government Servants ' Conduct Rules.
The second charge was that he had made various investments in the name of various members of his family far in excess of and disproportionate to the known sources of his income.
His high standard of living and expenditure were also mentioned there.
The third and the last charge gave particulars of thirteen assessment cases in which the appellant was alleged to be either "grossly negligent, careless, inefficient, and/or corrupt in the performance of his duties as Income tax Officer".
The appellant 's defences included alleged confused nature of charges characterized by him as "vague, over lapping, intermingled" and wrongly joined together.
He also pleaded that there had been an enquiry in 1949, by Shri A. R. Sachdeva, Asstt.
Inspecting Commissioner, into some of the matters mentioned in the charges, and about others in 1952 by Shri R. N. Srivastava, another Inspecting Commissioner, and that the appellant had been exonerated of the allegations and imputations made against him on each occasion.
One of his defences was that a fresh enquiry into the same charges was not permissible under the Departmental rules and was also barred by rules of natural justice.
He also complained of failure to give him opportunity to produce nine witnesses in his defence with some documents.
It is evident that the questions raised by the appellant depended on findings of fact.
All relevant facts had been examined by the officer who held the enquiry and by the punishing authority.
No malafides against either the Inquiring Officer, Shri A. K. Bose, Deputy Director Investigation, or against the punishing authority was alleged.
There are, however, suggestions that Shri G. section Srivastava and Shri R. N. Srivastava, Inspecting Assistant Commissioners, were pursuing the appellant for some unknown reason which we do not find stated anywhere.
We fail to see how these two officers, who neither conducted the actual departmental trial nor could have any influence over the punishing authority, could cause any miscarriage of justice or do anything to vitiate the departmental trial merely because they held preliminary inquiries before framing charges.
The defence of the appellant seemed something similar to the much too common a defence of the accused in criminal trials attributing all their misfortunes to the hostility of the police.
583 The question whether the appellant was given a reasonable opportunity to lead evidence and to be heard or not is largely a question of fact.
It is only when an opportunity denied is of such a nature that the denial contravenes a mandatory provision of law or a rule of natural justice that it could vitiate the whole departmental trial.
Prejudice to the government servant resulting from an alleged violation of a rule must be proved.
The plea that the appellant has been subjected to trial on allegations which had been the subject matter of previous enquiries overlooks that no charge was framed as a result of any previous enquiry.
Therefore, the two authorities cited: The State of Assam & Anr.
vs J. N. Roy Biswas, and R. T. Rangachari vs Secretary of State, do not help the appellant.
If an inquiry is held, at a particular stage, possibly to determine whether regular proceedings should be drawn up or started, it does not debar a departmental trial.
That was the nature of the previous enquiries.
It appears that it is only after the appellant 's activities had become more notorious that further enquiry was undertaken and regular charges framed.
It is possible that the appellant may have been emboldened by the failure of officers to report earlier that charges should be framed and tried.
In any case, this could not stand in the way of the first regular enquiry in the course of which charges were actually framed and fully enquired into by Officers whose integrity and sense of justice is not challenged.
As for the denial of the opportunity to produce nine witnesses in defence, all that is suggested is that these witnesses could only state what opinions they had formed about the work, efficiency, and integrity of the appellant.
They could not say anything about the particular instances which formed the subject matter of the charges against the appellant.
It is not uncommon for astute Govt.
servants, facing such enquiries, to give long lists of witnesses and documents so as to either prolong an enquiry or to prepare grounds for future litigation.
Unless the exclusion of evidence is of a kind which amounts to a denial of natural justice or would have affected the final decision it could not be material.
In the case before us, it has not even been shown how the witnesses whose production was said to have been disallowed could help the appellant 's case on specific charges.
Indeed, we do not know whether any evidence which the appellant tried to produce was really wrongly excluded and at what stage and for what reasons.
All these are questions of fact which should be, initially, raised in the departmental trial.
After that, if there was any patent error a writ petition lay.
Finally, the 584 trial Court and the High Court had considered at some length all relevant questions raised.
Learned Counsel for the appellant has handed over a very carefully and laboriously prepared statement of facts of the case to show us that the evidence did not support the charges levelled against the appellant.
It was also submitted that, apart from the charges relating to partnership in the Gautam Cycle Mart, no other charge was found substantiated.
Furthermore, it was submitted that, after the inquiring officer had found that the Gautam Cycle Mart was started in 1942 and not in 1939, the appellant should have been given a further opportunity to meet a new case.
No rule was cited in support of such a technical objection to the nature of the charge which would cover the starting of the Gautam Cycle Mart at any time subsequent to 1939 also.
In any case, it was for the appellant to satisfy the Departmental authorities, which had looked into the case upto its final stages, that he had suffered some injustice which to be set right.
He had been given a second opportunity by the punishing authority before it inflicted the punishment of demotion.
Nothing further was required by law.
And, it was probably because the appellant was absolved of charges involving corruption in the discharge of his duties that he was given the lesser punishment of demotion and neither dismissed nor removed from service.
A suit challenging the validity of departmental proceedings cannot be treated as an appeal from the findings in the departmental proceedings or the punishment inflicted upon the Govt.
servant even if these are erroneous.
A question which could effect the result in a civil suit has to be of such nature that it goes to the root of the jurisdiction and the conduct of the department trial and vitiates the result.
It is only if the departmental proceeding in null and void that a plaintiff in such a suit could obtain the relief he had asked.
We are unable to see what point had been raised by the appellant which could have had that effect upon the departmental proceedings.
In Smt.
Ujjam Bai vs State of & Anr.
, this Court said (at P. 835): "A tribunal may lack jurisdiction if it is improperly constituted, or if it fails to observe certain essential preliminaries to the inquiry.
But it does not exceed its jurisdiction by basing its decision upon an incorrect determination of any question that it is empowered or required (i.e.) has jurisdiction to determine".
After citing a passage from Halsbury 's Laws of England, 3rd Edn.
11, page 59, this Court held (at p. 836): 585 The characteristic attribute of a judicial act or decision is that it binds, whether it be right or wrong.
An error of law or fact committed by a judicial or quasi judicial body cannot, in general, be impeached otherwise than on appeal unless the erroneous determination relates to a mauer on which the jurisdiction of that body depends.
These princi ples govern not onnly the findings of inferior courts stricto strictio also the findings of administrative bodies which are deemed be acting in a judicial capacity.
Such bodies are deemed to have been invested with power to err within the limits of their jurisdiction; and provided that they keep within those limits, their decisions must be accepted as valid unless set aside on appeal".
Learned Counsel for the appellant said all that could possibly be said on behalf of his client.
He pointed out that the High Court had given its judgment eight months after it had heerad argumenst.
He urged that the result was that the High Court did not deal with a number of submissions made because they had, apparently, been forgotten.
The Civil Procedure Code does not provide a time limit for the period between the hearing of arguments and the delivery of a judgment.
Nevertheless, we think that an unreasonable delay between hearing of arguments and delivery of a judgment, unless explained by exceptional or extraordinary circumstances, is highly undesirable even when written arguments are submitted.
It is not unlikely that some points which the litigant considers importan may have escaped notice.
But, what is more important is the litigants must have complete confidence in the results of litigation.
This confidence tends to be shaken if there is excessive delay between hearing of arguments and delivery of judgments.
Justice, as we have often observed, must not only be done but must manifestly appear to be done.
On 4th March, 1971, however, the High Court refusing the certificate of fitness of the case for appeal to this Court observed that questions had been attempted to be raised before it in asking for certification which had not been argued at the time when the first appeal was heard by the High Court.
We find that one of the learned Judges who dismissed the application for a certificate of fitness of the case had also heard the arguments in the first appeal.
There is no affidavit before us that any particular points argued before the Division Bench had not been referred to or dealt with by the Bench.
Moreover, the Division Bench had probably not dealt with all arguments on questions of fact because it did not consider it necessary to do so.
After all, it was not hearing an appeal against the findings of the departmental authorities.
It pointed this out.
Furthermore, after hearing the arguments of the learned Counsel for the appellant, we are ourselves unable to see any point which could be raised on behalf of the appellant capable of vitiating the departmental proceedings.
Unless such a point could be raised, there could be no declaration that the departmental proceedings were null and void.
There is also an application before us for revocation of grant of special leave to appeal by this Court on the ground that some material 586 facts were suppressed or misrepresented for the purpose of obtaining special leave.
Although the special leave petition does not state that all the points sought to be raised by it were not argued before the Division Bench, this is not enough to merit cancellation of the special leave to appeal which was granted by this Court.
At the time of grant of special leave, the order refusing grant of certificate of fitness of the case for appeal to this Court must have been before this Court.
We are unable now to see the point on which special leave was granted.
But, that too would not, by itself, merit a revocation of special leave at this stage after hearing arguments.
We, therefore, dismiss both the appeal and the application for revocation of special leave.
Parties will bear their own costs.
P.B.R. Appeal dismissed.
| IN-Abs | After holding a departmental enquiry on certain charges of contravention of Government Servants ' Conduct Rules, the appellant was reduced in rank.
His suit for a declaration that the impugned action was void and inoperative was dismissed.
The High Court dismissed his appeal.
On appeal, it was contended that the departmental enquiry was vitiated on account of material irregularities, and that, as a result of excessive delay, between the date of hearing and delivery of judgment by the High Court, it did not deal with a number of submissions made by him and thereby caused prejudice.
Dismissing the appeal to this Court, ^ HELD: (1)(a) The question whether the appellant was given a reasonable opportunity to lead evidence and was sufficiently heard or hot is largely a question of fact.
It is only when an opportunity denied is of such a nature that the denial contravenes mandatory provision of law or a rule of natural justice that it could vitiate the whole departmental trial.
Prejudice to the Government servant from an alleged violation of a rule must be proved.[583C] (b) The plea that the appellant had been subjected to trial on allegations which had been the subject matter of previous enquiries overlooks that no charge was framed as a result of any previous enquiry.
If an enquiry was held at a particular stage, possibly to determine whether regular proceedings should be drawn up or started, it did not debar a departmental trial.
[583D] State of Assam & Anr.
vs J. N. Roy Biswas ; and R. T. Rangachari vs Secretary of State, AIR 1937 PC 27, held inapplicable.
(c) It was not shown whether any evidence which the appellant tried to produce was really wrongly excluded and at what stage and for what reasons.
All these are questions of fact which should be raised in the departmental trial.
After that if there was any patent error a writ petition lay.
[584A] (d) A suit challenging a departmental proceeding cannot be treated as an appeal from the findings in those proceedings or against a punishment inflicted upon the Government servant even if these were erroneous.
A question which could affect the result in a civil suit has to be of such a nature that it goes to the root of the jurisdiction that the conduct of the departmental trial illegally and vitiates the result.
It is only if the departmental proceeding is null and void that a plaintiff could obtain the reliefs he had asked for.
[584E F] Smt.
Ujjam Bai vs State of U.P. & Anr.
[1963] 1 S.C.R. 778 @ 835, 836, referred to.
(e) Unless a point could be raised on behalf of an appellant which is capable of vitiating the departmental proceedings there could be no declaration that the departmental proceedings were null and void.
[585H] 581 (2) The Civil Procedure Code does not provide a time limit for the period between the hearing of arguments and the delivery of a judgment.
Nevertheless, an unreasonable delay between the hearing of arguments and delivery of judgment, unless explained by exceptional or extraordinary circumstances, is highly undesirable even when written arguments were submitted.
It is not unlikely that some points which the litigant considered important might have escaped notice.
But, what is more important is that litigants must have complete confidence in the results of litigation.
This confidence tends to be shaken if there excessive delay between hearing of arguments and delivery of judgments.
|
Civil Appeal No. 1599 of 1968.
Appeal by Special Leave from the Judgment and Order dated the 16th February 1968 of the Calcutta High Court in Civil Rule No. 1030 of 1967.
D. N. Mukherjee and N. R. Chaudhury for the Appellants.
Sukumar Ghosh for the Respondent.
The Judgment of the Court was delivered by GUPTA, J.
This appeal by special leave is directed against a Judgment of the Calcutta High Court setting aside in revision the finding of the trial court on the issue whether the relationship of landlord and tenant subsisted between the parties in a suit for ejectment.
The issue which arises on the interaction of two statutes, the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 and the West Bengal Premises Tenancy Act, 1956, which repeals the earlier Act but keeps it alive for proceedings pending on the date of repeal, involves the question, is the right conferred on the sub tenant by the 1956 Act of being declared a tenant directly under the superior landlord available to a sub tenant against whom a suit for ejectment was pending when that Act came into force ? The appeal turns on the answer to this question.
The material facts leading to the impugned order are these.
The respondent was a tenant of premises No. 17/1E Gopal Nagar Road, Alipore, Calcutta, and his landlord was one Jagabandhu Saha, the owner of the house, Dilip Narayan Roy Chowdhury was a sub tenant under the respondent in respect of the ground floor flat paying a monthly rent of Rs. 75/ .
The respondent instituted a suit in the Munsif 's court at Alipore on March 21, 1956 when the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 was in force, seeking to evict Roy Choudhury on the ground that he was a defaulter in payment of rent.
This Act was a temporary statute due to expire on March 31, 1956, but on that date the West Bengal Premises Tenancy Act, 1956 was brought into operation repealing the 597 temporary Act before it expired.
The material part of section 40 of the 1956 Act which repealed the 1950 Act is as follows: "Repeal and savings. (1) The West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (in this section referred to as the said Act), is hereby repealed.
(2) Notwithstanding the repeal of the said Act: (a) any proceeding pending on the 31st day of March, 1956, may be continued, or, (b) x x x x x as if the said Act had been in force and had not been repealed or had not expired :" Section 16 of the 1956 Act confers on the sub tenant the right to become a tenant directly under the landlord.
Sub section (2) of section 16 provides inter alia that where before the commencement of this Act, the tenant, with or without the consent of the landlord, has sublet any premises either in whole or in part, the tenant and every sub tenant must give notice to the landlord of such subletting within the prescribed period.
Sub section (3) of section 16 provides that in any such case where the landlord had not consented in writing or denies that he gave oral consent, the Rent Controller on an application made to him either by the landlord or the sub tenant shall make an order declaring that the tenant 's interest in so much of the premises as has been sublet shall cease and that the sub tenant shall become a tenant directly under the landlord from the date of the order.
The Rent Controller is also required to fix the rent payable by the sub tenant to the landlord from the date of the order.
Sub tenant Roy Choudhury served a notice under section 16(2) of the 1956 Act upon the superior landlord and applied under section 16(3) for being declared a tenant directly under him.
On July 31, 1956 the Rent Controller recorded a finding on this application that Roy Choudhury was entitled to the declaration asked for overruling the objections raised by the respondent.
On February 23, 1957 the Rent Controller concluded the proceeding under section 16(3) by finally declaring that the sub tenant was a tenant directly under the superior landlord with effect from that date, and fixing the rent payable by him.
The appeal preferred by the respondent from this order was dismissed by the appellate authority.
In the meantime, on August 21, 1956 the respondent had made an application under section 14(4) of the 1950 Act in the suit for eviction which was pending.
Section 14(4) of the 1950 Act permitted the landlord to make an application in the suit for an order on the tenant to deposit month by month the rent at the rate at which it was last paid and also the arrears of rent, if any, and provided that on failure to deposit the arrears of rent or the rent for any month within the period prescribed for such deposits, the court would make an order striking out the tenant 's defence against ejectment so that the tenant would be in he same position as if he had not defended the claim to 598 ejectment.
On this application the Munsif on September 26, 1956 directed the appellant to deposit a certain sum as arrears of rent and also rent month by month at the rate of Rs. 75/ .
After the declaration of tenancy under section 16(3), Roy Choudhury was permitted to amend his written statement in the suit by adding a paragraph questioning the relationship of landlord and tenant between the respondent and himself.
It is unnecessary to refer to the various proceedings in the suit that followed, in the course of which the High Court was moved more than once by either party.
On January 24, 1965 Roy Choudhury died and the present appellants were substituted in his place in the suit as his heirs and legal representatives.
On November 1, 1965 the Munsif framed an additional issue, being issue No. 9, which was as follows: "Has the alleged relationship of landlord and tenant between the parties been determined by final orders dated 31 7 56 and 23 2 57 passed by the R. C. (Rent Controller) Calcutta in Case No. 243B of 1956 ?" The Munsif took up for consideration the application under section 14(4) and the additional issue No. 9 together and by his order dated February 20, 1967 found that the Rent Controller had jurisdiction to pass the order under section 16(3) declaring the defendant to be a direct tenant under the superior landlord, and that the relationship of landlord and tenant between the parties ceased by virtue of the order made under section 16(3).
The additional issue No. 9 was accordingly decided in favour of the defendant and the application under section 14(4) of the 1950 Act was dismissed.
The plaintiff moved the High Court in revision against this order.
The revision case was disposed of on February 16, 1968, the learned Judge maintained the order rejecting the application under section 14(4) but set aside the finding on issue No. 9 and held that "for the purposes of the present suit for ejectment there is a relationship of landlord and tenant".
The propriety of this order is challenged by the tenant defendants.
In the course of his Judgment the learned Judge recorded the following findings: (i) "The validity or the binding nature of the order under section 16(3) of the 1956 Act cannot be challenged nor can it be found in this suit to be inoperative".
(ii) The rights arising out of a valid proceeding under section 16(3) cannot be overlooked in spite of the non obstante clause in section 40 of the 1956 Act and the effect of the order under section 16(3) has to be considered in the suit.
(iii)As the proceeding under section 16(3) was started during the pendency of the suit, the principle underlying section 52 of the Transfer of Property Act should apply to this case and "the decision made in the proceeding under section 16(3) would not control the decision in the ejectment suit".
599 It thus appears that the High Court was of the view that in spite of section 40 providing that a pending proceeding would continue to be governed by the provisions of 1950 Act as if that Act had not been repealed or had not expired, the order made under section 16(3) of the 1956 Act must be given effect to.
The High Court however held that the proceeding under section 16(3) having been initiated during the pendency of the suit, the principle of lis pendens should apply and accordingly the order under section 16(3) would not govern the suit Before us, counsel for the respondent did not rely on section 52 of the Transfer of Property Act, but sought to support the decree on the ground that in view of section 40, the entire proceeding under section 16(3) was without jurisdiction.
The doctrine of lis pendens can of course have no application to this case.
Section 52 of the Transfer of Property Act forbids alienations pendente lite providing inter alia that the property forming the subject matter of a pending suit cannot be transferred or otherwise dealt with by any party to the suit so as to affect the rights of any other party under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.
The doctrine of lis pendens means that no party to the litigation can alienate the property in dispute so as to affect the other party, and rests "upon this foundation, that it would plainly be impossible that any action or suit could be brought to a successful termination if alienations pendente lite were permitted to prevail".
[observation of Turner L. J. in Belamy vs Sabine, ; (584) quoted with approval by the Privy Council in Faiyaz Husain Khan vs Munshi Prag Narail & others, 34 I.A. 102 (105).] But a sub tenant who avails of the provisions of section 16(3) which extinguishes the tenant 's interest in the portion of the premises sublet and confers on the sub tenant the right to hold the tenancy directly under the superior landlord, cannot be said to have alienated proporty pendente lite.
Section 5 of the Transfer of Property Act defines transfer of property as an act by which a living person conveys property to another.
When the legislature in exercise of its sovereign powers regulates the relations of landlord and tenant, altering or abridging their rights, what it does is not transfer of property attracting the doctrine of lis pendens.
As stated already, counsel for the respondent put his case on the provisions of section 40 of the 1956 Act.
According to him the suit must continue to be governed by the 1950 Act even after its repeal in view of section 40, unaffected by the provisions of the 1956 Act Section 40 of the 1956 Act keeps alive a proceeding pending on the date when the 1950 Act was repealed as if it is still in force and has not been repealdd.
This however does not mean that even if the 1956 Act created a new right in favour of the sub tenant, he would be denied this right because a suit for ejectment was pending against him when the Act came into force.
'Tenant ' as defined in section 2(h) of the 1956 Act includes a person continuing in possession after the termination of his tenancy until a decree or order for eviction has been made against him.
A sub tenant is also a tenant, and when the order under section 16(3) was made no decree or order for eviction had been passed against him.
That being so, we do not see why he 600 should not be entitled to the benefit conferred by section 16(3).
The intention of the legislature, which is paramount, is clear to upgrade the subtenant and make him a tenant directly under the superior landlord.
This is a new right given to the sub tenant, and though the pending proceeding may continue to be regulated by the repealed statute in view of section 40, there is nothing in that section to suggest that the sub tenant against whom a suit was pending will be denied this additional right.
The High Court has held that the effect of the order under section 16(3) must be considered in the suit.
Thus the suit may continue in spite of the repeal of the 1950 Act, but the right acquired by the sub tenant under the 1956 Act has to be given effect to and the suit decided accordingly.
It must therefore be held that the relationship of landlord and tenant ceased between the parties on the date when the order under section 16(3) was made.
The appeal is allowed, the order of the High Court appealed from is set and that of the trial court restored.
The appellants will be entitled to their costs in this Court and in the High Court.
P.H.P. Appeal allowed.
| IN-Abs | The respondent was the tenant of the suit premises and Dilip Narayan Roy Choudhury was his sub tenant.
The tenant instituted a suit against the subtenant when the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 was in force seeking to evict the sub tenant on the ground that he was a defaulter in payment of rent.
After the suit was instituted.
West Bengal Premises Tenancy Act, 1956, was brought into operation.
Section 40 of the subsequent Act repealed the 1950 Act and further provided that not withstanding the repeal of the said Act any proceedings pending on the date of the repeal may be continued as if the said Act had been in force and had not been repealed or had not expired.
Section 16 of the 1956 Act confers on the sub tenant, on his complying with certain conditions the right to become a tenant directly under the landlord and authorise the Rent Controller to pass necessary orders directing that the sub tenant shall become tenant directly under the landlord from the date of the order.
The sub tenant adopted proceedings under section 16 of the Act against the superior landlord and in February, 1957, the Rent Controller held that the sub tenant was entitled to the declaration asked for over ruling the objections raised by the tenant.
An appeal filed by the tenant against the said order was dismissed.
Thereafter, the sub tenant amended his written statement in the suit for eviction filed by the tenant against him and pleaded that the relationship of the landlord and tenant between the tenant and the sub tenant no longer subsisted.
The Munsiff dismissed the application for eviction filed by the tenant on the ground that in view of he order passed under the 1956 Act declaring the sub tenant to be a direct tenant under the landlord the relationship of landlord and tenant between the parties ceased.
In a revision, the High Court maintained the order rejecting the application for eviction but set aside the finding that the relationship of the landlord and tenant between the tenant and the sub tenant ceased.
The High Court held that in spite of section 40 of the repealing Act, section 16(3) of the Repealing Act must be given effect to.
The High Court, however, took the view that the proceedings under section 16(3) having been initiated during the pendency of the suit the principle of lis pendens would apply and, accordingly, the order under section 16(3) would not govern the suit.
In an appeal by special leave by the heirs of the sub tenant, the counsel for the respondent did not rely on section 52 of the Transfer of Property Act but sought to support the decree on the ground that in view of section 40 of the Repealing Act the entire proceedings under section 16 was without jurisdiction.
Allowing the appeal, ^ HELD: (1) The doctrine of lis pendens can have no application to this case.
The doctrine of lis pendens means that no party to the litigation can alienate the property in dispute so as to affect the other party and rests upon the foundation that it would plainly be impossible that any action or suit could be brought to a successful termination after alienation pendente lite.
Section 596 5 of the Transfer of Property Act defines transfer of property as an act by which a living person conveys property to another.
When the Legislature in exercise of its sovereign powers regulates or alters the rights of landlord and tenant, what it does is not transfer of property attracting the doctrine of lis pendens.
[599B, C F] (2) It is true that in view of section 40 of the Repealing Act a pending proceeding may be continued as if the Repealing Act was not passed.
This, however, does not mean that even if the 1956 Act created a new right in favour of the tenant, he would be denied this right because a suit for ejectment was pending against him when the Act came into force.
The intention of the Legislature, which is paramount, is clear to upgrade the sub tenant and make him a tenant directly under the superior landlord.
A sub tenant is a tenant within the meaning of section 2(h) of the Repealing Act.
Thus, the suit must continue under the 1950 Act but the right acquired by the sub tenant under 1956 Act has to be given effect to and the suit decided accordingly.
Therefore, the relationship of landlord and tenant ceased between the parties on the date when the order under section 16 was made.
[599F H, 600B C]
|
os. 621, 655 and 678 of 1955.
Under Article 32 of the Constitution for the en forcement of fundamental rights.
N.C. Chatterjee (section K. Kapur and Ganpat Rai, with him) for the petitioners.
533 M. C. Setalvad, Attorney General for India (Kan Singh and P. G. Gokhale, with him) for respondent No. 1.
K.R. Chowdhury, for Goma, Ghisa and Rama, respondents in Petition No. 655 and Dhira, respondent in petition No.678.
September 27.
The judgment of the Court was delivered by VENKATARAMA AYYAR J.
These are applications under article 32 of the Constitution by certain jagir dars of Marwar, challenging the constitutionality of sections 81 to 86 of the Marwar Land Revenue Act No. XL of 1949 (hereinafter referred to as the Act) on the ground that they infringe the fundamental rights of the petitioners under article 14, article 19(1) (f) and article 31(2) of the Constitution.
These sections provide for fixing fair and equitable rent payable by the tenants and prescribe the procedure to be followed therefor.
Section 81 of the Act provides that when any local area has been brought under settlement operations by a notification under section 64, the Settlement Officer or an Assistant Settlement Officer shall inspect every village in the local area, divide it into soil classes and assessment circles, select rentrates for the area and publish them in such manner as may be prescribed.
If objections to these proposals are received, he has to consider them, and submit his report to the Board of Revenue.
The Board has the power to sanction the proposals with or without any modifications, and it has also the power to direct further enquiry into the matters.
With a view to arriving at fair and equitable rates, the Settlement Officer is required under section 82 to have regard to the collection of rent and cesses in the nature of rent during the ten years preceding the settlement excluding such years as the Government may, by notification in the Official Gazette, declare to be abnormal the average of the prices of agricultural produce during the same period, the nature of the crops grown and the quantity of the produce and their value.
Section 82(2) provides that the rent rates shall not 534 exceed one third of, the value of the produce of unirrigated lands and one fourth of the value of the produce of irrigated lands.
Under section 84, the Settlement Officer shall determine rents whether by way of abatement, enhancement or commutation payable for all holdings in the occupation of tenants on the basis of the rates sanctioned by the Board of Revenue.
Section 86 enacts that any rent fixed by order of the Settlement Officer shall be payable from the first day of July next following the date of such order, "unless the Settlement Officer thinks fit for any reasons to direct that it shall be payable from some earlier date".
Acting under section 81 of the Act, the Settlement Officer formulated certain proposals with reference to the rent rates in the villages comprised in the jagirs of the petitioners, and they were published in the Gazette on 12th December 1953.
Objections to those rates were filed by the petitioners on the 12th January, 1954.
On 13th October 1954 the Additional Settlement Commissioner submitted his final proposals to the Settlement Officer, who forwarded the same to the Board of Revenue for sanction.
After making further enquiry, the Board passed an order on 4 12 1954 determining the rent rates payable.
Subsequent to this, an order was also passed under section 86 of the Act bringing the sanctioned rate into operation from 1 7 1954.
This order is not itself the subject of attack in these proceedings, and it cannot be, seeing that Petition No. 621 of 1954 was filed on 24th November 1954 before that order was passed, and Petitions Nos. 655 and 678 of 1954 merely repeat verbatim the allegations in Petition No. 621 of 1954.
Before us, the petitioners conceded that they were not impugning the correctness of the order passed under section 86 in so far as it gave operation to the rates of rent from 1st July, on its merits, but that they were attacking the section as bad only as a step in establishing that the scheme of the Act, of which section 86 is an integral part is, taken as a whole, an infringement of their fundamental rights under articles 14, 19 and 31(2).
We have now to consider 535 whether sections 81 to 86 of the Act are bad as infringing the above provisions of the Constitution.
The contention that sections 81 to 86 of the Act are void as being repugnant to article 14 is sought to be made out on two grounds.
It is stated firstly that the Act applies ' only to what was prior to its merger the State of Marwar, that the present State of Rajasthan comprises Marwar and 17 other States which have merged in it, and that as the Act, as it stands, is directed against the jagirdars in one area of the State and not the whole of it, it has become discriminatory and void.
This contention is clearly untenable.
What article 14 prohibits is the unequal treatment of persons similarly situated, and therefore before the petitioners can claim the protection of that article, it is incumbent on them to establish that the conditions which prevail in other areas in the State of Rajasthan are similar to those which obtain in Marwar.
But of this, there has been neither allegation nor proof.
On the contrary, it is stated by the respondents in para 10 of their statement that the tenants in the jagirs of Marwar were paying much more by way of rent and cesses than those in the Khalsa area of the State, that with a view to remove the inequality between the two classes of tenants within the State, a law was passed in 1943 providing for settlement of rent, and that again on 10 1 1947 another law was passed abolishing all cesses (lags) and fixing the maximum share of rent payable in kind.
These special features, it is argued, form sufficient justification for a separate legislation for this area, It is also stated that the other States had their own rent laws suited to their conditions.
There are no materials on which we could hold that the impugned Act is discriminatory in character, and we cannot strike it down merely on the ground that it does not apply to the whole of the State of Rajasthan.
A similar question arose for decision in Bowman vs Lewis(1).
There, some of the areas in the State of Missouri were governed by a judicial procedure diff (1) ; 68 536 erent from that which prevailed in others.
Repelling the contention that this differentiation offended the equal protection clauses of the Fourteenth Amendment, the Court observed: "Each State has the right to make political subdivisions, of its territory for municipal purposes, and to regulate their local government.
As respects the administration of justice, it may establish one system of courts for cities and another for rural districts; one system for one portion of its territory and another system for another portion.
Convenience, if not necessity, often requires this to be done, and it would seriously interfere with the power of a State to regulate its internal affairs to deny to it this right If a Mexican State should be acquired by a treaty and added to an adjoining State or part of a State in the United States, and the two should be erected into a new State, it cannot be doubted that such new State might allow the Mexican laws and judicature to continue unchanged in the one portion and the common law and its corresponding judicature in the other portion.
Such an arrangement would not be prohibited in any fair construction of the Fourteenth Amend ment.
It would not be based on any respect of persons or classes, but on municipal considerations alone and a regard to the welfare of all classes within the particular territory or jurisdiction".
This Court has also repeatedly held that classification might properly be made on territorial basis if that was germane to the purposes of the enactment.
Having regard to the fact that the conditions of tenants vary from locality to locality, we have no hesitation in holding that a tenancy legislation restricted to a portion of a State cannot be held on this ground alone to contravene article 14.
The second ground urged in support of the contention that article 14 has been infringed is that discrimination must result from the settlement of rent being taken up only with reference to portions of the 537 area to which the Act applies and not to the whole of it, because the rent rate is to be fixed on the basis of the average of the ten years preceding the settlement; and if the proceedings are started for different areas on different dates, that might result in different rates being fixed, and that would make for inequality such as is prohibited by article 14.
We are unable to agree with this,.contention.
Settlement operations can be conducted only by a specialised staff having technical knowledge and administrative experience, and it might be beyond the capacity of the State to undertake them for the whole area at one and the same time.
To accede to the contention of the petitioners would, in effect, be to prevent the States from carrying on settlement operations.
It was held by this Court in Biswambhar Singh vs The State of Orissa and other8(1) and in Thakur Amar Singhji vs State of Rajasthan(2) that a provision authorising the taking over of estates on different dates was not repugnant to article 14, and the principle of those decisions would apply to the present case as well.
The contention that the impugned provisions are in contravention of article 14 must, therefore, be rejected.
It is then contended that the provisions in question are repugnant to article 19(1) (f) of the Constitution, because they deprive landlords of their right to realise rents from the tenants freely and without hindrance, and are an encroahment on their right to hold property.
The provision in section 82 that the Settlement Officer should, in determining the average collection for the previous ten years,exclude from consideration abnormal years as notified by the Government was particularly attacked as a. device to reduce the rent payable to the landlord and an invasion of his rights to the property.
We are unable to agree with this contention.
The fundamental right which a citizen has to hold and enjoy property imports only a right to recover reasonable rent when the lands are cultivated by a tenant, and therefore a legislation whose object is to fix fair and equitable (1) ; , 845.
(2) ; , 538 rent cannot be said to invade that right.
The contention that the provision in section 82(1) (a) that abnormal years as notified in the Gazette should be excluded in determining average collections is calculated to reduce the rent, and is therefore unreasonable is unfounded, because a declaration that a year is abnormal is made not only when there are bumper crops but also when the yield is very low, and the provision is intended equally for the benefit of the tenant and of the landlord.
A provision of this kind is usual in all tenancy legislation, and there is nothing unreasonable or unfair about it.
It was next contended and this was the contention most pressed on us that section 86 is bad as it confers on the Settlement Officer a power to bring the rent rates into operation from a date earlier than ' the succeeding year and even retrospectively from a date prior to the settlement, and that such a power was repugnant to both article 19(1)(f) and article 31(2).
The argument with reference to Article 19(1)(f) is that section 86 is an encroachment on the rights of a person to hold property, and can be valid only if it falls within article 19(5), that it is only a law of 'a regulatory character that is protected by article 19 (5), that there could be regulation only with reference to rights to be exercised in future,.
and that a law giving retrospective operation is consequently outside article 19(5).
This contention rests on an assumption for which there is no basis.
The question whether a law is valid under.
Article 19 (5) can arise only when there is a violation of the fundamental right declared in article 19 (1) (f), and if the right to hold property imports, as we have held it does, only a fight to recover reasonable rent from cultivating tenants, that right cannot be held to have been invaded by a law fixing reasonable rent, even when it is retrospective in operation.
If the rent fixed is reasonable with reference to a period subsequent to the settlement, it must be reasonable for the period prior to it as well, and if the settlement is not an encroachment on the rights of the holder as regards the future and that is conceded it cannot be an encroachment as regards 539 the past.
A consideration, therefore, of the question whether a law under article 19(5) should be regulatory ' and whether a law with retrospective operation could be said to be regulatory would be wholly irrelevant for the purpose of the present controversy.
The argument in support of the contention that section 86 is repugnant to article 31(2) is that to the extent that it gives retrospective operation, it deprives the landlord of the right to rent which had accrued prior to the settlement, and that is taking property without payment of compensation.
But it is well settled that a law which regulates the relation of landlord with his tenant is not one which takes property within article 31(2), even though it has the effect of reducing his rights.
In Thakur Jagannath Baksh Singh vs United Provinces(1), the question arose for decision whether the provisions of Act XVII of 1939, United Provinces, under which the rent payable to a landlord became diminished were obnoxious to section 299(2) of the Government of India Act, 1935.
It was held by the Federal Court that they were not, and in affirming this decision on appeal, the Privy Council in Thakur Jagannath Baksh Singh vs United Provinces(2) observed: "The appellant relies on certain express provisions of the Government of India Act.
Thus he relies on section 299 of the Act, which provides that no person, shall be deprived of his property in British India save by authority of law, and that neither the Federal nor a Provincial Legislature shall have power to make any law authorising the compulsory acquisition of 'land for public purposes save on the basis of providing for the payment of compensation.
But in the present case there is no question of confiscatory legislation.
To regulate the relations of landlord and tenant and thereby diminish rights, hitherto exercised by the landlord in connection with his land, is different from compulsory acquisition of the land".
It was finally urged that section 86 in so far as it (1) [1948] 6 F.L. J. 55; A.I.R. 1948 F.C. 29.
(2) [1946] L.R. 73 I.A. 123.
540 conferred authority on the Settlement Officer to give retrospective operation to the rent rates was bad, because the exercise of that authority was left to his arbitrary and uncontrolled discretion, that the Act laid down no rules and prescribed no conditions under which the discretion had to be exercised, and that the power conferred in those terms must be held to be unconstitutional.
The decision in Thakur Raghubir Singh vs Court of Wards, Ajmer and another(1) was relied on, in support of this contention.
There, the question was as to the validity of a power conferred on the Court of Wards to take over the management of an estate "if a landlord habitually infringes the right of a. tenant".
Under the Act, the decision whether the condition aforesaid was satisfied depended on the subjective satisfaction of the Chief Commissioner., and that was final and not liable to be questioned in civil courts.
It was held that a power which could be exercised at the absolute discretion of the authority was an encroachment on the rights of a citizen to hold property under article 19(1)(f), and that it was not saved by article 19(5).
But, in the present case, section 86 of the Act expressly lays down that if a Settlement Officer decides to bring rates into operation from a date earlier than the following 1st of July, it must be for reasons.
There is no force in the contention that section 86 does not lay down under what circumstances such an order could be passed, because the very nature of the thing requires that a large discretion should be left to the authority.
Discretion which is wide is not necessarily arbitrary.
It was said that under section 233 of the Act the civil courts are debarred from enquiring into the reasonableness of the order; but that is because matters concerning revenue and settlement are within the exclusive jurisdiction of revenue courts, and under section 62 of the Act, the Board of Revenue has revisional jurisdiction over all orders passed in connection with settlement.
We think that the power conferred on the Settlement Officer to fix an earlier date for giving operation to the rent rate is reasonable and valid, (1) ; 541 and that it invades no fundamental rights of the landlord.
For the reasons given above, we must hold that the scheme embodied in sections 81 to 86 of the Act does not transgress any of the Constitutional limitations, and is valid.
In the result, the petitions are dismissed but in the circumstances, without costs.
| IN-Abs | The petitioners, who are jagirdars of Marwar, sought to impugn the constitutional validity of sections 81 to 86 of the Marwar Land Revenue Act which embody a scheme for fixing fair and equitable rents payable by cultivating tenants on the ground that they infringed their fundamental rights under articles 14, 19(1)(f) and 31(2) of the Constitution.
Their contentions were that after the merger of Marwar in the State of Rajasthan the Act had become discriminatory as it applied only to the jagirdars of Marwar and not to the entire body of jagirdars of the State of Rajasthan, that settlement of rents made with reference to different areas on different dates on the basis of previous ten years ' average of collections might result in different rates of rent and lead to inequality such as is prohibited by article 14, that the Act deprived the landlords of their right to realise rents from the tenants freely and without hindrance and invaded their right to hold property guaranteed by article 19(1)(f) of the Constitution, that the power conferred on the Settlement Officer by section 86 of the Act to enforce the rates of rent retrospectively is an invasion of their right to hold property and amounts to acquisition of property without compensation and that it confers absolute and uncontrolled discretion on the Settlement Officer and is an encroachment on the right to hold property.
Held, repelling these contentions, that article 14 only prohibits unequal treatment of persons similarly situated and a classification might properly be made on territorial basis, if that was germane to the purposes of the enactment and no tenancy legislation can be held to contravene the article solely on the ground that it does not apply to the entire State.
Before the petitioners could succeed it was 532 incumbent on them to show that conditions obtaining in other parts of the State were similar to those in Marwar and this they had failed to do.
Bowman vs Lewis ; , referred to.
That the provision in the Act for assessment of rents with reference to a portion of the area to which the Act applies is not a contravention of article 14.
To hold otherwise would be to make it impossible for any State to carry on its settlement operation.
Biswambhar Singh vs The State of Orissa and others; , , and Thakur Amar Singhji vs State of Rajasthan, ; , applied.
That the fundamental right to hold property in the case of a, landlord in respect of his tenanted lands is no more than the right to receive reasonable rents and no legislation which has for its object the settlement of fair and equitable rents can contravene article 19 (1)(f) of the Constitution even though it may give such rents retros pective operation.
That the provision in section 86 of the Act empowering the Settlement Officer to give retrospective operation to the rates of rent does not contravene article 19(1)(f) and, therefore, no question as to whether such a provision is not of a regulatory character and as such prohibited by article 19(5) can at all arise.
That it is well settled that a law which regulates the relation of a landlord with his tenant is not one which takes property within the meaning of article 31(2) even though it has the effect of reducing his rights.
Consequently, there is no contravention of article 31(2) of the Constitution.
Thakur Jagannath Baksh Singh vs United Provinces, [1943] 6 F.L.J. 55: A.I.R. 1943 F.C. 29 and Thakur Jagannath Buksh vs United Provinces, L.R. 73 I.A. 123, relied on.
That section 86 of the Act does not confer an absolute and uncon trolled discretion on the Settlement Officer and such power as it gives does not constitute an encroachment on the right to hold property within the meaning of article 19(1)(f) of the Constitution.
Thakur Baghubir Singh vs Court of Wards, Ajmer and another; , , explained and distinguished.
|
APPEALS Nos: 276 395 AND 397 404 OF 1975 Appeals by Special Leave from the Judgments and orders dated 21.2.72., 8.3.72., 2].2.72., 10.3.72., 21.3.72., 16.]2.71.
, 24.3.72., 21.3.72. 21.3.72., 22.3.72., 25.2.72., 8.3.72., 21.2.72., 10.3.72.
, 8.3.72.
10.3.72 10.3.72.
, 18.2.72., 16.l2.71. 9.3.73.
, 8.3.72.,25.2.72., 16.12.71.
, 25.3.72., 15.3.72., 25.3.72., 25.2.72., 25.3.72., 25.2.72., 14.3.72., .14.3.72., 21.3.
2.,14.3.72.
, 14.3.72.
21.3.72.,21.3.72.
, 14.3.72., 25.3.72., 25.372., 21.3.72., 21.3.72., 21.3.72, 21.3.72., 24.3.72, 24.3.72., 24.3.72., 24.3.72., 25.3.72., 21.3.72., 3.4.72., 21.3.72., 3.4.70.
24.3.72., 24.3.72 24.3.72., 24.3.72., 24.3.72., 24.3.72, 25.372.
, 25.3.72., 25.3.72 25.372., 25.372., 3.4.72., 3.4.72., 3.4.72., 3.4.72., 3.4.72.
, 14 3.72. 3.9.71., 3.9.71., 16.7.71., 14.3.71.
, 29.3.72., 14.3.72., 14.3.72.
, 14.3.72, 5.4.72.
, 5.4.72.
, 5.1.72., 5.4.72., 18 2 72., 23.2.72., 10.3.72.
, 20.1.72., 9.1.72.
, 31.1.72. 31.1.72., 31.1.72., 31.1.72., 8.3.72., 2.2.72 3.2.72., 25.2.72., 2.2.72., 10.3.72.
, 4.2.72.
, 25.9.72.
, 25.9.72, 6.10.72., 1.2.73.
, 13.2.73., 30.1.73., 9.4.73., 13.2.73., 14.2.72., 13.3.72., 13.3.72., 24.3.72., 18.7.72., 4.9.73. 25.2.72, 17.5.71., 21.3.72., 3.4.72., 21.3.72., 16.7.71., 5.4.72.
, In Special Appeal Nos. 616, 643, 617, 644/74 and Civil Misc Writ Nos 2268,448,2280,2254,2255/69 and Special Appeal Nos 730 752, 647,615,611,648,645605,610/71 and Civil Misc.
Writ No. 149/68 and Special Appeal No.86, 796.775/71 and W.P No. 450 69 and Writ No 451, 218, 5706 2915/69,S. A. No. 690/71 C. Misc Writ No.3037/69 and S.A. No.613/71 and C. Misc Writ No.2090/69 and Civil Misc.
Writ Nos 2094, 2119, 2122, 2172, 2188 2189 92, 2180 2182, 2187,2256, 2273, 2274,2276 2279, 2282 2284.2334 2347, 2576,2608 2611,2649 2690,2742 2743, 2759,2760,2811,2850, 2916,2918,2919,3075,3400/69 and 543 546, 786,1039,1246, 1248, 2169,3881, 4035,4428,4563,4821,211,250, 256, 7253, 607, 614, 618.628,7655.691 694, 729.
732. 751, 776, 787, 799. 805171 and Civil Misc.
Writ No.1525,1529,3387.7051,7253, 7588, 7575, 7980 and Special Appeal Nos.6,102, 115, 166,309/72 and 1902/73 and Special Appeal No.774171 and Civil Misc.
Writ No. 2121/69,2194/69 70,3375/69 and writ Petition No.3627/70,260/71 respectively.
534 B. Sen and o. P. Rana for the Appellant.
Yogeswar Prasad, section K. Bagga and (Mrs.) section Bagga, for the Respondent in CA 399/75 and 400 405/75.
(Miss) Kamlesh Bansal, for Respondent in CAs.
310, 312, 238,403,357,and 313/75 L. C. Goyal, for Respondent in CA No. 396/75.
The Judgment of the Court was delivered by JASWANT SINGH, J.
This batch of 127 appeals by special leave which are directed against various judgments rendered by the High Court of Judicature at Allahabad in writ petitions and special appeals and relate to enforcement of certain obligations of licensees for retail vend of country liquor shall be disposed of by this judgment.
The facts leading to these appeals are The State of Uttar Pradesh has,, under the U.P. Excise Act 1910 (Act No. IV of 1910) (herein after referred to as 'the Act ') which contains provisions relating to all aspects and manifestations of intoxicating liquors and intoxicating drugs, that is to say, their import, export, transport, manufacture, sale and possession, the exclusive right or privilege of manufacturing and selling liquor in that State.
Section 24 of the Act lays down that subject to the provisions of section 31, the Excise Commissioner may grant to any person a licence for the exclusive privilege (1) of manufacturing or of supplying by wholesale, or of both, or (2) of selling by wholesale or by retail, or (3) of manufacturing or of supplying by wholesale, or of both and or selling by retail any country liquor or intoxicating drug within any local area.
Section 31 provides that every licence, permit or pass granted under the Act shall be granted (a) on payment of Such fee (if any); (b) subject to such restrictions and on such conditions; (c) shall be in such form and contain such particulars, as the Excise Commissioner may direct either generally or in any particular instance in this behalf; and (d) shall be granted for such period as the State Government may, in like manner, direct.
Section 33 of The Act invests the authority granting a licence under the Act to require the grantee to execute a counterpart a agreement in conformity with the tenor of his licence and to give such security for the performance of such agreement or to make such deposit in lieu of security as such authority may think fit.
Section 28 of the Act which deals with imposition of excise duty or countervailing duty reads: "28.
(1) Duty on excisable article.
An excise duty or a countervailing duty as the case may be at such rate or rates as 535 the Local Government shall direct, may be imposed, either A generally or for specified local area, on any excisable article (a) imported in accordance with the provisions of section 12 (1); or (b) exported in accordance with the provisions of section 13; or (c) transported; or (d) manufactured, cultivated or collected under any licence granted under section 17; or (e) manufactured in any distillery established, or any distillery or brewery licensed, under section 18 . " Section 29 of the Act lays down the manner in which the duty may be levied.
One of the ways provided in the section for levy of the duty is by payment upon issue for sale from a warehouse established or licensed under section 18(d) of the Act.
Sections 40 and 41 of the Act empower the State Government and the Excise Commissioner (subject to the previous sanction of the Government) to make rules for the purposes set out therein.
These rules are contain in the Excise Manual, Uttar Pradesh (Volume I).
Paragraph 38 of the Excise Manual shows that there are four licence fee systems in vogue in the State of Uttar Pradesh.
One of such systems is 'The auction fee system ' under which the amount of licence fees inter alia for the retail sale of ' country spirit under the distillery system and for the manufacture and retail sale of country spirit under the outstill system is determined by competition among bidders.
According to paragraph 332 licences for the wholesale and retail vend of intoxicants are usually granted for the excise year which commences from April 1 and lasts upto March 31.
In accordance with the requirements of the auction system, auctions were held throughout Uttar Pradesh during the months of February and March, 1969 on various dates and at various places for the grant of licences to sell country spirit by retail at the specified shops during the excise year 1969 70.
Before holding The auctions, rates of` excise duty and prices of different varieties of country liquor as also the conditions of ' licences for sale of county spirit for 1969 7() were announced.
No announcement was, however, made as to whether the exemption from sales tax in respect of sale of country liquor granted vide Notification No. ST 1149/X 802(33) 51 dated April 6,, 1959.
issued under section 4 of the U.P. Sales Tax Act, 1948 was or was not likely to be withdrawn.
The respondents herein participated in the aforesaid auctions and being the highest bidders were granted licences for retail sale of country spirit for the period beginning from April t, 1969 to the end of March., 1970.
536 Each one of these licences contained infer alia the following condition: "3.
(a) The licensee shall lift each month the proportionate quota for the month, if any, fixed for his vend and deposit still head duty realisable thereon.
On his failure to lift the monthly proportionate quota in any month, he shall be liable to pay compensation to the State Government at the rate equal to the rate of still head duty per litre of spiced spirit and still head duty per litre of plain spirit as may be in the area in which the shop is situated on the quantity falling short of such monthly proportionate quota and such com pensation shall be paid by the 7th of the month following the month to which such shortfall relaters.
(b) He shall be bound to sell the whole quantity of country spirit obtained for the shop from the warehouse on his failure to do so, he shall be liable to pay to the State Government compensation at the rate equal to the rate of stillhead duty per litre of spiced spirit and stillhead duty per litre of plain spirit as may be in force in the area in which the shop is situated on the unsold quantity of country spirit during the period of the contract to which the licence relates.
(c) In the event of the licensee being required to pay compensation to State Government under the aforesaid condition due to the short lifting of the quota or non deposit of such compensation, the amount of said compensation may be realised from the amount of security deposited by him.
The resultant deficiency in the amount of security shall be made good by the licensee within seven days of such adjustment.
Tn case the short lifting of proportionate monthly quota or short deposit of compensation continues for two consecutive months or the license fails to make up the deficiency in the amount of security within the prescribed period of seven days his licence may be cancelled in addition to the recovery of the deficiency in payment of compensation as arrears of land revenue.
" On the day following the commencement of the aforesaid licences i.e. on April 2, 1969, the Government of Uttar Pradesh issued Notification No. ST 1603/X 900 (12)/67 under section 3 A and 4 of the U.P. sales Tas Act, 1948, superseding the earlier Notification No. ST 1149/X 802 (33) 51 dated April 6, 1959, issued under section 4 of the U. P. Sales Tax Act, 1948, and imposing sales tax on the turnover in respect of the country spirit at the rate of ten paise per rupee at the point of retail sale with immediate effect.
The respondents herein having failed to lift and sell the minimum quotas of liquor prescribed in their licences were required by the excise authorities of the State to pay, by way of compensation, the amounts of excise duty leviable on the short falls.
Aggrieved by this demand, the respondents moved the High Court under Articles 226 537 Of the Constitution for issue of appropriate writ or directions retraining the appellants herein from recovering the aforesaid amounts contending inter alia that the condition of their licences on the basis of which the demand was made was invalid, unconstitutional and unenforceable.
The respondents in six appeals Nos. 399 to 404 of 1975 also challenged Notification No. ST 1608/X 900(12)/67 (dated April 2, 1969) (supra) which superseded the earlier Notification No. ST 1149/X 802(33)51 dated April 6, 1959 and imposed sales tax on the turnover in respect of the country.
liquor at the rate of ten paise per rupee at the point of retail sale by the vendor with effect from April 2, 1969 on the ground that since the state Government did not announce at the time of the aforesaid auction that Notification No. ST 1149/X 802(33)51 dated April 6, 1959, was likely to be withdrawn and the sales of country.
liquor were likely to be subjected to the levy of sales tax during the excise year and in reply to the query made by them at the time of the auction they were told by the authorities that there was no sales tax of the sale of country liquor.
the appellants herein were estopped from making the demand in respect of sales tax and recovering the same from them.
The High Court allowed all these petitions in toto.
Having failed to secure certificates of fitness from the High Court, the appellants applied for and obtained special leave to appeal from this Court.
The common question of law that arises for determination in all these appeals is whether the condition incorporated in the licences of the respondents that they would lift the fixed minimum quantity of liquor and sell the same at their allotted shops and in case of their default or failure to d(h so, they would be liable to pay compensation equal to the amount of excise duty leviable on the unlifted quantity is valid and enforceable.
This point is no longer res integra.
In Bimal Chandra Banerjee vs State of Madhya Pradesh(1) this Court held that: "No tax can be imposed by any bye law or rule or regulation unlegs the statute under which the subordinate legislation is made specially authorises the imposition.
In the present case, the legislature has levied excise duty or countervailing duty on the excisablc articles which have been either imported.
exported.
transported, manufactured.
cultivated or collected under any licence granted under section 13? or manufactured in any distillery or brewery established or licensed number the.
Act; and the State Government has not been empowered to levy any duty on liquor which the contractors failed to lift.
Therefore, the State Government was exercising a power which it did not possess and hence the rule imposing the condition in the licences and the demand notices are invalid." Thus the aforesaid question arising for determination by us stands already settled by the ratio of the decision of this Court in Bimal Chandra Banerjees case (supra.) (1) ; 538 It will also be noticed that neither section 28 nor section 29 nor any other provision of the Act authorises the levy of the amounts sought to be recovered from the respondents.
The decision of this Court is Panna Lal and Ors.
vs State of Rajasthan and ors.(1) which is sought to be relied upon on behalf of the appellants is clearly distinguishable.
In that case, the contractual obligation of the appellants to pay the guaranteed sum or the stipulate(d sum mentioned in the licences was not dependent on the quantum on liquor sold by them and no excise duty was charged or chargeable on undrawn liquor under the licences.
The excise duty there was collected only in relation to the quantity and quality of the country liquor which was drawn.
We have, therefore, not the lightest hesitation in holding that the demand made by the appellants though disguised as compensation, is in reality a demand for excise duty on the unlifted quantity of liquor which is not authorised by the provisions of the Act.
This being the sole point involved in appeals other than Appeals Nos.
399 to 404 of 1975 the former Appeals cannot succeed.
In the result they are dismissed with costs.
Appeals Nos. 399 to 404 of 1975 which raise another point as well viz. the validity of the appellants ' demand from the respondents in respect of sales tax at the rate of ten paise per rupee on the retail sales of country spirit made by the latter with effect from April 2, 1969 stand on a slightly different footing.
Section 3 A and 4 of the U.P. Sales Tax Act, 1948 clearly authorise the State Government to impose sales tax.
The fact that sales of country liquor had been exempted from sales tax vide Notification No. ST 1149/X 802(33) 51 dated April 6 1959 could not operate as an estoppel against the State Government and preclude it from subjecting the sales to tax if it felt impelled to do so in the interest of the Revenues of the State which are required for execution of the plans designed to meet the ever increasing pressing needs of the developing society.
It is now well settled by a catena of decision that there can be on question of estoppel against the Government in the exercise of its legislative, sovereign or executive powers.
While speaking for the Court in M. Ramanathan Pillai vs State of Kerala(2) the learned Chief justice quoted with approval the following statement contained in American Jurisprudence 2d.
at page 783 paragraph 123: "In American Jurisprudence 2d at page 783 paragraph 123 it is stated ' 'Generally.
a state is not subject to an estoppel to the same extent as an individual or a private corporation.
" otherwise, it might be rendered helpless to assert its powers in government.
Therefore as a general rule the doctrine of estoppel will not be applied against the State in its governmental public or sovereign capacity." (1) [1976] t S.C.R. 219 (2) ; 539 In State of Kerala and Anr.
vs The Cawalior Rayon Silk Manufacturing (Wvg.) Co. Ltd. Ltd.(l) where the respondent company established itself in the State of Kerala for production of rayon cloth pulp on an understanding that the Government would bind itself to supply raw material and later the Government on finding that it was not able to supply the material undertook not to legislate for the acquisition of the private forests for a period of 60 years if the company purchased forest lands for the purpose of its supply of raw material and accordingly, the company did purchase 30,00 acres of private forests from an estate for Rs. 75 lakhs for the aforesaid purpose but the Government enacted Act 26 of 1971 expropriating vast forest areas without paying compensation as a measure of agrarian reform whereupon the respondent company sought to invoke the doctrine of equitable estoppel against the Government, Palekar, J. delivering the majority judgment observed: "We do not see how an agreement of the Government can preclude legislation on the subject.
The High Court 'has rightly pointed out that the surrender by the Government of its legislative powers to be used for public good cannot avail the company or operate against the Government as equitable estoppel." Approving the decision of the House of Lords in Howell vs Falmouth Boat Construction Co. Ltd. ( ') where the observations of Lord Denning in Robertson vs Minister of Pensions (8) that the action of the War office which was an agent of the Crown in assuming authority over the matter and assuring the appellant who had been serving on the army that his disability had been accepted as attributable to military service bound the Crown and through the Crown the Minister of Pensions, who while administering the Royal warrant issued by the Crown has to honour all assurances given by or on behalf of the Crown were unequivocally disapproved by observing that the character or an act done by an officer of a Government, however high or low in the hierarchy in face of a statutory prohibition, is not affected by the fact that it had been induced by a misleading assumption of authority and neither a Minister.
nor any subordinate officer of the Crown can, by conduct or representation, bar the Crown from enforcing a statutory prohibition.
It was held by Bench of this Court ill Assistant Custodian Exacuee Property and ors.
vs Brij Kishore Agarwala and Ors(4) that the Evacuee Department was not bound by the reply given by the Assistant Custodian to the first respondent 's enquiry that the property in question was not an evacuee property.
Following the above decision.
the High Court of Jammu & Kashmir has in Malhotra and Sons and Ors.
vs Union of India and ors (5).
rightly held that . "The courts will only bind the Government by its promises to prevent manifest injustice or fraud and will not make the Government a slave of its policy for all times to come when (1) [1973] 2 s.c.c. 713.
(2) (3) (4) ; (5) A.I.R. 1976 J. & K. 41.
540 the Government acts in its Governmental, public or sovereign capacity.
" We may as well refer here to the celebrated decision Of the Supreme Court of the United States in Federal Crop Insurance Corporation vs Morrill(1).
In that case where the agents of the petitioner a wholly Government owned Corporation, created by the Federal Crop Insurance Act to insure producers of wheat against loss in yields due to unavoidable causes including drought, advised the respondents in ignorance of and contrary to the duly promulgated controlling regulation which expressly precluded insurance coverage of spring, wheat re seeded on winter wheat acreage that their entire 460 acres spring wheat crop including the spring wheat which had been reseated on winter wheat acreage in the 1945 crop year was insurable by the Corporation and recommended to the Corporation ranch office acceptance of the respondents formal application which, however, did not disclose that any part of the insured Crop was reseeded and the Corporation accepted the application and a few months later, most of the respondents ' crop was destroyed by drought, and the Corporation on the loss being notified to them refused to pay the loss on the ground that the wheat crop insurance regulations expressly prohibited the insurance of spring wheat which was re seeded on winter wheat acreage, the Court by majority held that though a private insurance Corporation would be bound on similar facts.
the same was not true of a Government Corporation engaged in the insurance field and the latter was not estopped from repudiating the liability.
The following observations made by the court in Federal Crop Insurance Corporation vs Merrill (supra) are worth quoting: "It is too late in the day to urge that the Government is just another private litigant, for purposes of charging it with liability, whenever it takes over a business therefore conducted by private enterprise or engages in competition with private ventures.
Whatever the form in which the Government functions, anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority.
And this is so even though, as here, the agent himself may have been unaware of the limitations upon his authority. "Men must turn square corners when they deal with the Government", does not reflect a callous outlook.
It merely expresses the duty of all courts to observe, the conditions defined by Congress for charging the public treasury.
" In his Treatise on the Law of Estoppel, Melville M. Bigelow has stated that in State vs Williams,(2) State vs Bevars,(2) and Wallace vs Maxwell(4) it has been held that estoppel does not operate against the Government or its assignee.
(1) L cd.
(2) (3) (4) 10 Ird.
541 The High Court was, therefore, clearly in error in ignoring that the Government cannot divest itself of the right incidental to its office by conduct which, in the case or a private person, would amount to estoppel and in characterizing the demand for sales tax made by the appellants as illegal.
Accordingly Appeals Nos. 399 to 404 of 1975 are partly allowed, and it is held that the demand made by the appellants from the respondents in these appeals in respect of sales tax on the turnover of sales of ' country spirit made by them between April B, 2, 1969 and March 31, 1970 was valid and could not be struck down.
The parties in these six appeals shall pay and bear their own costs.
P.H.P. Appeals partly allowed.
| IN-Abs | The State of Uttar Pradesh has under the U.P. Excise Act, 1910.
the exclusive right or privilege of manufacturing and selling liquor in that State.
Section ' '4 of the Act provides that subject to the provisions of section 31 the Excise Commissioner may grant to any person a licence for the exclusive privilege of manufacturing or of supplying any country liquor etc.
Section 31 provides for the conditions for the grant of licence.
Section 33 invests the authority granting a licence to require the grantee to execute a counterpart agreement in conformity with the tenor of the licence.
Section 28 authorises imposition of an excise duty or a countervailing duty by The local Government on any excisable article.
Sections 40 and 41 of the Act empower the State Government and the Excise Commissioner subject to the previous sanction of the Government to make rules.
Para 38 of the Excise Manual which contains the rules made under the Act shows that there are 4 licence fee systems in vogue.
One of such systems is the auction fee system under which the amount of licence fee is determined by competition amongst bidders at an auction.
The respondents were the highest bidders at various auctions.
Before holding the auctions, the rates of excise duty and prices of different varieties of country liquor and also the conditions of licence were announced.
No announcement was made as to whether the exemption from sales tax in respect of sale of country liquor granted by the notification dated 6 4 1959 was or was not likely to be withdrawn.
one of the conditions of the licences was that the licensee shall lift each month certain quota of liquor and on the failure to lift the monthly quota the licensee shall be liable to pay compensation to the state Government calculated at the rate of duty per litre on the unlifted quota.
On the day following the day when the licences were granted, the Government of U.P. issued a notification under section 3A and 4 of the U.P. Sales Tax Act, 1948, superseding the earlier notification exempting the payment of sales tax and imposing sales tax on the turnover in respect of country spirit at the rate of 10 P. per rupee.
The respondents having failed to lift and sell the minimum quotas of liquor the appellant called upon them to pay by way of compensation the amount; of excise duty on the shortfalls.
Aggrieved by the demand, the respondents moved the High Court under article 226 of the Constitution for issue of appropriate writ or direction restraining the appellants from recovering the aforesaid amounts.
The respondents in special appeals also challenged the notification issued under the sales Tax Act on the ground that the State Government did not announce at the time of the action that the earlier notification was likely to be withdrawn and that the appellant informed the respondents at the time of the auction that there was no sales tax on the sale of country liquor.
The appellants were, therefore, estopped from making the demand in respect of the sales tax and recovering the same from them.
The High Court allowed all the petitions in toto.
On appeal by special leave, 533 ^ HELD: (1) Neither section 28 nor section 29 nor any other provisions of the Act authorise the levy of the amounts sought to be recovered from the respondents.
The demand made by the appellant though disguised as compensation is in reality a demand for excise duty on unlifted quantity of liquor which is not authorised by the provisions of the Act.
[538 A C] Bimal Chandra Banerjee vs Stale of Madhya Pradesh, ; , followed.
Panna Lal and Ors. etc.
vs State of Rajasthan and others, [1976] I S.C.R. 219.
distinguished.
Appeal dismissed.
(2) Sections 3A and 4 of the U.P. Sales Tax Act clearly authorise the State Government to impose sales tax.
The fact that sales of country liquors had been exempted from sales tax by the earlier notification could not operate as estoppel against the State Government and preclude it from subjecting the sales to tax if it felt impelled to do so in the interest of the revenues of the State.
There can be no question of estoppel against the Government in exercise of its legislative sovereign or executive powers (case law reviewed).
The Government cannot divest itself of the right incidental to its office by conduct which in the case of a private person would amount to estoppel.
The six appeals therefore, are partly allowed
|
N: Criminal Appeal No. 246 of 1971.
Appeal by Special Leave from the Judgment and order dated the 13th May 1971 of the Punjab and Haryana High Court in Criminal original No. 61 M of 1971.
Ram Panjwani, Deputy Advocate General, M.P., I l. section Parihar, and l. N. Shroff, for the Appellants.
O. P. Sharma, M. section Dhillon and section K. Mehta, for Respondents Nos. 2 to 4.
Nemo for Respondent No. 1.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave is directed against the judgment of the Punjab .
& Haryana High Court dated May 13, 197 1 by which the High Court allowed the writ petition filed by the respondent Ratan Singh a prisoner who was confined in Central Jail, Amritsar.
The appeal arises in the following circumstances.
The respondent Ratan Singh was convicted by the Sessions Judge Bhind in the State of Madhya Pradesh by his order dated October 16, 1957 under section 302 I.P.C. and sentenced to imprisonment for life.
An appeal filed by the respondent against the order of the Sessions Judge was dismissed by the High Court on May 19, 1959.
Thereafter the accused made a prayer to the Government for transferring his from Gwalior Jail to Amritsar as the accused/respondent belonged to Punjab State.
The representation of the accused was accepted and accordingly he was transferred to the Punjab Jail where he was lodged at Central Jail, Amritsar.
The order of transfer was passed on October 15, 1959.
The respondent contended that as he had completed the period of 20 years ' imprisonment including the remissions granted under the Punjab Jail Manual he was entitled to be released forthwith and he accordingly made an application for his release to the Punjab Government.
In fact the admitted position is that on May 7, 1971 the accused had undergone imprisonment for a period of 25 years 18 days and 19 hours taking into account the various remissions granted to him from time to time.
The Government of Punjab forwarded the representation of the respondent to the Government or Madhya Pradesh for passing an order of release.
On April 18, 1911 the State of Madhya Pradesh rejected the request of the respondent for his release.
Thereafter the accused/respondent filed a writ petition in the High Court of Punjab & Haryana on the ground that the accused having served the sentence for more than 20 years was entitled to be released as a matter of course under the provisions of the Punjab Jail Manual and the Rules framed under the Prisons Act.
It was also contended by the respondent that as he was lodged 554 in a jail under the jurisdiction of the Punjab Government? the appropriate Government to order his release was the Punjab Government and not the Government of Madhya Pradesh and, therefore, the request made by the Punjab Government to the Madhya Pradesh Government was not warranted by law.
The High Court without issuing notice to the State of Madhya Pradesh and after hearing the Advocate General accepted the plea taken by the respondent and held that Punjab State was the appropriate authority to release the respondent.
The High Court relied upon a decision of the Madhya Pradesh High Court in Sitaram Barelal vs State of Madhya Pradesh and directed that as the respondent had already served more than 20 years he was entitled to be released forthwith.
Accordingly the High Court allowed the petition and directed the State Government to consider the case of the respondent for being released and dispose of the case within 20 days from the date of the order of the High Court.
It appears that in pursuance of the order of the High Court the respondent was released.
The State of Madhya Pradesh has filed this appeal by speciaI leave against the order of the Punjab and Haryana High Court on the ground that in law it was the Madhya Pradesh Government alone which had the power to remit the sentence and release the prisoner at the High Court was in error in holding that the Punjab Government could pass the order of release.
Appearing in support of the appeal Mr. Ram Panjwani learned counsel submitted, I two points before us.
In the first place it was argued that the High Court completely overlooked the legal position that a sentence of imprisonment for life could not be said to be a sentence which would expire automatically after the expiry of 20 years including remissions The sentence would enure till the life time of the prisoner but the State Government had the discretion under sections 401 and 402 of the Code of Criminal Procedure to remit the remaining part of the sentence and order release of the prisoner.
Secondly, it was submitted that as the prisoner was convicted by a Court situate in the State of Madhya Pradesh the appropriate Government was the Madhya pradesh Government and not the Punjab Government where the prisoner was transferred to exercise its discretion under section 401 of the Code of Criminal Procedure.
No one appeared for the respondent, but at the time of granting special leave.
this Court had ordered that the release of the prisoner would not be reopened even if the appeal succeeded.
[n other words the State of Madhya Pradesh in this case is not concerned with the individual case of the respondent but only wants an authoritative decision on the important principle involved in the case.
As regards the first point, namely, that the prisoner could be released automatically on the expiry of 20 years under the punjab Jail Manual or the Rules framed under the Prisons Act, the matter is no longer res integra and stands concluded by a decision of this (1) AIR ] 969 M.P. 252.
555 Court in Gopal Vinaykak Godse vs State of Maharashtra and others(1), where the Court, following a decision of the Privy Council in Pandit Kishori Lal vs Kingg Emperor(2) observed as follows: "Under that section, a person transported for life or any other term before the enactment of the said section would be treated as a person sentenced to rigorous imprisonment for life or for the said term.
Bl, If so, the next question is whether there is any provision of law whereunder a sentence for life imprisonment, without any formal remission by appropriate.
Government, can be automatically treated as one for a definite period.
No such provision is found in the Indian Penal Code, Code of Criminal Procedure or the Prisons Act.
* * * * A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person 's natural life.
" The Court further observed thus: "But the Prisons Act does not confer on any authority a power to commute or remit sentences; it provides only for the regulation of prisons and for the treatment of prisoners confined therein.
Section 59 of the Prisons Act confers a power on the State Government to make rules.
inter alia for rewards for good conduct.
Therefore, the rules made under the Act should be construed within the scope of the ambit of the Act.
* * * Under the said rules the orders of all appropriate Government under section 401, Criminal Procedure Code, are a pre requisite for a release.
No other rule has been brought to our notice which confers an indefeasible right on a prisoner sentenced to transportation for life to an unconditional release on the expiry of a particular term including remissions.
The rules under the Prisons Act do not substitute a lesser sentence for a sentence of transportation for life." "The question of remission is exclusively within the province of the appropriate Government; and in this case it is admitted that, though the appropriate Government made G. certain remissions under section 401 of the Code of Criminal Procedure, it did not remit the entire sentence.
We, there fore, hold that the petitioner has not yet acquired ally right to release.
" It is, therefore, manifest from the decision of this Court that the Rules framed under the Prisons Act or under the Jail Manual do not affect the total period which the prisoner has to suffer but merely amount (l) (2) L.R. 72 IA 1. 556 to administrative instructions regarding the various remissions to be given to the prisoner from time to time in accordance with the rules.
This Court further pointed out that the question of remission of the entire sentence or a part of it lies within the exclusive domain of the appropriate Government under section 401 of the Code of Criminal Procedure and neither section 57 of the Indian Penal Code nor any Rules or local Acts can stultify the effect of the sentence of life imprisonment given by the Court under the Indian Penal Code.
In other words, this Court has clearly held that a sentence for life would enure till `the life time of the accused as it is not possible to fix a particular period of the prisoner 's death so any remissions given the Rules could not be regarded as a substitute for a sentence of transportation for life.
In these circumstances, therefore, it is clear that the High Court was in error in thinking that the respondent was entitled to be released as of right on completing the term of 20 years including the remissions.
For these reasons, therefore, the first contention raised by the learned counsel for the appellant is well founded and must prevail.
The next plank of the argument put forward by Mr. Ram Punjwani was that under section 401 of the Code of Criminal Procedure i, was the State of Madhya Pradesh where the accused was convicted which alone had the power to grant remission and order release of the prisoner.
It was submitted that the transfer of the accused from the State of Madhya Pradesh to the State of Punjab was made merely at the instance of the prisoner and for his convenience and could not clothe the transferee State with the power to pass an order under section 401 of the Code of Criminal Procedure.
In order to understand the implications of the argument put forward by the appellant it May be necessary extract the relevant provisions of section 401 of the Code of Criminal Procedure which run thus: "401.
( 1 ) When any person has been sentenced to punishment for an offence, the appropriate Government may at any time, without conditions or upon any conditions which of the person sentenced accepts suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.
(2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government, may require the presiding Judge of the Court before or by which the conviction was had or confirmed to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.
" A perusal of section 401 of the Code of Criminal Procedure would reveal that the section consists of two parts the first part confers an absolute discretion on the appropriate Government to remit the whole or any part of the punishment to which the accused may have been sentenced.
557 The words used ill sub section
(1) as also sub section
(2) of section 401 clearly show that the power is exercised by the "appropriate Government".
The expression "appropriate Government" appears to have been substituted for the expression "Provincial Government` ' by Amendment Act 1950 Previously the words used were "Provincial Government".
Sub section (2) of section 401 of the Code of Criminal Procedure, however, enjoins that before exercising its discretion on an application made to the appropriate Government for remission of the sentence, the appropriate Government may require the presiding Judge of the Court which convicted the prisoner to state his opinion whether the application should be granted or refused.
Thus the procedure laid down in sub section
(2) of section 401 gives a clear indication as to the real meaning and purport of the words "appropriate Government".
It is obvious that only that Government can call for the opinion of the presiding Judge of the Court which has control over the said presiding Judge or the Court which is situated within the jurisdiction of the said Government.
As a logical corollary of the interpretation of sub section
(2) of section 401 it is the State where the accused was convicted which alone has the power to grant remissions of the sentence.
an the instant ease the Punjab Government had absolutely no control or jurisdiction of the Sessions Judge, Bhind in the State of Madhya Pradesh and could not have called for an opinion from that Court.
In these circumstances there can be no shadow of doubt that the appropriate Government mentioned in sub section
(1) and sub section
(2) of section 401 of the Code of Criminal Procedure refers to the Government of the State where the accused was convicted, that is to say, the transferor Government and not the transferee Government.
Any such transfer of the accused from a jail situate in one State to a jail in other State has absolutely no bearing on the question as to the application of section 401 of the Code of Criminal Procedure, because this is merely an executive matter and an executive decision taken to meet the convenience of the accused.
Furthermore, the position is made absolutely clear by sub section
(3) to section 402 of the Code of Criminal Procedure which runs thus: "In this section and in section 401, the expression "appropriate Government" shall mean (a) in cases where the sentence is for an offence against, or the order referred to in sub section (4A) of section 401 is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government: and G (b) in other cases, the State Government.
" A perusal of this provision clearly reveals that the test to determine the appropriate Government is to locate the State where the accused was convicted and sentenced and the Government of that State would be the appropriate Government within the meaning of section 401 of the Code of criminal Procedure.
Thus since the prisoner in the instant case was tried, convicted and sentenced in the State of Madhya Pradesh the State of Madhya Pradesh would be the appropriate Government 558 to exercise the discretion for remission of the sentence under section 401(1) of the Code of Criminal Procedure.
Although the present case is governed by the old Code, yet we may mention that the new Code of Criminal Procedure, 1973 has put the matter completely beyond and.
controversy and has reiterated the provisions of section 402(3) in sub section
(7) of section 432 which provides thus: "(7) In this section and in section 433, The expression "appropriate Government" means, (a) in cases where the sentence is for an offence against, or the order referred to in sub section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government; (b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.
"Actually this clause has been bodily lifted from the provisions of section 402(3) and has made the position absolutely clear.
In Surjit Singh vs State of Punjab & ors.(l) a Division Bench of the Punjab & Haryana High Court has also taken the view that the appropriate Government would be the Government of the State where the prisoner has been convicted and sentenced.
The Division Bench of the Court after an exhaustive discussion of the various provisions of the Code of Criminal Procedure and the Rules observed as follows: "There is, however, nothing to indicate that for the purposes of remission and suspension of sentences under section 401, Criminal Procedure Code, the Legislature intended to adopt a different definition of 'appropriate government '.
In short, under section 401, Criminal 'Procedure Code, the Government of the State of conviction and not the Punjab Government was competent to remit the balance of the sentence of these life convicts.
All that the Punjab Government could do was to forward the cases of these life convicts to the appropriate Government for remitting the remaining term of their life imprisonment, in exercise of the power under section 401, Criminal Procedure Code.
The Punjab Government has already made such a reference in favour of the petitioners to the Governments of the States of conviction.
Neither the Punjab Government nor the Superintendent of Jail concerned can release the prisoner under any of the statutory rules contained in Punjab Jail Manual without receiving the necessary orders of the appropriate Government under section 401.
Pending the receipt of orders of the appropriate Government, therefore, the detention of the petitioners could not by any reasoning, be called illegal.
" (1) Criminal Writ No. 11 of 1971 decided on 26 5 72.
559 We find ourselves in complete agreement with the view taken by the Punjab & Haryana High Court.
Before closing the judgment, we may refer to Sitaram Barelal 's s case (supra) which forms the sheet anchor of the decision of the High Court in the instant case.
To begin with that case does not deal with the identical point involved in the present case.
III that case, the State Government had exercised a statutory power under.
I Special Act passed by the State of Madhya Pradesh, namely, the Madhya Pradesh Prisoners Release on Probation Act 16 of 1954.
Under the provisions of that Act the State Government was given the power to release prisoners found to have been of good conduct by imposing certain conditions for their rule it was not here the Government was exercising its discretion under section 401 of the Code of Criminal Procedure for remission of the part of the sentence after the accused had served the sentence for 20 years and claimed to be released.
Secondly the power for a temporary release of the Prisoner was conferred by the said Act on the State of Madhya Pradesh under certain conditions.
The Government was, therefore, exercising as statutory power.
In these circumstances the facts in Sitaram Barelal 's case (supra) were quite different from the facts of the present case.
It is true that the prisoner in that case was lodged in a jail in the State of Maharashtra but in view of the provisions of the Special at a particular State Government alone was empowered to exercise its discretion under the provisions of section 2 of the said Act.
In the instant case there is no such Act at all in the State of Punjab & Haryana which could have provided any justification for take said State to exercise its power to release the prisoner.
Thirdly? as already state the power conferred by the Act was merely a power to release the prisoner on a temporary basis subject to certain conditions which is not the case here at all.
In these circumstances the High Court was not at and justified in relying on the decision of the Madhya Pradesh High Court in Sitaram Barelal 's case (supra) for tile proposition that the Punjab Government would be the appropriate Government to exercise power under section 401 (1) of the Code of Criminal Procedure From a review of the authorities and the statutory provisions of the Code of Criminal Procedure the following propositions emerge: (1) that a sentence of imprisonment for life does not automatically expire at the end of 20 years including the remissions, because the administrative rules framed under the various Jail Manuals or under the Prisons Act cannot supersede the statutory provisions of the Indian Penal Code.
A sentence of imprisonment for life means a sentence for the entire life of the prisoner unless the appropriate Government chooses to exercise its discretion to remit either the whole or a part of the sentence under section 401 of the Code of Criminal Procedure; (2) that the appropriate Government has the undoubted discretion to remit or refuse to remit the sentence 560 and where it refuses to remit the sentence no writ can be issued directing the State Government to release the prisoner; (3) that the appropriate Government which is empowered to grant remission under section 401 of the Code of Criminal Procedure is the Government of the State where the prisoner has been convicted and sentenced, that is to say, the transferor State and not the transferee State where the prisoner may have been transferred at his instance under the Transfer of Prisoners Act; and (4) that where the transferee State feels that the accused has completed a period of 20 years it has merely to forward the request of the prisoner to the concerned State Government, that is to say, the Government of the State where the prisoner was connected and sentenced and even if this request is rejected by the State Government the order of the Government cannot be interfered with by a High Court in its writ jurisdiction.
For these reasons, therefore, we are satisfied that the view taken by the High Court of Punjab & Haryana in the instant case is erroneous and cannot be supported in law.
We accordingly allow the appeal, set aside the order of the High Court.
But as the respondent has already been released, the order of release of the respondent shall stand.
PBRAppeal allowed.
| IN-Abs | The respondent was convicted and sentenced to imprisonment for life by a court in the State of Madhya Pradesh.
At his request he was transferred to a jail in the State of Punjab, to which State he belonged.
He applied to the Government of Punjab that under the Punjab Jail Manual he is entitled to be released since he had completed more than 20 years of imprisonment.
The application was sent to the Government of Madhya Pradesh, which rejected it.
In a writ petition filed by him the High Court of Punjab and Haryana held that the State of Punjab was the appropriate authority to release him and directed the State of Punjab to consider the matter.
In appeal to this Court, the State of Madhya Pradesh contended: (i) that since the sentence was of imprisonment for life, it would not expire automatically at the expiry of ' 20 years including remissions: and (ii) that as the prisoner was convicted by a court in the State of Madhya Pradesh the appropriate Government the exercise discretion under sections 401 and 402 Cr.
P.C. was the State of Madhya Pradesh and not the State of Punjab., Allowing the appeal, ^ HELD: The High Court was in error in holding that the respondent was entitled to be released as of right on completing the term of 20 years including remissions.
[556] Gopal Vinayak Godse vs State of Maharashtra and Others, ; and Pandit Kishori Lal vs King Emperor, L.R. 72 I.A.1, followed.
(1) A sentence of imprisonment for life does not automatically expire at the end of 20 years including remissions because the administrative rules framed under the various Jail Manuals or under the Prisons Act cannot supersede the statutory provisions of the Indian Penal Code.
A sentence of imprisonment for life means a sentence for the entire life of the prisoner unless the appropriate Government chooses to exercise its discretion to remit either the whole or a part of the sentence under section 401 of the Code of Criminal Procedure.
[559G] (2) The appropriate Government has the discretion to remit or refuse to remit the sentence and where it refuses to remit the sentence no writ can be issued directing the State Government to release the prisoner.
[560A] (a) The appropriate Government which is empowered to grant remission under section 401 of the Code of Criminal Procedure is the Government of the State where the prisoner had been convicted and sentenced, that is, the transferor State and not the transferee State where the prisoner may have been transferred at his instance under the Transfer of Prisoners Act.
[56B] (b) Where the transferee State feels that the accused had complected a period of 20 years it has merely to forward the request of the prisoner to the Government of the State where the prisoner was convicted and sentenced and if this request was rejected by the State Government the order of the Government cannot be interfered with by a High Court in its writ jurisdiction.
[550D] 553 [Since the respondent was released in pursuance of the order of the High Court, the release order was allowed to stand.]
|
Civil Appeal No. 1370 of 1968.
Appeal by Special Leave from the Judgment and order dated the 6th March, 1967 of the High Court of Judicature at Allahabad in First Appeal No. Nil of 1965.
J. P. Goyal and section M. Jain, for the Appellants.
G.L. Sanghi, D. N. Misra and O. C. Mathur, for Respondent No. 1.
G. N. Dixit and O. P. Rna, for the State of U.P.
The Judgment of the Court was delivered by FAZAL ALI, J.
This is an appeal by special leave against the judgment of the Single Judge of the Allahabad High Court deciding 666 a court fee matter in connection with the memorandum of appeal filed by the appellants before the Allahabad High Court against a decree passed by the Tribunal appointed under the hereinafter referred to as 'the Act '.
The appellants had filed an application under section 13 of the Act before the Tribunal alleging that it was a partnership firm and claimed that an amount of Rs. 3,50,000/ by way of refund of security deposits and a sum of Rs. 55,000/ as commission was due from the respondents.
The application was tried by the Tribunal and the claim preferred by the appellants was ultimately dismissed by the Tribunal by its decree dated May 19, 1965.
Additional Civil Judge of Badaun was assigned as the Tribunal under the aforesaid Act.
The appellants then filed an appeal before the Allahabad High Court with a nominal court fee of Rs. 5/ but the Stamp Reporter of the High Court was of the opinion that the appellants should have paid ad valorem court fees on the total claim preferred by the appellants before the Tribunal which had been disallowed.
The matter was taken up by the Taxing Officer, who, in view of the substantial importance of the point raised, made a reference to the Taxing Judge for deciding the court fee payable on the memorandum of appeal in the instant case.
The plea of the appellants was that as the decision of the Tribunal did not amount to a decree as contemplated by section 2(2) of the Code of Civil Procedure 1908, ad valorem court fees were not payable and the appellants were entitled to pay court fees as prescribed in Sch.
11 article 11 of the Court Fees ' Act.
The stand taken by the revenue was that as the present appeal was against a decree, the case of the appellants squarely fell within the ambit of section 4 of the Court Fees ' Act and therefore ad valorem court fees were payable under Sch.
I article 1 of the Court Fees ' Act.
The matter was taken up by the Taxing Judge who went into the question of law raised before him and after considering some authorities, particularly those of the Allahabad High Court, agreed with the Stamp Reporter and came to the conclusion that the appellants should pay ad valorem court fees under Sch.
I article 1 of the Court Fees ' Act.
The Taxing Judge accordingly by his order dated October 11, 1965 directed the appellants to make up the deficiency in the payment of the court fees.
It was against this order that the appellants filed a petition for special leave to this Court which having been granted the appeal has now been placed before us for hearing.
This appeal involves a short but substantial question of law as to the interpretation, scope and ambit of Sch.
II article 11 of the Court Fees ' Act as applicable to appeals preferred against the orders or decrees passed by the Tribunal constituted under the Act.
The point is not free from difficulty and there appears to be a serious divergence of judicial opinion on the question as to whether in appeals like the present, Sch.
I article 1 or Sch.
II article 11 of the Court Fees ' Act would apply.
Mr. Goyal learned counsel appearing for the appellants raised two points before us.
In the first place he contended that as the proceedings before the Tribunal were not proceeding in a Civil Court nor was the Tribunal a Court, therefore, the decision of the Tribunal 667 even though loosely called as a decree is not a decree as contemplated by section 2(2) of the Code of Civil Procedure and therefore the case of the appellants clearly falls within the ambit of Sch.
II article II of the Court Fees Act.
It was next contended that as the Tribunal had disallowed the claim of the appellants by the order impugned before the High Court the order did not amount to any decree and, therefore, the question of payment of ad valorem court fees did not arise.
In this connection it was also submitted that the Act being a beneficial statute was designed to provide a cheap and expeditious remedy to displaced persons in certain circumstances and therefore the Parliament never intended that displaced persons who had lost all that they possessed in Pakistan should be made to pay ad valorem court fees without possessing the capacity to do so.
Mr. Dikshit appearing for the respondents sought to repel the arguments of Mr. Goyal on two grounds.
In the first place it was submitted that under the provisions of the Court Fees Act the order of the Taxing Judge was final and could not be re opened by this Court even in special leave.
Secondly, it was submitted that the Tribunal was nothing but a Civil Court and the provisions of the Act would show that the Tribunal was clothed with all the powers and incidents of a Civil Court.
In these circumstances it was contended that any decree which was passed by the Tribunal must be presumed to be a decree of the Court and was made appealable as such under section 40 of the Act.
Therefore, it was said, Sch.
II article 11 had absolutely no application and the view taken by the Taxing Judge was legally correct.
In order to understand the contentions raised by the counsel for the parties it may be necessary for us to trace the history of the Act and the circumstances in which it was passed.
To begin with, following the partition of the country there was an unprecedented rush of refugees from Pakistan to India and our country immediately after becoming independent had to face the colossal problem of rehabilitating the refugees or the displaced persons.
Most of these persons had left huge assets behind in Pakistan and had come to this country without a penny.
Others were creditors and were entitled to get their debts liquidated from the assets in this country or from the properties possessed by the Banks in this country.
Soon after independence there were stray and piecemeal legislations providing for some facilities for displaced debtors and creditors but there was no uniform law to cater to their growing needs in view of the situation faced by them following the partition of our country.
In these circumstances, therefore, the Government decided to bring out a uniform legislation so as to be a complete code in itself providing for a cheap and expeditious remedy for displaced debtors and creditors.
The matter was first entrusted to a Committee and then to Bind Basni Prasad, a retired Judge of the Allahabad High Court, who after taking evidence of a large number of displaced persons and examining the nature of the claims, submitted a report which formed the basis of the Displaced Persons (Debts Adjustment Act.
Introducing the Bill which preceded the Act, Mr. A. P. Jain, the then Minister of State for Rehabilitation, made a long speech in 668 Parliament dwelling on the various aspects of the Bill.
The Minister particularly highighted the fact that the condition of the displaced persons was pitable as they had left huge assets behind in Pakistan.
In this connection the Minister observed thus: "The condition of the displaced persons therefore today is that while their assets have been left behind in Pakistan and they have brought the titles of their property, at least in some cases.
In the provisions contained in this Bill, we have tried to strike a balance between the reduced capacity of the debtor to meet his obligations and at the same time we have taken sufficient care to see that a debtor who is in a position to pay may not deny payment to his creditor.
In this Bill, we have introduced what might be called a somewhat revolutionary principle, namely, that no debtor will be called upon to pay more than his paying capacity.
I shall later on define what the words 'paying capacity ' mean, but here it may be enough to mention that paying capacity of a debtor has been defined in a rather liberal manner after allowing fairly large assets which will not be capable of attachment.
Clause 13 deals with claims by displaced creditors against persons who are not displaced debtors.
That is not comparatively so important because it only gives relief in respect of court fees.
We felt that under the depressed economic condition of the displaced creditors, it is necessary that we must give them some relief against the huge amount of money which they have to pay as court fees etc.
I submit that these are all very necessary and humane considerations which take into account the actual paying capacity of the debtor.
We have maintained the existing procedure in the Courts but we have simplified it because a prolonged procedure and the complexities of the civil courts mean a lot of money.
We have provided only one appeal in clause 40.
" A perusal of the above observations will give a clear insight into the various objects of the Act and the main purposes which the legislation sought to achieve.
It will be noticed that the Minister laid particular stress on the paying capacity of the debtors which he called a humane consideration and also described the necessity of giving relief to the displaced persons against the huge amount of money which they may have to pay as court fees.
Thus it would appear that the intention of Parliament was to bring out a legislation which would provide for a cheep and expeditious remedy to the displaced persons and entrust the work to a Tribunal which may 669 be able to decide the claims quickly instead of leaving the displaced debtors or creditors to follow the dilatory and cumbersome process of the civil courts.
In order to shorten the litigation the Minister expressly stated that only one appeal had been provided in section 40 of the Act, to the High Court.
These matters will have a very important bearing on the interpretation of the provisions of the Court Fees Act as applicable to the decrees passed by a Tribunal under the Act.
Even apart from these considerations, it is well settled that in case of a fiscal statute the provisions must be strictly interpreted giving every benefit of doubt to the subject and lightening as far as possible the burden of court fees on the litigant.
Thus where an adjudication given by a Tribunal could fall within two provisions of the Court Fees Act, one of which was onerous for the litigant and the other more liberal, the Court would apply that provision which was beneficial to the litigant.
In A. V. Fernandez vs State of Kerala, while interpreting the provisions of a fiscal statute, viz., the Travancore Cochin General Sales Tax Act, this Court observed as follows: "It is no doubt true that in construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the strict letter of the law and not merely to the spirit of the statute or the substance of the law.
If the Reve nue satisfs the Court that the case falls strictly within the provisions of the law, the subject can be taxed.
If, on the other hand, the case is not covered within the four corners of the provisions of the taxing statute, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter." Similarly in State of Maharashtra vs Mishri Lal Tara Chand Lodha and others, while interpreting some of the provisions of the Bombay Court Fees Act, Raghubar Dayal, J., speaking for the Court observed as follow: "The Act is a taxing statute and its provisions therefore have to be construed strictly, in favour of the subject litigant.
" These observations manifestly show that the Courts have to interpret the provisions of a fiscal statute strictly so as to give benefit of doubt to the litigant.
The principles deducible from the decisions referred to above are well established and admit of no doubt.
We, therefore, propose to decide the question raised before us in the light of the principles enunciated above, but before doing that it may be necessary to give a brief survey of the scheme and structure of the Act in order to find out the real nature, scope and ambit of the statute.
670 To begin with, it may be necessary to extract the relevant portion of the statement of objets and reasons of the statute: "The Bill is designed mainly to give relief to displaced debtors in respect of liabilities incurred by them prior to their displacement from West Pakistan though remission of court fees has also been allowed to displaced creditors.
A certain amount of relief was afforded to them by Acts XLVII of 1948 and XXV of 1949, but this was found to be inadequate.
A thorough examination of the various problems involved had to be made with a view to affording displaced persons adequate and, at the same time, reasonable relief in the matter of their indebtedness, consistently with the needs of their rehabilitation.
A decree under the law will thus consist of two parts, the first part being equivalent to and recoverable from the 'paying capacity ' of the debtor, and the second part being equivalent to the balance of the total amount decreed and recoverable from the compensation, if and when received by the debtor.
The first part of the decree will, as a rule, be recoverable in instalments.
In respect of the second part of the decree, it has been accepted that the amount payable should be scaled down in the proportion in which the displaced debtor is able to obtain recompense in respect of his immovable property left behind in West Pakistan.
Where no recompense is received, there will be no recovery of the second part of the decree.
" Section 4 of the Act provides for constitution of Tribunals to exercise jurisdiction under the Act and empowers the State Government to designate any civil court or class of civil courts as the Tribunal or Tribunals and may also define the areas in which such Tribunal shall exercise jurisdiction.
It may be pertinent to note here that the statute deliberately does not entrust the functions of the Act to the civil court per se but to a Tribunal to be selected from amongst civil courts.
Section 5 of the Act provides for an application to be given by a displaced debtor for adjustment of his debts and gives the requirements of that application.
Section 6 authorises the Tribunal to reject the application under section 5, if it does not fulfil the requirements of section 5 and further gives it the power to grant time to comply with the requirements.
Sections 7 and 8 of the Act provide for issue of notices to the respondents and give right to the respondents to file their objections.
Section 9 provides for an inquiry into the application made under section 5.
The statute designedly uses the word "proceeding" in section 9 rather than a suit which clearly shows that the Legislature was aware of the distinction between a "proceeding" and a "suit".
Sub section (2) of section 9 authorises the Tribunal to decide the dispute and pass such decree in relation thereto as it thinks fit.
It is, therefore, clear that the decree which the Tribunal passes is not a decree of the Civil Court but a decree passed by a Tribunal in a proceeding under section 5 and section 9 of the Act.
Section 10 deals with claims by the creditors against 671 displaced debtors and section 11 regulates the procedure of a petition filed by the creditor.
Sub section (2) of section 11 further authorises the Tribunal to determine the claim and pass a decree in relation thereto.
Section 12 provides for objection by creditor to schedule of assets and section 13 refers to claims by displaced creditors against persons who are not displaced debtors.
Section 14 prescribes the procedure for displaced creditor 's petition filed under section 13 of the Act and authorises the Tribunal to pass a decree as it thinks fit.
Sub section (3) of section 14 authorities the Tribunal to pass a decree if no cause is shown or if no dispute exists.
A perusal of sub sections
(2) & (3) of section 14 clearly shows that the statute contemplates a decree which may be one of rejection of the claim put forward by the displaced creditor or one which amounts to allowing the claim.
Thus, in other words, whether claim is disallowed or allowed, the order passed by the Tribunal would be a decree in both cases.
We have purposely mentioned this fact because some of the High Courts have taken the view that where the Tribunal rejects the claim of a displaced creditor or debtor either on the ground that the petitioner is not a displaced debtor or creditor but not on merits, such an adjudication does not amount to a decree.
This distinction sought to be made by some of the courts does not appear to be consistent with the scheme and language of the statute.
Section 15 of the Act deals with the consequences of application by displaced debtor.
The next relevant provision is section 18 which regulates the procedure for claims against insurance companies, and sub section
(2) of this section provides for a decree to be passed by a Tribunal.
Section 23 provides for a simplified procedure in certain cases where the claim is below Rs. 5,000/ in which case the Tribunal is empowered to record only a memorandum of the substance of the deposition of the witnesses so as to given a short and summary decision.
Section 27 refers to the contents of the decree and section 28 provides for the forum and the Court in which the decree passed by the Tribunal is to be executed.
Section 32 of the Act provides the procedure for scaling down of debts by a displaced debtor.
Section 36 provides for extension of period of limitation.
Section 40 is the provision for appeals against any decree or final order of the Tribunal or against any order passed in the course of execution.
These are the relevant provisions of the Act in so far as the facts of the present case are concerned.
A close examination and a detailed analysis of the various provisions of the Act would clearly reveal that the Act is a beneficial statute meant for advancing the cause of the displaced debtors and creditors by conferring substantial benefits on them if they are able to prove their claims.
In these circumstances it is clear to us that the Legislature could never have intended that the claimants should have to pay heavy court fees either in getting, their claims adjudicated by the Tribunal or even in filing appeals against the decrees of the Tribunals.
That the displaced persons had been given such concessions and facilities has been held by this Court in Shri Ram Narain vs The Simla Banking & Industrial Company Ltd. where this Court observed as follows: "Now, the is one of the statutory measures meant for relief and rehabil 672 tation of displaced persons.
It is meant for a temporary situation brought about by unprecedented circumstances.
It is possible, therefore, to urge that the provisions of such a measure are to be treated as being particularly special in their nature and that they also serve an important national purpose.
It is by and large a measure for the rehabilitation of displaced debtors.
x x x There is no provision therein which compels either a displaced debtor or a displaced creditor to go to the Tribunal he is satisfied with the reliefs which an ordinary civil court can give him in the normal course.
It is only if he desires to avail himself of any of the special facilities which the Act gives to a displaced debtor or to a displaced creditor and makes an application in that behalf under sections 3, or 5(2), or 13, that the Tribunal 's jurisdiction comes into operation.
x x x It is also desirable to notice that so far as a claim of a displaced creditor against a non displaced debtor is concerned the main facilities that seem to be available are (1) the claim can be pursued within one year after the commencement of the Act (presumably even though it may have been time barred), (2) a decree can be obtained on a mere application, i.e. without having to incur the necessary expenses by way of court fee which would be payable if he had to file a suit, (3) the creditor has the facility of getting his claim adjudicated upon by a Tribunal which has jurisdiction over the place where he resides, i.e., a place more convenient to him than if he had to file a suit under the ordinary law in which case he would have to file a suit at the place where the defendant resides or part of the cause of action arises.
There may also be a few other minor facilities.
" As pointed out above, the claim of the appellants in the present case before us was dismissed by the Tribunal on merits and the stand taken by the Revenue which found favour with the Taxing Judge of the High Court was that the appellants should pay ad valorem court fees as their claim was rejected on merits.
Counsel for the appellants has submitted that the present appeal would be governed clearly by Sch.
II article 11 of the Court Fees Act, This Article reads thus: "11.
Memorandum of appeal when the appeal is not from a decree or an order having the force of a decree, and is presented.
(a) x x x (b) to a High Court or Chief Commissioner, or other Chief Controlling Executive or Revenue Authority.
Two rupees" In order to attract application of this article, the following conditions must be fulfilled: 673 (i) that the document sought to be stamped must be a memorandum of appeal; (ii) that the appeal should be presented to the High Court; and (iii)that the appeal should not be from a decree or an order having the force of a decree.
The third condition of the article is couched in a negative form thus implying that this provision would have no application to appeals against decrees.
The question that falls for determination is as to whether or not the decision given by the Tribunal under the Act could be said to be a decree within the meaning of Sch.
II article 11 of the Court Fees Act.
It was submitted by learned counsel for the appellants that the Court Fees Act and the Code of Civil Procedure being statutes complementary to each other should be read as one harmonious whole.
We think that the contention is well founded and must prevail.
The term "decree" as used in the Court Fees Act is a term of art and it must be deemed to have been used in the same sense as understood by the Code of Civil Procedure.
It may be pertinent to note here that neither the Court Fees Act nor the has defined the term "decree".
Nevertheless" as far back as 1859, by Act No. VIII of 1859 passed by the Governor General in Council the concept of a decree was clearly indicated, although no definition of a decree was given in that Act.
By sections 183 to 190 the manner in which the judgments were to be given and the decrees were to be prepared as also the contents of the same were clearly mentioned.
Section 189 which expressly dealt with decrees ran thus: "The decree shall bear date, the day on which the judgment was passed.
It shall contain the number of the suit, the names and descriptions of the parties, and particulars of the claim, as stated in the Register of the suit, and shall specify clearly the relief granted or other determination of the suit.
It shall also state the amount of costs incurred in the suit and by what parties and in what proportions they are to be paid, and shall be signed by the Judge, and sealed with seal the Court.
" Thus when the Court Fees Act was passed in the year 1870 and used the term "decree" it must be intended to have used the word "decree" so as to bear the same connotation as the word "decree" as explained in section 189 of Act VIII of 1859.
In the Code of Civil Procedure Act XIV of 1882 "decree" appears to have been defined for the first time and the definition may be extracted as follows.
" 'decree ' means the formal expression of an adjudication upon any right claimed, or defence set up in Civil Court when such adjudication so far as regards the Court expressing it, decides the suit or, appeal.
An order rejecting a plaint, or directing accounts to be taken, or determining any question 674 mentioned or referred to in section 244, but not specified in section 588, is within this definition: an order specified in section 588 is not within this definition:" The Code of Civil Procedure of 1908 also gave a full and complete definition of "decree" in section 2(2) which runs thus: " 'decree ' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.
It shall be deemed to include the rejection of a plaint and the determination of any question within section 47 or section 144, but shall not include (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default.
" It would be seen that an order rejecting a plaint was clearly mentioned as falling under the term "decree".
In view of this clear definition of the order rejecting a plaint, it became necessary to make a corresponding change in Sch.
II article 11 of the Court Fees Act and by Act V of 1908 the words "from an order rejecting a plaint or" used in Sch.
II article 11 before 1908 were expressly omitted for the simple reason that an order rejecting a plaint having been incorporated in the definition of a "decree" it was not necessary to retain it in the Court Fees Act.
This is the most important intrinsic evidence to show that the Legislature in enacting the Court Fees Act used the term "decree" in the same sense as it was used in section 2(2) of the Code of Civil Procedure, 1908 or in the code obtaining before that day.
This also shows that the Court Fees Act and the Code of Civil Procedure are more or less complementary to each other.
This matter was the subject matter of a decision of this Court in Mannan Lal vs Mst.
Chhotaka Bibi, where this Court observed as follows: "In our view in considering the question as to the maintainability of an appeal when the court fee paid was insufficient to start with but the deficiency is made good later on, the provisions of the Court Fees Act and the Code of Civil Procedure have to read together to form a harmonious whole and no effort should be made to give precedence to provisions in one over those of the other unless the express words of a statute clearly override those of the other.
Apart from the decisions bearing on the point, there can in our opinion, be no doubt that Section 4 of the Court Fees Act is not the last word on the subject and the court must consider the provisions of both the Act and the Code to harmonise the two sets of provisions which can only be done by reading Section 149 as a proviso to Section 4 of the Court Fees Act by allowing the deficiency to be made good within a period of time fixed by it.
" 675 There are a number of other decisions of the High Courts which have also taken the view that the word "decree" appearing in Sch.
II article 11 has to be read in the same sense as used in the Code of Civil Procedure.
In Ram Prasad vs Tirloki Nath a Division Bench of the Allahabad High Court observed as follows "The word 'decree ' has not been defined in the Courtfees Act or in the General Clauses Act; and it is safe to assume that the word has been used in the Court fees Act in the sense in which it is used in the Civil P.C., under which all the decrees are passed and which defines it as meaning "the formal expression of adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. " A Full Bench of the Hyderabad High Court in Dawood Karim Ashrafi vs City Improvement Board made a similar observation where the Court observed as follows: "To have the force of a decree, an order must possess all the characteristics of a decree.
It was further held that the word "decree" has not been defined in the Court fees Act or in the General Clauses Act, and it was safe to assume that the word has been used in the Court fees Act in the sense in which it is used in the Civil Procedure Code.
" A Division Bench of the Patna High Court also in Antala Gope vs Sarbo Gopain, while interpreting the word 'decree ' used in the Hindu Marriage Act, appears to have taken the same view and observed as follows: "The Act provides under section 21 that "all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908"; that is to say, the procedure to be adopted by the Court, in dealing with such proceedings will be akin to that provided for the trial of suits in a Civil Court.
But that does not make the proceeding a suit or the application a plaint.
x x x x x x x x Therefore, in our view, article 11 of Schedule II of the Court Fees Act will be applicable to all appeals coming under section 28 of the .
" The later Full Bench decision of the Allahabad High Court in Mrs. Panzy Fernandas vs Mrs. M. F. Cusoros & others appears to have endorsed its previous view and observed as follows: 676 "The same result would, however, follow from a perusal of the various provisions of the Code of Civil Procedure of 1859, as it stood in the year 1870.
The above provision of law, therefore, indicates that under the Code of Civil Procedure, 1859, a decree could only be passed in a proceeding which could be termed a suit.
Section 26 specified the particulars that are to be given in the plaint.
Section 27 laid down the manner in which the plaint was to be subscribed and verified.
Thus the scheme of the Code of Civil Procedure of 1859 as disclosed by the aforementioned provisions, also points to the conclusion that a decree marks the culmination of a proceeding which is described as a suit, and which, according to the said Code, is initiated by means of a plaint.
Proceedings for letters of administration under the Indian Succession Act (Act XXXIX of 1925) are not commenced by the institution of a plaint.
On the other hand, as section 278 of the said Act shows, they are commenced by an "application" or a petition.
For the above reasons we are of opinion that the decision of a Court in proceedings for letters of administration cannot be described as a decree.
If excitability was to be the invariable quality of all decrees, one would expect that the Legislature would incorporate this feature in the provisions which define the nature, scope and contents of a decree.
Further, if the Legislature wanted that Schedule II Article 11 should apply only to executable orders it could very easily have added the word "executable before "order".
" In the above case the order passed in a proceeding before a Probate Court was held not to be a decree.
In Dundappa vs
section G. Motor Transport Company the High Court of Mysore observed as follows: "In order to understand the expression "having the force of a decree" occurring in this article of the Court Fees Act, it would be useful to derive guidance from the definition of a "decree" contained in section 2(2) of the Code of Civil Procedure, according to the provisions of which, a decree is a formal expression of an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy before the Court.
" In Irshad Husain vs Bakhshish Husain the same view was taken by the Oudh High Court where the Court observed as follows: "The expression "decree" is not defined either in the Court Fees Act or in the General Clauses Act.
It may, 677 therefore, be safely assumed that this expression as used in Sch. 2, article 11, Court Fees Act, bears the meaning given to it by section 2(2) Civil P.C.
Nor can it be disputed that there is a vital difference between a "decree" and "order" in matters relating to appeals.
" In Harrish Chandra Chatterji vs Bhoba Tarini Debi the Calcutta High Court also appears to have taken the same view, where the Court observed as follows: "I do not think this was the "formal expression of an adjudication" so as to make the order a decree within the meaning of sec.
2 of the Code of Civil Procedure.
The fee payable, therefore, will be one leviable under article 11 of the second schedule of the Court fees Act." The Bombay High Court in Taxing officer, High Court, Appellate side vs Jamnadas Dharamdas which was a case under the , has clearly held that the term "decree" used in Sch.
II article 11 of the Court Fees Act must be held to Lave the same meaning as in section 2(2) of the Code of Civil Procedure.
Thus on a consideration of the authorities mentioned above the propositions may be summarised as follows: Firstly, that under the definition of a "decree" contained in section 2(2) of the Code of Civil Procedure, 1908, three essential conditions are necessary: (i) that the adjudication must be given in a suit; (ii) that the suit must start with a plaint and culminate in a decree; and (iii)that the adjudication must be formal and final and must be given by a civil or revenue court.
In the proceedings under the Act we have already pointed out that as the Legislature has created a special tribunal to inquire into the claims displaced debtors or creditors, the Tribunal cannot be called a Court in any sense of the term because the Legislature has made a clear distinction between a Tribunal and a Court.
Secondly, as the proceedings before the Tribunal start with an application and not with a plaint the other important ingredient of a decree is wholly wanting.
Thirdly, the Legislature has itself made a clear cut distinction between a suit and a proceeding and has described the claim before the Tribunal as a proceeding rather than as a suit.
In these circumstances, therefore, none of the requirements of a degree are to be found in the decision given by the Tribunal even though the Legislature may have described the decision as a decree A mere description of the decision of the Tribunal as a decree does not make it a decree within the meaning of 678 The Court Fees Act.
The term "decree" appears to have been used by the Legislature to convey a sense of finality regarding the decision of the Tribunal more particularly since the adjudication of the claim, but for the Act, would have been by a Civil Court and then it would have been a "decree".
Secondly, as pointed out, the object of the Act is to benefit displaced persons by providing them a cheap and expeditious remedy.
The argument of Mr. Sanghi for the respondent.
, the he Legislature wanted the claimants to pay heavy court fees if they lost before the Tribunal is totally inconsistent with the aim and object of the Act.
If the displaced claimants were given the right to have their claims determined on a nominal court fee and if only one right of appeal was provided it surpa, ses one 's comprehension why the Legislature should have.
intended that even if wrong orders were passed by the Tribunal, the claimants should have to pay heavy court fees if they wanted to file an appeal to the High Court.
If the intention of the Legislature was to provide a cheap and not expeditious remedy to the claimants, then the remedy would be incomplete if it was given only at the original stage and not at the appellate stage.
Having regard to these circumstances we are satisfied that the term "decree" used in Sch.
II, article 11, is referable to a decree as defined in section 2 (2) of the Code of Civil Procedure and as the decision of the Tribunal in the instant case does not fulfil the requirements of a "decree" as mentioned above, the said decision is not a decree within the meaning of Sch.
II, article 11 of the Court Fees Act and, therefore, the memorandum of appeal filed by the appellants squarely falls within the ambit of Sch.
II article 11 of the Court Fees Act and ad valorem court fees under Sch.
I article 1 are not leviale.
Apart from the above considerations, it is a well settled principle interpretation of statute, hat where the Legislature uses an expression bearin a well known legal contation it must be premised to have used the said expression in the sense in which it has been so understood.
Craies on "Statute Law" observes as follows: "There is a well known principle of construction, that where the legislature uses in an Act a legal term which has received judicial interpretation, it must be assumed that the term is used in the sense in which it has been judicially interpreted unless a contrary intention appears.
" In Barras vs Aberdeen Steam Trawling and Fishing Company Lord Buckmaster pointed out as follows: "It has long been a well establilshed principle to be applied in the consideration of Acts of Parliament that where a word of doubtful meaning has received a clear judicial inter pretation, the subsequent statute which incorporates the same word or the samerphrase in a similar context must be construed so that the word or phrase is interpreted according the meaning that has previously been ascribed to it." 679 Craies further points out that the rule as to world judicially interpreted applies also to words with well known legal meanings, even though they have not been the subject of judicial interpretation.
Thus applying these principles in the instant case it would appear that when the Court Fees Act uses the word "decree" which had a well known legal significance or meaning, then the Legislature must be presumed to have used this term in the sense in which it has been understood, namely, as defined in the Code of Civil Procedure even if there has been no express judicial interpretation on this point.
There are a number of decisions which have taken the view that Sch.
II article 11 governs appeals against decisions of the Tribunal.
The matter was fully considered in a decision of the Bombay High Court in Jamnaudas Dharamdas ' case (supra) where Shah, J., observed as follos: "But the expression "decree" has not been defined in the Court fees Act.
The expression "decree" as used in the Court fees Act.,ppears to have the same connotation as that expression has in the Code of Civil Procedure.
The Court fees Act is intended to be a complementary piece of legisiation to the Code of Civil Procedure dealing with payment of court fees in matters which are tried by the civil Courts.
If the expression "decree" has the same connotation as that expression has in the Code of Civil Procedure, it would be difficult to regard an adjudication made by a Tribunal appointed under the as a decree within the meaning of the Court fees Act, even though it is so called under the .
In order that an adjudication should amount to a decree under the Code of Civil Procedure, it must be a formal expression of an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit.
The proceedings to be initiated by displaced persons for adjustment of their debts or by displaced creditors or displaces, debtors are by applications.
Such applications cannot be regarded as plaints in civil suits and are not required by law to bear ad valorem court fee under schedule 1, cl. 1 of the Court fees Act.
It is true that the provisions of the Code of Civil Procedure are made applicable to the proceedings which are commenced by applications.
But the proceedings under the Act cannot be called suits.
Again the Tribunal in dealing with an application under section 6 of the is not merely deciding a claim made by a debtor, but is dealing with an application for adjustment of his debts.
x x x x Even if the Legislature has chosen to call such an award a decree, it cannot amount to a decree within the meaning of sub section (2) of section of the Code of Civil Procedure and in my judgment the award cannot be regarded as a decree within the meaning of Schedule II cl. 11, of the Court fees Act.
" 680 We find ourselves in complete agreement with the aforesaid observations made by Shah, J. In Parmanand Lokumal and other vs Khudabadi Bhaibund Cooperative Credit Bank Ltd. and Others, while construing an almost identical question, the Calcutta High Court observed as follows: "It is to afford relief to displaced persons and that purpose may well be frustrated, if, in cases of preliminary dismissals of the applications the appeals are to be filed with ad valorem court fee on the disputed amount, even assuming that it is capable of ascertainment at the particular stage.
Beaning that in mind and having regard to the scheme and structure of the Act and the nature of the impugned decree, namely, of dismissal on the preliminary finding of the failure of the appellants to prove the necessary status, and, the propriety of that finding being the sole question for consideration in the appeal, so far as the appellant are concerned, we do not think that it would be improper to hold that the subject matter in dispute in the appeal is that question of status which plainly is incapable of money value.
The appeal thus would come under Schedule II, article 17, of the Court fees Act, provided, of course, the memorandum of appeal is in a 'suit ' as contemplated in the opening paragraph of the Article.
x x x Even if the subject matter in dispute in the appeal be held to be the relief of reliefs, claimed by the appellants in their original application, the decree, impugned being one of dismissal of the same, we do not think that any other view on the question of its valuation should be taken." The Calcutta High Court appears to have made a distinction between a decree passed by a Tribunal dismissing the claim of a petitioner on a preliminary ground that the claimant was not able to prove his status and therefore had no locus standi to file the claim and a case where the claim was dismissed or decreed on merits.
According to the High Court, in the former case a decision given by the Tribunal would be only an order, whereas in the latter case it would be a decree.
We, however, do not agree with this part of the observation because as pointed out by us the statute makes no distinction at all between the decision of the Tribunal which rejects the claim either on a preliminary point or on merits and one which allows the claim.
Both these kinds of decisions have been termed as decree passed by the Tribunal.
In these circumstances, therefore, there does not appear to be any warrant for the distinction which seems to have been drawn by the High Court between a decree passed by a Tribunal on a preliminary point or that passed on merits.
Even otherwise, according to the general scheme of the Code of Civil Procedure whether the suit culminates in the rejection of the claim of the plaintiff, and thereby in dismissal of the suit or in acceptance of the claim of the plaintiff, where the suit is decreed the final adjudication given by the Court is a decree whether it is one dismissing the claim or one allowing it.
681 The distinction between a decree which is one of dismissal of the suit or a decree which amounts to an acceptance of the claim of the plaint is too artificial to merit any consideration.
While, therefore, we do not agree with some of the observations of the Calcutta High Court, we fully agree with the other part of observations where the Calcutta High Court has held that ad valorem court fees are not payable.
Similarly, in Punjab National Bank Ltd. vs Firm Isardas Kaluram, a Full Bench of the Rajasthan High Court observed x x x x x x "We are therefore of opinion that the order passed in this case, though it finally determined the application of the appellant, was not a decree, because it did not a determine the claim which, in the circumstances in which that word has been used in section 11(2) must relate to the existence or the amount of the debt due to the creditor.
The creditor, therefore, if he has a right of appeal, has to pay court fee under Sch.
article 11 which mentions appeals which are not preferred from a decree or an order D. having the force of a decree.
Here the order, though it finally determined the application under section 10, was not a decree; nor did it have the force of a decree for it is not strictly in accordance with the terms of section 11(2).
x x x x x x We feel that this Act is an ameliorative measure for the benefit of displaced persons.
It should be strictly interpreted, and only those orders should be considered decrees, which come strictly within the terms of section 9, 11(2) and 14(2).
Where however the order does not come strictly within the terms of those provisions, it should not be tracted as a decree, but only as an order determining the application.
" Here also a distinction was sought to be drawn between a dismissal of the application on the ground that the claimant was not a displaced person and a decision which decreed the claim on merits.
Barring this disinction made by the High Court, which we do not approve, we are in agreement with the other observations made by the Full Bench which are to the effect that the order passed by the Tribunal not being a decree clearly falls within the ambit of Sch.
II, article 11, of the Court Fees Act.
In a later decision of the same High Court in The Punjab National Bank Ltd. vs The American Insurance Company Ltd. the Court observed as follows: 682 "On an analysis of section 18(2), it cannot be said that the order under appeal passed by the learned Civil Judge is a decree or order having the force of a decree.
The appellant was, therefore, not liable to pay ad valorem court fee as required under Schedule I, article 1, of the Court Fees Act.
The tribunal is competent to pass a decree only after submitting a report to the Insurance Claims Board and after receiving their proposal.
If this is not done and the application is rejected on the ground that the loss did not take place in the circumstances specified in section 18(1) that order cannot be said to be a decree.
The reasoning of the Full Bench case with regard to sec.
11(2) is applicable to the present case which is under sec.
" The Punjab High Court in section Sohan Singh vs Liverpool and London and Globe Insurance Co. Ltd. appears to have taken the same view and observed as follows: "Having regard to the general purpose of the Act, which is almost entirely intended to benefit displaced persons and relieve them from the hardships consequent on their displacement, I do not think there can be any doubt that the Act was intended to benefit all displaced persons who had property in West Pakistan which suffered loss or damage and which was covered by an insurance policy entered into before 15 8 1947 and in force at the time when the loss or damage was sustained, whether this occurred before or after the 15th of August.
x x x x x .
My own view is that it was certainly never anybody 's intention that displaced persons, whether debtors or creditors should have to pay 'ad valorem ' court fees on appeals against orders dismissing their applications, and I am inclined to share the view of Khosla, J., that an order dismissing an application, whether under section 5 or section 10 or 13, is merely a final order which does not necessitate the drawing up of any decree sheet or amount to a decree and more particularly so in the case where an application has been dismissed, as in the present case, on a preliminary point without going into the merits at all.
" We find ourselves in complete agreement with the observation made by Falshaw, J., in the decision referred to above.
Our attention was, however, drawn by the learned counsal for the respondents to three decisions of the High Court taking contrary view, namely, Kishandas vs Parasram; Nabh Raj Notan Das vs Sidhu Ram Mool Chand and Sita Ram vs Mool Chand.
These decisions have on doubt held that decision of the Tribunal under the 683 Act amounts to a decree and, therefore, does not fall within the ambit of Sch.
II article 11 and ad valorem court fee is payable under the Court Fees Act.
We are, however, unable to agree with the view taken by these Courts.
In the first place, these decisions have not taken into consideration the nature of the proceeding under the Act and the clear distinction made by the Act itself between a suit and a proceeding.
These decisions have also not considered the various aspects which we have discussed above relating to the essential conditions of a decree and finally these decisions have also overlooked the main purpose and object of the Act and seem to have also ignored the rule of strict interpretation of a fiscal statute.
For these reasons, therefore, that the court fee of Rs. 5/ paid by the appellants on the cannot be held to be good law and must, therefore, be over ruled.
On a consideration of the facts, circumstances and the law on the subject we are clearly of the view that the memorandum of appeal in the instant case falls within the ambit of Sch.
II, article 11, and the view of the Taxing Judge that ad valorem court fee was payable under Sch.
I, article 1, of the Court Fees Act was legally erroneous.
We hold, therefore, that the court fee of Rs. 5/ paid by the appellants on the memorandum of appeal was sufficient.
Before concluding we must notice an argument advanced by the learned counsel for the respondents.
It was submitted that under section 5 of the Court Fees Act a decision of the Taxing Judge as designated by the Chief Justice is final and cannot be reopened in any Court.
It was submitted by Mr. Dikshit that in view of this provision the appeal to this Court by special leave was not maintainable.
We are, however, unable to agree with this contention.
Even though an order of the Taxing Judge may be final under section 5 of the Court Fees Act, the power of this Court under article 136 granted by the Constitution will override any stamp of finality given by a statute or Act passed by Parliament.
The finality which may attach under section 5 of the Court Fees Act cannot derogate from the power conferred by the Constitution itself on the Supreme Court.
Reliance, however, seems to have been placed on a decision of this Court in section Rm.
section Sp.
Satheppa Chettiar vs section Rm.
Ramanathan Chattiar and particularly on the following observations made by this Court: "In our opinion, the decision of the Division Bench of the Madras High Court that the memorandum of appeal should be taxed for the purposes of Court fee under section 7(iv) (b) of the Act is final under the provisions of section 5 of this Act.
That is why we have not allowed the merits of this order to be questioned in the present appeal.
We must, therefore, deal with the appellant 's contention on the basis that the court fees on his memorandum of appeal must be levied under section 7(iv) (b) of the Act.
" These observations prima facia seem to support the contention of the respondents but on a closer scrutiny of the entire decision it seems 684 to us that this Court was not at all called upon to decide the question of the effect of section 5 of the Court Fees Act as overriding the provision of article 136 of the Constitution.
The observations relied upon by the respondents are prefaced by the observations of Gajendragadkar, J., who spoke for the Court, where he has clearly mentioned that the Court was not called upon to consider this point, thus: "We are, however, not called upon to consider the point as to whether section 7 (v) would apply to the present suit or whether the present suit would fall under section 7(iv) (b).
" Further more, it appears that as the appellant before the Supreme Court was satisfied with the observations made by the Court, he did not press for a decision on the question of court fees and confined his arguments only to the question as to whether the court fees should be levied under section 7(iv) (b) of the Court Fees Act.
In these circumstances, therefore, the identical question raised before us was neither argued nor decided in the case referred to above by the respondents.
For these reasons the contention raised by the respondents on this score must be overruled.
The result is that the appeal is allowed, the order of the Taxing Judge directing payment of the ad valorem court fees is set aside and the High Court is directed to hear and dispose of the appeal in accordance with the law on the court fee already paid by the appellants which, in our opinion, is sufficient.
In the peculiar circumstances of this case and in view of somewhat uncertain position of the state of law, we make no order as to costs.
P.B.R. Appeal allowed.
| IN-Abs | Schedule II, Article 11 of the Court Fees prescribes a sum of Rs. 2/ as court fees in the case of a memorandum of appeal presented to a High Court when the appeal is not from a decree or order having the force of a decree.
The Tribunal appointed under the dismissed the petition filed by the appellant claiming certain sums from the respondents.
In appeal to the High Court from the decision of the Tribunal did not amount to a decree within the meaning of section 2(2) of the Code of Civil Procedure.
The taxing Judge, to whom question of payment of court fees was referred, came to the conclusion that the appellant should pay ad valorem court fees under Schedule I, Article 1 of the Court Fees Act.
On the question whether the decision of the Tribunal was a decree within the meaning of section 2(2) C.P.C. Allowing the appeal to this Court, ^ HELD: The memorandum of appeal in the instant case falls within the ambit of Schedule II, Article 11 of the Court Fees Act and the view of the taxing Judge that ad valorem court fees were payable under Schedule I Article 1 was legally erroneous.
[683C] (1) (a) In the definition of "decree" contained in section 2(2) of the Code of Civil Procedure, three essential conditions are necessary: (i) that the adjudication must be given in suit; (ii) that the suit must start with a plaint and culminate in a decree; and (iii) that the adjudication must be formal and final and must be given by a civil or revenue court.
[677E F] Under the 1951 Act, special Tribunal was created to enquire into the claims of displaced debtors or creditors.
It cannot be called a court in any sense of the term because the legislature had made a clear distinction between a Tribunal and a courts.
Secondly, since proceedings before a Tribunal statute with an application and not with a plaint the other important ingredient of a decree is wholly wanting.
Thirdly the claim before the Tribunal had been described as a preceding rather than a suit.
Therefore, none of the requirements of a decree is to be found in the decision given by the Tribunal even though the legislature may have described the decision given by the Tribunal even though the legislature may have described the decision as a decree.
A mere description of the decision of the Tribunal as a decree does not make it a decree within the meaning of the Court Fees Act.
[677G H] (b) The term "decree" used in Schedule II, Article 11, is referable to a decree as defined in section 2(2) of the Code of Civil Procedure.
As the decision of the Tribunal in the instant case does not fulfil the requirements of a decree, 665 it is not a decree within the meaning of Schedule II, Article 11 of the Court Fees Act.
[678D] Mannan Lal vs Mst.
Chhotaka Bibi ; Ram Prasad vs Tirloki Nath, ; Dawood Karim Ashrafi vs City Improvement Board.
; Antala Gope vs Sarbo Gopain, AIR [1962] Pat. 489; Mrs. Panzy Fernadas vs Mrs. M. F. Cusoros & others AIR [1963] All. 153; Dundoppa vs
S G. Motor Transport Company.
AIR [1966] Mys,. 150; Irshad Husain vs Bakshish Hussain ; Harrish Chandra Chatteree vg.
Bhaoba Tarini Debi, 8 C.W.N. 321; Taxing Officer, High Court Appellate side vs Jamnadas Dharamdas ILR ; Barras vs Aberdeen Steam Trawling and Fishing Company ; 411; Parmanand Lokumal and others vs Khudabadi Bhaibund Co operative Credit Bank Ltd. and others, AIR [1958] Raj. 146; The Punjab National Bank Ltd. vs The American Insurance Company Ltd. ILR and section Sohan Singh vs Liverpool and London and Globe Insurance Co. Ltd. AIR , referred to.
