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286 of 1955.
Under Article 32 of the Constitution for the enforcement of Fundamental Rights.
H.Mahapatra and G. C. Mathur, for the petitioners.
C. K. Daphtary, Solicitor Generalfor India, (Porus A. Mehta and P. G. Gokhale, with him), for respondent No. 1. 921 1955.
October 27.
The Judgment of the Court was delivered by BOSE J.
This judgment will also govern Petitions Nos. 287, 288, 289 and 304 of 1955.
We will set out the facts in Petition No. 286 of 1955.
The others follow the same pattern.
The dispute is about fishery rights in the Chilka lake which is situate in what was once the estate of the Raja of Parikud.
This estate vested in the State of Orissa under the Orissa Estates Abolition Act, 1951 (Orissa Act I of 1952) on 24 9 1953 and has now ceased to exist in its original form.
The Act came into force on 9 2 1952.
The further facts are set out in paragraphs 2 and 3 of the petition in the following terms: "That the petitioners carry on the business of catching and selling fish particularly.
from fisheries within the said lake.
That long before the vesting of the estate the petitioners had entered into contracts with the exproprietor and had obtained from the latter, on payment of heavy sums, licences for catching and appropriating all the fish from the fisheries detailed in the schedule given in the accompanying affidavit and had ,obtained receipts on payment in accordance with the prevailing practice".
The lake is divided into sections and this petition is concerned with four of them.
The licenses relating to them were purchased as follows: I On 30 7 50 for rights in Gerasar Prawn for 1955 56 2.
On 2 8 50 for rights in Jayamal Prawn for 1955 56 3.
On 18 9 51 for rights in Solakudi Prawn for 1955 56 4.
On 6 5 52 for rights in Jayamal Chungudi for (1956 57 (1957 58 (1958 59 It will be seen that though the licenses were acquired before the estate vested in the State of Orissa they 922 were for future years, all after the date of vesting.
The State of Orissa refused to recognise these licenses and were about to re auction the rights when the petitioners filed the present petition seeking writs under article 32 on the ground that their fundamental rights under articles 19(1)(f) and 31 (I) were, or were about to be, infringed.
The first question that we have to determine is whether the petitioners acquired any rights or interests in "property" by their several "purchases", as articles 19(1)(f) and 31(1) are dependent on that.
In their petition the petitioners claim that the transactions were sales of future goods, namely of the ,fish in these sections of the lake, and that as fish is moveable property Orissa Act I of 1952 is not attracted as that, Act is confined to immoveable I property.
,We agree with the learned Solicitor General that if this is the basis of their right, then their petition under article 32 is misconceived because until any fish is actually caught the petitioners would not acquire any property in it.
There can be no doubt that the lake is immoveable property and that it formed part of the Raja 's estate.
As such it vested in the State of Orissa when the notification was issued under the Act and with it vested the right that all owners of land have, to bar access to their land and the right to regulate, control and sell the fisheries on it.
If the petitioners ' rights are no more than the right to obtain future goods under the Sale of Goods Act, then that is a purely personal right arising out of a contract to which the State of Orissa is not a party and in, any event a refusal to perform the contract that gives rise to that right may amount to a breach of contract but cannot be regarded as a breach of any fundamental right.
But though that is how the matter is put in the petition we do not think that is a proper approach to this case.
The facts disclosed in paragraph 3 of the petition make it clear that what was sold was the right to catch and carry away fish in specific sections of the lake over a specified future period.
That amounts to 923 a license to enter on the land coupled with a grant to catch and carry away the fish, that is to say, it is a profit a prendre: see 11 Halsbury 's Laws of England, (Hailsham Edition), pages 382 and 383.
In England this is regarded as an interest in land (11 Halsbury 's Laws of England, page 387) because it is a right to take some profit of the soil for the use of the owner of the right (page 382).
In India it is regarded as a benefit that arises out of the land and as such is immoveable property.
Section 3 (26) of the General Clauses Act defines "immoveable property" as including benefits that arise out of the land.
The Transfer of Property Act does not define the term except to say that immoveable property does not include standing timber, growing crops or grass.
As fish do not come under that category the definition in the General Clauses Act applies and as a profit a prendre is regarded as a benefit arising out of land it follows that it is immoveable property within the meaning of the Transfer of Property Act.
Now a "sale" is defined as a transfer of ownership in exchange for a price paid or promised.
As a profit a prendre is immoveable property and as in this case it was purchased for a price that was paid it requires writing and registration because of section 54 of the Transfer of Property Act.
If a profit a prendre is regarded as tangible immoveable property, then the "property" in this case was over Rs. 100 in value.
If it is intangible, then a registered instrument would be necessary whatever the value.
The "sales" in this case were oral: there was neither writing nor registration.
That being the case, the transactions passed no title or interest and accordingly the petitioners have no fundamental right that they can enforce.
It is necessary to advert to Firm Chhotabhai Jethabai Patel & Co. vs The State of Madhya Pradesh(1) and explain it because it was held there that a right to "pluck, collect and carry away" tendu leaves does not give the owner of the right any proprietary interest in the land and so that sort of right was not an "en (1) 117 924 cumbrance" within the meaning of the Madhya Pradesh Abolition of Proprietary Rights Act.
But the contract there was to "pluck, collect and carry away" the leaves.
The only kind of leaves that can be "plucked" are those that are growing on trees and it is evident that there must be a fresh crop of leaves at periodic intervals.
That would make it a growing crop and a growing crop is expressly exempted from the definition of "immoveable property" in the Transfer of Property Act.
That case is distinguishable and does not apply here.
It was then argued that a contract is "property ' within the meaning of articles 19(1)(f) and 31(1).
Again, we need not decide this because even if it be assumed that it is that kind of property the State of Orissa has not taken the petitioners ' contract away I from them or prevented them from "acquiring, holding or disposing" of it.
They are free to sue on it or to assign it if they want.
The State merely says, as any other person might say: "I was not a party to that contract.
Neither its rights nor its liabilities have devolved on me and I refuse to recognise it or to assume the obligations of either contracting party".
If the State is wrong in its attitude that may give rise to a suit against it for damages for breach of contract or possibly, (though we do not say it would), to a right to sue for specific performance; but no question under articles 19(1)(f) and 31(1) can arise because the State has not confiscated or acquired or taken possession of the contract as such.
If it had it would have claimed the benefits under it.
It would have taken the money that the petitioners paid to the Raja from the Raja or demanded it over again from the petitioners.
But it is not doing that.
It simply refuses to recognise the existence of the contract.
The petition fails and is dismissed with costs.
| IN-Abs | The petitioners obtained oral licenses for catching and appropriating fish from specified sections of the Chilka Lake from its proprietor, the Raja of Parikud, on payment of heavy sums and obtained receipts in accordance with the prevailing practice.
This was before the passing of the Orissa Estates Abolition Act of 1951 by which ownership of the estate vested in the State of Orissa.
The licenses, however, were in respect of years subsequent to such vesting.
The State of Orissa refused to recognise them and was seeking to reaction the rights of fishery.
The petitioners contended that it had thereby infringed or was about to infringe their fundamental rights under articles 19(1)(f) and 31(1) of the Constitution and claimed that the transactions being sales of future goods, namely, the fish, the Act which was confined to immovable property had no application.
Held, that the right sought to be acquired by the petitioners by their several purchases was not in respect of any future goods as claimed by them but was a license to enter on the land coupled with a grant to catch and carry away the fish, in other words, a profit a prendre which is immovable property within the meaning of the Transfer of Property Act read with section 3(25) of the General Clauses Act.
Accordingly section 54 of the former Act applies.
That as the sale of the profit a prendre in the present cage was valued at more than one hundred rupees and was effected without writing and registration it contravened section 54 of the Transfer of Property Act, and so no title or interest therein passed to the petitioners and consequently, they bad no fundamental rights to enforce.
Firm Chhotabhai Jethabai Patel & Co. vs The State of Madhya Pradesh, ([1953] S.C.R. 476), distinguished and held inapplicable.
That it was not necessary in the present case to decide whether the contract was property within the meaning of articles 19(1)(f) and 31(1), but assuming it to be so, the State has not taken such property away from the petitioners or prevented them from acquiring, holding or disposing of it.
The State merely refuses to recognise the contract and refuses to consider itself bound by it.
That may give a cause of action for a suit on the contract but no fundamental right arises as the State has not confiscated or acquired or taken possession of the contract as such by claiming any benefits under it.
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Appeal No. 212 of 1976.
(From the Judgment and Order dated 18 2 1975 of the Bombay High Court in Civil Revision Appln.
No. 741/74).
Soli J. Sorabji, P.H. Parekh, Miss Manju letly and M/s Dharia & D.D. Kapadia ' for the appellant.
B.K. Desai, S.S. Khanduja and Vijay Gandotra for the respondent.
P.H. Parekh for the Intervener.
The Judgment of the Court was delivered by UNTWALIA, J.
The appellants in this appeal by special leave had filed an application under section 41 of The Presidency Small Cause Courts Act, 1882 hereinafter re ferred to as the S.C.C. Act, against the respondent to compel him to quit and deliver up the possession of the premises in question.
The Small Cause Court made an order in favour ' of the appellants under section 43 of the S.C.C. Act.
On the filing of an application in revision by the respondent in the Bombay High Court, a learned single Judge of that Court has set aside the order of the Small Cause Court and dismissed the appellants ' application for eviction of the respondent.
Hence this appeal.
This Court does, as it ought to, act with restraint and is loathe to pass any harsh or unpalatable remark concerning the judgment of a High Court.
But sometimes constraint outweighs restraint and compels this Court in discharge of its duty to make some strong observations when it finds the judgment of the High Court running galore with gross and palpable mistakes of law almost amounting to judicial imbalance in the approach to the case.
We regret to say that this is one such case.
The appellants had allowed the respondents to occupy the shop premises in question which are situated outside Swa deshi Market, 405 Kalbadevi Road in Bombay under certain agreements of leave and licence which were renewed from time to time.
The last agreement was dated April 30, 1965.
Duration of the period of licence mentioned in this agreement was in the following terms: "(1) This agreement shall be deemed to have commenced from 1st May 1965 and shall remain in force for 11 months and will automatically come to an end on 31st March, 1966 on which day the Party of the Second Part shall remove himself from the premises of his own accord with all his arti cles and belongings and in event of the Party of the Second Part not clearing out of the premises on the said day viz., 31st March, 1966 the parties of the First Part shall be at liberty to remove the goods and articles of the party of the Second Part by themselves, by employment of labour at the cost and on account of the party of the Second Part and shall be entitled to stop and prevent the, Party of the Second Part from entering the premises and making use of the same by himself or his agent.
" The respondent did not vacate and remove himself from the premises as per the aforesaid term of the agreement.
He purported to claim to be a tenant of the premises and with that end in view his Advocate wrote a letter to appellant No. 1 on May 23, 1966 stating therein that the respondent was a tenant of the shop premises and had remitted the rent for the months of March and April, 1976.
A reply to the letter aforesaid of the respondent 's advocate was given on behalf of the appellants on June 14, 1966 refuting there in the respondent 's claim of being a tenant of the shop premises and asserting that he was a mere licensee.
It was also said that the said licence had automatically come to an end on March 31, 1966 and thereafter he was "no better than a trespasser".
Subsequent correspondence followed between the parties in which the appellants showed their readiness and willingness to accept money from the respondent by way of compensation for the use and occupation of the shop premises without prejudice to their rights and threatening to take legal action for getting the possession of the prem ises.
On the 10th July, 1967 the appellants filed an applica tion under section 41 of the S.C.C. Act.
The respondent contested that application, inter alia, on the ground that he was a tenant of the shop premises and was, therefore, protected against the eviction under The Bombay Rents, Hotel .and
Lodging House Rates Control Act, 1947 (for brevity, the Bombay Rent Act).
As per the requirement of section 42A of the S.C.C. Act, the question whether the respondent was a tenant of the appellants was tried as a preliminary issue by the Small Cause Court, Bombay.
A single Judge of that Court by his Judgment and order dated June 30, 1972 held against the respondent and found that he was not a tenant of the appellants in respect of the shop premises.
An appeal was taken by the respondent to a Bench of two judges of the Small Cause Court under section 406 42A(2) of the S.C.C. Act.
By a reasoned order dated Decem ber 11, 1972 the appellate Bench upheld the finding of the single Judge and summarily dismissed the appeal.
The re spondent filed a writ application in the High Court which after hearing the appellants was dismissed on July 3, 1973.
The Bombay Rent Act was amended by Maharashtra Act 17 of 1973.
By the amending Act, section 5(4A) and Section 15A were introduced in the parent Act to confer on the licensee, who had a subsisting agreement on February 1, 1973 the status and protection of a tenant under the Bombay Rent Act.
The respondent, thereafter, by an amendment of his written defence filed in the Small Cause Court proceeded to take the additional plea of protection under Maharashtra Act 17 of 1973.
Although the amendment was not fully and effec tively allowed by the Small Cause Court Judge, the parties had proceeded on the footing that such a plea became avail able to the respondent.
A learned single Judge of the Small Cause Court held that there was no subsisting agreement for licence on the 1st of February, 1973 as there was nothing on record to show that after 31st March, 1966 the leave and licence agreement between the parties was renewed or any fresh agreement was entered into.
In that view of the matter the Trial Court held that the respondent was not entitled to the protec tion of the Bombay Rent Act conferred on a licensee by Maharashtra Act 17 of 1973.
The Court allowed the appel lants ' application and made an order under section 43 of the S.C.C. Act directing the respondent to vacate and hand over peaceful possession of the premises to the appellants within one month from the date of the order i.e. the 11th Octo ber, 1974.
This order was not appealable.
Hence respondent filed a revision before the High Court.
A learned single Judge of the High Court by his judgment and order dated February 18, 1975 allowed the revision and, as stated above, set aside the order of the Small Cause Court and dismissed the appellants ' application for eviction of the respondent.
Mr. Sorabji, learned counsel for the appellants after drawing our attention to the relevant facts and the law involved in the case placed the judgment of the High Court to point out the glaring errors committed by it which were writ large on its face.
Mr. Desai appearing for the re spondent made a strenuous effect to persuade us to uphold the judgment of the High Court.
But in the circumstances of the case he could do no better than what has been said in the judgment.
Section 52 of The defines "licence" thus: "Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence.
" 407 It was no longer open to debate that the respondent was a mere licensee of the shop premises of which the appellants were the licensors.
Section 62(c) of the Easements Act says: "A license is deemed to be revoked (c) where it has been granted for a limited period, or acquired on condition that it shall become void on the performance or non perform ance of a specified act, and the period expires, or the condition is fulfilled;" By efflux of time, therefore, the licence stood revoked on the 1st of April, 1966.
Yet the licen see under section 63 of the Easements Act was entitled to a reasonable time to leave the property and to remove his goods which he had been allowed to place on such property.
In spite of being asked by the appellants to do so the respondent did not pay any heed.
Hence the appellants took recourse to section 41 of the S.C.C. Act.
The remedy of section 41 is available only after the permission or the licence granted to the licensee to go on the property has been withdrawn or revoked.
If the occupant of the property is not able to show any sufficient cause then order for possession follows under section 43.
We now proceed to quote the relevant words of section 5(4A) of the Bombay Rent Act: ""Licensee", in respect of any premises or any part thereof, means the person who is in occupation of the premises or such part, as the case may be, under a subsisting agreement for licence given for a licence fee or charge . . " The inclusive clauses thereafter in the definition of the 'licensee ' do not include a licensee in occupation of the premises whose licence already come to an end and in such a case the occupant would not be a licensee under a subsisting agree ment.
We now proceed to read section 15A: "( 1 ) Notwithstanding anything contained elsewhere in this Act or anything contrary in any other law for the time being in force, or in any contract, where any person is on the 1st day of February 1973 in occupation of any premises, or any part thereof which is not less than a room, as a licensee, he shall on that date be deemed to have become, for the purposes of this Act, the tenant of the landlord, in respect of the premises or part thereof, in his occupation.
(2) . . . . . . . " It is thus clear beyond doubt that in order to get the advantage of section 15A of the Bombay Rent Act, the occu pant must be in occupation of the premises as a licensee as defined in section 5(4A) on the 1st of February, 1973.
If he be such a licensee, the non obstante clause 10 1104SCI/76 408 of section 15A(1) gives him the status and protection of a tenant in spite ' of there being anything to the contrary in any other law or in any contract.
In other words, even as against the express terms of the subsisting contract of licence the licensee would enjoy the benefits of section 15A.
But if he is not a licensee under a subsisting agree ment on the 1st of February, 1973, then he does not get the advantage of the amended provision of the Bombay Rent Act.
A person continuing in possession of the premises after termination, withdrawal or revocation of the licence contin ues to occupy it as a trespasser or as a person who has no semblance of any right to continue in occupation of the premises.
Such a person by no stretch of imagination can be called a licensee.
If therefore, the respondent was not a licensee under a subsisting agreement in occupation of the premises on the 1st of February, 1973 he could not take shelter under section 15A of, the Bombay Rent Act.
The Trial Judge found against him.
Apart from the position that this was essentially a question of fact and a finding on which could not be interfered with by the High Court in exercise of its revisional power under section 115 of the Code of Civil Procedure, the High Court has done so, as we shall point out, by committing such gross errors of law and fact that we were constrained in the beginning of our judgment, though very reluctantly, to make some strong observations against the judgment of the High Court.
While reciting the facts of the case the learned Judge of the High Court states a fact in paragraph three of the judgment that the respondent was ordered to deposit in Court Rs. 29/ per month which he did.
We are happy to note that the learned Judge has rightly not rested his judgment on this ground of deposit of rent by the respondent.
There was nothing to show in the records of this case that the appel lants had ever accepted any money either in or outside court from the respondent after 31st of March, 1966 by way of any rent of the licenced premises.
A person continuing in occu pation of such premises after revocation of the licence is still liable to pay compensation or damages for their use and occupation.
If at any time such compensation had been paid or accepted it could not undo the effect of the revoca tion of the licence.
In the seventh paragraph of the judgment the learned Judge says: "In my judgment the filing of the proceeding under section 41 without terminating the licence and/or the permission granted to the petitioner does not automatically put an end to the licence which the petitioner had to occupy the premises.
" There are two infirmities in the said observation.
Firstly, according to the appellants ' case the licence stood revoked and withdrawn and then they filed the application under section 41 of the S.C.C. Act.
Secondly, the filing of the application itself may in certain circumstances have the effect of putting an end to the licence if it was subsist ing on the date of its filing.
But in any event, one thing is certain, that cannot have ' the effect of reviving the licence as opined by the learned Judge in the subsequent part of his judgment.
409 In the tenth paragraph of his judgment the learned Judge says: "The respondents have not relied on any notice served on the petitioner to show that they would treat the petitioner as a trespasser from March 31, 1966.
The respondents did not even describe the petitioner as a trespasser in proceed ings.
It must be therefore presumed that the re spondents voluntarily or involuntarily permitted the petitioner to occupy the premises till they filed their application under section 41 of the Presidency Small Cause Courts Act.
" In the next paragraph the learned Judge quotes the words: "position not better than that of a trespasser" from the appellants ' letter written so the respondent.
The contradiction in the judgment is apparent.
It is difficult to understand the significance of the observation "that the respondents voluntarily or involuntarily permitted the petitioner to occupy the premises".
Voluntary permission may amount to a fresh licence.
The use of the expression involuntarily permitted ' is a contradiction in terms.
We are distressed to find the learned Judge repeatedly expressing a view in his judgment that the conduct on the part of the appellants in allow ing the respondent to continue in the occupation of the premises until the filing of the application under section 41 of the S.C.C. Act on July 10, 1967 amounted to a grant of fresh licence.
It is not necessary to extract all the strange passages from the judgment of the High Court.
But we shah do a few more.
In the fifteenth paragraph while refer ring to the expression "deemed to be revoked" occurring in section 62(c) of the Easements Act it is said that "it does not necessarily mean that it is in fact revoked.
" The mistake is so obvious in this observation that it does not require any elaboration.
In the same fifteenth paragraph occurs a passage which we exercised in vain to understand.
It runs thus: "The fact that the respondents did not take any steps till they filed the application under section 41 which also would not automatically make the petitioner 's occupation unlawful means that the respondents impliedly granted a licence to the petitioner to continue to occupy the premises.
" Later on the learned Judge has said in his judgment that by adopting the procedure of filing the application under section 41 of the S.C.C. Act, the appellants impliedly granted to the respondent "a right to continue to occupy the premises till he was evicted by an order under section 43.
" Such a novel proposition of law is beyond our comprehension.
If the filing of the application under section 41 gives a fight to the occupant of the premises to continue to occupy it, then how can the Court pass an order of eviction under Section 43 in derogation or destruction of such a right ? The resulting position is too anomalous and illogical to merit any detailed discussion.
In the eighteenth paragraph of the judgment the learned Judge persuaded himself to say: 410 "The fact that the earlier agreement of licence ex pired on March 31, 1966, does not necessarily mean that there was no subsisting agreement on the date on which the application under section 41 was made or on February 1, 1973.
" It is difficult to understand what further act, conduct or writing of the appellants led to the undoing of the effect of the expiration of the earlier agreement of licence and bring about any subsisting agreement either on the date of the application under section 41 or on February 1, 1973.
We admit that if any such agreement could be culled out, in writing or oral, expressly or impliedly, by the action or the conduct of the appellants the Court would have been happy to cull out such agreement and give protection to the licensee in consonance with the spirit of the Amending Act viz.
Maharashtra Act 17 of 1973.
But the Court cannot and should not cast the law to the winds or twist or stretch it to a breaking point amounting to almost an absurdity.
Our observation is amply demonstrated by the following passage in the judgment of the High Court.
"Relying on the amendment of the Bombay Rent Act the respondents no doubt had withdrawn their permission under the agreements but by filing the proceedings under section 41 they permitted the petitioner to continue as the licensee as stated above; and this itself is a different kind of agreement of licence as defined under section 52 of the Easement Act.
" The learned Judge also seems to be making a difference between the filing of a suit against a licensee whose li cence has been terminated treating him as a trespasser and an application under section 41 of the S.C.C. Act.
For the purpose of the point at issue the distinction is more illu sory than real.
Two remedies, previously, were available to the licensor.
He could avail the one or the other.
The scope of the trial, disposal and further remedies in the two proceedings were different.
But it is wholly wrong to say that if a licensor filed an application under section 41 of the S.C.C. Act instead of filing a regular civil suit by implication treated the occupant of the premises against whom the S.C.C. application was filed as a subsisting.licen see.
In our opinion the judgment of the High Court is wholly wrong and suffers from serious infirmities of law and facts.
We accordingly allow this appeal, set aside the judgment and order of the High Court and restore that of the Small Cause Court.
The respondent must pay the costs to the appellants in this Court as also in the High Court.
P.H.P. Appeal allowed.
| IN-Abs | The appellants granted a licence in respect of certain shop premises in Bombay to the respondent under a Leave and Licence Agreement which expired on 31st March 1966.
There after the appellants served a notice upon the respondent calling upon him to remove himself from the premises.
The respondent refused to do so.
In July 1967 the appellants filed on application for eviction under Section 41 of the Presidency Small Causes Court Act.
The contention of the respondent that he was a tenant was negatived by the Small Causes Court, Bombay.
The respondent approached the High Court under Article 227 of the Constitution.
The High Court refused to interfere with the finding of the Small Causes Court that the respondent was a licensee and not a tenant.
The Bombay Rent Act was amended by Maharashtra Act 17 of 1973.
By the amending Act, section 5(4A) and Section 15A were introduced in the parent Act to confer on the licensee, who had a subsisting agreement on February 1, 1973, the status and protection of a tenant under the Bombay Rent Act.
The respondent by an amendment took the plea of protec tion under the Maharashtra Amendment Act 17 of 1973 on the ground that he was in occupation of the premises on 1st February 1973 under a subsisting agreement for licence.
The Small Causes Court, Bombay, negatived the plea on the ground that there was no subsisting agreement for licence on the 1st of February, 1973 as there was nothing on record to show that after 31st March 1966 the leave and licence agreement between the parties was renewed or any fresh agreement was entered into.
The respondent filed a revision petition under section 115 of C.P.C. in the High Court.
The High Court allowed the revision on the ground that the licence was not put an end to by the appellants and that in any event by filing the application for eviction the appellant licensor had granted an implied licence to the respondent licensee to continue in possession till a decree of eviction was passed in his favour.
Allowing the appeal, HELD: (a) In order to get the advantage of section 15A of the Bombay Rent Act, the occupant must be in occupation of the premises as a licensee as defined in section 5(4A) on the 1st of February 1973.
If he be such a licensee, the non obstante clause of section 15A(1) gives him the status and protection of a tenant in spite of there being anything to the contrary in any other law or in any contract.
But if he is not a licensee under a subsisting agreement on the 1st of February 1973, then he does not get the advantange of the amended provision of the Bombay Rent Act.
[407 H, 408 A] (b) A person continuing in possession of the premises after termination, withdrawal or revocation of the licence continues to occupy it is a trespasser or as a person who has no semblance of any right to continue in occupation of the premises.
Such a person cannot be called a licensee at all.
[408 B] (c) A person continuing in occupation of such premises after revocation of the licence is still liable to pay compensation, or damages for their use and occupation.
[408 E] 404 (d) Filing an application under section 41 of the Presi dency Small Causes Court Act may in certain circumstances have the effect of putting an end to the licence if it was subsisting on the date of its filing.
But, that cannot possibly have the effect of reviving the licence as opined by the learned Judge.
Such a proposition of law is both novel and incomprehensible.
[408H, 409 G] (e) It is right that the Court should act in consonance with the spirit of the Maharashtra Amending Act 17 of 1973.
But the Court cannot and should not cast the law to the winds or twist or stretch it to a breaking point amounting to almost an absurdity.
[410 C] (f) The finding of the High Court that the respondent was in occupation of the premises under a subsisting licence was wholly wrong and suffered from serious infirmities of law and fact and deserved to be.set aside.
[410 G] [The Supreme Court is loathe to pass any harsh or unpal atable remarks concerning the judgment of the High Court and ought to act with restraint.
But sometimes constraint outweighs restraint and compels this Court in discharge of its duty to make strong observations when it finds the judgment of the High Court running galore with the gross and palpable mistakes of law almost amounting to judicial imbal ance in the approach to the case].
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Civil Appeal No. 1942 of 1974.
Appeal by Special Leave from the Judgment and Order dated the 20 5 1974 of the Punjab and Haryana High Court at Chandigarh in Civil Writ No. 2169 of 1972.
L. N. Sinha, Solicitor General and Naunit Lal for the Appellant.
Kapil Sibal and P. R. Ramesh for Respondent No. 1.
P. P. Rao for the Applicant Intervener.
The Judgment of the Court was delivered by KHANNA, J.
This appeal by special leave by the State of Haryana is directed against the judgment of Punjab and Haryana High Court whereby petition under articles 226 and 227 of the Constitution of India filed by Des Raj Sangar respondent was allowed and order dated July 13, 1972 of the Haryana Government abolishing the post of Panchayati Raj Election Officer and terminating the services of the said respondent was quashed.
Des Raj Sangar respondent (hereinafter referred to as the respondent) joined service as a clerk in the Panchayat Department of the then Punjab Government in 1942.
The respondent was in due course promoted and confirmed as Head Assistant.
In 1961 while the respondent was officiating as a Superintendent in the Panchayat Department, he was appointed Officer on Special Duty (Elections).
The post of Officer on Special Duty (Elections) was an ex cadre post, while that of Superintendent was included in the cadre.
With effect from November 1, 1961 the post of Officer on Special Duty was re designated as Panchayati Raj Election Officer.
The respondent held the post of Panchayati Raj Election Officer temporarily till 1964 when that post was made permanent.
The respondent was confirmed as Panchayati Raj Election Officer with effect from September 19, 1964.
The decision to confirm the respondent was taken with a view to ensure the lien of the respondent on that post as the respondent had been selected by the Government of India as Gram Panchayat Officer in the Indian Aid Mission, Nepal.
An undertaking was also obtained from the respondent at the time he was confirmed that this would not affect the seniority of B. N. Sharma, who was senior to the respondent and who was then holding the temporary post of Planning Officer.
On the reorganization of the erstwhile State of Punjab with effect from 1036 November 1, 1966 the post of Planning Officer held by B. N. Sharma was allocated to the State of Punjab, while that of Panchayati Raj Election Officer held by the respondent was allocated to the State of Haryana.
From November 1, 1966 till April 16, 1971 the respondent worked as Planning cum Panchayati Raj Election Officer in the Panchayat Department of Haryana Government.
On April 16, 1971 the Haryana Government created eight temporary posts of Deputy Directors in the Panchayat Department in the pay scale of Rs. 400 1100.
The post of the respondent was also re designated as Deputy Director Panchayat with effect from April 16, 1971.
A notification was subsequently issued on May 13, 1971 superseding the earlier notification and the respondent 's post was again designated as that of planning cum Panchayati Raj Election Officer.
On the same day instead of the eight temporary posts of Deputy Directors, nine posts of Deputy Directors were created.
Two of those Deputy Directors were to be posted at the headquarters, one to deal with land development work and the other to deal with legal work, while seven of the Deputy Directors were to work in the field.
These seven posts of Deputy Directors meant for the field work were subsequently abolished.
Another post of Officer on Special Duty (Planning) in the grade of Rs. 400 800 was created in October 1971.
A. N. Kapur, who was junior to the respondent but who had been confirmed as Superintendent, was appointed Officer on Special Duty (Planning).
On April 13, 1972 the impugned order was made and the same reads as under: ORDER The Governor of Haryana is pleased to order that in view of the extreme financial stringency the permanent post of the Panchayati Raj Election Officer in the Panchayat Department, Haryana, in the scale of Rs. 400 40 1000/50 1100 should be abolished with immediate effect.
Consequent upon the abolition of the post of the Panchayati Raj Election Officer the Governor of Haryana is further pleased to order that the services of Shri Des Raj Sangar who is holding the post of the Panchayati Raj Election Officer in a substantive permanent capacity should be dispensed with immediate effect.
He should relinquish the charge of his post immediately.
He is allowed three months ' emoluments i.e. pay and allowances as gratuity in lieu of three months notice in accordance with the provisions of rule 5.9 of the Civil Services Rules, Volume II.
He shall be entitled to pension/gratuity in accordance with the rules in Chapter VI of the Civil Service Rules, Volume II, as amended from time to time, but the pension shall not be payable for the period in respect of which he has been allowed gratuity in lieu of three months ' notice.
J. section Sarohia Secretary to Govt.
Haryana Chandigarh Development & Panchayat Department Dated: 13th July, 1972 1037 The respondent in his petition while assailing the impugned order levelled allegations of mala fide against Shri Shyam Chand, then Minister for Development and Panchayats, Haryana but the said allegations were not pressed at the time of arguments.
Following two contentions were advanced on behalf of the respondent: (1) The impugned order dated July 13, 1972 abolishing the post of Planning cum Panchayati Raj Election Officer held by the respondent and the consequent termination of his services was arbitrary and had no reasonable nexus with the object sought to be achieved, namely, meeting the financial stringency.
The impugned order was stated to be violative of articles 14 and 16 of the Constitution inasmuch as the respondent who was at all times selected for higher posts and got promotions from the lower posts in the cadre was being thrown out of the job on the pretext of the abolition of the post permanently held by him, whereas persons junior to him in rank and less meritorious were retained in service.
(2) In view of the provisions of rule 3.14 and other relevant rules of Punjab Civil Services Rules, the moment the post held by the respondent was abolished his lien got revived on the post of Head Assistant which he had held substantively before his promotion to the ex cadre post and therefore his services could not be terminated, and he was in any case entitled to the admittedly existing post of Head Assistant.
As against the above, it was urged on behalf of the State of Haryana that the Government was well within its rights to decide as to which posts should be abolished to effect economy to meet the financial stringency and that the court could not go into the matter and decide whether the abolition of the post was justified or not.
It was also stated that the respondent could not be reverted to the post of Head Assistant as his lien on the post had been terminated when he was confirmed against the permanent post of Planning cum Panchayati Raj Election Officer.
The learned Judges of the High Court held that the impugned order was arbitrary, unreasonable and violative of articles 14 and 16 of the Constitution.
The order as such was quashed.
In view of the above finding, the learned Judges did not go into the second contention advanced on behalf of the respondent on the basis of rule 3.14 of the Punjab Civil Services Rules.
In appeal before us learned Solicitor General on behalf of the appellant State has urged that it is for the State Government to decide as to which post should be abolished and in case the State Government so decides for administrative reasons, its order in this respect should not have been quashed by the High Court.
As against that, Mr. Sibal on behalf of the respondent has canvassed for the correctness of the view taken by the High Court.
There is, in our opinion, considerable force in the contention advanced on behalf of the appellant in this respect.
Whether a post should be retained or abolished is essentially a matter for the Government to decide.
As long as such decision of 1038 the Government is taken in good faith, the same cannot be set aside by the court.
It is not open to the court to go behind the wisdom of the decision and substitute its own opinion for that of the Government on the point as to whether a post should or should not be abolished.
The decision to abolish the post should, however, as already mentioned, be taken in good faith and be not used as a cloak or pretence to terminate the services of a person holding that post.
In case it is found on consideration of the facts of a case that the abolition of the post was only a device to terminate the services of an employee, the abolition of the post would suffer from a serious infirmity and would be liable to be set aside.
The termination of a post in good faith and the consequent termination of the services of the incumbent of that post would not attract article 311.
In M. Ramanatha Pillai vs The State of Kerala & Anr.(1) Ray C.J. speaking for the Constitution Bench of this Court observed: "A post may be abolished in good faith.
The order abolishing the post may lose its effective character if it is established to have been made arbitrarily, malafide or as a mask of some penal action within the meaning of article 311 (2).
" It was further observed: "The abolition of post may have the consequence of termination of service of a government servant.
Such termination is not dismissal or removal within the meaning of article 311 of the Constitution.
The opportunity of showing cause against the proposed penalty of dismissal or removal does not therefore arise in the case of abolition of post.
The abolition of post is not a personal penalty against the government servant.
The abolition of post is an executive policy decision.
Whether after abolition of the post, the Government servant who was holding the post would or could be offered any employment under the State would therefore be a matter of policy decision of the Government because the abolition of post does not confer on the person holding the abolished post any right to hold the post." According to the impugned order, the post of the Panchayati Raj Election Officer was abolished in view of the extreme financial stringency.
In support of the above order, Shri G. L. Bailpur, Secretary to the Government of Haryana, filed affidavit.
According to that affidavit, the post of Panchayati Raj Election Officer was created simply for the conduct of elections of the Panchayati Raj Bodies.
The other duties which were performed by the respondent were only as a measure of temporary arrangement.
In order to streamline the Department the Government felt that the Department should be reorganised and as a result of reorganisation those duties which had nothing to do with the job of the Panchayati Raj Election Officer were with drawn and given to separate Deputy Directors of Panchayats.
The 1039 duties pertaining to legal matters and complaints against Panchas, Sarpanches and the members of the Panchayat Samitis were of such nature that the same required a legal background and field experience by the officer handling the subject.
Those duties were, therefore, given to Deputy Director of Panchayat (Legal) who was a Law graduate and had a long field experience as Block Development and Panchayat Officer.
After the reorganisation of the Department, the only work left with the Panchayati Raj Election Officer was that of conducting elections of Panchayati Raj Bodies.
As this work was of a periodical nature, the Government thought it fit to abolish it.
It was also stated in another affidavit filed on behalf of the appellant State that the post of Panchayati Raj Election Officer and the seven posts of field Deputy Directors were abolished as an economy measure to meet financial stringency.
We see no cogent ground to question the averments made in the above affidavits.
The averments show that the decision to abolish the post of Panchayati Raj Election Officer was taken because of administrative reasons.
The question as to whether greater economy could have been brought about by adopting some other course is not for the court to go into, for the court cannot sit as a court of appeal in such matters.
It may be that some of the functions which were being previously performed by the respondent are now being performed by Deputy Directors whose posts have not been abolished, this fact would not show that the decision to abolish the post held by the respondent was not taken in good faith.
After the posts of Deputy Directors had been created and had been in existence along with the post of Panchayati Raj Election Officer for a number of months, the Government, it would appear, decided to abolish some of the posts to meet the financial stringency.
In taking the decision as to which post to abolish and which not to abolish, the Government, it seems, took into account the relative usefulness of each post and decided to abolish the seven posts of field Deputy Directors and the one post of Panchayati Raj Election Officer.
This was a matter well within the administrative discretion of the Government and as the decision in this respect appears to have been taken in good faith, the same cannot be quashed by the court.
The fact that the post to be abolished is held by a person who is confirmed in that post and the post which is not abolished is held by a person who is not permanent would not affect the legality of the decision to abolish the former post as long as the decision to abolish the post is taken in good faith.
We would, therefore, hold that the High Court was in error in quashing the order of the Government whereby the post of Panchayati Raj Election Officer had been abolished.
There appears to be, however, considerable force in the second contention advanced on behalf of the respondent that on the abolition of the post of Panchayati Raj Election Officer, his services should not have been terminated.
According to clause (a) (2) of rule 3.14 of Punjab Civil Services Rules Vol.
I Part I as applicable to Haryana State, a competent authority shall suspend the lien of a Government servant on a permanent post which he holds substantively if he is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne.
According to clause (e) of that rule, a 1040 Government servant 's lien which has been suspended under clause (a) of that rule shall revive as soon as he ceases to hold a lien on the post of the nature specified in sub clauses (1), (2) or (3) of that clause.
The above provisions were considered by us in the case of T. R. Sharma vs Prithvi Singh & Anr.(1) and it was held that in the absence of a written request by the employee concerned, the lien on the post permanently held by him cannot be terminated.
It is nobody 's case that any written request was made by the respondent for terminating his lien on the post of Head Assistant.
As such, the lien of the respondent on the post of Head Assistant should be held to have immediately revived as soon as the post of Panchayati Raj Election Officer was abolished.
It has been pointed out by Mr. Sibal that officials who were junior to the respondent have in the meanwhile been promoted to higher posts.
It would be for the authorities concerned to take such consequential steps as may be necessary in accordance with the rules because of the revival of the lien of the respondent on the post of Head Assistant.
Mr. Sibal has also stated that the respondent may exercise his option of taking compensation pension in accordance with rule 5.2 of the Punjab Civil Services Rules Vol.
II because of the abolition of the post of Panchayati Raj Election Officer.
In case the respondent does so, it would be for the Government to pass appropriate orders in the matter.
Submission has further been made by Mr. Sibal that the respondent should not in view of the hardship suffered by him be compelled to make refund out of the salary which he has been drawing during the pendency of the appeal.
This again is a matter which is entirely for the Government to decide and we are sure that the Government would pass appropriate order keeping in view all the circumstances of the case.
We accordingly accept the appeal and set aside the judgment of the High Court.
We hold that the order of the Government abolishing the post of Panchayati Raj Election Officer does not suffer from any infirmity and as such is not liable to be quashed.
We further hold that on the abolition of that post, the lien of the respondent on the post of Head Assistant stood revived.
The parties in the circumstances shall bear their own costs throughout.
V.P.S. Appeal allowed.
| IN-Abs | The respondent was Head Assistant in the Panchayat Department of the Punjab Government.
While he was officiating as Superintendent in the Department, he was appointed Panchayati Raj Election Officer, which was an ex cadre post.
On the reorganisation of the State, the respondent was allocated to the appellant State and he continued to work as Panchayati Raj Election Officer in the appellant State.
In 1972, the State Government abolished the post of Panchayati Raj Election Officer and the services of the respondent were dispensed forthwith.
He challenged the order and it was quashed by the High Court.
In appeal to this Court, ^ HELD: Since the order of the appellant abolishing the post of Panchayati Raj Election Officer did not suffer from any infirmity, the High Court was in error in quashing it; but on the abolition of that post, under r. 3.14 of the Punjab Civil Service, Rules, the lien of the respondent on the post of Head Assistant stood revived.
[1040 F G] (1)(a) Whether a post should be retained or abolished is essentially a matter for the Government to decide, and as long as the decision is taken in good faith, it could not be set aside by the Court but, if it is found that the abolition was not in good faith, but was a cloak or device to terminate the services of an employee, then the abolition of the post may be set aside.
[1037 H 1038 C] M. Ramanatha Pillai vs The State of Kerala & Anr. ; , followed.
(b) In the present case, the decision to abolish the post was taken because of administrative reasons.
The Government re organised the Panchayat Department, and all those duties which had nothing to do with the job of Panchayati Raj Election Officer were given to other officers.
The only work left with the Panchayati Raj Election Officer was that of conducting elections of Panchayat Raj Bodies, and, as this work was of a periodical nature, the appellant abolished that post because of financial stringency.
[1038 G 1039 C] (c) Whether greater economy could have been brought about by adopting some other course is not for the Court to go into.
The fact that some of the functions which were being previously performed by the respondent are now being performed by others, whose posts have not been abolished, would not show that the decision to abolish was not taken in good faith.
In deciding which post to abolish, the appellant took into account the relative usefulness of each post, and as this matter was within the administrative discretion of the appellant and as the decision was taken in good faith, the Court cannot interfere with it.
[1039 C 1039 F] (d) The fact that the post which was abolished was held by a person who is confirmed in that post and the posts which were not abolished were held by persons who were not permanent would not also affect the legality of the decision to abolish the former, if the decision was taken in good faith.
[1039 F G] 1035 (2) Under r. 3.14(a), a competent authority shall suspend the lien of a Government servant on a permanent post which he holds substantively, if he is appointed in a substantive capacity, to a permanent post outside the cadre on which he was borne; and under r. 3.15, in the absence of the written request by the employee, the lien cannot be terminated.
Under r. 3.14(e), the Government servant 's lien which has been so suspended shall revive as soon as he ceases to hold a lien on the ex cadre post.
In the present case, since there was no request by the respondent for terminating his lien on the post of Head Assistant, his lien on that post should be held to have immediately revived as soon as the post of Panchayati Raj Election Officer which was an ex cadre post was abolished.
[1039 H 1040 C] T. R. Sharma vs Prithvi Singh & Anr.
[1976] 2 S.C.R. 716, followed.
[It was for the Government to pass all consequential orders regarding his seniority, pension etc.] [1040 C]
|
Civil Appeals Nos.
2000 2001 of 1969.
(Appeals by Special Leave from the Judgment and Order dated 17 10 1968 of the Kerala High Court in Income Tax Referred Case No. 79/67).
B. Sen, S.P. Nayar and 1.
Ramamurthi for the Appellant (in both appeals).
G.K. Viswanatha lyer, K. Jayaram and R: Chandrasekar for the Respondent (in both appeals).
The Judgment of the Court was delivered by BEG, J.
Civil Appeals Nos. 2000 2001 of 1969 from the judgment and order of the Kerala High Court are by grant of special leave by this Court filed on the ground that these appeals raise a question of wide general importance.
This question was thus framed, in a reference made by the Madras Bench of the Income tax Appellate Tribunal under Section 64(1) of the : "Whether on the facts and in the circum stances of the case, the Appellate Tribunal was correct in law in having included the value of the forest lands in the total value of the Estate for the purpose of Estate Duty ?" The assessee had claimed that large tracts of, forest land, covered with wild and natural forest growths, situated in the erstwhile Malabar District, were 'agricultural ' lands not liable to estate duty under the of 1953 (hereinafter referred to as the Act ').
According to the Revenue, duty had become leviable on the death of the former owners, Smt.
Jayalakshmi Devi, who died on 6 3 1954, and Shri Madhava Rajah of Kollengode, who died on 9th May, 1955, each owning 1/13th share in the Tarwad properties on the dates of their deaths.
348 No question as to the effect of any amendment of the law upon liability of agricultural laud to Estate duty was referred by the Tribunal to the High Court.
Nevertheless, it seems to have been considered by reason of the general nature of the question referred involving a determination of the correctness of the inclusion of the value of "forest land in the total value of the estate".
We may observe here that the question framed seems to rest on the assumption that the land under consideration was "forest land".
Howev er, the general nature of the question framed and the ques tions argued and decided by the Appellate Tribunal as well as the High Court indicated that the real contest was about the very nature of the land involved in order to determine whether it was liable to estate duty.
The High Court had observed that the Tribunal 's findings that land, to the extent of 36,857.16 acres, was not agri cultural land was "solely based on the absence of evidence or the assessee 's failure to prove that the disputed forest lands are agricultural lands".
The High Court had also mentioned the basis of this finding relating to two types of land about which it had disagreed with the Appellate Tribunal while agreeing with the Tribunal that 500 acres of rocky land was non agricul tural land.
This basis was given by quoting the 'fol lowing two passages from the judgment of the Appellate Tribunal: "(1) According to the valuers, the remaining extent of 15,000 and odd acres out of the first category, has been leased by the assessee fro.m time to time for cutting of timber and fuel wood, and has never been used by him either by himself or through lessees to bring it under cultivation for any purpose.
There is no material on record from which it can be said that this area can at all be brought under cultivation for any purpose.
Even if it is assumed that, there is a bare possibility of this area being brought under cultivation, the assessee has not placed any material before us from which it can be said that a prudent owner would undertake any process of farming in respect of this land".
(2) "With regard to the second category of the land of the extent of 16,000 and odd acres, the report of the valuers does not throw any light upon the nature of this land, and the only information available is that these lands have been held by the Kerala Government under a perpetual lease on an annual rent of Rs. 5,000/ .
The assessee has not shown whether this land was being cultivated.
by the Kerala Government or whether it was Only being exploited by the Kerala Government for its timber value.
On the material on record, it is not possible for these lands to come.
under the catego ry of agricultural lands".
349 The High Court had set out the provisions of Section 5 of the Act as they stood before a slight amendment in 1956.
It read: "5.
Levy of estate duty (1) In the case of every person dying after the commencement of this Act, there shall, save as hereinafter expressly provided, be levied and paid upon the principal value ascertained as hereinafter provided of all property settled or not settled, including agricultural land situate in the States specified in the First Schedule to this Act, which passes on the death of such person, a duty called 'estate duty ' at the rates fixed in accordance with Section 35.
(2) The Central Government may, by notifica tion in the official Gazette, and the names of any other States to the First Schedule in respect whereof resolutions have been passed by the Legislatures of those States adopting this Act under clause (1) of Article 252 of the Constitution in respect of estate duty on agricultural lands situate in those States, and on the issue of any such notification the States so added shall be deemed to be States specified in the First Schedule within the meaning of sub section (1)".
After pointing out that agricultural land falls under item 48 of List II or the State List in the Seventh Sched ule of the Constitution, the High Court held that estate duty on the land under consideration would become leviable provided it was agricultural land on the passing of resolu tions by the legislature of the State of Madras as provid ed by Section 5 (2) set out above.
These resolutions having been passed on 2 4 1955, the State of Madras was added in the First Schedule to the Act with effect from 6th June, 1955.
Hence, the High Court held that the estate duty was not leviable under the Act on agricultural land,before 6th June, 1955, in the Madras State to which the land under consideration had belonged at the time when it was said to have become subject to a levy of estate duty.
Thus, the principal question which arose was: What is the meaning of "agricultural land" as that term is used in the Act ? The High Court of Kerala, which had to deal with this reference decided the question on two grounds: firstly, that, according to the views expressed in Sarojni Devi vs Srikrishna;(1) and Megh Raj vs Allah Rakha;(2) and C.I.T. West Bengal, Calcutta, vs Raja Benoy Kumar Sahas Roy,(3) the words "agricultural land" should be "interpreted in their widest significance"; and, secondly, that although the burden rested upon an assesee to establish an exemption from liability to estate duty in respect of any part of his estate, yet, if he claimed immunity on the ground that the subject matter does not fall within the ambit of the taxing power of the legislature imposing (1) A.I.R. 1944 Mad. 401.
(2) A.I.R. 1942 PC 27.
(3) 350 the duty, the Revenue had to establish that the subject matter involved is taxable.
It then gave its opinion in the following terms: "It is well known that the extensive areas of different varieties of plantation that we have got in this State were once forest lands, and it is also equally well known that year after year large areas of forest lands in this State are being cleared and converted into valuable planta tions.
In the absence of exceptional circum stances such as the land being entirely rocky or barren for other reasons, all forest lands in this State are agricultural lands in the sense that they can be prudently and profitably exploited for agricultural purposes.
There is no case that the forest lands concerned in this case or any part thereof are unfit for agricultural exploitation".
So far as the correct interpretation of the term "agricultural laud" in a taxing statute, such as the one before us, is concerned, we have already dealt with the question in our judgment in Commis sioner of Wealth tax, Andhra Pradesh vs Officer in Charge (Court of Wards) Paigah, C) where we have said: "We think that it is not correct to give as wide a meaning 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 legally follows from the terms used.
We are to avoid absurd re sults.
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 practi cally all land, even that covered by buildings is 'agricultural land ' is as much 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 re stricted meaning than the very wide ambit given to it by the Andhra Pradesh Full Bench".
Learned Counsel for the respondents had sought to rely strongly upon State of Kerala & ,4nr.
vs The Gwalior Rayon Silk Manufacturing (Wvg.) Co. Ltd. etc.
,(2) where the question under consideration was whether the Kerala Pri vate Forests (Vesting and Assignment) Act 26 of 1971, pur porting to acquire forest lands held on Janmam (1) ; (2) [1974] (1) S.C.R.p.
671, 682.
351 right, ' without payment of compensation, for implementing a scheme of agrarian reform by assigning lands or leasing them to poorer sections of rural agricultural population, was acquiring "agricultural land", for purposes ' stated in.
the Preamble to the Act before this Court for interpretation.
This Court interpreted the Preamble as having the effect of an earmarking by Legislature of certain forest lands for conversion into land meant for agriculture.
We do not think that the forest land involved in Gwalior Rayon Silk Manufacturing (Wvg.) Co. Ltds. ' case (supra), which had become linked up with agricultural purposes and earmarked for them, by reason of a special statute for special purpose can bear comparison with forest land with "spontaneous" or natural and wild growths of for est, which is involved in the case now before us.
The decision in Gwalior Rayon Silk Manufacturing (Wvg.) Co. 's case (supra) obviously depended upon the special facts of that case and the character of provisions to be interpreted.
This Court keeping in view the special features of that case, in the context of certain judicial pronouncements mentioned in the statement of objects and reasons for the statute to be interpreted, observed there (at p. 683): "It is, therefore, manifest that when the legislature stated in the Preamble that the private forests are agricultural land, they merely wanted to convey that they are lands which by and large could be prudently and profitably exploited for agricultural purposes".
It seems clear to us that this Court, by explaining why, for certain special reasons and in an unusual context, certain land described as "forest land" was to be treated as though it had become "agricultural", implied that ordinarily this is not so.
In Rajah Anand Brahma Shah vs State of U.P. & Ors.,(1) this Court held forest land to be nonarable which meant "non agricultural".
We think that, without evidence to show that such land had been cleared and pre pared or earmarked for agricultural purposes, it must be treated as prima facie nonagricultural land.
Learned Counsel appearing for the respondent stated before us that the lands under consideration had also been subsequently acquired by the Govt.
and put to agricultural uses.
There is, however, no finding or evidence before us to that effect.
Apparently, the learned Counsel meant that forest land subsequent to the levy of estate duty had been acquired by the State to be converted and used for agricul tural purposes.
There being no evidence or finding of such a character before the events which attracted the estate duty, we cannot take notice of such a statement by Counsel.
It is irrelevant for the purpose of the cases before us.
So far as the question of burden of proof is concerned, we think that to proceed on the assumption that all land is prima facie capable of cultivation, so that the State must prove that it is non agricultural in order to establish that it could be the subject matter of legislation (1) ; at p. 379. 352 which was within Parliament 's legislative competence, and, therefore, covered by the Act, is to mix up the question of legislative competence and that of taxability of what is, on the face of it, taxable as part of the estate or property of the assessee within the meaning of Section 5 of the Act set out above.
Indeed, the question of legislative competence of Parliament was neither in issue nor part of the question referred even if such a question could have been referred at all by a Tribunal functioning under the Act.
We think that the burden of establishing the exemption lay upon the asses see respondent as was rightly held by the High Court.
We think that the High Court was not correct in placing the burden upon the Department, after it was admitted that it was "forest land", on the ground that the further question of an immunity of the subject matter from taxation by Par liament arose here and that, therefore, the onus lay on the Department.
Even if there could be such an onus here, it was, we think, sufficiently discharged by the admission that this was "forest land" covered with natural or wild growths.
After that, at any rate, the assessee had to prove change of its character.
In Commissioner of Wealth Tax, Andhra Pradesh vs Offi cer incharge (Court of Wards) Paigah, (supra), in which we heard arguments together with arguments in the case now before us, we found that there was some evidence of the agricultural character of land in the shape of entries in revenue record.