Parmanand Lokumal and others vs Khudabadi Bhaibund Co opertive Credit Bank Ltd. and others, AIR [1958] Cal.
675; Punjab National Bank Ltd. vs Firm Isardas Kaluram AIR ; Kishandas vs Parasram AIR and Sita Ram vs Mool Chand, ,. not approved.
(c) Where a legislature uses an expression bearing a well known legal connotation it must be presumed to have used the said expression in the sense in which it has been so understood.
Therefore, when the Court Fees Act uses the word "decree" which had a well known legal significance, the legislature must be presumed to have use this term in the sense in which it is which it is understood in the Civil Procedure Code.[678F; 679B] Barras vs Aberdeen Steam Trawling and Fishing Company ; , 411.
referred to.
There is no force in the contention of the respondent that under section 5 of the Court Fees Act the decision of the taxing Judge was final and could not be re opened in any court and as such no appeal under Article 136 was maintainable.
Even though the order of the taxing Judge may be final under section 5, the power of this Court under Article 136 will over ride any stamp of finality given by a statute.
The finality under section 5 cannot derogate from the power conferred by the Constitution on the Supreme Court.
[683E] section Rm Ar.
section Sp.
Satheppa Chettiar vs section Rm.
Ramanathan Chettiar , held inapplicable.
|
N: Criminal Appeal No. 143 of 1975.
From the Judgment and order dated 18th February 1975 of the Andhra Pradesh High Court in Criminal Appeal No. 583 and CMP Nos 10 103 of 1975.
D. Mookherjee and A. V. V. Nair, for the Appellants.
P. Ram Reddy and P. Parameshwara Rao, for the Respondent.
The Judgment of the Court was delivered by 543 FAZAL ALI, J.
Five accused persons, namely, accused No. 1 K. A Ramachandra Reddy, No. 2, Manne Sreehari, No. 3 Prabhakar Reddy, No. 4 Sudhakara Reddy and No. 5 Bhaskar Reddy were put on trial in the Court of First Additional Sessions Judge, Nellore under sections 147, 148, 302/149 and 302/34 I.P.C. for having caused the murder Of the decessed Venugopala Reddy resident of Rachakandrika village of Nellore District.
The learned Sessions Judge after recording the evidence of the prosecution and hearing the arguments rejected the entire prosecution case and held that the prosecution had miserably failed to prove the case against any of the accused and he accordingly acquitted all the five accused by his judgment dated July 25, 1973.
The State of Andhra Pradesh thereafter filed an appeal under section 417 of the Code of Criminal Procedure against the order of acquittal passed by the learned Additional Sessions Judge, Nellore.
The appeal was heard by a Division Bench of the Andhra Pradesh High Court which reversed the order of acquittal passed by the learned Sessions Judge only in respect of accused Nos. 1 & 2 and convicted them under section 302/34 I.P.C. and sentenced them to 'imprisonment for life.
The acquittal of the other accused Nos.
3 to 5 was confirmed by the High Court.
the two appellants namely K. Ramachandra Reddy and Manne Sreehari to be referred to hereafter as Accused Nos. 1 & 2 respectively have filed the present appeal in this Court under section 2A of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act of 1970.
A perusal of the judgment of the High Court clearly reveals that the learned Judges have not accepted the major part of the evidence adduced by the prosecution in support of the case against the accused and have founded the convicton of the accused Nos. 1 & 2 solely on the basis of Ext.
P 2 a dying declaration alleged to have been made by the deceased Venugopala Reddy at Dr. Ramamurthi Nursing Home before a Magistrate the next day after he is said to have been assaulted.
The High Court on a careful reading of the dying declaration held that it was a truthful version of the manner in which the deceased was assaulted by the accused and as the deceased had made a full disclosure to a Magistrate in the presence of a Doctor who had testified to the fact that the deceased was in a fit state of mind to make a statement there was no reason to disbelieve the dying declaration which the High Court believed to be genuine and true.
The arguments of the learned counsel for the appellants naturally centered round the reliability of Ext.
P 2 the dying declaration recorded by the Magistrate at the Nursing Home.
Appearing for the appellants Mr. Debabrata Mookerjee submitted two propositions before us : (1) that the High Court in reversing the acquittal of the appellants completely overlooked the principles laid down by this Court that the High Court ought not to interfere with an order of acquittal in appeal without displacing the reasons given and the circumstances relied upon by the Trial Court and certainly not in a case where two views are possible; and 544 (2) that the High Court failed to consider the suspicious circumstances under which the dying declaration was made which went to show that it was hot a voluntary or true disclosure by the deceased but was the result of tutoring and prompting by his relations.
On the other hand Mr. Ram Reddy the Senior standing counsel for the State of Andhra Pradesh submitted that the High Court was fully justified in relying upon the dying declaration which was both true and voluntary and whose correctness had been testified by the Magistrate and the Doctor.
The learned counsel also relied on some other evidence in order to corroborate the genuineness of the dying declaration .
Before examining the contentions raised by counsel for the parties, it may be necessary to give a resume of the prosecution case shorn of its essential details.
It appears that there was serious political rivalry between Bhaskar Reddy A 5 and the deceased Venugopala Reddy over the election of the local Panchayat Committee known as Samithi.
It appears that some allegations or misappropriation or public funds having been made against accused No. 5 Bhaskar Reddy the deceased displaced him from the Presidentship of the Panchayat Samithi in a meeting called a few day before the death of the deceased where Bhaskar Reddy was not invited.
This is supposed to have provided an immediate provocation for the accused to have attacked the deceased.
According to the prosecution the deceased had gone to his Petrol Pump in Tada Bazar and after sunset was leaving for his village through the main highway and after having traversed about half a mile when he reached the place of occurrence situate near the mango grove he was surrounded by the five accused who pounced up him and assaulted him with stones, knives and sticks.
Venugopala fell down and the accused ran away after assaulting him.
S and 6 who were keeping watch over the mango grove were attracted to the scene of occurrence by the cries of the deceased and P.W. S was sent by P.W. 6 to the village Rachakandrika to call the relations of the deceased.
The errand entrusted to P.W. S having been executed P.W. 1 the son of the deceased and P.W. 2 his cousin arrived at the spot and found the deceased in a sitting posture being attended to by P.W. 6 with a large number of injuries on his person.
In fact it would appear from the post mortem report that the deceased had sustained as many as 48 injuries on his person.
IT is further alleged by the prosecution that P.W. I asked his father regarding the occurrence and the deceased disclosed the names of accused Nos.
I to 5 as his assailants.
Thereafter the deceased was taken in a lorry to the Nursing Home of Dr. Ramamurthi at Nellore and P.W. 7 Sarpanch of the village and a very close and intimate friend of the deceased also accompanied the deceased in the lorry upto Nellore.
Dr. Ramamurthi had gone to a cinema but on being sent for he arrived at the Nursing Home and attended to the deceased.
He directed P.W. 1 to rush to the police station at Sullurpet to report he occurrence.
P.W. 1 went to Sullurpet and reported the matter to the Sub inspector who made a station diary entry Ext.
The Sub lnspector.
however, did not choose to register.
545 the case on the basis of the diary entry but proceeded to Nellore.
We A would like to mention here that Ext.
D 4 was the real F.I.R. in the case within the meaning of section 154 Cr.
P.C. and the Sub Inspector committed a dereliction of duty in not registering the case on receiving the First Information Report about the death of the deceased from P.W. 1 the son of Venugopala Reddy.
We might also mention that the Sub Inspector P.W. 15 was also a friend of the deceased being his class fellow.
It may be pertinent to note here that although a report was made by P.W. 1 to the Sub Inspector yet the names of the appellants were not at all mentioned in the station diary entry which was based on the verbal report given by P.W. 1.
No reason or explanation seems to have been given by the prosecution for the non disclosure of the names of the appellants by P.W. 1 if in fact he had been told these names by the deceased himself at the spot.
When the Sub Inspector P.W. 15 reached the Nursing Home he was asked by the Doctor P.W. 17 to get a Magistrate so that the dying declaration of the deceased may be recorded.
Acting upon the instructions of P.W. 17 the Sub Inspector went to the Magistrate P.W. 11 who arrived at the Nursing Home and recorded the dying declaration of the deceased which is Ext.
P 2 in the case and which forms the basis of the conviction of the two appellants.
Thereafter in view of the critical condition of the deceased Dr. Ramamurthi advised that the deceased should be taken to the Madras General Hospital and accordingly the relations of the deceased took the deceased to the Madras General Hospital where also he is said to have made another dying declaration before the police.
This dying declaration, however, was rejected both by the Sessions Judge and the High Court and it is not necessary for us to refer to this part of the evidence.
Even the oral dying declaration said to have been made by E the deceased to P.Ws. 1 and 2 and others also has not been accepted either by the Sessions Judge or by the High Court.
The accused pleaded innocence and averred that they had been falsely implicated due to enmity.
Thus it would appear that the conviction of the accused depends entirely on the reliability of the dying declaration Ext.
The dying declaration is undoubtedly admissible under section 32 of the Evidence Act and not being a statement on oath so that its truth could be tested by cross examination, the Courts have to apply the strictest scrutiny and the closest circumspection to the statement before acting upon it.
While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person yet the Court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of has imagination.
The Court must be satisfied that the deceased was in a fit slate of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour.
Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration.
The law on the subject has been clearly and explicitly enunciated 37 833 Sup CI/76 546 by this Court in Khushal Rao vs State of Bombay(l) where the Court observed as follows: On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, & agreement with the opinion of the Full Bench of the Madras IB High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated, (2) that each case must be determined on its own facts keeping in view tile circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence, (S) that a dying declaration which has been recorded by Q competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night.
whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control.
that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.
Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross examination.
" The above observations made by this Court were fully endorsed by a Bench of five Judges of this Court 'in Harbans Singh and Another vs State of Punjab(2) .
In a recent decision of this Court in Tapinder Singh vs State of Punjab(3), relying upon the earlier decision referred to above.
this Court observed as follows: (1) ; (2) [1962] Supp.
(1) S.C.R. 104.
(3) ; 547 lt is true that a dying declaration is not a deposition in court and ii is neither made on oath nor in the presence of the accused.
It is, therefore, not tested by cross examination on behalf of the accused.
But a dying declaration is admitted in evidence by way of an exception to the general rule against the admissibility of hearsay evidence, on the principle of necessity.
The weak points of a dying declaration just mentioned merely serve to put the court on its guard while testing its reliability, by imposing on it an obligation to closely scrutinise all the relevant attendant circumstances.
" In Lallubhai Devchand Shah and others vs State of Gujarat(1), this Court laid special stress on the fact that one of the important tests of the reliability of a dying declaration is that the person who recorded it must be satisfied that the deceased was in a fit state of mind and observed as follows: "The Court, therefore, blamed Dr. Pant for not questioning Trilok Singh with a view to test whether Trilok Singh was in a "fit state of mind" to make the statement.
The "fit state of mind" referred to is in relation to the statement that the dying man was making.
In other words, what the case suggests is that the person who records a dying declaration must be satisfied that the dying man was making a conscious and voluntary statement with normal understanding.
" We would now examine the dying declaration Ext.
P 2 in the light of the principles enunciated above.
To begin with, we would like to deal with the surrounding circumstances and the attendant factors which culminated in the dying declaration Ext.
P 2 made by the deceased at Dr. Ramamurthi Nursing Home.
According to the prosecution there were three clear occasions when the deceased was conscious and could have made a statement disclosing the names of his assailants.
The first occasion was at the place of occurrence itself, after the deceased is said to have been assaulted by the accused.
The persons who were present on this occasion were P.Ws. 1, 2, 5 & 6.
According to P.W. 1 (p. 5 of the printed Paper Book) the deceased even though he was groaning was in a condition to speak out and on being questioned he narrated the entire occurrence and disclosed the names of the five accused persons to P.W. 1.
The fact that the deceased had mentioned the names of all the accused to this witness has been disbelieved by 4 both the Courts and in our opinion rightly, because P.W. i did not make any mention of this fact either in the F.I.R. Ext.
D 4 or in his statement to the police.
Nevertheless from the statement of P.W. 1 who is the son of the deceased it is manifestly clear that the deceased was in a position to make a statement and yet he did not disclose the names of the assailants.
Similarly P.W. 2 (p. 15 of the Printed Paper Book ) categorically states that in his presence P.W. I asked the deceased as to how the incident took place and the deceased told him that all the five accused had assaulted him with sticks, stones and (1)[1971] 3 S.C.C. 767.
548 knives and then ran away.
This also shows that the deceased was conscious when he is said to have made this statement.
Lastly, there is the evidence of P.W. 6 (p. 29 of the Paper Book) who also says the although the witness could not hear what the deceased said yet he was speaking very slowly with his son.
Thus at the first stage, namely, when the deceased was at the spot he was in a position to make the statement and yet, according to the findings of the Courts below, he did not disclose the names of the assailants to any body.
The second occasion when the deceased could have disclosed the names of his assailants was at the time when he was carried in a lorry from the place of occurrence to Dr. Ramamurthi Nursing Home.
P.W. 1 (p. 8 of the printed Paper Book) categorically states that at the time when his father was put on the lorry he was groaning but he was in a position to talk.
The witness further goes on to state that 'none of the ' 'O to 30 persons who had gathered at the scene tried to ask the deceased as to how the incident took place.
Similarly P.W. 6 (p. 29 of the printed Paper Book) clearly stated that the injured was in a position to talk while he was being put on the lorry and about 50 to 60 persons were present there at that time.
The third occasion when the deceased could have disclosed the names of the assailants was when he reached the Nursing Home.
In this connection P.W. 1 (p. 9 of the printed Paper Book) has stated that on reaching the hospital the Doctor was sent for and at that time his father was conscious and was in a position to talk though he was groaning with pain.
He further admitted that he did not tell the Doctor what his father had told him.
Similarly P.W. 2 states (at p. 16 of the printed Paper Book) that when the Sub Inspector of Sullurpet came and saw the injured in the room of the Nursing Home the injured was in a position to talk but the Sub Inspector did not talk to him or question him on anything.
P.W. 15 the Sub Inspector of Sullurpet states (at p. 41 of the printed Paper Book) that he found about 20 persons at the Nursing Home gathered outside the Nursing Home and saw Dr. Ramamurthy attending on the injured inside when the injured was hl a conscious state.
From the evidence discussed above, it is clearly established that although the deceased was conscious at the place of occurrence, at the time when he was put on the lory and also at the time when he was brought to the Nursing Home and was in a position to speak he did not disclose the names of the assailants to any body.
This conduct of the deceased can be explained only on two hypotheses, namely, either the deceased was not conscious at all and was not in a position to talk to ally body or that even though he was conscious he did not disclose the occurrence to any body because under the stress and strain of the assault, which took place admittedly at a time when darkness had set in and there was very little moonlight, he was not able to identify the assailants.
No third inference can be spelt out from the conduct of the deceased in not disclosing the names of the assailants on these three occasions.
Further more, the fact that the deceased was not in a position to identify the assailants receives intrinsic support from the statement of P.W. 1 (at p. 6 of the printed Paper Book) where he clearly 549 states that he had seen A 3, A 4 and A l at A 5 's house about five years before the occurrence.
He further states that he did not know it his father knew A l, A 3 and A 4 well and by their names.
He further states that A 3 had visited his house five years ago and he could not say whether his father was present at that time.
Lastly the witness states that he had no other acquaintance with A 3 and A 4.
He also states that he came to know A 2 only after the occurrence of this case.
The learned Sessions Judge has rightly relied on these circumstances to come to the conclusion that the deceased did not know the names of the accused nor was he able to identify them in the darkness and this introduces a serious infirmity in the dying declaration itself.
It would be seen that in the dying declaration Ext.
P 2 the name of the accused No. l Ramachandra Reddy is clearly mentioned and so is the name of accused No. 2.
If according to P.W. l there was a clear possibility of the deceased not having known the names of A l, A 2 or A 3 then it is not understandable how these names could be mentioned by the deceased in his dying declaration unless the names were suggested to him by some body.
Against this background the presence of P.W. 2 the cousin of the deceased by his side even at the time when the dying declaration was recorded or a little before that clearly suggests that the possibility of prompting cannot be excluded.
Even the High Court has clearly Found that the possibility of prompting was there.
Dr. Ramamurthi P.W. 17 has stated that while the Magistrate was recording the statement of the injured, the injured was sitting for a while and was thereafter lying in the lap of P.W. 2 who was nursing him then.
Another important circumstance that has been considered by the learned Sessions Judge but overlooked by the High Court is that even though according to the evidence led by the prosecution the deceased was fully conscious in the hospital and had met persons from his village, his Friends and acquaintances including Dr. Ramamurthi P.W. 17 and the Sub Inspector P.W. 15 yet he did not make any statement to any of these persons nor did any of these persons try to question the deceased about the occurrence.
In fact the categorical evidence of P.W. 17 Dr. Ramamurthi is that from the time the patient was brought in the Nursing Home till the Magistrate arrived, the patient did not to any one including him.
The learned Sessions Judge has observed that this is a very extra ordinary and unnatural circumstances which throws a wood deal of doubt on the circumstances in which the dying declaration was recorded.
The Doctor was known to the deceased and yet neither the deceased talked to him nor did the Doctor make any inquiry from him.
On the other hand P.W. 15 the Sub Inspector has stated (at p. 42 of the printed Paper Book) that when the deceased had reached the Hospital he was not in a position to talk and was groaning.
P.W. 17 Dr. Ramamurthi has also stated that the state of mind of the deceased was restlessness.
He further deposed that till the Magistrate arrived, the witness had no opportunity to assess the mental capacity of the injured Venugopala Reddy.
It would appear from the evidence of P.W. 20 who made the postmortem that there were as many as 4 injuries on the person of the deceased out of which there were 28 incised wounds on the various parts of the body including quite a few gaping incised injuries.
In view of these serious injuries we find it difficult to believe that the deceased would have been in a fit state of mind to make a dying declaration.
The Magistrate P.W. 11 who recorded the dying 550 declaration has admitted that the injured was suffering from paid and he was not in a position to sign and so his thumb impression was taken.
The Magistrate further admitted that the injured was taking time to answer the questions.
The Magistrate further admitted that the injured was very much suffering with pain.
In spite of these facts the Magistrate appears to have committed a serious irregularity in not putting a direct question to the injured whether he was capable mentally to make any statement.
In the case of Lallubhai Devchand Shah referred to by us supra the omission of the person who recorded the dying declaration to question the deceased regarding his state of mind to make the statement was considered to be a very serious one and in our opinion in the instant case the omission of the Judicial Magistrate who knew the law well throws a good deal of doubt on the fact whether the deceased was really in a fit state of mind to make a statement.
The Sessions Judge has rightly pointed out that even though the deceased might conscious in the strict sense of the term, there must be reliable to show, in view of his intense suffering and serious injuries that he was in a fit state of mind to make a statement regarding the occurrence.
Having regard, therefore, to the surrounding circumstances mentioned above, which have not been fully considered by the High Court, we find it extremely unsafe to place any reliance on Ext.
p 2 particularly in view of the conduct of the deceased in not making any disclosure regarding the occurrence on the three previous occasions when he had a full and complete opportunity to name his assailants.
Lastly it is admitted that there was serious enmity between the parties.
P.W. 2 states (at p. 16 of the printed Paper Book) that there were ill feelings between the deceased and A l, A 2 to A 5.
While counsel for the State has submitted that the deceased was assauted due to enmity, the possibility cannot be ruled out that the accused may have been named because of the enmity.
The learned standing counsel for the State relied upon the statement of Dr. Ramamurthi who had given the certificate that the deceased was in fit state of mind to make a statement.
This certificate by itself would not be sufficient to dispel the doubts created by the circumstances mentioned by us and particularly The omission by tile Magistrate in not putting a direct question to the deceased regarding the mental condition of the injured when he was satisfied that the injured was suffering from severe pain and was not able to speak normally.
For these reasons, therefore, this case clearly falls within principles (5) and (6) laid down by this Court in Khushal Rao 's case (supra).
In these circumstances we feel that it would be wholly unsafe to found the conviction of the appellants on the basis of Ext.
P 2 Mr. P. Ram Reddy for the State submitted that Ext.
P 2 was corroborated by the presence of at least accused No. 1 near the petrol pump slightly before the occurrence, took place.
The presence of accused No. 1 in Tada Bazar near his village is not completely inconsistent with his guilt and being a resident of the village close by his presence in the Bazar can be explained on account of various reasons.
It was then submitted that the accused had been absconding.
The accused, how ever, surrendered within 14 days and this is not a circumstance which outweigh the effect of the suspicious circumstances under which 551 the dying declaration was made.
It seems to us that as the deceased did not know the names of the appellants nor did he know them from before he was not able to identify his assailants and the names were supplied by P.W. 2 his cousin just before the dying declaration was made.
Putting the prosecution case at the highest, there can be no doubt that the view taken by the learned Sessions Judge that the dying declaration did not amount to a truthful disclosure cannot be said to the against the weight of the evidence on the record and even if the High Court was in a position to take a view different from the one taken by the Sessions Judge on the same evidence, this would not be a ground for reversing the order of acquittal.
In Ram Jag and others vs The State of U.P.( ') this Court observed as followed: "Such regard and slowness must find their reflection in the appellate judgment, which can only be if the appellate court deals with the principal reasons that become influenced the order of acquittal and after examining the evidence with care gives its own reasons justifying a contrary view of the evidence.
It is implicit ill this judicial process that if two views of the evidence are reasonably possible, the finding of acquittal ought not to be disturbed." Thus in the instant case as two views were reasonably possible and therefore tile High Court was in error in disturbing the order of acquittal passed the Sessions Judge.
For The reasons given above, we are satisfied that the High Court was not at all justified in reversing the order of acquittal passed by the Sessions Judge.
The appeal is accordingly allowed, the conviction and sentence passed against the appellants are set aside and they are acquitted of the charges framed against them.
The appellants are directed to be set at liberty forthwith.
M.R.Appeal allowed.
| IN-Abs | The two appellants and three others were tried by the Additional Sessions Judge, Nellore, under Ss. 147, 148, 302/149 and 302/34 I.P.C. for having committed the murder of Venugopal Reddy.
The Session Judge recorded the prosecution evidence, heard the arguments, and acquitted the accused, holding that the prosecution had failed to prove the case against them.
On appeal by the State under Sec.
417 Cr.
P.C. the High Court reversed the acquittal order in respect of the appellants and convicted them under Sec.
302/34 l.
P.C solely on the basis of a dying declaration allegedly made by the deceased before a Magistrate.
In the present appeal filed under Sec.
2A of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act of 1970, it was contended before this Court firstly that the High Court had wrongly interfered with an order of acquittal in a case where two views are possible, and secondly, that the dying declaration was not a voluntary or true disclosure but was the result of tutoring and prompting.
Allowing the appeal the Court, ^ HELD: ( 1 ) The Magistrate appears to have committed a serious irregularity in not putting a direct question to the injured whether he was mentally capable of making any statement.
The doctor 's certificate that the deceased was in fit state of mind to make statement by itself would not be sufficient to dispel the doubts created particularly by the omission by the Magistrate, when he was satisfied that the injured was suffering severe pain and was not able to speak normally.
[550A B, E F] Khushal Rao vs State of Bombay ; , followed.
Harbans Singh & Anr.
vs State of Punjab, [1962] Supp. 1 S.C.R. 104.
Lallubhai Dev Chand Shah vs State of Gujarat and Tapinder Singh vs State of Punjab ; , referred to.
(2) Even if the High Court was in a position to take a view different from the one taken by the Sessions Judge on the same evidence, this would not be a ground for reversing the order of acquittal.
Thus as two views were possible, the High Court was in error in disturbing the order
|
N: Criminal Appeal Nos.
100 146 of 1976.
Appeals by Special Leave from the Judgment and Order dated 29 8 75 of the Andhra Pradesh High Court in Crl.
Rev. Cases Nos. 256 302/75 and 437 483/75 respectively.
Niren De, Attorney General for India (In Crl. A.100, 101 and 112 of 1976) P. Ram Reddy (Crl. A.102 111 and 113 145/76); P. P. Rao and R. K. Deshpande for the appellants in all the appeals.
Sachin Chaudhary (In Crl. A.100/76); section V. Gupte (In Crl. A.101/76) T. Ramam, B. Parthasarthi for Respondents in Crls.
A. Nos.
101 105, 107 118 120 139 and 141 146/76.
The Judgment of the Court was delivered by 609 BEG, J.
These appeals, by Special Leave, raise an apparently simple question which appears to be essentially one of fact.
But, as the real question to be answered was not correctly posed before itself by the High Court of Andhra Pradesh, it misdirected itself as to what was to be really decided by it and also how it should be decided according to rules of ordinary logic as well as law.
Ordinarily, this Court does not interfere with findings of fact.
But, where the errors of logic as well as law, discussed below, appear to us to be gross and to have occasioned a miscarriage of justice, we are constrained to interfere.
The crucial question to be decided may be put as follows: What did the respondents understand when they obtained permits for the despatch of "broken rice (raw, boiled)" shown in their export permits? If the respondents understood what their permits meant, they could not, under the guise of these permits, transport any other kind of rice.
It was their duty to abide by the terms of their permits, and to show, when proceeded against, that they did so.
Each permit shows: quantity permitted to be sent; the duration of the validity of the permit; the name of the consignor; the name of the station from which rice was to be despatched; the means of despatch (shown as "by rail only"); the name and address of the consignee (shown as "self"); the State to which the consignment was to be booked (shown as Kerala State), purpose of the consignment (shown as trade account).
The permit was described as an "export permit".
The details mentioned above were given in a schedule, the permit was addressed "to the Miller", and its operative part said: "In exercise of the powers conferred under clause 3 of the Southern States (Regulation of Export of Rice).
Order, 1964 read with G.O.Ms.
No. 2495 F & A Dt. 17 10 1964 the Collector hereby permits the transport of rice products mentioned in the Schedule subject to the conditions specified below".
The specified conditions, in addition to those mentioned in the details given above were: "1.
This permit is not transferable.
It is liable for cancellation at any time by the issuing authority for the reasons to be recorded in writing.
It is valid only for the period mentioned in the permit and the consignment must be booked from the despatching station before the expiry of such period.
Any permit that is taken out but not utilised should be returned immediately to issuing authority.
The stuff should be got checked by the Assistant Grain Purchasing Officer assisted by the Food Inspector concerned while loading into the wagon and a certificate should be 610 got recorded on the permit itself that the stuff loaded is broken rice and not whole rice and the quantity loaded.
In respect of self permits the permit holder, should furnish to the Collector, West Godavari, Eluru (A.P.) and the District Supply Officer, Tedepalligudam and the Collector of the importing District within one month from the date of issue of the permit the particulars of the Station to which the consignment is booked names and addresses of the buyers".
The allegation against the respondents was that they had broken the conditions of their permits inasmuch as their consignments, which had been seized, whilst being transported in railway wagons from Andhra Pradesh to Kerala, consisted of rice instead of "broken rice".
After the issue of show cause notices and the replies filed by the respondents, a number of writ petitions was filed on a number of grounds in the High Court of Andhra Pradesh questioning the validity of confiscation proceedings under Section 6A of the (hereinafter referred to as 'the Act ').
These writ petitions were dismissed on 25th October, 1971.
After the dismissal of the Writ Petitions mentioned above, the Revenue Officer passed orders, on 18th November, 1971, confiscating only what was estimated as the quantity of "whole rice", according to the standards applied in drawing up an analysis report from samples which the Revenue officer accepted as correct.
The respondents then appealed to the District and Sessions Judge who, on 16th February 1972, set aside the orders of the Revenue officer and directed him to decide again the question involved in the cases in accordance with law, after giving full opportunity to the respondents to object to the analysis which was to be carried out afresh in their presence.
The District Judge did not consider the report of the Assistant Marketing officer of Chitur, after an analysis carried out in the presence of the District Revenue officer, to be a sufficient compliance with the requirement to give due opportunity to the respondents to show what the consignments contained.
It may be mentioned here that the reports upon which proceedings were commenced in respect of a very large quantity of rice had been filed by the Inspector of Police of the Vigilance Section of the Civil Supplies ' Department.
It was clearly mentioned in these reports that the rice which was seized by the police in the course of its transit in a number of wagons of a goods train proceeding from Andhra Pradesh to Calicut in Kerala State was not "broken rice".
The respondents are regular Millers whose business it is to know the varieties and the nomenchature of various types and qualities of rice.
They could not, therefore, be ignorant of what was the case against them.
Moreover, when the cases were actually remanded to the Revenue officer with specific directions to give the respondents fuller opportunity to show cause and meet the cases against them there could be no possible excuse for the respondents not to put in evidence of their side of the case if they had a case to put up in defence.
611 The Revision Applications by the State against the orders of District and Sessions ' Judge were dismissed by the High Court on 29th March, 1973.
During the pendency of the revision applications in the High Court.
notices of auction of boiled rice were issued under the orders of the High Court.
The rice was sold as ordinary "boiled rice".
It is alleged on behalf of the State, that the price for which the boiled rice.
seized from the Railway wagons, was sold on 5th October, 1972.
was about Rs. 30 lakhs.
This price, it was submitted, could only be fetched by "whole rice".
We are, however, more concerned with what took place after the High Court had upheld the order of the District & Sessions ' Judge remanding the case for full hearing and adduction of evidence by both sides.
In his final order of 4th December, 1973, after the remand, the District Revenue Officer gave the whole history of the case and pointed out the opportunities the respondents had been given for substantiating their case if they had one worth consideration.
The District Judge had remanded the case principally because the first report of the analyst, issued by the Assistant Director of Marketing, Chitur, had been made without an analysis carried out in the presence of the respondents although it was made in the presence of the District Revenue Officer.
The District Judge had held that the Asstt.
Director of Marketing should have himself given evidence before his report could be treated as evidence.
After the case had been remanded, there was a fresh analysis with fresh samples taken under the orders of the High Court.
And, this second analysis took place in the presence of the respondents.
The Assistant Director of Marketing, who made the analysis, was produced in evidence.
The respondent had full opportunity of cross examining him and also of giving their own versions.
But, they contented themselves with some cross examination of the Assistant Director of Marketing in the course of which it was not suggested to the Assistant Director that the test of "broken rice" was itself incorrect.
On the other hand, in answer to one of the questions in cross examination, the Assistant Director of Marketing replied: "I agree that any grain which is less than 3/4th of the whole grain is a broken.
According to Serial Grading Rules.
1966, rice includes brokens, but it is classified separately".
This meant that the respondents knew, and, therefore, suggested that the test applied by the Asstt.
Director, Marketing that any grain less than 3/4th of the whole length was to be deemed as "broken", was correct.
The cross examination was directed towards showing that, accepting this test, known to both sides, the consignment was of "broken rice".
612 It is true that the Assistant Director, in his evidence, admitted that he had not actually measured a whole grain.
He said that he had adopted the method of differentiation by looking at the grains with the naked eye and by picking them up with his hand using his own fingers.
He also admitted that, in ten out of the 50 samples he had analysed, the percentage of brokens in the analysis conducted in 1973 was less than that of 1971 from 2 to 10% but in others it was greater.
The Revenue Officer, after a careful consideration of all the facts of the case and the whole background, including the test laid down in the Hand book on Grading Foodgrains and Oilseeds, had reached the conclusion that the whole of the quantity seized was liable to be confiscated because no sample taken from the bags contained a minimum percentage of 60% of "broken" grains satisfying the test adopted, that is to say, grain less than 75% of its normal length would be deemed to be broken.
The Revenue officer treated the opinion of the Assistant Director as that of an expert which ought to be accepted.
The District and Sessions ' Judge, in appeals from the orders of the Revenue officer, reconsidered the whole case at considerable length and allowed the appeals partially by holding that percentage which could be fairly classified as broken had to be deducted after an addition to it of 2% as allowable "foreign matter".
The Sessions ' Judge 's interpretation of the remand order, as affirmed in revision by the High Court, was that the Revenue Officer could only determine the quantities of "broken" rice and whole rice to decide what proportion was and not whether the whole of the seized rice was liable to confiscation as not covered by the permits.
It appears that there had been an order by the Revenue Officer releasing 12% of the total rice as equivalent of "broken rice" which had not been set aside and had become final.
On the question whether the respondents could be said to have a mens rea the learned Sessions ' Judge observed: "I am not prepared to accept the contention that they are under a mistaken impression that whole rice, when boiled could become boiled brokens.
I do not also admit that they are not having any mens rea.
I am of the opinion that they had certainly managed with the officers, and attempted to transport whole rice (boiled) under the guise of brokens (boiled).
Therefore, it cannot be said that they have no mens rea in this case when they attempted to transport whole rice as brokens.
It is a fact that huge quantities of rice are involved and the money involved is also huge.
But the crime that these appellants attempted to prepetrate can also be considered as huge (Grave) in consonance with the quantity of rice they attempted to transport.
Therefore, I am of the opinion, that these appellants do not deserve sympathy and it does not require any more alteration of the lower Court 's orders, than the one I have already indicated above".
Hence, with the abovementioned notification of the orders of the Revenue Officer by adding 2% for "foreign matter" to the amount 613 released as equivalent of "broken rice", the respondents ' appeals were dismissed by the Sessions ' Judge on 20th November, 1974.
Both sides filed revision applications.
The High Court had before it two sets of Revision applications.
One of these was by the State of Andhra Pradesh against that part of the order of the learned Sessions ' Judge by which he held that the Revenue Officer had no jurisdiction, after the remand order, to order confiscation of the whole quantity of rice.
The State claimed the price of the whole of the seized consignment.
The other set of revision applications before the High Court was of the respondent millers against the affirmations of the orders of the Revenue Officer.
The respondents submitted that no part of the consignment was liable to be confiscated as it was not proved that it was not broken rice.
They, therefore, urged that they should get the price of the whole quantity sold.
The High Court also went into the history of the case.
It held that the object of the remand order "was to take samples of the stocks for the purpose of analysis in the presence of the rice millers and after the analysis and report of the Assistant Director, Marketing, Chitur, to give an opportunity to the rice millers to cross examine him with regard to it".
It held: "There is nothing in the remand order from which it can be said that the learned Sessions ' Judge intended the entire matter to be reopened including that of the released stocks with regard to which, according to the learned Sessions ' Judge, the matter had become final because of the view taken by him in the appeals preferred by the State that the State has no right of appeal as provided under Section 6 A of the ".
The High Court upheld the contention that the State Government had no right of appeal to the Sessions ' Judge.
It held that only a person aggrieved by an order of confiscation and not just anybody aggrieved by an order under Section 6 A had a right of appeal.
It is, however, not necessary for us to go into this question as it has not been argued by either side.
The High Court held that there could be a contravention of the Southern States (Regulation of Export of Rice) order, 1964, by the rice millers if they attempted to transport essential goods requiring permit under the Regulation Order of 1964 from the State of Andhra Pradesh to Kerala.
It, however, proceeded to hold that, as it was not proved that what was being transported was "broken rice", there was no contravention.
It reached this conclusion by a somewhat strange reasoning that, since the percentages of whole rice in the samples analysed were not known, it could not be held that the consignment was of a kind of rice for which any permit was required.
We are constrained to observe that we are not able to follow the reasoning of the High Court that, as the definition of rice in clause 2(B), in the Regulation order of 1964, says that rice "includes broken rice and paddy", it necessarily follows that the converse must be true so 614 that "broken rice must include rice".
It would have been quite correct if the High Court had said that "broken rice" is also "rice".
As the definition of rice is a comprehensive one, it includes "broken rice as part of rice", But, to hold that this meant that "broken rice" must include whole rice is to accept that a part includes the whole, if the whole includes a part, it necessarily means that the part cannot possibly be equated with the whole.
The natural, and, indeed, the only reasonably open logic would be: if the whole includes a part, nothing which is merely a part of the whole could be equated with the whole, we think that the High Court misdirected itself seriously by accepting an obviously fallacious reasoning on this question.
The High Court said: "By merely establishing that the goods are not broken rice, no offence or contravention is committed.
It must fur their be established that the goods are rice in which case only there will be contravention of the control orders as the rice millers were not exporting the goods under permits issued for export of rice.
Having regard to the uncertainty as to what the balance material other than the brokens contained in the samples, it is not possible to say with any assurance that the rice millers have contravened the control orders by attempting to export rice".
It went on to add: "It may be said that having regard to the circumstances of the case it is reasonable to assume that the rice millers have deliberately put some rice in the goods they were trans porting.
Otherwise, normally, the price of whole rice being more, they would not have allowed it to go into the brokens, and, unless there were some substantive quantities of whole rice in the goods which the rice millers were transporting, the Inspector of Police, Vigilance Cell Civil Supplies Nellore, would not have thought of seizing the goods.
It is common knowledge and judicial notice can be taken that rice or broken rice is very much costlier in Kerala State than in the Andhra Pradesh State.
It is quite possible that broken rice in Kerala State was then even costlier than whole rice in Andhra Pradesh State and it may be in such circumstances the rice millers while exporting the goods allowed more whole rice to go into the brokens so that the entire thing could be sold as broken rice and even by that to get a better price than in Andhra Pradesh for the quantity of whole rice allowed into the brokens.
But at the same time, in the absence of any guidelines by fixing standards for rice and broken rice it is difficult to say that the rice millers have done so with the necessary animus that in so doing they would be going outside the permits issued to them and they would be contravening the control orders.
When there were no standards fixed with regard to whole rice and broken rice and when there is an admixture of both whole rice and broken rice, it is difficult 615 to say when a particular admixture can be said to be broken rice or whole rice.
On an uncertain ground or on vagueness, I do not think any person can be made liable for an action which will be penal in nature".
A ground given by the High Court to justify the millers ' case, that the rice was broken rice, was: "In the present case, there is also the fact that both the Assistant Grain purchasing Officer and the food inspector inspected the goods when they were loaded into the wagons and certified that the goods loaded to be broken rice.
Across the Bar, Shri Babu Reddy has stated that no action was taken by the Government against those officers on the ground that colluding with the rice millers they falsely certified that goods loaded to be broken rice.
He has also submitted that not only that no action was taken against them, but they were also promoted to higher posts subsequently perhaps, in usual course.
Of course, there is no material before the Court with regard to it.
But suffice it to say that the fact remains that those two officers certified the materials to be broken rice".
A surprising conclusion of the High Court, which conflicts with the earlier conclusion that there was an attempted transport of rice which would contravene the Regulation order, was stated as follows by the High Court: "The rice millers were having the permits for exporting BROKEN RICE and they were not having any permits for exporting RICE.
Even assuming that the goods which the rice millers were transporting were not broken rice, it is not enough, to prove the contravention, to show that the goods they were transporting were not broken rice.
It must be proved that the goods which the rice millers were exporting were rice for which they have no permits.
If the goods which the rice millers were transporting could neither be said to be broken rice nor rice, there would be no contravention in either of which case no permits will be necessary under the control orders.
The consequences of the contravention of the control orders being penal in nature, the rice millers cannot be penalised by confiscating the goods on uncertain ground or vagueness.
I have no doubt that the Government have failed to establish that the rice millers in attempting to export the goods in question outside the State have contravened the two control orders".
We can only make the passage from the High Court 's judgment, set out above in the last paragraph, intelligible to ourselves by believing that what the High Court meant was that the control order does not make it necessary to have a permit for the transport of goods containing a mixture of broken rice and rice by requiring a permit for such a mixture.
If this be the meaning, as it probably is, we think that it 616 constitutes a complete oversight or misreading of the Regulation Order 1964, clause 3 of which says: "3.
Regulation of export of rice from specified areas.
No person shall export or abet the export of rice from any place within a specified area to a place outside that area except under and in accordance with permit issued by the State Government or an officer authorised by that Government in this behalf".
It follows that the person who transports has to prove that he has a permit for the rice he is transporting.
Learned Attorney General has, very rightly, pointed out that the whole case of the respondent Millers from the outset, when they sent a reply to the show cause notice, was that they were transporting what was wholly "broken rice".
In other words, their case was that they knew that they were holding the permit.
They never said that they did not know what their permit meant or had misunderstood it.
They did not plead that they had been cheated by somebody.
Who sent something on their behalf which was not authorised by them.
We think that Section 106 of the Evidence Act was clearly applicable to such a case.
It says: "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him".
The illustrations to this section are also helpful: "(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket.
The burden of proving that he had a ticket is on him".
So far as the actual intentions of the respondent Millers are concerned, the High Court recorded a finding, set out above, that it appeared that they had deliberately mixed whole rice with broken rice, because, unlike the situation in Andhra Pradesh, broken rice sells at a higher price in Kerala than it does in Andhra Pradesh.
If this had been the correct state of affairs, it would have been reasonable for the Millers to transport broken rice to Kerala, where it fetches a higher price, and keep whole rice which sells at a higher price in Andhra Pradesh, for sale in their own State.
Apart from this obvious flaw in the reasoning of the High Court, it is difficult to understand how the High Court could act on such an assumption about relative prices.
It thought it could take judicial notice of such a state of prevailing prices of rice in the two States.
It was certainly not a fact commonly or generally known to people that broken rice fetches a much higher price in Kerala than even whole rice.
Such as assertion has to be proved to be correct.
It was unreasonable to assume that, even if that was so, the millers of Andhra Pradesh would 617 be so anxious to cheat the purchasers in Kerala as to deliberately mix some whole rice with broken rice instead of selling the whole rice in Andhra Pradesh and broken rice in Kerala.
The more natural inference, from patent facts, was obviously that there was some advantage in mixing some "broken rice" with "whole rice" for which the millers had no permit.
Thus, the learned Judges of the High Court have themselves expressed a view indicating that the Millers were quite conscious of the distinction which existed, in accordance with the accepted practice, between what could be deemed to be "whole rice" and what could be described as "broken rice".
If they were labouring under some mistake of fact and had no intention to commit an offence, which the character and circumstances of their acts suggested, the burden of proving this was certainly upon them.
Again, what was covered by the permit would be deemed to be known to the Millers who were carrying on the business of exporting rice of various kinds, grades, and descriptions.
It is their business to see that they carry on their trade in accordance with the terms of the permits they actually obtained.
It is true that it appears, as the High Court observes, that the Millers had, apparently, been given the green signal by the officers who were expected to inspect the consignments and certify that it was "broken rice".
It is difficult to know what evidence the High Court was relying upon, apart from the conditions attached to the permits and the presumption that their duties were carried out by their officers concerned, to hold what they had inspected and certified correctly.
The respondents, who had objected to the first analysis report, the ground, inter alia, that the analyst did not enter the witness box could be met with a similar objection to the alleged inspection reports of some officers.
The only evidence produced in the case was that of the Assistant Director of Marketing who performed the analysis in the presence of the Millers after the remand order.
If the respondents were relying upon some inspection carried out by the officers in compliance with the conditions of the permit, they ought to have produced that evidence SQ that the officers concerned could have been subjected to cross examination.
An opportunity had been given to the Millers to produce evidence in rebuttal.
They produced none.
On the other hand, the cross examination of the Assistant Director showed that the Millers were accepting the tests laid down in the Hand Book on Grading of Foodgrains and oilseeds as applicable to the descriptions of rice and broken rice.
These terms, as used in the Hand book, must have been well understood by the Millers.
The Foreward to the Hand Book says that it contains instructions based on practice followed in this country for many years by the Directorate of Marketing and Inspection.
The Hand Book is an official publication.
It could be looked into to find out the accepted practice and tests employed by the Assistant Director.
As already observed, the Assistant Director was cross examined on matters contained in the Hand Book.
618 It was not suggested to him that the Hand Book did not contain correct information.
At page 8 of this Hand book, we find: "Broken Rice" In addition to the classes mentioned above broken rice forms a class by itself as it is a bye product of rice milling.
It has been classified into two groups, viz., fine brokens and common brokens.
Fine brokens cover the brokens of long slender and scented varieties of rice and common brokens over the rest".
At page 6, we find: "Brokens.
Brokens shall include pieces of rice kernels which are less than 3/4th of the whole kernel.
Pieces smaller than 1/4th of the kernel are to be treated as fragments".
The cross examination of the Assistant Director showed that the Counsel for the Millers were fully acquainted with the contents of the Hand book and were accepting it as the basis for finding out whether the tests laid down in the Hand book had been observed.
The Hand book contains several schedules.
Schedule 7 gives maximum limits of tolerance for various grades of "mill rice", a term apparently used for whole rice.
The maximum tolerance of brokens in whole rice of first grade is given as 3%, whereas the maximum tolerance of the brokens in the whole rice grade is 20%.
Schedule VIII is for "Parboiled Milled Super fine Rice".
In Schedule X, for "Parboiled, milled common rice", is shown to vary from 10% in Gr.
I to 40% in Gr.
Schedule 14 gives the grade designations and definitions of different qualities of "common broken rice".
It shows that, in order to constitute "broken rice", the percentage of brokens, the maximum limit of tolerance is from not less than 80 to not less than 60% in grade 1 to 3.
The District Judge had reached the conclusion that, quite apart from these technically prescribed tests for the purpose of grading, by the Directorate of Marketing and Inspection, the common sense test was that at least 50% must be brokens in order to constitute what could pass as a marketable consignment of "broken rice".
He had also made the necessary allowances for foreign matter.
We do not think that the test adopted by the District & Sessions ' Judge was either incorrect or unreasonable.
Indeed, we think that the High Court was quite unjustified in interfering with this test on what seems to us like metaphysical reasoning to justify its view that, where the quantities of the whole grains and broken grains in a consignment cannot be accurately determined, the consignment should be deemed to be no longer one of rice which requires a permit.
The learned Attorney General has rightly pointed out to us that at no earlier stage was it the case of the Millers that more mixture of some broken rice with some whole rice is enough to constitute the whole consignment into one of broken rice or of substance which was not "rice" at all.
In our opinion, the High Court has quite erroneously held that such mixtures do not fall within the mischief provided for by the Regulation Order of 1964.
An argument advanced by Mr. Sachin Chaudhari on behalf of the Millers, is that no rice in the course of Milling can really remain whole or unbroken in the sense that the whole length of it will be preserved.
619 He contended that, in that sense, every grain must be broken to some extent.
If that be the correct position, we think that the test laid down in the Hand book on Grading of Foodgrains and Oilseeds, issued by the Directorate of Marketing and Inspection, compiled by the Ministry of Agriculture of the Govt.
of India, is based on sound knowledge of what actually happens to grains of rice in the course of milling.
Still another argument was that it is impossible to determine with the maked eye whether a grain of rice was above or below 3/4th its normal length.
We think that this would not be a difficult task at all for an expert in the line as an Asstt.
Director of Marketing could be deemed to be.
Indeed, even with his naked eye, any person can make out, by looking at the two ends of a grain, how much of a grain of rice appears to be broken.
As we know, a grain of rice is thicker in the middle and tappers at each end.
It is not like a cylinder with a uniform diameter throughout.
From its shape and size, it is possible, even for an ordinary careful observer, to assess the length of a broken grain as compared with its expected length had it been whole.
Mr. section V. Gupte appearing for some respondents, has invited our attention to the differences, in the analysis conducted in 1971 and in 1973, between percentages of broken rice" in samples from the same stocks.
The explanation of these differences according to the learned Attorney General, is indicated in the order of the High Court, dated 29th March, 1973, by which Revision petitions against remand orders were dismissed.
The High Court observed: "During the pendency of these proceedings in this Court admittedly fresh samples had been taken in the presence of the parties and the rest of the grain was directed to be disposed.
These fresh samples are now available for analysis, it is contended by the learned public prosector that on account of lapse of time there is the possibility of even whole rice getting broken and a larger percentage of broken rice being forged in analysing now to be done.
It should be possible for the Analyst to know how long rice stay preserved as whole rice and what is the lapse of time that results in breaking up of even the whole rice and what percentage should be allowed in that connection and come to the conclusion in making analysis of the new samples taken".
The High Court had said that "there should be no difficulty in getting the fresh samples taken analysed also and the analyst giving his opinion with regard to both the samples".
There is not only a difference between the results of the analysis of 1971, as compared with the analysis of 1973, for which samples were taken, afresh from the same bags of rice, but we find that the report of 1973 itself shows, that, out of 50 samples taken from different bags of rice, there is a variation ranging from 12.5%, in the case of two samples from wagon No. SE 53657 to 40% in the case of the sample from wagon, No. SE 57670.
The analysis of another sample from the same wagon SE 57670 gives a percentage of 36.2 of "broken rice".
620 Two samples from the same wagon WR 70715 show 22.5% and 37.5% of broken rice, thus making a difference of 15% between two samples from the same wagon.
In seven samples, the percentages of broken rice were above 35%.
In 16 samples, the broken rice found ranged between 30% and 35%.
Of course, these different percentages may lead to the inference that some broken rice had been deliberately introduced unevenly between rice found in different bags.
But, once the principle is accepted that it is only the rice not covered by the permits which, under the orders of the Court, was to be confiscated, these variations do introduce an element of difficulty in determining precisely what that amount was.
6A of the Act, however, says that the Revenue officer (who exercised the powers of the Collector), "if satisfied that there has been a contravention of the order", that is to say, the Control Order, "may order the confiscation of the essential commodities seized".
It is arguable that the power is there to confiscate whatever essential commodity may have been seized for the purposes of proceeding against the person who has contravened the Control Order, yet, it cannot be denied that this power is discretionary.
Therefore, we do not propose to interfere with the order of the learned Sessions ' Judge, to the effect that, as the Revenue Officer 's order releasing the seized rice to the extent of about 12% had become final, it should not be interfered with except to the extent that the learned Sessions ' Judge added 2% more for foreign matter.
Thereby releasing slightly more in favour of the respondents.
For the reasons given above, we allow these appeals and set aside the judgment and orders of the High Court and restore those of the learned Sessions ' Judge in the cases before us.
M.R. Appeals allowed.
| IN-Abs | The respondent rice millers obtained permits under clause (3) of the Southern States (Regulation of Export of Rice) Order, 1964, for exporting "broken rice" from Andhra Pradesh to Kerala but were intercepted for allegedly transporting "whole rice" for "broken rice".
The rice was seized, and samples analysed in the presence of the District Revenue Officer who ordered confiscation of the estimated quantity of the "whole rice".
On appeal, the District Judge remanded the matter for giving fuller opportunity to the respondents for objecting to the sample analysis which was to be carried out afresh in their presence.
The State 's revision application against the remand order dismissed by the High Court, The Revenue Officer then ordered a release of 12%, and the confiscation of the remaining quantity seized, as no sample from the bags contained a minimum percentage of 60% of "broken" grains satisfying the test laid down in the Hand book on Grading Foodgrains and Oilseed.
The District & Sessions Judge partially allowed the respondents ' appals.
Both sides filed revision applications.
The High Court decided in favour of the respondent, holding that "broken rice" included "whole rice".
Allowing the appeals, the Court, ^ HELD: (1) Ordinarily, this Court does not interfere with findings of fact.
But, where the errors of logic as well as law appear to be gross and to have occasioned a miscarriage of justice, the court is constrained to interfere.
[609 D] (2) The Revenue Officer 's order releasing the seized rice to the extent of about 12% having become final, it should not be interfered with except to the extent that the learned Sessions Judge added 2% more for foreign matter thereby releasing slightly more in favour of the respondent.
[610 D]
|
ON: Civil Appeal 885/1968.
(From the judgment and order dated 6 11 1967 of the Madhya Pradesh High Court in Second Appeal No. 913 of 1965).
647 section V. Gupte, R. P. Pandey and section section Khanduja, for the appellants.
F. section Nariman, J. B. Dadachanji, P. C. Bhartari, K. L. John for the respondents.
The Judgment of the Court was delivered by GUPTA, J.
Damadi Lal, Sheo Prasad and Tirath Prasad who were members of a Hindu Joint Family brought a suit for ejectment on July 31,1962 against their tenants Begamal and Budharmal on the grounds mentioned in clauses (a) and (f) of section 12(1) of the Madhya Pradesh Accommodation Control Act, 1961.
The relevant provisions are in these terms: "Sec. 12.
Restriction on eviction of tenants. (1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only, namely (a) That the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner; x x x x x x x x x x (f) that the accommodation let for non residential purposes is required bona fide by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters if he is the owner there of or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non residential accommodation of his own in his occupation in the city or town concerned.
" Plaintiffs ' case under section 12(1)(a) was that the defendant tenants had defaulted in paying rent for the period October 1, 1961 to May 31, 1962 and did not also pay or tender the amount in arrears within two months of the service of the notice of demand.
Clause (f) of section 12(1) was invoked on the allegation that the accommodation let was required bona fide by the plaintiffs for the purpose of starting their own business.
Before the suit was instituted the plaintiffs had determined the tenancy from May 31, 1962 by a notice dated May 7 1962.
The house in dispute which is in Bazar Chowk in District Satna was let out to the defendants at a monthly rent of Rs. 275/ for the purpose of their business.
The plaintiffs reside in village Nadan, Tahsil Maihar, where they carry on their business.
The trial court by its judgment and decree dated November 11, 1964 dismissed the suit for eviction.
There was some dispute between 648 the parties as to the rate of rent; ultimately the plaintiffs admitted that the rent was fixed at Rs. 175/ per month with effect from August 1, 1961 by the Rent Control Authority and a sum of Rs. 1200/ , which was the amount in arrears, had been tendered to the plaintiffs by cheque on May 26, 1962 which the plaintiffs refused to accept.
The trial court was of opinion that the refusal was valid because "tendering by cheque is no valid tender" unless there was an agreement that payment by cheque would be acceptable and that the defendants were therefore defaulters within the meaning of section 12(1)(a).
However, in view of the dispute as to the amount of rent payable by the tenants, which was not determined during the pendency of the suit as required by section 13(2), the trial court held that no order for eviction under section 12(1)(a) could be made in this case and passed a decree for Rs. 1200/ in favour of the plaintiffs.
On the question of the plaintiffs ' requirement of the premises for their own business, the trial court found itself unable to accept the evidence adduced on behalf of the plaintiffs.
Of the witnesses examined by the plaintiffs on the point, the evidence of P.Ws. 1, 3 and 4 was not relied on because none of them was considered to be an independent witness and, further, because it was apparent from their evidence that what they said was what they were tutored to say by the plaintiffs.
The other three witnesses were plaintiffs Damadi Lal and Tirath Prasad (P.W.2 and P.W. 6 respectively) and Radhey Sham (P.W. 5), a son of plaintiff Sheo Prasad.
They were also disbelieved because of the following reasons.
Damadi Lal tried to give the impression that plaintiffs had no business except the cloth business and the grocery shop at Nadan.
He tried to conceal that they had a moneylending business and also agricultural lands.
Tirath Prasad stated that the main source of income of the family was from the moneylending business.
Tirath Prasad also disclosed that the plaintiffs had already a partnership business in cloth at Satna though Damadi Lal and P.W. 5 Radhey Sham did not admit this.
It also appears in evidence that the plaintiffs had yet another cloth business at a place called Ramnagar which was managed by Radhey Sham.
The plaintiffs claimed that they would start a business at Satna, but Damadi Lal 's evidence is that they had no income or saving.
Tirath Prasad also said that their income was not even sufficient for their maintenance.
Admittedly, plaintiffs had in their possession one room in the house which was let out to the defendants.
The plaintiffs did not adduce any evidence to show how the said accommodation was unsuitable or insufficient for them to start their own business.
It was also admitted that the plaintiffs had filed a suit for ejectment on an earlier occasion, but the defendants having agreed to pay increased rent the suit was not proceeded with.
According to the defendants the present suit was not instituted on the defendants ' refusal to increase the rent further to Rs. 500/ a month.
For the above reasons the trial court did not accept the case of bona fide requirement holding that P.W. 2, P.W. 5 and P.W. 6 were in the habit of suppressing the truth to suit their own purpose.
649 On appeal by the plaintiffs, the first appellate court reversed the decision of the trial court and decreed the suit.
The appellate court agreed with the trial court that sending a cheque did not amount to a valid tender of rent and, as the tenants did not apply under section 13(2), they were not entitled to protection against eviction on the ground of default.
As regards the plaintiffs ' case of requirement, the court found, that the criticism of the plaintiffs ' witnesses was not justified.
The appellate court thought that the fact that Tirath Prasad was carrying on a cloth business at Satna which Damadi Lal had kept back from court was irrelevant in view of the plaintiffs ' claim that some members of the family wanted to start a new business at Satna.
According to the appellate court the further fact that P.W. 5 Radhey Sham was running a cloth business at Ramnagar was indicative of the growing need of the plaintiffs ' family.
The room in the plaintiffs ' possession in the disputed house was not found suitable or sufficient for a wholesale business that the plaintiffs intended to start.
Referring to the trial court 's finding that the plaintiffs had no money to start a new business at Satna, the court found that the evidence did not support this.
The appellate court therefore held that the plaintiffs required the premises for their own business.
Dissatisfied with this decision, the defendants preferred a second appeal to the High Court.
During the pendency of the second appeal in High Court both the defendants died.
Budharmal died on or about January 27, 1966 and his legal representatives were brought on record and substituted in his place without objection.
Begamal died on March 2, 1967 and his heirs applied for being brought on record in his place as appellants.
The plaintiffs made an application praying for an order that the appeal had abated as a consequence of the death of both the defendants.
In this application the plaintiffs contended that Budharmal and Begamal were "merely statutory tenants and their right to resist ejectment on the basis of Madhya Pradesh Accommodation Control Act was merely a personal right" which was not heritable and had "not devolved upon their heirs".
By its order dated July 26, 1967 the High Court allowed the application for substitution made by Begamal 's heirs overruling the plaintiffs ' objection.
Ultimately on November 6, 1967 the High Court allowed the appeal setting aside the decree of the lower appellate court and restoring that of the trial court dismissing the suit.
The High Court found that the defendants were not in arrears of rent.
Differing from both the courts below the High Court held that the cheque which the defendants had sent to the plaintiffs in payment of the amount in arrears within a month of the service of the writ of summons on him amounted to a valid tender of rent as required by section 13, and in view of section 12(3) no order for eviction could be made.
Section 12(3) provides that no order for eviction of a tenant shall be made on the ground of default if the tenant makes payment or deposits rent as required by section 13.
This is what the High Court held on the validity of tender of rent by cheque: "The question is as to whether, instead of presenting the cash, if a cheque is sent to the landlord, that is sufficient tender of the arrears of rent or not. .
In the highly deve 650 loped society, payment by cheque has become more convenient mode of discharging one 's obligation.
If a cheque is an instrument which represents and produces cash and is treated as such by businessmen, there is no reason why the archaic principle of the common law should be followed in deciding the question as to whether the handing over of the cheque is not a sufficient tender of the arrears of rent if the cheque is drawn for that amount.
It is no doubt true that the issuance of the cheque does not operate as a discharge of the obligation unless it is encased, and it is treated as a conditional payment, yet, in my view, this is a sufficient tender of the arrears if the cheque is not dishonoured.
In the present day society, I am of the view, an implied agreement should be inferred that if the payment is made by a cheque, that mode of payment would be accepted.
" On the ground of bona fide requirement, the High Court found that there was no evidence to show that the plaintiffs had sufficient funds to start the wholesale business for which they sought to get possession of the disputed premises.
This is a point which has a bearing on the guanines of the plaintiffs ' claim.
The High Court took note of the fact that the plaintiffs made an attempt to keep back from the Court that they were carrying on business at two more places, one at Satna, and another at Ramnagar.
In this connection the High Court also referred to the defendants ' case that the plaintiffs sought to increase the rent from Rs. 275/ to Rs. 500/ a month and that when the defendants had the rent reduced by the Rent Controller to Rs. 175/ per month, the present suit was filed.
The High Court found that these circumstances which the trial court took into consideration were ignored by the lower appellate court.
The High Court accordingly held that the plaintiffs had failed to prove their case of bona fide requirement, set aside the decree of the appellate court, and restored that of the trial court dismissing the suit.
Before us, Mr. Gupte for the plaintiff appellants raised three contentions:(1) Begamal and Budharmal both of whom were statutory tenants had no heritable interest in the demised premises and, on their death, the right to prosecute the appeal in the High Court did not survive to their heirs and legal representatives; (2) payment by cheque was not a valid tender of rent and accordingly the suit should have been decreed on the ground of default; and (3) the High Court had no jurisdiction in second appeal to reverse the finding of the first appellate court on the question of reasonable requirement which was a finding of fact.
In support of his first contention Mr. Gupte relied on two decisions of this Court, Anand Nivas (Private) Ltd. vs Anandji Kalyanji Pedhi & Ors.
and Jagdish Chander Chatterjee and Ors.
vs Sri Kishan & Anr.
The statute considered in Anand Nivas ' case was Bombay 651 Rents, Hotel and Lodging Rates Control Act, 1947 as amended in 1959.
The question there was, whether a tenant whose tenancy had been terminated had any right to sublet the premises.
Of the three learned Judges composing the Bench that heard the appeal, Hidayatullah and Shah JJ.
held that a statutory tenant, meaning a tenant whose tenancy has determined but who continues in possession, has no power of subletting.
Sarkar J.delivered a dissenting opinion.
Shah J. who spoke for himself and Hidayatullah J. observed in the course of their Judgment: "A statutory tenant has no interest in the premises occupied by him, and he has no estate to assign or transfer.
A statutory tenant is, as we have already observed, a person who on determination of his contractual right, is permitted to remain in occupation so long as he observes and performs the conditions of the tenancy and pays the standard rent and permitted increases.
His personal right of occupation is incapable of being transferred or assigned, and he having no interest in the property there is no estate on which subletting may operate.
" It appears from the Judgment of Shah J. that "the Bombay Act merely grants conditional protection to a statutory tenant and does not invest him with the right to enforce the benefit of any of the terms and conditions the original tenancy".
Sarkar J. dissenting held that word 'tenant ' as defined in the Act included both a contractual tenant , a tenant whose lease is subsisting as also a statutory tenant, and the latter has the same power to sublet as the former.
According to Sarkar J. even if a statutory tenant had no estate or property in the demised premises, the Act had undoubtedly created a right in such a tenant in respect of the property which he could transfer.
Jagdish Chander Chatterjee 's case dealt with the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, and the question for decision was whether on the death of a statutory tenant his heirs succeed to the tenancy so as to claim protection of the Act.
In this case it was held by Grover and Palekar JJ., relying on Anand Nivas ' case, that after the termination of contractual tenancy, a statutory tenant enjoys only a personal right to continue in possession and on his death his heirs do not inherit any estate or interest in the original tenancy.
Both these cases, Anand Nivas and Jagdish Chander Chatterjee, proceed on the basis that a tenant whose tenancy has been terminated, described as statutory tenant, has no estate or interest in the premises but only a personal right to remain in occupation.
It would seem as if there is a distinct category of tenants called statutory tenants having separate and fixed incidents of tenancy.
The term 'statutory tenancy ' is borrowed from the English Rent Acts.
This may be a convenient expression for referring to a tenant whose tenancy has been terminated and who would be liable to be evicted but for the protecting statute, but courts in this country have sometimes borrowed along with the expression certain notions regarding such tenancy from the 652 decisions of the English courts.
In our opinion it has to be ascertained how far these notions are reconcilable with the provisions of the statute under consideration in any particular case.
The expression 'statutory tenancy ' was used in England in several judgments under the Increase of Rent and Mortgage Interest (War Restrictions) Act, 1915, to refer to a tenant protected under that Act, but the term got currency from the marginal note to section 15 of the Rent and Mortgage Interest (Restrictions) Act, 1920.
That section which provided inter alia that a tenant who by virtue of that Act retained possession of any dwelling house to which the Act applied, so long as he retained possession, must observe and would be entitled to the benefit of all the terms and conditions of the original contract of tenancy which were consistent with the provisions of the Act, carried the description in the margin "conditions of statutory tenancy".
Since then the term has been used in England to describe a tenant protected under the subsequent statutes until section 49(1) of the Housing Repairs and Rent Act, 1954 for the first time defile 'statutory tenant ' and 'statutory tenancy '. 'Statutory tenant ' was define as a tenant "who retains possession by virtue of the Rent Acts and not as being entitled to a tenancy, and it was added, " statutory tenancy ' shall be construed accordingly".
This definition of 'statutory tenancy ' has been incorporated in the Rent Acts of 1957 and 1965.
In England "statutory tenancy" does not appear to have had any clear and fixed incidents; the concept was developed over the years from the provisions of the successive Rent Restrictions Acts which did not contain a clear indication as to the character of such tenancy.
That a statutory tenant is entitled to the benefit of the terms and conditions of the original contract of tenancy so far as they were consistent with the provisions of the statute did not, as Scrutton L. J. observed in Roe vs Russell, "help very much when one came to the practical facts of life", according to him "citizens are entitled to complain that their legislators did not address their minds to the probable events that might happen in cases of statutory tenancy, and consider how the legal interest they were granting was affected by those probable events".
He added, ". it is pretty evident that the Legislature never considered as whole the effect on the statutory tenancy of such ordinary incidents as death, bankruptcy, voluntary assignment, either inter vivos or by will, a total or partial subletting; but from time to time put into one of the series of Acts a provision as to one of the incidents without considering how it fitted in with the general nature of the tenancy which those incidents might affect".
On the provisions which gave no clear and comprehensive idea of the nature of a statutory tenancy, the courts in England had been slowly "trying to frame a consistent theory", "making bricks with very insufficient statutory straw".
Evershed M. R. in Boyer vs Warbey said: "The character of the statutory tenancy, I 653 have already said, is a very special one.
It has earned many epithets, including "monstrum horrendum", and perhaps it has never been fully thought out by Parliament".
Courts in England have held that a statutory tenant has no estate or property in the premises he occupies because he retains possession by virtue of the Rent Acts and not as being entitled to a tenancy; it has been said that he has only a personal right to remain in occupation, the statutory right of "irremovability", and nothing more.
We find it difficult to appreciate how in this country we can proceed on the basis that a tenant whose contractual tenancy has determined but who is protected against eviction by the statute, has no right of property but only a personal right to remain in occupation, without ascertaining what his rights are under the statute.
The concept of a statutory tenant having no estate or property in the premises which he occupies is derived from the provisions of the English Rent Acts.
But it is not clear how it can be assumed that the position is the same in this country without any reference to the provisions of the relevant statute.
Tenancy has its origin in contract.
There is no dispute that a contractual tenant has an estate or properly in the subject matter of the tenancy, and heritability is an incident of the tenancy.
It cannot be assumed, however, that with the determination of the tenancy the estate must necessarily disappear and the statute can only preserve his status of irremovability and not the estate he had in the premises in his occupation.
It is not possible to claim that the "sanctity" of contract cannot be touched by legislation.
It is therefore necessary to examine the provisions of the Madhya Pradesh Accommodation Control Act, 1961 to find out whether the respondents ' predecessors in interest retained a heritable interest in the disputed premises even after the termination of their tenancy.
Section 2(i) of the Madhya Pradesh Accommodation Control Act, 1961 defines 'tenant ' to mean, unless the context otherwise requires: "a person by whom or on whose account or behalf the rent of any accommodation is, or, but for a contract express or implied, would be payable for any accommodation and includes any person occupying the accommodation as a sub tenant and also any person continuing in possession after the termination of his tenancy whether before or after the commencement of this Act; but shall not include any person against whom any order or decree for eviction has been made".
The definition makes a person continuing in possession after the determination of his tenancy a tenant unless a decree or order for eviction has been made against him, thus putting him on par with a person whose contractual tenancy still subsists.
The incidents of such tenancy and a contractual tenancy must therefore be the same unless any provision of the Act conveyed a contrary intention.
That under this Act such a tenant retains an interest in the premises, and not merely a personal right of occupation, will also appear from section 14 which contains provisions restricting the tenant 's power of subletting.
Section 14 is in these terms: 654 "Sec.
14 Restrictions on sub letting. (1) No tenant shall, without the previous consent in writing of the landlord (a) sublet the whole or any part of the accommodation held by him as a tenant; or (b) transfer or assign his rights in the tenancy or in any part thereof.
(2) No landlord shall claim or receive the payment of any sum as premium or pugree or claim or receive any consideration whatsoever in cash or in kind for giving his consent to the sub letting of the whole or any part of the accommodation held by the tenant.
" There is nothing to suggest that this section does not apply to all tenants as defined in section 2(i).
A contractual tenant has an estate or interest in premises from which he carves out what he gives to the sub tenant.
Section 14 read with section 2(i) makes it clear that the so called statutory tenant has the right to sub let in common with a contractual tenant and this is because he also has an interest in the premises occupied by him.
Considering the position of the sub tenant of a statutory tenant in England, Lord Denning said in Solomon vs Orwell.
"When a statutory tenant sub lets a part of the premises he does not thereby confer any estate or interest in the sub tenant.
A statutory tenant has no estate or interest in himself and he cannot carve something out of nothing.
The sub tenant, like the statutory tenant, has only a personal right or privilege." In England the statutory tenant 's right to sub let is derived from specific provisions of the Acts conceding this right to him; in the Act we are concerned with in this appeal, the right flows from his status as a tenant.
This is the basic difference between the English Rent Restrictions Acts and the Act under consideration and similar other Indian statutes.
In a Special Bench decision of the Calcutta High Court, Krishna Prosad Bose vs Sm.
Sarajubala Dasi, Bachawat J. considering the question whether a statutory tenant continuing in occupation by virtue of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 could sub let the premises let to him, said: "The Rent Control and Tenancy Acts create a special world of their own.
They speak of life after death.
The statutory tenancy arises phoenix like out of the ashes of the contractual tenancy.
The contractual tenant may die but the statutory tenant may live long thereafter.
The statutory tenant is an ex tenant and yet he is a tenant.
" The concept of statutory tenancy under the English Rent Acts and under the Indian statutes like the one we are concerned with in this appeal rests on different foundations.
It must therefore be held that 655 the predecessors in interest of the present respondents had a heritable interest in the premises and consequently the respondents had the right to prosecute the appeal in the High Court.
Mr. Gupte 's first submission thus fails On the ground of default, it is not disputed that the defendants tendered the amount in arrears by cheque within the prescribed time.
The question is whether this was a lawful tender.
It is well established that a cheque sent in payment of a debt on the request of the creditor, unless dishonoured, operates as valid discharge of the debt and, if the cheque was sent by post and was met on presentation, the date or payment is the date when the cheque was posted.
The question however still remains whether in the absence of an agreement between the parties, the tender of rent by cheque amounts to a valid discharge of the obligation.
Earlier, we have extracted a passage from the High Court 's Judgment on this aspect of the case.
We agree with the view taken by the High Court on the point.
Rent is payable in the same manner as any other debt and the debtor has to pay his creditor in cash or other legal tender, but there can be no dispute that the mode of payment can be altered by agreement.
In the contemporary society it is reasonable to suppose such agreement as implied unless the circumstances of a case indicate otherwise.
In the circumstance of this case, the High Court, in our opinion, rightly held that the cheque sent to the plaintiffs amounted to valid tender of rent.
The second contention urged on behalf of the appellants must also be rejected.
Mr. Gupte 's last contention relates to the plaintiffs ' bona requirement of the premises.
The trial court found on the evidence that the plaintiffs ' claim was unjustified.
The first court of appeal reversed that finding and held that the plaintiffs ' requirement was bona fide.
The High Court in second appeal agreed with.
the trial court in holding that the landlord had no bona fide requirement.
Mr. Gupte contended that the High Court had no jurisdiction in second appeal to upset the finding of the lower appellate court on this issue which, according to him, was a finding of fact.
Mr. Nariman for the respondent relied on the decision of this Court in Madan Lal Puri vs Sain Das Berry to argue that the question was a mixed question of law and fact and that it was within the jurisdiction of the Court in second appeal to examine the correctness of the finding.
In answer Mr. Gupte referred to another decision of this Court Mattulal vs Radhey Lal which, relying on an earlier decision of this Court in Sarvate T. B. vs Nemi Chand, held that such a finding was one of fact and not a finding on a mixed question of law and fact.
We do not think that for the purpose of this case we need express any opinion on the apparent conflict between these two decisions.
Plaintiffs ' case was that they had cloth and grocery business at village Nadan and that they desired to start a wholesale cloth and grocery business at Satna.
The trial court 's finding was based inter alia on the evidence 656 that the plaintiffs had not adequate funds to start a new wholesale business.
The lower appellate court reversed the finding of the trial court on the ground that there was no evidence that the plaintiff had no money to start a new business; the lower appellate court 's finding rests mainly on this consideration.
The High Court pointed out that plaintff Damadidas alias Damadi Lal (P. W. 2) stated in his evidence that their income from the business at Nadan was sufficient " only for meeting the expenses of livelihood"; plaintif Tirath Prasad (P.W. 6) also admitted that "our present income is not sufficient even for our maintenance because there are many members in the family" It thus appears that the lower appellate court overlooked a very mate rial part of the evidence bearing on the question.
It is well establish ed that if a finding of fact is arrived at ignoring important and relevant evidence, the finding is bad in law.
(see Radha Nath Seal vs Haripada Jana & Ors.
We therefore think that the High Court was within its jurisdiction in setting aside the finding of the lower appellate court and restoring that of the trial court on this point.
In the result the appeal fails and is dismissed but in the circumstances of the case we make no order as to costs.
P.B.R. Appeal dismissed.
| IN-Abs | Section 12(1) of the Madhya Pradesh Accommodation Control Act, 1961, enacts that notwithstanding anything to the contrary contained in any other law or contract no suit shall be filed in any civil court against a tenant for his eviction from any accommodation except on one or more of the grounds given in the section.
The ground given in cl.
(a) is that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which the notice had been served on him by the landlord and the ground in cl.
(f) is that the accommodation let for non residential purpose is required bona fide by the landlord for the purpose of continuing or starting his business.
The appellants brought a suit under section 12(1)(a) and (f) of the Act for ejectment of their tenants.
The suit was dismissed by the trial court on the ground (i) that since the dispute as to the amount of rent payable by the tenants had not been determined during the pendency of the suit under section 13(2) no order for eviction could be made; (ii) that there was no bona fide requirement of the premises by the appellants for their own business and (iii) that the refusal by the appellant to accept the arrears of rent by cheque was valid because tendering by cheque was not valid tender in the absence of an agreement to that effect.
The first appellate court decreed the suit.
During the pendency of the second appeal in the High Court the tenants died.
The High Court allowed substitution of their legal representatives over ruling the appellants ' objection that the deceased tenants were mere statutory tenants and that the right to resist ejectment on the basis of the Rent Control Act was merely a personal right which was not heritable.
On merits, the High Court held that (i) offer of rent by cheque amounted to valid tender by the tenant and (ii) the appellants had failed to prove their case of bona fide requirement of the premises for their own use.
Dismissing the appeal, ^ HELD: There is no force in the contention that the defendants who were statutory tenants had no heritable interest in the demised premises and on their death the right to prosecute the appeal in the High Court had not survived to their heirs and legal representatives.
The predecessors in interest of the respondents had a heritable interest in the premises and consequently the respondents had the right to prosecute the appeal in the High Court.
[655A] (1) (a) The concept of statutory tenancy under the English Rent Acts and under the Indian statutes rests on different foundations.
The term statutory tenancy which is used for referring to a tenant whose tenancy has been terminated and who would be liable to be evicted but for the protecting statute, is 646 borrowed from the English Rent Acts.
Courts in England have held that a statutory tenant has no estate or property in the premises he occupies because he retains possession by virtue of the Rent Acts and not as being entitled to a tenancy.
But in this country it is not possible to proceed on the basis that a tenant whose contractual tenancy has determined but who is protected against eviction by the statute, has no right of property but only personal right to remain in occupation without ascertaining what his rights are under the statute.
[654H: 653A C] Anand Nivas (Private) Limited vs Anandji Kalyanji Pedhi vs Sri Kishan & Anr.
, ; ; Roe vs Russel, ; Haskins vs Lewis ; Keeves vs Dean (207) and Boyer vs Warbey , referred to.
(b)Tenancy has its origin in contract.
A contracual tenant had an estate or property in the subject matter of the tenancy and heritability is an incident of tenancy.
It cannot be assumed that with the determination of the tenancy, the estate must necessarily disappear and the statute can only preserve his status of irremovability and not the estate he had in the premises in his occupation.
[653D] (c) The definition of a tenant contained in section 2(i) makes a person continuing in possession of a premises after the determination of his tenancy a tenant, unless a decree or order for eviction had been made against him, thus, putting him on par with a person whose contractual tenancy still subsists.
[653] (d) Section 14 which deals with restrictions on sub letting read with the definition contained in section 2(i) makes it clear that the so called statutory tenant has the right to sub let in common with contractual tenant and this is because he also has an interest in the premises occupied by him.
[654D] (2)(a) The High Court rightly held that the cheques sent to the appellants amounted to valid tender of rent.
It is well established that a cheque sent in payment of a debt on the request of the creditor, unless dishonoured, operates as a valid discharge of the debt and if the cheque was sent by post and was met on presentations the date of payment is the date when the cheque was posted.
[655B D] (b) Rent is payable in the same manner as any other debt and the debtor has to pay his creditor in cash or other legal tender, but there can be no dispute that the mode of payment can be altered by agreement.
In the contemporary society it is reasonable to suppose payment by cheque as implied unless the circumstances of a case indicate otherwise.
[655C] (3) The High Court was within its jurisdiction in setting aside the finding of the lower appellate court and restoring that of the trial court on the question of bona fide requirement of the premises by the appellants.
The lower appellate court overlooked a very material part of the evidence bearing on the question.
It is well established that if a finding of fact is arrived at ignoring important and relevant evidence the finding is bad in law.
[651B C] Radha Nath Seal vs Haripada Jana & Ors.
AIR 1971 S.C. 1049, followed.
Madan Lal Puri vs Sain Das Berry AIR 1973 S.C. 585; Mattulal vs Radhey Lal AIR 1974 S.C. 1956; and Sarvate T. B. vs Nemi Chand , refered to.
|
Civil Appeal No. 27 of 1971.
(Appeal by special leave from the judgment and order dated 21st May 1970 of the Punjab & Haryana High Court at Chandigarh in civil writ No. 197 of 1968) J. Ramamurthi, for the appellant.
Naunit Lal and R. N. Sachthey, for respondents Nos. 1 and 2.
Bishamber Lal, for respondent No. 3.
The Judgment of the Court was delivered by GOSWAMI, J.
This appeal by special leave is directed against the judgment of the Division Bench of the Punjab and Haryana High Court by which the appellant 's application under article 226 of the Constitution was rejected.
The appellant was a veterinary compounder serving at the material time under the Chairman, Panchayat Samiti, Hansi I. The Zila Parishad Trihunal transferred him from Hansi I Block to Singhani (Loharu Block) by its resolution of June 30, 1967.
The order appear to be transmitted by Memo No. 3201 A of July 6, 1967.
On July 27, 1967, the Chairman of the Panchayat Samiti, Hansi I, requested the Chairman of the Zila Parishad, Hissar, to reconsider the decision of transfer and to allow him to continue at his village Umra in public interest.
A copy of this letter writen to the Zila Parishad was forwarded to the appellant.
Since the appellant did not comply with the order of transfer, the Chairman, Zila Parishad mal, served a notice upon him on August 13, 1967.
, to show cause as to why he should not be dismissed from service on the grounds mentioned in the notice.
It is mentioned in the notice that this action has been taken under section 124 of the Punjab Panchayat Samitis and Zila Parishads Act,1961 (briefly the Act).
The particulars of charge described in the show cause notice are briefly as under: (1) You did not hand over charge of veterinary dispensary to Balwan Singh, Veterinary Compounder, on 25 7 1967.
in compliance with the transfer order dated 6 7 1967.
(2) You also did not hand over charge to the District Animal Husbandry officer who was ordered to personally take over charge from you on 26 7 1967.
(3) You were again asked by letter dated 2 8 67 to hand over charge to Balwan Singh Veterinary Compounder, but you did not hand over the charge.
632 (4) When Ch.
Bir Singh Lamba, Secretary, Zila Parishad Tribunal, along with Balwan Singh reached Umra on 10 8 67 between 4.30 and 5.00 P.M. in order to take charge from you they found you absent and the dispensary locked.
(5) That on 15 8 67 at about 4.00 P.M. when Balwan Singh went to take charge from him along with Ch.
Bir Singh Lamba, Secretary, Zila Parishad Tribunal, along with Ch.
Balbir Singh, Chairman, Zila Parishad, Hissar and Kali Ram, Member, Panchayat Samiti, Hissar, you refused to hand over charge to Balwan Singh Veterinary Compounder.
(6) When on 15 8 67 Ch.
Bir Singh Lamba, Secretary Zila Parishad Tribunal, with the help of Balwan Singh, was preparing a list of stock in the presence of the Chairman and others, you with Rattan Singh, Sarpanch, Gram Panchayat, Umra, Giani Ram of village Majahadpur and three or four other unknown villagers entered the office.
Giani Ram out of your group snatched the paper from Ch.
Bir Singh Secretary, Zila Parishad Tribunal and threatened them to leave the dispensary before they manhandled him.
You are thus at the root of all this incident.
The appellant submitted a reply on September 13, 1967, describing it as an interim explanation and reserving his right to submit a final reply after inspection of certain records and he requested for a date for inspection of the records.
In this reply he admitted to have received the transfer order and pleaded that he did not hand over charge to Balwan Singh on 25 7 1967 under instructions from the Chairman, Panchayat Samiti, who, according to him, was the appointing authority and he was carrying out his orders.
He particularly denied the incident of August 15, 1967, for which he was held principally responsible in the show cause notice.
It does not appear that the Zila Parishad Tribunal gave any opportunity to the appellant for inspection of records, nor sent any communication to him rejecting the request giving any justifiable reason.
The appellant seemed to have been waiting for some communication to his interim reply in order to submit final explanation when on December 5, 1967 he received the order of the Zila Parishad Tribunal dismissing him from service with immediate effect in pursuance of its resolution of December 1, 1967.
The resolution states: "The Tribunal has come to a conclusion that your reply is not a satisfactory one.
And the allegations made against him (sic) seemed to be correct".
That led to the appellant 's writ application in the High Court resulting in the impugned order.
The short question that arises for decision is whether the order of dismissal is in conformity with section 124 of the Act, or, in 633 other words, whether the same is in violation of the principles of natural justice.
We may, therefore, read the material provision under section 124(2) of the Act: 124(2): "The tribunal may suo motu or on the move of the Panchayat Samiti or the Zila Parishad or on the application of any servant of a Panchayat Samiti or Zila Parishad other than a government servant placed at their disposal enquire into the conduct of any servant of the Panchayat Samiti or the Zila Parishad and after making such enquiry as it may deem fit pass such orders imposing any punishment including dismissal or removal as it may deem proper; Provided that the tribunal shall not pass any such order in respect of a servant having a right of appeal under section 116; Provided further that the tribunal shall before passing any order of dismissal or removal give a notice to the servant to show cause against the action proposed to be taken against him".
A persual of section 124(2) goes to show that before any action is taken for dismissal or removal of an employee the Tribunal has to enquire into his conduct justifying such action.
This enquiry must necessarily have to be made in the presence of the employee giving him an opportunity to rebut the allegations mentioned against him.
It is only after affording him a reasonable opportunity to rebut the allegations in the charge and the Tribunal is satisfied that the misconduct is established the question of final punitive action either of dismissal or removal has to be considered.
Unlike as in article 311 of the Constitution, section 124(2) does not in terms mention two stages of a departmental enquiry for misconduct against an employee.
Even so, the nature of an enquiry with an object to dismiss an employee is such that a full and fair reasonable opportunity must be given to him to meet the charges.
The second proviso to section 124(2) provides in unmistakable terms that before passing any order of dismissal or removal a notice has To he given to the employee to show cause against the proposed action.
The action of dismissal or removal cannot be proposed, in all fairness, unless the Tribunal had reached a conclusion about the guilt after making a proper enquiry giving the employee a reasonable opportunity to defend.
In the instant case, apart from giving the show cause notice, no other communication was made to the appellant except the order of sal.
This is a clear case where the reasonable opportunity envisaged under section 124(2) has not been afforded to the appellant far marking an effective representation to establish his innocence.
It is easy to see that the summary order of dismissal must have been influenced by the allegations appreciation to the incident of August 634 15,1967 for which, we understand, even a criminal case was instituted against the appellant.
That criminal case, we are told, ended in acquittal of the appellant and others on June 10, 1970.
At any rate the said incident being included in the articles of charge against the appellant he did not have any opportunity whatsoever to establish his innocence when he had clearly denied the allegations even in his interim reply.
The principles of natural justice are clearly ingrained in the provisions of section 124(2).
It is a clear case where the provisions of section 124(2), which are of a mandatory character in a departmental enquiries have been violated vitiating the order of dismissal.
The High Court, therefore, should have accepted the petition of the appellant under article 226 of the Constitution and quashed the order of dismissal.
Although in the ordinary course it would have been open to the authority to institute a fresh enquiry his reinstatement, after the order of dismissal has been set aside, we are clearly of opinion that this is not a case where that procedure should be permitted.
For one reason the appellant was dismissed in December 1967 and he had been out of employment for over eight years.
He has also not many years to serve.
Besides, the serious allegations regarding the incident of August 15, 1967, which, according to us, must have influenced the authority to pass the order of dismissal, have not been found to be established in a judicial trial.
While, therefore, quashing the impugned order of dismissal, which we hereby do, we direct that the appellant shall be reinstated in service with immediate effect and there shall be no further enquiry to the allegations forming the subject matter of charge against him.
The period of absence shall be treated as leave without pay so that the appellant will not lose continuity of his service.
In the result the judgment of the High Court is set aside and the appeal is allowed with costs.
P.H.P. Appeal allowed.
| IN-Abs | The appellant was a Veterinary Compounder serving under the Panehayat Samiti, Hansi.
The Zilla Parishad Tribunaul tranferred him from Hansi to Singhani.
The Chairman of the Panchayat Samiti.
Hansi requested the Chairman of Zilla Parishad Tribunal served a notice on the appellant to show cause why he should not be dismissed for not having handed over the charge of the dispensary to the person who was appointed in his place and also on the ground that when the Secretary of the Zilla Parishaod Tribunal with the help of the compounder, who was directed to take charge from the appellant, was prepaering a list of stock, the appellant and others entered the office and one of the persons out of the appellant 's group snatched the papers from the Secretry and manhandled him.
The appellant submitted an interim explanation and reserved his right to submit a final reply after inspection of certain records was given to him.
The Zilla Parishad Tribunal did not give any opportunity to the appellant for inspecation of record nor sent any communication to him rejecting the request giving any justifiable reasons.
However, the appellant was served with a letter dismissisng him from service.
Section 124(2) of the Punjab Panchayat.
Samitis & Zilla Parishad.
Act, 1961, authorises the Tribunal to impose any punishment including the punishment of dismissal on any servant of the Panchayat Samiti or Zilla Parishad.
The proviso,howvever.
requires the Tribunal before passing any order of dismissal or removal to give a notice to the servant to show cause against the action proposed to be taken against him The appellant filed a writ petition in the High Court challengaing the dismissal order.
The High Court dismissed the writ petition.
Allowing the appeal by special leave, ^ HELD: (1) A perusal of section 124(2) goes to show that before any action is taken for dismissal or removal of an employee the Tribunal has to enquire into his conduct justifying such action.
This enquiry must necessarily be made in the presence of the employee giving him an opportunity to rebut the allegations made against him.
It is only after affourding him a reasonable opportunity to rebut the allegations in the charge and after the Tribunal is satisfied that the misconduct is established, the question of final punitive action either of dismissal or removal has to be considered.
The employee must be given a full and fair.
reasonable opportunity to meet the charges.
[633D E] (2) In the instant case apart from giving the show cause notice no other communication was made to the appellant except the order of dismissal.
This is a clear case where the reasonable opportunity envisaged under section 124(2) has not been afforded to the appellant for making an effective representation to establish his innocence.
Even in respect of the incident of 15 8 1967, the appellant was acquitted in a criminal case lodged against him.
In the instant case the provisions of section 124(2) which embody the principles of natural justice and which are of a mandatory character have been violated vitiating the order of dismissal.
[633G. 634A C] (3) In the ordinary course it would have been open to the authority to institute a fresh enquiry after the reinstatement.
But in this case, that procedure was not permitted because the appellant was dismissed in December, 1967, and 631 has been out of employment for over 8 years.
Secondly, he does not have many years to serve.
Thirdly, the serious allegations regarding the incident of 15 8 1967 have not been found to be established in a judicial trial.
The Court, therefore, quashed the order of dismissal and directed that the appellant should be treated on leave without pay and further directed that no further enquiry into the allegations forming the subject matter of charge should be made.
[634C E]
|
Civil Appeals Nos.
600 601 and 1699 1714 and 877 878 of 1975.
Appeals by Special Leave from the Judgment and Order dated 30th January 1975 of the Gujarat High Court in Spl.
Civil Applns.
Nos. 15, 1194, 88, 89, 90, 107, 113, 121, 122, 124, 125, 166, 182, 202, 112, 123, 177, 1757, 149, 150 of 1974 respectively.
622 F. section Nariman, K. section Nanavati, P. C. Bhartari and J. B. Dadachanji, for Appellant (In CA 600/75).
K. section Nanvavati, P. C. Bhartari and J. B. Dadachanji, for the Appellants (In CA 601/75 and CA 1700 1714/75).
V. M. Tarkunde, K. section Nanavati, P. C. Bharatari and J. B. Dadachanji for the Appellant (in CA 1699/75).
V. N. Ganpule, for Appellants (In CA 877 878/75).
M. C. Bhandare and M. N. Shroff, for the Respondents (In CA 600 601 of 1975) and CA Nos.
1699 1714/75 and 877 to 878/75.
The Judgment of the Court was delivered by KHANNA, J.
This judgment would dispose of civil appeals Nos. 600, 601, 877, 878 and 1699 to 1714 of 1975 which have been filed by special leave against the judgment of Gujarat High Court dismissing petitions under article 226 of the Constitution of India filed by the appellants.
The appellants in these petitions assailed the validity of sections 53A and 53B of the Bombay Industrial Relations Act, 1946 (Bombay Act No. 1 of 1947) (hereinafter referred to as the principal Act).
These sections along with some other provisions were inserted in the principal Act by the Bombay Industrial Relations and Industrial Disputes (Gujarat Amendment) Act, 1972 (Gujarat Act No. 21 of 1972).
The appellants also challenged the validity of the rules which were added to the Bombay.
Industrial Relations (Gujarat) Rules, 1961 as per notification dated June 4 1973.
In addition to that the appellants challenged the validity of notification dated December 17, 1973.
The principal Act was enacted to regulate the relations of employers and employees, to make provisions for settlement of industrial disputes and certain other purposes.
In 1956 the industrial policy resolution of the Government of India stated inter alia that in a socialist democracy labour is a partner in the common task of development and must participate in it with enthusiasm.
Emphasis was laid upon joint consultation of workers and technicians and for associating progressively labour in the management of the industry.
Stress was again laid on joint management councils at the tripartite conference held in July 1957.
Representatives of labour, management and Government were present at that conference.
There was, however, no statutory provision for joint management councils and whatever was done, was on a voluntary basis.
Sections 53A and 53B were inserted in the principal Act by Gujarat Act 21 of 1972.
The two sections read as under: "53.A(1) If in respect of any industry, the State Government is of opinion that it is desirable in public interest to take action under this section, it may, in the case of all undertakings or any class of undertakings in such industry, in which five hundred or more employees are employed or have been employed on any day in the preceding twelve months, by general or special order require the employer to constitute 623 in the prescribed manner and within the prescribed time limit a Joint Management Council, consisting of such number of members as may be prescribed, comprised of representatives of employers and employees engaged in the undertaking, so however that the number of representatives of employees on the Council shall not be less than the number of representatives of the employers.
Notwithstanding anything contained in this Act, the representatives of the employees on the Council shall be elected in the prescribed manner by the employees engaged in the undertaking from amongst themselves: Provided that a list of industries in respect of which no order is issued under this sub section shall be laid by the State Government before the State Legislature within thirty days from the commencement of its first Session of each year.
(2) One of the members of the Council shall be appointed as Chairman in accordance with rules made in this behalf.
53B (1) The Council shall be charged with the general duty to promote and assist in the management of the undertaking in a more efficient, orderly and economical manner, and for that purpose and without prejudice to the generality of the foregoing provision, it shall be the duty of the council (a) to promote cordial relations between the employer and employers; (b) to build up understanding and trust between them; (c) to promote measures which lead to substantial increase in productivity; (d) to secure better administration of welfare measures and adequate safety measures; (e) to train the employees in understanding the responsibilities of management of the undertaking and in sharing such responsibilities to the extent considered feasible; and (f) to do such other things as may be prescribed.
(2) The Council shall be consulted by the employer on all matters relating to the management of the undertaking specified in sub section (1) and it shall be the duty of the Council to advise the employer on any matter so referred to it.
(3) The Council shall be entrusted by the employer with such administrative functions, appearing to be connected with or relevant to, the discharge by the Council of its duties under this section, as may be prescribed.
624 (4) It shall be the duty of the employer to furnish to the Council necessary information relating to such matters as may be prescribed for the purpose of enabling it to discharge its duties under this Act.
(5) The Council shall follow such procedure in the discharge of its duties as may be prescribed.
" Consequent upon the insertion of sections 53A and 53B in the principal Act, the Bombay Industrial Relations (Gujarat) Rules were also amended and certain new rules were added.
Rule 47A relates to the manner of election of two persons from amongst employees in disputes.
Rule 61A reads as under: "61 A. Constitution of Joint Management Council.
Any employer who is required by an order made under sub section (1) of section 53 A to constitute a Joint Management Council shall constitute within a period of ninety days from the date of the said order a Joint Management Council consisting of ten members, out of which the number of representatives of the employer to be nominated by the employer and the number of representatives of employees engaged in the undertaking to be elected from amongst themselves shall be such as may be determined by the employer so however that the number of representatives of the employees on the Council shall not be less than the number of representatives of the employer.
" Rule 61B to rule 61T relate to election of employees representatives on the Management Council.
Rule 61U prescribes for appointment of Chairman of the Council.
Rule 61V deals with the constitution of the Council from time to time and the manner of filling in the vacancies.
Rule 61W relates to the number of meetings of the Council and provides that the Chairman shall also have a second or casting vote in the event of equality of votes.
Rule 61X makes other provisions for the meeting, while Rule 61Y deals with annual returns.
Rules 61Z, 61ZA and 61ZB to which reference has been made during the course of arguments read as under: "61 Z. Duties of the Council.
It shall be the endeavour of the Council: (i) to improve the working conditions of the employees; (ii) to encourage suggestions from the employees; (iii)to assist in the administration of laws and agreements; (iv) to serve generally as an authentic channel of communication between the management and the employees; (v) to create in the employees a sense of participation; (vi) to render advice, in the general administration of Standing Orders and their amendment when needed; 625 (vii)to render advice on matters pertaining to retrenchment or rationalisation, closure, reduction in or cessation of operations 61 Z A. Administrative functions with which the Council shall be entrusted by Employer.
The Council shall be entrusted by the employer with administrative functions in respect of: (i) operation of vocational training and apprenticeship schemes; (ii) preparation of schedules of working hours and breaks and of holidays; and (iii)payment of rewards for valuable suggestions received from the employees.
61 Z B. Matters in respect of which the Council shall be entitled to receive information.
The Council shall be furnished by the employer with information in respect of: (i) general economic situation of the concern; (ii) the state of the market, production and sales programmes; (iii)organisation and general running of the undertaking; (iv) circumstances affecting the economic position of the undertaking; (v) methods of manufacture and work; (vi) the annual balance sheet and profit and loss of statement and connected documents and explanation; and (vii)long term plan for expansion, re employment etc." Imugned notification dated December 17, 1973 reads as under: "No. KH SH 1988/BIR 1073 JH Whereas in respect of the industry specified in the Schedule annexed hereto the State Government is of opinion that it is desirable in public interest to take action under section 53A of the Bombay Industrial Relations Act, 1964 (Bom.
of 1947), in the case of all undertakings in the said industry in which five hundred or more employees are employed or have been employed any day in the preceding twelve months.
Now, therefore, in exercise of the powers conferred by sub section (1) of the said section 53 A, the Government of Gujarat hereby requires the employer of each such undertaking in the said industry to constitute a Joint Management Council in the manner and within the time limit specified in rule 61 A G of the Bombay Industrial Relations (Gujarat) Rules, 1961.
626 SCHEDULE Cotton Textile Industry as specified in the Government of Bombay Political and Services Department, Notification No. 2847/34 A, dated 30th May 1939 and the Government of Gujarat, Education and Labour Department, Notification No. BIR 1361, dated the 17th July 1961.
" Although a number of contentions were advanced before the High Court to assail the validity of sections 53A and 53B as well as the rules mentioned above, before us learned counsel for the appellants have restricted their challenge to the impugned provisions only on the ground of lack of legislative competence of the State Legislature.
So far as notification dated December 17, 1973 is concerned, we may state that the said notification is no longer in force and, instead of that notification a fresh notification date March 1, 1976 has been issued.
In the circumstances, no opinion need be expressed on the validity of notification dated December 17, 1973.
We also express no opinion on the reasons given by the High Court in upholding the aforesaid notification.
It is also, in our opinion not necessary to express any opinion about the validity of notification dated March 1, 1976 as this notification was issued subsequent to the decision of the High Court and was not the subject matter of writ petitions before the High Court.
We may now advert to the question of the legislative competence of Gujarat legislature to enact sections 53A and 53B reproduced above.
In upholding the contention of the respondent State that the impugned provisions were within the sphere of the legislative competence of the State legislature under entries 22 and 24 of List III in Seventh Schedule to the Constitution, the High Court has held that the subject matter of the above legislation was labour welfare even though it might have some incidental effect on corporate undertakings or controlled industries.
Dealing with rule 61ZB the High Court held that the information to be furnished should be of such a nature that its disclosure would not be harmful to the undertaking.
The information, it was held, should not be confidential or relating to trade secrets.
Sections 53A and 53B as already mentioned were inserted in the principal Act by Gujarat Act No. 21 of 1972.
This Act was published on October 19, 1972 after it had received the assent of the President.
According to the respondents, the above provisions have been enacted under entries 22 and 24 of List III of the Seventh Schedule to the Constitution.
Entry 22 relates to trade unions; industrial and labour disputes, while entry 24 deals with "welfare of labour including conditions of work, provident funds, employers ' liability, workmen 's compensation, invalidity and old age pensions and maternity benefits".
As against that, the contentions advanced on behalf of the appellants is that the impugned legislation falls under entries 43, 44 and 52 of List I in the Seventh Schedule which relate respectively to "incorporation, regulation and winding up of trading corporations including banking, insurance and financial corporations but not including 627 co operative societies;" "incorporation, regulation and winding up of corporations, whether trading or not, with objects not confined to one State, but not including universities;" and "industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest".
We have given the matter our earnest consideration, and we find no sufficient ground to interfere with the finding of the High Court that the impugned statutory provisions fall under entries 22 and 24 of List III in Seventh Schedule of the Constitution and that the State legislature was competent to enact the same.
The impugned provisions in our opinion, are intended in pith and substance to forestall and prevent industrial and labour disputes.
They constitute also in essence a measure for the welfare of the labour.
From a conceptual viewpoint, workers ' management of undertakings or self management represents the most far reaching degree of association of workers in decisions concerning them.
Probably the best known example of this type of workers ' participation is the Yugoslav system of self management.
Under that system, the workforce of the undertaking exercises the principal functions of management through the self management organs, the organisation and powers of which have been established since the sixties by the statute or internal regulations of the undertaking, namely, the workers ' assembly and the workers council.
For varying lengths of time, in a large number of countries, and by virtue of a legal obligation, workers ' representatives have been included in management organs in the public sector as a whole or in certain nationalised undertakings.
In the private sector, the system which has pushed workers ' representation to the furtherest degree is that of co determination applied in the Federal Republic of Germanv since the beginning of the fifties.
By an Act of 1951, equal representation of workers was established on the supervisory boards of large iron and steel and mining undertakings.
These boards generally include five workers ' representatives" five representatives of the shareholders and an eleventh member nominated by mutual agreement.
In addition, one of the members of the directorate or management board, namely, the "labour director" who is generally responsible for personnel questions and social affairs, may only be nominated or dismissed in agreement with the maiority of the workers ' members of that board.
Under an Act of 1952, the workers ' representation on the supervisory boards of the companies which do not belong to the above industries is one third of the total membership.
Pressure is however, being brought by the trade unions for equal representation of workers on the supervisory boards in sectors other than iron and steel and mining (see International Labour Organization Background Paper on Symposium on Workers ' Participation in Decisions within Undertaking in Oslo in August 1974).
The object of workers ' participation in joint management councils is to enlist co operation of workers with a view to bring about improvement in the performance of industrial organisations.
It is assumed that the above scheme would give a robust feeling of participation to the workers in the management and thus result in improved functioning of the industrial undertaking.
Another object appears to 628 be to democratise the industrial milieu and ensure egalitarianism in the process.
It has not been disputed on behalf of the appellants that the various objectives mentioned in clauses (a) to (f) of sub section (1) of section 53B pertain to welfare of labour.
What is, however, contended is that joint management councils may claim to exercise such functions under the opening words of sub section (1) of section 53B as can be discharged only by the Board of Directors.
This contention, in our opinion, is not well founded.
The impugned statutory provisions, in our opinion, should be so construed and implemented as would sustain their constitutional validity.
The functions which can be performed by the joint management councils have to be of such a character as would pertain to welfare of labour or prevent industrial disputes.
Such functions would be analogous to those specified in clauses (a) to (f).
If the impugned legislation in pith and substance relates to subjects which are within the competence of the State legislature, as it in fact does, the fact that there is an incidental encroachment on matters which are the subject matter of entries in List I would not affect the legislative competence of the State legislature to pass the impugned legislation.
The impugned rules, in our opinion, likewise relate to subjects which are within the competence of the State legislature.
The rules in the very nature of things can operate only in that field in which the parent Act can operate.
For about a hundred years the term industrial democracy has been often mentioned in the writings of socialists, trade unionists and social reformers.
Of late the industrialists have taken it over.
The reason for that is that industrialists have become conscious that any approach which has the effect of treating workers as if they were commodities is unsound and wasteful economically.
The industrialists, it has been said, tried paternalism or benevolent autocracy, and they have found that this did not work, just as Frederick the Great and his followers found that benevolent political despotism did not work.
Democracy in political terms means the consent of the governed in the governance of the country.
In industry it means that wage earners shall have an effective voice.
It has been observed by Edward Filence.
"labour. , having experienced the advantages of democracy in government now seeks democracy in industry.
Is it any stranger that a man should have a voice as to the conditions under which he works than that he should participate in the management of the city and the state and the nation ? If a voter on governmental problems, why not a voter on industrial problems ?" (See page 339, Personnel and Labour Relations by Nash/Miner).
The above approach postulates trade unions as a potential positive force.
For management and union to share the pluralist ideology requires more than agreement about joint decision making as such.
It requires also that neither side enforces claims or imposes policies which are found excessively burdensome by its counterpart.
As observed 629 by Alan Fox on page 303 of Beyond Contract Work and Trust Relations: "It follows from this analysis that management will be readier to accept pluralistic forms of decision making the greater its confidence that it will always be able, in the last resort, to bend employee claims towards acceptable compromises.
It may even be convinced of its ability to charm them away altogether or at least much reduce them by 'rational ' argument and persuasion designed to bring out the 'true ' common interests.
In this sense a formal acceptance of pluralistic patterns may mask unitary convictions on managements past about the nature of the enterprise.
It may regard joint decision making and a fully institutionalised handling of claims and grievances not as mechanisms for compromising genuine conflicts of interest but as devices which facilitate the 'working through ' of mistaken conceptions, psychological blockages, and organizational confusions by a process of 'rational ' clarification.
" It would appear from the above that the concept of joint management has a much wider connotation.
That wider aspect of joint management would plainly be impermissible under the impugned legislation as it has been enacted by the State legislature.
Such legislation can operate only within a limited field because that is the only way in which its constitutional validity can be sustained against the challenge on the ground of want of legislative competence by the State legislature.
With the above observations we dismiss the appeals, but in the circumstances leave the parties to bear their own costs throughout.
V.P.S. Appeal dismissed.
| IN-Abs | Sections 53A and 53B of the Bombay Industrial Relations Act, 1946, were inserted in that Act by the Bombay Industrial Relations and Industrial Disputes (Gujarat Amendment) Act, 1972.
They relate to the constitution of joint management councils, which include representatives of the employees also, for the purpose of forestalling and preventing industrial disputes.
Consequent amendments were made in the Bombay Industrial Relations (Gujarat) Rules.
The appellants challenged the two sections on the ground that the State Legislature was incompetent to enact them.
According to the appellants, the impugned legislation falls under Entries 43, 44 and 52 of List I, VII Schedule to the Constitution, which relate to matters of incorporation etc.
The High Court held that they fall under Entries 22 and 24 of List III, which relate to labour welfare and industrial disputes, and that the State Legislature was competent to enact them.
Dismissing the appeal to this Court, ^ HELD: It has been recognised during the last hundred years that the wage earners should have an effective voice in the management of the industry in which they are working.
The concept of joint management of industry by the employer and the employee may have a wide connotation, because, the joint management councils may not only perform such functions as pertain to welfare of labour, that is, those relating to the various objectives mentioned in cls.
(a) to (f) of section 53B(1) but may also claim to exercise such functions as can be discharged by the board of directors.
This wider aspect of the joint management would however be impermissible under the impugned provisions, because the provisions should be so construed and implemented as would sustain their constitutional validity.
They have been enacted by the State Legislature and so the functions which can be performed by the joint management councils have to be of such a character as would pertain to welfare of labour or prevent industrial disputes.
If the impugned legislation, in pith and substance, relates to subjects which are within the competence of the State Legislature, the fact that there is an incidental encroachment on matters which are the subject matter of Entries in List I, would not affect the legislative competence of the State Legislature to pass the impugned legislation.
[628A, 629E] Rules in the very nature of things can operate only in that field in which the parent Act can operate, and hence, the impugned rules, likewise, relate to subjects which are within the competence of the State Legislature.
[628D]
|
Civil Appeal No. 2574 of 1972.
Appeal from the Judgment and Order dated the 2nd June, 1965 of the Calcutta High Court in Appeal from Original Order No. 287 of 1964.
Naunit Lal and (Miss) Lalita Kohli for the Appellant.
B. Sen, M. Mookherjee, Sardar Bahadur Saharya and Vishnu Bahadur Saharya for Respondent No. 1.
The Judgment of the Court was delivered by GOSWAMI, J.
This is an appeal at the instance of the workman on certificate of the Calcutta High Court from the decision of the Division Bench reversing the earlier judgment and order of the learned single Judge in an application under article 226 of the Constitution directed against the award of the First Industrial Tribunal, West Bengal, made under section 33A of the Industrial Disputes Act.
The appellant (hereinafter to be described as the workman) was employed by M/s Hindustan Motors Ltd. (hereinafter to be described as the company) since August 3, 1949.
On August 3, 1956, the workman entered into an agreement of service with the company wherein the first clause reads as follows: "The Employer agrees to and does hereby engage the services of the employee for a period of 5 years beginning with 1 6 56 and thereafter until this agreement shall be determined by either party hereto giving to the other 3 months ' notice in writing of such intended termination.
637 Provided that in case Employer finds the employee 's work satisfactory, Employer shall have the option to extend the period of service by a further term of 3 years".
The workman went on two months ' leave to Banaras for a change some time in 1960.
He requested for extension of leave for one month on medical grounds.
He actually sent an application on August 8, 1960, along with a medical certificate praying for extension of his leave.
The company asked the workman to get himself examined by the company 's medical officer within ten days.
As the workman was lying ill at Banaras, he could not comply with the directions of the company.
On September 5, 1960, he sent another telegram followed by a formal application enclosing a medical certificate for extension of his leave.
On September 15, 1960, the company sent a letter to him terminating his services on the ground of habitual absence which is a misconduct under the company 's standing orders.
At the time of this termination there was an industrial dispute pending between the company and its workmen.
Since the company did not ask for approval of its order from the Industrial Tribunal the workman made a complaint to the Tribunal under section 33A of the Industrial Disputes Act (briefly the Act).
The company contested the application.
The Tribunal made its award on September 27, 1962, ordering reinstatement of the workman with 50% of his back wages for the period of his forced unemployment as compensation.
The Tribunal directed that the award should be given effect to not later than one month of the publication of the award which was on October 26, 1962.
After a little over two months of the publication of the award, to be precise, on February 4, 1963, the company intimated to the workman to rejoin his service.
The workman reported for duty the following day on February 5, 1963.
On February 16, 1963, the company invoked clause (1) of the agreement which we have set out earlier and terminated the services of the workman by paying three months ' salary in lieu of notice.
This is the second round of litigation with which we are concerned in this appeal.
Since an industrial dispute was pending even on this date of termination of his service and the company did not apply to the Tribunal for approval of the order, the workman made a complaint to the Tribunal, as on the previous occasion, under section 33A of the Act.
The Tribunal accepted the complaint and held as follows: "In my opinion, the company has really dismissed the petitioner for a piece of conduct which must have appeared as misconduct in the eye of the company".
The Tribunal observed that the company in substance dismissed the workman for misconduct since the workman became "odious to the company" on account of his earlier success before the Tribunal in his application under section 33A of the Act.
The Tribunal, therefore, ordered his reinstatement with full back wages for the period of his forced unemployment as compensation.
This time the company did 638 not accept the award although on the earlier occasion the company did not choose to litigate and reinstated him as ordered by the Tribunal.
The company moved the Calcutta High Court under article 226 of the Constitution to quash the award.
The learned single Judge refused to interfere with the award holding that "the reason might have been the old reason of dismissal. ".
The learned Judge further observed that "the circumstances relied on by the Tribunal are not wholly irrelevant and the inference drawn by the Tribunal cannot be characterised as unreasonable".
The company appealed to the Division Bench of the High Court and the appeal was accepted.
The Division Bench held as follows: "It may be that having regard to the sequence of events that took place in this case the termination of service of the respondent No. 1 by the letter of 16th February 1963 may be regarded as a colourable exercise of the power under the contract of employment or may even be regarded as one of unfair labour practice or mala fide, but the discharge cannot be said to be for any misconduct.
There is no evidence for discharge on any specific misconduct.
The definite case of the respondent No.1 has been that it was by way of retaliatory measure that his services were terminated.
This may be true and may show that the action on the part of the appellant company was mala fide.
But until it is established that there has been a contravention of section 33 of the Act which would create jurisdiction in the Industrial Tribunal to entertain an application under section 33A, or in other words, unless it is established that there has been dischrge for misconduct, the Tribunal had no jurisdiction to set aside the order of termination in an application under section 33A".
On the application of the workman the High Court granted a certificate to him under article 133(1)(c) of the Constitution.
That is how this matter has come before us for a decision.
We should at the outset observe that this is not an appeal against the award of the Industrial Tribunal but is only directed against the judgment of the High Court under article 226 of the Constitution.
In an application under article 226 of the Constitution the High Court was concerned only with the question of jurisdiction of the Tribunal in entertaining the application under section 33A of the Act.
The question of jurisdiction again was intimately connected with the question whether the termination of service was for misconduct of the workmen.
The learned single Judge accepted the finding of the Tribunal when it held that the discharge was nothing but dismissal for misconduct and in that view of the matter did not find any justification for interfering with the award.
According to the learned Judge, therefore, no question of lack of jurisdiction of the Tribunal arose to merit interference with the award under article 226 of the Constitution.
639 The Division Bench, however, looked at the matter from a different viewpoint.
It assumed that the action of the management was even mala fide and so it could be wrongful and in an appropriate reference under section 10 of the Act the workman might be able to get proper relief.
The High Court, however, came to the conclusion that since clause (1) of the agreement was invoked by the employer it was not a case of discharge for misconduct and that being the position the Tribunal had no jurisdiction to entertain the complaint under section 33A even though the action of the company might be as a result of unfair labour practice.
Mr. Naunit Lal on behalf of the workman has assailed the conclusion of the Division Bench while Mr. Sen submits that the decision is legally unquestionable.
The question that arises for consideration in this appeal relates to the applicability of the proviso to section 33(2) (b) of the Act as amended in 1956.
Section 33(2)(b) at the material time reads as follows: "33(2): During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute.
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman: Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer".
We may also read section 33A of the Act as that is the section under which the complaint was originally made by the workman to the Industrial Tribunal.
33A: "Where an employer contravenes the provisions of section 33 during the pendency of proceedings before a Labour Court, Tribunal or National Tribunal, any employee aggrieved by such contravention, may make a complaint in writing, in the prescribed manner to such Labour Court, Tribunal or National Tribunal and on receipt of such complaint that Labour Court, Tribunal or National Tribunal shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit its award to the appropriate Government and the provisions of this Act shall apply accordingly".
640 It is clear that the foundation of jurisdiction of the Tribunal to entertain a complaint under section 33A is the contravention of section 33 of the Act.
Section 33 may be contravened in a variety of ways.
We are concerned in this appeal only with one type of contravention, namely, that the employer did not make any application to the Tribunal for approval of the order of termination of service of the workman.
There is no dispute between the parties in this appeal that there was an industrial dispute pending before the Tribunal in which the workman was concerned and that the particular termination had nothing to do with that dispute.
The only point on which the parties differ is as to the nature of the order of termination of service.
The employer claims it to be a termination simpliciter in exercise of its right under a written contract of service entered between the parties in August 1956.
The workman on the other hand contends that termination of his service was meted out as a punishment for avenging the defeat of the employer in an earlier litigation under section 33A at the instance of the workmen.
In other words the workman contends that the order although purported, ex facie, to be a termination under the terms of the agreement, is in truth and reality an order of dismissal for misconduct.
Originally when the Act was passed in 1947 (Act 14 of 1947) section 33 imposed a ban on the employer against discharge, dismissal or punishment of a workman during the pendency of proceedings before the Tribunal and other specified authorities "except for misconduct not connected with the dispute.
" The section underwent a vital change for the employer when the Industrial Disputes (Appellate Tribunal) Act 1950 (Act 48 of 1950) was passed and section 33 was substituted and a total ban imposed against discharge, dismissal or any punishment of a workman during the pendency of proceedings before the Tribunal and other specified authorities.
The reservation of the right to the employer to take action even in case of misconduct, which was there in the original Act, was withdrawn.
As time passed, in view of representations from employers, the Parliament became alive to the question of discipline in the industry and reintroduced in an altered form the said right of the employer to take action during the pendency of proceedings before the Tribunal when the Act was amended by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act 1956 (Act 36 of 1956).
We have already set out the material provision of section 33(2) (b) at the out set which has since restored to the employer the right to take punitive action under specified conditions.
To complete the picture we may note in passing that the section was further amended by the Industrial Disputes (Amendment) Act (Act 36 of 1964) with effect from December 19, 1964, whereby some words were inserted in sub section (2) of section 33 with which we are not concerned in this appeal.
From the provisions of section 33 it is manifest that punitive action by the employer in whatever form it may be passed is permissible against an ordinary workman, as distinguished from a protected workman even during the pendency of proceedings before the Tribunal 641 provided that the employer pays one month 's wages and also applies to the concerned Tribunal for approval of his action.
Since the action is punitive, namely, dismissal or discharge for misconduct, the Tribunal has to oversee the action to guarantee that no unfair labour practice or victimisation has been practised thereby.
If the procedure of fair hearing has been observed the Tribunal has to find in an application under section 33 that a prima facie case is made out for dismissal.
If, on the other hand, there is violation of the principles of natural justice in the enquiry, the Tribunal can go into the whole question relating to the misconduct and come to its own conclusion whether the same is established.
The submission of the employer is that since the termination of the workman is in exercise of the right under the written agreement it was not a case of discharge or dismissal for misconduct and there was, therefore, no obligation on the employer to make an application under section 33 of the Act and hence section 33 has not been contravened and the application under section 33A is not maintainable.
The question that arises for decision in this appeal is whether if a particular order of termination of service is not on account of misconduct and is merely a termination simpliciter the employer is still required to make an application under section 33 of the Act.
We have no doubt in our mind that section 33(2)(b) makes it obligatory upon the employer to make an application to the Tribunal under the proviso only when he discharges or dismisses a workman for misconduct.
It is submitted by Mr. Sen that misconduct contemplated in section 33(2)(b) must be a misconduct enumerated in the standing orders of the company.
We are unable to accept this submission.
Standing orders of a company only describe certain cases of misconduct and the same cannot be exhaustive of all the species of misconduct which a workman may commit.
Even though a given conduct may not come within the specific terms of misconduct described in the standing orders, it may still be a misconduct, in the special facts of a case, which it may not be possible to condone and for which the employer may take appropriate action.
Ordinarily, the standing orders may limit the concept but not invariably so.
When, therefore, the Tribunal has found as a fact after taking note of the history and the entire circumstances of the case that the termination was on account of misconduct of the employee it is difficult to hold that there is any manifest error of law committed by the Tribunal in reaching that conclusion only because the misconduct, as found, is not within the four corners of the description of the various misconducts mentioned in the company 's standing orders.
It is not possible, therefore, to accept the submission that the Tribunal committed an error of law or of jurisdiction in entertaining the application under section 33A. 642 Termination simpliciter or automatic termination of service under the conditions of service or under the standing orders is outside the scope of section 33 of the Act.
This does not mean that the employer has the last word about the termination of service of an employee and can get away with it by describing it to be a simple termination in his letter of discharge addressed to the employee.
It is also not a correct proposition of law that in case of a complaint under section 33A the Tribunal would be debarred from going into the question whether, notwithstanding the form of the order in sub stance, it is an action of dismissal for misconduct and not termination simpliciter.
The possibility that in an appeal against the award of the Tribunal this Court may have taken a different view about the termination does not affect the present issue.
Mr. Naunit Lal relies upon a decision of this Court in the Management of Murugan Mills Ltd. vs Industrial Tribunal Madras and Another in support of his contention that even termination simpliciter is within the sweep of section 33.
That was a case where the workman 's services were terminated "because he deliberately adopted go slow and was negligent in the discharge of his duty".
The Supreme Court in that case observed thus: "His services were therefore terminated for dereliction of duty and go slow in his work.
This clearly amounted to punishment for misconduct and therefore to pass an order under cl.
17(a) of the Standing Orders in such circumstances was clearly a colourable exercise of the power to terminate the services of a workman under the provision of the Standing Orders".
The Supreme Court further observed: "In these circumstances the case was clearly covered by cl.(b) of section 33(3) of the Act as the services of the respondent were dispensed with during the pendency of a dispute by meeting out the punishment of discharge to him for misconduct".
The decision is, therefore, not an authority for the extreme proposition advanced by Mr. Naunit Lal.
Mr. Naunit Lal also drew our attention to two decisions of the Madras High Court in Shyamala Studios vs Kannu Devar (S.S.) and others and Sri Rama Machinery Corporation (Private) Limited, Madras vs Murthi (N.R.) and others in support of the above submission.
Although the decision of the Supreme Court in Murugan Mills ' case (supra) was noticed by the Madras High Court it does not appear to have correctly appreciated the ratio decidedi of that judgment.
We are unable to hold that the Supreme Court in 643 Murugan Mills ' case (supra) went to the extent of re writing section 33 by completely obliterating the concept of misconduct of a workman for which alone in a limited way the right of action for the employer is preserved during the span of pendency of proceedings before the Tribunal in the interest of discipline.
To the extent the Madras decisions state that termination of services need not be for misconduct of the workman in order to attract section 33(2)(b), we cannot agree.
If the Tribunal finds that a particular termination of service of a workman is in truth and substance innocuous or in exercise of a bona fide right under the contract, section 33(2)(b) will not be applicable and necessarily there will be no contravention of section 33A of the Act.
In Air India Corporation, Bombay vs V. A. Rebellow & Anr.(1) this Court had to deal with the validity of an award made under section 33A although the Labour Court in that case had held that the workman was guilty of misconduct and that his services were terminated for that reason.
This Court did not agree with the aforesaid conclusion and dismissed the workman 's petition under section 33A of the Act.
In doing so this Court observed as follows: "It is noteworthy that the ban is imposed only in regard to action taken for misconduct whether connected or unconnected with the dispute.
The employer is, therefore free to take action against his workmen if it is not based on any misconduct on their part".
We are, therefore, clearly of opinion that the single Judge is right in not interfering with the award under article 226 of the Constitution and the Division Bench is wrong in doing so.
It is true that on the face of the order of termination the company invoked clause (1) of the agreement and even so it was open to the Tribunal to pierce the veil of the order and have a close look at all the circumstances and come to a decision whether the order was passed on account of certain misconduct.
This is a finding of fact which could not be interfered with under article 226 of the Constitution unless the conclusion is perverse, that is to say, based on no evidence whatsoever.
We are, however, unable to say so having regard to the facts and circumstances described by the Tribunal in its order.
It is, however, unexceptionable that if an employer passes an order of termination of service in exercise of his right under a contract or in accordance with the provision of the standing orders and the Tribunal finds that the order is not on account of any misconduct, the question of violation of section 33 would not arise.
There remains, however another aspect to which the Tribunal did not properly address.
The workman in this case had a contract of employment only for 8 years at the most.
The reinstatement in his 644 case, therefore, cannot extend beyond a period of eight years from June 1, 1956 and the contract of employment would have automatically terminated on May 31, 1964.
The Tribunal awarded reinstatement on March 24, 1964, when even the employer did not bring it to its notice that the contract of employment would terminate in May 1964.
Mr. Sen, however, during the course of the argument" hinted at another round of litigation under section 33C of the Act to contest the claim to reinstatement ordered by the Tribunal.
We cannot be oblivious to the plight of this workman in his unequal fight with a big company.
He was serving the company since 1949 for about eleven years when he was first dismissed in 1960.
He has been involved in litigation since 1960 uptill today except for a lull for eleven days on his reinstatement after the first award.
Eleven years in actual service and sixteen years in litigation is a doleful tale by itself.
We, therefore, feel that, in the interest of industrial peace and above all to draw a final curtain to this unhappy litigation, we would be justified in quantifying the compensation payable to the workman in this case to a sum of Rs. 20,000/ only in lieu of reinstatement with full back wages as ordered by the Tribunal, which we accordingly order.
We may also observe that Mr. Sen, fairly enough had made it clear before us in the course of hearing that even if the company succeeded in this Court it would be prepared to pay to the workman a sum of Rs. 10,000/ on compassionate grounds.
In the result the judgment of the Division Bench of the High Court is set aside.
The award of the Tribunal is varied as stated above.
The appeal is allowed accordingly with no order as to costs.
No. 6664 of 1976 on behalf of the company for urging additional grounds is dismissed as not pressed.
P.B.R. Appeal Allowed.
| IN-Abs | The respondent terminated the appellant 's services on the ground of habitual absence which is a misconduct under the company 's standing orders.
Although there was a dispute pending before the Tribunal, the respondent did not make an application under section 33(2)(b) of the Industrial Disputes Act for its approval.
On an application by the appellant under section 33A of the Act, the Tribunal ordered his reinstatement.
A few months after the appellant rejoined duty the respondent terminated his services purporting to act under the agreement of service with him.
On a complaint by the appellant under section 33A, the Tribunal ordered his reinstatement.
A single Judge of the High Court dismissed the writ petition of the respondent holding that the discharge was nothing but dismissal for misconduct.
On appeal, the Division Bench held that since the employer invoked the terms of the agreement, it was not a case of discharge for misconduct and as such the Tribunal had no jurisdiction to entertain the complaint under section 33A.
Allowing the appeal. ^ HELD: The Tribunal has not committed any error of law or of jurisdiction in entertaining the application under section 33A and the Single Judge was right in not interfering with the award under Article 226 of the Constitution and the Division Bench was wrong in doing so.
[641H; 641E] (a) The Tribunal has found as a fact that the termination was on account of misconduct of the employee.
It is, therefore, difficult to hold that there was any manifest error of law committed by the Tribunal in reaching that conclusion only because the misconduct, as found, was not within the four corners of the various misconducts mentioned in the standing orders.
[641H] (b) Standing orders only describe certain cases of misconduct and they cannot be exhaustive of all the species of misconduct.
Even though a given conduct may not come within the specific terms of misconduct described in the standing orders, it may still be a misconduct in the special facts of a case, which it may not be possible to condone and for which the employer may take appropriate action.
[641F] (c) Termination simpliciter under the conditions of service or under the standing orders is outside the scope of section 33 of the Act.
This does not mean that the employer has the last word about the termination of service of an employee.
It is also not a correct proposition of law that in case of a complaint under section 33A, the Tribunal would be debarred from going into the question whether notwithstanding the form of the order.
in substance, it is an action of dismissal for misconduct and not termination simpliciter.