We do not find what could similarly consti tute evidence of agricultural character of the land involved in this case.
On the other hand, the assessee 's admission that the land under consideration was "forest land", covered by wild and natural growth of forests, constituted evidence to the contrary.
We think that, unless there was evidence that such lands had been, in some way, set apart or earmarked for or linked up with an agricultural purpose, by their owners or occupiers, it could not be held that they are agricultural lands.
We think that the view of the Kerala High Court, that "all forest lands in this State are agricultural lands in the sense that they can be prudently and profitably exploit ed for agricultural purposes", is too wide.
It is erroneous for the reasons we have already set out in our judgment in the case from the Andhra Pradesh High Court.
The question has to be decided on evidence of actual or intended user for which land may have been prepared or set apart.
In the case before us now, the Tribunal said in its referring order: "The Tribunal permitted the accountable person to raise the contention that the value of the forest lands has to be excluded as they were agricultural lands.
So far as this contention was concerned, the following facts were not in dispute: viz., that the forest consisted of trees of sponta neous growth; that no operations in the nature of forest development were being carried on; and, that only operations in the nature of exploitation of the forest were being conducted.
The account able person, however, contended that these lands were capable of being brought under cultivation at a future 353 date and that therefore they must be deemed to be agricultural lands.
Reliance was sought to be placed upon the decision of the Madras High Court in Sarojini Devi vs Shri Krishna (AIR 1944 Madras p. 401) in which it was held that the expression 'agricultural lands ' must be taken to include lands which are used or are capable of being used for raising any valuable plants or trees or for any other purpose of husbandry.
The Tribunal was, however, of the view that in the said decision their Lordships did not intend to lay down a defi nition of the expression 'agricultural lands ' for all purposes, and that, on the other hand, they clearly indicated that the expression admits of different interpretations and that it was only from the context of the particular enactment in which this expression is used that ' its meaning has to be inferred.
The Tribunal observed that the very wide definition of the expression 'agricultural lands ' laid down in the above cited decision was not applicable to cases under the .
The Tribunal, therefore, negatived the contention of the accountable person that the forest lands had to be excluded from the value of the assessable estate of the deceased".
Thus, it is clear that the assessee, after having been given due opportunity to lead evidence to show that what was prima facie nonagricultural land, in the sense that it was covered by the spontaneous or natural growth of forests, was really agricultural land, had led no such evidence.
It was not shown that the assessee or his predecessor in interest did anything to develop the forest in the sense that any particular trees were planted deliberately.
It appears that the nature of exploitation of the forest lands was simply to give contracts for cutting of the trees.
The assessee not having led any evidence of any intention to prepare or appropriate or ear mark the land for any agricultural use or purpose, but ', on the other hand, having contended that mere possibility of using such land for agricultural purposes in future was enough, could not be said to have discharged his onus of proof.
After the assessee 's admission that it was "forest land" which presumably prevented cultivation, no evidence was led as we have already observed to indicate any change of character of this land or its conversion into agricultural land.
We therefore think that the Appellate Tribunal was correct in expressing the view it had taken and the conclusions it had recorded.
And, no case is made out for sending the case back to the Tribunal for any fresh decision.
Consequently, we allow these appeals, set aside the judgment and orders of the High Court.
The parties will bear their own costs.
| IN-Abs | Under s.5 of the , all property, including agricultural land situate in the States specified in the First Schedule to the Act, which passes on the death of the owner is subject to estate duty.
The State of Madras was added in the First Schedule with effect from 6th June, 1955.
The assessee claimed that large tracts of land, covered with wild and natural forest growths situate in the Malabar District of the Madras State, were agricultural lands and that they were not liable to estate duty because the former owners died before 6th June, 1955.
The High Court held that the property was agricultural land and not liable to estate duty, because, (1) the words 'agricultural land ' should be interpreted in their widest significance, so that.
in the absence of exceptional circumstances such as the land being entirely rocky or barren for other reasons, all forest lands in the State of Kerala in which the District of Malabar was since included, are agricultural lands in the sense that they can be prudently and profitably exploited for agricul tural purposes; and (2) although the burden rested upon an assessee to establish an exemption from liability to estate duty in respect of any part of his estate, yet, if he claimed immunity on the ground that the subject matter does not fall within the ambit of the taxing power of the legis lature imposing the duty, the Revenue had to establish that the subject matter involved is taxable.
Allowing the appeal to this Court, HELD: (1) The expression 'agricultural land ' has to be given a restricted meaning and not the wide meaning given by the High Court.
The question whether land is agricultural land has to be decided on evidence of actual or intended user for an agricultural purpose for which the land may have been prepared or set apart.
[352 F] Commissioner of Wealth tax, Andhra Pradesh vs Officer in Charge (Court of Wards) Paigah, [1977] 1 S.C.R. 146 followed.
(a) The land in the present case was covered by sponta neous or natural growth of forests.
It was not shown that the assessee or his predecessor in interest did anything to develop the forest in the sense that any particular trees were planted deliberately.
The exploitation of the forest lands was simply to give contracts for cutting trees.
It must, therefore, be treated prima facie as non agricultural land.
[353 E] (b) The decision in State of Kerala vs Gwalior Rayon Silk Manufacturing (Wvg) Co. Ltd. ; depended upon the special facts of that case and the provisions of the Kerala Private Forests (Vesting and Assessment) Act, 1971, interpreted therein.
This Court, in that case ex plained, why for certain special reasons and m an unusual context, certain land described as 'forest land ' was to he treated as 'agricultural '.
Forest land ordinarily means non arable, that is, non agricultural land.
[351 C & E] Rajah Anand Brahma Shah vs State of U.P. & Ors. ; followed.
347 (c) Assuring that the forest land subsequent to the levy of estate duty had been acquired by the State to be converted and used for agricultural purposes, there being no evidence or finding of such a character before the events which attracted the estate duty, it is an irrelevant circum stance of which the Court cannot take notice.
[351 G] (2) (a) The burden of establishing the exemption lay upon the assessel.
The High Court was not correct in placing the burden upon the Revenue when it was admitted that the land was forest land.
The reason given by the High Court, that a question of immunity of the subject matter from taxation by Parliament arose here, and that, therefore, the onus lay on the Department mixes up the questions of legis lative competence and of taxability.
Even if there could be such an onus, it was, sufficiently discharged in the present case by the admission of the assessee that the land was forest land covered with natural or wild growths.
[352 A C] (b) The assessee, was given due opportunity to lead evidence to show, that what was prima facie non agricultural land, was really agricultural land but he led no evidence to prove his intention to put the land to agricultural use or purpose.
On the other hand, he contended that the mere possibility of using such land for agricultural purposes in future was enough.
Therefore, he had not discharged his onus, and no case is made out for sending the case back to the Tribunal for any fresh decision.
[353 D F]
|
Civil Appeal No. 908 of 1975.
Appeal from the Judgment and Order dated 13 3 75 of the Punjab and Haryana High Court in Civil Writ No. 2586/71 and CIVIL APPEAL No. 1041 oF 1975.
Appeal from the Judgment and Order dated 13 3 75 of the Punjab & Haryana High Court in Civil Writ No. 2586/71.
Kapil Sibal and S.K. Gambir, for the Appellant in C.A. No. 908/75.
Anand Sarup and H.S. Marwah, for Respondent No. 1 in C.A. 908/75 and for Respondent No. 2 in C.A. 1041/75.
Naunit Lal, M.N. Shroff and R.N. Sachthey, for Respond ent No. 3 in C.A. 908/75 for the Appellant in C.A. 1041/75.
The Judgment of the Court was delivered by GOSWAMI, J.
These two appeals are by certificate from the judgment of the Full Bench of the High Court of Punjab and Haryana.
Both the appeals question the decision of the High Court one by the Judicial Officer and the other by the State Government.
The appellant in Civil Appeal No. 908 of 1975 (hereinaf ter to be referred to as the officer) was originally a member of the Punjab Civil Service (Judicial Branch).
He was appointed as a Subordinate Judge, IV Class, on February 27, 1956.
Thereafter he was promoted as a SubJudge, First Class, and was duly confirmed.
While, as a Subordinate Judge cum Magistrate First Class in Amloh, District Patiala, the Bar Association of Amloh on May 11, 1965, sent a resolu tion to the High Court levelling certain charges against the officer affecting his integrity and impartiality.
The High Court ascertained the facts through a preliminary enquiry held by the District Judge, apparently, ex parte, at this stage.
Thereafter, on the report of the District Judge a regular departmental enquiry was instituted.
The officer was suspended by the Government on June 6, 1966, at the instance of the High Court.
The District Judge, Sangrur, was appointed as the Enquiry Officer on July 21, 1966.
He enquired into the charges levelled against the officer.
The Enquiry Officer submitted his report and found him guilty of all the charges except one.
The High Court agreed with the Enquiry Officer and came to a tentative conclu sive that the officer should be removed from service.
Meanwhile, the services of the officer were allocated to the State of Haryana with effect from November 1, 1966.
428 The High Court recommended to the State Government of Haryana to serve a notice under Article 311(2) of the Con stitution asking the officer to show cause why the penalty of removal from service should not be imposed on him.
This was done by the State Government on March 13, 1967.
The officer submitted his explanation through the High Court on April 20, 1967.
The High Court found the explanation to be unsatisfactory and recommended to the Government that the officer should be removed from service.
The State Government, although on its own showing, "was inclined to agree with the views of the High Court and with the recommendation made by it", however, referred the case to the Haryana Public Service Commission for advice purporting to act under Article 320(3)(c) of the Consti tution.
The Commission advised that no case had been made out against the officer and that he should be exonerated.
The Governor accepted the advice of the Commission and passed the order on August 24, 1968, reinstating the officer in service with immediate effect.
The High Court was re quested by the Government to post the officer on his rein statement.
The High Court did not issue any posting order to the officer as it was of the opinion that the order of the Government was illegal for the vice of consultation with the Public Service Commission and for accepting its advice disregarding the recommendation of the High Court.
The High Court requested the Government to review its order but the Government did not take any action on that suggestion.
Since the High Court refused to pass any posting order notwithstanding his several prayers the officer preferred in the High Court of Punjab and Haryana a petition under Arti cle 226 of the Constitution on July 12, 1971, praying for a writ of mandamus directing the High Court to issue an appro priate order of posting and also for a mandamus directing the Government to disburse full salary to the officer including the salary for the period under suspension and other consequential reliefs.
While the writ petition was pending before the Full Bench, the Governor, accepting the recommendation of the High Court, passed an order on December 16, 1974, issuing three months ' notice of compulsory retirement to the officer and the officer thus retired on March 18, 1975, after at taining the age of 55 under the service Rules.
The officer challenged the notice of retirement by way of a writ petition in the High Court on March 10, 1975.
The same was, however, withdrawn by the officer on March 13, 1975, on which date judgment of the Full Bench was delivered in the other writ application out of which the present appeals have arisen.
The officer, however, later on filed a writ petition No. 747 of 1975 in this Court against the order of compulsory retirement and he was allowed by us to withdraw the same on July 30, 1976.
The ' retirement of the officer is, 'there fore, not in dispute.
429 The High Court by a majority of four learned Judges held as follows : (1)"Since the impugned order, exonerating the petitioner from all charges and reinstating him, was not passed in accordance with the mandatory provision of the Constitution embodied in Article 235 of the Constitution, order is void and non est being ultra vires Article 235 of the Constitution and the High Court was right in not giving effect to it".
They also observed that any recommendation made by the High Court in exercise of power under Article 235 must be held to be binding on the Governor.
(2) "Since the Public Service Commission was an extraneous body and could not be consulted and was able to influence the decision of the punishing authority, the order suffers from a grave constitu tional infirmity and is, therefore, liable to be declared ultra vires Article 235 of the Constitu tion and hence void and non est on this ground too.
The High Court was, therefore, right in disregarding that order and not implementing it by giving the posting orders to the petitioner".
The fifth learned Judge (Gujral, J.) did not agree with the majority with regard to the conclusion on the aforemen tioned first point.
He, however, agreed with the majority with regard to the second point and also agreed with the final decision.
The High Court dismissed the officer 's writ application under Article 226 and held that he could not claim any relief on the basis of the order of reinstatement of the Governor of August 24, 1968.
The High Court further held that the dismissal of the petition would "not bar the State Government from passing an order against the petition er in accordance with the recommendation of the High Court completely ignoring and keeping out of consideration the advice tendered by the Public Service Commission".
Firstly, the appellants contend that the Governor being the appointing authority is not bound to accept the recom mendation of the High Court and the order of reinstatement is well within his powers under Article 311 read with the Rules for Appointment of Subordinate Judges in Haryana and the Punjab Civil Service (Punishment and Appeal) Rules, 1952, and is perfectly valid.
Secondly, they contend that the Governor is entitled under Article 320(3)(c) of the Constitution to consult the Public Service Commission with regard to the matter in question arising out of a disci plinary proceeding.
Thirdly, it is contended on behalf of the officer that in view of the fact that he was ultimately compulsorily retired on the recommendation of the High Court and the order of suspension merged with the order of rein statement it is no longer possible for the Governor to pass the order of removal of a person who has already retired from service.
it is submitted that m that view of the matter the writ application had become infructuous.
and even the High Court 430 need not have decided the writ application.
It is, there fore, submitted on behalf of the officer that since on his reinstatement the order of suspension lapsed and he had retired, he would be entitled to his full salary during the entire period of suspension upto the date of his retirement.
On behalf of the High Court it is submitted that under Article 235 of the Constitution the sole and exclusive disciplinary control over the subordinate judiciary being vested in the High Court the High Court 's recommendation is binding on the Governor and the Governor ought to have accepted the recommendation and passed an order of removal of the officer.
It is further submitted that the order of reinstatement passed by the Governor after consulting the Public Service Commission is absolutely void and ultra vires.
The controversies, such as we have to deal with, have raised their unpicturesque heads from time to time.
We are, therefore, not required to write on a clean slate on this subject.
Even so, one aspect of the matter, viz., that relating to the consultation with the Public Service Commis sion by the Governor with regard to judicial officers ' misconduct assumes a great importance in this case in a manner that has not arisen earlier before this Court.
The controversy in these appeals is rather disquieting.
In view of several decisions of this Court wherein different facets of like problems were noticed and resolved one would have thought that a healthy convention has grown and taken firm roots by now in fulfilment of one of the cherished Directive Principles of the Constitution in Article 5 which is based on the bed rock of the principle of independence of the judiciary.
Here, the High Court, after a full enquiry, which has not been questioned at any stage, came to the conclusion that the charges of misconduct of a judicial officer were established and that the officer was of dubious integrity.
Who else but the High Court, in such a situation, is better posted to determine the issue and advise the Governor ? Yet, the stark reality is that the High Court 's recommendation was given a go by and the Commission 's contrary advice was preferred by the Governor.
Time and again this Court has been observing hopefully that it will be in the best interest of a high and healthy tradition for the Governor to ordinarily accept the recommendation of the High Court in a disciplinary matter concerning judicial officers ! We are concerned in these appeals with regard to a disciplinary proceeding in respect of a Subordinate Judge and hence falling within the purview of Article 235 of the Constitution.
That Article reads as follows : article 235.
"The control over district courts and courts subordinate thereto including the posting and promotion d, and the grant of leave W, persons belonging to the judicial service of a State and holding any post inferior to the post 431 of district Judge shall be vested in the High Court, but nothing in this article shall be con strued as talking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him other, vise than in accordance with the conditions of his service prescribed under such law".
In The State of West Bengal vs Nripendra Nath Bachi(1) this Court in an elaborate judgment went into the history of Articles 233 to 237 of the Constitution.
This Court held: "The word 'control ' as we have seen, was used for the first time in the Constitution and it is accom panied by the word 'vest ' which is a strong word.
It shows that the High Court is made the sole custodian of the control over the judiciary.
Control, therefore, is not merely the power to arrange the day to day working of the court but contemplates disciplinary jurisdiction over the presiding Judge".
Dealing with the argument based on Article 311 this Court further observed in the above case as follows : "There is, therefore, nothing in article 311 which compels the conclusion that the High Court is ousted of the jurisdiction to hold the enquiry if article 235 vested such a power m it.
In our judgment, the control which is vested in the High Court is a complete control subject only to the power of the Governor in the matter of appointment (including dismissal and removal) and posting and promotion of District Judges.
Within the exercise of the control vested in the High Court, the High Court can hold enquiries, impose punishments other than dismiss al or removal, subject however to the conditions of service, to a right of appeal if granted by the conditions of service, and to the giving of an opportunity of showing cause as required by el.
(2) of article 311 unless such opportunity is dispensed with by the Governor acting under the provisos (b) and (c) to that clause.
The High Court alone could have held the enquiry in this case.
To hold other wise will be to reverse the policy which has moved determinedly in this direction".
Article 235 makes reference to the conditions of service which are prescribed under Article 309 of the Constitution.
The Punjab Civil Services (Punishment and Appeal) Rules, 1952 (hereinafter to he referred to as the Punishment Rules), were made by the Governor of Punjab in exercise of the powers conferred under Article 309 of the Constitution.
The judicial officers also hold posts in connect;on with the affairs of the State and the rules made under Article 309 so far as applicable, would govern their conditions of service.
There are also the Rules relating to the Appointment of Subordinate Judges in (1) ; 432 Haryana (hereinafter to be referred to as the Appointment Rules) which were promulgated by the Governor in exercise of the powers conferred by Article 234 read wire proviso to Article 309 of the Constitution.
These Rules were made by the Governor after consultation with the State Public Serv ice Commission and with the High Court.
Under rule 14, Part F of the Appointment Rules relating to Discipline, Penalties and Appeals, it is provided as follows : "In matters relating to discipline, penalties and appeal including orders specified in Appendix B, members of the Service shall be governed by 'The Punjab Civil Services (Punishment and Appeal) Rules, 1952 ' as amended from time to time.
Provided that the nature of penalties which may be inflicted, the authority empowered to impose such penalties or pass such orders and the appel late authority shall be as specified in Appendices 'A ' and 'B ' below : " In Appendix 'A ' it is provided in item (f) that the punish ing authority in case of removal from the service which does not disqualify from future employment is the "Government" and there is no appeal therefrom.
In item (g) of Appendix 'A ' dismissal is also provided for in similar terms.
In Appendix 'B ' the authority competent to pass an order of termination of the service of a Subordinate Judge is the "Government" and there is no appeal against such an order.
It will be seen that under rule 14 of the Appointment Rules of the Subordinate Judges, the Punishment Rules are being made applicable to the Subordinate Judges.
Under rule 4(vi) of the Punishment Rules read with Appendix 'A ' of Part (F) of the Appointment Rules.
the competent authority to remove a Subordinate Judge from service is the ,Government".
It was, therefore, appropriate that the High Court, after close, of the departmental en quiry, when it was satisfied that the officer was guilty of misconduct deserving removal from service, recommended to the Governor for his removal.
Upto this stage there was no difficulty.
Trouble arose when the Government, although on its own showing, was inclined to agree with the High Court thought it proper to obtain the advice of the Public Service Commission as is usually done in the case of other civil servants.
As stated earlier, the Commission tendered its advice contrary to the recommendation of the High Court and held the opinion that the officer should be exonerated from the charges.
The Government accepted the advice of the Commission and reinstated the officer which resulted in refusal to accept the recommendation of the High Court.
In the above premises the questions that are raised .are (1) Whether the Governor is bound under the Constitution to accept the recommendation of the High Court and to pass an order of removal of the judicial officer.
433 (2) Whether consultation with the Public Service Commission in a matter of a disciplinary proceeding relating to the judicial officer under the control of the High Court is unconstitutional.
Is the order of reinstatement passed by the Government constitutionally valid ? (3) If not, what will be the position of the officer on the date of the officer 's compulsory retirement ? Is an order of removal possible after that date ? There is no dispute that the appointing authority of a Subordinate Judge under Article 235 as well as under the Appointment Rules is the Governor.
Under Article 235 itself the Subordinate Judge will be governed by the Appointment Rules made under Article 234 read with Article 309.
The Appointment Rules by reference, bring in the Punishment Rules whereby the punishing authority for removal is the "Government" mentioned in the former Rules.
With regard to the first question the appellants submit that the Governor being the appointing authority both under Article 235 and the Appointment Rules read with the Punish ment Rules, is the final authority to pass the order of removal of the officer and is not under any constitutional obligation to be bound by the recommendation of the High Court.
They rely upon Article 311 of the Constitution read with the aforementioned service Rules and submit that the control of the High Court under Article 235 does not impinge upon the power of the Governor to refuse to accept the recommendation of the High Court and to pass an appropriate order.
The learned counsel for the High Court, on the other hand, submits that Article 235 of the Constitution leaves no option to the Governor to refuse to accept its recommenda tion in a disciplinary matter in respect of a judicial officer.
He draws our attention to a very recent decision of this Court in State of Haryana vs Inder Prakash Artand H.C.S. and Others(1) to support his submission.
He particu larly relies upon paragraph 18 of that decision which reads: "The control vested in the High Court is that if the High Court is of opinion that a particular judicial officer is not fit to be retained in service the High Court will communicate that to the Governor because the Governor is the authority to dismiss, remove, reduce in rank or terminate the appointment.
In such cases it is the contemplation in the Constitution that the Governor as the Head of the State will act in harmony with the recommen dation of the High Court.
If the recommendation of the High Court is not held to be binding on the State consequences will be unfortunate.
It is in public interest that the State will accept the recommendation of the High Court.
The vesting of complete control over the subordinate judiciary in the High Court leads to this that the decision of the High Court in matters within its (1) [1976] supp.
S.C.R. 603.
434 jurisdiction will bind the State. 'The Governor will act on the recommendation of the High Court.
That is the broad basis of Article 235.
(See Shamsher Singh & Anr.
vs State of Punjab at page 841)".(1) It is pointed out by the appellants that in Inder Pra kash Anand 's case (supra) the question was whether the State Government could compulsorily retire a Senior Subordinate Judge cum Chief Judicial Magistrate under the Punjab Civil Services Rules against the recommendation of the High Court and that it was not a case relating to dismissal or removal on the disciplinary side.
Though the question involved in I.P. Anand 's case related to a different matter the above quoted observations of this Court, useful for all occasions, have, hopefully, a wider cast and their significance can be overlooked only at some peril of the desideratum nurtured in the Constitution.
The High Court, in making its recommendation to the Governor for passing the order of removal, has rightly conceded the authority of the Governor to pass the same.
The question is: Is the recommendation of the High Court binding on the Governor ? Since the Governor is the ultimate authority to pass the order of removal it will not be cor rect always to insist that he has no authority even under certain extraordinary circumstances to decline to accept forthwith, the particular recommendation.
Ordinarily and as a matter of graceful routine, recommendations of the High Court are and should be always accepted by the Governor.
That is ordinarily so and should be in practice the rule as a matter of healthy convention.
Articles 233 to 237 relating to the subordinate judici ary are specially carved out and placed in the safe niche of a separate chapter, Chapter VI in Part VI of the Constitu tion under sub title 'Subordinate Courts '.
This by itself is significant.
It is a major breakthrough in the Constitu tion from the position under the Government of India Act 1935 so far as the subordinate judiciary is concerned and clearly unfolds the keen awareness of the rounding fathers in what has been a passionate and raging topic with regard to independence of the judiciary all through, over the years.
For the first time, in the country 's history, appeared in the Constitution of India the concept of control over subordinate courts to vest in the High Courts.
The quality of exclusive control of the High Court does not appear to be whittled by the constitutional device of all orders being issued in the name of the Governor as the head of the State administration.
When, therefore, the High Court exercising disciplinary control over the subordinate judiciary finds.
after a proper enquiry, that a certain officer is guilty of gross misconduct and is unworthy to be retained in judicial service and, therefore, recommends to the Governor his removal or dismissal, it is difficult to conceive how and under what circumstances such a recommendation should be rejected by the Governor acting with the aid and advice (1) ; 435 of the council of ministers or, as is usually the case, of one of the ministers.
It is in this context that this Court has more than once observed that the recommendation of the High Court in respect of judicial officers should always be accepted by the Governor.
This is the inner significance of the constitutional provisions relating to the subordinate judiciary.
Whenever in an extraordinary case, rare in itself, the Governor feels, for certain reasons, that he is unable to accept the High Court 's recommendations, these reasons will be communicated to the High Court to enable it to reconsider the matter.
It is, however, inconceivable that, without reference to the High Court, the Governor would pass an order which had not been earlier recommended by the High Court.
That will be contrary to the contempla tion in the Constitution and should not take place.
It is not necessary to pursue the matter in further depth as sought to be canvassed by the parties taking ex treme stances in the view taken by us on the second ques tion.
With regard to the second submission we are clearly of opinion that consultation with the Public Service Commission after receipt of the recommendation of the High Court for removal of the officer is not warranted by the provisions of Article 235.
It is true that under Article 235 as well as under the Appointment and Punishment Rules the Governor is the ap pointing and punishing authority.
But under Article 235 the High Court is the sole custodian over the discipline of the judicial officers.
There is no warrant for introducing another extraneous body between the Governor and the High Court in the matter of disposal of a disciplinary proceeding against a judicial officer.
It is submitted on behalf of the appellants that Article 320(3)(c) provides that the Public Service Commission shall be consulted on all disci plinary matters affecting a person serving under the Govern ment of a State in a civil capacity.
Judicial Officers although holding posts in civil capacity are not serving under the Government of a State.
They hold posts in connec tion with the affairs of the State but are entirely under the jurisdiction of the High Court for the purpose of con trol and discipline.
There is, therefore, no constitution al justification or sanction for the Governor, even if he wishes, to consult the Public Service Commission under Article 320 (3) (c) in respect of judicial officers.
Con sultation with the Public Service Commission in this case and preference accorded to its advice ignoring the recommen dation of the High Court have introduced a serious consti tutional infirmity in the final order of reinstatement passed by the Governor.
The appellants drew our attention to a decision of this Court in Pradvat Kumar Bose vs The Hon 'ble The Chief Justice of Calcutta High Court(1) where this Court had to deal with one of the arguments founded on Article 320(3)(c) of the Constitution.
In the above decision Pradyat Kumar Bose, who was Registrar and Accountant General of the High Court on its original side and who was the (1) [1955]2 S.C.R. 1331.
436 appointee of the Chief Justice, was dismissed by the Chief Justice after a full and thorough enquiry held by one of the Judges of the High Court whose findings were accepted by the Chief Justice.
Inter alia, it was contended before this Court that the order of dismissal by the Chief Justice was vitiated as the Chief Justice did not consult the State Public Service Commission prior to dismissal of the Regis trar as provided for under Article 320(3)(c).
This Court repelled the contention holding that Article 320(3)(c) was contrary to the implications of Article 229 and the language thereof was also not applicable to the High Court staff since the members of the High Court staff did not serve under the Government of the Union or of the State.
It is submitted by the appellants that this court held that Article 320(3) (e) was not applicable since the Chief Justice was the sole appointing and punishing authority so far as the High Court staff was concerned under Article 229 of the Constitution.
On a parity of reasoning it is con tended by the appellants that since the Governor is the sole appointing and punishing authority under the Appointment and Punishment Rules, Article 320(3)(c) is, therefore, clearly attracted, since, according to them, if Article 229 were not there the matter would have been considered by this Court in a different light.
We are unable to accept this submission since, as we have pointed out, just as the High Court staff are not serving under the Government of the State, the judicial officers are also not serving under the State Government.
The appellants also relied upon a decision 01 this Court in The High Court, Calcutta vs Amal Kumar Roy(1).
In this case also a submission was made in this Court that the High Court should have consulted the State Public Service Commission in superseding seniority of a Munsif as a result of his exclusion from consideration for promotion in a particular year which resulted in his loss of eight places in the cadre of Subordinate Judges at the time he was actu ally appointed to act as an Additional Subordinate Judge.
The particular officer 's case in substance was that this exclusion by the High Court amounted in law to the penalty of "withholding of promotion".
It was contended that the High Court should have consulted the State Public Service Commission since article 320(3)(c) contemplated disciplinary matters.
This Court disposed of this submission by holding that losing places in a rank was not 'reduction in rank ' and that no disciplinary proceedings had been started against the particular officer and hence there could be no occasion for the State Public Service Commission being consulted.
It is submitted by the appellants that this Court did not reject the submission based on Article 320(3)(c), out of hand, holding that the Article was not applicable.
It is true that the aforesaid submission was disposed of in this particular manner by this Court in the above decision.
That however, does not mean that this Court categorically held Article 320(3)(c) was attracted in the case of judicial officers.
The question did not arise in that form.
(1) [1963] 1 S.C.R.437.
437 The matter should not be considered from the angle of supremacy of one organ over the other.
That will be an entirely erroneous approach.
The Constitution reposes certain power in the Governor even under Article 235.
He is the authority to pass the order of removal, albeit, on the recommendation of the High Court.
That is the constitution al scheme.
The Governor, however, cannot pass any order, as has been done in this case, without reference to the High Court and except on its recommendation.
Solution must be found in harmony and not in cold war between the two organs.
The Governor could not have passed any order on the advice of the Public Service Commission in this case.
The advice Should be no other authority than the High Court in the matter of judicial officers.
This is the plain implication of Article 235.
Article 320 (3) (c) is entirely out of place so far as the High Court is concerned dealing with judicial officers.
To give any other interpretation to Article 320(3)(c) will be to defeat the supreme object underlying Article 235 of the Constitution specially intend ed for protection of the judicial officers and necessarily the independence of the subordinate judiciary.
It is abso lutely clear that the Governor cannot consult the Public Service Commission in the case of judicial officers and accept its advice and act according to it.
There is no room for any outside body between the Governor and the High Court.
The Governor in relying upon the advice of the Public Service Commission in this case took alien considerations into account and acted erroneously in passing the order of reinstatement based on the same.
The order of the Governor is, therefore, constitutionally invalid and is liable to be quashed and we order accordingly.
That brings us to the third submission of the appellants.
At one stage we thought that we would not consider this submission since this may arise at the time of payment of salary for the period of suspension as the officer has already retired.
We, however, find that even in the writ application there was a prayer for a mandamus to the Govern ment to disburse the officer 's full salary during the entire period of suspension upto the date of his retirement.
The learned counsel for the officer has also argued the matter fully before us.
We would, therefore, deal with the same.
Since the order of reinstatement of August 24, 1968, is quashed the officer is reverted to the status quo ante as on the date prior to the aforesaid order.
It is undisputed that he had been under suspension during that period.
It is submitted that on the passing of the order of reinstatement the order of suspension merged in that order and since there is no other order of suspension passed thereafter either by the High Court or by the Governor the officer on his compulsory retirement will be entitled to his full salary as an officer who had already ceased to be under suspension.
It is submitted that the principle of merger which is generally invoked when an order of dismissal is passed against an officer under suspension should apply also in the case of reinstatement.
438 We are, however, unable to accept this submission.
The character of the order of dismissal and that of the order of reinstatement in a departmental enquiry is absolutely dif ferent.
Suspension is a step to dismissal and may culminate in dismissal.
When an officer is suspended no work is taken from him but he does not cease to be in service.
When he is dismissed the link with the service is snapped and naturally the order of suspension merges in dismissal.
Nothing re mains to be done about his suspension.
When, however, a suspended officer is reinstated an order which is different in content and quality from that of suspension takes effect.
The suspended officer, on reinstatement, goes back to serv ice.
A further order may have to be passed by the authority as to in what manner the period of suspension will be treat ed.
That will be, therefore, a distinct and separate pro ceeding apart from the earlier departmental proceeding in which the order of reinstatement was passed.
If, therefore, the order of reinstatement is set aside the officer is bound to revert to his immediate anterior status of suspension.
There may be certain service rules to take care of this position but even otherwise the position will be automatic and the order of reinstatement being quashed the position of the officer, in absence of any order in that behalf from the court, will be what he was earlier, viz., that of a suspended officer.
In this view of the matter, since the order of reinstatement stands quashed and the officer had been under suspension in a departmental proceeding awaiting orders of the Governor for removal, on the recommendation of the High Court, he would have the status of a suspended officer on the date of his compulsory retirement.
The officer in this case was, there fore, compulsorily retired while he was under suspension from service.
It is not for us to decide whether being in such a position he would be entitled to his full salary for the entire period of suspension and we refrain from expressing any opinion on that aspect of the matter.
It should, however, be observed that since the officer has already retired it will not be necessary for the Governor to consider the recommendation of the High Court for the pur pose of removal of the officer.
We, however, do not fail to see that the Government, on its own.
was inclined to accept the recommendation of the High Court at the initial stage.
In the result the appeals are dismissed and the order of reinstatement of the officer passed by the Governor stands quashed for the reasons given in this judgment.
There will be no order as to costs.
| IN-Abs | The appellant was a member of the Subordinate Judicial Service of the State.
On receipt of certain allegations the High Court made a preliminary enquiry and the State Govern ment suspended him from service.
After the final enquiry the High Court recommended to the State Government to remove him from service.
The State Public Service Commission, on reference by the Government, stated that he should be exon erated.
On the basis of this recommendation, the Governor ordered the appellant 's reinstatement; but the High Court did not give him a posting on the view that the order of the Governor was illegal because of consultation with the Serv ice Commission and in accepting its advice, disregarding the High Court 's own recommendation.
The High Court, therefore, suggested to the Government to review its order of rein statement, but the Government did not take any action.
The appellant then filed a writ petition in the High Court challenging its refusal to give him a posting.
In the mean time the Governor compulsorily retired the appellant from service on his attaining 55 years of age.
Dismissing the writ petition the High Court held that the Governor 's order ;reinstating the appellant was void and non est because: (i) it was not passed in accordance with the provisions of article 235 of the Constitution and (ii) the Government could not have consulted the Public Service Commission which was an extraneous body.
In appeal to this Court it was contended for the appellant that (i) the Governor was not bound by the recom mendation of the High Court; (ii) the Governor was entitled under article 320(3)(c) to consult the Public Service Commis sion on the question arising out of a disciplinary proceed ing; and (iii) since the appellant was later compulsorily retired, the order of suspension merged with the order of reinstatement, and since no other order of suspension was passed thereafter, he was entitled to full salary upto the date of his compulsory retirement.
Dismissing the appeal, HELD: (1)(a) Articles 233 to 237 relating to the subor dinate judiciary are specially carved out and placed in the safe niche of a separate chapter.
For the first time in the country 's history appeared in the Constitution of India the concept of control over subordinate courts to vest in the High Courts.
But the appointing authority of a Subordinate Judge under article 235 as well as under the Appointment Rules, is the Governor.
The High Court, in making its recommenda tion to the Governor for passing the order of removal, had rightly conceded the authority of the Governor.
Ordinarily and as a matter of graceful routine, recommendations of the High Court are and should always be accepted by the Gover nor.
This is ordinarily so and should be in practice the rule as a matter of healthy convention.
But it will not be correct always to insist that the Governor has no authority even under extraordinary circumstances to send the matter for reconsideration.
(b) The quality of exclusive control of the High Court is not whittled down by the constitutional device of all orders being issued in the name of the Governor as the head of the State administration.
When, therefore.
the High Court, exercising disciplinary control, over the subordinate judiciary found, after a proper enquiry, that a certain officer was guilty of gross misconduct and was unworthy to be retained in judicial service and, therefore, recommended to the Governor his removal or dismissal, it is difficult to conceive how and under what circumstances such a recommenda tion could be rejected by the Governor acting with the aid and advice of ministers or, of one of them.
[434 G H] The State of West Bengal vs Nripendra Nath Bagchi ; ; and State of Haryana vs Inder Prakash Anand H.C.S., and others [1976] Supp.
S.C.R. 603.
referred to.
(c) Whenever in an extraordinary ease, the Governor feels, for certain reasons, that he is unable to accept the High Court 's recommendations, these reasons will be communicated to the High Court to enable it to reconsider the matter.
There is no warrant for introducing another extraneous body between the Governor and the High Court in the matter of disposal of a disciplinary proceeding against a judicial officer.
The Governor could not have passed any order on the advice of the Public Service Commission in this case.
The advice should be of no other authority than the High Court in the matter of judicial officers.
This is the plain impli cation of Article 235.
There is no room for any outside body between the Governor and the High Court.
In relying upon the advice of the Commission the Governor took alien considerations into account and acted erroneously in passing the order of reinstatement.
[435 B, E F] Consultation with the Public Service Commission after receipt of the recommendation of the High Court for removal of the officer was not warranted by the provisions of article 235.
Under the Constitution the High Court is the sole custodian over the discipline of judicial officers.
[435 D] (2) (a) Just as the High Court staff are not serving under the Government of the State, the judicial officers are also not under the State Government.
They hold posts in connection with the affairs of the State but are entirely under the jurisdiction of the High Court for the purpose of control and discipline.
article 320(3)(c) is entirely out of place so far as the High Court is concerned dealing with judicial officers.
D] Pradvat Kumar Bose vs The Hon 'ble the Chief Justice of Calcutta High Court ; and The High Court, Calcutta vs Amal Kumar Roy [1963]1 SCR 437 distinguished and held inapplicable.
(b) The Governor cannot pass any order without reference to the High Court and except on its recommendation.
The matter should not be considered from the angle of supremacy between one organ over the other.
Solution must be found in harmony and not in cold war between the two organs.
[437 A B] (3) The character of the order of dismissal and that of the order of reinstatement in a departmental enquiry is absolutely different.
Suspension is a step to dismissal and may culminate in dismissal.
When an officer is suspended no work is taken from him but he does not cease to be in serv ice.
When he is dismissed the link with the service is snapped and naturally the order of suspension merges in dismissal.
When, however, a suspended officer is reinstated an order which is different in content and quality from that of suspension takes effect.
The suspended officer, on rein statement, goes back to service.
A further order may have to be passed by the authority as to in what manner the period of suspension will be treated.
That will be there fore a distinct and separate proceeding apart from the earlier departmental proceeding in which the order of rein statement was passed.
If the order of reinstatement is set aside the officer is bound to revert to his immediate ante rior status of suspension in the absence of any order in that behalf from the Court.
[438 A C] In the instant case since the order of reinstatement stood quashed, the appellant would have the status of a suspended officer on the date of his compulsory retirement.
It is not for this Court to say whether he would be entitled to his 427 full salary while on suspension.
Since the officer had already retired, it is not necessary for the Governor to consider the recommendation of the High Court for the pur pose of his removal.
[438 E F]
|
Appeal No. 1367 of 1968.
(Appeal by Special Leave from the Judgment and Order dated 25 3 1965 of the Kerala High Court in A.S. No. 487 of 1961).
S.V. Gupte and K.M.K. Nair, for the appellant.
Mrs. Shyamla Pappu, B.B. Sawhney, Raju Ramachandran and Girish Chandra, for the respondent.
420 The Judgment of the Court was delivered by KHANNA, J.
This appeal by special leave by the State of Kerala is against the Full Bench decision of the Kerala High Court affirming on appeal the judgment and decree of the trial court whereby the suit for recovery of Rs. 28,208.70 filed by the appellant against the General Manager, Southern Railway respondent was dismissed.
The appellant booked 2,000 tons of rice in 21,310 bags from Bareilli railway station for being transported to Trivandrum central railway station as per 10 railway re ceipts during the period from June 25 to July 5, 1950.
According to the case of the appellant, the rice delivered at Trivandrum central railway station was short by 79,378 lbs.
It was also averred that the rice in 327 bags was found to be damaged.
The appellants accordingly claimed Rs. 28,208.70 as damages from the respondent.
The respondent resisted the claim of the appellant, inter alia, on the ground that the suit was not maintainable as the Union of India had not been impleaded as a defendant to the suit and that a suit by a State against the Union of India could be instituted only in the Supreme Court of India under article 131 of the Constitution.
It is not necessary to set out the other pleas of the respondent.
As many as nine issues were framed by the trial court.
Two of the issues, namely, issue Nos. 1 and 3, were treated as prelimi nary issues and arguments were heard on those issues.
Issue Nos. 1 and 3 read as under: "1.
Is the suit maintainable ? Can a decree be passed against the defendant as now impleaded ? 2.
Will the suit lie in this Court ? Is the suit barred by the provisions of the Constitution of India ?" On issue No. 3 it was held by the trial court that since the Union of India had not been made a party to the suit, clause (a) of article 31 of the Constitution had no application.
The suit was accordingly held to be not liable to be dis missed on that ground.
On issue No. 1 the trial court held that the Union of India was a necessary party to the suit and as the Union of India had not been impleaded as a party, the suit was incompetent.
As a result of its find ings on issue No. 1 the trial court dismissed the suit.
The decision of the trial court on issue No. 1 was affirmed in appeal by the High Court.
An application was also filed at the hearing of the appeal before the High Court for implead ing the Union of India as a party to the suit.
The High Court rejected that application on the ground that no useful purpose would be served by allowing that application.
It was observed that if the application was allowed and the Union of India was made a party, the suit would have to be dismissed as under article 131(a) of the Constitution a suit by one State against the Union of India could only lie in the Supreme Court.
In the result, the High Court dismissed the appeal filed by the appellant.
In appeal before us Mr. Gupte on behalf of the appel lant has invited our attention to the definition of "railway administration" in 421 section 3(6) of the Indian Railways Act, 1890 (Act 9 of 1890) (hereinafter referred to as the Act) which reads as under: "railway administration or 'administration ' in the case of a railway administered by the Government means the Manager of the railway and includes the Government and, in the case of a railway adminis tered by a railway company, means the railway company," He has further referred to sections 72, 74, 76 and 80 of the Act.
According to section 72, the responsibility of a railway administration for the loss, destruction or dete rioration of animals or goods delivered to the administra tion to be carried by railway shall, subject to other provi sions of the Act, be that of a bailee under sections 151, 152 and 161 of the .
Section 74 absolves the railway administration of any responsibility for the loss, destruction or deterioration of any luggage belonging to or in charge of a passenger unless a railway servant has hooked and given a receipt therefor.
Section 76 deals with burden of proof in suits for compensation against a railway administration for any delay, loss, destruction, deterioration or damage.
Section 80 at the relevant time read as under: "80.
Suits for compensation for injury to throughbooked traffic.
Notwithstanding anything in any agreement purporting to limit the liability of a railway administration with respect to traffic while on the railway of another administration, a suit for compensation for loss of the life of, or personal injury to, a passenger, or for loss, de struction or deterioration of animals or goods where the passenger was or the animals or goods were booked through over the railway of two or more railway administrations, may be brought either against the railway administration from which the passenger obtained his pass or purchased his tick et, or to which the animals or goods were deliv ered by the consignor thereof, as the case may be, or against the railway administration on whose railway the loss, injury, destruction or deteriora tion occurred.
" It is urged by Mr. Gupte that as, according to section 3 (6) of the Act, railway administration means a Manager of the railway and as some of the sections 72 to 80 make ex press reference to suits against railway administration, a suit against the General Manager of the railway concerned is competent.
The trial court and the High Court, according to the learned counsel, were in error in holding that the suit was not maintainable because of the Union of India having not been impleaded as a party to the suit.
The above argument has the quality of being ingenious, attractive and not lacking in apparent plausibility.
A closer examination, however, reveals its infirmity and after giving the matter our earnest 422 consideration, we find it difficult to accept it.
The Act deals with and specifies, inter alia, the rights and liabil ities which arise in case the goods consigned to the rail ways are not delivered to the consignee.
It likewise deals with short delivery of those goods as well as the cases in which the goods get damaged during transit.
Most of the railways in India are owned by the Union of India, but there were some minor railways which till recently were owned by railway companies.
The definition of "railway administra tion" as given in section 3(6) is comprehensive and deals with both types of railways.
i.e., railways administered by the Government as well as those administered by railway companies.
The words "railway administration" have been used in sections 72 to 80 because those sections pertain to rights and liabilities of the parties in both types of cases, i.e., cases where liability is incurred by Government administered railways as well as cases in which liability is incurred by railway administered by railway company.
The Act, however, does not deal with, the question as to who should be impleaded as a defendant when a suit is brought against the railway.
administration.
This is essentially a matter relating to the frame of suits, and is dealt with by the Code of Civil Procedure.
According to section 79 of the Code, in a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be (a) in the case of a suit by or against the Central Government, the Union of India, and (b) in the case of a suit by or against a State Government, the State.
This section is in accordance with article 300 of the Constitu tion, according to which the Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State.
It is not disputed that Southern Railway is owned by the Union of India.
As such, a suit dealing with the alleged liabili ty of that railway should have been brought against the Union of India.
Section 80 of the Code of Civil Procedure provides inter alia that no suit shall be instituted against the Government until the expiration of two months next after the notice in writing has been delivered to or left at the office of, in the case of a suit against the Central Government where it relates to a railway, the General Manager of that railway.
The above provision clearly contemplates institution of a suit against the Central Government even though it relates to a railway.
A suit against the Central Government in terms of section 79 of the Code would necessarily have to be brought against the Union of India.
The Act no doubt makes provision for the liability of the railway administration, but from that it does not follow that the railway administration is a separate legal entity having a juristic personality capable of being sued as such.
The definition of "railway administration" in section 3(6) of the Act that it would mean the Manager of the railway does not warrant the inference that a suit against the railway administration can be brought against the Manager of that railway.
We have to bear in mind the distinction between the owner of the railway, namely, the Union of India, and the authority which actually runs the railway and to whom duties have been assigned for 423 this purpose by the Act.
The manager of the railway under the Act is such authority.
When, however, liability is sought to be fastened on the railway administration and a suit is brought against it on that account, the suit, in our opinion, would have to be brought against the Union of India because it is the Union who owns the railway and who would have the funds to satisfy the claim in case decree is awarded in such suit.
The scheme of the Act, even though there are now hardly any company owned railways in India, is to treat different railway administrations as different units, although all of them may be owned by the Union of India.
Neither the defi nition of the "railway administration" in section 3(6) of the Act nor the language of sections 72 to 80 of the Act lends support for the view that the railway administrations are to be treated as separate personalities, entities or separate juridical persons as seems to have been observed in the case of Dominion India vs Firm Museram Kishunprasad(1).
Yet the treatment of the different railway administrations as different units for the purpose of fastening liability on the Union of India has got significance and relevance.
Viewed in that light, it would follow that the definition of the "railway administration" given in section 3(6) of the Act does not make the railway administration or its General Manager a legal entity or a corporate body or a juridical person to represent the railway administration as such in suits.
The claim in a suit for recovery of money under the Act against the different railway administrations owned by the Central Government in accordance with the general prin ciple of law contained in Order 1 Rule 3 of the Code of Civil Procedure has got to be made against the person against whom the right to relief is alleged to exist.
The significance of creating the various railway administra tions as separate units, even though they may be State owned, is to be found in section 80 of the Act, and section 80 of the Code of Civil Procedure.
For claiming a decree against the Union of India under the Act the plain tiff has got to specify the railway administration or admin istrations on account of which liability is sought to be fastened upon the Union of India, as contemplated by section 80 of the Act.
The institution of the suit has to be preced ed by service of notice under section 77 of the Act and section 80 of the Code to the appropriate authority which is the General Manager of the railway concerned.
The require ment of clause (b) of section 80 of the Code that a notice in the case of a suit against the Central Government where it relates to a railway must go to the General Manager of the concerned railway or railways is also based upon the assumption that it is primarily the liability of the railway administration of the said railway or railways to satisfy the claim of the suitor in accordance with section 80 of the Act.
The demarcation of the different State owned railways as distinct units for administrative and fiscal purposes cannot have the effect of conferring the status of juridical person upon the respective railway administrations or their General Managers for the purpose of civil suits.
(1) A.I.R. (1950) Nagpur 85.
11 1104SCI/76 424 The Bombay High Court in two cases, Sukhanand Shamlal vs Oud, h & Rohilkhand Railway(1) and Hirachand Succaram Gandhy & Ors.
G.I.P. Railway Co.(2) has held that a suit against a State railway should be brought against the Government.
Similar view was pressed by Patna High Court in Shaikh Elahi Bakhsh vs
E.I. Railway, Administration(3) and a Full Bench of Assam High Court in the case Chandra Mohan Saha & ,Anr.
vs Union of India & Anr.(4) The observations of a Division Bench of the Madras High Court in the case of P.R. Nara yanaswami lyer & Ors.
vs Union of India(5) also lend support to the above view.
It may be stated that the reasoning employed in the eases mentioned above was different and not identical, but whatever might be the nature of that reason ing the fact remains that the learned Judges deciding those cases were all at one on the point that such a suit should be brought against the Government, which means in the present case the Union of India.
Any contrary view would be against the well established practice and procedure of law, as evidenced by various decisions of the High Courts, and as such, must be rejected.
Submission has also been made on behalf of the appellant that the High Court should have allowed the appellant to amend the plaint.
We agree with the High Court that the present is not an appropriate case in which permission to amend the plaint should have been granted.
The appeal consequently fails and is dismissed but in the circumstances without costs.
M R. Appeal dismissed.
(1) A.I.R. 1924 Bombay 306.
(2) A.I.R. 1928 Bombay 421.
(3) A I.R. 1931 Patna 326.
(4) (5) A.I.R. 1960 Madras 58.
| IN-Abs | The appellant booked rice for being transported by train, from Bareilly railway station to Trivandrum railway station.
On delivery, the rice was found to be damaged and short in quantity.
The appellant claimed damages from the respondent, who resisted the claim on the grounds that the suit was not maintainable as the Union of India had not been impleaded as a defendant, and that a suit by a State against the Union of India could only be instituted in the Supreme Court under article 131 of the Constitution.
The suit was dismissed by the Trial Court, and an appeal from it was dismissed by the High Court.
Dismissing the appeal, the Court, HELD: The Southern Railway is owned by the Union of India.
As such, a suit dealing with the alleged liability of that railway should have been brought against the Union of India.
Section 80 of the C.P.C. contemplates institution of a suit against the Central Government even though it relates to a railway.
[422 E FI] Sukhanand Shamlal vs Oudh Rohilkhand Railway AIR 1924, Born.
306; Hirachand Succaram Gandhy & Ors.
G.I.P. Rail way Co., AIR 1928 Born.
421; Shaikh Elahi Bakhsh vs
E.I. Railway Administration, AIR 1941 Patna 326: Chandra Mohan Saha & Ant.
vs Union of India & Anr.
and P.R. Narayanaswami lyer & Ors.
vs Union of India AIR 1960 Madras 58, Approved.
(2) Neither the definition of the "railway administra tion" in Section 3(6) of the Indian Railways Act, nor the language of sections 72 to 80 of the Act, lends support for the view that the railway administrations are to be treated as separate personalities, entries or separate juridical persons.
[423 B C] Dominion of India vs Firm Musaram Kishunprasad AIR 1950 Nagpur 85.
overruled.
(3) The demarcation of the different State owned rail ways as distinct units for administrative and fiscal pur poses cannot have the effect of conferring the status of juridical person upon the respective railway administrations or their General Managers for the purpose of civil suits.
|
Appeal No. 874 of 1975.
Appeal by Special Leave from the Judgment and Order dated 5 3 75 of the Rajasthan High Court in D.B. Civil Appeal No. 18 of 1975.
M.C. Bhandare, S.M. Jain, S.K. Jain and Mohd. Fasiuddin, for the Appellant.
P.C. Bhartari, for Respondent No. 3.
K.J. John, for Respondent No. 4.
The Judgment of the Court was delivered by GOSWAMI, J.
The appellant and the respondents 3 and 4 were the former existing stage carriage operators of Jaipur Sainthal route which was nationalised on January 25, 1973.
All of them applied for the grant of non temporary stage carriage permits of Jaipur Padampura route as alterna tive route permits.
The Regional Transport Authority, Jaipur (briefly the RTA) by it 's order of July 22, 1974, granted nontemporary permits to the appellant and respondent No. 4 and rejected the application of respondent No. 3.
That led to an appeal to the State Transport AppeLlate Tribunal at Jaipur, Rajasthan, by respondent 460 No. 3.
The notice of appeal was served upon the appellant but since he did not appear the appeal was heard ex parte and by its order dated December 17, 1974, the State Trans port Appellate Tribunal set aside the order of the RTA and granted the permit in favour of respondent No. 3.
The appellant filed a writ application under Article 226 of the Constitution before the Rajasthan High Court and the learned single Judge by a rather long speaking order dismissed the same summarily.
A further appeal by the appellant to the Division Bench met with the same fate.
The High Court also refused to grant certificate to appeal to this Court.
Hence this appeal by special leave.
Mr. Bhandare, the learned counsel on behalf of the appellant, submits that the order of the State Transport Appellate Tribunal (briefly the Tribunal) is invalid inas much as the appeal was heard in the absence of a proper notice of appeal as required under the law.
He draws our attention to rule 108(c) of the Rajasthan Motor Vehicles Rules.
1951, which reads as follows : "Upon receipt of an appeal preferred in accordance with sub rule (b) the Appellate Tribunal may appoint a date, time and place for hearing of the Appeal, giving the State Transport Authority, or the Regional Transport Authority, as the case may be, and the appellant.
not less than thirty days notice thereof".
Although the above rule does not contain any provision for service of notice on the respondent, it is, however, implic it that a notice similar to one intended under the rule for service on the appellant must also be served on the respondent.
Mr. Bhandare could not dispute the factual service of notice on the appellant in view of the Tribunal 's finding.
He however, submits that the notice which was served on the appellant did not recite the place for the hearing of the appeal although the date and time were noted therein.
It is true that the Tribunal could not, in law, hear the appeal without intimating the respondent.
about the date, time and place for hearing of the appeal but since the appellant had received the notice from the Tribunal indicat ing the date and time for hearing of the appeal, the omis sion in the notice to describe the place where the appeal is to be heard is not fatal enough to make the appeal proceed ing invalid before the Tribunal.
The appellant, admittedly, is a resident of Jaipur where also the office of the Tribu nal is situated.
He was also a stage carriage permit holder and not a stranger to the office of the Transport Authori ties.
Besides, although the notice of the appeal fixed the date of hearing on October 8, 1974, the appeal was adjourned on that day to October 21, 1974 and again to November 12, 1974 and it was only on December 12, 1974 that the final hearing of the appeal took place.
It is, therefore, clear that the appellant was duly notified about the hearing of the appeal and in view of the fact that he did not make any effort to be present during this entire period, when the appeal was pending, he could not be allowed to take advan tage of the mere omission of the place of hearing of the appeal in the notice.
Besides, the RTA was present as provided for under section 64(1) of the (briefly the Act) before the Tribunal to defend its own order.
The submission of the appellant is, therefore, of no avail.
461 Mr. Bhandare next submits that the Tribunal failed to comply with section 47 of the Act and did not at all consid er the relevant matters (a) to (f) provided therein.
It is well settled that in considering an application for a stage carriage permit the RTA shall have regard to the matters described in section 47.
Before we go to consider about the submission of the learned counsel with reference to the order of the Tribunal it is manifest, on the face of the order of the RTA, that Authority, even at the first in stance, did not make any reference to the relevant consider ations under section 47 of the Act.
The only reason given by the RTA in rejecting the application of respondent No. 3 is that "there is no other vacancy".
There is nothing to show that the case of respondent No. 3 was at all considered by the RTA on merits.
The Tribunal, on the other hand, has considered various aspects of the matter although without a reference to section 47 as such.
For example, the condition of the vehicles of the two parties was duly considered by the Tribunal.
The fact that the respondent 3 had a later model of vehicle being 1965 model whereas the appellant had only a 1962 model vehicle tilted the balance in favour of the respondent No. 3.
This aspect can well arise under clauses (a) and (b) of section 47.
We are unable to say that the relevant considerations under section 47, on the facts and circumstances of the grant of the particular permit, were not kept in view by the Tribunal in considering the appeal.
The Tribunal and the learned single Judge duly considered the whole matter and the Division Bench was justified in summarily rejecting the special appeal.
The second submission of the learned counsel also fails.
In the result the appeal is dismissed but we will make no order as to costs.
P.H.P. Appeal dismissed.
| IN-Abs | The appellant and respondents No. 3 and 4 applied for the grant of nontemporary stage carriage permits.
The Regional Transport Authority granted the permits to the appellant and respondent No. 4 and rejected the application of respondent No. 3.
Respondent No. 3 filed an appeal to the State Transport Appellate Tribunal.
The notice of appeal was served upon the appellant where the date and time were mentioned but the place was not mentioned.
Since the appellant did not appear the appeal was heard ex parte.
The Tribunal set aside the order of the Transport Authority and granted the permit in favour of respondent No. 3.
A writ petition filed by the appellant against the order of the Tribunal was dismissed summarily by the learned Single Judge by a long speaking order.
A Division Bench dismissed the appeal filed by the appellant.
In an appeal by Special Leave the appellant contended: 1.
The notice as required by rule 108(c) of the Rajasthan Motor Vehicles Rules, 1951 served on the appellant was not proper notice since it did not mention the place of the hearing of the appeal.
The Tribunal did not consider the relevant matters as mentioned in section 47(a) to (f).
HELD: 1.
The omission to mention the place is not fatal.
The appellant is a resident of Jaipur where also the office of the Tribunal is situated.
He was a Stage Carriage permit holder and not a stranger to the Transport authorities.
In fact, hearing of the appeal was adjourned twice even after the date mentioned in the notice.
[460 F] 2.
The Regional Transport Authority did not make any reference to the relevant considerations under section 47 of the Act.
The Tribunal on the other hand has considered various aspects of the matter as required by section 47 although without a reference to that section.
The Tribunal and the learned Single Judge duly considered the whole matter and the Division Bench was justified in summarily rejecting the special appeal.
[461 B D]
|
Appeal No. 696 of 1976.
(Appeal by Special Leave from the Judgment and Order dated 16 4 1976 of the Madhya Pradesh High Court in M.P. No. 697/72).
A.K. Sen, S.S. Khanduja and S.K. Jain for the Appellant.
D.N. Mukherjee and C.L. Sahu, for Respondent No. 4.
Ram Panjwani, H.S. Parihar and 1.
N. Shroff, for Respondents 1 3.
The Judgment of the Court was delivered by CHANDJACHUD, J.
The management of Primary and Middle Schools was taken over by the Madhya Pradesh Government from the Local Authorities under the Madhya Pradesh Local Author ities School Teachers (Absorption in Government Service) Act, 1963.
In 1968, the State Government decided to take over the management of Higher Secondary Schools also.
One such school was Kanya Naween Vidya Bhawan, Gadarwara, which was run by a Society registered trader the Societies Regis tration Act.
The appellant, Smt.
Juthika Bhattacharya.
who was a B.A.B.T., was the Head Mistress of that school.
Her scale of pay was Rs. 275 700 and at the relevant time she was drawing a monthly salary of Rs. 500.
On February 23, 1970 the Divisional Superintendent of Education, Narmada Division, Hoshangabad, wrote to the Society that the management of the school run by it would be taken over by the Government if there was no improvement in its financial position.
On June 7, 1971 he informed the Society that the Government had issued directions for taking over the management of the school.
In pursuance of this letter, the management of the school, along with its assets, was taken over by the Government on June 18,1971.
The Government assured the Society that the staff of the school will be absorbed in the new set up.
479 The case of the appellant is that she was entitled to be appointed as a Principal since she was holding a corre sponding post in a substantive capacity on the date of her absorption viz., June 18, 1971.
But the Divisional Superin tendent of Education acting under the directions of the State Government, and the Director of Public Instructions directed that the appellant should be absorbed as an Upper Division Teacher in the time scale of Rs. 150 290.
Accord ing to the respondents, the appellant did not hold a post graduate degree and no person could be appointed to the post of a Principal unless he or she held a post graduate degree and possessed the stated length of experience.
Appellant having had the requisite, experience, the only question for decision in this appeal is whether she is entitled to be appointed as a Principal notwithstanding the fact that she.
does not hold a postgraduate degree.
Relying upon a Memorandum dated December 6, 1972 issued by the Government of Madhya Pradesh in its Department of Education, the appellant contended that even assuming that she could not be appointed as a Principal for the alleged reason that she did not hold a post graduate degree, she could obtain that degree any time within 3 years from the date of her absorption and therefore the order passed by the, State Government, before the expiry of that period, appointing her on a lower post is illegal.
There is no substance in this argument because the Memorandum of Decem ber 6, 1972 applies, in terms, only to the staff of the Higher Secondary, Schools run by Janpad Sabhas and Munici palities and not to the staff of schools run by private Societies like the school of, which the appellant, on the date of absorption, was the Head Mistress.
Paragraph 4(b) of the aforesaid Memorandum undoubtedly affords the facili ty that where the qualification for a post is post gradua tion, the post graduate degree may be obtained within 3 years from the date of absorption.
But in view of the express statement in the Memorandum that it will be "ap plicable only to previous teachers of Janpad Sabhas and municipalities", the appellant cannot claim the benefit of the ' particular facility.
Any lurking doubt in this behalf stands resolved by the further statement in the Memorandum that except in regard to schools run by Janpad Sabhas and Municipalities, the Rules dated December 21, 1967 will continue to apply to nonGovernment schools without the amendments introduced by the Memorandum.
The Memorandum dated December 21, 1967, the Rules con tained in which remain unaffected by the amendments intro duced by the Memorandum dated December 6, 1972 provides by paragraph 3(b) that for absorption in the post of the Prin cipal of a Higher Secondary School, the person concerned "should" possess the post graduate degree and should also possess experience of a certain number of years.
The appel lant did have the requisite experience but the question is whether paragraph 3(b) of the Memorandum contains but a directory rule as it uses the word 'should ' and secondly, whether the appellant can be said to possess a 'post gradu ate degree ' since she holds the qualification of B.A.B.T.
It is urged on the first limb of this argument that as contrasted with the Memorandum of December 21, 1967 which uses the word "should", 480 the one dated December 6, 1972 Says that the.
person concerned "must" have obtained a post graduate degree and therefore the former rule is directory in character.
We are unable to agree.
The mere use of the word "should" does not mean necessarily that the compliance with the rule is dis cretionary.
It is well settled that whether a provision is directory or mandatory depends on its object and purpose, not merely on the use of any particular word or phrase.
The object of the Memorandum is to prescribe qualifications for the staff of non Government schools and Local Body schools taken over by the State Government.
In that context, the use of the word "should" cannot justify the construction that for absorption in the post of a Principal of a Higher Secondary School, the incumbent may or may not possess a post graduate degree.
In a memorandum containing a set of rules prescribing qualifications for various posts, it is meaningless to provide that the incumbent of a certain post may or may not possess a certain qualification, if the possession of the particular qualification is considered to be a matter of no importance or consequence.
Paragraph 3(b) consists of a complex provision, one part of which refers to the requirement of a post graduate degree and the other to the need to.
possess a certain amount of experience.
Both the clauses of a single sentence are governed by the verb "should".
If the requirement as to the possession of a post graduate degree is to be directory in character, the same consideration must apply equally to the requirement of experience, with the result that for eligibility for the post of a Principal, it would neither be necessary to possess any particular educational qualification nor any particular experience of teaching.
The appointment then to the highest post in the school would depend upon the sweet will of the appointing authority, unguided alike in the matter of minimum qualification and minimum experience.
The word "should" occurring in paragraph 3(b) of the Memorandum of 1967 must therefor be understood in a mandatory sense, so that no person who does not hold a post graduate degree and possess the requisite experience would be eligible for being appointed as the Principal of a higher secondary school.
As regards the second limb of the argument that since the appellant holds the qualification of B.A.B.T., she ought to be considered as holding a "post graduate degree", regard must again be had to the context in which the particular expression occurs and the purpose of the prescription.
It is not inconceivable that the expression "post graduate degree" may in a broad and general sense mean in a given context any degree obtained after graduation and which a graduate alone can obtain.
But that is not the sense in which the Memorandum uses the particular expression.
By "post graduate degree" is meant a Master 's degree like the M.A. or M.Sc.
and not a Bachelor 's degree like the B.T.
In other words, the expression connotes the successful comple tion of a course of studies at a higher level in any spe ciality, after the acquisition of a basic qualification at the graduate level.
The B.T. course of studies, we are informed, is open only to graduates and in dictionary manner of speaking, the degree of "Bachelor of Teaching" may be said to be a "post" graduate degree in the sense that the degree is obtainable only "after" graduation.
That is the sense in which the word "post" is used in expressions like "post nuptial", "post prandial", 481 "post operative", "post mortem" and so forth.
In these expressions, "post" means simply "after", the emphasis being on the happening of an event after a certain point of time, But the expression "postgraduate degree" has acquired in the educational world a special significance, a technical content.
A Bachelor 's degree like the B.T., or the LL.B is not considered to be a post graduate degree even though those degrees can be taken only after graduation.
In the refined and elegant world of education, it is the holder of a Master 's degree like the M.Ed.
or the LL.M. who earns ,recognition as the holder of a post graduate de gree.
That is the sense in which the expression is used in the Memorandum.
Mr. Sen says that in some foreign universi ties even a Bachelor 's degree, obtainable only after gradua tion, is considered as a post graduate qualification.
We are concerned with the interpretation of an indigenous instrument and must have regard for local parlance and understanding.
Such awareness and understanding compel the construction for which we have indicated our preference.
Indeed, everyone concerned understood the rule in the same sense as is evident from the permission sought by the appel lant herself to appear for the M.A. examination.
She asked for that permission in order to qualify for the Principal 's post.
The appellant ' made a serious grievance that she was discriminated against in comparison with several others who have been appointed as principals in higher secondary schools run by the Government.
On the record is a statement (Annexure P VIII) which does show that in schools which were from their inception run by the Government, several teachers were appointed as Principals though they did not hold the Master 's degree.
Mr. Panjwani appearing on behalf of the state Government has given a valid explanation for this differentiation.
Speaking generally, in schools which were always under Government control, a teacher could aspire to become a Principal only after a long period of service.
Most of the 19 teachers whose names appear in Annexure P VIII had served for about 20 years before being appointed as principals.
On the other hand, private schools like the one in which the appellant was working as a Head Mistress or a principal did not follow any such convention and appoint ments to the post of the head of the school were made there in directly and straightway without insistence on any worth while experience of teaching.
The appellant herself was appointed to the post of a Head Mistress directly in the year 1958.
The state Government had therefore a valid reason for prescribing comparatively stringent qualifica tions for the post of Principal in schools taken over by it from private institutions.
It may be added that in its own schools, the Government appointed persons holding merely the qualification of B.A.B.T., to the post of Principal by reason of the long and valuable experience gained by them as teachers and not on the supposition that they held a post graduate degree.
Reliance was placed by the appellant 's counsel on "Regulations of the Board of Secondary Education, Madhya Pradesh", in support of his submission that the qualifica tions of the teaching staff in any institution have to be the same as prescribed for the corresponding staff in Gov ernment institutions.
But these Regulations have no rele vance in the present case.
They were framed under section 28(4) of the 482 Madhya Pradesh Madhyamik Shiksha Adhiniyam, 1965.
Regula tion 61 and the allied regulations on which reliance is placed show that they were framed in order to prescribe conditions with which an educational institution had to comply before seeking recognition of the Board of Second ary Education.
The various conditions prescribed by the Regulations do not constitute conditions of service and can create no rights and obligations, contractual or statutory, as between a school and its employees whether the school is a Government institution non Government institution.
Before concluding we would like to say that the State Government ought to consider the request which was made by the appellant long since for permission to appear for the final M.A. Examination.
She has already passed Part I of that examination with Political Science as her subject but she was refused permission to complete.
the course on the ground that she had not yet completed one year 's service under the State Government.
That objection.
can no longer hold good.
We are confident that the proceedings taken by the appellant for vindicating her rights will not be allowed to stand in her way if and when she is found fit and quali fied for further ' promotion in accordance with the ' rele vant rules.
For these reasons we confirm the judgment of the High Court and dismiss the appeal but there will be no order as to costs.
P.B.R. Appeal dismissed.
| IN-Abs | Paragraph 3(b) of a memorandum dated December 21, 1967 issued by the State Government provides that for absorption in the post of Principal of a Higher Secondary School, the person concerned "should" possess a post graduate degree and should also possess the prescribed experience.
An amendment introduced by the memorandum dated December 6, 1972 says that wherever the qualification for a post is post graduate, the person concerned will have to obtain this degree within three years of absorption.
But this amendment was made applicable only to persons who had been working in schools run by Janpad Sabhas and Municipal Committees and for all teachers of non Government schools taken over by the Govern ment 1967 orders applied.
The appellant, who was a B.A.B.T., was the Head Mistress of a Private school.
When the administration of the school was taken over by the Government, she was fixed in a lower time scale of pay because, under the rules, no person could be appointed as Principal unless she held a post graduate degree and possessed the requisite experience.
The High Court dismissed her Writ Petition.
In appeal to this Court it was contended that (i) her appointment in a lower post was illegal because she could have obtained the Post graduate degree within the three years ' time from the date of her absorption; (ii) the word 'should ' used in the 1967 memorandum showed that the rule is directory in charac ter; (iii) since.
she held B.A.B.T., she should be consid ered as having a post graduate qualification; (iv) she was discriminated against because in the schools run by Govern ment from their inception, teachers who did not hold a Master 's degree were appointed as Principals and (v) the qualifications of the teaching staff have to be the same as prescribed in the Regulations of the Board of Secondary Education.
Dismissing the appeal, HELD: (1) In view of the express statement in the 1972 Memorandum that it would be applicable only to previous teachers of Janpad Sabhas and Municipalities, the appellant could not claim the benefit of the particular facility.
[479 E F] (2) The word 'should occurring in paragraph 3(b) must be understood in a mandatory sense.
The use of word "should" cannot justify the construction that for absorption in the post of a Principal of a Higher Secondary School the incum bent may or may not possess the Post Graduate Degree.
In a memorandum containing a set of rules prescribing the quali fications for various posts, it is meaningless to provide that the incumbent of a certain post may or may not possess a certain qualification, if the possession of the particular qualification is considered to be a matter of no importance or consequence.
Paragraph 3(b) consists of a complex provi sion one part of which refers to the requirement of a Post Graduate Degree and the other to the need to possess a certain amount of experience.
Both the clauses of a single sentence are governed by the verb "should".
If the require ment as to the possession of a Post graduate Degree is to be directory in character, the same consideration must apply equally to the requirement of experience, with the result that for eligibility for the post of a Principal, it would neither be necessary to possess any particular educational qualification nor any particular experience of teaching.
[480 C E] 478 (3) By "Post graduate Degree" is meant a Master 's degree like the M.A. or M.Sc.
and not a Bachelor 's degree like B.T.
In expressions like "post nuptial", "post operative" etc., "post" means "after", the emphasis being on the happening of an event after a certain point of time.
In the educational world the expression "post graduate" has acquired a special significance.
It is the holder a Master 's Degree like the M.Ed.
or LL.M., who earns recognition as the holder of a post graduate degree.
That is the sense in which the ex pression is used in the Memorandum.
[480 G, 481 A] (4) The State Government had a valid reason for pre scribing comparatively stringent qualifications for Princi pals in schools taken over from privae institutions.
While a teacher in a Government school was appointed as Principal by reason of long and valuable experience gained as teacher, a Head Mistress or a. Principal of a private school was appointed directly and straightway without insistence on any worthwhile experience of teaching.
[481 G] (5) Regulations of the Board of Secondary Education framed under the Madhya Pradesh Madhyamik Siksha Adhiniyam 1965 have no relevance in the present ease.
They prescribe conditions with which an educational institution had to comply before seeking recognition.
The various conditions prescribed ' by the Regulations do not constitute conditions of service and can create no rights and obligations, con tractual or statutory, as between a school and its employ ees, whether the school is a Government institution or a non Government institution.
[482 A B]
|
Appeal No. 135 of 1972.
Appeal by Special Leave from the Judgment and Order dated 12 8 71 of the Delhi High Court in F.A.O. No. 47 D of 1964.
Gobind Das and Girish Chandra, for the Appellant.
Bakshi Shiv Charan Singh and Harbans Singh, for the Respondents.
The Judgment of the Court was delivered by BHAGWATI, J.
, This appeal, by special leave, is direct ed against a judgment of the High Court of Delhi setting aside an award made by an arbitrator on the ground that he was not a validly appointed arbitrator and hence had no jurisdiction to arbitrate and make an award.
The facts giving rise to the appeal are few and may be briefly stated as follows.
The respondents a partnership firm entered into a contract with the appellant for the supply of 30,000 tons of East German sugar at the rate and as the terms and condi tions set out in a letter dated 3rd July, 1954 addressed by the Secretary to the Government of India, in the Ministry of Food & Agriculture to the respondents.
The Ministry of Food and Agriculture was concerned with the subject matter of this contract and hence clause (9) provided that "superin tendence and inspection of quality, weight and packing of sugar Shall be made by a reputable superintending agency to be approved by the Government of India, in the Ministry of Food & Agriculture" and clause (10) stipulated for delivery to be made to "authorities or parties nominated by the Ministry of Food and Agriculture".
There was provision for arbitration made in clause (17) and that clause also re ferred to the Ministry of Food and Agriculture.
It was in the following terms: "ARBITRATION: All questions, disputes or differences whatsoever which may at any time arise between the parties to the agreement touching the agreement or the subject matter thereof, arising out of or in relation thereto and whether as to construction or otherwise shall be referred to a single arbitrator for decision.
Such a single arbitrator shall be nominated by the Secretary to the Government of India in the Ministry of Food and Agriculture in his absolute discretion and the decision of such arbitrator shall be final and binding upon the parties.
The reference to the arbitrator shall be governed by the provisions of the Indian as amended from time to time and the rules made thereunder.
" It appears that disputes arose between the appellant and.
the respondents in regard to the fulfilment of this con tract.
The appellant made a claim for payment of Rs. 3,29,107 8 0 against the respondents by a letter dated 11th August, 1956 and threatened to recover it from the security furnished by the respondents through their bankers.
The respondents disputed the claim of the appellant and by their letter dated 23rd August, 1956 pointed out that it was not competent to the: appellant to recover the amount of the demand from the bankers of the 485 respondents without first.
establishing its claim by arbi tration or suit.
The respondents intimated to the appellant that they were prepared to go to arbitration and.
suggested that it would be better still, .if a special case for the opinion of the court were stated under section 90 of the Code of Civil Procedure.
The respondents also claimed to recover from the appellant under the contract diverse amounts aggregating to Rs. 6,05,689.
There was no response to this letter from the appellant and no steps were taken by the appellant to have the disputes referred to an arbitrator nominated by the Secretary in the Ministry of Food and Agriculture as provided in clause (17) of the Contract.
In the meantime, as a result of an order made by the President under clause (3) of Article 77 of the Constitution, the Ministry of Food and Agriculture was bifurcated into two separate Ministries, one of Food and the other of Agricul ture, with effect from 19th October, 1956 and sugar, the subject matter of the contract, came to be allotted to the Ministry of Food.
The respondents, by their letter dated 9th November, 1956, pointed out to the Secretary, Ministry of Food that by reason of this bifurcation, the Ministry of Food and Agriculture has ceased to exist and there was no Secretary in the Ministry of Food and Agriculture and the arbitration agreement contained in clause (17) of the con tract had, therefore, become a dead letter and was no longer enforceable and once again called upon the appellant to agree in stating a special case for the opinion of the court failing which the respondents would have to file a suit against the appellant.
This letter also did not evoke any response from the appellant and the disputes remained unre solved.
On 13th/l4th February, 1956 the appellant addressed a letter to the respondents stating that since the Ministry of Food and Agriculture was bifurcated into Ministry of Food and Ministry of Agriculture, it was necessary to amend clause (17) of the Contract so as to provide for arbitration by "the Secretary to the Ministry, Government of India administratively dealing with the subject of contract at the time of reference to arbitration, or if there is no Secre tary, the administrative head of such Ministry at the time of such reference" and proposed an amendment to that effect for the acceptance of the respondents.
The respondents, by their letter in reply dated 26th February, 1957, declined to accept the proposal for amendment of clause (17) of the contract and once again reiterated that the arbitration agreement contained in that clause was "dead and unenforce able".
However, within a short time thereafter, another order was issued by the President under clause (3) of Arti cle 77 of the Constitution integrating the Ministry of Food and the Ministry of Agriculture into one single Ministry of Food and Agriculture with effect from 23rd April, 1957.
This Ministry of Food and Agriculture had two departments, one of Food and the other of Agriculture, and there was a Secretary incharge each department.
It seems that the appellant requested the Secretary, Department of Food in the Ministry of Food and Agriculture to nominate an arbitration for adjudicating upon the disputes which had arisen between the appellant and the respondents in terms of clause (17) the Contract and the Secretary, Department of Food in the Ministry of Food and Agriculture, by a letter dated 27th February, 1958, nominated Shri A.V. Vishwanath Shastri, Advocate, to act as sole arbitrator to 486 adjudicate upon such disputes.
On the same day, the re spondents served a notice on the appellant under section 80 of the Code of Civil Procedure demanding payment of the amounts due to the respondents and stating that in case the appellant failed to meet these demands, the respondents would have to file a suit against the appellant.
Though respondents gave this notice under section 80 of the Code of Civil Procedure, they did not proceed to file a suit, but instead filed their statement of claim before the arbitrator and in the statement they claimed payment of an aggregate sum of Rs. 7,89,858/ from the appellant and also prayed for a declaration that the contract stood "final and properly performed" by the respondents.
The appellant filed its reply disputing the claim of the respondents.
The appellant also field a statement making its own claim for Rs. 3,29,107 8 0 against the respondents.
It was stated in paragraph 18 of the statement of claim of the appellant "that under Clause 17 of the contract the Secretary Food and Agriculture Ministry of the Government in his discretion has the right to nominate a sole Arbitrator and refer the dis pute to the Arbitrator and that has been duly done on 27th February,1958, and the parties have been duly notified under Secretary to the Government letter No. SIMP 3(4C) dated the 27th February, 1958".
The respondents filed their written statement denying the claim of the appellant and in para graph 18 of this written statement they averted "That para 18 of the Statement of Claim of the Government of India is not objected to".
The proceedings in connection with the claim of the respondents and the counter claim of the appel lant were carried on before the arbitrator and the respond ents participated in the arbitration proceedings without objection or protest against the jurisdiction of the arbi trator.
The arbitrator ultimately made an award against the respondents.
The appellant made an application before the Sub Judge, Delhi to pass a decree in terms of the award.
The respond ents resisted the application of the appellant and sought to set aside the award mainly on two grounds.
One ground was that Daljeet Singh, a partner of the respondents, had no power to bind the other partners by an arbitration agreement and hence clause (17) of the contract was not binding on the respondents, and the other was that the arbitrator was not validly appointed and he had, therefore, no jurisdiction to enter upon the reference and adjudicate upon the disputes between the parties.
Both these grounds were rejected by the learned Sub Judge and the award was made a rule of the court.
The respondents thereupon preferred an appeal to the High Court.
The same two grounds were also urged in the appeal.
Out of them, the first ground relating to lack of authority in Daljeet Singh to bind the respondents by clause (17) of the contract Was negatived by the High Court and it was held that clause being an integral part of the contract, the authority of Daljeet Singh to enter into the contract on behalf of the respondents extended also to clause (17) of the contract and in any event, the conduct of all the partners showed that Daljeet Singh had authority on behalf of the other partners to enter into the arbitration agreement contained in clause (17) of the contract.
The second ground, however, found favour with the High Court which held that in view of the bifurcation of the Ministry of Food and Agriculture into two separate Ministries, 487 one of Food and the other of Agriculture, by the Presiden tial Order, which came into effect from 19th October, 1956, the arbitration agreement in clause(17) of the contract became dead and unenforceable and nothing that happened thereafter could revive it and in any event, even after reintegration of the Ministry of Food and Agriculture into one single Ministry of Food and Agriculture, the arbitra tion agreement could not be given effect to since there were then two Secretaries in the Ministry of Food and Agriculture and clause (17) of the contract did not indicate as to which Secretary was to exercise the power of nomi nating the arbitrator, with the result that the arbitration agreement suffered from the fault of vagueness and uncer tainty.
The High Court accordingly allowed the appeal and set aside the award made by the Arbitrator.
Hence the present appeal by the appellant with special leave obtained from this Court.
The only question debated before us in this appeal was as to whether the appointment of the arbitrator by the Secretary, Department of Food in the Ministry of Food & Agriculture was a valid appointment.
Obviously, if the appointment was invalid, the arbitrator would have no juris diction to arbitrate upon the disputes between the parties and the award would be invalid.
But, an alternative argument was also advanced on behalf of the appellant to sustain the award and it was that the respondents not having raised any objection to the appointment of the arbitrator and participated in the arbitration proceedings without any demur or protest, it was not open to them, after the award was made, to challenge it on the ground of invalidity of appointment of the arbitrator.
The respondents, having taken the chance of obtaining the award in their favour, could not denounce the award when it went against them.
We will first examine whether the appointment of the arbitrator was valid, for, if it was, the second question, which raises the issue of waiver, would not arise.
Now, clause (17) of the contract provided that all disputes arising out of the contract shall be resolved by arbitration.
It embodied an arbitration agreement between the parties.
It also laid down the machinery for appoint ment of the arbitrator.
It provided that the arbitrator shall be nominated by the Secretary in the Ministry of Food & Agriculture in his absolute discretion.
There was un doubtedly a Ministry of Food & Agriculture at the time when the contract was made and there was one and only one Secre tary in that Ministry, so that at the date of the contract there could be no question as to who was the person autho rised to nominate the arbitrator, The same position contin ued to obtain also at the time when disputes arose between the parties.
But before an arbitrator could be nominated by the Secretary in the Ministry of Food & Agriculture to adjudicate upon these disputes, the Ministry of Food & Agriculture was bifurcated into two separate Ministries and it ceased to exist as Ministry of Food & Agriculture.
Then obviously there was no individual who fiIIed the description of "Secretary in the Ministry of Food & Agriculture" and, consequently the machinery for appointment of the arbitrator became unworkable.
If the matter had rested there, a ques tion could well have arisen whether, despite the break down of the machinery for nomination of an arbitrator, the arbi tration agreement in clause (17) 15 1104SCI/76 488 could still be enforced by the Court by appointing an arbi trator in a proceeding under section 20 of the .
But the position again changed and the Ministry of Food & Agriculture came into being as a result of integra tion of the Ministry of Food and the Ministry of Agricul ture, with this change, namely, that the new Ministry of Food & Agriculture had two departments, one of Food and the other of Agriculture and there was a Secretary incharge of each department.
There were thus, after integration, two Secretaries in the Ministry of Food & Agriculture and the argument of the respondents was and that argument found favour with the High Court that this event rendered the arbitration agreement vague and uncertain, inasmuch as it did not specify which of the two Secretaries was to nominate the arbitrator "in his absolute discretion".
Though this argument appears attractive at first sight, a little scruti ny will reveal that it is unsound.
It is based on a highly technical and doctrinaire approach and is opposed to plain commonsense.
it must be remembered that a contract is a commercial document between the parties and it must be interpreted in such a manner as to give efficacy to the contract rather than to invalidate it.
It would not be right while inter preting a contract, entered into between two lay parties, to apply strict rules of construction which are ordinarily applicable to a conveyance and other formal documents.
The meaning of such a contract must be gathered by adopting a commensense approach and it must not be allowed to be thwarted by a narrow pedantic and legalistic interpretation.
Here, at the time when the arbitrator came to be nominated and the reference was made, there was a Ministry of Food & Agriculture and there was a Secretary in that Ministry, but the only difficulty, according to the High Court, was that there were.
instead of one, two Secretaries and it could not be predicated as to which Secretary was intended to exercise the power of nominating an arbitrator.
We do not think this difficulty is at all real.
Let us consider, for a moment, why in clause (17), the power to nominate an arbitrator was conferred on the Secretary in the Ministry of Food & Agri culture and not on a Secretary in any other Ministry.
The reason obviously was that at the date of the contract the Secretary in the Ministry of Food & Agriculture was the Officer dealing with the subject matter of the contract.
If this object and reason of the provision of clause (17) is kept in mind, it will become immediately clear that the "Secretary in the Ministry of Food & Agriculture"authorised to nominate an arbitrator was the Secretary incharge of the Department of Food who was concerned with the subject matter of the contract.
The Secretary incharge of the Department of Food filled the description "Secretary in the Ministry of Food & Agriculture" 'yen in clause (17).
The respondents relied strongly on the use of the definite article 'the ' before the words "Secretary in the Ministry of Food & Agri culture" and urged that what the parties to the contract had in mind was not a Secretary in the Ministry of Food & Agri culture, but the Secretary in the Ministry of Food & Agri culture and that clearly postulated one definite Secretary in the Ministry of Food & Agriculture and not one of two Secretaries in that Ministry.
This is, in our opinion, a hyper technical argument which seeks to make a 489 fortress out of the dictionary and ignores the plain intend ment of the contract.
We fail to see why the Secretary in the Ministry of Food & Agriculture incharge of the Depart ment of Food could not be described as the Secretary.
He would be the Secretary in the Ministry of Food & Agriculture concerned with the subject matter of the contract and dearly and indubitably he would be the person intended by the parties to exercise the power of nominating the arbitra tor.
The parties to the contract obviously could not be expected to use the words "a Secretary in the Ministry of Food & Agriculture", because their intendment was not that any Secretary in the Ministry of Food & Agriculture should be entitled to exercise the power of nominating an arbitra tor, but it should only be the Secretary in the Ministry of Food & Agriculture concerned with the subject matter of the contract.
That is why the use of the definite article 'the '.
It is also significant to note that when the Secre tary in charge of the Department of Food in the Ministry of Food & Agriculture nominated the arbitrator, the respondents did not raise any objection to the appointment of the arbi trator and participated in the arbitration proceedings without any protest.
The respondents knew at that time that there were two Secretaries in the Ministry of Food and Agriculture and the appointment of the arbitrator was.
made by the Secretary in charge of the Department of Food and yet they acquiesced in the appointment of the arbitrator and took part in the proceedings.
This circumstance is also clearly indicative of the intendment of the parties that the Secretary in the Ministry of Food & Agriculture concerned with the subject matter of the contract should be the person entitled to nominate the arbitrator.
Or else the respondents would have objected to the appointment of the arbitrator and declined to participate in the arbitration proceedings or at any rate, participated under protest.
We are, therefore, of the view that the arbitrator was validly nominated by the Secretary in charge of the Department of Food in the Minis try of Food & Agriculture.
This view renders it unnecessary for us to consider whether by participating in the proceedings before the arbitrator without objection or protest and taking the chance of obtaining an award in their favour, the respond ents could be said to have waived the defect in the appointment of the arbitrator.
We accordingly allow the appeal, set aside the order of the High Court and while dismissing the application for setting aside the award, pass a decree in terms of the award.
Having regard to the peculiar facts and circum stances of the case, we make no order as to costs through out.
| IN-Abs | The respondent partnership firm, entered into contract with the appellant for the supply of East German sugar.
Provision for arbitration was made in clause (17) of the contract, and the arbitrator was to be nominated by the Secretary in the Ministry of Food & Agriculture.
In the present dispute, before an arbitrator was nominated, the Ministry of Food & Agriculture was bifurcated into two separate Ministries and the subject matter of the contract was allotted to the Ministry of Food.
The respondents took the stand that there was no longer any Secretary in the non existent Ministry of Food and Agriculture and clause (17) of the contract was a dead letter.
The appellant 's proposal to amend clause (17) to suit the changed circum stances, was rejected by the respondents.
Thereafter, the two Ministries were reintegrated into a Ministry of Food & Agriculture and two Secretaries were put incharge of the two departments.
The Secretary, Food Department, on a request from the appellant under clause (17), appointed an arbitra tor.
The respondents served on the appellant a notice under C.P.C. Sec. 80 but instead of proceeding to sue the appel lants, they submitted to the jurisdiction of the Arbitrator without protest until award was made, The appellant 's appli cation to the Sub Judge, Delhi, for passing a decree in terms of the award was resisted by the respondents who sought to set aside the award, challenging the validity of the Arbitrator 's appointment and contending that the arbi tration agreement under clause (17) was made by only one of the partners, and was not binding on the others.
The Sub Judge rejected their objections and made the award a rule of the court.
An appeal to the High Court was allowed on the ground that on bifurcation of the Ministries clause (17) of the contract became dead, and could not be revived on their re integration.
Allowing the appeal the Court, HELD: There were, after integration, two Secretaries in the Ministry of Food & Agriculture, but the argument that this event rendered the arbitration agreement vague and uncertain, is based on a highly technical and doctrinaire approach and is opposed to.
plain common sense.
A contract is a commercial document between the parties and must be interpreted in such a manner as to give it efficacy rather than to invalidate it.
It would not be right while inter preting a contract entered into between two lay parties, to apply strict rules of construction which are ordinarily applicable to formal documents.
The meaning of such a contract must be gathered by adopting a common sense ap proach and it must not be allowed to be thwarted by a narrow pedantic and legalistic interpretation.
The Secretary in the Ministry of Food and Agriculture in charge of the De partment of Food, would be the Secretary in the Ministry of Food and Agriculture concerned with the subject matter of the contract and under clause (17), he would be the person intended by the parties to exercise the power of nominating the arbitrator.
Furthermore, the respondents did not raise any objection to the appointment of the arbitrator and participated in the arbitration proceedings without protest, indicating the clear intendment of the parties that the Secretary in the Ministry of Food & Agriculture concerned with the subject matter of the contract should be the person entitled to nominate the arbitrator.
[488 B E, 489 A E] 484
|
Criminal Appeal No. 264 of 1971 (Appeal by Special Leave from the Judgment and Order dated 19/20th August, 1971 of the Bombay High Court in Cr.A. No. 650 of 1970 with Crl.
Rev. No. 886/70).
B.R. Agarwala and P.B. Agarwal, for the appellant.
H.R. Khanna and M.N. Shroff, for the respondent.
The Judgment of the Court was delivered by BHAGWATI, J.
The appellant was tried before the Presi dency Magistrate, 25th Court, Mazgaon, Bombay for offence under clauses (a) and (b) of section 135 read with section 135(ii) of the and Rule 126H(2)(d) read with Rule 126P(2)(iv) of the Gold Control Rules 1963.
The prosecution case against the appellant was that on 7th September, 1965 about 3.45 p.m. Inspector Tilwe, who was at the material time Senior Grade Inspector of Customs attached to Gold Circle, Central Excise, Bombay, received information that two persons would be coming down from a building known as Hira Mahal, situated at Kalbadevi Road, and they will be carrying gold in the handle, of a cane basket and also in their shoes 17 1104SC1176 520 Inspector Tilwe, on receipt of this information, sent for Inspector Nichani and both of them kept guard outside Hira Mahal building from about 8.00 p.m. Around 8.45 p.m., the appellant accompanied by his material uncle 's son Dwarkapra sad, his son Dalip aged 9 years and his servant by the name of Mahadev, came out of Hira Mahal building.
The appellant was carrying a basket in his hand and after coming out of the building, the appellant and his companions got into a Victoria and proceeded towards Victoria Terminus Station.
Inspector Tilwe and Inspector Nichani followed these persons and when the appellant and his companions got down from the Victoria and entered the platform, Inspector Tilwe accosted them and took them to the office of the Assistant Station Master and searched them there in the presence of three panchas.
Two of the panchas were selected by Inspector Tilwe while the third volunteered to act as Pancha.
On taking search, it was found that the shoes worn by the appellant and Dwarkaprasad had specially made cavities and four gold biscuits with foreign markings were found in the shoes of each of these two persons.
The basket carried by the appellant also contained 27 gold biscuits with foreign markings concealed in the handle which was made of brass and which had a specially made cavity in it for concealing gold biscuits.
While the search was going on, one Ticket Collec tor called Tharandas Bhatia arrived on the scene and he also witnessed the search.
Inspector Tilwe seized the gold biscuits which were recovered from the appeIIant and Dwar kaprasad, in the reasonable belief that they were smuggled and hence liable to confiscation under section 111 of the .
This search and seizure was recorded in a Panchanama exhibit X, which was witnessed by the three pan chas.
Inspector Tilwe also seized from the appellant two first class Railway Tickets for the journey from Bombay to Kanpur, one Reservation Card and two Platform Tickets and so also were the basket and the shoes seized under the same Panchanama exhibit
X. Inspector Tilwe then took the appellant and Dwarkaprasad to the Central Excise Office and recorded their statements in the presence of Inspector Nichani under section 107 of the .
The statement of the appellant which is marked exhibit W was written by Dwarkaprasad in Hindi and was signed by the appellant.
The appellant admitted in his statement that he was carrying smuggled gold concealed in the handle of the basket and shoes for being handed over to a firm called M/s Pannalal Durgaprasad at Kanpur and that he had been doing this work for the last six months ever since his business as a goldsmith was closed down.
Another statement of the appellant was also subsequently recorded by Inspector Tilwe on 22nd November, 1966 at the shop of the appellant and this statement was written by one MaganIal, an employee of the appellant, in Gujarati and was signed by the appellant.
Both the appel lant and Dwarkaprasad were thereafter prosecuted for of fences under clauses (1) and (b) of section 135 read with section 135(ii) of the , and Rule 126H(2)(d) read with Rule 126P(2)(iv) of the Gold Control Rules, 1963.
Dwarkaprasad pleaded guilty to the charge and was convicted and we are not concerned in this appeal with the conviction and sentence recorded against him.
The appel 521 lant denied the charge and hence he was tried before the leraned Presidency Magistrate.
The only evidence led on behalf of the prosecution against the appellant was that of Inspector Tilwe and Tharandas Bhatia.
None of the panchas was examined as a witness to prove the search and seizure.
The learned Presidency Magistrate observed that in view of the fact that Tharandas Bhatia had not signed the Panchanama exhibit
X nor his statement had been recorded by the Customs Authorities or the Railway Police, and his name had also not been shown as a witness in the complaint, it would not be desirable to rely on his evidence against the appellant.
But the learned Presidency Magistrate found the evidence of Inspector Tilwe satisfactory and convincing and on the strength of this evidence, he held the charge proved against the appellant and convicted.
the appellant of the offence under clause (b) of section 135 read with section 135(ii) of the and Rule 126H(2)(d) read with Rule 126P(2) (iv) of the Gold Control Rules, 1963 and sentenced him to suffer rigorous imprisonment for two months and to pay a fine of Rs. 500/ or in default to suffer rigorous imprisonment for two months for each of these two offences.
Since there was no evidence to show that the appellant himself had smuggled the seized gold into India, he was acquitted of the charge under clause (a) of section 135 read with section 135(ii) of the .
The appellant preferred an appeal against his convic tion and sentence but the High Court agreed with the view taken by the learned Presidency Magistrate and dismissed the appeal of the appellant.
Hence the present appeal with special leave obtained from this Court.
It is true that the conviction of the appellant rests solely on the evidence of Inspector Tilwe.
There were three pan chas who witnessed the Panchanama exhibit X regarding search and seizure of gold from the appellant but unfortunately none of the three panchas could be examined, as they were not trace able in spite of efforts made by the prosecution.
Two of the panchas undoubtedly remained present in the course of the adjudication proceedings but that was in December 1967.
The trial before the learned Presidency Magistrate commenced in April 1969 and evidence was given by Inspector Tilwe in December 1969 and at that time none of the three panchas could be traced and brought for the purpose of giving evi dence.
The statement of Inspector Tilwe that "all the three panchas are now not traceable in spite of great efforts" was not challenged in cross examination and we must, there fore, proceed on the basis that none of the three panchas was available and if that be so, no adverse inference can be drawn against the prosecution for not examining any of the three panchas.
Tharandas Bhatia was no doubt examined but the learned Presidency Magistrate preferred not to rely on his evidence and we think, he was right in doing so.
In spector Nichani could, of course, have been examined as a witness, since he was present at the time of search and seizure, but his non examination cannot help the appellant, since he was also an Inspector in.
the Customs Department like Inspector Tilwe and once Inspector Tilwe gave evidence, it would not have added to the weight of prosecution evi dence by also examin 522 ing him.
The prosecution case against the appellant must, therefore, in the ultimate analysis stand or fall by the evidence of Inspector Tilwe.
The learned Presidency Magistrate as well as the High Court accepted the evidence of Inspector Tilwe and we do not see any reason to interfere with the concurrent view taken by both these courts as regards the appreciation of his evidence.
It was not the case of the appellant that he and Dwarkaprasad along with Dalip and Mahadev did not proceed from Hira Mahal building to Victoria Terminus or that they were not taken by Inspec tor Tilwe to the office of the Assistant Station Master for purpose of search or that gold was not found as a result of the search, but his defence was that the seized gold was found from Dwarkaprasad and not from him and that both the basket and the shoes belonged to Dwarkaprasad and he had nothing to do with the same.
Now, it is difficult to see why Inspector Tilwe should have falsely implicated the appellant if, in fact, the seized gold was found only from the person of Dwarkaprasad and the appellant was completely innocent.
It may also be noticed that the case of the appellant was that Mahadev was the servant of Dwarkaprasad and it was Dwarkaprasad who was going from Bombay to Kanpur along with his servant Mahadev and the two Railway Tickets from Bombay to Kanpur were meant for Dwarkaprasad.
But it is difficult to understand why in that event there should have been two first class Railway Tickets.
Mahadev could not possibly be travelling by first class along with his master.
The fact that there were two first class Railway Tickets shows that the appellant and Dwarkaprasad were going to travel from Bombay to Kanpur.
This is also.
borne out from the statement exhibit H given by the appellant to Inspector Tilwe.
The appellant tried to wriggle out of the statement exhibit H by showing that it was taken from him under threat and was not a voluntary statement containing the true facts.
But it is evident from the contents of the statement exhibit H that it is a genuine document.
There are several details in the statement exhibit H which could never have been dictated by Inspector Tilwe.
There is inherent evidence in the contents of the statement exhibit H showing that the statement is true.
It was admitted in the statement exhibit H, that the appellant was carrying gold from Bombay to M/s Pannalal Durgaprasad at Kanpur and this statement is clearly support ed by the seizure of two First Class Railway Tickets from Bombay to Kanpur.
It is true that the reservation card seized at the time of search did not show in whose name the reservations were made and it would have been better, if the prosecution had summoned the railway authorities to produce the Reservation Chart of the train for the purpose of show ing in whose name the reservations were made.
But even so, the fact that the reservation card was seized from the appellant shows that the appellant was travelling from Bombay to Kanpur.
We do not see any cogent reasons for taking a different view from that taken concurrently by the learned Presidency Magistrate and the High Court in regard to the evidence of Inspector Tilwe and we think this evi dence is sufficient to found the conviction of the appel lant.
The appellant, however, contended that even if it be held that gold was found from the person of the appellant, as alleged by the 523 prosecution, it was smuggled gold and hence not covered by the Gold Control Rules, 1963 and, in the circumstances, no offence under Rule 126H(2)(d) read with Rule 126P(2)(iv) could be said to have been committed by the appellant in acquiring such gold.
The argument of the appellant was that the Gold Control Rules, 1963 apply only in relation to what may be called legal gold or non smuggled gold and smuggled gold is outside their scope and ambit and hence acquisition of smuggled gold would not constitute an offence under the Gold Control Rules, 1963.
This is an argument of despair and cannot be sustained even for a moment.
Rule 126H(2)(d) provides, inter alia, that no person other than a licensed dealer shall buy or otherwise acquire or agree to buy or acquire gold, not being ornaments, except in accordance with a permit granted by the Administrator or in accordance with such authoriation as the Administrator may make in this behalf.
The word 'gold ' is defined in clause (c) of the Explanation to Rule 126A to mean gold, including its alloy, whether virgin, melted, remelted, wrought or unwrought, in any shape or form, of a purity of not less than nine carats and include any gold coin (whether legal tender or not), any ornament and any other article of gold".
This definition does not restrict the meaning of the word 'gold ' to legal or non smuggled gold.
It is wide enough to include any kind of gold, whether smuggled or non smuggled.
The restrictions imposed by the Gold Control Rules, 1963 could not have been intended merely to apply to legal gold.
The object and purpose of the restrictions.
would be frustrated by exclud ing from their ambit and coverage smuggled gold.
The Gold Control Rules, 1963 seek to control and regulate dealings in gold and 'gold ' within the meaning of these rules must include not only non smuggled gold but also smuggled gold, We fail to see on what principle of construction can smug gled gold.
which is 'gold ' within the meaning of the defini tion, be excluded from the operation of these Rules.
There is no scope for inferring any such exclusion nor is there anything in the Rules which supports such exclusion.
Take, for example, Rule 126 B which says that a dealer shall not make or manufacture any article of gold other than ornament.
Can it be suggested for a moment that this Rule does not prohibit a dealer from making or manufacturing articles out of smuggled gold? Then again, look at Rule 126 C.
It provides, inter alia, that no dealer shall make, manufacture or prepare any ornament having gold of a purity exceeding fourteen carats.
Can a dealer make an ornament of smuggled gold having purity exceeding fourteen carats without commit ting a breach of this Rule? Rule 126 1 provides that every person shall make a declaration to the Administrator as to the quantity, description and other prescribed particulars of gold owned by him.
How can a person, who has smuggled gold, say that he is not bound to make a declaration under this Rule? The object of requiring a declaration is that the Government should know what is the gold possessed by each person, so that dealings in gold can be controlled and regulated and this object would be thwarted if smuggled were not subject to the requirement of declaration.
Then consid er Rule 126 D which says that no person shall make advance or grant any loan to any other person on the hypothecation, pledge, mortgage or charge of any gold other than ornament, unless such gold 524 has been included in a declaration.
If smuggled gold were outside the scope of this rule, it would be open to a person to advance moneys on the security of smuggled gold without involving any violation of this rule.
That surely could not have been the intention of the Government in making the Gold Control Rules, 1963.
We are aware that there is a decision of the Calcutta High Court in Aravinda Mohan Sinha vs Proh lad Chand Samenta(1) where a Division Bench has taken the view that "declaration under Rule 126.
P is in respect of legal gold as opposed to smuggled gold and no question of declaration in respect of smuggled gold can arise under Gold Control Rules, 1963," but we do not think this decision represents the correct law on the point.
We are of the view that the Gold Control Rules 1963 are applicable alike to smuggled gold as to non smuggled gold, and the inhibition of Rule 126H(2) (d) that no person other than a licensed dealer shall acquire gold except in accordance with a permit or authorisation granted by the Administrator is not con fined in its operation to non smuggled gold but applies equally in relation to smuggled gold.
The learned Presiden cy Magistrate and the High Court were, therefore, right in convicting the appellant under Rule 126 H(2)(d) read with Rule 126 P(2) (iv) of the Gold Control Rules, 1963.
Since the appellant is convicted of the offence under Rule 126P (2) (iv) of the Gold Control Rules, 1963, the sentence of imprisonment to be imposed on him cannot be less than .six months and the High Court was right in enhancing the sentence to six months imprisonment.
But so far as the sentence of fine is concerned, we do not think that the facts and circumstances of the case justify a heavy fine of Rs. 3,000/ for each of the two offences for which the appellant is convicted.
It appears from the statement of the appellant exhibit H that he was a carrier of gold for M/s Pannalal Durgaprasad of Kanpur and the purchase price of Gold was provided substantially by this Kanpur firm and the appellant was merely to receive some commission.
The appel lant was a goldsmith who had lost his business for the last six months and perhaps economic necessity drove him to carry on this nefarious activity.
The sentence of imprisonment which has been imposed on the appellant would be sufficient deterrent to him and many others who indulge in this anti social activity which is calculated to disrupt the economy of the country.
We feel that in the circumstances, the ends of justice would be met if the sentence of fine is reduced from Rs. 3,000/ to Rs. 500/ for each of the two offences.
We accordingly confirm the conviction of the appellant as also the sentence of imprisonment imposed on him but reduce the sentence of fine from Rs. 3,000/ to Rs. 500/ for each of the two offences for which the appellant is convicted with a direction that in default of payment of fine, the appellant will suffer rigorous imprisonment for a period of two months.
The appeal is allowed to this limited extent.
M.R. Appeal partly allowed.
| IN-Abs | The appellant was found carrying smuggled gold with foreign markings, concealed on his person.
He was convicted by the Presidency Magistrate under Section 135(b) read with Section 135(ii) of the , and Rule 126H (2)(d) read with Rule.
126 P(2)(iv) of the.
Gold Control Rules, 1965.
The High Court upheld the convictions.
The appellant con tended that the gold, allegedly recovered from him was smug gled gold, and hence not covered by the Gold Control Rules, 1963.
Dismissing the appeal the Court.
HELD: The Gold Control Rules, 1963, seek to control and regulate dealings in gold, and are applicable alike to smuggled gold as to non smuggled gold, and the inhibition of Rule 126 H(2)(d) that no person other than a licensed dealer shall acquire gold except in accordancee with a permit or authorisation granted by the Administrator, is not confined in its operation to nonsmuggled gold but applies equally in relation to smuggled gold.
The object and pur pose of the restrictions imposed by the Gold Control Rules, 1963, would be frustrated by excluding from their abmit and coverage, smuggled gold.
[523 A D; 524 B C] Aravinda Mohan Sinha vs Prohlad Chand Samenta AIR 1970 Cal 437 over ruled.
|
ivil Appeal Nos.
583 and 686 of 1974.
Appeal from the Judgment and Order dated 28 2 74 of the Andhra Pradesh High Court in Election Petition No. 1/72 and Civil Appeal No. 686 of 1974.
From the Judgment and Order dated 28 2 74 of the Andhra Pradesh High Court in Election Appeal No. 52/73.