[642 A B] Management of Murgan Mills Ltd. vs Industrial Tribunal, Madras and Another ; , held inapplicable.
Air India Corporation, Bombay vs V. A. Rebellow & Anr. ; , referred to.
636 Shyamala Studios vs Kannu Devar (S.S.) and Others, and Sri Rama Machinery Corporation (P) Limited, Madras vs Murthi (N.R.) and Others, , partly approved.
(d) Section 33(2)(b) makes it obligatory upon the employer to make an application to the Tribunal under the proviso when he discharges or dismisses the workman for misconduct.
From the provisions of section 33, it is manifest that punitive action of the employer in whatever form it may be passed, is permissible against an ordinary workman as distinguished from a protected workman even during the pendency of proceedings before the Tribunal provided that the employer pays one month 's wages and also applies to the concerned Tribunal for approval of his action.
Since the action is punitive, namely, dismissal or discharge for misconduct, the Tribunal has to oversee the action to guarantee that no unfair labour practice or victimisation has been practised.
If the procedure of fair hearing has been observed, the Tribunal has to find in an application under section 33 that a prima facie case is made out for dismissal.
If, on the other hand, there is violation of the principles of natural justice in the enquiry, the Tribunal can go into the whole question relating to the misconduct and come to its own conclusion whether the same is established.
[641E; 640H] (e) In the instant case even though the employer invoked the agreement for terminating the service of the employee it was open to the Tribunal to pierce the veil of the order and have a closes look at the circumstance and come to a decision whether the order was passed on account of certain misconduct.
This is a finding of fact which could not be interfered with under article 226 of the Constitution unless the conclusion is perverse.
[643F]
|
Civil Appeal Nos.
793 to 794 of 1971.
Appeal by Special Leave from the Judgment and order dated the 7th August, 1970 of the Kerala High Court at Ernakulam in Income Tax Reference No. 9 of 1968.
T. section Krishnamoorthy Iyer, N. Sudhakaran and K. M. K. Nair; for the Appellent (In CA 793/71) K. M. K. Nair; for the appellant (In C.A. 794/71).
658 D. V. Patel and A. section Nambiar; for the Respondent.
The Judgment of the Court was delivered by GUPTA, J.
One T. V. Kochvared who owned rubber plantations in Trichur was assessed by the Agricultural Income Tax other, Trichue on a net agricultural income of Rs. 31,662/ and Rs 30,856/ respectively for the assessment years 1959 60 and 1960 61.
The assessee had in his possession immature rubber plantation covering 193 acres dung the assessment year 1960 61.
In computing their income for the said two years.
the Agricultural Income tax Officer had disallowed out of the expenses clammed for the upkeep and maintenance of the immature area Rs. 2500/ for the year 1959 60 and Rs.3500/ for the year 1960 61.
T. V. Kochuvareed died in 1961 leaving behind him as his heir and legal representative his wife who is the respondent before us.
On March 13, 1963 the Commissioner of Agricultural Income tax issued a notice under section 34 of the Kerala Agricultural Income tax Act, 1960 to the respondent, which was served on her on March 15, 1963, proposing to revise suo motu the assessment for the said two year son the ground that the deductions allowed were excessive and without any proper basis as a result of which Rs. 16,800/ for the year 1959 60, and Rs. 25,800/ for 1960 61 had "escaped assessment".
The respondent was asked to file objections, if any within fifteen days of the receipt of the notice.
The respondent in her objection contended that the proposed revision of her husband 's income which was said to have " escaped assessment" was outside the scope of section 34.
On this objection another notice was served on her on September 26, 1966 stating that the expression "escaped assessment "used in the earlier notice was inadvertent and asking the respondent to file further objections, if she liked, after this eradication.
The respondent filed further objections on October 12, 1966 which the Commissioner rejected by his order dated August 23, 1967 and remanded the cases to the Agricultural Income tax officer for fresh disposal.
The relevant part of this order is as follows: "In these circumstances I find that the disallowance of Rs. 2500/ for 1959 60 and Rs. 3500/ for 1960 61 towards upkeep and maintenance of immature area is irregular as it is not based on any rational method.
The orders of assessment for these years are therefore set aside and the cases are remanded to the Agricultural Income tax Officer, Trichur, for fresh disposal according to law after examining each item of expenditure individually and the general charges by applying the principles laid down by the Kerala High Court in its judgment reported in At the instance of the respondent the Commissioner of Agricultural Income tax referred the following question of law to the High Court of Kerala under section 60(2) of the Kerala Agricultural Income Tax Act, 1950: 659 Whether on the facts and in the circumstances of the case the Commissioner has jurisdiction to pass an order in this case under section 34 of the Agricultural Income Tax Act, 1950.
The High Court by a majority held that the power of revision vested in the Commissioner under section 34 of the Act could not be invoked for the purpose of assessing income that had "escaped assessment:" and that such income could be assessed only by resorting to the procedure under section 35 of the Act.
In these appeals by special leave the appellant questions the correctness of this decision.
It is necessary to refer to the relevant provisions of the Act before proceeding to consider the contentions of the parties.
Section 3 provides that agricultural income tax shall be charged for each financial year on the total agricultural income of the previous year at the rate or rates specified in the Schedule to the Act.
Total agricultural income is defined in section 2(s) as the aggregate of all agricultural income mentioned in section 4 computed in accordance with the provisions of section 5 including all income of the description specified in section 9 and all receipts of the description specified in section 10(a), (c) and (d).
Section 5 enumerates the deductions from the total income which have to be made in computing the agricultural income.
Section 17(1) of the Act requires every person whose total agricultural income during the previous year exceeded the limit which is not chargeable to agricultural income tax, to furnish to the Agricultural Income tax officer a return stating his total agricultural income in that year and the expenditure incurred by him out of that income.
Section 18 deals with the powers of the Agricultural Income tax officer to assess the total agricultural income of the assessee and determine the sum payable by him.
Section 19 authorises the Agricultural Income tax officer to cancel the assessment in certain cases at the instance of the assessee and to make a fresh assessment in accordance with the provisions of section 18.
Section 31 provides an appeal to the Assistant Commissioner against any order of assessment with which the assessee is dissatisfied.
Sub section (7) of the section requires the Assistant Commissioner to communicate the orders passed by him disposing of the sessee objecting to an order passed by an Assistant Commissioner may appeal to the appellate Tribunal.
Sub section (2) of the section permits the Commissioner if he objects to any order passed by the Assistant Commissioner under section 31, to direct the Agricultural Income tax Officer to appeal to the appellate Tribunal against such order.
Subsection (5) of section 32 provides that the appellate Tribunal after giving both parties an opportunity of being heard may pass such order thereon as he thinks fit.
The tribunal is required to Communicate the order to the assessee and to the Commissioner.
Section 34 and section 35 are the two most important section for the purpose of these appeals.
Section 34 which confers on the Commissioner revisional powers is in these terms: 660 "34.
Revision. (1).
The Commissioner may, of his own motion or on application by an assessee, call for the record of any proceeding under this Act which has been taken by any authority subordinate to him and may make such enquiry or cause such enquiry to be made and, subject to the provisions of this Act, may pass such orders thereon as he thinks fit: Provided that he shall not pass any order prejudicial to an assessee without hearing him or giving him a reasonable opportunity of being heard Provided further that an order passed declining to interfere shall not be deemed to be an order prejudicial to the assessee.
(2) Any order passed under subsection (1) shall be final subject to any reference that may be made to the High Court under section 60.
" Section 35 which deals with income escaping assessment reads: "35.
Income escaping assessment.(1) If for any reason agricultural income chargeable to tax under this Act has escaped assessment in any financial year or has been assessed at too low a rate, the Agricultural Income tax Officer may, at any time within three years, of that end of that year serve on the person liable to pay the tax or in the case of a company on the principal officer thereof a notice containing all or any of the requirements which may be included in a notice under sub section (2) of section 17 and may proceed to assess or re assess such income 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; Provided that the tax shall be charged at the rate at which it would have been charged if such income had not escaped assessment or full assessment, as the case may be; Provided further that the Agricultural Income tax Officer shall not issue a notice under this sub section unless he has recorded his reasons for doing so.
(2) No order of assessment under section 18 or of assessment or reassessment under sub section (1) of this section shall be made after the expiry of three years from the end of the year in which the agricultural income was first assessable; Provided that where a notice under sub section (1) has been issued within the time therein limited, the assessment or reassessment to be made in pursuance of such notice may be made before the expiry of one year from the date of the service of the notice even if at the time of the assessment or reassessment the three years aforesaid have already elapsed; 661 Provided further that nothing contained in this section limiting the time within which any action may be taken or any order, assessment or reassessment may be made shall apply to a reassessment made under section 19 or to an assessment or reassessment made in consequence of, or to give effect to any finding or direction contained in, an order under section 31, section 32, section 34 or section 60.
(3) In computing the period of limitation for the purposes of this section, any period during which the assessment proceeding is stayed by an order or injunction of any court or other competent authority shall be excluded.
" Section 35 as it originally stood contained only the provision now contained in sub section (1) including the first proviso.
The second proviso to sub section (1), and sub sections (2) and (3) were introduced and the original provision was renumbered as sub section (1) by an amending Act in 1964, but the newly added provisions were given effect from April 1, 1958.
Section 35 as extracted above was therefore, applicable in a proper case during the two assessment years we are concerned with.
It would appear that sub section (2) prescribes a time limit of three years for reassessment under sub section (1) of this section from the end of the year in which the agricultural income was first assessed though the first proviso to sub section (2) extends the time for reassessment in a case where notice under sub section (1) had been issued within the time prescribed by the sub section, till the expiry of one year from the date of service of the notice even if at the time of reassessment the prescribed period of three years had elapsed.
The second proviso to sub section (2) states that the limitation of time prescribed by section 35 will not apply to an assessment or reassessment made in consequence of any direction contained in an order under section 31, section 32, section 34 or section 60.
Section 36 empowers the authority which passed an order on appeal or revision, within three years from the date of such order, and the Agricultural Income tax Officer within three years from the date of any assessment made by him, to rectify any mistake apparent from the record of the appeal, revision, assessment or refund as the case may be.
Sub section (1) of section 60 provides that the assessee or the Commissioner may require the appellate tribunal to refer to the High Court any question of law arising out of an order under section 32(5).
Sub section (2) of section 60 permits an assesee who is served with a notice of an order under section 34 which is prejudicial to him to require the Commissioner to refer to the High Court any question of law arising out of such order.
The majority decision of the High Court took the view that this was a case of escaped assessment and that the power of revision conferred on the Commissioner by section 34 of the Act could not be utilised for the purpose of reassessment of income that escaped assessment disregarding the provisions of section 35.
Sub section (1) of section 34 makes it clear that the power of revision is exercisable "subject to the provisions of this Act.
" It was pointed out in the majority judgment that section 35 contains a specific provision for reassessment of income that had escaped assessment and it was held that revisional powers under section 34 could be availed of to reopen cases of escaped assessment 662 only within the time limit and in accordance with the procedure prescribed by section 35.
Before us, Mr. Patel, learned counsel for the respondent, reiterated the same contention.
Mr. Krishnamurthy Iyer appearing for the appellant challenged the decision of the High Court on two grounds: (1) the income sought to be reassed was not income that had "escaped" assessment and, as such, the provisions of section 35 are not relevant for the present purpose, and (2) assuming this was a case of income escaping assessment, even then the second proviso to sub section (2) of section 35 removes the bar of time for any assessment or reassessment made to give effect to a direction under section 34.
On the first question the High Court found, relying on the decision of this Court in Maharajadhiraj Sir Kameshwar Singh vs State of Bihar, that this was a case of escaped income.
In Kameshwar Singh 's case one of the provisions that came up for interpretation was section 26 of the Bihar Agricultural which is similar in many respects to section 35(1) of the Act we are concerned with in this appeal.
It was held in Kameshawar Singh 's case that under section 26 of the Bihar Act, the Agricultural Income tax Officer was competent to "assess any item of income which he had omitted to tax earlier, even though in the return that income was inlcuded and the Agricultural Income tax Officer then thought that it was exempt".
The same view was taken in an earlier decision of this Court, Kamal Singh vs Commissioner of Income tax, that : "even if the assessee has submitted a return of his income, case may well occur where the whole of the income has not been assessed garded as having escaped assessment".
But the question that arises in the case before us is not covered by either of these decisions.
This is not a case where the Agricultural Income tax Officer omitted to assess any item of income disclosed in the assessee 's return.
Here the assessee made a full disclosure of his income and claimed certain deductions.
It is not disputed that he was entitled to claim some dedcations for the maintenance of the immature rubber planation.
The Agricultural Income tax Officer may have committed an error in allowing deductions to the extent he did, but he did so after applying his mind to the claim.
Every case of under assessment is not a case of escaped assessment.
The view we take finds support from the decision of this Court in Deputy Commissioner of Agricultural Income tax and Sales Tax, Quilon and another vs Dhanalakshmi Vilas Cashew Co. On the other question, the High Court held that the order of the Commissioner directing the Agricultural Income tax Officer to reassess the income for the two years was bad, having been made after the expiry of the period prescribed by section 35 for the reassessment of income that had escaped assessment.
For the appellant it was contended 663 that the second proviso to section 35 removed the limitation of time in the case of a reassessment made in consequence of a direction or order under section 34.
As we have held that this was not a case of escaped assessment, this other question does not arise for consideration.
In our opinion the Commissioner in this case had jurisdiction to make the order he did under section 34, and the question referred to the High Court under section 60(2) should therefore be answered in the affirmative.
The appeals are allowed, but in the circumstances of the case we make no order as to costs.
V.P.S. Appeals allowed.
| IN-Abs | The assessee made a full disclosure of his income and claimed expenses incurred for the maintenance of his immature rubber plantations as deductions.
The Agricultural Income Tax Officer, after considering the matter, allowed such deductions as he thought proper.
The appellant Commissioner, in exercise of his revisional powers under section 34, Kerala Agricultural Income Tax Act, 1950, issued notice to the respondent (widow of the assessee) proposing to revise the assessment on the ground that the deductions allowed were excessive.
The appellant, after considering the respondent 's objections, held that the deductions allowed were excessive and remanded the matter to the Agricultural Income Tax Officer for fresh disposal according to law.
At the instance of the respondent, the question whether the appellant had jurisdiction to pass the order under section 34 was referred to the High Court, and the High Court, on the view that it was a case of re opening escaped assessment held, relying on Maharajadhiraj Sir Kameshwar Singh vs State of Bihar, , that the power of revision vested in the Commissioner under section 34 could not be invoked for the purpose of assessing income that had escaped assessment, and that such income could be assessed only by resorting to the procedure prescribed by section 35.
within the time limit prescribed therein.
Allowing the appeal to this Court, ^ HELD:(1) Every case of under assessment is not a case of escaped assessment.
The Agricultural Income Tax Officer may have committed an error in allowing the deductions to the extent he did, but he did so after applying his mind to the claims.
This is not a case where the officer omitted to assess any item of income disclosed in the assessee 's return as in the case relied on by the High Court and as in kamal Singh vs C.I.T.
Therefore, it is not a case of reopening escaped assessment.
[662F H] Deputy Commissioner of Agricultural Income tax and Sales Tax, Quilon and another vs Dhanalakshmi Vils Cashew Co., (1969) 24 S.T.C. 491, followed.
(2) Since it is not a case of escaped assessment, the appellant had jurisdiction to make the order under section 34.
[663B]
|
riminal Appeal No. 19 of 1955.
Appeal by Special Leave from the Judgment and Order dated the llth May 1954 of the Patna High Court in Death Reference No. 8 of 1954 with Criminal Appeal No. 142 of 1954 arising out of the Judgment 571 and Order dated the 12th March 1954 in Sesssions Trial No. 2 of 1954.
B. P. Maheshwari, for the appellant.
M. M. Sinha, for the respondent.
September 28.
The appellant Deonandan Mishra (Deonandan Missir) who was a stenographer to the Inspecting Assistant Commissioner of Income tax , Patna, has been convicted under section 302 of the Indian Penal Code for having committed the murder of his second wife, Mst.
Parbati Devi, on the night of the 3rd/4th September, 1953 and sentenced to transportation for life.
The deceased was married to the appellant in or about the year 1941 and was his second wife.
As appears from the subsequent events, she was considered to be a woman of loose morals.
She appears to have been forsaken by her husband as also by her father in or about the year 1945 and to have sought shelter in the Anath Ashram at Gaya.
Through the intervention of the Secretary of the Ashram and with the consent of both the husband and the father, she got re married to one Nand Lail of Punjab in December, 1945.
After a stay of about an year and a half with Nand Lall in Punjab, she appears to have left him on account of alleged ill treatment.
She came back to the Anath Ashram at Gaya in June, 1947, but left it again in October, 1947.
What happened thereafter is not clear from the evidence and her whereabouts between October, 1947 and August, 1953, are not known and do not seem to have been traced, All that appears is that for some time prior to the date of the murder she was found going up and down in places near about Gaya and that particularly on the 2nd and 3rd September, 1953, i.e., two days prior to her murder she was found going between Gaya and Patna and a place Chakand in between these two places.
Early morning at about 7 A.M. on the 4th September, 1953, P.W. 10, Havildar, found a naked dead body of a 572 female lying in the Kabristhan at the outskirts of Gaya about a mile and a half from the police thana.
It was lying on the western verandah of the bungalow of the Kabristhan with a number of cut injuries on the neck and on other parts of the body.
Report of this was carried to the police and the body was subsequently identified to be that of Parbati Devi, the second wife of the appellant, Investigation followed and the appellant was arrested on the 6th September, 1953, and put up for trial in due course.
There is no eye witness to the murder and the case against the appellant depends entirely on circumstantial evidence.
The standard of proof required to convict a person on such evidence is well established by a series of decisions of this Court, of which it is sufficient to mention Hanumant vs The State of Madhya Pradesh(1).
This standard requires that the circumstances relied upon must be fully established and that the chain of evidence furnished by these circumstances should be so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused.
The learned counsel for the appellant has, therefore, strenuously contended before us that the circumstances relied on have not been fully established and that in any case they are not enough to bring the offence home to the accused.
The various circumstances relied upon have, therefore, to be briefly noticed.
The appellant belongs to a place called Chakanddih about a mile and a half from a railway station called Chakand, which is in between Patna and Gaya and which is about five miles from Gaya.
It is in evidence that the deceased woman was seen alighting at the Chakand railway station on the night of the 2nd September, 1953, at about 10 15 P.m. from a train proceeding from Gaya to Patna and that after so alighting she was found proceeding to the village Chakand dih.
It is also in evidence that she took the train again early next morning at Chakand for Patna.
The evidence further shows that on the 3rd morning at about 10 o 'clock, she presented herself at the (1) [1952] S.C.R. 1091.
573 Income tax office at Patna, and made enquiries about the appellant from a peon of the office, P.W. 12, and that the appellant was informed about this by him.
On receiving this information the appellant came out and on seeing the woman told the peon that she was his wife and asked him to make some arrangement to keep her for the day so that he might meet her in the evening after he was free from the office work.
The peon accordingly made arrangements for her stay till the evening in the quarters of the Chowkidar, P.W. 22, who lived in the compound of the office.
In the evening of that day, i.e., 3rd September, at about 7 P.m.
the appellant came to his quarters and took away this woman in a rickshaw.
These facts are spoken to by the peon, P.W. 12, and the Chowkidar, P.W. 22.
It is further in evidence that after midday on the 3rd September, 1953, the appellant filed an application for casual leave for one day, i.e., 4th September and that leave was granted.
That the appellant did apply for leave and got it is not disputed.
The next evidence against the appellant is that he was seen that night, travelling with the deceased Parbati Devi in a compartment of the train which left Patna at about 8 P.m. that night for Gaya.
This evidence is that of three witnesses, P.W. 1, a daffadar and P. Ws. 3 and 4, two chowkidars, all of whom were on duty at Chakand railway station that night.
All of them speak to their having seen the appellant along with the deceased woman in a third class compartment at about 11 or 11 30 P.m. that night in the train from Patna to Gaya when it stopped at Chakand railway station for a few minutes.
It is their evidence that they knew both these persons well and that these persons did not get down at that station but proceeded in the train towards Gaya.
This evidence, if accepted as it has been by both the courts below undoubtedly is a strong circumstance against the appellant inasmuch as it makes out that the appellant was last seen with the murdered woman a few hours before the time when the murder must have taken place.
This evidence has been strongly challenged.
The appellant admitted that the murdered 574 woman met him at his office at Patna in the first week of September, but his case before the Sessions Judge was that this was not on the 3rd but on the 2nd.
In answer to questions under section 342, Criminal Procedure Code by the learned Sessions Judge, he admitted that the deceased came to the Income tax Office at Patna, to see him and that he met her there and that he made her stay in the house of the Chowkidar and that he took her from the lodging of the chowkidar in the evening on a rickshaw.
But he maintained that all this happened on the 2nd and not on the 3rd and said that after taking her from the lodgings of the chowkidar, at Patna on a rickshaw, he got down at the crossing and gave her money and sent her away.
He also added that once formerly she had come to his office to demand money.
His case that be met the deceased woman at Patna on the 2nd and not on the 3rd was not accepted by both the courts below.
Not only was there the evidence of the peon, P.W. 12, and the chowkidar, P.W. 22, in support of the prosecution case as to the date being the 3rd but a responsible and, educated person like the Inspector of Income tax, against whom nothing has been alleged, has also spoken to the same from his personal knowledge.
It is also significant that the appellant when he was questioned under section 342, Criminal Procedure Code in the court of the Committing Magistrate did not specifically put forward his case that it was on the 2nd and not on the 3rd, that he met the woman at his office in Patna.
His answer,% in that court were bare denials when he was asked whether he saw Parbati Devi at the Patna Incometax Office on the 3rd and whether he asked the chowkidar to allow her to remain in his house for the whole of the day.
His present case that he met the deceased at Patna on the 2nd and not on the 3rd appears to be an afterthought.
In the circumstances, the following facts, viz., that the appellant met the deceased at Patna Income tax Office on the 3rd, that he took charge of her that evening from the quarters of the chowkidar of the office by taking her in a rickshaw, that he was found travelling with her by 575 the night train at about 11 or 11 30 p.m. at the Chakand railway station and proceeding towards Gaya, must be taken to have been fully and clearly established, as found by both the courts below.
, The next important circumstance alleged against him is the existence of a strong motive.
That the relations between both of them were completely strained, and that the marital tie was virtually (though not legally) snapped, is admitted and is clearly borne out on the record by the Thyagpatra which he gave to the Secretary, Anath Ashram, in 1945 authorising him to get her married to an ' other person.
It is also admitted that the appellant had married a third wife some time before this murder.
The suggestion for the prosecution is that in, all these circumstances and having regard to the bad reputation which this woman had gathered round her, as the evidence clearly shows, and in view of the fact that she started troubling him by visits at his office, the appellant had a strong motive to commit the, murder.
It is urged for the defence that this woman must have had a number of persons with whom she must have been carrying on love intrigues and that she must have provoked strong jealousies of various persons in and around the place where she was admittedly moving for at least some time prior to her murder and that any one of such persons might have had much stronger motives to commit the crime.
Now, while it is perfectly true that there is no clear evidence about the life and movements of this woman from about October, 1947 to August, 1953, there can be no doubt that on the material before the Court, the existence of a strong motive on the part of the appellant is clearly indicated.
As has been already stated this woman left the appellant in the year 1945 and took shelter in the Anath Ashram, Gaya.
exhibit 2 (a), a Thyagpatra executed by the appellant on the 12th October., 1945, shows that he purported to give up all rights over this woman as a husband and authorised the Ashram to arrange to get her married according to her choice.
Simultaneously with this Thyagpatra, he also sent a letter to the Secretary, 73 576 Anath Ashram, exhibit 2 A(1), which is as follows: "It is submitted that I have duly filled the tyagpatra (divorce form) in connection with my wife Parbati Devi and submitted the same to the Ashram.
Besides this, I pray to the Ashram Samiti and the Bibah Samiti, with my folded hands that they should keep in mind to get Parbati Devi married at a very distant place in any other State, because she is Woman of such a loose character that if she is married to a place near about it will bring ill fame to the Ashram and to me.
As I am an employee in the Police department, it shall adversely affect my service.
I pray you not to refuse my prayer".
The state of mind of the appellant as disclosed in this letter furnishes a clue as to how his mind would have reacted when in spite of her having been married away at a distant place, she came back and was virtually knocking about from place to place between Patna and Gaya and went so far as to meet him in the very office where he was working to demand money.
It is strongly urged that this letter only shows the state of his mind about eight years prior to the murder.
But in view of his own admission that she started troubling him again by visiting him at his office, and demanding money at least on two occasions including that on the 3rd September, the courts below were perfectly justified in considering that a strong present motive on the part of the appellant has been made out.
Learned counsel for the appellant urges that the existence of the motive and the evidence as to the appellant having been last seen travelling in the train with this woman on the night of the 3rd September a few hours prior to the time of the murder, even if believed are, at best circumstances which may create a strong suspicion but that they are not enough by themselves to make out the guilt of the accused.
It s pointed out that there is no evidence that the ap pellant and the deceased woman were found getting down at the Gaya station or that they were both fond proceeding towards Kabristhan after so getting down.
Undoubtedly there is some gap in the evidence 577 at this point.
But their getting down at Gaya or proceeding towards Kabristhan must have taken place at or after midnight.
It is in evidence that Kabristhan was on the out skirts of Gaya about a mile and a half from the Gaya police station, on the bank of the river Phalgu and that there was no human habitation within about 100 yards of the place.
The absence of any specific evidence, therefore, as to the appellant having been seen with the murdered woman going towards Kabristhan or near about Kabristban is intelligible.
It cannot be denied, however, that if the circumstances against the appellant stopped short at this point, there may be room for hesitation.
There are however further circumstances relied upon by the courts below and they require to be noticed and considered.
These further circumstances are (1) the finding of a blood stained knife (pen knife) near the dead body, and (2) the existence of certain injuries upon the person of the appellant when he was arrested on the 6th.
The evidence of P.W. 23, the officer in charge of Kotwali police station, Gaya, who proceeded to investigate this offence on getting information thereof at 7 A.M. on the 4th September shows that he then found the dead body of the woman, in a pool of blood underneath and near the neck, and that there was found at the time a blood stained knife near the head.
This knife was seized and marked as exhibit 1.
The prosecution has given evidence of three witnesses, P.Ws. 11) 13 and 18, who are respectively the Daftari, the Chaprasi and the Inspector attach to the Income tax Office, Patna, in which the appellant was working, that they had seen with the appellant a knife similar to the one which was shown to them in Court, as having been found by the side of the dead body.
Out of these P. W. 18, the Income tax Inspector says in cross examination that he had never seen such a knife "before".
The appellant, while in his examination under section 342, Criminal Procedure Code admitted that he used to keep a knife for mending pencil, denied that the knife, produced in court as being the one which was found by the side of the dead body, was 578 his or was like the one he kept.
It was strongly urged on behalf of the defence that there was no proof that this was the very knife which the appellant used to have.
The learned Judges of the High Court met this criticism as follows: " 'Of course no witness could have possibly deposed that this was the knife which was in possession of the appellant.
They say that the knife which they had seen with the appellant prior to the occurrence was a knife similar to the one which was found in a blood stained condition near the dead body.
We have examined that knife for ourselves and it has a peculiarity of its own.
The knife has an ivory handle.
It has a cork screw and a bottle opener all combined.
A knife of this description, therefore, can be identified and it is not one of the kind which can be said to be an ordinary one".
In view of the above observation by the learned Judges and having regard to the evidence of P.W. 18, who, though he did not speak of these peculiar features, has categorically said that be had never seen such a knife before, there is no reason to disagree with the finding of the High Court that the find of this knife near the dead body is a strong circumstance against the appellant.
The next, circumstance found against the appellant is the presence of injuries on his body at the time of his arrest on the 6th.
P.W. 24, a Civil Assistant Surgeon of Gaya who examined him at 6 P.m. on the 6th of September, found the following four simple injuries on his person.
(1) One wound on the left ring finger, (2) one wound on the back of left hand near thumb, (3) two abrasions in front of right knee, and (4) one small abrasion in front of left knee.
In his opinion, the injuries were all about three days old.
Numbers 1 and 2 might have been caused by a sharpedged weapon such as a penknife and injuries 3 and 4 by some hard and rough substance such as friction against the ground.
According to him.
the nature and position of the injuries were such that "if the victim is lying on the ground and if the assailant is over on the chest of the victim and he is holding the victim 579 by his left hand and if he is inflicting, injuries near about his left hand the victim is struggling making the assailant unsteady, then injuries Nos. 1 and 2 may be caused by his own weapon and injuries Nos. 3 and 4 may be caused due to friction against the ground".
This answer indicates the possibility of the injuries having been received by a person while making a murderous attack on the victim with a pen knife.
The appellant when asked about these injuries in his examination under section 342, Criminal Procedure Code stated in the Sessions Court (as well as in the committal court) that he fell down at Jehanabad platform on the 3rd due to Dhoti getting entangled, and sustained injuries.
In support of his explanation he relied on an application for extension of leave sent first by telegram on the morning of the 5th of September to the Commissioner of Income tax, Patna asking for extension of leave followed by a letter of that very date to the same effect.
The letter was addressed to the Inspecting Assistant Commissioner of Income tax, Northern Range, Patna, and runs as follows: "I beg to state that I started from home from Patna in the night train of 3rd September 1953.
When the train stopped at Jehanabad I wanted to come out of the train for taking a stand on the platform due to unbearable heat in the train.
At the gate of the compartment as soon as I wanted to come out my one leg entangled with the lower part of my dhoti resulting instantaneous fell down from the train.
Due to this accident I got injuries at both the knees and the cut marks in the back of my left palm.
I therefore request you to kindly extend my leave up to 10th September, '53".
When questioned under section 342, Criminal Procedure Code before the Sessions Court about the extension of his leave, he said "I was a stenographer.
How can have I typed when my left hand was injured.
Hence I wanted to extend the leave".
It appears to us, however, very doubtful, having regard to the nature of the injuries, whether this can be the real reason for his extending the leave, He does not 580 say so specifically in his application for leave.
Nor, does it appear so likely from the.
medical evidence how injuries Nos. 1 and 2 could have been caused by the alleged fall on the railway platform.
In the crossexamination of the Doctor it was suggested that if there is a broken glass piece lying on the ground and if during the fall the hand came in violent contact with that piece of glass, then such injuries may be caused.
But the appellant in his explanation and in the application for leave does not say anything which indicates that he received the injuries on the band from a piece of glass.
In this state of the evidence, it cannot be said that the courts below were not justified in coming to the conclusion which they did, viz., that the explanation of the appellant for the injuries was false and that the injuries may well have been received on the occasion of the murder.
Summing up, the various facts, which formed the links in the chain of circumstantial evidence in this case, may be stated to be as follows: 1.
There was a fairly strong motive for the ap pellantto commit the murder in question.
He took charge of the murdered woman on the evening of the 3rd September by taking her out from the quarters of the chowkidar of the Incometax Office, Patna, and leaving the place with her in a rickshaw.
3.He was found travelling with her by a train which was proceeding to Gaya that night, at Chakand railway station and this was at about 11 or 11 30 P.M., i.e., a few hours prior to the time when she must have been murdered.
4.The knife, which looked like the one which he was known to be using in his office and which was not of a common pattern, was found just by the side of the head of the murdered woman stained with blood.
5.When he was arrested two and a half days after the murder, he bad simple injuries on his hand and the knees which might well have been received, according to the medical evidence, in an assault on the murdered woman with the knife above mentioned.
581 These circumstances taken together, advance the case against the appellant very much beyond suspicion and reasonably and definitely point to the appellant as the ' person who committed the murder.
In such a situation the fact that he has no explanation to offer as to how, after having taken charge of this woman on the evening of the 3rd at Patna and after having travelled with her in the train that very night towards Gaya, he left the woman, where and how he parted company with her and what became of her so far as he knows, goes a long way against him.
The fact that on the other hand he tries to dissociate himself from her company at the relevant time by putting forward for the first time in the Sessions Court, the story of having met her at Patna on the 2nd September and of his having parted company with her that evening at some crossing after giving her some money, which is patently false, is very significant.
The further fact that the explanation for his injuries appears to be false is also significant.
These false explanations are telling circumstances which, in a case depending on circumstantial evidence taken with the other facts such as those in this case, are enough to bring the guilt home to the accused.
To combat this conclusion learned counsel for the appellant drew our attention to the nature and position of the injuries on the body of the deceased woman as disclosed by the medical evidence of the Doctor, P.W. 17, who conducted the postmortem examination, as also the various indications at the site of the Occurrence., as found and spoken to by the police officer, P. W. 23, who was the first officer to go to the scene by about 7 A.M. on the 4th on receiving information, He also drew our attention to the fact that according to the report of the Serologist and Chemical Examiner, no human blood appeared to have been found on the saree and the bodice found lying near about the place where the dead body was lying and that neither the saree nor the bodice showed any indication of having been torn or tampered with and that on the other hand the body was found lying absolutely naked with face upwards.
These features 582 have all been pressed into service for a strong argument that the murder must have been the act of more than one person and probably having its source in sex jealousy.
We have very closely and anxiously gone into this aspect of the matter by carefully scrutinising the entire evidence in this behalf.
It is unnecessary to recapitulate the same.
Whatever may have been.
the actual situation on the spot and the method by which the murder was in fact committed a matter for mere speculation we are satisfied that the murder could have been committed by a single individual in the position of the appellant.
Sitting in an appeal by way of special leave, we are not prepared to say that the medical evidence and other concomitant circumstances were such as to compel a conclusion contrary to that arrived at by the Courts below.
It is true that in a case of circumstantial evidence not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused.
But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an addi tional link which completes the chain.
We are, therefore, of the opinion that this is a case which satisfies the standards requisite for conviction on the basis of circumstantial evidence.
I We find, therefore, no sufficient reason to differ from the view taken by the lower courts and this appeal must accordingly be dismissed.
| IN-Abs | The standard of proof required to convict a person on circumstantial evidence is well established by a series of decisions of the Supreme Court.
According to that standard the circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so far complete as not to leave any reasonable ground for a conclusion con sistent with the innocence of the accused.
The appellant was convicted under section 302 of the Indian Penal Code and sentenced to transportation for life.
There were no eyewitnesses to the murder and the conviction of the appellant rested solely on the circumstantial evidence which was relied on by the courts below.
The various facts which formed the links in the chain of circumstantial evidence in the present case taken together advanced the case against the appellant very much beyond suspicion and reasonably and definitely pointed to the appellant as the person who committed the murder.
In a case like the present when the various links in the chain had been satisfactorily made out and the circumstances pointed to the appellant as the probable assailant with reasonable definiteness and in proximity to the deceased as regards time and situation, and be offered no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completed the chain.
Hanumant vs The State of Madhya Pradesh ([1952] S.C.R. 1091), referred to.
|
Civil Appeal No. 582 of 1971.
Appeal by Special Leave from the Judgment and order dated the 29th July 1970 of the Punjab & Haryana High Court in Civil Writ No. 2376170 and 511 CIVIL APPEAL No. 1418 of 1970.
From the Judgment order dated 4th December 1969 of the Punjab and Haryana High Court in C.W.No.
342 of 1969.
Tirath Singh Munjral, G. K. Arora, B. C. Das Gupta & Co. for the Appellant.
N. section Das Behl and o. P. Sharma for the respondent.
The Judgment of the Court was delivered by JASWANT SINGH, J.
There two Civil Appeals Nos. 1418 of 1970 and 582 of 1971, the first by certificate of fitness granted under Article 133(1)(a) of the Constitution by the Punjab and Haryana High Court and the second by special leave granted by this Court which are directed against the Judgments and orders of the said High Court dated December 4, 1969, and July 29, 1970, rendered in Civil Writ r Petitions No. 342 of 1969 and No. 2376 of 1970 respectively shall be disposed of by this Judgment as they arise out of identical proceedings and raise common questions of law.
The appellant, a public limited company incorporated under the Indian Companies Act, which carried on the business inter alia of manufacture, storage and sale of various kinds of Indian made foreign liquors and had its plants for manufacture and production of beer and distillation and production of the said liquors at Solan (in Himachal Pradesh), at Mohan Nagar (in Uttar Pradesh), at Lucknow (in Uttar Pradesh) and at Kasauli (in Himachal Pradesh) held in the years 1967, 1968 and 1969 a licence in From B.W.H. 2 under section 22 of the Punjab Excise Act (1 of 1914) (hereinafter referred to as 'the Act ') read with Rule 2 of the Punjab Bonded Warehouse Rules, 1957 (herein after referred to as 'the 1957 Rules ') which were framed by the Financial Commissioner under section 59 read with section 22 of the Act, permitting it to run on conditions specified therein a Bonded Warehouse at Chandigarh for storage of bottled and bulk liquor and issue thereof under bond or on payment of duty to the licensees of Punjab, Haryana, Himachal Pradesh etc.
One of these conditions required the appellant to observe the provisions of the Act as also the Rules framed and instructions issued thereunder from time to time.
Rules 7 to 10 of 1957 Rules governing the appellant 's licence ran thus: "7.
No liquor shall be received in the bonded warehouse unless accompanied by a pass from the offlcer in charge of the distiller or bonded warehouse from which it has been imported or transported.
Immediately on arrival of a consignment at the bonded warehouse the officer in charge shall be informed and the consignment shall not be opened until the same has been examined and verified with the pass by the officer in charge who shall also note the results in the register maintained for the purpose and also on the pass covering the consign 512 ment.
One copy of the pass with entries of receipt shall be immediately returned to the officer, who issued the pass ; the other copy with entries thereon.
shall he kept in the.
Warehouse.
8 A wastage allowance not exceeding 1 per cent shall be made for the actual loss in transit by leakage or breakage of vessels or bottles containing liquor.
The allowance shall be determined by deducting from the quantity despatched the quantity received at the destination, both quantities being that in terms of proof liters of spirit contents or in case of beer bulk liters.
9 If the report of the officer in charge shows that the wastage exceeds the prescribed limit, the licensee shall be liable to pay duty at the prescribed rate as if the wastage in excess of the prescribed limit had actually been removed from the Warehouse.
Provided that each case of excessive wastage shall be re ported to the Financial Commissioner for orders who may in his discretion, on good cause being shown remit it whole or a . part or the duty leviable on such wastage.
10 Liquor shall be imported/transported under bond in accordance with the Punjab Liquor permit and Pass Rules at the sole risk and responsibility of the licensee.
The bond in form L. 37 shall be discharged, after liquor been duly checked and proved by the officer in charge and deposited in the Ware house." Between Junc.
1967 and April, 1969, the appellant transported.
for the purpose of bottling, various quantities of Indian made foreign liquors from its aforesaid distilleries in Uttar Pradesh and Himachal Pradesh to it Bonded Warehouse at Chandigarh.
This was done on the strength of the permits issued by the Excise and Taxation officer, Chandigarh.
Pursuant to Rule 7 of the 1957 Rules, the officer in charge of the Warehouse examined the consignments on their arrival at their destination with a view to checking and verifying the quantities thereof with those shown in the permits and discovered that they suffered from shortage which exceeded the wastage allowance of 1 per cent permissible under Rule 8 of the said Rules.
As a sequel to the detection of the aforesaid shortages.
the Excise and Taxation Commissioner exercising the powers of Financial Com missioner, Chandigarh Administration, who is the first respondent here in, issued notices calling upon the appellant to show Cause why duty at the prescribed rate of Rs. 20/ per proof litre be not levied against it on the wastage in excess of the prescribed limit "as if the same had been removed from its Bonded Warehouse at Chandigarh.
" In the written representation submitted on behalf of the appellant in reply to the notices, it was pleaded that the liquor evaporated during transit: that 513 the Bonded Warehouse was in its initial stage and the method of measurement of spirit was crude; that at the time of measurement, the temperature of spirit was not taken and that apart from evaporation, wastage occurred by leakage of drums in transit.
By his detailed orders dated January 10, 1969 and February 10, 1970, the said respondent repelled all the pleas raised on behalf of the appellant and made the ' notices absolute holding that there was no material on the record to show that anything peculiar had taken place in respect of the consignments in question which entitled the appellant to any remission in the duty leviable on the wastage.
The appellant thereupon preferred to the High Court writ petitions Nos.
342 of 1969 and 2376 of 1970 under Articles 226 and 227 of the Constitution challenging the aforesaid orders on various grounds.
While the first writ petition was dismissed by the High Court by an elaborate Judgment and order dated December 4, 1969, the second one was dismissed in limine vide order dated July 29, 1970.
While the High Court granted, as already indicated, a certificate of fitness for appeal to this Court against its Judgment and order dated December 4, 1969, it refused to so in respect of its order dated July 29, 1970.
Though several contentions were raised by the appellant in the aforesaid two writ petitions filed by it in the High Court, counsel appearing on its behalf has assailed before us the correctness of the impugned orders passed by the first respondent on two grounds.
He has in the first instance contended that Rules 8 and 9 of the 1957 Rules under which the duty is sought to be imposed are ultra vires the rule making power of the Financial Commissioner.
Elaborating this submission, counsel has urged that since the state alone has, by virtue of election 31 of the Act, the power to impose duties mentioned therein, as also the exclusive power under section 58(1) of the Act to make rules for the purpose of carrying out the provisions of the Act including those of section 31 or any other law for the time being in force relating to excise revenue and section 13(a) of the Act prohibits the state Government to delegate the powers conferred on it by sections 14, 21, 31, 56 and 58 of the Act, Rules 8 and 9 of the 1957 Rules are manifestly beyond the competence of the Financial Commissioner.
This contention cannot, in our opinion be accepted as it proceeds on a misconception of the correct legal position.
It is, no doubt, true that it is the state Government alone which is empowered tn impose excise duty or countervailing duty on any excisable article and to prescribe rates thereof as also the make rules for carrying out inter alia the purposes of section 31 of the Act.
but it seems to be overlooked that the impugned rules do not impose any one of the aforesaid duties or prescribe the rates thereof or create any liability in respect thereof.
They are in essence and substance of a regulatory character meant to guard against perpetration of fraud or deception on the Revenue.
They provide for and regulate the storage of liquor ill the Bonded Warehouse without payment at the initial stage of the duty payable under the Act and subsequently the removal of the liquor from the Warehouse on payment or otherwise of the duty which.
as correctly pointed out by the High Court, is chargeable under the Fiscal Rule of 1937 issued by the state Government.
The powers exercised 35 833 SCI/76 514 by the Financial Commissioner were clearly available to him under sections 59 and 22 of the Act and he has not, in our opinion, overstepped the same.
The first contention raised on behalf of appellant is, therefore, overruled.
It is next contended by counsel for the appellant that Rules 8 and 9 of the 1957 Rules are also invalid as they go beyond the scope of sections 16, 23 and 31 and Entry Sl of List ll of the Seventh Schedule to the Constitution.
Dwelling on this contention, counsel has submitted that as the taxing power of even the State Legislature is restricted to the imposition of excise duty or countervailing city on an excisable article which, according to section 3(6) of the Act, means inter alia an alcoholic liquor for human consumption implying thereby an alcoholic liquor in existence, the incorporation in Rule 9 of the 1957 Rules of the fiction making the licensee liable to pay duty at the prescribed rate on wastage in excess of permissible limit as if the said wastage had actually been removed from the Warehouse has the effect of imposing duty on an article which neither existed in the State nor was removed from the Bonded Warehouse thus violating the scope and extent of the taxing power.
, For a proper appreciation of the true legal position, it is necessary to advert to sections 3(6 b), 31, 32, 16 and 23 of the Act and Entry Sl of List II of the Seventh Schedule to the Constitution and the connotation of the term 'countervailing duty. ' "Section 3 (6 b) . 'excise duty ' and 'countervaling duty ' mean any such excise duty or countervailing duty as the case may be, as is mentioned in Entry Sl of List II in the Seventh Schedule to the Constitution.
Section 31.
Duty on excisable articles.
An excise duty, or a countervailing duty, as the case may be at such rate or rates as the State Government shall direct, may be imposed, either generally or for any special local area, on any excisable article (a) imported, exported or transported m accordance with the provisions of section 16, or (b) manufactured or cultivated under any licence granted under section 20.
Or (c) manufactured in any distillery established or any distillery or brewery licensed under section 21; "Provided follows: (i) Duty shall not be so imposed on any article which has been imported into India and was liable on importation to duty under the India Tarrif Act, 1894, or the .
(ii) xx xx xx xx xx xx Explanation.
Duty may be imposed under this section at different rates according to the places to which 515 any excisable article is to be removed for consumption, A or according to the varying strength and quality of such article "Section 32.
Manner in which duty may be levied. subject to such rules regulating the time, place and manner as the Financial Commissioner may prescribe, such duty shall be levied rateably, on the quantity of excisable article imported, exported, transported, collected or manufactured in, or issued from, a distillery, brewery or warehouse; Provided that duty may be levied (a) on intoxicating drugs by an acreage rate levied on the cultivation of the hemp plant, or by a rate charged on the quantity collected; (b) on spirit or beer manufactured in any distillery established, or any distillery or brewery licensed, under this Act in accordance with such scale of equivalents calculated on the quantity of materials used, or by the degree of attenuation of the wash or wort, as the case may be, as the state Government may prescribe; (c) on tari, by a tax on each tree from which the tari is drawn: Provided further that, where payment is made upon issue of an excisable article for sale from a warehouse established or licensed under section 22(a), it shall be made (a) if the state Government by notification so directs, at the rate of duty which was in force at the date of import of that article or (b) in the absence of such direction by the state Government, at the rate of duty which is in force on that article on the date when it is issued from a ware house.
* "Section 16.
Import, export and transport of intoxicants No intoxicant shall be imported, exported or transported .
1. except (a) after payment of any duty to which it may be liable under this Act, or execution of a bond for such payment, and (b) in compliance with such conditions as the state 1.
Government may impose." "Section 23.
Removal of intoxicant from distillery no intoxicant shall be removed from any distillery, brewery, 516 warehouse or other place of storage established or licensed under this Act, unless the duty, if, any, payable under Chapter V has been paid or a bond has been executed for the payment thereof.
"Entry 51 of List the of the Seventh Schedule to the Constitution Duties on excise on the following goods manufactured or produced in the State and countervailing duties at the same or lower rates on similar goods manufactured or produced elsewhere in India: (a) alcoholic liquors for human consumption (b) opium, Indian hemp and other narcotic drugs and narcotics; but not including medicinal and toilet preparations containing alcohol or any substance included in sub para graph (b) of this Entry." The expression 'countervailing duty ' is not defined in the Act but its meaning has been made clear in the Judgment the this Court in Kalyani Stores vs The State of Orissa and or.(1) where it was observed _ "This bring the consideration of the meaning of the expression "countervailing duties" used in Entry 51.
List II of the Seventh Schedule to the Constitution.
The "expression "countervailing duties" has not been defined in .
the Constitution or the Bihar & Orissa Act 2 of 1915.
We have, therefore, to depend upon its etymological sense and the context in which it has been used in Entry 51.
In its etymological sense, it means to counterbalance; to avail against with equal force or virtue; to compensate for some thing or serve as an equivalent of or substitute for: sec Black 's live Dictionary, 4th Edn.
This would suggest that a countervailing duty is imposed for the purpose of countervailing or to avail against something with equal force or to compensate for something as an equivalent.
Entry in List II of the Seventh Schedule to the Constitution gives power to the State Legislature to impose duties of excise on alcoholic liquors for human consumption where the goods are manufactured of produced in the State.
It also gives power to levy countervailing duties at the same or lower rates on similar goods manufactured or produced elsewhere in India.
The fact that countervailing duties may be imposed at the same or lower rates suggests that they are meant for counterbalance the duties of excise imposed on goods manufactured in the State.
They may be imposed at the same rate as excise duties or at a lower rate, presumably to equalise the burden after taking into account the cost of transport from the place of manufacture of the taxing (1) ; 517 State.
It seems, therefore, that countervailing duties are ment to equalise the burden on alcoholic liquors manufactured or produced in the State.
If no alcoholic liquors similar to those imported into the state are produced or manufactured, the right to impose counterbalancing duties of excise levied on the goods manufactured in the state will not arise.
It may, therefore, be accepted that countervailing duties can only be levied is similar goods are actually produced or manufactured in the state on which excise duties are being levied.
" lt will be seen that section 31 of the Act read with Entry 51 of` List II of the Seventh Schedule to the Constitution permits imposition of (i) excise duty by the state Government on any exisable article imported into or exported from or transported ill accordance with the provisions of section 16 of the Act which means after payment of any duty to which it may be liable under the Act or after execution of a bond for such payment and (ii) countervailing duty inter alia on Alcoholic liquors for human consumption manufactured or produced elsewhere in India.
The contention advanced on behalf of appellant which seems to proceed on the assumption that the Chandigarh Administration cant impose duty only if liquor is consumed in its territory is erroneous as, according to section 31 of the Act read with the aforesaid Entry 51 of List of the Seventh Schedule to the Constitution, countervailing duty can be imposed on liquor meant for consumption which is manufactured or produced elsewhere in India.
It is immaterial whether the liquor for which permits were obtained was consumed within the Union Territory of Chandigarh or was in existence in that territory or not.
What is material is whether permits were obtained for import from Uttar Pradesh of alcoholic Liquor meant for human consumption and the quantity showing in the permits left Uttar Pradesh.
In the present case, the liquor for which permits were obtained by the appellant was admittedly in existence and was meant for human consumption and did leave the appellant 's distilleries in Uttar Pradesh for being transported to his Warehouse in Chandigarh at his own risk and responsibility.
It is also not denied on behalf of the appellant that Portion of the liquor which exceeded the permissible limit of wastage did not reach the appellant 's Warehouse and was not found therein and the shortage remained unaccounted for.
It is thus evident that duty is not sought to be charged on an excisable article which was not in existence, as contended on behalf of the appellant but is sought to be charged on liquor which was actually manufactured and left Uttar Pradesh but was found short beyond the permissible limit and no reasonable explanation was tendered by the appellant in respect thereof.
There is accordingly no merit or substance in the second contention advanced on behalf of the appellant as well.
The decision of this Court in Bimal Chandra Banerjee vs State of Madhya Pradesh(l) which is strongly relied upon on behalf of the (1) ; 518 appellant is not applicable to the present case.
In that case, the condition introduced by the state Government in the purported exercise of its power under clause (d) and (h) of section 62(2) of the Madhya Pradesh Excise Act, 1915, in the appellants ' licenses prescribing the minimum quantity of liquor to be purchased by them from the Government and enjoining them to make compulsory payment of excise duty on the quantity of liquor which they failed to take delivery of was held to be invalid as it went beyond.
The provisions of sections 25, 26 27, 62(1) and ' clauses (d) and (h) of section 62(2) of the aforesaid Act.
In the present case, however, the liquor was lifted by the appellant from its distilleries in Uttar Pradesh and a portion thereof remained unaccounted for, as already stated, on arrival of the consignments at their destination.
For the foregoing reasons, the respondents were right in demanding the duty on the shortages.
In the result, the appeals fail and are dismissed with costs, limited to one set.
| IN-Abs | The appellant company carried on the business of manufacture, storage and sale of liquors Between June 1967 and April 1969 it transported various quantities of liquor from its distilleries in Uttar Pradesh to its bonded warehouse at Chandigarh On arrival the consignments were examined by the Officer in Charge of the warehouse and a shortage was found exceeding the wastage allowance permissible under rule 8 of the Punjab Bonded Warehouse Rules 1957 and April 1969, it Transported various quantities of liquor from its distilleries in Uttar Pradesh to its bonded warehouse at Chandigarh.
On arrival, the consignments were examined by the Officer in Charge of the warehouse, and a shortage was found, exceeding the wastage allowance permissible under rule of the Punjab Bonded Warehouse Rule, 1957.
The Excise and Taxation Commissioner, exercising the power of the Financial Commissioner, issued a show cause notice and then ordered the appellant to pay duty on the wastage in excess.
The appellant 's petitions to the High Court under Articles 226 and 227 of the Constitution, were dismissed.
It was contended before this Court, firstly that Rules 8 and 9 of the 1957 Rules under which the duty was sought to be imposed, were ultra vires the rule making power of the Financial Commissioner, and secondly, that these rules were invalid as they went beyond the scope of Ss. 16, 23 and 31 and Entry 51 List II, 7th Schedule of the Constitution, by imposing excise duty or counter vailing duty on articles which neither existed in the State nor were removed from the warehouse.
Dismissing the appeals the Court, ^ HELD .
(1) The impugned rules do not impose any duties or prescribe the rates thereof or create `any liability in respect thereof.
They are in essence and substance of a regulatory character rent to guard against perpetration of fraud or deception on the revenue.
They provide for and regulate the storage and subsequently the Removal of liquor from the bonded warehouse, on payment or otherwise of the duty which is chargeable under the Fiscal Rules of 1937, issued be the State Government.
The power exercised by the Financial Commissioner were clearly available to him under Sections 59 and 22 of the Act and he has not overstepped the same.
1513G H; 514A] (2) According to Section 31 of the Act read with Entry 51 of list II of the Seventh Schedule to the Constitution, countervailing duty can be imposed on liquor meant for consumption which is manufactured or produced elsewhere in India.
It is immaterial whether the liquor of which permits were obtained was consumed within the union territory of Chandigarh or was in existence in that territory or not.
Duty is sought to be charged on liquor which was actually manufactured and left Uttar Pradesh but was found short beyond the permissible limit and no reasonable explanation was tendered by the appellant in respect thereof.
[517D G] Kalyoni Stores vs The State of Orissa & ors.
[1966] I S.C.R. 865 referred to.
|
Civil Appeal No. 1116 of 1975.
Appeal by Special Leave from the Judgment and order dated 21st January, 1975 of the High Court of Madras at Madras in Writ Petition No. 3962 of 1972.
Petitioner in person; for the Appellant.
A. V. Rangam and (Miss) A. Subhashini; for the Respondent.
The Judgment of the Court was delivered by RAY, C.J.
This appeal is by special leave from the judgment dated 21 January, 1975 of the Madras High Court.
The appellant made an application under Article 226 challenging the power of the Government of Tamil Nadu to grant of pension to Anti Hindi agitators.
The appellant further challenged the power of the State to make payment from the Consolidated Fund of the State Exchequer.
Article 351 of the Constitution says that it shall be the duty of the Union Government to promote the spread of the Hindi language to 602 develop so that it may serve as a medium of expression for all the elements of the composite culture of our country.
The appellant contended that the spirit and letter of Article 351 is violated by the Pension Scheme of the Tamil Nadu State.
The appellant said that the agitators who brought about violence broke the law and were honoured by the pension scheme of the State.
The High Court said that the Stat Legislature has control over purse and that in the view of the State Legislature the agitators against Hindi fought for a cause and, therefore, those who are eligible should be granted pension.
The High Court found that if a scheme is provide which is not destructive of the Directive Principles but aimed at amelorating those who the legislature thought deserve that treatment Article 351 was not violated.
The High Court found that because of Appropriation Act No. 38 of 1974 it could not be said that payment was illegal.
In our opinion the pension scheme formulated by the Tamil Nadu Government contains the vice of disintegration and fomenting fissiparous tendencies.
If any State will be engaged in exciting emotion against Hindi or any other language such provocation has to be nipped in the bud because these are anti national and anti democratic tendencies.
The Madras Budget Manual 4th Edition was referred to by the appellant.
The appropriation in the present case shows that a fund was kept apart to meet the pension scheme.
There is no legislative sanction for such pension scheme.
The Government by an executive order could not authorise payment of pension scheme.
The appellant is right in his contention that the pension scheme is unconstitutional and the budget sanction is equally unconstitutional.
For these reasons the judgment of the High Court is set aside.
A mandamus will go directing the respondent to forbear from implementing the pension scheme.
The State will be competent to claim refund of moneys illegally and unconstitutionally paid.
The appellant is entitled to costs to be paid by the State.
| IN-Abs | The appellant challenged the constitutional validity of the pension scheme of the respondent State by which the anti Hindi agitators were to be paid pension from the Consolidated Fund of the State.
The High Court dismissed the writ holding that (1) the spirit and letter of article 351 was not violated and (2) in view of the Appropriation Act 38 of 1974, the payment was not illegal.
Allowing the appeal by special leave, the Court ^ HELD: (1) The pension scheme formulated by the Tamil Nadu Government contains the vice of disintegration and fomenting fissiparour tendencies.
If any State will be engaged in exicting emotion against Hindi or any other language, such provocation has to be nipped in the bud because these are anti national and anti democratic tendencies.
[602C D] (2) There is no legislative sanction in the instant case for such pension scheme.
The Government by an executive order could not authorise payment of pension scheme.
The pension scheme is unconstitutional and the Budget sanction is equally unconstitutional.
|
iminal Appeal No. 314315 of 1976.
Appeals by special leave from the Judgment and order dated 4 1975 of the Bombay High Court in Criminal Revision Appln.
No. 1115/73.
M.C. Bhandare, (Mrs.) Sunanda Bhandare, M.S. Narasimhan, 7 3 .
K. Mathur and A.K. Sharma, for the Appellants.
M.N. Phadke and M.N. Shroff, for the Respondents.
The Judgment of the Court was delivered by KRISHNA IYER, J.
Judicial fluctuations in sentencing and societal seriousness in punishing have combined to persuade Parliament to prescribe inflexible, judge proof, sentencing minima in the Food Adulteration law.
This depri vatory punitive strategy sometimes inflicts harsher than deserved compulsory imprisonment on lighter offenders, the situation being beyond judicial discretion even if prosecu tion and accused consent to an ameliorative course.
The two appeals, by special leave, partially illustrate this proposition.
Khurasani oil is an edible oil extracted by crushing oil seeds in mills.
Groundnut oil, also edible, is expressed likewise.
A firm by name almukand Hiralal Loya & Co., in a minor town in Maharashtra, ms an oil mill where Khurasani oil and groundnut oil are manufactured by the firm.
Sometimes they crush oil seeds for others on ire who pay milling charges.
The appellants in Criminal Appeal No. 314 are the manag ing partner and the manager of the mill and the appellant in Criminal appeal No. 315 is the operator of the expeller in the mill who actual sold the offending commodity.
On Febru ary 16, 1972 the Food inspector of Bhagur Municipality walked into the sales section of the Mill, asked for 375 grams of khurasani oil from accused No. 8, appellant in Criminal Appeal No. 315.
The quantity required was applied and, thereafter, the Food Inspector went through the statu tory exercises preparatory to an analysis by the Public Ana lyst.
After receiving the report of the Analyst to the effect that the sample of hurasani oil sent for analysis contained 30% of groundnut oil which amounted to a contra vention of rule 44(e) of the Prevention of Food Adultera tion Rules (for short, the rules), a complaint was lodged for selling adulterated food within the meaning of section 2(i) of he Prevention of Food Adulteration Act (hereinafter called the Act) read with sections 7(1) and 16 (1)(a) and r.44(e).
Evidence was led to make out a prima facie case.
The accused were questioned under section 342 Cr.
P.C., and the appellants confidently pleaded guilty to the charge where upon the trial Magistrate, perhaps agreeably to expecta tions, sentenced them each to a piffling fine of 3 Rs. 250.
Although the whole process in court is strongly suggestive of a tripartite consensual arrangement and re minds one of pie, bargaining procedures in the United States of America, the State Government appears to have taken a 7 3 trate 's adroit avoidance of the penal provisions which obligate him to inflict a minimum prison sentence, viz., section 2(i)(a) and section 16(1) with a view to apply the proviso to section 16(1).
This is, at best, a conjecture about the Magistrate and might as well be imputed to the prosecutor and the food inspector.
However, the State filed a revision to the High Court against the illegal and ultra lenient impost.
The revisional Judge converted the offence into one under section 2(i)(a) read with section 16(1 and enhanced the sentence to the minimum of six months an Rs. 1,000 by way of fine on the ground that the offence committee by the accused squarely fell within section 16(1)(a) and did not face within the proviso of that provision which vests a guarded discretion in the Court to soften the sentence to special cases.
The appel lants, shocked by this drastic reversal of fortune at the High Court 's hand: have sought restoration of the Magis trate 's conviction and sentence If this aggravated convic tion is correct, the enhanced punishment is inescapable.
The circumstances leading up to and constituting the offence hay 'been briefly set out already and the divergence between the trial court and the High Court turns on the legal inferance to be drawn from the factual matrix.
Has there been adulteration of food, in the sens imputed to that expression by section 2(i)(a)? Assuming it fails under section 2(i) (1) of the definition, does that factor exclude it from section 2(i) (a) Even if section 2(i)(a) does apply, is the benigrant proviso to section 16(1 attracted on the score that the crime in this case constitutes a violation of r. 44(e) prescribing minimum standards? These questions agricultural to the submission made by Shri Bhandare for the appellants.
his argument being that the scheme of s.2 is to erect separate corn apartments for the many types of adulteration so that if a food article is adulterated within the meaning of s.2(i)(1) more appropriately it falls outside the ambit of s.2(i)(a).
Otherwise, he argues, there is no point in itemising the various sub divisions even though he con cedes that marginally there may be overlapping among the sub clauses He further contends that even assuming that s.2(i)(a) is all corn prehensive, it must be read as the genus and thereafter sub clause (b) to (1) fall under two.
broad categories, viz., adulteration where injurious sub stances have been admixed and adulteration where innocent additions have been made or the substances sold merely violate a standard or degree of purity prescribed.
If there were force in this submission, the culpa, according to counsel, could reasonably 'fall under the non injurious type of adulteration covered by s.2(i)(1) The statute, says Shri Bhandare, sensibly dichotomises the senreno.
and invests a discretion in the court in the second category to reduce the sentence below the minimum stipulated, if special reasons exist for such clemency.
Of course, counsel concedes that if the adulteration is of the injurious brand, judicial sympathy is statutorily supplanted 73 4 this, he reasons, fits into and explains the scheme of s.16 which is a penal provision with dual limbs.
We wilt examine the validity of this interpretative dissection.
Indeed, if this somewhat strained argument fails,.
everything fails because, otherwise, the appellants have glibly convicted themselves, but of their own mouth, by an unusually obliging 'yes ' to every material question under s.342 Cr. P. Code.
Thus, on the merits, the sole question is about the proper offence made out on the facts admitted.
This, in turn, depends on the acceptability of the interpre tative dexterity displayed by counsel for the appellants.
It is trite that the social mission of Food Laws should inform the interpretative process so that the legal blow may fail .on every adulterator.
Any narrow and pedantic, liter al and lexical construction likely to leave loopholes for this dangerous criminal tribe to sneak out of the meshes of the law should be discouraged.
For the new criminal juris prudence must depart from the old canons, which make indul gent presumptions and favoured constructions benefiting accused persons and defeating criminal statutes Calculated to protect the public health and the nation 's wealth.
This humanist approach and cute construction persuades us to reject Shri Bhandare 's analysis of s.2(1).
Sub clause (a) of s.2(i) has a wide sweep and loyalty to the intendment of the statute forbids truncating its ambit.
There cannot be any doubt that if the article asked for is 100% khurasani oil and the article sold is 70% khurasani oil and 30% groundnut oil, the supply 'is not of the nature, substance or quality which it purports or is represented to be ' The suggestion that there is no format evidence of representa tion or prejudice as stated in the section does not merit consideration being a quibble over a trifle.
If we read s.2(i)(a) spaciously and if the facts alleged are accommodated by the definition of 'adulteration ' under that sub clause,.
section 16 ( 1 ) is attracted.
The first proviso to section 16 ( 1 ) will be attracted if and only if s.2(i)(1) applies.
In the present case the facts disclose that the offence is both under s.2(i)(a) and under section 7(v) for breach of r.44(e).
Section 2(i)(1) is repelled on the facts and it is obvious that this is not a case where either s.2(i)(1) or r.
A 17.12 urged by Shri Bhandare applies.
In this view it is not possible to invoke the amelioratory proviso to s.16(1) and the High Court is legally right in its conversion of the provision for conviction and enhance ment of the sentence.
We unhesitatingly hold that if s.2(i)(a) adequately fits in, adulteration under that provision must be found.
73 Once this position is made plain, the penalty that the appellants must suffer is fool proof.
Section 16 lays down the penalties and classifies them.
We are particularly concerned with s,16(1) of the Act which itself clubs togeth er many categories out of which we have to pick out only two for the purposes of this case, viz., (i) sale of any article of food which is adulterated; and (ii) sale of any article of 5 food other than one which is adulterated 'in contravention of any of the provisions of this Act or of any rule made thereunder '.
Ordinarily, both these clauses.
of offences are punishable with the minimum prescribed 'of not less ,than six months ' imprisonment, together with fine which shall not be less than Rs. 1,000/ '.
However, there is a kindly proviso which confers on the court a power to be exercised for any adequate and special reasons to be men tioned in the judgment whereby a sentence of imprisonment for a lesser term than six months or of fine smaller than Rs. 1,000/ or of both may be imposed, but this more moder ate punitive net is conditioned by the proviso itself.
We may read the proviso: "Provided that (i) if the offence is under sub clause (i) of clause (a) and is with respect to an article of food which is adulterated under sub clause (1) of clause (i) of sec. 2 or misbranded under sub clause (k) of clause (ix) of that section; or (ii) if the offence is under sub clause (ii) of clause (a).
the court may for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a terms of less than six months or of fine of less than one thousand rupees or of both imprisonment for a term of less than six months and fine of less than one thousand rupees.
" Judicial compassion can play upon the situation only if the offence is under sub cl.
(i) of cl.
(a) of s.16(1) and the adulteration is one which fails under sub cl.
(1) of el.
(i) of s.2.
Secondly, the proviso also applies if the offence is under sub cl.
(ii) of el.
(a), that is to say, the offence is not one of adulteration but is made up of a contravention of any of the other provisions of the Act or 7 3 already found that the accused is guilty of an offence of adulteration of food under s.2(i)(a).
Therefore, proviso (ii) is out.
Proviso (i) will be attracted, according to Shri Bhandare, if s.2(i)(1) applies to the species of adul teration committed.
In our view, the only sensible under standing of proviso (i) is that judicial jurisdiction to soften the sentence arises if the offence of adulteration fails only under sub cl.
(1) of cl.
(i) of s.2 and we have held that it does not.
We cannot but deplore the clumsy draftsmanship displayed in a statute which affects the common man in his daily bread.
It is unfortunate that easy comprehensibility and simplicity for the laity.
are discard ed sometimes through oversophisticated scholarship in the art of drawing up legislative bills.
It cannot be over stressed that a new orientation for drafting methodology adopting directness of language and avoiding involved refer ence and obscurity is overdue.
Be that as it may, in the present case s.2(i) (a) applies and s.16(1)(a) has been breached.
Therefore the proviso cannot be applied in exten uation and the conviction of the High Court has to be up held.
6 The possibility of long argument in a case where the accused has pleaded guilty arises because the provision lends itself to adroit exercises.
The court has to look at the interpretative problem in the social setting of the statute, visualising the rough and tumble of the market place, the finesse with which clever victuallers fob off adulterated edibles and gullible buyers goofily fall victim.
Viewed this way, chasing recondite semantics or niceties of classification or chopping of logic has no scope for play.
The appeals must fail, without more.
But we have to take note of a few circumstances of significance brought to our notice by counsel for the appellant .with which the State 's counsel could not express serious disagreement, although he made no concessions.
, We now proceed to refer to these factors which do not deflect us from confirming the conviction.
The curtain has been drawn thereon.
To begin with, we are free to confess to a hunch that the appellants had hastened with their pleas of guilty hopefully, induced by an informal, tripartite understanding of light sentence in lieu of nolo contendere stance.
Many economic offenders resort to practices the American call 'plea bargaining ', 'plea negotiation ', 'trading out ' and 'compromise in criminal cases ' and the trial magistrate drowned by a docket burden nods assent to the sub rosa ante room settlement.
The business man culprit, confronted by a sure prospect of the agony and ignominy of tenancy of a 7 3 being a plea of guilt, coupled with a promise of 'no jail '.
These advance arrangements please everyone except the dis tant victim, the silent society.
The prosecutor is relieved of the long process of proof, legal technicalities and long arguments, punctuated by revisional excursions to.
higher courts, the court sighs relief that its ordeal, surrounded by a crowd of papers and persons, is avoided by one case less and the accused is happy that even if legalistic bat tles might have held out some astrological hope of abstract acquittal in the expensive hierarchy of the justice system he is free early in the day to pursue his old professions.
It is idle to speculate on the virtue of negotiated settle ments of criminal cases, as obtains in the United States but in our jurisdiction, especially in the area of dangerous economic crimes and food offences, this practice intrudes on society 's interests by opposing society 's decision expressed through pre determined legislative fixation of minimum sentences and by subtly subverting the mandate of the law.
The jurists across the Atlantic partly condemn the bad odour of purchased pleas of guilt and partly justify it philosoph ically as a sentence concession to a defendant who has, by his plea 'aided in ensuring the prompt and certain applica tion of correctional measures to him ', "In civil cases we find compromises actually encouraged as a more satisfactory method of set tling disputes between individuals than an actual trial.
However, if the dispute . finds itself in the field of criminal law, "Law Enforcement" repu diates the idea of compromise as immoral, or at best a necessary evil.
The "State" can never com promise.
It must 7 enforce the law.
" Therefore open methods of com promise are impossible." (Arnold, Law Enforcement An Attempt at Social Dissec tion, , 19 (1932).
We have no sanction, except surreptitious practice in some courts, for 'trading out ' of punitive severity although this aspect of the criminal system deserves Indian jurists ' consideration.
The sole relevance of this digression in this judgment is to highlight the fact that the appellants perhaps acted on an expectation which came to pass at the trial level but was reversed at the appellate level and this touch of 'immorality ' in the harsh morality of the punish ment is a factor counsel wants us to take note of.
But we can do nothing about it when the minimum is set by the 7 3 justice to the citizen and relieve over worked courts by more judicial agencies and streamlined procedures instead of leaving the uninformed public blindly to censure delayed disposals.
One real reason for long litigation is inaction or ineffective action of the legislature.
All knowledgeable law men may concede that the procedures in municipal and higher courts are ossified to the point, priced to the level, and slow to the degree where they cannot flexibly assist disputants in early resolution of their everyday disputes.
This, we hope, will change and the source of the evil eliminated.
The next draft on the court 's commiseration, made by counsel, is based on the milling operation realities sur rounding the commission of the crime.
It is asserted by the appellant 's advocate and not seriously controverted by his opponent that the small town milling practice is multi purpose, in the sense that whoever brings any edible oil seed for extraction of oil gets it done so that ground nut crushing may be followed by Khurasani seed or some other oil seed may chance to take turns by rotation.
Even the mill er 's own oil seeds may be sometimes khurasani; at other times, some other.
This process may result in the residue of one getting mixed up with the next.
May be, innocently some groundnut oil, in the present case, got into the khu rasani oil by the same expeller handling both.
Even so, the presence of 30% groundnut oil is, perhaps too high an admix ture to be explained away this easy way.
While we appreci ate the situation we must adhere to the provision.
Where the law lays down an absolute liability, alibis cancelling mens tea are out of bounds.
The last plea, urged ex mesericordium, ameliorative in appeal and unavailing against conviction, is that actually groundnut oil costs more and so profit motive stands nega tived, that the mixture of these edible oils, though techni cally forbidden, is in fact non injurious and a terrifying term of six months ' rigorous imprisonment is unjust.
The facts are probably right but ex necessitate legis the court has to inflict the heavy minimum sentence.
While in stray cases a jail term even in a trivial food offence may.
look harsh, Parliament, in its wider wisdom, and having regard .to social defence in a sensitive area standardised the sentence by insisting on a minimum, ignoring exceptional 2 1003SC1/76 8 cases where leniency is needed.
Individual hardships deserv ing of lighter sentence are sometimes exploited by counsel 's 7 3 offenders milder punishments.
It is worthy of note though that in the present case the mixing of the two oils is a motiveless act.
May be.
And the circumstances above men tioned add up to a plea for paring down the sentence and Shri Bhandare, for the appellants, sought to wheedle us into lending evedence to these circumstances and bring down.
the offence to a lesser one.
Logically and sociologically and, above all, legally, such a course is impermissible.
Never theless, there is one circumstance which has impressed us not to the extent of undoing the sentence imposed by the High Court but of drawing the attention of the top executive to what may justly be done by way of remission of sentence.
The appellants have sworn an affidavit in this Court stating that khurasam oil is the same as nigar seed oil.
This is backed by a certificate from the Maharashtra Chamber of Commerce and is evidently correct.
What is more important is that the appellants, when surprised by a modification of their sentence to a heavier one for what they thought was undeserving, moved in the matter of cases generally of adulteration of khurasani oil with groundnut oil.
They drew the attention of the authorities to punishment of innocents and it appears that the.
State Government was satisfied about this grievance and has since withdrawn a substantial number of cases against dealers of khurasani oil whose sales were contaminated with presence of groundnut oil.
The affi davit on behalf of the appellants states: "I further say that various cases filed by the respondents against the dealers of khurasani oil are now being withdrawn as invariably groundnut oil is observed in khurasani oil.
I crave leave to refer to and rely on the Journal of Maharashtra Chumher Patrika dated 21st September, 1975, when produced.
" Probably, had the present case survived till the government took action, it might have been withdrawn.
Moreover, there are circumstances suggesting of innocent admixture although it is beyond us to pronounce definitely on this aspect and it is not for us to enquire into the matter when section 16( 1 ) is clear and the sentence is legal.
Nevertheless, it may be appropriate for government to consider whether in the cir cumstances of this case and in the light of the observa tions made by us in this judgment it is not a matter for exercise of commutation powers.
Sentencing policy has a punitive and a correctional role and we are sure that what is the need of the appellants will be meted out to them if they deserve any activist administrative empathy at all.
accordingly dismiss the appeals.
| IN-Abs | An analysis of a sample of khurasani oil from the appel lants ' mill collected by the Food Inspector showed 30% groundnut oil content amounting to contravention of r. 44(a) of the Rules which prohibits sale of a mixture of two or more edible oils as an edible oil.
The appellants were charged with an offence under section 2(i) of the Act read with sections 7 and 16(1)(a) and r. 44(a).
The appellants having pleaded guilty, each of them was sentenced to pay a small fine.
On revision, the High Court converted the offence into one under section 2(i) (a) read with section 16(1) and enhanced the sentence to a minimum of six month, imprisonment and fine of rupees one thousand on the ground that the offence committed by them fell within section 16(1)(a) and did not fall within the proviso to that section.
On appeal to this Court it was contended that even assuming section 2(i)(a) is all comprehensive it must be read as the genus and thereafter sub clauses (b) to (e) fall under two broad categories namely adulteration with injurious substances and adulteration with innocent additions or the substance sold merely violates a standard or degree of purity prescribed and in this case the offence would fall under the non injurious type covered by section 2(i)(1).
Dismissing the appeal, HELD: 1. (a) Sub clause (a) of section 2(1) has a wide sweep.
There causes be any doubt that if the article asked for is 100% khurasani oil and the article sold is 70% khurasani oil and 30% groundnut oil, the supply 'is not of the nature, substance and quality which it purports or is represented to be.
[4 E] (b) It is not possible to invoke the proviso to section 16(1) and the High Court is legally right in its conversion of the provision for conviction and enhancement of the sentence.
Though section 2(i)(a) is read speciously and if the facts al leged are accommodated by the definition of adulteration under that sub clause, section 16.(1) is attracted.
The first proviso to section 16(1) will be attracted if and only if section 2(i)(1) applies.
[4 F G] In the present case the facts disclose that the offence is both under section 2(i)(a) and under section 7(v) for breach of r. 44(e).
Section 2(i)(1) is repelled on the facts and this is not a case.
where either section 2(i)(1) or r. A17.12 applies.
2.(a) The proviso cannot apply in extenuation and the High Court was right in convicting the appellants.
Judicial compassion can play upon the situation only if the offence is under section 16(1)(a)(i) and the adulteration is one under section 2(i)(1).
The proviso applies if the offence is under cl.
(a)(ii), that is to say, the offence is not one of adultera tion but is made up of a contravention of the other provi sions of the Act or of any rule made thereunder.
Since in this case the offence falls under section 2(i)(a) proviso (ii) has no application.
[5 E F] (b) The judicial jurisdiction to soften the sentence arises if the offence of adulteration falls only under section 2(i)(1).
This case does not fall under this sub clause.
[5 G] [The Court drew attention to (a) the propriety of ac cepting by the prosecution and the Courts the accused 's plea of guilty of a lesser offence in dangerous economic crimes and food offences and (b) in view of the fact that a sub stantial number of cases of the kind were withdrawn by the Government because 2 variably groundnut oil is observed in Khurasani oil, the Government may consider whether in the circumstances of this case it is not a matter for exercise its commutation powers].
|
: Civil Appeals Nos.
1393 1398 of 1975.
(Appeals by Special Leave Petitions from the Judgment and Order dated 31 1G, 1975, of the Andhra Pradesh High Court in Revision Case No. 3 to 8 of 1974).
V.P. Raman, Addl.
Solicitor General of India, G.L. Sanghi, and Girish Chandra, for the appellant.
A. K. Sen and P.P. Rao, for the respondent.
The Judgment of the Court was delivered by KRISHNA IYER, J.
This batch of cases between a State Government (Andhra Pradesh) and the Union Government sug gests the need for litigative discipline for our governments and a periodical postauditing in that behalf.
And now we make good this inaugural observation by narrating briefly the necessary facts and examining closely the few points tersely presented by the Additional Solicitor General ap pearing for the common appellant in all these cases.
Our Constitution mandates on the State welfare activism and contemplates its undertaking distribution of commodities essential to the life of the community at large through trade and business directly organised or in other suit able ways.
Foodgrains and fertilisers are strategic items and the Union of India has, in fulfilment of high governmen tal functions, been procuring these vital goods and selling them lo the States or their nominees so as to ensure equita ble supplies and price discipline.
Pursuant to this com mendable programme the Central Government constructed an infra structure and, pertinent to our purpose, appointed, inter alia, a Joint Director of Food stationed in the port town of Visakapatnam.
This Officer sold, for the price fixed by his Government, food ' grains and fertilisers to the Andhra Pradesh State and other States.
These transactions, in the language of sales tax law, fell within the twin categories of intra State and inter State sales.
A vigilant State Sales Tax Officer directed the filing of returns by the appellant under the Andhra Pradesh General Sales Tax Act, 1957 (Act VI of 1957) (for short the State Act) and the (for short the Central Act).
This was complied with in six returns for the span of three years but was coupled with a plea of immunity from tax on grounds which will be presently discussed.
The adverse fate of those contentions at the hands of the Sales Tax Officer and the appellate officer eventuated in further appeals to the Tax Tribunal.
The three appeals covered by the Central Act were remanded for the narrow purpose of determining the presence of profit motive in the Central Government while undertaking these dealings as that element 61 is decisive of the appellant being a dealer doing business and therefore liable to tax under the Central Act.
The other three appeals were duly dismissed and these successive defeats notwithstanding, the Central Government 's Joint Director moved the High Court in all the.
six cases.
Un daunted by discomfiture there, the appellant has arrived here, discretion not being the better part of valour even where public money is involved.
The learned Additional Solicitor General has rightly discarded some of the rhetorical but lifeless contentions urged before the: High Courtbased on Part IV of the Consti tution.
The surviving points pressed before us may now be set out and discussed.
A hyper technical point half heartedly urged may be mentioned first, it being easy of rejection Argued counsel that since, in any view.
the sales were by the Central Government, the Joint Director could not be the assessee.
Obviously this official represented his Government in the sales and therefore could legitimately be dealt with for sales tax.
proceedings as representing the Union Govern ment.
The less said about such obstructive contention on behalf of a public functionary the better.
Devoid of presentability we decline to spend more space on this plea.
Next in order was the argument that the defination of 'dealer ' in section 2(b) of the Central Act read in implicit harmony with s.9 excludes the Central Government as an exigible entity.
The thrust of the argument, if we may say so, is that the Central Government being the taxing authori ty may not, without being guilty of grotesqueness, tax itself.
Counsel was cautious to concede that legally it was not impossible for the Central Government as a statutorily empowered agency to collect tax that falls due from it is as an assessee.
Indeed, if the statute deafly states that government is liable to pay tax qua dealer, it is not a legal plea to say that government is also the taxing author ity.
We have therefore to examine whether ' there is any necessary exclusion from exigibility or other provision of immunisation which can be spelt out of section 2 or section 9.
Section 2(b) Of the.
Central Act reads: "2.
(b) In this Act, unless the context otherwise requires, 'dealer ' means any person who carries on the business of buying or selling goods, and includes a Government which carries on such business".
Quite plain is the conclusion from a bare reading of this provision that a government (ergo any government) is by express inclusive definition made a dealer.
The Central Government being a govern ment is squarely covered by the definition.
Nor does section 9 rescue the appellant.
True it is that the tax shall be levied by the Government of India.
But it does so for the benefit of the other State Governments and indeed through the machinery of the State tax agency.
Section 9(3)reads: "The proceeds in any financial year of any tax, including any penalty, levied and collected under this Act in any State (other than a Union Territory) on behalf of the Government of India shall be assigned to that State and shall be re tained by it: and the proceeds attributable to Union territories shall form part of the Consoli dated Fund of India.
" 62 Again, article 269(g) of the Constitution speaks in the same strain, viz., that the real beneficiary of Central sales tax is the State designated in the above provisions, the Union Government being empowered to levy behalf of and thereafter to assign to the respective States eventually entitled to the tax.
We see no flaw in the reasoning of the High Court that the Central Government may tax itself, if it comes to that.
A subsidiary contention calculated to insulate the Central Government from liability was set up by the learned Additional Solicitor General to the effect that an undertak ing to distribute essential commodities by the State in implementation of its governmental obligations cannot be described as 'trading ' activity or carrying on of busi ness 'without doing violence to the concepts of governmental functions and business operations.
Indubitably the State has the power to carry on trade or business as is manifest from Art 19(6)(ii) and other provisions.
In dubitably the State, distributes essential commoditise in a fair and. equitable way for the survival of the community under its protection.
It does 'not follow that we cannot harmonize the tow functions.
It is well on the agenda of State activity that it carries on trade or business in essential commodi ties because it has the power to do carries on trade or business it it obligated to ensure even distribution of vital goods and because sections of the people We see no difficulty in inferring that the style martic activity of buying food grains and fetrilisers and selling them by the State although in fulfilment of a benificant national policy is never theless trade or business.
Necessarily Government becomes a 'dealer ' by definition and carries on 'busi ness, within the meaning of the central.
Act and the State Act (omitting for a moment the distiction in the two defi nitions based upon the motive to make gain or profit).
The conclusion therefore is inacvitable that the appellant, representing the Central Government is rightly held to be the assessee We may hasten to mention that the ordinary concept of business has the element: of gain or profit whose absence negatives the character of the activity as business in section 2(b) of the Central Act.
A person becomes a dealer only if he carries on business and the Central Government can be designated as 'dealer ' only if there.
is profit motive.
This question not having been investigated by the fact finding authorities has been directed to be gone into by the Tax Tribunal in the three.
case revolving round the Central Act.
So far as the State Act is concerned, this question does not arise for the straight forward reason that the definition in section 2(1)(bbb) of that Act expressly includes within the concept of 'business ' any trade or any adventure or concern in the nature of trade or commerce carried on or undertaken whether or not 'with a motive to make gain or profit whether or not profit accrues therefrom '.
Profit making in the State Act, it was conceded by counsel for the Union, was irrelevant in contrast to its pertinence in the Central Act.
If this be the correct position in law, it follows that the State Sales Tax Officer is entitled 10 collect sales tax from the appellant in regard to intra State sales even assuming that there is no profit motive or profit accrual.
The reverse is the case so far as Central sales tax is concerned.
In the result the orders passed by the Sales Tax Appel late Tribunal in all the six appeals, affirmed as it were by the High Court are correct and these appeals deserve to be dismissed.
63 We are conscious of the social implications of sales tax being leviable on essential commodities like food grains and fertilisers.
Both these items are vital to the common man and his fragile budget.
Any tax, especially on food, casts an extra burden on the poor who are the ultimate consumers of the article and victims of the impost.
But this socially desirable objective can .surely be achieved by appropriate notifications and, if need be, by necessary legislative direction.
The Court has to interpret the law and apply it.
The State, through its agencies.
makes the law for socially beneficial ends.
It is not for the former to salvage the latter from the legal coils which are its own.
handiwork.
We make these observations lest it should be felt that judicial constructions has contributed to extra food tax.
The blame, if any, must belong to the authors of the law.
The appeals are dismissed with costs one set.
P.H.P. Appeals dismissed.
| IN-Abs | The Joint Director of Food stationed in the Port of Visakapatnam sold food grains and fertilizers to the Andhra Pradesh State and other States at the price fixed by the Central Government.
The Sales Tax Officer of the Andhra Pradesh imposed the tax under the Andhra Pradesh General Sales Tax Act, 1957, on the intra State sales and imposed tax under on the inter State sales.
The Joint Director of Food claimed immunity from the tax on the ground that the element of profit motive was absent.
Under the Andhra Pradesh Act, the profit motive is irrelevant.
The High Court of Andhra Pradesh, therefore, dismissed the appeals filed by the Central Government as far as they related to the tax under the Andhra Pradesh Act.
The High Court, however, remanded the three appeals which per tained to the tax under the for deter mining the presence of profit motive in the Central Govern ment while undertaking the dealings in question.
In appeals by Special Leave the appellant contend ed: 1.
Since the sales were by the Central Govern ment, the Joint Director could not be the assessee.
Section 2(b) of the Central Act read with section 9 excludes the Central Government as an exigible entity.
An undertaking to distribute essential com modities by the State in implementation of its governmental obligations cannot be described as trading activity or carrying on of business without doing violence to the concepts of governmental functions and business operations.
Dismissing the appeal, HELD: (1) Since the Joint Director represented the Central Government in the sales he can legitimately be dealt with for sales tax proceedings as representing the Union Government.
[61 C] (2) Section 2(b).
of the Central Act in terms states that a dealer means any person who carries on the business of buying and selling goods and includes a Government which carries on such business.
[61 F] (3) Section 9(3) of the Central Act provides that the tax and penalty collected shall be assigned to the State which recovers the tax.
Therefore, the real beneficiary of the Central Act i.s the State concerned.
In any event there is no flaw in the reasoning of the High Court that the Central Government way tax itself.
[62 A B] (4) The State has the power to carry on the trade or business as is manifest from article 19(6)(ii) and other provi sions.
Systematic activity of buying foodgrains and ferti lizers and selling them by the State although in fulfilment of the beneficiant national policy is never the.
less trade or business.
Necessarily Government may become a dealer which carries on business within the meaning of the different definitions in one Central Act and the State Act.
[62 B E] (5) The question of profit motive is relevant for the purpose of Central Act.
Since the question has not been investigated by the fact finding authorities, the High court has rightly directed the authorities below to go into the said question.
So far as the Andhra Act is concerned since the profit motive is 60 irrelevant because of the special definition in the Act the State Sales Tax Officer is entitled to collect sales tax from appellant in regard to intra State sales even assuming that there is no profit motive.
[62 E H] (6) The Court observed that it is conscious of the social implications of the Sales Tax being leviable on the essential commodities like foodgrains and fertilizers.
Any tax on food and fertilizers is bound to cause an extra burden on the poor who are the ultimate consumers but the court has to interpret the law and apply it.
Necessary objective can be achieved by appropriate notifications or if need be, necessary legislative directions.
[63 A B]
|
il Appeal No. 861 of 1975.
(Appeal by Special Leave from the Judgment and Order dated 1 3 1975 of the Allahabad High Court (Lucknow Bench) in writ petition No. 405 of 1974.) A.K. Sen and S.K. Bisaria, for the appellant.
C.P. Lal for respondents 1 3.
Yogeshwar Prasad and R.N. Trivedi, for respondents.
No. 8.
The Judgment of the Court was delivered by JASWANT SINGH, J.
This appeal by special leave is di rected against the judgment and order dated March 31, 1975, of Lucknow Bench of 65 the Allahabad High Court dismissing the writ petition No. 405 of 1974 filed by the appellant challenging the recommen dation made by a Selection Committee of the Lucknow Univer sity (hereinafter referred to as 'the University ') for appointment of respondent No. 8 as Professor of Anthropology in the Faculty of Arts of the University.
The facts giving rise to this appeal are: towards the end of the year 1973, the University put up an advertisement inviting applications from candidates possessing the follow ing qualifications to fill up a vacant post of Professor of Anthropology : "Essential: First or high second class Master 's degree and Doctorate in the subject con cerned with a good academic record, experience of teaching post graduate classes not less than 7 years and/or having conducted and successfully guided research work for 7 year 's in recognised institution and having published work of high standard in the subject concerned.
" Preferential: High academic distinctions.
" The appellant and( respondent No. 8 were the only two candidates who applied for the post in response to the advertisement.
Their respective qualifications are as set out hereunder : S.No.
Name Age Qualifications & Experience 1.
Dr. G. Sarana, 38 years H.S. (U. P. Bd) 1949 1 Div.
Head of Deptt.
Inter (B.H.U.) 1951 1 Div.
of Anthropology, B.A. (L.U.) 1953 I Div.
Karnatak University, M.A. (L. U.) 1965 I Div.
Dharwar.
Ph. D. (Harvard (U) 1966.
Published 28 research papers and 3 books.
Worked as : (1) Temp.
Lecturer in Anthro pology L.U. July, 1955 April, 1962.
(2) Lecturer in Anthropol ogy Punjab U April August, 1962.
(3) Visiting Lecturer Univ.
of California at Santa Barbara July 1965 June 1966.
(4) Karnatak Univer sity (September 1966 upto date as Reader and since 27 June 1970) as Profes sor.
66 S.No.
Name Age Qualifications & Experience 2.Dr.
K.S. Mathur, 44 years H.S. (U. P. Bd) 1944 1 Divn.
Reader and Head of the Inter (U. P. Bd) 1946 I Divn.
Deptt.
of Anthropology, B. Com (L. U.) 1950 I Divn.
Lucknow University.
Ph.D. (Australian National U) 1960.
Published several research papers, Worked as: (1) Lecturer in Anthropology L.U. 1951 64.
(2)Reader in Anthropology L.U. 1964 continuing (3) Sociologist National Council of Appl.
Economic Research, New Delhi March ' September 1960.
On February 27, 1974,, a Selection Committee consisting of Shri A.K.K. Mustafi, Vice Chancellor of the University, Dr. K.N. Shukla, Dean, Faculty of Arts and Professor & Head of the Department of Hindi of the University, and three experts viz., Dr. S.C. Dube, Dr. S.R.K. Chopra and Dr. T.B. Mayak, respondents 3, 4, 5, 6 and 7 respectively met to interview the candidates and to make their recommendation to the Executive Council of the University.
After interviewing the aforesaid two candidates, the Selection Committee re solved to recommend respondent No. 8 herein for appointment to the aforesaid post of Professor of Anthropology.
On coming to know of the recommendation, the appellant filed the aforesaid petition 'under Article 226 of the Constitution challenging the recommendation mainly on the ground that two out of the aforesaid three experts viz., Dr. S.C. Dube and Dr. S.R.K. Chopra were biased against him and in favour of respondent No. 8.
It was alleged by the appel lant that the respondent had close relations with the afore said two.
experts as he was instrumental in obtaining many remunerative assignments for them.
It was.
further averred by the appellant that whenever Dr. Dube visited Lucknow, he stayed with respondent No. 8.
It was also averred by the appellant that Dr. Chopra had strained relations with him on account of straight election contest between him and the latter for the office of the President of Anthropology Section of the Indian Science Congress for 19574.
The appellant further averred that in 1968 when he was serving in the Punjab University as a Lecturer in the Department of Anthropology headed by Dr. Chopra, the latter stubbornly opposed his application for leave to avail of the offer of fellowship from Harvard University and stopped forwarding his salary bills to the Executive, Council with the ulterior object of depriving him of the opportunity to attain higher academic qualification and thereby better his future pros pects with the result that he was compelled to resign his job and surrender three months ' salary in lieu of notice to avail of the offer.
67 The petition was vigorously contested by respondent No. 8.
On consideration of the material placed before it, the High Court, however, dismissed the application holding that though respondent No. 8 was the head of the department of Anthropology, he was not the only person responsible for bestowing various assignments either on Dr. Dube or on Dr. Chopra and that it was the Executive Council and the Academic Council which were responsible for giving those assignments to Dr. Dube and Dr. Chopra.
It was further held by the High Court that there was nothing unusual in Dr. Dube and Dr. Chopra 's knowing and enjoying the hospitality of respondent No. 8.
The fact that the appellant had an elec tion contest with Dr. Chopra was also, in the opinion of the High Court, of no significance, as such like contests were very common and ' it could not be said that Dr. Chopra had developed such a degree of ill will and hostility against the appellant for the latter 's standing as a candidate against him so as to render him incapable of acting impar tially when the task of selecting the best candidate was assigned to him and that it was not possible to.
presume that Dr. Dube and Dr. Chopra were in a position to influence the decision of the entire Selection Committee by injection bias in the minds of the other members.
The High Court finally held that from the facts relied upon by the appel lant, bias could not be spelt out.
In arriving at its decision, the High Court relied upon the following observa tions made by Frank, J. of the United States of America in re. Linahan.(1) "If, however, "bias" and "partiality" be defined to mean the total absence of preconceptions in the.
mind of the Judge, then no one has ever had a. fair triaL,, and no one ever will.
The human mind, even at infancy, is no blank piece of paper.
We are born with predispositions and the processes of education, formal and informal, create attitudes which precede: reasoning in particular instances and which, therefore, by definition, are preju dices.
" The High Court also held that the appellant having submitted to the jurisdiction of the Selection Committee, he could not be permitted to turn round and denounce the con stitution of the Committee.
Counsel for the parties have reiterated before us the contentions raised on behalf of their clients before the High Court.
In addition, it has been contended by counsel for respondent No. 8 that the impugned recommendation being in the nature of an interlocutory proceeding,, neither the writ petition nor the appeal arising therefrom could be maintained.
It is needless to emphasize that the principles of natural justice which are meant to .prevent miscarriage of justice are also applicable to domestic enquiries and admin istrative proceedings (See A.K. Karipak vs Union of India(2).
It cannot also be disputed that one of the funda mental principles of natural justice is that in case of quasi judicial proceedings, the authority empowered to decide the dispute (t) [1943], 138F. 2nd 650 at 652.
(2) :[1970] 1 S.C.R. 457 :A.I.R. 1970 S.C. 150.
68 between opposing parties must be one without bias by which is meant an operative prejudice, whether conscious or uncon scious towards one side or the other in the dispute.
(See Nageswara Rao vs
A.P. State Road Transport Corporation(1) and Gullapalli Nageshwar Rao v State of A.P.(2).
It would be advantageous at this stage to refer to the following observations made by this Court in Manak Lal vs Prem Chand(3).
"Every member of a tribunal that sits to try issues in judicial or quasi judical proceedings must be able to act.
judicially; and the essence of judicial decisions and judicial administration is that judges should be able to act impartially, objectively and without any bias.
In such cases the test is not whether in fact a bias has affected the judgment; the test always is and must be wheth er a litigant could reasonably apprehend that a bias attributable 'to a member of the tribunal might have operated against him in the final decision of the tribunal.
It is in this sensethat it is often said that justice must not only be done but must also appear to be done." Again as held by this Court in A. K. Karipak 's case (supra), reiterated in section Parthasarthi vs State of Andhra Pradesh(4) and followed by the High Court of Jarainu & Kashmir in Farooq Ahmed Pandey and Ors.
vs Principal Regional Engineering College & Anr.(5) the real question is not whether a member of an administrative Board while exercising quasi judicial powers or discharging quasi judicial functions was biased, for it is difficult to prove the mind of a person.
What has to be seen is whether there is a reasonable ground for believing that he was likely to have been biased.
In decid ing the question of bias, human probabilities and ordinary course of human conduct have to be taken into consideration.
In a group deliberation and decision like that of a Selection Board, the mem bers do not function as computers.
Each member of the group or board is bound to influence the oth ers, more so if the member concerned is a person with special knowledge.
His bias is likely to operate in a subtle manner.
At page 156 of "Principles of AdministratiVe Law" by J.A.G. Griffith and H. Street (Fourth Edition), the position with regard to bias is aptly and succinctly stated as follows : "The prohibition of bias strikes against factors which may improperly influence a judge in deciding in favour of one party.
The first of the three disabling types of bias is bias on the sub ject matter.
Only rarely will this bias invalidate proceedings.
"A mere general interest in the general object to be pursued would not disqualify," said Field J., holding that a magistrate who sub scribed to the Royal Society for the Prevention of Cruelty to Animals was not thereby disabed (1) [1959] Supp. 1 S.C.R. 319 :A.I.R. 1959 S.C. 308.
(2) ; (3) ; (4) (5) 69 from trying a charge brought by that body of cruel ty to a horse.
There must be some direct connec tion with the litigation.
If there is such preju dice, on the subject matter that ,the court has reached fixed and unalterable conclusions not founded on reason or understanding, so that there is not a fair hearing, that is bias of which the courts wilt take account, as where a justice an nounced his intention of convicting anyone coming before him on a charge of supplying liquor after the permitted hours . . .
Secondly, a pecuniary interest, however, slight will disqualify, even though it is not proved that the decision is in any way affected.
The third type of bias is personal bias.
A Judge may be a relative, friend or business associ ate of a party, or he may be personally hostile as a result of events happening either before or during the course of a trial.
The courts have not been consistent in laying down when bias of this type will.
invalidate a hearing.
The House of Lords in Frome United Brewering vs Bath Justices(1) approved an earlier test of whether "there is a real likelihood of bias.
" the House of Lords has since approved a dictum of Lord Hewart that "justice should not only be done,, but should manifestly and undoubtedly be seen to be done" al though it did not mention another test suggested by him in the same judgment: Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of jus tice.
" At page 225 of his Treatise on "Judicial Review of Administrative Action" (Third Edition), Prof. S.A. De Smith, has stated as follows with regard to Reports and Preliminary decisions : "The case law on the point is thin, but on principle it would seem that where a report or determination lacking final effect may nevertheless have a seriously judicial effect on the legally protected interests of individuals (e.g. when it is a necessary prerequisite of a final order) the person making the report or preliminary decision must not be affected by interest or likelihood of bias.
" From the above discussion, it clearly follows that what has to be seen in a case where there is an allegation of bias, in respect of a member of an administrative Board or body is whether there is a reasonable ground for believing that he was likely to have been biased.
In other words whether there is substantial possibility of bias animating the mind of the member against the aggrieved party.
We do not, however, consider it necessary in the present case to go into the question of the.reasonableness of bias or real likelihood or bias as despite the fact that, the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the (1) 70 interview raise even his little finger against the consti tution.
of the Selection Committee.
He seems to have voluntarily appeared before the Committee and taken a chance of having a favourable recommendation from it.
Having done so, it is not.
now open to him to turn round and question the constitution of the Committee.
This view gains strength from a decision of this Court in Manak Lal 's case (Supra) where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him.
The following observations made therein are worth quoting: "It seems dear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point.
" It is also difficult to understand how the writ petition or for that matter the present appeal before us is maintain able when the recommenlation of the Selection Committee has still to be scrutinzed by the Excutive Council of the Uni versity and either accepted or rejected by t and other remedies by way of representation to.
the Executive Council and an application for reference of the matter under section 68 of the Uttar Pradesh Universities (Reenactment and Amendment) Act, 1974, 0 the Chancellor are still open to the appellant and have not been.
exmusted.
For the foregoing reasons, we find ourselves unable to allow the appeal.
In the result, the appeal fails and is hereby dismissed but in the circumstances of the case with out any order as to costs.
M.R. Appeal dismissed.
| IN-Abs | The appellant and respondent No. 8 applied for the vacant post of Professor of Anthropology in the Faculty of Arts, in answer to an advertisement put up by the Lucknow University.
A selection committee of five persons including three experts, interviewed them and recommended respondent No. 8 for the post.
The appellant 's writ petition challeng ing the recommendation was dismissed by the High Court.
The appellant contended before this Court that two of the expert members of the selection committee were unduly biased against him and in favour of respondent No. 8.
The appeal was contested on two grounds.
Firstly, that by submitting to the jurisdiction of the selection committee, the appellant had waived his right to denounce its constitution and sec ondly, that the impugned recommendation being an interlocu tory proceeding against which remedies were available, the writ petition was not maintainable.
Dismissing the appeal, the Court, HELD: 1.
Despite the fact that the appellant knew all the relevant facts,he seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it Having done so it is no now open to him to turn round and question the constitution of the committee.[70 A B] Manak Lal vs Prem Chand ; 1957 S.C. 425, applied.
Linahan 650; A. K. Karipak vs Union of India ; Nageshwar Rao vs State of A.P. ; 1959 SC 1376; section Partha rarathi vs State of Andhra Pradesh ; Farooq Ahmad Bandey and Ors.
vs Principal Regional Engineering College & Anr.
[1975] I&K L.R. 427; Principles of Adminis trative Law by I.A.G. Griffith and H. Street (4th edition) and Judicial Review of Administrative Action ' (3rd Edition) by Prof. S.A. De Smith, referred to. 2.
The recommendation of the selection committee has still to be scrutinised by the Executive Council of the University and either accepted or rejected by and other remedies by way of representation to the executive council and an application for reference of the matter under section 68 of the Uttar Pradesh Universities (Reenactment and Amendment) Act, 1974, to the Chance or are till open to the appellant and have not been exhausted The writ petition or he present appeal before us is not maintainable.
[70 C D]
|
ivil Appeals Nos. 928 and 929 of 1975.
(From the Judgment and Order dated 8 10 1974 of the Allahabad High Court in Civil Writ Nos. 2169 and 2276 of 1974).
F.S. Nariman, D.N. Misra and O.C. Mathur, for the appellant.
S.C. Manchanda and O.P. Rana, for the respondents.
ARGUMENTS APPELLANTS 1.
Civil Appeal No. 928 of 1975.
In this Appeal three questions arise for determination: (i) Whether in the facts and circumstances of the case the proviso to section 9(1) of the was applicable so as to enable the State of Uttar Pradesh to levy and collect Central Sales Tax in respect of the subsequent sales of coal effected by the Appellants to consum ers in the State of U.P. ? (ii) Whether the Sales Tax Officer, Moradabad had no jurisdiction to rectify the assessment for the year 1966 67 as there was no error apparent on the face of the record of the original assess ment (section 22 of the U.P. Sales Tax Act, 1948)? (iii) Whether the order of rectification passed under section 22 of the U.P. Sales Tax Act on 26th March, 1974 (for the assessment year 1966 67) and communicated to the Appellants on 31st March, 1974 was barred by limitation as it could not be said to be "within.
three years from the date of" the original assessment order dated the 27th March, 1971 ? II.
Re: Whether in the facts and circumstances of the case the proviso to Section 9(1) of the was applicable so as to enable the State of Uttar Pradesh to levy and collect Central 28 Sales Tax in respect of the subsequent sates of coal ef fected by the Appellants to consumers in the State of U.P. ? (a) The proviso to section 9(1) of the does not apply either : (i) to subsequent sales (in the course of inter State trade or commerce) of declared goods i.e. goods declared in section 14 to be of spe cial importance in inter State trade or commerce; or (ii) to sale of goods to persons other than registered dealers; (b) The argument 'in support of the submission that the proviso to section 9(1 ) does not apply to declared goods is as follows : Section 8(1) and 8(2) of the deals separately with two types of goods, namely, (i) goods of the description referred to in sub section(3) [see section 8(1)(b) and (ii)] declared goods [see section 8(2)(a)].
The rates of tax for the two types of goods have been and are differently prescribed in sub section
(1) and sub section
(2) of section 8 especially since the Amending Act VIII of 1963.
The expression "goods of the description referred to in sub section (3)" in section 8(1) originally in cluded declared goods intended for re sale [see section 8(3)(a)] as originally enacted in the (reproduced in Chaturvedi 's , 4th .Edition, p. 548).
Sub section (3) of section 8 then read as follows: "(3) The goods referred to in sub section (1) (a) in the case of declared goods, are goods of the class or classes specified in the certifi cate of registration of the registered dealer purchasing the goods as being intended for resale by him; and (b) in any 'other case, are goods of the class or classes specified in the certificate of regis tration of the registered dealer purchasing the goods as being intended for re sale by him or for use by him in the manufacture of goods for sale or for use by him in the execution of any; contract; and in either case include the containers or other materials used for the packing of goods of the class or classes of goods so specified.
" By the Amending Act VIII of 1963 (which raised the rate of tax under section 8(1) to 2 per cent), clause (a) of section 8(3) stood deleted.
The effect of this deletion was 29 that since 1963.declared goods fell outside the purview of section 8(3) Section 8(4) only applies to sales of goods of the description referred to in sub section
(3), since the provisions of that sub section have express reference to the provisions of section 8( 1 ).
For the proviso to section 9( 1 ) being applicable it is necessary that the registered dealer effecting the subsequent sale obtained or could have obtained the form prescribed in section 8(4)(a) i.e.
Form 'C ' prescribed under rr.
12 and 13 of the Central Sales Tax (Registration and Turn over) Rules, 1957 (see 'pages 25 and 27 of Chaturvedi 's , Fourth Edition).
In the present case, the appellants neither obtained nor could have obtained Form 'C ' from .their purchaser since section 8(4) [read with section 8(1) and (3)] did not (after 1963) apply to declared goods.
It is submitted that to accept the arguments urged on behalf of the Respondents that section 8(4)(a) [read with section 8(1) and (3)] dealt with declared goods as well, would be to give no meaning to the provisions contained in section 8(2).
Besides, as held by Their Lordships in State of Tamil Nadu vs Sitalakshmi Mills & Others C ; at 412 para 6), section 8 deals with three different classes of cases declared goods do not fall within the class mentioned in section 8 ( 1 ).
The argument that the charging section 6 does not make any differentiation between declared and undeclared goods is of no avail.
Section 6(1) itself commences with the words "Subject to the other provisions contained in this Act . . ".
If the effect of any other provision is to take away liability to pay sales tax, effect would have to be given to that other provision notwithstanding the charging section [see State of Mysore vs L. Setty 16 S.T.C. 231,239 (S.C.)].
Declared ' goods are clearly intended by the framers of Central Tax Act, 1956 to receive preferential treatment not only in respect of local sales tax on local sales (see section 15), but also Central Sales Tax in sales effected during the course of inter State trade or commerce [see section 8(2)].
(c) Even assuming that section 8(4)(a) [read with section 8(1) and (3) include within its purview "declared goods", the proviso to section 9(1) is still inapplicable for the following reason : For the proviso to section 9(1) to be applicable and.
for the State of U.P. to have jurisdiction to levy and collect the Central Sales Tax on subsequent sales, it is necessary that the registered dealer effecting the subsequent sales (by endorsement of documents of title like Railway Receipt during the course of the movement of the goods from one State to another) either "obtained or as the case may be 30 could have obtained" the Form prescribed.
in section 8(4)(a) in connection with the purchase of such goods involved in the subsequent sale.
Such a form could only be obtained under section 8(4)(a) from the appellants ' purchasers if the appellants ' sales were to be "a registered dealer" [see section 8(1) (b)].
Admittedly in the present case the appellants though registered dealer for the rele vant year in question did not sell coal to any registered dealer [see the averments in para 11 of the Writ Petition, page 62 Vol. 2 which have not been denied in the Affidavit in Reply (para 8 page 109 Vol. 2].
Therefore, even assuming that the provisions of section 8(4)(a) [read with section 8(1) and (3)] were applicable to declared goods (even after the Amending Act VIII of 1963), the sales result ing in the turnover of Rs. 5,59,172.38 not being to registered dealers, the provisions of section 8(1)(b) were not attracted.
Consequently the form pre scribed under section 8(4)(a) Form 'C ' could not have been obtained by the appellants ' purchaser from the prescribed authority.
Consequently the appel lants could not obtain from their purchaser such form under section 2(4)(a).
Accordingly the last part of the proviso to section 9(1) not being satisfied, the State of U.P. had not jurisdiction to levy and collect Central Sales Tax from the Appellants.
Re: Whether the Sales Tax Officer, Moradabad had no jurisdiction to rectify the assessment for the year 1966 67 as there was no error apparent on the face of the record of the original assessment (Section 22 )of the U.P. Sales Tax Act, 1948) ? It has been stated in the order of rectification dated the 26th March, 1974 passed under section 22 of the U.P. Sales Tax Act, 1948 that (page 96, Vol. 2): "In the present case of the assessee tiffs error is apparent because if this fact that it was registered under the had been placed before the Hon 'ble Allahabad High Court in the case of Karam Chand Thapar & Bros. (Coal Sales) Ltd., Moradabad for the year 1965 66 the decision would have been against them as have been happened in the above mentioned two cases.) The error apparent on the face of the record, which is a condition precedent to invoking the rectification provision (section 22) is that the appellants were treated as unregistered dealers by the High Court in the decision for the earlier assessment year 1965 66 (the judgment of the Hi h Court has been extracted at pages 71 78 of Vol. 2.
But in section 22 the error has to be an "error apparent on the face of the re cord" of the assessment i.e.
for the assessment year 1966 67.
This assessment order is dated 27th March, 1971 and a copy of it is at pages 31 79 83 of VoL 2.
In that order it is specifically mentioned (page 79 viz).
: "10.
Whether registered or not: Yes".
Thus it was known to the Sales Tax Officer passing the original assessment order that the appellants were in fact registered dealers.
An error apparent on the face of the record must be an error which is "glaring and obvious" [see ; , 150 (S.C.)].
Besides, there is a distinction between a mere erroneous decision and a decision which could be characte rised as vitiated by "error apparent".
A rectification is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected.
It lies only for patent error (see Thungabhudra Industries Ltd. vs Government of Andhra Pradesh ; , 186) where the expression "error apparent on the face of the record" in 0.47, r i, C.P.C. was interpreted by the Supreme Court).
In that case was also said that an error apparent on the face of the record was one where "without any elaborate argument one could point to the error" (page 186).
This is also the.
view expressed in a Sales Tax Case Master Construction Co. 17 S.T.C. 360, 365 366 (Subba Rao, J.).
In the present case, it is submitted that the view of the Sales Tax Officer, Moradabad who passed the original assessment order dated 27th March, 1971 following the deci sion of the Allahabad High Court dated the 24th July, 1970 in Civil Miscellaneous Writ No. 4356 of 1969 (pages 71 to 78) was not patently erroneous.
As a matter of fact the correctness of the subsequent decisions of the Allahabad High Court is being doubted in the present Appeal and there is no pronouncement of your Lordships on the question viz., interpretation of the proviso to section 9( 1 ).
Besides, it cannot be said that at the time when the original assessment order was passed there was a manifest error.
Moreover, even as a result of the subsequent decisions of the Allahabad High Court it cannot be said that what was not an error on 27th March, 1971 became an error on 26th March 1974 (the date of the rectification order under section 22).
In any event, even assuming that there was an error, that error is not apparent on the face of the record of the original assess ment it is a matter in which the arguments, to say the least, are evenly balanced and a decision of the Highest Court is now awaited.
In the circumstances there was no jurisdiction in the Sales Tax Officer, Moradabad to rectify and set aside the original order of assessment IV.
Re: Whether the order of rectification passed under Section 22 of the U.P. Sales Tax Act on 26th March, 1974 (for the assessment year 1966 67) and communicated to the Appellants on 31st March, 1974 was barred by limitation as it could not be said to be "within three years from the date.
of" the original assessment order dated the 27th March, 1971 ? It is submitted that the period of limitation under section 22 of the U.P. Sales Tax Act, 1948, runs from the date on which the order of rectification is communicated to the assessee which would enable the assessee to file an appeal under section 9 of the U.P. Sales Tax Act, 1948.
The period of limitation for filing an appeal is 30 days from the date of service of the copy of the order appealed against.
It is submitted that an order of rectifi cation is not complete as against the assessee unless it is duly communicated to him.
The order of rectification af fects the rights and liability of an assessee and it is essentially fair and just that it should be communicated to the party as stated by Your Lordships in a case under the Land Acquisition Act where the phrase "date of the Collec tor 's award" was being considered.
Your Lordships observed : " .
If the award is treated as an admin istrative decision taken by the Collector in the matter of the valuation of the property sought to be acquired it is clear that the said decision ultimately affects the rights of the owner of the property and in that sense, like all decisions which affect persons, it is essentially fair and just that the said decision should be communi cated to the said party.
The knowledge of the party affected by such a decision, either actual or constructive, is an essential element which must be satisfied before the decision can be brought into force.
Thus considered the making of the award cannot consist merely in the physical act of writ ing the award or signing it or even filing it in the office of the Collector; it must involve the communication of the said award to the party con cerned either actually or constructively.
If the award is.
pronounced in the presence of the party whose rights are affected by it it can be said to be made when pronounced.
If the date for the pro nouncement of the award is communicated to the party and it is accordingly pronounced on the date previously announced the award is said to be commu nicated to the said party even if the said party is not actually present on the date of its pronounce ment.
Similarly if without notice of the date of its pronouncement an award is pronounced and a party is not present the award can be said to be made when it is communicated to the party later.
The knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fair play and natural justice the expression 'the date of award ' used in the proviso must mean the date when the award is either commu nicated to the party or is known by him either actually or constructively.
In our opinion, there fore, it would be unreasonable to construe the words from the date of the Collector 's award used in the proviso to section 18 in a literal or mechanical way." (A.I.R. 1961 S.C. 1500, 1503 [1962] 1 S.C.R. 676, 683684).
It is submitted that on an analogy of reasoning the words "the date of any order passed by him" in section 22(1) of the U.P. Sates Tax Act, 1948 must be construed to mean the effective date of an order of rectification viz. the date when it is communicated.
In the instant case the order was communicated after three years from the date of the assess ment order and, therefore, the order of rectification is vitiated as being barred by time.
33 V. 1n Civil Appeal No. 929 of 1975 the only question that arises is: Whether in the facts and circumstances of the case the proviso to section 9(1) of the , was applicable so as to enable the State of Uttar Pradesh to levy and collect central sales tax in respect of the subsequent sales of coal effected by the appellants to consumers in the State of U.P. ? The assessment year in question is 1969 70 and the Appellant adopts the arguments urged in Civil Appeal No. 928 of 1975.
With regard to whether the sales by the appellants (in 1969 1970) during the course of the movement of the goods from State to State were to registered dealers or to consum ers, there is no indication in the record as to wheth er the sales effected to registered dealers or to con sumers or unregistered dealers.
In the event of Your Lord ships holding that declared goods are not covered by the proviso to section 9(1) this would make no difference because it is admitted that the subsequent sales effected by the appel lants were of declared goods namely coal.
But in the event of Your Lordships coming to the conclusion that the proviso to section 9 (1 ) may include also subsequent sales of declared goods, then the submission urged is (as in Civil Appeal No. 928 of 1975) that in any view of the matter it is only subsequent sales to registered dealers which would attract jurisdiction of the State authorities under the proviso to section 9( 1 ) and not subsequent sales by the appellants to unregistered dealers or consumers.
The fact would be easy of ascertainment by the Sales Tax Officer and it is submit ted that in that event a direction ought to be given that the State of U.P. could levy and collect central sales tax under proviso to section 9 (1 ) in respect of subsequent sales of coal effected by the appellants only to registered dealers and not to unregistered dealers or consumers.
short one.
It is as to which State has jurisdiction to tax subsequent sales made by a registered dealer.
In the instant case, admittedly the appellant is a dealer regis tered in U.P. both under the Central and the U.P. Act.
Therefore, the short question which arises for consideration is as to whether in the instant case the State of U.P. would have the jurisdiction to tax such subsequent sales effected by the enforcement of documents t0 parties in U.P. ? There is a specific provision in the Act, which is proviso to section 9 (1 ), to cover cases such as the present case.
Section 9(1) reads: "The tax payable by any dealer under this Act on sales of goods effected by him in the course of interstate trade or commerce, whether such sales fall within clause (a) or clause (b) of section 3, shall be levied by the Government of India and the tax so levied shall be collected by that gov ernment in accordance with the provisions of sub section (2) in the State from which the movement of goods commence: Provided that, in the case of a sale of goods during their movement from one State to another, being a sale subse quent to the first sale in respect of the same goods, the tax 34 shall, where such sale does not fall within sub section (2) of section 6, be levied and collected in the State from which the registered dealer effecting the subsequent sale obtained or, as the case may be, could have obtained, the form pre scribed for the purposes of clause (a) of sub sec tion (4) of section 8 in connection with the pur chase of such goods." Sub section
(2) of section 9 merely provides that the appropriate State on behalf of the Government of India shall assess, 'reassess, collect and enforce payment of tax under the Act as if the ' tax under the Act was a tax payable under the general sales tax law of the State.
Therefore, it is that the tax to be collected under the Act is by the appro priate State for and on behalf of the Government of India.
In the case of at first sales, the substantive provisions of section 9 (1 ) are clear and unequivocal.
Section 9 (1 ) selects out of several States one.
particular State and empowers it to levy and collect C.S.T. That State alone has the power to levy the tax and all other States by implica tion are debarred.
This was a simple device adopted in order to fix the forum and jurisdiction of the particular State to make the assessment in respect of first sales.
A simple test was evolved to avoid multiplicity of imposition of tax by more than one State in respect of the same goods and that was to link the tax with the commencement of the physical movement of the goods on their Journey from one State to another.
This was simple to comprehend and exe cute.
Therefore, the appropriate State was the one from where the.
movement of goods started on their interstate journey.
That problem does not concern us here as the States of Bihar and Bengal from where the movement of coal commenced have duly assessed the tax u/s 9 (1) of the Act.
The question, however, is which is the State which can tax the subsequent sale in the instant case.
For this purpose the proviso had to be enacted as admittedly CST is multipoint in nature and there is no provision for a single point tax.
The only exemption is to be found in section 6(2) which is the charging section and if the transaction does not satisfy all the three conditions of section 6(2), viz., (a) the purchaser is a registered dealer, (b) who by a certificate of registration is authorised to purchase his goods, and (c) the selling dealer furnishes to his assessing authority : (i) a certificate duly filled and signed by the registered dealer from whom the goods were pur chased containing the prescribed particulars in a prescribed form obtained from the prescribed au thority, and (ii) a declaration in C Form duly filled and signed by the registered dealer to whom the goods were sold.
(see Chaturvedi 's 3rd edition, page 383).
No attempt has been made by the appellant assessee in the instant case even to allege, what to say of proof, that the aforesaid three conditions were satisfied.
Therefore, section 6(2) which provides for exemption in respect of subsequent sales, albeit of declared or undeclared goods, will have no application.
The position therefore would be that the 35 subsequent sales in the instant case would not be exempt u/s 6(2).
Therefore, the subsequent shies have to be taxed and the only question is which State would have jurisdiction to assess the subsequent sales.
It was fairly conceded that the subsequent sales would be assessable u/s 9 ( 1 ), except sales of declared goods.
The argument was built up merely On the omission of el.
(a) from section 8(3) of the Act with effect from 1 4 1963.
Prior to that date section 8(3) ran as follows: "The goods referred to in clause (b) of sub section (1) (a) in the case of declared goods or goods of the class or classes specified in the certifi cate or registration of the registered dealer purchasing the goods as being intended for resale by him. " The above was omitted by section 2(iii) (a) of the C.S.T. Amendment Act (No. 8 of 1963) with effect from 1st April, 1963.
From this omission it was assumed that it was no longer necessary for de clared goods to be specified in the declaration prescribed under rule 12 and the Form C.
This assumption is wholly unwarranted and is contrary to the provisions of the Amending Act (No. 8 of 1963), The omission of cl.
(a) and certain words in cl.
(b) of section 8(3) was necessitated as the legislature probably wanted to do away with the distinction between declared goods and undeclared goods for purposes of section 8(3).
Hence it deleted clause (a) in its entirety and the words "in the case of goods other than declared goods" from cl.
(b) of section 8(3).
Thus with effect from 1 4 63 so far as mentioning of goods in the certificate of registration of purchasing dealer for purpose of re sale etc.
are concerned they made only one category and specified the same rate of tax as was applicable u/s 8 ( 1 ) both for declared and undeclared goods, provided Form C was duly submit ted.
The above interpretation also finds support from Chaturvedi 's Central Sales Tax Law, 3rd edi tion, 1973 at page 325, paras 7 and 8, which read as : "Clause (a) of section 8(3) was omitted by section 2(iii) (a) of the Amendment Act, 1963 with effect from 1 4 63.
Before that the rate of tax for sales covered in sub section (1 ) was 1 p.c. and all the sales or purchases of declared goods under the said Act could be subjected to tax at the rate upto 2% by virtue to section 15 of the principal Act.
"Sales covered under sub.
section
(1) could enjoy a concessional rate of 1 p.c. instead of the state rate of 2 p.o.
But when by the CST Amendment Act (No. 8 of 1963) the rate of tax for sales covered by sub section
(1 ) was enhanced also to 2 p.o.
there was no use of cl.
(a) of sub section
(3) and it was omitted. "In el.
(b) of sub section
(3), the opening words 'in the case of goods other than declared goods ' were omitted by section 2(iii) (b) of the C.S.T. Amend ment Act, 1963 with effect from 1 4 63.
" 36 Thus it is manifest that the argument laboriously built up had no foundation and the omission of sub cl.
(a) from section 8(3), if anything, goes against the contention of the assessee and fully supports the contention of the Department as that Vividly demonstrates that if .there was ever any intention of the legislature to make any distinction between declared and undeclared goods insofar as the sale of such goods was made to government or to a regd dealer that was done away with after 1 4 63.
The contention for the Department was that there was never any distinction made between declared and undeclared goods even in the Act and the Rules prior to 1963 64 in the matter of specification of the class or classes of goods in the application under Form A, the certificate under From B and the requisite declaration under Forn C under rr. 5 and 12 of the CST Rules.
The only place where the words "declared goods" occur is in section 8(2) (a) which merely provides the rate of tax applicable for sales without furnishing Form C ' and not for any other reason.
Thus the Act, the Rules and the Forms make no distinction between declared and undeclared goods whatsoever.
The main argument, therefore, has no force and in the absence of the condition u/s 6(2) having been satis fied, declared goods are taxable and the assessee being a regd.
dealer registered in U.P. both under the Central Act and the U.P. Act and the subsequent sale having been effect ed by such registered dealer in the State of U.P. the provi so to section 9 (1 ) is clearly attracted.
To sum up, in the instant case the State of U.P. would have the jurisdiction to assess, levy and collect C.S.T. on subsequent sales effected, by the assessee under the provi so to section 9 (1 ), provided the following conditions are satisfied: (1) The sale is a subsequent sale made during the movement of goods from the States of W. Bengal and ' Bihar to the State of U.P .This condition was fairly conceded by the learned counsel for the assessee to be satisfied.
(2) The subsequent sale is in respect of the same goods.
Tiffs was also conceded.
(3) That the goods do not fail within section 6(2), that is, the sale was to a registered dealer other than Government, if the goods are of the description referred to in Sub section (3) of section 8.
Such subsequent sale would be exempt provided the necessary certificate in Form C is produced.
(4) The registered dealer effecting the subsequent sale obtained or could have obtained the form prescribed for purposes of el.
(a) of sub.
section
(4) or section 8, that is, Form C.
The last two conditions according to the learned couusel do not require to be satisfied in case of declared goods.
As already stated there is no express warrant nor does the scheme of the Act support any distinction for C.S.T. be tween declared and undeclared goods except in the conces sional rate applicable.
37 Section 15 only places restrictions and conditions in regard to intra state sales of declared goods. ' This has no application to intexstate sales and, therefore, the single point tax provided in section 15 cannot be imported into the other provisions of the Act.
Therefore, C.S.T. is multi point in the absence of any specific provision to make it single point.
The relevant sections are section 3 which artificially determines when sale of goods can be said to take place in the course of interstate trade or commerce.
Section 6 is the charging section.
It is significant that it charges tax on all sales.
Therefore unless there is a specific exemption, sales of both declared and undeclared goods would be taxable.
It is well settled that the burden of proof lies heavily on the person ,who claims such exemp tion.
Section 6(2) deals with the charge to be levied in respect of a subsequent sale effected by transfer of docu ments to a regd.
dealer which would be exempt provided the conditions specified in the proviso thereto are satisfied.
These conditions undoubtedly have not been satisfied.
The case .of the assessee is that they do not require to be satisfied in the case of declared goods.
section 7(3) requires in the certificate of registration under r. 5 and for the purposes of section 8 (1 ) the class or classes of goods to be specified and it is only in respect of those goods so specified that to be exemption or conces sional rate is available and not otherwise.
section 8 merely provides the rates of tax on inter state sales.
There is a concessional rate of 3% for sales to regd.
dealers provided the goods are of the description referred to in section 8(3) which refers to section 7(3) and the application in Form A and the certificate in Form B issued under rr. 3 and 5 of the Rules.
Section 8(2) refers specif ically to the concessional rate for declared goods vis a vis undeclared goods.
For declared goods it is 3 % being the rate in the appropriate State, and 10% for undeclared goods.
Beyond this concessional rate there is no other distinction made between declared and undeclared goods.
section 8(3) refers back to section 7(3), rr. 3 and 5 and Forms A and B and only those goods, declared and undeclared, which find a place the certificate are entitled to the conces sional rate and none others.
The proviso to section 9(1) specifically covers the instant case.
The assessee is a regd.
dealer, and the sales do not fall within the exemption u/s 6(2) and being a regd.
dealer in U.P. he could have obtained the Form C from the Sales Tax Officer of his Circle.
It, therefore, follows that in the instant case there can be no doubt whatsoever that the admitted subsequent sales are taxable in the State of U.P. for and on behalf of the Government of India u/s 9(1) of C.S.T. B. Contentions 2 and 3.
These .may be dealt with togeth er.
The argument of the learned counsel for the assessee in short was that there was no error apparent on the face of the record and, therefore, 38 section 22 of the U.P. Act read with section 9(2) of the Central Act could not be invoked.
It must be remembered that this point is taken in a writ under article 226 when there was no possi bility of the appeal or revisional courts going into the facts of the case.
In these circumstances the facts as found by the Sales Tax Officer in his order u/s 22 and by the High Court in its judgment dismissing the writ petition will have to be taken as sacrosanct.
At page 92 of volume II is the order u/s 22.
At page 94, line 4, it is stated "The assessee is registered in this office under C.S.T. Act and their Central regn.
No. is 2931 which had been in existence since 4 12 65.
In the case of M/s Karam Chand Thapar & Bros. for the year 1965 66.the High Court had held that sales made by them were exempt from C.S.T. or U.P. Sales Tax and the authorities of Bihar or West Bengal only could assess the tax.
Thereafter the Hon 'ble High Court of Allahabad in many cases held that if the assessee was registered under the CST the authority of that State had jurisdiction to make assessments.
Therefore, the S.T.O. Morada bad has jurisdiction to assess the assessee.
In the meanwhile the High Court of Allahabad held in several cases that only dealers who are registered under the C.S.T. are liable to be assessed under the Act as for example . . " At page 96, line 2 "In the present case of the assessee this error is apparent because if this fact that it was registered under the C.S.T. had been placed before the High Court . . for the year 1965 66, the decision would have been against them as hap pened in the above mentioned two cases.
" At page 97, line 4 "In the above mentioned case the error of law is clear because u/s 9(1) the jurisdiction of assessment of tax lies only with that State where from the dealer has received their Central Regn.
No. and wherefrom the dealer receives C Form.
" Similarly, the judgment of the High Court is at page 1, of volume I and at page 2, last paragraph, the finding is: The petitioner claimed that the turnover of Rs. 30.07 lakhs was exempt from tax and that of Rs. 5.59 lakhs could not be taxed in the State of U.P.
The S.T.O. relying upon the observations made by the High Court in petitioner 's own assessment case for the year 1965 66 accepted his case that his turnover amounting to Rs. 5.59 lakhs could not be taxed in U.P. Subsequently in a number of cases this Court ruled that in a case where a dealer effecting a second sale in the course of inter state trade is a registered dealer, sales tax on the turnover of such goods is to be realised in the State where the dealer effecting the sale, is registered." , para 2: "In the instant case we find that while making the assessment order of 27 3 71 and holding that petitioner 's turnover amounting to Rs. 5.59 lakhs was not liable to tax in U.P., the S.T.O. relied upon a decision of this Court which, as subsequently clarified in the case of Shinghal Bros. & Co. vs State did . . . . not lay down that even in the case of a registered dealer effecting a subsequent sale in the course of inter state trade or commerce would not be liable to be taxed in the State where he is registered.
Accordingly, the S.T.O. applied the law laid down in this Court 's earlier judgment to the facts of the present case under some misapprehension and it is not disputed that in subsequent cases this Court has very clearly laid down that in the case of a subsequent sale effected during the course of interstate trade and commerce by a regd.
dealer the turnover of such sale.
is to be assessed in the State where the dealer is registered.
It is thus clear that there Was a mistake in the assessment order dr. 27 3 71.
The mistake was apparent on the face of the record inasmuch as the S.T.O. applied the observations made by this Court in a case which had been decided on the footing that the concerned dealer was an unregistered dealer to a case where the dealer was admittedly a registered dealer.
This mistake did not require any elaborate argu ment or prolonged debate on the merits or on the questions of law involved in the case.
" In view of these categorical findings by.
two courts that there was a clear and obvious mistake resulting from a mistake which had crept into the judgment of the High Court in the assessee 's own case for the A/year 1965 66 which the S.T.O. was bound to follow and could not ignore, the mistake in the subsequent assessments could be rectified u/s 22 within the period of limitation of 3 years.
Action could also have been taken u/s 21 under the U.P. Act for a reassessment .where the period of limitation is 4 years.
It is well settled that sections 21 and 22 are not mutually exclusive and the same action may be taken under either of the sections provided the conditions specified therein are satisfied.
The notice u/s 22 was issued within the period of three years and there was yet another year to run for action u/s 21, and in these circumstances a technical point of this nature raised in a writ petition should not be countenanced.
The main point that the sum of Rs. 5.59 lakhs was taxable not being in dispute as stated by the High Court, no assessee has a vested right to the forum or to succeed on mere technicalities.
The contention that the notice u/s 22.
and the order passed thereunder should have been communicated to the assessee within three years is wholly unsupported by any authority.
Section 22 merely requires the order to be made within three years.
No rights of the assessee are af fected by the passing of the order and it is only when the additional demand is served upon him under the provisions of 40 section 22(2) of the Act that the period of limitation for any appeal, revision, etc. would begin to run.
Authorities Rectification Glaring and obvious mistake of law ; SC 53 Cal Weekly Notes 869 Cal A .P.
Date of order meaning of 34 S.T.C. 257 SC 46 ITR 529 All.
SC Pb All.
The Judgment of the Court was delivered by GUPTA, J.
The appellant in Civil Appeal No. 928 of 1975.
M/s. Karam Chand Thapar and Brothers, is a limited company incorporated under the Companies Act, (referred to hereinafter as the Company), and the six branches of the Company at Allahabad, Moradabad, Kanpur, Varanasi, Gorakhpur and Lucknow are the appellants in Civil Appeal No. 929 of 1975.
The Company carries on business as coal agents and is registered under the Uttar Pradesh Sales Tax Act, 1948 and the with the Sales Tax Officer at Moradabad in Uttar Pradesh.
We shall refer to these two statutes as the U.P. Act and the Central Act for the sake of brevity.
The Company used to arrange supply of coal from collieries situate in West Bengal and Bihar to consumers in Uttar Pradesh.
The collieries used to send the coal by rail and the railway receipts were pre pared either in the name of the Company or in the name of the consumer in Uttar Pradesh on whose behalf the order for supply of.
coal was placed.
The collieries sent the bills and invoices in respect of the coal despatched to Uttar Pradesh to the Company 's head office in Calcutta; the Compa ny forwarded the railway receipts to the consumers in cases where the receipts were in the names of the consumers and endorsed the receipts that were in the Company 's name in favour of the consumers for whom the coal had been des patched.
These two appeals, brought on certificates of fitness granted by the Allahabad High Court, arise out of two writ petitions filed in the High Court respectively by the Company and its aforesaid branches.
The petition filed by the Company leading to Civil Appeal 928, is directed against an order made under section 22 of the U.P. Act giving rise to the question whether section 9 (1 ) of the Central Act was applicable to the case enabling the State of Uttar Pradesh to levy and collect Central sales tax in respect of subsequent sales of coal effected by the Company to consumers in Uttar Pradesh by endorsement of the documents of title; in the other writ petition, filed by the Company 's six branches, the applicability of section 9(1) of the Central Act was 41 one of the points raised in the High Court, but this was the only point urged before us in Civil Appeal No. 929.
The assessment year in question in Civil Appeal 928 is 1966 67, and that in Civil Appeal 929 is 1969 70.
As the Company 's appeal covers the question involved in the other case and raises two additional questions, we shall state only the facts of Civil Appeal 928 to indicate how these questions arise.
In the assessment year 1966 67, the Company filed quarterly returns showing its turnover of coal in two cate gories: (a) turnover in cases where the railway receipts had been prepared in the names of the consumers amounting to Rs. 30,07,439/02p.
; and (b) turnover in cases where the railway receipts had been prepared in the name of the Company but subsequently endorsed in favour of the consumers in Uttar Pradesh amounting to Rs. 5,59,172/32p.
The dispute in this case relates to the amount of Rs. 5,59,172/32p.
which according to the Company could not be taxed in the State of Uttar Pradesh.
Before We proceed further, it would.
be convenient to set out the relevant provisions of the two Acts.
Taking the Central Act first, section 2(c) de fines "declared goods" as the goods declared under section 14 to be of special importance in inter State trade or commerce.
SectiOn 14 which declares certain goods to be of special importance in inter State trade or commerce mentions coal as one of them.
Under section 3 a sale or.purchase of goods is deemed to take place in the course of inter State trade or commerce if the sale or pur chase, (a) occasions the movement of goods from one State to another; or (b) is effected by a transfer of documents of title to the goods .during their movement from one State to another.
The sales we are concerned with in this case were of this second type.
Sub section (1) of section 6 provides that subject to the other provisions of the Act, every dealer shall be liable to pay tax under this Act on sales of goods effected by him in the course of inter State trade or commerce.
Sub section (2) of section 6 states that notwithstanding what is provided in sub section (1), any subsequent sale of goods effected by a transfer of documents of title to the goods, (A) to the Government, or (B) to a registered dealer other than the Government, if the goods are of the description referred to in sub section (3) of section 8, shall be exempt from tax under this Act.
There are two provisos to this sub section, but it is not necessary to refer to them.
Section 7(1) requires every dealer liable to pay tax under this Act to apply for registration.
Sub section (3) of section 7 provides that if the application is in order, the prescribed authority shall register the applicant and grant to him a certificate of registration in the prescribed form which shall specify the class or classes of goods for the purpose of sub section (1) of section 8.
Rule 3 of the Central Sales Tax (Registration and Turnover) Rules, 1957, states that an application for registration under section 7 shall be made in Form A, and Form A requires the purpose or purposes for which the goods or 5 1003 SCI/76 42 casses of goods are purchased by the dealer in the course of interState trade or commerce to be speci fied; as would appear from the Form, 'resale ' is one such purpose.
Rule 5 (1 ) of the Rules pro vides that the certificate of registration must be in Form B. Section 8(1) provides that every dealer who in the course of inter State trade or commerce, (a) sells to the Government any goods; or (b) sells to a registered dealer other than the Government goods of the description referred to.
in sub sec tion (3) of this section, shall be liable to pay tax under this Act at the rate of three per cent of his turnover.
Subsection (2) of section 8 states that the tax payable by any dealer on his turnover relating to the sales of goods in the course of inter State trade or commerce which does not fall within sub section (1) shall be (a) in the case of declared goods, at the rate applicable to the sale or purchase of such goods inside the appropri ate State, and (b) in the case of goods other than declared goods, at the rate of ten per cent or at the rate applicable to the sale or purchase of such goods inside the appropriate State, whichever is higher.
The goods referred to in clause (b) of sub section (1) are specified in sub section (3) of this section as goods of the class or classes specified in the certificate of registration of the registered dealer purchasing the goods as being intended for resale by him.
Sub section (4) of section 8 says that the "provisions of sub section (1) shall not apply to any sale in the course of inter State trade or commerce unless the dealer selling the goods furnishes to the prescribed authority in the prescribed manner (a) a declara tion duly filled and signed by the registered dealer to whom the goods are sold containing the prescribed particulars in a prescribed form obtained from the prescribed authority;" rule 12(1) of the Rules states inter alia that the declaration referred to in sub section (4) of section 8 shall be in Form C. Clause (b) of sub section (4) is not relevant to the present purpose.
Section 9 (1) reads: "9.
(1) Levy and collection of tax and penal ties.
The tax payable by any dealer under this Act on sales of goods effected by him in the course of inter State trade or commerce, whether such sales fall within clause (a) or clause (b) of section 3, shall be levied by the Government of India and the tax so levied shall be collected by that Government in accordance with the provisions of sub section (2), in the State from which the movement of the goods commenced: Provided that, in the case of a sale of goods during their movement from one State to another, being a sale subsequent to the first sale in respect of the same goods, the tax shall, where such sale does not fall within sub section (2) of section 6, be levied and collected in the State from which the registered dealer effecting the subsequent sale obtained or, as the case may be, could have obtained, the form prescribed the purposes of clause (a) of sub section (4) of section 8 in connection with the purchase of such good 43 The dispute in this case turns on whether the proviso to section 9 (1 ) is applicable to the case.
Reference may also be made to section 15 which provides the restrictions and conditions in regard to the tax on sale or purchase of declared goods within a State.
The tax on sale or purchase of such goods inside the State.
is not to exceed three per cent of the price thereof, and such tax is not to be levied at more than one stage.
The only provision of the U.P. Act which is relevant is section 22 which is in these terms: "22.
Rectification of mistakes.
(1) The assessing, appellate, revising or additional revis ing authority may, at any time within three years from the date of any order passed by it, rectify any mistake apparent on the record; Provided that no such rectification, which has the effect of enhancing the assessment shall be made unless the authority concerned has given notice to the dealer of his intention to do so and has allowed him a reasonable opportunity of being heard.
(2) Where such rectification has the effect of enhancing the assessment, the authority con cerned shall serve on the dealer a revised notice of demand in the prescribed form and therefrom all the provisions of the Act and the rules framed thereunder shall apply as if such notice had been served in the first instance." The Sales Tax Officer had accepted the contention that the turnover amounting to Rs. 5,59,172/32p.
was not taxable in Uttar Pradesh.
In taking this view the Sales Tax Officer appears to have proceeded upon the observations in a Judg ment of the Allahabad High Court in the Company 's own as sessment case for the year 2965 66.
However, in several subsequent decisions, the High Court held that m a case where a registered dealer effected a second sale in the course of interState trade and commerce, sales tax on the turnover was to be realised in the State where the dealer effecting the sale was registered.
In one of these cases, M/s. Singhal & Co. vs State & Ors(1) it was pointed out that the earlier decision of the High Court had completely overlooked the proviso to section 9(2) of the Central Act.
The Company being admittedly a registered dealer under the Central Act and liable to pay tax under that Act, the Sales Tax Officer thought that there was an apparent error in the order of assessment made on March 27, 1972 exempting the turnover amounting to Rs. 5,59,172/32 p. which in view of the proviso to section 9(1) of the Central Act was taxable in Uttar Pradesh.
Accordingly, he proposed to rectify the error under section 22 of the U.P. Act, and on March 21, 1974 he issued a notice to the Company requiring it to appear before him on March 25, 1974.
In response to the notice a representative (1) (1973) U.P. Tax Cases 466. 44 of the Company appeared.
contended against the proposed rectification, and also filed a written objection.
The Sales Tax Officer recorded an order on March 26, 197.4 overruling the objections and rectified the order of assess ment dated March 27, 1.971.
A copy of the order passed on March 26, 1974 rectifying the mistake in the earlier assess ment order was served on the Company on March 31, 1974.
The Company challenged the order dated March 26, 1974 by a writ petition in the Allahabad High Court which, was dismissed giving rise to this appeal.
Mr. Nariman appearing for the appellants in these ap peals pressed the following grounds: (1) the proviso to section 9 (1 ) of the Cen tral Act has no application to goods declared to be of special importance in inter State sales or commerce under section 14 of the Central Act; (2) section 22 of the U.P. Act was not applica ble as there was no mistake apparent on the face of the record; and (3) in any event, the order made under section 22 of the.
U.P. Act was barred by limitation.
The argument.
that the proviso to sub section (1) of section 9 does not apply to declared goods proceeds as follows: Sub section (1) (b) and sub section 2(a) of sec tion 8 of the Central Act deal with two different types of goods.
Sub section (1)(b) speaks of goods of the descrip tion referred to in sub section (3), and subsection (2) relates to declared goods.
Sub section (3) of section 8 only mentions the goods referred to in sub section (1)(b) which are goods of the class or classes specified in the certificate of registration of the dealer purchasing the goods as being intended for resale.
Subsection (4) requires a declaration for the purposes of sub section (1) (b), and as sub section (1)(b) does not speak of declared goods, the declaration referred to in sub section (4) would not be necessary in the case of sale ' or purchase of declared goods.
We fail to see any valid distinction between declared goods and other goods for the purpose of the applicability of sub section (1 ) of section 8.
The .distinction was made by Mr. Nariman inferentially from the Central Sales Tax (Amendment) Act (8 of 1963) which omitted with effect from April 1, 1963, clause (a) from sub section (3) of section 8 as it stood prior to that date.
Sub section (3), it may be recalled, specifies the goods referred to in section 8(1)(b).
Prior to April 1, 1963, section 8(3)listing such goods, stated in clause (a) "(a) in the case of declared goods, are goods of the class or classes specified in the certificate of registration 45 of the registered dealer purchasing the goods as being intended for resale by him." Clause (b) of section 8(3) then began with the words: "in the case of goods other than declared goods, are . . ".
By the same Amendment Act (8 of 1963) the opening words of clause (b), "in the case of goods other than declared goods", were consequentially omitted, also with effect from April 1, 1963.
The omission of clause (a) is the basis of the argument that declared goods are altogether outside the purview of sub section (3) and, therefore, of sub section (1) of section 8, and, as the declaration referred to in sub section (4) of section 8 was required where sub section (1) of the section was applicable, it was not possible for the Company to obtain such a declaration.
The contention seems to us untenable.
Section 9(1) of the Central Act contains a general rule that tax payable by any dealer under this Act shall be levied and collected in the State from which the movement of the goods commenced.
The proviso to section 9(1 ) qualifies this rule in the case of a subsequent sale which is not exempt from tax under section 6(2), and states that the tax on such subsequent sale would be levied and collected in the State from which the registered dealer effecting the subsequent sale obtained or could have obtained the form prescribed for the pur poses of section 8 (4) (a).
No exemption under section 6(2) is claimed in this case.
The declaration referred to in section 8 (4) (a) is necessary for the dealer to avail of the benefit of the rate of tax mentioned in section 8(1 ).
Under section 7(3) the certificate of registration granted to a dealer has to specify the class or classes of goods for the purposes of section 8 (1 ).
Rule 3 of the Central Sales Tax (Registration and Turnover) Rules, 1957 requires an application for registration under section 7 to be made in Form A, and Form A requires the purpose for which the goods or class of goods are purchased by the dealer to be specified; resale is one of the purposes mentioned in Form A. Thus, section 7(3) makes no distinction between declared goods and other goods; it is impossible to argue therefore that declared goods purchased by a dealer for resale need not be specified in his certificate of registration.
Reading sub section (1) and sub section (3) of section 8 together, it is clear that all sales to a registered dealer other than the Government, whether of declared goods or other goods, are covered by subsection (1) of section 8.
Clause (a) was omitted from sub section (3) of section 8 by the Amendment Act (8 of 1963) presumably because it was considered unnec essary to retain clause (a) to deal with declared goods when clause (b) apparently covered all goods, both declared and other than declared.
The Act and the rules and the prescribed forms make No. distinction between declared goods and other goods except for the purpose of the rate of tax.
There is no valid reason why the Company could not have obtained a declaration in Form C as required by the proviso to section 9(1).
It follows therefore that the order of assessment dated March 27, 1971 was wrong as it held, contrary to the proviso to section 9(1), that the sales in question were not taxable in the State of Uttar Pradesh where the Company was registered as a dealer under this Act.
46 Another point sought to be made against the applicabili ty of the proviso to section 9(1) was tiffs.
The proviso refers to the Form prescribed for the purpose of section 8(4)(a) which should contain a declaration duly filled and signed by the registered dealer to.
whom the goods were sold.
It was argued that as the declaration was required only where the sale was to a registered dealer, and as there was no finding in this case that the sales were to regis tered dealers, the proviso was not attracted.
It appears, however, that the Company never claimed before the Sales Tax Officer that the sales were not to registered dealers; in the written objection filed before the Sales Tax Officer pursuant to the notice under section 22 of the U.P. Act, the only ground taken was that no declaration was required to be filed in the case of declared goods.
The point was taken for the first time in the writ petitions.
We do not think we should allow this question, which is one of fact, to be raised at this stage.
The next question is whether this error in the original order of assessment can be called an apparent error within the meaning of section 22 of the U.P. Act.
There is no dispute that an apparent error means a patent mistake, an error which one could point out without any elaborate argument.
The order of assessment relating to the assess ment year in question, 1966 67, was made on March 27, 1971 by the Sales Tax Officer relying on a Judgment of the Alla habad High Court on a writ petition made by the Company questioning the validity of the assessment in respect of the assessment year 1965 66.
In that Judgment the High Court held, referring to the provisions of section 9(1 ) of the Act, that "the Sales tax authorities in the State of U.P. had No. jurisdiction to make any assessment even if there was any inter State sale which could be liable to tax in the hands of the petitioner Company.
The only State which could levy tax could be either Bihar or West Bengal.
The impugned assessment order passed by the Sales Tax Officer, Moradabad, is therefore clearly without jurisdiction and is liable to be quashed".
In this Judgment there is no reference to the proviso to section 9(1 ).
It appears from the Judgment under appeal that the High Court in a number of latter decisions held that in view of the proviso, tax on a subsequent sale by a registered dealer in the course of inter State trade or commerce was to be levied and collected in the State where the dealer effecting the subsequent sale was registered.
We are of the view that the order of as sessment dated March 27, 1971 was apparently erroneous in that it failed to take into consideration the proviso to.
section 9(1).
It is not that the order dated March 27, 1971 was in accordance with law when it was made but the subse quent decision of the High Court took a different view of the law.
For the reasons we have given above, it was pat ently erroneous when it was made, but in view of the obser vations of the High Court in the case relating to the as sessment of an earlier year, the Sales Tax Officer felt that he had to dispose of the assessment case for the year 1966 67 in the manner he did.
The Judgment of the High Court which the Sales Tax Officer followed in making the assess ment for the year in question did not concern itself with the proviso to section 9(1).
47 The next, and the last, question is whether the order dated March 22, 1974 rectifying the assessment order made on March 27, 1971 was barred by limitation.
Under section 22( 1 ) of the U.P. Act any mistake apparent on the record may be rectified at any time within three years from the date of the order.
It is not disputed that the other requirements of section 22 have been complied with.
The Company 's representative appeared before the Sales Tax Officer pursuant to the notice served on them on March 25, 1974, and the objections to the proposed rectification were heard.
There is no dispute that the order rectifying the mistake was recorded by the Sales Tax Officer on March 26, 1974, and this order was communicated to the appellant on March 31, 1974 According to Mr. Nariman, the order of rectification must be held to have been made on March 31, 1974 when it was communicated to the assessee which was beyond three years from the date of the order of assessment.
Mr. Nariman relied on the well known rule of fairplay that the rights of a party cannot be affected by an order until he has notice of it.
In Raja Harish Chandra Rai Singh vs The Deputy Land Acquisition Officer and another,(1) this Court considering the meaning of the words "the date of the award" occurring in section 18 of the Land Acquisition Act, 1894 observed.
"The knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fairplay and natural justice the expression "the date of the award" used in the proviso must mean the date when the award is either communicated to the party or is known by him either actually or constructively.
In our opinion, therefore, it would be unreasonable to construe the words "from the date of the Collector 's award" used in the proviso to section 18 in a literal or me chanical way.
. where the rights of a person are affected by any order and limitation is prescribed for the enforcement of the remedy by the person aggrieved against the said order by reference to the making of the order must mean either actual or constructive communication of the said order to the party concerned.
" Following this decision, this Court held in a subsequent ease under the , Madan Lal vs State of U.P. and others,(1) that the right of appeal given by section 17 of the Forest Act should be deemed to be the date when the party aggrieved by an order came to know of that order from which an appeal was sought to be preferred.
But how have the Company 's rights been affected in this case ? (1) [1962] 1 S.C.R. 676.
(2) [1975] 3 S.C.C. 779. 48 Section 9 of the U.P. Act gives a right of appeal to "any dealer objecting to any order made by the assessing authority, other than an order mentioned in section 10 A", within thirty days from the date of service of the copy of the order.
In this case the Company was not affected by the order under section 22 being communicated to it after the expiry of three years from the date of the order because the limi tation for an appeal from that order did not begin to run before the communication of the order.
The provisions of section 9 of the U.P. Act make that clear.
The appeals therefore fail and are dismissed.
Considering the circumstances, we direct the par ties to bear their own costs here and in the High Court.
V.P.S. Appeals dismissed.
| IN-Abs | Under section 3(b), , a sale or purchase of goods is deemed to take place in the course of inter State trade or commerce if the sale or purchase is effected by a transfer of documents of rifle to the goods during their movement from one State to another.
Section 7(3 ) provides that on the application of the dealer the prescribed authority shall register the applicant and grant him a registration certificate which shall specify the class or classes of goods for the purpose of section 8(1); and the Form prescribed by r. 3, Central Sales Tax (Registration and Turnover) Rules, 1957, for application for registration, requires the purposes for which the goods were purchased by the dealer to be specified, resale being one such purpose.
Section 8(1)(b) provides that every dealer who, in the course of inter State trade or commerce sells to a regis tered dealer other than the Government, goods of the de scription referred to in sub section
(3) shall be liable to pay 3.%_ of his turnover as.tax under the Act; whereas, under section 8(2), the tax payable with respect to goods which do not fall within sub section (1) shall be, in the case of declared goods, at the rate applicable to to the sale or purchase of such goods inside the appropriate State and in the case of other goods 10%, or the rate applicable in the State, which ever is higher.
Prior to April 1, 1963, section 8(3) stated, that the goods referred to in section 8(1)(b), "(a) in the case of declared goods, are goods Of the class or classes speci fied in the certificate of the registered dealer purchasing the goods as being intended for resale by him; and (b) in the case of goods other than declared goods are goods of the class or classes specified in the certificate of registra tion of the registered dealer purchasing the goods, as being intended for resale by him.
" By the Amendment Act (8 of 1963), cl.
(a) was omitted and the opening words in cl.
(b), "in the case of goods other than declared goods" were also omitted; so that, after April 1, 1963, the goods referred to in section 8(1)(b) are specified in sub section
(3) as goods of the, class or classes specified in the certificate of registra tion of the registered dealer purchasing the goods as being intended for resale by him.
Section 8(4)(a) says that the provisions of section 8(1) shall not apply to any sale in the course of inter State.
trade or commerce unless the dealer selling the goods furnishes to the prescribed authority in the prescribed manner, a declaration in the prescribed.
Form, duly filled and.signed by the registered dealer to whom the goods are sold containing the prescribed particu lars.
Section 9(1) contains a general rule that the tax payable by any dealer on sales effected in the course of inter State trade or commerce would be levied by the Govern ment of India and collected in the State from which the movement of the goods commenced.
The proviso to the sub section qualifies this rule in the case of a subsequent sale which is not exempted from tax under section 6(2).
and states, .that the tax on such subsequent sale would be levied and collected in the State from which the registered dealer effecting the subsequent sale obtained, or could have Obtained, the Form prescribed for the purpose of section 8(4)(a).
Coal is one of the declared goods having been declared under section 14 to be of special importance in inter State trade or commerce.
The appellant was a Company carrying on business as coal agents and was registered in U.P. under the U.P. Sales Tax Act, 1948, and the .
The appellant arranged for the supply of coal from collieries in W. Bengal and Bihar to consumers in U.P.
The collieries sent the coal by 4 1003 SCI/76 26 rail, the railway receipts either in the name of the.appel lant or in the name of the consumer in U.P., and sent the bills and invoices to the appellant 's head office in Calcut ta.
The appellant forwarded the railway receipts to the consumers in cases where the receipts were in the names of the consumers, and in cases where the receipts were in the appellant 's name also endorsed them in favour of the consum ers.
There was thus, in the latter cases, a subsequent sale of goods in the course of inter State trade or commerce by the transfer of documents of title by the appellant to the consumers in U.P.
For the assessment year 1966 67 the appellant claimed that the turnover in cases where the railway receipts had been subsequently endorsed in favour of the consumers in U.P. was not taxable in U.P.
The Sales tax Officer by order dated March 27, 1971, accepted the conten tion, relying on a decision of the High Court.
But, in subsequent decisions, the High Court held that in cases where a regisetred dealer effected a second sale in the course of inter State trade and commerce, sales tax on the turnover was to be realised in the State where the dealer effecting the sale was registered; and in one of the deci sions it was observed that the decision on which the Sales tax Officer relied had overlooked the proviso to section 9(1 ) of the Central Act.
The Sales tax Officer accordingly proposed to rectify the error committed by him and after following the procedure prescribed for rectification of errors appar ent on the face of the record in section 22 of the U.P. Act, passed an order on March 26, 1974, rectifying the mistake and served it on the appellant on March 31, 1974.
The appellant challenged the order unsuccessfully in the High Court.
In appeal to this Court it was contended: (1) That the declaration prescribed under section 8(4)(a) is necessary when section 8(1) was applicable, but that, after the omission in section 8(3), reference to 'declared goods ' is omitted in that section, so that when section 8 (1)(b) refers to the sale of goods mentioned in section 8(3) the reference is only to goods other than declared goods and hence, when a dealer sells declared goods, he could not have obtained the prescribed declaration and so the proviso to section 9(1) did not apply; (2) Section 22 'of the U.P. Act was not ap plicable as there was no mistake apparent on the face of the record; and (3) The order under section 22 was barred by limi tation, because it was effective only when it was served on the appellant.
Dismissing the appeal to this Court, HELD: (1) The 1971 assessment order was wrong.
[46 G] The Act and the rules and the prescribed Forms make no distinction between declared goods and other goods, except for the purpose of the rate of tax.
Under section 7(3) the regis tration certificate granted to a dealer has to specify the class or classes of goods for the purposes of section 8(1) and it makes no distinction between declared goods and other goods.
Sub sections 8(1) and (3) also show that all sales to a registered dealer other than the Government, whether of declared goods or other goods, are covered by section 8(1).
Clause (a) was omitted from section 8(3) presumably because it was considered unnecessary to retain it when cl.
(b) apparently covered all goods both declared and other than declared.
The declaration referred to in section 8(4)(a) is necessary for the dealer to avail himself of the benefit of the rate of tax mentioned in section 8(1).
There is no valid reason why the appellant could not have obtained the decla ration in the prescribed Form as required by the proviso to section 9(1 ).
Since no .claim for exemption under section 6(2) is made by the appellant, the first order of assessment was contrary to the proviso of section 9(1) and the sales in question were taxable within the respondent State, where the appel lant was registered as a dealer.
[45 D H] (2) The 1971 order of assessment was patently errone ous in that it failed to take into consideration the proviso to section 9(1).
Therefore, it could be rectified under section 22, U.P. Act.
[46 G] 27 (3) The order rectifying the mistake was recorded with in 3 years of the date of the original order as required by section 22 of the U.P. Act.
The fact that the order was communi cated, to the appellant on March 31, 1974 could not make any difference.
The order of rectification is deemed to be made on the date of communication only for the purpose of count ing the period of limitation for filing the appeal, under section 9 of the U.P. Act.
Therefore, in the instant case, the appellant was not affected by the order under section 22 being communicated to it after the expiry not of 3 years from the date of the original order.
[47 B; 48 B] Raja Harish Chandra Raj Singh vs The Deputy Land Acquisition Officer [1962].
3 S.C.R. 676 and Madan Lal vs State of U.P. explained & distinguished.
|
il Appeal No. 431 of 1976.
(Appeal by Special Leave from the judgment and order dated 31 3 1975 of the Gujarat High Court in Special Civil Application No. 2355 of 1974).
G.L. Sanghi, K.J. John, S.R. Kureshi and D. N, Mishra, for the appellants.
I. N. Shroff and H.S. Parihar, for Respondent No. 1.
M.N. Shroff, for Respondent No. 2.
The Judgment of the Court was delivered by GOSWAMI, J.
The only question that arises in this appeal by special leave is whether the order of acquisition passed by the Municipal Commissioner under section 284J of the Bombay Provincial Municipal Corporations Act, 1949, as applicable to Gujarat, is invalid and void for non compli ance with section 5A of the Land Acquisition Act, 1894.
The Municipal Corporation of the city of Ahmedabad (briefly the Corporation) by its resolution of December 15, 1966, authorised its Commissioner under section 2841 of the Bombay Provincial Municipal Corporations Act 1949 (briefly the Bombay Act) to provide housing accommodation for the poorer classes.
In pursuance of this authority of the Corporation the Commissioner passed the impugned order of compulsory acquisition on October 9, 1967, under section 284J of the Bombay Act in respect of 33,357 sq.
of land final plots Nos. 11 to 25 of Town Planning Scheme No. V of Dariapur, Kazipur Ward.
Out of this area the land belonging to the appellants measures about 1694 sq.
It is averred by the appel lants that this area is "predominantly a commercial area and is almost fully built upon".
The aforesaid order of compulsory acquisition was pub lished in the official gazette of January 25, 1968 and in the local newspapers of February 10/11, 1968.
Individual notices were also served on the concerned parties in ac cordance with law inviting objections from the owners in cluding the appellants which were lodged in due course.
These objections were submitted to the Standing Committee by the Commissioner with his suggestions and the Committee by its resolution No. 1942 of January 21, 1969, approved the said order of compulsory acquisition.
The State Government thereafter confirmed the said order on January 6, 1972.
The appellants had requested for a personal hearing with regard to their objections and their grievance is that the same was denied to them.
It is common ground that no personal hearing was given to the appellants with regard to their objections by the Commissioner.
Even so a period of nearly five years was taken in the process of finalising the order.
After confirmation of the order of acquisition by the Government there is a provision for appeal under Schedule B to the Bombay Act.
7 1003 Sc1176 74 The appellants preferred an appeal to the City Civil Court at Ahmedabad and amongst several other grounds raised the question of the denial of personal hearing to them.
The learned Judge of the City Civil Court did not accede to the contention and by his order of April 10, 1974, held that the principles of natural justice were satisfied in this case inasmuch as they had been given an opportunity to submit their objections to the acquisition.
The appellants then took the matter to the High Court of Gujarat under article 227 of the Constitution where the same grievance as to the denial of personal hearing was reiterat ed.
The High Court by its order of March 31, 1975 refused to interfere with the order holding that section 5A of the Land Acquisition Act was duly complied with.
The High Court also held that the City Civil Court Judge was right in rejecting the submission since "no oral hearing was ever claimed in the objection".
Hence this appeal, by special leaye, which was ordered by this Court to be expedited.
From a perusal of the judgment of the City Civil Court as well as that of the High Court we are of opinion that there was no proper appraisal of the real issue in the matter.
It appears that both the City Civil Judge and the High Court were only concerned with whether the rules of natural justice were complied with in the matter of acquisi tion of the land in question.
We think, as will be shown below, that the City Civil Court and the High Court are not right in their approach.
We find that there is reference to section 5A of the Land Acquisition Act in the order of the High Court and it is apparently assumed by the High Court that the said sec tion is applicable.
All the same the High Court erroneously thinks that no personal hearing was necessary and the sec tion is fully completed with by mere submission.
of the written objection particularly because "no oral bearing was ever claimed".
Mr. Sanghi submits that so far as the appellants are concerned they did request for a personal hearing and that there is no denial by the respondents of their averment to that effect in their special leave petition.
The City Civil Judge also noted in his judgment that "some of the appel lants had in terms demanded a personal hearing in their objections memorandum".
Be that as it may section 5A of the Land Acquisition Act does not rest on a person 's demand for personal hearing.
The matter may be different if a person whose property is acquired abandons the right to a personal hearing with which aspect we are not concerned in this appeal.
Although the judgment of the High Court, as stated earlier apparently rests on the asumption that section 5A of the Land Acquisition Act is applicable Mr. Shroff appearing on behalf of the respondents submits that that section is unavailable in the case of acquisition under the Bombay Act, Mr. Sanghi also, fairly enough, has not taken advantage of the assumption in the judgment and has submitted by drawing our attention to the various provisions of the Act that section 5A is clearly attracted in a matter of acquisition under the Bombay Act.
75 We will, now, examine the rival contentions with regard to the applicability of section 5A of the Land Acquisition Act.
The title of Chapter XVI of the Act is "Improvement Schemes" and opens with section 270.
There are various sub headings in this Chapter and we are concerned in this appeal with only a few sections under the sub title "Provi sion of housing accommodation for the poorer classes", This sub title in the Chapter opens with section 2841: 2841 (1) "If the Corporation, upon considera tion of a representation from the Commissioner or other information in its possession, is satisfied that within any area in any part of the City it is expedient to provide housing accommodation for the poorer classes and that such accommodation can be conveniently provided without making an im provement scheme, it shall cause such area to be defined on a plan and pass a resolution authorising the Commission and the Commissioner shall there upon be empowered to provide such accommodation " * * * * * * Section 284J provides that "the Commissioner may for the purposes of the foregoing section on behalf of the Corporation (a) acquire any land including any buildings thereon as a site for the erection of buildings for the poorer classes".
* * * * Section 284K provides as follows : 284K. (1) "Land for the purposes of the foregoing section may be acquired by the Commis sioner by agreement upon obtaining the requisite sanction under section 77, or he may, with the sanction of the Standing Committee, be authorised to acquire land for those purposes by means of a compulsory acquisition order made and submtited to the State Government and confirmed by it in accord ance with the provisions of Schedule C to this Act.
* * * * * * (3) The provisions of Schedule B to this Act shall have effect with respect to the validity and date of operation of a compulsory acquisition order made under this section".
* * * * * * The next important section is section 284N which reads as under : 284N. "The Land Acquisition Act, 1894 (in this and the next succeeding sections referred to as 'the Land Acquisition Act ') shall to the extent set forth in Appendix I regulate and apply to the acquisition of land under this Chapter, otherwise than by agreement, and shall for that purpose be deemed to form part of this Chapter in the same manner as if enacted 76 in the body thereof, subject to the provisions of this Chapter and to the provisions following namely : " * * * * Thus, section 284N referentially incorporates in the Bombay Act certain provisions of the Land Acquisition Act as detailed in Appendix I to the Bombay Act.
Out of those provisions we are only concerned with Part 1I (Acquisition) of the Land Acquisition Act containing sections 4 to 17 including section 5A.
According to Appendix I all the sections in Part Il of the Land Acquisition Act except subsection (1) of section 4, section 6 and sub section (2) of section 17 are bodily incorporated in the Bombay Act.
Those provisions are deemed to be part and parcel of the Bombay Act.
Hence section 5A is clearly a part of the Bombay Act in terms of Appendix I.
It is true section 284 N provides that the incorporated provisions of the Land Acquisition Act are subject to the provisions of Chapter XVI and to those contained in section 284N itself.
That is to say, if there is any inconsistency between a provision in Chapter XVI of the Bombay Act or in section 284N itself and that in the Land Acquisition Act, the former will prevail over the grafted provisions of the.
Land Acquisition Act.
This is, however, not to say that where section 5A is deemed to be part of the Bombay Act, there is a further requirement to show in the Bombay Act an express provision for affording an opportunity of personal hearing.
This is the error into which, earlier, the City Civil Judge fell.
The heart of section 5A of the Land Acquisition Act is the hearing of objections and under sub section (2) of that section a personal hearing is mandato rily provided for.
When, therefore, section 5A of the Land Acquisition Act is applicable under Appendix I of the Bombay Act and there is nothing to show expressly or by necessary implication that the said section or any part of it is excluded under section 284N or under any other provi sion in Chapter XVI as a whole the right to personal hearing under the Bombay Act cannot vanish or be defeated.
Mr. Shroff fairly and, in our opinion, rightly concedes that there is no express ouster of section 5A of the Land Acquisition Act under the provisions of Chapter XVI of the Bombay Act.
He, however, submits that there is a special machinery under section 284K of the Act disclosed in Sched ule C and in Schedule B attached to the Bombay Act and since section 284N is subject to the provisions of Chapter XVI these Schedules form part of the Chapter.
Assuming that Schedule C and Schedule B are part of Chapter XVI we are unable to read in the provisions contained in these two Schedules any exemption from the right to personal hearing mandatorily required under section 5A of the Land Acquisi tion Act.
It is true that the mode of acquisition of land for housing accommodation is provided for under section 284K and that the order of compulsory acquisition made by the Commis sioner has to be confirmed by the State Government in ac cordance with the provisions of Schedule C to the Bombay Act.
Broadly, clause 2 of Schedule C provides that before submitting the order to the State Government the Commissioner, 77 inter alia, has to publish the order in the official gazette and in three or more newspapers.
The Commissioner has also to serve on persons specified in clause 2(b) notices calling for objections, etc.
Clause 3 provides that upon compliance with the provisions of clauses 1 and 2 the Commissioner shall submit to the Standing Committee any objections re ceived under clause 2 and any suggestions he may wish to make in that respect.
Under clause 4 the Standing Committee shall after consideration of any such objections and sugges tions make suCh modification in respect of such order as it may think fit and the Commissioner shall thereafter submit the order as modified by the Standing Committee to the State Government for confirmation.
It is manifest that the proce dure under the scheme of Schedule C will be breached if the Commissioner does not afford a personal hearing to the objectors even in order to be able to fortify his sugges tions which he has to submit to the Standing Committee along with the objections.
Since the Standing Committee is enti tled to have his properly considered suggestions which may enable it even to modify the order of acquisition it is necessary that the Commissioner gives a personal hearing to the objectors before he is able to make his suggestions worthy in the context of the objections lodged.
Otherwise it will be only an empty formality and the suggestions will be devoid of much of practical utility to the Committee.
Schedule C, therefore, does not even by necessary implica tion rule out a right to personal hearing.
Clause 2 of Schedule B provides for an appeal to a Judge of the City Civil Court .in
Ahmedabad and elsewhere to a Judge of the District Court whose decision shall be final.
Mr. Shroff submits that provision for an appeal against the acquisition order after confirmation by ' the State Govern ment provides for appropriate remedy before a judicial Tribunal.
This also, says Mr. Shroff, goes to indicate, by necessary implication, that personal hearing required under section 5A of the Land Acquisition Act is dispensed with and the remedy provided for under the provisions of the Bombay Act read with the two Schedules is exhaustive and necessari ly excludes the application of section 5A of the Land Acqui sition Act and with it the right of personal hearing provid ed thereunder.
We should make it clear that provision for appeal is not a complete substitute for a personal hearing which is pro vided for under section 5A of the Land Acquisition Act.
This will be evident from a perusal of clause 3 of Schedule B itself.
The character of the appeal contemplated under clause 3(ii) of Schedule B is only with regard to the examination of the following aspects : (1 ) whether the order or approval of the plan .is within the powers of the Bombay Act, and (2) whether the interests of the appellant have been substantially prejudiced by any requirement of this Act not having been complied with.
The appeal is confined under clause 3 of Schedule B to the examination of only the twin aspects referred to above.
There is no provision for entertainment of any other rele vant objection to the acquisition of 78 land.
For example a person whose land is acquired may object to the suitability of the land for the particular purpose acquired.
He may again show that he will be at an equal disadvantage if his land and house have to be acquired in order to provide accommodation for the poorer people as he himself belongs to the same class of the indigent.
He may further show that tbere is a good alternative land available and can be acquired without causing inconvenience to the occupants of the houses whose lands and houses are sought to be acquired.
There may be other relevant objections which a person may be entitled to take before the Commis sioner when the whole matter is at large.
The Commissioner will be in a better position to examine those objections and consider their.weight from all aspects and may even visit the locality before submitting his report to the Standing Committee with his suggestions.
For this purpose also a personal hearing is necessary.
The appeal court under the Schedule B to the Bombay Act, on the other hand, is not required under clause 3 to entertain all kinds of objections and it may even refuse to consider the objections mentioned earlier in view of the truncated scope of the hearing under clause 3(ii) as noted above.
We are, therefore, unable to accept the submission that the appeal provided for under Schedule B is a complete substitute for a right to personal hearing and as such by necessary implication ousts the applicability of Section 5A of the Land Acquisition Act.
Mr. Shroff further submits that under the Appendix I, inter alia, section 17(4) of the Land Acquisition Act is made applicale in an acquisition proceeding under the Bombay Act.
It is, therefore, submitted that under section 284N, sub section (4) any acquisition under the Bombay Act is treated as an acquisition under section 17 ( 1 ) of the Land Acquisition Act and since section 17(4) of the Land Acquisi tion Act is also brought in under the said Appendix, section 5A of the Land Acquisition Act, by necessary implication, should be held as excluded from the purview of the Bombay Act.
We are unable to accept this submission.
Even under section 17(4) of the Land Acquisition Act the appropriate Government has to direct, in a case of urgency, that the provisions of section 5A shall not apply.
There is no automatic exclusion of section 5A even under the Land Acqui sition Act.
That being the position there is no substance in the contention that because of subsection (4) of section 284N, section 5A should be held inapplicable in the case of an acquisition proceeding under the Bombay Act.
We are clearly.
of opinion that section 5A of the Land Acquisition Act is applicable in the matter of acquisition of land in this case and since no personal hearing had been given to the appellants by the Commissioner with regard to their written objections the order of acquisition and the resultant confirmation order of the State Government with respect to the land of the appellants are invalid under the law and the same are quashed.
It should be pointed out, it is not a case of failure of the rules of natural justice as such as appeared to be the only concern of the High Court and also of the City Civil Court.
It is a case of absolute non compliance with a mandatory provision under section 5A of the Land Acquisition Act which is clearly applicable in the matter of acquisition under the Bombay Act.
79 We should also point out that the acquisition order must be an order valid under the law and the question of appeal arises only after confirmation of the order by the State Government.
If the order is, at inception, invalid, its invalidity cannot be cured by its approval of the Standing Committee or by its confirmation of the State Government.
Besides, hearing of objections under section 5A of the Land Acquisition Act to be given by the Commissioner under the Bombay Act cannot be replaced by a kind of appeal hear ing by the City Civil Judge.
The Bombay Act having assigned the duty of hearing objections to the Commissioner, he alone can hear them and not the City Civil Judge even assuming that all objections could be entertained by him in appeal.
(See Shri Mandir Sita Ramji vs Lt. Governor of Delhi & Ors.(1)].
Beneficial schemes under welfare legislation have to be executed in accordance with law which creates the schemes.
The end does not always justify the means and it is no answer that the object of the scheme is such that it justi fies the implementer of the law to be absolutely oblivious of the manner of enforcement even though the manner is an integral part of the scheme, imposing under the law, re strictions on the rights of individuals.
Beneficial laws have to be simple and self contained.
To introduce provi sions of another Act referentially in vital matters creates avoidable difficulties and litigation highlighted by the case in hand.
It is refreshing that this Court disposed of this matter within about four months of granting of special leave.
In the result the appeal is allowed and the judgment of the High Court is set aside and with it the appellate order of the City Civil Judge also falls.
The Commissioner shall give a personal hearing to the appellants as required under sub section (2) of section 5A of the Land Acquisition Act and, thereafter, dispose of the matter in accordance with law.
In the circumstances of the case we will, however, make no order as to costs in this appeal.
V.P.S. Appeal al lowed.
S.C.R. 597.
| IN-Abs | Section 284 (1) of Chapter VI of the Bombay Provincial Municipal Corporations Act, 1949, as applied in Gujarat, provides that if the Corporation is satisfied that within any area in any part of a city under the Act it is expedient to provide housing accommodation for the poorer classes, it shall cause such area to be defined on a plan and pass a resolution authorising the Commissioner and the Commissioner shall thereupon be empowered to provide such accommodation.
Section 284J(a) provides that the Commissioner may, for such purposes, acquire any land including any buildings thereon.
Section 284K( 1 ) provides that the Commissioner may, with the sanction of the Standing Committee, be authorised to acquire the land by means of a compulsory acquisition order made and submitted to the State Government and confirmed by it in accordance with the provisions of Schedule C to the Act; and section 284K(3) provides that the provisions of Schedule B to the Act shall have effect with respect to the validity and date of operation of the compulsory acquisition order.
Clause 2, Schedule C, provides that before submitting the order to the State Government the Commissioner has to pub lish the order in the Official Gazette and in three or more newspapers.
The Commissioner has also to serve on persons specified in el.
2(b) notices calling for objections etc.
Clause 3 provides that upon compliance with the provisions of cls.
1 and 2 the Commissioner shall submit to the Stand ing Committee any objections received under el. 2 and any suggestions he may wish to make in that respect.
Under cl. 4, the Standing Committee shall, after consideration of any such objections and suggestions, make such modification in respect of such order as it may think fit and the Commis sioner shall thereafter submit the order, as modified by the Standing Committee, to the State Government for confirma tion.
Clause 2 of Schedule B provides for an appeal to a Judge of the City Civil Court in Ahmedabad and elsewhere to a Judge of the District Court against the order of acquisi tion confirmed by the State Government.
Section 284N refer entially incorporates in the Bombay Act certain provisions of the Land Acquisition Act, 1894, as detailed in Appendix I to the Bombay Act.
Accordingly all the sections in Part H of the Land Acquisition Act, except section 4(1), section 6 and section 17(2) are bodily incorporated in the Bombay Act.
Hence, section 5A of the Land Acquisition Act, which provides for personal hearing of the objectors to an acquisition, forms part of the Bombay Act.
In pursuance of the authority of the Corporation of the City of Ahmedabad the Commissioner passed an order of com pulsory acquisition under s.284J. published it in the Offi cial Gazette and in local newspapers, and served individual notices on the concerned parties.
The appellants, who objected to the acquisition were however, not given any personal hearing by the Commissioner inspite of a request by them.
The Commissioner submitted the objections with his suggestions, to the Standing Committee, and the Committee approved the order of compulsory acquisition.
The State Government thereafter confirmed the order.
The appellants preferred an appeal to the City Civil Court on the basis, inter alia, of the denial of personal hearing to them; but the Court held that the principles of natural justice were satisfied, and the High Court confirmed the order of the City Civil Court.
Allowing the appeal to this Court, 72 HELD: Section 5A, Land Acquisition Act, is applicable in the present case.
It is not a case of failure of the rules of natural justice but one of noncompliance with the manda tory provision in section 5A; and since no personal hearing had been given to the appellants by the Commisisoner, the order of acquisition, and the confirmation by the State Government are invalid.
[78 G H] (1) The incorporated provisions of the Land Acquisition Act are subject to the provisions of Chap.
XVI of the Bombay Act; that is, if there is any inconsistency between a provi sion in Chap.
XVI of the Bombay Act, and that of the Land Acquisition Act, the former will prevail.
But there is no express provision of the Chapter ousting the application of section 5A of the Land Acquisition Act.
[76 D E] (2) Schedule C does not, even by necessary implication, rule out the right to personal hearing.
On the other hand, since the Standing Committee is entitled to have the Commis sioner 's properly considered suggestions which may enable it even to modify the order of acquisition, it is necessary that the Commissioner gives a personal hearing to the objec tors before he makes his suggestions worthy in the context of the objections lodged, for otherwise, his.
suggestions will be devoid of much practical utility to Committee.
[77 C D] (3) The appeal provided for under Schedule B is not a substitute for the right to personal hearing.
The applica bility of section 5A is therefore not impliedly ousted by the provision for appeal.
[78 D] The appeal contemplated under Schedule B is only with regard to the, examination of two aspects, namely, whether the order or approval of the plan is within the powers of the Bombay Act; and whether the interests of the appellant have been substantially prejudiced by any requirement of the Bombay Act not having been complied with.
But there may be other relevant objections which a person may be entitled to take before the Commissioner when the whole matter is at large, such as, that the land is not suitable for the par ticular purpose, that he himself belongs to a poor class and would suffer disadvantage by the acquisition, or that there is a good alternative land available which can be acquired without causing inconvenience to the occupants of land sought to be acquired.
Hence, a personal hearing is neces sary.
The appellate court is not required to entertain such objections in view of its truncated scope and,, even assum ing that all such objections could be entertained by it, the duty of hearing objections under the Bombay Act is of the Commissioner and he alone can hear them and not a Judge of the Civil Court.
The acquisition order must be a valid order and the question of appeal arises only after, confir mation of such an order by the State Government.
[77 G H; 78 A D] Shri Mandir Sita Ramji vs Lt. Governor of Delhi, ; referred to.
(4) Merely because under section 284N(4) of the Bombay Act, the acquisition is treated to be under section 17(1), Land Acqui sition Act, and since section 17(4) is also applicable it could not be said that section 5A is excluded by necessary implication; because, even under section 17(4) of the Land Acquisition Act the appropriate Government has to direct, in a case of urgency, that the provisions of section 5A shall not apply.
There is no automatic exclusion of the section even under the Land Acquisition Act.
[78 E F] (5) If the order of acquisition is, at inception in valid, its invalidity cannot be cured by its approval by the Standing Committee or by its confirmation by the State Government.
[79 A] (6) The end does not always justify the means, and even beneficial schemes under welfare legislation have to be executed in accordance with the appropriate law.
It is no answer that the object of the scheme is such that it justi fies the implementer of the law to be absolutely oblivious of the manner of enforcement even though the manner is an integral part of the scheme, imposing under law, restric tions on the rights of individuals.
[79 C] [Beneficial laws have to be simple and self contained.
The introduction of provisions of another Act referentially in vital matters creates avoidable difficulties and Irrigation.
[79 D]
|
Civil Appeal No. 1207 of 1975.
(Appeal by special leave from the judgment and order dated 5 8 1975 of the Punjab & Haryana High Court in Letters Patent Appeal No. 459/75).
J.S. Wasu, Adv.
General, Punjab and O.P. Sharma, for the appellants.
V.C. Mahajan and S.S. Khanduja, for respondent No. 1.
P.K. Pillai, for respondent No. 1.
The Judgment of the Court was delivered by KHANNA, J.
This is an appeal by special leave by the State of Punjab against the order of the Punjab & Haryana High Court, whereby at was directed that the Minister in charge of Irrigation Department be impleaded as a party in the writ petition filed by V.P. Duggal respondent.
The Minister was also directed to file his affidavit.
In the writ petition filed by him, Duggal respondent challenged notification dated January 29, 1974 fixing the seniority of the engineers n the Irrigation Department of the Punjab Government.
During the course of the heating of the writ petition, an order was made by the High Court on November 18, 1974 that the Minister concerned might give a personal hearing to the parties and thereafter pass the necessary order in the matter.
The Minister concerned thereafter heard the parties and made a speaking order on February 18, 1975 affirming the earlier seniority list.
The writ petition was thereafter amended, and 97 in the amended petition, Duggal respondent also challenged the validity of .the later order of February 18, 1975.
At the resumed hearing of the writ petition, the learned Judge hearing the petition directed that the Minister con cerned be impleaded as a party in the petition, as in the view of the learned Judge, allegation had been made against the Minister that he had deviated from the normal procedure while passing the impugned order dated February 18, 1975 inasmuch as he had dealt with the matter directly and by passed the Secretary of the Department.
Direction was also issued that the Minister should file an affidavit in regard to the allegations made in the petition.
At the hearing of the appeal before us, the learned Advo cate General for the State of Punjab has contended that the allegations made in the amended petition do not disclose any personal animus on the part of the Minister concerned and as such the High Court was in error in directing that the Minister be impleaded as a party.
The learned Advocate General has also assailed the direction of the High Court in sofar as the Minister has been called upon to file his personal affidavit.
As against that, Mr. Mahajan on behalf of Duggal respondent has urged that looking to the facts of the case if the High Court came to the conclusion that the Minister was a necessary or proper party, this Court should not interfere in the matter.
We have given the matter our consideration, and it seems to us that the direction for the impleading of the Minister as a party was given by the High Court with a view to apprise the Minister of the allegations made in the petition and thus to afford him an opportunity of controverting those allegations, if he so deemed proper.
Taking the totality of the facts and circumstances of the case, we do not feel persuaded to interfere with the order of the High Court adding the Minister as a party to the writ petition.
The High Court was, however, in our opinion in error in direct ing that the Minister concerned should file his affidavit.
It is essentially for the Minister concerned to decide in the light of the allegations made in the petition as to whether he should or should not file an affidavit.
We, therefore, decline to interfere with the order made by the High Court insofar as it has directed that the Minister be impleaded as a party.
The other part of the order whereby the Minister concerned was directed to file his personal affidavit is set aside.
The appeal shall stand disposed of accordingly.
The parties in the circumstances shall bear their own costs.
M.R. Appeal partly allowed.
| IN-Abs | The respondent challenged the validity of a Government Notification, and also the Minister 's order upholding the same.
At the hearing, the High Court directed that the concerned Minister be impleaded as a party, and file his personal affidavit.
Challenging the directions, the appel lant contended before this Court, that the allegations against the Minister did not disclose any personal ammus on his part, and he was not liable to be added as a party or to file his affidavit.
Partly allowing the appeal, the Court, HELD: The direction for the impleading of the Minister as a party was given by the High Court with a view to ap praise the Minister of the allegations made in the petition and thus to afford him an opportunity of controverting those .allegations, if .he so deemed proper.
We decline to interfere.
It is essentially for the Minister concerned to decide in the light of the allegations made in the petition as to whether he should or should not file an affidavit.
[97 E F]
|
Civil Appeal No. 1095 of 1970.
and 1677 of 1973.
From the Judgment and Order dated 26/27 9 1968 of the Gujarat High Court in Estate Duty Reference No. 3/67.
S.C. Manchanda and R.N. Sachthey, for the Appellant (In CA 1095/70).
K.B. Kazi and 1.
N. Shroff, for the Respondents in CA 1095/70.
S.T. Desai and J. Ramamurthi, for the Intervener.
S.T. Desai and J. Ramamurthi, for the Appellants in CA 1677/73.
S.P. Nayar, for the Respondent in CA 1677/73.
73 KRISHNA IYER, J. Is it permissible for judges to specu late on the philosophical edge of a human problem hidden by the litigative screen before settling down to examine its forensic facet ? If it is, we may make an observation about the question posed in this case without pejorative impli cations.
For many men in advancing age arrives a stage in life when to be or not to be stampedes them into doing things 11 dubious before God and evasive before Caesar and we have a hunch both the appeals before us smack of such a disposition as will be evident when the narration of facts and discus sion of law unfold the story.
A brief statement of the circumstances leading to the single critical legal issue, proliferating into a plurality of points, may now be made.
We begin with the facts in the Gujarat Appeal [Kantilal Trikamlal(1)] since the Madras Appeal [Ranganayaki Ammal(2)] raises virtually the same question, is plainer on the facts and may conveniently be narrated immediately after.
To appreciate the complex of facts we choose to enunciate the principal proposition of law canvassed before us by the Revenue in the two appeals.
Does a relinquishment by a decedent of a slice of a share or a partition of joint property in such manner that he takes less than his due effected within two years of his death with a view to relieve himself of a part of his wealth and pro tanto to benefit the accountable person, a near relation have to suffer estate duty under the (for brevity, the Act) ? One Trikamlal Vadilal (hereinafter referred to as the deceased) and his son Kantilal (referred to later as the accountable person) constituted a Hindu undivided family.
They continued as members of a joint and undivided Hindu family until November 16, 1953 when an instrument styled 'release deed ' was executed by and between the deceased and Kantilal.
Considerable controversy between the parties turns on the interpretation of this instrument and it will therefore be necessary for us to refer to its terms briefly later.
Suffice it to state for the present that, under this instrument, a sum of rupees one lakh out of the joint family properties was taken by the deceased in lieu of his share in the joint family properties and he relinquished his interest in the remaining properties of the joint family which were declared to belong to Kantilal as his sole and absolute properties and Kantilal also, in his turn, relinquished his interest in the amount of rupees one lakh given to the deceased and declared that the deceased was the sole and absolute owner of the said amount.
Within two years from 7 3 died and on his death the question arose as to what was the estate duty chargeable on his estate.
Kantilal, who is the accountable person before us, filed a return showing the status of the deceased as individual and the principal value of the estate as Rs. 1,0.6,724.
The Assistant Con troller was, however, of the view that the instrument dated November 16, 1953 operated as relinquishment by the deceased of his interest in the joint properties in favour of Kanti lal and that the consideration of rupees one lakh for which the one half share of the deceased in the joint family properties at the date of the said instrument was Rs. 3,44,058 and there was, therefore, a disposition by the deceased in favour of a relative for partial consideration and it was, accordingly by reason of section 27, sub section
(1 ), liable to be treated as a gift for the purpose of section 9, sub section
(1), and its value, viz., Rs. 3,44,058 after deducting Rs. 1,06,724 (being the amount received by the deceased together with interest) was includable in the principal value of the estate of the (1) (2) 12 deceased.
The Assistant Controller, accordingly, included a sum of Rs. 2,37,334/ being the difference between Rs. 3,44,058/ and Rs. 1,06,724/ in the principal value of the estate of the deceased.
On appeal by the accountable person, the assessment made by the Assistant Controller was confirmed by the Central Board of Revenue.
Though the main ground on which the Cen tral Board based its decision was the same as that which found favour with the Assistant Controller, viz., that under the instrument there was a disposition by the deceased of his interest in the joint family properties in favour of Kantilal for partial consideration and it was therefore by reason of section 27, sub section
(1 ), liable to be treated as a gift for the purpose of section 9, sub section
Another argument also appealed to the Central Board and that was one based on section 2(15), Explanation 2.
The 'Board held that, in any event, under the instrument there was extinguishment at the ex pense of the deceased of his interest in the joint family properties and there was therefore a deemed disposition by the deceased of the benefit which accrued to Kantilal as a result of such extinguishment and the charge to estate duty was accordingly attracted under section 9, sub section
(1), read with section 27, sub section
On reference, the High Court held in favour of the assessee and the Revenue has appealed hopefully, relying on a ruling of the Madras High Court which itself is the sub ject matter of the sister appeal.
Here the tables were 7 3 High Court as contrary to the ratio of this Court 's pro nouncements.
Were it so, it were bad; but judgments, even of the summit court, are not scriptural absolutes but rela tive reasonings and there is in them, read as a human whole, more than meets the legal eye which looks at helpful lines here and there.
We will examine them closely, especially because several High Courts are split on the construction of 'disposition ' in the Act, and seek to resolve the conflict of views and values.
Behind everyone 's attitude to tax is an unspoken value judgment! Before we move into the arena of argument we may silhou ette the facts of the Madras case.
The deceased, Bheema Naidu, and his predeceased son 's widow and children consti tuted a Hindu undivided family.
A little within the two year pre mortem line drawn by the Act he effected a partition and turnnig abnegator took a smaller share instead of his legal half, benefiting the others to the extent of the difference.
This difference was taxed as disposition of property under the Act and fiscal hierarchy was upheld by the High Court.
The assessees assail that decision before us.
The forensic focus has been rightly turned on the inter pretation of the critical provisions in the Act bearing on this controversy.
The social design, the legislative intent and the grammar of statutory construction visa vis the Act may have to be briefly surveyed while studying the language of the text and the impact of the context.
The scheme and spirit of the Act need to be understood first, for every social legislation has a personality and taxing statute a fiscal 13 philosophy without a feel of which a correct perspective to gather the intent and effect of the separate clauses cannot be gained.
Over four centuries ago Plowden said: "Each law consists of two parts viz., of body and soul; the letter of the law is the body of the law and the sense and reason of the law is the soul of the law.
" It is well known that death duties imposed on richer estates have a socialistic savour being motivated by the State 's policy of paring of unearned accumulation of inheritances and of diminishing glaring disparities of wealth.
This comprehensive but slow egalitar ian purpose fulfils itself fully only when it operates on property at death and near death; nor is there any rational ground to save some types of disposition or subtle transfer ence of wealth from exigibility, having due regard to the plain language of estate duty measures.
The broad object also includes inhibition of dispositions, unsupported by reasonable consideration, made on the eve of death or within 7 3 or manoeuvres, though sincere, being manifestly likely to defeat death duties posthumously flowing from properties covered thereby.
The fiscal policy is dual: (i) the collec tion of revenue; and (ii) reduction of the quantum of inher itance on a progressive basis directed towards a gentle process of equalisation.
The draftsman 's efforts have been exerted to use words of the widest import and, where the traditional use of words iS likely to limit, to use legal fictions, by deeming devices, to expand the semantics there of and to rope in all kinds of dealings with property for inadequate or no consideration within the statutory prox imity of death.
The sweep of the sections which will be presently set out must therefore be informed by the lan guage actually used by the legislature.
Of course, if the words cannot apply to any recondite species of property, courts cannot supply new logos or invent unnatural sense to words to fulfil the unexpressed and unsatiated wishes of the legislature.
Law, to a large extent, lives in the language even if it expands with the spirit of the statute.
It is good to remember that the Indian Act has some English genetic touch, being largely based on the English Finance Acts of 1854 Onwards.
This historical factor has current relevance for one reason. 'We may usefully refer to, although we may not be blindly bound by, English authorities under the corresponding statute and both sides have sought trans Atlantic light on this footing.
A skletal projection of the Act to the extent that concerns us here may now be made.
This Act exacts estate duty.
The charging section (section 5) authorizes the levy of a duty upon all property which passes on the death of a person dying after the commencement of the Act.
Two questions immediately arise.
What is property as envisaged in the charging section ? When does property pass on the death of a person ? The answer to the first question is furnished in an inclusive definition of 'property ' in section 2(15).
It is a wide ranging definition supplemented by two expansive definitions.
Of immediate moment is Explanation 2 which reads: "Explanation 2.
The extinguishment at the expense of the deceased of a debt or other rights shall be deemed to have been a disposition made by the deceased in favour of the 14 person for whose benefit the debt or fight was extinguished, and in relation to such a disposition the expression 'property ' shall include the benefit conferred by the extinguishment of a debt or 7 3 What property passes on the death of a person is indicated in an inclusive definition set out in section 2(15).
It covers property passing either immedi ately on the death or after any interval and 'on the death ' includes 'at a period ascertainable only by reference to the death '.
A glance at sections 9 and 27 gives more comprehension.
Section 9, among other provisions, introduces a legal fiction and since the meaning and implication of this section has been the subject of some disputation we had better allow the provision, in the first instance, to speak for itself: "9. Gifts within a certain period before death : (1 ) Property taken under a disposition made by the deceased purporting to operate as an immediate gift inter vivos whether by way of transfer, delivery, declaration of trust, settle ment upon persons in succession, or otherwise, which shall not have been bona fide made two years or more before the death of the deceased shall be deemed to pass on the death.
" Both the appeals deal with deceased persons who are mem bers of joint Hindu families and the subject matter of the dispositon was linked up with their share in the HUF (acro nymically speaking).
For this reason our attention has to be rivetted to sections 7 and 39 which resolve a likely difficul ty in ascertaining the interest in property which ' passes on the death of a deceassed coparcener in the joint family property the pristine rule of Hindu law being his share lapses in favour of the survivors and is not a descendible estate or a predictable fraction.
Sections 7 and 39, by a deeming process, circumvent this contretemps and crystallize a clear share in the coparcener at the point immediately before death.
Had the properties of the coparcener been partitioned immediately before the death what share in the joint family property would have been allowed to the de ceased represents the principal value of such share for the purposes of computation of death duty.
Section 27 is a strategic provision which deems as a gift all dispositions made by the deceased person in favour of his relations unless such disposition was made for full consideration or the deceased was concerned in a fiduciary capacity with the property. 'Relative ' means, in this context, near rela tions set out in section 27(2) and it is sufficient, for our pur pose, to know that in both the appeals the accounting persons are relatives failing within the statutory compass.
One more provision is pertinent to our enquiry and that deals with gifts within a certain period before death.
While there are other provisions dealing with gifts before 7 3 already been read and will later be explained.
Now to the boxing ring.
The bout has been fought over the import and amplitude of 'property ' as widened by section 2(15), especially Explanation 2 thereto.
Sri section T. Desai, appearing for the accountable per 15 son in the Madras case, and Shri Manchanda, arguing for the Exchequer in the Gujarat case, have levelled multi pointed attacks, but the crucial issue which is decisive of both cases is the same.
What is 'property ' for the purpose of this fiscal law ? Is it a misfortune for any legal system that a battle of semantics, where able judges and erudite advocates fundamen tally disagree on meanings of words pivotal to the very levy, should be a bonanza of the draftsman ? Simplicity and certainty is basic to the rule of law but is a consummation devoutly to be wished in our corpus juris.
Here we find ranged on both sides more than one High Court taking con trary but scholarly views.
A radically new legislative art is the urgent contemporary need if comprehensibility to the laity is to be a democratic virtue of law.
We will first unlock Explanation 2 to section 2(15), discover the signification of 'property ' expanded by the deeming clause and then read it in that wider sense along with the comprehensive provisions of sections 9, 27 and 5.
The key con cept that underlies this fasciculus of sections is property, the tax being charged on property passing on death.
Consid erable controversy has raged not only on the boundaries of the notion of 'disposition ' as specially defined, by import ing a legal fiction, but on the slightly ticklish and tricky placement in section 9 of the expression 'bona fide made two years or more before the death of.
the deceased '.
If we surmount these constructional difficulties, the answer to the core question arising in these appeals fol lows without much ado.
In fairness to counsel we must, at the threshold, set out the seven propositions formulated by Shri Desai for pin pointing the discussion.
They are: "1.
Partition is merely a process in and by which joint enjoyment is transferred into an enjoyment in severalty.
Since in such a case each one of the coparceners had an antecedent title which extended to the whole of the joint family properties and had therefore full interest 7 3 his share, no creation of right or interest in such specific property takes place in his favour nor does any extinguishment of any right or interest in the other property take place to his detriment.
Sections 9(1) and 27(1) form part of a single scheme.
The word 'disposition ' in section 27 (1 ) cannot be treated in isolation and must take its colour and meaning from the sense in which the word has been used in sec.
9 (1).
3. 'Disposition ' means 'giving away or giving up by a person of something which was his own , 606 SC).
No meaning howsoever wide and comprehensive of the expression 'disposition ' can possibly take in its ambit or coverage, parti tion , SC).
The mere fact that on a partition a copar cener takes a lesser share than he could have demanded does not mean 16 that there is 'disposition ' as contemplated in Explanation 2 to section 2(15) which defines 'proper ty '.
In such a partition, there is no extinguish ment, at the expense of such coparcener of any 'debt ' or 'other right '.
In a partition whether equal or unequal, there is no disposition by a coparcener in favour of any relative nor can it be said that there is any purported gift nor can it be treated as a gift.
Of course, the partition must be bona fide and not to evade duty.
The scope and ambit of Explanation 2 to section 2(15) becomes more clear when it is read in juxtaposi tion with Explanation 1.
The 'extinguishment ' contemplated in Expla nation 2 can be only in respect of any debt or other right which could have been created by the deceased and could have been enforced against him.
In a partition, no such thing takes place.
A definition is not a substantive rule of law operative by itself.
The definition of 'property ' in section 2(15) has to be read along with sections 9 and 27 and not in isolation.
Disposition, in section 9, even if read along with Explanation 2 to section 2(15), can only be of something the disponer had as his own at the time of the alleged extinguishment.
If it is of any interest in property it must be of an interest which was already vested in the disponer at the time of the disposition.
If of any other right, it must be of a right which had vested in him even when he gives it up.
" This 7 point programme of submission really brings out all the issues and sub issues, legal and factual, and the last two, over lapping in some respects, deserve first attention.
Before that, we must state, in precis form, the facts with reference to which the statute must speak.
The life of the law is not idle abstraction or transcendental meditation but fitment to concrete facts to yield jural results a synergetic action, not isolated operation.
Our discussion will therefore be conditioned by the material facts found in the two cases.
They are, tersely, though simplistically put, that the deceased person, being a member of a joint Hindu family, within two years before his death, entered into a partition of family properties bona fide, not as colourable or sham transaction, whereby he received towards his share an allotment substantially lower in value than would be his legal entitlement thus gladly suffering a diminution which would to that extent benefit the account able person by giving him a larger slice of the joint cake than was his due.
We assume, for the purpose of argument, that the divi sion in status and the partition made by metes and bounds have taken place simultaneously on the execution of the deed in question.
We also take it that the release, relinquish ment or division in the cases on hand has been bona rule made in the sense that one sharer has not over reached the other or played fraud or together the sharers have not gone through a mere simulacrum of a partition or exercise in colourable division.
We proceed on the further footing and that is law well established 16 now that 'partition is really a process in and by which a joint enjoyment is transformed into an enjoyment in several ty.
Each one of the sharers had an antecedent title and, therefore, no conveyance is involved in the process, as a conferment of a new title is not necessary '.
Now to the 7 points of Shri Desai.
The 6th point is a shade platitudinous and the other side does not dispute its soundness.
Certainly the ' definition of 'property ' in section 2(15) has to inform and must be read along with section 9 and section 27 and cannot be functional in isolation.
It is not a substantive rule of law operative by itself.
Similarly, point No. 7, stated the way it has been, may not be and has not been disputed before us, for the expression 'disposi tion ' in section 9 must be read with the definition in Explana tion 2 to section 2(15) since that is the whole purpose of a"deeming provision ' in the shape of a definition.
Granting that, the disponer cannot extinguish or part with what is not his rather a trite statement though since A can give or give up only what he has at the time of alienation or abnegation.
Shri Desai contends, and rightly, that the deceased could not dispose of any interest in property which did not earlier vest in him or at least at the time of the disposition.
No right can be given up without its being vested in him when he gives up.
This hypothesis in law turns the searchlight on the existence, at the time of the release or partition, of what has been disposed of under that deed.
What then was disposed of ? And did the deceased own at the time of disposition what he thus made over or extinguished ? An answer to these twin questions may be readily given, once we clear the confusion that has crept in at certain stages of the argument, by a process of inept importation and imperfect understanding of the rule of Hindu law regarding coparcenary.
The proposition is trite that in an undivided Hindu family coparceners have no predictable or defined shares but each has an antecedent title in every parcel of property and is jointly the owner and in enjoyment with the others.
But surely it is well established that at the very moment mem bers decide upon a partition eo instanti, a division in status takes place whereupon the share of the demanding members gets crystallised into a definite fraction and if there is division by metes and bounds the allotment of properties vivifies and specifies such shares in separate ownership.
These two processes or stages may often get telescoped when by consensus the coparceners jointly divide the properties.
Unequal divisions of properties knowingly made may not spell invalidity and mathematical equality may not be maintained always in a partition while, ordi narily, substantial fairness in division is shown.
Granting these legal positions, the more serious question which has been agitated before us is as to whether a willing, al beit ' bona fide, arrangement whereby a substantially reduced share is taken by the decedent consequentially vesting a proportionately larger estate in the recipient is a dispo sition falling within Explanation 2 to section 2(15) and there fore 'property ' within the substantive definition.
In this context we may have to read sections 9 and 27 for property taken under a disposition made.
by the deceased may be deemed to be a gift in favour of the accounting person in the circum stances mentioned in section 9.
Similarly, section 27 also tracks down certain dispositions made by deceased 18 persons in favour of relatives by treating them as 'gifts '.
The basic concept of disposition looms important in such circumstances.
This introductory statement of the law takes us to the other points of Shri Desai which we will tackle together, guided by the text of the sections aforesaid read in the light of the citations, aplenty, of cases Indian and Eng lish.
We may compendiously state, forgetting for a moment the complication in the Gujarat Case of the release deed executed by the decedent being either a relinquishmere or a partition that in both the appeals, the decedents and the recipients were members of an undivided Hindu family and within the two years proximity of death the partition ar rangement was effected where under a lesser share than due was allotted to the latter.
And indeed, it is this differ ence between what was due to the right of the deceased and what was actually taken that was treated as a 'gift ' by the Revenue based on the definition in section 2 (15 ), Explanation 2, plus sections 9 and 27.
The cornerstone of the whole case of the Revenue is thus the concept of 'disposition ' which we may point out, right at the outset, is not a term of art not legalese but plain English with wide import.
What is more, this word has acquired, beyond its normal ambit, an abnormal semantic expansion on account of a special definition with an Explanation super added.
In short, 'disposition ' in the Estate Duty law of India enjoys an extended meaning.
Even so, does it go so far as to cover a mere taking of a less than equal share by the deceased, the benefit on account of which has gone to the accountable person ? Before we enter the thicket of judicial conflict regard ing the meaning of 'property ' as extended by Explanation 2 to section 2(15), we may remind ourselves as courts that in a taxing statute one has to look merely at what is clearly said.
There is no room for any intendment.
There is no equity about a tax.
While the rulings on the point in the Act and in the allied Gift Tax Act will be adverted to presently, we may begin an incisive understanding of the Explanation 2 aforesaid.
The spirit thereof is obvious.
The framers of the Act desired by a deeming provision regarding 'disposition ' to cover extinguishments of debts and all other rights at the expense of and made by the deceased in favour of the beneficiary.
The substantive definition of 'property ' in section 2(15) is not exhaustive but only inclusive and the supplementary operation of Explana tion 2 takes in what is not conventionally regarded as 'disposition '.
Indeed, 'disposition ', even according to law dictionaries, embraces 'the parting with, alienation of, or giving up property. a destruction of property ' (Black 's Legal Dictionary).
The short question before us is whether the dispositive fact of giving up by a coparcener of a good part of what is due to him at the time of division to his own detriment and to benefit of another coparcener, can be called 'disposition ' in law.
Undoubtedly this operation, to use a neutral expression, is made up of simple jural facts that modify and extinguish jural relations and create in their place new rights whereby one gives or gives up and another gains.
This legal result, produced by voluntary 'action, is 'disposition ' within the scope of Explanation 2 to section 2(15).
The assessee 's contention, effectively presented by counsel, takes a legalistic course, ignoring the purpose, language and amplitude of 19 Explanation 2.
Argues Shri Desai, in a partition, equal or unequal, there is no element whatsoever of consideration, partial or full, since in a partition there is only an adjustment of rights and substitution of joint enjoyment by enjoyment in severalty.
In his view it is a confusion to mix up unequal partition with inadequate consideration and it is a worse confusion to talk in terms of bona fide and main fide partition where the shares are merely unequal by choice.
What is forgotten in this chain of reasoning is the office of Explanation 2 which is deliberately designed to take into its embrace what otherwise may not be 'disposi tion '.
Once we reconcile ourselves to the enlargement of sense imported by the Explanation, we part company with the traditional concept.
We have also to stress the expression 'other right ' in the Explanation which is of the widest import and cannot be constricted by reading it ejusdem generis and 'debt '. 'Other right ', in the context, is expressly meant considerably to widen the concept and there fore suggests a somewhat contrary intention to the applica tion of the ejusdem generis rule.
We may derive instruction from Green 's construction of the identical expression in the English Act Is.
45(2).
The learned author writes: "A disclaimer is an extinguishment of a right for this purpose.
Although in the event the person disclaiming never has any right in the property, he has the right to obtain it, this inchoate right is a 'right ' for the purposes of section 45(2), The ejusdem generis rule does not apply to the words 'a debt or other right ' and the word 'right ' is a word of the widest import.
Moreover, the expression 'at the expense of the deceased ' is used in an ordinary and natural manner; and is apt to cover not only cases where the extinguishment involves a loss to the deceased of a benefit he already enjoyed, but also those where it prevents him from acquiring the benefit.
The words 'the person for whose benefit the debt or other right was extinguished ' do not neces sitate a conscious intention to benefit some per son; it is sufficient that some person was in fact benefited. 'The motive or purpose of the deceased appears to me to be immaterial ', provided the transaction was gratuitous and did in fact benefit the other person concerned.
The extinguishment of a right may also cover the release of his interest by one joint tenant in favour of another." (Green 's Death Duties, 7th Ed., Butterworths, p. 149) Shri Desai and also Shri Kazi, appearing for the 'ac counting persons ' in the respective cases, urged that this expansive interpretation taking liberties with traditional jural concepts is contrary to this Court 's pronouncement in Getti Chettiar(1).
That was a case under the Gift Tax Act, 1958 and the construction of section 2(xxiv) fell for decision.
Certainly, many of the observations there, read de hors the particular statute, might reinforce the assessee 's stand.
This Court interpreted the expression 'transfer of property ' in section 2(xxiv) and held that the expression 'disposition ' used in that provision should be read in the (1) 20 context and setting of the given statute.
The very fact that 'disposition ' is treated as a mode of transfer takes the legal concept along a different street, if one may use such a phrase, from the one along which that word in the is travelling.
Mr. Justice Hegde rightly observed, if we may say so with respect, that 'Words in the section of a statute are not to be interpreted by having those words in one hand and the dictionary in the other.
In spelling out the meaning of the words in a section, one must take into consideration the setting in which those terms are used and the purpose that they are in tended to serve." (p. 605 606) The word 'transaction ' in section 2(xxiv) of the Gift Tax Act takes its The word that is it must be a 'transfer ' of property colour from the main clause that is , it must be a 'transfer ' of property in some way.
Since a partition is not a 'transfer ' in the ordinary sence of law, the Court reached the conclusion that a mere partition with unequal allotments not being a transfer, cannot be covered by section 2(xxiv).
A close reading of that provision and the judgment will dissolve the mist of misunderstanding and discloses the danger of reading observations from that case for application in the instant case.
The language of section 2 (15 ), Explanation 2, is different and wider and the reasoning of Getti Chettiar (supra) cannot there fore control its amplitude.
It is perfectly true that in ordinary Hindu law a partition involves no conveyance and no question of transfer arises when all that happens is a severance in status and the common holding of property by the coparcener is converted into separate title of each coparcener_as tenant in common.
Nor does subsequent partition by metes and bounds amount to a transfer.
The controlling distinction consists in 'the difference in definition between the Gift Tax Act [section 2(xxvi)] and the is.
2(15).
The Madras High Court in Valliammai Achi(1) took the correct view when it said on similar facts: "The facts of this case, in our opinion, seem to square with the second Explanation to section 2(15).
That, no doubt, is an Explanation to the inclusive definition of property.
But the language of it seems to go further and coins a deemed disposition in the nature of a transfer.
The mechanics of the transfer for the purposes of Explanation 2 consist in the extinguishment at the expense of the deceased of a right and the accrual of a benefit in the form of the right so given up in favour of the person benefited.
Transfer in a normal sense and as understood with reference to the Transfer of Property Act connotes a movement of property or interest or right therein or thereto from one person to another in praesenti.
But in the kind of disposition contemplated by the second Explanation, one can hardly trace such a transfer because of the mere fact of extinction of a certain right of the deceased which does not involve a movement, a benefit is , 808.
21 created in favour of the person benefited thereby.
In the present case the son who was a quondam coparcener had a pre existing right to every part of the coparcenary property, and if by a partition or a relinquishment on the part of one or more of the coparceners, the joint ownership is severed in favour of severalty, the process, having regard to the peculiar conception of a coparcenary, in volves no transfer .
But Explanation 2 is concerned not with that kind of situation, but an extinguishment of a right and creation of a bene fit thereby and this process is statutorily deemed to be a disposition which is in the nature of a transfer.
" This line of reasoning has our general approval.
From what we have said, the bold lines of opposing views emerge and they hinge on the conno tation of 'disposition '.
The High Courts, in their divergent stands, have lined up before both strands of reasoning.
Madras, a Full Bench of the Punjab High Court, and the classic observations in In re Stratton 's Disclaimer(1) support the point of view championed in Ranganayaki Ammal.
The contrary thinking finds support in Andhra Pradesh and Punjab as welt as in Gujarat (Kantilal).
The sense of our statutes modelled as they are on a series of English Acts, is best expressed so far as the concept of 'disposition ' is concerned, by Jenkins L.J., in In re: Stratton 's Disclaimer(1) relating to section 45 of the Finance Act, 1940 [which runs similar in strain to s.2(15).
Noting the strength of the sweeping and unparticularized reference to 'a debt or other right ', Jenkins L.J., repelled the application of the ejusdem generis rule and impart ed to the word 'right ' the widest import: "Mr. Russel did not seek to limit the effect of the words 'debt or other right 'by an applica tion of the ejusdem generis rule, and, in my view, it would not be possible to do so.
In the absence of any such restriction on its meaning the word 'right ' is a word of the widest import, and if, in accordance with my view, Mrs. Stratton can properly be held to have had a right in respect of the specific bequest and devise pending disclaimer, I see no ground for holding that it was not a right within the meaning of section 45 (2).
" * * * * "I confess that I am disposed to deprecate recourse in revenue legislation to sweeping gener alities of this kind, but the mere fact that an enactment is couched in general and comprehensive terms affords no ground for excluding from its operation transactions falling fairly within its provisions, general though they may be.
Roxburgh J., emphasized the impact of the legal fiction and observed: "A certain state of facts is to be deemed to be a different state of facts, and the line between fact and hypothesis seems to me to be drawn by the word 'deemed '.
If this be (1) [1958] 34 I.T .R. (Estate Duty) 47. 22 so, only three actual facts are expressed to be necessary in order to involve the hypothetical situation, (1) the existence of a right, (2) its extinguishment, (3) its extinguishment at the expense of the deceased.
When those three facts concur, the hypothesis goes into action, and the hypothesis is that these facts are equivalent to a disposition made by the deceased in favour of the person for whose benefit the right was extin guished.
These words, ill my opinion, all form part of the hypothesis and the concluding words are necessary to define the hypothetical disponee.
" The conventional construction of 'disposition ' has to submit to the larger sweep of the hypothetical extension by defini tion.
The Gujarat High Court has gravitated towards the nar rower construction of 'disposition ' and 'or right '.
It makes no specific reference to Stratton 's Disclaimer (supra) and the learned judges have insisted on transfer of inter est as a necessary indicium of every disposition.
Partition does not involve a transfer and therefore, cannot be a disposition, runs the logic of the Gujarat judgment.
Like wise, 'other right ', in Explanation (2), it is argued, cannot cover the case of partition as in the learned Judges ' view a transfer is a sine qua non.
We cannot agree, for reasons already stated, with this approach which defeats the intendment of the Act and the express object of Explana tion 2 to section 2(15).
The peculiar definition of 'disposi tion ' injecting a triple hypothesis and fictional expan sion covers the diminution in the share taken by the copar cener and augmentation of the share taken by the other and impresses the stamp of property on this process by the "deeming ' provision.
Sections 9 and 27 strengthen this conclusion.
We were confronted by Shri Desai with Kancharla Kesava Rao(1) for contending that giving away or giving up could not in all cases be disposition where the transaction is a partition.
This Court, in the above ruling, held that a partition in a coparcenary was just an adjustment of rights, not a transfer in the strict sense.
Shri Justice Hegde, speaking for the Court, placed on section 24 of the Act more or less the same intepretation as was put in Getti Chettiar (supra) by this Court.
Whatever might be the interpretation 'disposition ' in section 24 of the Act, we are satisfied that the only straight forward construction of that expression in section 27 is as we have explained at length above.
Section 9, dealing with gifts takes in property under a disposition made by a deceased, throwing up the question 'What is a gift? '.
Section 27 supplies the answer: 'an dispsition made by the deceased in favour of a relative of his shll be treated for the purposes of this Act as a gift '.
Unless: of course, it is made for full considera tion.
There is no limitation, environmental or by the society of words, warranting the whittling down of the unusually wide range of explanation 2 to section 2(15).
Kesava Rao (supra) cannot cut back on the liberality of section 27.
In the realm of legal fiction, law cannot be confined within traditional (1) 23 concepts.
It is pertinent that as between the Gift Tax Act and the there is basic difference in that the tax effect in the first is on transaction inter vivos and in the second on the generating source of transmission by death.
Comparisons in construction cannot therefore be pushed too far.
Before winding up tihis part of the discussion, we may refer to Grimwade vs Federal Commissioner of Taxation (1) where Williams J., dealing with the expression 'disposition of property ' defined somewhat in similar lines as in our Act, observed: "The whole emphasis of paragraph (f) is upon ' a transaction entered into by one person, which seems to me to mean that where there is an act done by one person with the requisite intent, and as a result there is a transfer of value from any property of that person to the property of another person, the conditions of liability are satisfied.
Each statute has its own mint and the coinage of words bears a special stamp.
That is our only comment when we depart semantically from other judicial ' annotations of the expres sion 'disposition '.
If A is entitled to a moiety in property worth rupees five lakhs (or let us assume that much of cash in the till belongs jointly to A and B) and by a partition relinquishment, disclaimer or otherwise A accepts something substantially less than his due, say rupees one lakh as against rupees two and a half lakhs and the remainder goes to.
the benefit of B who gets four lakhs as against two and a half lakhs, commonsense, concurrently with Explanation 2, draws the inference that A has made over at his expense and to the benefit of B a sum of rupees one and ahalf lakhs which may be designated a 'disposition ' by him in favour of B. Shri Desai rightly stressed in construing section 9 we should not confess between a mala fide transaction and unequal partition.
He is right.
But the simpIe scheme of section 9 may be stated to erase misapprehension.
What the provision declares is that if the disposition made by the deceased is more than two years before death.
,, the property covered thereby shall not pass on the death unless it shall not have been bona fide.
That is to say, even if the transaction were more than two years before the death, if it were entered into in bad faith, estate duty may still attach to that property.
So far as dispositions made within two years of the death of the deceased are concerned, there is no question of mala fides or bona fides.
All such transactions are caught within the coils of section 5 read with sections 9 and 27.
The re quirement of 'bona fides ' has nothing to do.
with disposi tions within 2 years and has much to do with those beyond 2 years.
The marginal obscurity in section 9 is due perhaps to compressed draftsmanship.
Now to costs.
We have already indicated how serious arguments have appealed in contrary ways to several fudges of the High Courts and certain observations of this Court have themselves been capable of different shade of sense from what we have read into them.
Indeed the point involved in the case is of general public importance which (1) ; 24 on account of the conflict in the High Courts, needs to be decided by the Supreme Court.
One of the major functions of this Court is to declare the law for the country under article 141 of the Constitution, although under our adversary system it is only when litigation spirals up the Court acts and declares the law.
While dealing with a similar situation, this Court in Trustees Port, Bombay(1) observed: "Is it fair in these circumstances that one party, albeit the vanquished one, should bear the burden of costs throughout for providing the occa sion not provocation for laying down the correct law in a controversial situation ? Faced with a similar moral legal issue, Lord Reid observed: "I think we must consider separately costs in this House and costs in the Court of Appeal.
Cases can only come before this House with leave, and leave is generally given because some general question of law is involved.
In this case it enabled the whole vexed matter of non est factum to be reexamined.
This seems to be a typical case where the costs of the successful respondent should come out of public funds.
The Evershed Committee on Supreme Court Practice and Procedure had suggested in England that the Attorney General should be empowered to issue a certificate for the use of public funds in appeals to the House of Lords where issues of outstanding public importance are involved.
" Maybe, a scheme for a suitors ' fund to indem nify for costs as recommended by a Sub Committee of Justice is the answer, but these are matters for the consideration of the Legislature and the Executive.
We mention them to show that the law in this branch cannot be rigid.
We have to make a compromise between pragmatism and equity and modify the loser pays all doctrine by exercise of a flexi ble discretion.
The respondent in this case need not be a martyr for the cause of the certainty of law under section 87 of the Act, particularly when the appellant wins on a point of limitation.
(The trial Court had even held the.
appellant guilty of negligence).
In these circumstances we direct that the parties do bear their costs throughout.
" We adopt the same course and while.
allowing Civil Appeal No. 1095 of 1970, and dismissing Civil Appeal No. 1677 of 1973 the parties in both the appeals are directed to bear their respective costs throughout.
V.P.S. C,4.
1095 of 1970 allowed.
CA 1677 of 1973 dismissed.
(1) ; , 738.
| IN-Abs | Section 5 of the , authorises the levy of duty upon all property which passes on the death of a person.
Section 9 provides that property taken under a disposition made by the deceased purporting to operate as an immediate gift whether by way of transfer, delivery etc., which shall not have been bona fide made two years or more before the death of the deceased shall be deemed to pass on the death.
Explanation 2 to section 2(15), which defines 'prope rty ', provides that the extinguishment at the expense of the deceased of a debt or other rights shall be deemed to have been a disposition made by the deceased in favour of the person for whose benefit the debt or right was extinguished and in relation to such a disposition the expression 'property ' shall include the benefit conferred by the extin guishment of a debt or right.
Section 27 deems all disposi tions made by the deceased person in favour of his relations as gifts, for the purposes of the Act, unless such disposi tion was made for full consideration or the deceased was concerned in a fiduciary capacity with the property.
A member of a joint Hindu family, within two years before his death entered into a partition of family proper ties bona fide, not as a colourable or sham transaction, whereby, he received towards his share an allotment substan tially lower in value than would be his legal entitlement, with a view to relieve himself of a part of his wealth and 7 3 who is a relative within the meaning of the Act.
HELD: The relative, as the accountable person under the Act, is liable to pay estate duty, on the difference between the share that the deceased was legally entitled to and the share that the deceased actually took, that is, to the extent of the benefit received by the accountable per son.
[14 G, 12 .A.] (1) Death duties are imposed on richer estates, the fiscal policy being, (a) collection of revenue, and (b) reduction of the quantum of inheritance on a progressive basis towards equalisation by diminishing glaring dispari ties of wealth.
Therefore, the Act uses words of the widest import, legal fictions and deeming devices to.
rope in all kinds of dealings with property for inadequate or no consid eration within the statutory proximity of death.
If the words, however cannot apply to a particular species of property, courts.
cannot supply words to fulfil the unex pressed wishes of the legislature.
In a taxing statute one has to look merely at what is clearly said.
There is no room for any intendment.
There is no equity about a tax.
[13 D] (2) The definition of 'property ' in section 2(15) has to inform and must be read along with sections 9 and 27.
It is not a substantive rule of law operative by itself.
Similarly, the expression 'disposition ' in section 9 must be read with the definition in Explanation 2 to section 2(15) since that is the whole purpose of a 'deeming provision ' is the shape of a definition.
[17 B C] 3 1003 SC1/76 10 (3) The definition of 'property ' in section 2(15) is not exhaustive but only inclusive and the supplementary opera tion of Explanation 2 takes in what is not conventionally regarded as 'disposition '.
The expression "other right" in the Explanation is of the widest import and cannot be read ejusdem generis with 'debt '.
The process of extinguishment of a right and the creation of a benefit thereby is statuto rily deemed to be a disposition in the nature of a transfer.
Therefore, the definition of 'disposition ' covers the diminution in the share taken by one coparcener and augmentation of the share taken by the other and impresses the stamp of property on this process by the deeming provi sion.
[18 F G; 19 C] (4) The case of Getti Chettiar [(1971) dealt with the expression 'transfer of property ' in section 2(xxiv) of the Gift Tax Act, 1958.
This Court held that 'transaction ' 7 3 and it must be a 'transfer ' of property; and that since a partition is not a transfer in the ordinary sense of law, a mere partition with unequal allotments cannot be covered by section 2(xxiv).
But the language of Explanation 2 to section 2(15) of the is different and wider and so the reasoning of this case cannot control its amplitude.
[20 C] (5) This Court in Kancharla Kesava Rao [(1973) placed on 'disposition ' in section 24 of the the same interpretation as was put in the case of Getti Chettiar.
But, whatever might be the interpretation of 'disposition ' in section 24, under section 27, a disposition in favour of a relative not for full consideration, shall be treated as a gift and under section 9 if the disposition made by the deceased is more than 2 years before death, the property covered thereby shall not pass on the death unless it shaH: not have been bona fide to say, even if the transaction were more than 2 years before the death, if it were entered into in bad faith, estate duty may Still attach to that property.
But so far as dispositions made within two years of the death of the deceased are concerned there is no question of mala fides or, bona fides, and all such transactions would be liable to estate duty.
[22 G; 23 F G] Valliammi Achi , approved.
In re.
Stration 's Disclaimer applied.
Grimwade vs Federal Commissioner of Taxation ; referred to.
[Principles for awarding costs in matters of general public importance where there is conflict in the High Courts on a question of Law, reiterated.]
|
Appeal No. 910 of 1970.
(From the Judgment and order dated 16 6 1975 of the Orissa High Court in Election Petition No. 1/74).
D.P. Singh, R.P. Singh, Rajiv Dutta, Mrs. Nilma, L.R. Singh and R.K. Jain, for the Appellant.
Santosh Chatterjee, G.S. Chaterjee and D.P. Mukherjee, for the Respondent.
The Judgment of H.R. Khanna and N.L. Untwalia, JJ. was delivered by Khanna, J. V. R. Krishna Iyer, J gave a sepa rate concur ring opinion.
KHANNA, J.
On an election petition filed by Ratnakar Mohanty respondent, the election of Jugal Kishore Patnaik appellant to the Orissa Legislative Assembly from Bhadrak constituency was declared to be void by the Orissa High Court and as such set aside.
The appellant has filed the present appeal against the judgment of the High Court.
Bhadrak assembly constituency is a single member general constituency.
During the general elections to the Orissa Legislative Assembly held in February 1974, the respondent filed four nomination papers for being elected from this constituency.
At the time of scrutiny on January 36, 1974, objection was raised at the instance of Balaram Sahu, one of the contesting candidates, before the Returning Officer that the respondent was disqualified for being chosen as a member of the Assembly as there subsisted contracts between him and the Government of Orissa for execution of certain works.
The respondent, it was accordingly asserted, was disqualified under section 9A of the Representation of the People Act, 1951 (hereinafter referred to as the Act) from seeking election.
Some documents were also produced before the Returning Officer to show that proceedings had been initiated by the Block Development Officer for realisation of certain amounts alleged to be due under those contracts from the respondent.
The Returning Officer upheld the objection and rejected the nomination papers of the re spondent.
Four candidates contested the election, but the main contest was between the appellant, a Congress nominee, who secured 25,522 votes, and Balaram Sahu, art Utkal Congress nominee, who secured 18,723 votes.
The result of the election was declared on February 28, 1974.
Petition to.
challenge the election of the appellant was filed by the respondent on April 12, 1974.
The case of the respondent as set up in the election petition was that his nomination papers had been improperly rejected by the Returning Officer.
According to the re spondent, the works on account 51 of which he had been held to be disqualified by the Return ing Officer had been undertaken by him not in his personal capacity but as the Sarpanch of Rahanj Gram Panchayat under the Bhadrak Panchayat Samiti.
The respondent, therefore, prayed that the election of the appellant be declared to be void.
The petition was resisted by the appellant.
Objections were raised on his behalf that the petition was liable to be dismissed for non compliance with sections 81, 82 and 83 of the Act.
It was also averred that the nomination papers filed by the respondent were not in conformity with sections 33 and 34 of the Act.
On merits, the appellant stated that the respondent was disqualified under section 9A of the Act from seeking election to the Legislative Assembly of Orissa because he had on the date of filing of the nomination papers subsisting contracts with the Government of Orissa in course of his trade and business for execution of work undertaken by the Government.
Following issues were framed by the High Court: ISSUES 1.
Is the election petition liable to be dismissed for noncompliance of sections 81, 82 and 83 of the Representation of the People Act, 1951 ? 2.
Whether the nomination paper filed by the petitioner was in substantial compliance of sec tions 33 and 34 of the Representation of the People Act, 1951 ? 3.
Was the petitioner disqualified under section 9A of the Representation of the People Act, 1951 having subsisting contract with the Govern ment of Orissa in course of his trade and busi ness for execution of work undertaken by the Gov ernment on the date of the filing of the nomination ? 4.
To what relief, if any, the petitioner is entitled to in the facts and circumstances of the case ?" Issues (1) to (3) were decided by the High Court in favour of the respondent and against the appellant.
In the result, the election of the appellant was declared to be void.
In appeal before us Mr. D.P. Singh has at the outset assailed on behalf of the appellant the finding of the High Court on issue No. (1 ).
The challenge to the finding on issue No. (1 ) is, however, confined only to alleged infraction of sub section (3) of section 81 of the Act.
According to that sub section, every election petition shall be accompanied by as many copies thereof as there are re spondents 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.
Mr. Singh contends that no attested copy of the election petition signed by the petitioner was filed along with the petition.
This conten tion has been: controverted by Mr. Chatterjee on behalf of the respondent, who submits that a copy of the petition attested by the respondent under his own signature was filed along with the petition.
It is further pointed out that the said attested copy of the petition was sent along with the 52 summons to the appellant, but as., he declined to accept the summons, the attested copy along with the summons was af fixed at his residence.
The above stand of the respondent is borne out by the report of the process server.
Mr. Singh has assailed the correctness of the above report of the process server, and has contended that in the index attached to the petition there was no reference to the copy.
As against that, it is submitted on behalf of the respondent that it is not the usual practice in the High Court to refer to the copy of the petition in the index.
There are, in our opinion, some broad facts of the case which lend support to the finding of the High Court on issue No. (1 ) that the election petition was accompanied by an attested copy signed by the respondent.
Endorsement dated April 15, 1974 made by an officer of the High Court shows that a copy of the election petition had been flied.
We find no cogent reason as to why an officer of the High Court should make a false endorsement on the petition if,, in fact, no such copy had been filed.
As regards the factum o.f the, attestation of the copy by the respondent under his own signature we find that the appellant cannot in the very nature of things assert positively that the copy had not been attested by the respondent as, according to.
him, he did not see that copy.
The copy was also not available on the record as the same had been affixed at the residence of the appellant when he, according to the report of the proc ess server, declined to accept the summons.
Before summons were issued to the appellant, the following endorsement was made by an officer of the High Court in respect of the election petition flied by the respondent: "Defect Nil.
" We see no cogent ground to question the correctness of this endorsement which clearly lends support to the inference that the copy filed with the petition had been attested by the respondent and that the petition did not suffer from lack of compliance with the: procedural requirement.
Mr. Singh has next assailed the correctness of the, finding of the High Court on issue No. (2).
It is urged that the respondent obtained signatures of his proposers on blank nomination papers, subsequently filled in the columns and then filed the nomination papers.
It is, in our opinion not necessary to express opinion about three of the nomination papers as we find that one of the, nomination papers in.
any case did not suffer from any such alleged infirmity.
This nomination paper of the respondent was signed by Laksh mikant Mahapotra (PW 3 ) as proposer.
Evidence of this witness dearly shows that he signed, the nomination paper as proposer of the respondent after the various columns in that paper had been filled in.
Nothing has been brought to our notice as to why the statement of the witness in this respect be not accepted.
As at least one of the nomination papers filed by the respondent was in compliance with the.
legal requirement,.
the High Court, in our opinion, correct ly decided issue No. (2).
In view of the above finding, it is not necessary to express opinion on the point as to whether a nomination paper should be hold to be invalid in case the 53 signature of the proposer is obtained before filling in the columns of the nomination paper.
It has been faintly argued that Balaram Sahu, who raised objection to the validity of the nomination papers of the respondent, was not impleaded as a party in the election petition and as such the: petition was liable to be dis missed for non joinder of parties.
This submission too is bereft of force.
According to section 82 of the Act, a petitioner shall join as respondents to his petition where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidates has, been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates.
It is further provided that if allegations of any corrupt practice are made in the petition against any other candi date, he too shall be joined as a respondent.
In the present case, there was no prayer made by the respondent in the election petition that he or any other person should be declared to have been duly elected.
There was also no allegation of corrupt practice against any candidate.
In the circumstances, the requirements of law should be held to be fully satisfied when the respondent impleaded the suc cessful candidate, namely, the appellant, as a respondent in the petition.
Contention has also been advanced on behalf of the appellant that the objections of Balaram Sahu before the Returning Officer about the validity of the nomination papers of the respondent were raised in collusion with the respondent.
The appellant, who has been duly elected,, should not, according to the contention, suffer because of any order made on such collusive objections.
In this respect we find that .there is no factual basis for the assertion that the objections which were raised by Balaram Sahu about the validity of the nomination papers of the respondent were of collusive character.
On the contrary, the appellant in the course of his written statement stated in respect of the objections as under: "At the time of the scrutiny valid and genuine objec tions were filed against the petitioner on the ground that there was subsisting contract between the petitioner and the Government of Orissa and as such he was disqualified to be a candidate." In view of the unequivocal assertion of the appellant in the written statement that the objections were valid and genuine, it would not be permissible for the appellant to take an inconsistent stand in appeal and urge that those objections had been filed in collusion with the. respondent.
Apart from that, we find that according to section 100 (1) (e) of the Act, if the High Court is of the opinion that any nomination has been improperly rejected, it shall declare the election of the returned candidate to be void.
In view of the imperative nature of the provision, it is open to question as to whether the courts cam in the event of an improper rejection of nomination, afford relief to the successful candidate on the score that the objections re sulting in the improper rejection of the nomination, were collusive.
Whether the legislature would do something in the matter is essentially for the legislature to 54 decide.
We need not, however, dilate upon this aspect of this case in the face of our finding that the appellant has clearly admitted in the written statement that the objec tions which were filed about the validity of the nomination papers of the respondent were not collusive but were genu ine.
Lastly, Mr. Singh has assailed the finding of the High Court on issue No. (3).
Although during the course of the trial of the election petition the appellant relied upon 15 items to show that the respondent had entered into works contracts with the State Government, in this Court Mr. Singh has ,confined his argument to only two items, namely, item No. (1) and item No. (8).
Item No. (1) relates to an ad vance of Rs. 100 for repair of Erein School.
The case of the respondent is that the above amount was received by him as Sarpanch of Gram Panchayat Rahanj and that the said work had to be executed by that Gram Panchayat and not by the respondent personally.
The High Court accepted the stand of the respondent, and we find no cogent ground to take a different view.
exhibit 43 is letter dated December 3, 1968 signed by the Sub Divisional Officer Bhadrak to the Certifi cate Officer for recovery of Rs. 7,017/ .
This letter shows that the aggregate sum of Rs. 7,017, of which Rs. 100 was a part, constituted the fund of the Gram Panchayat.
Order dated May 25, 1965 of the Block Development Officer also shows that the work on account of which Rs. 100 were paid had to be executed through the agency of Rahani Gram Pan chayat.
To similar effect is the statement of PW 9 Khages war Roy.
Block Development Officer.
The evidence of this witness shows that the amount in question was given to the Gram Panchayat for repair work.
The above material, in our opinion,, clearly shows that the contract for the execution of the repair work, which is the subject matter of item No. (1 ), was not entered into with the respondent in his per sonal capacity and that the said work had to be.
executed by the Gram Panchayat.
So far as item No. (8) is concerned, the same relates to work of wooden culvert No. 9 on Jamujhari Khirkona road.
exhibit 55 is the written agreement relating to this contract.
Perusal of the agreement makes it clear that the tender in respect of this work was accepted on behalf of the Modern Labour Co operative Contract Society, of which the respond ent was the PreSident.
The document thus shows that it was not the respondent but the society which entered into con trac to the execution of the above work, and the respondent signed the document in his capacity as the President of that Society.
Apart from the above, we agree with the High Court that the above contract was not subsisting on the date of the filing of the nomination paper.
The agreement for the execution of the above work was dated May 8, 1964.
On November 24., 1966 an order was made by the Block Develop ment Officer that the construction work of the culvert had been completed since long and final measurements too had already been made.
The total work was found to be worth Rs. 4,253.70.
It was further observed in the order that Rs. 722 should be paid on account of the above work after deduct ing the previous advances and cost of the material.
The contractor was directed to return the material used in the tubewell.
The above order of the Block Development 55 Officer shows that the cost of the material and the amounts advanced to tile respondent were deducted before direction was given for payment of Rs. 722 to the contractor.
Mr. Singh has laid particular stress upon the direction in the order of the Block Development Officer that the contractor should return the material used in the tubewell.
In respect of the material used in the tubewell, it appears to us that the said material was also returned by the contractor the same day the order was made.
According to the testimony of RW 11 J.K. Satpathy Block Development Officer, if the mate rial required to be returned as per that last order was not returned, the final bill amount in respect of that work could not have been paid.
Rs. 722 were, however, admittedly paid on November 24, 1966.
The factum of that payment clearly points to the conclusion that the contractor re turned the material used in the tubewell before the payment of Rs. 722 was made to him.
There is also nothing to show that any demand was made ' to the contractor subsequent to 1966 for return of the material used in the tubewell.
The absence of any such demand, even though a long period has elapsed since 1966, clearly goes to show that no, material used in the, tubewell remained with the contractor.
It cannot, therefore be said that the said contract was sub sisting on the date the respondent filed his nomination paper.
We consequently uphold the finding of the High Court on items (1) and (8) under issue No. (3).
As a result of the above, we dismiss the appeal, but in the circumstances without costs.
KRISHNA IYER, J., Whole hearted is my agreement with the judgment of my learned brother Khanna J., both in the con clusions and in the reasonings.
This does not obviate an extra opinion on certain deeper, though peripheral, as pects of the law thrown up.
by the facts, disturbing in their implications and laying bare certain gaping gaps in the election law.
In a democracy,, the electoral process has a strategic role and in India it has constitutional status although canalysed by the Representation of the People Act, 1951 (hereinafter called the Act).
Lord Holt long ago observed:(1) "A right that a man has to give his vote at an election of a person to represent him in Parlia ment, there to concur to.
the making of laws, which are to bind his liberty and property, is a most transcendent thing, and of an high nature, and the law takes notice of it as such in divers statutes .
The right of voting at the elec tion of burgesses is a thing of highest impor tance, and so great a privilege, that it is a great injury to deprive the plaintiff of it . " And, if I may add,, this widespread right belongs to every common citizen.
In such circumstances, nO one can gainsay the need for the provisions regulating disqualifications affecting the adult franchise to run for elective office to be fool proof to that degree that the little man of India may confidently participate in the political process without being exposed to booby traps of the law.
Quoted in University of Pensylvania Law Review 1968 p. 24 (Vol. 117).
56 In this case an election was honestly fought and won by the appellant but the verdict has been reduced to a Dead Sea fruit by a surprise blow of the law because the respondent 's nomination, on the captious objection of the defeated candi date (the appellant being innocent, at that stage, of rais ing any obstructive tactic), was illegally rejected The facts, already set out by my learned brother, disclose that the wrong rejection by the Returning Officer was on the score that he had subsisting contracts with the State Government.
This ground was plausibly urge.d before the Returning Officer by a candidate who polled poorly.
The Officer was taken in by the specious plea and rejected the respondent 's nomination.
Its aftermath, long after the election was fought and won, is that people 's verdict has been stultified and its victim is the then innocent appel lant.
Had there been any procedure for double quick deter mination of objections to nominations with early appellate finality attached to it, the lurking danger of the whole process being ultimately baulked on account of antecedent official error would not have arisen a consummation devout ly to be wished.
Nor does it require great imagination to make provision in this behalf, but its omission has led to the martyrdom of the appellant and the orphanage of the electorate.
Yet another legislative insufficiency surrounding section 9A of the Act needs to be highlighted.
This provision, as has been explained earlier by my learned brother, disqualifies a person from being a candidate if there subsists a contract entered into by him in the course of his trade or business with the appropriate government for the supply of goods to, or for the execution of any works undertaken by, that gov ernment.
It is followed by an Explanation which is more or less a legal fiction.
The rugged edges of ambiguity of section 9A especially as to how long and in what sense can a contract be said to be subsisting envelop the disbarment provision with subtle legal questions.
The common man of India is the .potential candidate and is he to risk his candidature en the niceties of the law of contracts ? In this context we must remember that the vast and various developmental works undertaken by the State and its subsidiaries and executed by a large number of little construction contractors made it very desirable that the disqualificatory net should not be cast too wide to disfranchise innumerable persons and must be easy of ascertainment if uncertainty is not to overhang elections in our political system.
In this very case sever al problems were mooted, somewhat difficult to answer.
How long does a contract subsist ? Is every liability arising on a breach of contract, a claim under the contract attracting the lethal coils of section 9A ? If government money is involved in the execution of the work.
does the contract necessarily become one with government ? A host of other questions may mystify the legal imports of the taboo section 9A sets out and yet every lay man is imperilled by this vague provision in the exercise of his electoral right.
Such a brooding fear and haunting provisions is counter productive and may per haps have to be redrafted in the light of experience in court.
These are problems not of high sounding law but affecting the common man in the exercise of his most demo cratic right.
Nietzche once said: ,The great problems are in the streets.
The inaugural error in the drawing up of our election law, as is illustrated by this 57 case, is that sophisticated provisions amenable to logico linguistic feats or subtle interpretation of civil law ill suit a regulatory area of the political process where the small individual offers himself for electoral contest.
I choose to make these observations and draw the attention of the concerned instrumentalities only because in my humble view the court has an activist role to tell the nation, through its judgment or other designated channels where the law misfires, or how the law stands in need of reform.
This case therefore induces me to make what may be regarded as obiter: "The little case, the ordinary case, is a constant occasion and vehicle for creative choice and creative activity, for the shaping and on going reshaping of our law.
"(1) More than a hundred years ago Lord Chancellor Westbury made certain seminal observations(2): "The first thing, then, that strikes every member of our profession who directs his mind beyond the daily practical necessity of the cases which come before him is, that We have no machinery for noting, arranging, generalising and deducing conclusions from the observations which every scientific mind could naturally make on the way in which the law is worked in the country .
Take any particular department of the common law take, if you please, any particular stat ute.
Why is there not a body of men in this country whose duty it is to collect a body of judicial statistics, or, in the more common phrase, make the necessary experiments to see how far the law is fitted to the exigencies of society, the necessi ties of the times, the growth of wealth, and the progress of mankind ? . " Way back in 1921,, Benjamin N. Cardozo, then a Judge of New York 's highest court, said :(3) "The Courts are not helped as they could and ought to be in the adaptation of law to justice.
The reason they are not helped is because there is no one whose business it is to give warning that help is needed . .
We must have a courier who will carry the tidings of distress .
To day courts and legislature work in separation and aloofness.
The penalty is paid both in the wasted effort of production and in the lowered quality of the product.
On the one side, the judges, left to fight against anachronism and injustice by the methods of judge made law, are distracted by the conflicting promptings of justice and logic, of consistency and mercy, and the output of their labors bears the token of the strain.
On the other side, the legislature, informed only casually and intermittently of the needs and problems of the courts, without expert or responsible or disinter ested or systematic advice (1) Quoted in (1961 62) Vol.
71 Yale Law Jownal p. 259.
(2) Quoted in Vol.
128, Mod.
L.R.p. 1.
(3) Address to the Association of the Bar of the City of New York quoted in (3) supra.
6 1003 SCI/76 58 as to the workings of one rule or another, patches the fabric here and there, and mars often when it would mend.
Legislature and courts move on in proud and silent isolation.
Some agency must be found to.
mediate between them.
" May be, as has been done in the State of New York, the establishment of a Law Revision Commission charged with comprehensive law reform duties with direct link with the law court may go a long way to meet the felt need.
| IN-Abs | On the ground that there were subsisting contracts between him and the State Government for execution of cer tain works, the nomination papers of the respondent for the general election to the State Assembly were rejected by the Returning Officer under section 9A of the Representation of the People Act, 1951 at the instance of one of the contesting candidates.
In the election that ensued the appellant was declared elected.
The respondent in his election petition contended that the works on account of which he had been disqualified had been undertaken by him, not in his personal capacity, but as the Sarpanch of the Gram Panchayat.
The High Court held that the respondent was not disqualified under section 9A of the Act and declared the election void.
On appeal, it was contended that the objections regard ing the validity of the nomination papers of the respondent were raised in collusion with the respondent and a duly elected candidate should not be made to suffer because of an order made on such collusive objections.
Dismissing the appeal, HELD: (1 )(a) The appellant has clearly admitted in his written statement that objections which were filed about the validity of the respondent 's nomination papers were not collusive but genuine.
[53 G] (b) According to Sec.
100(1)(c) of the Act, if the High Court is of the opinion that any nomination had been improp erly rejected, it shall declare the election of the returned candidate to be void.
In view of the imperative nature of the provision, it is open to question as to whether courts can, in the event of an improper rejection of nomination, afford relief to the successful candidate on the score that the objections resulting in the improper rejection of nomi nation, were collusive.
Whether the legislature would do something in the matter is essentially for the legislature to decide, [53 G H] (2) A perusal of one of the disputed items shows that the tender in respect of the work was accepted on behalf of a Cooperative Society of which the respondent was the Presi dent.
It was not the respondent but the Society which entered into contract for the execution of the work and he signed the documents in his capacity as President of the.
Society.
The contract was not subsisting on the date of filing of the nomination paper.
In respect of another item the contract was not entered into with the. respondent in his personal capacity but the work had to be executed by the Gram Panchayat.
[54F G] Krishna Iyer J. (concurring) (1) In the instant case the Returning Officer was taken in by the specious plea that the respondent had` subsisting contracts with the State Government an& rejected his nomination papers.
Its aftermath was that the.
people 's verdict had been stultified.
Had there been any procedure for quick determination of objections to nominations with early appellate finality attached to it, the lurking danger of the whole process being ultimately baulked on account of antecedent official error would not have arisen.
[56 C] (2) The ambiguity in section 9A, especially as to how long and in what sense can a contract be said to be subsisting envelopes the disbarment provision with subtle legal ques tions such as: how long does a contract subsist ? Is every 50 liability arising on a breach of contract a claim under the contract the Provisions of s .
A9 ? If Government money is involved in the execution of the work does the contract necessarily become one with Government ? It is very de sirable that the disqualificatory net should not be cast too wide to disfranchise innumerable persons and must be easy of ascertainment if must be uncertainty is not to overhang elections [56 EH]
|
Appeal No. 95 of 1953.
On appeal from the Judgment and decree dated the 29th day of June 1951 of the Bombay High Court in Appeal No. 93 of 1949 arising out of the order dated the 16th September 1949 of the Court of Bombay City Civil Court at Bombay in Award No. 45 of 1949.
M.C. Setalvad, Attorney General of India (H. J. Umrigar, Sri Narain Andley, Rameshwar Nath and Rajinder Narain, with him), for the appellant.
H.R. Mehervaid and R. N. Sachthey, for the respondent.
October 4.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
The appellant is a share broker carrying on business in the City of Bombay, and a member of the Native Share and Stock Brokers ' Association, Bombay.
The respondent, Mrs. Goolbai Hormusji, employed him for effecting sales and purchases of shares on her behalf, and on 6 8 1947 there was due from her to the appellant on account of these dealings a sum of Rs. 6,321 12 0.
On that date, the respondent had outstanding for the next clearance, sales of 25 shares of Tata Deferred and 350 shares of Swadeshi Mills.
On 11 8 1947, the appellant effected purchases of 25 shares of Tata Deferred and 350 shares of Swadeshi Mills to square the outstanding sales of the respondent, and sent the relative contract notes therefor Nos. 2438 and 2439 (Exhibit A) to her.
She sent a reply repudiating the contracts on the ground that the appellant had not been authorised to close the transactions on 11 8 1947, and instructed him to square them on 14 8 1947.
The appellant, however, declined to do so, maintaining that the transactions had been closed on 11 8 1947 under the 109 860 instructions of the respondent.
After some correspondence which it is needless to refer to, the appellant applied on 21 8 1947 to the Native Share, and Stock Brokers Association, Bombay for arbitration in pursuance of a clause in the contract notes, which runs as follows: "In event of any dispute arising between you and me/us of this transaction the matter shall be referred to arbitration as provided by the Rules and Regulations of the Native Share and Stock Brokers ' Association".
The Association gave notice of arbitration to the respondent, and called upon her to nominate her arbitrator, to which she replied that the contract notes were void, and that in consequence, no arbitration proceedings could be taken thereunder.
The arbitrators, however, fixed a day for the hearing of the dispute, and gave notice thereof to her, but she declined to take any part in the proceedings.
On 10 10 1947 they made an award in which, on the basis of the purchases made by the appellant on 11 8 1947 which were accepted by them, they gave credit to the respondent for Rs. 1,847, and directed her to pay him the balance of Rs. 4,474 12 0.
The respondent then filed the application out of which the present appeal arises, for setting aside the award on the ground, inter alia, that the contracts in question were forward contracts which were void under section 6 of the Bombay Securities Contracts Control Act VIII of 1925, that consequently the arbitration clause was also void and inoperative, and that the proceedings before the arbitrators were accordingly without jurisdiction and the award a nullity.
Section 6 of the Act is as follows: "Every contract for the purchase or sale of securities, other than a ready delivery contract, entered into after a date to be notified in this behalf by the Provincial Government shall be void, unless the same is made subject to and in accordance with the rules duly sanctioned under section 5 and every such contract shall be void unless the same is made between members or through a member of a recognised stock 861 exchange; and no claim shall be allowed in any Civil Court for the recovery of any commission, brokerage, fee or reward in respect of any such contract".
Section 3(1) defines 'securities ' as including shares, and therefore, contracts for the sale or purchase of shares would be void under, section 6, unless they were made in accordance with the rules sanctioned by the Provincial Government under section 5.
The appellant sought to avoid the application of section 6 on the ground that the contracts in question were 'ready delivery contracts ', and fell outside the operation of that section.
Section 3(4) of Act VIII of 1925 defines 'ready delivery contract ' as meaning "a contract for the purchase or sale of securities for performance of which no time is specified and which is to be performed immediately or within a reasonable time", and there is an Explanation that "the question what is a reasonable time is in each particular case a question of fact".
The contention of the appellant was that contracts Nos.
2438 and 2439 were ready delivery contracts as defined in section 3(4), as no time was specified therein for performance.
The learned City Civil Judge, who heard the application agreed with this contention, and holding that the contracts were not void under section 6 of Act VIII of 1925, dismissed the application.
The respondent took the matter in appeal to the High Court of Bombay, and that was beard by Chagla, C.J. and Tendolkar, J. They were of the opinion that the con ' tracts in question were not ready delivery contracts as defined in section 3(4) of the Act, because though no time for performance was specified therein, they had to be performed within the period specified in the Rules and Regulations of the Association, which were incorporated therein by reference, and not "immediately or within a reasonable time" as provided in section 3(4), that they were accordingly void under section 6, and that consequently, the arbitration clause and the proceedings taken thereunder culminating in the award were also void.
They accordingly set aside the award as invalid and without jurisdiction.
Against this judgment, the appellant has preferred this appeal 862 on a certificate under article 133(1) (c).
It was argued by the learned Attorney General in support of the appeal that even apart from the question whether the contracts in question were for ready delivery or not, they would be outside the purview of section 6, because they were not contracts for sale and purchase of securities.
This contention was not raised in the courts below, and learned counsel for the respondent objects to its being entertained for the first time in this Court, as that would involve investigation of facts, which has not been made.
But in view of the terms of the contract notes and the admission of the respondent in her petition, we are of opinion that the point is open to the appellant, and having heard counsel on both sides, we think that the appeal should succeed on that point.
The dispute between the parties is as to whether the appellant was acting within the scope of his authority when he purchased 25 shares of Tata Deferred and 350 shares of Swadeshi Mills on 11 8 1947.
If he was acting within his authority, then the respondent was entitled only to a credit of Rs. 1,847 on the basis of the said purchases. ' But if these purchases were unauthorised, the appellant was liable to the respondent in damages.
In either case, the dispute was one which arose out of the contract of employment of the Appellant by the respondent as broker and not out of any contract of sale or purchase of securities.
The question of sale or purchase would arise between the respondent and the seller or purchaser, as the case may be, with reference to the contract brought about by the appellant.
But the relationship between the respondent and the appellant was one of principal and agent and not that of seller and purchaser.
The contract of employment is no doubt connected, and intimately, with sales and purchases of securities; but it is not itself a contract of sale or purchase.
It is collateral to it, and does not become ipso facto void, even if the contract of purchase and sale with which it is connected is void.
Vide the decision of this Court in Kishan Lal and another vs Bhanwar Lal(1) The legis (1) (1955] 1 S.C.R. 439.
863 lature might, of course, enact that not merely the contract of sale or purchase but even contracts collateral thereto shall be void, in which case the contracts of employment with reference to those contracts would also be void.
But that is not what Act VIII of 1925 has done.
Section 6 expressly provides that no claim shall be maintained in a civil court for the recovery of any commission, brokerage, fee or reward in respect of any contract for the purchase or sale of securities.
That is to say, the bar is to the broker claiming remuneration in any form for having brought about the contract.
But the contract of employment is not itself declared void, and a claim for indemnity will not be within the prohibition.
The question whether contract notes sent by brokers to their constituents are contracts for the sale and purchase of securities within section 6 of Act VIII of 1925, came up for consideration before the Bombay High Court in Promatha Nath vs Batliwalla & Karani (1) and it was held therein that they were not themselves contracts for sale or purchase but only intimations by the broker to the constituent that such contracts had been entered into on his behalf.