M.C. Bhandare, K. Krishna Rao, K. Rajindra Choudhary and Mrs. Veena Devi Khanna for the Appellant in CA 583/74.
492 A.K. Sen, I. Kotireddy and G.N. Rao, for Respondent No. 1 in C.A. 583/74 and also for the Appellant in C.A. 686/74.
The Judgment of the Court was delivered by UNTWALIA, J.
These are two appeals under section 116A of the Representation of People Act, 1951 hereinafter referred to as the Act, arising out of an election dispute concerning the election held on the 5th and 8th of March, 1972 to the Andhra Pradesh Legislative Assembly from Purchur Constituency.
Six persons had filed nominations for stand ing as candidates at the election.
Four of them, who were impleaded as respondents 2 to 5 in the election petition, withdrew in time and did not contest the election.
The only two persons left in the field for a straight contest were the two appellants in the two appeals namely M. Narayana Rao, appellant in Civil Appeal No. 583 of 1974 hereinafter referred to as Rao or respondent No. 1 (for brevity, the respondent) according to his position in the election peti tion and G. Venkata Reddy, appellant in Civil Appeal 686 of 1974 hereinafter to be called Reddy or the election peti tioner.
Rao was declared elected on the 11th March, 1972 by a margin of a few hundred votes.
Reddy challenged his election by filing an election petition under the Act on several grounds of corrupt practices said to have been committed by or on behalf of Rao as also on the ground that several malpractices and mistakes had taken place in the counting of the votes.
Reddy in his election petition besides asking for the setting aside of the election of Rao, also claimed that he should be declared elected in his place.
A learned single Judge of the Andhra Pradesh High Court in a very long, elaborate, exhaustive, which at times was exhausting, judgment has accepted the case of the election petitioner in regard to one type of corrupt prac tice having been committed on behalf of the respondent and set aside his election.
Rao has preferred the appeal from the said order.
A recount of the votes polled was ordered by the learned Judge and even after re examination of the validity or invalidity of certain votes, he found on re count, that Rao had still majority of votes in his favour although the margin was further reduced.
In that view of the matter, Reddy 's prayer for being declared elected was refused by the High Court.
Hence Reddy 's appeal.
Both the appeals arising out of the same election petition have been heard together and are being disposed of by this common judgment.
We would like to state at the outset that even in regard to the limited questions which fell for our deter mination in these appeals, the judgment of the High Court is so lengthy and cumbersome, at times suffering from unneces sary repetitions and discussions, that while discussing the main issues in these appeals, we have not thought it neces sary to meet and deal with all the reasonings of the High Court although in arriving at the decision we have taken them into consideration.
If we do so, our judgment will also be unnecessarily very long.
But we must record our appreciation for the tremendous labour put in the High Court by lawyers on either side and the very great pains which the learned Judge has taken in preparing a careful and exhaustive judgment both on facts and in law.
493 Reddy contested the election as a candidate of the Indian National Congress Party and Rao was an Independent candidate.
Reddy 's election symbol was "Cow and Calf" while that of Rao was a "Tractor".
The polling in the Constituen cy was held on the 5th of March, 1972.
Due to disturbances at the 8 polling booths at Chinna Ganjam with which we shall be concerned in Rao 's appeal, polling had to be postponed to the 8th of March, 1972 on which date the polling was com pleted at Chinna Ganjam.
At the counting of votes done on the 11th of March, 1972 the Sub Collector, Ongole, who was the Returning Officer of the constituency, found that Rao had polled 31,038 votes while the votes polled by Reddy were only 30,728.
Approximately 1,398 votes were declared as invalid by the Returning Officer.
It may just be stated here that the total number of electorates in Purchur Constituency was 77,932.
Votes polled were quite a good number amounting to 63,164.
In short the election petitioner 's case was that being a sitting member of the Assembly from the Purchur Constituency he was very popular and had great chances of success in the election in question.
The respondent, his supporters and agents felt that the election petitioner could be defeated only by use of undue influence, force and violence on a large scale and not by a fair election.
With that end in view it was averred by Reddy in his election petition that one Sri Mandava Sitaramayya, an influential worker of his was assaulted at Purchur on the 2nd of March, 1972 by Yarla gadda Subbarao, brother in law of the respondent.
Although the beating of Sitaramayya and the illegal activities of the respondent were brought to the notice of the Deputy Superin tendent of Police and Sub Collector, Ongole at 7.00 P.M. on the 4th of March, 1972 when they were camping at Purchur and they were requested to take adequate precautions for a fair and free poll, the Deputy Superintendent of Police failed to do so.
By the 4th of March, 1972, according to the case of Reddy, the atmosphere was thick with rumours that he and his men would be beaten and done to death, his supporters and voters would be prevented from exercising their fran chise and that in these endearvours of Rao he and his agents had the full support and cooperation of the Police Depart ment headed by Shri A. Gopal Reddy, Deputy Superintendent of Police.
Chinna Ganjam and its surrounding villages, Reddy claimed, lay in his stronghold area.
Rao and his agents under the umbrella of protection of the police started an orgy of violence particularly in Chinna Ganjam and its surrounding villages.
On the 4th of March, 1972 the re spondent collected his agents and supporters at his election office at Chinna Ganjam and instructed them to go ahead by using undue influence, violence and force to prevent the voters from casting their votes and not to allow peaceful conduct of the poll at Chinna Ganjam.
The case of Reddy, the election petitioner, further was that on the morning of the 5th of March, 1972 Rao 's support ers, about 200 in number, gathered from various villages with the active assistance of J.S. Krishnamurthy (respond ent No. 2 in the election petition one of the candidates who had withdrawn) and Muddana Rangarao of Alankar Theatre, Inkollu, started threatening, beating and stone pelting 494 of the voters and supporters of Reddy in Chinna Ganjam near the polling station and elsewhere.
This mob, amongst oth ers, included the 18 persons mentioned in paragraph 8(f) of the election petition.
As a result of the violent activities of the supporters of the respondent and the panic created thereby, the polling at Chinna Ganjam which had started at 7.30 A.M. on the 5th of March, 1972, was stopped between 9.00 A.M. and 11.30 A.M.
When it was resumed again 11.30 A.M. the electors were all scared and there was poor re sponse from them.
Rao 's agents again started an orgy of violence at about mid day.
Voters who were waiting at the polling booths were threatened and dispersed and when Reddy 's supporters including Marri Subba Reddy of Munnamva ripalem were attempting to infuse confidence in the voters, the mob consisting of persons wearing badges with "Tractor" symbol, rushed upon the innocent voters and forced them to flee for their lives.
This was all done with the active support of the police.
During the afternoon disturbances, Reddy 's case has been, the police most unjustly opened fire upon the dispersing and fleeing persons killing outright Marri Subba Reddy and seriously injuring, Komatla Rama chandra Reddy, a resident of Pedda Ganjam, an innocent passerby.
Reddy 's case further runs thus.
He went to Chinna Gan jam at about 2.00 p.m. on the 5th of March, 1972 and when he was taking coffee in a hotel, the hooligans numbering in all about 300 engaged by Rao including the 18 persons named in paragraph 8(f) of the election petition armed with sticks, iron rodes and other weapons surrounded the hotel, forced Reddy to come out and severely assaulted him.
Reddy had to be removed first to Chirala Government Hospital gad finally to Guntur Hospital where he remained under treatment for a few days.
As a result of the violent disturbances created by Rao 's agents and supporters at Chinna Ganjam the voting was postponed to March 8, 1972 and completed on that date.
The election petitioner had also taken a stand in his election petition that the respondent and his supporters went round canvassing from 3.00 p.m. on the 5th of March, 1972 that Reddy was dead or was sure to die and there was no use casting votes in his favour.
The panic created by the respondent and his men prevented several voters from exer cising their franchise or coerced them to cast their votes in favour of the respondent.
Certain other allegations were made in the election petition alleging that the respondent had utilised the services of a Government servant, and had indulged in other various types of malpractices.
It is not necessary to refer to them in any detail as the Trial Judge has not accepted the election petitioner 's case in regard to the said allegedly corrupt practices.
The findings of the High Court were not challenged by Reddy before us.
We may, however, state in passing that reckless allegations were made by Reddy against Rao alleging the commission of corrupt practices within the meaning of almost every sub section of section 123 of the Act.
But the only one found by the High Court against Rao is the commission of corrupt practice of undue influence within the meaning of sub section (2) of section 123.
Reddy in his election petition alleged Commission of several malpractices, mistakes and irregularities in the counting of the votes.
495 Several of his valid votes were said to have been wrongly rejected, several of the invalid votes were wrongly counted for Rao and so on and so forth.
He asserted that the Retur ing Officer had wrongly turned down his request for a re count and if recount is ordered by the Court it would be found that he had polled the majority of votes.
Upon such allegations, the details of some of which but not of all, were given in the election petition, Reddy claimed a decla ration for himself of having been elected to the Legislative Assembly from Purchur.
On the pleadings of the parties the High Court framed several issues and the relevant ones for the disposal of these appeals are the following: "1 (a) Whether the allegations made in para graph 8(a) to (k) of the petition constitute cor rupt practice of and 'Undue Influence ' envisaged under Sec.
123(2) of the Representation of the People Act, and the I st respondent himself or his agent or any other person with his consent or that of his election agent committed the same ? (b) If the allegations made in paragraph 8(a) to (k) of the petition be true, is the election of the I st respondent liable to be set aside on the ground of commission of corrupt practice, namely exercise of 'Undue Influence ' envisaged under section 123(2) of the Representation of the People Act? (c) Whether any such corrupt practice if proved to have been committed by an Agent of the 1st respondent, other than his Election Agent, has materially affected the result of the Election in so far as it concerns the 1st respondent? 6(a) Whether the allegation that the Return ing Officer and his staff committed several mis takes and irregularities in the matter of counting, bundling, rejection and reception of votes as alleged in paragraph 9(a) to (k) of the petition is true ? (b) Whether 472 votes said to have been cast in favour of the petitioner were rejected on the ground that the mark was put on the back on the ballot papers and whether such rejection is improp er and void ? (c) Whether the pleading in paragraph 9(b) of the petition is liable to be struck down for not fur nishing the particulars such as serial numbers of ballot papers etc.
, ? (d) Whether the allegations regarding the irregularities and violations in the rejection or reception or counting of votes made in paragraph 9(c) to (k) of the petition are vague and are liable to be struck down for want of material particulars ? 496 (e) Whether the improper reception of void votes or improper rejection of valid votes and mistakes if any in counting of votes has materially affected the result of the election ? 7 (a) Whether the order of the Returning Officer rejecting the request of the petitioner for recount of votes is erroneous and contrary to law ? If so what is its effect ? (b) Whether in the circumstances mentioned in paragraphs 9(a) to (k) of the petition the peti tioner is entitled to scrutiny of ballot papers and recount of votes by this Court ? 8.
Whether the election of the 1st respondent is liable to be set aside on any of the grounds alleged in the petition ? 9.
Whether the petitioner is entitled to be declared duly elected candidate to the Purchur Constituency ?" The High Court states in its judgment: "Issues l(a), (b) and (c) relate to the allegations in paragraphs 8(a)to (k) of the election petition.
They cover several allegations of corrupt practice of undue influence envisaged by section 123 (2) of the Act.
" For the sake of convenience the learned Judge split up issue 1 (a) incidence wise with reference to each of the alleged ones.
It would be useful to quote the split up issues from the judgment of the High Court.
1 (a)(i)Whether the allegation made in paragraph 8(c) of the election petition viz., the attack on Mandava Seetaramayya, an influential worker and supporter of the petitioner on 2 3 1972 by Yarlagadda Subbarao of Karamchadu is true ? 1 (a) (ii) Whether the allegations made in paragraph 8(f) of the election petition that on the night of 4 3 1972 the 1 st respondent collected his agents and supporters in Chinna Ganjam at his election office and instructed them to use undue influence, violence and force in preventing the voters from exercising their franchise and peaceful conduct of the poll is true ? 1(a)(iii) whether the 'allegation contained in paragraph 8(g) of the election petition that the 1st respondent 's agents, workers and supporters including the 18 persons named in the said para graph started threatening, beating and pelting stones on the voters and supporters of the peti tioner at Chinna Ganjam Polling Stations and as a consequence thereof the polling was stopped and the voters were prevented from casting their votes between 9.00 A.M. and 11.30 A.M. 1 (a)(iv) Whether the polling was resumed at 11.30 A. M. and the 1st respondent 's agents again started an.
orgy of violence by the 1st respond ent 's agents, workers and supporters including those named in paragraph 8(f) of the 497 election petition and several others wearing "Tractor Badges" and disturbed the polling and forced the voters to flee away without casting their votes and the police most unjustly opened fire upon the fleeing persons as alleged in para graph 8(h) of the election petition ? 1 (a)(v) Whether the petitioner was attacked by the 300 persons as alleged in paragraph 8(i) of the election petition ? 1(a)(vi) Whether as alleged in paragraph 8(i) of the petition a little later some of the petitioner 's voters were threatened and beaten by the 1st respondent 's supporters including the persons mentioned in paragraph 8(f) of the petition ? 1(a) (vii) Whether the allegation in para graph 8(j) that the I st respondent and his agents workers and supporters went round canvassing from about 3.00 P.M. on 5 3 1972, that the petitioner was dead or was sure to die and as such there was no use of casting votes in his favour, is true ? 1(a)(viii) Whether as a result of the above incident several voters failed to cast their votes even at the repoll held on 8 3 1972 ?" Although the High Court has found that Yarlagadda Subbarao and four others beat Mandava Seetaramayya, it could not be established that they were the agents of Rao or had attacked him with his consent.
Issue No. 1(a)(i) was decid ed against the election petitioner.
The finding of the High Court on Issue No. 1 (a)(ii) is as follows: "From the above discussion, it is established that the 1st respondent came to his election office at Chinna Ganjam on the night of 4 3 1972 accompa nied by R.W. 13, Ravipudi Venkatadri, Respondent No. 2, and one Muddana Rangarao.
It is also estab lished that at his election office, Koyi Mohanarao, Karanam Balaram, Karanam Nayudamma, Karanam Ankamma, Muddana Madana Mohana Rao, Parvathareddy Narasimharao, Parvathareddy Satyanarayana, Parva thareddy Sriramayya, Ghanta Subbayya, Thumalapenta Venkateswandu, Thummalapenta Venkateswamy, Ghunta Venkateswarulu, Narahari Venkatasubbarao, Chunduri Radhakrishna Murty, B.P.R. Vittal were present alongwith some other persons whose names are not specially mentioned by any of the witnesses.
It is also proved as alleged in paragraph 8(f) of the election petition that in the presence of the abovementioned persons, the I st respondent instructed and advised those persons and others present there "to go ahead by using undue influ ence, violence and force in preventing the voters from exercising their right of franchise and the peaceful conduct of the poll as otherwise.
he had little chance of success." 498 Issue No. 1 (a)(iii) was also decided against the respondent and it was held: "Though the petitioner 's deposition in this behalf is based only on the information furnished by the other witnesses whose evidence has already been discussed, the other evidence discussed above clearly establishes that Koyi Mohana Rao, Karnam Nayudarnma, Karanam Balaram, Karanam Ankamm, R.W. 13, Ravipudi Venkatadri, B.P.R. Vittal, Chunduri Radhakrishna Murty, Muddana Madann Mohana Rao, Parvathareddy Narasimha Rao, Munsif of Sobhirala and his sons, Satyam, Sriramnlu his grandson Ghanta Subbayya and Thummalapenta Venka taswamy, Narahari Venkata Subbarao and Thummala penta Venkateswarlu and some other people of Chirala and other villages over 100 in number pelted stones and disturbed the voters in the queues at the polling booths of Chinna Ganjam as a result of which polling was suspended from 9.30 A.M. to 11.30 A.M.
While deciding this issue presence of a few persons names in paragraph 8 (f) of the election petition was not found as persons taking part in the disturbance.
On Issue No. 1 (a) (iv) the finding of the High Court is: "From the evidence discussed above, I find that the polling which was resumed at about 11.30 A.M., continued peacefully till about 2.00 P.M., thereafter the polling was was disturbed by the persons who are found under Issue No. 1 (a)(iii) to have disturbed the polling in the morning by violence alongwith others which consti tuted a mob of nearly 300 persons armed with sticks and stones, they pelted stones at the queues of the voters standing near the polling booths causing injuries to one Kanna Nagayya and thus scared them away.
The Police apprehending fur ther danger opened fire resulting in the death of Marri Subba Reddy and injuries to Komatla Ramachan dra Reddy (P.W. 33).
The persons among others whose identity is clearly established by the evidence discussed above in the commission of the act of undue influence are (1) Koyi Mohana Rao, (2) Karanam Nayadamma, (3) Karanam Balaram, (4) Karanam Ankamma, (5) R.W. 13, Ravipudi Venkata dri, (6) B.P.R. VittaI, (7) Chunduri Radhakrishna Murty, (8) Muddana Madhans Mohana Rao, (9) Parva thareddy Narasimha Rao, Munsif of Sobhirala and his sons, (10) Satyam, (11) Sriramulu, (22) his grandson Ghanta Subbayya, (13) Thummalapenta Venkwataswamy, (14) Narahari Venkata Subba Rao and (15) Thummalapenta Venkateswarlu." Issue No. 1 (a)(v) was also decided against Rao the re spondent and it was found: "From the evidence discussed above, in my view, it is established beyond all reasonable doubt that the petitioner 499 was attacked after he ran out of P.W. 12 's hotel and covered a distance of about 10 to 12 yards towards the Railway level crossing; he was attacked by an armed mob of over 100 persons some of whom were wearing "Tractor badges" and among the assailants of the petitioner were (1) Koyi Mohana Rao of Nagendla, Mangali Krishna of Chira la, Karnam Balaram of Thimma Samudram, Parva thareddy Narasimha Rao, Village Munsif of Sobhira la, Thummalapenta Venkataswamy of Sobhirala, Parvathareddy Sriramayya and parvathareddy Sat yanarayana the sons of Parvathareddy Narasimha Rao, the Village Munsif of Sobhirala.
" Case against two of the alleged assailants namely Karnam Nayudamma and Pallapolu Venkateswarlu were not accepted.
In regard to Issue No. 1 (a)(vi) the learned Judge held against the election petitioner stating "In this state of evidence, I am reluctant to act on the solitary statement of P.W. 41 and bold this allegation proved." Issue No. 1 (a) (vii) was also decided against the election petitioner and the learned Judge stated: "I, therefore, hold that the petitioner has failed to prove that the 1st respondent or his supporters spread the rumour of the attack on and the death of the petitioner and that thereby number of Congress voters left the queues at the polling booths without casting their votes.
" Under Issue No. 1 (a)(viii) the findings recorded by the High Court against the election petitioner are: In view of the above discussion, it cannot be held that several hundred voters failed to cast their votes even at the re poll on 8 3 72 on ac count of the fear engendered by the violence perpe trated.
by the 1st respondent or his agents or supporters on 5 3 72." Having thus recorded the findings under the various sub issues under Issue No. 1 (a) the Court proceeded to advert to the discussions of (b) and (c) and came to the conclu sion: "In view of the above discussion, I hold that the acts of 'corrupt practice ' were committed by the per sons above named with the consent of the 1st respondent and therefore the election of the 1st respondent is liable to be declared void under section 100 (1)(b) of the Act.
His election is also liable to be declared void because his election agent, R.W. 13 is found guilty of corrupt practice of undue influence.
The elec tion of the 1st respondent is liable to be declared void without the further proof that the result of the election has been materially affected.
Issue 1 (b) is answered accordingly.
" In regard to Issue No. 1 (c) the High Court came to the conclusion that though some of the persons who committed the corrupt practice 500 of undue influence on 5 3 1972 were agents of the respond ent, if R.W. 13, Rao 's election agent, would not have been among them and if Rao 's consent to the acts of those others were not established, the election of the respondent could not have been set aside because there was no proof that the result of the election had been materially affected on account of the commission of those corrupt practices.
But since the Court found that undue influence on the 5th March had been committed not only with the consent of the respond ent but also by his election agent himself he being present at Chinna Ganjam on that date, the election of Rao was frt to be declared void without any proof of the result having been materially affected.
The High Court, if correct on facts, was undoubtedly right in law.
The High Court had decided issue No. 7 in favour of the election petitioner and ordered recount.
After a detailed discussion of the various allegations made in connection with the malpractices and mistakes committed in the counting of the votes under the various subissues of issue No. 6, the final conclusion of the High Court was that out of 31,038 votes counted for Rao by the Returning Officer, two had to be deducted as on recount the number was found less and on various grounds mentioned in the judgment, 129 more were directed to be deducted from Rao 's count thus leaving the net result of 30,907 valid votes in favour of Rao as per the decision of the High Court.
For the reasons given in its judgment the High Court held that 27 votes ought to have been counted for Reddy which were wrongly not counted.
Thus adding those 27 to his original figure of 30,728 the total valid votes, according to the High Court polled by Reddy were 30,755 sti11 short by 100 and odd from those of Rao.
We first take up Civil Appeal 583 of 1974 filed by Rao.
The principles of law governing election disputes and espe cially in regard to the charge of a commission of corrupt practice are well established by several decisions of this Court many of which have been noticed in the judgment of the High Court also.
We do not propose to refer to any.
We shall, however, keep the following principles in view in relation to this appeal: (1 ) That the charge of commission of corrupt practice has to be proved and established beyond doubt like a criminal charge or a quasi criminal charge but not exactly in the manner of establish ment of the guilt in a criminal prosecution giving the liberty to the accused to keep mum.
The charge has to be proved on appraisal of the evidence ad duced by both sides especially by the elec tion petitioner.
(2) That the election held and results declared on the choice of the voters should not be lightly interfered with or set aside by a court of law.
After all, in the holding of a fresh election are involved numerous botherations, tremendous ex penses, loss of public time and money and the uncertainty of the public representation from a particular Constituency.
501 (3) A charge of corrupt practice is easy to level but difficult to prove.
If it is sought to be proved only or mainly by oral evidence without there being contemporaneous documents to support it, court should be very careful in scrutinizing the oral evidence and should not lightly accept it unless the evidence is credible, trustworthy, natural and showing beyond doubt the commission of corrupt practice, as alleged.
(4) That, this Court ordinarily and generally does not, as it ought not to, interfere with the findings of fact recorded by the High Court unless there are compelling reasons for the same, espe cially findings recorded on appreciation of oral evidence.
(5) This Court, however, does not approve of the finding recorded by the High Court on a misreading or wrong appreciation of the oral evidence espe cially when it is unsupported or runs counter to the contemporaneous documentary evidence.
(6) It must always be borne in mind that the consequences of setting aside of an election on the ground of corrupt practice are very serious for the candidate concerned as well as others involved in it.
A court, therefore, should reach its conclusion with care and caution taking into consideration the broad probabilities, the natural conduct of the persons involved and the special situation in which a corrupt practice is alleged to have been committed.
In the background of the above principles we proceed to examine whether the finding of the High Court against appel lant Rao on some parts of issue No. 1 resulting in the declaration of his election as void is sustainable.
Broadly speaking, the findings against him are (1) that he had created a tense situation to bring about the defeat of Reddy before the holding of the poll on the 5th March, 1972; (2) that he had come to Chinna Ganjam in the night of the 4th March at about 9.00 p.m. in the company of his election agent Venkatadri and had instructed his workers to create violence, use force and not allow a free poll at chinna Ganjam; (3) that Rao 's election agent Venkatadri was present in Chinna Ganjam on the 5th March and had taken active part in the disturbances created on the date of the poll; (4) that Rao 's election agents, workers and supporters including more than 100 from outside Chinna Ganjam were responsible for creating violent disturbances both in the morning as also in the afternoon on the date of poll i.e. 5th March, 1972; (5) that as a result of the police firing one person on the side of Reddy was killed and another was seriously injured.
But it may pointedly be stated here that there is no finding recorded by the learned Judge that the police was in league with Rao and had deliberately fired on the fleeing party of Reddy; (6) Reddy was assaulted by the workers and supporters of Rao at about 2.00 p.m. near the Railway crossing in the hotel of P.W. 12 Satyanarayana; (7) the respondent had not been able to establish that he had not come 502 Chinna Ganjam in the night of 4th of March and had gone somewhere else or that his case of the genesis of the occur rence which led to the disturbances on the 5th March was true.
Apart from some witnesses being different, here or there, most of the witnesses to prove the case of Reddy apropos the findings above, are common and they are P.Ws 12, 29, 30, 31, 32, 42 besides P.W. 27 Reddy himself.
Shorn of details we shall examine the main ingredients of the case to see how far they have been proved to bring home the charge of commission of corrupt practice on the part of Rao.
As usual there must have been some tension in the Constituency because it was a straight contest and neck to neck fight, as the results show, between Reddy and Rao.
Chinna Ganjam was not the only place where Reddy hoped to get an absolute majority of votes.
The results indicate, although there is no separate counting of the votes polled at each booth these days, that in some parts of the Constit uency Reddy must have polled majority of the votes and in some parts Rao must have done 80.
How is it then that Rao took into his head to create disturbances at Chinna Ganjam only ? Sitaramayya, as the finding of the High Court is, was assaulted by some person on the 2nd of March, That must have put Reddy on his guard to meet any eventuality of force.
After all he was a sitting member belonging to the ruling party who, we are told, was in power in the State of Andhra Pradesh at the time of the election in question.
It is difficult to accept or imagine that any police officer especially a person of the rank of a Deputy Superintendent of Police or the police in general would have gone against Reddy and favoured and sided with Rao.
On the face of it, it was almost an absurd story and the High Court could not persuade itself to accept it.
On 2 3 1972 Reddy had asked for police bundobust at several places (vide Ext.
A 97, letter dated 2 3 1972) but had not included Chinna Ganjam in the list of those places.
In the evening of the 4th March, 1972, as the evidence adduced on behalf of Reddy shows, he was present in the travellers bungalow at Purchur wherein were also staying the Returning Officer, the Deputy Superin tendent of Police and others.
There is no evidence to show, that on receipt of the information from P.W. 31 as to what had happened in the election office of Rao in the night of the 4th March, Reddy contacted the Returning Officer or the Deputy Superintendent of Police and informed them about the alleged design of Rao and the instructions issued by him in that regard.
It is no doubt true that there were some persons working for Rao at Chinna Ganjam who did not belong to that village but were outsiders.
That by itself does not justify the inference that Rao had collected a mob of out siders to create violence.
Rao was ill advised to deny in his written statement that the 18 persons named in paragraph 8(f) of the election petition were his workers or support ers.
But they were so working from before at Chinna Ganjam as admitted by P.Ws 12, 29, 31 and 32.
One thing is clear from the evidence in this case that inhabitants Sobhirals, a hamlet of Channa Ganjam, which is mostly inhabited by Telgas, had enmity with Reddy.
Chinna Ganjam lay within the 503 Panchayat Samithi of Jetapalom of which Ronda Ramaswami Reddy was the President.
He was an influential man on the side of Reddy.
He had created several enemies including Balaram.
Sobhirala people were inimically disposed towards him as he had not allowed them to have a separate Gram Panchayat.
In this background, we proceed to examine the documentary evidence first to find out whether the allega tions made by Reddy against Rao as to the alleged happenings on the 4th and 5th of March, '72 are correct or not.
If correct, they were very important events and they must have found place in one document or the other.
But conspicuously they are absent.
In this connection we would first refer to Ext.
A 271 the Returning Officer 's Report dated 5 3 1972.
In the report it is mentioned that Chinna Ganjam village is a troublesome village and not that Rao had made it troublesome just before the day of poll.
Additional police bundobust was asked for in this village.
It further mentions that at about 10.00 A.M. there were clashes outside the polling station when agents of both the candidates were present and on account of the disturbances, voters were not turning up.
After the voting was resumed, for sometime, it went on peacefully, but at 3.45 P.M. the Returning Officer received a phone message from the Election Deputy Tehsildar, Chirala from Chinna Ganjam that polling was adjourned by all the Presiding Officers at 2.45 P.M. "consequent on the opening of fire by the police on an unruly mob gathered at the Polling Stations which has resulted in injuries to two persons of whom one was reported to have been seriously injured".
This report further mentions that the election to Purchur Assembly was a straight contest between Reddy and Rao and on a complaint made by two boys of Rao 's group at about 10.00 A.M. that Sri Ramaswami Reddy, President, Pan chayat Samithi, Vetapalem and a few of his followers had assaulted them, "both sides gathered in large numbers and prepared for a clash.
" Relating to the afternoon incident the report states: "The people belonging to both the par ties are said to have begun to reassemble near the Polling Stations with sticks and stones.
They exchanged blows with sticks and hurled stones at each other." Then the report proceeds "Apprehending danger to the Polling Material and polling personnel the Presiding Officers are reported to have closed the doors of the polling Stations".
The report further states "Apprehending danger to his life as also to the Polling parties, and danger to the polling material, the Inspector opened fire on the mob".
It is to be emphasised that if the story set up by Reddy as to the happening in the election office of Rao in the night of the 4th March had any semblance of truth, the Returning Officer must have learnt if from Reddy either the same night at travellers ' bungalow at Purchur or on the 5th March before he sent his report to the Election Commission.
It was neither alleged nor found that the Returning Officer had any animus against Reddy or was favourably disposed towards Rao.
The version given in the report speaks a volume.
We would now refer to Ext.
A lO6 the First Information Report drawn on the statement of the Inspector of Police, Chirala, camping at Chinna Ganjam, in connection with the firing case.
This was drawn 16 1104SC1/76 504 up at 5.15 P.M. on the 5th of March, 1972.
Before we advert to some portions of this First Information Report, an admitted position of the topography may be stated which emerged from the evidence.
There were 8 polling booths in Chinna Ganjam situated in two school buildings.
On the Western side of the building is a road and the Railway line.
On the Northern side of the Railway line is a railway crossing west of which is village Sobhirala and near the Railway crossing is the hotel of P.W. 12.
Workers and supporters of Reddy admittedly were on the eastern side at or near about the time of disturbances and those of Rao were on the western side mostly on the road.
In this background, let us see what the Inspector states in Ext.
A 106.
He says that on receipt of the information about the disturbances at Chinna Ganjam D.S.P. Ongole and he started from Purchur and picked up a striking force on the way.
When they reached China Ganjam they "found a large gathering on the road and also on the eastern side of the High Court beyond the High School premises.
" One Balaram of Thimmasamudram was leading the gathering, which was on the west of the High School compound.
On being enquired by the Inspector he said that men of Reddy had assaulted their people.
This was in conection with the assault on Maddana Madana Mohan Rao and Maddana Ramasinga Rao the two boys on the side of Rao:Statement of Ramasinga Rao recorded by the Inspector is Ext.
B 27. entry on the basis of this statement in the police papers is B 28.
The F.I.R. then states: "At about 2.45 p.m. the mob began gathering in large numbers on both the sides and hurling stones at each other.
Ramaswamy Reddy was in the mob, which was hurling stones . .
The mob belonging to both the candidates viz, Sri Gade Venkata Reddy and Maddukun Narayana was determined in their violent attitude and advanced towards the polling station to break open the same to enter into it to commit all unruly acts.
" This report states that in all three rounds were fired.
In the first Information Report as drawn originally 4 persons are named as accused, 3 belonging to the party of Rao and Ramaswamy Reddy a staunch and influential helper of Reddy.
The case diary Ext.
A 107 of the same date shows the total number of accused as 42, including the four mentioned earlier.
Mr. M.C. Bhandare, counsel for Rao and Mr. A.K. Sen, counsel for Reddy drew our attention to this list of 42 persons which almost evenly included as members of the mob persons of both sides.
It is remarkable that though Ronda Ramaswami President of the Panchayat Samithi, Vetapalem is shown as one of the leading member in the firing case, no where is to be found in any paper the name of Venkatadri the election agent of Rao.
No paper mentions even his presence at Chinna Ganjam on the 5th of March.
Now comes the most important document__statement of Reddy himself recorded at 5.55 p.m. on 5.3.1972 by a Second Class Judicial Magistrate which could be treated as a dying declaration, if unfortunately, Reddy would not have survived, but the injuries inflicted on him were not so severe as to result in his death.
On the basis of this statement, later, a formal First Information Report was drawn up.
This is 505 Ext.
A 100.
In answer to the Magistrate 's question as to how did Reddy receive injuries he narrated the story that when he came to Chinna Ganjam and Ongole road junction he heard that some 200 persons were brought for hire from Chirala, Thimmasamudram and other villages to disturb poll ing as he commanded 85% of electorate there.
The persons who are said to have Collected the mob are Mohan Rao, Mangali Krishna Balaram, Krishna Murthy Babu of Chirala, Raghavaiah, Radha Krishnamurthy of Thimmasamudram, Rangarao, Cinema hall proprietor of Inkollu and Nayudamma, President of Chintagumpalli village.
Neither Rao is mentioned nor Ven katadri 's name is mentioned as the persons who had collected the mob there.
If there was any semblance of truth in the Reddy 's version of what happened on the night of the 4th in the election office of Rao, Reddy could not have missed to refer to that incident.
If Venkatadri was present at Chinna Ganjam on the 4th or the 5th March, his name would have found first in the statement of Reddy.
We deplore and deprecate the assault on Reddy a fact which has been found to be true by the High Court.
We were informed and copies of the judgments were tried to be filed before us showing that all the cases have ended in acquittal and no person has been convicted of the alleged offences.
But that apart, we reiterate, even at the risk of repetition, that the main story set up by Reddy as to what happened on the 4th night as also on the morning of the 5th and afternoon does not find support from any of the contemporaneous documents not even from the statement of Reddy himself.
The statement of Ramasinga Rao was entered in the Station House General Diary, Vetapalem and it is Ext.
A 128.
The entry is Ext.
The Entry of report is Ext.
Although it is unfortunate that on behalf of Rao neither of the two boys said to have been assaulted nor any body else was examined to prove the incident of assault on them which led to the further disturbances on the 5th of March, 1972 at Chinna Ganjam, the contemporaneous documents do indicate that the genesis of the disturbance was the alleged assault on the two boys.
It does not appear to be a case where a false story of assault on two boys was made a pre tence to start assault at Reddy 's workers and voters.
Hardly any voter was injured or examined to state that a planned attempt was made on behalf of Rao to prevent the voters from casting their votes in favour of Reddy.
Let us now see what kind of oral evidence is there to prove the incident.
As to what happened in the Rao 's elec tion office at Chinna Ganjam in the night of 4th March, P.W. 32 Raju Bali Reddy is the primary witness of the alleged episode.
He had a bunk near the election offices of the two candidates.
We regret to find that Rao had in the beginning denied that he had any election office at Chinna Ganjam but he was constrained to admit that such an office had been opened by his supporters.
We also do not appreciate the attempt on the part of Rao in challenging the claim of P.W. 32 of his running a beedi bunk at Chinna Ganjam near the houses where the election offices of the two candidates had been set up.
Nevertheless 506 the story told by P.W. 32 is too imaginative and unreal to inspire any confidence.
The High Court, in our opin ion, was wholly wrong in accepting his evidence to be true.
He (P.W. 32) says that he saw the respondent coming in a car on the 4th of March, 1972 to Chinna Ganjam between 8.30 and 9.00 p.m. to his election office.
He was asked to bring sodas to his election office.
He took two dozens of soda bottles to Rao 's office and there he heard him saying "If Congress votes are polled I am sure to lose and requested them to see that votes are not polled if necessary even by violence".
He names certain persons present there.
There after he was asked to take some soda bottles to the Congress election office of Reddy.
There P.W. 31 asked him "You had been to the election office of the first respondent, what is going on there ?".
The said sodawala replied "that the first respondent was telling that if all the votes in Chinna Ganjam are polled he was sure to be defeated and even by resorting to violence they should see that votes are not polled".
Is it a natural story ? Is it at all believable ? Was this conspiracy for creating violence at Chinna Ganjam suddenly and so openly hatched up in the Rao 's election office at Chinna Ganjam and in the presence of so many persons ? Was it so done uttering every relevant word of the conspiracy in the presence of the sodawala and making it audible to him ? Is it possible to believe that the sodawala passed on the words of the conspiracy to create violence at Chinna Ganjam in a cavalier and casual manner on the query of P.W. 31 ? All these questions posed above are suggestive of one and one answer only.
The whole story smacks of nothing but untruth.
It could never have happened in the manner stated by P.W. 32.
P.Ws. 29,30, 31 and 42 who claimed to have heard this story from the sodawala are all out to support Reddy on any version and they cannot fare any better if the most unnatural story told by sodawala is too big to swallow and too incredible to accept .In disagreement with the findings of the High Court, we hold that Reddy has failed to prove that Rao and Venkatadri came to Chinna Ganjam in the evening of the 4th March, 1972 or that they instructed their agents and workers to deliberately create violence on the date of poll.
We also hold that Venkatadri was not present at Chinna Ganjam on the 5th of March and had no part to play in the disturbances which took place on that date.
It is no doubt true that disturbances did take place at Chinna Ganjam on the 5th of March.
It was not a one side affair.
Both sides were responsible for entering into clash es.
The High Court has lightly brushed aside one very significant fact in this connection and which is a very telling one.
How is it that in the police fire two persons were injured one of whom died, and both of them were men of Reddy ? In the circumstances, is it possible to accept that the police fired only on the fleeing party of about 2,000 persons ? The evidence on the side of Reddy shows that they did not aim any firing on the aggressors and attackers the men of Rao who all were on the western side.
Unless one could go to the absurd extent of saying that members of the police force had also joined hands with the mob of Rao one has got to conclude that, mainly, aggressors and attackers 507 were the persons on the side of Reddy.
They were the source of danger and .terror to the polling staff and the materials of the polling booths and the police had to open fire aiming at them for the protection of the polling staff and the materials.
It is because of that reason that by the police firing two persons on the side of Reddy only were injured and none on the side of Rao.
We are inclined to think strongly and justifiably that because of the disturbances which took place on the 5th of March, 1972 both in the morning and in the afternoon at Chinna Ganjam, Reddy felt it advisable to make a mountain out of it, and apart from many other unsustainable allegations of corrupt practices, which are made against Rao, he made use of the incident of dis turbances on the date of poll at Chinna Ganjam to connect Rao and his election agent with them.
Without alleging their active participation or consent he had no material to succeed merely.
on the ground of disturbances.
And that led him to invent two tissues of untrue stories one the alleged talk by Rao in his election office in the night of the 4th March and the other the presence of Venkatadri at Chinna Ganjam on the 5th.
In our opinion none of the two stories has any semblance of truth.
The High Court committed a gross error in placing reliance upon such intrinsically and inherently weak pieces of oral evidence as against the contemporaneous documents.
The reports Exts.
A 374 to A 381 of the Presiding Officers of the Polling Station at Chinna Ganjam do not throw any further light except that due to.
rioting polling had to be adjourned.
The total number of electors in Chinna Ganjam was about 6000 and odd and as we have said above even assuming that a large majority of this was to cast their votes in favour of Reddy, by creating disturbances at Chinna Ganjam and preventing the voters from casting their votes in favour of Reddy or forcing ,them to cast them in favour of Rao, Rao could not have imagined to succeed in the election.
There is no evidence to indicate what was the estimated strength of Rao and Reddy in the remaining 67,000 votes which were to be cast at several booths other than those at Chinna Ganjam.
The date of poll being the 5th of March in the entire Purchur Constituency it was not possible even to estimate as to what actually had happened in other booths to induce Rao to plan the creation of disturbances at Chinna Ganjam.
We do not agree with the finding of the High Court on issue No. l(a)(iii) that the polling had to be suspended because Rao 's people over 100 in number pelted stones and disturbed the voters in the queues at the polling booths of Chinna Ganjam.
We are of the opinion that it was a sponta neous trial of strength on both sides in which were involved persons on the side of Reddy led by Ronda Ramaswami Reddy and several others who were helpers and workers of Rao.
The under current of their participation in the disturbances was their previous enmity as already alluded to.
Similarly we do not agree with the finding of the High Court as recorded under issue no. l(a)(iv).
If 300 persons armed with sticks and stones pelted stones on the queues of the voters then some of them must have been injured by the police firing.
But none was injured.
No responsible government servant has been examined to say anything in support of Reddy 's story of the disturbances.
We were informed 508 by Mr. Bhandare that a magisterial enquiry into the inci dent had been made.
An Inspector General of Police, Andra Pradesh had also held an enquiry in respect of the disturb ances which took place at Chinna Ganjam on the 5th of March.
By filing an affidavit in the High Court Rao wanted the reports of the Magistrate and the Inspector General of Police to be produced.
But they were not made available as according to him the reports must have stated matters going in favour of Rao and against Reddy.
Coming to the finding of the High Court apropos issue No. l(a)(v) we want to merely observe that Reddy must have been attacked by the mob in which must have been Rao 's men.
But it was not as a result of any conspiracy, instructions or consent of Rao or his election agent.
At or about the time when the clashes on the two sides were at their peak at about 2.00 p.m. the mob on the side of Reddy was on the eastern side and that of Rao was on the western side.
Apprehending police firing or on its start the mob fled helter skelter.
The mob on the western side must have lied towards village Sobhirala for their safety.
In the way, they came across Reddy and as saulted him.
While condemning in the strongest language the assault on Reddy, whoever were responsible for this, we do not find good reasons to connect the assault with Rao or Venkatadri.
The High Court has presumed consent of the respondent in what happened on the 5th of March at Chinna Ganjam because of the respondent 's application Ext.
A 273 in connection with the release of an Ambassador car MSM 2383 engaged in his election campaign which had been seized by the police while parked at the railway gate of Chinna Ganjam.
It was just a coincidence that at the time the assault was made on Reddy, the car happened to be there.
The presence of Badugn Subbarao either in ,the car or near it again may be an isolated act of Badugu Subbarao but the gap to connect the incident directly or indirectly with Rao to say that it was done with his consent is too big to be filled in by refer ence to the seizure of the car and the prayer of release of the Ambassador car.
For the reasons stated above, we hold that the High Court has not decided issue No. 1 (b) correctly.
No corrupt practice was established to have been committed by any person with the consent of the respondent or by his election agent and the election of Rao, therefore, was wrongly de clared to be void under section 100(1)(b) of the Act.
Even so, we had to consider whether Civil Appeal 686 of 1974 filed by Reddy is fit to be allowed.
Rao may not be guilty of having committed any corrupt practice yet, if on recount it could be found that Reddy had polled majority of votes, he could succeed in both the appeals.
Mr. Sen, learned counsel for appellant Reddy made his submissions in regard to two types of ballot papers only and urged that if we were to hold in his favour in that regard the result of the counting would definitely tilt in favour of Reddy as he will have polled more votes than those polled by Rao.
For the reasons to be hereinafter stated, we do not accept the argument of Mr. Sen to be well founded and correct and hold that the result of the number of 509 votes polled by each candidate arrived at by the High Court is correct and does not call for any interference by this Court.
The first objection raised on behalf of Reddy relates to rejection of 338 votes apparently appearing to have been cast in his favour but were rejected on the ground that the marks given on them were on the reverse side of the symbol and not on the obverse side.
Several such votes apparently cast in favour of Rao were also rejected.
Mr. Sen submitted that 338 votes ought to have been treated as validly polled by Reddy.
We do not accept this contention to be sound.
In our opinion the High Court has rightly maintained their rejection.
Rule 39(2)(b) of the Conduct of Election Rules, 1961 hereinafter referred to as the Rules, requires: (2) The elector on receiving the ballot paper shall forthwith; (a) proceed to one of the voting compartments; (b) there make a mark on the ballot paper with the instrument supplied for the purpose on or near the symbol of the candidate for whom he intends to vote;" On a plain reading of the said rule it is clear that the voter has to make the mark on the ballot paper and not behind the ballot paper.
The symbols are given on the ob verse or the front side of the ballot paper and the require ment of the rule to mark on the ballot paper on or near the symbol of the candidate for whom the elector intends to vote necessarily means marking on the obverse side either on the symbol itself or so near it as to clearly indicate the intention of the voter.
Putting a mark on the reverse side even though because of the thinness of the paper the symbol may be visible is far from complying with the requirement of the rule.
Such a mark will make the ballot paper in substance and in effect bearing no mark at all within the meaning of clause (b) of sub rule (2) of rule 56 of the Rules or bearing a mark indicating the vote thereon placed in such a manner as to make it doubtful to which candidate the vote has been given justifying its rejection under clause (d).
Mr. Sen called our attention to the recent amendment of the Rules made in 1974 wherein it has been clearly specified that the mark must be put on the face of the ballot paper and also that the ballot paper must be rejected if it does not bear a mark on the face, and submitted that on the language of the rules as they stood at the relevant time in this case ballot papers bearing mark on the reverse side against the symbol of a particular candi date indicating the choice of the voter could not be reject ed as invalid.
We think that the amendment of the rule merely clarifies what was intended earlier and does not make any change or departure from the previous position.
Since some High Courts had taken a contrary view while considering the rules or similar rules, for the sake of clarification and precision, it appears to us, that amendment of the rule became necessary.
A single Judge of the Andhra Pradesh High Court dealing with similar Gram Panchayat Rules had taken a contrary view in W.P. 2851/70, decided on 10 12 1970.
The learned Judge followed the decision of the Allahabad 510 High Court in Swarup Singh vs Election Tribunal(1) and a decision of the Rajasthan High Court in Dhanpatlal vs Harisingh(2).
We hold that the view expressed in those cases is not correct.
On the contrary the decision of the Madras High Court in A. V. Palaniawami vs The Election Court (District Munsif), Tiruppur and others(3) in this regard expresses the correct opinion.
The point in that case, has been well discussed with reference to various authorities both in India and other countries.
We would like to refer to the dictum of Baron Pollock in Mr. Sykee vs Mr. Mc Arl hur(4) wherein it has been said that the mark must be on the face of the ballot paper and that the vote bearing cross on the back being not in compliance with the Act was rightly rejected.
On the basis of the decision aforesaid as also on some others a passage is to be found at page 140 in Hals bury 's Laws of England, Third Edition, Vol.
14 to the fol lowing effect: "A ballot paper marked on the back only should not be counted, even though the mark shows through the paper on to the front".
The High Court has noticed in its judgment paragraph 17(k) of Chapter VIII of the Hand Book issued and published by the Election Commission in 1972 for the guidance of the Return ing Officers.
While indicating the procedure for counting, the Returning Officers have been instructed to reject a ballot paper when there is no mark at all on the front or when the mark is in blank area, that is to say at the back or entirely in the shaded area.
It is no doubt true that the binding directions either generally or specially could be issued by the Election Commission under sub rule (1) of Rule 56.
Sub rule (2) does not speak about the issu ance of any such directions.
Even so in our opinion the administrative instructions issued by the Election Commis sion give a clue to the interpretation of rule 39(2) and rule 56(2) of the Rules.
The instructions so issued are in onsonance with the interpretation of the rules aforesaid as put by us.
The second objection relates to the acceptance in favour of Rao two groups of ballot papers one group consisting of 186 votes and the other 262 votes.
The High Court has separately dealt with them in its judgment.
Out of 186 votes Ext.
X 26 contains 135 votes, X.27 11 votes, X.28 38 votes.
X.29 one vote and X.30 one vote.
Out of the other group Ext.
X.31 contains 241 votes, X.32 one vote and X.33 20 votes.
The High Court has mentioned the different types of defects which remained on the two groups of ballot papers aforesaid.
Broadly speaking the defects were an infraction of rule 38(1) of the Rules making them liable to be rejected under clause (h) of sub rule (2) of rule 56.
But then under the first proviso to sub rule (2) it has been stated ; "Provided that where the returning officer is satisfied that any such defect as is mentioned in clause (g) or clause (h) has been caused by any mistake or failure on the part (1) A.IR.
1960 All. 66.
(2) AI.R. (3) (4) 4 O 'Malley and Hardeastle, 110.
511 of a presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect.
" On a consideration of the evidence adduced by the par ties and the broad probabilities and the circumstances of the case the High Court has come to the conclusion, and in our opinion rightly, that the said two groups of ballot papers were rightly not rejected by the Returning Officer and were correctly counted for Rao.
The Returning Officer while accepting a ballot paper, even though, he does so under the proviso aforesaid, is not required to record any reasons for acceptance.
Reddy had not made out any case that any objection had been taken on his behalf as respects the acceptance of the above mentioned votes of the two groups.
No objection was specifically raised in the elec tion petition that any of the ballot papers counted in favour of Rao should have been rejected under rule 56(2)(h) or that it could not be accepted under the proviso.
Reddy seems to have fished in troubled waters because of the order of recount made by the High Court in connection with some other defects which justified the making of such an order.
The finding of the High Court in clearest term, which could not be assailed before us with any success, is as follows: "Having regard to the above discussion, it cannot be held that in the instant case the ballot papers which did not contain both the distinguish ing mark and the signature of the Presiding or Polling Officer or where either the signature or the mark was not present were accepted by the Returning Officer, without satisfying himself as to whether that defect was due to the mistake or the failure of the Presiding Officer or Polling Offi cer.
As that is not established and as it is, also clear to the Court from the record placed before it, that these defects have occurred only due to the failure of the Presiding Officer and further as there is no doubt aS to the genuineness of these ballot papers, it is held that the ballot papers were rightly accepted by the Returning Officer.
" In our judgment the High Court is right in arriving at the respective figures of valid votes 'polled by the two candi dates after recount as per the order of the High Court and in arriving at the conclusion that Rao had polled the major ity of the votes.
For the reasons stated above we allow Civil Appeal No. 583 of 1974, set aside the judgment and order of the High Court declaring the election of M. Narayana Rao the appel lant in that appeal, void.
We dismiss Civil Appeal No. 686 of 1974 filed by C. Venkata Reddy.
Taking into consideration the totality of the circumstances of the case, we shall make no order as to costs in either of the two appeals.
C.A. 583 of 1974 allowed.
P.H.P. C.A. 686 of 1974 dismissed.
| IN-Abs | For the election to the Andhra Pradesh Legislative Assembly out of 6 candidates 4 withdrew and Reddy and Rao were the only contestants.
Rao was elected by a margin of a few hundred votes.
Reddy challenged election of Rao by filing an election petition in the High Court on several grounds of corrupt practice, as well as on the ground that there were mistakes in counting of the votes.
Reddy in his election petition besides asking for the setting aside of the election of Rao also claimed that he should be declared elected in his place.
The High Court ordered a recount of votes.
However, even after the recount, Rao had still majority of votes in his favour although the margin was reduced.
The Election Petitioner contended that he was the sit ting member and was very popular and that he lost election on account of undue influence, force and violence on a large scale used by Rao.
It was alleged that about 200 supporters of Rao with the active assistance of respondent No. 2, one of the candidates who had withdrawn, threatened, beat and threw stones at the voters and supporters of Reddy; that as a result of the violence the polling had to be stopped and the polling took place later on; that about 300 supporters of Rao armed with sticks, iron rods and other weapons sur rounded the hotel where Reddy was staying and forced him to go out and severely assaulted him; that Reddy had to be removed to hospital.
In the election petition allegations were made against Rao almost under every sub section of Section 123 of the Act.
But the only corrupt practice found by the High Court against Rao was the commission of corrupt practice of undue influence within the meaning of Section 123(2).
The High Court.
therefore, set aside the election of Rao.
The High court, however, did not grant the decla ration in favour of Reddy since according to the High Court it was not found that but for the corrupt practice Reddy would have secured the majority votes.
Both Rao and Reddy, therefore, filed appeals in this Court.
Allowing the appeal of Rao and dismissing the appeal of Reddy.
HELD: (1 ) That the charge of commission of corrupt practice has to be proved and established beyond doubt like a criminal charge or a quasi criminal charge but not exactly in the manner of establishment of the guilt in a criminal prosecution giving the liberty to the accused to keep mum.
The charge has to proved on appraisal of the evidence ad duced by both sides especially by the election petitioner.
[500 F G] (2) That the election held and results declared on the choice of the voters should not be lightly interfered with or set aside by a court of law.
After all, in the holding of a fresh election are involved numerous botherations, tremendous expenses, loss of public time and money and the uncertainty of the public representation from a particular constituency.
[500 G H] (3) A charge of corrupt practice is easy to level but diffi cult to prove.
If it is sought to be proved only or mainly by oral evidence without there being contemporaneous documents to support it, court should be very careful in scru 491 tinizing the oral evidence and should not lightly accept it unless the evidence is credible, trustworthy, natural and showing beyond doubt the commission of corrupt practice, as alleged.
[501 A B] (4) That, this Court ordinarily and generally does not, as it ought not to, interfere with the findings of fact recorded by the High Court unless there are compelling reasons for the same, especially findings recorded on appre ciation of oral evidence.
[501 B] (5) This Court.
however, does not approve of the finding recorded by the High Court on a misreading or wrong appreci ation of the oral evidence especially when it is unsupported or runs counter to the contemporaneous documentary evidence.