We agree with this decision.
It may be argued that if the contract note is only intimation of a sale or purchase on behalf of the con stituent, then it is not a contract of employment, and that in consequence, there is no agreement in writing for arbitration as required by the Arbitration Act.
But it is settled law that to constitute an arbitration agreement in writing it is not necessary that it should be signed by the parties, and that it is sufficient if the terms are reduced to writing and the agreement of the parties thereto is established.
Though the respondent alleged in her petition that she had not accepted the contract notes, Exhibit A, she raised no contention based thereon either before the City Civil Judge or before the High Court, and even in this Court the position taken up by her counsel was that Exhibit A constituted the sole repository of the contracts, and as they were void, there was no arbi (1) I.L.R. [1942] Bom. 655; A.I.R. 1942 Bom.
864 tration clause in force between the parties.
We accordingly hold that the contract notes contained an agreement in writing to refer disputes arising out of the employment of the appellant as broker to arbitration, and that they fell outside the scope of section 6 of Act VIII of 1925, that the arbitration proceedings are accordingly competent, and that the award made therein is not open to objection on the ground that Exhibit A is void.
It was next contended for the respondent that the contract notes were void under Rule 167 of the Native Share and Stock Brokers ' Association, and that on that ground also, the arbitration proceedings and the award were void.
Rule 167 so far as it is material is as follows: "167.
(a) Members shall render contract notes to non Members in respect of every bargain made for such non Member 's account, stating the price at which the bargain has been made.
Such contract notes shall contain a charge for brokerage at rates not less than the scale prescribed in Appendix G annexed to these Rules, or as modified by the provisions of rules 168 and 170(b).
Such contract notes shall show brokerage separately and shall be in Form A prescribed in Appendix annexed to these Rules.
. . . . . . . . (c) No contract note not in one of the printed Forms in Appendix H shall be deemed to be valid.
. . . . . . . . (g) A contract note referred to in this rule or any other rule for the time being in force shall be deemed to mean and include a contract and shall have the same significance as a contract".
Form A in Appendix H referred to in Rule 167(a) contains two columns, one showing the rate at which the securities are purchased or sold and the other, the brokerage.
The contract notes sent to the respondent are not in this form.
They are in accordance with Form A in Appendix A, and show the rates at which the securities are sold or purchased, the brokerage not being separately shown.
At the foot of the document, there is the following note; 865 "This is net contract.
Brokerage is included in the price".
The contention of the respondent is that the contract notes are not in accordance with Form A in Appendix H, as the price and brokerage are not separately shown, and that therefore they are void under Rule 167(c).
Now, Rule 167 applies only to forward contracts, and the basis of the contention of the respondent is that inasmuch as the contract notes, Exhibit A, have been held by the learned Judges of the High Court not to be ready delivery contracts but forward contracts, they would be void under Rule 167(c), even if they were not hit by section 6 of Act VIII of 1925.
The assumption underlying this argument is that what is not a ready delivery contract under the definition in section 3(4) of Act VIII of 1925 must necessarily be a forward contract for purposes of Rule 167.
But that is not correct.
The definition of a ready delivery contract in section 3(4) is only for the purpose of the Act, and will apply only when the question is whether the contract is void under section 6 of that Act.
But when the question is whether the contract is void under Rule 167, what has to be seen is whether it is a forward contract as defined or contemplated by the Rules.
The definition in section 3(4) of Act VIII of 1925 would be wholly irrelevant for determining whether the contract is a forward contract for purposes of Rule 167, the decision of which question must depend entirely on the construction of the Rules.
The relevant Rules are Nos. 359 to 363.
Rule 359 provides that "contracts other than ready delivery contracts shall not be made or transacted within or without the ring".
Rule 361 confers on the Board power to specify which securities shall be settled by the system of Clearance Sheets and which, by the process of Tickets.
Rules 362 and 363 prescribe the modus operandi to be followed in effecting the settlement.
It was with reference to these rules which under the contract notes were to be read as part of the con tract, that the learned Judges held that the contracts were not ready delivery contracts as defined in sec 866 tion 3(4) of Act VIII of 1925.
But reading the above Rules with Rule 359, there can be no doubt that the contract notes, Exhibit A, would for the purpose of the Rules be ready delivery contracts.
Indeed, the form of the contract notes, Exhibit A, is the one provided under the Rules for ready delivery contracts, whereas Form A in Appendix H is, as already stated, for forward contracts.
Thus, contracts which are regulated by Rules 359 to 363 cannot be forward contracts contemplated by Rule 167, and they cannot be held to be void under that Rule.
The error in the argument of the respondent is in mixing up two different provisions enacted by two different authorities and reading the one into the other.
The rules framed by the Association form a code complete in itself, and any question arising with reference to those rules must be determined on their construction, and it would be a mistake to read into them the statutory provisions enacted in Act VIII of 1925.
In this view, the contract notes, Exhibit A, cannot be held to be void under rule 167.
In the result, we must hold, differing from the learned Judges of the court below, that the arbitration proceedings are not incompetent and that the award made therein is not void on the ground that the contracts containing the agreement are void.
The respondent contested the validity of the award on several other grounds.
They were rejected by the City Civil Judge and in the view taken by the learned Judges of the High Court that the contract notes were void under section 6 of Act VIII of 1925, they did not deal with them.
Now that we have held that the contracts are not void, it is necessary that the appeal should be heard on those points.
We accordingly set aside the order of the court below, and direct that the appeal be reheard in the light of the observations contained herein.
As the appeal succeeds on a point not taken in the courts below, the parties will bear their own costs throughout.
The costs of the further hearing after remand will be dealt with by the High Court.
| IN-Abs | The appellants share broker carrying on business in the City of Bombay and a member of the Native Share and Stock Brokers ' 858 Association was employed by the respondent for effecting sales and purchases of shares on her behalf.
The appellant effected purchases of 25 shares of Tata Deferred and 350 shares of Swadeshi Mills to square the outstanding sales of the same number of shares standing in her name and sent the relative contract notes therefor to her.
She repudiated the contracts on the ground that the appellant had not been authorised to close the transactions on the date mentioned by him and asked him to square them at a later date.
The appellant maintained that the transactions had been closed in accordance with her instructions.
The appellant referred the dispute for arbitration to the Native Share and Stock Brokers ' Association in pursuance of an arbitration clause in the contract notes.
The respondent refused to submit to arbitration of the association on the ground that the contract notes were void and therefore no arbitration proceedings could be taken thereunder.
The arbitrators made an award in favour of the appellant in the absence of the respondent who declined to take part in the proceedings.
The respondent filed an application for setting aside the award.
The Bombay High Court held that the contracts in question were not ready delivery contracts as defined in section 3(4) of the Bombay Securities Contracts Control Act VIII of 1925 and that they were accordingly void under section 6 of the Act and therefore the arbitration clause and the proceeding taken thereunder culminating in the award were also void.
Held that apart from the question whether the contracts in question were for ready delivery or not, they were outside the purview of section 6 of Bombay Act VIII of 1925 because they were not contracts for sale and purchase of securities.
The dispute between the parties was as to whether the appellant was acting within the scope of his authority when he purchased the shares.
If he was acting within his authority, the respondent was liable to him.
If those purchases were unauthorised, the appellant was liable to the respondent for damages.
In either case the dispute was one which arose out of the contract of employment of the appellant by the respondent as a broker and not out of any contract of sale or purchase of securities.
The relationship between the respondent and the appellant was that of principal and agent, and not that of seller and purchaser.
The contract notes sent by brokers to their constituents are not themselves contracts for sale or purchase of securities within section 6 of the Bombay Act VIII of 1925 but only intimations by the broker to the constituent that such contracts had been entered into on his behalf.
It is settled law that to constitute an arbitration agreement in writing it is not necessary that it should be signed by the parties, and that it is sufficient if the terms are reduced to writing and the agreement of the parties thereto is established.
The Rules framed by the Native Share and Stock Brokers ' Association, Bombay form a code complete in itself and any question 859 arising with reference to those Rules must be determined on their construction and it would be a mistake to read into them the statutory provisions enacted in the Bombay Act VIII of 1925 and therefore the contract notes cannot be held to be void under Rule 167.
|
IVIL Appeal No. 1863 of 1968.
P. Ram Reddy, K. Jayaram and A. V. V. Nair, for the appel lant.
T.C. Raghavan, B. Parthasarathi and section Shaukat Hussain, for the respondent.
The Judgment of the Court was delivered by RAY, C.J.
This appeal by special leave is against the judgment dated 3 April, 1967 of the High Court of Andhra Pradesh.
The respondent filed this suit to set aside the order of compulsory retirement on the ground that it was illegal, wrongful, ultra vires and inoperative.
The respondent al leged that the departmental enquiry was initiated by the Chief Justice and not by the Administrative Bench of the High Court which alone could do so under the Hyderabad High Court Act.
The respondent alleged that he was not given a reasonable opportunity inasmuch as the report of the Enquiry Officer was submitted 129 to the Chief Justice and not to the Administrative Bench and that the Public Service Commission was not consulted.
The respondent further alleged that the Chief Justice added his own findings to the report of the Enquiry Officer while sending it to the Government and in doing so he took extra neous matters which had not been the subject matter of the enquiry.
The respondent alleged that he had no opportunity to defend himself with reference to the findings of the Chief Justice.
The High Court held that the report of the High Court took into consideration extraneous matters and thus deprived the respondent from giving a reasonable opportunity.
The High Court, therefore, held that Article 311(2) was violat ed.
The High Court confirmed the decree of the trial Court but modified the order to the extent that the respondent was entitled to arrears of salary.
The Hyderabad Civil Services (Classification, Control and Appeal) Rules referred to as the Rules contain in Part III the following relevant provisions.
Rule 9(b) states that compulsory retirement before completion of 30 years or 25 years of qualifying service is one of the penalties.
Rule 12 provides that the Government may impose any of the penalties mentioned in items (ii) to (viii) of Rule 9 on members of the State Services after consultation with the Public Service Commission where such consultation is neces sary.
Rule 17(b) provides that in every case where it is proposed to impose on a member of a Service any of the penalties mentioned in items (iv), (vi), (vii) and (viii) of rule 9.
the grounds shall be communicated.
The.charges are to be communicated together with the statement of the alle gations on which each charge is based.
A written statement is required to be filed by the officer and an enquiry shall be held.
After the enquiry has been completed, the person charged shall be entitled to put in, if he so desires.
any further written statement in his defence.
After the enquiry has been completed and after the authority competent to impose the penalty mentioned in that clause has arrived at provisional conclusions, the person charged shall be sup plied with the copy of the report of the enquiring authority and be called upon to show cause within a reasonable time against the particular penalty proposed to be inflicted.
Rule 14 states that after completing the oral enquiry, if any, and giving the person charged an opportunity of making a written statement, the inquiry officer should record his, findings on each charge, the reason for such findings and recommendations as regards the penalty on each of the charges.
Rule 16 states that on receipt of the report of the enquiry officer the punishing authority should arrive at a provisional conclusion in regard to the penalty to be imposed and the person charged shall be supplied with a copy of the report of the enquiry officer and be called upon to show cause within a reasonable time why the particular penalty or penalties should not be inflicted upon him.
Any representation submitted by the person charged in this behalf shall be duly taken into consideration by the punish ing authority before final orders are passed.
The Rules further provide that in a case in which it is necessary to consult the Public Service Commission according to the provisions of 130 the Public Service Commission Regulations, the complete papers of the case should be sent to the Commission for their advice as regards the action to be taken without any observation on the merits of the case.
On receipt of the advice of the Commission, if it be found that the Commission have agreed with the provisional conclusion reached by the punishing authority as regards the penalty to be inflicted, final orders should be issued to the person Charged.
If, however, it be found that there has been disagreement on this point and the punishing authority has no objection to accept the advice of the Commission, final orders should be issued to the person charged.
If, however, the punishing authority does not consider it feasible to accept the advice of the Commission another reference on this point should be made to the Commission and if they still adhere to their views the case should be submitted through the Services Branch of the General Administrative Department for the orders of the Chief Minister showing reason for the proposal and such orders as may be passed by the Chief Minister shall be communicated to the person charged.
Uuder the Hyderabad High Court Act 3 of 1337 fasli corresponding to the year 1937 section 12 provides for the Administrative Bench consisting of at least two Judges appointed by the Chief Justice.
The Chief Justice may constitute more than one Administrative Bench.
Every ques tion before the Administrative Bench shall be decided either by a consensus or by majority of opinion.
But where a disagreement does not produce a majority of opinion, action shall be taken in accordance with the view with which the Chief Justice might concur.
If the Chief Justice does not join the Bench and there is no majority of opinion all opinions shall be placed before the Chief Justice and the opinion concurred by him shall be given effect to.
Section 13 of the Hyderabad High Court Act deals with powers of Administrative Bench of the High CoUrt.
The Administra tive Bench shall have power inter alia to sanction, suspen sion, fines, dismissal.
The respondent was appointed as Munsiff Magistrate in the year 1948.
Sometime in 1951 and 1952 a preliminary enquiry by the District and Sessions Judge was made.
The Administrative Bench consisting of the Chief Justice of the High Court and another learned Judge deputed Justice Manohar Prasad to conduct the enquiry in accordance with the Rules.
On 16 April, 1953 the respondent was suspended.
A charge sheet was served on the respondent along with the statements of four persons.
On the following charges it was proposed to remove the respondent from service namely (1) Communal bias in deciding case, (2) disregarding judicial orders, (3) suggesting names of Muslim lawyers to Muslim parties and (4) inefficiency.
On 3 August, 1953 the Enquiry Officer Justice Manohar Prasad submitted a report finding the respondent guilty of charges numbered 1 and 3 and he recommended a warning.
On 25 August, 1953 the report of the Chief Justice on his own examination of the evidence confirmed the findings of the enquiry officer and he recommended compulsory retirement.
On 5 September, 1953 the Administrative Bench the High Court sent both the reports to the Government.
131 On 14 October, 1953 a show cause notice was issued from the Government for compulsory retirement of the respondent.
The Government show cause notice enclosed the report of Justice Manohar Prasad.
The respondent answered the find ings of the enquiry report and also protested against the report of the Chief Justice saying that the Chief Justice had no authority to add his own remarks and his findings were arrived at without hearing the respondent.
On 22 December, 1953 the matter was referred to the Public Service Commission.
On 27 February, 1954 the Public Service Commission approved compulsory retirement.
On 8 April, 1954 the respondent was compulsorily retired.
On 28 June, 1954 the respondent preferred an appeal to the Rajpramukh.
On 4 November, 1954 the Rajpramukh dis missed the appeal.
In 1957 the respondent filed this suit.
The City Civil Court found that the respondent did not have a chance to meet some of the allegations referred to by the Chief Justice.
The City Civil Court also found that the report of the Chief Justice weighed with the Government.
The City Civil Court also found that the respondent had no reasonable opportunity for defending himself against the imposition of penalty of compulsory retirement.
The High Court held that the findings of the Chief Justice were based to a considerable extent on material which was not produced before the High Court.
The High Court also held that the Government had accepted the report of the Chief Justice both with regard to the guilt and punishment.
The High Court held that since the report of the Chief Justice formed an integral part of the enquiry, the respondent was denied reasonable opportunity at both the stages of enquiry and punishment and, therefore, the compul sory retirement was bad.
On behalf of the appellant it was contended that assum ing the report of the Chief Jusitce was taken into consider ation by the Government the findings of the Chief Justice were based on evidence let in before the Enquiry Officer and not any extraneous circumstances.
It was also submitted that it was open to the Government to accept or reject the recommendation of the Chief Justice on the question of punishment.
The further submission was that the respondent was given a reasonable opportunity at both the stages of the enquiry and punishment, and, therefore, the order of compul sory retirement, is good.
In the alternative it was submitted on behalf of the appellant that the Government of .its own came to the con clusion that compulsory retirement was the proper punish ment, and, therefore, the Government did not act on the recommendation of the Chief Justice.
The report of the Chief Justice referred to the report of the Enquiring Judge.
The Enquiring Judge held that charges relating to the communal bias of the respondent and charges relating to unbecoming conduct of the respondent in relation to engagement of counsel in pending cases were proved.
The Chief Justice in his report said that he was flooded with complaints from lawyers, litigants and from all sides 132 which emanated not only from the members of the Bar but also from responsible officers.
The Chief Justice said in his report that on consideration of all the facts he had not the slightest doubt that in this case leniency would be mis placed and in the interest of purity of services such prac tices, when proved, as they have been proved, must be dealt with firmly.
He, therefore, expressed the opinion that the respondent should be compulsorily retired and he concluded with the observation "let the Government be moved according ly".
Under the Rules the Government has power under rule 12 to impose, inter alia, the penalty of compulsory retirement after consultation with the Public Service Commission where such consultation is necessary.
The Chief Justice recom mended compulsory retirement.
He took note of complaints received by him from lawyers and other persons.
The Chief Justice took note of insubordination which charge was re jected by the Enquiry Officer.
Rule 17(e) of the Rules requires that all orders of punishment shall state the grounds on which they are based and shall be communicated to the person against whom they are passed.
The report of the Chief Justice was not given to the respondent.
The High Court Act did not authorise the Chief Justice to send a supplementary report with his own findings.
The respondent had no reasonable opportunity of making any representation against the report of the Chief Justice of the proposed punishment of compulsory retirement.
The High Court rightly held that the report of the Chief Justice took into consideration extraneous matters, and he was not authorised to do so under the Rules of the High Court Act.
The report submitted by the Chief Justice is not the report of the Administrative Bench.
The High Court rightly held that the Government accepted the Chief Jus tice 's report and took action on it.
The High Court was right in holding that the report of the Chief Justice was based to a large extent on secret information which the respondent had no opportunity of meeting.
The respondent was denied the opportunity of being heard at that stage of enquiry.
The respondent was denied a reasonable opportunity of making a representation against the penalty proposed by the Government.
For these reasons the appeal is dismissed.
The respond ent is entitled to costs.
| IN-Abs | The respondent, Munsiff Magistrate, was found guilty in an enquiry held by a High Court Judge, regarding serious allegations against him.
The Chief Justice of the High Court also examined the evidence on his own, and confirming the findings of the Enquiry Officer, recommended compulsory retirement.
Both reports were sent to the Government, and a show cause notice with the Enquiry Officer 's report was issued to the respondent.
Later, with the Public Service Commission 's approval, the respondent was compulsorily retired.
His appeal to the Rajpramukh was dismissed, but the City Civil Court and High Court decided in his favour.
The question before this Court was, whether the Chief Jus tice 's report was in accordance with the Hyderabad Civil Service (Classification, Control and Appeal) Rules and the High Court Act, and whether the failure to communicate it to the respondent, amounted to a denial of reasonable opportu nity for defending himself at the stages of enquiry and punishment.
Dismissing the appeal, the Court, HELD: (1) The report of the Chief Justice of the pro posed punishment of compulsory retirement took into consid eration extraneous matters, and he was not authorised to do so under the Rules, or the High Court Act.
The report was based, to a large extent, oh secret information which the respondent had no opportunity of meeting.
[132 D E] (2) The Government accepted the Chief Justice 's report and took action on it.
The report was not given to the respondent.
He was denied the opportunity of being heard at that stage of enquiry.
The respondent was denied a reasona ble opportunity of making a representation against the penalty proposed by the Government.
[132 E F]
|
TION: Criminal Appeal No. 74 of 1976.
Appeal by Special Leave from the Judgment and 'Order dated 28 7 75 of the Patna High Court in Criminal Revi sion No. 1046 of 1972.
A.K. Sen and A.K. Nag for the Appellant.
D. Gobrudhan, for the respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave exhibits the careless and cavalior manner in which the Sub Divisional Magistrate appears to have dealt with the complaint filed before him as far back as 21st February, 1966.
The com plaint itself contains allegations of a very petty nature, of which hardly any cognizance could have been taken and which would be a trivial act under Sec.
95 of Indian Penal Code for which no criminal proceedings could be taken.
There were proceedings under Section 107 between the parties and both 126 parties applied for copies of .these proceedings on the 20th December, 1965.
It is alleged in the complaint that the appellant got the copy which was meant for the complainant, by signing his name.
The complainant also got his copy a few days after eventually.
Such a small matter could have been resolved by the Magistrate himself if he had persued the complaint carefully and was certainly not a , matter for which a detailed inquiry under section 202, Code of Criminal Procedure, 1908 was called for.
It appears, howev er, that the Magistrate tossed the complaint from one Magis trate to another for inquiry and report, without conclusive results, starting from 21st February 1966 to 23rd November 1968, that is, for a period of more than two years.
Ulti mately, on the 23rd November, 1968 the complaint was dis missed under section 203 of the Criminal Procedure Code on the ground that the complainant was absent and did not show any interest in the inquiry ordered by the Court.
On the 7th of December, 1968 the respondent appeared before the Magistrate and filed an application for recalling his order.
The Magistrate passed no orders on this applica tion but he sent the case ' for inquiry to Mr. K.P. Sinha, another Magistrate.
Thereafter, the matter was sent to Mr. S.N. Dube on 30th of October, 1969.
Mr, Dube reported that the inquiry had been completed and hence he returned the papers.
of inquiry to the Magistrate.
On 9th of Decem ber, 1970, the Magistrate recalled the inquiry from Mr. K.P. Sinha and transferred to Mr. A.R. Ansari and on the basis of his report, the learned Magistrate passed the order taking cognizance of the case and summoned the accused by his order dated 3 5 1972, and issued processes against the appellants.
It would thus appear that a very petty matter was allowed to have a long and chequered career because the Magistrate refused to apply his mind either to the ' allegations made in the complaint or to control the proceedings before him.
In support of the appeal Mr, Nag has submitted a short point.
He has contended that the Magistrate had no jurisdic tion to recall the order dated 23 11 1968, by which he had dismissed the complaint under Section 203 of the Code of Criminal Procedure.
In fact, there was no express order recalling the order dismissing the complaint, but by a process of deeming fiction the Magistrate thought that the order dismissing the complaint stood recalled.
We might mention that the order dated 23rd November, 1968 was a judicial order by which the Magistrate had given full reasons for dismissing the complaint.
Even if the Magistrate had any jurisdiction to recall this order, it could have been done by another judicial order after giving reasons that he was satisfied that a case was made out for recalling the order.
We, however, need not dilate on this point because there is absolutely no provision in the Code of Criminal Procedure of 1908 (which applies to this case) empowering a Magistrate to.
review or recall an order passed by him.
Code of Criminal Procedure does contain a provision for inherent powers, namely, Section 561 A which, however, confers these powers on the High Court and the High Court alone.
Unlike Section 151 127 of Civil Procedure Code, the subordinate criminal courts have no inherent powers.
In these circumstances, there fore, the learned Magistrate had absolutely no jurisdic tion to recall the order dismissing the complaint.
The remedy of the respondent was to move the Sessions Judge or the High Court in revision.
In fact after having passed the order dated 23 11 1968, the Sub Divisional Magistrate became functus officio and had no power to review or recall that order on any ground whatsoever.
In these circumstances, therefore, the order even if there be one, recalling order dismissing the complaint, was entirely without jurisdiction.
This being the position, all subsequent proceedings follow ing upon recalling the said order,would fall to the ground including order dated 3 5 1972 summoning the accused which must also be treated to be a nullity and destitute of any legal effect.
The High Court has not at all considered this important aspect of the matter which alone was sufficient to put an end to these proceedings.
It was suggested by Mr. D. Goburdhan that the application given by him for recalling the order of dismissal of the complaint would amount to a fresh complaint.
We are, however, unable to agree with this contention because there was no fresh complaint and it is now well settled that a second complaint can lie only on fresh facts or even on the previous facts only if a special case is made out.
This has been held by this Court in Pramatha Nath Taluqdar vs Saroj Ranjan Sarkar(1).
For these reasons therefore, the appeal is allowed.
The Order of the High Court maintaining the order of the Magistrate dated 3 5 1972 is set aside and the order of the Magistrate dated 3 5 1972 summoning the appellant is hereby quashed.
M.R. Appeal allowed.
(1) [1962] 2 Supp.
S.C.R. 297.
| IN-Abs | The respondent 's complaint against the appellant regarding a trivial matter was tossed for three years between various magistrates for inquiry and report without conclusive re sults, and was ultimately dismissed under section 203 Cr.
P.C. Thereafter on an application by the respondent for recalling his dismissal order, the Magistrate again sent/the case for inquiry ultimately issued process against the accused.
The appellant contended before this Court that the Magis trate had no jurisdiction to recall his order of dismissal.
According to the respondent, his application for recalling the dismissal order, would amount to a fresh complaint.
Allowing the appeal, this Court, HELD: (1 ) There is absolutely no provision in the Code of Criminal Procedure of 1908 (which applies to this case) empowering a Magistrate to review or recall an order passed by him.
Unlike section 151 of the Civil Procedure Code, the subordinate criminal courts have no inherent powers.
After having passed the order, the Sub Divisional Magistrate became functus officio and had no power to review or recall that order on any ground whatsoever.
[126 G H; 127 A] (2) There was no fresh complaint and it is now well settled that a second complaint can be only on fresh facts or even on the previous facts only if a special case is made out.
[127 C D] Pramatha Nath Taluqdar vs Saroj Ranjan Sarkar, ; , followed.
|
Appeals Nos. 705 724 1971.
(From the Judgment and Order dated 3 9 1970 of the Patna High Court in C.W.J.C. Nos. 992, 1042, 1088, 1096 1101, 1148 1150, 1194, 1244 1247, 1722/68 and 146/69 re spectively).
D.P. Singh, S.C. Agarwal and V. 1.
Francis, for the Appel lants.
Sachin Chaudhary (in CA.
705/71) for Respondent No. 1.
B. Sen, and section 1.
Sorabjee (in CA.
709/71), S.B. Sany al, S.C. Banerjee, D.N. Mukerjee and A.K. Nag for Respondent No. 1 (in CAs.
705 713 & 718 and Respondents in 714/71).
D.N. Gupta, for Respondents (In CAs.
715 717/71).
S.N. Prasad (In CAs.
706/71), S.P. Nayar and Girish Chandra for Respondent No. 2 (in CA.
706 708, 713/71).
A.K. Sen, B. Sen, D.N. Mukherjee and A. K. Nag for Respondent (in CA.
724/71).
The Judgment of the Court was delivered by JASWANT SINGH, J.
This batch of 20 Civil Appeals Nos. 705 to 724 of 1971 by certificate under Article 133(1)(a) of the Constitution which are directed against the common judgment dated September 3, 1970, of the High Court of Judicature at Patna and raise important questions relating mainly to interpretation and scope of section 30A of the (Act 67 of 1957) (hereinafter referred to as the 1957 Act), shall be disposed of by this judgment.
Circumstances leading to these appeals in so far as they would be helpful in appreciating the points involved are: Prior to October 25, 1949, proprietors of big estates like Rajas of Ramgarh and Jharia granted, in exercise of their untramelled discretion, mining leases of huge tracts of land in the districts of Hazaribagh, Dhanbad, and Singhbhum to various persons for winning and extracting coal for a period of 999 years in lieu of payment of premiums and fixed annual rental.
There was in these leases either no stipulation for payment of royalty or the royalty stipulated for was very low.
Except in a few cases, the lessees of these mining leases did not work the mines them selves and granted sub leases thereof more or less or similar terms.
On September 8, 1948, the Central Legislature passed the Mines and Minerals (Regulation and Development) Act, 1948 (Act No. 53 of 1948) (hereinafter referred to as 'the 1948 Act ') under Entry 36 of List I of Seventh Schedule to the Government of India Act, 1935.
The Act, as declared in its Preamble, was enacted as it was considered expedient in public interest to provide inter alia for the regulation of mines and for the development of minerals Sub section (1) of section 4 of the Act ' prohibited the grant after the commencement of the Act of any mining lease otherwise than in accordance with the rules made under the Act.
Sub section (2) of section 4 of the Act provided that any mining lease granted contrary to sub section(1) would be void and of no effect.
Section 5 of the Act empower 160 ed the Central Government to make rules for regulating the grant of mining leases or for prohibiting the grant of such leases in respect of any mineral or in any area. 'Section 7 of the Act empowered the Central Government to make rules for the purpose of modifying or altering the terms and conditions of any existing mining lease i.e. any mining lease granted prior to the commencement of the Act, so as to bring such lease into conformity with the rules made under section 5.
In exercise of the powers conferred on it by section 5 of the Act, the Central Government made the Miner al Concession Rules, 1949.
Both the 1948 Act and the Mineral Concession Rules, 1949, came into force on October 25, 1949.
Rule 41 of the Mineral Concession Rules which related to the conditions of mining leases made it compulsory for every mining lease to include a condition enjoining the lessee to pay royalty on the minerals at the rate specified in the ,First Schedule to the Rules which in case of coal was 5% of the F.O.R. price.
The 1948 Act was extended to Chhota Nagpur by a notifi cation dated January 16, 1950, issued under section 92 of the Government of India Act, 1935.
The provisions of the Mineral Concession Rules, 1949, did not apply to leases or sub leases granted anterior to October 25, ' 1949.
The Constitution of India came into force on January 26, 1950.
Articles 246 and 254 of the Constitution which relate to the distribution of legislative powers and Entry 54 of List I (Union List) and Entry 23 of List II (State List) of the Seventh Schedule to the Constitution read thus "Article 246: (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (2) Notwithstanding anything in clause (3), Parlia ment, and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Sche dule(3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumer ated in List II in the Seventh Schedule.
(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a "State notwithstanding that such matter is a matter enumerated in the State List".
"Article 254: (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provi sion of an existing law with respect to one of the matters enumerated in the concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the 161 law made by the Legislature of such State or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumer ated in the Con current List contains any provi sion repugnant to the pro visions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the Presi dent and has received his as sent prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State." "Entry 54 of List 1 (Union List).
Regulation of mines and mineral development to the extent to which such re gulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest." "Entry 23 of List II (State List).
Regulation of mines and subject to the provisions of List I with mineral development respect to regulation and development under the control of the Union.
" The Constitution was followed by the Bihar Land Reforms Act, 1950 (Act XXX of 1950) (hereinafter referred to as 'the Bihar Land Reforms Act ') which though passed on September 11, 1950, came into force on September 25, 1950.
This legislation, as evident from its preamble, was enacted as it was considered expedient to provide for transference to the State of the interests of proprietors and tenure holders in land and of mortgagees and les sees of such interests including interest in mines and minerals.
On the publication of notifications under sections 3 and 3A of the Bihar Land Reforms Act, the estates or tenures of proprietors or ten ure holder as also the intermediary interests of all intermediaries passed to and became vested in the State.
Section 4 of the Bihar Land Re forms Act declared the consequences flowing from the vesting of the estate or tenure in the State.
Clause (a) of section 4(1) provided that on publi cation of the aforesaid notifications, such estate or tenure, including the interests of the proprie tor or tenure holder in any building etc., in trees etc.
, as also his interest in all sub soil includ ing any rights in mines and minerals, whether discovered, or undiscovered, or whether being worked or not, inclusive of such rights of a lessee of mines and minerals comprised in such estate or tenure other than the interests of raiyats or under raiyats shall, with effect from the date of vesting, vest absolutely in the State free.
from all encumbrances and such proprietor or tenure holder shall cease to have any interest in such estate or tenure other than the interests expressly saved by 162 or under the provisions of the Act.
Thus the interest of the proprietor or tenure holder includ ing his rights in mines and minerals, inclusive of rights of a lessee of mines and minerals came to an end and vested absolutely in the State.
Having once so vested, certain rights were conferred by statute on the proprietors and tenure holders and the lessees. ' Section 9 of the Bihar Land Reforms Act provided that mines which were in operation.
at the commencement of the Act and were being worked directly by the.
intermediary shall be deemed to have been leased by the State Government to the intermediary and he would be entitled to retain possession of those mines as a lessee thereof.
The lease by the State Government to the interme diary, according to sub section (2) of section 9 was to have such terms and conditions as might be agreed upon between the State Government and the intermediary or in the absence of such agreement, as might be settled by the Mines Tribunal appointed under section 12 of the Act provided that all such terms and conditions had to be in, accordance with the provisions of any Central Act for the time being in force regulating the grant of new mining leases.
According to the proviso,.
such terms and conditions were to be in accordance with the provi sions of the 1948 Act which was in force at the ,time the estate vested in the State of Bihar.
The mines in the present cases, it may be mentioned, were not worked by the intermediary lessees.
Sec tion, 10 of the Bihar Land Reforms Act which dealt with leases of mines and minerals which subsisted on the date immediately preceding the date of vesting of the estate or tenure provided: "10.
Subsisting leases of mines and minerals ( 1 ) Notwithstanding anything contained in this Act, where, immediately before the date of vesting of the estate or tenure there is a subsist ing lease of mines or minerals comprised the estate or tenure or any part thereof, the whole or that part of the estate or tenure comprised in such lease shall, with effect from the date of vest ing, be deemed to have been leased by the State Government to the holder of the said subsisting lease for the remainder of the term of that lease, and such holder shah be entitled to retain posses sion of ' the leasehold property.
(2) The terms and conditions of the said lease by the State Government shall mutatis mutan dis be the same as the terms and conditions of the subsisting lease referred to in sub section (1), but with 'the additional condition that, if in the opinion of the State Government the holder of the lease had not, before the date of the commencement of this Act, done any prospecting or development work, the State Government shall be entitled at any time before 'the expiry of one year from the said date to determine the lease by giving three months ' notice in writing: Provided that nothing in this sub section shall be deemed to prevent any modifications being made in the terms and conditions of the said lease in accordance with the provision of any Central Act for the time being in force regulating the modifi cation of existing mining leases.
163 (3) The holder of any such lease of mines and minerals as is referred to in sub section ( 1 ) shall not be entitled to claim any damages from the outgoing proprietor or tenure holder on the ground that the terms of the lease executed by such proprietor or tenure holder in respect of the said mines and minerals have become incapable of fulfilment by the operation of this Act.
" The consequence of the operation of sections 4(1)(a) and 10(1) of the Bihar Land Reforms Act as held by this Court in Bihar Mines Ltd. vs Union of India(1) and reiterated in Chhatu Ram Horil Ram Private Ltd. vs State of Bihar & Anr.(2) was not that the old original contractual leases of mines and minerals comprised in the estate and subsisting on the date of vesting continued with the Government substi tuted as lessor in place of original lessor but was that the original contractual leases came to an end on the date of vesting as a result of section 4(1)(a) of the Act and for the remainder of the terms of those leases, fresh statutory leases in favour of the lessees came into being under sec tion 10(1) of the Act.
All the estates of Jharia Kajya within which the leases in question fell became vested in the State of Bihar on November 3, 1951, Thenceforth i.e. from November 3, 1951, the subsisting leases came to be treated as new statutory leases granted ,by the State Government in terms of section 10(1) of the Bihar Land Reforms Act in view of the decision of this Court in Bihar Mines Ltd. vs Union of India (supra).
In 1956 the Mining Leases (Modification of Terms) Rules, 1956 providing for the modification and alteration of the terms and conditions of the mining leases granted prior to the commencement of the 1948 Act so as to bring them in conformity with the terms and conditions of the mining leases granted after the commencement of the 1948 Act in accordance with the Mineral Concession Rules, 1949, were promulgated under section 7 of the 1948 Act on Septem ber 4. 1956.
These Rules by virtue of the definition of the "existing mining lease" contained in rule 2(c) of the Mining Leases (Modification of Terms) Rules, 1956 were made expressly inapplicable to mining leases in respect of coal granted before October 25, 1959 the date of commencement of 1948 Act, with the result that the mining leases or sub leases of the respondents were not affected by the provi sions of the 1948 Act or the rules made thereunder.
The 1948 Act was replaced by the (Act No. 67 of 1957) (hereinafter referred to as 'the 1957 Act ') which though after being passed by the Parliament under Entry 54 of List I of the Seventh Schedule to the Constitution received the assent of the President on December 28, 1957, came into force on June 1, 1958.
Section 9 of the 1957 Act provided : "9.
Royalties in respect of mining leases:(1) The holder of a mining lease granted before the commencement of this Act shall, notwithstanding anything (1) ; (2) ; :A.I.R. 1969 S.C .177.
164 contained in the instrument of lease or in any law in force at such commencement, pay royalty in respect of any mineral removed by him from the leased area after such commencement, at the rate for the time being specified in the Second Schedule in respect of that mineral.
(2) The holder of a mining lease granted on or after the commencement of this Act shall pay royalty in respect of any mineral "removed by him from the leased area at the rate for the time being specified in the Second Schedule in respect of that mineral.
(3) The Central Government may by notifica tion in the official gazette, amend the Second Schedule so as to enhance or reduce the rate at which royalty shall be pay able in respect of any mineral with effect from such date as may be specified in the notification: Provided that the Central Government shall not (a) fix the rate of royalty in respect of any mineral so as to exceed twenty per cent of the sale price of the mineral at the pit 's head, or (b) enhance the rate of royalty in respect of any mineral more than once during any period of four years.
It will be noticed that sub section (1) of the above quoted section made it obligatory for the holder of a mining lease granted before the com mencement of the 1957 Act notwithstanding anything contained in the instrument of his lease or in any other law in force at the commencement of the 1957 Act to pay in respect of any mineral removed by him from the leased area after December 28, 1957, royalty at the rate specified in the Second Sched ule of the 1957 Act which for coal was fixed at 5% of F.O.R. price subject to a minimum of fifty N.P. per ton.
Section 16 of the 1957 Act provided that mining leases granted before October 25, 1949 would, as soon as might be, after the commencement of the 1957 Act, be brought into conformity with the provisions of the 1957 Act and the rules made under sections 13 and 18 thereof.
Section 29 of the 1957 Act provided for the effective continuance of the rules made or purport ed to have been made under the 1948 Act in so far as they related to matters provided for in the former Act and were not inconsistent therewith.
The effect of section 9 of the 1957 Act as held by this Court in State of Madhya Pradesh & Anr.
vs Dadabhoy 's New Chirimiri Ponri Hill Colliery Co. Pvt. Ltd. (1) was that the rate of royalty was enhanced in case of those lessees who, under the leases obtained by them before the commencement of the Act, were paying a rate lesser than 5% while the royalty payable by lessees similarly placed was reduced if they were paying royalty at a higher rate.
As the enhancement envisaged by section 9 of the 1957 Act was apprehended to lead to an increase in the cost of production of coal which is a vital mineral for (1) [972] 2 S.C.R. 609.
165 the industrial development and occupies a basic position in the economy of the country, various representations were made to the Government of India to reduce the royalty.
Impelled by these representations, the Central Government moved a Bill in March, 1958, being Bill No. 33 of 1958, and got, by means of Mines and Minerals (Regulation and Development) Amendment Act, 1958, section 30A inserted in the 1957 Act reading as follows : "30A.
Notwithstanding anything contained in this Act the provisions of sub section (1) of section 9 and of subsection (1 ) of section 16 shah not apply to or in relation to mining leases grant ed before the 25th day of October, 1949 in respect of coal but the Central Government, if it is satis fied that it is expedient so to do, may by notifi cation in the official gazette direct shall all or any of the said provisions (including any rules made under sections 13 and 18) shall apply to or in relation to such leases subject to such exceptions and modifications, if any, as may be specified in that or in any subsequent notification." This section, it would be seen, consisted of two parts.
Under the first part, the provisions of sections 9(1) and 16(1) were expressly made inapplicable to or in relation to pre October 25, 1949 mining leases for coal.
The second part empowered the Central Government on being satisfied that it was expedient so to do to direct by notification that all or any of those provisions (including the rules made under sections 13 and 18) would apply to or in relation to such leases subject to such exceptions and modifications, if any, as might be specified in that or any subsequent notification.
The "exceptions and modifications" which could be so specified in the notification were obviously in regard to the application, when such application was decided upon, of sections 9 ( 1 ) and 16 ( 1 ) and the relevant rules.
The aforesaid section 30 A was given a retrospective effect by virtue of section 2 of the Amendment Act 15 of 1958.
Vide notification No. GSR 432 dated May 29, 1958, the 1957 Act was brought into force with effect from June 1, 1958.
By notification No. S.O. 3094 dated December 29, 1961, the Central Government in exercise of the powers conferred on it by the second part of section 30A of the 1957 Act, directed the provisions of sub section (1) or section 9 to apply with immediate effect to or in relation tO mining leases in respect of coal granted before October 25, 1949 subject to the modification that lessees were required to pay royalty at the rates specified in the agreements between them and the lessor or at the rate of 21/2% on F.O.R. price of coal, whichever was higher, in place of the rate of royalty specified in respect of coal under the Second Sched ule.
After the notification, the ' State Government started demanding royalty at 21/2% and initiated proceedings under the Public Demands Recovery Act to realize royalty at 21/2% for the period between 29.12.1961 and 31.12.1965.
On October 26, 1964, the Bihar Land Reforms Act was amended by insertion of section 10 A originally by the Bihar Amendment Ordi 166 nance No. 3 of 1964 which was subsequently replaced by the Bihar Land Reforms (Amendment) Act, 1954 (Bihar Act 4 of 1965).
Under this newly added section, the lessees ' interest in mines and minerals which were subject to sub leases also came to vest in the State of Bihar.
Thus the State also acquired the right to sub lease.
On October 27, 1964, the interests of Chakroborty and Adhikaris from whom sub leases appear to have been taken in the beginning of the current century vested in the State of Bihar.
On January 1, 1966, a notification being S.O.No. 81 of 1966, was issued by the Central Government under section 30A of the 1957 Act superseding the notification No. S.O. 3094 dated December 29 1961 and applying the provisions of section 9(1) of the 1957 Act to leases granted prior to the commencement of the said Act.
On October 3, 1966, this Court pronounced judgment in Bihar Mines Ltd. vs Union of India (supra) holding therein that the whole or that part of the estate or tenure com prised in an) ' lease of mines and minerals would, with effect from the date of vesting, be deemed to have been leased out by the State Government to the holder of the subsisting lease (i.e. the first lessee) for the remainder of the period of the lease and that the statutory lease thus held by the head lessee from the State Government under section 10 of the Bihar Land Reforms Act, would be a new lease granted after October 25. 1949, and that the sub leases would also be deemed to be new leases granted by the new lessee from the State Government, as the rights of the original lessee under the original lease had ceased on the vesting of the estate, and he was to be deemed to have got a new lease from the State.
On December 22, 1967, the Patna High Court held in Narendra Nath Mandal vs State of Bihar & Ors.
(1) that a lessee of a coal mine was liable to pay royalty for the period beginning from the date of vesting of an estate under the Bihar Land Reforms Act to May 31, 1958 at 5% of F.O.R. price of coal subject to a minimum of eight paise per ton by virtue of section 29 of the 1957 Ace read with Rule 41 and Schedule I of Mineral Concession Rules, 1949, and at the same rate from the date on which the 1957 Act came into force by virtue of section 9(1) of the said Act read with Second Schedule thereto because neither section 30A nor the notification issued thereunder was applicable to the said lease in view of the effect of the vesting of estate in the State of Bihar and the coming into existence of a new lease by force of section 10 of the Act which could not be said to be a lease granted before October 25, 1949 which alone was the subject matter of section 30A of the 1957 Act.
In June 1968, demands were made by the District Mining Officer, appellant No. 2 herein, for payment of royalty at the rate specified in the Mineral Concession Rules, 1949 in respect of the period commencing from November 3, 1951 the date of vesting of the estates of the head lessors under the Bihar Land Reforms Act till May 31, 1958 and in respect of the period from June 1, 1958 the date of coming into force of the 1957 Act to December 12, 1965, at the rate C. J.C. 653of 1965 (Patna H.C.) 167 specified in the Second Schedule to the 1957 Act, after setting off 211/2% already realised, in view of the decision in Narendra Nath Mandal 's case (supra).
Aggrieved by these demands, the respondents filed petitions in the High Court of Patna for issue of writs of certiorari and ,mandamus quashing the demand notices and restraining the State from demanding royalty as indicated above.
The case as set up by the respondents in the writ peti tions was that as Rule 41 of the Mineral Concessions Rules, 1949, requiring royalty to be paid at the rate specified in Schedule 1 to the rules, applied only to a ' lease granted under the said Rules after the commencement of the 1948 Act and had no application to the leases and subleases of the respondents, royalty could not be claimed on the basis of 5 % of F.O.R. price of coal in respect of the period between the date of vesting under the Bihar Land Reforms Act and May 31, 1958the date immediately preceding the date on which the 1957 Act was brought into force; that as regards the period between June 1, 1958 and December 28, 1961 royalty at con tractual rates alone was payable because the provisions of section 9(1) of the 1957 Act had no application to statuto ry leases deemed to.
have come into existence under section 10(1) of the Bihar Land Reforms Act and alternatively be cause by virtue of the provisions of section 30A of the 1957 Act the provisions of section 9(1) of the said Act were not applicable to or in relation to the mining leases in respect of coal granted before October 25, 1949 until the Central Government, by notification, decided otherwise; that as regards the claim in respect of the period from December 29, 1961 to December 31, 1965 'royalty at 21/2% of F.O.R. price of coal had already been paid by the respondents as per notification of the Central Government issued in exer cise of the power under section 30A of the 1957 Act and having itself invited and accepted this payment in full discharge of the respondents ' liability for royalty payable for the said period, the State was not entitled to unilater ally revoke the aforesaid discharge or satisfaction and claim further royalty at 21/2% of F.O.R. price of coal over and above what has already been paid.
In reply the appellants herein submitted inter alia that the demands were lawful, that the combined effect of sec tions 9 and 29 of the 1957 Act read with Second Schedule thereto and the Mineral Concession Rules, 1949 was that the respondents who were lessees or sub lessees were liable to pay royalty at the rate of 5% of F.O.R. price of coal from the date of vesting of the respective estates of the pro prietors who had granted head leases in the State of Bihar for the entire period in question; that section 9(1) of the 1957 Act was very comprehensive and applied to all leases whether contractual or statutory which came into existence before the 1957 Act was brought into operation; that section 30A of the 1957 Act applied only to leases in respect of coal which had been granted before October 25, 1949 and not to the new statutory mining leases of the respondents deemed to have been granted by the State Government before the coming into operation of the 1957 Act under the provisions of section 10 of the Bihar Land Reforms Act; and that the provisions of section 9(1) of the could not be taken to have been suspended by section 30A of the Act so far as the leases in question were concerned.
All the writ petitions were heard by a Sepcial Bench of five Judges of the High Court.
The said Bench by its judgment and order dated September 3, 1970 allowed all the writ petitions filed by the respondents and quashed the impugned notices holding that Narendra Nath Mandal 's case (supra) had been wrongly decided; that rule 41 of the Mineral Concession Rules, 1949 made under section 5 of the 1948 Act which was claimed by the appellants to have been continued in force by virtue of section 29 of the 1957 Act and to justify the, demand for royalty for the period prior to June 1, 1958 was applicable only to contractual grants envisaged by the said Rules and could have no application to statutory leases arising by virtue of section 10 of the Bihar Land Reforms Act; that there was no warrant for pushing back section 9 of the 1957 Act by virtue of section 29 thereof to any date anterior to that on which the said Act came into force; that as section 30A of the 1957 Act on its true interpretation, imposed a temporary bar on the operation of the provisions of section 9(1) not only in respect of mining leases grant ed before October 25, 1949 in respect of coal but also in relation to those leases which expression covered the statu tory leases of the respondents which must be deemed to have come into existence with effect from the date of vesting under the Bihar Land Reforms Act, the demand for royalty for the period commencing from June 1, 1958 to December 31, 1965 was also unjustified and illegal.
Aggrieved by the judgment and order of the Special Bench of the High Court, the appellants filed a petition in the High Court under Articles 132 and 133(1)(a) of the Constitu tion for grant of certificate of fitness for appeal to this Court.
The High Court by itsorder dated January 22, 1971 granted the certificate of fitness under Article 133(1 )(a) of the Constitution enabling the appellants to prefer the aforesaid appeals to this Court.
Counsel for the parties have reiterated before us the contentions urged on behalf of their clients before the High Court.
Two important questions arise for determination by us in these appeals: (1) whether the claim for royalty in regard to the period prior to June 1, 1958 can be sustained; (2) whether the claim for ' royalty in regard to the period from June 1, 1958 to December 31 1965 is justified.
So far as the demand for royalty at 5% Of F.O.R. price of coal for the period prior to June 1, 1958 the date on which the 1957 Act came into force is concerned we are of opinion that it is not justified in view of the fact that Rule 41 of the Mineral Concession Rules, 1949 applied only to contractual leases envisaged by Chapter IV of the said Rules (which were made inter alia for regulating the grant of mining leases in respect of any mineral) and not to the statutory leases which came into existence as a result of the deeming provision embodied in section 10 of the Bihar Land Reforms Act.
This view is in accord with the decision of this Court in Chhatu Ram 's case (supra) where dealing with Rule 40 of the Mineral Concession Rules 169 1949 which relates to the period of lease, Shah, J. who delivered the judgment of the Court observed that the rule manifestly applied to grants made by the Government and had No. application to statutory leases arising by reason of section 10 of the Bihar Land Reforms Act.
We, therefore, find ourselves in complete agreement with the High Court that the claim for royalty for the period prior to June 1, 1958, is wholly unfounded and cannot be supported.
So far as the demand for royalty for the period beginning with June 1, 1958 and ending with December 31, 1965 is con cerned, we are of the opinion that no exception can be taken to the view expressed in this behalf by the High Court in its judgment under appeal. 'This becomes abundantly clear from a close scrutiny of section 30A (supra) of the 1957 Act, the provisions whereof may usefully be recalled at this stage.
Before examining, however,.
section 30A, it would be profitable to advert to section 9 (supra) of the Act.
This section, it would be seen consists of three parts.
Sub section (1) casts a liability on the holder of a mining lease granted before June 1, 1958 the date of the commencement of the Act to pay royalty in respect of any mineral removed by him from the leased area after that date at the rate for the time being specified in the Second Schedule, notwithstanding anything contained in the instru ment of lease or in any law in force on the aforesaid date of the commencement of the Act.
Sub section (2) makes also the holder of a mining lease granted on or after June 1, 1958 liable to pay royalty in respect of any mineral removed by him from the leased area at the rate for the time being specified in the Second Schedule.
Sub section (3) empowers the Central Government to amend the Second Schedule and enhance or reduce the rate of royalty in re spect of any mineral by issue of a notification subject to the restriction contained in the proviso to this sub sec tion.
Section 30A which, as is evident from its opening words, has an overriding effect on the other provisions of the Act affords a temporary protection from applicability of section 9(1) and section 16(1) of the Act not only to the leases granted before October 25, 1949, but also to the statutory leases which came into existence as a result of the operation of section 10(1) of the Bihar Land Reforms Act and replaced the former category of leases subsisting immediately before the date of vesting in the State of the estates or tenures on the publication of the notifications under sections 3 and 3A of the Bihar Land Reforms Act.
This conclusion irresistibly flows from the words "or in relation to" occurring in section 30A of the 1957 Act after the words "shall not apply to" and before the words "mining leases granted before the 25th day of October 1949" The aforesaid words which are of great significance of enlarge the scope of section 30A and bring within the umbrella of its protection the mining leases granted before October 25, 1949 as also the statutory leases which sprang up in their place by virtue of the legal fiction contained in Section 10(1) of the Bihar Land Reforms Act on the re:sting in the State of the estates or tenures.
As expressly ordained by sub sections (1) & (2) of section 10 of the Bihar Land Reforms Act, not ' only the ' holder of a statutory lease had to be the same as the holder of a subsisting 13 1003 SCI/76 170 lease for the remainder of the term of that lease but the terms and conditions of the statutory lease had also muta tis mutandis to be the same as the terms and conditions of the subsisting lease i.e. the original lease except to the extent mentioned in sub section (2).
Thus the statutory lease being inextricably linked up with the aforesaid sub sisting lease which it replaced as a result of the aforesaid provisions of the Act came within the purview of section 30A of the 1957 Act.
The interpretation sought to be placed by the appellants on the phraseology of section 30A of the 1957 Act cannot be accepted as;.
it would unduly re strict and limit the scope of that section and defeat the object which it was intended to effectuate viz. to mitigate the rigour of liability for payment of royalty under section 9 of the 1957 Act at the rate specified in the Second Sched ule in respect of the coal removed from ' the leased area after the commencement of the Act.
If as contended by the appellants, the protection envisaged by section 30A is restricted to leases granted before October 25, 1949, sec tion 30A would be ' rendered nugatory because on the coming into being of the statutory leases as a result of section 10(1) of the Bihar Land Reforms Act, there would hardly be left any mining lease to which section 30A of the 1957 Act would be applicable.
Thus there can be no room for doubt that the Legislature intended that section 30A of the 1957 Act should cover the aforesaid statutory leases as well.
It will be apposite in this connection to refer to the following statement of objects and reasons given in the Bill which sought to introduce section 30A in the 1957 Act with retrospective effect which can be usefully resorted to for ascertaining the true scope of section 30A and the extent of the protection afforded by it : " .
It ' is considered that these changes will have numerous undesirable consequences.
The areas covered by these mining leases are principally in West Bengal and Bihar and they account for as much as 80 per cent of the total coal production in the country.
The royal ties paid on this coal vary over a wide range but are gener ally much below the rate per ton prescribed in the Second Schedule.
A sudden and uniform increase of these royalties is likely to have an unsettling effect in the industry and may retard the programme of coal production under the Second Five Year Plan . . " Thus the above discussion makes it crystal clear that the statutory mining leases in respect of coal which sprang up under section 10(1) of the Bihar Land Reforms Act also acquired a temporary immunity from the applicability of sections 9(1) and 16(1) of the Act until the Central Govern ment came out with a notification making the said provisions applicable with or without modification to these leases.
Accordingly, we have no hesitation in holding in agreement with the High Court that the further demand for royalty for the second period indicated above cannot also be sustained.
For the foregoing reasons, we find no force in these appeals which are dismissed.
In the circumstances of the case, the parties are left to pay and bear their own costs of these appeals, P.B.R. Appeals dis missed.
| IN-Abs | Prior to October 25, 1949, the proprietors; of big estates granted mine leases either without payment of royalty or at very low royalty.
In most c the lessees granted sub leases on similar terms.
The Mines and Mine (Regulation and Development) Act, 1948, prohibited grant of any mine lease except in accordance with rules made under the Act.
41 of Mineral Concession Rules, 1949 which came into force on October 25, 1 made it compulsory for every mining lease to include a condition regard payment of royalty on the minerals.
The rule, however, did not apply leases or sub leases granted prior to October 25, 1949.
Under the Bihar Land Reforms Act, 1950 passed by the State legislate the interest of a proprietor or tenure holder as.
well as of the lessee including rights in mines and minerals, came to an end and vested absolutely in State.
Section 10 provided that the whole or part of the estate or term comprised in a subsisting lease shall be deemed to have been leased by State Government to the holder for the remainder of the term of lease.
The w replaced the 1948Act came into force on June 1, 1958.
Section 9(1) of Act made it obligatory for the holder of a mining lease granted before commencement of the 1957 Act to pay in respect of any mineral removed him from the leased area after December 28, 19 '57, royalty at a specified Section 16 provided that a mining lease granted before October 25, 194_9, w be brought into conformity with the provisions of the 1957 Act and the r Section 29 provided for the effective continuance of the rules made under 1948 Act in so.
far as they related to.
matters provided for in the 1957 and were not inconsistent therewith.
Section 30A which was inserted in the 1957 Act provides that the proviso of section 9(1) and of section 16(1) "shall not apply to or in relation to mining lease granted before October 25, 1949" and empowered the Central Government direct by notifi cation that all or any of the provisions of sections 9(1) and 1.
shall apply to or in relation to such leases subject to such exceptions and notifications if any, as might be specified in that or in any subsequent notification Section 30A was given retrospective effect.
In 1967, the High Court, in Narendra Nath Mandal vs State of Bihar & held (i) that a lessee of a mine was liable to pay royalty for the period being from November 3, 19,51 (date of vesting of an estate under the Bihar Reforms Act) to.
May 31, 1958 by virtue of section 29 of 1957 Act read with and Schedule I of 1949 Rules and (ii) from June 1, 1958 (the date of col into force of the 1957 Act) to December 31, 1965 b.y virtue of section 9(1) of Act read with the second Schedule there to because neither section 30A nor notification was ap plicable to the, lease in view of the effect of the vesting estate in the State and the coming into.
existence of a new lease by fore section 10 of the Act.
After this decision the State issued demand notices to respondents for payment of royalty in accordance with the decision of High Court.
Allowing the respondents ' Writ petitions, the High Court quashed the der notices.
The High Court held that Mandal 's case had been wrongly decide On the question whether the claim for royalty (1) prior to June 1, and (2) from June 1, 1958 to December 31, 1965 could be sustained.
158 Dismissing the appeals of the State, HELD: (1) The High Court was right in holding that the claim for yalty prior to June 1, 1958 was wholly unfounded and cannot be supported.
Bihar Mines Ltd. vs Union of India this Court held that the consequence of the operation of sections 4(1)(a) and 10.(1) of the Bihar Act was that the original ntractual leases came to an end on the date of vesting and for the remainder the terms of those leases fresh statutory leases in favour of the lessees me into being under section 10(1) of the Act as a result of which from November 3, 1951, the subsisting leases came to be treated as new statutory leases wanted by the State Government in terms of section 1D(1) of the Bihar Act, 1950.
the 41 of the Mineral Concession Rules, 1949 applied only to contractual cases envisaged by Chapter IV of the Rules and not to the statutory leases which came into existence as a result of the deeming provision in section 10 of e Bihar Land Reforms.
[169 B; 163 B D] Bihar Mines Ltd. vs Union of India ; ; A.I.R. 1967 S.C. 7 followed.
Chhatu Ram Horil Ram Private Ltd. vs State of Bihar & Anr. ; ; applied.
(2) The High Court was also right in its view that the demand for payment of royalty for the period from June 1, 1958 to December 31, 1965 cannot sustained.
[168 G] (a) Section 30A which has an over riding effect on the other provisions of Act, affords a temporary protection from applicability of sections 9(1) and (1) of the Act not only to the leases granted before October 25, 1949 but also the statutory leases which came into existence as a result of the operation of 10(1) of the Bihar Land Reforms Act and replaced the former category of ses subsisting immediately before the date of vesting in the State of the ates or tenures on the publication of the notifications under section 3 and 3A the Bihar Land Reforms Act.
This conclusion irresistibly flows from the tds "or in relation to" occurring in section 30A after the words "shall not apply and before the words "mining leases granted before the 251h day of October 9".
These words, enlarge the scope of section 30Pt and bring within the umbrella its protection mining leases, granted before October 25, 1949 as also the utory leases which sprang up in their place by virtue of the legal fiction tained in section 10(1 ) of the Bihar.
Reforms Act on the . vesting in the se of the estates or tenures.
As expressly ordained by section 10(1) and (2) the Bihar Land Re forms Act not only the 'holder 017 a statutory lease had be the same as the holder of a subsisting lease for the remain der of the of that lease but the terms and conditions of the statutory lease had also 'aris mutandis to be the same as the terms and conditions of the subsisting e i.e. the original lease except to the extent in sub section
Thus the statu lease being inextricably linked up with the subsist ing_lease which it replacas a result of the aforesaid provi sions of the Act, came within the purview s.30.A of the 1957 Act.
The interpretation sought to be placed by the ellants on the phraseology of section 30A cannot be accepted as it would unduly lict and limit the scope of that section and defeat the object which it was nded to effectuate, namely, to mitigate the rigour of liability for payment of dty under section 9 of the 1957 Act after the commencement of the Act.
If, ontended by the appellants, the protection envisaged by section 30A is restricted the leases granted before October 25, 1949, section 30A would be rendered atory because on the.
coming into being of the statutory leases as a result 10(1) of the Bihar Land Reforms Act, there would hardly be left any ing lease to which, section 30A would be applicable.
There can be no room doubt that the Legislature.
intended that section 30A of the 1957 Act should 'r the statutory leases as well.
A B] b) Statutory mining leases in respect of coal which sprang up under )(1) of the Bihar Land Reforms Act also acquired a temporary immunity the applicability of sections 9(1) and 16(1) of the Act until the Central Government came out with a notification making the said provisions applicable with without modification to these leases.
[170 G] 159
|
il Appeal No. 212 of 1975.
(Appeal by Special Leave from the Judgment and Order dated 26 6 1974 of the Kerala High Court in A.S. No. 510/72).
L.N. Sinha, Sol.
of India, Shaymla Pappu and Girish Chandra for the appellant.
A.S. Nambiar for the respondent.
The Judgment of the Court was delivered by BEG, J.
The Union of India and the Commander, Officer incharge, Naval Base, Cochin, are the appellants before us by grant of special leave against a judgment and decree of a Division Bench of the High Court of Kerala.
The Division Bench had affirmed the decision of a learned subordinate Judge awarding Rs. 25,000/ as damages, together with inter est @ 6% per annum, to the plaintiff respondent for the illegal termination of the respondent 's services.
The plaintiff respondent was serving as a Welder, Grade II, in the Civilian Defence Forces at the Naval Base, Cochin, at the time of this allegedly illegal termination of service by an order of 25th October, 1968, of the Govt.
of India, Ministry of Defence.
Special leave was granted on condition that the appel lants Will bear the costs of the respondent in any event.
The point of law sought to be canvassed before us is: Does the doctrine that a Central Govt.
servant holds his post "at the pleasure of the President", contained in Article 310 of the Constitution, authorise the passing of an order of termination of services, without assigning any reason what soever, of the holder of a post "connected with defence ?" There is no finding anywhere that the services of the plaintiff respondent were terminated as a measure of pun ishment for any wrong done by him or for incompetence, although, a perusal of the pleadings would show that the appellants denied the assertions of the plaintiff respondent that he was efficient and entitled to promotions as he had qualified for them by passing certain tests.
The Subordinate Judge had awarded only Rs. 25,000 .
out of a claim of Rs. 75,000/ made on the ground that, but for illegal termination of the service of the plaintiff respond ent, the plaintiff would have continued in service upto the age of 60 years and duty promoted instead of being thrown out of service at the age of 41.
The plaintiff respondent alleged that the termination of his service, without giving any reason whatsoever, was contrary to, rules made under Article 309.
A glance at paragraph 4 of the plaint shows that the violation of rules 89 relating to conduct of disciplinary proceedings was alleged by the petitioner.
In paragraph 5 of the plaint, however, he alleged: "As per the terms of appointment and the rules governing the service of the petitioner,, he is entitled normally to continue in service till the age of 60.
If his service had not been terminated as per the impugned order, the petitioner would have been entitled to continue for a further period of 19 years and 8 months".
He proceeded to assert: "Due to the illegal termination, the peti tioner had lost a valuable right vested in him by virtue of his appointment and guaranteed by the Constitution of India and the rules framed thereun der namely a right to continue in service for the full period of 19 years and 8 months and thus to gain a livelihood for himself and his family".
A perusal of the judgment of the Division Bench shows that the only point really considered by it was whether the pleasure of the President mentioned in Article 310 of the Constitution, can over ride rules made under Article 309 of the Constitution.
The High Court had explained away a passage cited from State of U.P. & Ors., vs Babu Ram Upadhya(1) by observing that it did not support the argument that rules made under Article 309 of the Constitution did not control the pleasure of the President, under Article.310, which was to be subject to matters otherwise expressly provided in the Constitution.
The passage so explained away runs follows :.
"If there is a specific provlsion in some part of the Constitution giving to a Government servant a tenure different from that provided for in article 310, that Government servant is excluded from the operation of article 310.
The said words refer, inter alia,, to articles 124, 148, 218 and 324 which provide that the Judges of the Supreme.
Court, the Auditor General, the Judges of the High Courts and the Chief Election Commissioner shall not be re moved from their offices except in the manner laid down in those Articles.
If the provisions of the Constitution specifically prescribing different tenures were excluded from article 310, the purpose of that clause would be exhausted and thereafter the Article would be free from any other restrictive operation.
In that event, article 309 and 310 should be read together, excluding the opening words in the latter Article, namely, "Except as expressly provided by this Constitution".
Learned Counsel seeks to confine the operation of the opening words in article 309 to the provisions of the Constitution which empower other authorities to make rules relating to the conditions of service of certain classes of public servants:, namely articles 146(2), 148(5) and 229(2).
That may:be so, but there is no reason why article 310.
should (1) A.I.R. 1961 S.C. 751. 8 1003 SCI/76 90 be excluded therefrom.
It follows that while article 310 provided for a tenure at pleasure of the President or the Governor, article 309 enables the legislature or the executive, as the case may be, to make any law or rule in regard, inter alia, to conditions of service without impinging upon the overriding power recognised under article 310".
The Kerala High Court relied on Union of India vs J. N. Sinha & Anr.,(1) to hold that doctrine of office held at the pleasure of the President was subject to rules made under Article 309 of the Constitution, and pointed out that it was held, inter alia, by a Division Bench of this Court (at p. 42): "A Government servant serving under the Union of India holds his office at the pleasure of the President as provided in Article 310 of the Consti tution.
But this "pleasure" doctrine is subject to the rules or law made under Article 309 as well as to the conditions prescribed under Art.311 ".
The High Court also relied on State of Madhya Pradesh & Ors.
vs Shardul Singh,(2) where the same Division Bench of this Court had held inter alia (at p. 111 ): "Article 310(1) of the Constitution declares that every person who is a member of Civil service of a State or holds any civil post in a State holds office during the pleasure of the Governor of a State.
But the pleasure doctrine embodied therein is subject to the other provisions in the Constitu tion.
Two other Articles in the Constitution which cut down the width of the power given under Article 310 (1) are Articles 309 and 311.
Article 309 provides that subject to the provisions of the Constitution acts of the appropriate Legislature may regulate the, recruitment, and conditions of service of persons appointed, to public.
services and posts in connection with the affairs of the Union or of any State.
Proviso to that Article says: 'Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the: case of services and posts in connection with the af fairs of the State to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act ." The High Court then referred to N. Ramanatha Pillai vs State of Kerala & Anr.
,(3) a decision of 5 learned Judges of this Court, in which Ray CJ., speaking for the Constitution Bench of this Court, (1) A.I.R. 1971 S.C. 40.
(2) at 111.
(3) ; at 2645.
91 while considering the power of the Govt.
to create, continue, and abolish a post said (at p. 2645): "Article 309 provides that subject to the.
provisions of the Constitution, Acts of the appropriate Legislature may regulate the recruit ment and conditions of service of persons appoint ed, to public services and posts in connection with the affairs of the Union or of any State.
There fore, Acts in respect of terms and conditions of service of persons are contemplated.
Such Acts of Legislature must however be subject to the provi sions of the Constitution.
This attracts Article 310 (1).
The proviso to article 309 makes it compe tent to the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union and for the Governor of a State or such person as he may direct in the case of services and posts in con nection with the affairs of the State, to make rules regulating the recruitment and the conditions of service of persons appointed,, to such services and posts under the Union and the State.
These Rules and the exercise of power conferred on the delegate: must be subject to Article 310.
The result is.
that Article 309 cannot impair or affect the pleasure of the ' President or the Gover nor therein specified.
Article 309 is, there fore, to be.
read subject to Article 310".
The High Court, after citing the passage set out above, said: "We do not understand the above passage as suggesting that Article 310 cannot in any manner be controlled by Rules framed under Article 309".
After a consideration of decisions of this Court in this manner it expressed its views as follows: "These cases, we think, sufficiently indicate that while it may be open to the PreSident or to the Governor to dismiss a civil servant at pleas ure, if Rules have been framed under Article 309 of the Constitution to regulate the mode and manner of termination of service, these .have to be com plied with.
This, we think, is reasonable and understandable enough on first principles.
If the untrammelled pleasure of the President has been subjected to Rules framed by the President himself in regard to the manner of termination of service, the pleasure must be subject to such Rules".
The Division Benh of the High Court then re corded its conclusion: "We are therefore of the opinion that in the instant case, the Civil Services (Classification, Control and Appeal) Rules, having been framed under Article 309 of the Constitution, the same had to be followed before the respondent 's service was terminated.
The same not having been admittedly complied with, the finding of the ' Court below that the termination is illegal was correct and requires no interference.
No arguments were addressed on the quantum of damages awarded".
92 We do not think that the difficulty before the High Court could be resolved by it by following what it consid ered to be the view of a Division Bench of this .Court in two cases and by merely quoting the views expressed by larger benches of this Court and then observing that these were insufficient for deciding the point before the High Court.
It is true that in each of the cases cited before the High Court, observations of this Court occur in a con text different from that of the case before us.
But, we do not think that the High Court acted correctly in skirting the views expressed by larger benches of this Court in the manner in which it had done this.
The proper course for a High Court, in such a case, is to try to find out and follow the opinions expressed by larger benches of this Court in preference to those expressed by smaller benches of the Court That is the practice followed by this Court itself.
The practice has now crystallized into a rule of law de clared by this Court.
If, however, the High Court was of opinion that the views expressed by larger benches of this Court were not applicable to the facts of the instant case it should have said so giving reasons supporting its point of view.
we have perused the Central Civil Service (Classifica tion, Control and Appeal) Rules of 1965, (hereinafter re ferred to as '1955 Rules ') which deal principally with procedure for disciplinary proceedings and penalties and appeals and reviews against orders passed under the rules.
There is no rule there dealing with the conditions under which a service such as that of the plaintiff respondent may be terminated.
We fail to see any rule made under Article 309 of the Constitution which was violated by the impugned order of termination of service of the plaintiff respondent.
We do not consider ourselves called upon to.
decide a ques tion which has really not arisen in the case.
before us.
The 1965 Rules are applicable when disciplinary proceed ings are taken.
They do not make disciplinary proceedings under the rules incumbent or obligatory whenever the services of a person covered ' by these rules are terminated.
The obligation to follow the procedure for punishment laid down in the rules flows from the provisions of Article 311 of the Constitution.
And, as the opening words of Arti cle 310 show, the doctrine of office held at the pleasure of the ' President does not apply to cases covered by Article 311.
Rule 3 of the above mentioned rules begins.
as follows: "3.
Application. (l ) These rules shall apply to every Government servant including every civilian Government servant in the Defence Serv ices, but shall not apply to (a) any railway servant, as defined in rule 102 of volume I of the Indian Railway Establishment Code, (b) any member of the All India Services, (c) any person in casual employment, (c) any person in casual employment, (d) any person subject to discharge from service on less than one month 's notice.
(e) any person for whom special provision is made, in respect of matters covered by these rules, by or under 93 any law for the time being in force or by or under any agreement entered into by or with the, previous approval of the President before or after the commencement of these rules, in regard to matters covered by such special provisions; (2) Notwithstanding anything contained in sub rule (1), the President may by order exclude any class of Government servants from the operation of all or any of these rules.
(3) Notwithstanding anything contained in sub rule (1), or the Indian Railway Establishment Code, these rules shall apply to every Government servant temporarily transferred to a Service or post coming within exception (a) or (e) in sub rule (1 ), to whom, but for such transfer, these rules would apply.
(4) If any doubt arises (a) whether these rules or any of them apply to any person, or (b) whether any person to whom these rules apply belongs to a particular service the matter shall be referred to the President, who shall decide the same".
Even if the parties were governed by these rules, because the plaintiff held a civil post in one of the Defence; Departments, yet there must be some violation of one of these rules, which were no doubt framed under Article 309 read with clause 5 of Article 148 of the Constitution, before any question of a conflict between a rule framed under Article 309 and the provisions of Article 310 could possibly arise.
We fail to see such a conflict here.
These rules merely lay down procedure for matters cov ered by Article 31 l of the Constitution.
There is no doubt that proceedings under Article 311 of the Constitution constitute an exception to the doctrine of pleasure con tained in Article 310 of the Constitution.
But, in the case before us, no question of any disciplinary proceedings has been discussed because it did not arise at all.
There is no finding that any punishment was imposed upon the plaintiff respondent.
It may be that mere termination of service, when the plaintiff.respondent was holding a perma nent post and entitled to continue in service until 60 years of age, may constitute punishment per seven when the termination of service is not meant as a punishment.
But, in that event,, there had to be a finding on the rule or order under which the plaintiff was entitled to continue in serv ice.
until he reached the age of 60 years.
The High Court had cited no rule made under.
Article 309 to show that there was any such provision.
In P.L. Dhingra vs Union of India(1) Das, CJ., speaking for the majority of a Bench of five judges of this Court, said (at p. 47): "It has already been said that where a person is appointed substantively to a permanent post in Government service.
(1) ; at 47.
94 he normally acquires a right to hold the post until under the rules, he attains the age of superannua tion or is compulsorily retired and in the absence of a contract, express or implied, or a service rule,.
he cannot be turned out of his post unless the post itself is abolished or unless he is guilty of misconduct, negligence, inefficiency or.
other disqualifications and appropriate proceedings are taken under the service rules read with article 311 (2).
Termination of service of such a servant so appointed must per se be a punishment, for it operates as a forfeiture of the servant 's rights and brings about a premature end of his employ ment".
The propositions laid down in Dhingra 's case (supra) by this, Court mean that, unless a legally justifiable ground is made out for the termination of the service of a Govern ment servant.
in permanent service, in the sense that he is entitled to remain in service until he ' reaches the age of retirement, he could be deemed in a given case to be pun ished by an apparently innocent order of termination of service.
If, however, the respondent belonged to a class of government servants the tenure or conditions of whose serv ice was subject to the over riding and unqualified sway of the power to terminate his services at will, by reason of Article 310(1) of the Constitution, we doubt whether he could claim to be a "permanent" servant, who could continue, as of right, in service until he reaches the age of super annuation.
At any rate, he could not be a "permanent" Government servant of the same class as one protected by Article 311.
Even if we were to hold that the plaintiff respondent was constructively punished, the provisions of Article 311, unfortunately, do not apply to such a Government servant as the respondent was.
Whereas the power contained in Article 310 governs all Government servants, including those in the services connected with defence, the benefits of Article 311, which impose limitations on the exercise of this power in cases of punishment, do not extend to those who hold posts "connected with defence".
Constitution Bench of this Court has held, after a review of relevant authorities, this to be the position of the.
holder of a post such as that of the plaintiff respondent in L. R: Khurana vs Union of India.
(1) As the plaintiff respondent was not entitled to the protection of Article 311, the only effect of the 1965 Rules upon his case is that they could be applied if disci plinary proceedings had been taken against him as the holder of a post "connected with defence".
In other eases of such servants,.
where no such disciplinary proceedings are instituted (and none were started against the plaintiff respondent), the 1965 Rules, governing procedure for.
punishments to be imposed, will not apply at all.
There is no legal obligation to apply those rules here.
The legal obligation to apply them to every case of punish ment, flowing from Article 311, is confined to holders of posts covered by Article 311.
On this question, we are bound by the decision of a bench of five learned Judges of this Court in Khurana 's case (supra).
(1) ; 95 We were asked to import the obligation to apply the procedure prescribed by Article 311 to a case such as the one before us by invoking the aids of Articles 14 and 16.
Apart from the fact that these .Articles could not be in voked against a discrimination made by Constitutional provi sions, no such case was set up earlier.
We cannot permit it at this stage.
The only ground on which the respondent had assailed the order of termination of his service was non compliance of 1965 Rules, which meant ' that he claimed the protection of Article 311 of the Constitution.
But for the reasons given above, this protection is not available to him.
Therefore, this appeal must succeed.
Consequently, we allow this appeal, set aside the judgment and decree of the High Court and ,dismiss the plaintiff 's suit.
But: in the circumstances of the case, the appellant will, in keeping with the undertaking given at the time of grant of special leave, bear the costs of both sides throughout.
Appeal allowed.
| IN-Abs | Respondent was a welder in the Civilian Defence Forces.
On his services being terminated, without stating any rea son, he filed a suit for damages for illegal termination on the basis that he would have continued in service upto the age of 60 instead of being thrown out at the age of 41.
The trial Court gave a decree for damages which was affirmed by the High Court on the ground.
that the doctrine of post held during the pleasure of the President, contained in article 310, does not authorise the termination without complying with the procedure prescribed by the Central Civil Service 's (Classification, Control and Appeal) Rules, 1965, framed under article 309.
Allowing the appeal to this Court, HELD: (1) The Rules deal principally with the procedure for disciplinary proceedings and penalties and appeals and reviews against orders passed under the rules.
They are applicable if disciplinary proceedings had been taken against the respondent, but they do not make disciplinary proceedings incumbent or obligatory whenever the services of a person are terminated.
In the present case there were no disciplinary proceedings against the respondent.
[92 D E] (2) The mere termination of the service.
by an apparent ly innocent order, of a Government servant in permanent service, in the sense that he is entitled to remain in service until he reaches the age of retirement, could be deemed, in a given case, to be a punishment.
But, in that event, there had to be a finding on the rule or order under which the respondent was entitled to continue in service until he reached the age of 60.
There is no reference to any such rule and there was no finding that any punishment was imposed upon him or that his services were terminated as a measure of punishment for any wrong done by him or for incompetence.
[94 C; 93 G] P.L. Dhingra vs Union of India ; @ 47 referred to.
(3) Even assuming that the respondent was constructive ly punished, there is no legal obligation to apply the Rules.
The legal obligation to apply them to every case of punishment, flows from the provisions of article 311 and is confined to holders of posts covered by article 311.
But the provisions of article 311 do not apply to the respondent since they do not apply to the holder of a post connected with defence.
[94 E] L.R. Khurana vs Union of India ; followed.
(4) Terefore, when no disciplinary proceedings are instituted, the Rules will not at all apply, and there is no other rule dealing with the conditions under which the service, such as that of the respondent.
may be terminated.
Since there was no violation of any rule no question of a conflict between a rule framed under article 309 and the doc trine of pleasure contained in article 310, which applies to all Government servants including those in the services connected with defence, arises in the present case.
[94 G] 88 (5) The High Court in dealing with the question consid ered the view of a Divisional Bench of this Court in two cases, merely quoted the views expressed by larger Benches of this Court, and then observed that these were insuffi cient for deciding the point before it.
The High Court did not act correctly in thus skirting the views expressed by larger Benches of this Court.
The proper course for the High Court was to try to find out and follow the opinions expressed by the larger Benches in preference to those expressed by smaller Benches.
This practice is followed even by this Court and has crystallized into a rule of law.
If, however, the High Court was of opinion that the views expressed by larger Benches of this Court were not applica ble to the facts of the present case it should have said so, giving reasons in support.
[92 A C]
|
N: Civil Appeals Nos.
2552 2556 of 1969.
(From the Judgment and Order dated 26.11.1968 of the Andhra Pradesh High Court in Case Referred No. 40/64 arising from R.A. Nos.
1709 1713/62 63).
B. Sen, S.P. Nayar for the Appellants.
K. Vasudeva Pillai, H.R. Puri and P.K. Pillai for the respondent.
The Judgment of the Court was delivered by BEG, J.
Civil 'Appeals Nos.
2552 2556 of 1969, are directed against a judgment of the Full Bench of the High Court of Andhra Pradesh.
The case was certified as fit under Articles 132 and 133 of the Constitution for an appeal to this Court.
The question involved, as framed in the Andhra Pradesh Case is, on the facts and circumstances of the present case are certain lands situated at Begum pet, Lalguda, Jaiguda, Subzimandi, Yerraguda, Zamboorkhana and Vicarabad, "agricultural lands" within the meaning of section 2(e) (i) of the Wealth Tax Act (hereinafter referred to as 'the Act ') ? If any of the lands mentioned above are agri cultural lands, as defined by the Act, they would be excluded from the definition of "assets" given in Section 2(e) of the Act, and, therefore, exempt from wealth tax.
Section 2(e) says: "2(e) 'assets ' includes property of every description, movable or imovable, but does not include XXX XXX XXX XXX (i) agricultural land and growing crops, grass or standing tress on such land;" The word 'agricultural land ' occurs in entries 86, 87 and 83 of List 1 to 7th Schedule of our Constitution relating to matters on which Parlia ment may legislate.
Entry 86 here says :" Taxes on the capital value of the assets, exclusive of agricultural land of individuals and companies; taxes on the capital of companies:" Entries 87 and 88 deal with Estate duty and duties of succes sion to property and each of them excludes agricul tural land from property on which 148 taxes may be levied by Parliament.
Entry 18 of List II giving subjects of exclusively state legis lation says: "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 alienation of agricultural land; land improvement and agricultural loans; colonization.
" It is thus clear that "agricultural land" is only a species of land.
The main question before us is whether it should stand for all land which is capable of being utilised for agricultural purposes or for some land which either is being actually used or has been set apart or prepared for use for agricultural purposes so as to indicate the inten tion of the owner or occupier of the land to put it to agricultural uses.
This raises the further question:What is an agricultural purpose or agri culture ? The term "agriculture" was discussed very thoroughly by this Court in Commissioner of Income Tax, West Bengal, Calcutta vs Raja Benoy Kumar Sahas Roy.(1) This Court said there (at p. 472 473): "The term 'agriculture ' and 'agricultural purpose ' not having been defined in the Indian Income tax Act, we must necessarily fall back upon the general sense in which they have been under stood in common parlance. 'Agriculture ' in 'its root sense means ager, a field, and culture, cultivation, cultivation of a field which of course implies expenditure of human skill and labour upon land.
The term has, however, acquired a wider significance and that is to be found in the various dictionary meanings ascribed to it.
It may be permisible to look to the dictionary meaning of the term in the absence of any definition thereof in the relevant statutes.
" Therefore, this Court, beginning with the decision of Lord Coleridge in R.v. Peters(2), scanned and discussed various decisions of English and Indian Courts, and the meanings given in var ious dictionaries of the English language, as well as in the law dictionaries.
It then reached the conclusion (at p. 510): "If the term 'agriculture ' is thus understood as comprising within its scope the basic.
as well as subsequent operations in the process of agricul ture and the raising on the land of products which have some utility either for consumption or for trade and commerce, it will be seen that the term 'agriculture ' receives a wider interpretation both in regard to its operations as well as the results of the same.
Nevertheless there is present all throughout the basic idea that there must be at the bottom of it cultivation of land in the sense of tilling of the land, sowing of the seeds, plant ing, and similar work done on the land itself.
This basic conception is the essential sine qua non of any operation performed on the (1) [1957] 32 LT.R.p. 466 at 472 & 510.
(2) , 641.
149 land constituting agricultural operation.
If the basic operations are there, the rest of the operations found themselves upon the same.
But if these basic operations are wanting the subsequent operations do not acquire the characteristic of agricultural operations.
" In Raja Benoy Kumar Sahas Roy 's case (supra), the question before this Court was whether income from forest lands derived from sal and piyasal trees "not grown by human skill and labour" could constitute agricultural income.
The test applied there was whether there was some integrated activity which could be described as agricultural operation yielding income.
It was pointed out that, although, a mere wild or spontaneous growth of trees, not involving the employment of any human labour or skill for raising them, could not be agricultural income, yet, when there was a forest more than 150 years old, which had been carefully nursed and attended to by its owners, the income would be agricultural.
It is true that this case is not a direct authority upon what is "agricultural land.
" Nevertheless, it goes a long way in helping us to decide what could be agricultural land.
We think that this must be land which could be said to be either actually used or ordinarily used or meant to be used for agricultural purposes.
In other words, "agricultural land" must have a connection with an "agricultural user or purpose.
It is on the nature of the user that the very large number of definitions and authorities discussed by this Court, in Raja Benoy Kumar Sahas Roy 's case (supra), have a direct bearing.
In that case, this Court held that the wider meaning given to agri cultural operations, such as breeding and rearing of live stock, poultry farming, or dairy farming will not be ap plicable.
It held that the correct test to apply would be to find out whether human labour had been applied to the land itself, in order to extract from its natural powers, added to or aided by other natural or artificial sources of strength to the soil a product which can yield an income.
In the case before us, the question is a connected one.
Here also the term "agricultural land" has not been defined.
That, however, does not mean that the land to be considered can be divorced from its actual or natural or ordinary user.
If all land which is capable of being used for agriculture, could be intended to be excluded from "assets", practically every type of land, including that covered by buildings, would fall within that class.
Hence, it seems to us to be impossible to adopt so wide a test as would obviously defeat the purpose of the exemption given.
Apparently, agricul tural land is excluded from the definition of "assets" as it was.
thought that Parliament was not competent to impose taxes which will fall on agricultural land.
Whatever may be the reason for the exemption, we think that the exemp tion is connected with the user of land for a purpose which must be agricultural It is an enactment to tax "wealth" which includes all that is ordinarily understood as "assets". 'The person claiming an exemption of any proper ty of his from the scope of his assets must satisfy the conditions of the exemption.
150 It is true that, in Rain Benoy Kumar Sahas Roy 's case (supra), this Court pointed out that meanings of words used in Acts of Parliament are not necessarily to be gathered from dictionaries which are not authorities on what Parlia ment must have meant.
Nevertheless, it was also indicated there that, where there is nothing better to rely upon, dictionaries may be used as an aid to resolve an ambiguity.
The ordinary dictionary meaning cannot be discarded simply because it is given in a dictionary.
To do that would be to destroy the literal rule of interpretation.
This is a basic rule relying upon the ordinary dictionary meaning which, in the absence of some overriding or special reasons to justify a departure,.
must prevail.
Moreover, it was held there that the dictionary meanings.
of the word "agri cultural" were wider than what was meant by "agricultural income" as that term was used in the Income tax Act.
Even if we could give a wider connotation to the term "agricul tural" than the one it carries with it in the Income tax Act, we cannot dispense with credible evidence of at least appropriation or setting apart of the land for a purpose which could be regarded as agricultural and for which the land under consideration could be reasonably used without an alteration of its character.
This, we think, is the minimal test of "agricultural land" which should be applied in such cases.
In stating the facts of the case with regard to the Begumpet property, which, according to a rather surprising agreement between parties, was to be used for reaching an inference applicable to all other lands in the case, the High Court said: "The property at Begumpet was known as 'Begumpet Palace, Hyderabad. ' The buildings in this property were valued at Rs. 8,81,336/ while the vacant land comprising an area of about 108 acres was valued at Rs. 15,69,052.
The entire plot of land was enclosed in a compound wall and the various buildings inside it had their own compound walls.
The property is situated within the limits of the Hyderabad Municipal Corporation.
The land had never been actually used for agriculture, in the sense, that it had never been ploughed or tilled.
The property is situated adjacent to the tank known as "Hussain Sagar ' on the southern side, and there are two wells in the said land.
The land was capable of being used for agriculture and land revenue was being assessed and paid in respect of the said lands.
A portion of the land was acquired by the Government of Hyderabad on 15th September, 1955 and utilised by them for construc tion of buildings thereon.
" The High Court then stated the views of the taxing authorities as follows: "On these facts, the Wealth Tax Officer, came to ' the conclusion that the lands could not be treated as 'agricultural lands ' as no agricultural operations were carried on, in the sense of ploughing and tilling the land and raising any crop thereon.
The Appellate Assistant Commissioner, 151 confirms the order of the Wealth Tax Officer on this point.
The assessee preferred an appeal to the Income Tax Appellate Tribunal The Tribunal also took the view that the said land was never in.
tended to be used for agriculture and that the lands were never ploughed or tilled and that the lands were situated within the limits of the Hyd erabad Municipal Corporation and that the presump tion would be that they were not agricultural lands and that the said presumption was not rebutted, as no agricultural operations were ever carried on in the said land.
On this view, the Tribunal con firmed the order of the Appellate Assistant Commis sioner on this point.
" The High Court had discussed the various mean ings of the term "agriculture" and pointed out how it had acquired a wide sweep.
It also discussed a number of cases, including Sarojini Devi vs Srikrishna,(1) which had not been followed by a Division Bench of the Andhra Pradesh High Court in Manyarn Meenakshamma vs Commissioner of Wealth Tax A.P.(2) on the ground that the Madras view, that it was enough that the land was capable of being used for agricultural purposes, was no longer good law in view of the pronouncement of this Court in Raja Benoy Kumar Sahas Roys case (supra).
The Andhra Pradesh Division Bench had said in Smt.
Manyam Meenaksharnma 's case (supra) (at p. 544) : "We are inclined to agree with the observa tion of Hegde and Ahmed Ali Khan, JJ.
in Sri Krish na Rao L. Balekeai vs Third Wealth Tax Officer that the present characteris tics and not the potentialities of a land are the proper criterion.
If a land is ordinarily used for purposes of agriculture or for purposes subservient to or allied to agriculture, it would be agricul tural land.
If it is not so used, it would not be agricultural land.
The question how a land is ordinarily used would be one of fact depending on the evidence in each case.
If, for instance, an agricultural land, as we have interpreted above, is left fallow in a particular year owing to ad verse seasonal conditions or to some other special reason, it would not cease to be agricultural land.
" Apparently, the conflict between the views contained in Sarojini Devi 's case (supra) and in Smt.
Manyam Meenakshamrna 's case (supra), had led to a reference of the case to a larger bench.
The Full Bench of the Andhra Pradesh High Court, after discussing a number of cases of various High Courts, preferred the Madras High Court view, principally on two grounds: firstly, because as wide a connotation as was possible to give to the words, "agricultural land" was preferable in a taxing statute; and, secondly, because the entry to the large tract of vacant land in 'the Begumpet Palace in revenue records as assessable to land revenue raised a presumption of its agricultural character.
A.I.R. 1944 Mad. 401.
(2) at 544.
152 The Full Bench stated its conclusions on ques tions of law as follows: "(1 ) The words 'agricultural land ' occurring in Section 2(e)(i) of the Wealth Tax Act should be given the same meaning as the said expression bears in Entry 86 of List I and given the widest meaning: (2) The said expression not having been defined in the constitution, it must be.
given the meaning which it ordinarily bears in the English language and as understood in ordinary parlance: (3) The actual user of the land for agricul ture is one of the indicia for determining the character of the land as agricultural land: (4) Land which is left barren but which is capable of being cultivated can also be 'agricul tural land ' unless the said land is actually put to some other non agricultural purpose, like con struction of buildings or an aerodrome, runway, etc.
thereon, which alters the physical character of the land rendering it unfit for immediate culti vation: (5) If land is assessed to land revenue as agricultural land under the State revenue law, it is a strong piece of evidence of its character as agricultural land: (6) Mere enclosure of the land does not by itself render it a non agricultural land: (7) The character of land is not determined by the nature of the products raised, so long as the land is used or can be used for raising valu able plants or crops or trees or for any other purpose of husbandary: (8) The situation of the land in a village or in an urban area is not by itself determinative of its character.
" The Full Bench rejecting the effect of such features as construction of a Palace and the loca tion of the land within its compound said: "The land is of a large extent of 108 acres and abuts Hussain Sagar tank and has two wells in the land itself.
These indicate that the land possesses all the characteristics of agricultural land and that it is capable of being put to agri culture.
It is also not disputed that the land is vacant and has not been actually put to any purpose other than agriculture and that the physical character of the land is not such as to render it unfit for immediate cultivation.
The other rele vant fact is that the land has been admittedly assessed to land revenue as agricultural land under section 50 of the Hyderabad Land Revenue Act.
These factors in our opinion, strongly indicate that the land in question is agricultural land.
" 153 We think that it is not correct to give as wide a mean ing as possible to terms used in a statute simply because the statute does not define an expression.
The correct rule is that we have to endeavour to find out the exact sense in which the words have been used in a particular context.
We are entitled to look at the statute as a whole and give an interpretation in consonance with the purposes of the statute and what logically follows from the terms used.
We are to avoid absurd results.
If we were to give the widest possible connotation to the words "agricultural land", as the Full Bench of the Andhra Pradesh High Court seemed inclined to give to the term "agricultural land", we would reach the conclusion that practically all land, even that covered by buildings, is "agricultural land" inasmuch as its potential or possible use could be agricultural.
The object of the Wealth Tax Act is to tax surplus wealth.
It is clear that all land is not excluded from the definition of assets.
It is only "agricultural land" which could be exempted.
Therefore, it is imperative to give reasonable limits to the scope of the "agricultural land", or, in other words, this exemption had to be necessarily given a more restricted meaning than the very wide ambit given to it by the Andhra Pradesh Full Bench.
The Full Bench itself saw the need for some kind of limitation to the application of "widest purpose" principle, if one may call it that.
Therefore, evidently in an attempt to avoid the unreasonable conclusion to which too wide a definition of "agricultural land" would naturally lead to, the Full Bench.
, in the fourth conclusion recorded by it, held that, if some vacant land is actually built upon, it changes its physical characteristics and becomes unfit for immediate cultivation.
It thus qualified its view that the widest possible meaning must be given to "land".
Its final view was that only such land could cease to be agricultural land as had actually become unfit for immediate use for an agricultural purpose.
This view seems to imply that one has to start with the presumption that all "land", as such is "agricultural land".
If one were to start with such a pre sumption, (although, we must, in fairness to the views actually expressed by the Full Bench, observe that it did ' not expressly say so), even desert land will have to be first presumed to be agricultural land.
We feel certain that the Full Bench did not mean to carry the application of assumptions or principles, which seem to follow from its reasoning, so far as that.
Conclusions 6, 7 and 8 are only negative in character.
They merely indicated what could not be conclusive in decid ing whether the land was agricultural.
Conclusions 6 to 8, as stated above, would seem to be correct.
But, in our opinion, they do not carry us far in formulating a test of what is agricultural land.
Conclusion No. 5 seems to have been the real or positive test, based on entries in revenue records, actually adopted by the Full Bench for determining the nature the land.
The attempted application of the principles laid down by the Full Bench shows that what were treated as tests were really presumptions arising from the following facts: first ly, that the area was 108 acres abutting Hussain Sagar tank; secondly, that this land had two wells in 12 1003 SCI/76 154 thirdly, that it was capable of being used for agricul tural purposes; fourthly, that it had not been actually put to any use which could change the character of land by making it unfit for immediate cultivation; and, fifthly, that it was classified and assessed to land revenue as "agricultural land" under the provisions of the Andhra Pradesh Land Revenue Act 8 of 1317 Fasli perhaps on the assumption that it could be used for agriculture.
We may observe that the first four indicia set out above are based on absence of any user for non agricultural purposes.
Hence, they are inconclusive.
The last feature does seem to provide some evidence of the character of the land from the point of view of its purpose.
Section 50 of the Hyderabad Land Revenue Act (No. VIII of 1317F) (now called the Andhra Pradesh Land Revenue Act) lays down.
Land revenue shall be assessed accord ing to the various modes of use.
(a) Agricultural use.
(b) In addition to agricultural use any other use from which profit or advantage is derived.
When rate is assessed on any land for any one of the aforesaid purposes and the land is appropri ated for any other purpose the rate thereof shall be altered and fixed again, although the term of subsisting settlement may not have expired.
If any land granted by the Government with remission of land revenue for any special purpose is appropriated to some other purpose against the intention of the grant, the land revenue thereof shall be recovered.
It shall be lawful for the Taluqdar, and in case a taluqa is under settlement, for the Commis sioner of Survey Settlement or Commissioner of land Records after giving a hearing to the land holder to prohibit its appropriation for any particular purpose and record reasons therefor and to summari ly evict the holder who may have appropriated the said land to prohibited purpose".
Provisions of the Andhra Pradesh Land Revenue Act seem to involve quasi judicial proceedings, or atleast, an en quiry into the purposes for which land to be assessed has been appropriated.
The Full Bench of the Andhra Pradesh High Court has held these entries to be "strong prima facie evidence", and, it practically decided the case on the basis of these entries.
But, the difficulty seems to us to be that the taxing authorities had given a categorical finding that the land under consideration had neither been used for an agricultural purpose nor was it ever tended to be so used.
It may be that this finding was based on no evidence or was based on the circumstance that the land appeared to have been kept, as the environs of a huge palace, unused for any agricultural purpose.
It may be that the past history of such lands could give rise to some guess work that no agricultural user was intended by the owners of the Begum pet Palace.
But, is it possible to 155 reach a categorical finding or conclusion on the basis of general notion based on past history of the way in which such lands were treated by their aristocratic owners? At any rate, there presumably was sore possibly quasi judicial, enquiry at the time of classification of land "agricultural" under the provisions of Section 50 of the Andhra Pradesh land Revenue Act.
There must have been some evidence given such a classification.
Learned Counsel for the assessee respondents submitted that evidence had been led on the question of intended user before the Taxing authorities as the "prima facie evidence", provided by the entries in the revenue records, was consid ered enough.
It has, however to be 'remembered that such entries could raise only a rebuttable presumption.
It could, therefore, be contended that some evidence, should have been led before the Taxing authorities of the purpose intended user of the land under consideration before the presumption could be rebutted.
If the "prima facie" evi dence of the entries was enough for the assessee to dis charge his burden to establish an exemption, as it seemed to be, evidence to rebut it should have been led behalf of the Department.
We think that this aspect of the question was not exam ined by the Full Bench from a correct angle.
Although it seems to have based in conclusion primarily on the "prima facie" evidence provided by the entries under Section 50 of the Andhra Pradesh Land Revenue Act it had also used other indicia which were really not very helpful.
The had a bear ing on potentialities for agricultural user.
The Full Ben had, however, not recorded a finding that conclusion reached by the Taxing authorities, that the land was never even intended to be use for an agricultural purpose, rested on no evidence at all.
It had n given its reasons for rejecting this finding of the Tribunal.
We also think that the Full Bench was not correct in adopting view expressed in Sarojini Devi 's case (supra) by the Madras High Court where it was held that it was enough to show that the land under consideration was capable of being used for agricultural purpose This erroneous view also seems to us to have affected the conclusion of the Full Bench on what was essentially a question of fact.
It has led the Full Bench into giving excessive weight to consider ations which had a bearing only on potentialities of the land for use for agriculture purposes.
For the reasons already given, we do not think that the term "agr cultural land" had such a wide scope as the Full Bench appears have given it for the purposes of the Act we have before us.
We agree that the determination of the character of land, according to the purpose for which it is meant or set apart and can be used, is a matter which ought to be determined on the facts of each particular case What is really required to be shown is the connection with an agricultural rural purpose and user and not the mere possibility of user of land by some possible future owner or possessor, for an agricultural purpose.
It is not the mere potentiality, which will only affect its valuation as part of "assets", but its actual condition and intended use which has to be seen for purposes of exemption from wealth tax.
On 156 the objects of the exemption seemed to be to encourage cultivation actual utilisation of land for agricultural purposes.
If there is neither anything in its condition, nor anything in evidence to indicate the intention of its owners or possessors, so as to connect it with an agriculal pur pose, the land could not be "agricultural land" for the purses of earning an exemption under the Act.
Entries in revenue ords are, however, good prima facie evidence.
We do not think that all these considerations were kept in view by the taxing authorities deciding the question of fact which was really for the assessing authorities to determine having regard to all the relevant evidence and law laid down by this Court.
The High Court should have sent the case to the assessing authorities for deciding the question of :t after stating the law correctly.
We think that this is a fit case in which we should set aside the judgment of the Full Bench of the High Court and hold that the tribute should determine afresh, from a correct angle, the question of fact ether any of the lands under consideration were "agricultural" or t for the purposes of the Act before it.
Accordingly, we allow these peals, set aside the judgment and order of the Full Bench and send the cases to the Tribunal for appropriate orders for giving opporpriate both sides to lead further evidence, if they so desire, and the decision of the cases in accordance with the law as declared w by this Court.
The parties will bear their own costs throughout.
P.S. Appeals allowed.
| IN-Abs | The assessee was the owner of more than 100 acres of land within municipal limits and enclosed by a compound wall.
The land was adjacent to a tank, had two wells in it, was capable of being used for agriculture, was assessed to land revenue as agricultural land, but had not been actually put to any non agricultural use.
The High COurt held that the land was 'agricultural land ' under section 2(e)(i) of the Wealth Tax Act, 1957 and exempt from wealth tax on the basis that, (1 ) the expres sion 'agricultural land ', not having been defined in the Act, must be given the widest possible meaning; (2) so interpreted, all land which is capable of being utilised for agricultural purposes would be 'agricultural land unless it is actually put to some non agricultural use like construc tion of buildings etc; and (3) the land has been assessed to land revenue as agricultural land under the State Revenue Law.
Allowing the appeal, HELD: It is only land, which either is being actually used or ordinarily used, or has been set apart or prepared for use for agricultural purposes so as to indicate the intention of the owner or occupier of the land to put it to agricultural use, that would be 'agricultural land '.
[156 A] (1 ) It is not correct to give.
the expression a wide meaning merely because the statute does not define it.
The correct rule is for the Court to endeavour to find out logically the exact sense in which the words have been used in a particular context, reading the statute as a whole, giving an interpretation in consonance with the purposes of the statute, and avoiding absurd results.
[153 A B] (2) The object of the Wealth Tax Act is to tax surplus ' wealth.
It is not all land but only 'agricultural land ' that is excluded from the definition of assets.
Therefore, it is imperative to give reasonable limits to the scope of the expression 'agricultural land '.
[153 C] (3) The determination of the, character of land, accord ing to the purpose for which it is meant or set apart and can be used, is a matter which ought to be determined on the facts of each particular case.
What is really required to be shown is the connection with an agricultural purpose and user, and not the mere possibility of user by some possible future.
owner or possessor.
for an agricultural purpose.
It is not the potentiality, but its actual condition and in tended user which has to be seen for purposes of exemption from wealth tax.
The correct test to apply would be to.
find out whether human labour had been applied to the land it self, in order to extract from its natural powers, added to or aided by other natural or artificial sources of strength, a product which can yield income.
If there is nothing in its condition, or in the evidence to indicate the intention of its owner or possessor, so.
as to connect it with an agricultural purpose, the land could not be agricultural land.
The person claiming that any property is exempt must satisfy the conditions of the exemption.
[155 G H] The extent of the land, its situation, that it was capable of being used for agricultural purposes and has not been actually put to any use which would make it unfit for immediate cultivation, .are, therefore, inconclusive being based on absence of user for non agricultural purpose.
Entries in revenue records are.
however, good prima facie evidence since they are based on some quasi judicial enquiry but they raise only a rebuttable presumption.
If such 147 pritma facie evidence was enough for the assessee to dis charge his burden to establish an exemption, evidence to rebut it should have been led on behalf of the Department.
In the present case, however, the High Court relied not only on the entries, but also on the inconclusive circumstances based on potentialities.
While doing so, the High Court did not hold that categorical finding of the taxing authorities and Tribunal that the land was never used, nor was intended to be used for an agricultural purpose did not rest on any evidence at all; nor did it give any reasons for rejecting the finding.
it is therefore a fit case for being remanded to the Tribunal for deciding the question of fact, after giving opportunity to both sides to adduce evidence.
[155 B E] C.I.T.W.
Bengal vs Raja Benoy Kumar (1957) I.T.R. 466, followed.
Sarojini Devi vs Raja Sri Krishno A.I.R. 1944 Mad. 401, overruled.
|
TION: Criminal AppealNo.
21 of 1976.
(From the judgment and Order dated 20 8 1975 of the High Court of Madhya Pradesh in Misc.
Criminal Case No. 1010/75).
B. Sen, Mrs. A.K. Verma, 1.
B. Dadachanji, O.C. Mathur and R. Narain, for the appellant.
Nemo, for the respondents.
The Judgment of the Court was delivered by RAY, C.J.
This is an appeal under section 19(1)(b) of the referred to as the Act against the order dated 20 August,.
1975 of the High Court at Jabalpur convicting the appellant and sentencing him to suffer imprisonment till the rising of the Court under section 4 of the Act and to pay a fine of Rs. 100/ .
The High Court however accepted the apology of the appellant for the purpose of remitting the punishment under the proviso to section 12(1) of the Act and remitted the sentence and ordered the appellant to pay the paper book costs and to bear his own costs.
The appellant is a District Magistrate of District Rajnandgaon in Madhya Pradesh.
A detenu Vidya Bhushan Thakur challenged in the High Court by way of a habeas corpus petition the validity of his detention order passed by the appellant under section 3(1 )(a) of the .
On 1 August, 1975 the High Court directed the production of the detenu in court on 8 August, 1975.
On 5 August, 1975 the appellant received a telegram from the office of the Advocate General, Madhya Pradesh intimating the appellant the order of the High Court to produce the detenu Vidya Bhushan Thakur before the High Court on 8 August, 1975 in connection with the habeas corpus petition.
Immediately on receipt of the telegram from the office of the Advocate General the appellant communicated the same to the Superintendent, Central Jail, Raipur directing him to send the detenu to 100 Jabalpur under strong guard for his production before the High Court on 8 August, 1975.
The order was communicated to the Superintendent, Central Jail Raipur on the same day and accordingly the Superintendent, sent the detenu on 6 August, 1975 at 5.35 p.m. to Jabalpur and thereafter the detenu was duly produced in Court on 8 August, 1975.
The State Government had passed an order under section 268 of the Criminal Procedure Code which was published in the Official Gazette on 1 August, 1975.
The appellant referred the matter to the Home Secretary for clarification of .the notification vide a wireless message dated 6 August, 1975 as to whether the detenus under the are to.
be produced before the High Court in connection with the,habeas corpus petitions.
The appellant also spoke to the Government Advocate on 6 August 1975 and brought to his notice the above notifica tion of the State Government.
The Government Advocate in formed the appellant on telephone, that neither the Advocate General nor the ,High Court had so far received a copy of the said notification.
The appellant then informed the Government Advocate that he would be sending a copy of the said notification by wireless for information.
The appel lant despatched the wireless message to the Government AdVocate at Advocate General 's address quoting the notifica tion as received from the Government.
The wireless message quoted the.
notification and the request of the appellant to the Advocate General was as follows : "In the light of above Government Notifica tion he was requested to request the Court not to insist on the production of Vidya Bhushan Thakur as there is strong possibility of disturbance of public order if Vidya Bhusban Thakur is taken out from jail.
Kindly inform the Government regarding the action taken.
" On 6 August, 1975 after the telephonic conversation with the Government Advocate, the appellant again directed the Superintendent, Central Jail, Raipur to produce the detenu before the High Court on the date of hearing and informed the Advocate General that the detenu would be produced before the High COurt and the detenu was in fact produced before the Court.
The High Court took the view that the wireless message dated 6 August, 1975 addressed to the Advocate General with a copy to the.
Registrar of the High CoUrt amounted to an expression by the appellant of his inability to obey the order of the Court on account of the notification issued by the State Government published in the Official Gazette on 1 August, 1975.
The High Court ordered the appellant to show cause why he should not be committed for contempt in exer cise of the ' powers of the Court under Article 215 of the Constitution read with section 10 of the Act.
The appellant appeared before the High Court on 13 August, 1975.
The case was adjourned to 14 August, 1975 to enable the filing of a reply which was submitted in the form of an affidavit together with some enclosures.
The appel lant pleaded for the discharge of Rule 101 Nisi on the ground that no contempt of court was committed and that wireless message to the Advocate General did not constitute a contempt of court.
The High Court by order dated 20 August, 1975 found the appellant guilty of contempt by holding that the appellant had sent the wireless message dated 6 August, 1975 without waiting for reply from the State Government regarding the clarification of its Notification.
The appellant on 6 August, 1975 referred to the Home Secretary for clarification of the notification dated 1 August, 1975.
The appellant sent a copy of the notification to the Advocate General.
The appellant also directed the Superintendent, Central Jail, Raipur to produce the detenu before the Court.
The detenu in fact was pro duced before the High Court.
All these features indicate that the appellant throughout acted in a careful and re sponsible manner.
The reply of the Government to the clarification asked for by the appellant on 6 August, 1975 was received on 8 August, 1975, that is to say two days after the wireless message had been sent to the Advocate General.
The clarifi cation message of the Government reached the appellant in the afternoon of 8 August, 1975, viz., the date on which the detenu was to have been produced in court.
The State Govern ment in the note clarifying the position informed the appel lant that in case the appellant was advised to produce the detenu before the High Court and if the High Court insisted on such production the High Court should be informed well before the date on which the detenu is to be produced by an affidavit sworn by an officer in charge that there is danger to public order if the detenu as produced.
It appears that the appellant had acted just as the Government clarification suggested.
The appellant gave the notification to the Advocate General because the latter did not have it and asked for it.
The appellant asked for clarification from the State Government as to the notification because of the situation in which he was placed.
The appellant sent instructions to the Superintendent, Central Jail, Raipur to produce the detenu.
The detenu was produced before the High Court.
The appellant took all steps in good faith.
The appellant from the beginning gave directions for production of the detenu.
The High Court held that the affidavit of the appellant contained no reference to the telephonic talk with the Advocate General pursuant to which a telegram had been sent and therefore it was a false affidavit.
The High Court also held that sending a copy of the wireless message addressed to the Advocate General to the Registrar of the High Court for information amounted to an attempt to interfere with the order of the High Court.
The appellant sent a copy of the wireless message ad dressed to the Advocate General to the Registrar for infor mation only.
The appellant took all steps to produce the detenu even before the receipt of the clarification or advice by the State Government for production of the detenu before the High Court.
The appellant sent the wireless message to the Advocate General only to apprise him of the notification sent by the State Government.
The appellant sent that information inasmuch 102 as the Government Advocate had informed the appellant that neither the Advocate General nor the High Court was aware of the said notification issued by the State Government.
The appellant requested the Advocate General to request the Court not to insist on the production having regard to the public order which request was consistent with the direction of the State Government.
The absence of reference to the telephonic talk in the affidavit does not mean that no such talk in fact took place.
The appellant produced the telephone bill as well as the letter of the Advocate General to show that there was in fact a telephonic conversation.
The appellant communicated to the Advocate General in the discharge of his official duties the notification issued by the Government.
The appellant requested the Advocate General to request the High Court not to insist on the production.
The wireless.
mes sage was not addressed to the Court.
The original addressee was the Advocate General.
A copy was sent to the Registrar for information that such a telegram had been sent to the Advocate General.
The appellant tendered apology with grace and not as a coward.
The appellant produced the detenu.
The appellant at no stage interfered with any order of the High Court.
The appellant never showed any disobedience.
On the contrary the appellant acted in obedience to the order of the High Court.
The High Court accepted the apology for the limited purpose of remitting the punishment.
The order of the High Court cannot be sustaining in view of the tender of apology by the appellant as well as the production of the detenu.
The appeal is accepted.
The judgment and order of the High Court are set aside.
S.R. Appeal allowed.
| IN-Abs | Pursuant to telegraphic information dated 5 August 1975 received from the Advocate General, Madhya Pradesh, communi cating the directions of the Jabalpur Bench of the, High Court of Madhya Pradesh dated 1 August 1975, for the produc tion of a detenu held under section 3(1)(a) of the MISA 1971 in the court on 8 August 1975; the appellant, a district Magistrate, instructed the Superintendent, Central Jail, Raipur, to send the detenu to Jabalpur under strong guard for his production before the High Court on 8 August 1975.
The detenu was duly produced in court on 8 August 1975.
While seeking a clarification from the Home Secretary, on the order passed by the State Government under section 268, Criminal Procedure Code, which was gazetted on 1 August 1975, as to whether the detenu, under the MISA is to be produced before the High Court in connection with the habeas corpus petition, the appellant also spoke to the Government advocate and the Advocate General about the notification.
Since they desired the copy of the notification, the appel lant despatched a wireless message to Advocate General as follows "In the light of the above notification, he was requested to request the court not to insist on the production of VBT as there is strong.
possibility of disturbance of public order if VBT is taken out from jail.
Kindly inform the Government regarding the action taken.
" A copy of the wireless message was endorsed to the respond ent by 'way of abundant caution.
Viewing this as amounting to an expression by the appellant of his inability to obey the order of the. court on account of the notification issued by the State, Government published in the official gazette on 1 August 1975, the High Court, in exercise of the powers of the court under article 215 of the Constitution read with section 10 of the Contempt of Court Act (Act No. 70 of 1971) ordered the appellant to show cause why he should not be committed for contempt, for which the appellant submitted his reply in the form of an affidavit pleading for the discharge of rule nisi on the ground that no contempt of court was committed and that the wireless message to the Advocate General did not constitute a contempt of court.
The High Court found the appellant guilty for contempt by holding that the appellant had sent the wireless message dated 6 August 1975 without waiting for the reply from the State Government regarding the clarification of its notifi cation, and convicted the appellant and sentenced him to.
suffer imprisonment till the rising of the court under section 4 of the Contempt of Court Act 1971 and to pay a fine of Rs. 100/ .
The High Court, however, accepted the apology of the appellant for the purpose of remitting the punishment under the proviso to section 12(1) of the Act and remitted the sentence and ordered the appellant to.
pay the paper book costs and to bear his own costs.
Hence the appeal under section 19(1)(b) of the Act.
Accepting the appeal to this Court, HELD: The order of the High Court cannot be sustained in view of the tender of apology by the appellant as well as the production of the detenu.[102 D] All these features, namely, referring to the Home Secre tary for clarification of the notification dated 1 August 1975, sending a copy of the said notification 99 to the Advocate General, directing the Superintendent, Central Jail, to produce the detenu before the court and the detenu, in fact, having been produced before the High Court indicate that the appellant throughout acted in a careful and responsible manner and took all steps in good faith.
[101 B CF] HELD FURTHER: In the instant case, the appellant from the.
beginning gave directions for production of the detenu.
wireless message was not addressed to the court, but to the Advocate General, only to apprise him of the notifica tion sent by the State Government so that a request may be made to the court not to insist on the production of the detenu in the interest of public order.
The copy thereof to the Registrar is for information only.
The absence.
of reference to the.
telephonic talk in the affidavit does net mean that no such talk in fact took place.
The appellant tendered apology with grace and not as a coward.
The appel lant at no stage interfered with any order of the High Court.
The appellant never showed any disobedience.
On the contrary, the appellant acted in obedience to the order of the High Court.
[101 F, G H, 1012 A D]
|
Appeal No. 104 of 1970.
(From the Judgment and Order dated 23 10 1967 of the Patna High Court in Civil Writ Jurisdiction Case No. 299/66).
L.M. Singhvi, U.P. Singh and S.N. Jha, for the Appellant.
Sarjoo Prasad and U.S. Prasad, for the Respondent.
The Judgment of the Court was delivered by KHANNA, J.
The short question which arises for determi nation in this appeal on certificate by Damodar Valley Corporation against the judgment of Patna High Court dis missing the writ petition filed by the appellant is whether the appellant is liable to pay electricity duty under Bihar Electricity Duty Act,, 1948 as amended by Bihar Electricity Duty (Amendment) Act, 1963.
The High Court answered the question in the affirmative against the appellant.
The appellant is a corporation established under the for the development of the Damodar Valley in the States of Bihar and West Bengal.
One of the functions of the appellant is the promotion and operation of schemes for the generation, transmission and distribution of hydroelectric and thermal electrical energy.
Bihar Electricity Duty Act, 1948 (Bihar Act 36 of 1948) (hereinafter referred to as the principal Act) was published in the Bihar gazette; on October 1, 1948.
It was an Act for the levy of duty on the sales and consumption of electrical energy in the province of Bihar.
Material part of sec tions.
3 and 4,.
as they stood before the amendment made in 1963, read as under: "3. Incidence of duty. (1) There shall be levied and paid to the: State Government on the units of energy consumed or sold, excluding losses of energy in the transmission and transformation, a duty at the rates specified in the First Schedule: Provided that no duty shall be leviable on units of energy : (i) . . (ii) . (iii) . (iv) . . 120 (v) consumed by, or in respect of, or sold for consumption in any (a) mine, as defined in the Indian Mines Act, 1923: (b) industrial undertaking; except to the extent specified in the Second Schedule: (vi). (2) . 4.
Payment of duty. ( I ) Every licensee shall pay every month to the State Government at the time and in the manner prescribed the proper duty payable under section 3 on the units of energy consumed by him or sold by him to the con sumer.
(2) Every licensee may recover from the amount which falls to be paid by the licensee as duty in respect of energy sold to the consumer.
(3). . (4) . (4a) . (5) .
The principal Act was amended by Bihar Electricity Duty (Amendment) Act, 1963 (Bihar Act 20.
of 1963) (hereafter referred to as the amending Act).
The amending Act received the assent of the President on December 4, 1963 and was published on December 17, 1963.
By section 2 of the amending Act, new section 3 was substituted for the old section 3.
Material part of new section 3 read as under: "3.
Incidence of duty.(1) Subject to the provision of sub section (2), there shall be levied and paid to the State Government on the units of energy consumed or sold, excluding losses of energy in transmission and transformation, a duty at the rate or rates specified in the Schedule.
(2) No duty shall be leviable on units of energy (a) . (b) . (c) . (d) . (e) consumed by the Damodar Valley Corporation for the generation, transmission or distribution of electricity by that Corporation; (f) . (3) . 121 Amendment was also made in the First Schedule of the principal Act.
The relevant part of the sched ule read as 'under : THE SCHEDULE (See section 3.) RATES OF DUTY A. For a mine or an industrial under Such rateor rates taking, save in respect of its not exceeding 2 naya premises used for residential or paisa per unit of office purpose energy as may, from time to time, be fixed by the State Govern ment with the previ ous consent of the President, by order in this behalf".
In the writ petition the appellant prayed for quashing three notices dated February 10, 1965 issued by the Superintendent of Commercial Taxes Giridih as also his orders dated March 24 and 29, 1966.
By the impugned notices the Superintendent of Commercial Taxes called upon the appellant to show cause as to why penal action under the princi pal Act as amended,, should not be taken against the appellant for having failed to get itself registered under that Act.
The appellant was also called upon to apply for registration.
By the impugned orders the Superintendent of Commercial Taxes directed.
the appellant to pay electricity duty under the: Act as amended.
The case of the appellant was that it enjoyed immunity from payment of tax under clause (1) of article 288 of the Constitution.
No law satisfying the requirement of clause (2) of article 288, it was contended, had been made warranting the levy of such a duty.
The High Court repelled this contention, and we find no sufficient ground to take a different view.
Article 288 of the Constitution reads as under: "288(1) Save in so far as the President may by order otherwise provide, no law of a State in force immediately before the comencement of this Constitution shall impose, or authorise the imposi tion of, a tax in respect of any water or electric ity stored, generated, consumed, distributed or sold by any authority established by any existing law made by Parliament for regulating or develop ing any inter State river or river valley.
Explanation.
The expression 'law of a State in force ' in this clause shall include a law of a State passed or made before the commencement of this Constitution and not previously repealed,, notwithstanding that it or parts of it may not be, then in operation either at all or in particular areas.
(2) The Legislature of a State may by law impose or authorise the imposition of, any such tax as is mentioned in clause ( 1 ), but no such law shall have any effect unless it has, after having been reserved for the consideration of the President, received his assent; and if any such law provides for the fixation of the rates and other incidents of such tax by means of rules or orders to be made under the law by any authority, the law shall provide for the previous consent of the President being obtained to the making of any such rule or order.
" 10 1003 SCI/76 122 Article 288 grants exemption from tax under any law of a State in respect of any water or electricity stored, gener ated, consumed, distributed or sold by any authority estab lished by any existing law or any law made by Parliament for regulating or developing any inter State river or river valley, except in certain cases.
According to clause (1) of the article, this exemption would not be available in respect of such tax imposed under any law of a State in force immediately before the commencement of the Constitu tion if the: President by order so provides.
Although the principal Act is a pre Constitution law, being an Act of 1948, no order was admittedly made by the President with drawing the exemption in respect of the appellant from levy of such, tax under the principal Act.
Indeed, there was no question of issue of any such order because the principal Act did not provide for the imposition of electricity duty upon a corporation like the appellant.
Clause (v) of the proviso.
to sub section (1 ) of section 3 of the principal Act expressly stated that no duty shall be leviable on units of energy consumed by, or in respect of, or.
sold for con sumption in any mine, as defined in the Indian Mines Act, or industrial undertakings, except to the extent specified in the Second Schedule.
The appellant is admittedly an industrial undertaking, and as such, was not liable.
to pay electricity duty under the principal Act.
The case of the respondentS is that the bar to the levy of the said duty was removed and the levy of the duty on the appellant was, put on a sound legal basis as a result of the amendment made.
in the principal Act by the amending Act of 1963.
The amending Act, we find, satisfies the require ments of clause (2) of article 288.
According to that clause, the legislature of a State may by law impose, or authorise the imposition of, any tax mentioned in clause (1) of that article, but no such law shall have any effect unless it has, after having been reserved for the consider ation of the President, received his assent; and if any such law provides for the fixation of the rates and other inci dents of such tax by means of rules or orders to.
be made under the law by any authority,, the law shall provide for the previous consent of the President being obtained to the making of any such rule or order.
The amending Act of 1963, as already mentioned, received the assent of the President before its publication.
The exemption which was granted to mines and industrial undertakings from payment of elec tricity duty under the principal Act was withdrawn under the amending Act, except to some extent with which we are not concerned.
The new schedule, substituted for the old sched ule by the amending Act, prescribed the rates of duty for mines and industrial undertakings, and it was provided that the rate of duty shall be such rate or rates not exceeding 2 naya paise per unit of energy as may, from time to time, be fixed by the State Government with the previous consent of the President, by order in this behalf.
It has been argued by Dr. Singhvi on behalf of the appellant that the scheme of article 288 is to grant general exemption from the levy of tax in respect of any water or electricity stored, generated, consumed, distributed or sold ' by any authority established by any, existing 123 law or any law made by Parliament for regulating or develop ing any inter State river or river valley.
If any law made by a State legislature, according to the submission, seeks the imposition of any such tax, such law should contain clear indication to that effect before it receives the assent of the President.
The amending Act of 1963, :ac cording to the learned counsel, did not contain any such indication.
This contention, in our opinion, is wholly devoid of force.
Under proviso (v) to section 3(1) of the principal Act, mines and industrial undertakings were exempt from levy of duty.
This exemption stood withdrawn as a result of, substitution of new section 3 for the old sec tion by the amending Act.
The new charging section 3 (1 ) roped in all industrial undertakings, including the Damodar Valley Corporation, for the purpose of levy of duty.
Clause (e) of sub section (2) of new section 3 which was introduced by the amending Act of 1963.
expressly granted exemption from levy of electricity duty on units of energy consumed by the appellant corporation for the generation, transmission or distribution of electricity by that corporation.
This provision.
containing express reference to the appellant corporation, clearly warrants the inference that in respect of units of energy not covered by clause (e) of sub section (2) of section 3 the exemption would not be available to the appellant.
The contention advanced on behalf of the appel lant that the amending Act did not contemplate or contain indication regarding the imposition of electricity duty upon the appellant is plainly untenable, for it would have the effect of Tendering clause (e) of sub section (2) of sec tion 3 to be wholly redundant.
The courts, it is well settled, should be loath to accept an argument which would have the effect of rendering redundant the provision of a statute.
Lastly, it has been argued that though there has been an amendment of section 3 of the principal Act by its substitu tion by a new section under the amending Act of 196.3, there has been no amendment of section 4 with the assent of the President.
As such, no liability to pay electricity duty can be fastened upon the appellant.
This submission too is bereft of force.
Section 3, as inserted by the 'amending Act of 19 '63, is the charging section.
According to clause (1) of that section, subject to the provision of sub section (2), there shall be: levied and paid to the State Government on the: 'units of energy consumed or sold, excluding losses of energy in transmission and transformation, a duty at the rate or rates specified in the Schedule.
The section thus deals with the incidence of duty, and makes it clear that such duty h.as.
to be paid on the units of energy consumed or sold and at the rate or rates specified in the schedule.
It is further made clear by the section that the duty is to be levied and paid to the State Government.
As the duty is to.
be levied on the units of energy consumed or sold, it would follow that the duty would have to be paid by the consumer or seller,, as the case may be.
Section 4 of the principal Act merely provides for the manner and mode of payment of the duty, and we find no substance in the conten tion that unless section 4 of the principal Act was also re enacted with the assent of the President, the liability for payment of duty cannot be fastened upon the appellant.
124 What is required by clause (2) of article 288 is that the law made by the State legislature for imposing or authorising the imposition of tax mentioned in clause (1) shall have effect only if after having been reserved for the consideration of the President, it receives his assent.
Another requirement of that clause is that if such law provides for the fixation of the rates and other incidents of such tax by means of rules or orders to be made under the law by any authority, the law shall. provide for the previ ous consent of the President being obtained to the making of any such rule or order.
It is, however, not the effect of that Clause that even if the above mentioned two require ments are satisfied, the provisions which merely deal with the mode and manner of the payment of the aforesaid tax should also receive the assent of the President and that in the absence of such assent, the provisions.
dealing with the incidence of tax, which have received the assent of the President, would remain unenforceable.
Some other aspects were also dealt with by the High Court, but in the light of the view we have taken in the matter, it is not necessary to deal with those aspects.
The appeal consequently fails and is dismissed but in the circumstances without costs.
P.B.R. Appeal dis missed.
| IN-Abs | The proviso (v) to section 3(1) of the Bihar Electricity Duty Act, 1948 provided that no duty shall be leviable on units of energy consumed by, or in respect of, or sold for con sumption in any mine or industrial undertaking except to the extent specified in the Second Schedule.
In 1963 section 3 of the Act was amended and a new section 3 was.
substituted for the old section 3.
Sub section (2)(e) of the new section states that no duty shall be leviable on units of energy consumed by the Damodar Valley Corporation for the generation, trans mission or distribution of electricity by that Corporation.
Item A of the First Schedule, as amended in 1963 states that for a mine or an industrial undertaking the duty leviable shall be at such rate or rates not exceeding 2 naya paise per unit of energy fixed by the State Government with, the previous consent of the president.
The Amending Act re ceived the assent of the President.
In response to notices issued by the Superintendent of Commercial Taxes calling upon the appellant to pay elec tricity duty under the Act as amended, the appellant contended that it enjoyed immunity from payment of tax under cl.
(1) of article 288 of the Constitution, no law satisfying the requirement of cl.
(2) of article 288.
having been made.
warranting the levy of such duty.
The High Court dismissed the appellant 's writ petition.
Dismissing the appeal to this Court, HELD: (1) What is required by cl.
(2) of article 288 is that the law made by the State legislature for imposing, or authorising the imposition of tax mentioned in cl.
(1) shall have effect only if (i) after having been reserved for the consideration of the President, it receives his assent, and (ii) that if such law provides for the fixation of the rates and other incidents of such tax by means of rules or orders to be made under the law by any authority, the law shall provide for ,the previous consent of the, President being obtained to the making of any such rule or order.
It is, however, not the effect of that clause that even if these two requirements are satisfied, the provisions which merely deal with the mode and manner of the payment of the tax should also receive the assent of the President and that in the absence of such, assent, the provisions dealing with the incidence of tax, which have received the assent of the President, would remain unenforceable.
[123 H; 124 A B] (2) The contention of the appellant that the amending Act did not contemplate or contain any indication regarding the, imposition of electricity duty upon the appellant is plain ly, untenable, for it would have the effect of rendering section 3(2)(e) to be wholly redundant.
Under proviso (v) to section 3(1) of the Principal Act, mines and industrial undertakings were exempt from levy of duty.
This exemption stood with drawn as a result of substitution of new section 3 for the old section by the amending Act.
The new charging section 3(1) roped in all industrial undertakings, including the Damodar Valley Corporation, for the purpose of levy of duty.
Section 3(2)(e), introduced by the Amending Act of 1963, expressly granted exemption from levy of electricity duty on units of energy consumed by the appellant for the, generation, transmission or distribution of electricity by that Corpora tion.
This provision, containing express reference to the appellant Corporation, dearly warrants the inference that in respect of units of energy not covered by section 3(2)(e) the exemption would not be available to the appellant.
[123 A B] 119 (3) There is no substance in the contention that unless section 4 of the principal Act was also re enacted with the assent of the President, the liability for payment of duty cannot be fastened upon the appellant.
Section 3 of the Amending Act which deals with the incidence of duty makes it clear that such duty has to, be paid on the units of energy consumed or sold and at the rate or rates specified in the schedule.
As the duty is to be levied on the units of energy consumed or sold, it would follow that the duty would have to be paid by the consumer or seller as the case may be.
Section 4 of the.
principal Act merely provides for the manner and mode of payment of the duty.
[123 F G]
|
Appeal No. 488 of 1975.
(Appeal by Special Leave from the Judgment and Order dated 24 9 1973 of the Calcutta High Court in Appeal from Original Order & No. 335/73).
172 Hardayal Hardy, for appellant No. 1.
K. Sen, S.K. Mehta, M. Qamaruddin and P.N. Puri, for respondent No. 2.
S.C. Manchanda, P.L. Juneja and S.P. Nayar, for respondents.
The Judgment of the Court was delivered by GUPTA, J.
The first appellant, performing Right Society Limited, (hereinafter called the Society) is a company incorporated under the (English) Companies Acts, 1908 and 1913, having its registered office at Copyright House, 33 Margaret Street, Cavendish Square, London a company limited by guarantee and having no share capital.
The Society is an association of composers, authors and publishers of copy right musical works established to grant permission for the performing right in such works. 'Performing right ' means the right of performing in public, broadcasting and causing to be transmitted to subscribers to a diffusion service, in all parts of the world.
The members of the Society are required to assign to the Society the performing right in their works, and the Society exercises and enforces on their behalf all rights and remedies in respect of any exploita tion of such works.
The Society collects royalties for the issue of licences granting such permission and distributes the royalties to the members of the society, namely, the composers, authors, music publishers and other persons having an interest in the copyright in proportion to the extent to which a member 's work is publicly performed or broadcast after a pro rata deduction of the expenses.
Arti cle 43 of, the Articles of Association of the Society pro vides that the business and operations of the Society shall be conducted and managed by a General Council, and Article 48 authorises the General Council to apply the receipts also for certain other purposes.
Article 48 reads as follows: "48.
The General Council may, before making any distri bution among the Members: (a) Apply out of the receipts such sums as it thinks proper or has agreed to contribute as : (i) Gratuities, donations, pensions and emolu ments to any Member or ex Member of the Society or any person at any time in the employment of the Society, or engaged in any business acquired by the Society, and the 'wives, widows, families and dependants of any such person; (ii) Contributions to any benevolent, pension or similar fund which may be established for the benefit of Members, ex Members or employees of the Society or their wives, widows, families or depend ants .
(b) Set aside out of the receipts such sums as it thinks proper as subscriptions, donations, loans, gifts other payments for any of the purposes for which powers is given by paragraphs (iii) and (iv) of Clause 3(f) of the Memorandum of Association, provided 173 that without the assent of the Society in General Meeting the aggregate of all such payment shall not in any one year exceed the sum of one thousand pounds and four thousand pounds 'under the provi sions of those paragraphs respectively.
(c) Set aside out of the receipts such sums as it thinks proper as a reserve fund to meet contingen cies, or for future distribution, or for repairing, improving and maintaining any of the property or premises of the Society and for such other purposes as the General Council shall in its absolute dis cretion think necessary or conducive to the inter ests of the Society, and may invest for the several sums so set aside in such investments as it may think fit, and from time to time deal with or vary such investments and dispose of all or any part thereof for the benefit of the Society, and may divide the reserve fund into such special funds as it thinks fit, and employ the reserve fund or any part thereof for the general purposes of the Socie ty, and that without being bound to keep the same separate from the other assets.
" On December 13, 1953 the Society entered into an agreement with the President of India owning and controlling broadcasting stations in India and organizing and conducting the same under the name of All India Radio (hereinafter referred to as the licensee) whereby the Society granted to the licen see the authority, (a) to broadcast from the licen see 's sound broadcasting stations in India all musical works included in the repertoire of the Society, and (b) to utilize, solely, for the pur pose of sound broadcasting as aforesaid, any origi nating performance of such musical works, irrespec tive of the source of such performance and the means whereby the such performance is conveyed to the point of broadcast transmission from the licen see 's stations.
The agreement was executed in England.
It may be stated here that previous to this agreement the parties had entered into a similar agreement in the year 1940.
The agreement of 1953 states that the licence granted thereby "shall be deemed to have come into force on April 1, 1949 and shall continue from year to year until determined by either party giving to the other three calendar months ' notice in writing to expire on March 31 in any year".
The agreement provides that the licensee shall send to the Society at its registered office in London, the lists of all musical works broadcast in each week during the term of the licence from each of the licensee 's main stations (Delhi, Bombay, Calcutta and Madras) and the external services, and requires the licen see to furnish a return after the first day of April every year during the period of licence, stating the agreegate number of hours occupied during the period ended on the previous 31st March, in broadcasting Western music from each of the licensee 's main and external Service Stations.
The agreement further provides that for the rights granted, the licensee will pay to the Society annually a sum calculated at the rate of 2 (Two pounds) per hour of broadcasting Western music from each of the licensee 's 174 main and external Service Stations and that such annual payments must be made to the Society in London.
The second appellant, M/s. Natsin India Private Limited is a private limited company incorporated under the (Indian) Companies .Act having its office at 26, Chowringhee Road, Calcutta.
The second appellant was appointed by the Society to be its lawful attorney in India by virtue of a power of attorney granted by the Society to the, second appellant in July, 1967.
As agent in India for the Society, the second appellant realises on its behalf royalties from cinema houses and other sources where music over which the Society has copyright is played in this country, and has, inter alia, the power to commence and prosecute suits and other proceedings, engage lawyers, and sign plaints, petitions etc.
Prior to July, 1967 the Society, a non resident company, used to file its returns of income before the Income tax Officer, Madras, through its former agent in India, M/s. Vernon and Company of Madras.
The royalties or fees realised from the licensee were not included in its returns for the assessment years 1947 48 to 1950 51.
Later, the .Income tax Officer, Madras, issued notices under section 34(1) of the Income Tax Act, 1922 and assessed the said income after deducting the proportionate administrative ex penses.
The appeals taken by Vernon and Company against the supplementary assessment orders for the aforesaid years were dismissed by the Appellate Assistant Commissioner, Madras.
The matter rested there and the Society had been paying tax on its income in India including the income from royal ties.
received from the licensee without objection until the assessment year 1967 68 for which the accounting year ended December 31, 1966.
In the said assessment year also the Income tax Officer, Companies Circle L(II), Madras by his order dated October 23, 1963 assessed the total income of the Society treating the income arising out of the agreement with the licensee as chargeable as was being done all these years.
Against this order of assessment, the Society through the second appel lant made a revisional application under section 264 of the Income Tax Act, 1961 (hereinafter re ferred to as the Act) to the Commissioner of In come tax, West Bengal, where the Society 's income tax file had been transferred in the meantime.
The Additional Commissioner of Income tax who dealt with the application dismissed the same by his order dated July 18, 1970.
The Society then moved a writ petition before the Calcutta High Court chal lenging the order of the Additional Commissioner of Income tax.
A rule nisi was issued on the petition by a learned Judge of the High CoUrt but ultimately the rule was discharged and the petition was dis missed.
On appeal by the Society, a Division Bench of the High Court affirmed the view taken by the learned single Judge and dismissed the appeal on September 24, 1973.
In this appeal by special leave the appellants question the correctness of that decision and challenge the order of assessment on two grounds: (1 ) the agreement between the Society and the Licensee having been executed in England and the royalties being also payable in England, the income out of this agreement is not liable to be taxed in India; 175 (2) the Society being under an obligation to distribute the income to its members, the royalties realised are not really the income of the Society.
The first point seems to be covered by the provi sions of section 5(2) (b) of the Act.
Section 5(2) reads as follows: "5.
Scope of total income: (1) x x x (2) Subject to the provisions of this Act, the total income of any previous year of a person who is a non resident includes all income from whatever source derived which (a) is received or is deemed to be received in India in such year by or on behalf of such person; or (b) accrues or arises or is deemed to accrue or arise t0 him in India during such year.
Explanation 1 .
Income accruing or arising outside India shall not be deemed to be received in India within the meaning of this section by reason only of the fact that it is taken into account in a balance sheet prepared in India.
Explanation 2.
For the removal of doubts, it is hereby declared that income which has been included in the total income of a person on the basis that it has accrued or arisen or is deemed to have accrued or arisen to him shall not again be so included on the basis that it is received or deemed to be received by him in India .
" The Society is a non resident company, and though it receives the income out of the agreement execut ed not in India but in England, the income undoubt edly accrues or arises in India.
On behalf of the appellants it was contended that the source of income was really the agreement which was entered into in England.
We do not think that the question as to the source of the income is relevant because subsection (2) of section 5 provides that all income "from whatever source derived" is to be included in the total income of the non resident assessee if the income accrues or arises in India during the relevant year.
Reference was also made to section 9 of the Act which enumerates the in comes that shag be "deemed to accrue or arise in India" though actually accruing elsewhere, to establish that the income in question could not be deemed to accrue or arise in India.
But the income in this case has in fact accrued in India and no question arises whether it should be "deemed" to accrue or arise in India. 'Whether a certain income accrued or arose in India within the meaning of section 5(2) is a question of fact "which should be looked at and decided in the light of commonsense and plain thinking" as the Calcutta High Court considering a similar question under section 4(1) 176 of the Income Tax Act, 1922 observed.(1) In the case before us the High Court and the income tax authorities considered it a hard matter of fact that the income derived from broadcast of copyright music from the stations of All India Radio arose in India.
In our opinion this was the correct view to take and we find no reason to differ from it.
The next question is whether the income from the royalties was the Society 's own income.
It was Contended on the authority of Raja Bejoy Singh Dudhuria vs Commissioner ofIncome Tax, Bengal,(") that the obligation to disburse the sum among its members diverted the income from the Society to the members, and it could not be called the income of the Society.
In Bejoy Singh Dudhuria 's case there was a decree of the court charging the appellant 's whole resources with a specific payment to his step mother, the Privy Council held that the decree had to that extent diverted his income from him and directed it to his step mother, and that to that extent what he received for her was not his income.
But where payments are made by the assessee after he has received the income as his, the position is different.
This was pointed out by the Judicial Committee in a later case, P.C. Mullick and another (Executors)v.
Commissioner of Income tax, Bengal,(1) where the executors in accordance with the directions in the will had paid Rs. 5,537/ to the person who performed the testator 's addya Sradh, and another sum of Rs. 1,25,000/ for pro bate duty out of the income of the estate.
It was held that this was not a case in which a portion of the income was by an overriding title diverted from person who would otherwise have received it as in Bejoy Singh Dudhuria 's case but it was "simply a case in which the executors having received the whole income of the estate apply a portion in a particular way pursuant to the directions of their testator, in whose shoes they stand".
The true test for the application of the rule of diversion of income by an overriding title has been explained by this Court in Commissioner l,come tax, Bombay City vs Sitaldas Tirathdas(4) "In our opinion, the true test is whether the amount sought to be deducted, in truth, never reached the assessee as his income.
Obligations, no doubt, there are in ever), case, but it is the nature of the obligation which is the decisive fact.
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, it 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 (1) In the matter of V. G. Every.
(1937) 5 I.T.R. 216 (Coskello J.) (2) (3) (4) (pp. 374 375).
177 a portion of one 's own 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.
" On the facts of the present case it is clear that the royalties payable by the licensee under the agreement are realised by the Society as its income; Article 48 of the Society 's Articles of Association puts the matter beyond doubt.
Out of the receipts are deducted the expenses and also such other sums as in the discretion of the General Council should be set aside for the purposes men tioned in Article 48.
This is a case where the assessee having received the income applies it in a particular way; it is not a case of diversion of income by an overriding charge.
The appeal is accordingly dismissed.
There will be no order as to costs.
P.B.R. Appeal dismissed.
| IN-Abs | The appellant Society which is an association of compos ers, authors and publishers of copyright musical works was incorporated under the English Companies Act, 1908 and 1913 with its registered office in London.
It collects royalties for the issue of licences, granting permission for performing right in the works of its members and distributes the royalties to its .members.
The Society entered into an agreement in England with the President of India by which it granted to the All India Radio (the licensee) authority to broadcast from its sound broadcasting stations in India the.
musical works of the Society.
Under the agreement the licen see had to pay in England annual licence fee payable to the Society.
The appellant contended (i) that the agreement between the appellant and the licensee having been executed in England and the royalties being also payable in England, the income out of this agreement was not liable to be taxed in India and (ii) the Society being under an obligation to distribute the income to its members, royalties realised are hot really income of the Society.
Rejecting the contentions, HELD: (1)(a) Whether a certain income accrued or arose in India within the meaning of section 5(2) is a question of fact "which should be looked at and decided in the light of commonsense and plain thinking.
" The Society is a non resident company and though it received the income: out of the agreement executed, not in India but England, the income undoubtedly accrued or arose.
in India.
[175H and F] (b) The question whether the agreement is the source of the income is not relevant because section 5(2) provides that all income "from whatever source derived" is to be included in the total income of the non resident assessee if the income accrues or arises in India during the relevant year.
The income in this case had infact accrued in India and by virtue of section 9 no question arises whether it should be "deemed" to.
accrue or arise in India.
[175 G] In the matter of V.G. Every: (19 '37) approved.
(2) Article 48 of the Society 's Articles of Association shows that the royalties payable by the licensee under the, agreement are realised by the Society as its income.
Out of the receipts are deducted the expenses and also such other sums as in the discretion of the General Council should be set aside for the purposes mentioned in that article.
This is a case where the assessee having received the income, applies it in a particular Way; it is not a case of diver sion of income by an overriding charge.
[177 C] Raja Bejoy Singh Dudhuria vs Commissioner of Income tax, Bengal , P.C. Mullick and another (Executors) vs Commissioner of Income tax, Bengal and Commissioner of Income tax, Bombay City vs Sitaldas Tirathdas (pp.
374 375) dis tinguished.
|
ivil Appeal Nos.
150 1542 of 1971.
(From the Judgment and Order dated 18 12 1969 of the Allahabad High Court in Income Tax Reference No. 328/64).
G.C. Sharma, P.L. Juneja and S.P. Nayar, for the Appel lant.
S.C. Manchanda, V.C. Prashar & Ujjal Singh, for the Respondent.
203 The Judgment of the Court was delivered by KHANNA, J.
These three appeals on certificate by the Commissioner of Income tax are against the judgment of the Allahabad High Court whereby the High Court answered the following question referred to it under section 66(1) of the Indian Income tax Act, 1922 (hereinafter referred to as the Act) in favour of the assessee respondent and against the revenue: "Whether in the facts and circumstances of the case, the assessee is entitled for each of the years under consideration to the exclusion from the income under the head 'property ' of an amount equal to the irrecoverable rent of the Grand Hotel property for one year which has not been so excluded in the preceding assessments ?" The matter relates to the assessment years 1957 58, 1958 59 and 1959 60.
The assessee is the owner of a build ing known as Grand Hotel in Civil Lines Delhi.
The income from this building was assessed from year to year under section 9 of the Act as income from property.
Subsequently there was a dispute between the assessee and her tenant.
Protracted litigation followed and ultimately a compromise was reached between the assessee and the tenant as per compromise deeds dated December 8, 1954 and July 9, 1955.
According to the assessee:, a total amount of Rs. 1,85,892 representing rent due on account of Grand Hotel became irrecoverable from the tenant.
At the time of the assessment year 1956 57 the assessee was able to secure deduction under item No. 38 of the Government of India notification No. 877F dated March 21, 1922 as regards unrealised rent in previous years.
The assessee made similar claims for deduction at the time of the assessment for the years 1957 58, 1958 59 and 1959 60.
The claim was not specifically made before the Income tax Officer but was made in appeal before the Appellant Assistant Commissioner.
The Appellate Assistant Commissioner declined to entertain the claim made at such a late stage.
When the matter went up before the Tribunal in further appeal, the Tribunal permitted the assessee to raise that point before it.
It was then urged on behalf of the department that in view of the deduction made for the assessment year 1956 57, no further deduction could be claimed by the assessee for the subsequent years.
This contention advanced on behalf of the department was not accepted by the Tribunal.
The Tribunal took the view that the claim could properly be made for the deduction in the assessment for the three years with which we ale con cerned in spite of the fact that such claim had been allowed in assessee 's favour in the year 1956 57.
On this view the Tribunal directed the Income tax Officer to compute the total rent which had become irrecoverable in respect of Grand Hotel property.
The Tribunal further directed that to the extent the irrecoverable rent had not been exempted in the previous assessment for 1956 57 should be exempted during the year under appeal in so far as income from property was concerned.
On application filed by the Commissioner of Income tax the question reproduced above was referred to the High Court.
The High Court, as stated above, answered the question in the affirmative in favour of the assessee.
204 In appeal before us Mr. Sharma on behalf of the appel lant has assailed the judgment of the High Court.
As against that, Mr. Manchanda on behalf of the assessee respondent has canvassed for the correctness of the view taken by the High Court.
Before dealing with the contentions advanced before us, it would be appropriate to refer to the relevant provisions on the subject.
Section 9 of the Act deals with tax pay able under the head "Income from property".
According to that section, the tax shall be payable by an assessee under the head "Income from property" in respect of the bona fide annual.
value of property consisting of any buildings or lands appurtenant thereto of which he is the owner, other than such portions of such property as he may occupy for the purposes of any business, profession or vocation carried on by him the profits c,f which are assessable to tax, subject to certain allowances.
These allowances have been speci fied in section 9, but for the purpose of present appeals it is not necessary to .refer to them. "Annual value" any property, for the purpose of section 9, shall, according to subsection (2) of that section, be deemed to be the sum for which the property might reasonably be expected to let from year to year.
Subsection (2) is followed by a number of provisos, but we are not concerned with them in these ap peals.
Section 60 of the Act empowers the Central Govern ment to make exemptions.
According to the section, the Central Government may, by notification in the Offi cial .Gazette,, make an exemption, reduction in rate or other modification, in respect of income tax in favour of any class of income, or in regard to the whole or any part of the income of any class of persons.
In exercise of the powers conferred by the above section the Central Government issued notification No. 878F dated March 21, 1922.
Item 38 of that notification reads as under: "The following classes of income shall be exempt from the tax payable under the said Act: (38) Such part of the income in respect of which the said tax is payable under the head 'property ' as is equal to the amount of rent payable for a year but not paid by a tenant of the assessee and so proved to be lost and irre coverable, where (a) the tenancy is bona fide; (b) the defaulting tenant has vacated or steps have been taken to compel him to vacate the property; (c) the defaulting tenant is not in occupation of any other property of the assessee; (d) the assessee has taken all reasonable steps to substitute legal proceedings for the recovery of the unpaid rent or satisfies the Income tax Officer that legal proceedings would be useless; and 205 (e) the annual value of the property to which the unpaid rent relates has been included in the assessee 's income of the year during.
which that rent was due and income tax has been duly paid on such assessed income.
" Section 9 of the Act makes provision for computation of income from property on a notional basis.
According to this section, the income shall be taken to be the bona fide annual value of the property.
In making the computation, certain allowances which are mentioned in section 9 would have to be deducted.
In case the property in question was in occupation of a tenant, the taxing authorities have, while computing the income from that property, to take: into account its bona fide annual value.
The questions to wheth er the tenant who was in occupation of the property has,.
in fact, paid the rent or not would not enter into considera tion at that stage, unless it be found that the rent due from the tenant has become irrecoverable.
The fact that the rent due from the tenant has become irrecoverable would in a majority of cases be known only in subsequent years and not in the year during which the tenant has remained in occupa tion.
None of the clauses dealing with allowances which are permissible under section 9 (1) of the Act deal with rent due from a tenant which remains irrecoverable.
It was to meet such an eventuality that exemption was granted as per item No. 38 in notification No. 878F dated March 21, 1922.
Item 38 exempts from payment of tax such part of the income in respect of which tax is payable under the head 'property ' as is equal to the amount of rent payable for a year but not paid by a tenant of the assessee and so proved to be lost and irrecoverable.
In order to claim the benefit of the above exemption, the assessee has also to show that the requirements of clause (a) to (e) of item 38 have been satisfied.
It was not disputed before the High Court that conditions mentioned in clauses (a) to (e) of item No. 38 had been fulfilled in the instant case.
The dispute between the parties centres on the point as to whether in the event of the amount of the irrecoverable rent being more than the amount of rent payable for a year, the assessee can claim the deduction only in one year equal to the amount of rent payable for a year, or whether the assessee can claim deduc tions for the balance of the irrecoverable rent in subse quent years also.
In other words, the question is whether in the event of the amount of irrecoverable rent being more than the amount of the rent payable for a year of the property, the assessee can claim the benefit of the exemp tion mentioned in item 38 only once or whether the assessee can claim the benefit of that exemption in successive years also till such time as.
the assessee gets relief in respect of the whole of the amount of irrecoverable rent.
Both the Tribunal and the High Court took the view that it would be permissible to claim the benefit of the exemption in succes sive years.
After hearing the learned counsel for the parties, we find no cogent ground to take a different view.
The language of item 38 which has been reproduced above shows that if other conditions.
are satisfied, the deduc tion which can be claimed by the assessee at an assessment cannot exceed the amount of 206 rent payable for a year.
The item thus places a limit in respect of the deduction which is permissible in an assess ment for one year.
In case, however, the amount of irrecov erable rent exceeds the amount of rent payable for a year, the right of the assessee to claim the benefit of the above exemption does not, in our opinion, get exhausted by his having claimed exemption in one year.
We land no cogent reason as to why the assessee should become disentitled to claim the benefit of the above exemption in respect of the balance of the irrecoverable rent in subsequent years sub ject to the condition that in no year the deduction would exceed the amount of rent payable: for a year.
the asses see, it has to be borne in mind, seeks exemption in respect of the notional rental income which he, in fact, never received but on which he had in terms of section 9 of the Act to pay tax.
The underlying object of the exemption granted by item 38 is that the assessee shall be entitled to claim deduction 'under the head 'property ' in respect of the notional rental income which, it subsequently so transpires, was never received by him but on which he had to pay tax.
Although item 38 fixes the limit of deduction which is permissible in one year, there is nothing in the language of that item to warrant the inference that the benefit of the exemption can be claimed only once.
There is also nothing in the language of that item to indicate that in respect of the balance of the irrecoverable rent, no relief is permissible even though tax on that balance amount too has been paid by the assessee.
It is well settled that there is no equity about tax.
if the provisions of a taxing statute are clear and unambiguous, full effect must be given to them irrespective of any consideration of equity.
Where however the provisions are couched in language which is not free from ambiguity and admits of two interpretations, a view which is favourable to the subject should be adopt ed.
The fact that such an interpretation is also in conso nance with ordinary notions of equity would further fortify the court in adopting such a course.
Mr. Sharma has invited our attention to the judgment of the Punjab High Court in the case of Daljit Singh v Commissioner of Income tax Delhi(1) wherein the Punjab High Court took a different view.
For the reasons stated above,.
we prefer the view taken by the Allahabad High Court in the judgment under appeal to that of the Punjab High Court in Daljit Singh 's case.
The appeal consequently fails and is dismissed with costs.
One hearing fee.
P.B.R. Appeal dis missed.
(1) 52 33.
| IN-Abs | While assessing the income of the assessee under the head 'property ' the Income Tax Authorities allowed for one year.
deduction of a part of a large sum of unrealised rent but rejected the claim for exclusion of the remainder during the three subsequent assessment years.
Before the Tribunal the authorities contended that no deduction could be claimed by the assessee for more than one assessment year.
The Tribu nal held that to the extent the irrecoverable rent had not been exempted in the previous assessment year, should be exempted in the subsequent years from the income from property of the assessee.
The High Court answered the refer ence in favour of the assessee.
Dismissing the appeal to this Court, HELD: There is no reason why the assessee should become disentitled claim the benefit of the exemption in respect of the balance of the irrecoverable rent in subsequent years subject to the condition that in no 'year the deduction would exceed the amount of rent payable for a year.
[206 B] Section 9 of the Indian Income Tax Act, 1922 provides for computation of income from property on a notional basis.
While computing the income from the property the tax Author ities have to take into account its bona fide annual value.
The fact that the rent due from the tenant had become irre coverable would be known only in subsequent years.
Section 9(1) of the Act does not deal with deductions in respect of irrecoverable rent.
Item 38 in Notification No. 878F dated March 21, 19.22 exempts from, payment of tax such part of the income in respect of which tax is payable under the head 'property ' as is equal to the amount of rent payable for a year but not paid by a tenant of the assessee and so proved to be lost and irrecoverable.
[205 B D] The underlying object of the exemption granted by item 38 is that the assessee shall be entitled to claim deduction under the head 'property ' in respect of the notional rental income which, it subsequently so transpires, was never received by him but on which he had to pay tax.
Although item 38 fixes the limit of deduction which is permissible in one year, there is nothing in the language of that item to warrant the inference that the benefit of the exemption can be claimed only once.
There is also nothing in the language of that item to indicate that in respect of the balance of the irrecoverable rent.
no relief is permissible even though tax on that balance amount too had been paid by the asses see.
[208 C D] Daljit Singh vs Commissioner of Income tax, Delhi, not approved.
|
Nos. 189 to 193 of 1955.
Petitions under Article 32 of the Constitution of India for the enforcement of Fundamental Rights.
G. section Pathak, (Rameshwar Nath and Rajinder Narain, with him) for the petitioners in Petition No. 189 of 1955.
Rameshwar Nath and Rajinder Narain, for petitioners in Petition No. 190 of 1955.
Sri Narain Andley and Rajinder Narain, for petitioners in Petitions Nos.
191 to 193 of 1955.
T. L. Shevde, Advocate General of Madhya Pradesh (I. N. Shroff, with him), for respondents in all petitions.
September 29.
This judgment will dispose of all the five petitions (Nos. 189 to 193 of 1955) which have been heard together and which raise the same question as to the constitutional validity of the C.P. & Berar Motor Vehicles (Amendment) Act, 1947 (Act III of 1948).
The facts are short and simple.
Each of the petitioners has been 'carrying on business as stage carriage operator for a considerable number of years under permits granted under section 58 of the (Central Act IV of 1939) as amended by the C.P. & Berar Motor Vehicles (Amendment) Act.$ 1947 (Act III of 1948).
Prior to the amendment section 58 of the Motor tVehicles Act, 1939 was in the following terms: "58(1).
A permit other than a temporary permit issued under section 62 shall be effective without renewal for such period, not less than three years and not more than five years, as the Regional Transport Authority, may in its discretion specify in the permit.
Provided that in the case of a permit issued or renewed within two years of the commencement of this Act, the permit shall be effective without renewal 75 for such period of less than three years as the Provincial Government may prescribe.
(2) A permit may be renewed on an application made and disposed of as if it were an application for a permit: Provided that, other conditions being equal, an application for renewal shall be given preference over new applications for permits".
It will be noticed that under the section as it originally stood the permit granted thereunder was for a period of not less than 3 years and not more than 5 years and a permit holder applying for renewal of the permit had, other things being equal, preference over new applicants for permit over the same route and would ordinarily get such renewal.
Very far reaching amendments were introduced by the C.P. & Berar Motor.
Vehicles (Amendment) Act, 1947 into the in its application to Central Provinces and Berar.
By section 3 of the amending Act, item (ii) of subsection (1) of section 43 of the Central Act was replaced by the following items: " (ii) fix maximum, minimum or specified, fares or freights for stage carriages and public carriers to be applicable throughout the province or within any area or any route within the province, or (iii)notwithstanding anything contained in section 58 or section 60 cancel any permit granted under the Act in respect, of a transport vehicle or class of such permits either generally or in any area specified in the notification: Provided that no such notification shall be issued before the expiry of a period of three months from the date of a notification declaring its intention to do so: Provided further that when any such permit has been cancelled, the permit holder shall be entitled to Such compensation as may be provided in the rules; or (iv)declare that it will engage in the business o road transport service either generally or in any area specified in the notification".
593 The following subsection (3) was added after subsection (2) of section 58 of the Central Act by section 8 of the amending Act, namely: "(3) Notwithstanding anything contained in subsection (1), the Provincial Government may order a Regional Transport Authority or the Provincial Transport Authority to limit the period for which any permit or class of permits is issued to any period less than the minimum specified in the Act".
Section 9 of the amending Act added after section 58 a new section reading as follows: "58 A. Notwithstanding.
anything herein before contained the Provincial Government may by order direct any Regional Transport Authority or the Provincial Transport Authority to grant a stage carriage permit to the Provincial Government or any undertaking in which the Provincial Government is financially interested or a permit holder whose permit has been cancelled under section 43 or any local authority specified in the order".
The result of these amendments was that power was given to the Government (i) to fix fares or freights throughout the Province or for any area or for any route, (ii) to cancel any permit after the expiry of three months from the date of notification declaring its intention to do so and on payment of such compensation as might be provided by the Rules, (iii) to declare its intention to engage in the business of road transport generally or in any area specified in the notification, (iv) to limit the period of the license to a period less than the minimum specified in the Act and (v) to direct the specified Transport Authority to grant a permit, inter alia, to the Government or any undertaking in which Government was financially interested.
It may be mentioned here that in the State of Madhya Pradesh there are two motor transport companies known as C. P. Transport Services Ltd., and Provincial Transport Co. Ltd., in which, at the date of these writ petitions, the State of Madhya Pradesh and the Union of India held about 85 per cent.
of the share capital.
Indeed, since the filing of these petitions the entire undertakings of these 594 companies have been purchased by the State of Madhya Pradesh and the latter are now running the services.
on some routes for which permits had been granted to them.
A cursory perusal of the new provisions introduced by, the amending Act will show that very extensive powers were conferred on the Provincial Government and the latter were authorised, in exercise of these powers, not only to regulate or control the fares or freights but also to take up the entire motor transport business in the province and run it in competition with and even to the exclusion of all motor transport operators.
It was in exercise of the powers under the newly added sub section (3) of section 58 that the period of the permit was limited to four months at a time.
It was in exercise of powers conferred on it by the new section 43 (1) (iv) that the Notification hereinafter mentioned declaring the intention of the Government to take up certain routes was issued.
It is obvious that these extensive powers were given to the Provincial Government to carry out and implement the policy of nationalisation of the road transport business adopted by the Government.
At the date of the passing of the amending Act (III of 1948) there was no such thing as fundamental rights of the citizens and it was well within the legislative competency of the Provincial Legislature to enact that law.
It has been conceded that the amending Act was, at the date of its passing, a perfectly valid piece of legislation.
Then came our Constitution on the 26th January 1950.
Part III of the Constitution is headed "Fundamental Rights" and consists of articles 12 to 35.
By article 19(1) the Constitution guarantees to all citizens the right to freedom under seven heads.
Although in article 19(1) all these rights are expressed in unqualified language, none of them, however, is absolute, for each of them is cut down or limited by whichever of the several clauses (2) to (6) of that article is applicable to the particular right.
Thus the right to practise any profession or to carry on any occupation, trade or business conferred by article 19(1)(g) was 595 controlled by clause (6) which, prior to its amendment to which reference will presently be made, ran as follows: "(6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it prescribes or empowers any authority to prescribe, or prevent the State from making any law prescribing or empowering any authority to prescribe, the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business".
The fundamental rights conferred by articles 14 to 35 are protected by the provisions of article 13 the relevant portions of which are as follows: "13.
(1) All laws in force in the territory of India immediately before the commencement of this "Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
(2)The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void" The amending Act (III of 1948) was, at the commencement of the Constitution, an existing law.
The new provisions introduced by the Act authorised the Provincial Government to exclude all private motor transport operators from the field of transport business.
Prima facie, therefore, it was an infraction of the provisions of article 19 (1) (g) of the Constitution and would be void under article 13(1), unless this invasion by the Provincial Legislature of the funda mental right could be justified under the provisions of clause (6) of article 19 on the ground that it imposed reasonable restrictions on the exercise of the right under article 19(1)(g) in the interests of the general 596 public.
In Shagir Ahmad vs The State of U.P. & Others(1) it was held by this Court that if the word "restriction" was taken and read in the sense of limitation and not extinction then clearly the law there under review which, like the amending Act now before us, sanctioned the imposition of total prohibition on the right to carry on the business of a motor transport operator could not be justified under article 19(6).
It was further held in that case that if the word "restriction" in clause (6) of article 19 of the Constitution, as in other clauses of that article, were to be taken in certain circumstances to include prohibition as well, even then, having regard to the nature of the trade which was perfectly innocuous and to the number of persons who depended upon business of this kind for their livelihood, the impugned law could not be justifled as reasonable.
In this view of the matter, there is no escape from the conclusion that the amending Act, in so far as it was inconsistent with article 19 (1) (g) read with clause (6) of that article, became, under article 13(1), void "to the extent of such inconsistency" and if there were nothing else in the case the matter would have been completely covered by the decision of this Court in that case.
On the 18th June 1951 however, was passed the Constitution (First Amendment) Act, 1951.
By section 3(1) of that Act for clause (2) of article,19 a new sub clause was substituted which was expressly made retrospective.
Clause (6) of article 19 was also amended.
That clause, so amended, now reads as follows: "(6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of, the general public, reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, (1) ; 597 (i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise".
It will be noticed that clause (6), as amended, was not made retrospective as the amended clause (2) had been made.
The contention of the respondents before us is that although the amending Act, on the authority of our decision in Shagir Ahmad 's case (supra), became on and from the 26th January 1950 void as against the citizens to the extent of its inconsistency with the provisions of article 19(1)(g), nevertheless, after the 18th June 1951 when clause (6) was amended by the Constitution (First Amendment) Act, 1951 the amending Act ceased to be inconsistent with the fundamental right guaranteed by article 19(1) (g) read with the amended clause (6) of that article, because that clause, as it now stands, permits the creation by law of State monopoly in respect, inter alia, of motor transport business and it became operative again even as against the citizens.
The petitioners, on the other hand, contend that the law having become void for unconstitutionality was dead and could not be vitalised by a subsequent amendment of the Constitution removing the constitutional objection, unless it was re enacted, and reference is made to Prof. Cooley 's work on Constitutional Limitations, Vol.
I, p. 384 Note referred to in our judgment in Shagir Ahmad 's case (supra) and to similar other authorities.
The question thus raised by the respondents, however, was not raised by the learned Advocate General in that case, although the notification was published by the U. P. Government on the 25th March 1953 and the proposed scheme was published on the 7th April, 1953, i.e., long after the Constitution (First Amendment) Act, 1951 had been passed.
This question was not considered by this Court in Shagir Ahmad 's case, for it was there conceded (see p. 720 of the report) that the validity of the U. P. Act which, in this res 598 pect, was similar to the C. P. '& Berar Act now under consideration.
, was not to be decided by applying the provisions of the amendea clause (6).
Nor was this problem raised before or considered by this Court in Behram Khurshed Pesikaka vs The State of Bombay(1) We, therefore, conceive it to be open to us to go into the new question that has now been mooted before us and to consider what effect the amended clause (6) has on the impugned Act.
This involves a question of construction of article 13 of the Constitution.
The meaning to be given to the word "void" in article 13 is no longer res integra, for the matter stands concluded by the majority decision of this Court in Keshavan Madhava Menon vs The State of Bombay(1).
We have to apply the ratio decidendi in that case to the facts of the present case.
The impugned Act was an existing law at the time when the Constitution came into force.
That existing law imposed on the exercise of the right guaranteed to the citizens of India by article 19 (1) (g) restrictions which could not be justified as reasonable under clause (6) as it then stood and consequently under article 13 (1) that existing law became void "to the extent of such inconsistency".
As explained in Keshavan Madhava Menon 'section case (supra) the law became void not in toto or for all purposes or for all times or for all persons but only "to the extent of such inconsiatency", that is to say, to the extent it became inconsistent with the provisions of Part III which conferred the fundamental rights on the citizens.
It did not become void independently of the existence of the rights guaranteed by Part III.
In other words, on and after the commencement of the Constitution the existing law, as a result of its becoming inconsistent with the provisions of article 19(1)(g) read with clause (6) as it then stood, could not be permitted to stand in the. way of the exercise of that fundamental right.
Article 13(1) by reason of its language cannot be read as having obliterated the entire operation of the inconsistent law or having wiped it out altogether from (1) (1955] 1 S.C.R. 613.
(2) ; 599 the statute, book.
Such law existed for all past tran sactions and for enforcement of rights and liabilities accrued before the date of the Constitution, as was held in Keghavan Madhava Menon 's case.
The law continued in force, even after the commencement of the Constitution, with respect to persons who were not citizens and could riot claim the fundamental right.
In short, article 13(1) had the effect of nullifying or rendering the existing law which had become inconsistent with article 19(1) (g) read with clause (6) as it then stood ineffectual, nugatory and devoid of any legal force or binding effect only with respect to the exercise of the fundamental right on and after the date of the commencement of the Constitution.
Therefore, between the 26th January 1950 and the 18th June 1951 the impugned Act could not stand in the way of the exercise of the fundamental right of a citizen under article 190(1) (g).
The true position,is that the impugned law became, as it were, eclipsed, for the time being, by the fundamental right.
The effect of the Constitution (First Amendment) Act 1951 was to remove I the shadow and to make the impugned Act free from all blemish or infirmity.
If that were not SO.
, then it is not intelligible what "existing law" could have been sought to be saved from the operation of article 19(1)(g) by the amended clause (6) in so far,as it sanctioned the creation of State monopoly, for, ex hypothesi, all existing laws creating such monopoly had already become void at the date of the commencement of the Constitution in view of clause (6) as it then stood.
The American authorities refer only.
to post Constitution laws, which were inconsit tent with the provisions of the Constitution.
Such laws never came to life but were still born as it were The American authorities, therefore, cannot full apply to pre Constitution laws which were perfectly valid before the Constitution.
But apart from this distinction between re Constitution and post Constitution laws on which, however, we need not rest on decision, it.
must, be held that these American authorities can have no application to our Constitution All laws, existing or future, which are inconsistent 76 with the provision s of Part III of our Constitution are by the express provision of article 13, rendered void "to the extent of such, inconsistency".
Such 'laws were not dead for all purposes.
They existed for the purposes of pre Constitution tights and liabilities and they remained operative, even after the Constitution, as against non citizens.
It is only as against the citizens that they remained in a dormant or moribund condition.
In our judgment, after the amendment of clause (6) of article 19 on the 18th June 1951, the impugned Act ceased to be unconstitutional and became revivified and enforceable against citizens as well as against non citizens.
It is true that as the amended clause (6) was not made retrospective the impugned Act could have no operation as against citizens between the 26th January 1950 and the 18th June 1951 and no rights ' and obligations could be founded on the provisions of the impugned Act during the said period whereas the amended clause (2) by reason of its being expressly made retrospective had effect even during that period.
But after the amendment of clause (6) the impugned Act immediately became fully operative even as against the citizens.
The; notification declaring the intention of the State to take over the bus routes to the exclusion of all other motor transport operators was published on the 4th February 1955 when it was perfectly constitutional for the State to, do so.
In our judgment the contentions put forward by the respondents as to the effect of the Constitution (First Amendment) Act, 1951 are well, founded and the objections urged against them by the petitioners are untenable and must be negatived.
The petitioners then contend that assuming that one impugned Act cannot be questioned on the ground of infringement of their fundamental right under article 19(1)(g) read with clause (6) of that article, there has been another infraction of their fundamental right in that they have been deprived of their property ' namely, the right to ply motor vehicle ' s for gain which is an interest in a commercial undertaking and, therefore, the impugned Act does Conflict with the provisions of article 31 (2) of the Constitution and 601 again they rely on our decision in Shagir Ahmad 's case.
Here, too if there were nothing else in the case this contention may have been unanswerable.
But unfortunately for the petitioners there is the Constitution (Fourth Amendment) Act, 1955 which ' came into farce on the 27th April 1955, By section 2 of that Act article 31 of the Constitution was amended and for clause (2) of that article the following clauses were substituted: "(2) No property shall be compulsorily 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 mariner in which the compensation is to be determined and given; and no such law shall be called in question in any :court on the ground that the compensation provided by that law is not adequate.
(2 A) 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".
Article 31 A of the Constitution was also amended.
There can be no question that the amended provisions, if they apply, save the impugned law, for it does not provide for the transfer of the ownership or right to possession of any property and cannot, there, fore, be deemed to, provide for the compulsory acquisition or requisitioning of any property.
But the petitioners contend, as they did with regard to the Constitution (First Amendment) Act, 1951, that these amendments which came into force on the 27th April 1955 are not retrospective and can have no application to the present case.
It is quite true that the impugned AN became inconsistent with article 31 as soon as the Constitution came into force on the 26th January 1950 as held by this Court in Shagir Ahamad 's case (supra) and continued to be so inconsistent right 602 up to the 27th April 1955 and therefore, under article, 13(1) became void "to the extent of such inconsistency ".
Nevertheless, that inconsistency was removed on and from the 27th April 1955 by the Constitution (Fourth Amendment) Act, 1955.
The present writ petitions were filed on the 27th May 1955, exactly a month after the Constitution (Fourth Amendment) Act.
1955 came into force, and, on a parity of reasoning here in before mentioned, the petitioners cannot be permitted to challenge the constitutionality of the impugned Act on and from the 27th April 1955 and this objection also cannot prevail.
Learned counsel for the petitioners sought to raise the question as to the invalidity of the impugned Act even before the advent of the Constitution.
Prior to the Constitution, when there were no fundamental rights, section 299 of the Government of India Act, 1935 which corresponds to article 31 had been construed by the Federal Court in Rao Bahadur Kunwar Lal Singh vs The Central Provinces and Berar(1) and in other cases referred to in Rajah of Bobbili vs The State of Madras(2) and it was held by the Federal Court that the word "acquisition" occurring in section 299 had the limited meaning of actual transference of ownership and not the wide meaning of deprivation of any kind that has been given by this Court in Subodh Gopal Bose 's case(3) to that word acquisition appearing in article 31(2) in the light of the other provisions of the Constitution. ' It is, therefore, not clear at all that the impugned Act was in conflict With section 299 of the Government of India Act,1935.
Besides, this objection was not taken or even hinted at in the petitions and cannot be permitted to be raised at this stage.
The result, therefore, is that these petitions must be dismissed.
In the circumstances of this case we make no order as to costs.
(1) [1944]F.C.R. 284.
(2) , 193 194".
| IN-Abs | The petitioners who carried on their business as stage carriage operators of Madhya Pradesh for a considerable number of years challenged the constitutional validity of the C.P. & Berar Motor Vehicles (Amendment) Act, 1947 (Act III of 1948) which amended the (Central Act IV of 1939) and conferred extensive powers on the Provincial Government including the power to create a monopoly of the motor transport business in its favour to the exclusion of all motor transport operators.
In exercise of the powers conferred by new section 43(1)(iv) a notification was issued on the 4th of February, 1955, declaring the intention of the Government to take up certain routes.
The case of the petitioners was that the passing of the Constitution and the grant of fundamental rights rendered the Act void under article 13(1) being inconsistent with the provisions of articles 19(1)(g) and 31(2), and reliance was placed on the decision.
of the Supreme Court in Shagir Ahmad vs The State of U.P. & others.
On behalf of the respondents it was contended that although as a result of the said decision the impugned Act was rendered void, the Constitution (First 'Amendment) Act, 1951, and the Constitution (Fourth Amendment) Act, 1955, bad the effect of removing the inconsistency and the Amending Act (III of 1948) became operative again.
It was, however, contended on behalf of the petitioners that the impugned Act being void under article 13(1) was dead and could not be revivified by any subsequent amendment of the Constitution.
It must be re enacted.
Held that Shagir Ahmad 's case had no application and the contentions put forward by the respondents were well founded and must be accepted.
That it is well settled: that the word 'void ' In article 13 means void to the extent of the inconsistency with a fundamental right and the language of the article makes it clear that the entire operation of an inconsistent Act is not wiped out.
It applies to past transactions and the rights and liabilities accruing therefrom and continues even after the commencement of the Constitution to apply to non citizens.
Keshavan Madhava Menon vs The State of Bombay [1961] S.C.R. 288, relied on.
The true effect of article 13(1) is to render an Act, inconsistent with a fundamental right, inoperative to the extent of the 'inconsistency.
It is overshadowed by the fundamental right ' and remains dormant but is not dead.
With the amendment made in cl.
(6) of article 19 by the first Amendment Act the provisions of the impugned Act were no longer inconsistent therewith and the result was that the impugned Act began to operate once again from the date of such amendment with this difference that, unlike amended clause (2) of article 19 which was expressly made retrospective, no rights and obligations could be founded on the provisions of the impugned Act from the date of the Commencement of the Constitution till the date of the amendment.
The notification declaring the intention of the State to take over the bus routes to the exclusion of all other motor transport operators was, therefore, perfectly valid.
Shagir Ahmad vs The State of U.P. & Others, ; and Behram Khurshed Pesikaka vs The State of Bombay, [1965] 1 S.C.R. 613, distinguished and held inapplicable.
American authorities held inapplicable.
Nor can the impugned Act, on a parity of reasoning be held to infringe, any longer the fundamental rights of the petitioners under article 31(2) in view of the amendment effectd there in by the Constituation (Fourth Amendment) Act of 1956 which came into force on the 27th April, 1955, these petitions having been filed thereafter, and the petitioners could not be allowed to challenge the validity of the impugned Act on that ground.
Semble.
It is not clear at all that the impugned Act was in conflict with section 299 of the Government of India Act, 1935, before the advent of the Constitution.
|
Appeal No.1539 of 1971.
(From the Judgment and Order dated 5 8 1969 of the Allahabad High Court in Special Appeal No. 58/65).
B.B. Ahuja and R.N. Sachthey, for the Appellant.
A.T.M. Sampath and Ram Lal, for Respondent No. 1. 215 The Judgment of the Court was delivered by SARKARIA, J.
This appeal on certificate is directed against an appellate judgment, dated August 5, 1969, of a Bench of the High Court of Allahabad.
It arises as follows: M/s. S.B. Singar Singh and Sons (hereinafter called the assessee) were assessed to Excess Profits tax for the chargeable accounting periods, ending March 31, 1945 and March 31, 1946.
under two assessment orders dated August 26, 1949.
The previous years 193637 was chosen by the assessee as his standard period.
" The profits of that year were Rs. 38,703/ .
After deducting the profits of the standard year, the Excess Profits Tax Officer, assessed the tax on the remaining amounts of profits.
The Excess Profits Tax thus assessed for the accounting years, was to the tune of Rs. 1,06,181.5 and Rs. 48,978/ , respectively.
In his orders, the assessing Officer said that "for reasons detailed in the earlier assessment orders no adjustments are made for capital variations in the standard period and the chargeable accounting period".
These reasons as given in the earlier assessment order, dated October 30, 1947, per taining to the chargeable accounting period ending March 31, 1944, were: "As complete and regular accounts are not maintained by the assessee, it is not possible to make any adjustment for variations in average capital which cannot be accurately ascertained".
Against the orders of assessment, the assessee preferred two appeals on September 24, 1949 to the Assistant Appellate Commissioner.
By two separate applications dated October 24, 1949, the assessee took an additional ground of appeal which obvious ly he had not taken in the original memorandum of appeal that the Excess Profits Tax Officer had erred in not allowing adjustments on account of the increase and decrease of capital in the relevant chargeable accounting period.
The assessee added that he "was always prepared to file his computa tions of average capital".
Dismissing the appeals by his orders, dated November 24, 1949, the Assist ant Appellate Commissioner negatived the assessee 's contention, in these terms: "As in these years no regular accounts have been maintained and it is not possible to make any adjustment for variations in average capital which cannot be exactly ascertained.
No figures have been shown to me, nor has any exact working been fur nished at this stage.
The accounts are left in the same manner as for the earlier years.
Profits in the major accounts had to be worked out by the application of a rate to the turnover.
I am, thus, unable to allow this contention.
" Aggrieved, the assessee carried appeals to the Income tax Appellate Tribunal.
In the memoranda of appeals, one of the specific grounds taken was, that "the Excess Profits Tax Officer and the Assistant Appellate Commissioner had erred in not allowing to the assessee proper standard profits in accordance with the standard period subject to the adjust ment on account of the increase and decrease of capital in the relevant chargeable accounting period.
" It was reiter ated that "the 216 appellant was always prepared to file his computation of average capital.
" This ground relating to standard profits was not dis cussed by the Tribunal and no finding was recorded thereon.
The Excess Profits Tax Appeals and other Income tax appeals filed by the assessee were heard together by the Tribunal and disposed of by common orders dated February 24, 1951.
In the Income tax appeals, some relief was granted, but in the Excess Profits appeals, no relief was granted due to the variation of the capital in the chargeable accounting period of 1945 46 and 1946 47.
The assessee on July 27, 1951, made an application under section 35 of the Income tax Act, 1922 for rectification of its order to the Tribunal on grounds other than the one regarding variation in the standard profits due to increase and decrease of the capital.
This application was dismissed on August 27, 1951 by the Tribunal on the ground that there was no mistake apparent on the record.
No grievance was made in this application that the Tribunal did not consider and decide the ground relating to adjustment of standard profits according to variation in capital during the relevant peri od.
On March 11, 1954, the assessee made a representation to the Central Board of Revenue praying for reopening of the assessments.
In this representation, also, he did not take up Ground No. 1.
Subsequently however on May 24, 1954 he wrote a letter to the Income tax Officer saying that he was sorry to omit 'one important point ' i.e., Ground No. 1, from his representation to the Board, and that the Income tax Officer should "supplement the same while making (his) report to the higher authorities. '
His representation dated March 11, 1954 and the petition dated May 24, 1954, both were rejected and the Commissioner communicated those rejec tions to the assessee by a letter dated May 25, 1955, saying that he did not see any justification for re opening the assessments which had become final and closed.
Thereafter on April 2, 1956, the assessee made a second application to the Tribunal (which in substance was one for review of its orders, dated .February 24, 1951), contending that Ground No. 1 raised in his two appeals, relating to the standard profits of the two chargeable accounting periods and pointing out the failure of lower authorities to make necessary adjustments in such profits according to section 6 of the Excess Profits Tax Act (hereinafter referred to as Ground No. 1 ) was not disposed of by the Tribunal.
It was prayed that the appeals relating to excess profits tax matters which should be deemed to be still pending owing to the non decision of Ground No. 1 be disposed of after hear ing the assessee.
The Tribunal rejected this contention with the remark that the appeals were decided as early as 24th February, 1951 and it is now futile to contend that the matter was pending when the Tribunal had already passed orders and the orders were served on the assessee.
" The Tribunal further observed that the absence of a reference "to the contention of the assessee regarding the standard profits and the necessary adjustments would not render the Tribunal 's order a nullity, nor would it mean that the Tribunal had partially disposed of the appeals and some residue is pending".
In the alternative, it held that even on the assumption that 217 Ground No. 1 was argued and was not disposed of by the Tribunal, the proper remedy for the assessee was either to apply for rectification under section 35 or to move an applica tion under section 66.
The Tribunal refused to treat this application as one for rectification because, in its opinion, such an application would be much too time barred.
In the result, the Tribunal dismissed that application by an order dated June 9, 1956.
The assessee had filed a reference application, also under section 66(1) the Income tax Act in these cases.
That application was dismissed by the Tribunal on August 28, 1951.
The assessee then made applications under section 66(2) of the Income tax Act before the High Court requesting for reference on certain question of law arising out of the order, dated February 24, 1951, of the Tribunal.
In these applications, alsO, he did not ask for reference on a question relating to Ground No. 1 (regarding adjustment of standard profits).
These applications were allowed by the High Court by an order, dated April 12, 1956, whereby the Tribunal was directed to state a case and refer for decision certain questions of law to the High Court.
Thereafter, during the proceedings before the Tribunal for preparation of the statement of the case, the assessee moved an application, dated July 23, 1957, requesting it to refer the question of adjustment of standard profits on account of increase and decrease in the capital in the relevant periods to the High Court, in addition to the questions of law directed by the High Court to be referred to it.
This application was rejected for the reason that the question had not been raised in the reference applica tion, nor did it arise out of the appellate orders of the Tribunal.
On July 24, 1957, the Tribunal stated the case and made a reference on the other question to the High Court in compliance with that Court 's order, dated April 12, 1956.
On November 4, 1968, the assessee filed a writ petition in the High Court praying for a writ of Mandamus requiring the Tribunal to consider his Ground No. 1 mentioned in the Excess Profits Tax Appeals Nos. 651 and 660 of 1949 and 1950 and his subsequent application dated April 2, 1956.
The writ petition was heard by a learned single Judge of the High Court who held that while disposing of the appeals, it was the duty of the Tribunal to record a finding on Ground No. 1 which had been specifically raised in the memoranda of appeals before it, that the Tribunal therefore, could and should have reviewed its orders and rectified its mistake in the exercise of its inherent powers when that mistake was brought to its notice by the assessee by his application dated April 2, 1956; that section 35 of the Income tax Act which provides a period of four years ' limitation for seeking rectification of mistakes in assessment orders, was not applicable to assessment orders made by the.
Tribunal under the Excess Profits Act; that consequently, the Tribunal was in error in refusing to treat the assessee 's application, dated April 2, 1956,.as one for rectification of a mistake of the Tribunal on 16 1003 8C1/76 218 the ground of limitation.
In the result, the learned Judge set aside the Tribunal 's order, dated June 9, 1956, and directed the Tribunal to dispose of the assessee 's applica tion dated April, 2, 1956, afresh in accordance with law.
The Revenue filed a Special Appeal against the order of the learned single Judge before the Appellate Bench of the High Court.
The Bench dismissed the appeal and affirmed the findings and orders of the learned single Judge.
Hence this appeal.
Mr. Ahuja, appearing for the appellant, con tends that the writ petition of the assessee should have been thrown out by the High Court on the preliminary ground that he had not come with clean hands.
In this connection Counsel has pointed out several circumstances which according to him, belie the main plea of the assessee that the Tribunal had not considered his Ground No. 1 although the same was urged before it at the hearing of the appeals.
It is stressed that .Ground No. 1 was not original ly taken by him in the grounds of appeal filed before the Assistant Appellate Commissioner, al though subsequently in the Additional grounds filed about one month after the institution of the ap peals, he, as an after thought, did introduce "Ground No. 1", that he did not make any grievance whatever on the score of Ground No. 1 in his appli cation for rectification of the Tribunal 's orders, filed on July 27, 1951; that for more than 5 years after the announcement of the appellate orders of the Tribunal, he made no application to the Tribu nal for review and rectification of its appellate orders in relation to Ground No. 1; that the assessee delayed the making of the application, dated April 2, 1956 presumably with a view to ensure that at the time of its presentation, none of the members of the Tribunal who had originally decided the assessee 's appeals, was there to hear the application; that even in this inordinately delayed application, review and rectification was not asked for in a straight forward manner but it was disguised as an application for decision of the appeals which on account of non decision of Ground No. 1 were alleged to be still pending; that the writ petition was filed after an abnormal delay of ten years; that a perusal of the assessment orders made by the Excess Profits Tax Officer and the Assistant Appellate Commissioner, and even the memoranda of appeals filed before the Tribunal shows that at no stage the assessee furnished complete accounts or even a statement showing variation in the capital during the relevant peri ods.
It is emphasised that all that the assessee said in the memoranda of appeals was that he was "prepared" to furnish a statement of such computa tion and accounts.
It is further pointed out that no certificate of Shri Surinderjit Singh, Advocate who is supposed to have argued the appeals before the Tribunal, was filed.
It is maintained that the only reasonable inference from these circumstances was that Ground No. 1 was not pressed or argued at all by Shri Surinderjit Singh before the Tribu nal who consequently, did not think it necessary to deal with it.
Mr. Sampath, appearing for the assessee respondent has not been able to deny the existence of the circumstances pointed out by Mr. 219 Ahuja.
His argument is that in the affidavit accompanying the writ petition, the deponent had sworn that Ground No. 1 was, in fact, argued before the Tribunal and that this sworn statement had been believed by the High Court.
This being the case, it is argued, this Court should not re open the question as to whether Ground No. 1 was, in fact, argued or not before the Tribunal.
According to Mr.Sampath, over 5 years ' delay in making the application dated April 2, 1956, partly stood explained by the circumstance that he had made a representation to the Board supplemented by the assessee 's letter of May 24, 1954 to the Income tax Officer, seeking relief on the basis of Ground No. 1.
We find a good deal of force in the submissions made by Mr. Ahuja.
The sheet anchor of the assessee 's case in the writ petition was that at the hearing of the appeals, his Counsel had argued Ground No. 1 set out in the memoranda of appeals, but the Tribunal did not consider it at all.
The question whether or not this Ground had been argued, was one of fact.
The tell tale circumstances enumerated by Mr. Ahuja, unerringly lead to the conclusion that, in all proba bility, Ground No. 1 was not argued by the Counsel, possibly because he was aware that in the absence of a complete statement of accounts showing variations in the capital during the relevant periods, a contention rounded on Ground No. 1 would be an exercise in futility.
It is noteworthy that at no stage before the Revenue authorities or the Tribunal, did the assessee categorically say that he had actually produced a complete statement of accounts and computation of the increase and decrease in capital.
All that he said in his Additional Grounds of appeal before the 'Assistant Appellate Commissioner and the Appellate Tribunal in Ground No. 1, was that he was prepared to file such a statement.
Shri Surinderjit Singh, Counsel who argued the appeals, has not thought it fit to certify that Ground No. 1 was actually argued, and not abandoned, by him.
The affida vit of another person who could not be the best informed person on this point, was of little value and could hardly displace the irresistible inference arising from the sur rounding circumstances and the conduct of the assessee, namely, that his Counsel had not argued on Ground No. 1, at all and had thus given it up.
In the light of what has been observed above, we are of opinion that the High Court could not justifiably interfere in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution with the appellate orders of the Tribunal.
In any case, the question as to whether the omission to record a finding on Ground No. I by the Tribunal was due to the failure of the appellant to urge that ground or due to a lapse on the part of the Tribunal, which de served rectification, was a .matter entirely for the author ities under those Taxation statutes.
It will be well to recall once more what this Court speaking through J.C. Shah J. (as he then was,) had stressed in Shivram Poddar vs Income tax Officer(1) "Resort to the High Court in exercise of its extraordi nary jurisdiction conferred or recognised by the Constitu tion in matters relating to assessment, levy and collection of income tax may be permitted only when questions of infringe ment of fundamental rights arise, or where on undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess.
In attempting to bypass the provisions of the Income tax Act by inviting the High Court to decide questions which are primarily within the jurisdiction of the revenue authorities, the party approaching the court has often to ask the Court to make assumptions of facts which remain to be investigated by the revenue authorities."
In the instant case, the High Court had assumed juris diction on the assumption that a certain ground had been urged before the Income tax Appellate Tribunal which had arbitrarily refused to consider the same and record a find ing thereon.
This assumption, in our opinion, stood thor oughly discounted by the concomitant circumstances of the ease, including the dilatory and questionable conduct of the assessee.
This was therefore not a fit ease for the exer cise of its special jurisdiction under Article 226 by the High Court.
Accordingly, on this short ground we allow the appeal and dismiss the writ petition.
As the appeal succeeds on a preliminary ground, we do not feel it necessary to express any opinion on the question as to whether or not the Appel late Tribunal under the Excess Profits Tax Act has statutory or inherent power to review and rectify mistakes in its orders.
The assessee shall pay one set of the costs of the appellant.
P.B.R. Appeal allowed.
| IN-Abs | Since the assessee had not maintained complete and regular accounts for the purpose of Excess Profits tax, the Excess Profits Tax Officer assessed tax on the basis of accounts of certain previous years chosen by the assessee as his "standard period", pointing out that because of this position it was not possible to make any adjustment for variations in average capital.
The Assistant Appellate CommisSioner upheld the assessment order.
In appeal to the Appellate Tribunal one of the specific grounds taken by the assessee was that the Excess Profits Tax Officer and the Assistant Appellate Commissioner had erred in not allowing proper standard profits in accordance with the standard period subject to the adjustment on account of increase and decrease of capital in the relevant chargeable accounting period and that they were prepared to file computation of average capital.
Without discussing the ground relating to the standard profits the Tribunal disposed of the appeals.
The assessee 's second application alleging that the ground relating to the standard profits was not disposed of by it was rejected by the Tribunal.
In an application under section 66(2) of the Income Tax Act before the High Court, the assessee did not ask for a reference on this ground.
But during proceedings for preparation of statement of case, the assessee 's application requesting the Tribunal to refer this ground to the High Court was rejected by it.
The assessee 's petition for a writ of Mandamus requiring the Tribunal to consider the ground relating to standard profits was allowed by the High Court.
Allowing the Department 's appeal to this Court, HELD: The High Court could not justifiably interfere, in the exercise of its extraordinary jurisdiction under article 226 of the Constitution, with the appellate orders of the Tribunal.
The question as to whether the omission to record a finding on Ground No. 1 by the Tribunal was due to the failure of the appellant to urge that ground or due to a lapse on the part of the Tribunal, which deserved rectifica tion, was a matter entirely for the authorities under the statute to decide.
[219 G] Shivram Poddar vs Income tax Officer (1964) 51, I.T.R. 823, 829 (,S.C.) applied.
In the instant case the High Court had assumed jurisdic tion on the assumPtion that a certain ground had been urged before the Tribunal which had arbitrarily refused to consid er the same and record a finding thereon.
This assumption, stood thoroughly discounted by the concomitant circumstances of the case including the dilatory and questionable conduct of the assessee.
This was not a fit case for the exercise by the High Court of its ' special jurisdiction under article 226.
[220 C]
|
APPEALS NOS: 1241, 1245, 1506 1525 & 1770 1771/75 (Appeals by Special Leave from the Judgment and Order dated 26.8.1975 of the Andhra Pradesh High Court in Writ Petitions Nos: 874/75, 5894/75, 7068/74, 876/75, 1661, 930, 2326, 149, 3385/75, 6891/74, 825, 2247, 2409,3021, 6931/75, 6932, 7106, 7178/74, 123, 133, 235, 2241, 7170,731/75 respectively) and CIVIL APPEALs NOS : 1242, 1253, 1443, 1456 1461 1664 1666, 1772, 1774 1775, 1995 1996/75 & 164 165/76:(Appeals by Special Leave from the Judgment and Order dated 26.8.1975 of the Andhra Pradesh High Court in Writ Petitions Nos : 6796/74, 5886/74, 732/75, 1583/75, 7297/74, 512/75, 6121/74, 6902/74, 6791/74, 215/75, 6287/74, 5854/74, 2871/75,.
2871/75, 6890/75, 1634/75, 525/75, 5843/74, 1635/75, 2053/75, 159, 311, 2298/75, 6478/74, 2218/75, 3360/75, 1509, 2040, 202, 244./75, respectively) and CIVIL APPEALS NOS: 1244, 1462 1465, 1467 1498, 1500 1505, 1662, 1667, 1776 1780, 1991 1994/75 & 166/76: (Appeals by Special Leave from the Judgment and Order dated 26.8.1975 of the Andhra Pradesh High Court in writ Petitions Nos.
5890/74, 5109/74 6859/74, 185/75, 554/75, 1274, 1943, 2366, 2254, 1015, 1114, 764, 296, 2584/75, 6952, 5880/74, 6505, 2272/75, 6922/74, 205, 114, 251, 6318, 194, 2365, 1567, 6482, 897, 620/75, 6520, 6753/74, 673, 2409, 1395/75, 6724/74, 2760, 231, 1603/75, 6082/74, 2245/ 75, 29/75, 29/75, 356/75, 7042, 1649/75, 29, 2113, 707, 1603, 1194, 1194, 3354/75, 6836/74, 2670/75, 5889/74 respectively) and CIVIL APPEALS Nos: 1526 1530, 1663 & 1997 OF 1975 (Appeals by Special Leave from the Judgment and Order dated 26.8.1975 of the Andhra Pradesh High Court in Writ Petitions Nos : 230, 276, 354, 355, 596, 230 and 230/75 respectively.
CIVIL APPEAL NO. 1532 OF 1975 (Appeal by special Leave from the Judgment and Order dated 26.8.1975 of the Andhra Pradesh High Court in Writ Petition No. 4320/74).
CIVIL APPEAL NO.
1533 OF 1975 (Appeal by special Leave from the Judgment and Order dated 26.8.1975 of the Andhra Pradesh High Court in Writ Petition No. 2311/75).
CIVIL APPEAL NOS.
1534 & 1661 OF 1975 (Appeals by Spe cial Leave from the Judgment and order dated 26.8.1975 of the Andhra Pradesh High Court in Writ Petitions Nos.
6926/74, and 2019,/75).
A. K. Sen, (In CA.
1245/75), B. Sen (In CA 1506/75} K. Srinivasamurthy, Naunit Lal and (Miss) Lalita Kohli for the appellants in Cas.
1241, 1245, 1506 1525, 1770 1771/75.
136 M.C. Bhandare (In CA 1242/75), Eswara Prasad (In CA 1443 1446), A.L. Lakshminarayana (In 1243, 1447 1451/75), A. Panduranga Rao (In CA.
1460 1461, 1995 1996/75), D. Sudhakar Rao (In CA 1242/75) B. Kanta Rao for the Appellants in CAs.
1242, 1243, 1443 1454, 1456 1461, 1664, 1666, 1772, 1774 1775, 19951996/75 and 164 165/76.
B. Sen (C.A. 1462/75) Sachin Chaudhry (CA 1244/75) for the appellants in C.A. Nos. 1244, 1462 1465, 1467 1498, 1500 1505, 1662, 1667, 1776 1780, 1991 1994/75 and 166/76.
Subodh Markandaya for the appellants in Cas 1526 1530, 1663 and 1997/75.
Rangam and (Miss) A. Subhashani, for the Appellant in C.A. 1532/75.
A.K. Sanghi for the Appellant in CA 1533/75.
A. Subba Rao for the Appellants in Cas.
Nos. 1534 and 1661/75.
Lal Narain Sinha, Sol.
Gen. T. Anatha Babu, K.R. Choudhary, S.L. Setia and (Mrs. Veena Khanna for the Respondents in all the appeals.
The Judgment of the Court was delivered by RAY, C.J.
These appeals are by special leave from the judgment dated 26 August, 1975 of the High Court of Andhra Pradesh.
The special leave was granted as follows : "During the period in question there was an order of the State Government under section 22 B of the Electricity Act, 1910 limiting the supply of electricity to 75 per cent of the previous consump tion.
The quotas fixed by the Board are very often below 75 per cent and sometimes as low as 30 per cent.
Special leave should be granted limited to the question whether in the facts of the order under section 22 B it is open to reduce the supply to anything less than 75 per cent and charge penalty of extra charges for that quantity.
" The State Electricity Board referred to for brevity as the Board supplies electricity of two varieties.
One is high tension.
The other is low tension.
Power is gener ated by hydro electrical method by use of river waters and also by thermal method using coal.
The Board fixed quotas for consumption with effect from March 1972 because power generated was not adequate to meet the requirements.
For a short period between 7 July, 1972 and 16 August, 1972 these quotas were lifted.
The restrictions were reimposed.
An extra charge for consumption of energy beyond the limits of quotas was introduced on 25 February, 1973.
The charge was double the usual rate.
This continued till 1 August, 1974.
The Board introduced on 29 July, 1974 a further cut in quotas and enhanced the extra charges.
The extra charges were double the usual rates, if the excess consump tion was 20 per cent or below that limit over the newly intro 137 duced quotas.
If the total consumption was in excess of 20 per cent, the extra charge was four times the total excess consumption.
The Board on 20 March, 1973 reduced the quotas still further retaining the pattern of extra charges.
Weekly quotas instead of monthly ones, were introduced.
A restriction was imposed to the effect that for every 5 per cent of excess consumption there would be one day 's cut.
It may be stated here that on 29th April, 1971 the usual tariffs both for high tension and low tension energy were enhanced.
The Board on 1 June, 1974 removed the slab system and a uniform rate of 14 nP per unit was introduced.
The appellants filed writ petitions in the High Court for a writ, direction or order to collect from the appel lants normal charges for consumption of electricity and not to disconnect their supply and further order declaring the restrictions with regard to imposition of quota and the levy of penalty charges as illegal.
The High Court held that the Board has power to fix quotas or otherwise re strict consumption of electrical energy and collect charges at four times the normal rates.
The appellants obtained leave limited to the question whether under section 22 B of the Electricity Act, 1910 referred to as the 1910 Act it is open to the Board to reduce the supply to anything less than 75 per cent and levy extra charges for excess supply.
The State Government on 6 April, 1972 made an order under section 22 B of the 1910 Act, inter alia, as follows : "All consumers of electricity (both high tension and low tension) being billed under high tension categories I (both normal and alternative tariffs) II and III and low Tension category V shall so regulate their use of electricity as not to exceed in any month, the limits of maximum demand and energy specified hereunder: The maximum demand limit will be 75% of the average monthly maximum demand over the period from March 1971 to February 1972.
The limit for energy consumption will be 75% of the average monthly consumption (number of units) over the period from March, 1971 to February, 1972.
The supply to consumers who violate the restrictions being im posed hereunder will be liable to be cut off without notice.
Without prejudice to the right to disconnect supply, the Board will also bill the energy and maximum demand utilised in excess of the limits above prescribed, at double the tariff rates.
Consumers of High tension electricity being billed under alternative tariff under Category I will further pay for the excess energy consumed, energy charges at the rate of 20 paise per unit and M.D. charges at twice the tariff rate.
X X X X 11 1003 SCI/76 138 The restrictions shall not apply to (i) Railways, (ii) Hospitals including nursing homes and Doctors Clinics, (iii) water supply, (iv) for sanitary arrangements for the public, (v) Radio Stations (vi) Telephone Exchanges and other catego ries totalling 15 in number.
x x x x x x In the case of consumers who have not availed supply during the entire period of March, 1971 to February, 1972 because their loads were seasonal or for some other reason, the average monthly limits for maximum demand and energy will be computed with reference to the period between March, 1971 and February 1972 during which supply was availed Of.
" This order of the State Government in 1972 was occa sioned by three features as recited in the order.
First, the water position in the Hydroelectric reservoirs in the State became very unsatisfactory because of failure of monsoon.
, Second, sufficient power was not available to meet the needs of the State.
Third, it became necessary to conserve the available water with a view to ensuring regular and uniform supply of electrical energy during the coming months.
On 8 August, 1975 the State Government stated that the Government issued several orders commencing 6 April, 1972 and ending 31 July, 1975 placing certain restrictions on the consumption of electricity "in view of the critical power supply position.
" There were several orders on 6 April 1972, 3 May 1972, 16 May 1972, 22 May 1972, 29 May 1972, 9 June 1972 and 22 September 1972.
The Government canceled these orders on 8 August 1975 with effect from 7 July, 1972.
On 20 March, 1975 the Board in its order of that date referred to its previous orders in the years 1973 and 1974 and the order of 2 January, 1975 and stated as follows: Because of greatly depleted levels in the Hydel Reservoirs on account of the low rainfall in the catchmeat areas the hydel generation in the Andhra Pradesh grid has come down very much.
No assistance was forthcoming from the neigh bouring State as from the monsoon of 1974.
Two new sets of Kothagudem Thermal Power Station have not stabilised.
Besides, normal load there has been heavy increase of agri cultural loads during the last month due to the onset of summer.
This has resulted in the load going far beyond the system capability.
The graded tariff which was introduced expecting it to act as a sufficient deterrant to the consum ers against exceeding the quotas fixed has not given relief to the extent expected.
It has become impossible to meet the agricultural demand and save the standing crop at this crucial stage.
The Board in this background decided to raise power cuts on demand and energy consumption and or dered that all high tension and low tension consumers should so regulate their use of electricity as not to exceed in any month the limits of maximum demand and energy specified against each category.
139 Categories mentioned in the order of the Board dated 20 March, 1975 are the Priority Industries, Continuous Process Industries, Other industries, Essential Services, Low ten sion Category Domestic Supply, Low Tension Category non Domestic Supply and Public Lighting.
The industries which had been exempted from power cut before like Fertilizer Industries, Oil Refineries, Pesticides Manufacturing Indus tries, All India Radio were also subjected to 20 per cent cut both on maximum demand and energy consumption.
The cement industry which was having 100 percent quota was subjected to.
20 per cent cut.
The sugar mills and rice and Roller Flour Mills continued to, be subjected to 10 per cent cut both on maximum demand and energy consumption For closer control over consumption and for disconnecting those that exceed the quotas, the system of weekly quotas was revived and was to be implemented.
The proportional quota for the week would be one, fourth of the monthly quota already fixed.
Besides the penal charges already existing, the Board decided that the services of the consumers would be liable to be disconnected if they exceeded the quotas fixed by anything beyond 5 per cent.
For every 5 per cent of excess over the quota the disconnection would be for one day.
The Board did not subject the low tension domestic supply category to any restriction.
In priority industries the existing quota of 70 per cent was reduced to 55 per cent.
In food products industries the maximum demand of 50 per cent was not reduced but the energy consumption was reduced from 60 to 50 per cent.
In Continuous Process Industries the maximum demand and energy consumption were reduced from 65 per cent to 55 per cent.
In other indus tries not covered by those categories the existing cut of 50 per cent was not subjected to further cut.
The appellants contend as follows: First, section 22 B of the 1910 Act gives powers to the State Government to control the distribution and consumption of energy.
The State Government exercised its powers under section 22 B of the 1910 Act and reduced the quota to 75 per cent on 6 April, 1972.
Therefore any further reduction by the Board would be illegal.
Second, section 49 of the Electricity Supply Act, 1948 referred to as the 1948 Act does not confer power on the Board to effect rationing of supply because that would involve excessive delegation of legislative power.
Further, there is no guidance in section 49 of the 1948 Act to reduce the supply, and therefore, section 49 is bad.
The alternative contention of the appellants is that unless the Board made Regulations under section 79 (J) of the 1948 Act it could not ration the supply in exercise of powers under section 49 of the Act.
The appellants contend that the Board had to lay down the principles in the regu lations which the Board is empowered to make under section 79 (J) of the 1948 Act and unless the regulations lay down the principles under section 79 (J) of the 1948 Act the Board cannot exercise power under section 49 of the 1948 Act.
The appellants also contend that the State Government notification dated 6 April, 1972 regulating and restricting the consumption 140 electricity on the basis of 75% of the average maximum demand of a consumer between the period March 1971 and February 1972 remained in force till 2 August 1975, and, therefore, the Board could not exercise the power of regu lating and controlling supply and consumption of electrici ty because it was exercised by the State.
The relevant provisions of the 1948 Act are as follows: Section 18: "General duties of the Board: Subject to the provisions of this Act the Board shall be charged with generaly duty . and it shall be the duty of the Board . (c) 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.
" Section 49: "(1) Subject to the provisions of this Act and of regulations, if any, made in this behalf, the Board may supply electricity to any person . upon such terms and conditions as the Board thinks fit . . . (4) In fixing the tariff and terms and conditions for the supply of electrici ty, the Board shall not show undue preference to any person.
" Section 59: "The Board shah not as far as practica ble . carry on its operations under this Act at a loss and shall adjust its charges accordingly from time to time.
" It is also appropriate at this stage to refer to.the provisions in the Andhra Pradesh State Electricity Board Power Tariffs contained in Part F dealing with general terms and conditions of sup ply.
The relevant provisions are clauses 6.7 and 6.8 of Power Tariffs which are set out hereunder: Clause 6.7: "The Board shall have the unilateral right to vary from time to time, the terms and conditions of supply by special or general proceed ings.
In particular, the Board shah have the right to enhance the rates chargeable for supply of electricity according to exigencies.
" Clause 6.8: "The Board shall endeavour to afford continuous supply and to restore interrupted supply as early as possible.
The Board shah have the right to stagger consumer or consumers according to operational and other exigencies.
The Board shall not be responsible for any loss or inconvenience occasioned to any consumer, by any interruption of supply of any kind, whatever be the reason therefor, unless the interruption is exclusively attributable to the negligence of the Board.
" Reference is also necessary to the form of agreement for purchase of electricity supply con sumption.
There are forms and agreements 141 for high tension as well as low tension.
The relevant terms in the form of high tension agree ment are as follows: "Clause 5: Obligation to comply with requirements of Acts, and Terms and Conditions of supply: I/We further undertake to comply with all the requirements of the Indian Electricity Act, the , the Rules thereun der and the terms and conditions of supply notified by the Board from time to time." "Clause 10: Board 's right to vary terms of Agree ment: I/We agree that the Board shall have the unilateral right to vary, from time to time, the terms and conditions of supply under this agreement by spe cial or general proceedings.
" The Low Tension agreement contained inter alia the following: Clause 9: "Obligation of consumer to pay all charges levied by Board: From the date this agreement comes into force, I/We shall be bound by and shall pay the Board maximum demand charges, energy charges, surcharges, meter rents and other charges, if any, as prescribed in the terms and conditions of supply notified by the Board from time to time for the particular class of consumer to which I/We belong.
"In particular, the Board shall have the right to enhance the rates chargeable for supply of electricity according to exigencies.
" Clause 10: "Board 's right to vary terms of Agree ment: I/We agree that the Board shall have the unilateral right to vary, from time to time the terms and conditions of supply under this agreement by special or gener al proceedings.
" These provisions indicate that the Board is under a duty to supply electricity to consumers who enter into contracts with the Board.
The duty to supply however is inherently limited by its capacity.
If the Board is unable to supply electricity to meet the full demand of consumers then neces sarily it can only make limited supply.
Clause 6.8 of the Terms and Conditions of the Power Tariffs establishes these features.
The first part of clause 6.8 speaks of the duty of the Board to make all endeavours to meet the whole demand of the consumers.
Clause 6.8 also confers power on the Board to stagger sup ply.
It is obvious that if the Board cannot generate the energy required to meet the .full demand of the consumer it will have to curtail the supply.
The appellants realise that the Board has power to curtail supply.
But the appellants contend that the Board has No. power to, exempt certain categories of consumers and impose different percentage of cut.
142 The appellants contend that the Board has no power under section 49 of the 1948 Act either to impose different percentage of cuts in the supply to consumers or to impose penalty.
The appellants contend that only if the Board introduced principles by making regulations under section 79(j) of the 1948 Act then the Board could have applied these principles in imposing cuts.
The contentions of the appellants are unsound.
Sec tion 49(4) of the 1948 Act states that in fixing the tariffs and terms and conditions for the supply of electricity the Board shall not show undue preference to any person.
This section embodies the same principle which is enunciated in Article 14 of our Constitution.
The Board is a State for the purpose of Part III of our Constitution.
In the present case, we, are, however, not concerned with the application of Article 14.
All that requires to be appre ciated is that the provisions of Article 14 of our Constitu tion and section 49(4) of the 1948 Act are similar in prin ciple.
It is the principle of equality or non discrimina tion.
Section 49(4) of the 1948 Act does not mean a mechan ical equal treatment, It is fairly settled that equality before the law does not mean that things which are different shall be treated as though they were the same.
The obliga tion not to discriminate involves both the right and the obligation to make reasonable classification on the basis of relevant factors.
To illustrate, cutting down 50 per cent of the needs of a hospital and the needs of industries producing consumer goods cannot be treated on the same footing.
It would be justifiable to treat them with refer ence to their urgency, their social utility and also the impact on the conservation and economics in the available supply of electric power.
The guidance is clearly fur nished by the principles embodied in section 49(4) of the 1948 Act similar to Article 14 of our Constitution.
The recognition of the fact that the Board can introduce rationing by making a regulation under section 79(j) of the 1948 Act necessarily involves a concession that the Board has the power to enforce rationing and to enunciate the principle for determining the scheme of such rationing.
A regulation can be made only in the exercise of a power which exists in the Act.
The making of a regulation is not a new source of power but regulates the exercise of power which exists.
Section 49(1) of the 1948 Act therefore gives a general power which could be regulated by making of a regu lation.
The language: of section 49 of the 1948 Act shows that the power can be exercised without making any regulation.
The expression "regulation" occurring in section 49(1) is qualified by the expression "If any".
It is, therefore, manifest that if the power is existing, it must be exercised according to valid principles consistent with the provisions of section 49(4) of the 1948 Act.
This Court rejected the suggestion that the President or the Governor cannot settle terms and conditions of the public servants without making rules under Article 309 of the Constitution.
If regulations were made, such regulation would have to be in conformity with section 49(4) of the 1948 Act and in the exercise of its power the Board would have to abide by regulations.
143 The argument of the appellants that section 22 B of the 1910 Act which confers power on the State Government to form an opinion as to the necessity or expediency of taking action for the maintenance of the supply and securing the equitable distribution of energy, exhausts the power of distribution of energy and the Board has no power under section 49 of the 1948 Act to operate upon the field of supply of electricity is unsound.
Section 22 B of the 1910 Act is only enabling while the Board must inevitably curtail supplies.
If the Board must curtail supplies it is curious to.
suggest that the cuts must not be based on rational equitable basis consistent with principles of reasonable classification within the meaning of section 49(4) of the 1948 Act.
Section 22 B of the 1910 .Act was introduced in 1959.
It did not expressly or impliedly repeal or cut down the content of the power of the Board in section 49 of the 1948 Act which was enacted in 1948 and reproduced in 1966.
There is no conflict in the existence of power at different levels.
The higher authority may have the power to over ride the order of the lower authority.
Powers under sec tion 22 B of the 1910 Act and under Section 49 of the 1948 Act may have some overlapping features.
Section 49 contains a much larger power because the Board is the authority primarily charged with all aspects of development and supply under sections 18 and 49 of the 1948 Act.
It may be stated here that on 6 April, 1972 the State order effected cut in supply.
The Board also fixed quotas from March, 1972.
Between 7 July, 1972 and 16 August, 1972 there was no cut in supply.
The order under section '22 B of the 1910 Act was not effective after the month of July, 1972.
The orders of the Board effecting cut in supply were effective prior to July, 1972 and also from August, 1972.
The appellants enjoyed unrestricted supply of electricity at ordinary rates from 7 July, 1972 to 16 August, 1972.
The appellants did not raise any contention in the High Court that the State order of April, 1972 was effective all throughout.
If such facts had been challenged the Board would have given proper materials by way of facts to show that the Board order was to the knowledge of everybody not effective after the month of July, 1972.
When the Board on 7 July, 1972 decided to remove all the restrictions imposed earlier it is manifest that the Board tried best to maintain the terms and conditions mentioned in clause 6.8 of the Power Tariffs of the State Electricity Board.
The Board filed in the High Court the statement showing consumer requirement of energy in one column, actual generation in another column, consumers ' requirement of demand in Mega Watts in another column and actual demand in Mega Watts in still another column from the month of February 1973 right upto June, 1975.
The High Court held ' that the correctness of the statement was not disputed by the appellants and the High Court did not doubt the accuracy of the statement.
The High Court held that the actual consumer requirement has all throughout been more than the actual generation.
The fact that the actual generation has been lower than the consumers requirements shows that the Board has in a fair and just manner imposed cuts whenever situation merited the same.
There is no, conflict between the order of the Govern ment in April, 1972 and the orders of the Board in the year 1975 for these 144 reasons.
The restrictions imposed by the Government ceased on 7 July 1972 when in the opinion of the Government scarci ty conditions disappeared.
This is manifest from the Government Order dated 2 August, 1975.
The appellants cannot be allowed to urge that the Government Order of the year 1972 continued after 7 July, 1972.
The appellants acted upon the footing that the restrictions had been lifted and consumption was even more than their normal maximum demand on normal rates.
Even if the Government Order of 1972 continued the restrictions imposed by the Government Order and the Board Order were cumulative and not contradic tory.
The Government Order was addressed to the consumers not to consume in excess of 75 per cent of their normal maximum demand.
If the appellants sought any relief in respect of consumption in violation of the order under section 22 B of the 1910 Act it would be an offence under section 41 of the 1910 Act.
Such a contention cannot be allowed to be raised.
Section 49(4) of the 1948 Act casts a duty on the Board not to show any undue preference in fixing the tariff and terms and condition.
Clauses 6.7.
and 6.8 of the Power Tariffs.
show that the Board shall have the right to stagger or curtail supply of electricity to any consumer according to operational and other exigencies.
The Board can therefore release supply or block the same areawise and has no means of enforcing the quota except through sanctions.
Such sanctions can take any reasonable form either disconnection in case of gross and persistent defaults or the lesser sanction of enhanced tariff.
The power to enhance the tariff is included in section 49 of the 1948 Act.
The expression that the Board "may supply electricity on such terms and conditions as the Board thinks fit" in section 49 (1 ) is related to the terms and conditions of the agreement referred to above.
Section 49 of the 1948 Act in sub section (1) confers power on the Board to supply electricity to any person not being a licensee upon such terms and conditions as the Board thinks fit.
This power contains the power to regulate and ration supply.
The terms and conditions to which reference has been made make explicit what is implicit in the power.
The terms and conditions contain the power of the Board to enhance the dates.
Section 49(3) of the 1948 Act states that the Board has power to fix different tariffs for the supply of electricity having regard to the geographical position of any area, the nature of the supply and purpose for which supply is required and any other relevant factors.
The expression "any other relevant factors" is not to be construed ejusdern generis because there is no genus of the relevant factors.
The combined effect of section 49 of the 1948 Act and the terms and conditions of supply is that having regard to the nature of supply and other relevant factors particularly when there is shortage of electricity the Board has power to enhance the rates.
If there is shortage of electricity there is to be restriction on sup ply.
The Board can disconnect supply if the quota is exceeded.
The Board can also impose higher rates if the quota is exceeded.
The imposition, of 145 higher rates is only to sanction the rigour of ration by making persons who exceed the quota liable to pay higher rates.
The High Court upheld the content of the power of the Board under section 49 of the 1948 Act and also to charge enhanced tariff for exceeding the allotted quota.
It is manifest that the requisite power exists in the Board and this Court did not permit the finding of the High Court to be re examined; nor the question whether the power had been properly exercised within the limits of section 49 and the terms of the agreement because the terms were directly corelated to the availability of electricity for being supplied.
From 7 July, 1972 up to 16 August, 1972 the appellants enjoyed unrestricted supply at ordinary rates.
The appellants took advantage of it.
Section 22 B order to the knowledge of everybody was not effective after July, 1972.
The appellant cannot assert the authority that the Government Order of April 1972 was effective.
(See South eastern Express Company vs
W. 1. Miller(1).
There is no question of excessive delegation because power is conferred by the statute.
In Indian Aluminium Company etc.
vs Kerala State Elec tricity Board(2) this Court held that under section 49(3) of the 1948 Act the Board stipulates for special tariff for supply of electricity at specified rates from time to time.
For the foregoing reasons the conclusion is that the Board has power under section 49 of the 1948 Act to regulate supply and also to fix higher rates for consumption on excess of quota.
There is no conflict between section 22 B of the 1910 Act and section 49 of the 1948 Act with regard to regulating or restricting highter consumption.
The appeals are therefore dismissed.
There will be no order as to costs because the High Court made similar order.
P.H.P. Appeal dismissed.
| IN-Abs | Section 22B of the Electricity Act, 1910, authorises the: State Government if it is of the opinion that it is necessary or expedient so to do for maintaining the supply and securing equitable distribution of energy to provide by an order for regulating the supply, distribution, consump tion or use of the electricity.
Section 18 of the Electricity Supply.
Act, 1948 provides that it shall the duty of the Board to provide electricity as soon as practicable to persons requiring such supply.
Under section 49 subject to the provisions.
of the Act and the regulations if any made, the Board may supply elec tricity to any person upon such terms and conditions as the Board thinks fit.
It further provides that in fixing the tariffs and terms and conditions for the supply of electric ity the Board shall not show undue preference to any person.
Under the prescribed agreement the Board is given unilateral right to vary from time to time the terms and conditions of supply under the agreement by special or general proceedings.
The State Government made an order under section 22B provid ing that the maximum demand limit will he 75 per cent of the average monthly maximum demand over a certain period.
It further provided that the supply to consUmers who violated the restrictions was liable to be cut off without notice.
Without prejudice to the right to disconnect the supply the Board was also authorised to bill the energy and maximum demand utilised in excess of the limits prescribed at double the tariff rates.
The order of the State Government was occasioned because the water position in the Hydro Electric Reservoirs in the State became very unsatisfactory because of failure of monsoon.
Secondly, sufficient power was not available to meet the needs of the State and thirdly it became necessary to conserve available water with a view to ensure regular and uniform supply of electrical energy during the coming months.
The State Electricity Board fixed quotas for consump tion because power generated was not adequate to meet the requirements.
An extra charge for consumption of energy beyond the limits of quotas was also introduced by the Board.
The Board further cut the quota and enhanced the extra charges.
Thereafter, the Board passed an order increasing the power cuts at different percentage in different industries.
The Board also increased charges to be paid for the excess consumption.
This action of the Board was necessitated because of great depletion of levels in the Hydel reservoirs and because no assistance was forthcoming from the neigh bouring States and because there was a heavy increase of agricultural loads.
The appellants filed writ petitions in the High COurt praying for a writ or direction that the respondent should be ordered not to collect from the appellants more than normal charges for consumption of electricity and not to disconnect their supply and for a declaration that the restrictions with regard to the imposition of quota and the levy of penalty charges was illegal.
134 The High Court held that the Board has power to fix quotas or otherwise to restrict consumption of electrical energy and collect charges at 4 times the normal rates.
The appellants obtained special leave limited to the question whether under section 22B of the Electricity Act, 1910 ', it is open to the Board to reduce the supply to anything less than 75 per cent and levy extra charges for excess supply.
In an appeal by special leave the appellants contended: 1.
Section 22B of 1910 Act empowers the State Govt.
to control the distribution and consumption of energy.
The State Government exercised its powers and reduced the quota to 75%.
Therefore, any further reduction by the Board would be ille gal.
Section 49 of the 1948 Act does not confer power on the Board to effect rationing of supply because that would involve excessive delegation of legislative power.
There is no guideline in section 49.
to reduce the supply and therefore, section is bad.
In the alternative, the contention was that unless the Board made regulations under section 79(j) it could not ration the supply in exercise of powers under section 49. 4.
The Board cannot fix different percentages of cuts in the supply to different consumers nor can the Board impose penalty.
Dismissing the appeal, HELD .
: (1) Section 49 which requires the Board not to show undue preference to any person embodies the principle enumerated in Article 14 of the Constitution.
It is the principle of equity or non discrimination.
However, it is fairly settled that equality before law does not mean that the things which were different will be treated as though they were the same.
It does not mean an economical equal treatment.
It would be justifiable to treat different industries and institutions with reference to their urgencY, social utility and also the impact on the conservation and economies in the available supply of electric power.
[142 B E] (2) The recognition of the fact that the Board can introduce rationing by making a regulation under section 79(j) of the 1948 Act necessarily involves a concession that the Board has a power to enforce rationing and to enunciate the principle and scheme.
of such rationing.
The making of a regulation is not a new source of power but is the exercise of power which exists.
The language of section 48 " 'if any" shows that the power can be exercised without making any regulation.
The powers conferred on the State Government under section 22B do not exhaust the power of the Board under section 49 of the 1948 Act.
There is no conflict in the existence of power at different levels.
The higher authority may have the power to override the order of the lower authoritY. Powers under section 22B of the 1910 Act and section 49 ' of the 1948 Act may have some overriding features.
Section 49,, howev er, contains a much larger power because the Board is the authority primarily charged with all aspects of development and supply under the 1948 Act.
[142 E G, 143 A D] (3) The appellants cannot be allowed to raise the con tention which was not raised in the High Court that the cut imposed by the State Government under section 22B was effective throughout.
If such facts were pleaded in the High Court, the Board could have produced materials denying such allega tions.
[143 D F] (4) The orders of the Government and the Board were cumulative ,and not contradictory.
The Board is empowered to fix different rates "having regard to" the geographical position of any area, the nature of the supply and purpose for which supply is required and any other relevant factors.
The expression "any other relevant factors ' is not to be construed ejusdem generis because there is no germs of the relevant factors.
[144 B D, E F] 135 (5) If there is shortage of electricity there has to be restriction on supply.
The Board can disconnect supply if the quota is exceeded.
The Board can also impose higher rates if the quota is exceeded.
The imposition of higher rates is only to sanction the rigour of ration by making persons who exceed the quota liable to pay higher rates.
[144 G H, 145 A]
|
Appeal No. 882 of 1975.
(Appeal by Special Leave from the Judgment and Order dated 13 12 1974 of the Madras High Court in Writ Appeal No. 101/73).
Gobind Das, and Girish Chandra, for the Appellant.
V.M. Tarkunde, K. Rajendra Chaudhury, Mrs. Veena Khan na, S.L. Setia & Miss Manek Tarkunde, for the Respondent.
The Judgment of the Court was delivered by SARKARIA, J.
This appeal by special leave.
directed against a judgment dated December 13, [974, of the High Court of Madras, arises out of these facts: Respondent Rabia Bai, is a citizen of India.
She has her residence at Grange Yercund.
Salem District.
She came to know in 1949 that premises No. 20, Godown Street, G.T. Madras (known as Gani Market) was for sale.
Consequent ly, by a sale deed, dated April 29, 1949, she purchased this property from one Abdul Gani Jan Mohd. who had left for Pakistan in 1947, soon after the partition of the Indian sub continent.
Abdul Gani came to Madras in April 1949 and executed the sale deed in her favour for a consideration of Rs. 2,40,000/ out of which Rs. 1,50,000/ was paid immediately in the form of bank drafts.
Thereafter, the sale deed was duly engrossed and sent to.
Karachi for execu tion by the vendor.
who duly executed it and sent it back.
It was presented at the Collector 's Office, Madras and was duly stamped on June 27, 1949.
After obtaining the clear ance certificate from the Income tax Department.
the Regis trar registered it on August 11, 1949.
Rs. 30.000/ , the balance of the consideration was paid before the Registering Officer to Mr. M. H, Gani who held a power of attorney from the vendor.
On June 13, 1949.
Ordinance XII of 1949 was promulgated.
The Ordinance was extended to.
Madras on August 23, Ordi nance XII of 1940 was repealed by Ordinance 27 of 1949, which in turn was replaced by the Administration of the Evacuee Property Act, 1950 258 (Central Act 31 of 1950) (hereinafter referred to as the Act).
The Act had retrospective operation with effect from August 14, 1947.
Section 40 of the Act [corresponding to section 25(2) of Ord. 121, provided that no transfer made after the 14th day of August, 1947 but before the 7th day of May, 1954 by any person of any property belonging to trim which may subsequently be declared to be evacuee property, would be valid unless the transfer was confirmed by the Custodian.
General of Evacuee Property.
On December 19, 1949, the vendee Rabia Bai, applied for confirmation of the sale transaction in her favour.
The application was resisted by some tenants on several grounds.
On January 11, 1951, the Assistant Custodian Evacuee Proper ty, Madras City, declared the property in question as evacuee property under section 7( 1 ) of the Act.
The Assistant Custodian considered Rabia Bai 's applica tion for confirmation of the sale in the light of the decla ration already made by him, that the vendor being an evacu ee, the property was evacuee property.
He referred to the relevant features of the transaction and came to the conclu sion that he would not be justified in confirming it.
In reaching this conclusion, he relied on the provisions of section 40(4)(c) of the Act.
In his opinion, the feverish hurry disclosed that in making the sale, the vendor was not moti vated by good faith.
Accordingly on July 31, 1951, he made an order refusing to confirm the transaction.
Rabia Bai went in appeal against the order of the Assistant Custodian to the Custodian.
The Custodian found that the sale transac tion was supported by valuable consideration.
Even so, he proceeded to examine the question as to whether it could be said to have been entered into in good faith.
Relying On a letter written by the vendor to one Mohideen on July 4, 1949 wherein he had stated that "if the matter is delayed there would be many sort of new difficulties as you know the government are passing new rules every day", the Custodian took the view that the vendor 's intention was to dispose of and convert his properties in India into cash and to take them away to Pakistan as quickly as possible so as to evade the restrictions of the evacuee law which he apprehended could be extended to Madras any day.
On this reasoning, the Custodian came to the conclusion that the transaction had been entered into otherwise than in good faith, and so it could not be confirmed under section 40(4)(a) of the Act.
This appellate order was pronounced by the Custodian on February 4, 1953.
Rabia Bai then moved the Custodian General in revision, who dismissed the same.
Against that order Of the Custodi an General, Rabia Bai came in appeal by special leave to this Court.
While that appeal was pending, Rabia Bai on August 27, 1954, made an application under Rule 22 of the Administra tion of Evacuee Property (Central Rules) 1950 (for short the Rules) for registration of her claim for the return of the sale consideration of Rs. 2,40,000/The claim was registered by the Assistant Custodian On October 1, 1954.
Thereafter, the Act was amended by Act 91 of 1956.
By a notification, dated February 20, 1957, the aforesaid Rule 22 was deleted.
259 Rabia Bai 's aforesaid appeal (Civil Appeal No. 22 of 1956) was dismissed by this Court on January 12, 1961.
That judgment is reported as Rabia Bai vs Custodian General of Evacuee Property(1).
Rabia Bai repeatedly petitioned for the return of the sale consideration of Rs. 2,40,000/ to her but without success.
She petitioned to the Prime Minister on May 16, 1966.
Thereupon, she was informed by a letter, dated August 1, 1966, by the Deputy Custodian, Evacuee Property, Bombay, that no third party claim against the immoveable property is payable by his office as Rule 22 of the Administration of Evacuee Property (Central) Rules has since been deleted as a result of the amendment of section 10(m) by Act 91 of 1956.
By an order, dated August 18, 1966, Government of India directed that all the 'surplus balance ' of the evacuee pool lying in the personal deposit account of the Custodian be transferred to the Dy.
Accountant General, New Delhi to form part of the compensation pool under section 14(1) (b) of the Displaced Persons Compensation and Rehabilitation Act of 1954.
In 1968, Rabia Bai filed a writ petition in the High Court for return of the sale consideration.
The writ peti tion was withdrawn on July 11, 1968.
Thereafter on August 3, 1968, she made a petition under section 10(2) (m) and (n) of the Act read with Rule 22 before the Custodian.
This peti tion was rejected by the Custodian under an order, dated November 2, 1968, mainly on the ground that the properties of the evacuee were acquired by the Central Government under section 12 of the Displaced Persons (C. & R.) Act, 1954 and the sale proceeds of the said properties have been credited to the compensation pool.
There is at present, no amount in the hands of the Custodian from which the petitioner 's claims would be paid".
In his view the words "out of funds in his possession" in section 10(2) (n) of the Act show that it would be attracted only where funds are lying with the Custodian.
To impugn this order, dated November 2, 1968, of the Custodian, Rabia Bai filed writ petition No. 1259 of 1971 in the High Court.
The petition came up for hearing before a learned single Judge (Ramaprasada Rao J.) who took the view that having regard to the scheme of the Rehabilita tion Act and the policy reflected therein and the transfer of the cash balances with the Custodian to the compensation pool, it was not open tO the writ petitioner to assail transfer funds or any orders passed in that behalf and therefore she was not entitled to a writ of certiorari sought for, much less a writ of mandamus.
On this ground, he dismissed the writ petition.
With regard to the petitioner 's claim for return of the sale price, it was held that she still continues to be entitled to get the money from and out of the funds that may subsequently come into the hands of the Custodian.
It was added that "the petitioner as at present, should only be satisfied with her entitlement to claim and await the collection of funds or accumulation of funds with the Custodian in future".
(1) ; 260 Aggrieved by that order, Rabia Bai appealed under C1.
15 of the Letters Patent to a Bench of the High Court.
The Bench held that since it was not denied or refuted by the respondents (Custodian, Evacuee Property, Bombay, Regional Settlement Commissioner and Union of India) that payment of Rs. 2,40,000/ was made by Rabia Bai to the evacuee in pursuance of the infructuous sale, "the payment is also not vitiated in any manner as the sale was refused confirmation, not because of want of bona fides in the transferee, but on account of want of bona fides in the transferor.
The re spondents are, therefore under a statutory obligation to refund to the appellant the sale price paid by her".
With regard to the argument that she could not be paid because the fund with the Custodian had been transferred in compliance with the orders of the Government of India to the compensation pool formed trader section 14(1)(b) of the Rehabili tation Act, it was held that the Custodian was competent to transfer only surplus fund left with him, in excess of what was required by him for meeting the outstanding claims registered under r. 22.
The Appellate Bench spelled out this conclusion from a construction of the words "such cash balances" occurring in section 14(1)(b), and the expression "surplus fund" used in the Central Government order asking the Custodian to transfer funds to the account of the Deputy Accountant General as part of the compensation pool.
In this view, the .Bench allowed the appeal and by a writ of certiorari quashed the impugned orders and notifications.
It was further directed that a writ of mandamus shall issue requiring the 1st respondent (Resp.
Custodian) to refund the sum of Rs. 2,40,000/to Rabia Bai.
The third Respondent, Union of India was further directed to place at the dis posal of the Custodian the said sum for the purpose of the refund.
It was specified that the direction regarding the refund and payment shall be complied with within three months.
Hence this appeal by the Custodian and the other re spondents before the High Court.
Let us now have a look at the relevant statutory provi sions.
The material part of section 10, as it stood before the amendment effected by Act 91 of 1956, read as follows: "10(1) Subject to the provisions of any rules that may be made in this behalf, the Custodian may take such measures as he considers necessary or expedient for the purposes of securing, administer ing, preserving and managing any evacuee property and generally for the purpose of enabling him satisfactorily to discharge any of the duties imposed on him by or under this Act and may, for any such purpose as aforesaid, do all acts and incur all expenses necessary or incidental thereto.
(2) Without prejudice to the generality of the provision contained in sub section (1), the Custo dian may, for any of the purposes aforesaid, (a) to (1) . 261 (m) incur any expenditure, including the payment of taxes, duties, cesses, and rates to Government or to any local authority (or of any amount due to an employee of the evacuee or of any debt by the evacuee to any person).
(n) pay to the evacuee or to any member of his family or to any other person as in the opinion of the Custodian is entitled thereto, any sums of money out of the funds in his possession. " That part of clause (m), winch is shown within the brackets was deleted by Act 91 of 1956 with effect from October 22, 1956.
Section 40 reads as under: "40.
(1) No transfer made after the 14th of August, 1947, but before the 7th day of May, 1954, by or on behalf of any person in any manner whatso ever of any property belonging to him shall be effective so as to confer any rights or remedies in respect of the transfer on the parties thereto or any person claiming under them or either of them, if, at any time after the transfer, the transferor becomes an evacuee within the meaning of section 2 or the property of the transferor is declared or notified to be evacuee property within the meaning of this Act, unless the transfer is confirmed by the Custodian in accordance with the provisions of this Act.
(2) * * * (3) An application under sub section (1) for the confirmation of any transfer may be made by the transferor or the transferee or any person claiming under or lawfully authorised by either of them to the Custodian within two months from the date of the transfer or within two months from the date of the declaration or notification referred to in sub section (1) whichever is later, and the provi sions of section 5 of the Indian Limitation Act, 1908 shall apply to any such application.
(4) Where an application under sub section (1) has been made to the Custodian for confirma tion, he shall hold an inquiry in respect thereof in the prescribed manner and may reject the appli cation if he is of opinion that (a) the transaction has not been entered into in good faith or for valuable consideration; or (b) the transaction is prohibited under any law for the time being in force; or (c) the transaction ought not to be confirmed for any other reason.
262 In this connection, Rule 22 may also be seen.
The material part of this rule ran as under: "Claim by third parties : (1 ) Any person claiming the right to re ceive any payment from any evacuee or from the property of such evacuee, whether in repayment of any loan advanced or otherwise may present a peti tion to the Custodian for registration of his claim . Explanation.
An application under this sub rule shall be in respect of a claim for refund of money paid as consideration for the transfer by an evacuee of any property, where such transfer is not confirmed by the Custodian under section 10 of the Act.
(2) (a) * * (i) to (iV) * * (b) Where such claim is of the nature re ferred to in the Explanation to sub rule (1) and the Custodian holds that the transfer of the property 'in respect of which the claim is made was a bona fide transaction, the Custodian may register the claim or such part thereof as has not been satisfied: Provided that in the case of a claim of the nature referred to in the Explanation to sub rule (1), the claim shah be registered only for that amount of money which is proved to have been paid as consideration for the transfer of the property.
2A. * .
(3) The mere registration of a claim shall not entitle the claimant to payment and the Custo dian may for reasons to be recorded refuse payment .
It may be noted that Rabia Bai had made an application under tiffs rule for the registration of her claim to the refund of the sale consideration.
Indeed, it was under this rule that her claim for Rs. 2,40,000/ was registered.
From a plain reading of Rule 22, it is clear that before a claim for refund of money paid as consideration for the transfer by an evacuee of any property is registered by the Custodian, he should be satisfied: (a) that such transfer has not been confirmed under section 40 of the Act; (b) that such transfer is a bona fide transaction; (c) that the amount for which the claim is being registered is proved to have been paid as consideration for the transfer of the property.
In the instant case, the validity of the Assistant Custodian 's order dated October 1, 1954, registering the claim of Rabia Bai appears to be unassailable because all the three conditions aforesaid to give 263 authenticity to the registration of her claim were satis fied.
The sale was not confirmed by the Custodian, but he found that the whole of the price had actually been paid by the claimant as under: "That by 29.4.1949, Rabia Bai had paid a sum of Rs. 1,50,000/ to the evacuee, and by 30.5.1949, she had paid Rs. 2,10,000/ to the evacuee, and a further sum of Rs. 30,000/ was paid to the evacuee 's agent on the date of registration of the document i.e. 11.8.1949 before the Sub Registrar.
" He further found that so far as the vendee was concerned, she had purchased the property in good faith for very valuable consideration and there was no mala fides on her part.
It was on these findings that he registered her claim under Rule 22 for Rs. 2,40,000/ against "Gani Market" No. 20.
Godown Street, G.T. Madras." Mr. S.N. Prasad, appearing for the appellants contends that the order of the Assistant Custodian registering Rabia Bai 's claim for Rs. 2,40,000/ was a nullity because the transaction was not a bonafide one there being lack of good faith both on the, part of the vendor and the vendee.
In any case, proceeds the argument, a sale which is not con firmed under section 40(4) (a) owing to the absence of good faith either in the vendor or the vendee, cannot be deemed to be a bona fide transaction for the purpose of registration of a claim made by the vendee, under Rule 22.
Reference in this connection has been made to the observations of this Court, in the judgment in the earlier appeal of Rabia Bai arising out of the Custodian 's order refusing to confirm the sale under section 40(4)(a) of the Act to the effect, that the vendor had not entered into the transaction in "good faith".
The contention is misconceived and cannot be accept ed.
Under section 40(4)(a) of the Act, one of the grounds on which the Custodian is bound to reject an application for confirmation of a transfer, is that if in his opinion, the transaction has not been entered into in good faith.
This clause came up for interpretation before this Court in the earlier appeal, Rabai Bai vs Custodian General (supra).
It was held that the expression "good faith" in section 40(4)(a) when construed in the context of section 40(1) means "that if a transaction is affected by absence of good faith either in the vendor or the vendee its confirmation may properly be rejected under section 40(4)(a); in other words, good faith is required both in the vendor and vendee".
With reference to the facts of the case, it was further observed: "Therefore the fact that the appellant paid valuable consideration for the transaction and is not shown to have acted otherwise than in good faith in entering into the transaction would not justify her claim for confirmation of the said transac tion if it is shown that the vendor had not acted in good faith in entering into the said transaction.
The fact that consideration was paid by the appellant and that she was acting in good faith may perhaps be relevant in determining the character of her conduct in regard to the transaction, but it would not be relevant or material in determining the character or the conduct of the vendor in relation to the transfer.
This position is not seriously disputed before us.
" 264 It is clear that in order to qualify for confirmation under section 40(4) (a) on the ground of good faith, a sale has to pass a much more stringent test than the one required to hold it "a bona fide transaction" for the purposes of Rule 22(e) (b).
While under section 40(4) (a) lack of good faith either in the transferor or the transferee would be suffi cient to disqualify the transfer for confirmation, the posi tion under Rule 22 is different.
Under Rule 22, it is the character of the conduct of the claimant which primarily determines the character of the transaction.
Therefore, if the Vendee claimant in purchasing the property acted in good faith, for the purposes of Rule 22, the sale would be a bona fide transaction, notwithstanding the fact that there was lack of good faith on the part of the vendor.
Again, the acid test of the vendor 's bona fides under this Rule would be, whether he had purchased the property for adequate valuable consideration ? In the instant case, the Assistant Custodian found that this test was amply satisfied.
This finding of fact was not and indeed could not be challenged before the High Court.
It is therefore too late in the day to urge that Rabia Bai 's claim was not duly registered in accordance with Rule 22.
Further question that falls to be considered is: What was the consequence of this registration ? According to Mr. Prasad, the registration was an admin istrative act required to be done merely for a statistical purpose.
Our attention has been invited to sub rule (3) of the Rule, which provided that "merely registration of a claim shall not entitle the claimant to payment . " While it is true that mere registration of a claim under this Rule does not ipso facto confer a right to payment, it is not correct to say that the only purpose served by such registration is statistical and nothing else.
As has been discussed already, before registering a claim the Custodian is required to determine objectively that the transaction is bona fide, the claimant having entered into it in good faith on payment of adequate valuable consideration.
The determination of this preliminary fact which is an essential pre requisite of registration is a judicial function en joined on the Custodian by the statutory provision.
Registration of claim of a vendee under this Rule, there fore, amounts to a preliminary adjudication as to the genu ineness of the claim.
and its eligibility for discharge under the relevant substantive provisions of the Act.
The next question to be considered is the effect of the deletion of r. 22 by notification dated February 20, 1957, and the omission by Act 91 of 1956 of the words "or of any amounts due to any employee of the evacuee or of any debt due by the evacuee to any person" from section 10(2)(m) of the Act.
It is contended by Mr. Prasad that since registration under the deleted Rule 22 did not confer a vested right on the claimant, the claim does not survive for consideration under section 10 (2) of the Act.
Clause (m) of section 10(2), accord ing to Counsel, would not cover the case because of deletion caused by the amending Act 91 of 1956.
Clause (n) of s.10(2), it is maintained, also 265 will be of no avail because firstly, as a result of the deletion of r. 22, the Custodian is no longer under any legal obligation to meet the claim, and secondly, the Custo dian has no funds with him for payment of the claim as those funds have since been transferred to the Compensation Pool formed under section 14 of the Displaced Persons Compensation and Rehabilitation Act 1954 (for short, the Rehabilitation Act).
It is contended that every penny in the Custodian 's account once transferred to the Compensation Pool, can be utilised only (a) to compensate displaced persons and (b) to compen sate the evacuee according to Indo Pak Agreement (s.15), and that no part of the Compensation Pool is available to satis fy the claims of third parties who are neither displaced persons, nor evacuees.
So far as the first contention relating to the effect of deletion of r. 22 and the amendment of s.10(2) is concerned, the same is no longer res integra.
In Raja Bhanupratap Singh vs Custodian,(1) a similar argument was advanced.
Shah J. (as he then was) speaking for the Court, negatived the argument, thus: "We are, however, unable to agree that be cause of the amendment made in s.10(2)(m) and the deletion of Rule 22 the power which is vested in the Custodian under s.10(2) (n) must be held re stricted.
Sub section (1) of section 10 sets out the powers of the Custodian generally, and the diverse clauses in sub section
(2) illustrate the specific purposes for which the powers may be exercised, and there is no reason to think that the clauses in sub section
(2) are mutually exclusive.
If power to pay the debts was derived both under cls.
(m) and (n) as it appears it was, deletion of the provision which authorised the Custodian to pay debts due by the evacuee to any person from el.
(m) and Rule 22 setting up the machinery for registration of debts did not, in our judgment, affect the power which is conferred by cl.(n) by sub s.(2) and also by section 10(1).
In our judgment, the power to administer is not merely a power to manage on behalf of the evacuee so as to authorise the Custodian merely to recover and collect the assets of the evacuee but to discharge his obligations as well.
" From the above enunciation, it is clear that the substantive provision which empowers the Custodian to recover and pre serve the assets of the evacuee and to discharge his obliga tions as well is in section 10(1).
The diverse clauses of subs section (2) are not mutually exclusive, and illustrate the various purposes which are included in the general power to adminis ter the properties of the evacuee conferred on the Custodi an by sub s.(1) of s.10.
Clause (n),of s.10(2) specifical ly authorises the Custodian to pay to "any other person as in, the opinion of the Custodian is .entitled thereto any sums of money out of the funds in his possession.
" As was explained in Bhanupratap Singh 's case (supra), the use of the expression "in the opinion of the Custodian" was not intended to invest the Custodian with arbitrary authority.
(1) ; 266 In forming his opinion, he was bound to act judicially.
in the instant case, the Custodian had, in accordance with the machinery provided in r. 22 for effectuating the exercise of the power conferred by section 10(2)(n), formed an opinion about Rabia Bais claim being genuine.
In the exercise of that power the only thing that remained to be done by the Custodian was to ascertain whether there were adequate "funds in his possession" to meet Rabia Bai 's claim which was a genuine liability of the evacuee.
The words "out of the funds in his possession" in cl.(n) of section 10(2) have reference only to the funds relatable to the particular evacuee against whom or against whose property, the claim for refund is made by a claimant.
in the case before us, it is pointed out, the property in question was fetching huge rental income.
The property was acquired under section 12 of the Rehabilitation Act by the Government on February 24, 1961.
It was thereafter sold by the Government on January 18, 1962 for Rs. 3,10,100/ , that is, for a consideration substantially in excess of Rabia Bai 's claim.
The sale proceeds were credited to the Compensation Pool.
At the material time, therefore, it could not be said that the Custodian was not possessed of sufficient funds to meet the claim of Rabia Bai.
Section 14 of the Rehabilitation Act, which came into force on October 9, 1954 conceives the constitution of a Compensation Pool.
It provides that such Pool shall consist of: (a) all evacuee property acquired under s.12, including the sale proceeds of any such property and all profits and income accruing from such property; (b) such cash balances lying with the Custodian as may, by order of the Central Government, be transferred to the compensation pool; (c) such contributions, in any form whatsoever, as may be made to the compensation pool by the Central Government or any State Government; (d) such other assets as may be prescribed.
Sub section
(2) further provides that the Compensation Pool shall vest in the Central Government free from all encum brances and shall be utilised in accordance with the provi sions of the Act and the rules made thereunder.
The controversy is about the true import of the expres sion "cash balances lying with the Custodian" used in cl.
(b) of sub section
(1) of section 14.
According to Mr. Prasad "such cash balances" will cover all funds in their entirety lying in the deposit account of the Custodian which may be transferred by an order of the Central Government to the Compensation Pool.
In our opinion, the expression "such cash balances" used in section 14(1)(b) cannot be interpreted so as to cover total cash deposits.
267 with the Custodian.
The use of the word "balances" is significant.
The connotation of the term "balances" is well known.
According to Websters ' Dictionary, it means "the difference, if any, between the debit and credit side of an account.
" It is the result of a comparative reckoning.
The expression "cash balances" in clause (b) therefore, has to be construed as the excess of credits over debits.
The word "balances" appears to have been advisedly used in preference to "deposits" because the intention was that only that much amount in deposit with the Custodian should be transferred to the Compensation Pool which would be in excess of the amounts required for meeting the due claims against the evacuees or their properties.
It is thus clear that what can be directed to be transferred to the Compensa tion Pool by the Government under section 14(1)(b) is the "cash balances" and not the total cash deposits with the Custodi an.
The above being the legal position, it is to be seen as to what was actually directed to be transferred to the Compensation Pool.
The first order of such transfer made by the Central Government is dated March 19, 1956.
It purports to have been issued under s.14(1)(b) of the Reha bilitation Act.
Thereby the Government directed that a sum of Rs. 10 crores out of the balances centralised under the Head "S Deposits and advances Part II Deposits not bearing interest (C)other Deposits of the Custodians of Evacuee Property" be , 'transferred to the Compensation Pool.
The second order is dated February 26, 1957 whereby the sum of Rupees one crore was directed to be transferred out of the Custodian 's cash balances to the Compensation Pool.
The last order is dated August 18, 1966, whereby it was directed that all the surplus balances in the deposit account of the Custodians be transferred to the Compensation Pool.
The use of the word "surplus" in this Government order is sig nificant.
It puts the matter beyond doubt that only those balances which were surplus or in excess over what was required to meet the liabilities of the evacuees or the registered verified claims against the evacuees or their properties, were to be transferred to the Compensation Pool.
It was the duty of the Custodian therefore to keep back with him so much of the funds in his deposit as were neces sary to meet the verified claims against evacuees or their properties.
a course on his part would have been perfectly legal and also in conformity with the final direc tions issued for transfer of "surplus balances" by the Central Government.
Only the 'cash balances ' which were validly transferred could legally form part of the Compensa tion Pool.
On this point we agree with the High Court that the Custodian had neither ' the power nor the, authority to transfer the entirety of funds to the Compensation Pool.
Even if it is considered for the sake of argument that the last order of the Government was a direction to transfer the entirety of funds including those relating to the property of the evacuee, Abdul Ghani Jan Muhammad, without keeping back what was required for paying the registered claims of Rabia Bai, then the same would be contrary to the intendment of cl.(b) of section I4(1) to the extent of Rabia Bai 's claim.
268 We are of opinion that in the peculiar circumstances of the case, the Appellate Bench of the High Court was right in directing the Custodian to refund a sum of Rs. 2,40,000/ to the respondent, Rabia Bai, in 'payment of her claim and in further directing the Central Government to place at the disposal of the Custodian, appellant herein, the said sum for the purpose of refund.
The time for refund is further extended by 3 months from today, if the same has not already been done.
Accordingly, we dismiss this appeal.
The appel lant shall pay the costs of the respondents in this Court.
P.B.R. Appeal dismissed.
| IN-Abs | Section 40(1) of provides that no transfer of any property belong ing to an evacuee, which may subsequently be declared to be evacuee property, shall be effective unless the transfer was confirmed by the Custodian.
Sub section (4)(a) provides that where an application had been made to the Custodian for confirmation, he may reject the application if he is of opinion that the transaction had not been entered into in good faith or for valuable consideration.
In 1949 the respondent purchased house property from an evacuee and paid the consideration.
She made an application under section 40 to the Assistant Custodian for confirmation of the sale.
The application was rejected by him on the ground of want of good faith on the part of the vendor in entering into the transaction.
Her appeal to the Custodian and revision to the Custodian General were dismissed.
In the meantime, under r. 22, of the Administration of Evacuee Property (Central Rules) 1950, the respondent registered her claim for the return of the sale consideration to her.
Thereafter r. 22 was deleted.
She was informed by the Deputy Custodian that no third party claim against immovable property was payable since r. 22 was deleted.
In 1966 the Government transferred to Compensation Pool the 'surplus balance ' of the evacuee pool lying in the personal deposit account of the Custodian.
The respondent later made a petition to the Custodian, which was rejected mainly on the ground that the sale proceeds had been credited to the compensation pool, that there was no amount in the bands of the Custodian from which her claim could be paid and ' that the words "out of funds in his possession" occurring in section 10(2)(n) of the Act showed that the clause would be attract ed only where funds were lying with the Custodian.
The High Court held that payment made by the respondent to the evacuee in pursuance of the infructuous sale, was not vitiated in any manner as the sale was refused confirmation, not because of want of bona fides in the transferee, but on account of want of bona fides in the transferor, and as such the Custodian was under a statutory obligation to refund the sale price paid by her and that the Custodian was competent to transfer only surplus fund left with him, in excess of what was required by him for meeting the outstanding claims registered under r. 22.
In appeal to this Court it was contended that (i) the order of the Assistant custodian registering the claim was a nullity because since the sale was not confirmed under section 40(4)(a) it could not be deemed to be a bona fide transac tion for the purposes of registration of claim under r. 22; (i;) registration .
was an administrative act required to be done for statistical purposes; and (iii) as a result of the deletion of r. 22 the Custodian was no longer under an obligation to meet the claim and no part of the compensa tion pool was available to satisfy the claims of third parties who were neither displaced persons nor evacuees.
Dismissing the appeal, HELD: (1 ) The High Court was right in directing the Custodian is refund the sale price to the respondent in payment of her claim and in further directing 256 the Central Government to place at the disposal of the Custodian the said sum for the purpose of refund.
[268 A B] (1)(a) Under r. 22, before a claim for refund.
of money paid as consideration for the transfer by an evacuee of any property is registered by the Custodian, he should be satis fied: (i) that such transfer has not been confirmed under section 40 of the Act, (ii) that such transfer is a bona fide trans action; (iii) that the amount for which the claim is being registered is proved to have been paid as consideration for the transfer of the property.
[262 G] In the instant case, the validity of the, Assistant Custodian 's order registering the respondent 's claim is unassailable because all the three conditions aforesaid to give authenticity to the registration of her claim were satisfied.
The sale was not confirmed by the Custodian but he found that the whole of the price had actually been paid by the claimant.
[263 A] (b) In order to qualify for confirmation under section 40(4)(a) on the ground of good faith, a sale has to pass a much more stringent test than the one required to hold it "a bona fide transaction" for the purposes of r. 22.
While under section 40(4)(a), lack of good faith either in the trans feror or the transferee would be sufficient to disqualify the transfer for confirmation, the position under r. 22 is different.
Under r. 22 it is the character of the conduct of the claimant which primarily determines the character of the transaction.
Therefore, if the vendee claimant in purchasing the property acted in good faith, for the pur poses of r. 22, the sale would be a bona fide transaction, notwithstanding the fact that there was lack of good faith on the part of the vendor.
Again, the test of the vendee 'section bona fides under this Rule would be, whether he had pur chased the property for adequate valuable consideration.