[501 B C] (6) It must always be borne in mind that the conse quences of setting aside of an election on the ground of corrupt practice are very serious for the candidate con cerned as well as others involved in it.
A court, there fore, should reach its conclusion with care and caution taking into consideration the broad probabilities, the natural conduct of the persons involved and the special situation in which a corrupt practice is alleged to have been committed.
[501 C E] On appreciation of evidence the Court found that the High Court wrongly came to the conclusion that the corrupt practice was committed either by Rao or his agent; that the main story set up by Reddy does not find support from any of the contemporaneous documents including statement of Reddy himself.
The genesis of the disturbance was the alleged assault on the two boys by the Reddy group.
The disturb ances before the election did take place but it was not a one sided affair.
Both sides were responsible for entering into dashes.
The High Court committed a grave error in placing reliance on such intrinsically and inherently weak pieces of oral evidence as against the contemporaneous documents.
[501 H, 505F, 506A, G, 507 C] No corrupt practice was established to have been commit ted by any person with the consent of respondent Rao or his election agent.
The High Court, therefore, wrongly declared election of Rao to be void under Section 100(1) (b).
[508 F] The ballot papers on which the marks were put on the reverse side of the symbol and not on the obverse side were rightly rejected.
Rule 39(2)(b) of the Conduct of Election Rules 1961 requires the elector to make a mark on the ballot paper on or near the symbol of the candidate for whom he intends to vote.
On a plain reading of the said rule that the voter is to make the mark on the ballot paper and not behind the ballot paper.
[509 B E] Swarup Singh vs Election Tribunal AIR 1960 Allahabad 66 and Dhanpatilal vs Harisingh, AIR , over ruled.
A. V. Palaniswami vs The Election Court (District Mun sif), Tripura and others and Mr. Sykes vs Mr. Mc.
Arthur, 4 D 'Malley and Hardcastle 110.
approved.
|
Appeal No. 92 of 1953.
Appeal under section 110 of the Civil Procedure Code from the Judgment and Decree dated the 8th November 1949 of the Bombay High Court in Appeal from Original Decree No. 195 of 1947 arising out of the Judgment and Decree dated 20th December 1946 of the Court of Civil Judge, Senior Division, Sholapur in Special Suit No. 78 of 1945.
C.K. Daphtary, Solicitor General of India (R. A. Govind, with him) for the appellants.
J.B. Dadachanji, Sri Narain Andley and Rajinder Narain, for respondents.
October 11.
The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J.
This appeal is from a reversing decree of the Bombay High Court in a suit for the possession of certain immovable properties which was dismissed by the Civil Judge, Senior Division, Sholapur.
The value of the properties has been found to be over Rs. 10.000.
The original decree was on 20 12 1946.
The decree of the High Court allowing the plaintiff 's claim was on 8 11 1949.
The defendants applied for leave to appeal to the Federal Court on 6 1 1950.
The High Court directed the trial court to find the value of the property which was the subject matter of the suit at the time of the suit and on the date of the passing of the decree in appeal.
On 22 1 1951 the lower court ascertained the value as stated above. 'The High Court thereafter granted leave to appeal on 1 10 1951, overruling the objections raised by the plaintiff to the grant of such leave.
The maintainability of this appeal has been questioned before us by Mr. Dadachanji, learned counsel for the respondents, in a somewhat lengthy argument.
His main contention was that article 133 of the 874 Constitution applies to the case, and as the value is below Rs. 20,000, no appeal can be entertained.
It is the correctness of this argument that we have to consider.
On the date of the decree of the High Court, the defendants had a vested right of appeal to the Federal Court, as the properties were of the requisite value, and on 6 1 1950 they sought a certificate of leave to appeal, which was bound to be granted.
The Constitution establishing the Supreme Court as the final appellate authority for India came into force on 26 1 1950.
Did the vested right become extinguished with the abolition of the Federal Court? If the court to which an appeal lies is altogether abolished without any forum substituted in its place for the disposal of pending matters or for the lodgment of appeals, the vested right perishes no doubt.
We have therefore.
to examine whether the Constitution which brought the Supreme Court into being makes any provision for an appeal from a reversing decree of the High Court prior to the date of the Constitution respecting properties of the value of Rs. 10,000 and more being entertained and heard by the Supreme Court.
Article 135 is in these terms: "Until Parliament by law otherwise provides, the Supreme Court shall also have jurisdiction and powers with respect to any matter to which the provisions of article 133 or article 134 do not apply if jurisdiction and powers in relation to that matter were exercisable by the Federal Court immediately before the commencement of this Constitution under any existing law".
Article 133 runs as follows: "(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies (a) that the amount or value of the subject matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees or such other sum as may be specified in that behalf by Parliament by law; or 875 (b)that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value; or (c) that the case is a fit one for appeal to the Supreme Court; and, where the judgment, decree or final order appealed from affirms the decision of the court immediately below in any case other than a case referred to in sub clause (c), if the High Court further certifies that the appeal involves some substantial question of law. . . " It is reasonably clear that article 133 does not apply to this "matter".
The language is prospective, and the judgment, decree or final order from which the appeal is to be taken is that of a High Court in the territory of India that is a High Court established under the Constitution.
The territory of India comprises the territory of the States.
Article 214 says that there shall be a High Court for each State, and clause (2) thereof provides that "the High Court exercising jurisdiction in relation to any Province immediately before the commencement of this Consti tution shall be deemed to be the High Court for the corresponding State".
We can compendiously speak of the High Court prior to the Constitution and the High Court after the Constitution as the Provincial High Court and the State High Court.
A High Court in the territory of India means a State High Court, and article 133 provides for appeals against any judgment, decree or final order in a civil proceeding of such High Court.
Though article 133 does not apply, we have still to see whether it is a matter as regards which jurisdiction and powers were exercisable by the Federal Court immediately before the commencement of the Constitution.
It is unnecessary to refer in detail to the earlier enactments defining the jurisdiction of the Privy Council, and the Government of India Act, 1935 establishing the Federal Court and conferring a limited jurisdiction on the same.
It is sufficient to point out that as the law then stood, the Federal Court had jurisdiction to entertain and hear appeals 111 876 from a decree of a High Court which reversed the lower court 's decree as regards properties of the value of more than Rs. 10,000.
The aggrieved party had a: right to go before it, without any special leave being granted.
It was a matter over which jurisdiction was "exercisable" by the Federal Court.
The construction that it was "exercisable" only if the matter was actually pending before the Federal Court and that it could not be said to be pending until the appeal is declared admitted under Order XLV of the Civil Procedure Code is too narrow, and does not give full and proper scope to the meaning of the word "exercisable" in the article.
Pending matters are dealt with under article 374(2), and we must give some meaning to the provisions of article 135.
As soon as the decree of the High Court came into existence, the jurisdiction of the Federal Court to bear an appeal from that decree became exercisable, provided certain conditions as to security and deposit were complied with, which are not material for our present purpose.
Reference may be made here to paragraph 20 of the Adaptation of Laws Order, 1950, as amended in 1951, which provides "Nothing in this Order shall affect the previous operation of, or anything duly done or suffered under, any existing law or any right, privilege, obligation or liability already acquired, accrued or incurred under any such law. . " By this Order section 110, Civil Procedure Code was adapted to the new situation but the requirement as to value Was raised from 10,000 to 20,000.
What is provided is that this adaptation will not affect the right of appeal already accrued.
If we accede to the argument urged by the respondents, we shall be shutting out altogether a large number of appeals, where the parties had an automatic right to go before the Federal Court before the Constitution and which we must hold was taken away from them for no fault of their own, merely because the Supreme Court came into existence in place of the Federal Court.
An interpretation or 877 construction of the provisions of the Constitution which would lead to such a result should be avoided, unless inevitable.
The Full Bench decision of the Madras High Court in Gundapuneedi Veeranna and three others vs Gundapuneedi China Venkanna and seven others(1) was a case where the decree of the High Court and the application for leave to appeal were both after the Constitution came into force.
Whether in all matters where there was a right of appeal under section 110 of the Civil Procedure Code it continues in respect of all suits filed prior to the Constitution is a question that does not arise for decision now.
On the merits, the appeal is unassailable.
The family whose genealogical tree is given in the opening portion of the judgment of the trial Judge owned what may be compendiously described as Sangam properties and Peta Velapur Mahal properties, and all of them were of the nature of watan.
The Sangam lands were held by the eldest branch represented by Yeshwant Rao (son of Panduranga Rao) by right of lineal primogeniture.
When Yeshwant Rao and his widow Tarabai died in November 1924, these properties went to the plaintiff Shankar Rao 's branch as the next senior in line.
The Peta Velapur Mahal properties were held in three shares by Narsinga Rao, Vithal Rao and Krishna Rao, the fourth brother Shyama Rao having no right as he was insane.
Defendants 1, 2 and 3 represent Krishna Rao 's branch.
After Yeshwant Rao 's death, Lakshman Rao, the grandfather of defendants I and 2, filed a suit No. 1064 of 1925 for a declaration that he was the nearest heir to the Sangam properties, the Peta Velapur Mahal properties and the cash income appertaining to the inamdar 's right in Sangam.
He got a declaratory decree that he was the nearest heir of the deceased Yeshwant Rao, and had a right in such capacity to take possession of ill the properties, excluding the inam income and the Sangam lands specified in Schedule B of the decree and a small item of property situated in the same village and specified in Schedule G.
As regards the excluded items, Shankar (1) I.L.R. 878 Rao, the first defendant, (plaintiff in the present suit) was held to be the heir.
On appeal to the High Court, the decree of the Subordinate Judge was confirmed, except as regards the cash allowance of three villages Nevare, Tambure and Limbagaon, which was also declared to belong to Shankar Rao.
As the decree was only a declaratory decree, a fresh suit had to be filed by Narayana Rao, son of Lakshman Rao, to recover possession of the Peta Velapur Mahal properties at Mahalung, Lavang and Wafegaon.
This was Civil Suit No. 2148 of 1936.
Recovery was also sought of some cash and the value of some ornaments and clothes, etc.
The claim was resisted by Shankar Rao, and his main plea was that in lieu of the properties claimed, a large number of lands at Sangam had originally been given to the plaintiff 's branch, and that unless those properties were given back, the plaintiff could not claim to recover the Velapur Mahal properties.
The suit ended in a compromise decree.
Shankar Rao was to deliver actual possession of the lands to the plaintiff as owner together with costs and mesne profits and the plain tiff was to abandon the rest of the claim.
The decree states, "The defendant has given up all the contentions in his written statement".
After possession was taken of the Velapur Mahal properties under the decree, the plaintiff, Shankar Rao, brought this suit to recover from defendants I and 2 the Sangam lands to which he referred in his earlier written statement alleging that they were given to their grandfather in lieu of maintenance.
The defendants have made the answer that the items of Sangam lands claimed by the plaintiff were given to their ancestor, Krishna Rao absolutely under the deed of 1867, and that since then they had been in the enjoyment as owners thereof.
The Civil Judge dismissed the plaintiff 's suit finding that the case of the plaintiff to the effect that the lands were given to Krishna Rao for maintenance under the deed of 1867 was unfounded.
But on appeal by Shankar Rao (the plaintiff), the High Court reversed this decree construing the deed of 1867 as a deed under which absolute owner 879 ship was not transferred to Krishna Rao and that the specified items of Sangam lands were given to him provisionally and conditionally till Krishna Rao obtained possession of the Peta Velapur Mahal lands which were then under a mortgage.
We have examined the deed closely and do not find any warrant for the view taken by the learned Judges on appeal.
The deed is Exhibit No. 35, and it is printed at page 63 of the Paper Book.
The correctness of the translation is admitted.
It was executed by Narsinga Rao of the first branch in favour of Krishna Rao of the last branch, predecessor in title of defendants 1 to 3.
After reciting that Krishna Rao was entitled to a one third share in the income appertaining to the Deshmuki rent of the family at Peta Velapur Mahal, it proceeds to say, ". .
In lieu of the land of that Mahal and in respect of the cash allowance of the Haqdari rights we have given to you for a 1/3 share of land of this Mahal the following lands from the village of Sangam which is continued with us by Vadilki right (the right of primogeniture)".
The deed proceeds to set out the items by areas, assessment, and boundaries, and then goes on: "In all 6 numbers have been given by us to you in lieu of your entire income from the said Mahal.
Now, five and half Pavs out of the said land are in your Vahiwat ' at present and the remaining land was to have been given over to your vahiwat, but we having formerly mortgaged the said village to Ramchandra Pandurang Deshpande, 5 'Pavs ' of land is not in your Vahiwat this day.
Hence on the expiry of 6 years, the period of the mortgage, you may carry on the entire Vahiwat of the land passed in your favour in writing as aforesaid without any hindrance.
We have no claim of inheritance left on the aforesaid land".
The deed concludes with a provision made for the residence of the donee in an open space in the same villagers It further states: ".
There are four shops and a wada at the Kasba of Velapur, and a one third share thereof has been allotted to your share over which we have no 880 claim of inheritance left".
It is obvious from this document that the one third share of Krishna Rao 's branch in the Peta Velapur Mahal properties was retained by Narasinga Rao and that in lieu thereof Krishna Rao was given six items of the Sangam properties, the whole of which could not then and there be given over into his possession and management as there was a usufructuary mortgage over a portion of the lands which was to expire after the lapse of six years from that date.
The lands referred to as mortgaged are the Sangam lands and not the Peta Velapur Mahal lands as wrongly assumed by the High Court.
There is absolutely nothing said about the properties being given for maintenance to ]Krishna Rao.
On the other hand, in two places we find that any right to inheritance was given up.
In fact, this case of the plaintiff was given up before the trial Judge.
It is true that there was an exchange of properties, but there is nothing to warrant the view of the learned Judges that it was provisional or conditional, and that the Sangam lands were to be returned when the Velapur Mahal properties went into the possession and management of Krishna Rao 's branch.
To say that such an arrangement was implied is to ignore the plain terms of the deed.
The properties now in dispute are the items covered by the deed.
They did not form the subject matter of the two previous litigations.
Since 1867, the date of Exhibit No. 35 they have always been in the possession of the defendants ' branch as owners.
It must also be remembered that the earlier suits of 1925 and 1936 proceeded on the basis that the defendants ' branch was the heir to the properties left by the deceased, Yeshwant Rao.
There is no other question which arises for discussion or decision.
It follows that, the trial Judge was right in holding that the plaintiff 's claim to recover possession of the suit properties covered by the deed of 1867 was entirely baseless.
The decree of the High Court is reversed and that of the trial Judge is restored with costs throughout payable by the plaintiff to the defendants.
| IN-Abs | This appeal to the Supreme Court was from a reversing decree of the Bombay High Court in a suit for possession of certain immovable properties.
The suit was dismissed by the trial court on 20 12 1946, the value of properties being found to be over Rs. 10,000.
The decree of the High Court allowing the plaintiff 's claim was passed on the 8th November 1949.
The defendants applied to the High Court for leave to appeal to the Federal Court on 6 1 1950 which was granted on 1 10 1951.
One of the questions for determination was whether article 133 of the Constitution applied to the case and the appeal was competent to the Supreme Court.
Held, that article 133 did not apply as it relates expressly to appeals against any judgment, decree or final order in a civil proceeding of a High Court in the "territory of India".
Held further that on the date of the decree of the High Court, the defendants had a vested right of appeal to the Federal Court as the properties were of the requisite value and on 6 1 1950 a certificate of leave to appeal was bound to be granted.
Held also that the appeal was competent to the Supreme Court by virtue of the provisions of article 135 of the Constitution as the jurisdiction and powers in relation to the matter in dispute were exercisable by the Federal Court immediately before the commencement of the Constitution under an existing law inasmuch as the Federal Court had jurisdiction to entertain and hear appeals from a decree of a High Court which reversed the lower court 's decree as regards properties of the value of more than Rs. 10,000.
The construction contended for by the respondent that the jurisdiction was exercisable under article 135 by the Federal Court only if the matter was actually pending before the Federal Court and that it could not be said to be pending until the appeal is declared admitted under Order XLV of the Civil Procedure Code is 873 too narrow and does not give full and proper scope to the meaning of the word 'exercisable ' in the Article.
|
Appeal No. 1212 of 1974.
From the Judgment and Order dated 26 4 74 of the Madhya Pradesh High Court in Election Petition No. 4/72.
526 Hardayal Hardy and S.K. Gambhir, for the Appellant.
D.V. Patel, B. Jindal, M.M.L. Srivastava and E.C. Agarwa la, for the respondent.
The Judgment of the Court was delivered by JASWANT SINGH, J.
This appeal under section 116 A of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act ') is directed against the judgment and order dated April 26, 1974, of Indore Bench of the High Court of Madhya Pradesh whereby the election of the appel lant to the Madhya Pradesh Legislative Assembly from Kha chrod Assembly Constituency No. 247 at the general elections of 1972 has been set aside under section 100(1)(b) of the Act on the election petition filed by Vimal Kumar Choudhury, respondent herein, who Was an elector in the said constituency.
Pursuant to the notifications issued under section 30 of the Act calling upon the aforesaid constituency to elect a member to the M.P. Legislative Assembly, nomination papers by the appellant and some others were filed on February 8, 1972.
On scrutiny of the nomination papers held by the Returning Officer on February 9, 1972, nomination of 8 candidates was found valid.
Out of the said 8 candidates, 3 withdrew their candidature with the result that only five candidates including the appellant who was set up by Bhar tiya Jan Sangh and Rajendra Jain (p.W. 39) who was set up by the Indian National Congress contested the election.
The poll took place on March 8, 1972.
On March 12, 1972, the appellant was declared elected as a result of counting of the polled votes which showed that he had secured 23,572 votes as against 22,327 secured by Rajendra Jain (P.W. 39), his nearest rival.
On April 24, 1972, the respondent herein presented an election petition challenging the elec tion of the appellant alleging commission by the latter of various acts of corrupt practices.
The particulars of cor rupt practices alleged to have been committed by the appel lant were set out by the respondent in Paragraphs 13, 14 and 15 of his election petition.
In paragraph 13 of the elec tion petition, it was inter alia stated as under : "(13).
That the respondent has committed the corrupt practice of publication of false statement of fact in relation to the personal character and/or conduct of Shri Rajendra Jain (hereinafter referred to as the 'Congress Candidate ') falling in the purview of section 123(4) of the Act as per the facts and particulars mentioned hereinafter.
Leaflet (13)(xi).
That the Congress candidate is the follower of the Jainism wherein the eating of cow meat is absolutely prohibited.
Shri Rajendra Kumar Jain does not eat meat at all.
Amongst Hindus who form a majority of the voters in the Constituency, cow is regarded as a sacred animal and worshipped like God.
Persons who eat cow meat are looked with hatred by the Hindus and are discarded from the society.
527 (13) (xii).That the respondent/Election Agent got printed and distributed a leaflet enti tled: "Beware, understand the Congress Candidate." (Leaflet is attached hereto and marked as Annexure 'A ').
(13)(xiii).
That the leaflet Annexure 'A ' contains the following statement of facts which are false, which the respondent either believed to be false or did not believe to be true in relation to the personal character and for conduct of the Congress Candidate, being the statement reasonably calculated to prejudice the prospects of Congress candidate 's election: " .
What to speak of other things, Rajendra Jain went on tour to those countries where beef is prepared and served in Hotels and there he took beef even.
Do you want to cast your vote in favour of a person who is atheist who is a beef eater and is devoid of Dharma . " (13) (xiv) .
That the pararticulars re garding the date, place, time and name regarding the distributors of Annexure 'A ' are given herein below : Sr.
Date Place Name of Time Distribution (a) 5.3.
72 Khachrod (Shukar Rampartap s/o About variya Chouk)in Ramsukh 3.00 P.M. the meeting of Jan Khachrod Sangh at which the respondent and his election age nt Shri Amrudda Heda were also present.
(b) 6. 3.72 Ramsingh 9.00 A.M. to R/o Ganesh 11.00 A.M. Chowk, Birlagram, Nadga.
The election petition was vigorously contested by the appellant.
In the course of the written statement filed by him, the appellant denied to have any concern with or knowledge of the aforesaid leaflet and averted that during the election time, he never saw any such leaflet; that it was only in the course of the election petition that he came to know of the leaflet and that he had no knowledge of the truth or falsity of the contents thereof.
The appellant further averred that it was only after the defeat of Rajen dra Jain that the story of the leaflet was manouvred and manufactured for the purpose of the election petition.
The appellant further averred that he did not do anything to prejudice the prospects of the election of Rajendra Jain.
On the pleadings of the parties, the learned Judge (to whom the election petition was .assigned for trial and disposal by the Chief Justice of the High Court) framed a number of issues but it is only with the following issues with which we are concerned in this appeal: 528 "4) (a).
Whether the leaflet Annexure 'A ' was published by or with the consent of the respondent by the persons and on the dates mentioned in para (13)(xiv) of the petition ? (b) If so, whether the said leaflet contained false statements in relation to the personal char acter and conduct of the congress candidate Rajen dra Jain which the respondent did not believe to be true or believed to be false ?" On consideration of the evidence adduced by the parties during the course of the regular trial of the petition, the learned trial Judge allowed the election petition and set aside the election of the appellant under section 100(1)(b) of the Act.
The findings arrived at by the learned Judge in so far as they are relevant for the purpose of this appeal are as follows : "Though the findings on most of ,the issues are against the petitioner yet it has been found that the pamphlet exhibit P 10 which was a false state ment with regard to the personal conduct and char acter of the candidate Rajendra Jain was got print ed by the respondent at the printing press of P.W.34 Ramprasad.
The defence raised by the re spondent with regard to this pamphlet has been found to be not established.
It has been held that it was the respondent who himself by letter exhibit
P 20 got this pamphlet printed in the printing press of P.W. 34.
Ramprasad.
The evidence given by the petitioner about its distribution by Ram Singh (P.W. 21) and Rampratap Dhakad (not examined) with the consent of the respondent has been disbelieved.
However, it has been found as a fact that it was the respondent himself who got 2000 copies of this pamphlet printed and published.
This is, therefore, a clear case where the respondent is guilty of getting this pamphlet printed and published against the congress party candidate Rajendra Jain.
The respondent is, in the light of the aforesaid finding clearly guilty of committing the corrupt practice as mentioned in sub section (4) of section 123 of the Representation of the People Act.
When such a pamphlet is published by the returned candi date the only inference that can be drawn is that the publication was reasonably calculated to prejudice the prospects of the election of the other contesting candidate Rajendra Jain; Conse quently under section 100(1)(b) the election of the respondent is liabIe to be declared void and set aside.
" The trial Judge, however, left the parties to pay and bear their own costs of the petition.
It is against this judgment and order that the present appeal has been pre ferred.
Mr. Hardy, who has taken great pains to present the case of the.
appellant has, in the first instance, attempted to lead us to the realm of hyper technicalities.
He has tried to pick up faults in the verifica 529 tion on the election petition and the affidavit accompanying the petition and has urged that the petition ought to have been dismissed by the High Court in limine under section 86 of the Act in view of the fact that the verification and the affidavit ,did not contain sufficient particulars of the corrupt practices attributed to the appellant and did not at all give particulars ,of printing of the offending leaflet.
He has further urged that the petition was also liable to be dismissed as the copy of the petition meant to be served on the appellant was not accom panied by a copy of annexure 'A ' i.e. Exh.
We find ourselves unable to accede to these contentions.
The alle gations of corrupt practice and particulars thereof as given in paragraph 13 of the election petition reproduced above are sufficiently clear and precise.
The affidavit accompanying the petition in support of the allegations of corrupt practice and the particulars thereof also conform to the form prescribed for the purpose.
The appellant had an easy access to the court record and could have no difficulty in gathering the necessary material to meet the case set up by the respondent by a reference to the leaflet (Exh.
P 10) which formed an annexure to the election petition.
It is also now well settled that failure to give pariculars of printing of the pamphlet is not detrimental and cannot lead to the dismissal of the petition.
(See Prabhu Narayan vs A. K. Srivastava) (1).
That apart, the petition could also not have been dismissed in view of section 99 of the Code of Civil procedure which clearly says that a defect which does not affect the merits of the case or the jurisdiction of the Court cannot invalidate the decision.
The preliminary con tentions of Mr. Hardy cannot, therefore, be sustained.
Continuing his arguments, Mr. Hardy, while fairly.
and rightly conceding that the contents of the aforesaid leaflet (Exh.
P 10) do cast a reflection on the personal conduct and character of Rajendra Jain (P.W. 39) and as such fall within the mischief of section 123(4) of the Act, has vehemently assailed the aforesaid findings of the trial Judge with regard to the printing and publication of the leaflet (Exh.
P 10) by the appellant.
He has contended that the evidence adduced in the case does not at all establish that it was the appellant or his election agent or any one of his sup porters who got the offending leaflet (Exh.
P 10) printed or published or that the leaflet was distributed to the members of the public of Khachrod Constituency with the consent of the appellant or his election agent to prejudice the election prospects of Rajendra Jain (P.W.39).
In view of the concession made by Mr. Hardy that the contents of the aforesaid leaflet (Exh. P 10) do cast a reflection on the personal conduct and character of Rajendra Jain (P.W. 39) and as such would fail within the mischief of section 123(4) of the Act, the only point that survives for decision in this appeal is whether the High Court was right in setting aside the election of the appellant on the ground of 'publication ' by him or with his consent: of the leaflet which according to the respondent contained false statement of facts as to the personal character and conduct of Rajendra Jain (P.W. 39) and was reasonably calculated to prejudice the prospects of the latter 's election to the State Legislative Assembly in the general elections of 1972.
(1)[1975] 3 S.C.C. 788.
530 The first and foremost question which is required to be determined in this connection is whether it was the appel lant who got the offending leaflet printed.
It is necessary to go into the question of printing of the leaflet (Exh.
P 10) as the finding in respect thereof is bound to have as held by this Court in Prabhu Narayan 's case (supra), an important bearing on the question of its distribution either by the appellant or with his consent and a discussion of the evidence regarding printing provides a satisfactory method of assuring oneself as to whether the distribution was made, as alleged, by the appellant or with his consent.
Now the proof regarding printing of the leaflet (Exh.
P 10) consists of the evidence of Ramprasad (P.W.24) who is the Manager of Kamla Printing Press, Ujjain, which is owned by his wife.
Mr. Hardy has stressed that the statement of Ramprasad is untrustworthy; that his conduct does not inspire confidence and that his statement being that of an accomplice cannot be relied upon without independent corrob oration.
Though Mr. Hardy his levelled trenchant criticism against the evidence of Ramprasad (P.W. 24,), we are not inclined to agree with him.
There is nothing strange about the conduct or behaviour of Ramprasad which may impel us to discard his testimony.
Despite the searching cross examina tion to which he was subjected, his credit has remained unshaken.
The mere fact that he printed the offending leaflet cannot clothe him with the character of a guilty associate or partner in the crime of corrupt practice within the meaning of ,section 123 (4) of the Act, which consists in the publication by the candidate or his agent or by any other person with the consent of the candidate or.
his election agent, of any statement of fact which is false or which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate which is reasonably calculated to prejudice the prospects of that candidate 's election.
In the instant case, Ramprasad (P.W. 24) was neither the election agent of the appellant nor is there any allegation that he published the offending leaflet.
Section 127 A of the Act on which Mr. Hardy has placed strong reliance in support of his contention that Ramprasad (P.W. 24) was in the position of an accomplice has no relevance.
It has nothing to do with the offence in question.
The ommission on the part of Ramprasad to send to the concerned District Magistrate a copy each of the declaration and the printed material as required by sub section (2) of section 127 A of the Act may lay him open to prosecution for an offence under sub section (4 ) of section 127 A of the Act but would not make him an accomplice or render his statement untrustworthy.
Ramprasad (P.W. 24) has affirmed that on February 22, 1972, Rajaram from Khachrod .came to him and made inquiries from him regarding the printing charges of a leaflet, and that he turned up again on the following day with letter (Exh. P 20) from the appellant and told him that he had been sent by him.
The witness has further deposed that Rajaram departed after handing over to him the letter (Exh.
P 20), the draft or manuscript of the leaflet (Exh.
P 21) which had to be printed and the printing charges amounting to Rs. 45/ .
He has further stated that the charges were acknowledged by him the same day by means of a receipt of the even date; that on February 24, 531 1972, when he had completed the composition of draft of the leaflet, Anirudh Hada (R.W. 1), an advocate of Ujjain, came to him and after telling him that he was the representative and worker of the appellant, went through the printed proof (Exh. P .23) of the leaflet (Exh.
P 10) and advised him that the name of Rajaram Parmar appearing at one place on the first sheet and at two places on the second sheet in the proof should be removed and replaced by the words 'a citizen of Khachrod '.
The witness has further stated that 2,000 copies of the leaflet were printed by him on February 25, 1972 and handed over to Rajaram.
The state ment of Ramprasad (P.W. 24) receives strong corroboration not only from the various documents viz. the draft (manu script) (Exh.
P 21), carbon copy of receipt (Exh. P 22), proof (Exh.
P 23) of the offending leaflet, carbon copy of the bill (Exh.
P 24), entry (Exh.
P 25) in his cash book dated February 24, 1972 regarding the payment of the print ing charges of Rs. 45/ and entry (Exh. P 26) in his Order Book Register in respect of the leaflet produced by him but also from the letter (Exh.
P 20) which admittedly bears the signatures of the appellant and contents whereof are in the handwriting of his brother, Surendra Singh.
The letter runs as follows : " 23.2.72 Shri Ramprasadji, KamaIa Press, Ujjain.
Please print 2000 pamphlets of the matter which I have sent through Rajaram.
I need this pamphlet early.
Hence print it within a day or two.
I am sending Rs. 45/ with Rajaram, which please accept.
The proof will be seen by Hadaji, who will come to you.
Sd/ Kunwar Virendra singh, Member, Legislative Assembly, M.P. Constituency Khachrod, District Ujjain.
" The above letter, it would be seen, contains intrinsic evidence which goes a long way to support the testimony of Ramprasad (P.W. 24).
It clearly establishes (i) its own despatch to the witness by the appellant through Rajaram; (ii) the despatch to the witness by the appellant through Rajaram of the draft or manuscript of the matter to be printed, (iii) the placing of the order by the appellant for printing of 2,000 copies of the manuscript (Exh.
P. 2.1) in the form of leaflets; (iv) the remittance by the appellant through Rajaram of Rs. 45/ to defray the printing charges; and (v) the advice by the appellant to the witness that the proof would be seen by Mr. Anirudh Hada.
Although Mr. Hardy has tried hard to persuade us to hold that the letter could not have been written by or at the instance of the appellant, we are not inclined to agree with him.
There is nothing unusual in the contents of the letter being in the hand of 532 Surendra Singh in view of the statement of Chander Singh (R.W. 25) (corroborated as it is by the clear admission of the appellant himself that the relations between the two brothers i.e. Surendra Singh and the appellant remained cordial from the time of the wedding of the appellant 's daughter which took place in August, 1967 to nearly four months after the general elections of 1972.
and that in the said general elections, Surendra Singh worked with the appellant and also accompanied him sometimes.
That Ramprasad 's (P.W. 24 's) statement possesses a ring of truth and he was not trumped up by any of the arch ene mies of the appellant including Surendra Singh and Rajendra Jain (P.W. 39) as Mr. Hardy would have us believe is mani fest from another telling circumstance viz. the significant omission on the Part of the appellant to contradict Rampra sad (P.W. 24) by examining Rajaram who was no other than his own polling agent as is evident from Exhibit P 30 which admittedly bears the signatures of the appellant.
It can, therefore, be safely presumed that Rajaram was not prepared to support the appellant by refuting the statement of Ram prasad (P.W.24).
The assertion of the appellant that he deputed his brother, Surendra Singh alongwith Chander Singh (R.W. 25) to go to Ranasan in the State of Gujarat to bring his jeep from his relative, Thakur Harish Chander Singh, who was not returning, the same despite several demands made from him through letters and telegrams; that while so deputing his brother he handed over to him six blank official letter heads which were used by him as a Member of the State Legis lative Assembly after putting his signatures and affixing the rubber stamp of his designation thereon so that they might be utilized for making reports/complaints to the Police or other officials of the Transport Department in case his relative refused to return his jeep and that Surendra Singh misused one of the aforesaid letter heads and fabricated Exh.
P 20 as his relations with him became strained over the demand for division of the landed property which was got mutated by his father during his lifetime in the name of Surendra Singh 's son is nothing but a tissue of lies woven to escape the grave consequences of addressing the letter (Exh.
P 20) to Ramprasad (P.W. 24).
The contents of the letter (Exh.
P 26) being, therefore, in the hand of Surendra Singh is not a circumstance which can rea sonably arouse suspicion regarding its genuineness.
On the contrary, it is consistent with the normal course of human conduct.
It may well be that the appellant being otherwise busy, dictated the contents of the letter (Exh.
P 20) to his brother,Surendra Singh and thereafter put his own signature thereon.
It cannot also be overlooked that the appellant has been shifting his stand from time to time with regard to the aforesaid blank sheets to suit his own convenience.
Whereas at one place in the complaint (Exh. P 33) filed by him on July 31,1973, in the Court of Magistrate 1st Class, Khahrod, he averted that he delivered those forms 533 to Chand Singh Raghubanshiand Berulal, Driver, at another place in the same complaint, he made a veiled averment to the effect that the letter heads were handed over by him to his brother, Surendra Singh.
The plea taken by the appellant that he gave six blank letter heads with his signatures thereon to his brother, Surendra Singh, is also falsified by the .First Information Report (Exh.
R 79) made by him to the station House Officer, Police Station, Chhatripura, Indore, on September 26, 1973 wherein he appears to have stated that Surendra Singh sold his Fiat car No. MPO.
1241 by forging his signatures on a document.
If the appellant had in fact handed over.
six blank letter heads with his signatures thereon to Surendra Singh, as asserted by him, the latter could have easily used one of those letter heads.
It is also worthy of note that whereas at the foot of the complaint (Exh.
P 33), the appellant cited Chand Singh, s/o Saman Singh Raghubanshi, resident of Mosi Gate, Khachrod as his witness, in the instant election petition he has produced Chander Singh, s/o Chandrabhansingh of Khachrod as his witness in proof of the handing over of the afore said six letter heads bearing his signatures to Surendra Singh.
It is also difficult to believe that the appellant would hand, over half a dozen blank letter heads bearing his signatures to his brother, Surendra Singh specially when his wife, according to his own admission in the report (Exh. R 84) dated July 26, 1973 accompanied his brother to Ranasan.
All these circumstances furnish a proof positive of the falsity of the statement of the appellant in regard to the circumstances in which letter (Exh.
P.20) came into existence.
The foregoing discussion leaves no room for doubt that it was the appellant who got the offending leaflet printed at the Kamla Printing Press, Ujjain.
This takes us to the crucial question of the distribu tion of the offending leaflet by the appellant or his election agent or by some other person with the consent either of the appellant or his election agent.
Though the appellant and his election agent, Anirudh Hada, advocate (R.W. 1) have asserted that they had no connection with the distribution of the leaflet and the learned counsel for the appellant has also sought to make capital out of the High Court 's observation at one place that the distribution of the, leaflet was not by the appel lant or with his consent and at another place that the appellant himself was responsible for the publication of the leaflet (which according to the decision of this Court in Prabhu Narayan 's case (supra) means distribution of the printed material).
We shall show by reference to the unim peachable direct and circumstantial evidence which the High Court has failed to consider in its proper perspective that the only conclusion which could reasonably have been arrived at was that the distribution of the leaflet (which has not been disbelieved by the High Court to have been made) was by and with the consent of the appellant or his election agent.
534 As already stated the respondent had alleged in the election petition that the leaflet was distributed on two different dates and at two different places in his constit uency (1) on March 5, 1972 at Shukravariya Bazar, Khachrod at the meeting of Jan Sangh at which the appellant and his election agent, Anirudh Hada, Advocate were seated on the dais and (ii) on March 6, 1972 at Nagda.
The distribution of the leaflet on March 5, 1972 is alleged to have been made by Rampratap and on March 6, 1972 by Ram Singh (P.W. 21).
We propose to discuss the evidence with regard to these two distributions separately.
That a public meeting was organised and held on the afternoon of March 5, 1972 by the Jan Sangh Party in Shukravariya Bazar, Khachrod, at which the Rajmata of Gwalior, the appellant and his election agent, Anirudh Hada, advocate (R.W. 1 ) were seated on the dais and which was addressed by the Rajmata of Gwalior admits of no doubt as the same is admitted by both the appellant and his election agent, Anirudh Hada, (R. W. 1) as also by the appellant 's witness, Ramdas (R.W. 24).
It is only the distribution of the leaflet (Exh.
P 10) at this meeting which is denied by them.
The denial cannot, however, be sustained in view of clear and convincing evidence of Badri lal (P.W. 15), Nanalal (P.W. 27) Khursheed Ahmed (P.W. 35) and Shaitanmal Sisodia (P.W. 38).
All these witnesses have categorically stated that at the aforesaid meeting at which besides others the Rajmata of Gwalior, the appellant and his election agent, Anirudh Hada (R.W. 1) were seated on the dais, they saw leaflet (Exh. P 10) which appeared to have been issued in the name of a Nagrik of Khachrod being distributed to the persons who had assembled to attend the meeting by Rampratap Dhaked of Khachrod.
The witnesses have further stated that in the aforesaid leaflet (Exh. p 10) it was inter alta written that Rajendra Jain "while touring abroad had taken cow meat.
" If the appellant or Anirudh Hada had nothing to do with the distribution of the leaflet, there was nothing to stop them from restraining Rampratap from distributing the same or admonishing him for doing so.
It is no doubt true that the respondent has not been able to produce Rampratap in proof of his allegation but it cannot be lost sight of that the former did summon the latter as his witness but he did not appear despite serv ice.
the course of the statement made by him as his own witness, the respondent has explained that on Rampratap 's omission to appear before the Court as his witness despite service, he contacted the latter to enquire about the reason for his non appearance and was told by the latter that he could not attend the Court since his brother was married to the niece of Vardiram (R.W. 30) and his appearing as a witness in the Court would strain his relations with Vardiram.
In the course of his statement, Vardiram (R.W. 30,), who is staunch worker of Jan Sangh and who appears to have worked for Jan Sangh and addressed public meetings in support of its candidates during the last general elections had to admit that his real nephew was engaged to the daugh ter of Rampratap.
It is also significant that though Ram pratap was also summoned as a witness by the appellant, the latter gave him upon December 12, 1973.
It is, therefore, crystal clear that the non appearance of Rampratap as a witness for the 535 respondent was entirely due to his anxiety to maintain cordial relations with Vardiram.
The totality.
of the evidence adduced in the case, therefore, leaves no room for doubt that the distribution of the leaflet (Exh. P 10) at the meeting of the Jan Sangh Party held on the afternoon of March 5, 1972 in Shukravariya Bazar, Khachrod, was with the consent of the appellant or his election agent, Anirudh Hada, advocate (R.W. 1).
The distribution of the copies of the leaflet (Exh. P 10) at Nagda on March 6, 1972 also stands proved.
by the direct evidence of Ram Singh (P.W. 21), Ajit Singh (P.W. 22), Shanker Singh (P.W. 23) and Jawahar Lal (P.W. 37).
Ram Singh (P.W. 21) who besides being an employee of the Gwalior Rayon Mills is a newspaper hawker has stated that during the last general elections, he worked for Thakur Virendrasingh who was a candidate of the Jan Sangh party.
He has further stated that two days before the date of voting, he distributed free of cost about 300 copies of leaflet (Exh.
P 10) in which it was stated that Rajendra Jain was a meat eater, that he eats flesh and that the voters should know him.
The witness has unequivocally stated that it was the appellant who gave him the leaflets and asked him to distribute the same and told him that his remuneration for this job would be duly paid to him and that subsequently, Rs. 4/ were paid to him as remuneration for distributing the leaflets by the President of Nagda Nagar Jan Sangh Party.
Although it has been emphasized by Mr. Hardy that the statement of Ram Singh (P.W. 21) cannot be relied upon as he is a staunch worker of the Congress organ isation and is also a member of the Indian National Trade Union Congress which is a subsidiary institution of the Indian National Congress, it cannot be ignored that the Indian National Congress and the Indian National Trade Union Congress did not see eye to eye with each other in the matter of choice of the candidates for election during the last general elections.
This is evident from the statement of appellant 's own witness, Vishnu Singh (R.W. 2) who has deposed that the Indian National Trade Union Congress sup ported Maheshchandra Lala who was an independent candidate.
The statement of Ram Singh (P.W. 21) receives ample corroboration from the evidence of Shanker Singh (P.W. 23) and Jawahar Lal (P.W. 37) (who is a non Congressman).
These witnesses have clearly stated that one or two days before the date of voting, Ram Singh (P.W. 21) who is also a news paper hawker distributed copies of leaflet (Exh.
P 10) without any charge in Nagda in which it was inter alia mentioned that Rajendra Jain was a cow meat eater and during his trip abroad he stayed at the places where cow meat was served.
Ajit Singh (P.W. 22) has also affirmed that about two days before the date of polling when he had gone to Nagda Mandi for shopping, he came across a leaflet wherein it was mentioned that "while Rajendra Jain was abroad, he stayed in hotels where cow meat was served and that he being a Jain, stayed in such hotels." Even if the testimony of Ram Singh (P.W. 21) which has been disbelieved by the High Court is excluded from consideration, even then there are some unimpeachable and telling pieces of =circum stantial evidence to establish the distribution of the leaflet (Exh.
P 10) by the 536 appellant or with his consent which cannot be easily ignored.
These circumstances are (i) it was the appellant who as already observed caused the election leaflet (Exh.
P 10) to be printed by Ramprasad (P.W. 24.) at the Kamla printing Press, Ujjain; (ii) in the normal course of human conduct, no one gets any material printed without a purpose and in the instant case, the purpose manifestly was to malign the conduct and character of Rajendra Jain by distri bution of the leaflet (Exh.
P 10) amongst the inhabitants of Khachrod Constituency, (iii) the selection of time and place for distribution of the leaf .
let (Exh.
P 10)) which openly denounced Rajendra Jain and cast aspersions on his personal character and conduct and appealed to the elector ate not to vote for him.
The offending leaflet was got distributed at a largely attended election meeting held at Khachrod to canvass support for the appellant where both the appellant and his election agent were present and at other places in Nagda which were frequented by the voters of Khachrod Constituency at a time when the tempo of the elect iion campaign was at its climax, and (iv) the omission on the part of the appellant to prove that the leaflet (Exh.
P 10) emanated from a source which had no connection with the appellant or his election agent.
Not only is the distribution of the offending leaflet proved to have been made by the appellant or his election agent or with their consent but it has also been proved by the unrebutted testimony of Rajendra Jain that the leaflet contained false statement of facts calculated to injure his personal conduct and character with a view to prejudice the prospects of his election.
In the result, the appeal fails and is hereby dismissed with costs.
P.B.R. Appeal dismissed.
| IN-Abs | The respondent, who was an unsuccessful candidate in the general election to the State Assembly, impugned the appel lant 's election on the ground that he had committed a cor rupt practice within the meaning of section 100(1)(b) of the Representation of the People Act, 1950, in that he had printed and circulated a pamphlet maligning the respondent.
Allowing the petition, the High Court set aside the elec tion.
In appeal to this Court it was contended on behalf of the appellant as a preliminary objection (i) that since the election petition served on the appellant was not accompa nied by a copy of the impugned pamphlet, the petition _was liable to be dismissed and (ii) that the evidence of the Manager (P.W. 24) of the Press in which the pamphlet had been printed, being that of an accomplice could not be relied upon.
Dismissing the appeal, HELD: (1) (a) The petition could not have been dismissed in view of section 99 of the Code of Civil Procedure which clear ly says that a defect which does not affect the merits of the case or the jurisdiction of the Court cannot invalidate the decision.
[529 D] (b) It is well settled that failure to give particulars of printing of the pamphlet is not detrimental and cannot lead to the dismissal of the petition.
[529 D] Prabhu Narayan vs
A.K. Srivastava; , re ferred to.
In the instant case, the allegations of corrupt practice and particulars thereof given in the election petition were sufficiently clear and precise.
The affidavit conforms to the form prescribed for the purpose.
Moreover, the appel lant had an easy access to the Court record and could have no difficulty in gathering the necessary material to meet the case set up by the respondent by a reference to the leafet.
[529 C] (2) (a) The mere fact that P.W. 24 printed the offending leaflet could not clothe him with the character off a guilty associate or partner in the crime of corrupt practice within the meaning of section 123(4) of the Act.
[530 D] (b) Moreover, the omission on the part of P.W. 24 to send to the concerned District Magistrate a copy each of the declaration and the printed material as required by section 127 A(2) of the Act may lay him open to prosecution for art offence under sub section
(4) of that section but would not make him an accomplice or render his statement untrustworthy.
[530 F] In the instant case, P.W. 24 was neither an election agent of the appellant nor was there any allegation that he published the offending leaflet.
Despite the searching cross examination to which he was subjected, his credit had remained unshaken.
[530 E]
|
Appeal No. 766 of 1976.
Appeal by Special Leave from the Order dated 29 11 75 of the Industrial Tribunal, Orissa in Industrial Dispute Case No. 5/75 and Special Leave Petitions (Civil) Nos. 1844A and 1845/76 L.N. Sinha, Sol.
Gen, Govind Das, (Mrs.) section Bhandare, M. section Narasimhan, A. K. Mathur and A.K. Sharma, for the Appel lant.
J. P. Goyal and Shree Pal Singh; for the Respondent.
Gobind Das, P.H. Parekh and (Miss) Manju Jatly; for the petitioner [In S.L.P. (Civil) Nos. 1844A and 1845/76].
The Judgment of the Court was delivered by GOSWAMI, J.
The Appellant, the Paradip Port Trust, is a major port governed by the provisions of the and is managed by Board of Trustees consti tuted under the provisions of the said Act.
Under section 5 of the said Act the Board of Trustees is a body corporate having perpetual succession and a common seal with power, subject to the provisions of the Act, to acquire, hold or dispose of property and may sue or be sued in the name of the Board.
An industrial dispute was raised by the Paradip Shramik Congress representing the workmen with regard to the termination of the service of one Nityananda Behera, a temporary teacher in the Paradip Port Trust High School.
The dispute was referred to the Industrial Tribunal (Cen tral) Bhubaneswar, Orissa, under section 10( 1 ) (d) of the (briefly the Act).
The respondents (hereinafter to be referred to as the Union) appeared before the Tribunal through the Adviser and General Secretary of Paradip Shramik Congress.
The appel lant sought to be represented before the Tribunal through Shri T. Misra, Advocate, who was a "Legal 539 Consultant" of the Trust.
The appellant filed their au thority in Form 'F ' under rule 36 of the Orissa Industrial Dispute Rules in his favour.
The appellant subsequently filed also a Power of Attorney executed by the Chairman of the Board of Trustees in favour of Shri T. Misra who was admittedly a practising Advocate of the Orissa High Court.
An objection was taken by the Union to the representa tion of the Paradip Port Trust (hereinafter to be described as the employer) by Shri T. Misra, Advocate, and the Union refused to give their consent to his representation as required under section 36(4) of the Act.
The Tribunal after hearing the parties upheld the objec tion of the Union.
The Tribunal examined the terms and conditions of the appointment of Shri T. Misra as Legal Consultant of the employer and held as follows : "His duties and the restrictions on his practice which have been extracted above and the terms as to his professional fees, etc. indicate that the relationship of the first party and Shri Misra is clearly that of a client and his lawyer and not that of employer and employee.
Hence, Shri Misra cannot be said to be Officer of the first party.
" The Tribunal further held: "Merely by execution of a power of attorney, the restrictions attached to a legal practitioner contained in sub section (4) of the Act cannot be circumvented.
I would accordingly bold that Shri Misra who is a legal practitioner cannot represent the first party before this Tribunal even if he holds a power of attorney executed in his favour by the first party? The appellant has obtained special leave of this Court against the above order of the Tribunal.
We have heard the Solicitor General on behalf of the appellant and Shri Goyal for the respondents.
Along with the above, appeal two Special Leave petitions Nos.
1844 A and 1845 of 1976 are also posted for hearing for admission and we have heard Mr. Gobind Das at great length.
The two Special Leave Petitions are by the management of Keonjhar Central Cooperative Bank Ltd. One application is relating to rejection by the Tribunal of the Bank 's prayer for representation before the Tribunal through its Advocate, Shri B.B. Rath, on the ground of objection by the Union under section 36(4) of the Act.
The second application relates to the, order of the Tribunal allowing Shri A.C. Mohanty, Advocate and Vice President of the Keonjhar Central Cooperative Bank Employees Union under section 36(1) of the Act notwithstanding the objection of the management.
Industrial law in India did not commence with a show of cold shoulder to lawyers as such.
There was an unimpeded entrance of legal practitioners to adjudication halls before tribunals when the Act first came into force on April 1, 1947.
Three years later when the Labour Appellate Tribu nals were constituted under the Industrial Disputes (Appel late Tribunal) Act 1950, a restriction was imposed on the parties 3 1234SCI/76 540 in engagement of legal practitioners before the Appellate Tribunal without consent of the parties and leave of the Tribunal.
When this was introduced in the appellate forum, the same restriction was imposed for the first time upon representation of parties by legal practitioners before the Industrial Tribunals as well [see Section 34 of the Indus trial Disputes (Appellate Tribunal) Act, 1950].
In view of the recent thinking in the matter of preferring legal aid to the poor and weaker sections of the people it may even be possible that the conditional embargo under section 36(4) may be lifted or its rigour considerably reduced by leaving the matter to the Tribunals permission as has been the case under the English law.
Restriction on parties in respect of legal representa tion before Industrial Courts is not a new phenomenon.
It was there in England in the Industrial Courts Act, 1919 (9 & 10 Geo 5 c 69) and.
does not appear to be altered even by the Industrial Relations Act, 1971.
Section 9 of the English Act provides that except as provided by rules, "no person shall be entitled to appear on any such proceedings by counsel or solicitor.
" However, rule 8 of the Industrial Court (Procedure) Rules 1920 allows persons to appear by counsel or solicitor with permission of the court.
The Act envisages Investigation and settlement of indus trial disputes and with that end in view has created various authorities at different levels all independent of one another.
The word adjudication occurs only with reference to labour courts, industrial tribunals and national tribu nals.
These bodies are manned by Judges of High Courts or by officers with appropriate Judicial and labour law experi ence.
The conciliation proceedings held by a Board or a Conciliation Officer are mainly concerned with mediation for promoting settlement of industrial disputes.
It is reason able to suppose that the presence of legal practitioners in conciliation may divert attention to technical pleas and will detract from the informality of the, proceedings imped ing smooth and expeditious settlement.
Legal practitioners entrusted with their briefs cannot be blamed if they bring forth their legal training and experience to the aid and benefit of their clients.
But labour law operates in a field where there are two unequal contestants.
The Act, there fore, takes care of the challenge of the situation in which the weaker party is pitted against the stronger before adjudicating authorities.
That appears to be one of the reasons for introducing consent of the parties for represen tation by legal practitioners.
Employers, with their purse, naturally, can always secure the services of eminent coun sel.
The question that arises for consideration will turn on the interpretation of section 36 of the Act which may be quoted: 36(1) A workman who is a party to a dispute shall be entitled to be represented in an proceed ing under this Act by (a) any member of the executive or other office bearer of a registered trade union of which he is a member; 541 (b) any member of the executive or other office bearer of a federation of trade unions to which the trade union referred to in clause (a) is affiliated; (c) where the worker is not a member of any trade union, by any member of the executive or other office hearer of any trade union connected with, or by any other workman employed in the industry in which the worker is employed and autho rised in such manner as may be prescribed.
(2) An employer who is a party to a dispute shall be entitled to be represented in any pro ceeding under this Act by (a) an officer of an association of employers of which he is a member; (b) an officer of a federation of associa tions of employers to which the association re ferred to clause (a) is affiliated; (c) where the employer is not a member of any association of employers by an officer of any association of employers connected with, or by any other employer engaged in, the industry in which the employer is engaged and authorised in such manner as may be prescribed.
(3)No party to a dispute shall be entitled to be represented by a legal practitioner in any concili ation proceedings under this Act or in any proceed ings before a Court.
(4) In any proceeding before a Labour Court, Tribunal or National Tribunal, a party to a dispute may be represented by a legal practitioner with the consent of the other parties to the proceeding and with the leave of the Labour Court, Tribunal or National Tribunal, as the case may be.
" Section 36 provides for representation of parties before the Tribunals and the Labour Court.
Under section 36(1) a workman who is a party to a dispute shall be entitled to be represented in any proceeding under the Act by three classes of officers mentioned m (a), (b) and (c) of that sub sec tion.