[264 A B] Rabia Bai vs Custodian General of Evacuee Property ; followed.
In the instant case, the Assistant Custodian found that this test was amply satisfied.
This finding of fact was not challenged before the High Court.
It is therefore too late in the day to urge that the respondent 's claim was not duly registered in accordance with r. 22.
[264 C] (2) Registration of claim of a vendee under r. 22 amounts to a, preliminary adjudication as to the genuineness of the claim and its eligibility for discharge under the relevant substantive provisions of the Act.
While mere registration of a claim under this rule does not ipso facto confer a right to payment, it is not correct to say that the only purpose served by such, registration is statistical and nothing else.
Before registering a claim the Custodian is required to determine objectively that the transaction is bona fide the claimant having entered into it in good faith on payment of adequate valuable consideration.
The determi nation of this preliminary fact, which is an essential pre requisite of registration, is a judicial function enjoined on the Custodian by the statutory provision.
[264 E F] (3)(a) The words "out of the funds in his possession" in section 10(2)(n) have reference only to the funds relatable to the particular evacuee against whom or against whose proper ty, the claim for refund was made by a claimant.
The use of the expression 'in the opinion of the Custodian ' in section 10(2)(m) was not intended to invest the Custodian with arbitrary authority.
In forming his opinion, he was bound to act judicially.
[266 A B] Raja Bhanupratap Singh vs Custodian ; fol lowed.
In the instant case, the Custodian had formed an opinion about the respondents claim being genuine.
In the exercise of that power the only thing that remained to be done by the Custodian was to ascertain whether there were adequate 'funds in his possession ' to meet the respondent 's claim.
The property was ' sold by the Government for a consideration which had been far in excess of her claim, and the sale proceeds were credited to the compensation pool.
It could not be said that at the material time the Custodian was not in .
possession of sufficient funds to meet the respondent 's claim.
[266 B] (b) The expression 'such cash balances ' used in section 14(1)(b) of the Rehabilitation Act cannot be interpreted to cover total cash deposits with the Custodian.
257 The expression has to be construed as the excess of credits over debits.
The word 'balances ' had been advisedly used in preference to 'deposits ' because the intention was that only that much amount in deposit with the Custodian should be transferred to the Compensation Pool which would be in excess of the amounts required for meeting the due claims against the evacuees or their properties.
What can be di rected to be transferred to the Compensation pool by the Government under section 14(1)(b) is the 'cash balances ' and not the total cash deposits with the Custodian [267 A B] (c) The Custodian bad neither the power nor the authori ty to transfer the entirety of funds to the Compensation Pool.
The word 'surplus, ' used in the Government order puts the matter beyond doubt that only those balances which were surplus or in excess over what was required to meet the liabilities of the evacuees, were to be transferred to the Compensation Pool.
It was the duty of the Custodian, there fore.
to keep back with him so much of the funds in his deposit as were necessary to.
meet the verified claims against evacuees or their properties.
Such a course would have been perfectly legal and also in conformity with the final directions issued for transfer of 'surplus balances ' by the Central Government.
Only the 'cash balances ' which were validly transferred could legally form part of the Compensation Pool.
[267 E G]
|
Appeals Nos. 644 650/74.
(Appeals by Special Leave from the Judgment and Order dated 21 6 1975 of the Karnataka High Court in Misc.
First Appeal Nos. 77, 444 450/70 respectively).
K. Sen, V.M. Tarkunde, H.B. Datar and R.B. Datar for the appellant.
section Rangaraj, M. Qamaruddin, P.N. Purl, S.K. Mehta for Mr. K.R. Naggrain, for respondent in CA.
No. 644/74.
A.R. Somnath Iyer, section Laxminarasu, for respondents in CA.
Nos. 645 650/74.
The Judgment of the Court was delivered by BEG, J.
Civil Appeals Nos.
650 of 1974 are by special leave against the judgment of a Division Bench of the Karnataka High Court.
The common and principal question of law which arises is: Does the City of Bangalore Improve ment Act, 1945 (hereinafter referred to as 'the Act ' or 'the Bangalore Act '), applying the provisions of the Land Acqui sition Act, 1894 (Central Act 1 of 1894).
(hereinafter referred to as 'the Acquisition Act '), to acquisitions of land in Bangalore require the determination of market value, for purposes of awarding compensation, on a date correspond ing to the date of notifi 181 cation under Section 4 of the Acquisition Act or to the date corresponding to that of the notification under Section 6 of the Acquisition Act The facts of the cases are not really material for the determination of the question of law stated above.
A few facts relating to the lands acquired may, however, be men tioned.
They have a bearing on a connected question dealt with at the end of this judgment.
The seven appeals by special leave arise out of land acquisition proceedings in which the 1st of the preliminary notifications, under Section 16 of the Bangalore Act, took place in the Mysore Gazette from 1960 onwards; and, the subsequent notifications, under Section 18 of the Bangalore Act, equated by Section 27(2) of the Bangalore Act with notifications under Section 6 of the Acquisition Act, were made in 1967.
All the lands involved in these appeals are situated in Birmamangala Village, Bangalore North Taluk, and are .shown to have been acquired for the purposes.
of a scheme known as 'Bhinnamangala Lay Out II Stage or Indira Nagar Extension '.
The Bangalore Act, as its preamble states, is really concerned with the "improvement and future expansion of the City of Bangalore and for the appointment of a Board of Trustees with .special powers to carry out the aforesaid purposes;".
As an incident of this improvement and expansion it provides for acquisition of land also.
It does not, however, contain a separate code of its own for such acqui sitions.
But, Section 27 of the Bangalore Act lays down: "27.
Provisions applicable by the acquisition of land otherwise than by agreement.
The acquisi tion otherwise than by agreement of land within or without the City under this Act shall be regulated by the provisions, ,so.
far as they are applicable, of the Mysore Land Acquisition Act, 1894, and by the following further provisions, namely : (1) Upon the passing of a resolution by the Board that an improvement scheme under Section 14 is necessary in respect of any locality, it shall be lawful for any person either generally or spe cially authorised by the Board in this behalf and for his servants and workmen, to do all such acts on or in respect of land in that locality as it would be lawful for an officer duly authorised by the Government to act under Section 4(2) of the Mysore Land Acquisition Act, 1894 and for his servants and workmen to do thereunder; and the provision contained in Section 5 of the said Act shall likewise be applicable in respect of damage caused by any o.f the acts first mentioned.
(2) The publication of a declaration under section 18 shall be deemed to be the publication of a declaration under section 6 of the Mysore ', Land Acquisition Act, 1894.
182 (3) For the purposes of section 50(2) of the Mysore Land Acquisition Act, 1894 the Board shall be deemed to be the local authority concerned.
(4) After the land vests in the Government under section 16 of the Mysore Land Acquisition Act, 1894 the Deputy Commissioner shall, upon payment of the cost of the acquisition, and upon the Board agreeing to pay any further costs which may be incurred on account of the acquisi tion, transfer the land to the Board, and the land shall thereupon vested in the Board".
The Mysore Land Acquisition Act of 1894 exactly reproduces our Central Land Acquisition Act 1 of 1894.
Therefore, the term 'Acquisition Act ' in this judgment covers references to both the Mysore Land Acquisition Act as well as the Central Land Acquisition Act 1 of 1894.
It was stated by Counsel that the Mysore Land Acquisition Act was also correspondingly amended whenever provisions of the Central Land Acquisition Act 1 of 1894 were altered .so that the two could be treated as iden tical for our purposes.
The judgment and orders of the Division Bench, under appeal before us, purports to follow a Full Bench decision of the Mysore High Court in Venka tamrna vs Special Land Acquisition Officer(1), where it was held that the relevant date for deter mining the market value of the property to be acquired is the date of notification under section 18 of the City of Mysore Improvement Act of 1903.
It appears that the provisions of the last men tioned Mysore Act of 1903 largely correspond with the provisions of the Bangalore Act before us.
It has, however, to be remembered that the Act which the Full Bench of the Mysore High Court was interpreting was.
enacted in 1903.
It had, there fore, to be construed with reference to the provi sions of the Acquisition Act as it stood in 1903.
The Mysore Full Bench had observed that the Mysore Land Acquisition Act had been amended by the Mysore Act 1 of 1927 "so as to make compensation payable as on the date of publication of the notification under section 4(1) of that Act" instead of with reference to the date of notification under section 6 according to the unamended law.
It said: "It is significant to note that the Mysore Legis lature did not make any corresponding amendment in the Act" (that is to say, the City of Mysore Act of 1903).
The Bangalore Act, even though it may Correspond substantially with the provisions of the Mysore Improvement Act 3 of 1903, was enacted in 1945.
Hence, references in the Bangalore Act to the Acquisition Act, which had been amended considerably between 1903 and 1945, could not have the same effect as similar references to the Acqui sition Act in the Mysore Act of 1903.
We think that the Division Bench of the Karnataka High Court overlooked this vital distinction.
(1) A.I.R. 183 The Full Bench of the Mysore High Court ex pressed the view that the contention that a notifi cation under Section 16 of the Mysore Act of 1903 could be equated with a notification under section 4 of the Acquisition Act was negatived by the provisions of Section 23 sub.
section (1) of the Mysore Act of 1903.
It said (at p. 198): "Section 23 (1) of the Act states that upon the passing of a resolution by the Board that an improvement scheme under Section 14 is necessary, it would be lawful for any person authorised by the Board to enter upon the land carry out the several acts on the land in question as provid ed under section 4(2) of the Acquisition Act and the pro visions of section 5 of the Acquisition Act would likewise be applicable in respect of damage caused by any of the acts of servants or workmen of the Board".
It, therefore, thought that what was sought to be achieved by notification under section 4( 1 ) of the Acquisition Act was done by a resolution under section 14 of the Mysore Act.
Taking the view that such a resolution could only be anterior to the publication of the notification under sec tion 16, it equated the notification under section 16 of the Mysore Act with a notification under section 6 of the Acquisition Act.
Thus, the Mysore.
Full Bench found in Section 23 (1) of the Mysore Act of 1903, a justification for equating provisions of section 14 of that Act with, those of section 4(1) of the Acquisition Act.
But, we do not find either in section 23 of the Bangalore Act, which deals with an entirely different subject matter, or, any where, apart from section 27, additional provision (1) of the Bangalore Act, a similar provision which could ;indicate that proceedings under a section other than those under section 16 of the Bangalore Act could possibly correspond with those under section 4(1) of the Acquisition Act.
And, we think that to equate a resolution under section 14 of the Act with a notification under section 4(1) of the Acquisi tion Act, on a similar reasoning, would be to miss the very different purposes meant to be served by a resolution under section 14 of the Bangalore Act and a notification under section 4(1) of the Acquisition Act.
Such reasoning appears to us to be very far fetched.
Another reason given by the Full Bench of the Mysore High Court, for holding that market value should be deter mined as on the date of notification under section 18 and not that of notification under section 16 of the City of Mysore Improvement Act (both these sections, correspond to section 16 and 18 of the Bangalore Act) was that a delay of 20 years between the two notifications would make the acquisition unconstitutional.
We are unable to appreci ate the bearing of this consideration on a decision of the statutory requirements as to the date on which market value is to be determined for purposes of compensation.
If a particular acquisition becomes unconstitutional due to an unreasonable mode of exercising the statutory powers of acquisition, neither the provision which is so misused nor the meaning.
of other provisions, which are relevant for determining the date of market value, is affected.
We are constrained to observe that some of the reasons 184 given by the Full Bench of the Mysore High Court as well as the Division Benches of the Karnataka High Court have little connection with the date on which the market value has to be determined according to statutory provisions.
A pure ques tion of interpretation of fairly clearly expressed legis lative intent which should not have been permitted to be fogged by adverting to irrelevant matters.
It is true that the Bangalore Act has its own distinct purposes and prescribed modes in which they are to be car ried out.
Acquisition of land, as already observed, is a mere incident in the carrying out of those purposes.
Sec tion 26 of the Act gives, it the power to acquire land by agreement.
Section 27 of the Act reproduced above, enables the procedure 'found in the Acquisition Act to be utilised except to the extent to which the procedure for compulsory acquisition in the Bangalore Act may differ from that con tained in the Acquisition Act.
Section 27 of the Banga lore Act gives certain "further provisions" indicated under four heads.
Apparently.
these are meant to dis place corresponding actions under the Acquisition Act.
We have to identify the corresponding provisions only for the purposes of applying Section 23(1) of the Acquisition Act.
It is evident that the first of these additional provi sions enables the Board of Trustees, by virtue of section 14, to undertake what could have been done under the Acquisition Act only after a notification under section 4(1 ) of the Acquisition Act.
In other words, the deviation from the procedure laid down in the Acquisition Act is that, whereas the Agents of the Govt.
could not undertake any thing provided for by section 4(2) of the Acquisition Act without a notification under section 4(1) of the Acquisition Act, the Board of Trustees could do those very things with out any notification under section 4(1) of the Acquisition Act.
Even if we could equate the resolution under section 14 of the Bangalore Act with a notification under section 4(1) of the Acquisition Act, we could not dispense with the requirements of section 23(1) of the Acquisition Act which is the only provision applicable for determining the date of the market value.
The only result of equating a resolution under section 14 with a notification under section 4(1) of the Acquisition Act could be to shift the date of as certainment of market value farther back.
But, that is not what the respondents contend for.
The second additional provision under section 27(2) seems designed, by way of abundant caution, to clarify the mean ing of provisions of section 18 of the Act, Obviously, it prevents any construction which could enable a notifica tion under section 18 of the Bangalore Act to be equated with section 4(1) of the Act.
To hold that a notification under section 18 of the Bangalore Act could be equated with section 4(1) of the Acquisition Act, in the face of this clear provision, equating it with a notification under section 6 of the Acquisition Act, is to countenance the obvious absurdity that there is no difference between a notification under section 4(1) and section 6 of the Acqui sition Act.
A possible line of argument, in view of the 1st addi tional provision in section 27 of the Bangalore Act, could be that, since the 185 general procedure under the Acquisition Act applies, a notification under section 4(1) of the Acquisition Act itself should precede any action under section 14 of the Act which is to be equated with section 4(2) of the Acquisi tion Act.
But, that has not been the argument of any side either in the Karnataka High Court or before us.
Had that been necessary and no notification under section 4(1) of the Act had taken place, the validity of the whole acquisition proceedings could have been challenged, but, the validity of the Acquisition proceedings is not assailed before us at all.
Such a line reasoning would be also shut out by the principle that the particular and the especially provided procedure ;would exclude the more general if we hold, as we have to having regard to Section 16 of the Act, that the special procedure was meant to take the place of and to serve the same object as the general.
The argument that an additional compliance with section 4(1) of the Acquisi tion Act was necessary despite the special procedure in section 16 of the Act, which fulfils the same function, is also repelled by the correct view taken in M. Manicklal vs the State of Mysore (1) by the Mysore High court.
The real question before us is whether the market value should be determined with reference to the date of notifica tion under section 16 of the Act.
As we find that the notification under section 18 has been actually equated, by the second additional provision contained in section 27 of the Bangalore Act, with a notification under section 6 of the Acquisition Act, so that it could not be also equated with any notification under section 4(1) of the Acquisition Act and, as we also find that the provisions of section 16 of the Bangalore Act and section 4(1) of the Acquisition Act show that the obvious intention behind and objects achieved by a notification under section 16 of the Act and one under section 4(1 ) of the Acquisition Act are identical, we think that it is most reasonable to hold that it is not necessary at all, in such cases, to comply with section 4(1) of the Acquisition Act in addition to complying with section 16 of the Bangalore Act.
The general provisions of section 4(1) of the Acquisition Act are displaced by the special provisions of section 16 of the Act.
Here, we may set out the provisions of section 4 of the Acquisition Act and section 16 of the Bangalore Act to indi cate the identity of purposes and the extent of similarity of procedure.
Section A of the Acquisition Act provides: "4.
Publication of preliminary notification and powers of officers there upon. (1) Whenever it appears to the appropriate Government or the Deputy Commissioner that land in any locality is needed or is likely to be needed for any public purpose, a notification stating the purpose for which the land is needed, or likely to be needed, and describing the land by its survey number, if any, and also by its boundaries and its approximate area; shall be published in the official Gazette, and its Deputy Commissioner (1) 1967 (2) M.L.J.p.239 1414 1003SCI/76 186 shall cause public notice of the substance of such notification to be given at convenient places in the said locality.
The Deputy Commis sioner may also cause a copy of such notification to be served on the owner, or where the owner is not the occupier, on the occupier of the land.
Explanation.
The expression 'convenient places ' includes, in the case of land situated in a vil lage, the office of the panchayat within whose jurisdiction the land lies.
(1A) The notification under sub section (1) shall also specify the date, (such date not being less than thirty days from the date of publication of the notification) on or before which, and the manner in which, objections to the proposed acqui sition may be made, under section 5A. (2) On the publication of such notification it shah be lawful for any Officer, either generally or specially authorized by such Government or by the Deputy Commissioner in this behalf, and for his servants and workmento enter upon and survey and take levels of the land; to dig or bore into the sub soil; to do all other acts necessary to ascertain whether the land is adapted for such purpose; to set out the boundaries of the land proposed to be taken and the intended line of work (if any) proposed to be made thereon; to mark such levels, boundaries and line by placing marks and cutting trenches; and where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle: Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling house (unless with the con sent of .the occupier thereof) without previously giving such occupier at least seven days notice in writing of his intention to do so.
(3 ) Where the acquisition is for a company, an officer of such company may be authorised by the appropriate Government or the Deputy Commissioner to exercise the powers conferred by sub section (2).
(4) The Officer authorised, under sub section (2)or sub section (3) shall complete his investiga tion and submit his report to the Deputy Commis sioner within a period of three months (or within such longer period not exceeding six months in all as the Deputy Commissioner may allow), from the date of the publication of the notification under subsection (1).
with his remarks to the appropriate Government along with his report under sub section (2) of section 5A".
187 Section 16 of the Bangalore Act enacts: "16.
Procedure on completion of scheme. (1) Upon the completion of an improvement scheme, the Board shall draw up a notification stating the fact of a scheme having been made and the limits of the area comprised therein, and naming a place where particulars of the scheme, a map of the area comprised therein and a statement specifying the land which it is proposed to acquire and of the land in regard to which it is proposed to recover a betterment fee may be seen at all reasonable hours; and Shall (a) Copy of notification of scheme to be communicated to May or of the Corporation Communi cate a copy of such notification to the Mayor of the Corporation who shall, with in thirty days from the date of receipt thereof forward to the Board, for transmission to the Government as hereinafter provided, any representation which the Corporation may think fit to make with regard to the scheme; (b) Publication of notification.
Cause a copy of the said notification to be publication during three consecutive weeks in the Mysore Gazette and posted up in some conspicuous part of its own office, the Deputy Commissioner 's office, the office of the Corporation and in such other places as the Board may consider necessary.
(2) Service of notices on owners of property to be acquired in executing the scheme.
During the thirty days next following the day on which such notification is published in the Mysore Gazette the Board shall serve a notice on every person whose name appears in the assessment list of the Corpora tion or the Municipality or local body concerned or in the land revenue register as being primarily liable to pay the property tax or land revenue assessment on any building or land which it is proposed to acquire in executing the scheme, or in regard to which the Board proposes to recover a betterment fee, stating that the Board proposes to acquire such building or land or to recover such bettermentfee for the purpose of carrying out an improvement scheme and.
requiring an answer within thirty days from the date of service of the notice stating whether the person so served,dissents or not to such acquisition of the building or land or to the recovery of such betterment fee, and if the person dissents, the reasons for such dissent.
(3) Notice how to be served.
Such notice shall be signed by, or by the order of, the Chairman and shall be served (a) by delivery of the same personally to the person required to be served or if such person is absent or cannot be found, to his agent, or if no agent can be found, then by leaving the same on the land or building; or (b) by leaving the same at the usual or last known place of abode or business of such person as afore said; or 188 (c) by registered post addressed to the usual or last known place of abode or business of such person".
It will be set that Section 16 of the Bangalore Act provides even more elaborately for the publication of the initial notice which is given in section 4(1) of the Acquisition Act so that any representa tions which the objectors may have to make may be considered by the Board itself under section 17 of the Bangalore Act.
Thus, the object of the procedure provided by section 16 and section 17 seems to be to take the place of the notification under section 4(1) and the hearing of objections under section 5A of the Acquisition Act.
Under the Bangalore Act, it is the Board itself which gives notices and considers objections to a scheme before communicating the scheme to the Govt.
for sanction.
It is true that the Board has not been specifically given the power by the Bangalore Act to rescind the scheme.
The Bangalore Act only mentions the Board 's power to modify the scheme, if it considers that to be necessary.
After that, the Act directs the Board to send it to the Government for sanc tion.
Of course, the Govt.
could either sanction or reject the scheme.
And, in suitable cases, the Board could perhaps revoke its own resolution.
But, we need not consider or decide that question here.
All we need observe here is that a corre sponding special procedure, which we find in the provisions of section 16 of the Bangalore Act, need not necessarily be identical with the general procedure, serving the same object, which we find in section 4(1) of the Acquisition Act.
We are concerned more here with the identity of objects and functions of provisions rather than with that of precise steps prescribed or words used in them.
The next stage is found in section 18 which lays down: "18.
On receipt of sanction, declaration to be published giving particulars of land to be acquired (1) (a) On receipt of the sanction of the Govern ment,.
the Chairman shall forward a declaration for notification under the signature of a Secretary to the Government, stating the fact of such sanction and that the land proposed to be acquired by the Board for the purposes of the scheme is required for a public purpose.
(b) The declaration shall be published in the Mysore Gazette and shall state the limits; within which the land proposed to be acquired is situate, the purpose for which it is needed, its approximate area and the place where a plan of the land may be inspected.
(c) And upon such publication Board to proceed to execute the scheme.
The said declara tion shall be conclusive evidence that the Land is needed for a public purpose, and the Board shall, upon the publication of the said declaration, proceed to execute the scheme.
(2) Board to have power to alter any part of the Scheme. (a) If at any time it appears to the Board that an improvement can be made in any part of the scheme, the Board may alter the scheme for the purpose of making such 189 improvement, and shall, subject to the provisions contained in the next two clauses of this sub section forthwith proceed to execute the scheme as altered.
(b) If the estimated cost of executing the scheme as altered exceeds, by a greater sum than five per cent the estimated cost of executing the scheme as sanctioned, the Board shall not, without the previous sanction of the Govern ment, proceed to execute.
the scheme as altered.
(c) If the scheme as altered involves the acquisition otherwise than by agreement, of any land other than that specified in the schedule accompanying the scheme under section 17(2)(e), the provisions of sections 16 and 17 an sub sec tion (1) shall apply to the part of the scheme so altered, in the same manner as if such altered part were the scheme".
It will be seen that, but for the 1st additional provi sion, contained in section 27 of the Bangalore Act, perhaps it could be urged that the powers contained in section 4(2) of the Acquisition Act and the fight to damages, con tained in section 5 of the Acquisition Act, do not apply at all to acquisition under the Act.
Hence, this additional provision became necessary.
We are not called upon to determine here at what stage, powers under section 4(2) of the Acquisition Act could or should reasonably be.
exercised in a case falling under the provisions of the Bangalore Act.
Nevertheless, we may mention that it would seem more reasonable to exercise the powers provided for by section 27(1) of the Bangalore Act (i.e. powers in section 4(2) of the Acquisition Act) only after a notification under section 16 of this Act.
An examination of the provisions of the Bangalore Act and of acquisition proceedings under the Acquisition Act, contemplated by it, would reveal that, whereas the procedure from the notification under section 4 to the notification under section 6 of the Acquisition Act gives place to the procedure provided by sections 14 to 18 of the Bangalore Act, the stage at which compensation is to be determined is to be regulated entirely by the general provisions of sec tion 23 (1) of the Acquisition Act because there is no special or separate provision in the Bangalore Act to regu late the compensation payable.
It is true that section 23 is not specifically mentioned in the Bangalore Act.
But, the obvious purposes of the opening words of section 27 of the Bangalore Act seems to us to be that award of compensa tion, which is a necessary part of any law providing for acquisition, must be governed by section 23 of the Acquisi tion Act.
The last mentioned section enacts: "23.
Matters to be considered in determining compensation. (1) In determining the. amount of compensation to be awarded for land acquired under this Act, the Court shah take into consideration 190 first, the market value, of the land at the date of the publication of the 'notification under section 4, subsection ( 1 ); secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Deputy Commissioner 's taking possession thereof; thirdly, the damage (if any), sustained by the person interested, at the time of the Deputy Com missioner 's taking possession of the land, by reason of severing such land from his other land; fourthly, the damage (if any), sustained.
by the person interested, at the time of the Deputy Com missioner 's taking pOssession of the land, by reason of the acquisition injuriously affecting his other property.
movable or immovable, in any other manner, or his earnings; fifthly, if, in consequence of the acquisition of the land by the Deputy Commissioner, the person interested is compelled to change hie residence.
or place of business, the reasonable expenses (if any), incidental to such change; and sixthly, the damage (if any), bona fide result ing from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Deputy Commissioner 's taking possession of the: land.
(2) In addition to the market value of the land, as above provided, the Court shall in every case award a sum of fifteen per centum on such market value, in consideration of the compulsory nature of the acquisition".
Non specification of a different principle or procedure in the Act, governing award of compensation under the Banga lore Act, far from indicating, as learned Judges of the High Court erroneously opined, that section 23(1) of the Acquisi tion was not applicable here at all, was one of the strong est arguments for holding that it is covered by the general provisions applied by section 27 of the Bangalore Act.
An acquisition proceeding without providing for award of com pensation on some principle is unthinkable.
Such a situa tion would have invited an attack on the validity of the acquisition itself.
But, as we have already observed, there is n` such challenge here.
There was some argument on the meaning of the words "so far as they are applicable", used in section 27 of the Bangalore Act.
These words cannot be changed into: "in so far as they are 191 specifically mentioned" with regard to the procedure in the Acquisition Act.
On the other hand, the obvious intention, in using these words, was to exclude only those provisions of the Acquisition Act which become inapplicable because of any special procedure prescribed by the Bangalore Act (e.g. section 16)corresponding with that found in the Acqui sition Act (e.g. section 4(1).
These words bring in or make applicable, so far as this is reasonably possible, general provisions such as section 23(1) of the Acquisition Act.
They cannot be reasonably construed to exclude the application of any general provisions of the Acquisition Act.
They amount to laying down the principle that what is not either expressly, or, by.
a necessary implication,, excluded must be applied.
It is surprising to find mis construction of what did not appear to us to be reasonably open to more than one interpretation.
Learned Counsel for the respondents, rather desparately, attempted to argue that, as there was no procedure or prin ciple laid down at all for award of compensation in the Bangalore Act, we should invoke the aid of Equity and hold that the market value should be determined with reference to the date of notification under section 18 of the Act.
We do not think that such an argument could be advanced at all in the face of the provisions of section 27(2) which clearly equate a notification under section 18 of the Bangalore Act with the notification under section 6 of the Acquisition Act.
We know the maxim that "equity follows the law".
We have not heard of the proposition that some transcendental Equity should be so used as to defeat or amend the ' law as it stands.
Maitland said long ago that equity came to supplement and not to supplant the law.
We think that, if we were to aquate a notification under section 18 with the notification under section 6 of the Act for purposes of determining the market value, which is to be awarded, we would be doing nothing short of supplanting at least 'the law as found clearly laid own in section 27 of the Banga lore Act read with section 23 of the Acquisition Act.
We think that the Division Bench of ' the Karnataka High Court had seriously misdirected itself in not giving effect to obvious meanings of the plain words used in statutes under consideration.
Another contention which found favour in the Karnataka High Court was that a judgment filed by the respondents claimants m Civil Appeals Nos. 644 650 of 1974, when they appealed to the Karnataka High Court against the ' orders passed by a Civil Judge of Bangalore, on a reference made under the Acquisition Act, could be accepted as additional evidence under Order 41, Rule 27 C.P.C. on the ground that it.
was relevant, evidence for the purpose of determining compensation of lands which were the subject matter of appeals before the High Court.
The reasons given for admit ting, at the appellate stage, a judgment of the High Court, which had not been filed before the Trial Court, were: firstly, that it was not available when the proceedings were pending in the Trial Court; and secondly, that lands dealt with by the judgment were adjacent to the lands the value of which needed determination, and that both sets of 192 lands were acquired at different stages of what is known as the "layout scheme within the limits of Bhinnamangala vil lage '.
The High Court overruled the objection that the judgment admitted as additional evidence was not final inasmuch as an appeal against it was pending in this Court.
We find that the High Court did not consider it, for some reason, necessary to refer to the provisions of the Indian Evidence Act which regulate the admissibility of all evi dence including judgments.
There could be no question of res judicata in such a case.
The previous judgment was not between the same parties.
Furthermore, the appellant was not given any opportunity of showing that the judgment related to land which was at some distance from the lands whose value was to be determined or that its site value was, for some reason, higher.
Even the time at which the value of the other land was determined was not shown to be identical.
Such judgments are not judgments in rem.
They are judgments in personam.
The general provision of law governing admissibility of all judgments, whether they are judgments in rem or judgments in personam operating as res judicata, is section 43 of the Evidence Act which reads as follows: "43.
Judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judg ment, order or decree, is a fact in issue, or is relevant under some other provision of this Act".
It is apparent that section 43 enacts that judgments other than those falling under sections 40 to.
42 are irrel evant unless they fall under some other provision of the Evidence Act; and, even if they do fall under any such other provision, all that is relevant, under section 43 of the Evidence Act, is "the existence" of such judgment, order, or decree provided it "is a fact in issue, or is relevant under some other provision of this Act".
An obvious instance of such other provision is a judgment falling under section 13 of the Evidence Act.
The illustration to section 13 of the Evidence Act indicates the kind of facts on which the existence of judgments may be relevant.
In Special Land Acquisition Officer, Bombay vs Lakhamsi Ghelabhai,(1) Shelat J, held that judgments not inter partes, relating to land acquired are not admissible merely because the land dealt with n the judgment was situated near the land of which the value is to be determined.
It was held there that such judgments would fall neither under section 11 nor under section 13 of the Evidence Act.
Ques tions relating to value of particular pieces of land depend upon the evidence in the particular case in which those facts are proved.
They embody findings or opinions relating to facts in issue and investigated in different cases.
The existence of a judgment would not prove he value of some piece of land not dealt within at all in the judgment admit ted in evidence.
Even slight differences in situation can, (1) 193 sometimes, cause considerable differences in value.
We do not think it necessary to take so restrictive a view of the provisions of Sections 11 anti 13 of the Evidence Act as to exclude such judgments altogether from evidence even when good grounds are made out for their admission.
In Khaja Fizuddin vs State of Andhra Pradesh,(1) a bench of three Judges of this Court held such judgments to be relevant if they relate to similarly situated properties and contain determinations of value on dates fairly proximate to the relevant date in a case.
The Karnataka High Court had, however, not complied with provisions of Order 41, Rule 27 of the C.P.C. which require that an Appellate Courts should be satisfied that the additional evidence is required to enable them either to pronounce judgment or for any other substantial cause.
It had recorded no reasons to show that it had considered the requirements of Rule 27, Order 41, of the C.P.C. we are of opinion that, the High Court should have recorded its rea sons to show why it found the admission of such evidence to be necessary for some substantial reason.
And if it found it necessary to admit it, an opportunity should have been given to the appellant to rebut any inference arising from its existence by leading other evidence.
The result is that we allow these appeals and set aside the judgment and order of the Karnataka High Court and direct it to decide the cases afresh on evidence on record, so as to determine the market value of the land acquired on the date of the notification under section 16 of the Bangalore Act.
It will also decide the question, after affording parties opportunities to lead necessary evi dence, whether the judgment, sought to be offered as addi tional evidence, could be admitted.
The parties will bear their own costs.
V.P.S. Appeal allowed.
(1) C.A. No. 176 of 1962, decided on 10 4 1963.
| IN-Abs | The City of Bangalore Improvement Act, 1945, is con cerned with the improvement and future expansion of the city, and for the appointment of a Board of Trustees with special powers to carry out that purpose.
an incident of such improvement and expansion, it provides for acquisi tion of land also.
.Section 16 of the Act provides for the publication of a notice so that any representations which objectors may make may be considered by the Board itself under section 17.
The object of the two sections is to provide for the notification similar to that under 5.
4(1), Mysore Land Acquisition.
1894, and for hearing of objections as under section 5A, of that Act.
Section 18 of the Bangalore Act provides for the publication in the Gazette of the declaretion that the land is acquired for a public; purpose.
Section 27 provides that acquisitions otherwise than by agreement, shall be regulated by the provisions of the Acquisition Act in so far as they are applicable and by certain further provisions in the section.
Section 27(1) provides that upon the passing of a resolution by the Board that an improvement scheme under section 14 is necessary in respect of any locality, it shall be lawful for any person, authorised by the Board to do all such acts in respect of the land as it would be lawful for an officer duly autho rised by the Government under section 4(2) of the Acquisition Act; and under section 27(2) the publication Of a declaration under section 18 shall be deemed to be the publication of a declaration under section 6, Acquisition Act In the present case, the notifications under section 16 of the Bangalore Act were issued in 1960 and the notifications under section 18 were published in 1967.
On the question as to which date was to be taken for the determination of the market value for the purpose of awarding compensation, the High Court held that the date of notification under section 18 is the relevant date.
The High.
Court held that decision of Full Bench of the High Court in Venkatamma vs Special Land Acquisition Officer (AIR covered the ques tion: and it also relied on another decision of the Court, determining compensation with respect of the acquisition of certain other lands, as relevant evidence for the purpose of determining compensation in the instant case.
In appeal to.
this Court the respondent also supported the judgment of the High Court on the ground that section 23(1) of the Acquisition Act which provides that the determination of the market value should be as on the date of the publication of a notification under section 41(1), would not apply, because, (a) No. principle o.r procedure governing award of compensation is specified in the Bangalore Act, (b) the words "so far as applicable", used in section 27, are equivalent to "in so far as they are specifically mentioned"; and section 23(1) is not so specifically mentioned; and, (c) since No. procedure or principle is laid down for the= award of compensation in the Bangalore Act, it would be equitable to hold that the market value should be determined with reference to the late.r date of.
the notification under s 18 of the Act.
Allowing the appeal, HELD: The matter should be remanded to the High Court for determination of the market value of the land as on the date of the notification under 179 section 16 of the Bangalore Act, which corresponds to.
the notification under section 4(1 ) of the Acquisition Act, after affording opportunities to the parties whether the judgment sought to be offered as additional evidence could be so admitted shall be decided.
[193 E F] (1)(a) The Full Bench of the High Court, while inter preting the City of Mysore Improvement Act, 1903, observed that the Acquisition Act had been amended in 1927 so as to make compensation payable as on the date of the notification under section 4(1) of that Act instead of the date of notifica tion under section 6 according to the unamended law and but that, in the Mysore Act, there was no corresponding amendment.
Therefore, the Mysore Act had to be construed with refer ence to the provisions of the Land Acquisition Act as it stood in 1903.
[182 F G] But, the Bangalore Act, even though its corresponds substantially with the provisions of the Mysore Act of 1903, should be interpreted with reference to the Acquisition Act as it stood in 1945, because, the Bangalore Act was, enacted in 1945.
[182 H] (b) The Full Bench also held that if there was long delay between the two notifications, the acquisition itself would be unconstitutional, and the.re.fore the date of notifica tion under section 18 would be the relevant date.
The delay between the dates of notification under section 16 and under section 18 would not have any bearing on the question of the date on which the market value is to, be determined, because, if a particular acquisition becomes unconstitutional due to an unreasonable mode.
of exercising the statutory powers of acquisition, the meaning of provisions, which are relevant for determining the date of market value, could not be affected.
[183 F H, 184 A] (2) Under section 43, Evidence Act, judgments other than those falling under sections 40 to 42, Evidence Act are irrele vant unless they fall under some other provisions of the Evidence Act.
In the present case, the earlier judgment of the High Court cannot operate as resjudicata because it is not between the same parties.
Such judgments are also not judgments in rem.
However, in Khaja Fizuddin vs State of Andhra Pradesh (CA.
No. 176 dt. 10 4 1963) this Court held that such judgments would be relevant if they relate to similarly situated properties and contain determinations of value on dates fairly proximate to the relevant date in a case.
BUt, in the present case, the appellant was not given any opportunity of showing that the earlier judgment related to dissimilar land.
The High Court also did not comply with the provisions of 0.41 r. 27, C.P.C. before admitting the earlier judgment as additional evidence.
It had recorded no 'reasons to show that it had considered the requirements or ' the rule and why it found the admission of such evidence to be necessary.
[191 G H, 192 B H 193 A B] Special Land Acquisition Officer, Bombay vs Lakhamsi Ghelabhai, , referred to.
(3)(a) Section 27 of the Bangalore Act enables the procedure in the Acquisition Act to be utilised except tel the extent to which the procedure in the bangalore Act may differ from that in the Acquisition act.
These difference section 27(2) and (2); are: (i) that the Board of Trustees could do the: things provided for in section 4.(2) of the Acquisition: Act without a notification under section 4(1); and (ii) the notifica tion under section 18 of the Bangalore Act is equated to the one under section 6 of the Land Acquisition Act.
Therefore, even though section 23 of the Acquisition Act is ' not specifically mentioned in the Bangalore Act, the obvious purpose of the opening words of section 27 of the Bangalore Act, and the effect of non specification of a different principle in the Banga lore Act, is that the award of compensation, which is a necessary part of any law providing for acquisition must be governed by section 23 of the Acquisition Act, which is the only provision applicable; for determining the date of market value.[189 D G] (b) The words "so far as they are applicable" cannot be equated to in so far as they are specifically mentioned.
" The words are used to exclude only those provisions of the acquisition Act which become inapplicable, because 180 of the special procedure prescribe.d by the Bangalore Act.
They cannot be construed as excluding the application of general provisions such as section 23 of the Acquisition Act.
They amount to stating that what is not either expressly or by necessary implication excluded must be applied.
[190 H, 191 A B] (c) Equity supplements but does not supplant law.
If, in the face of the provision that the notification under section 18, Bangalore Act is equated with a notification under section 6 of the.
Acquisition Act for the purpose of determining the market value for awarding compensation, some transcendental principle of ' equity is applied, then, it would be supplant ing the law laid down in section 27 of the Bangalore Act read with section 23 of the Acquisition Act.
It would also be absurd to hold that a notification under s.18, Bangalore Act, could be equated with a notification under section 4(1) Acquisition Act.
Therefore, the relevant date would be the date of notification under section 16, because, the objects achieved by a notification under section 16, Bangalore Act, and one under section 4, Acquisition Act are identical.
In the Full Bench decision of the High Court, it was held.
relying on section 23 of the City of Mysore Improvement Act, 1903 that section 14 of that Act should be equated to section 4(1) of the Acquisition Act.
But in view of the provisions of r. 27 of the Bangalore Act, the only result of equating a resolution under section 14 of the Bangalore Act with a notification under section 4(1) of the Acquisition Act would be to shift the date of ascertaining of market value still further back which is not the conten tion of the respondents.
[191 A, F] OBITER: An additional compliance with section 4(1) of the Acquisition Act is not necessary in view of the special procedure unders.
16 of the Bangalore Act: and, it would be reasonable for the authorities to exercise the powers pro vided for by section 27(1) of the Bangalore Act, corresponding to those in section 4(2) of the Acquisition Act, only after the notification under section 16 of the Bangalore Act.
[185 B.C] M. Manicklal vs The State of Mysore approved.
|
ivil Appeal No. 18 '1 of 1974.
Appeal by special leave from the judgment and order dated the 18th June 1974 of the Andhra Pradesh High Court at Hyderabad in Writ Appeal No. 460 of 1974.
K. R. Nambiar for the appellant.
L. N. Sinha, Sol.
General of India and Girish Chandra for respondents.
The Judgment of the Court was delivered by SARKARIA, J.
This is an appeal by special leave against a judgment of the High Court of Andhra Pradesh.
The appellants are office bearers of the Civil Employees Unions in the various Centers of the Defence Establishments of Secunderabad and Hyderabad.
They filed a writ petition in the High Court to impugn the authority of the Commandants (Respondents 2 and 3 herein) in declaring the Unions, represented by the appellants as unlawful associations.
The Registrar of Trade Unions had issued Certificates of Registration to the four Unions represented by the appellants between 1954 and 1970.
The General Secretary of Class IV, Civil Employees Union, Bolaram, Secunderabad was informed, per letter dated 770 12 5 1971, by the Under Secretary of the Government of India, Ministry of Defence that their Unions could not be granted recognition as these employees being in the Training Establishments, were not entitled to form Unions.
The Commandant also issued a notice to the appellants to show cause why disciplinary action be not taken against them for forming this unlawful association.
The main ground taken in the petition was that the impugned action was violative of their fundamental right to form associations or Unions conferred by article 19(1)(c) of the Constitution.
In their reply affidavit, the respondents averred that the Civilian Non Combatants in the Defence Establishments were governed by the and were duly prohibited by Rules framed thereunder from joining or forming a Trade Union; that the associations in question were formed in breach of that prohibition, and were therefore, validly declared illegal.
The learned Judge of the High Court, who tried the petition, held that the right of the appellants to form associations given by article 19(1) (c) of the Constitution, had been lawfully taken away.
He accordingly dismissed the petition.
The appellants carried an appeal to the appellate Bench of the High Court.
The Bench dismissed the appeal holding that the impugnea action was not without jurisdiction.
The main contention of Mr. K. R. Nambiyar, appearing for the appellants is that the members of the Unions represented by the appellants, though attached to the Defence Establishments, are civilians ', designated as "Non Combatants Un Enrolled".
They include cooks, chowkidars, laskars, barbers, carpenters, mechanics, boot makers, tailors etc.
They are governed by the Civil Service Regulations for purposes of discipline, leave, pay etc.
and are also eligible to serve upto the age of 60 years unlike that of the members of the Armed Forces.
In view of these admitted facts, proceeds the argument, these categories of civilian employees, attached to the Defence Establishments, could not be validly called "members of the Armed Forces" covered by article 33 of the Constitution.
The points sought to be made out are: that the members of the appellants ' Unions are not subject to the as they do not fall under any of the categories enumerated in sub clauses (a) to (i) of section 2 of the , and that the impugned notifications are ultra vires the and are struck by articles 19(1)(c) and 33 of the Constitution.
For reasons that follow, the contentions must be repelled.
Article 33 of the Constitution provides an exception to the pre ceding Articles in Part III including article 19(1) (c).
By Article 33, Parliament is empowered to enact law determining to what extent any of the rights conferred by Part III shall, in their application, to the members of the Armed Forces or Forces charged with the main tenance of public order, be restricted or abrogated so as to ensure 771 the proper discharge of their duties and the maintenance of discipline among them.
In enacting the , in so far as it restricts or abrogates any of the fundamental rights of the members of the Armed Forces, Parliament derives its competence from Art.33 of the Constitution.
Section 2(1) of the Act enumerates the persons who are subject to the operation of this Act.
According to sub clause (i) of this section, persons governed by the Act, include "persons not otherwise subject to military law who, on active service, in camp, on the march or at any frontier post specified by the Central Government by notification in this behalf, are employed by, or are in the service of, or are followers of, or accompany any portion of the regular army.
" The members of the Unions represented by the appellants fall within this category.
It is their duty to follow or accompany the Armed personnel on active service, or in camp or on the march.
Although they are non combatants and are in some matters governed by the Civil Service Regulations, yet they are integral to the Armed Forces.
They answer the description of the "members of the Armed Forces" within the contemplation of article 33.
Consequently, by virtue of section 21 of the , the Central Government was competent by notification to make rules restricting or curtailing their fundamental rights under article 19(1) (c).
Rule 19(ii) of the Army Rules, 1954, imposes a restriction on the fundamental rights in these terms.
"No persons subject to the Act shall without the express sanction of the Central Government: (i) xx xx xx (ii) be a member of, or be associated in any way with, any trade union or labour union, or any class of trade or labour unions " In exercise of its powers under s.4 of the Defence of India Act, the Government of India has by notification dated 11 2 1972, provided that all persons not being members of the Armed Forces of the Union, who are attached to or employed with or following the regular Army shall be subject to the military law.
The , has also been made applicable to them.
By another notification dated 23 2 1972, issued under r.79, of the Army Rules, civilian employees of the training establishments and Military Hospitals have been taken out of the purview of the Industrial Disputes Act.
Section 9 of the further empowers the Central Government to declare by notification, persons not covered by section (i) of section 3 also as persons on active service.
772 In view of these notifications issued under s.4 of the Defence of India Act and the Army Rules, the appellants can no longer claim any fundamental right under article 19 (1) (c) of the Constitution.
The appeal fails and is dismissed.
There will be no order as to costs.
| IN-Abs | On the question whether civilian employees of Defence Establishments have the right to form trade unions under Art, 19(1) (c) of the Constitution, ^ HELD: Article 33 of the Constitution provides an exception to the Preceding Articles in Part III including Act.
19(1)(c).
By article 33, Parliament is empowered to enact law determining to what extent any of the rights conferred by Part III shall.
in their application to the members of the armed forces or forces charged with the maintenance of public order, be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.
[770GH, 771A] By virtue of section 2(l) of the , the Central Government was competent to make rules restricting or curtailing the Fundamental Rights of civilian employees of Defence Establishments to form trade unions under article 19(1)(c) of the Constitution.
Although they are non combatants and are in some matters governed by the civil service regulations, yet they ar? integral to the armed forces.
They answer the description of the members of the armed forces within the contemplation of article 33.
[771 B D]
|
Civil Appeals Nos.
36 to 54 of 1971.
Appeals by special leave from the judgment and order dated 25 8 1970 of the Labour Court, Hyderabad in Civil Misc.
Petitions Nos.
133 to 147 and 165 to 168 of 1970.
AND Civil Appeal No. 1153 of 1972.
Appeal by special leave from the judgment and order dated 20 10 71 of the Labour Court, Hyderabad in Misc.
Petition No. 64/71.
AND Civil Appeal No. 312 of 1973.
Appeal by special leave from the judgment and order dated 11 2 1972 of the Labour Court, Hyderabad in Misc.
Petition No. 239/70.
AND Civil Appeals Nos.
325 to 339 of 1973.
Appeals by special leave from the judgment and order dated 7th, 9th, 11th and 15th February, 1972 of the Labour Court Hyderabad in Misc.
Petitions Nos.
231 238/70, and 240 246/70.
L.N. Sinha, Sol.
General of India and B. Parthasarthy, for the appellants.
G. Narayana Rao and K.S. Ramanujacharyulu, for the respondents.
The Judgment of the court was delivered by BEG, J.
A number of appeals filed by the Andhra Pradesh State Road Transport Corporation are before us by grant of special leave under Article 136 of the Constitution of India, against orders of a Labour Court passed under section 33C(2) of the .
The facts of the first of these appeals may be stated to illus trate the kind of circumstances in which a common question of law involved in these appeals arises.
The respondent P. Venkateswara Rao, who was employed on 6th October, 1933, retired on 10th February, 1958, after putting in more than 34 years of service.
As he was a former employee of the Nizam 's State Railway, his service condi tions were governed by the provisions of the Government of Hyderabad, Railway Department Establishment Code of 1949 (hereinafter referred to as 'the Code ').
He claimed that he was entitled to receive a gratuity at a half month 's salary for 18 1003 SCI 76 250 each year of qualifying service subject to a maximum of 15 months ' salary as laid down in Rule 8.01 of the Code, which says: "8.01.
Condition of eligibility.
Gratuity is granted at the discretion of Government in the Railway Department as a reward for good, efficient, continuous, and faithful service to a permanent railway servant if he is not a subscriber to the Provident Fund or to the Guaranteed Provident Fund, on his quitting the service, or, in the event of his death before receipt of gratuity to his widow or widows and/or dependent children.
For pur poses of this rule a monthly paid railway servant borne on the temporary establishment whose pay is charged to open line capital and revenue works on which he is employed shall be deemed to be a perma nent railway servant only after he had rendered 4 years ' continuous service, ' railway servants be longing to the category of workshop staff, employed otherwise than in a supervisory capacity, shall also be considered as permanent railway servants only after they have rendered 4 years ' continuous service".
The other rules which seemed to have a bearing on the question before us are as follows: "8.02.
A gratuity cannot be claimed as of right.
No gratuity shall be granted to a railway servant who has been removed from service by reason of any misconduct on his part, save with the ex press sanction of the authority competent to sanc tion the gratuity.
Qualifying service.
Except where otherwise provided for in these rules, service must be con tinuous and must also, in the opinion of the Gener al Manager, be "good", "efficient" and "faithful" service to qualify for the gratuity.
A gratuity may be granted on the fulfilment of the following conditions : (i) Completion of thirty years ' service; or (ii) Attainment of the age of fifty five years, provided not less than fifteen years ' serv ice has been completed; or (iii) Retirement or resignation after fifteen years ' service, on grounds admitted by the authori ty competent to sanction the gratuity as good and sufficient from the point of view of the Adminis tration; or (iv)Retirement with less than fifteen years ' service, due to (a) permanent physical or mental 'incapacity, or (b) abolition of appointment if other suitable employment cannot be found for the railway servant.
251 8.12.
The maximum period of service qualifying for gratuity is thirty years.
A railway servant who is retired in service after he has attained the age of fifty five years may be permitted to count the whole of his service, subject to the limit of thirty years, as qualifying for, gratuity.
Service for which a railway servant has already received a retiring gratuity or special contribution to the provident fund or to the guaranteed provident fund counts as qualifying service for the purpose rule 8.05 but it shall be excluded in calculating the amount of gratuity admissible under rule 8.19.
When a railway servant is injured in the performance of his duty and is obliged to leave the service, he may be given the gratuity he had earned under these rules in addition to any compensation gratuity awarded to him on account of his injury.
Breaks in service. (i) Ordinarily, a break in the service of a railway servant entails forfeiture of his past service, but, in deserving cases, this rule may be relaxed under orders of the Government in the Railway Department, or in cases of breaks not exceeding fifteen days in respect of railway servants other than Class I or Class II under the orders of the General Manager, the period of break whether in permanent or temporary service or both being treat ed as dies non.
(ii) A railway servant who has been discharged from the service may, subject to the other conditions of these rules, on re employment on the Railway, be permitted to add the period of his former qualifying service to his future service for the purpose of determining the gratuity admissible to him.
Amount of gratuity.
The amount of gratuity admissible shall be as follows: (i) In cases of less than fifteen years ' qualify ing service falling under rule 8.05(iv) above, a gratuity limited ordinarily to half a month 's pay, and, in special cases, where circumstances warrant, to one month 's pay, for each year of qualifying service, subject to a maximum of six months pay in all.
(ii) In all other cases falling under the rules in this chapter half a month 's pay for each year of qualifying service, subject to a maximum of fifteen months ' pay" 252 The respondent claimed Rs. 3962.50 as gratuity.
The defence of the appellant was, inter alia, that a sum of Rs. 3962/ had already been paid to the respondent on 13th March, 1968, as a special con tribution to Provident Fund.
It was urged that no employee is entitled to any grant at all if he is a subscriber to Provident Fund.
It is pointed out that Rule 8.01 set out abOve made a claim of pay ment of gratuity admissible in those cases where the employee was not a subscriber to the Provident Fund.
On the face of it, this contention, which has been repeated before us, seems to be sound and unanswerable.
The Labour Court had, however, over ruled the main defence of the appellant on the strength of a previous proceeding under section 15(2) of the Payment of Wages Act, in which the respondent had claimed a payment out of his gratuity, to the extent of 2,000/ , on the ground that the gratuity claimable fell within the definition of "wages" under the Payment of Wages Act.
It had been held that he was entitled to such payment although he was a subscriber to a Provident fund.
In that case, the respondent had applied only for deducting Rs. 1256.79 due from him to the Co operative Credit Society of the appellant Corporation from the gratuity which would have become payable to him on retirement.
He was declared entitled to Rs. 1630/only.
The two issues framed in that case were as follows: 1.
Whether gratuity is wages within the meaning of payment of Wages Act ? 2.
Whether the Corporation had the discretion to refuse to pay the gratuity to the respondent and whether it cannot be questioned ? The case had gone up to the High Court of Andhra Pradesh in revision under Section 115 Civil Procedure Code.
The High Court, while rejecting the objection advanced on behalf of the appellant Corporation in a case arising out of the proceeding under the Payment of Wages Act, had observed that Rule 8.15 indicated that Rule 8.01 did not stand in the way of awarding gratuity to a person who is also entitled to the Provident Fund.
We are unable to read Rule 8.15 in the same way as the High Court had done it in the earlier case.
We think that Rule8.15 only explains how Rule 8.05 was to be applied in certain cases.
It lays down that the period for which gratuity of retirement or contribution to the Provident Fund had been received will count towards the qualifications laid down in Rule 8.05.
It then clarifies that this period will not, however, affect the calculation of the amount of gratuity under Rule 8.19.
The obvious intention of Rule 8.15 was that the amount already received either as gratuity or contribution to the Provident Fund will not be paid again to the employee.
The period for which payments had already been made, which may happen in certain cases, such as those of broken service or of anticipatory payments, like the one to satisfy debt of the respondent P. Venkates wara Rao, to the Cooperative Society, would, nevertheless, count towards the qualifying period prescribed by Rule 8.05.
253 On the strength of the judgment of the High Court, in the previous proceeding, which was the basis of the decision of the Labour Court, Learned Counsel for the respondent had put forward a preliminary objection that the matter cannot be reagitated.
It is clear that the provisions of Section 11 C.P.C. have no application to such a case.
The nature of the proceedings and of authorities before which the claims were made were different.
It is, however, urged that the principles of res Judicata should bar raising the same question once again in a subsequent proceeding.
It is true that the High Court had made observations which had a clear bearing on the question to be decided subsequently, but, it will be noticed that the question now before us was not directly the subject ,matter of the issues framed in the previous proceeding which have been set out above.
Nevertheless, an objection was taken on behalf of the appel lant.
that a basic condition for the eligibility of a claim for gratuity had not been satisfied inasmuch as the re spondent was a subscriber to a Provident Fund.
This objec tion had been over ruled.
It was held that the gratuity could be claimed as of right.
We do not know what direction was exactly given in that case.
The finding, however, that the petitioner was entitled to a payment of gratuity, as of right, to the extent of Rs. 1630/ , appears to have been given as a result of the decision that he was entitled to the payment of this much gratuity and no more for the purposes of the claim made in the proceedings under the Payment of Wages Act.
It seems to us that, when gratuity was awarded in a previous proceeding, as a part of Wages, in the teeth of the clear provision of Rule 8.01 imposing a condition precedent, which was not satisfied, to eligibility for it, it is diffi cult to hold that such a patently illegal view could or should be held to be binding on the parties in a subsequent claim for gratuity on the same footing, before the Labour Court.
We find that, even if we were to hold, as we think we must, as the matter was not taken further, that the declaration of entitlement to Rs. 1630/ in the previous proceeding should be held to be binding between parties, we cannot apply the same reasoning to the subsequent claim made before the Labour Court which is now before us.
The Labour Court had not even deducted the amount already awarded earlier from the amount awarded by its judgment now before us.
The most we can say is that the previous recog nition of a claim to gratuity, practically in excess of jurisdiction to do so, debars the Labour Court from going into the question whether the respondent was rightly paid that amount as gratuity in the past.
We have already set out the rule which disentitles him from being eligible for the award of gratuity when he contributes to a provident fund also.
We have also interpreted the rule which was misunderstood earlier by the High Court.
We need not here set out the relevant provident fund rules contained in Chapter 7 of the Code.
It is true that the whole idea of the Provident Fund, to which the employer also contributes, seems to be different from a gratuity to which "good, continuous, efficient and faithful servant" may entitle an employee, yet, we are unable to hold 254 that the employee is able to claim the benefit of ,both a ,guaranteed or other Provident Fund, to which the employer contributes, as well as to gratuity, as of right, in the face of the provisions of Rule 8.01 and 8.02 of the gratuity rules set out above.
Although we have held that a claim to gratuity, as of right, cannot be put forward, under the Code, by an employee who gets the benefit of a Provident Fund also, yet illegal payments of gratuity in the past will not affect legal claims .to
Provident Fund.
In Civil Appeal No. 1153 of 1972, the amount awarded to an employee was in respect of payment due towards the guaranteed Provident Fund which had nothing to do with a claim for gratuity.
This claim was, therefore rightly allowed.
Civil Appeals No. 36 to 54 of 1971 and Civil Appeals Nos.
325 to 339 of 1973 involve only claims to gratuity by persons who are entitled to Provident Fund.
These claims, according to the view taken by us, are not admissible under the law.
Similar is the position in Civil Appeal No. 312 of 1973.
For the reasons given above, we allow Civil Appeals Nos.
36 to 54 of 1971, and Civil Appeal No. 312 of 1973, and Civil Appeals Nos. 325 to 339 of 1973, and dismiss the claims under Section 33C (2) of the , of the respondents in these appeals.
We, however, dismiss the Civil Appeal No. 1153 of 1972.
The parties will bear their own costs.
S.R. C.As. 36 54/71, 312/73 and 329 339/73 allowed.
No. 1153/72 dismissed.
| IN-Abs | In APSRTC vs Rammohan Rao (Civil revision petition No. 1598/1968, dated April 25, 1969), the High Court of Andhra Pradesh held: (i) that wages under section 2(iv)(d) of the Payment of Wages Act included gratuity and (ii) that Rule 8.01 of the Hyderabad Government Railway Establishment Code, 1949, did not stand alone and read with Rule 8.15 it meant that an employee who has received the Provident Fund was not disentified to gratuity.
Following the said deci sion, the labour court in a11 the appeals allowed the claims of the respondents to gratuity in addition to Provident Fund vide its order dated August 25, 1970.
Dismissing the appeals by special leave the Court, HELD: (i) Rule 8.15 of the Hyderabad Government Railway Establishment Code, 1949, cannot be read in the same manner as the Andhra Pradesh High Court had done it in the earlier case.
Rule 8.15 only explains that the how Rule 8.05 was to be applied in certain cases.
Rule 8.05 lays down that the period for which gratuity on retirement or contribution to the provident Fund has been received will count towards the qualifications in Rule 8.05 and further clarifies that the period will not, however, affect the calculation of the amount of gratuity under Rule .8.19.
The obvious intention of Rule 8.15 was that the amount already received either as gratuity or contribution to the Provident Fund will not be paid again to the employee.
The periods for which payments had already been made which may happen in certain cases, would nevertheless count towards the qualifying period prescribed by Rule 8.05.
[242F H] (2) When gratuity was awarded in a previous proceeding as a part of wages in the teeth of the clear provision of Rules 8.01 imposing a condition precedent which was not satisfied to eligibility for it, the contention that such a patently illegal view could or should be held to be binding on the parties in a subsequent claim for gratuity on the same too.ting is unacceptable.
The most the court can say is that the previous recognition of a claim to gratuity, prac tically in excess of jurisdiction to do so, debars the labour court from, going into the question whether the respondent was rightly paid that amount as gratuity in the past.
In the instant ease, the provisions of section 11 of the C.P.C. have no application.
[253 D G] (3) It is true that the whole idea of the Provident Fund to which the employer also contributes, seems to be.
different from a gratuity to which "good.
continuous, effi cient and faithful" service may entitle an.
employee yet he cannot claim the benefit of both the guaranteed or other Provident Fund to which the 249 employer contributes as well as to gratuity as of right in the face of the provisions of Rule 8.01 and 8.02 of the Gratuity rules.
Illegal payments of gratuity in the past will not affect legal claims to Provident Fund.
[253 H. 254, A] Andhra Pradesh State Road Transport Corporation vs
M. Rammohan Rao (Civil) Revision Petition No. 1598/1968 decided on April 25, 1969), (A.P.), over ruled.
|
Appeals Nos. 907 909/74.
Appeals by Special Leave from the Judgment and Order dated 27 3 73 of the Kerala High Court in O.P. Nos.
375 377/73 respectively.
CIVIL APPEAL No. 1354/75 Appeal by Special Leave from the Judgment and Order dated 9 7 75 of the Kerala High Court in C.R.P. No. 949/74.
CIVIL APPEAL No. 1355/75 Appeal by Special Leave from the Judgment and Order dated 19 6 75 of the Kerala High Court in C.R.P '.
No. 611/74.
M.M. Abdul, Advocate Genera1 for the State of Kerala, and K.M. K. Nair for the Appellants in CAs.
907 909/74 for rr.
in CAs.
18541855/ '75.
T.S. Krishnamoorthy lyer and P.K. Pillai; for the Appel lants in.
1354 1355/75.
Miss Lily Thomas for the Respondents in CAs.
908 909/74.
The Judgment of the Court was delivered by SHINGHAL, J.
Civil Appeals Nos. 907, 908 and 909 of 1974 are by the State of Kerala and the Land Board, Trivan drum.
They are directed against a common judgment of the Kerala High Court dated July 27, 1973.
Civil Appeals Nos.
1354 and 1355 of 1975 are by petitioners who had.
applied for revision of the orders of the Taluk Land Board, Ala thur, dated June 11, 1974 and April 27, 1974.
High Court dismissed the revision petitions by two separate judgments dated July 9, 1975 and June 18, 1975.
All the appeals are by special leave.
We have heard them together at the instance.
of the learned counsel for the parties, and will examine them in a common judgment.
The controversy in all the cases relates to the.
appli cation of certain provisions of the KeraIa Land Reforms Act, 1963, hereinafter referred to as the Act, to the impugned voluntary transfers of Kayal lands.
The State of Kerala feels aggrieved because the High Court has taken the view that the transfers made between September 15, 1963 and January 1, 1970 had to be "recognised and Kayal lands comprised therein excluded in reckoning the ceiling area and the excess lands to be surrendered after January 1;, 1970.
" The grievance of the other two appellants is that their revision petitions were dismissed even though the gift deeds in their favour were valid and did not fall within the mischief of section 84(11) of the Act.
We shall examine these.
points of controversy but, before doing.
so, it may be mentioned that the validity of certain provisions.
of the Act was also challenged ' in the High Court, in the three petitions which were disposed of by the common judgment dated July 27, 1973, but the High Court upheld them.
There is no such controversy before us as the Act, and the Acts which have amended it, have: been specified in the Ninth Schedule to the Constitution.
It may also be men tioned that we have ' not had the advantage; of hearing any one on behalf of the respondents 275 in Civil Appeals Nos.
907 to.
909 of 1974 as Miss Lily Thomas,, who represented the respondents in Civil Appeals Nos. 908 and 909, informed the Court, at the commencement of the arguments, that they were not interested in the contro versy.
While examining the petitions which are the subject matter of appeals Nos.
907 to 909 of 1974, the High Court thought it sufficient to refer only to the facts of original petition No. 283 of 1973.
That case is not before us, but that would not matter as the appeals can be disposed of without reference to the details of that case.
It will be sufficient to say that the petitioner in that case was M.T.J. Joseph, and the controversy centered round a settle ment deed (exhibit P 8 made by him in favour of his children on June 15, 1957.
The appellants in the three appeals (Nos. 90.7 909) are M.T.J. Joseph 's children.
As has been stated, the High Court examined the consti tutional validity of the provisions of the Act and upheld them.
It next examined the question whether lands in excess of the ceiling area were in the lawful or permissive occupation of the petitioners (in the petition before the High Court), with reference to the argument that in view of the terms of exhibit RI, by which some of the excess lands were assigned to the holder, the occupation commenced with an implied permission on payment of the state dues.
The High Court did not however think it proper to.
express its final views on that aspect of the matter as it found that certain proceedings were pending before the authorities concerned.
It therefore left the matter after giving the direction that the Land Board will no.t pursue the pro ceedings in respect of those lands until the matter was finally decided in the pending proceedings.
So also, the High Court left the question regarding the ownership of the lands which had been conveyed by the settlement deed of 1957, for investigation and decision by the Land Board.
The High Court however proceeded to examine the valid ity of certain transfers of lands between September 15, 1963 and January 1, 1970 with reference to the relevant provisions of the Act and held as follows : "Broadly stated;, the effect of section 84, is to invalidate transfers effected by a person owning or holding land in excess of the ceiling area, after the date of publication of the Land Reforms Bill (15 9 1963).
That being the object of the section, in order to determine whether the transfer was in excess of the ceiling area, what is material is the law relating to ceiling area on the date of the transfer, and not the law regarding celling area on the date of the acquisition or any date subsequent to the transfer.
" It therefore held that there was no justification for treating the alienations effected after Septem ber 15, 1963 and before January 1, 1970 as having been invalidated by reason of the subsequent amend ments in the law, when they were lawful and valid under the "law relating to ceiling area at the time when they were made.
" The High Court also examined the questions relating to the grant of compensa tion and improvements, but they do not arise for consideration before us.
276 The only question which has been pressed for our consid eration by the Advocate General, on behalf of the appel lants, is that relating to the validity of the transfers of Kayal lands between September 15, 1963 and January 1, 1970.
The writ petitioners in the High Court urged that they were exempt under section 81 (1 )(1) of the Act and could not be held to be invalid with effect from January 1, 1970 because of the subsequent amendment to the Act, and included in their ceiling area.
The term "ceiling area" has been defined in section 2(3) of the Act to mean "the extent of land specified in section 82 as the ceiling area", and there is no controversy about its extent or content.
Section 83 of the Act prohibits the holding of lands in excess of the ceiling area with effect from January 1, 1970.
which had been notified by the govern ment in the gazette as the date from which the prohibition was to be effective.
Section 84 declares certain voluntary transfers to be null and void.
The section as it stood before the amendments road as follows.
Section 84.
Certain voluntary transfers to be null and void.
"Notwithstanding anything con tained in any law for the time being in force, all voluntary transfers effected after the date of publication of the Kerala Land Reforms Bill, 1963, in the Gazette, otherwise than (i) by way of partition; or (ii) on account of natural love and affection; or (iii) in favour of a person who was a tenant of the holding before the 27th July, 1960, and contin ued to be so till the date of transfer: or (iv) in favour of a religious, charitable or educational institution of a public nature solely for the purposes of the institution, by a family or any member thereof or by an adult unmarried person owning or holding land in excess of the ceiling area, shall be deemed to be trans fers calculated to defeat the provisions of this Act and shall be invalid :" There is a proviso to the section with which we are not concerned.
The validity of the transfers had therefore to be examined with reference to September 15, 1963 which was the date of publication of the Kerala Land Reforms Bill, 1963, in the gazette.
The section was amended by Act 35 of 1969 by which the existing section was renumbered as sub section (1) and a sub section was added as subsection (2) which dealt with voluntary transfers effected by any person "other than" a family or any member thereof or by an adult unmar ried person owning or holding land in excess of the ceiling area.
The amendment could not therefore be said to have any bearing on the present controversy.
The section was however again amended by section 15 of Act 17 of 1972.
It, inter alia, omitted clause (ii) of 277 sub section (1) and provided that the omission shah be deemed to have been made with effect from the 16th day of August, 1968.
This had the effect of taking away the excep tion in favour of voluntary transfers on account of natural love and affection.
But it is not the case of any one before us that there was any such transfer in respect of Civil Appeals Nos.
907 to 909, so that amendment also could not be said to have any material bearing on the controversy relating to these appeals.
The fact therefore remains that by virtue of section 84 of the Act, all voluntary transfers of land effected after September 15, 1963 (date of publication of the Kerala Land Reforms Bill, 1963 in the gazette) were invalid as they were to be deemed to be transfers calculated to defeat the provi sions of the Act.
So even if a transfer was found to have been made after September 15, 1963 but before January 1, 1970 (date notified under section 83 prohibiting the owning or holding or to possessing under a mortgage lands in the aggregate in excess of the ceiling area) the ceiling area for purposes 'of section 83 and bringing about the surrender of the excess land under section 85 had to be determined with reference to the position as on January 1, 1970 as that was the date notified under section 83.
The reason is ,that the prohibition of section 83 applied with reference, to that date and that, in turn, required a surrender of the excess land as on that date.
Section 85 is therefore an important section.
It was amended by Act 35 of of 1971 and Act 17 of 1972, but there was no change in its basic provision that when a person owned or held land in excess of the ceiling area "on the date notified under section 83" namely, January 1, 1970, he had to surrender it in ,accordance with the other provisions of the section.
The crucial date for determining and surrendering the surplus land was therefore January 1, 1970, and not any earlier date, but the validity of any voluntary transfer effected after September 15, 1963 which was the date of publication of the Kerala Land Reforms Bill, 1963, had still to be examined with reference to September 15, 1963 in view of the clear requirement of section 84.
This was the scheme of the Act.
We have made a reference to section 84 which clearly pro vides that all voluntary transfers of land effected after September 15, 1963 shall be deemed to be transfers calculat ed to defeat the provisions of the Act and "shah be void".
It has not been urged that the impugned transfers fell under any of the exceptions provided by section 84.
There can be no doubt that any transfer made after September 15, 1963 and before January 1, 1970 would be invalid unless it could be shown to have been saved by any other provision of the Act.
In this connection section 81 of the Act is important for it prescribes the exemptions to the provisions of Chapter III.
Clause (1) of subsection (1) of section 81 specifically provides that the provisions of the Chapter shall not apply to, "(1) kayal padasakharams of Kuttanad area specified "in Schedule IV, so long as such padasak haramas are used for the cultivation of paddy or such other crops as the Government may, by notifi cation in the Gazette, specify.
" 278 It is not in controversy that the Kayal lands which are the subject matter of these appeals are of the category mentioned in clause (1) of sub section (1) of section 81.
They were therefore exempt from the restriction on ownership pre scribed by the various sections of Chapter III referred to above.
So even though by virtue of section 84 of the Act all voluntary transfers effected after September 15, 1963 (date of publica tion of the Kerala Land Reforms Bill, 1963 in the Gazette) were invalid, the transfers made in re spect of Kayal padasakharams in appeals Nos.
907 909 could not be held to be invalid for the simple reason that they were exempt from the provisions of Chapter III.
That exemption was no doubt withdrawn by section 65 of Act 35 of 1969 which amended the Act, but it is not disputed before us that the section was not brought into force until January 1, 1970.
The voluntary transfers made between Septem ber 15, 1963 and January 1, 1970 were therefore valid, and there is no force in the argument of the Advocate General that the amendment brought about by section 65 of Act 35 of 1969 should be given retrospective effect from April 1, 1964 as sections 82 and 84 of the Act were brought into force from that date.
There is also no force in the other argument of the Advocate General that section 84 had the effect of invalidating the transfers effected after September 15, 1963 for that was the date of publication of the Kerala Land Reforms Bill in the gazette.
The argument overlooks the fact that, as has been mentioned, Kayal lands were exempt from the provisions of Chapter III until as late as January 1, 1970.
In this view of the matter Pritam Singh Chahil vs State of Punjab and others(1) cannot avail the appellants.
The amend ment cannot also be said to be curative or merely declaratory of the previous law.
The facts of Chanan Singh and another vs Jai Kaur,(2) cited by the Advocate General, were quite different inasmuch as in the appeals before us the amendment which was made by section 65 of Act 35 of 1969 was nei ther curative nor merely declaratory.
As has been stated, it, inter alia, omitted, clause (1) of section 81 of the Act which exempted the Kayal padasakharams which are the subject matter of the present controversy from the application of the provisions 'of Chapter III of the Act.
It is well settled that a statute is not to be read retrospec tively except of necessity.
There is no such necessity in the cases before us, for the Legisla ture decided to exempt the .aforesaid Kayal lands from the operation of the restrictions and even though amending Act 35 of 1969 was promulgated 'on December 17, 1969, section 65 thereof, which withdrew the exemption, was not brought into force until January 1, 1970.
Thus there is no force in Appeals Nos. 907, 908 and 909 and they are dismissed.
This leaves Civil Appeals Nos. 1354 and 1355 for consid eration.
The transfers of lands in these cases were admit tedly made during the period January 1, 1970 to November 2, 1972.
As such they were not exempt from the restrictions of the provisions of Chapter (1) ; (2) ; 279 III of the Act.
Section 84 of the Act would be attracted to these transfers, and it is futile to contend that this would not be so because the transfers were affected "on account of natural love and affection" within the meaning of clause (ii) of the exceptions provided by section 84 because the exemption to that effect was taken away by Act 17 of 1972.
Section 15 of that Act specifically stated that clause "shall be, and shall be deemed to have been omitted with effect from the 16th day of August, 1968." Moreover, as the High Court has pointed out, the impugned transfers were in favour of the donor 's grand children by his daughter who was alive, and could not be said to fall within the exempted category because of the other amendment made in section 84 of the Act by section 15 of Act 17 of 1972 with effect from the 16th day of August, 1968 which restricted the exemp tion to gifts made in favour of the donor 's son or daughter or the son of daughter of his predeceased son or daughter.
There is thus no 'force in these two appeals also, and they are dismissed.
In view of the facts and circumstances of the cases, we leave the parties to pay and bear their own costs.
P.B.R. Appeal dismissed.
| IN-Abs | Section 84 of Kerala Land Reforms Act, 1963 declares that all voluntary transfers of land effected after the publication of the Kerala Land Reforms Bill on September 15, 1963, shall be null and void.
Clause (ii) of this section while provided an exemption in respect of transfers made on account of "natural love and affection" was omitted in 1972 with retrospective effect from August 16, 19 '68.
Section 81(1)(1) exempts kayal padasakharams of Kuttanad area from the restrictions on ownership prescribed.by Chapter III of the Act.
By an amendment of 1969, this exemption was with drawn; but the amending section was not brought into force until January 1, 1970.
There were two sets of petitions before the High Court.
In one set the High Court held that (1) voluntary transfers of kayal lands effected between September 15, 1963 and January 1, 1970, were lawful and valid, and in the other (2) that certain transfers by way of gift were invalid.
In the first set of appeals to this Court the State contended that the 1969 amendment should be given retrospec tive effect from April 1, 1964 i.e., the date on which section 84 was brought into force and in the second set the donees contended that the transfers were saved because they were effected on account of natural love and affection.
Dismissing all the appeals, HELD: (1)(a) Even though by virtue of section 84 all volun tary transfers effected after September 15, 1963 were invalid, transfers made in respect of kayal lands could not be held to be invalid because they were exempt from the provisions of Chapter Iii.
Though that exemption was with drawn in 1969, that amendment was not brought into force until January 1, 1970, Voluntary transfers made between September 15, 1963 and January 1, 1970 were therefore valid.
[278 B C] (b) The 1969 amendment was neither curative nor declara tory of the previous law.
It merely omitted cl.
(1) from section 81.
A statute is not to be read retrospectively except of necessity.
There; is no such necessity in the instant cases, for the legislature decided to exempt kayal lands from the operation of the restrictions, and the 1969 amend ment withdrawing the exemption was not brought into force until January 1, 1970. [278 E F] Pritam Singh Chahil vs State of Punjab and others; , and Channan Singh and another vs Jai Kaur ; held inapplicable.
(2) In the other set of cases the impugned transfers were in favour of the donor 's grand children by his daugh ter, who was alive and were effected between January 1, 1970 and November 2, 1972.
It was held that it was futile to contend that section 84 would not be attracted to the transfers on the ground that they were effected on account of natural love and affection within the meaning of the exemption provided by section 84, because the exemption was taken away by Act 17 of 1972 which specifically stated that, that clause shall be, and shall be deemed to have been omitted with effect from the 16th August, 1968" and they could not be said to fall within the exempted category because of the amendment made in section 84 in 1972 restricting the exemption to gifts made in favour of a donor 's son or daughter or the son of a daughter of his predeceased son or daughter.
[279 A C] 274
|
Appeal No. 1313 of 1973.
(From the Judgment and Order dated 7 9 1972 of the Calcutta High Court in Income Tax Reference No. 208 of 1966).
V.P. Raman, Addl.
Solicitor Genl.
and M.N. Shroff for the Appellant.
K. Ray and D.N. Gupta, for the Respondent.
The Judgment of the Court was delivered by KHANNA, J.
This appeal on certificate, by the Commissioner of Income tax, is against the judgment of the Calcutta High Court whereby the High Court answered in a reference under the Income tax Act the following question in favour of the assessee respondent and against the revenue: "Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that in making the reassessment under section 147(b) of the Income tax Act, 1961, the Income tax Officer could not depart from the method of computation permitted in Rule 33 of the Income tax Rules and followed in the original assessment, and adopt an alternative method of computation also permitted under the said Rules (corresponding to Rule 10 of the Income tax Rules, 1962) ?" The matter relates to the assessment year 1959 60, the corresponding financial year for which ended on March 31, 1959.
The assessee is a non resident company carrying on business as construc tion engineers.
The Income tax Officer made the original assessment on May 31, 1960 on a total income of Rs. 21,49,169.
On November 5, 1962 the Income tax Officer initiated proceedings under section 147(b) of the Income tax Act, 1961 (herein after referred to as the Act) and completed the assessment on February 29, 1964 on a total income of Rs. 69,85,097.
At the time of the original assessment the assessee filed the return of income along with the auditor 's certificate of the trading results of the various contracts.
One of those contracts was in respect of work at Durgapur with the Hindustan Steel Ltd. In respect of that work 209 the assessee filed a provisional estimate of income which was arrived at "by calculating the income that could be attributable in relation to the tax deducted under section 18(B) by the Hindustan Steel Ltd." The Income tax Officer computed the income from that contract at Rs. 5,33,164.
The income from the other contracts was computed at Rs, 16,16,005 "as per audited statements.
" In the reassessment proceedings the Income tax Officer purported to find as under: (i) That the assessee 's outlay in India to the total outlay in various contracts represented a fair index of operations carried out in India and as such 60 per cent of the profits attributable to sterling payments and claimed to be exempt related to operations in India and fell to be included in the assessee 's total income; (ii) that the figure of depreciation required to be changed; and (iii) that some portion of the income had to be assessed under section 4(1)(A) on receipt basis.
The total income of the assessee, as already mentioned, was determined as a result of reassessment to be Rs. 69,85,097.
In arriving at the figure of the total income the Income tax Officer estimated the income in respect of Durgapur contract to be Rs. 5,33,164 as had been done in the original assess ment.
Regarding the other contracts, the Income tax Officer determined the income of the assessee in reassessment pro ceedings to be Rs. 64,51,933.
The difference in the income computed at the time of the original assessment and at the time of reassessment was due to the fact that the Income tax Officer at the time of original assessment adopted one method of computation under rule 33 of the Income tax Rules, 1922 while the Income tax Officer making reassessment adopt ed another method under that rule.
On appeal it was submitted before the Appellate Assist ant Commissioner on behalf of the assessee that the action of the Income tax Officer in reopening the assessment under section 147(b) was without jurisdiction and that the Income tax Officer had no jurisdiction to change the method of computation as originally adopted in the revised proceedings.
The Appellate Assistant Commissioner held that the proceedings under section 147(b) were bad and that the Income tax Officer could not adopt an alternative method of computation in the reassessment proceedings.
He, therefore, allowed the appeal.
The Appellate Assistant Commissioner at the same time observed that the Income tax Officer would be justified in computing the income to be Rs. 22,23,231 and that the assessee had no objection to such a revision.
In appeal before the Tribunal the department urged that the Appellate Assistant Commissioner was not justified in holding that the Income tax Officer (i) had no jurisdic tion to start proceedings under section 147(b) of the Act; and (ii) that the Appellate Assistant 210 Commissioner had erred in allowing deductions in the income of the assessee.
The Tribunal held on the first ground that proceedings under section 147(b) had been validly initiat ed.
Regarding the second ground, the Tribunal observed in agreement with the Appellate Assistant Commissioner that the mode of computation adopted in the original assessment was one permitted under rule 33 of the Income tax Rules 1922 and that the mode adopted in reassessment was another alterna tive method.
The tribunal held that both the methods being permissible, it could not be said that any mistake was committed in computing the income at the time of the origi nal assessment on a particular basis adopted with reference to rule 33.
In the opinion of the Tribunal, the Income tax Officer could not in reassessment proceedings depart from the method of computation adopted in the original assess ment.
The Tribunal directed that the reassessment be made "adopting the same method of computation as in the original assessment subject to any adjustments which may be justified such as excess depreciation being charged in the account and so on." At the instance of the revenue, the question reproduced above was referred to the High Court.
The High Court, while answering the question against the revenue, referred to the connotation of the words "escaped income" and observed " . it means an income which the asses see has succeeded in getting away with or has eluded observation or search or notice of the tax authorities.
In other words, it cannot mean an item of income which has not been taxed by purusing a method approved by law.
In the instant case, the excess income was not taxable under the third method but it has become taxable by following another method sanctioned by the same rule, namely, rule 33.
This is not, therefore, a case of escaped income which has not been brought into the orbit of taxation in the reassessment proceedings.
" In appeal before us learned Additional Solicitor General has assailed the judgment of the High Court and has contended that the High Court was in error in holding that the instant case was not one of income escaping assessment.
As against that, Mr. Ray on behalf of the assessee respondent has canvassed for the correctness of the view taken by the High Court.
Before dealing with the contentions advanced, it may be apposite to refer to the relevant provisions.
According to section 4(1 )(c) of the Indian Income tax Act, 1922, subject to the provisions of that Act, the total income of any previous year of any person includes all income, profits and gains from whatever source derived which if such person is not resident in the taxable territories during such year, accrue or arise or are deemed to accrue or arise to him in the taxable territories during such year.
Sub section (1) of section 42 of the Act of 1922, inter alia, provides that all income, profits or gains accruing or arising, whether directly or indirectly, through or from any business connec tion in the taxable territories, shall be deemed to be income 211 accruing or arising within the taxable territories, and where the person entitled to the income, profits or gains is not resident in the taxable territories, shall be chargeable to income tax either in his name or in the name of his agent.
According to sub section (3) of section 42, in the case of a business of which all the operations are not carried out in the taxable territories, the profits and gains of the business deemed under this section to accrue or arise in the taxable territories shall be only such profits and gains as are reasonably attributable to that part of the operations carried out in the taxable territories.
The assessee respondent in the present case carried on business as construction engineers both in India and other parts of the world.
The Income tax Officer, it seems, found that the provisions of section 42 of the Act of 1922 did not provide sufficient criteria for computing the profits and gains of business deemed to accrue or arise in India.
Resort was accordingly had to rule 33 of the 1922 Rules.
The above rule has been made to meet such an eventuality, and reads as under: "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 money lent at interest and brought into the taxable territories in cash or in kind cannot be ascer tained, 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 busi ness or in such other manner as the Income tax Officer may deem suitable.
" Shorn of the parts with which we are not concerned, the rule provides that in any case in which the Income tax Officer is of the opinion that the actual amount of income, profits or gains accruing or arising to any person residing out of the taxa ble territories, whether directly or indirectly, through or from any business connection in the taxable territories cannot be ascertained, the amount of such income, profits or gains for the purpose of assessment to income tax may be calcu lated (i) on such percentage of the turnover so accruing or arising as the Income tax Officer may consider to be reasonable, or (ii) on an amount which bears the same propor tion to the total profits of the business of such person (such 212 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 (iii) in such other manner as the Income tax Officer may deem suitable.
The above rule makes it clear that if other condi tions mentioned in the rule are satisfied, it would be open to the Income tax Officer in computing the income, profits or gains to apply one of the three methods mentioned in the rule.
It is the common case of the parties, and that is also the underly ing assumption of the question referred to the High Court, that the Income tax Officer in making the original assessment adopted one method while the Income tax Officer making reassessment adopted another method contemplated by rule 33.
The ques tion with which we are concerned is whether it would be a case of income escaping assessment if the Income tax Officer adopts a method of computa tion which is permissible under the law but which method results in lower tax liability compared to the other method which too is permissible in law.
According to the learned Additional Solicitor General, the adoption of a method even though permitted by rule 33 which results in lower tax liability of the assessee compared to the other method mentioned in the rule would warrant the conclusion that income has escaped assessment and as such section 147 of the Act of 1961 would get attracted.
After giving the matter our earnest consideration, we find it difficult to accept the above contention.
It was open, as already men tioned, to the Income tax Officer at the time of making the original assessment to adopt one of the three methods mentioned in rule 33 for computing the taxable income of the assessee.
Discretion was vested by rule 33 in the Income tax Officer for the purpose of making his choice of the methods, and the same was to be exercised in a proper and judi cious manner.
There is nothing before us to show that the discretion was not exercised by the said officer in a proper or judicious manner.
It is also not suggested that the Income tax Officer was actuated by some oblique motive.
From the mere fact that the method selected by him was such as result ed in lower tax liability of the assessee compared to the liability which would have resulted from the adoption of other method, it would not follow that the discretion was not exercised in a proper and judicious manner.
The taxing authorities exercise quasi judicial powers and in doing so they must act in a fair and not a partisan manner.
Although it is part.
of their duty to ensure that no tax which is legitimately due from an assessee should remain unrecovered, they must also at the same time not act in a manner as might indicate that scales are weighted against the assessee.
We are wholly unable to subscribe to the view that unless those authori ties exercise the power in a manner most beneficial to the revenue and consequently most adverse to the assessee they should be deemed not to have exer cised it in a proper and judicious manner.
The order made by the Income tax Officer at the time of the original assessment was a legally correct order and was not vitiated 213 by any error.
The absence of an error in that order would justify the inference that the present is not a case of income escaping assessment.
There is necessarily an element of error in cases of income escaping assessment mentioned in section 147(b) of the Act of 1961.
Such error resulting in income escaping assessment becomes manifest in the light of information coming subsequently into the possession of the Income tax Officer.
Where, as in the present case, the order making the original assessment was a legally correct order and was not vitiated by any error, the case would not be one which would fall within the ambit of section 147(b) of the Act of 1961 or section 34(1)(b) of the Act of 1922.
We may add that the Income tax Officer ordering reassess ment ' does not sit as a court of appeal over the Income tax Officer making the original assessment.
Nor is it open to the Income tax Officer ordering reassessment to substitute his own opinion regarding the method of computing the income for that of the Income tax Officer who made the original assessment, especially when the method of computation adopt ed at the time of original assessment was permissible in law.
The fact that the adoption of a different method of computation would have resulted 'in higher yield of tax would not in such a case justify the reopening of the as sessment.
It has been argued on behalf of the appellant that reassessment under section 147(b) would be justified where in the original assessment income liable to tax has escaped assessment due to oversight, inadvertence or a mistake committed by the Income tax Officer.
The present however, we find, is a case which does not fall in any of those categories.
We would, therefore, uphold the judgment of the High Court and dismiss the appeal with costs.
V.P.S. Appeal dis missed.
| IN-Abs | Section 42, Income tax Act, 1922, provides for assessing the income, profits gains deemed to accrue or arise in the taxable territories to a person not resident in the taxable territories.
RuLe 33 of the 1922 Rules is made for comput ing the profits and gains of business deemed to accrue or arise in India in cases where the income tax officer finds that the provisions of section 42 do not provide sufficient criteria.
The rule mentions three methods and it would be open to the income tax officer to select and apply one of the three methods mentioned in the rule.
The assessee respondent in the present case, is a non resident company carrying on business as construction engi neers both in India.
and in other parts of the world.
The Income tax Officer found that section 42 of the 1922 Act did not provide sufficient criteria for computing the profits and gains of the assessee deemed to accrue or arise in India and, therefore, assessed the income applying one of the three methods mentioned in r. 33.
As it resulted in lower tax liability, his successor initiated proceedings under section 147(b), Income tax Act, 1961, adopted another method contem plated by r. 33.
and assessed the income at a higher figure.
The Appellate Assistant Commissioner, the Tribunal and High Court held that in making the reassessment the Income tax Officer could not depart from the method of computation followed in the original assessment, and adopt an alterna tive method of computation though permitted by the rule.
In appeal to this Court, it was contended that the lower tax liability in the original assessment showed that it was a case of escaped assessment and as such section 147 of the 1961 Act was attracted.
Dismissing the appeal, HELD: It is open to the Income tax Officer at the time of making the original assessment to adopt one of the three methods mentioned in r. 33 for computing the taxable income of the assessee.
From the mere fact that the method select ed by him resulted in lower tax liability compared to the liability which would have resulted from the adoption of another method under the rule, it would not follow that the discretion was not exercised by the Income tax Officer in a proper and judicious manner, and that it would be a case of income escaping assessment.
[212 E F] (1) The discretion to choose one of the methods in r. 33 ought to be exercised by the Income tax Officer in a proper and judicious manner.
In the present ease, there is nothing to show that the discretion was not so exercised by the Income tax Officer, nor was it suggested that he was actuat ed by any oblique motive.
The Income tax Officer ordering reassessment does not sit as a Court of appeal over the officer making the original assessment, nor is it open to him to substitute his own opinion regarding the method of computation of the income especially when the method of computation adopted at the time of original assessment was permissible in law.
The taxing authorities exercise quasi judicial powers, and in doing so, they must act in a fair and not a partisan manner.
Although it is part of their duty to ensure that no tax, which is legitimately due from an assessee, should remain unrecovered, they 208 must also at the same time not act in a manner which indi cates that the scales are weighted against the assessee.
It is not correct to say that unless.
the authorities exercise the power in a manner most beneficial to the revenue and consequently most adverse to the assessee, they should be deemed not to have exercised their discretion in a proper and judicious manner.
[213C, 212G] (2) The original order of the first Income tax Officer was a legally correct order and was not vitiated by any error.
The absence of an error would justify the inference that it is not a case of income escaping assessment.
There is necessarily an element of error which becomes in cases of income escaping assessment mentioned in section 147(b) of Act of 1961 manifest in the light of subsequent information re ceived by the Income tax Officer.
In the present case, no income has escaped assessment due tO oversight, inadvertence or a mistake committed by the first Income Tax Officer.
Therefore, the case would not fall within the ambit of section 147(b) of the 1961 Act or section 34(1)(b) of the 1922 Act.
[213A B]
|
n No. 1596 of 1975.
T.S. Krishnamoorthy Iyer and P. Kesva Pillai, for the peti tioners.
M. M. Abdul Khadir, M.K. Mustapha and K.P. Nambiar for the respondents.
The Judgment of the Court was delivered by RAY, C.J.
The first petitioner is the minor daughter of the second Petitioner.
The petitioners in this writ peti tion challenge the Government Order dated 2 May, 1966 on the ground that it offends Article 15(4) of the Constitution.
The petitioners also ask for an order directing the respond ents, viz, the State and the.
Principal of the Medical College at Trivandrum to allot a seat to the first petition er.
The first petitioner applied for admission to the M.B.B.S. Course for 1975 76 in one of the Medical Colleges at Trivandrum in the State of Kerala.
Clause 8 sub clause (vi) in the prospectus for commission provided among other things that the applicant should produce certificate of community and income (from all sources) in the prescribed form in the case of candidates.
belonging to the communities recognised by the Government as socially and educationally backward classes.
The petitioner produced the certificate from the Tahsil dar, showing that the total income of her family from all sources is Rs. 11,752/for the year 1975 76 and that she is an Ezhava.
The minimum marks prescribed for admission for candi dates belonging to Ezhava community in the State is 363 in the optional subjects of Physics, Chemistry and Biology.
The petitioner obtained 372 marks.
The petitioner alleges that the list of candidates belonging to the Ezhava/Thiyya community selected for the seats reserved to them under Article 15(4) of the Constitution was published on 10 Octo ber 1975 and the first petitioner was not selected though candidates belonging to Ezhava community who had obtained less marks than the first petitioner had been selected.
The petitioners further allege that the list shows that candi dates No. 6 to 27 obtained marks ranging between 371 and 357.
The Principal, Medical College sent a Memorandum to the first petitioner that, as the income exceeds Rs. 10,000/ her case cannot be considered under reservation scheme.
196 Clause 11 of the prospectus for 1975 76 for admission to M.B.B.S. Course in Medical Colleges in the State is as follows : "11.
Selection for admission, reservation for section Cs/S. Ts/ Socially and educationally back ward Class and reservation on regional basis : Selection of candidates will be on the basis of merits as laid down in C.R.Rt. 1361/70 Health dated 18.6.1970 and D.O. Ms. M.O. No. 216/71 Health dated 6.7.1971 and subject to the provisions con tained in G.D.(P) 208/66/Edn.
dated 2.5.1966 and subsequent orders of the Government regarding reservation for Scheduled Castes and Scheduled Tribes and other socially and educationally back ward class, reservation for Malabar and Travanco reCochin, area etc.
The decision of the Govern ment and matters concerning admission shall be final.
" On 2 May, 1966 the State Government issued an order, inter alia, that only applicants who are members of families consisting of Ezhavas, whose aggregate annual income is below Rs. 6,000/ would be entitled to admission to the seats reserved for students belonging to the socially and educationally backward class.
It should be stated here that the said order of the State Government came to be issued on the consideration of the report of the Commission appointed by the State to enquire into the social and educa tional conditions of the people and report as to what sec tions of the people in the State of Kerala should be treat ed as socially and educationally backward classes.
The Commission assumed office on 14 July, 1964 and submitted its report on 31 December, 1965.
The recommenda tion of the Commission was that only citizens who are members of families which have an aggregate income of less than Rs. 4200/ per annum and which belong to the castes and communities mentioned in Appendix VIII constitute so cially and educationally backward classes for purposes of Article 15(4).
When the Government passed the order on 2 May, 1966 the Government order stated inter alia as follows : "After the Commission collected data for its report, the cost of living has risen further and the income tax exemption limit has been raised.
Having regard to the current cost of mainte nance of a student in a professional or technical institu tion, Government consider that the income limit of Rs. 4200/ suggested by the Commission should appropriately be raised to Rs. 6000/ per annum.
In the circumstances, the Government accepted the above recommendation subject to.
the modification that only citizens who are members of families which have an aggregate income of less than Rs. 6000/ per annum and which belong to the castes and communities men tioned in the annexure to this Government Order will consti tute socially and educationally backward classes for pur poses of Article 15(4).
The order of the Government dated 2 May, 1966 was chal lenged in the Kerala High Court.
The learned Single Judge quashed the Government Order by decision dated 24 February 1975 reported in 197 A.I.R. 1975 Kerala 131.
The State filed an appeal.
The validity of the Government Order dated 2 May, 1966 was upheld by the Kerala High Court.
The decision of the High Court dated 14 July, 1975 reversing the Judgment of the learned Single Judge is reported in 1975 Kerala Law Times 851 State of Kerala vs Krishna Kumari.(1) The High Court held that the Commission had material before it.
It is not for the court to weigh the evidence.
The question is wheth er the approach made by the Commission is correct.
The High Court held 'that economic backwardness plays a part in social backwardness and in educational backwardness.
Pover ty or economic standard is a relevant factor.
Economic backwardness contributes to social backwardness.
On 2 September, 1975 the State Government passed an order which inter alia states as follows : "After the issuance of the Government Order the cost of living has risen further and the income tax exemption limit has been raised.
Having regard to the current cost of maintenance of a student in a professional or technical institution, Government consider that the income limit of Rs. 6000/prescribed in the Government Order should be appropriately raised.
In the circumstances, Government are pleased to enhance the income limit of Rs. 6000/ prescribed to.
Rs. 10000/ per annum with effect from the academic year 1975 76 The petitioners contended that there is no reason to exclude an insignificant part of the community on the basis, of income alone.
The petitioners emphasised that if the socially and educationally backward classes are set out in the Annexure, income cannot be the criterion of admission to determine the benefit of Article 15(4).
The contention of the State is that the Government Order dated 2 May, 1966 is not in violation of Article 15(4) because the expression "backward class" in Article 15(4) is not used as Synonymous with backward caste or backward community.
The members of an entire caste or community may in social, economic and educational scale of values, at a given time be backward and may on that account be treated as a backward class.
The reason is that they are treated as socially and educationally backward not because they are members of a caste or community but because they form a class.
Backward classes for whose improvement special provi sions are contemplated by Article 15(4) are in the matter of their backwardness comparable to Scheduled Castes and Scheduled Tribes.
This Court has emphasised in decisions that the backwardness under Article 15 (4) must be both social and educational.
In ascertaining social backwardness of a class of citizens, the caste of a citizen cannot be the sole or dominant test.
Just as caste is not the sole or dominant test, similarly poverty is not the decisive and determining factor of social backwardness.
(1) [1975] Kerala Law Times 851.
198 The Report of the Commission for reservation of seats in educational institutions found on applying the relevant test that the lower income group of the communities named in Appendix VIII of the Report constitute the socially and educationally backward classes and they are identified as those whose family income is below the specified limit.
The basis of the reservation is not income but social and educational backwardness.
The object of the reservation under Article 15(4) is to recognise the factual existence of socially and educational ly backward classes in our country and to make a sincere attempt to promote the welfare of the weaker sections of the community.
Article 15(4) gives effect to this principle.
The concept of backwardness in Article 15(4) is not intended to be relative in the sense that classes who are backward in relation to the most advanced classes of society should be included in it.
The Commission found that the rich people in *_he backward communities even though they have not acquired any high level of education are able to move in society today without being discriminated socially.
The Commission fur ther found that the benefit of the existing reservation of seats in educational institutions in favour of the Ezhavas and other backward communities is today enjoyed by the rich people of the type mentioned above.
Further, evidence before the Commission was that the wealthy sections do not at present have any caste or communal disabilities worth mentioning and are not socially backward.
The Commission found that the benefit of the present system of reservation based solely on caste or community is to a considerable extent, being enjoyed by the wealthy sections to the preju dice of the poorer sections.
The Commission, therefore, found that consideration of a means rum caste/community test should be adopted for the classification so as to take in the poor and deserving sections and exclude the wealthier sections.
The Commission examined occupational test and found that all the persons belonging to a particular caste or community may not now be following its traditional occupation, but most of the persons who pursue any of those occupations belong to the caste or community whose traditional occupa tion it is.
The Commission found that in such cases very often persons following the traditional occupation will be closely related to persons who are pursuing occupations to which there is no social stigma.
In such eases, on account of the near relationship of the persons following the traditional occupation to the other persons and their caste/Communal associations, the stigma affects even the persons not following these traditional occupations.
The Commission found that it is only the lower income group which is affected by ' the stigma.
The Commission found that changes occur at short intervals and therefore identifica tion of persons occupation wiSe becomes more difficult in their case.
The Commission referred to the habitational test.
The Commission expressed the opinion that there are no great social differences in the State merely on account of places of ' residence.
Complete and 199 reliable tests on the subject were not available to the Commission to compare the people of the Malabar area to.
that of TravancoreCochin area: The Commission, howev er, said that Malabar is .educationally backward compared to Travancore Cochin area.
As regards educational backwardness of the classes of citizens, the Commission found that the State average of the students in the last of the High School classes can safely be taken as one of the elements of the composite test for ascertaining educational backwardness.
The Commission treated as backward the communities which have an abnormal fail out.
In such cases if their educational backwardness is established by the total absence of any student from the community, the lower income group is included among the socially and educationally backward classes on being satis fied of their social backwardness.
Social backwardness can contribute to educational backwardness and educational backwardness may perpetuate social backwardness.
Both are often no more than the inevitable corollaries of the extremes of poverty and the deadening weight of custom and tradition.
The Commission applied the tests for educational back wardness, test of habitation, necessity for a means cum caste/community test, the income level for the means cum caste/community test, and came to the conclusion that citi zens in the State of Kerala who are members of families which have an aggregate income of less than Rs. 4200/per annum from all sources and which belong to castes or commu nities mentioned in Appendix VIII constitute socially and educationally backward Classes for purposes of Article 15(4).
The Commission found that generally the members of the castes and communities mentioned in Appendix VIII are educationally backward and that the lower income groups which have an aggregate income of less than Rs. 4200/ per annum are socially backward also.
The lower income group of these castes and communities belongs in the opinion of the Commission to classes of citizen who are both socially and educationally backward.
In ascertaining social backwardness of a class of citizens it may not be irrelevant to consider the caste of the group of citizens.
Caste cannot however be made the sole or dominant test.
Social backwardness is in the ulti mate analysis the result of poverty to a large extent.
Social backwardness which results from poverty is likely to be aggravated by considerations of their caste.
This shows the relevance of both caste and poverty 'in determining the backwardness of citizens.
Poverty by itself is not the determining factor of social backwardness.
Poverty is relevant in the context of social 'backwardness.
The Com mission found that the lower income group constitutes so cially and educationally backward classes.
The basis of the reservation is not income but social and educational backwardness determined on the basis of relevant crite ria.
If any classification of backWard classes of citizens is based solely on the caste of the citizen it will perpetu ate the vice of caste system.
Again, if the classifica tion is based solely 200 on poverty it will not be logical.
The society is taking steps for uplift of the people.
In such a task groups or classes who are socially and educationally backward are helped by the society.
That is the philosophy of our Con stitution.
It is in this context that social backwardness which results from poverty is likely to be magnified by caste considerations.
Occupations, place of habitation may also be relevant factors in determining who are socially and educationally backward classes.
Social and economic consid erations come into operation in solving the problem and evolving the proper criteria of determining which classes are socially and educationally backward.
That is why our Constitution provided for special consideration socially and educationally backward classes of citizens as also.
Scheduled Castes and Tribes.
It is only by directing the society and the State to offer them all facilities for social and educational uplift that the problem is solved.
It is in that context that the Commission in the present case found that income of the classes of citizens mentioned in Appendix VIII was a relevant factor in determining their social and educational backwardness.
The problem of determining who are socially and educa tionally backward classes is undoubtedly not simple.
Socio logical and economic considerations come into play in evolv ing proper criteria for its determination.
This is the function of the State.
The Court 's jurisdiction is to decide whether the tests applied are valid.
If it appears that tests applied are proper and valid the classification of socially and educationally backward classes.
based on the tests will have to be consistent with the requirements of Article 15(4).
The Commission has found on applying the relevant tests that the lower income group of the communi ties named in Appendix VIII of the Report constitute the socially and educationally backward classes.
In dealing with the question as to whether any class of citizens is socially backward or not, it may not be irrelevant to con sider the caste of the said group of citizens.
It is neces sary to remember that special provision is contemplated for classes of citizens and not for individual citizens as such, and so though the caste of the group of citizen may be relevant, its importance should not be exaggerated.
If the classification is based solely on caste of the citizen, it may not be logical.
Social backwardness is the result of poverty to a very large extent.
Caste and poverty are both relevant for determining the backwardness.
But neither caste alone nor poverty alone will be the determining tests.
When the Commission has determined a class to be socially and educationally backward it is not on the basis of income alone, and the determination is based on the relevant crite ria laid down by the Court.
Evidence and material are placed before the Commission.
Article 15(4) which speaks of back wardness of classes of citizens indicates that the accent is on classes of citizens.
Article 15(4) also speaks of Sched uled Castes and Scheduled Tribes.
Therefore, socially and educationally backward classes of citizens in Article 15(4) cannot be equated with castes.
In R. Chitralekha & Anr.
vs State of Mysore & Ors.(1) this (1) ; 201 Court said that the classification of backward classes based on economic conditions and occupations does not offend Article 15(4).
The different castes that have been described in Appen dix VIII to the Commission 's Report ' have not been accepted by the Commission as embodying the group of socially and educationaly backward classes of people.
Only those among the members of the castes mentioned in Appendix VIII whose economic means was below that stated by the Commission were treated as socially, and educationally backward.
The educa tional backwardness is reflected to a certain extent by the economic conditions of the group.
For the foregoing reasons the petition is dismissed.
Parties will pay and bear their own costs.
P.B.R. Petition dis missed.
| IN-Abs | A Commission appointed by the State Government to en quire into the social and educational Conditions of the people in the State and to recommend as to what sections should be treated as socially and educationally backward classes found that the benefit then in vogue relating to the reservation in educational institutions of seats based solely on caste or community was being enjoyed by the rich among the backward communities and found that the lower income groups of certain communities constituted the social ly and educationally backward classes.
it, therefore, recommended adoption of a means cum caste/ community test for the classification so as to take in poor and deserv ing sections and exclude the wealthier sections.
The State Government accordingly stipulated that applicants who are members of certain communities and whose family income was below Rs. 10,000/ per annum would only be entitled to seats reserved for those students The petitioner who belonged to one of the socially and educationally backward classes, submitted a certificate of annual income of the family to be above Rs. 11,000/ , as a result of which her candidature could not be considered under the reservation scheme for a seat in the Medical College.
In a writ petition under article 32 of the Constitution it was contended that there was no reason to exclude an insignificant part of the community on the basis of income alone and that the income could not be the criterion of admission to determine the benefit of article 15(4).
Dismissing the writ petition HELD: The basis of the reservation is not income but social and educational backwardness.
Backward classes for whose umprovement special provisions are contemplated by article 15(4) are in the matter of their backwardness compara ble to Scheduled Castes and Scheduled Tribes.
Backwardness under article 15(4) must be both social and educational.
In ascertaining social backwardness of a class of citizens,the aste of a citizen cannot be the sole or dominant test.
Just as caste is not the sole or dominant test, similarly poverty is not the decisive and determining factor of social back wardness.
[197 G H] The object of the reservation under article 15(4) is to recog nise the factual existence of socially and educationally backward classes in the country and to make a sincere at tempt to promote the welfare of the weaker sections of the community.
Article 15(4) gives effect to this principle.
The concept of backwardness in article 15(4) is not intended to be relative in the sense that classes who are backward in relation to the most advanced classes of society should be included in it.
[198 B C] In ascertaining social backwardness of a class of citi zens it may not be irrelevant to consider the caste of the group of citizens.
Caste cannot however be made the whole or dominant test.
Social backwardness is in the ultimate analysis the result of poverty to a large extent.
Social backwardness which results from poverty is likely to be aggravated by considerations of caste.
This shows the relevance of both caste and poverty in determining the backwardness of citizens.
In evolving proper criteria for determining the socially and educationally backward classes, sociological and economic considerations come into play.
This determination is the function of the State.
The Courts jurisdiction is to decide whether the tests applied are valid.
In dealing with the question as to whether any class of citizens is socially backward or not, it may not be irrelevant to consider the caste of the said group of citi zens.
Special provision is contemplated for classes of citizens and not for individual citizens as such, 195 and so.
though the caste of the group of citizens may be relevant, its importance should not be exaggerated.
If the classification is based solely on caste of the citizen, it may not be logical.
When the Commission had determined a class to be socially and educationally backward it was not on the basis of income alone, and the determination was based on the relevant criteria laid down by this Court.
Article 15(4) which speaks of backwardness of classes of citizens indicates that the accent is on the classes of citizens.
Article 15(4) also speaks of Scheduled Castes and Scheduled Tribes.
Therefore, socially and educationally backward classes of citizens in article 15(4) cannot be equated with castes.
[199 G; 200 D H] R. Chitralekha & Anr.
vs State of Mysore & Ors. ; referred to.
|
Appeal No. 229 of 1953.
Appeal under Article 132(1) of the Constitution of India from the Judgment and Order dated the 16th December 1952 of the Bombay High Court in Appeal No. 110 of 1952.
M. C. Setalvad, Attorney General of India (Porus 110 868 A. Mehta and R. H. Dhebar, with him) for the appellant.
Rajinder Narain for the respondent.
October 4.
The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J.
Was the Government of Bombay entitled, under ' clause (a) of sub section (4) of section 6 of the Bombay Land Requisition Act, 1948 (Bombay Act XXXIII of 1948), to requisition , as for a public purpose, certain premises for "housing a member of the staff of a foreign consulate"?, is the question we have to consider in this appeal, which has arisen out of a writ petition filed under article 226 of the Constitution by the respondent in the Bombay High Court to restrain the State of Bombay from taking such action.
On the bearing of the petition before Tendolkar, J. the State succeeded on the ground that the purpose for which the requisition was made was a "public purpose" within, the meaning of the Act.
But, on appeal, it was held that though the requisition was for a public purpose, the requisition order was invalid, 'as the public purpose must be either a purpose of the Union, or a purpose of the State and in this particular case the accommodation being required for housing a member of a foreign Consular staff was a Union purpose, which was outside the scope of the powers of the State.
Clause (a) of sub section (4) of section 6, omitting portions unnecessary for our present purposes, runs, in these terms: "The State Government may, by order in writing, requistition the premises for the purpose of a State or any other public purpose, and may use or deal with the premises for any such purpose in such manner as may appear to it to be expedient".
The validity of the Act is not questioned as un constitutional or as beyond the scope of the legislative competence of the State.
As the premises were required for housing a member of the staff of a Con 869 sulate, there can be no doubt that it was wanted for a public purpose.
The ultimate source of authority to requisition or acquire property is be found in arcticle 31 of the Constitution.
The requisition or acquisition must be for a public purpose and there must be compensation.
This article applies with equal force to Union legislation and State legislation.
Items 33 and 36 of List I & List II of the Seventh Schedule to the Constitution empower respectively Parliament and the State Legislatures to enact laws with respect to them.
The reasoning by which the learned appellate Judges of the Bombay High Court reached their conclusion is shortly this There can be no public purpose, which is not a purpose of the Union or a purpose of the State.
There are only these two categories to consider under the statute, as the words "any other purpose" in the particular context should be read ejusdem generis with "the purpose of the State".
The provision of accommodation for a member of the foreian consulate staff is a "purpose of the Union" and not a "purpose of the State".
We are unable to uphold this view as regards both the standpoints.
Item 33 in the Union Legislative List (List I)refers to "acquisition or requisitioning of property for the purposes of the Union".
Item 36 in the State List (List II) relates to "acquisition or requisitioning of property, except for the purposes of the Union, subject to the provisions of entry 42 of List III".
Item 42 of the Concurrent Legislative List (List III) speaks of "the purpose of the Union or of a State or for any other public purpose".
Reading the three items together, it is fairly obvious that the categories of "purpose" contemplated are three in number, namely, Union purpose, State purpose, and any other public purpose.
Though every state purpose or Union purpose must be a public purpose, it is easy to think of cases where the purpose of the acquesition or requisition, is neither the one nor the other but a public purpose.
Acquisition of sites for the building of hospitals or educational institutions by private benefactors will be a 'Public purpose, 870 though it will not strictly be a State or Union purpose.
When we speak of a State purpose or a Union purpose, we think of duties and obligations cast on the State or the Union to do particular things for the benefit of the public or a section of the public.
Cases where the State acquires or requisitions property to facilitate the coming into existence of utilitarian institutions, or schemes having public welfare at 'heart, will fall within the third category above.mentioned.
With great respect, we are constrained to say that the ejusdem generis rule of construction, which found favour in the court below for reaching the result that the words "any other public purpose" 'are restricted to a public purpose which is also a purpose of the State., has scarcely any application.
A part from the fact that the rule must be confined within narrow limits, and general or comprehensive words should receive their full and natural meaning unless they are clearly restrictive in their intendment, it is requisite that there must be a distinct genus, which must comprise more than one species, before the rule can be applie If the words "any other public purpose" in the Statute in question have been used only to mean a State purpose, they would become mere surplusage; Courts should lean against such a construction as far as possible.
Even if it is conceded that the law contemplates only two purposes, namely, State purpose and Union purpose, it is difficult to see how finding accommodation for the staff of a foreign consulate is a Union purpose and not a State purpose.
Item I 1 in the Union list specifies "diplomatic, consular and trade representation" as one of the subjects within the legislative competence of Parliament, and under article 73 of the Constitution, the executive power of the Union shall extend to all such matters.
It can hardly be said that securing a room for a member of the staff of a foreign consulate amounts to providing for consular representation, and that therefore it is a purpose of the Union for which the State cannot legislate.
It was conceded by Mr. Rajinder Narain, Counsel for 871 the Respondent, that there is no duty cast upon the Union to provide accommodation for the consulate staff, and this must be so, when we remember that the routine duties of a Consul in modern times are to protect the interests and promote the commercial affairs of the State which he represents, and that his powers, privileges and immunities are not analogous to those of an ambassador.
The trade and commerce of the State which appoints him with the State in which he is located are his primary concern.
The State of Bombay is primarily interested in its own trade and commerce and in the efficient discharge of his duties by the foreign consul functioning within the State.
We are inclined to regard the purpose for which the requisition was made in this case more as a State purpose than as a Union purpose.
In any event, as already pointed out, "other public purpose" is a distinct category for which the State of Bombay can legislate, as the acquisition or requisitioning of property except for the purposes of the Union, is within its competence under item 36 of the State List.
There is another way of looking at the question involved.
An undertaking may have three different facets or aspects, and may serve the purpose of a State, the purpose of the Union and a general public purpose.
Even if one may regard the requisition of a room for the accommodation of a member of a Consulate as one appertaining to a Union purpose, it does not necessarily cease to be a State purpose or a gene ral public purpose.
In this view also, the requisition in this case must be held to have been validly made.
For the reasons given above, the appeal is allowed and the order of Tendolkar J. is restored with costs payable to the appellant by the respondent throughout.
| IN-Abs | Held, that the Government of Bombay was entitled, under clause (a) of sub section (4) of section 6 of the Bombay Land Requisition Act, 1948 (Bombay Act XXXIII of 1948) to requisition as for a public purpose, certain premises for 'housing a member of the staff of a foreign consulate '.
The purpose for which the requisition was made was a "public purpose" within the meaning of the Act; and the requisition was made in this case more as a State purpose than as a Union purpose.
In any event "other public purpose", is a category distinct from "Union purpose" and "State purpose" and the acquisition or requisitioning of property by the State except for the purpose of the Union, is within its competence under item 36 of the State List.
An undertaking may have three different facets or aspects and may serve the purpose of a State, the purpose of the Union and a general public purpose.
Even if one may regard the requisition of a room for the accommodation of a member of a consulate as one appertaining to a Union purpose, it does not necessarily cease to be a State purpose or a general public purpose.
Therefore on this view also, the requisition in the present case must be held to have been validly made.
Courts should lean against a construction which would render words in a statute mere surplusage.
|
l Appeals Nos.
487 488 of 1976.
(Appeal by Special Leave from the Judgment and Order 19.12.1973 of the Gujarat High Court in Civil Revision Application No. 540 and 678 of 1970).
S.K. Dholakia and R.C. Bhatia, for the appellants.
R.P. Bhatt and H.S. Parihar for 1.
N. Shroff, for the re spondent.
The Judgment of the Court was delivered by UNTWALIA, J.
In these appeals by special leave the ques tion which fails for our determination is whether the deci sion of a Bench of this Court consisting of two learned Judges in Phul Rani & Ors.
vs Naubat Rai Ahluwalia(1) is correct.
If not, whether the appellants are entitled to get a decree for eviction in respect of the suit premises against the defendant respondent.
Thakordas Bhagwandas the father of the three appellants was owner of the suit premises.
He was a partner in a partner ship firm styled as Jai Hind Silk Weaving Works.
There were three more partners in the firm one of whom was Shantilal Thakordas, appellant No. 1, son of Thakordas Bhagwandas.
The other two were outsiders.
The suit was filed against respondent Chimanlal Maganlal Telwala for his eviction from the premises on several grounds.
The only ground which need to be mentioned for the purpose of the disposal of this appeal is Thakordas 's claim of requiring the premise.
reasonably and bona fide for occupation by himself within the meaning of section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
The necessity pleaded by the original plaintiff was that he required the premises for the use of the partnership firm aforesaid in which he was a partner.
The Trial Court decreed the suit in part on April 30, 1965 and passed a decree for eviction of the tenant from a portion of the suit premises.
Both sides went up in appeal before the First Appellate Court.
Thakordas was dead and his heirs, namely, the present appel lants were the appellants in one appeal and respondents in the other.
The first Appellate Court by its judgment dated November 10, 2966 maintained the partial decree made by the Trial Court with slight modification.
Both the parties went in revision before the Gujarat High Court.
The High Court set aside the decree dated November 10, 1966 of the First Appellate Court and remanded the case to it for a fresh disposal of the appeal after trying out an additional issue of comparative hardship of the landlord and the tenant as also the question as to whether the substituted heirs of the original plaintiff required the premises reasonably and bona fide for their occupation.
The first Appellate Court after remand again passed a decree for eviction from a portion of the suit premises on March 31, 1970.
Two (1) ; 343 revisions were taken to the High Court one by the appel lants and the other by the respondent.
Following the decision of this Court in Phul Rani 's case (supra) the High Court allowed the respondent 's revision, rejected that of the appellants and dismissed their suit for eviction in toto.
Hence these appeals.
The foremost and the first question urged before us by Mr. Dholakia was that Phul Rani 's case was not correctly decided.
We agree with this contention and say with respect that we do not subscribe to the view expressed by the Bench of this Court in that case.
The original plaintiff in that case had filed the application for eviction under section 14(1)(e) of the Delhi Rent Control Act, 1958.
The application was dismissed in the first instance by the Additional Rent Controller, Delhi on the ground that the notices to quit were not valid.
Plaintiff filed an appeal but died during its pendency.
His widow, son and two married daughters and two children of a deceased daughter were allowed to be substituted by the Rent Control Tribu nal where the appeal was pending.
The case was remanded by the Tribunal and after remand the Additional Rent Controller held that some of the substituted persons require the prem ises bona fide for their occupation.
The tenant 's appeal to the Tribunal failed.
The High Court of Delhi on a fur ther appeal by the tenant took the view that the right to sue did not survive to the heirs of the plaintiff and on that ground it dismissed the ejectment application.
The case came up to this Court.
The view of the High Court was affirmed.
The relevant words of personal requirement of the premises in section 14(1)(e) of the Delhi Act are: "for occupation as a residence for himself and members of his family." The original plaintiff had pleaded: "The premises are required bonafide by the petitioner for occupation as a residence for him self and members of his family and that the peti tioner has no other reasonably suitable residential accommodation." This Court took the view: "Thus, the requirement pleaded in the eject ment application and on which the plaintiff has rounded his right to relief is his requirement, or to use an expression which will effectively bring out the real point, his personal requirement.
If the ejectment application succeeds we will forget for a moment that the plaintiff is dead the prem ises in the possession of the tenant may come to be occupied by the plaintiff and the members of his family but that does not make the requirement pleaded in the application any the less a personal requirement of the plaintiff.
That the members of his family must reside with him is his requirement, not theirs.
Such a personal cause of action must perish with the plaintiff.
" In our considered opinion in face of the wordings of section 14(1)(e) of the Delhi Act, the view expressed in Phul Rani 's case, as stated 6 114SCI/76 344 above, is not correct.
If the law permitted the eviction of the tenant for the requirement of the landlord "for occupation as a residence for himself and members of his family", ' then the requirement was both of the landlord and the members of his family.
On his death the right to sue did survive to the members of the family of the deceased landlord.
We are unable to take the view that the require ment Of the occupation of the members of the family of the original landlord was his requirement and ceased to be the requirement of the members of his family on his death. 'After the death of the original landlord the senior member of his family takes his place and is well competent to continue the suit for eviction for his occupation and the occupation of the other members of the family.
Many of the substituted heirs of the deceased landlord were undoubtedly the members of his family and the two married daughters and the children of a deceased daughter in the circumstances could not be held to be not members of the family of the deceased landlord.
But even so the appellants cannot succeed in this ap peal.
Firstly it is doubtful whether the requirement of the premises by the landlord for occupation by the partnership firm in which he is a partner will be tantamount to "occupa tion by himself" i.e. by the landlord.
Certain decisions of some High Courts were brought to our notice taking the view that it is so.
We refrain from expressing our opinion in that regard.
We assume, as seems to have been the view of the High Court in this case, that the requirement of the premises for the use of a partnership firm by the landlord in which he is a partner is covered by section 13(1)(g) of the Bombay Act.
Yet on the facts of this case there is 'an insurmountable difficulty in the way of the appellants.
From the judgment dated March 31, 1970 of the First Appel late Court it would appear that on the death of Thakordas in June, 1965 a new partnership was constituted.
One of his sons Shantilal who was a partner from before was taken as a partner in the new partnership alongwith Thakordas 's another son Dhanvantlal Thakordas, appellant No. 2.
There were some outsider partners.
Harish Thakordas, appellant No. 3, a minor son of Thakordas had not been admitted to the benefits of the partnership.
He had, therefore, no interest in the partnership firm Jai Hind Silk Weaving Works.
The Appellate Court took the view that the .substituted plaintiffs wanted to use the suit premises for ,the purpose of godown for keeping the yarn clothes and machinery articles and also for a retail shop and show room of the partnership.
This in no sense could be the requirement of appellant Harish even assuming that it could be said tO be the requirement of his two cider brothers appellants 1 and 2.
In that view of the matter we have got to dismiss the appeal although Mr. Dholakia, learned counsel for the appellants succeeded in persuading us to differ from the ratio of Phul Rani 's case.
Counsel for the appellants endeavoured to bring their case within one of the exceptions noted in Phul Rani 's case.
He submitted that a decree had already been passed in favour of the original plaintiff by the Trial Court and that could not be disturbed on his death either in appeal or revision.
We do not accept the contention as sound or 345 correct.
In Phul Rani 's case no final opinion was expressed on this question.
Moreover, we find that on the earlier occasion the High Court had set aside the decree and re manded the suit to the First Appellate Court for a fresh decision.
There was, therefore, no decree in existence to attract the exception.
In the result the appeals fail and are dismissed but without costs.
P.H.P. Appeals dis missed.
| IN-Abs | Thakordas, father of 3 appellants, was the owner of the suit premises.
He was a partner in a firm which.
had 3 other partners.
One of the partners was appellant No. 1, the son of Thakordas and two partners were outsiders.
A suit for eviction was filed against the respondent on the ground that Thakordas required the premises for the said firm reasonably and bona fide within the meaning of section 13(1)(g) of the Bombay Rent Act, 1947.
The trial court passed a decree for eviction in respect of a portion of the premises.
Thereafter, Thakordas died and the present appellants who are his sons filed an appeal.
Likewise the tenant also filed an appeal.
Appellants No. 1 and 2 togeth er with some outsiders continued the firm.
However, appel lant No. 3 a minor son of Thakordas was not admitted to the benefit of the partnership.
The First Appellate Court confirmed the decree of the trial court.
The revision application filed by the tenant was allowed and one filed by the appellants was dismissed by the High Court relying on the decision of this Court in Phul Rani & Ors.
vs Naubat Rai Ahluwalia [19731 3 SCR 679.
In an appeal by special leave, the appellants contended: 1.
Phul Rahi 's case was not correctly decided and the right of Thakordas survived in favour of the appellants.
The requirement of the firm in which the landlord is a partner will be the requirement of the landlord.
Since the decree had already been passed in favour of Thakordas before his death it could not be disturbed on his death either in appeall or in revision.
Dismissing the appeal, HELD: (1) Phul Rani 's case was wrongly decided.
If the law permitted the eviction of the tenant for the require ments of the landlord "for occupation as a residence for himself and members of his family" then the requirement was both of the landlord and the members of his family.
On his death, the right to '.sue did survive to the members of the family of the deceased landlord.
After the death of the original landlord the senior member of his family takes his place, and is well competent to continue the suit for evic tion for his occupation and the occupation of the other members of the family.
[343 H, 344 A B] (2) It is doubtful whether the requirement of the prem ises by the landlord for occupation by the firm in which he is a partner will tantamount to occupation by himself.
Even if it is assumed that it will amount to occupation by the landlord, since in the new firm the minor son of Thakordas was not admitted to the benefits of the partnership he had no interest in the said firm.
Therefore, as far as appellant No. 3 is concerned, he could in no sense be said to require the premises.
[344 C G] (3) The conclusion in Phul Rani 's case that if a decree had been already passed in favour of the plaintiff that could not be disturbed on his death is not correctly decid ed.
In fact, no final opinion was expressed in Phul, Rani 's case on that question.
[344 H, 345 A] 342 Phul Rani & Ors.
vs Naubat Rai Ahluwalia [1973] 3 S.C.R. 679, overruled.
|
Appeal No. 1298 of 1968.
Appeal by Special Leave from the Judgment and Order dated 22 9 67 of the Mysore High Court in Writ Petition No. 2190/67.
S.V. Gupte, S.S. Javali and B. Dutta, for the Appellant.
A.K. Verma (Mrs.) for M/s. J.B. Dadachanji and Co.,for Respondents 1 and 2.
The Judgment of the Court was delivered by KHANNA, J.
This is an appeal by special leave against the judgment of the Mysore High Court whereby the High Court dismissed petition under articles 226 and 227 filed by the appellants to challenge the order dated September 12, 1967 of the Mysore Revenue Appellate Tribunal (hereinafter re ferred to as the Tribunal).
The brief facts giving rise to this appeal are that the first resdent applied on April 22, 1959 to the Assistant Commissioner Bagalkot for the restoration of the Patilki/watan/lands survey Nos. 32/2, 54/2, and 49/2 under sections 11, 11A and 12 of the Bombay Hereditary Offi cers Act (hereinafter referred to as the Act).
Possession of those lands was sought on the ground that the appellants, who were strangers, had taken possession of the lands.
The Assistant 321 Commissioner, as per order dated August 11, 1960, accepted that application and directed that the possession of the lands be restored to the respondents.
Appeal filed by the appellants against that order was dismissed by the Deputy Commissioner as per order dated January 24, 1961.
The appellantas then went up in revision before the Tribunal.
The Tribunal as per order dated May 5, 1962 accepted the revision petition and held that the appellants were not strangers to the watan.
In arriving as this conclusion, the Tribunal held disagreeing with the Assistant Commissioner and the Deputy Commissioner that the watan had been acquired by Basangouda I.
The respondents challenged the order of the Tribunal by means of a writ petition.
The Writ petition filed by the respondents was accepted by the Mysore High Court as per judgment dated December 18, 1964, and it was held that it was not open to the Tribunal to reopen and set aside findings of fact in a revision petition.
The case was accordingly remitted to the Tribunal for fresh deci sion in the light of the observations of the High Court.
When the matter came up before the Tribunal after the above judgment of the High Court, the Tribunal as per order dated September 12, 1967 upheld the findings of the Assist ant Commissioner and the Deputy Commissioner that the watan had been acquired by Basangouda II and not by Basangouda I.
It may be stated that Basangouda I was the grandfa ther of Basangouda II and that unless it be shown that the watan had been acquired by Basangouda I, the appellant would have to be held strangers qua the lands in dispute.
The Tribunal accordingly dismissed the revision petition which had been filed by the appellants.
The appellants thereafter filed petition under articles 226 and 227 before the High Court and assailed the above order of the Tribunal.
The High Court dismissed the writ petition on the ground that the finding that the appellants were strangers to the watan was one of fact and it was not open to the High Court to reopen the concurrent findings of the Assistant Commission er, the Deputy Commissioner and the Tribunal in a writ petition.
In appeal before us Mr. Gupte on behalf of the appel lants has contended that the High Court was in error in not interfering with the order of the Tribunal whereby the revision petition filed by the appellants had been dis missed.
It is urged that the Tribunal in affirming the findings of the Assistant Commissioner and the Deputy Commissioner regarding the question of the appellants being strangers qua the land in dispute took a very restricted view of section 79 of the Act dealing with revision.
This contention, in our opinion, is not well founded.
The High Court at the time of the decision of the earlier writ peti tion on December 13, 1964 recorded a finding and gave direc tions to the Tribunal not to reopen the questions of fact in revision.
The Tribunal while passing the order dated Sep tember 12, 1967 complied with those directions of the High Court.
The appellants are bound by the judgment of the High Court and it is not open to them to go behind that judgment in this appeal.
No appeal wag filed against that judgment and it has become final.
It is well settled that princi ples of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subse quent 322 stage of the same proceedings.
Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding.
In view of the High Court judgment dated December 18, 1964, the Tribunal while passing the order dated September 12, 1967, disposing of the revision petition filed by the appellant, could not reopen the questions of fact which had been decided by the Assistant Commissioner and the Deputy Commissioner.
The High Court, in our opinion, was right in holding in the judgment under appeal that the concurrent findings of fact arrived at by the Assistant Commissioner, the Deputy Commissioner and the Tribunal cannot be set aside in the writ petition.
The appeal consequently fails and is dismissed but in the cir cumstances with no order as to costs.
M.R. Appeal dismissed.
| IN-Abs | The respondent sought possession of some land, on the ground that the appellants who were strangers, had occupied it.
The Assistant Commissioner accepted their claim and directed that the possession of the disputed land be re stored to them.
The appellants ' appeal was dismissed by the Deputy Commissioner.
but their revision petition was accept ed by the Mysore Revenue Appellate Tribunal.
The High Court allowed the writ petition of the respondents.
direct ing the Tribunal not to reopen the questions of fact in revision.
The matter was remanded and the Tribunal then upheld the findings of the Assistant and Deputy Commission ers, and dismissed the revision petition.
The appellant flied a writ petition which was dismissed by the High Court.
Dismissing the appeal, the Court, HELD: (1) The concurrent findings of fact arrived at by the Assistant Commissioner the Deputy Commissioner and the Tribunal cannot be set aside in the writ petition.
[322 B C] (2) Principles of res judicata can be invoked not only in separate subsequent proceedings, they can also get at tracted in subsequent stage of the same proceedings.
Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceed ings.
[321 H, 322 A]
|
Appeal No. 623 of 1975.
From the Judgment and Order dated 25 6 74 of the Karna taka 'High Court in Civil Revision No 1981/73.
S.S. JavaIi and B.P. Singh, for the Appellants.
S.V. Gupte and K.N. Bhatt, for the Respondent.
The Judgment of the Court was delivered by RAY, C.J.
This appeal by special leave is from the judgment .dated 25 June, 1974 of the Karnataka High Court.
The principal question in this appeal whether section 107 of the Karnataka Land Reforms Act, 1961 applies to the land in suit which was leased to the respondent.
A large plot of land comprising an area of about 20 acres popularly known as "The Chamaraja Sewage Farm" situate in the city of Bangalore belongs to the appellant Corpora tion.
The appellant :leased to the respondent by a regis tered lease dated 14 September, 270 1953 the aforementioned land for a period of 5 years on an annual rent of Rs. 13,555/ .
The respondent by notice was called upon to hand over possession of the land immediately after the expiry of the period of lease.
The respondent failed to deliver possession.
The reason why the appellant required that land is that the Corporation proposed a scheme for the development and construction of a new township on that area.
The respondent filed a suit for the grant of a permanent injunction restraining the appellant from interfering with the possession.
The Court upheld the contentions of the appellant that the lease had terminated by efflux of time.
The respondent 's 'suit was dismissed.
An appeal was pre ferred.
The appeal was dismissed on 21 August,.
The appellant then instituted the suit in appeal claim ing possession from the respondent.
The appellant contended that the respondent was a trespasser and claimed damages for unauthorised occupation.
The respondent contended that he was still a tenant.
The respondent claimed protection under the Mysore Tenants (Temporary Protection from Eviction) Act, 1961 being Act No. 15 of 1961.
Section 3 of the Mysore Tenants (Temporary Protection from Evic .
tion) Act, 1961 provided for prohibition against eviction.
The appellant obtained a decree in the suit.
The decree directed the respondent to deliver possession.
The respond ent preferred an ' appeal.
The High Court remanded the matter to the trial Court for assessment of damages.
Upon remand the respondent applied for the amendment of the written statement.
The respondent claimed protection under the Karnataka Land Reforms Act, 1961.
It may be stated here that the Mysore Tenants (Temporary Protection from Eviction) Act, 1961 ceased to be in force in March, 1966.
That is perhaps why the respondent made an applica tion for amendment of the written statement on 2 February 1973.
The respondent contended relying on section 133 of the Karnataka Land Reforms Act, 1961 that the.
suit should be stayed by the civil court and should be referred to the Tribunal for decision.
Section 112(B)(b) of the Karnataka Land Reforms Act, 1961 confers power on the Tribunal to decide inter alia whether a person is a tenant or not.
The respondent contended that he was a person who was deemed to be a tenant.
The appellant opposed the application for stay of the suit by the civil court and referring to the Tribunal for decision under the Karnataka Land Reforms Act, 1961.
The trial Court held that the land ' belonging to the appellant was exempted from the application of the provisions of the Land Reforms Act.
The trial Court dismissed the application of the respondent.
The respondent presented a revision petition t0 the High Court.
The High Court reversed the decision of the trial Court and directed the trial Court to refer such of the issues which are required to be.
decided by the Tribunal.
271 Counsel for the respondent contended that the respondent is a tenant within the meaning of the word "tenant" defined in section 2(34) of the Karnataka Land Reforms Act, 1961.
"Tenant" is defined to mean an agriculturist who cultivates personally the land he holds on lease from a landlord and includes (i) a person who is deemed to be a tenant under section 4 of the Karnataka Land Reforms Act, 1961, Section of the Karnataka Land Reforms Act, 1961 states that a person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivat ed personally by the owner and if such person is not (a) a member of the owner 's family, or (b) a servant or a hired labourer on wages, or (c) a mortgage in possession It was, therefore, said that the respondent could raise the con tention whether the respondent was a tenant or not.
It was next contended that section 8 of the Karnataka Land Reforms Act, 1961 speaks of rent and rent is referable to tenant and therefore a dispute as to tenancy would be within the ambit of the Karnataka Land Reforms Act, 1961.
Section 107 of the Karnataka Land Reforms Act, 1961 states that subject to the provisions of section 110 nothing in this Act, except section 8 shall apply to lands, inter alia (iii) belonging to or held on lease or from a local authority.
There is no dispute that the land was given on lease by the local authority.
There is also no 'dispute that the land belongs to the local authority.
There is also no dispute that the lease was detrmined by efflux of time.
The question whether the respondent is a tenant or deemed to be a tenant does not at all arise because the tenancy came to an end.
The 'respondent thereafter was a trespasser.
Section 107 of the Karnataka Land Reforms Act, 1961 makes it quite clear that the only provision which applies, inter alia, to lands belonging to or hold on lease or from a local authority is section 8.
No other section of the Land Reforms Act applies to these lands.
Section 8 of the Karna taka Land Reforms Act, 1961 deals with rent.
The suit in the present case was not for recovery of rent.
The suit is for recovery of possession and for damages, for unauthorised occupation of the respondent.
Section 2 of the Karnataka Land Reforms Act, 1961 is not applicable.
Therefore, no question can be referred for determination by the Tribunal under section 133.
The Mysore Tenants (Temporary Protection from Eviction) Act, 1961 came into effect on 13 December, 1961.
The Mysore Tenants (Temporary Protection from Eviction) Act, 1961 remained in force till the month of March, 1966.
The re spondent could not draw any support from that Act for pro tection against eviction.
The land in question was outside the applicability of the Mysore Tenants (Temporary Protec tion from Eviction) Act, 1961.
Further the Act ceased to be in operation in 1966 and no question could be referred for determination as to whether the respondent was a tenant under the Mysore Tenants (Temporary Protection from Evic tion) Act, 1961 or not.
The trial Court in the present case rightly said that it could not be said that there was any dispute as to tenancy.
272 The respondent had filed a suit where he claimed to remain in possession.
The suit of the respondent was dismissed.
The appellant all along contended that the lease dated 14 September 1963 for a period of 5 years expired by efflux of time.
The appellant claimed possession on the ground Of unauthorised occupation and claimed damages against the respondent, who was a trespasser.
The High Court was clearly in error in referring to the Tribunal under the Karnataka Land Reforms Act 1961 determi nation of the plea taken by the respondent that he was pro tected by the Mysore Tenants (Temporary Protection from Eviction) Act 1961.
Counsel for the respondent did not support the judgment on that ground.
Counsel for the respondent contended that section 133 of the Karnataka Land Reforms Act 1961 excludes jurisdiction of Civil court in suits for possession where the defendant claims to be a tenant.
The plea of the respondent is utterly unsound.
Section 133 of the Karnataka Land Reforms Act 1961 cannot apply to lands which are held by a person on lease from the local authority or where the lease had ex pired and the local authority sues for possession on the ground that there is unauthorised occupation.
No provision of the Karnataka Land Reforms Act can be relied upon to contend that there should be protection against recovery of possession by the local authority.
For the foregoing reasons the judgment of the High Court is set aside.
In view of the fact that no costs were al lowed by the High Court, there will be no order as to costs.
M.R. Appeal allowed.
| IN-Abs | The respondent took the disputed land on lease for 5 years from the appellant Corporation, and held it unautho risedly after the lease period expired.
His suit for a permanent injunction against interference with his posses sion, was dismissed, and his appeal rejected.
The appellant then instituted the suit in appeal, claiming possession.
The suit was decreed and the respondent was directed to deliver possession.
On appeal, the High Court remanded the case.
Upon remand, the respondent applied for an amendment of his written statement, claiming protection under the Karnataka Land Reforms Act, 1961.
He also applied for a stay of the suit by the Civil Court, and for a reference to the Tribunal for deciding whether he was a tenant or not.
The application was dismissed, but on revision, the High Court reversed the decision.
The principal question in appeal before this Court was whether section 107 of the Karnataka Land Reforms Act, 1961, was applicable to the disputed land held by the respondent.
Allowing the appeal, the Court, HELD: Section 107 of the Karnataka Land Reforms Act, 1961 makes it .
quite clear that the only provision which applies to lands belonging to or held on lease or from a local authority is section 8.
There is no dispute that the lease was determined by efflux of time.
The question wheth er the respondent is a tenant or deemed to be a tenant does not arise because the tenancy came 'to an end.
Section 8 is not applicable.
Therefore no question can be referred for determination by the Tribunal under section 133.
Section 133 cannot apply where the lease had expired and the local authority sues for possession on the ground that there is unauthorised occupation.
[271 D, E, F, 272 C]
|
N: Criminal Appeal Nos.
308310 of 1975.
(Appeals by Special Leave from the Judgments and Orders dated 18.1.1974 and 18.2.1974 of the Orissa High Court in Criminal Revision Nos.
708, 705 and 306/72 respectively).
336 G. Rath, Adv.
General for the State of Orissa and B. Parthasarthi, for the appellant.
Nemo for the respondent.
The Judgment of the Court was delivered by BHAGWATI, J.
This group of 'three Criminal Appeals by Special Leave can be divided broadly into two categories: one category consisting of Criminal Appeals Nos. 308 & 309 of 1975 and the other, consisting of Criminal Appeal No. 310 of 1975.
We are disposing of them by a common judgment since the question which arises for consideration in both sets of appeals is as to what is the extent of the power of the Court to give consent to withdrawal of prosecution and discharge of the accused under Section 494 of the Criminal Procedure Code.
Taking up first Criminal Appeals Nos. 308 and 309 of 1975, both these criminal appeals arise out of prosecutions launched in respect of offences alleged to have been com mitted in the course of the same incident.
The police filed a case against nine respondents in Criminal Appeals No. 308 of 1975 charging them for offences under sections 143, 341 and 138 of the Indian Penal Code and Section 7 of the Criminal Law Amendment Act.
It appears that before the trial could proceed against the respondents, an application was made by Court Sub Inspector, who was in charge of the prosecution, praying for permission for withdrawal of the prosecution on two grounds.
One ground was that it was considered inexpedient to proceed with the case while the other was that the evidence collected during investigation was meagre to proceed against the respondents and that no useful purpose would be served by proceeding with the case against them.
The learned Magistrate took the view that it was not sufficient ground for according consent that the prosecution considered it inexpedient to proceed further with the case.
But so far as the second ground was con cerned, the learned Magistrate held that it was a valid ground and he did not rest this conclusion merely on the averment made by the Court Sub Inspector but he also perused the case diary for the purpose of satisfying himself that the evidence was not sufficient to proceed against the respondents.
The learned Magistrate felt that in this situation it was proper to accord consent for withdrawal of the prosecution, since compelling the State to go on with the prosecution in these circumstances would involve unnec essary expenditure and waste of public time, which could otherwise be profitably utilised for other judicial work.
The Learned Magistrate accordingly allowed the Court Sub Inspector to withdraw the prosecution and discharged the respondents under.
Section.
494 of the Criminal Procedure Code.
It seems that this order of the learned Magistrate accord ing consent to the withdrawal came to the notice of the High Court and prima facie taking the view that it was not a proper order, the High Court suo moto issued notices to the State as well as the respondents calling upon them to show cause why this order should not be quashed and set aside.
The matter was heard by a single judge of 337 the High Court and the learned judge quashed and Set aside the order passed by the learned Magistrate with the follow ing observations : "The Magistrate should have perused the case diary to see if there was sufficient material for framing of charge.
But that he obviously did not choose to do.
On the petition for withdrawal that it was inexpedient to proceed with the case he thought it prudent to acquit the accused persons whose prosecution would unnecessarily consume public money and time.
Obviously the learned lower court has missed the point and has not approached the subject as he ought to.
" The State thereupon preferred the present appeal with Special Leave obtained from this Court.
Now the law as to when consent to withdrawal of prosecution should be accorded under Section 494 of the Code of Criminal Procedure is well settled as a result of several decisions of this Court.
The first case in which this question came up for consideration was The State of Bihar vs Ram Naresh Pandey(1).
It was pointed out by this Court in that case that in granting consent to withdrawal from prosecution, the Court undoubtedly exercises judicial discretion, but it does not follow that the discretion is to be exercised only with refer ence to material gathered by the judicial method.
Having said this, the Court proceeded to enunciate the principles which should ;guide the exercise of this discretion: "In understanding and applying the Section, two main features thereof have to be kept in mind.
The initiative is that of the Public Prosecutor and what the Court has to do is only to give its con sent and not to determine any matter judicially." " .
The Judicial function, therefore, implicit in the exercise of judicial discretion for granting the consent should normally mean that the Court has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised, or that it is not an attempt to interfere with the normal course of justice for illegitimate, reasons or purposes." " .
The Magistrate 's functions in these matters are not only supplementary, at a higher level, to those of the executive but are intended to prevent abuse." " . .
There is, however, a general concurrence at least in the later case that the application for consent may legitimately be made by the Public Prosecutor for reasons not confined to the judicial prospects of the prosecution." (1) 338 This Court had again occasion to consider this question in M.N. Sankarayarayanan Nair vs
P. V. Balakrishnan & Ors.
(1) where Jaganmohan Reddy, J. speaking on behalf of the Court, pointed out: "Though the Section is in general terms and does not circumscribe the powers of the Public Prosecutor to seek permission to withdraw from the prosecution the essential consideration which is implicit in the grant of the power is that it should be in the interest of administration of justice which may be either that it will not be able to produce sufficient evidence to sustain the charge or that subsequent information before prose cuting agency would falsify the prosecution evi dence or any other similar circumstances which it is difficult to predicate as they are dependent entirely on the facts and circumstances of each case.
Nevertheless it is the duty of the Court also to see in furtherance of justice that the permission is not sought on grounds extraneous to the interest of justice or that offences which are offences against the State go unpunished merely because the Government as a matter of gener al policy or expediency unconnected with its duty to prosecute offenders under the law, directs the public prosecutor to withdraw from the prosecution and the Public Prosecutor merely does so at the behest.
" It will, therefore, be seen that it is not sufficient for the Public Prosecutor merely to say that it is not expedient to proceed with the prosecution.
He has to make out some ground which would show that the prosecution is sought to be withdrawn because inter alia the prosecution may not be able to produce sufficient evidence to sustain the charge or that the prosecution does not appear to be well rounded or that there are other circumstances which clearly show that the object of administration of justice would not be advanced or furthered by going on with the prosecution.
The ultimate guiding consideration must always be the interest of administration of justice and that is the touchstone on which the question must be determined whether the prosecution should be allowed to be withdrawn.
Now in the present case it is clear that according to the prosecution, the evidence collected during investigation was not sufficient to sustain the charge against the re spondent and the learned Magistrate was satisfied in regard to the truth of this averment made by the Court Sub Inspec tor.
It is difficult for us to understand how the High Court could possibly observe in its order that the Magis trate had not perused the ease diary when in terms the learned Magistrate has stated in his order that he had read the ease diary and it was after reading it that be was of the opinion that the averment of the prosecution that the evidence was not sufficient was not ill founded.
Then again it is difficult to comprehend how the High Court could possibly say that the learned Magistrate accorded consent to the withdrawal of the prosecution on the ground that it was inexpedient to proceed with (1)[1972] (2 ) S.C.R. 599. 339 the case, when, in so many terms, the learned Magistrate rejected that ground and granted consent only on the second ground based on inadequacy of evidence.
There is no doubt that the learned Magistrate was right in granting consent and the High Count committed a manifest error m setting aside the order of the learned Magistrate.
We accordingly allow Criminal Appeal No. 208 of 1975, set aside the order of High Court and restore that of the learned Magistrate.
Criminal Appeal No. 309 of 1975 also arises out of the same incident and the only difference between this Criminal Appeal and the earlier one is that the .respondents are different.
It is no doubt true that in this case the Court Sub Inspector based his application for consent to the withdrawal of the prosecution on the ground that it was administratively considered by the State inexpedient to proceed with the case and that, as already pointed out, would not be a valid ground.
But since both the cases arise out of the same incident and the evidence in regard to both is admittedly the same, we do not think that any useful purpose would be served by compelling the prosecution to proceed with the case against the respondents in the present case.
We accordingly allow Criminal Appeal No. 309 of 1975, set aside the order of the High Court and restore that of the learned Magistrate.
We now turn to Criminal Appeal No. 310 of 1975.
The case out of which this appeal arises was the result of a serious rivalry between two trade unions in an industrial undertak ing.
It seems that the respondents who are members of one trade union tried to break up, a procession which was organised by the rival trade union and this led to a clash resulting in injuries to various persons.
The respondents were charge sheeted for various offences arising out this incident and they were committed to the Court of sessions to stand trial for offences under sections 147, 148, 149, 307 and 324 I.P.C.
However, before the trial commenced, an application was made by the Public Prosecutor for the consent of the court to withdraw the prosecution against the respondents under section 494 of the Code of Criminal Proce dure.
There were five grounds on which the application was based.
Of them two only are important.
One was that the occurrence arose out of labour union trouble and since the date of the occurrence, there was industrial peace and harmony and the other was that withdrawal of the prosecu tion would help maintain cordiality between the rival trade unions.
The learned Sessions Judge was impressed by these two grounds and he granted consent to the withdrawal of the prosecution against the respondents.
The reasons which weighed with him may be stated in his own words as follows: "The grounds are that the incident had been the outcome of labour trouble.
which has now sub sided and that the Government, in order to maintain cordial relationship between the mineowners and good labour relationship wants to withdraw the case.
The case, as if I find, arose on account of labour union rivalry and the occurrence 340 place to sabotage a procession led by rival trade union.
The intention being to keep labour trouble in abeyance, I accord consent of this court for the withdrawal" . .
The High Court in this case too acted suo moto and issued notices.
to the State and the respondents calling upon them to show cause why the order of the learned Ses sions Judge should not be set aside.
The case was heard by the same learned judge who heard the earlier two criminal appeals and the learned judge set aside the order granting consent to the withdrawal of the prosecution and quashed the order of acquittal passed by the learned Magistrate and directed the sessions Judge to proceed with the trial of the case.
Hence the present appeal by the State with Special Leave obtained from this Court.
We have already discussed the principles which should govern cases of this kind where an application is made by the Public Prosecutor for grant of consent to the withdrawal of prosecution under section 494 of the Criminal Procedure Code.
We have pointed out that the paramount consideration in all these cases must be the interest of administration of justice.
No hard and fast rule can be laid down nor can any categories of cases be defined in which consent should be granted or refused.
It must ultimatelY depend on the facts and circumstances of each case in the light of what is necessary in order to promote the ends of justice, because the objective of every judicial process must be the attain ment of justice.
Now, in the present case, the application made by the Public Prosecutor clearly shows that the inci dent had arisen out of rivalry between two trade unions and since the date of the incident calm and peaceful atmosphere prevailed in the industrial undertaking.
In these circum stances, the State felt that it would not be conducive to the interest of justice to continue the prosecution against the respondents, since the prosecution with the possibility of conviction of the respondents would rouse feelings of bitterness and antagonism and disturb the calm and peaceful atmosphere prevailing in the industrial undertaking.
We cannot forget that ultimately every offence has a social or economic cause behind it and if the State feels that the elimination or eradication of the social or economic cause of the crime would be better served by not proceeding with the prosecution, the State should clearly be at liberty to withdraw from the prosecution.
We are, therefore, of the view that in the present case the learned ' Sessions fudge was right in granting consent to the withdrawal of the prosecution and the High Court was in error in setting aside the order o[ the learned Sessions Judge.
We accordingly allow Criminal Appeal No. 310 of 1975, set aside the order of the High Court and restore that of the learned Sessions.
Judge.
| IN-Abs | The principles that should be kept in mind by the Court when giving consent to the prosecution under section 494 Cr.
P.C. 1973, for withdrawing the prosecution against the accused, are that the prosecution is not able to produce sufficient evidence to sustain the charge, or that the prosecution does not appear to be well rounded, or that there are other circumstances which clearly show that the object of administration of justice would not be advanced or furthered by going on with the prosecution.
It is not sufficient for the prosecution merely to say that it is not expedient to proceed with the prosecution.
The ultimate guiding consid eration must always be the interest of administration of justice and that is the touchstone on which the question must be determined.
No hard and fast rule can he laid down nor can any categories of cases be defined in which consent should be granted or refused.
It must ultimately depend on the facts and circumstances of each case in the light of what is necessary in order to promote the ends of justice, because, the objective of every judicial.
process must be the attainment of justice.
[338 C F] Where, therefore, the Magistrate granted permission for withdrawal, because the prosecution averred that the evidence collected during investigation was not sufficient to sustain the charge against the accused and after satisfy ing himself, by perusing the case diary, that the averment of the prosecution was justified, the High Court was in error in setting aside the order of the Magistrate.
In the instant case,.
the High Court also erred in observing that the Magistrate had not perused the case diary, and that the Magistrate had accorded consent for withdrawal of the prosecution by accepting the prosecution case that it was inexpedient to proceed with the case.
[338 H; 339 A] Where, in the connected case, the Magistrate gave his consent for withdrawal on the ground that it was adminis tratively considered by the State inexpedient to proceed with the case, though it was not a valid ground, no useful purpose would be served in compelling the prosecution to proceed with the case, because, both cases arose out of the same incident and the evidence in regard to both was admit tedly the same.
[339 C D] Where the application made by the prosecution for with drawal showed that the clash in which certain persons were injured arose out of rivalry between two trade unions, but that since the date of the incident calm and peace prevailed in the industrial undertaking, the Trial Court would be justified in granting consent for the withdrawal of the prosecution and the High Court would be in error in setting aside that order.
In the present case, the State felt that it would not be conducive to the interests of justice to continue the prosecution, since the prosecution or convic tion of the accused would rouse feelings of bitterness and antagonism and disturb the calm and peaceful atmosphere prevailing in the undertaking.
Ultimately, every offence has a social or economic cause behind it and if the State feels that the elimination or eradication of the social or economic cause of the crime would be better served by not proceeding with the prosecution.
the State should be at liberty to withdraw from the prosecution.
[340 D G]
|
Civil Appeal No. 1223 1975.
From the Judgment and Order dated 4 3 75 of the Calcutta High Court in I.,.
P.A. No. 74/74.
V.N. Tarkunde, and H.K. Puri, for the appellant.
V section Desai, 1).
N. Mukherjee and N.R. Choudhary, for respondent No. I. A.K. Sen and 5.
P. Nayar, for respondent No. 2.
The Judgment of the Court was delivered by GOSWAMI, J.
This is an appeal by the defendant tenant by certificate from the judgment of the Calcutta High Court.
The question that arises for decision is whether a landlord who is a co owner of the premises with others is "the owner" within the meaning of section 13(1)(f) of the West Bengal Premises Tenancy Act, 1956 (briefly the Act).
It will turn on the interpretation of the expression "if he is the owner" under section 13(1 )(f) of the Act.
Briefly the facts are as follows : The plaintiff respondent (hereinafter to be referred to as the plaintiff) is admittedly the landlord of one late Bhagat Ram Pasricha predecessor in interest of the present appellant and respondents 2 and 3 (hereinafter to be re ferred to as the defendants).
The tenancy was in respect of a part of the premises No. 221/1, Rash Behari Avenue, Cal cutta, being the entire second floor of the building.
The tenancy commenced some time in 1946 and Bhagat Ram Pasricha promised to vacate the said premises within March 31, 1947 and positively after March 31, 1948.
The plaintiff is only a co sharer owner of the suit premises being one of the heirs of his father late Motilal Sen who, originally owned the property.
The plaintiff instituted a .suit for eviction of the defendants in December 1962 on the twin pleas of default in payment of rent and reasonable requirement of the prem ises for his own occupation as well as for the occupation of the members of the joint family consisting of his mother and his married brother.
The suit was contested by the defendants.
The trial court decreed the suit on both the grounds.
On the question of reasonable 397 requirement the trial court held that the plaintiff being only a co sharer owner cannot be said to be the owner within the meaning of section 13(1)(1) of the Act.
The trial court, however, held that the plaintiff succeeded in proving the case of reasonable requirement of the members of the family "for whose benefit the premises were held by him" within the meaning of the second part of section 13(1) (f).
On appeal by the defendants the lower appellate court did not accept the plea of default but affirmed the finding of reasonable requirement although the learned Judge was not specific as to which the two material parts of section 13(1)(f) would govern the case.
In the second appeal by the defendants before the learned single Judge of the High Court the question of factual existence of reasonable requirement was not dis puted.
It was, however, contended before the learned single Judge that even though the actual reasonable requirement of the premises was established the plaintiff was not entitled to a decree for eviction being only a co sharer and as such not "the owner" of the premises within the meaning of section 13(1) (f).
It was submitted that a co owner was only a part owner and was not entitled to an order of evic tion under section 13(1)(f) of the Act.
The learned single Judge accepted the contention of the defendants and dis missed the suit observing : "it will not be sufficient if the reasonable requirement is of all members, of the family of the co owners but such co owners must again be the landlords who only are made entitled to a decree for recovery of the possession under section 13 (1) (f).
In the letters patent appeal before the Division Bench the High Court did not agree with the single judge and set aside the decision and decreed the suit for eviction.
Mr. Tarkunde, the learned counsel appearing on behalf of the appellant submits that the decision of the Division Bench is erroneous and we should accept the views of the single Judge.
He submits that a landlord in order to be able to evict a tenant under section 13(1)(f) must be an absolute owner of the premises from which eviction is sought.
A co owner landlord without impleading all the own ers of the premises is not entitled to ask for eviction under section 13 (1)(f) of the Act.
Mr. A.K. Sen, who ap pears on behalf of the sisters of the appellant (respond ents 2 and 3) also emphasised upon this part of the case while adopting the arguments of Mr. Tarkunde.
Mr. Desai, on the other hand.
contests this proposition and submits that the decision of the Division Bench is correct.
398 Mr. Tarkunde referred to certain decisions in support of the submission that a suit by one of the co sharers for eviction of a tenant has always been held to be incompe tent.
Counsel relied upon the decision in Bollye Satee and another vs Akram, Ally and other.
C) This was a case in which it was held that a lessee of a jalkar cannot be eject ed by a suit brought by one only of the several proprietors all of whom had granted the lease.
This case, with its own facts, is, therefore, of no aid in the present controversy.
In Kattusheri Pishareth Kanna Pisharody vs Vallotil Manakel Narayanan Somayajipad and others,(2) the suit was brought by the plaintiffs on behalf of an association (sabha) to recover certain lands demised by the sabha.
It was held that all the co owners must join in a suit to recover property unless the law otherwise provides.
This decision will again be of no assistance to the appellant.
In Balakrishna Sakharatm vs Moro Krishna Dabholkar(3) it was a case of one of the co sharer jagirdars who as a manag er filed a suit for recovery of Rs. 99/ being the balance due to him on account of the highest rate of assessment for the three years preceding the suit.
The defendant disputed the plaintiff 's right to demand the highest rate of assessment and contended that the plaintiff had no right to sue alone as he and his co sharers owned the jagir and the defendant cultivated the land in that village by paying the jagirdars something less than the full assess ment prior to the years in the suit.
It was in that context that the following observation appears in the judgment which is relied upon by counsel: "We must, therefore, treat it as settled law that a co sharer who is manager even with the consent of his co sharers can not maintain a suit by himself and in his own name to eject a tenant who has failed to comply with a notice calling on him to pay enhanced rent".
This proposition of law also purports to be in line with the two earlier decisions relied upon by counsel and is of little aid to him.
In Dwarka Nath Mitter and others vs Tara Prosunna Roy and others,(4) the objection of the defendant was to the form of the suit and it was pressed from the very commence ment by the defendant.
This was a suit by the plaintiffs for balance of arrears of rent making other co sharers as defendants.
The court held that unless the co sharers had refused to join in the suit or had otherwise acted prejudicially to their interests the plaintiffs were not entitled to sue alone.
In this view of the matter the suit was dismissed.
We do not see how this decision can come to the assistance of the appellant.
It is strenuously submitted by Mr. Tarkunde that unless the landlord is also the absolute owner of the premises, he cannot evict the tenant under section 13(1)(f).Argument
Landlord means landlords under the appropriate General Clauses Act and, therefore, since there are (1) Cal.
(2) Mad.
(3) Bom.
(4) Cal.
399 other co sharers the plaintiff alone could not file the suit for eviction.
There are two reasons for our not being able to accept the above submission.
Firstly, the plea pertains to the domain of the frame of the suit as if the suit is bad for non joinder of other plaintiffs.
Such a plea should have been raised, for what it is worth, at the earliest oppor tunity.
It was not done.
Secondly, the relation be tween the parties being that of landlord and tenant, only the landlord could terminate the tenancy and institute the suit for eviction.
The tenant in such a suit it estopped from questioning the title of the landlord under section 116 of the Evidence Act.
The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy.
Under the general law, in a suit between landlord and tenant the question of title to the leased property is irrelevant.
It is, therefore, inconceivable to throw out the suit on account of non pleading of other co owners as such.
Being faced with this position counsel submits that since the requirements are found to be of the co owners, the suit cannot be decreed in their absence.
This is a repetition of the first submission in a different form.
Counsel relied upon Mclntyre and another vs Hardcastle(1).
The English rule laid down in that decision is that if two or more landlords institute a suit for possession on the ground that a dwelling house is required for occupation of one of them as a residence the suit would fail.
The re quirement, according to the decision, must be of all the landlords.
vs Amarendra Nath Roy Choudhuri and Ors,(2) Tarak Chandra vs Ratanlal Ghosal;(3) Taherbhai Hebtullabhai and another vs Ambalal Harilal Shah & Ant.(4).
Deb Ranjan Chatterjee vs Swaranarani Biswas & another(5).
Indeed the rule in Mclntyre 's case (supra) is abhorrent to the Indian conception and structure of social life of our country with its benign sensitivity and ties, which is not based on pure individualism.
A widowed sister, sud denly shipwrecked in the mid stream of married life, with no other help, returns to parental home or to her brothers ' where sympathetic and affectionate shelter is readily avail able to her.
In such a case the additional requirement of the widowed sister and her children may furnish a reasonable requirement of the father or the brothers for the purpose of eviction of their tenant.
It is enough if the requirements are of any one of the members of the family or of dependents to furnish a reasonable plea for eviction on the ground of personal requirement.
We endorse the parting of the ways from the English rule on this aspect of the matter by the High Courts.
This is in accord with healthy Indian tradi tion.
(1) (2) (3) (4) I.L.R. [1966] 7 Guj. 963 (5) 400 Keeping in the forefront the observations of the Bombay High Court in Vagha jesing vs Manilal Bhagilal Desai(1) (at page 252) where reference has been made to the land lords ' rights belonging jointly to several persons and hence warranting a suit by all the coowners, Mr. Tarkunde drew our attention to the admission of the plaintiff in his deposition regarding the death of his father in 1949 and that Bhagat Ram Pasricha was inducted by him as instructed by his father to do so.
From this he submitted that all the heirs of late Motilal Sen were the landlords and, there fore, they should have been impleaded as plaintiffs in the suit.`
We are unable to give effect to this submission taken for the first time in this Court in view of the clear ac knowledgement and admission of the defendants and concur rent findings of the courts that the plaintiff is their landlord.
Mr. Tarkunde also relied ' upon a Full Bench decision of the Gujarat High Court in Nanalal Girdharlal and another vs Gulamnabi Jamalbhai Motorwala and others(") and read to us the following passage at page 146: "It is, therefore, clear that the rule that a co owner may maintain an action to eject a tres passer without joining other co owners in such action can have no application where a co owner seeks to evict a tenant who is in possession of the property after determination of the lease.
Such a tenant can be evicted only by an action taken by all co owners" But this rule is not applicable in the present case as would appear from the decision itself.
The Gujarat decision at para 10 of the judgment excludes two categories described therein and the rule of estoppel applies to these two categories.
The present case, even according to this deci sion, fails under the excepted category.
Before we come to the real question at issue we may turn to section 13(1)(f) of the Act as it was at the mate rial time: Sec. 13.
protection of tenant against eviction (1) Notwithstanding anything to.
the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds, namely (f) where the premises are reasonably re quired by the landlord either for purposes of building or rebuilding or for making thereto substantial additions or alterations or for his own 'occupation if he is the owner or for the occupa tion of any person for whose benefit the premises are held".
(1) 37 Born.
L.R. 249.
(2) A.I.R.1973 Guj. 131.
401 This is not a case attracting the second part of section 13(1)(f), that is to say, the clause providing for the occupation of any person for whose benefit the premises are held.
We will not, therefore, refer to the submission of the appellant and to the decisions relied .
upon by him with reference to that clause.
The present case, on the facts found, is covered by the first part of section 13(1 )(f), namely, where the premises are reasonably required by the landlord for his own occupa tion if he is the owner.
There is no dispute that the plaintiff is the landlord.
It is, however, found that he is one of the co owners of the premises the other co sharers being his mother and married brother, who reside in the Same premises along with him
The premises m suit, namely, the second floor of the building in occupation of the tenant is required by the plaintiff for occupation of the members of the joint family and for their benefit.
A major portion of the ground floor of the building accommodates the joint family business and the first floor is found by the court to be inadequate to the requirements of the large family of eighteen members including the widowed mother.
That the particular requirement is reasonable is no longer in controversy.
The only question is whether a decree can still be passed in favour of the plaintiff since he is not the absolute and full owner of the premises, sharing, as he does, the interest in the premises along with other co sharers.
The principal question, therefore, is whether the plain tiff being a co owner landlord can be said to reasonably require the premises for his own occupation within the expression "if he is the owner" in section 13 ( 1 ) (f).
Mr. V.S. Desai reads to us from Salmond on Juris prudence (13th edition) and relies on the following passage in Chapter 8 (Ownership), paragraph 46 at page 254: "As a general rule a thing is owned by one person only at a time, but duplicate ownership is perfectly possible.
Two or more persons may at the same time have ownership of the same thing vested in them.
This may happen in several distinct ways, but the simplest and most obvious case is that of co ownership.
Partners, for example, are co owners of the chattels which constitute their stock in trade of the lease of the premises on which their business is conducted, and of the debts owing to them by their customers.
It is not correct to say that property owned by co owners is divided between them, each of them owning a sepa rate part.
It is an undivided unity, which is vested at the same time in more than one person .
The several ownership of a part is a different thing from the co ownership of the whole.
So soon as each of two co owners begins to own a part of the thing instead of the whole of it, the co ownership has been dissolved into sole 402 ownership by the process known as partition.
Jurisprudentially it is not correct to say that a co owner of a property is not its owner.
He owns every part of the composite property along with others and it cannot he said that he is only a part owner or a fractional owner of the property.
The position will, change only when parti tion takes place.
It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co owner of the premises is not the owner of the premises within the meaning of section 13(1)(f).
It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of section 13(1)(f) as long as he is a co owner of the property being at the same time the acknowledged landlord of the defendants.
Mr. Tarkunde also submitted that since the Calcutta High Court has held in Yogamaya Pakhira vs Santi Subha Bose(1) that a permanent lessee is not an owner within the meaning of section 13 (1)(f) a co owner would not be in a better position.
We are of opinion that a co owner is as much an owner of the entire property as any sole owner of a property is.
We, however, express no opinion about the case of a permanent lessee as this point does not arise in this ap peal.
As all the submissions of the appellant fail, the appeal is dismissed.
We will, however, make no order as to costs.
P.H.P. Appeal dis missed.
| IN-Abs | The plaintiff respondent is one of the co owners of the premises which were let out to the appellant tenant.
The plaintiff filed a suit for eviction under section 13(1)(f) of the West Bengal Premises Tenancy Act 1956.
The grounds for eviction were the non payment of the rent and the reasonable requirement of the premises for the landlord.
The trial court held that the plaintiff being only a co sharer cannot be said to be the owner within the meaning of section 13(1)(f).
The trial court, however, held that the plaintiff succeeded in proving the reasonableness of the requirement of the members of the family for whose benefit the premises were held by him and, therefore, granted a decree for eviction.
An appeal filed by the appellants failed.
In the second appeal filed by the appellants it was contended that al though reasonable requirement of the premises were estab lished, the respondent was not entitled to a decree for eviction since he was only a co sharer and, therefore, not the owner of the premises.
The single Judge of the High Court held that it will not be sufficient if the reasonable requirement is of all the members of the family of the co owners but such owners must again be the landlords who only are entitled to a decree for recovery of the possession under section 13(1)(f).
A Division Bench set aside the decision of the Single Judge on the ground that a co owner is as much as absolute owner as a sole owner.
In appeal by special leave, the appellant contended: A landlord to be able to evict a tenant under Section 13(1)(f) must be an absolute owner of the premises from which eviction is sought.
Dismissing the appeal, HELD: The contention of the appellant that the co sharer plaintiff must be the absolute owner and a co owner cannot without impleading all the owners of the premises ask for eviction cannot be accepted because the plea pertaining to the domain of the frame of the suit should have been raised at the earliest opportunity and it was not done.
Secondly, the relation between the parties being that of landlord and tenant only the landlord could terminate the tenancy and institute the suit for eviction.
The tenant in such a suit is estopped from questioning the title of the landlord under section 116 of the Evidence Act.
Under the general law, in a suit between the landlord and tenant, the question of title to the lease property is irrelevant.
The plaintiff is one of the co owners of the premises.
The other co sharers being his mother and married brother who reside in the same prem ises along with him.
Jurisprudentially, it is not correct to say that a co owner of a property is not an owner.
He owns every part of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner of the property.
The position will change when partition takes place.
It is, therefore, not possible to accept the submission that the plaintiff who is admitted ly the landlord and co owner of the premises is not the owner of the premises within the meaning of section 13(1)(f).
[399 A C. 401 B & 402 A B] Bollye Satee and Anr.
vs Akram Ally and Anr.
[1879] ILR (4) Calcutta 961; Kattusheri Pishareth Kanna Pisharody vs Vallotil Manakel Narayan Somayajipad and Ors., [1878] 81 ILR (3) Madras 234; Balkrishna Sakharam vs Moro Krishna 396 Dabholkar [1897] ILR (21) Bombay 154; and Dwarka Nath Mitter and Ors.
vs Tara Prosunna Roy & Ors.
[1890J/LR (27) Calcutta 160, distinguished.
Mclntyre and Anr.
vs Hardcctstle; [1848] (1) All England Law Reports 696; followed.
Kanika Devi and Ors.
vs Amarendra Nath Roy Choudhury and Ors; 65 Calcutta Weekly Notes 1078; Tarak Chandra Mukherjee vs Ralanlal Ghosal; ; Taherbhai Hebtullabhai and Anr.
vs Ambalal Harilal Shah and Anr.; 1966(7) Gujarat 963 LLR; and Deb Ranjan Chatterjee vs Swarnarani Biswas & Anr.
78 Calcutta Weekly Notes 1034; approved.
Nanalal Girdharlal and Anr.
vs Gulamnablti Jamalbhai Motorwala and Ors.
; distinguished.
|
ivil Appeal Nos.
1231 of 1973 and 1408 of 197.
(From the Judgment and Order dated 11 5 1973 of the Delhi High Court in Civil Writ No. 690/72).
380 B. Sen, and L N. Shroff for the Appellant (in Appeal No. 1231/73) S.V. Gupte, P.P. Rao and A.K. Ganguli for Respondent Nos. 1 ,.
2, 4, 6 18, 20, 22, 23, 25 32, 34 and 35.
M.K. Ramamurthi, C. N. Murti and R. C Pathak for Re spondent 36.
M.K. Ramamurthi, C.N. Murti and R. C: Pathak for the Appellant (in Appeal No. 1408/74).
P.P. Rao and A.K. Ganguli for Respondents 1.2, 4, 6 18, 20, 22, 23, 25, 32, 34 & 35.
B. Sen and I. N. Shroff for Respondent 36.
The Judgment of the Court was delivered by BHAGWATI, J.
The Reserve Bank of India is the appel lant in ' Civil Appeal No. 1231 of 1973.
This appeal, on certificate, is directed against a judgment of the High Court of Delhi allowing Writ Petition No. 690 of 1972 filed by some of the employees of the Reserve Bank challenging the validity of the combined seniority Scheme issued by the Reserve Bank of India by its Circular dated 13th May, 1972.
This judgment of the High Court is also assailed by the All India Reserve Bank Employees Association (hereinafter referred to as the Association) by preferring Civil Appeal No. 1408 of 1974 after obtaining certificate from the High Court.
Both these appeals have been heard together since they are directed against the same judgment and all the arguments raised on behalf of the appellants are also common except one additional argument advanced on behalf of ,the Association in Civil Appeal No. 1408 of 1974.
The facts giving rise to these two appeals are a little important and it is necessary to state ,them in order to appreciate the questions arising for determination in the appeals.
The primary purpose for which the ,Reserve Bank of India was originally constituted was "to regulate the issue of bank notes and the keeping of the reserves with a view to securing monetary stability in India and generally to oper ate the currency and the credit system of the country to its advantage".
But in course of time other functions came to be added as a result of various statutes passed by the Parliament from time to time to meet the economic needs of the country.
The administrative machinery of the Reserve Bank ' for carrying out these diverse functions was at the material time divided into the following five groups of departments: (1) Group I: General Side.
that is, Banking Department, Issue Department, Public Debt Division and Exchange Control Department; (2) Group II: Department of ' Banking Operations, Development and InduStrial Finance Department and Department of Non banking Companies; (3) Group III: Agricultural Credit Department, (4) Group IV: Economic Department and Department of Statistics and (5) Group V: Industrial Development Bank of India.
The depart ments falling within the first group were known as the general departments, while the departments falling within the other four groups were known as the specialised depart ments.
Though recruitment to these different groups of departments was 381 made on a common basis, each group of departments was treat ed as a separate unit for the purpose of determining the seniority and promotion of the employees within that group and this was done on centrewise basis.
The result was that there was a separate seniority list for the employees in each group of departments at each centre of the Reserve Bank and the employees could seek confirmation and promotion only in the vacancies arising within their own group of departments at their own centre.
There were two grades of clerks in each group of departments, namely, Grade I and Grade II.
The pay scales of Grade I and Grade II clerks in all the groups of depart ments were the same and their conditions of service were also identical.
There was automatic promotion from Grade II to Grade I and when a clerk from Grade II was promoted to officiate in Grade I he got an additional officiating allow ance of Rs. 25/ per month.
While Grade 1 and Grade II clerks in the specialised departments were invariably gradu ates, those in the general departments were not always so.
Some out of them were graduates, while others were non graduates.
There were also several categories of non clerical posts in the general as well as specialised depart ments.
They were in Grade II and the pay scale this Grade was the same as that of Grade II clerks in the general and specialised departments.
It appears from the Circular of the Reserve Bank dated 13th May, 1963 that Stenographers, Typists and Coin/ Note Examiners, though falling within the category of non clerical staff, were sometimes transferred as Grade II clerks and by this circular, it was decided that "with effect from 1st July, 1963, the transfer of staff from one category to another should be governed" by the principles there set out.
Two categories of transfers were contemplated by this Circular: one was transfer by selection and the other was transfer on grounds of health.
The first category of transfers by selection required that the Stenog rapher, Typist or Coin/Note Examiner seeking transfer would have to be a graduate or should have passed both parts of the Institute of Bankers ' Examination and his applica tion for transfer would be considered by the manager from the point of view of his record of service and his suitabil ity for transfer to the clerical grade and he would then have to appear for interview before a selection board and it was only if he was selected that he would be transferred as Grade II clerk.
But once he was transferred as Grade II clerk, his seniority in the new cadre would be counted from the date on which he joined service, as a Typist or Coin/Note Examiner and in the case of a Stenographer, from the date on which he jointed service as a Typist or as a Stenographer in case he was directly recruited as such "provided that the said date shall not_ be earlier than the date on which the transferee acquired the degree or banking qualification by reason of which he became eligible for such transfer: that is to say, in the case of a Coin/Note Examiner/ Typist/Stenographer who graduates or acquires the banking qualifications after the date of his joining serv ice, he will be deemed to have joined service "only o, the date he acquired the said qualification".
382 The second category of transfers was on grounds of health.
However, that is not material for our purpose and we need not consider it.
It seems that in view 'of the expanding activities of the Reserve Bank in the Specialised Departments, there were greater opportunities for confirmation and promotion for employees in the specialised departments as compared to those available to employees in the general departments.
This gave rise to dissatisfaction amongst employees in the general department and they claimed for equalising the confirmation and promotional opportunities by having a combined seniority list for all employees in Class III irrespective of the departments to which they belonged basing promotions on such combined seniority list.
This question was also raised by the Association before the National Tribunal consisting of Mr. Justice K.T. Desai and it was pleaded by the Association that "all promotions should be made strictly according to the combined seniority irrespective of the cadre of department".
The Reserve Bank, on the other hand, sought to justify the maintenance of separate seniority lists for various departments on the ground that the work in each department was becoming more and more of a special nature and inter transferability was not only undesirable in the best interest of the Bank, but it was also hard to achieve.
The National Tribunal, while not accepting the demand of the Association and expressing its inability to give any direction to the Reserve Bank in regard to this question, made the following observations in its Award: " I can only, generally, observe that it is desirable that wherever it is possible, without detriment to the interests of the Bank and without affecting the efficiency, to group employees in a particular category serving in different depart ments at one Centre together for the purpose of being considered for promotion a common seniority list of such employees should be maintained.
The same would result in opening up equal avenues of promotion for a large number of employees and there would be lesser sense of frustration and greater peace of mind among the employees.
" These observations of the National Tribunal were ap proved by Hidayatullah, J., as he then was, speaking on behalf of this Court in All India Bank Employees Association vs Reserve Bank of India(1) at page 57.
In view of these observations of the National Tribu naI, which were endorsed by this Court, the Reserve Bank took the first step towards equalising the confirmation and promotional opportunities of employees in the General Departments by introducing the Optee Scheme of 1965 by a Circular dated 29th June, 1965.
Clause (1) of the Scheme provided that all vacancies in Grade II Clerks occurring in Specialised Departments in each centre upto 30th June, 1970 would be treated as expansion vacancies to be filled up by transfer of confirmed Grade II Clerks including officiat ing Grade I Clerks in the (1) ; 383 General Departments.
The manner in which these vacancies shall be filled was set out in clauses (2) and (3) which read inter alia as follows: "A circular will be issued inviting applica tions in form 'A ' from confirmed graduate Clerks Grade 1I (including officiating Clerks Gr.
I) of the General Side (Group 1) for the preparation of a panel of suitable employees who are willing to opt for transfer to any of the Departments in Groups II, 1II and V at each centre under the optee scheme.
As regards the non clerical staff trans ferred to the clerical cadre, only those who have been absorbed against permanent vacancies of clerks Gr.
II on the General Side will be eligible to opt for transfer.
(i) The panel will be a consolidated one, i.e., separate panels will not be prepared for each of the Departments in Groups II, 1II and V at each centre.
(ii) The option exercised by the employees will be subject to the approval of the 'Manager ' depending on their past record of service and suitability for transfer to departments in Groups II, III and V. (iii) (a) The position of employees on the panel, recruited directly as clerks Gr.
II from the waiting list of graduate clerks Gr.
II will be determined according to their dates of recruitment.
(b) In the case of employees recruited from the waiting list of undergraduate clerks Gr.
II who have become graduates while in service, and in the case of non clerical graduate staff transferred to the clerical cadre, their position in the panel will be determined according to their dates of graduation. (iv) As and when vacancies arise in the Depart ments in Groups II, III and V at each centre, they will be filled up by drawing on the panel, the first vacancy going to the first person on the panel, the second to the second and so on.
An employee will have no choice of the Department to which he will be posted.
The posting will be made in the order in which the vacancies arise.
(v) Officiating clerks Gr.
I will be trans ferred only in their substantive capacity as clerks Gr.
II (vi) (a) The seniority of the optees on transfer to the Departments in Groups II, III and V will be determined on the basis that their trans fers to the concerned Departments have been made in the interest of the Bank, that is to say, the substantive position of the transferee in the seniority list of the Department concerned will be fixed above and employee who joined service after the date of his recruitment 384 or date of graduation as the case may be and below the employee who joined service before the date of his recruitment/graduation . (c) The above method of fixation will, howev er be subject to the provision that if a substan tively junior employee in the Department to which the transferee is posted is already officiating in that Department in a higher grade on a longterm basis on the date the transferee reports for duty that officiating employee will be considered senior to the transferee.
The inter se seniority of the transferee posted to the same Departments in Group II, III and V will be fixed in the order in which their names are listed in the panel . (viii) The panel will be revised annually.
" It will be seen that under the Scheme the option to go over to the Specialised Departments was confined to confirmed Grade II Clerks.
and offici ating Grade 1 Clerks in the General Departments.
But there also, every Grade II Clerk and Officiat ing Grade I Clerk was not entitled to be absorbed in the Specialised Departments as of right, but he had to go through a process of selection and the option exercised by him was "subject to the approv al of the Manager depending on his past record of service and suitability for transfer" to the Spe cialised Departments.
If he exercised the option and was selected, he would be entitled to be ab sorbed only as Grade II Clerk in one of the Specia lised Departments with the result that if he was an officiating Grade I Clerk in the General Depart ments at the time of the exercise of the option, he would lose the benefit of officiation in Grade I in the General Departments as also the monetary bene fit of Rs. 25/ per month which he was getting during such officiation.
His seniority in the cadre of Grade II Clerks in the SpeciaIised Department in which he was absorbed would be liable to be deter mined on the basis of his length of service calcu lated from the date of his recruitment if he was also a graduate when he joined service or from the date of his graduation if he became a graduate whilst in service.
The rationale behind this provision obviously was that graduation being_ regarded as essential qualification for being a Grade II Clerk in the Specialised Departments, the length of service from the date of graduation alone.
should be taken for the purpose of determin ing the seniority of transferees from the General Departments.
The petitioners in Writ Petition No. 690 of 1972, who may for the sake of convenience be hereafter referred to as the petitioners.
were, at the time of the introduction of the Optee Scheme of 1965, confirmed Grade II Clerks in the General Departments and some of them were officiating in the General Departments as Grade I Clerks.
Though most of the petitioners were recruited as Grade II Clerks from the beginning, so far as petitioners 4, 9, 16, 18, 19, 23 and 26 were concerned, they were originally recruited to non cleri cal posts and subsequently transferred as Grade II clerks by selection and that is how at the date when the Optee Scheme of 1965 came into force, they were confirmed Grade II Clerks in 'the General Departments.
The 385 petitioners exercised the option under the Optee Scheme of 1965 and were absorbed substantively as confirmed Grade 1I Clerks in one or the other of the Specialised Departments.
Obviously, the consequence was that those of the petition ers who were officiating as Grade I Clerks in the General Departments lost their officiating position as a result of this transfer together with the attendant monetary benefit of Rs. 25/ per month.
Besides the petitioners, there were also other confirmed Grade I[ Clerks and Officiating Grade I Clerks in the General Departments who, having exercised the option and being selected, were taken over as confirmed Grade I1 Clerks in the Specialised Departments.
Some of them a few were, in due course, in order of seniority, promoted as Officiat ing Grade I Clerks in their respective Specialised Depart ments.
But before the turn of the petitioners for promo tion could arrive, a new Scheme was brought into force to which we shall presently refer.
It appears that the Asso ciation was not satisfied with the Optee Scheme of 1965 as it did not go far enough and equalised opportunities for only a section of the employees in the General Depart ments, namely confirmed Grade II Clerks and Officiating Grade I Clerks, leaving the rest in the same disadvantageous position as before.
The Association, therefore, continued to press its demand for complete equalisation of opportu nities and in 1969, the Reserve Bank took one further step with a view to partly satisfying that demand.
The Reserve Bank introduced another Scheme called the Optee Scheme of 1969 for transfer of confirmed Grade I Clerks in the Gener al Departments to the Specialised Departments to the extent of one third of the long term normal vacancies of Grade I Clerks arising in the Specialised Departments during the period from 1st February, 1969 to 30th June, 1970.
But this also did not satisfy the Association for what the Associa tion desired was full equalisation of opportunities between the General Departments and the Specialised Departments.
The Association continued to agitate for acceptance of its demand and ultimately, as a result of negotiations, an agreement dated 7th May, 1972 was arrived at between the.
Reserve Bank and the Association by which the demand of the Association was substantially conceded and the principle of a combined seniority list was accepted by the Reserve Bank.
The petitioners and some other employees were, however, not members of the Association and they refused to accept the terms of this agreement and hence the Reserve Bank issued a Circular dated 13th May, 1972 introducing d Scheme for combined seniority list and switched over from non clerical to clerical cadre with effect from 7th May, 1972.
This Scheme was substantially in the same terms as the agreement dated 7th May, 1972 and we shall hereafter, for the sake of convenience, refer to this Scheme as the Combined Seniority Scheme.
The Combined Seniority Scheme consisted broadly of two parts.
One part provided for the integration of the clerical staff of the General Departments with the clerical staff of the Specialised Departments and the other, for the switch over and integration of the non clerical staff with the clerical staff in all the Departments of the Reserve Bank 386 Clauses (8) and (9) dealt with the first part and they provided inter alia as follows: "8.
Combined Seniority between clerical staff in dif ferent departments The seniority lists of the staff mentioned below work ing in the general side and Specialised Departments (i.e. in all the Groups 1 to V of the Department wise grouping) will be merged into one with effect from 7th May, 1972 in accordance with the provisions of clause 10 in the manner set out below: (a) All Clerks Grade II, Field Investigators and Clerks Grade I (with less than one year total officiating service) will be placed in the combined seniority list, relative seniority of an employee being fixed according to the date of his first appointment as Clerk/Field Investigator.
(b) All confirmed Clerks Grade I, Clerks Grade I officiating as such on 7th May, 1972 with one year or more total officiating service, Assistants (temporary, officiating as well as confirmed) and Field Inspectors will be placed in the combined seniority list ranking as a group above the employ ees listed under sub clause (a) above.
The relative seniority of an employee will be fixed on the basis of the total length of service put in by him from the date he first started officiating as Clerk Grade I/Field Inspector after deducting therefrom periods during which he reverted as clerk Grade II/Field Investigator otherwise than on account of proceeding on leave.
(c) Fixation of seniority as referred to in sub clauses (a) and (b) above will be subject to the proviso that the inter se position as between two employees in the existing groupwise/departmentwise seniority lists is not disturbed to the detriment of any senior employee within the same group/department except as provided for in clause 6 and sub clause (e) below.
(d) x x x x (e) ' The seniority of class III personnel having been fixed as provided for in sub clauses (a) and (b) above the seniority of an optee, selected clerk in the existing specialised departments whose seniority compared to his juniors in the existing General side is adversely affected will be protected to the extent of his entitlement had he not opted/been selected under the optee/select ed scheme: Provided that he shall apply in this regard in writing within one month from the date of notification of the combined seniority list.
Applications 387 for such adjustments will not be entertained after expiry of the period stipulated above.
(i) (a) Employees officiating as Clerks Grade I on 7lb May, 1972.
An employee officiating as a Clerk Grade I as on 7th May 1972 will continue to officiate without prejudice to the claims of employees whose position may be above him in the.
combined seniority list.
he reverts, his next promotion will be according to his substantive seniority in the combined list.
Reversion only on account of proceeding on leave will not be deemed as reversion for the purpose this clause.
(b) Promotion as Clerks Grade I between 7th May 1972 and the notification of the combined seniority list.
Promotions during this period will be made with reference to the existing departmental/groupwise seniority list but without prejudice to the claims of seniors in the combined seniority list.
When the combined seniority list, becomes available, a review of all such promotions made in the interre gum will be made and senior employees not officiat ing in the higher grades will be promoted by re placing the junior employees.
The review will be completed within a period of two weeks.
(c) Promotions as Clerks Grade I thereafter.
Promotions will be made from the combined seniority list" The second part Was provided for in clauses (1) to (7) and these clauses, so far as material read thus: "1.
Combined seniority between clerical staff and eligible non clerical stall opting for switchover: (a) All employees in Class III non clerical cadre substantively in the categories that have been listed as groups I, Iii, IV and V in the annexure (Reference is not to the department wise groups) who are graduates or have passed both parts of Institute of Bankers Examination will be eligible to exercise an option in accordance with sub clause (a) or (b) of clause 2 to be transferred, automat ically and without any screening, to posts in the clerical cadre which are vacant and are other than of a purely stop gap or short term nature, subject to subclause (b) below.
Actual transfer to posi tions involving clerical duties will be effected in a phased manner as laid down in clause 7.
(b) On such option being exercised within the period of two months as per clause 2 (a), or one month as per clause 2 (b) as the case may be, the position of such optee will be fixed in the com bined seniority list by counting for the purpose of seniority in the clerical cadre onethird of his total non clerical service in Class III in the 388 Bank until 7th May 1972 or the date of acquiring the qualification i.e. the date of publication of the results of the examination, as the case may be (vide clauses 3(a) and 3(b).
(a) x x x x (b) Any employee who acquires the qualifica tion for eligibility after the 7th May 1972, will have, within one month of acquiring the said qualification, to exercise his option whether he desires to switch over to the clerical cadre with his seniority being determined as per clause I(b).
The option once exercised shall be final subject to the right of revocation and with the same consequences, as at subclause (a) above.
Those eligible but not exercising the option within the, aforesaid period of one month shall lose 'the right of option thereafter.
(a) The notional seniority in the clerical cadre of those employees who are eligible for switchover on the 7th May 1972 and exercise their option under clause 2(a) will be fixed with effect from 7th May 1972.
(b) In respect of employees who acquire the eligibility qualification in future and exercise their option under clause 2(b), their notional seniority in the clerical cadre will be fixed with effect from the date of acquiring such quali fication viz. date of publication of the results of the examination.
(c) Fixation of seniority whether under sub clause (a) or (b) will, however, be subject to the proviso that the inter se position as between two employ ees in the concerned seniority list of non cleri cal employees as it stood immediately before the 7th May 1972 or the date of acquiring the qualification for switchover is not disturbed to the detriment of a senior employee as in the relevant seniority list.
(Illustration for fixation of seniority is Enclo sure.
I) 4.(a) An employee opting for switchover will, for the, purpose of compilation of the combined sen iority list, be deemed to be a member of 'the clerical cadre with effect from the date as at clauses 3(a)and 3(b), as the case may be.
(b) Until such time as he is actually transferred to the clerical cadre an optee from the non cleri cal grade in which he is placed at the time of option and will accordingly remain eligible for promotion in the non clerical cadre; Provided that an employee officiating in a category that is listed as group II, VI, VII or VIII of Annexure as the ease may be confirmed in that category only if he revokes his earlier option before confirmation, for which he will have an opportunity.
" 389 _It may be pointed out that though the Optee Scheme of 1965 was originally intended to be operative only upto 30th June, 1970, it was .continued right upto the time that the Combined seniority Scheme came into force.
The effect of the Combined Seniority Scheme was .that it superseded the Optee Scheme of 19 '65.
The petitioners were ,aggrieved by the Combined Seniority Scheme since according to them it affected their chances of confirmation and promotion and placed them in a disadvantageous position and accordingly they filed Civil Writ No. 690 of 1972 in the Delhi High Court challenging the validity of the Combined Seniority Scheme on various grounds relatable to Articles 14 and 16 of the Constitution.
These grounds of challenge found favour with the Division Bench of the Delhi High Court which heard the petition and the Division Bench quashed and set aside the Combined Seniority Scheme on the view that it was viola tive of Articles 14 and 16 of the Constitution.
The three main grounds on which the Division Bench found fault with the Combined Seniority Scheme were first, that it discrimi nated against the petitioners vis a vis.
the others who had opted under the Optee Scheme of 1965 and who had obtained promotion as Grade I Clerks in their respective Specialised Departments before the introduction of the Combined Seniori ty Scheme;secondly, it discriminated against the petitioners in relation to the .
clerical staff in the General Depart ments who either did not exercise the option under the Optee Scheme of 1965 or having exercised the option, were not selected and thirdly, it treated alike the non clerical staff as well as the clerical staff by integrating them together in one cadre with a combined seniority list, though they formed two distinct and separate classes unequal to each other.
The Division Bench accordingly allowed the petition and struck down the Combined Seniority Scheme.
Two appeals were thereupon preferred to this Court after obtaining a certificate of fitness from the Delhi High Court, Civil Appeal No. 1231 of 1973 by the Reserve Bank and Civil Appeal No. 1408 of 1974 by the Association.
Both the Reserve Bank and the Association seek to sustain the validi ty of the Combined Seniority Scheme in these appeals sub stantially on the same grounds.
We will assume for the purpose of these appeals that the Reserve Bank is a "State" within the meaning of Article 12 of the Constitution and hence subject to the limitations imposed by Article 14 and 16.
It was in fact so held by the Delhi High Court and this view was not seriously assailed before us on behalf of the Reserve Bank.
The question which, therefore, requires to be considered is whether the Combined Seniority Scheme in any way falls foul of Articles 14 and 16.
The Delhi High Court relied on three grounds for invalidating the Combined Seniority Scheme under Articles 14 and 16 and the same three grounds were also canvassed before us in these appeals, but we do not think there is any sub stance in them.
We shall examine these grounds in the order in which they were advanced before us.
The first ground was that the Combined Seniority Scheme discriminated unjustly against the petitioners vis a vis those confirmed Grade II Clerks and Officiating Grade I Clerks in the General Departments who either did not exer cise the option under the Optee Scheme 390 of 1965, or, having exercised the option, were not selected.
The argument of the petitioners under tiffs head of chal lenge was that the Optee Scheme of 1965 was introduced by the Reserve Bank for the purpose of improving the promotion al opportunities of Grade II Clerks in the General Depart ments by absorbing them in the cadre of Grade II Clerks in the Specialised Departments where there were greater promotional opportunities by reason of a larger number of posts in the higher grades.
That was the implied assurance given by the Reserve Bank as part of the Optee Scheme of 1965 and the petitioners, acting on this assurance, exer cised the option to be transferred as confirmed Grade II Clerks in the Specialised Departments, some of them even giving up their officiating position as Grade I Clerks and losing in the process the officiating monetary allowance of Rs. 25/ per month.
The Reserve Bank was, in the circum stances, precluded from introducing the Combined Seniority Scheme which had the effect of prejudicing the promotional opportunities assured to the petitioners, until the peti tioners got their promotion to higher posts in the Specia lised Departments in accordance with such assurance.
The position, however, which obtained when the Combined Senior ity Scheme was brought into force was that the petitioners were still confirmed Grade II Clerks in the Specialised Departments, while, as compared to them, some of the Grade II Clerks in the General Departments, who were junior to the petitioners and who had either not exercised the option or, having exercised the option, were not selected were already promoted as Grade 1 Clerks in the General Departments.
In this situation, the effect of the Combined Seniority Scheme was that though theoretically, by reason of cl.
(8)(c), the petitioners were given seniority over these Grade II Clerks who had been promoted as Grade I Clerks in the General Departments, the latter retained their higher Grade I in the Combined Seniority Scheme and thus secured an advantage over the petitioners.
This was the anomalous and unjust result brought about by the Combined Seniority Scheme and that, according to the petitioners, introduced a serious infirmi ty.
This argument, we are afraid, is more an argument of hardship than of law and we do not think we can accept it.
When the petitioners opted to be transferred to the Specialised Departments under the Optee Scheme of 1965, they obviously did so as they thought that they would have quicker chances of promotion in the Specialised Department than in the General Departments.
But it appears that before their turn for promotion as Grade I Clerks in the Specialised Departments could come, some vacancies occurred in the cadre of Grade I Clerks in the General Departments and naturally they were filled up by promotion of Grade II Clerks in the General Departments.
Some of these Grade II Clerks who were promoted were junior to the petitioners, but they got an opportunity for promotion as the petitioners went out of the General Departments by exercising the option to be transferred to the Specialised Departments.
This was a wholly fortuitous possibly not anticipated by the petition ers or perhaps the petitioners might have thought that they would have an advantage in the matter subsequent promotions to posts higher 391 than Grade I Clerks.
Be that as it may, the fact remains that this was the position which obtained at the date when the Combined Seniority Scheme was introduced by the Reserve Bank.
The question is, was there anything which prevented the Reserve Bank from doing so ? We fail to see how from the mere introduction of the Optee Scheme of 1965, any promise or assurance could be spelt out on the part of the Reserve Bank not to take any steps towards integration of other employees not covered by the Optee Scheme of 1965.
The Reserve Bank could not, on any principle of law or by any process of implication, be held bound to hold its hands in the matter of further inte gration, until the petitioners were promoted in the Specia lised Departments.
And the question would again.be: promoted how far one stage or two stages or more than that ? It is obvious that the only object of the Optee Scheme of 1965 was to equalise the promotional opportunities of Grade II Clerks in the General Departments with those of Grade II Clerks in the Specialised Departments by giving an option to the former to be absorbed in the latter.
This object was car ried out as soon as the petitioners and other Grade II Clerks in the General Departments opted to be transferred to the Specialised Departments.
Then they became Grade H Clerks in the Specialised Departments having the same promotional opportunities as the original Grade II Clerks in the Specia lised Departments.
There was no assurance given by the Reserve Bank that the promotional opportunities available to Grade II Clerks in the Specialised Departments will not be diminished.
The Combined Seniority Scheme affected the promotional opportunities of all Grade II Clerks in the Specialised Departments, irrespective of whether they were original or transferee Grade II Clerks.
It did not discrim inate between transferee Grade II Clerks and original Grade II Clerks and treated them alike in bringing about total integration of the employees in the several Departments.
There was no breach of the principle that the promotional opportunities of transferee Grade II Clerks should be equal to those of original grade II Clerks.
Both were ef fected equally by the Combined Seniority Scheme.
Now under the Combined Seniority Scheme, the integration could only be on grade to grade basis and, therefore, if by the time the Combined Seniority Scheme came into force, Grade II Clerks, junior to tile petitioners, had become Grade I Clerks in the General Departments, they could be equated only with Grade I Clerks in the Specialised Departments and to this equation, no valid objection could be taken on behalf of the petition ers.
Undoubtedly, it would cause heart burning amongst the petitioners to find that Grade II Clerks, junior to them in the General Departments, have become Grade I Clerks in the integrated service, while they still continue to be Grade II Clerks, but that is a necessary consequence of integration.
Whenever services are integrated, some hardship is bound to result.
Reasonable anticipations may be belied.
The second ground on which the petitioners challenged the validity of the Combined Seniority Scheme was that it discriminated against the petitioners vis a vis other Grade II Clerks who had opted under the Optee Scheme of 1965 and obtained promotion as Grade I Clerks in their respective Specialised Departments before the introduction of the 9 1104SCI/76 392 Combined Seniority Scheme.
The contention of the petition ers was that some of the Grade I1 Clerks who had opted under the Optee Scheme of 1965 were promoted as Grade I Clerks, while the petitioners continued as Grade II Clerks and before their turn for promotion could arrive, the Combined Seniority Scheme was brought into force and that prejudi cially affected their promotional opportunities and thus brought about unjust discrimination between persons belong ing to the same class.
This contention has no force and must be rejected.
We have already discussed and shown that it was competent to the Reserve Bank to introduce the Com bined Seniority Scheme for the purpose of integrating the clerical staff in all the departments and the Reserve Bank was not bound to wait until all the transferee Grade II Clerks under the Optee Scheme of 1965 were promoted as Grade I Clerks in their respective Specialised Departments.
There was not such assurance given by the Reserve Bank when it introduced the Optee Scheme of 1965.
What it did was merely to equalise the opportunities Grade II Clerks in the General Departments with those of Grade II Clerks in the Specialised Departments.
The Reserve Bank did not undertake that it will not take any steps for bringing about total integration of the clerical services until all the transferee Grade II Clerks were promoted.
The Reserve Bank was entitled to introduce the Combined Seniority Scheme at any time it though fit and the validity of the Combined Seniority Scheme cannot be assailed on the ground that it was intro duced at a time when some of the transferee Grade II Clerks still remained to be promoted and was discriminatory against them.
It may be that some transferee Grade I1 Clerks had already obtained promotion as Grade I Clerks by the time the Combined Seniority Scheme was introduced, while others like the petitioners had not.
But that cannot be helped.
It is all part of the incidence of service and in law, no griev ance can be made against it.
That takes us to the last ground of challenge which relates to integration of non clerical with clerical serv ices.
This ground of challenge was advanced under three heads: first, non clerical services and clerical services were wholly different from each other and by integrating them into one cadre, the Reserve Bank failed to recognise their differences and treated unequals as equals, thereby offending the equality clause of the Constitution secondly, by permitting, in case of non clerical staff, one third of the total non clerical service until 7th May, 1972 and in case of those who become graduates or pass both parts of institute of Bankers Examination subsequent to 7th May, 1972 until the date of acquiring such qualification to be taken into account for the purpose of seniority, the Reserve Bank laid down a wholly irrational and unjust principle of sen iority in the integrated service and thereby violated the equal opportunity clause and lastly, the seniority of the petitioners was adversely affected by the integration with out giving any opportunity to them to represent against it and the Combined Seniority Scheme was, therefore, in viola tion of the principles of natural justice.
We have careful ly examined these three heads of challenge, but we do not find any substance in them.
They are based on a misconcep tion of the true nature of the process involved in integra tion of non clerical with clerical services.
There was, as already 393 pointed out above, a non clerical cadre in each Department of the Reserve Bank and it was decided by the Reserve Bank that the nonclerical cadres in all the Departments should be integrated with the clerical cadre.
With that end in view, the Combined Seniority Scheme gave an option to all employ ees in non clerical cadres to be transferred to posts in the clerical cadre, but in the interest of efficiency, pre scribed a qualification that only those employees in non clerical cadres would be entitled to be transferred who are either graduates or have passed both parts of Institute of Bankers Examination.
Now, when the employees from non clerical cadres are admitted in the clerical cadre, some rule would have to be made for determining their seniori ty vis a vis those in the clerical cadre.
They would have to be fitted into the clerical cadre and for that purpose, some rule would have to be devised for determining how they shall rank in seniority.
The Combined Seniority Scheme adopted the rule that for determining the seniority of non clerical staff who exercised the option and were admit ted in the clerical cadre, one third of their total non clerical service "until 7th May, 1972 or the date of acquir ing qualification" should be taken into account.
This was the manner in which the Combined Seniority Scheme sought to bring about integration of non clerical with.
clerical serv ices in the several departments of the Bank.
Now, the first question which arises for consideration is whether the Reserve Bank violated the constitutional princi ple of equality in bringing about integration of non cleri cal with clerical services.
We fail to see how integration of different cadres into one cadre can be said to involve any violation of the equality clause.
It is now well set tled, as a result of the decision of this Court in Kishori Mohanlal Bakshi vs Union of India(1) that Article 16 a fortiori also Article 14 do not forbid the creation of different cadres for government service.
And if that be so, equally these two Articles cannot stand in the way of the State integrating different cadres into one cadre.
It is entirely a matter for the State to decide whether to have several different cadres or one integrated cadre in its services.
That is a matter of policy which does not attract the applicability of the equality clause.
The integration of non clerical with clerical services sought to be effectuated by the Combined Seniority Scheme cannot in the circumstances be assailed as violative of the constitutional principle of equality.
Then we come to the question of the rule of seniority adopted by the Combined Seniority Scheme.
Now there can be no doubt that it is open to the State to lay down any rule which it thinks appropriate for determining seniority in service and it is not competent to the Court to strike down such rule on the ground that in its opinion another rule would have been better or more appropriate.
The only en quiry which the Court can make is whether the rule laid down by the State is arbitrary and irrational so that it results in inequality of opportunity amongst employees belonging to the same class.
Now, here, employees from non clerical cadres were being absorbed in the clerical cadre and, there fore, a rule for determining their seniority vis a vis (1) A.I.R. 1962 S.C. 1139.
394 those already in the clerical cadre had to be devised.
Obviously, if the non clerical service rendered by the ' employees from non clerical cadres were wholly ignored, it would have been most unjust to them.
Equally, it would have been unjust to employees in the clerical cadre, if the entire non clerical service of those coming from non cleri cal cadres were taken into account, for non clerical service cannot be equated with clerical service and the two cannot be treated on the same footing.
Reserve Bank, therefore, decided that one third of the non clerical service ren dered by employees coming from non clerical cadres should be taken into account for the purpose of determining seniority.
This rule attempted to strike a just balance between the conflicting claims of non clerical and clerical staff and it cannot be condemned as arbitrary or discriminatory.
Vide: Anand Parkash Saksena vs Union of India.(1) The last contention of the petitioners was that seniori ty is a civil right and the State cannot interfere with it to the prejudice of an employee without giving an opportuni ty to him to be heard and since the Combined Seniority Scheme adversely affected the seniority of the petitioners in the clerical cadre without giving them an opportunity to represent against it, it was void and inoperative.
There are two answers to this contention and each is, in our opinion, fatal.
In the first place, we do not find from the judgment of the High Court that this contention was at any time advanced before the High Court and, in the circum stance.s, we do not think it would be fight to permit it to be raised for the first time before this Court.
Secondly, even if this contention were allowed to be raised, we do not think it can be sustained.
Here, there was no question of any existing seniority being disturbed by change in the rule of seniority.
The problem was of fitting into the clerical cadre employees coming from non clerical cadres and for that purpose, a new rule was required to be made which would determine the seniority of these new entrants vis a vis those already in the clerical cadre.
Such rule did not affect seniority and hence there could be no question of giving the petitioners an opportunity to make representation against it.
These were the only contentions urged before us against the constitutional validity of the Combined Seniority Scheme and since there is no substance in them, we think that the High Court was in error in striking down the Combined Sen iority Scheme.
We accordingly allow the appeals, set aside the judgment and order of the High Court and uphold the validity of the Combined Seniority Scheme.
There will be no order as to costs.
V,P.S. Appeals allowed.
(1) [1968] 2 S.C.R. 611, 622.
| IN-Abs | At every centre of the Reserve Bank of India there were five departments, the General Department and four Specialised Departments.
There was a separate seniority list for the employees in each Department at each centre and confirmation and promotion of employees was only in the vacancies arising within their Department at each centre.
There were two grades of clerks in each Department, namely, Grade I and Grade 11.
The pay scales of Grade I and Grade II clerks in all the departments were the same and their conditions of service were also identical.
There was automatic promotion from Grade II to Grade I and when a clerk from Grade H was promoted to officiate in Grade I, he got an additional officiating allowance of Rs. 25/ per month.
There were also several categories of non,clerical posts in the General as well as Specialised Departments, and their pay scale was the same as that of Grade II clerks.
In view of expanding activities in the Specialised Departments, there were great er opportunities for confirmation and promotion for employ ees in the Specialised Departments than in the General Department.
This gave rise to dissatisfaction amongst employees in the General Department and they claimed equal opportunities by having a combined seniority list for all the clerks for confirmation and promotion.
The Reserve Bank, sought to justify the separate seniority lists on the ground that the work in each department was of a special nature and inter transferability was undesirable and hard to achieve.
As a result of the recommendation Of the National Tribunal, however, the Reserve Bank introduced the Optee Scheme of 1965 as h first step towards equalization of opportunities.
Under the Scheme, the option to go over to the Specialised Departments was confined to confirmed Grade 11 clerks and officiating Grade I clerks in the General Department.
If he exercised the option, he was eligible to be selected.
If he was selected, he would be entitled to be absorbed only as Grade II clerk in one of the Specialised Departments with the result that if he was an officiating Grade I clerk in the General Department at the time of the exercise of the option, he would lose the benefit of officiation in Grade I in the General Department as also the monetary benefit of Rs. 25/ .
His seniority in the cadre of Grade II clerks in the Specialised Department in Which he was absorbed would be determined on the basis of his length of service calculated from the date of his recruitment if he was a graduate when he joined service, or from the date of his graduation if he became a graduate whilst in service.
The petitioners in the present case and some others were, at the time of introduction of the Optee Scheme, confirmed Grade II clerks in the General Department and some of them were officiating in the General Department as Grade I clerks.
They exercised the option under the Optee Scheme land were absorbed substantively as confirmed Grade II clerks in one or the other of the Specialised Departments.
The clerks, other than the petitioners were in due course, in order of seniority, promoted as officiating Grade I clerks in their respective Specialised Departments.
But before the turn of the petitioners for promotion came, a new ' Scheme was introduced on May 13, 1972 as a result of continuous agitation by the employees for full equalisation of opportunities between the General Department and the Specialised Departments.
This Scheme was known as the Combined Seniority Scheme, and it superseded the Optee Scheme.
It consisted of two parts.
One part provided for the integration of the clerical staff of the General Depart ment with the clerical staff of the Specialised Departments, and the other, 378 for the integration of the non clerical staff with the clerical staff in all the Departments.
The Combined Seniori ty Scheme gave an option to the non clerical employees to be transferred to posts in the clerical cadre, but in the interest of efficiency, prescribed a qualification that only those employees in non clerical cadres would be transferred who arc either graduates or have passed both parts of Insti tute of Bankers Examination.
For determining their seniori ty vis a vis those in the clerical cadre, the Combined Seniority Scheme adopted the rule that one third of their total non clerical service until 7th May, 1972 (the date on which agreement was reached between the Bank and its employ ees in the terms of the Combined Seniority Scheme) or the date of acquiring the qualification should be taken into account.
The petitioners successfully challenged the Combined Seniority Scheme in the High Court.
The High Court held that the Scheme was violative of articles 14 and 16 of the Constitution, because: (1) The position which obtained when the Combined Seniority Scheme was brought into force was that the petitioners were still confirmed Grade 11 clerks in the Specialised Departments, while some of the Grade II clerks in the General Departments, who were junior to them and who had either not exercised the option, or having exercised the option, were not selected, were promoted as Grade 1 Clerks in the General Departments.
The result was that these Grade 11 clerks who had been promoted as Grade I Clerks in the General Department were equated to Grade I Clerks in the Specialised Departments.
Therefore, according to the petitioners, the Combined Seniority Scheme had the effect of prejudicing the promotional opportunities assured to the petitioners under the Optee Scheme and hence the Combined Seniority Scheme discriminated against the petitioners in relation to the clerical staff in the General Department who either did not exercise the option under the Optee Scheme or having exercised the option, were not selected; (2) it discriminated against the petitioners vis a vis others who had opted under the Optee Scheme of 1965 and who had obtained promotion as Grade I clerks in their respective Specialised Departments before the intro duction of the Combined Seniority Scheme; and (3) (a) the Scheme treated alike the non clerical staff as well as the clerical staff by integrating them together in one cadre with a combined seniority list though they formed two dis tinct and separate classes, and thus violated the equali ty clause; (b) by permitting, in the case of non clerical staff, one third of the total non clerical service until 7th May, 1972 or the date of acquiring the qualification, to be taken into account for the purpose of seniority, the Bank laid down a wholly irrational and unjust principle of sen iority in the integrated service and violated the equal opportunity clause and; (c) the seniority of the petitioners was adversely affected by the integration without giving any opportunity to them and thus the introduction of the Com bined Seniority Scheme violated the principles of natural justice.
Allowing the appeal to this Court and upholding the validity of the Combined Seniority Scheme.
HELD: (1) Assuming that the Reserve Bank is State under article 12, and therefore subject to articles 14 and 16, by the mere introduction of the Optee Scheme no promise or assur ance could be spelt out on the part of the Bank not to take any steps towards integration of other employees not covered by the Optee Scheme.
The Reserve Bank could not, on any principle of law or by any process of implication, be held bound to hold its hands in the matter of further inte gration, until the petitioners were promoted in the Specia lised Departments.
The only object of the Optee Scheme was to equalise the promotional opportunities of Grade II clerks in the General Departments with those of Grade II clerks in the Specialised Departments by giving an option to the former to be absorbed in the latter.
This object was carried out as soon as the petitioners and other Grade II clerks in the General Departments opted to be transferred to the Specialised Departments.
Then they became Grade I1 clerks in the Specialised Departments having the same promo tional opportunities as the original Grade 1I clerks in the Specialised Departments.
There was no assurance given by the Bank that the promotional opportunities available to Grade II clerks in the Specialised Departments will not be dimin ished.
The Combined Seniority Scheme affected the promo tional opportunities of all Grade II clerks in the Specia lised Departments, irrespective of whether they were origi nal or transferee Grade II clerks.
It did not discriminate between transferee Grade II clerks and original 379 Grade II clerks.
There was no breach of the principle that the promotional opportunities of transferee Grade 11 clerks should be equal to those of original Grade II clerks.
The fact that some of the Grade II clerks, junior to the peti tioners, had become Grade I clerks in the General Depart ments, and so could be equated only with Grade I clerks in the Specialised Departments is a wholly fortuitous result.
It might cause heart burning amongst the petitioners that they still continue to be Grade II clerks but whenever services are integrated, some hardship is bound to result as a necessary consequence of integration.
B G] (2) The Reserve Bank did not undertake that it will not take any steps for bringing about total integration of the clerical services until all the transferee Grade II clerks were promoted.
The Reserve Bank was entitled to introduce the Combined Seniority Scheme at any time it thought fit and its validity cannot be assailed on the ground that it was introduced at a time when some of the transferee Grade II clerks still remained to be promoted and so was discrimina tory against them.
The fact that some transferee Grade II clerks had already obtained promotion as Grade I clerks in the Specialised Departments by the time the Combined Senior ity Scheme was introduced, is all part of the exigencies of service and in law no grievance can be made against it.
[392 D E] (3) (a) The integration of different cadres into one cadre cannot be said to involve any violation of the equali ty clause.
It is entirely a matter for the State to decide whether to have several different cadres or one integrated cadre in its services.
That is a matter of policy which does not attract the applicability of the equality clause.
The integration of non clerical with clerical service sought to be effectuated by the Combined Seniority Scheme cannot, in the circumstances, be assailed as violative of the prin ciple of quality.
[393 F] Kishori Mohanlal Bakshi vs Union of India AIR 1962 S.C. 1139 referred to (b) It is open to the State to lay down any rule which it thinks appropriate for determining seniority in service and it is not competent to the Court to strike down such a rule on the ground that in its opinion another rule would have been better or more appropriate.
The only enquiry which the Court can make is whether the rule laid down by the State is arbitrary and irrational so that it results in inequality of opportunity amongst employees belonging to the same class.
[393 G H] In the present case the employees from non clerical cadres were being absorbed in the clerical cadre, and, therefore, a rule for determining their seniority vis a vis those already in the clerical cadre had to be devised.
To ignore their .entire non clerical service would have been unjust to them, and to take into account their entire non clerical services would be unjust to those in the clerical service.
The Bank therefore, decided that one third of the non clerical service rendered by the employees coming from non clerical cadres should be taken into account for the purpose of determining seniority.
It strikes a just balance between the conflicting claims of non clerical and clerical staff and cannot be condemned as arbitrary or discriminato ry.
[394 A B] Anand Parkash Saksena vs Union of India [1968] 2 S.C.R. 611, referred to.
(c) (i) The contention that there was violation of princi ples of natural justice was not raised before the High Court; (ii) Even if the contention is allowed be raised in this Court, there was no question of any existing seniority of the petitioners being disturbed by changing the rule of seniority.
The problem was fitting into the clerical cadre employees coming from non clerical cadres.
For that purpose, a new rule was required to be made.
The rule did not affect the petitioners ' seniority, and hence, there was no question of giving the petitioners an opportunity to make representa tion against it.
[394 E]
|
Appeals Nos. 1554 64/72.
(From the Judgment and Order dated 4 5 1972 of the Gujarat High Court in Special Civil Appln.
1018 and 1045 1054/68 respectively).
A.K. Sen, Bishamber Lal Khanna and E.C. Aggrawala for the Appellants.
L.N. Sinha, Sol.
of India and Mr. Girish Chandra, for ' the Respondents.
The Judgment of the Court was delivered by SHINGHAL J.
, These appeals by certificate are directed against a common judgment of the High Court of Gujarat dated May 4, 1972.
We have heard them together and will dispose them of by a common judgment.
The facts giving rise to the appeals are similar in essential respects and may be shortly stated.
There are large deposits of bauxite in Gujarat State.
The State Government issued a notification on December 31,1963, intimating that the lands in all the talukas of Kutch district and in Kalyanpur taIuka of Jamnagar district had been reserved for exploitation of bauxite in the public sector.
A similar notification was issued on February 26, 1964, in respect of all areas of Jamnagar and Junagarh districts.
Even so, the appellants made applications to.
the State Government for grant of mining leases for bauxite in the 'reserved areas.
There were no other applications to that effect, but the State Government rejected the applica tions of the appellants on the ground that, as had been notified, it had reserved the areas for the public sector.
The appellants felt aggrieved and applied to the Central Government flor revision of the State Government 's orders.
The revision appli cations were dismissed after obtaining the comments of the State Government and the orders of rejection were upheld.
In doing so, the Central Government referred to the fact that the minerals "vested" in the State Government which was "owner of minerals" and that the State Government had the "inherent right" to reserve any particular area for exploi tation in the public sector.
It also pointed out that once a notification had been issued by the State Government for the reservation of any partic ular area, no party could, as of right, claim any mineral concession in the reserved area.
While making its orders of rejection, the Central Govern ment explained the circumstances in which mineral leases were granted to Carborundum Universal Limited and the Gujarat Mineral Development Corpo ration.
The appellants felt aggrieved, and chal lenged the orders of the State Government and the Central Government by writ petitions to the Gujarat High Court.
It was urged that the State Govern ment had no authority to reserve any area of land for exploitation of bauxite in the public sector, and that the refusal to grant mining leases to the appellants was based on a ground which was alto gether extraneous and irrelevant and could not be supported with reference to the .
hereinafter referred to as the Act, and the rules made thereun der.
It appears that although the writ petitions 374 were based on that short ground, the Controversy in the High Court ranged over a wider field including that relating to the scope of the executive power of the State Government in respect of the impugned reservations.
The High Court there fore examined the controversy with reference to articles 162 and 298 of the Constitution, and the relevant entries in the Lists in the Seventh Schedule, but we are not concerned with that aspect of the matter as the arguments before us have been confined to the provisions of the Act and to the Mineral Concession Rules, 1960, hereinafter referred to as the Rules, made thereunder.
It may be mentioned that in pursuance of its exclusive power to make laws with respect to the matters enumerated in entry 54 of List I in the Seventh Schedule, Parliament specifically declared in section 2 of the Act that it was expedient in the public interest that the Union should take under its control the regulation of mines and the develop ment of minerals to the extent provided in the Act.
The State Legislature 's power under entry 23 of List II was thus taken away, and it is not disputed before us that regulation of mines and mineral development had therefore to be in accordance with the Act and the Rules.
The mines and the minerals in question (bauxite) were however in the territo ry of the State of Gujarat and, as was stated in the orders which were passed by the Central Government on the revision applications of the appellants, the State Government is the "owner of minerals" within its territory, and the minerals "vest" in it.
There is nothing in the Act or the Rules to detract from this basic fact.
That was why the Central Government stated further in its revisional orders that the State Government had the "inherent right to reserve any particular area for exploitation in the public sector".
It is therefore quite clear that, in the absence of any law or contract etc.
to the contrary, bauxite, as a mineral, and the mines thereof, vest in the State of Gujarat and no person has any right to exploit it otherwise than in accord ance with the provisions of the Act and the Rules.
Section 10 of the Act and Chapters II, III and IV of the Rules, deal with the grant of prospecting licences and mining leases in the land in which the minerals vest in the Government of a State.
That was why the appellants made their applications to the State Government.
Section 4 of the Act provides that no person shall undertake any prospecting or mining operations in any area, except under and in accordance with the terms and condi tions of a prospecting licence or, as the case may be, a mining lease, granted under the Act and the rules made thereunder, and that no such licence or lease shall be granted "otherwise than in accordance with the provisions of the Act and the rules.
" But there is nothing in the Act or the Rules to require that the restrictions imposed by Chap ters II, III or IV of the Rules would be applicable even if the State Government itself wanted to exploit a mineral for, as has been stated, it was its own property.
There is there fore no reason why the State Government could not, if it so desired, "reserve" any land for itself, for any purpose, and such reserved land would then not be available for the grant of a prospecting licence or a mining lease to any person.
375 Section 10 of the Act in fact provides that in respect of minerals which vest in the State, it is exclusively for the State Government to entertain applications for the grant of prospecting licences or mining leases and to grant or refuse the same.
The section is therefore indicative of the power of the State Government to take a decision, one way or the other, in such matters, and it does not require much argument to hold that power included the power to refuse the grant of a licence or a lease on the ground that the land .in question was not available for such grant by reason of its having been reserved by the State Government for any purpose.
We have gone through sub sections (2) and (4) of section 17 of the Act to which our attention has been invited by Mr. Sen on behalf of the appellants for the argument that they are the only provisions for specifying the boundaries of the reserved areas, and as they relate to prospecting or mining operations to be undertaken by the Central Government, they are enough to show that the Act does not contemplate or provide for reservation by any other authority or for any other purpose.
The argument is however untenable because the aforesaid sub sections of section 17 do not cover the entire field of the authority of refusing to grant a pros pecting licence or a mining lease to any one else, and do not deal with the State Government 's authority to reserve any area for itself.
As has been stated, the authority to order reservation .
flows from the fact that the State is the owner of the mines and the minerals within its territo ry, which vest in it.
But quite apart from that, we find that rule 59 of the Rules, which have been made under sec tions 13 of the Act, clearly contemplates such reservation by an order of the State Government.
That rule deals with the availability of areas for the grant of a prospecting licence or a mining lease in such cases, and provides as follows: "59.
Availability of certain areas for grant to be notified In the case of any land which is otherwise available for the grant of a prospecting licence or a mining lease but in respect of which the State Government has refused to grant a pros pecting licence or a mining lease on the ground that the land should be reserved for any purpose, the State Government shall, as soon as such land becomes again available for the grant of a pros pecting or mining lease, grant the licence or lease after following the procedure laid down in rule 58." Mr. Sen has conceded that it is a valid rule.
It clear ly contemplates reservation of land for any purpose, by the State Government, and its consequent non availability for the grant of a prospecting licence or mining lease during the period it remains under reservation by an order of the State Government.
A reading of rules 58, 59 and 60 makes it quite clear that it is not permissible for any person to apply for a licence or lease in respect of a reserved area until after it becomes available for such grant, and the availability is notified by the State Government in the Official Gazette.
Rule 60 provides that an application for the grant of a prospecting, licence or a mining lease in respect of an area for which no such notification has been issued, inter alia, 8 1104SCI/76 376 under rule 59, for making the area available for grant of a licence or a lease, would be premature, and "shall not be entertained and the fee.
if any, paid in respect of any such application shah be refunded.
" It would therefore follow that as the areas which are the subject matter of the present appeals had been reserved by the State Government for the purpose stated in its notifications, and as those lands did not become available again for the grant of a prospecting licence or a mining lease, the State Government was well within its rights in rejecting the applications of the appellants under rule 60 as premature.
The Central Government was thus justified in rejecting the revision applications which were filed against the orders of rejec tion passed by the State Government.
We have gone through the decisions in State of Orissa V. Union ' of India(1) and M/s section Lal and Co. Ltd. vs The Union of India and others(2), on which reliance has been placed by Mr. Sen.
In the former case the High Court of Orissa took the view that reservation of a particular area for being exploited in the public sector by the State could not be said to be a purpose for which it could be reserved under rule 59.
In taking that view the High Court went by the consideration that the subject of the legislation in the Act became an "exclusive subject for legislation by Parliament" and there was no residuary power of working out mines and minerals without observing the conditions prescribed by the Act and the Rules.
The High Court therefore went wrong in not appreciating that even ,though 'the field of legislation had been covered by the declaration of the Parliament in section 2 of the Act, that could not justify the inference that the State_ Government thereby lost its right to the minerals which vested in it as a property within its terri tory.
The High Court has also erred in taking the view that the State was required to obtain a licence or a lease even though it was itself the owner of the land and there was nothing in the Act or the Rules to show that the provisions for the obtaining of a licence or lease would still be applicable to it.
In section Lai and Co. Ltd. vs Union of India and others (supra) the High Court noticed the decision in State of Orissa vs Union of India (supra) but it cannot be urged with any justification that the view expressed in it was followed by the Patna High Court.
On the other hand the Patna High Court followed the view which was taken by the Gujarat High Court in the judgment which is the subject matter of the present appeals and held that the State Government has the,, power "to reserve certain areas.
for exploitation by itself.
or by a statutory corporation or for a company in a public sector.
" The controversy in that case was.
however, examined with reference to the provisions of article 298 of the Constitution.
The two cases cited by Mr. Sen cannot thus be of any avail to the appellants.
For the, foregoing reasons there is no merit in these appeals and they are dismissed with costs.
P.B.R. Appeals dismissed (1) A.I.R 1972 Orissa 68.
(2) A.I R. 1975 Patna 44.
| IN-Abs | The appellants ' applications for grant of mining leases were rejected by the State Government on the ground that the areas for exploitation of which they had .
applied, had been reserved for exploitation in the public sector.
The Central Government dismissed the revision applications pointing out that since the minerals vested in the State Government it had inherent right to reserve any particular area for exploitation in the public sector.
In writ petitions challenging the orders of the State Government the appellants contended before the High Court that the State Government had no authority to reserve any area for exploitation of minerals in the public sector and its action had no support under the .
The High Court dismissed the petitions.
Dismissing the appeals, HELD: The State Government was well within its rights in rejecting the applications of the appellants under r.60 as premature and the Central Government was justified in rejecting the revision applications.
[376 B] (i) ,The 1957 Act declared that it.
was expedient in the public interest that the Union should take under its control the regulation of mines and the development of minerals.
The State Legislature 's power under Entry 23 of List II was thus taken away .so that regulation of mines and mineral development had to be in accordance with the Act and the Rules.
[374 C] (ii) The State Government is the owner of the minerals within its territory, and the minerals vest in it, and no person has any right to exploit them otherwise than in accordance with the provisions of the Act and the Rules.
[374 D] (iii) There is nothing in the Act or the Rules to re quire that the restrictions imposed by the Rules would be applicable even if the State Government itself wanted to exploit the minerals.
There is no reason why the State Government could not reserve any land for itself for any purpose and such reserved land would then not be available for the grant of prospecting licence or a mining lease.
[374 H] (iv) The State Government 's power under section 10 of the Act to entertain applications includes the power to refuse to grant a licence or a lease on the ground that land was not available for such grant by reason of its having been re served by the State Government for any purposes.
[375 B] (v) The authority to order reservation flows from the fact that the State is the owner of the mines and the miner als within its territory.
Rule 59 clearly contemplates reservation by an order of the State Government.
[375 E] (vi) Under rr.
58, 59 and 60 it is not permissible for any person to apply for a licence or lease in respect of a reserved area until after it becomes available for such grant and the availability is notified by the State Govern ment.
The State Government in the present case reserved the areas for the purpose stated in the notifications and as these lands did not become available again for grant of a prospecting licence or a mining lease, it was well within its rights in rejecting the applications of the appellants under r. 60 as premature.
[375 H; 376 A] State of Orissa (1) vs Union of India, A.I.R. 1972 Orissa 68 and M/s. section Lal and Co. Ltd. vs TIre Union of India and others held inapplicable.
|
ivil Appeals Nos.
1261 1264 of 1975.
(From the Judgment and Order dated 1/2.7.1975 of the Karnataka High Court in Writ Petition Nos.
1607, 1608 and 2739/74 respectively).
V.P. Raman, Addl.
(in CA.
1261/75) and B.R.G.K. Achar (In CAs.
1261 1264/75) for the Appellants.
D.V. Patel (In CA.
1261/75), S.S. Khanduja & S.K. Jain for Respondents 1 2 in CA.
1261/75 and Respondent No. 1 in CAs.
2263 1264/75.
V.P. Raman, Addl.
General and Girish Chandra for Intervener in CA 1261/75.
The Judgment of the Court was delivered by GUPTA, J.
These are four appeals brought on certifi cates of fitness granted by the High Court of Karnataka.
The question which according to the High Court needs to be decided by this Court was framed as follows: "whether in the personality test of candi dates for selection to public appointments, the selecting authority should allot separate marks for each of the seven qualities required to be judged in a candidate or whether it is permissible for the selecting authority to allot marks in a lump in each personality test.
" Considering the facts of these cases which we will presently state, the question seems to have been framed a little too broadly.
The Karnataka Public Service Commission (called the Commission hereinafter) by its notification dated Sep tember 7, 1972 called for applications for the combined competitive examinations under the Karnataka Recruitment of Gazetted Probationers (Class I and II Post appointment by Competitive Examinations) Rules, 1966.
In response to this notification, the respondents in these appeals along with others applied for selection.
The Commission held a written examination followed by a personality test as pro vided by rule 9 of the rules and sent a list of 30 candi dates whom they selected for appointment as class I gazetted probationers, and another list of 88 candidates for appoint ment as class II gazetted probationers.
The manner in which the personality test is to be held is laid down in Part IV of Schedule 11 to Rules, the relevant portion of which is as follows: "Personality test carrying a maximum marks of 200 for all Services.
The candidates will be interviewed by the Commission who will have before them their particulars such as qualification, experience, age etc.
They will be asked questions of general interest, the object of the viva voce is to assess the personal suitability of the candi dates for.
the service or services for which they have applied.
The 325 qualities to be judged at the time of viva voca are the mental alertness, critical powers of assimila tion, clear and logical exposition, balance of judgment, variety and depth of interest, ability for social cohesion and leadership and intellectual depth of the candidates.
" Five of the respondents in the four different appeals who were not selected, M. Farida, P.V. Mohan, B.R. Kulkarni, L.V. Dharmayat and M.R. Devappa had applied for the posts of gazetted probationers, class II, two of them, Farida and Mobart, were also applicants for the class I post.
They filed writ petitions in the Karnataka High Court, Farida and Mohan jointly, and each of the three others separately, challenging the selec tions made.
Their common grievance was that the personality test held by the Commission was invalid as the selection committee did not award separate marks for each of the seven qualities which were required to be judged in the candidates at the test.
Admittedly, the selection committee did not allot separate marks for each of the specified qualities, but awarded a block mark to each candi date in assessing his personality with reference to those qualities.
The argument for the writ peti tioners in the High Court was that the personality test as required under the Rules was an objective test based upon seven factors or criteria, and, therefore, it was essential that separate marks were allotted in respect of each such factor or criterion.
In support of this contention reliance was placed on a decision of the Mysore High Court, D.G. Viswanath vs Chief Secretary, Government of Mysore, (1) and the decision of this Court in ,A. Periakaruppan & ,Anr.
vs State of Tamil Nadu & Ors.
(2) which appears to affirm the view expressed in Viswanath 's case.
On behalf of the State of Karna taka it was contended that the seven qualities referred to in Part IV of schedule II were merely different facets of the integrated personality of a candidate which could not easily be demarcated from one another, and, therefore, awarding a block mark on an appraisal of the personality of the candidate as a whole was the correct method.
The High Court found that there was "considerable force in the contention of the learned Government advocate", but felt that in view of the decision in Periakatup pan 's case the writ petitions must succeed, and by a common judgment allowed the. petitions directing the State of Karnataka and the commission to hold a fresh personality test.
These appeals arise out of these four writ petitions.
In Periakaruppan 's case this Court was consid ering a case of admission to certain medical col leges in the State of Tamil Nadu.
In that case the selection committees were authorised to give a maximum of 75 marks at the interview on the basis of the following tests: 1.
Sports or National Cadet Corps activities; 2.
Extra curricular special services; 3.
General physical condition and endurance; 4.
General ability; and 5.
Aptitude.
(1) [19631 2 Mysore L.J. 302.
(2) [19711 2 S.C.R. 430.
326 periakaruppan 's case came up on a writ petition before this Court.
The petitioners in that case challenged the selections, inter alia, on the ground that the selections were manipulated by the Government.
This Court came to the conclusion that the allegations of malafide had not been estab lished, but by its judgment and order dated Septem ber 23, 1970 directed the State of Thamil Nadu to constitute a separate committee for selection on the view that as the previous selection committee had not divided the "interview" marks under the aforesaid five different heads but awarded marks in a lump, the interview was vitiated.
This Court accordingly ordered that the Committee should allot separate marks under the five heads mentioned in the rule.
periakaruppa 's case approved the decision of the Mysore High Court in Viswanath 's case.
The Mysore High Court had held that it could not be said that the Government had conferred an unguided power on the selection committees and, therefore, "in the absence of specific allocation of marks for each head, it must be presumed that the Government considered that each of the heads should carryas being equal in importance to any other," and that it must be inferred that the intention of the Government was that each one of those heads should carry equal marks.
It appears that periakaruppan came to this Court a second time challenging the selection made by the new selection Committee constituted pursuant to the order of this Court dated September 23, 1970; one of the grounds of challenge was that despite the direction in the earlier judgment, the selection committee did not distribute the "interview" marks equally among the five heads.
The second writ petition made by periakaruppan also succeeded and this Court again quashed the impugned selection.
(1) Mr. Raman, Additional Solicitor General of India, appearing for the appellants and the inter vener, Union Public Service Commission, sought to distinguish parliakaruppan 's case from the cases before us on the same ground on which the Government Advocate made a similar attempt in the High Court.
Mr. Raman submitted that admission to technical or professional courses with which peria karuppan 's case was concerned stood on a different footing from selection of candidates for adminis trative services as in these cases.
It was argued that the test in the former case may be regarded as an objective test but in the latter it has to be subjective because the qualities specified here are intangible qualities.
We do not think it is possible to distinguish periakaruppan 's case on this ground.
For, as pointed out in the judgment under appeal, some of the qualities for test in Viswanath 's case which periakaruppan approved, were also intangible, like aptitude and personali ty.
Further, even where the qualities to be tested are intangible qualities, if the relevant rule required that separate marks should be allotted for each, the interviewers have to follow the rule and do the best under the circumstances.
Whether a block mark should be given after the interview on a consideration of the qualities evinced by a candidate, or marks are to be allotted separately under each head depends, in our opinion, upon the rule regulating the examination.
In periakaruppan 's case it was held that the inten tion of the Government was that each of the 327 specified qualities should carry equal marks.
In these appeals we have not been called upon to decide whether the rule concerned in Periakarup pan 's case was correctly interpreted.
We do not however think that it would be correct to assume as a general proposition that in every case where the interviewing body is asked to take into considera tion several specified qualities, they must be of equal value and separate marks should be allotted under each head; on the contrary, in our opinion, where the rules do not contain a clear direction, it would be reasonable in such cases to suppose that the intention is that there should be a block assessment on an integrated test.
It was observed in Periakaruppan 's case that conceding to the selection committee the right to award block marks would enable the selection committee to act arbi trarily and allot marks "as it pleased".
It is not clear how the position is altered if the committee has to allot marks separately under each head if it wished to proceed "as it pleased".
On this point it may be relevant to refer t.? what this Court said in R. Chitralekha and Anr.
vs State of Mysore & Ors.
(1) "In the field of education there are diver gent views as regard the mode of testing the capacity and calibre of students in the matter of admissions to colleges.
Orthodox educationists stand by the marks obtained by a student in the annual examination, The modern trend of opinion insists upon other additional tests, such as inter view, performance in extra curricular activities, personality test, psychiatric tests etc.
Obviously we are not in a position to judge which method is preferable or which test is the correct one.
If there can be manipulation or dishonesty in allot ting marks at interviews, there can equally be manipulation in the matter of ' awarding marks in the written examinations.
In the ultimate analy sis, whatever method is adopted its success depends on the moral standards of the members constituting the selection committee and their sense of objec tivity and devotion to duty.
This criticism is more a reflection on the examiners than on the system itself.
The scheme of selection, however perfect it may be on paper, may be abused in practice.
That it is capable of abuse is not a ground for quashing it.
" We do not think that the total arrived at by adding up the separate marks awarded for the different qualities is always a true measure of a candidate 's suitability.
An illustra tion from Periakaruppan 's case would serve to clarify the point.
Of the five qualities mentioned there, suppose a candidate secures full 15 marks for extra curricular activi ties but fails to get any credit under any of the other four heads, and another candidate gets a few marks under each head aggregating, say, 14 marks, one mark less than the total marks secured by the first candidate.
Which of the two should be considered more qualified for admission to medical profession ? It would take great courage, we think, to hold that the candidate who secured 15 marks was more suitable.
(1) ; (p. 382).
5 104SCI/76 328 The question therefore is whether rule 9 read with Part IV of Schedule 11 of the Mysore Recruitment of Gazetted Probationers (Class I and II Posts Appointment by Competi tive Examinations) Rules, 1966 required the selection committee to award separate marks for the seven qualities mentioned in Part IV.
Rule 9, so far as it is relevant for the present purpose, says that the Commission shall call for a personality test five times the number of candidates as there are vacancies in the services in the order of merit on the basis of the results of written papers.
Personality is commonly understood as an aggregate of traits that identifies a person and distinguishes him from others.
Quite often with some practical aim, like selecting the most promising students for admission to particular courses or picking out the suitable ones from a group of job applicants, emphasis is laid some of the attributes.
The end result may not be an assessment of the whole per sonality, but attributes are abstracted for study in an attempt to evaluate the man for the purpose in view.
Part IV of Schedule 11 which provides the details of the test calls it a personality test, the object of which is to assess the personal suitability of the candidates for the service or services for .which they have applied.
The candidates will be asked questions of general interest, on the answers to which, it appears, the assessment would depend.
It is further provided that the qualities to be Judged are: mental alertness, critical powers of assimila tion, clear and logical exposition, balance of judgment, variety and depth of interest, ability for social cohesion and leadership and intellectual depth.
It seems to us in the context that the qualities are mentioned only as guide, as indicating the attributes to be kept in view, in assess ing the personality of the candidates.
It seems hardly possible in the test contemplated to allocate separate marks for each of the various qualities specified, because most of them overlap one another and are so intermixed that they cannot be separated, Also, the test carries a maximum mark of 200; it seems a little absurd to suppose that the seven qualities to be judged at the interview are of equal value, each carrying 28 4/7 marks.
This further confirms the view that Part IV of Schedule 11 never intended that separate marks should be allotted for the several qualities stated therein.
Reading Rule 9 with Part IV of Schedule 11, we are of opinion that the interviewing body was required to award a block mark on a total impression of the personality of each candidate after giving due consideration to the seven qualities specified in Part IV.
For these reasons we think that the appeals should succeed.
We therefore allow the appeals and dismiss the writ petitions.
There will be no order as to costs P.B.R. Appeals allowed.
| IN-Abs | Rule 9 of the Karnataka Recruitment of Gazetted Proba tioners (Class I and II Posts appointment by Competitive Examinations) Rules, 1966, Prescribes a written examination for selection of candidates for the service followed by a personality test.
The qualities to be judged at the time of viva voce, stipulated in Part IV of Schedule II to the rules are mental alertness, critical powers of assimilation, clear and logical exposition etc.
In their writ petitions before the High Court the re spondents, who were the unsuccessful candidates in the selections, impugned the personality test on the ground that the Selection Committee did not award separate marks for each of the _seven qualities required to be judged in the candidates at the test.
Following the decision of this Court in A. Periakaruppan & Anr.
vs State of Tamil Nadu & Ors.
the High Court allowed the petitions and directed the Service Commission to hold a fresh personality test.
On the question whether r. 9 read with Part IV of Sched ule 1I required the Selection Committee to award separate marks for the seven qualities: Allowing the States appeal, HELD: (1) It would not be correct to assume as a general proposition that in every case where the interviewing body is asked to take into consideration several specified quali ties.
they must be of equal value and separate marks should be allotted under each head.
Where the rules do not contain a clear direction, it would be reasonable to suppose that the intention is that there should be a block assessment on an integrated test.
[327 B] In the instant case the interviewing body was required to award a block mark on a total impression of the personal ity of each candidate giving due consideration t0 the seven qualities specified in Part IV.
Part IV of the Schedule never intended that separate marks should be allotted for the seven qualities stated therein.
[328 F] (2) Personality is commonly understood as an aggregate of traits that identifies a person and distinguishes him from others.
Quite often with some practical aim.
emphasis is laid on some of the attributes.
The end result may no be an assessment of the whole personality, but attributes are abstracted for study in an attempt to evaluate the man for the purpose in view.
[328 C] In the instant case the qualities are mentioned only as guide, as indicating the attributes to be kept in view in assessing the personality of the candidates.
It is hardly possible in the test contemplated to allocate separate marks for each of the various qualities specified because most of them overlap and are so intermixed that they cannot be separated.
The test carries a maximum mark of 200; it is a little absurd to suppose that the seven qualities to be judged at the interview are of equal value each carrying 28 4/7 marks.
[328 E] A. Periakaruppan & Am '.
vs State of Tamil Nadu & Ors.
[19711 2 SCR 430 distinguished and held inapplicable.
324 R. Chitralekha and Anr.
vs State of Mysore & Ors.
; , 382 referred to.
|
n No. 74 of 1975.
L.N. Sinha, Sol.
General of India and B. Datta, for the Petitioner.
A. K. Sen, B. P. Singh, Shambhu Nath Jha and U.P. Singh for the Respondents (For State of Bihar) R 1 and R 2. D. Mookherjee, and S.K. Nandy, for the Respondent (State of Assam) R 3 and R 4.
The Judgment of the Court was delivered by RAY, C.J.
The Petitioner in this Writ Petition raises the question that the supplies of crude oil made by the Petitioner Oil and Natural Gas Commission, referred to as the Commission to Indian Oil Corporation Limited, referred to as the Corporation are not exigible to Salestax either by the State of Assam or the State of Bihar under the or the Bihar Sales Tax Act respectively.
The petitioner contends that the supplies by the Commission to the Corporation are pursuant to directions/orders of the Central Government, and, therefore, there is no Contract of sale.
The petitioner in particular contends that the Com mission is obliged to supply to the Corporation and the petitioner has no volition or freedom in the matter.
The petitioner, therefore, contends that there is no contract of sale between the Commission and the Corporation.
The second contention of the petitioner is that if it be held to be sales these are inter state sales under section 3(a) of the and the State of Bihar is not competent to levy Sales tax under section 16(5) of the Bihar Sales Tax Act.
In order to find out as to whether the transactions between the Commission and the Corporation amounted to a Sale, it is necessary to ascertain the correct facts.
The letter dated 15 June 1968 is important.
It is written by the Corporation to the Commission.
The Corpora tion States as follows "I am writing to confirm that Indian Oil Corporation would be in a position to receive 300 tonnes a day of Lakwa crude via the Oil Pipeline any time from today.
We would also wish you to augment the supplies so as to reach about a 356 million tonnes per annum as soon as possible.
The above 300 tomes 'will be in addition to the ' supplies that we are receiving currently from OIL (Oil India Ltd.) and by rail from Rudrasagar.
Kindly arrange to supply full analytical data regarding the crude that you would be sending from Lakwa.
I would also suggest that the pricing arrangement may also be worked out regarding the supply and intimated to us, if necessary, after consulting OIL.
" The next important document relates to the Minutes of the meeting held at the Office of the Chairman of the Corpo ration at New Delhi on 8 August, 1968.
The representatives of the Corporation, the Commission and Oil India Limited were present.
Crude oil supplied both by the Commission and Oil India Limited come through the pipeline belonging to Oil India Limited to refineries at Gauhati and Barauni belonging to the Corporation.
The manner of measurement and of payment for crude is ascertained by the Corporation from the Commis sion and Oil India Limited.
At the meeting held on 18 October 1968, the Central Government representatives and representatives of the peti tioner, Oil India Limited and the Corporation were present.
It was decided that crude oil which was being delivered to the refineries of the Corporation at Gauhati and Barauni is a mixture of Oil India Limited crude and the Commission crude.
Oil India Limited would send the bills for the entire quantities of crude, so delivered, giving the bifur cation of crude belonging to Oil India Limited and the Commission with API gravity of each.
The document dated 23 February, 1968 records the price of crude oil purchased by the Corporation from the Commis sion and the basis on which payment should be made.
Another document dated 17 February, 1969 written by the Central Government to Oil India Ltd., shows that crude oil would be supplied to the Barauni, Gauhati and Digboi refin eries as mentioned therein.
For the Barauni Refinery, Oil ' India would supply a certain quantity and the Commission the balance.
In case the Commission 's supply fell short, it would be made good by Oil India Limited.
For the Gauhati Refinery, certain quantity would be supplied by Oil India Limited and the remainder would be deemed to have been supplied by the Commission.
The requirements of Digboi refinery would be met by Oil India Limited.
The next document is dated 7 August 1973 incorpo rating the Minutes of the meeting held on that day at the Ministry of Petroleum & Chemicals to discuss the Sales Tax liability of the Commission crude Sold to the Corporation.
The representatives of the Ministries of Petroleum & Chemi cals and of Finance, the Commission and Oil India Limited were present.
After discussion, it unanimously decided that whatever principle had been adopted in the past for computation of pipeline tariff payable by the Commission should also be adopted 357 for payment of Sales tax by the Commission.
Since for tariff computation all of Commission 's crude is deemed notionally to be delivered to Barauni Refinery and none to Gauhati Refinery, the Sales tax liability of the Commission would also accrue on the principle that all of its crude was being sold to Barauni Refinery.
The Commission is described by the Solicitor General to be a statutory body which has no option either with regard to the production or supply and the directions and decisions of the Government leave no choice with the Commission in regard to supplies.
This Court in Salar Jung Sugar Mills Ltd. Etc.
vs State of MysOre & Ors.
C) laid down the following proposi tions: First, statutory orders regulating the supply and distribution of goods by and between the parties under Control Orders in a State do not absolutely impinge on the freedom to enter into contract.
Second, directions, deci sions and orders of agencies of the Government to control production and supply of commodities, may fix the parties to whom the goods are to be supplied, the price at which these are to be supplied, the time during which these are to be supplied and the persons who has to carry out these direc tions.
In such cases it cannot be said that compulsive directions rob the transactions of the character of agree ment.
The reason is that the transfer of property which constitutes the agreement in spite of the compulsion of law is neither void nor voidable.
It is not as result of coer cion.
The statute supplies the consensus and the modality of consensus is furnished by the statute.
There is privity of contract between the parties.
The other third, fourth, fifth and sixth propositions are these.
Third, such a transaction is neither a gift nor an exchange nor a hypothecation nor a loan.
It is a trans fer of property from one person to another.
There is con sideration for the transfer.
There is assent.
The law presumes the assent when there is transfer of goods from one to the other.
Fourth, a sale may not require the consensual element and that there may, in truth, be a compulsory sale of property with which the owner is compelled to part for a price against his will and the effect of the statute in such a case is to say that the absence of the transferor 's con sent does not matter and the sale is to proceed without it.
In truth, transfer, is brought into being which ex facie in all its essential characteristics is a transfer of sale.
Fifth, delimiting areas for transactions or denoting parties or denoting price for transactions are all within the area of individual freedom of contract with limited choice by reason of ensuring the greatest good for the greatest number of achieving proper supply at standard or fair price to eliminate the evils of hoarding and scarcity on the one hand and ensuring availability on the other.
Sixth, after all the transactions in substance represent the out going of the business and the price would come into computation of prof its.
Judged by the principles laid down by this Court in Salar Jung Sugar Mills ' case, which is a decision by a seven Judge Bench, there (1) [1972] 2 S.C.R. 228.
358 is no doubt that the transactions in the present case amounted to a sale of crude oil by the Commission to the Corporation.
It is true that the Government decided and directed the Commission to supply to the Indian Oil Corpora tion at a price to be fixed, but the transaction is in course of business conducted by the Commission.
It is the business of the petitioner under the statute to plan, promote, organise and implement programmes for the development of petroleum resources and the production and sale of petroleum products produced by it and to perform such functions as the Central Government may, from time to time, assign to the Commission.
These are the functions of the Commission under section 14 of the Oil & Natural Gas Commission Act, 1959.
Further, section 29 of the Act states that "the Commission shall be deemed to be a Company within the meaning of any enactment for the time being in force providing for the levy of any ' tax or fee by the Central Government or a State Government and shall be liable to pay such tax or fee accordingly".
Section 31 contemplates power of the Central Government to make rules inter alia prescrib ing the conditions subject to which, and the mode in which, contracts may be entered into by or on behalf of the Commis sion.
The provisions of the Oil & Natural Gas Commission Act show that the Commission is engaged in the business of producing crude oil in Assam and the supply of the crude oil.
The supply to the Corporation is a sale transaction fulfilling all the ingredients of a sale.
The supply of crude oil by the Commission to the Barauni Refinery of the Corporation is also a sale in the course of inter state trade.
The movement of crude oil from Assam to Barauni is pursuant to the Contract for sale of crude oil.
The directions given by the Government are because of the character and constitution of the Commission.
Direc tions and decisions do not detract from the sale of crude oil by the Commission to the Corporation.
These statutory Corporations work in collaboration with the Central Govern ment particularly the Ministries of Petroleum and Finance for policy and planning.
The State of Bihar raised a feeble contention that it was not an inter State sale.
The delivery may be in Assam or in Bihar at Barauni but the movement of goods is the result of contract and as an incident to the agreement between the Commission and the Corporation.
The State of Assam has lawfully levied the Central Sales Tax on the petitioner.
The State of Assam is entitled to levy Central Sales Tax on the petitioner.
The Commission has been paying Sales Tax since the commencement of sales.
It is made clear that it is open to the Commission to make applications for refund, if any, in accordance with the Sales Tax Law.
For the foregoing reasons the Writ Petition is dis missed.
Parties will pay and bear their own costs.
V.P.S. Petition dis missed.
| IN-Abs | Under the , it is the business of the Oil and Natural Gas Commission to plan, promote, organise and implement programmes for the development of petroleum resources and the production and sale of petroleum products produced by it and to perform such functions as the Central Government may, from time to time, assign to it.
Under section 29 of the Act, the Commission shall be deemed to be a Company, liable for any tax or fee levied by the Central or State Government.
Section 31 empowers the Central Government to make rules prescribing the conditions subject to which, and the mode in which, contracts may be entered into by or on behalf of the Commis sion.
The Commission is engaged in the business of produc ing crude oil in Assam and supplying it to the refineries of the Indian Oil Corporation at Gauhati in Assam and Barauni in Bihar.
It was decided by the Government of India and agreed to by the Commission; that the crude is deemed no tionally to be delivered only to Barauni Refinery and not to Gauhati Refinery, and that payment of Sales tax by the Commission is to be on the same principle.
The Commission however challenged, in a petition to this Court, its liability to pay any sates tax either under the Central Sales Tax Act to the State of Assam or the State Sales Tax to the .State of Bihar, on the ground, that, in supplying crude oil to the Corporation there was no contract of sale between the Commission and the Corporation, because, the supply was pursuant to.
directions and orders of the Central Government and the Commission had no volition or freedom in the matter.
The Commission also contended that assuming that they are sates they are inter state sales, under the , and the State of Bihar was not competent to levy any State sales tax.
HELD: (1) The supplies of crude oil by the Commission to the Brauni Refinery of the Corporation satisfy all the ingredients of a sale and amount to sales by the Commission to the Corporation.
[356 A] (a) Statutory orders regulating the supply and distribu tion of goods by and between the parties under Control Orders do not absolutely impinge on the freedom to enter into contract.
[357 C] (b) Directions, decisions and orders of agencies of the Government to control production and supply of commod ities, may fix the person who has to carry them out, the parties to whom the goods are to be supplied, and he price at which, and the time during which they are to be supplied.
In much cases it cannot be said that compulsive.
directions rob the transactions of the character of agreement.
There is privity of contract between the parties, he statute supplying the consensus and the modality of consensus.
[357 D E] (c) Such a transaction is a valid transfer of, property for consideration and he law presumes assent when there is transfer of goods from one to the other.
[357 F] (d) Also, a sale may not require the consensual element and there may compulsory sale of property under a statute for a price fixed against the owner 's will.
(e) Delimiting areas for transactions or denoting par ties or price for transactions are all within the area of individual freedom of contract with limited choice by reason of ensuring the greatest good for the greatest number by achieving proper supply as standard or fair price.
[357 G] .
(f) The transactions in substance represent the outgoing of the business and the price would come into computation of profits.
[357 G] Salar Jung Sugar Mills Ltd. Etc.
v, State of Mysore & Ors.
[1972] 2 S.C.R. 228 followed.
(2) The movement of crude oil from Assam to Barauni in Bihar is pursuant to and as an incident to the contract for, sale between the Commission and the Corporation.
The Sales are therefore inter state sales.
and under the Central Sales tax Act only the.
State of Assam is entitled to levy central sales tax on the Commission.
[358 G]
|
Subsets and Splits
No saved queries yet
Save your SQL queries to embed, download, and access them later. Queries will appear here once saved.