Similarly under section 36(2) an employer who is a party to a dispute shall be entitled to be represented in any proceeding under the Act by three classes of officers mentioned in (a), (b) and (c) of that sub section.
By sub section (3) a total ban is imposed on representation of a party to a dispute by a legal practitioner in any concili ation proceedings under this Act or in any proceedings before a Court of enquiry.
Then comes section 36(4) which introduces the requirement of prior consent of the opposite party and 542 leave of the Tribunals and of the Labour Court, as the case may be, for enabling a party to be represented by a legal practitioner.
Under the scheme of the Act the parties to an industrial dispute are employers and employers; employers and workmen; and workmen and workmen [section 2(K)].
The definition of "appropriate Government" under section 2(a) of the Act lays bare the coverage of industrial disputes which may be raised concerning, amongst others, several types of corporations, mentioned therein, companies, mine, oil field, cantonment board and major port.
The definition of employer under section 2(g), which is a purposive but not an exhaustive definition, shows that an industrial dispute can be raised in relation to an industry carried on even by the Government and by local authorities.
It need not be added that indus try is also carried on by private owners, private companies and partnerships.
Employers and workmen will, therefore, be drawn from numerous sources.
Leaving aside for the present industrial disputes between employers and employers and workmen and workmen, such disputes, almost, always are between employers and workmen.
Prior to the insertion of section 2A in the Act by the Amendment Act 35 of 1965 a dispute raised only by a single individual workman did not come under the category of an industrial dispute within the meaning of section 2(k).
Left to himself, no remedy was available to such an aggrieved individual workman by means of the machinery provided under the Act for adjudication of his dispute.
Such an individual dispute, for example, relating to the discharge or dismissal of a single workman, however, became an industrial dispute only if a substantial body of workmen or a union of workmen espoused his cause.
The trade union of workmen, therefore, comes to be recog nised as a live instrument under the Act and has an active role to play in collective bargaining.
Thus, so far as workmen are concerned, union is, alsmost, always involved in the dispute from the inception.
Since the dispute, itself, in a large number of cases takes the character of industri al dispute from participatory involvement of the trade union, the Act confers an unbartered right upon the workmen to be represented by a member of the executive or by an office bearer of a registered trade union.
It is, there fore, in the very scheme of things that a workman 's absolute right to be represented by an office bearer of the union is recognised under the Act.
Indeed it would have been odd in the entire perspective of an industrial dispute and the objects and purposes of the Act not to give due recognition to the union.
But for a provision like section 36(1 ) of the Act, there may have been difficulty under the general law in the way of the office bearers of the union represent ing workmen before the adjudicating authorities under the Act unless, perhaps, regulated by the procedure under sec tion 11 of the Act.
To put the matter beyond controversy an absolute right is created in favour of the workmen under section 36(1) in the matter of representation.
Having made such a provision for the workmen 's representation the employer is also placed at par with the workmen in similar terms under the Act and the employer may also be represented by an officer of the association of employers of which the employer is a member.
The 543 right is extended to representation by the office bearers of the federation of the unions and by the officers of the federation of employers.
The provisions of section 36(1) and 36(2) confer on the respective parties absolute rights of representation by persons respectively specified therein.
The rights of representation under section 36(1) and section 36(2) are unconditional and are not subject to the condi tions laid down under section 36(4) of the Act.
The said two sub sections arc independent and stand by themselves.
As stated earlier, section 36 deals with representation of the parties.
Neither the Act nor section 36 provides for appearance of the parties themselves when they are individu als or companies or corporations.
The Tribunals and the Labour Courts being quasi judicial authorities dealing with rights affecting the parties cannot adjudicate their dis putes in absence of the parties.
It is, therefore, incum bent upon the Tribunals and Labour Courts to afford reasona ble opportunity to the parties to appear before them and hear them while adjudicating industrial disputes.
This position is indisputable.
Section 36, therefore, is not exhaustive in the sense that besides the persons specified therein there cannot be any other lawful mode of appearance of the parties as such.
As indicated earlier section 36 does not appear to take count of companies and corporations as employers.
It is, however, common knowledge that industri al disputes are raised in a predominantly large number of cases where companies or corporations are involved.
Since companies and corporations have necessarily to appear through some human agency there is nothing in law to pre vent them from being represented in any lawful manner.
As Salmond says :, "Every legal person, therefore, has corresponding to it in the world of natural persons certain agents or representa tives by whom it acts . . . . "(Salmond on Jurispudence, 12th Edition, page 312.) It is not intended under the Act that companies and corporations are confined to representation of their cases only through the officers specified in section 36(2) of the Act.
They can be represented by their directors or their own officers authorised to act in that behalf in a lawful manner provided it is not contrary to any provision of the Act.
This would not, however, mean that the companies and corporations, and for the matter of that any party, are free to engage legal practitioners by means of a special power of attorney to represent their interests before the Tribunals without consent of the opposite party and leave of the Tribunal.
Again, although under section 36(2)(c) there is provi sion for the contingency of an employer not being a member of an association of employers, the device of representation provided therein would not fit in the case of a Government Department or a public corporation as an employer.
These categories of employers, known to the Act, will be put to the most unnatural exercise of enlisting the aid of an outside 544 association, albeit connected with the same type of indus try, to defend their cases before Tribunals.
Such an absurd intent cannot be attributed to the legislature in enacting section 36, which will be, if that section is the be all and end all of the types of representations envisaged under the Act.
The impossibility of the position indicated above a crucial pointer to section 36 being not exhaustive but only supplemental to any other lawful mode of represen tation of parties.
The parties, however, will have to conform to the conditions laid down in section 36(4) in the matter of representation by legal practitioners.
Both the consent of the opposite party and the leave of the Tribunal will have to be secured to enable a party to seek representation before the Tribunal through a legal practitioner qua legal practitioner.
This is a clear significance of section 36(4) of the Act.
If, however, a legal practitioner is appointed as an officer of a company or corporation and is in their pay and under their control and is not a practising advocate the fact that he was earlier a legal practitioner or has a legal degree will not stand in the way of the company or the corporation being represented by him.
Similarly if a legal practitioner is an officer of an association of employers or of a federation of such associations, there is nothing in section 36(4) to prevent him from appearing before the Tribunal under the provisions of section 36(2) of the Act.
Again, an office bearer of a trade union or a member of its executive, even though he is a legal practitioner, will be entitled to represent the workmen before the Tribunal under section 36(1) in the former capacity.
The legal practi tioner in the above two cases will appear in the capacity of an officer of the association in the case of an employer and in the capacity of an office bearer of the union in the case of workmen and not in the capacity of a legal practitioner.
The fact that a person is a legal practitioner will not affect the position if the qualifications specified in section 36(1) and section 36(2) are fulfilled by him.
It must be made clear that there is no scope for enquiry by the Tribunal into the motive for appointment of such legal practitioners as office bearers of the trade unions or as officers of the employers associations.
When law provides for a requisite qualification for exercising a right fulfilment of the qualification in a given case will entitle the party to be represented before the Tribunal by such a person with that qualification.
How and under what circumstances these qualifications have been obtained will not be relevant matters for consideration by the Tribunal in considering an application for representation under section 36(1) and section 36(2) of the Act.
Once the qualifications under section 36(1) and section 36(2) are fulfilled prior to appearance before Tribunals, there is no need under the law to pursue the matter in order to find out whether the ap pointments are in circumvention of section 36(4) of the Act.
Motive of the appointment cannot be made an issue before the Tribunal.
545 We may note here the difference in language adopted in section 36(1) and section 36(2).
While section 36(1) refers to "any member of the executive" or "other office bearer," section 36(2), instead, mentiones only "an officer." Now "executive" in relation to trade union means the body by whatever name called to which the management of the affairs of the trade union is entrusted section 2(gg).
"Office bearer" in relation to a trade union includes any member the executive thereof but does not include an auditor section 2(III).
So far as trade unions are concerned there is no difficulty in ascertaining a member of the executive or other office bearer and section 36(1) will create no difficulty in practical application.
But the word "officer" in section 36(2) is not defined in the Act and may well have been, as done under section 2(30) of the Companies Act.
This is bound to give rise to controversy when a particular person claims to be an officer of the association of employers.
No single test nor an exhaustive test can be laid down for determining as to who is an offi cer in absence of a definition in the Act.
When such a question arises the Tribunal, each individual case, will have to determine on the materials produced before it wheth er the claim is justified.
We should also observe that the officer under section 36(2) is of the association or of the federation of associations of employers and not of the company or corporation.
The matter of representation by a legal practitioner holding a power of attorney came up for consideration before the Full Bench of the Appellate Tribunal of India in the year 1951 (see Kanpur Hoisery workers ' Union vs
J.K. Hosiery Factor) ', Kanpur)(1).
The provision for representation which applied to the Appellate Tribunal was section 33 of the repealed Industrial Disputes Appeallate Tribunal) Act, 1950.
This section corresponds to section 36 of the with which are concerned.
Although the Appel late Tribunal rejected the claim of the party to be repre sented by the legal practitioner on the basis of a power of attorney, with which we agree, the reasons for its conclu sion based solely on the ground of section 36 being exhaus tive do not meet with our approval.
The Appellate Tribunal took the view that the Act intended to restrict the repre sentation of parties to the three clases of persons enumer ated in sub sections (1) and (2) of section 33.
The Appel late Tribunal was of the view that sub sections(1) and (2) of section 33 were intended to be exhaustive of the persons (other than the party himself) who might represent either of the party.
Since holding of a power of attorney is not one such mode the claim of the legal practitioner failed, ac cording to the Appellate Tribunal.
The Rajasthan High Court in Duduwala & Co. and others vs Industrial Tribunal and another(2) took the same view.
Our attention has been drawn to the decisions of the Calcutta and Bombay High Courts where in a contrary view has been taken with regard to the interpretation of section 36 as being exhaustive [see Hall & Anderson, Ltd. vs
S.K. Neogi and another(3) and Khadilkar (K. K.) General Secretary, Engineering Staff Union Bombay vs Indian Hume Pipe Company, Ltd.,Bombay, and another] (4).
For the reasons already given by us we are (1) [1952] I L.L.J. 384.
(2) A.I,R. (3) [1954] I.L.L.J. 629.
(4) [1967] I.L.L.J. 139 546 of opinon that the views of the Labour Appellate Tribunal and that of the Rajasthan High Court in this aspect of the matter are not correct and the Calcutta and Bombay High Courts are right in holding that section 36 is not exhaus tive.
The Solicitor General contends that "and" in section 36(4) should be read as "or" in which case refusal to con sent by a party would not be decisive in the matter.
The Tribunal will then be able to decide in each case by exer cising its judicial discretion whether leave, in a given case, should be given to a party to be represented by a lawyer notwithstanding the objection of the other party.
It is pointed out by the Solicitor General that great hardship will be caused to public corporations if the union is given a carte blanche to finally decide about that matter of representation by refusing to accord its consent to repre sentation of the employer through a legal practitioner.
It is pointed out that public corporations, and even Government running a transport organisation like the State transport, cannot be expected to be members of any employers ' associa tion.
In their case section 36(2) will be of no avail.
To deny them legal representation would be tantamount to denial of reasonable opportunity to represent their cases before the Tribunal.
It is submitted that since such injustice or hardship cannot be intended by law the final word with regard to representation by legal practitioners before the Tribunal should rest with the Tribunal and this will be effectively implemented if the word "and" in section 36(4) is read as "or".
This, it is said, will also achieve the object of the Act in having a fair adjudication of disputes.
We have given anxious consideration to the above submis sion.
It is true that "and" in a particular context and in view of the object and purpose of a particular legislation may be read as "or" to give effect to the intent of the Iegislature.
However, having regard to the history of the present legislation, recognition by law of the unequal strength of the parties in adjudication proceedings before a Tribunal, intention of the law being to discourage repre sentation by legal practitioners as such, and the need for expeditious disposal of cases, we are unable to hold that "and" in section 36(4) can be read as "or".
Consent of the opposite part is not an idle alternative but a ruling factor in section 36(4).
The question of hardship, pointed out by the Solicitor General, is a matter for the legislature to deal with and it is not for the courts to invoke the theory of injustice and other conse quences to choose a rather strained interpretation when the language of section 36 is clear and unambiguous.
Besides, it is also urged by the appellant that under section 30 of the , every advocate shall be entitled "as of right" to practise in all courts, and before only tribunal section 30(i) and (ii).
This right conferred upon the advocates by a later law will be properly safeguarded by reading the word "and" as "or" in section 36(4), says counsel.
We do not fail to see some difference in language in section 30(ii) from the provision in section 14(1) (b) of the , relating to the right of advocates to appear before courts and tribu nals.
For example, under section 14(1) (b) of the 547 Bar Councils Act, an advocate shall ;be entitled as of right to practise save as otherwise provided by or under any other law in any courts (other than High Court) and tribunal.
There is, however, no reference to "any other law" in sec tion 30(ii) of the .
This need not detain us.
We are informed that section 30 has not yet come into force.
Even otherwise, we are not to be trammelled by section 30 of the for more than one reason.
First, the is a special piece of legislation with the avowed aim of labour welfare and representation before adjudicatory authorities therein has been specifical ly provided for with a clear object in view.
This special Act will prevail over the which is a general piece of legislation with regard to the subject matter of appear ance of lawyers before all courts, tribunals and other au thorities.
The is concerned with.representation by legal practitioners under certain conditions only before the authorities mentioned under the Act.
Generalia Specialibus Non Derogant.
As Maxwell puts it: "Having already given its attention to the particular subject and provided for it, the legis lature is reasonably presumed not to intend to alter that special provision by a subsequent general enactment unless that intention be main fested in explicit language . or there be something in the nature of the general one making it unlikely that an exception was intended as regards the special Act.
In the absence of these conditions, the general statute is read as silently excluding from its operation the cases which have been provided for by the special one.
"(1) Second, the matter is not to be viewed from the point of view of legal practitioner but from that of the employer and workmen who are the principal contestants in an industrial dispute.
It is only when a party engages a legal practi tioner as such that the latter is enabled to enter appear ance before courts or tribunals.
Here, under the Act, the restriction is upon a party as such and the occasion to consider the right of the legal practitioner may not arise.
In the appeal before us we find that the Tribunal, after considering the materials produced before it, held that Shri T. Misra could not claim to be an officer of the corpora tion simply because he was a legal consultant of the Trust.
The Tribunal came to this conclusion after examining the terms and conditions governing the relationship of Shri Misra with the Trust.
He was neither in pay of the company nor under its control and enjoyed freedom as any other legal practitioner to accept cases from other parties.
It is significant to note that one of the conditions of Shri Misra 's retainer is that "he will not appear in any suit or appeal against the Port until he has ascertained from the Chairman that his services on behalf of the Port will not be required.
" That is to say, although on a retainer and with fixed fees for appearance in eases there is no absolute ban to appear even (1) Maxwell on lnterpretation of Statutes 11th Ed. P. 169.
548 against the Port.
This condition is not at all consistent with the position of an officer of the Trust.
We agree with the opinion of the Tribunal that Shri Misra cannot be held to be an officer of the Trust.
A lawyer, simpliciter, cannot appear before an Industri al Tribunal without the consent of the opposite party and leave of the Tribunal merely by virtue of a power of attor ney executed by a party.
A lawyer can appear before the Tribunal in the capacity of an office bearer of a registered trade union or an officer of associations of employers and no consent of the other side and leave of the Tribunal will, then, be necessary.
In the result the appeal is dismissed with costs.
Necessarily the Special Leave Petitions also fail and stand dismissed.
| IN-Abs | The appellant is a major port.
An industrial Dispute was raised by the respondent workmen with regard to the termina tion of the services of one of the employees.
The dispute was referred to the Industrial Tribunal under section 10(1)(d) of the .
The appellant sought to be represented through Shri T. Mishra, Advocate, who was described as "Legal Consultant" of the appellant.
Mr. Misra admittedly is a practising advocate of the Orissa High Court.
An objection was taken by the respondent to the representation of the appellant by Mr. Misra.
The respond ents refused to give their consent as required by section 36(4) of the Act.
The Tribunal came to the conclusion that the relationship between the appellant and Mr. Misra is that of a client and his lawyer and not that of an employer and employee.
The Tribunal also held that merely by execution of a power of attorney the restrictions attached to a legal practitioner contained in subsection (4) by Section 36 cannot be circum vented.
Dismissing the appeal, HELD: 1.
The Industrial Law in India did not commence with a show of cold shoulder to lawyers.
For the first time restriction was imposed in the year 1950 on the engagement of legal practitioners before the Appellate Tribunal without consent of the parties and leave of the Tribunal.
The restrictions on legal representations before the Industrial Courts existed in England also.
The act envisages investi gation and settlement of industrial disputes and with that end in view has created various authorities at different levels all independent of one another.
It is reason,able to suppose that the presence of legal practitioners in concili ation may divert attention to technical pleas and will detract from the informality of proceedings impeding smooth and expeditious settlement.
Legal practioners entrusted with their briefs cannot be blamed if they bring forth their legal training and experience to the aid and benefit of their clients.
But Labour Law operation operates in a field where there are two unequal contestants.
The Act, therefore, appears to be taking care of the challenge of the situation in which a weaker party is pitted against the stronger before adjudicating authorities.
Under section 36 (1) a workman who is a party to a dispute is entitled to be represented in any proceeding under the Act by 3 classes of officers mentioned in sub clauses (a), (b) and (c) of that sub section.
By sub section (3) a total ban is imposed (a), (b) and (c) of a party to a dispute by legal practi tioners in any conciliation proceedings under the Act or in any proceedings before a Court of enquiry.
Under section 36(4) a parry who desired to be represented by a legal practitioner has to take prior consent of the opposite party and leave of the Tribunal.
[539G, H, 540A, E F, 541H, & 542A] 2.
The rules of representation under section 36(1) and (2) are unconditional and are not subject to the conditions laid down in section 36(4).
[543A] 3.
Section 36 deals with the representation of the parties.
Neither the Act nor section 36 provides for ap pearance of the parties themselves when they are individuals or Companies or.
Corporations.
The Tribunals and Labour Courts being quasi judicial authorities dealing with the rights affecting the parties cannot adjudicate their dis putes in the absence of the parties.
It is therefore, incum bent on the Tribunals and Labour Courts to afford reasonable opportunity to the parties to appear before them and hear them while adjudicating the industrial disputes.
[543B C] 538 Section 36 is not exhaustive.
It is not intended under the Act that Companies and Corporations are confined 10 representation of their cases only through the officers specified in section 36(2) of the Act.
They can be repre sented by the Director, their own officers.
However, they cannot engage legal practitioners by means of special power of attorney.
[543C, F] 4.
If a legal practitioner is appointed as an officer of a Company or Corporation and is.
in their pay and under their control and is not a practising advocate.
the fact that he was earlier a legal practitioner or has a legal degree will not stand in the way of the Company or the Corporation being represented by him.
Similarly, if a legal practitioner is an officer of an association of employers or an office bearer of a Trade Union, there is nothing in section 36(4) to prevent him from appearing before the Tribunal.
[544 C D] There is no scope for the enquiry by the Tribunal into the motive for the appointment of such legal practitioner as office bearer of the Trade Union or the Employers ' Associa tion.
[544 F] 5.
The contention that 'and ' should be read as 'or ' in section 36(4) is negatived.
Consent of the opposite party is not an idle alternative but a ruling factor in Section 36(4).
[546 E F]
|
Appeal No. 258/76.
Appeal by Special Leave from the Judgment and Order dated 3 1 75 of the Allahabad High Court in Second Appeal No. 2261/66.
G.N. Dikshit and O.P. Rana, for the Appellant.
Promod Swarup and Manoj Swarup, for the Respondent.
The Judgment of the Court was delivered by JASWANT SINGH, J.
This appeal by special leave is directed against 464 the judgment and decree dated January 3, 1975, of the High Court of Judicature at Allahabad setting aside the judgment and decree dated July 27, 1965, of the Second Additional Civil Judge, Jhansi, whereby the latter affirmed the judg ment and decree of the trial Court dismissing the respond ent 's suit for declaration that order dated November 29, 1961, passed by the Superintending Engineer, Circle IV, Irrigation Works, Jhansi, U.P. terminating the services of the respondent was void and ineffective in law and he was entitled to recover a sum of Rs. 2147/ as arrears of pay and dearness allowance from the appellant.
The facts leading to this appeal are: The respondent herein was appointed as a temporary clerk in Gur Sarain Canal Division, Jhansi.
on May 16, 1954.
Seven years later, he was required to appear in a departmental examination which was held in July, 1961.
On July 12.
1961, an optional typewriting test was held by the Department.
In that test the Executive Engineer, Investigation and Planning Division, Jhansi, it is alleged, detected Gopal Deo Santiya, a clerk of Bhander Canal Division, attempting to personate and appear for the respondent.
He obtained the explanation of both the clerks and reported the matter to the Superintend ing Engineer of his Division.
Considering the explanations tendered by the clerks to be unsatisfactory, the Superin tending Engineer brought the matter to the notice of the Chief Engineer, Irrigation Department, Lucknow.
The Chief Engineer wrote back to the Superintending Engineer asking him to award suitable punishment to the aforesaid two clerks.
The Superintending Engineer thereafter issued orders terminating the services of both the clerks.
The order that was passed in respect of and served on the respondent ran as follows : "No. E 70/IV/259 Dated Jhansi, November 29, 1961 OFFICE MEMORANDUM Shri Ram Chandra Trivedi, Temporary Routine Grade Clerk is hereby served with one month 's notice to the effect that his services shall not be required after one month from the date of receipt of this Notice.
sd/ S.P. Sahni, Superintending Engineer.
" The respondent attempted to have the above order re scinded by making representations to the Chief Engineer, and the Minister of Irrigation, U.P. which proved abortive.
The respondent thereupon challenged the aforesaid order of termination of his services by instituting the aforesaid suit averring inter alia that the order not being an order of termination of his service simpliciter but being one passed by way of punishment, attracted the applicability of Article 311 of the Constitution which not having been com plied with rendered the order void and ineffective, in law.
The suit was resisted by the appellant on the ground that the respondent was only a temporary hand; that under the contract of service as also the rules applicable to tempo rary Government servants, the respondent was liable to be discharged any time even though an enquiry in respect of a charge of misconduct might have been insti 465 tuted against him; and that the impugned order not having been passed a measure of punishment but being a simple order of termination of the respondent 's services without casting any stigma on him or visiting him with evil conse quences, was valid both under the aforesaid rules and the contract of service.
The grounds of attack made against the impugned order did not find favour with the trial Court which dismissed the suit.
Aggrieved by the judgment and decree of the trial Court, the respondont took the matter in appeal to the Second Additional Civil Judge, Jhansi, who affirmed the judgment and decree of the trial Court.
Both the Courts found that the impugned order was valid in law as it was a simple order of termination of service and not having been passed by way of punishment, it did not attract the provisions of Article 311 (2) of the Constitu tion.
Dissatisfied with these judgments, the respondent preferred a second appeal to the High Court of Judicature at Allhabad, which as already stated was allowed by a learned Single Judge of that Court.
While oversetting the concurrent findings of fact ar rived at by the courts below and decreeing the respondent 's aforesaid suit, the learned single Judge went through the official correspondence preceding the passing of the im pugned order and observed that a close scrutiny of the facts on record showed that the order was passed by way of punish ment on the basis of the enquire proceedings and as a result of the recommendation made by the Executive Engineer fol lowed by the direction issued by the Chief Engineer that the respondent should be suitably punished.
It is against this judgment and decree that the present appeal has been pre ferred by the State of U.P. Mr. Dixit, learned counsel appearing on behalf of the appellant, has urged that the High Court acted illegally in reversing the concurrent findings of fact arrived at by the courts below and quashing the impugned order which was a simple order of termination of the respondent 's services and had been validly passed in accordance with the rules relat ing to temporary Government servants and the contract of service.
He has further contended that the learned Single Judge could not probe into the departmental files to support his finding that the impugned order was passed against the respondent by way of punishment.
He has.
in support of his submissions, relied upon a number of decisions of this Court.
As against this, it has been vehemently urged by Mr. Garg, learned counsel for the respondent, that the constitutional position in regard to orders of the impugned nature is not well settled in view of the conflicting decisions of this Court particularly in view of the observations made in State of U.P. & Ors.
vs Sughar Singh(1) and The State of Punjab vs
P.S. Cheema (2), Mr. Garg has further contended that the circumstances attending the issue of the impugned order clearly establish that it was passed by way of punish ment.
It would, in our opinion, be appropriate at the outset to refer to the I decisions of this Court which have an important bearing on the instant (1) ; =[1974] 1 S.C.C. 218.
(2) A.I.R 1975 S.C. 1096.
466 case and to dispel the doubts sought to be created by Mr. Garg with regard to the constitutional position in relation to the applicability of Article 311 (2) of the Constitution, resulting from the said decisions.
In Satish Chandra Anand vs The Union of India(1), it was held by this Court that any and every termination of service does not amount to dismissal or removal and a termination of service brought about by exercise of a contractual right is not per se dismissal or removal.
On the same reasoning, this Court laid down in Shyam Lal vs State of U.P.(2) that the termination of service by compulsory retirement in terms of specific rule regulating the conditions of service is not tantamount to the infliction of punishment and does not attract Article 311(2).
In Parshotam Lal Dhingra vs Union of India(3) which is regarded as the Magna Carta of the Indian Civil Servant Das, C.J. speaking for the majority made the following illuminat ing observations : "Shortly put, the principle is that when a servant has right to a post or to a rank either under the terms of the contract of employment, express or implied, or under the rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punish ment, for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto.
But if the servant has no right to the post, as where he is appointed to a post, permanent or temporary either on probation or on an officiating basis and whose temporary service has not ripened into a quasi permanent service as defined in the Temporary Service Rules, the termination of his employment does not deprive him of any right and cannot, therefore, by itself be a punishment.
One test for determining whether the termination of the service of a Government servant is by way of punishment is to ascertain whether the servant, but for such termination, had the right to hold the post.
If he had a right to the post as in the three cases hereinbefore mentioned, the termination of his service will by itself be a punishment and he will be entitled to the protection of Article 311.
In other words and broadly speaking, article 311 (2), will apply to those cases where the Government servant, had he been employed by a private employ er, will be entitled to maintain an action for wrongful dismissal, removal or reduction in rank.
To put it in another way, if the Government has, by contract, express or implied, or, under the rules,the right to terminate the employment at any time, then such termination in the manner provided by the contract or the rules is prima facie and per se not a punishment and does not attract the provi sions of article 311.
It does not, however, follow that, except in the three cases mentioned above.
in all other cases.
termination of (1) ; (2) [1955]1 S.C. R. 26.
(3) section C. R. 828.
467 service of a Government servant who has no right to his post, e.g., where he was appointed to a post, temporary or permanent, either on probation or on an officiating basis and had not acquired a quasi permanent status, the termina tion cannot, in any circumstance, be dismissal or removal from service by way of punishment ' Cases may arise where the Government may find a servant unsuitable for the post on account of misconduct, negligence, inefficiency or other disqualification.
If such a servant was appointed to a post, permanent or temporary, either on probation or on an offciating basis, then the very transitory character of the employment implies that the employment was terminable at any time on reasonable notice given by the Government.
Again if the servant was appointed to a post, permanent or tempo rary, on the express condition or term that the employment would be terminable on say a month 's notice as in the case of Satish Chander Anand vs The Union of India (supra), then the Government might at any time serve the requisite notice.
In both cases the Government may proceed to take action against the servant in exercise of its powers under the terms of the contract of employment, express or implied, or under the rules regulating the conditions of service, if any be applicable, and ordinarily in such a situation the Government will take this course.
But the Government may take the view that a simple termination of service is not enough and that the conduct of the servant.
has been such that he deserves a punishment entailing penal consequences.
In such a case the Government may choose to proceed against the servant on the basis of his misconduct, negligence, inefficiency or the like and inflict on him the punishment of dismissal, removal or reduction carrying with it the penal consequences.
In such a case the servant will be entitled to the protection of article 311 (2).
The position may, therefore, be summed up as follows: Any and every termination of service is not a dismissal, removal or reduction in rank.
A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, as has been held by this Court in Satish Chander Anand vs The Union of India (supra).
Likewise the termination of service by compulsory retire ment in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punish ment and does not attract article 311 (2), as has also been held by this Court in Shyam Lal vs The State of Uttar Pradesh (supra).
In either of the two above mentioned cases the termination of the service did not carry with it the panel consequences of loss of pay, or allowances under r. 52 of the Fundamental Rules.
It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a 468 right exists, under the contract or the rules, to termi ate the service the motive operative on the mind of the Government is, as Chagla C.J. has said in Shrinivas Ganesh vs Union of India(1) wholly irrelevant.
In short, if the termination of service is founded on the right flowing from contract of the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so article 311 is not attracted.
But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punish ment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of article 311 must be complied with.
As already stated if the Servant has got a right to continue in the post then, unless the contract of employment or the rules provide to the contrary, his services cannot be termi nated otherwise than for misconduct, negligence, ineffi ciency or other good and sufficient cause.
A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within article 311, for it operates a forfeiture of his right and he is visited with the evil consequences of loss of pay and allowances.
It puts an indelible stigma on the officer affecting his future career.
A reduction in rank likewise may be by way of punishment or it may be an innocuous thing.
If the Government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he, will then lose the emoluments and privi leges of that rank.
If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment.
But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a tower post or rank cannot in any circum stances be a punishment.
The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences.
Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way (1) A.I.R. 1956 Bom.
469 of penalty.
The use of the expression 'terminate ' or 'discharge ' is not conclusive.
In spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely, (1 ) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to ? If the case satisfied either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as.
a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and article 311, which give protection to Government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant." In Gopi Kishore Prasad vs Union of India(1), it was held by this Court that if the Government proceeded against the probationer in the direct way without casting any aspersion on his honesty or competence, his discharge would not have the effect of removal by way of punishment, but if instead of taking the easy course, the Government chose the more difficult one of holding an enquiry into his alleged miscon duct and branded him as a dishonest and incompetent officer, it would attract Article 311 (2) of the Constitution.
In The State (2) Orissa & Anr.
vs Ram Narayan Das(2) where July 28, 1954, a notice was served on the respondent who was appointed as a Sub Inspector on probation in the Orissa Police Force in the year 1950 to show cause why he should not be discharged from service for gross neglect of duties and unsatisfactory work and where the explanation tendered by him was considered to be unsatisfactory by the Deputy Inspector General of Police who passed an order discharging the respondent from service for unsatisfactory work and conduct and where the respondent contended that the order was invalid on two grounds: (i) that he was not given a reasonable opportunity to show cause against the proposed action within the meaning of Article 311 (2), and (ii) that he was not afforded an opportunity to be heard nor was any evidence taken on the charge, it was held that the order of discharge did not amount to dismissal and did not attract the protection of Article 311 (2) of the Constitution as the respondent was a probationer and had no right to the post held by him and his services were terminated in accordance with the rules which permitted his being discharged at any time during the period of probation.
The case of Madan Gopal V. State of Punjab(3) where the order terminating the employment of the appellant who was a temporary Government servant was qashed on the ground that it was in the nature of an order of punishment which had been passed without complying with the provisions of Article 311 (2) of the Constitution is clearly distinguishable.
In that case, the order of termination of the (1) A.I.R. 1960 S.C. 689.
(2) ; (3) [1963] 3 S.C.R. 716.
470 appellant 's service which was preceded by an enquiry into his alleged misconduct was based on the finding of miscon duct which amounted to casting a stigma affecting his future career.
In Rajendra Chandra Banerice vs Union of India(1) where the appellant was appointed as a probationer for one year (which was extended from time to time) on condition that his services might be terminated without any notice and cause being assigned during that period and he agreed and joined the service and where later on during the period of his probation, he was called upon to show cause why his services should not be terminated and he was finally in formed that the explanation given by him was not satisfacto ry and his services would stand terminated on a specified date, it was held by this Court that the termination of his service was not by way of punishment and could not amount to dismissal or removal within the meaning of Article 311.
In Champaklal Chimanlal Shah vs The Union of India(2) where the appellant, whose appointment being temporary, was liable to be terminated on one month 's notice on either side was informed without assigning any cause after the expiry of about five years that his services would be terminated with effect from a specified date but before the termina tion, he was called upon to explain certain irregularities and was also asked to submit his explanation and to state why disciplinary action should not be taken against him and certain preliminary enquiries were also held against him in which he was not heard, but no regular departmental enquiry followed and the proceedings were dropped, it was held by this Court after considering the cases of Gopi Kishore Prasad vs Union of India (supra), State of Orissa vs Ram Narayan Das (supra).
Madan Gopal vs State of Punjab (supra) and Jagdish Mitter vs Union, of India(3) that such a regular departmental enquiry though contemplated was not held against the appellant and no punitive action was taken against him, there was no question of the case being gov erned by Article 311(2) or the Constitution.
It was fur ther held in that case that it is only when the Government decides to hold a regular departmental enquiry for the purpose of inflicting one of the three major punishment '; that the Government servant gets the protection of Article 311.
In State of Punjab & Anr.
vs Shri Sukh Raj Bahadur(4) where the Punjab Government reverted the respondent from his officiating appointment in the Punjab Civil Service (Executive Branch) to his substantive post in the Delhi Administrative after issuing him a charge sheet to which the respondent replied but the enquiry was not proceeded with, it was held by this Court that the respondent could not complain against the order reverting him to his former post because the order of reversion was not by way of punishment.
In that case, Mitter, J. who spoke for the Bench laid down the following propositions : (1) ; (2) (3) A.I R. (4) ; 471 "1.
The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without any thing more would not attract the operation of article 311 of the Constitution.
The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial.
If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.
An order of termination of service in unex ceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of article 311 of the Constitution.
If there be a fulI scale departmental enquiry envisaged by article 311 i.e. an Enquiry Officer is appointed, a charge sheet submitted, explanation called for and considered, and order of termina tion of service made thereafter will attract the operation of the said Article.
" The principles laid down in Parshotam Lal Dhingra 's case (supra), Champaklal Chimanlal Shah 's case (supra), and Shri Sukh Raj Bahadur 's case (supra) were reiterated by this Court in Union of India & Ors.
R.S. Dhaba(1).
State of Bihar & Ors.
vs Shiva Bhikshuk Mishra(2) and R.S. Sial vs The State of U.P. & Ors.(3) where it was laid down that the test for attracting Article 311(2) of the Constitution is whether the misconduct or negligence is a mere motive for the order of reversion or termination of service or whether it is the very foundation of the order of termination of service of the temporary employee.
The form of the order, however, is not conclusive to its true nature.
The entirety of circumstances preceding or attendant on the impugned order must be examined by the court and the over riding test will always be whether the misconduct is a mere motive or is the very foundation of the order.
In R.S. Sial vs The ;State of U.P. & Ors.
(3) to which one of us (brother Khanna, J.) was a party, it was made clear in unambiguous terms that it may be taken to be well settled that even though misconduct, negligence, ineffi ciency or other disqualifications may be the motive or the inducing factor which influence the Government to take action under the express or implied terms of the contract of employment or under the statutory rule, nevertheless if a right exists, under (1) ; (2) (3) 472 the contract or the rules to terminate the services the motive operating on the mind of the Governments is wholly immaterial.
The same rule would hold good if the order passed is not for termination of service but for reversion of a Government servant from a higher post to a lower post which he holds in a substantive capacity.
The decision of this Court in State of Uttar Pradesh & Ors.
vs Sughar Singh (supra) where the order of the re spondent 's reversion held to have been passed by way of punishment to which our attention has been drawn by Mr. Garg and which has led to a certain amount of misunderstanding turned upon a clear statement made before the High Court by the Standing Counsel for the State that the foundation of the order of reversion was the adverse entry made in his confidential character roll.
The constitutional position has now been made crystal clear by a Bench of seven Judges of this Court in Shamsher Singh & Anr.
vs State Punjab(1) where the learned Chief Justice after an exhaustive review of the decisions of this Court observed : "No abstract preposition can be laid down that where the services of a probationer are termi nated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case.
If a probationer is discharged on the ground of misconduct, or ineffi ciency or for similar reason without a proper enquiry and without his getting a reasonable oppor tunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311 (2) of the Con stitution.
Before a probationer is confirmed the author ity concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post.
In the absence of any Rules governing a probationer in this respect the authority may come to the conclu sion that on account of inadequacy for the job or for any temperamental or other object not involv ing moral turpitude the probationer is unsuitable for the job and hence must be discharged.
No punishment is involved in this.
The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry.
But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation.
If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inef ficiency or corruption, and if his services are terminated without following the provisions of Article 311 (2) he can claim protection . . (1) ; 473 The fact of holding an inquiry is not always conclusive.
What is decisive is whether the order is really by way of punishment .
A proba tioner whose terms of service provided that it could be terminated without any notice and without any cause being assigned could not claim the protection of Article 311 (2).
An order terminating the services of a temporary servant or probationer under the Rules of Employment and without anything more will not attract Article 311.
Where a departmental enquiry is contemplated and if an enquiry is not in fact proceeded with Article 311 will not be attracted unless it can be shown that the order though unex ceptionable in form is made following a report based on misconduct.
" The Division Bench judgment of this Court in P.S. Chee ma 's case (supra) on which strong reliance has been placed by Mr. Garg is also clearly distinguishable and no help can be derived therefrom by the respondent.
In that case, both the trial Court and the first appellant Court had come to a concurrent finding of fact that the impugned order of termination was by way of punishment.
It would also be seen that in that case on a representation being made by the respondent to the then Chief Minister of the State, the latter after consideration of the matter had ordered that in view of the respondent 's previous good record, he did not deserve the "punishment of termination of service only on account of a few bad reports and that the respondent should continue in service and his case should be reviewed after he earned another report from the Excise and Taxation Commissioner for the year 1964 65".
In a recent decision of this Court in The Regional Manager & Anr.
vs Pawan Kumar Dubey(1) to which one of us was a party, Sughar Singh 's case (supra) which is the sheet anchor of Mr. Garg 's contention was also adverted to and it was explained therein that that case did not depart from earlier decisions on applicability of Article 311 (2) or Article 16 of the Constitution.
The following observations made in Pawan Kumar Dubey 's case (supra) should suffice to clear the doubts that may still be lurking in some quarters as to the ratio decidendi of Sughar Singh 's case (supra) : "We think that the principles involved in applying Article 311(2) having been sufficiently explained in Shamsher Singh 's case (supra) it should no longer be possible to urge that Sughar Singh 's case (supra) could give rise to some misapprehension of the law.
Indeed, we do not think that the principles of law declared and applied so often have really changed.
But the application of the same law to the differing cir cumstances and facts of various cases which (1) ; 474 have come up to this Court could create the impres sion sometimes that there is some conflict between different decisions of this Court.
Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood.
It is the rule deducible from the application of law to the facts and cir cumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar.
One addition al or different fact can make a world of differ ence between conclusions in two cases even when the same principles are applied in each case to simi lar facts.
This Court 's judgment in Sughar Singh 's case (supra) shows that it was only following the law on Article 311(2) of the Constitution as laid down repeatedly earlier by this Court.
It specif ically referred to the following cases: Parshottam Lal Dhingra vs Union of India (supra); State of Punjab vs Sukh Raj Bahadur (supra); State of Orissa vs Ram Narayan Das (supra); R.C. Lucy vs State of Bihar(1) Jagdish Mitter vs Union of India (supra);A. G. Benjamin vs Union 01 India(2); Ram Gopal Chaturvedi vs State.
of Madhya Pradesh(3); Union of India vs Galendra Singh(4); Divisional Personnel Officer vs Raghavendrachar(5); Union of India vs Joswant Ram(6); Madhav vs State of Mysore(7); State of Bombay vs
Abraham(8).
In Sughar Singh 's case (supra), this Court summarised the propositions of law deducible from the cases mentioned above; and, while considering the ap plicability of some of the propositions of law to the facts of the case, it did observe that, on the face of it, the action against Sughar Singh did not appear to be punitive.
Nevertheless, on a total consideration of all the facts, including the admission in the High Court before Verma, C.J. by the Standing Counsel appearing on behalf of the State, that the reversion order could not be ex plained except as a result of the adverse entry made two years earlier, it had finally applied the ratio decidendi of the State of Bihar vs Shiva Bhikshuk Mishra (supra), where this Court had affirmed the opinion of the High Court, on facts, that the reversion was not in the usual course or for administrative reasons but it was after the finding on an enquiry about some complaint against the Plaintiff and by way of punishment to him.
On this view of the case, it was not really necessary for this Court to consider whether the reversion of Sughar Singh was contrary to the provisions of Article 16 also.
C.A. No. 590 of 1962 decided on 23 10 1963 .
(2) (3) ; (4) [1972] 2 S .C.R. 660.
(5) ; (6) A.I.R.1958 s.c. 905. (7) [19621 1 S.C.R. 886. (8) [1962] Supp. 2 SC.R. 92. 475 We do not think that Sughar Singh 's case (supra) in any way, conflicts with what has been laid down by this Court previously on Article 311(2) of the Constitution or Article 16 of the Constitution." Thus on a conspectus of the decisions of this Court referred to above, it is obvious that there is no real conflict in their ratio decidendi and it is no longer open to any one to urge with any show of force that the consti tutional position emerging from the decisions of this Court in regard to cases of the present nature is not clear.
It is also to be borne in mind that even in cases where a High Court finds any conflict between the views expressed by larger and smaller benches of this Court, it cannot disregard or skirt the views expressed by the larger bench es.
The proper course for a High Court in such a case, as observed by this Court in Union of India & Anr.
K.S. Subramanian(1) to which one of us was a party, is to try to find out and follow the opinion expressed by larger benches of this Court in preference to those expressed by smaller benches of the Court which practice, hardened as it has into a rule of law is followed by this Court itself.
Keeping in view the principles extracted above, the respondent 's suit could not be decreed in his favour.
He was a temporary hand and had no right to the post.
It is also not denied that both under the contract of service and the service rules governing the respondent, the State had a right to terminate his services by giving him one month 's notice.
The order to which exception is taken is ex facie an order of termination of service simpliciter.
It does not cast any stigma on the respondent nor does it visit him with evil consequences, nor is it founded on misconduct.
In the circumstances, the respondent could not invite the Court to go into the motive behind the order and claim the protection of Article 311 (2) of the Constitution.
We, therefore, agree with the submission made on behalf of the appellant that the High Court was in error in arriv ing at the finding that the impugned order was passed by way of punishment by probing into the departmental correspond ence that passed between the superiors of the respondent overlooking the observations made by this Court in I.N. Saksena vs State of Madhya Pradesh(2) that when there are no express words in the impugned order itself which throw a stigma on the Government servant, the Court would not delve into Secretariat flies to discover whether some kind of stigma could be inferred on such research.
We also find ourselves in agreement with the contention advanced on behalf of the appellant that the High Court failed to appreciate the true legal and constitutional position and upset the concurrent findings of fact arrived at by the Courts below that the impugned order was not by way of punishment ignoring the well settled principle of law that a second appeal cannot be.
entertained on the ground of erroneous finding of fact, however gross the error might seem to be.
(See Paras (1) ; C2) ; 476 Nath Thakur vs Smt.
Mohani Dasi & Ors.(1); Sri Sinna Ramanu la Jeer & Ors.
vs Sri Ranga Ramanuja Jeer & Anr.
(2); R. Ramachandra Ayyar vs Ramalingam(3) and Madamanchi Ramappa & Anr.
vs Muthaluru Bojappa(4).
For the foregoing reasons, the contentions of Mr. Dixit are upheld and those of Mr. Garg are repelled.
In the result, we allow the appeal, set aside the judg ment and, decree of the High Court, restore the judgments and decrees of the Courts below and dismiss the respond ent 's suit.
In the circumstances of the case, the parties are, however, left to pay and bear their own costs of this appeal.
V.P.S. Appeal allowed.
| IN-Abs | The respondent was appointed as a temporary clerk in an engineering division of the Government.
The attempt of another clerk to impersonate and appear for him in a depart mental examination was detected.
The Executive Engineer obtained explanations from both the clerks and reported the matter to the Superintending Engineer, who brought the matter to the notice of the ChiefEngineer.
The Chief Engi neer wrote to the Superintending Engineer to award suitable punishment.
The Superintending Engineer passed the order that the respondent a "temporary clerk is hereby served with one month 's notice to the effect that his services shall not be required after one month from the date of receipt of this notice.
" The respondent filed a suit challenging the order on the ground that the termination was one passed by way of punishment and therefore attracted Art 311 of the constitution;.
and since the provisions of the Article had not been complied had not been complied with the order was void.
The Trial Court and the First Appellate Court dismissed the suit.
But the High Court went,through the official correspondence preceding the passing of the impugned order, and observing that a close scrutiny of the facts on record showed that the order was passed by way of punishment on the basis of the enquiry proceeding and as a result of the recommendation by the Executive Engineer followed by the direction issued by Chief Engineer, allowed the second appeal.
Allowing the appeal to this Court, HELD :(1) It is no longer open to any one to urge that the constitutional position in regard to cases of the present nature is not clear.
An examination of the deci sions of this Court shows that there is no real conflict in their ratio decidendi.
Even if there is a conflict, the proper course for a High Court is to find out and follow the opinion expressed by larger benches of this Court in preference to those expressed by smaller benches of this Court.
This practice is followed by those Court itself and has hardened into a rule of law.
[475B C] Union of India & Anr.
K.S. Subramanian; , , followed.
State of U.P. & Ors vs Sughar Singh [1974] 2 .S.C.R. 335: ; , The State of Punjab vs
P.S. Cheema A.I.R. 1975 S.C. 1096, Satish Chandra Anand vs The Union of India ; , Shyam Lal vs State of U.P. ; , Parshotam Lal Dhingra vs Union of India ; , Gopi Kishore Prasad vs Union of India AIR. , The State of Orissa & ,Anr.
vs Ram Narayan Das ; , Madan Gopal vs State of Punjab [1963] 3 S.C.R. 716, Rajendra Chandra Banerjee vs Union of India ; , Champakal Chimanlal Shah vs The Union of.
India , Jagdish Mitter vs Union of India A.I.R. 1964 S.C. 449, State of Punjab & Anr.
vs Shri Sukh Raj Bahadur ; , Union Of India 463 & Ors.
R.S. Dhaba , State of Bihar & Ors.
vs Shiva Bhikshuk Mishra R.S. Sial vs The State of U.P. & Ors. , Shamsher Singh & Anr.
vs State of Punjab ; and The Regional Manager & Anr.
vs Pawan Kumar Dubey [1976] 3 S.C.R. 540 referred to.
(2) Before it is held that an order terminating the services of a Government servant amounts to punishment the Court must hold that either of the two tests,namely, (a) that the servant had a right to the post or (b) that he had been visited with evil consequences such as forfeiture of pay etc., is satisfied.
Therefore, an order terminating the services of a temporary servant or probationer under the Rules of employment and without anything more will not attract article 311.
Where a departmental enquiry is contem plated but an enquiry is not in fact proceeded with, article 311 will not be attracted unless it can be shown that the order, though.
unexceptionable in form, is made following a report based on misconduct.
Even though misconduct, negli gence, inefficiency or other disqualification may be the motive for the order of termination, if a right exists under the contract or the rules to terminate his services, then article 311(2) is not attracted unless the misconduct or negli gence is the very foundation of the order.
Where there are no express words in the impugned order itself ' which throw a stigma on the Government servant, the Court would not delve into secretariat files to discover whether some kind of stigma could be inferred on such research.
[469 A B; 473 C; 471 H; 475 F] Parshotam Lal Dhingra vs Union of India [1958] S.C.R. 828, R.S. Sial vs The State of U.P. & Ors.
[1974] 3 S.C.R. 754, Shamsher Singh & Ant.
vs State of Punjab ; and 1.
N. Saksena vs State of Madhya Pradesh ; followed.
(3) The respondent was a temporary hand and had no right to the post.
Under the contract of service and the service rules applicable to him the State had the right to terminate his services by giving him one month 's notice.
The order ex facie is an order of termination of service sim pliciter.
It does not cast any stigma on the respondent nor does it visit him with evil consequences, nor is it founded on misconduct.
Therefore, the respondent could not invite the Court to go into the motive behind the order and claim the protection of article 311(2) of the Constitution.
[475 D E] (4) The High Court failed to appreciate the true legal .and constitutional position and upset the concurrent findings of fact arrived at by the Courts below, ignoring the well settled principle of law that a second appeal cannot be entertained on the ground of erroneous findings of fact, however, gross the error might seem to be.
[475 G H] Paras Nath Thakur vs Smt.
Mohani Das & Ors.
[1960] 1 S.C.R. 271.
Sri Ramanuja Jeer & Ors.
vs Sri.
Ranga Ramanuja Jeer & Anr. ; , P. Ramachandra Ayyar vs Ramalingam ; and Madamanchi Ramappa & . Anr.
vs Muthaluru Bojappa ; , referred to.
|
Civil Appeal No. 1250 of 1968.
(From the Judgment and Order dated 17 4 1967 of the Calcutta High Court in Appeal from Original Decree No. 255/69).
D.V. Patel, H.K. Puri, S.K. Gupta, P. Dayal and M.C. Dhingra for the Appellant.
P.K. Chatterjee, and G.S. Chatterjee, for the Respondent.
JASWANT SINGH, J.
This appeal by certificate granted under Article 133(1)(a) and (c) of the Constitution which is directed against the judgment and decree dated March 25, 1968 of the High Court of Calcutta in Appeal No. 255 of 1963 raises important questions relating to the interpretation of certain provisions of the Bihar Land Reforms Act, 1950 (Act XXX of 1950) (hereinafter referred to as 'the B.L.R. Act ') as also of the Mining Leases (Modification of Terms) Rules, 1956 providing for the modification and alteration of terms and conditions of the mining leases granted prior to the commencement of the Mines and Minerals (Regulation and Development) Act, 1948 (Act 53 of 1948) (hereinafter re ferred to as 'the 1948 Act ') and of the (Act 67 of 1957) (hereinafter referred to as 'the 1957 Act ') which replaced the 1948 Act on June 1, 1958.
The facts and circumstances leading to this appeal are: By an indenture of.
lease dated July 31, 1927 (hereinafter referred to as the 'head lease '), Raja Bishambharnath Sahi (hereinafter referred to as the 'Raja ') who was the sole proprietor of large tracts of land known as the Sonepura estate in Paragana Rohtas in the district of Shahbad in Bihar demised certain blocks of land situate in villages Jaintipur, Nimhath Deodand and Dhanwanti, District Shahbad together with quarries of lime stone (known as Chunhatta Lime Stone Quarries) lying thereunder for a period of 40 years commencing from 1st day of August, 1927, and ending on 31st day of July, 1967, with an option to continue for a further period of 25 years, in consideration of a 'salami and fine ' of Rs. 8,200/ unto Karunaranjan Dutt and Jugal chandra Dutt (hereinafter referred to as 'Dutts ').
By the said indenture, the head lessees inter alia undertook to pay to the Raja during the first 15 years of the said period of 40 years of the lease i.e., from the 1st day of August, 1927, to 31st day of July, 1942, royalty at the rate of annas /10/ (ten) 62 paise for every 100 cubic feet i.e., roughly at 15 1/2 paise per ton of solid lime stone, quarried, raised, got, used or taken out from the demised premises and for the remaining 25 years of the lease i.e. from the 1st day of August, 1942, to 31st day of July, 1967, royalty at the rate of annas /15/ (fifteen) 94 paise instead of annas /10/ (ten) for every 100 cubic feet i.e. roughly at 24 paise per ton of solid lime stone, quarried, raised, got, used or taken out from the demised premises.
The aforesaid royalty was made payable quarterly i.e. after every three months on the fixed dates specified in the indenture of lease.
The head lessees also undertook to pay yearly rent of annas /6/ (sux) per acre subject to the maximum of Rs. 100/ for so much of the surface land as was to be entered upon, used or occupied by them for the purpose of placing, stocking and beeping stones or waste materials and rubbish etc.
The lease deed further provided as follows . "That the 'LESSEES ' shall be at liberty ,red competent without obtaining any further consent of the "LESSOR" to 362 assign and transfer this lease or sublet or part with the possession of the demised premises or any part thereof to any person, firm or company whether incorporated or otherwise and no mutation fee or Nazarana or premium shall be charged by the 'LES SOR ' in case of such transfer or subletting for the first time, but in case of subsequent transfer or sub letting a fee of Rupees five hundred (500/ ) shall be payable to the 'LESSOR ' for each such occasion.
If the rents and royalties hereby reserved or any part thereof or any other moneys hereunder payable by the 'LESSEES ' to the 'LESSOR ' shall remain unpaid for three months after the same shall become due and payable the 'LESSEES ' shall pay interest thereon at the rate of twelve (12) per cent per annum calculated from the due date until payment.
If the same shall remain unpaid for three years consecutively or if there be any breach of any of the conveyants and agreements herein con tained and on the part of the 'LESSEE ' to be per formed and observed then this lease shall be liable to be forfeited under an order of a competent court besides any other relief hereunder and under the law then prevailing.
" On October 12, 1928, the head lessees i.e. Dutts execut ed a sublease of the aforesaid blocks of land and quarries of lime stone for the residue of the period of the aforesaid indenture of lease dated July, 1927 except the last day thereof for a consideration of Rs. 5,000/in favour of the appellant.
The appellant undertook to pay to Dutts the same royalty and rent as were payable by Dutts to the Raja during the period of the aforesaid head lease in respect of lime stone quarried (except for ballast or building pur poses).
In addition, the appellant undertook to pay to the head lessees during residue of the first 15 years of the said period of 40 years royalty of annas /16/ (sixteen) for every 100 cubic feet of solid lime stone quarried, raised, got or used or taken out from the demised premises and for the remaining 25 years thereafter of the said period for each such quantity, royalty .of annas /11/ (eleven).
The sub lease gave option to the appellant to make payment to the head lessor directly of royalties in terms of the aforesaid head lease whether the head lessees were to make default or not in making payment of the same.
On February 15, 1929, Dutts transferred by a deed of assignment all their rights, title and interest under and by virtue of the aforesaid indenture of head lease and the sub lease dated October 12, 1928 to the respondent.
The appellant had due notice of the said assignment and accepted the respondent as its lessor in place of Dutts.
On September 8, 1948, the Central Legislature passed the 1948 Act under Entry 36 of List I of Seventh Schedule to the Government of India Act, 1935.
Section 5 of the Act empow ered 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 granted prior to the commencement of the Act, so as to bring such lease into conformity with the 363 rules made under section 5.
In exercise of the powers conferred on it by section 5 of the Act, the Central Govern ment made the Mineral Concession Rules, 1949.
Both the 1948 Act and the Mineral Concession Rules, 1949, came into force on October 25, ' 1949.
The provisions of the Mineral Conces sion Rules, 1949, did not apply to leases or sub leases granted prior to October 25, 1949.
On September 25, 1950, the B.L.R. Act came into force.
This Act as apparent from its preamble was enacted for the purpose transference to the State of the interests of the proprietors and tenure holders ' in land and of mortgagees and lessees of such interests in, eluding interest in mines and mineral etc.
Sections 3 and 3A of the B.L.R. Act which dealt with vesting of estates or tenures in the State provided as follows : "3.(1) The State Government may from time to time, by notification declare that the estates or tenures of a proprietor or tenure holder, speci fied in the notification have passed to and become vested in the State . 3.A.(1) Without prejudice to the provision in the last preceding section, the State Government may, at any time, by notification, declare that the intermediary interests of all intermediaries in the whole of the State have passed to and become vested in the State.
(2) It shall be lawful for the State Govern ment, if it so thinks fit, to issue, from time to time, a notification of the nature mentioned in sub section (1) in respect of the intermediary interests situate in a part of the State specified in the notification and, on the publication of such notification, all intermediary interests situate in such part of the State shall have passed to and become vested in the State . . " On November 14, 1951, the estate of Sonepura belonging to the Raja passed to and became vested in the State of Bihar by virtue of notification No. 83 IR/ZAN dated November 6, 1951 issued by the Governor of Bihar in exercise of the power con ferred on him by sub section (1) of the above quoted section 3 of the B.L.R. Act.
On January 1, 1956, the Governor of Bihar issued notification No. EVII 102/56 ILR reading as under : "No. EVII IO2 56 ILR.
: Whereas a proclama tion announcing 'the .intention of the State Government to take over all the intermediary interest in the district of Shahbad Patna, Saran, Muzafferpur, Bhagal Sonthal Paraganas, Ranchi, Singhbhum Manbhum and excluding Manbhum Sadar Sub Division was published under notifica tion No. 4381 LR dated the 18th August, 1955, as required by sub section (1) of section 3(B) of Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950).
Now, therefore, in exercise of the powers conferred by sub section (2) of section 3A of the said Act, the Government of Bihar is pleased to "declare that all such intermediary interests in the said districts (excluding Manbhum Sadar 364 sub Division) have passed to and become vested in the State with effect from the date of this Notifi cation.
" On September 4, 1956, the Government of India made rules under section 7 of the 1948 Act for modifying or altering the terms and conditions of the existing leases, being Mining Leases (Modifica tion of Terms) Rules, 1956.
Clause (c) of rule 2 of the Rules defined "existing mining lease" as meaning a mining lease granted before October 25, 1949 and subsisting at the commencement of the 1956 Rules but not including any such lease in respect of (i) natural gas, (ii) petroleum; (iii) coal, or (iv) any minor mineral within the meaning of clause (c) of section 3 of the Act.
The 1948 Act was replaced by the 1957 Act which came into force on June 1, 1958.
Section 9 of the 1957 Act provided as follows : "9.
Royalties in respect of mining leases : (1 ) The holder of a mining lease granted before the commencement of this Act shall, notwith standing anything 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 payable in respect of any mineral with effect from such date as may be speci fied 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.
" This section was amended in 1972 by Act 'No. 56 of 1972.
The amended section in so far as it is relevant for our purpose runs as follows : "9.(1 ) The holder of a mining lease granted before the commencement of this Act shall, notwith standing anything contained in the instrument of lease or in any law in force at such commencement, pay royalty in respect of any mineral removed or consumed by him or by his agent, manager, employee, contractor or sub lessee from the leased area after 365 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 or con sumed by him or by his agent, manager employee, contractor or sub lessee from the leased area at the rate for the time being specified in the, Second Schedule in respect of that mineral.
(2A) . . (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 payable in respect of any mineral with effect from such date as may be speci fied in the notification: Provided that the Central Government shall not enhance the rate of royalty in respect of any mineral more than once during any period of four years.
" Section 29 of the Act provided for the effec tive continuance of the rules made or purporting 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.
By the Bihar Amendment Ordinance No. 3 of 1964 which was subsequently replaced by the Bihar Land Reforms (Amendment) Act (Bihar Act 4 of 1965), the B.L.R. Act was amended by introduction of section 10 A which runs as follows : "10 A. Vesting of interest of lessee of mines or minerals which is Subject to a sub lease. (1) The interest of every lessee of mines or minerals which is subject to a sub lease shall, with effect from such date as may be notified in this behalf by the State Government in the Official Gazette, vest in the State and thereafter the sub lessee whose lease is not subject to any further sub lease shall hold his lease directly under the State Government and the provisions of subsections (2) and (4) of section 10 shall, 'mutatis mutandis ' apply to his lease.
(2) No .sub lessee of mines or minerals holding under a lessee whose interest vests in the State Government under sub section (1 ) shah be entitled to claim any damages from his lessor on the ground that the terms of the lease in respect of the mines or minerals have become incapable of fulfilment by the operation of this section.
" Purporting to act under the Mining Leases (Modification of Terns) Rules, 1956, the Controller of Mining Leases, an officer appointed by the Central Government for the purpose of implementing the rules, by his order dated August 8, 1959 enhanced the royalties payable under the aforesaid lease dated July 31, 1927 to 37 Naya Paise per ton.
366 In exercise of its option under the sub lease dated October 12,.
1928, the appellant paid rent and royalty payable by the head lessee in respect of the aforesaid Chunhatta quarries under the aforesaid indenture of lease dated July 31, 1927, directly to the.
Raja upto the date immediately preceding the date of the aforesaid vesting of the interest of the Raja in the State of Bihar under the B.L.R. Act.
After the date of the vesting of the interest of the Raja in the State of Bihar the appellant started paying directly to the State the said royalty at the rate of 24 paise per ton.
The appellant also continued paying additional royalty at the rate of 17 paise per ton to the respondent in terms of the sub lease dated October 12, 1928 but stopped doing so from July 1, 1958.
The respondent thereupon brought a suit on JUly 10, 1961 being suit No. 1104 of 1961 on the original side of the High Court at Calcutta claiming a decree for (1) Rs. 25,181.27 as arrears of royalty from July 1, 1958, to August 7, 1959 the date immediately preceding the date on which the Controller enhanced the royalty payable to the State to 37 paise; (2) Rs. 32,223.64 as arrears of royalty at the rate of annas /11/ (eleven) from August 8, 1959 to March 31, 1961; (3) Rs. 1,444.00 on account of deficit payment for the overdue period in respect of royalty for the quarters ending June 30, 1957, September 30, 1957, December 31, 1957 and June 30, 1958.
It also claimed interest on the aforesaid amounts at the rate of 12 per cent per annum.
The respondent based his claim on the ground that notwithstanding the issues of the aforesaid notification under section 3 of the B.L.R. Act, its interest as a lessee under the lease which continued to subsist did not vest in the State of Bihar and it became and still continued to be a lessee under that State fro.m the date of the aforesaid notification under section 3 of the B.L.R. Act.
The appellant contested the suit averring inter alia that while the position of Dutts in respect of the. mines under the aforesaid blocks of land was that of the tenure holders under the Raja, its own position was that of the lessee in possession and that from November 14, 1951the date of vesting of the Sonepura estate in the State of Bihar the proprietary right of the Raja in the aforesaid mine ceased to exist and the respondent became an intermediary in re spect thereof directly Under the State of Bihar from the said date and the appellant continued to be a lessee in possession under the respondent.
The appellant denied that the interest of the respondent in the mine was that of the lessee or that from the date of the aforesaid notification under section 3 of ' the B.L.R. Act, the respondent became a lessee of the said mine directly under the State and averred that it continued to be the lessee in possession of the said mine under the respondent as before.
The appellant further averred that in any event the respondent 's right to receive additional royalty from the former in terms of the aforesaid sub lease dated October 12, 1928 ceased to exist from January 1, 1956, when the interest of the latter as tenure holder in the Chunhatta Lime Stone Quarries came to vest in the State.
The appellant Further averred that due to ignorance of the publication of the notification dated January 1, 1956 and bonafide mistake arising therefrom,.
it continued paying additional royalty to the respondent in terms of the sub lease dated October 12, 1928 for the period beginning from.
January 1, 1956, to the end of June, 1958, which the latter had no 367 right to receive and was refundable to it with interest thereon at the rate of six per cent.
The appellant alterna tively pleaded that assuming without admitting that the interest of the respondent in the Chunhatta quarries did not vest in the State of Bihar either by notification dated November 14, 1951, or under notification dated January 1, 1956, and that the respondent continued to be a lessee under the lease dated July 31, 1927, even then the appellant was, under the sub lease dated October 12, 1928, liable to pay royalty only at the rate of annas /15/ (fifteen) per 100 cubic feet as provided in the lease dated July 31, 1927, and an additional royalty of annas '/11/(eleven) per 100 cubic feet aggregating Rs. 1/10/ per 100 cubic feet equal to 24 Naya Paise plus 17 Naya Paise per ton (calculating 100 cubic feet as equivalent to 4 tons) for the period commencing from August 1, 1942 to May 31, 1958 that the respondent being a holder of the mining lease within the meaning of section 9 of the 1957 Act was liable to pay royalty at the rate of 37 Naya Paise per ton in respect of the minerals removed from the said quarries from June 1, 1958, and since payment to the tune of Rs. 61,684.40 on that account upto March 31, 1961 had been made by the appellant as an agent of the respondent to safeguard its position and enjoyment of the leasehold property, the former was entitled to be reim bursed to that extent.
In conclusion, the appellant aimed to set off the aforesaid sum of Rs. 61,684.40 and subse quent payments of royalty against the royalty that might be payable to the respondent under the sub lease dated October 12, 1928, in respect of the minerals removed from the leased quarries from June 1, 1958 upto March 31, 1961 and thereafter.
The appellant, however, admitted that it had paid the additional royalty to the respondent as stipu lated in the sublease dated October 12, 1928, upto June 30, 1958 only.
By his judgment dated July 23, 1963, Sankar Prasad Mitra, J. of the High Court of Calcutta to whom the suit had been assigned passed a decree in favour of the respondent to the extent of Rs. 47,944.10 as the princi pal sum, and Rs. 8,887.90 on account of interest, holding inter alfa that the respondent was not an intermediary or tenure holder in respect of the estate in suit under B.L.R. Act ' and its interest did not vest in ,the State of Bihar as a result of the aforesaid notification dated November 6, :1951 or the notification dated January 1, 1956; that the holder .of a mining.
lease as envisaged by the B.L.R. Act could be a lessee or a sub lessee; that it was the lessee or the sub lessee who removed the minerals from the mine that had to pay royalty at the rate specified in the Second Schedule to the 1957 Act and as it was the appellant and not the respondent that removed the minerals from the quarries during the relevant period, the provisions of section 9 of the 1957 Act could not be invoked for realization of royal ties from the latter; and that if the appellant had paid any sum in excess of the sum stipulated in the indenture of lease dated July 31, 1927, it did so entirely at its own choice and risk.
The learned Single Judge further held that section 69 of the Contract Act had no application to the facts of the present case.
The learned Judge, however, disallowed the claim of the respondent so far as the item of Rs. 1144/ was concerned.
Aggrieved 368 by this judgment and decree, the appellant preferred an ,appeal before a Division Bench of the High Court which proved abortive.
While affirming the findings of the Single Judge, the Division Bench held that the interest of the respondent did not vest in the State Government at the material time and the appellant continued to be sublessee under the respondent bound by the terms of the sub lease and that the liability to pay royalty to the State at 37 paise per ton from the date of coming into force of the 1957 Act fell on the appellant.
Dissatisfied with the judgment and decree of the Division Bench of the High Court, the appel lant has, as already stated, come up in appeal to this Court.
Appearing in support of the appeal, Mr. Patel has ad vanced two contentions.
He has in the first instance invit ed our attention to the definitions of 'intermediary ', 'intermediary interest ' 'lease ', 'tenure ' and 'tenure holder ' contained in clauses (jj), (jjj), (1), (q) and (r) respectively of section 2, as also sections 3, 3A, 4 and 9 of the B.L.R. Act and stressed that as the respondent was merely a 'tenure holder ' and all his rights, title and interest as such extinguished alongwith the interest of the erstwhile proprietor of the suit land i.e. the Raja with the coming into force of Notification No. 83 IR/ZAN (supra) on November 14, 1951, and it was the appellant who being a sub lessee stepped in as a direct lessee of the mine in question under the State, the respondent was not entitled to claim with effect from November 14, 1951, the additional royalty stipulated in the sub lease dated October 12, 1928.
He has further urged that assuming that the respondent enjoyed the status of a head lessee even then, its right, title and interest as such having become extinct and vested absolutely in the State without the encumbrance of the lease at least from January 1, 1956 the date of Notification No. EVII 102/56 ILR (supra), it could not claim the said addi tional royalty after December 31, 1955.
These contentions which appear to be based upon a misconception of the true legal position cannot be accepted.
The respondent could not be said to be a tenure holder as contemplated by the afore said section 2(r) of the B.L.R. Act as he had neither ac quired from the Raja by virtue of the lease dated July 31, 1927 a right to hold the land mentioned therein for the purpose of collecting rent nor a right to hold the land for bringing it under cultivation by establishing .tenants on it.
The right of the respondent as a head lessee of the mines and minerals also did not cease and the appellant did not acquire the status of the lessee as contended by Mr. Patel.
The consequences of vesting of an estate or tenure in the State are set out in section 4(a) of the B.L.R. Act.
According to this provision, on the publication of the notification under sub section (1) of section 3 or sub section (1) or (2) of section 3A of the B.L.R. Act, the estate or tenure mentioned in the notification including the interests of the proprietor or the tenure holder com prised in such estate or tenure and his interest in all sub soil including any right in mines and minerals inclusive of such right of a lessee of mines and minerals comprised in such estate or tenure vests absolutely in the State free from all encumbrances and such proprietor or tenure holder has to cease to have any interests in such estate or tenure, other than 369 the interests expressly saved by or under the provisions ,of the Act.
The last words of section 4(a) of the B.L.R. Act viz. "other than the interests expressly saved by or under the provisions of the Act" are pregnant with the meaning.
They unequivocally show that those interests which are expressly saved by or under the provisions of the Act are not affected or impaired by the aforesaid notifications.
Now according to section 10 of the B.L.R. Act which itself is in the nature of a non obstante provision overriding other provisions of the Act, every lease of mines and miner als comprised in the notified estate or tenure or any part thereof 'which may be subsisting immediately before the date of vesting has to be treated with effect from the date of 'vesting ' as a lease from the State Government to the holder of the said subsisting lease for the residue of the term of that lease and such holder acquires the right to retain .possession of the leasehold property for that peri od.
In other words, in place of every contractual lease which might have been subsisting immediately before the date of vesting of the estate or tenure, a statutory lease on practically identical terms and conditions comes into being.
Thus the combined reading of section 4(a) and section 10 of the B.L.R. Act leaves no room for doubt that the interests of the head lessee were left unaffected by the aforesaid notifications to the extent indicated above.
This view receives support from a catena of decisions of this Court where this position has been fully recognised and affirmed.
(See Bihar Mines Ltd. vs Union of India(1) Chhatu Ram Horil Ram Private Ltd. vs State of Bihar & Anr.(2); M/s. Hindu stan Steel Limited Rourkela vs Smt.
Kalyani Banerjee & Ors.(a) and State Of Bihar & Anr.
vs Khas Karanpura Collieries Ltd.(4).
The insertion of section 10 A in the B.L.R. Act by the Bihar Amendment Ordinance No. 3 of 1964 which was subse quently replaced by the Bihar Land Reforms (Amendment) Act (Bihar Act 4 of 1965) also indicates that the law as it obtained prior to the aforesaid amendment was not intended to have the effect of divesting a lessee of his interests in a lease of mines or minerals comprised in the estate or tenure or part thereof which subsisted immediately before the vesting of a notified estate or tenure.
We must here deal with what has been tried to be im pressed upon us by Mr. Patel in regard to this aspect of the matter by reading out to us a passage from Craies on Statute Law. 'The counsel has strongly urged that since it is not strictly permissible to interpret a statute by reference to what has been said in subsequent statutes, resort cannot be had to the provisions of section 10 A which was intro duced in the B.L.R. Act in 1964 while interpreting section 10 of before the introduction of the said section.
We also find ourselves unable to accept this contention and to disregard the well settled canon (1) ; (2) ; (3) ; .
(4) ; 370 that sometimes light may be thrown upon the meaning 'of an Act by taking into consideration 'parliamentary expositions ' as revealed by the later Act which amends the earlier one to clear up any doubt or ambiguity.
This principle has to be followed where, as in the instant case, a particular construction of the earlier Act will render the later incor porated Act ineffectual, or otiose or inept.
(See Krikness vs John Hudson & Co.(1).
This view also receives support from the decision of this Court in Yogendra Nath Naskar vs
C.I.T. Calcutta(") where approving the authoritative pronouncement in Cape Brandy Syndicate vs I.R.C.(3) that the subsequent legislation may be looked at in order to see the proper construction to be put upon an earlier Act where that earlier Act is ambiguous, it was held that the language employed in Income Tax Act, 1961 may be relied on as a Parliamentary exposition of the earlier Act (I.T. Act, 1922) even on the assumption that the language employed in Sec tion 3 of the earlier Act is ambiguous.
It follows from the above discussion that the estate comprised in the head lease in the instant case which was assigned to the respondent notionally stood leased by the State from the date of vesting to the holder of the subsist ing lease for the remainder of the term of the lease and the respondent became entitled to retain possession of the leasehold property.
The first contention of Mr. Patel is, therefore, repelled.
Mr. Patel has next contended that as the royalty payable to the lessor was enhanced under the provisions of the 1957 Act read with the Mining Leases (Modification of Terms) Rules, 1956, which continued in force by virtue of section 29 of the 1957 Act and the enhanced royalty was payable by the respondent who was the holder of the mining lease as envisaged by section 9 of the 1957 Act, the appellant was entitled to be reimbursed to the extent of Rs. 61,684.40 which was paid by him as an agent of the respondent.
This contention has to be examined with reference to two periods viz. (i) from July 1, 1958 to August 7, 1959, and (ii) August 8, 1959 to March 31, 1961.
It is admitted by the appellant that during the period intervening between the date when the 1957 Act came into force and August 8, 1959 when the Controller passed the aforesaid order enhancing .the royalty.
payable to the State, ,it continued to pay the said royalty at the old rate of 24 paise per ton and was never required to pay the same at the enhanced rate of 37 paise.
No question of reimbursement for this period can, therefore, arise.
The position, however, with regard to the second period from August 8, 1959, to March 31, 1961,.is not free from difficulty and has to be examined with reference to the provisions of section 9 of the 1957 Act and of the Mining Leases (Modification of Terms) Rules, 1956 as also of the provisions of section 9 of the B.L.R. Act.
Whereas according to counsel for the appellant, it is the respondent which being the holder of lease as contemplated by section 9 of the 1957 Act that has to bear the burden of royalty payable to the State in accordance with the requirements of Second Schedule to the 1957 (1) [19551 A.C. 696 (H.L.) (2) ; (3) 371 Act, according to counsel for the respondent, as the expres sion "mining lease" used in section 9 of the 1957 Act has been defined in section 3(c) of the Act as including a 'sub lease ' and the mineral has actually been removed by the appellant, the liability for payment of enhanced royalty squarely falls on the appellant.
There is yet another aspect of the matter which may reasonably be urged in accordance with the ratio of the decisions of this Court in Bihar Mines Ltd. vs Union of India (supra) and M/s Hindustan Steel Limited Rourkela vs Smt.
Kalyani Banerjee & Ors.
(supra) where it was unequivocally laid down that a statuto ry lease held by a head lessee from the State Government being a new lease granted after October 25, 1949, and not being an existing lease, it could not be modified and when the head lease not being an existing mining lease could not be modified, the sub lease could also not be modified as it too would be deemed to be a new lease granted by the new lessee from the State Government.
In view, however, of the fact that neither the Union of India nor the Controller of Mining Leases is a party to the case before us and the aforesaid order dated August 8, 1958 appears to have been passed by tile Controller of Mining Leases with the agree ment of the parties here.to, we do not consider ourselves called upon to resolve the conflicting contentions advanced before us by counsel for the parties.
For the purpose of this appeal, it would suffice to observe that in view of Exhibit 'L ' (reproduced at pages 280 to 282 of the Paper Book), the burden of payment of the royalty for the second period also is to be borne by the appellant and the question of his being re imbursed by the respondent cannot be counte nanced.
The second contention raised by Mr. Patel also, therefore, fails.
In the result the appeal fails and is dismissed.
In the peculiar circumstances of the case, the parties are left to pay and bear their own costs of the appeal.
P.B.R. Appeal dismissed.
| IN-Abs | The proprietor of large tracts of laud leased blocks of land to.
the lessees at a stipulated rate of royalty and rent.
The lessees sub leased the land to the appellant who undertook to pay the lessees the same royalty and rent.
payable by them to the proprietor.
They also agreed to pay an additional royalty to the head lessee.
The sub lease gave an option to the appellant to make payment of royalty directly to the head lessor in terms of the head lease.
The lessees transferred their rights, title and interest in the head lease and sub lease to the respondent.
By virtue of a notification under section 3 of the Bihar land Reforms Act, 1950 the estate belonging to the head lessor passed to and became vested in the State.
Another notifica tion issued under section 3A of the Act declared that all inter mediary interests in certain districts had passed to and became vested in the State.
In exercise of its option under the sub lease the appel lant paid rent a.nd royalty directly to the head lessor and the additional royalty to the head lessee (respondent) but stopped payment of additional royalty to the respondent in terms of the sub lease, from July 1, 19.58.
On August 8, 1959 Controller of Mines and Leases for India passed an order enhancing the royalty payable to the State and in c1.(9) of the order it was stated that "royalty will be.
payable to State Government by the appellants in accordance with section 9 of the Mines and Minerals (Regulation & Develop ment) Act, 1957 and dead rent according to the order passed in these proceedings.
" The respondent filed a suit claiming arrears of additional royalty.
The High.
Court decreed the suit.
In appeal to this Court, it was contended that (i) since the respondent was merely a tenure holder and all its rights, title and interest as such extinguished alongwith the interest of the erstwhile proprietor with the coming into force of the 1950 Act it was the appellant as a sub lessee that became a direct lessee of the State and, there fore, the respondent was not entitled to claim additional royalty.
(ii) since the enhanced royalty was payable by the respondent which was paid by the appellant, the appellant was entitled to reimbursement to the extent it paid the amount as agent of the respondent.
Dismissing the appeal, HELD :(1)(a) A combined reading of sections 4(a) and 10 of the 1950 Act leaves no room for doubt that the interests of the head lessee were left unaffected by the notifications.
[369 D] (b) The respondent could not be said to be a tenure holder as contemplated by the 1950 Act as it had neither acquired from the head lessor by virtue of the lease a right to hold the land for the purpose of collecting rent nor a right to hold the land for bringing it under cultivation by estab lishing tenants on it.
The right of the respondent as a head lessee of the mines and minerals also did hot cease and the appellant did not acquire the status lessee.
According to section 4(a) of 1950 Act on the publication of the notifications the interests of the proprietor or tenure holder comprised in such estate or tenure inclu sive of such right of a lessee of mines and minerals com prised 7 1104 SC I/76 360 in such estate or tenure vest absolutely in the State free from encumbrances and such proprietor or tenure holder has to cease to have any interest in such estate or tenure other the interest expressly saved by or under the provisions of the Act.
The last words of section 4(a) of the Act, namely, "other than the interest expressly saved by or under the provisions of the Act" unequivocally show that those inter ests which are expressly saved are= not ' affected or im paired by the notifications.
According to 9.10 which itself is in the nature of a non obstante provision overriding other provisions of the Act, every lease of mines and miner als comprised in the notified estate or tenure or any part thereof which may be subsisting immediately before the date of vesting has to be treated, with effect from the date of vesting, as a lease from the State Government to the holder of the said subsisting lease for the residue of the term of that lease and such holder acquires the right to retain possession oF the leasehold property for that period.
In other words, in place of every contractual lease which might have been subsisting immediately before the date of vesting of the estate or tenure a statutory lease on practi cally identical terms and conditions came into being.
[368 F H, 369 A C] Bihar Mines Ltd. vs Union of India ; , Chhatu Ram Horil Ram Private Ltd. vs State of Bihar & Anr. ; ; , M/s. Hindustan Steel Ltd., Rourkela vs Smt.
Kalyani Banerjee & ; and State of Bihar& Anr.
vs Khas Karsmpura Collieries Ltd. etc.
[1977] I SCR. 157 followed.
(c) The introduction of s.10A in the 1950 Act indicates that the law as it obtained prior to the amendment was not intended to have the effect of divesting a lessee of his interests in a lease of mines or minerals which subsisted immediately before the vesting of a notified estate or tenure.
[369 F] (2) In view of the order passed by the Controller that the appellant agreed to say the enhanced royalty the burden of payment is to be borne by the appellant and the question of its being reimbursed by the respondent does not arise.
[371 D] (3) The contention that it is not permissible to inter pret a statute by reference to what has been said in subse quent statutes with reference to the situation obtaining before the introduction of the amendment is not well found ed.
Sometimes light may be thrown upon the meaning of an Act by taking into consideration 'Parliamentary expositions ' as revealed by the later Act which amends the earlier one to clear up any doubt or ambiguity.
This principle has to be followed where, a particular construction of the earlier Act will render the later incorporated Act ineffectual or otiose or inept.
[370 A] Krikness vs John Hudson & Co., , Yogendra Nath Naskar vs
C.I.T. Calcutta, , Cape Brandy Syndicate vs
I.R.C. referred to.
In the instant case resort can be had to the provisions of section 10A introduced in 964 while interpreting section 10 of the 1950 Act with reference to the situation obtaining at the relevant time before the introduction of section 10A.
The estate comprised in the head lease which was assigned to the re spondent notionally stood leased by the State from the date of vesting to the holder of the subsisting lease and the respondent became entitled to retain possession of the leasehold property.
[370D]
|
Appeal No. 2539 of 1972.
(From the Judgment and Order dated 10 3 1972 of the Mysore High Court in Misc.
First Appeal No. 234/70) H.S. Parihar for 1.
N. Shroff, for the Appellant.
K.R. Nagaraja and P.N. Puri for the Respondent.
The Judgment of the Court was delivered by BEG, J.
The judgment of a Division Bench of the Mysore High Court under appeal before us after certification of the case as fit for an appeal to us, follows the decision of a Full Bench of that Court in Venkatamma vs Special Land Acquisition officer.
(1) The FuII Bench had held that the date for the determination of compensation under the provi sions of section 23(1) of the Land Acquisition Act, which was to.
be applied to acquisitions under the City of Mysore Improvement Act 3 of 1903 (hereinafter referred to as 'the Mysore Act '), was the date of notification under section 18 of the Act corresponding to section 6 of the Acquisition Act.
Recently, we have had to deal with a case in which the provisions of the City of Bangalore Improvement Act, 1945, corresponding substantially with those of the Act now before us, were interpreted by us.
The provisions of Sections 14, 16 and 18 of the Mysore Act of 1903, as well as the Banga lore Act of 1945 are identical.
And, the provisions of section 23 of the Mysore Act are identical with those Sec tion 27 of the Bangalore Act.
Therefore, a Division Bench of the Karnataka High Court considered itself bound by the Full Bench decision of the Mysore High Court (subsequentiy the Karnataka High Court) on the provisions of the Mysore Act of 1903 even in interpreting the Bangalore Act of 1945.
But, this Court held, in the Land Acquisition Officer, City Improvement Trust Board vs
H. Narayanaiah etc.
,(2) that the Division Bench decision of the Karnataka High Court holding that the market value, for the purposes of compensa tion, must be determined with reference to the date of notification under section 18 of the Bangalore Act, was erroneous.
It, therefore, allowed the appeals from the judgment of the Division Bench of the Karnataka High Court which had purported to follow the Full Bench decision of the Mysore Act of 1903.
The main argument in the appeal before us is that this Court had observed in Narayanaiah 's case (supra) that the Full Bench decision related to an interpretation of provi sions of an Act as it stood in (1) A.I.R. (2) ; 551 1903, when the date of market value, to be determined for purposes of compensation, was the date of notification under section 6 of the Acquisition Act.
That date was subse quently changed by the Mysore Act 1 of 1927 to that of publication and notification under Section 4(1) of the Acquisition Act.
It is true that this Court did observe that this difference was vital.
In doing so, it had ac cepted the.
argument put forward on behalf of the Land Acquisition Officer.
But, it had not decided what was the real meaning of provisions of Section 23 of the Mysore Act which correspond with section 27 of the Bangalore Act.
Section 23 of the Mysore Act now before us reads as follows: "23.
The acquisition 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 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 Government to act under section 4(2) of the Land Acquisition Act, and for his servants and workmen, to do thereunder, and the provision contained in section 5 of the said Act shall likewise be ap plicable in respect of damage caused by any of 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 Land Acquisi tion Act.
(3) For the purposes of section 50(2) of the Land Acquisition Act, the Board shall be deemed to be local authority concerned.
(4) After the land vests in the Government under section 16 of the Land Acquisition Act, 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 acquisition, transfer the land to the Board, and the land shall thereupon vest in the Board".
The reasoning of the Full Bench of the.
Mysore High Court, which did not appeal to this Court in Narayanaiah 's case (supra), was that, since a declaration under section 18 of the Act was equated with section 6 of the Acquisition Act, proceedings under section 4(1) of the Acquisition Act could only be equated with the stage of a resolution 552 under section 14(1) of the Act which was anterior to the declaration under section 18 of the Mysore Act.
section 16 of the Act is also anterior to Section 18.
This Court found that, although the procedure laid down in section 16 of the Bangalore Act, which corresponds exactly with section 16 of the Mysore Act now before us, is more elaborate than the procedure under section 4(1) of the Acquisition Act, yet, the purpose of section 16 of the Bangalore Act was the same as that of section 4 (1) of the Acquisition Act, we think that this reasoning applies equally to the provisions of the Mysore Act.
It is true that it can be more plausibly argued, with regard to the provisions of Mysore Act of 1903, that the market value for acquisition under this Act should be deter mined with reference to the Acquisition Act as it stood in 1903.
After carefully considering this point of view, we think that such a departure from the generally accepted procedure which regulates acquisition and compensation for it under similar Acts in the State of Mysore as well as under Land Acquisition Act today has to be justified by something more explicit, express and substantial than the mere date of enactment of the Mysore Act.
If Section 23(1) of the Acquisition Act lays down, as we think it does, the only procedure for award of compensation, it has to be followed as it exist at the time of acquisition proceedings.
No one has a vested right in a particular procedure.
It is a fair interpretation of section 23 of the Mysore Act of 1903 to hold that it means that, whatever may be the proce dure there, with regard to matters regulating compensation under the Acquisition Act,.
at the time of acquisition proceedings, will apply to acquisition under the Mysore Act.
If the procedure that the market value should be deter mined with reference to section 6 of the Acquisition Act had been replaced, by an amendment of 1927.
by the provision that the relevant date will be the date of notification under section 4(1) of the Acquisition Act, we will really have to determine what is the equivalent in the Mysore Act of proceedings under section 4(1) of the Acquisition Act.
The provision relating to determination of compensation with reference to Section 6 having disappeared was no longer available to be applied at all on the date of the acquisi tion with which we are now concerned.
Hence.
to argue that the equivalent of section 6 notification trader the Acquisi tion Act should govern even proceedings commenced after the amendment would be to apply what had ceased to exist long before the proceeding commenced.
The amendment of section 23(1) of the Acquisition Act meant a legally valid substitu tion of the notification under section 4(1) for the one under section 6 of the Acquisition Act.
This implied an effective repeal and replacement.
In such a situa tion, according to section 6 of the Mysore General Clauses Act, only proceedings commenced before the repeal would be governed by the unamended procedure.
We think that the language of section 23 of the Mysore Act applies the provisions of the Acquisition Act to acquisitions under the Mysore Act, except to the extent of express deviation by the Mysore Act from the general procedure in the Acquisition Act as amended from time to time.
The procedure contained in the Acquisition Act, for the time being, did 553 need to be expressly applied once again after each amendment of the Acquisition Act, as the Mysore High Court seems to have opined.
It was enough to lay, down, as section 23 of the Mysore Act does, that the general procedure found in the Acquisition Act will apply except to the extent it was inapplicable.
This means that amendments of the procedure in the Acquisition Act will apply if it is capable of appli cation.
In the case before us, the preliminary notification under section 16 of the Mysore Act of 1903 was published on 27th May, 1965.
This we equate with notification under section 4(1) of the Acquisition Act for reasons we have already given in Narayanaiah 's case (supra).
At that time, there was no date other than the date of the notification under section 4(1) of the Acquisition Act prescribed for ascertainment of the market value, as a matter of correct procedure for determining compensation.
The procedure under the unamended Act may have had relevance for acquisition proceedings begun before the amendment of the Acquisition Act in 1927 when it really existed.
But, we think that it is a fair interpretation of the provisions of Section 23 of the Mysore Act to hold that compensation for acquisitions will be general provisions of the Acquisition Act as they exist on the date of a particular acquisition proceeding except to the extent to which a different procedure is expressly laid down in the Mysore Act.
On the view we take, the market value of the property acquired had to be deter mined with reference to the date of notification under Section 16 of the Mysore Act.
Consequently, we set aside the judgment and order of the Mysore High Court.
We remand the case to the High Court for determination of the market value and disposal of the case in accordance with the law as declared by us.
The parties will bear their own costs throughout.
V.P.S. Appeal allowed.
| IN-Abs | Section 23(1) of the Land Acquisition Act originally provided that the date for Section 23 (1) of the market value for purpose of compensation is the date of the notification under section 6.
In 1927, section 23(1) was amended making the date of section 4(1) notification as the relevant date.
With respect to certain acquisitions under the City of Mysore Improvement Act, 1903.
(Mysore Act) the notifica tion under section 16 of the Act was published in May 1965 and the notification under section 18, which corresponds to section 6 of the Acquisition Act, was published some, time later.
On the question of the date for the determination of market value for purposes of compensation under the provisions of section 23(1), Acquisition Act, the High Court followed the Full Bench decision of that court in Venkatamma vs Special Land Acquisition Officer (AIR and held that the date of section 18 notification is the relevant date, on the ground that section 23(1), Acquisition Act, as it stood in 1903 should be applied, since its amendment in 1927, has not been made specially applicable to acquisitions after that date.
Allowing the appeal to this Court and remanding the case to the High Court for determination of the market value as on the date of section 16 notification.
HELD: (1) Section 23, Mysore Act, applied the provisions of the Acquisition Act to acquisitions under the Mysore Act, except to the extent of any express deviation by the Mysore Act from the general procedure in the Acquisition Act.
It is a fair interpretation of section 23, Mysore Act, to hold that it means that, whatever may be procedure with regard to matters regulating compensation under the Acquisition Act, at the time of acquisition proceedings, will apply to acqui sitions under the Mysore Act.
The procedure, contained in the Acquisation Act for the time being need not be expressly applied once again after each amendment of the Acquisition Act, and such procedure in the Acquisition Act would apply if it is capable of application, since no one has a vested right in a particular procedure.
[552 A F] Therefore: section 23(1) of the Acquisition Act, which lays down the procedure for awarding compensation, has to be followed as it exists at the time of requisition proceed ings.
[552H 553A] (2) the 927 amendment of section 23(1), Acquisition Act, meant a legally valid substitution of the notification under section 4(1) for the one under section 6 of the Acquisition Act, that is, an effective repeal and replacement.
In such a situation, according to section 6, Mysore General Clauses Act, only proceedings commenced before the repeat would be governed by the unamended procedure.
[552 F G] (3) The date of notification under section 4(1) of the Acquisition Act would thus be the relevant date, for determining market value.
Although the procedure laid down in section 16, Mysore Act, is more elaborate than the proce dure under section 4(1), Acquisition Act, the purpose of section 16, Mysore Act is the same as that of section 4(1) Acquisition Act.
Therefore, the date of s 16 notification would be the rele vant date.
[553 B F] 550 Land Acquisition Officer, City Improvement Trust Board vs
H. Narayanaiah etc., etc.
; , followed.
Venkatamma vs Special Land Acquisition Officer (AIR overruled.
|
Appeal No. 1437 of 1971.
(Appeal by Special Leave from the Judgment and order dated 28 4 1970 of the Delhi High Court in Income Tax Refer ence No. 50/ 65) V.S. Desai, Mrs, Leila Seth and Parveen Kumar for the Appellantt.
S.T. Desai & M.N. Shroff, for the Respondent.
The Judgment of the Court was delivered by SHINGHAL, J.
This appeal by special leave is directed against the judgment of the Delhi High Court dated April 28, 1970 in a reference made by the Income tax Appellate Tribu nal (Delhi Bench A) under section (36(1) of the Income tax Act, 1922, hereinafter referred to as the Act.
in respect of the following question, "Whether on the facts and circumstances of the case the sum of Rs. 7 lakhs received from M/s Orissa Cement Ltd. was pursuant to an adventure in the nature of trade and as such tanable under the Indian Income tax Act, 1922 ?" The High Court has answered the question in the affirmative.
We shall refer to the facts giving rise to the controversy in some detail when we state them in a chronological order.
It may be mentioned, mean while, that the Dalmia Cement Ltd., hereinafter called the appellant, owned certain cement facto ries and it placed an order for the supply of four complete units of cement manufacturing machinery with M/s F.L. Smidth and Co., Copenhagen, on February 7, 1946.
to increase the production in the following factories, , 1.
Shantinagar, 2.
Dandot, 3.
Dalmianagar, 4.
Dalmiapuram.
Since the factory in Dandot fell within the territory of Pakistan on constitution with effect from August 15, 1947, the appellant transferred the machinery which was meant for the Dandot factory (hereinafter referred as the Dandot machinery), to a new company known as Orissa Cement Ltd. some time in 1950 51, and charged only the invoice price which it had paid to M/s F.L. Smidth and Co. The appellant thereafter asked for a higher price and after some negotia tions the Orissa Cement Ltd. agreed on December 4, 1951, to pay a further sum of Rs. 7 lakhs, in lieu of which 70,000 fully paid up ordinary shares of Rs. 10/ each.
were given to the appellant in that company.
The Income tax Officer treated that amount as income earned by the appellant pursu ant to an adventure in the nature of trade in 1952 53 as sessment year, and taxed it as such.
On appeal, the Assistant 4 1234SCI/76 556 Appellate Commissioner also held in his order dated Septem ber 16, 1958 that the transfer of the Dandot machinery was an adventure in the nature of trade and the payment of Rs. 7 lakhs was a revenue receipt which was rightly taxed by the Income tax Officer.
The matter went up in appeal to the Income tax Appellate Tribunal (Delhi Bench) which remanded the case to the Income tax Officer by its order dated Sep tember 13, 1960, for report on certain specific points.
On receipt of the Income tax Officer 's report, the Tribunal held that the transaction in question was "certainly an adventure in the nature of trade" and dismissed the appeal.
It however drew up a statement of the case, and that is how the aforesaid question of law was referred to the High Court under section 66(1) of the Act.
The High Court held that by the time the appellant placed the despatch order with M/s Smidth & Co., "its intention was to purchase it with an idea to resell" and that the fact that it was a single and iso lated transaction did not materially affect the case.
In reaching that conclusion the High Court took the subsequent developments into consideration, and rejected the contention that the machinery was purchased by way of an "investment".
The present appeal has been filed against that judgment of the High Court dated April 28, 1970.
Under section 10 of the Act, income tax is payable by ,m assessee under the head "Profits and gains of business, profession or vocation", inter alia, in respect of the profits and gains of any "business" carried on by him, and the controversy in this case is whether the receipt of the additional sum of Rs. 7 lakhs, over and above the cost of the Bandot machinery, could be said to arise out of any "business" of the appellant.
The term "business" has been defined as follows in clause (4) of section 2 of the Act, "(4) "business" includes any trade, commerce, or manufacureor any adventure or concern in the nature of trade, commerce or manufacture.
" The question in this case is whether the transaction was an "adveuture" in the "nature of trade" within the meaning of the definition ? Some decisions have been rendered by this Court on the point, and our attention has been invited to the decisions in Narain Swadeshi Weaving Mills vs Commis sioner of Excess Profits Tax, (1) Kishan Prasad and Co. Ltd. vs Commissioner of Income tax Punjab,(") G. Venkattaswami Naidu & Co. vs The Commissioner of Income tax,(3) Soroj Kumar Mazurndar vs The Commissioner of Income tax West Bengal Calcutta, (4) and Janki Ram Bahadur Ram vs Commissioner of Income tax, Calcutta(5).
Even so, on gener al principle can, for obvious reasons, be laid down to cover.
all cases of this kind because of their varied na ture, so that each case has to be decided on the basis of its own facts and circumstances.
It is however well settled that even a single and isolated transaction can be held to be capable of falling within the definition if it bears clear indicia of trade (vide Natgin (1) (2) (3) [1959] Supp.
(1) S.C.R. 646.
(4) (1959) Supp. (2) S.C.R. 846.
(5) ; 557 Swadeshi Weaving Mills vs Commissioner of Excess Profits, G. Venkataswami Naidu & Co. vs The Commissioner of Income tax, and Sarol Kumar Mazumdar vs The Commissioner of Income tax, West Bengal, Calcutta (supra)).
It is equally well settled that the fact that the transaction is not in the way or business of the assessee does not in any way alter the character of the transaction (vide G. Venkataswatni Naidu & Co. vs The Commissioner of Income tax, and Saroj Kumar Mazumdar vs The Commissioner of InCome tax, West Bengal, Calcutta (supra).
It would not therefore help the appel lant 's case merely to urge either of these points for the answer to the question will depend on a consideration of all the facts and circumstances.
The question under consideration is essentially a mixed question of fact and law.
It will therefore be desirable, in the first instance, to re state the relevant facts in a chronological order; As has been stated, the appellant owned some cement factories in various parts of India including the one in Dandot.
It placed an order with M/s. Smidth & Co., Copenha gen, for the supply of four complete units of machinery for the manufacture of cement, to increase the production of its factory at Dandot and three other factories.
A firm order for all the four units was placed on February 7, 1946.
It was confirmed by M/s. F.L. Smidth & Company on August 6, 1947 and the appellant was informed that the supply of the Dandot machinery would be made in various months from Febru ary 1948 to October 1948.
India was partitioned, and Paki stan came into existence on August 15, 1947.
Dandot fell in the territory of Pakistan.
The appellant, which was an Indian Company, did not however cancel the order in respect of the Dandot machinery.
On the other hand, a Director of the appellant informed the Orissa Government in his letter dated November 25, 1947 that it had "got a cement plant for which it had placed order a couple of years back", of which early delivery was expected, and that it would be willing to put it in Orissa on "suitable terms." The appellant 's General Manager held discussions with the Orissa Government on January 8, 1948 for the setting up of a cement factory in Orissa.
It was recorded in the note of the proceedings of that meeting that the appellant had ordered machinery for replacing its cement plant, the said machinery was expected to be shipped at an early date and parts of it would start arriving in March 1949.
It was further stated that the complete supply of the plant was estimated to take about six months, and if the negotiations were fruitful the first lot of cement would be produced by the beginning of 1950.
The appellant 's representative insisted that a final decision might be taken at an early date so that the machinery which had to be chipped from abroad could be diverted, depending upon the decision, to the Calcutta or Bombay port.
The appellant thereafter wrote a letter to M/s. F.L. Smidth and Co. (Bombay) Ltd. on September 9, 1948 directing that the plant meant for the Dandot works might be diverted to Oris sa.
It was specially stated in the letter as follows, "There are certain equipments in the specifications of the plants for extension No. 3 and 4, which were peculiar to the layout and design for the extension at Dandot and Shanti 558 nagar and they will not now fit in exactly in the same manner in our proposed new factories.
As such, it is essen tial that the whole specifications are carefully scrutinised and manufacture of the items which are peculiar to the lay out of Dandot and Shantinagar Works only should be kept in abeyance in order to suit the local conditions.
" The plants were expected to arrive from March 1949 onwards, but this would not have been possible without an import licence.
The appellant obtained the licence from the Gov ernment of India and intimated to M/s. F.L. Smidth and Co. in its letter dated August 2, 1948 that it had been permit ted to import in the Indian Dominion the two plants meant for Dandot and Shantinagar.
The suppliers were accordingly requested to intimate the dates upto which extension was required for the import of the machinery.
A formal agree ment was made between the appellant and the Orissa Govern ment on December 23, 1948.
The Dandot machinery arrived in due course.
It was delivered by the appellant to Orissa Cement Ltd. and its actual cost was debited to it.
Quite some time thereafter, on April 7, 1970, a Director of the appellant wrote a letter to the Industries Minister of the Orissa Government that the machinery supplied to the orissa Cement Ltd. should be revalued and the appellant allowed a higher price than the invoice price due to a rise in the cost of the cement .plant at the time of supply as compared with the price at the time when it was originally ordered by the appellant.
The name of one F.B. Mogensen was suggested for the revaluation of the machinery.
This was agreed to by the State Government on June 4, 1950.
Mogensen reported that the Orissa Cement Ltd, had benefited to the extent of almost Rs. 21 lakhs in the bargain.
The Orissa Government passed a resolution dated December 4, 1951 allowing a fur ther sum of Rs. 7 lakhs to the appellant and, in lieu of cash payment, allotted 70,000 fully paid up ordinary shares of Rs. 10/ each of the Orissa Cement Ltd. to the appellant.
The above facts clearly establish that, (i) Even though the appellant initially placed an order on February 7, 1948 for the purchase of the Dandot Machinery for improving the production in the Dandot factory, and the supply was not to commence until February.
1948, it did not make any effort to cancel that order even after Dandot was included in the territory of Pakistan with effect from August 15, 1947.
(ii) On the other hand, in pursuance of an enquiry by the Government of Orissa whether the appellant would be interested in putting up a cement plant in the State, one of the appellant 's Directors informed the State Government on November 25, 1947 that it had got a cement plant for which it had placed an Order a couple of years ago and that it could be put up in Orissa on suitable terms.
The appellant 's General Manager in fact met the State Government authorities in January, 1948 where it was reiterated 559 that the machinery ordered by the appellant was expected to start arriving in March 1949 and could be diverted to Calcutta and that if the appellant 's negotiations with the State Government were suc cessful, the first lot of cement could be supplied by the beginning of 1950.
(iii) The negotiations with the Orissa Govern ment proved successful and the appellant wrote a letter to M/s. F.L. Smidth and Co. on August 2, 1948 informing it that it had obtained the permis sion of the Government of India to import the Dandot machinery in India.
The appellant also informed the suppliers on September 9, 1948 that it should divert the Dandot machinery to Orissa and supply the same according to the revised specifica tions to suit the local conditions.
(iv) A formal agreement was executed by the appellant and the Orissa Government on December 23, 1948 for the setting up of a cement factory in Orissa.
(v) The Dandot machinery arrived and was sup plied by the appellant to the Orissa factory against cost price, which was debited to the Orissa Cement Company.
It would thus appear that, long before the Dandot machinery was due, the appellant knew that it could not be used in Dandot.
It has been found that after the partition of the country the appellant could have cancelled the order for the import of the machinery but it did not do so and decided to import it with a view to supplying it to Orissa on suitable terms.
It therefore resold it to the Orissa factory in accordance with the terms and conditions of its negotiations with the State Government.
The intention of resale was therefore there almost from the beginning, and was really the dominant intention in importing the machinery after the partition of the country.
It is also quite clear that the appellant was not inclined to make it a gratuitous sale, but agreed to it only when it was able to secure a suitable agreement with the State Government for the setting up of a factory in Orissa.
It was in fact.
the appellant 's own case that the price of the Dandot machinery had gone up substan tially.
Even so, the appellant did not care to utilise it for any of its own plants, but sold it to Orissa Cement Ltd. The appellant therefore did not only have the dominant intention of selling the Dandot machinery to its own advan tage but, in doing so, it acted with the set purpose of taking an advantage of its position as the owner of the imported machinery of which the price had on the appellant 's own showing, gone up much higher.
It was therefore a real transaction by way of an adventure in the nature of trade and was as such a business transaction within the meaning of section 2(4)of the Act.
It does not matter if the appel lant did not earn a profit immediately on delivering the machinery, and sold it without any profit in the first instance, for there can be no denying the fact that even if the appellant had not earned any profit whatsoever at the time of the sale or even thereafter, the transaction in the facts and circumstances of the case, would nonetheIess have been adventure in the 560 "nature of trade" and no other.) We are fortified in this view by the decisions in Narain Swadeshi Weaving Mills vs Commissioner Excess Profits Tax (supra) and G. Venkataswami Naidu and Co. vs The Commissioner of Income tax (supra).
It is true that the question of asking for payment in excess of the cost price was raised by the appellant some time later, but its subsequent course of conduct in bringing about a substantial profit is a clear pointer to the real intention behind the sale.
It was for that reason that the appellant 's Director addressed a letter to the Minister of Inustries of the Orissa Government on April 7, 1950 stating that the Dandot machinery should be revalued and the appel lant allowed a higher price due to the rise in its price at the time of the supply.
The entire correspondence in that respect has not been placed on record by the appellant, but it appears that the appellant was able to secure a further sum of Rs. 7 lakhs, under an agreement dated December 4, 1951 in lieu of which it was able to secure 70,000 fully paid up shares of Rs. 10/ .
The appellant succeeded in doing so merely because it was able to substantiate its claim for a higher price, or profit, on the sole ground that it was entitled to it because of the increase in the price at the time of the sale.
There is therefore nothing wrong in the view which has prevailed with the High Court that it was an adventure in the nature of trade.
It has been argued by Mr. V.S. Desai, for the appellant that as it was a single and isolated transaction of purchase and sale,, the onus of proving that it was a transaction in the nature of trade lay on the department.
This is a correct proposition of law and, .as would appear from what has been stated above, we have examined the controversy on the assumption that the burden of proving that the transac tion was an adventure in the nature of trade lay on the department.
The ancillary argument of Mr. V.S. Desai that a question like the present has to be examined with reference to the indicia or characteristics of the trade, is also quite correct, but counsel has not been able to contend, in the face of the facts and circumstances mentioned above, which indicia or characteristics could be said to be lacking to take it out of the category of an adventure in the nature of trade.
All that Mr. V.S. Desai has pointed out is that there was no intention to make a profit when the Dandot machinery was sold to the Orissa Cement Ltd., and it has been urged that would be sufficient to take it out of the category of an adventure in the nature of trade.
Reference in this connection has been made to the decisions in Kishan Prasad & Co. Ltd. vs Commissioner of Income tax, Punjab (supra), G. Venkataswami Naidu and Co. vs The Commissioner of Income tax (supra), Saroj Kumar Mazurndar vs The Commissioner of In come tax, West Bengal, Calcutta (supra), and Ajax Products Ltd. vs Commissioner of Income tax, Madras(1).
We have given our reasons for the contrary view that the transaction would be an adventure in the nature of trade even if the question of profit was left out of consideration, and that the appellant in fact acted with the set purpose of resell ing the (1) 561 Dandot machinery to its advantage and not by way of a favour or a gratuitous act.
We have also shown how the appellant ultimately claimed and succeeded in securing a higher price merely on the ground that there was an appreciable increase in the price after the purchase of the Dandot machinery.
Lastly, it has been argued by Mr. V.S. Desai that in purchasing the machinery the appellant made a capital in vestment so that it was merely a capital asset.
This argu ment is also futile for, as has been shown, the appellant made the purchase with the dominant intention of reselling the machinery to advantage and made the resale only when it was able to enter into an agreement with the Orissa Govern ment lot the setting of a cement factory in that state on terms and conditions which were suitable from its point of view.
It may also be stated that even in its own profit and loss account and balance sheet, the appellant treated the sale price as a revenue receipt and not as a capital invest ment.
It was therefore an after thought to Claim that the initial purchase was by way of an investment and was a capital asset.
The facts of Kishan Prasad and Co. Ltd. vs The Commis sioner of Income tax, Punjab (supra), Saroj Kumar Mazumdar vs The Commissioner of Income tax, West Bengal, Calcutta (supra) and Janki Ram Bahadur Ram vs Commissioner of Income tax, Calcutta (supra) referred to by Mr. V.S. Desai were different.
In the case of Kishan Prasad and Co. Ltd. (supra) there was agreement to give the managing agency to the assessee on the erection of the mill because it had subscribed to shares worth Rs. 2 lakhs.
The mill was not erected and the assessees sold the shares.
There was there fore justification for holding that the purchase of the shares was an investment to acquire the managing agency and was not an adventure in the nature of trade.
In Saroj Kumar Mazumdar 's case (supra) there was a single transaction of sale of rights for the purchase of land measuring 3/4 acres by the assessee who was an Engineer by profession.
His construction activities declined and that was why he sold his rights in the land for Rs. 74,000 odd in excess of the amount paid by him.
The Incometax department however failed to prove that the assessees dominant intention was to embark on a venture in the nature of trade as distin guished from capital investment.
That was also therefore a different case.
In the case of Janki Ram Bahadur Ram (supra) the assessee was a dealer in iron scrap and hard ware.
He agreed to purchase all rights of a company in a jute pressing factory, but sold it at a profit.
It was held that as the property purchased by the assessee was not such that an inference that a venture in the nature of trade must have been intended could be raised, the profit was not liable to tax.
It was held that a person purchasing a jute press might intend to start his own business or he might let it out on favourable terms.
The property was in fact let out by the earlier owner before the date of sate.
That was also therefore quite a different case and cannot avail the appellant.
In the remaining case of Ajax Products Ltd. (supra) it was held that on the facts the assessee company having acquired the sick mill to open new line of business, the purchase was, really in the nature of an investment and the purchase and sale did not amount to an adventure in the nature of trade.
That was therefore also quite a different case.
562 It would thus appear that in spite of the fact that the appellant withheld some of the correspondence bearing on the controversy, the Department has succeeded in proving that the transaction of sale in question was an adventure in the nature of trade and fail within the definition of "business" in clause (4) of section 2 of the Act.
The High Court has rightly answered the question in the affirmative, and as we find no merit in this appeal, it is dismissed with costs.
M.R. Appeal dismissed.
| IN-Abs | In 1946, the appellant ordered cement manufacturing machinery from a in Denmark, for its factory in Dandot, but long before the machinery was due, the Country was parti tioned and Dandot went to Pakistan.
Instead of cancelling his order, the appellant imported the machinery.
It was found that the appellant did so with the intention of sell ing it at a profit, to the Orissa State.
At the time of the sale, the appellant charged only the invoice price initially paid by it, but later, obtained a profit.
The Income Tax Officer treated the profit as income earned pursuant to an adventure in the nature of trade, and taxed it as such.
The appellant 's appeals were rejected by the Appellate Taxation Authorities.
The matter was then referred to the High Court section 66 (1 ) of the income Tax Act, but was dismissed.
The appellant contended that making a profit was not its intention at the time of sale, and that being a single and isolated transaction of purchase and sale, it was not an adventure in the nature of trade within the meaning of section 2(4) of the Act, and that the onus of proving anything to the contrary, lay upon the Department.
Dismissing the appeal, the Court HELD: (i) It is well settled that even a single and isolated transaction can be held to be capable of failing within the definition of "business" if it bears clear indi cia of trade.
The fact that the transaction is not in the way of business of the assessee does not in any way alter the character of the transaction.
[556H, 557A] Narain Swadeshi Weaving Mills vs Commissioner of Excess Profits Tax (251` I.T.R 765), G. Venkataswami Naidu .
& Co. vs The Commissioner of Income Tax [1959] Supp.
(1) S.C.R. 646, Sarol Kumar Mazumdar vs The Commissioner of Income Tax, West Bengal, Calcutta [1959] Supp.
(2) S.C.R. 846 followed.
(2) It is a correct proposition of law that as it was a single and isolated transaction of purchase and sale, the onus of proving that it was a transaction in the nature of trade lay on the department [560 D E] (3) The appellant had the dominant intention of selling the Dandot machinery to its own advantage, and acted with the set purpose of taking an advantage of its position as the owner of the imported machinery Even if the appellant had not earned any profit whatsoever at the time of the sale or very soon thereafter, the transaction, in the facts and circumstances of this case, would nonetheless have been an adventure in the "nature of trade", and a business transac tion within the meaning of Section 2(4) of the Act.
[560H, 561B, 562A B] Narain Swadeshi Weaving Mills vs Commissioner of Excess Profits Tax (Supra).
and G. Venkataswami Naidu & Co. vs The Commissioner of Income Tax (Supra) followed.
Kishan prasad & Co. Ltd. vs Commissioner of Income Tax, Punjab Saroj Kumar Mazumdar vs The Commis sioner of Income Tax.
West Bengal, Calcutta (Supra).
janki Ram Bahadur Ram vs Commissioner of Income Tax., Calcutta ; and Ajax products Ltd. vs Commissioner of IncomeTax, Madras distinguished.
|
Appeal No. 871 of 1974.
(Appeal by Special Leave from the Judgment and Order dated 3 4 1973 of the Allahabad High Court in Civil Misc.
Writ Petition No. 2128/73).
Yogeshwar Prasad and Miss Rani Arora for M/S Bagga for the Appellant.
G.N. Dikshit and O.P. Ran, for Respondents No. 1 and 2.
The Judgment of the Court was delivered by BHAGWATI, J.
This appeal by special leave is directed against an order passed by the High Court of Allahabad rejecting a writ petition filed by the appellant challenging the validity of an order of the State Transport Appellate Tribunal confirming an order of the Regional Transport Authority rejecting the application of the appellant for renewal of his stage carriage permit for the route Nagina Jaspur.
The route Nagina Jaspur lies within the jurisdiction of the Regional Transport Authority Bareilly.
The appellant and his brother Mohd. Ashfaq held a stage carriage permit for this route for some years and it was due to expire on 1st July, 1971.
Before the expiration of the period of permit, however, a scheme was prepared and published by the State Transport Undertaking under Section 68C of the (hereinafter referred to as 'the Act ') and this scheme covered the route Nagina Jaspur.
The publication of this scheme did not affect the validity of the permit of the appellant and Mohd. Ashfaq and they continued to ply their motor vehicles on the route Nagina Jaspur on the strength of the permit.
During the currency of the permit, several amendments of a far reaching charac ter were made in the Act by Act 56 of 1969 and sub sections (1A) to (1D) were introduced in Section 68F after sub sec tion (1).
These sub sections are material and they may be reproduced as follows: "68F(1A) Where any scheme has been published by a State Transport Undertaking under section 68C, that Undertaking may apply for a temporary permit.
in respect of any 565 area or route or portion thereof specified in the said scheme, for the period intervening between the date of publication of the scheme and the date of publication of the approved or modified scheme, and where such application is made, the State Transport Authority or the Regional Trans port Authority, as the case may be, shall, if it is satis fied that it is necessary to increase, in the public inter est, the number of vehicles operating in such area or route or portion thereof, issue the temporary permit prayed for by the State Transport Undertaking.
(1B) A temporary permit issued in pursuance of the provisions of sub section (1A) shall be effective, (i) if the scheme is published under sub section (3) of section 68D, until the grant of the permit to the State Transport Undertaking under sub section (1), or (ii) if the scheme is not published under sub section (3) of section 68D, until the expiration of the one week from the date on which the order under sub section (2) of section 68D is made.
(1C) If no application for a temporary permit is made under sub section (1A), the State Transport Authority or the Regional Transport Authority, as the case may be, may grant, subject to such conditions as it may think fit, temporary permit to any person in respect of the area or route or portion thereof specified in the scheme and the permit so granted shall cease to be effec tive on the issue of a permit to the State Trans port Undertaking in respect of that area or route or portion thereof.
(1D) Save as otherwise provided in sub section (1A) of sub section (1C), no permit shall be granted or renewed during the period intervening between the date of publication, under section 68C of any scheme and the date of publication of the approved or modified scheme, in favour of any person for any class of road transport service in relation to an area or route or portion thereof covered by such scheme: Provided that where the period of operation of a permit in relation to any area, route or portion thereof specified in a scheme published under section 68C expires after such publication, such permit may be renewed for a limited peri od, but the permit so renewed shall cease to be effective on the publication of the scheme under sub section (3) of section 68D." Since the permit of the appellant and Mohd. Ashfaq was going to expire on 1st July, 1971, the appellant made an applica tion for renewal of the permit under the proviso to sub section (1D) of Section 68F and submitted the application to the Regional Transport Authority on 22nd March, 1971.
When the application came up for hearing before the 566 Regional Transport Authority, there was admittedly no objec tor against it, but the Regional Transport Authority took the view that under the proviso to sub section (2) of Sec tion 58 an application for renewal of a permit is required to be made not less than 120 days before the date of expiry of the permit and even if there is delay in making the application, it can be condoned under sub section (3) of Section 58 but only if it is a delay of not more than 15 days and since in the present case the application for renewal of the permit was made by the appellant on 22nd March, 1971, it was late by 18 days and hence the delay was not capable of being condoned and in this view, the Regional Transport Authority by an order dated 28th March, 1973 rejected the application for renewal of the permit as time barred.
The appellant preferred an appeal to the State Transport Appellate Tribunal and in the appeal the appellant chal lenged the correctness of the order of the Regional Trans port Authority.
The State Transport Appellate Tribunal, however, agreed with the view taken by the Regional Transport Authority and held that in view of the specific prohibition contained in sub section (3) read with the proviso to subsection (2) of Section 58 it was not competent to the Regional Transport Authority to condone the delay in making of the application for renewal of the permit, since the delay was of more than 15 days.
The State Transport Appellate Tribunal also observed that in any event the material produced before the Regional Transport Authority did not make out any sufficient cause for not making the application for renewal of the permit within time and hence even if there was no statutory bar against condonation of delay of more than 15 days, this was not a fit case in which the delay should be condoned.
The State Transport Appellate Tribunal accordingly confirmed the order of the Regional Transport Authority.
This led to the filing of a writ petition by the appel lant in the High Court of Allahabad.
The High Court sum marily rejected the writ petition stating that no ground had been made out for exercise of the extraordinary juris diction of the High Court under Article 226 of the Constitu tion.
Hence the appellant brought the present appeal with special leave obtained from this Court.
Two contentions were urged on behalf of the appellant in support of the appeal.
The first contention was that the time limit specified in the proviso to sub section (2) of section 58 was not applicable in case of an application for renewal of a permit under the proviso to subsection (10) of section 68F and the Regional Transport Authority was not entitled to reject the application of the appellant for renewal of his permit as time barred.
It has also been contended in the alternative that even if the time limit set out in to proviso to sub section (2) of section 58 was applicable, sub section (3) extended such time limit by fifteen days and even if thereafter there was any delay beyond the extended time limit, it could be condoned by the Regional Transport Authority for sufficient cause by reason of section 5 read with section 29, subsection (2) of the .
The second contention Which followed on the acceptance of the last contention was that the appellant had sufficient cause for not preferring the appli cation for renewal 567 of his permit within the extended time limit and hence the Regional Transport Authority should have condoned the delay and entertained the application on merits.
The validity of both these contentions was disputed on behalf of respondents 1 and 2 and it was urged that the time limit specified in the proviso to sub section (2) of section 58 was applicable in the present case and the only delay which could be con doned was a delay of 15 days and not more and in any event, there was no sufficient cause made out by the appellant for not making the application for renewal within time and hence the application for renewal was rightly rejected as time barred.
We shall proceed to consider the merits of these rival contentions.
The first question which arises for consideration on these contentions is as to whether the time limit pre scribed by the proviso to subsection (2) of section 58 applies in case of an application for renewal of a permit under the proviso to sub section (10) of section 68F.
The argument of the appellant was that Chapter IVA which contains, inter alia, section 68F, is a self contained Chapter and nothing in the other provisions of the Act applies to proceedings under that Chapter and hence neither the procedure under section 57 nor the time limit specified in the proviso 10 sub section (2) of section 58 has any application to an application for renewal of a permit under the proviso to sub section (10) of section 68 F.
This argument is, in our opinion, manifestly wrong.
The scheme of Chapter IVA is clear and it does not exclude the applica bility of the provisions contained in section 57 and the proviso to sub section (2) of section 68.
Chapter IVA contains a fasciculus of sections commencing from section 68A and ending with section 68 B. Section 68 A defines certain expressions used in Chapter IVA.
Section 68 B gives overriding effect to the provisions contained in Chapter IVA by saying that these provisions shall have effect, notwith standing anything inconsistent therewith contained in Chapter IV or in any other law for the time being in force.
Section 68 C provides that where any State Transport Undertaking is of opinion that for the purpose of provid ing an efficient, adequate, economical and properly co ordinated road transport service, it is necessary in the public interest that road transport service in relation to any route should be run and operated by the State Transport Undertaking, a scheme may be prepared by the S1ate Transport Undertaking giving particulars of the nature of the services proposed to be rendered, the route proposed to be covered and other prescribed particulars and such scheme shall be duly published.
Certain categories of persons are empow ered by section 68 D sub section (1) to file objections against the scheme published under sect ion 68 C and the State Government may then, after considering such objections and hearing the parties, approve or modify the scheme under sub section (2) of section 68 D. Section 68 D sub section (3) provides that the scheme as approved or modified under sub section (2) shall be Published in the Official Gazette and it shall thereupon become final and shall be called the approved scheme and the routes to which it relates shall be called the notified routes.
Section 68 E provides for concellation or modification of the scheme.
Then follows section 68 F which is material for our purpose.
Sub section (1) of that section provides for issue of a permit to the State Transport Undertaking in respect of a notified route 568 after publication of an approved scheme.
But what is to happen during the period between the publication of a scheme under section 68 C and the publication of the ap proved scheme under sub section (3) of section 68 D ? That is taken care of by sub sections (1A) to (1 D) of section 68F.
Sub section (1 A) provides that for this intervening period, the State Transport Undertaking may apply for a temporary permit in respect of a route specified in the scheme and where such application is made, the Regional Transport Authority shall, if it is satisfied that it is necessary to increase, in the public interest, the number of vehicles operating on such route, issue the temporary permit prayed for by the State Transport Undertaking.
What shall be the duration of such temporary permit is laid down in sub section (1 B).
Sub section (1 C) deals with the situation where no application for a temporary permit is made by the State Transport Undertaking and it says that in such a case, the Regional Transport Authority may grant temporary permit to any person in respect of a route speci fied in the scheme.
Sub section (1 D) imposes a prohibi tion that "save as otherwise provided in sub section (1 A) and sub section (1 C), no permit shall be granted or renewed during the period intervening between the date of publica tion under section 68 C of any scheme and the date of publi cation of the approved or modified scheme, in favour of any person" in relation to a route covered by such scheme, but this is subject to a proviso that where the period of operation of a permit in relation to any route "specified in a scheme published under section 68 C expires after such publication, such permit may be renewed for a limited period".
It will, therefore, be seen that where a scheme is published under section 68 C, no permit in respect of a route specified in the scheme can be granted or renewed during the intervening period between the publication of the scheme under section 68 C and the publication of the approved scheme, except a temporary permit to the State Transport Undertaking under sub section (1 A) or failing that, a temporary permit to any other person under sub section (1 C), with this qualification that an existing permit can be renewed for a limited period.
The holder of an existing permit would obviously exnecessitas have to make an application, if he wants renewal of his permit and the application for renewal would be considered by the Regional Transport Authority.
The question is: can this application for renewal be made at any time and when it is made, what procedure would govern it.
Section 57 lays down the procedure to be followed in dealing with an application got grant of a permit and by reason of section 58 sub sec tion (2), that procedure is applicable also in relation to an application for renewal of a permit.
There is also a time limit laid down in the proviso to sub_section (2) of section 58 which says, in so far as relevant, that an application for renewal of a .permit shall be made not less than 120 days before the date of expiry of the permit.
These provi sions in section 57 and the proviso to sub section (2) of section 58 on their plain language apply to every applica tion for renewal of a permit and it is indeed difficult to see what difference there is between an application for renewal of a permit under the proviso to sub section (1 D) of section 68 F and any other application for renewal of a permit.
An application for renewal of a permit under.
the proviso to sub section (1 D) of section 68 F is as much an application for renewal as any other.
It had to be special ly provided for in the 569 proviso to sub section (1 D) of section 68 F, because sub section (1 D) imposes a prohibition on grant or renewal of permit during the intervening period between the publica tion of a scheme under section 68 C and the publication of the approved scheme and, ii the proviso were not enacted, renewal of an existing permit expiring after the publication of the scheme under section 68 C would have been barred.
This, the Legislature did not want and hence the proviso was introduced permitting renewal of an existing permit though for a limited period, despite the general prohibition enact ed in sub section (1 D).
This renewal was not intended to be sore6 special kind of renewal different from any other ordinary renewal of a permit.
There is, therefore, no reason in principle why the provisions enacted in section 57 and the proviso to sub section (2) of section 58 should not apply in case of an application for renewal of a permit under the proviso to sub section (1 D) of section 68 F.
If the procedure set out in section 57 does not apply in such a case, there is no other procedure prescribed by the Act which can possibly be invoked and the result would be that them would be no procedure for dealing with such an applica tion.
for renewal and in that event, how would the objec tions be invited against the application for renewal and within what time and who would be entitled to be heard and when ? And equally if the time Limit specified in the proviso to sub section (2) of section 58 does not apply, there would be no time limit for making such an application for renewal and it would be possible to make it any time, even after the expiry of the period of the permit and the Regional Transport Authority would be bound to consider it.
That surely could never have been the intention of the Legislature.
Moreover, it is implicit in the enactment of section 68 B that Chapter IV A is not a self contained Chapter to which the other provisions of the Act are inap plicable.
If Chapter IVA were a self contained Code by itself, there would have been no need to give overriding effect to the provisions in that Chapter as against the other provisions of the Act.
Section 68 F, sub section (3) also proceeds on the assumption that, but for its enactment, an order made by the Regional Transport Authority under sub section (1) or sub section (2) of section 68 F would have been appealable under section 64 and it was to ex clude the applicability of section 64 that sub section (3 ) of section 68 F was enacted.
These two circumstances dearly point to the conclusion that the other provisions of the Act, to the extent to which their language warrants, apply in relation to proceedings under Chapter IVA, save in so far as they may be, expressly or by reason of repugnance or inconsistency, overridden.
We must, therefore, reject the first contention of the appellant which seeks to exclude the applicability of the proviso to sub section (2) of section 58 to an application for renewal of a permit under the proviso to subsection (1 D) of section 68 F. That takes us to the next question as to the applicabil ity of section 5 of the to an applica tion for renewal of a permit.
It would be convenient at this state to refer to the provisions of subsections (2) and (3) of section 58, which, so far as material, read as follows: "(2) A permit may be renewed on an application made 570 and disposed of as if it were an application for a permit: Provided that the application for the renew,d of a permit shall be made (a) in the case of a stage carriage permit or a public carrier 's permit, not less than one hundred and twenty days before the date of its expiry; and (b) in any other case, not less than sixty days before the date of its expiry: Provided further that, other conditions being equal, an application for renewal shall be given preference over new applications for permits.
(3) Notwithstanding anything contained in the first proviso to sub section (2), the Regional Transport Authority may entertain an application for the renewal of a permit after the last date specified in the said proviso for the making of such an application, if the application is made not more than fifteen days after the said last date and is accompanied by the prescribed fee.
" The proviso to sub section (2) requires that an application for renewal of a permit should be made not less than 120 days before the date of expiry of the permit.
But, notwith standing this provision, the Regional Transport Authority may, under sub section (3), entertain an application for renewal of a permit after the last date specified in subsec tion (2), "if the application is made not more than 15 days after the said last date and is accompanied by the pre scribed fee.
" Sub section (3) thus vests a discretion in the Regional Transport Authority to entertain an application for renewal of a permit even if it is beyond time, but in that case the delay should not be of more than fifteen days.
The word used in sub section (3) is "may" and not "shall" and the Regional Transport Authority is given a discretion to entertain ,m application for renewal of a permit even where it is beyond time, though not more than 15 days.
It may condone the delay or it may not, depending on the circum stances of each case.
The discretion is be exercised not on any arbitrary of fanciful grounds or whim or caprice of the Regional Transport Authority, but it is to be a judicial discretion.
It is true that the criterion which is to guide the Regional Transport Authority in the exercise of its discretion is not articulated in sub section (3), but it is implicit in every conferment of discretion on a judicial or quasi judicial authority that the discretion is to be exercised in a judicial manner on well settled legal prin ciples.
would not be right to attribute to the Legislature an intention to confer unguided and unfettered discretion on the Regional Transport Authority which is quasi judicial authority.
The discretion is obviously to be exercised where sufficient cause for not making the application for renewal within time is made out by the applicant.
This 571 criterion can legitimately be imported from section 5 of the which contains an allied provision for condonation of delay where an application is made beyond time.
It could never have been the intention of the Legis lature that even where there is no sufficient cause for delay in making an application for renewal, the Regional Transport Authority should still be bound to entertain the application for renewal merely, on the ground that the delay is of not more than 15 days.
Sub section (3) enacts a provision for condonation of delay in making an application for renewal and not provision extending the time limit specified in the proviso to sub section (2) in all cases as a matter of course.
If the intention of the Legislature were that in every case delay of not more than 15 days in making an application for renewal should be condoned as of course, there was no need for a separate provision in sub section (3), but the Legislature could have very specified "one hundred and five days" instead of "one hundred and twenty days" in the proviso to sub section (2).
It is, therefore, dear that sub section (3) of section 58 confers a discretion on the Regional Transport Authority to entertain an application for renewal when it is made beyond the time limit specified in the proviso to sub sec tion (2), but not more than 15 days late and the discretion is to be exercised in favour of entertaining the application for renewal when it is shown that there was sufficient cause for not making it in time.
Now the question which arises is: does section 5 of the apply so as to empower the Regional Transport Authority, for sufficient cause, to entertain an application for renewal even where it is delayed by more than 15 days? Section 29, sub section (2) of the makes section 5 applicable in the case of an application for renewal unless its applica bility can be said to be expressly excluded by any provision of the Act.
The only provision of the Act sought to be pressed into service for this purpose was sub section (3).
Does sub section (3) expressly exclude further extension of time under section 5 ? If it does, then section 5 cannot be availed of by the appellant for condonation of the delay.
Sub section (3) in so many terms says that the Regional Transport Authority may condone the delay in making of an application for renewal and entertain it on merits provided the delay is of not more than 15 days.
This clearly means that if the application for renewal is beyond time by more than 15 days, the Regional Transport Authority shall not be entitled to entertain it or in other words, it shall have no power to condone the delay.
There is thus an express provision in sub section (3) that delay in making an appli cation for renewal shall be condonable only if it is of not more than 15 days and that expressly excludes the applica bility of section 5 in cases where an application for renew al is delayed by more than 15 days.
This provision may seem harsh, but it has been deliberately and advisedly made because the question of renewal of a permit must obviously be decided before the expiration of the period of the permit and in view of the elaborate procedure set out in section 57 for dealing with an application for renewal, a certain minimum period before the expira 5 1234SCI/76 572 tion of the period of the permit must be provided within which this procedure can be completed so that the, renewal can, if at all, be granted well in time before the permit expires.
If an application for renewal could be entertained even if made at any stage, it would dislocate the procedural machinery set out in section 57 and that is why the Legisla ture prescribed in sub section (3) of section 58 that the delay in making an application for renewal may be condoned by the Regional Transport Authority only if it is of not more than 15 days.
Here, the application made by the appel lant for renewal of his permit was admittedly late by more than 15 days and hence the delay was not condonable and the Regional Transport Authority was right in rejecting the application for renewal as time barred.
We must, in the circumstances, dismiss the appeal, but in view of the peculiar facts of the case we make no order as to costs.
P.B.R. Appeal dismissed.
| IN-Abs | Under the proviso to section 58(2) of the an application for renewal of an existing permit shall be made not less than 120 days before the date of expiry of the permit.
The procedure to be followed in this respect is the same as provided in section 57 for the grant of a fresh permit.
Under section 58(3) a delay of not more than 15 days in making the renewal application can be condoned by the Re gional Transport Authority.
The proviso to section 68F(1D) provides for the renewal of an existing permit for a limited period when a Scheme is pub lished under section 68C. Since a Scheme was published under this section the appellant made an application under section 68F(1D) for renewal of his permit.
R was rejected by the RTA on the ground that there was delay of 18 days which was not capable of being condoned.
The Transport Appellate Tribunal dismissed his appeal and the High Court summarily rejected his writ petition.
In appeal to this Court it was contended that (i) Chapter IVA of the Act, which section 68 occurs, being a self contained code the proviso to section 58(2) was not applicable in the case of an application for renewal filed under the proviso to section 68F(1D) or (ii) in the alternative the delay could be con doned by the RTA for sufficient cause under section 5 read with section 29(2) of the .
Dismissing the appeal, HELD: (1) (a) Section 68F(1D) imposes a prohibition on grant or renewal of permit during the intervening period between the publication of a scheme under section 68C and the publication of the approved scheme and if the proviso were not enacted.
renewal of an existing permit expiring after the publication of the scheme under section 68C would have been barred.
This, the legislature did not want and hence the proviso was introduced permitting renewal of an existing permit though for a limited period, despite the general prohibition enacted in sub section
This renewal was not intended to be some special kind of renewal.
There is no reason why the provisions of section 57 and the proviso to section 58(2) should not apply in case of a renewal application under the proviso to section 68F(1D).[569 A B] (b) chapter IVA is not a self contained code and the other sections apply to an application under the proviso to section 68F(1D)of the Act.
[569D] (i) The procedure in section 57 applies because.
there is no other procedure prescribed by the Act.
[569C] (ii) The time limit specified in the proviso to section 58(2) also applied as otherwise there would be no time limit for making an application for renewal.[569D] (iii) Section 68F(3) also proceeds on the assumption that, but for its enactment, an order made by the RTA under sub~3 (1) or (2) of section 68F would have been appealable under section 64 and it was to exclude the applicability of section 64 that 68F(3) was enacted.
[569 E F] 564 (2) The word used in sub section
3 is 'may ' and not 'shall ' and the RTA is given a discretion to entertain an applica tion for renewal of a permit even where it is beyond time, though not more than 15 days.
It could never have been the intention of the legislature that even where there is no sufficient cause for delay in making an application for renewal, the Regional Transport Authority should still be bound to entertain the application for renewal merely on the ground that the delay is of not more than 15 days.
[570F. 571A B] 3 (a) Section 29(2) of the makes section 5 applicable in the ease of an application for renewal unless its applicability can be said to be expressly exclud ed by any provision of the Act.
Sub section (3) of section 58 in so many terms says that the RTA .may condone the delay in making of an application for renewal and entertain it on merits provided the delay is of not more than 15 days.
This clearly means that if the application for renewal is beyond time by more than 15 days, the RTA shall not be entitled to entetain it.
[571E G] (b) There is an express provision in sub section
(3) that delay in making an application for renewal shall be condona ble only if it is of not more than 15 days and that express ly excludes the applicability of section 5 in cases where an application for renewal is delayed by more than 15 days.
[571G]
|
iminal Appeal No. 287/ 71.
Appeal by Special Leave from the Judgment and Order dated 10 9 71 of the Delhi High Court in Criminal Revision No. 310 of 1970.
A.N. Mulla, (Miss) Uma Mehta, R.K. Mehta, S.K. Bagga and (Mrs.) section Bagga, for the Appellants.
S.N. Anand and R.N. Sachthey; for the Respondent.
D. Mookerjee, B.P. Maheshwari, Suresh Sethi and N.K. lain for the Intervener.
The Judgment of the Court was delivered by BHAGWATI, J.
This appeal, by special leave, is directed against a judgment of the High Court of Delhi confirming the conviction of 594 the appellants under section 7(i) read with section 16(1)(a)(i) of the .
The prosecution case was that all material times the 2nd appellant was the owner of a grocery shop situate at Maharani Bagh, New Delhi and the 1st appellant was employed as a salesman in the shop.
On 23rd June, 1969 Bhanot, a Food Inspector went to the shop of the 1st appellant and finding the 1st appellant there as a sales man, took from him a sample of mustard oil for analysis after paying its purchase price.
He divided the sample into three parts and sent one part to the Public Analyst for analysis, handed over the other part to the 2nd appellant and retained the 3rd part with him.
The Public Analyst reported that the sample was misbranded as it was of Lin Seed Oil and it was adulterated due to the presence of artificial dye.
On the strength of this report, the appellants were chargesheeted under section 7(i) read with section 16(1)(a)(i) before the Judicial Magistrate, Delhi.
The defence of the 1st appellant was that the 2nd appellant was at no time engaged by him as the salesman and no mustard oil was purchased by Bhanot from the 2nd appellant.
The 2nd appellant also claimed that he was never an employee of the l st appellant and while he was going to his house after pur chasing sarson oil for his personal use, he was caught by two or three persons near Maharani Bagh and a sample was taken from the oil which he was carrying and his signatures were obtained by threat on certain papers.
The learned Judicial Magistrate accepted the evidence led on behalf of the prosecution and rejected the defence version and held that the appellants were guilty of the offence of selling lin seed oil containing artificial dye which was an offence punishable under section 7(i) read with section 16(1)(a) (i).
The learned Judicial Magistrate accordingly convicted the appellants and sentenced each of them to suffer rigorous imprisonment for nine months and to pay a fine of Rs. 1000/ .
The appellants preferred an appeal, but the appeal was rejected by the learned Sessions Judge and the convic tion was confirmed with only a slight modification in the sentence.
The sentence was reduced from nine months to six months rigorous imprisonment.
This led to the filing of a revision application in the High Court by the appellants, but the revision application was also unsuccessful.
Hence the present appeal by special leave obtained from this Court.
The first contention raised on behalf of the appellant in support of the appeal was that the conviction was bad inasmuch as it rested solely on the evidence of Bhanot and one other Food Inspector, namely, Bhatnagar, who happened to come there at the tinge of taking the sample and there was no independent witness to support the prosecution case.
Now, it is true that the prosecution could not produce :my independent witness to depose to the taking of the sample by Bhanot from the 2nd appellant at the shop of the 1st appel lant but that by itself cannot be regarded as sufficient to warrant rejection of the prosecution case out of hand.
The sample was taken by Bhanot in the presence of one Keshav Dutt Sharma and a panchnama evidencing the transaction was prepared and signed by Keshav Dutt Sharma on the spot.
But in the witness box Keshav Dutt Sharma turned hostile and denied that he was present at the time of taking the sample.
Of 595 course.
he could not deny that the endorsement B to B on the Panchanama was in his hand writing and he had put his signa ture at the foot of it, but his explanation was that one Food Inspector came to the shop where he was working and asked him either to give a sample of the ice cream he was selling at the shop or to give his signature on the. pancha nama.
This explanation is palpably dishonest and cannot be accepted by any court.
Moreover, it does not explain how the endorsement B to B came to be made by Keshav Dutt Sharma in his handwriting.
There can be no doubt that Keshav Dutt Sharma was present at the time of taking of the sample and he wrote down the endorsement B to B on the panchanama and signed it as he was a witness to the transaction.
It is unfortunately not an infrequent occurrence to find that pancha witnesses turn hostile and go back upon what is stated in the panchanama in utter disregard of truth.
This betrays lack of character and absence of civic sense which not only result in the guilty escaping the punishment but lead to general deterioration in standards of honesty and integrity.
This is a highly reprehensible phenomenon which has to be curbed in the larger interest of the administra tion of justice.
Here, apart from the endorsement B to B in the panchanama and the signature at the foot of it showing that Keshav Dutt Sharma was a witness to the taking of the sample, we have the statement of Bhanot who said in his evidence that Keshav Dutt Sharma was taken by him to witness the taking of the sample and Keshav Dutt Sharma made the endorsement B to B on the panchanama and put his signa ture below it and this statement made by Bhanot was not challenged in the cross examination, nor was it even sug gested to Bhanot that Keshav Dutt Sharma was not present at the taking of the sample.
The prosecution case obviously cannot be thrown out merely because Keshav Dutt Sharma refused to support what had been stated by him, in his own hand writing in the panchanama and went back upon it to the utter dismay of the prosecution.
It is true that by reason of the defection of Keshav Dutt Sharma, the prosecution was left only with the evidence of Bhanot and Bhatnagar, but this evidence was regarded by the High Court as well as the learned Judicial Magistrate and the learned Sessions Judge sufficient to found the conviction of the appellants and we do not see why we should interfere with the concurrent view taken by them as regards the appreciation of this evidence.
There is no rule of law that conviction cannot be based on the sole testimony of a food Inspector.
It is only out of a sense of caution that the courts insist that the testimony of a food Inspector should be corroborated by some independ ent witness.
This is a necessary caution which has to be borne in mind because the food Inspector may in a sense be regarded as an interested witness, but this caution is a rule of prudence and not a rule of law: if it were other wise, it would be possible for many guilty persons to escape punishment by resorting to the device of bribing punch witnesses.
The conviction of the appellants cannot, there fore, be assailed as infirm on the ground that it rested merely on the evidence of Bhanot and Bhatnagar.
The appellants then contended that on the opinion expressed by the Public Analyst, the offence committed by the appellants was one 596 under section 16(1)(a)(i) with respect to an article of food adulterated under clause (1) of section 2 and the Court had, therefore, discretion, under the proviso to section 16 (1 ) to impose a lesser sentence of imprisonment than six months for adequate and Special reasons.
The argument of the appellants was that this was a fit case in which the discre tion under the proviso to section 16(1) should have been exercised and the minimum sentence of six months imprison ment should not have been imposed on the appellants.
This was in substance a plea for reduction of the sentence of imprisonment and this plea raises the question as to which is the clause of section 2(i) in which the present case falls.
Does it fail within the clause (1) as claimed by the appellants or within clause (j) as contended on behalf of the prosecution or within both and, if it falls within both, what the effect ? Section 2(i) defines 'adulterated ' and says that an article of food shah be deemed to be adulterat ed if the article fails within the description given in any of the succeeding clauses (a) to (1).
Clause (j) provides that an article of food shall be deemed to be adulterated: "(j) if any colouring matter other than that prescribed in respect thereof and in amounts not within the prescribed limits of variability is present in the article." and clause (1) deems an article of food to be adulterated: "(1) if the quality or purity of the article fails below the prescribed standard or if constitu ents are present in quantities which are in excess of the prescribed limits of variability.
" In the present case what was sold by the appellants was linseed oil which contained artificial dye.
The standard of quality of linseed oil is defined in Paragraph A. 17.04 of Appendix B to the Prevention of Food Adulteration Rules, 1955 as follows: "A l7.04.
Linseed oil (Tilli ka tel) means the oil obtained by process of expressing clean and sound linseed (Linum usitatissimum).
It shall be clear, free from rancidity, suspended or other foreign matter, separated water, added colouring or flavouring substances, or mineral oil.
It shall conform to the following standards: (a) Butyro refractometer reading at 40 deg.
C . 69.5 to 74.3 (b) Saponification value . . 188 to 195 (c) Iodine value . .
Not less than 170 (d) Unsaphnifiable matter . .
Not more than 1.5 per cent (e) Free fatty acid as Oleic acid not more than 2.0 per cent." The argument of the appellants was that the requirement of this paragraph that linseed oil shall be free from foreign matter or added colouring substances lays down a standard of quality of linseed oil and since the linseed oil sold by the appellants contained artificial dye, the quality of the linseed oil fell below the prescribed standard and 597 hence the case was covered by clause (i) of section 2(i).
The appellants contended that if clause (1) of section 2(i) was applicable in the present case, it excluded the applica bility of clause (j) and the linseed oil containing artifi cial dye could not be said to be adulterated under that clause.
It was also urged on behalf of the appellants that, in any event, no colouring matter was prescribed in respect of linseed oil and.
therefore, it could not be said that there was present in the linseed oil sold by the appellants artificial dye "other than that prescribed in respect there of and in amounts not within the prescribed limits 0f variability" so as to bring the case within the scope of clause (j) of section 2(i).
These contentions of the appellants, plausible though they may seem at first sight, are without merit and must be rejected.
Our reasons for saying so are as follows.
It may be made clear at the out set that the different clauses of section 2(i) are not mutually exclusive.
They overlap one another ,red, it is quite possible that an article of food may be found adulterated under two or more clauses of section 2(i).
Take for example a case where an article of food contains a foreign substance which affects injuriously the quality thereof and at the same time renders it unfit for human consumption.
Such a case would clearly fall within clauses (b) and (f) of section 2(i) and the article of food would be deemed to be adulterated under both these clauses.
So also, a case may arise where a colouring matter not permitted under the rules is added to an article of food and such colouring matter affects injuriously the quality of the article of food and in such a case too more than one clause of section 2(i) would be attracted, namely, clause (b) and (i).
These instances which we have given are merely by way of illustration and they show that merely because an article of food is covered by one clause of section 2(i), it does not exclude the applicability of another clause of the section an article of food may be deemed to be adulterated under more than one clauses of section 2(i).
It is, therefore, not a valid argument that because the present case falls under clause (1) of section 2(i), the applicability of clause (j) is ipso facto nega tived and the case cannot come within that clause.
That takes us to the question whether the present case falls within clause (i) of section 2(i), for if it does, it would be immaterial whethere it falls also within clause (1) of section 2 (i) and in so far as the linseed oil sold by the appellants is deemed to be adulterated under clause (j) of section 2(i), the proviso to section 16(1) would not be attracted.
Now, the ;report of the Public Analyst showed that the linseed oil sold by the appellants contained arti ficial dye and this was clearly prohibited under the Rules.
Rule 23 provided that the addition of a colouring matter to an article of food, except as specifically permitted by the Rules, shall be prohibited.
The only artificial dyes, which were permitted to be used in food, were those set out in Rule 28, and Rule 29 prohibited the use of permitted coal tar dyes in or upon any food other than those enumerated in that Rule.
Linseed oil was admittedly not one of the arti cles of food enumerated in Rule 29 and hence even permitted coal tar dyes could not be added to linseed oil.
It does not appear from the report of the Public Analyst 598 as to what was the artificial dye found mixed in the sample of linseed oil sent to him but we will assume in favour of the defence that it was a permitted coal tar dye.
Even so, by reason of Rules 23 and 29, it could not be added to linseed oil.
In the circumstances, the, linseed oil sold by the appellants contained artificial dye which was prohibited under the Rules.
The argument of the appellants was that since colouring matter was prohibited in respect of linseed oil, it could not be said that any colouring matter was prescribed in respect of linseed oil by the Rules and hence the presence of artificial dye in linseed oil did not at tract the applicability of clause (j) of section 2(i).
It was said that clause (j) of section 2(i) would be attracted only if a colouring matter is prescribed in respect of an article of food and the article is found to contain a co louring matter different from that prescribed.
But if no colouring matter is prescribed, which would be the position where colouring matter is totally prohibited, it cannot be said that the article of food contains a colouring matter other than that prescribed in respect of it.
This argument has the merit of ingenuity but it has no force and cannot be sustained.
When no colouring matter is permitted to be used in respect of an article of food, what is prescribed in respect of the article is "nil colouring matter" and if the article contains any colouring matter, it would be "other than that prescribed in respect" of the article.
Clause (j) of section 2(i) is not merely intended to cover a case where one type of colouring matter is permitted to be used in respect of an article of food and the article contains another type of colouring matter but it also takes in a case where no colouring matter is permitted to be used in respect of an article of food, or in other words, it is prohibited and yet the article contains a colouring matter.
There is really no difference h3 principle between the two kinds of cases.
Both are equally reprehensible; in fact the latter may in conceivable cases be more serious than the former.
Where no colouring matter is permitted to be used in an article of food, what is prescribed in respect of the arti cle is that no coIouring matter shall be used and if any colouring matter is present in the article in breach of that prescription, it would clearly involve violation of cl.
(j) of section 2(i).
The words of clause (j) of section 2(i) "other than that prescribed in respect thereof recall to the mind similar words used in section 29(2) of the Limita tion Act which makes certain provisions of the Limitation Act applicable in cases where a special or local law pre scribes a period of limitation different from the period prescribed by the Schedule to the Limitation Act.
These words of section 29(2) of the Limitation Act came up for interpretation before this Court in Vidyacharan Shukla vs Khubchand Baghel.(1) It was contended in that case that on ,a true construction of these words, it is only where a period of limitation is specifically prescribed in the Schedule and a special or local law prescribes a different period of limitation, that section 29(2) would be attracted and that section would have no application where no time limit is prescribed by the Schedule.
This contention was negatived and it was held by this Court that where the Schedule does not specifically prescribe any period of limitation for an application but is silent and a special or local law prescribes a period of limitation for such an ; 599 application, it can appropriately be said that the special or local law has prescribed a period of limitation differ ent from that prescribed in the Schedule and section 29(2) would be applicable.
The analogy of this decision is very apt and it supports the construction we are inclined to place on the words "other than that prescribed in respect thereof" in clause (j) of section 2(i).
We take the view that even where the Rules prescribe that no colouring matter or artificial dye shall be used in respect of an article of food, clause (j) of section 2(i) would apply if it is found that some colouring matter or artificial dye is present in the article.
Here, the linseed oil sold by the appellants contained artificial dye despite the prohibition in the Rules and hence the case was dearly covered by clause (j) of section 2(i) and the linseed oil must be deemed to be adulterated under that caluse.
That would exclude the applicability of the provi so to section (1), since the offence in this view would be one with respect to an article of food deemed to be adul terated under clause (j) of section 2(i).
The appellants ' plea invoking the liberality of the provision enacted in the proviso to section 16(1) must, in the circumstances, be rejected and the minimum sentence of imprisonment for six months must be maintained.
The appellants then pleaded that in any event on the facts and circumstances of the present case the benefit of the should be given to them and they should not be consigned to the rigours of jail life.
This plea also does not impress us.
It is no doubt true and that was laid down by this Court in the first pronouncement made by it on the subject in Isher Das vs State(1) that the operation of the is not excluded in case of persons found guilty of offences under the Prevention of the Food Adulteration Act, 1954.
To quote the words of Krishna lyer, 3., in P.K. Tejani vs
M.R. Dange(2) "The rehabilatory purpose of the is pervasive enough technically to take within its wings an offence even under the Act".
But in the very same decision in Isher Das 's case (supra) this Court sounded a note of caution which must be borne in mind: "Adulteration of food is a menace to public health.
The has been enacted with the aim of eradicating that anti social evil and for ensur ing purity in the articles of food.
In view of the above object of the Act and the intention of the legislature as revealed by the fact that a minimum sentence of imprisonment for a period of six months and a fine of rupees one thou sand has been prescribed, the courts should not lightly resort to the provisions of the in the case of persons above 21 years of age found guilty of offences under the . ." The imperatives of social defence must discourage the applicability of the probation principle.
No chances can be taken by society with a man whose anti social activites, in the guise of a respectable trade, jeopardise the health and well being of numerous innocent consumers.
(1) (2) [1974] 2 S.C.R. 154.
600 The adulterator is a social risk.
It might be dangerous to leave him free to carry on his nefarious activities by applying the probation principle to him.
Moreover, it must be remembered that adulteration is an economic offence prompted by profit motive and it is not likely to lend itself easily to therapeutic treatment by the probationary measure.
It may be pointed out that the Law Commission also in its Forty Seventh Report recommended the exclusion of applicability of the probationary process in case of social and economic offences and presumably in response to this recommendation, the Legislature has recently amended the by introducing section 20AA providing that nothing contained in the or section 360 of the Code of Criminal Procedure, 1973 shall apply to a person convict ed of an offence under the Act unless that person is under eighteen years of age This amendment of course would not apply in the present case but it shows the legislative trend which it would not be right for the court to ignore.
We cannot, therefore, give the benefit of the to the appellants and release them on probation.
We accordingly confirm the conviction and sentence recorded against the appellants and dismiss the appeal.
P.H.P. Appeal dismissed.
| IN-Abs | The second appellant was the owner of a grocery shop and the first appellant was his salesman in the shop.
Food Inspector Bhanot purchased a sample from appellant No. 1 of mustard oil after complying with the formalities prescribed by the Act.
The Public Analyst reported that the sample was misbranded as it was of in seed oil and it was adulterated due to the presence of artificial dye.
The appellants were charge sheeted under section 16(1)(a)(i).
The learned Magis trate convicted the appellants and sentenced them to suffer rigorous imprisonment for 9 months.
On appeal, the learned Sessions Judge confirmed the conviction but reduced the sentence from 9 months to 6 months.
The High Court, in revision upheld the decision of the Sessions Judge.
On appeal of Special Leave the appellants contended: 1.
The conviction was bad since it rested solely on the evidence of Food: Inspector Bhanot.
The offence committed by the appellants on the opinion of the Public Analyst fell under sec tion 16(1)(a)(i) read with clause (1) of section 2 (i) and, therefore, the Court had discretion under the proviso to section 16(1) to impose a lesser sentence than the minimum of 6 months.
In any event, the benefit of the ,, should be given to the appel lants.
Dismissing the appeal, HELD: 1.
There is no rule of law that conviction cannot be based on the sole testimony of a Food Inspector.
It is only out of a sense of caution that the courts insist that the testimony of a Food Inspector should be corroborated by some independent witness.
This is a necessary caution which has to be borne in mind because the Food Inspector may in a sense be regarded as an interested witness.
But this cau tion is a rule of prudence and not a rule of law.
If it were otherwise it would be possible for many guilty persons to escape punishment by resorting to the device of bribing Panch witnesses.
In the present case, the sample was taken in the presence of witness Krishan Datt Sharma who has turned hostile.
His explanation is palpably dishonest and cannot be accepted.
There is also the evidence of another Food Inspector Bhatnagar.
The Courts below accepted their evidence and there is no reason to interfere with the con current view taken by the courts below.
[595A G] 2.
Section 2(1) defines "Adulterated" and says that an article of food shall be deemed to be adulterated if the article fails within the description given in my of the succeeding clauses (a) to (1).
Clause (j) provides that an article of food shall be deemed to be adulterated if any colouring matter other than 593 that prescribed in respect thereof and in amounts not within the prescribed limits of variability is present in the article.
Clause (1) deems an article of food to be adulter ated if the quality or purity of the article fails below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability.
[596C D] 3.
It is wrong to contend that if an article fails within clause (1) it cannot fail under clause (j) or any other clause.
Different clauses of section 2(i) are not mutually exclusive; they, overlap one another and it is quite possible that an article of food may be found adulter ated trader two or more clauses of section 2(i).
[597A C] 4.
The report of the public analyst showed that the linseed oil contained artificial dye and this was clearly prohibited under rule 23.
The only artificial dyes which were permitted to be used in food were those set out in rule 28 and Rule 29.
prohibited the use of permitted coal tar dyes in or upon any articles of food other than those enu merated in that Rule.
Lin seed oil was not one of the arti cles of food enumerated in rule 29 and hence artificial dye, even if permitted coal tar dye could not be added to linseed oil.
[597G H, 598A] 5.
The contention of the appellants that clause (j) would be attracted only if colouring matter is prescribed and the article of food is found to con:sin a colouring matter different from that prescribed was negatived.
When no colouring matter is permitted to be used in respect of an article of food what is prescribed in respect of the article is 'nil ' colouring matter and if the article contains any colouring matter it would be "other than that prescribed in respect" of the article.
[597A C, 598B D] Vidyacharan Shukla vs KhubchandBaghel, ; , relied on.
The operation of the is not excluded in case of persons found guilty of offence under the .
Howev er, imperatives of social defence must discourage the ap plicability of the probation principle.
No chances can be taken by Society with a man whose anti social activities in the guise of a respectable trade jeopardise the health and well being of numerous innocent consumers.
The adulterator is a social risk; it might be dangerous to leave him free to carry on his nefarious activities by applying the probation principle to him.
Adulteration is an economic offence prompted by profit motive and it is not likely to lend itself easily to therapeutic treatment by probationary measure.
[599D, G H, 600A B] Isher Das vs State and 1.
K. Tejani vs
M.R. Dhange, [1974] 2 S.C.R. 154 followed.
|
Appeal No. 1695 of 1971.
From the Judgment and Order dated 2 2 1970 of the Bombay High Court in I.T. Reference No. 54/63) V. Rajagopal and A.G. Pudissery for the Appellant.
S.T. Desai, B.B.Ahuja and R.N. Sachthey for the Respondent.
UNTWALIA, J. This is an appeal by an assessee on grant of a certificate of fitness by the Bombay High Court under section 66A (2) of the Income tax Act, 1922 hereinafter referred to as the 1922 Act.
The assessee is an individual.
We are concerned in this case with his assessment for the assessment year 1958 59 corresponding accounting year being 1st April, 1957 to 31st March, 1958.
The Income tax Tribu nal made a composite order disposing of the assessee 's 640 appeals in respect of two assessment years i.e. 1958 59 and 1959 60.
The decision of the Tribunal was partly in favour of the assessee and partly in favour of the Revenue.
In respect of the assessment year 1958 59, a reference under section 66(1) of the 1922 Act was made by the Tribunal to the High Court.
Four questions were referred one at the instance of the Commissioner of Income tax and three at the instance of the assessee.
The High Court by ' its judgment under appeal which is reported in Commissioner of Income tax (Central), Bombay vs P.K. Badiani(1) has answered almost all the questions.
against the assessee.
Hence this appeal.
Mr. V. Rajgopal who had argued the case of the assessee before the High Court appeared before us in support of the appeal also.
He could not and did not attack the decision of the High Court as respects questions 2, 3 and 4.
But he strenuously urged before us for reversal of the High Court judgment in regard to question No. 1 which was re ferred at the instance of the Commissioner.
If the assessee could succeed before us in getting an answer in his favour to the said question, then, substantially he would have succeeded in getting the whole of the relief.
The first and the only question which falls for our examination in ' this appeal was referred by the Tribunal to the High Court in the following terms: "(1) Whether the development rebate reserve created by the company by duly charging the amount to the profit and loss account and being allowable under the Act constituted 'accumulated profits ' of the company within the meaning of section 2(6A)(e) of the Act?" We proceed to state the necessary facts for determina tion of the above question only.
The assessee was a major shareholder (although at the relevant time being a major or minor shareholder did not make any difference in law) in the Sadhana Textile Mills Pvt. Ltd. which was indisputably a Company in which the public were not substantially interested within the meaning of Section 23A of the 1922 Act.
The assessee was also the Managing Director of the said Private Limited Company.
He had a mutual open and current account in the books of the Company the accounting year of which was the calendar year i.e. commencing from January and ending in December.
The assessee in his accounting year 1957 58 had withdrawn con siderable amounts of money from the Company 's account.
The Income tax Officer ' treated the withdrawals made by the assessee as advances or loans given by the Company to him and taxed the amount as dividend under section 2(6A)(e) of the 1922 Act.
The Appellate Assistant Commissioner modi fied the figure of the deemed dividend calculated by the Income tax Officer and took the highest amount of advance made (I) 641 to the assessee by the Company at a particular point of time in the year in question as the amount of dividend taxable in the hands of the assessee.
The said amount was within the total figure of accumulated profits in the hands of the Company at the relevant time, i.e. 31st December, 1956.
It may just be stated here that according to the 1922 Act only the accumulated profits possessed by the company at the.
end of the corresponding previous year had to be taken into account unlike the corresponding provision engrafted in section 2(22) of the Income tax Act, 1961 hereinafter referred to as the 1961 Act, read with Explanation II thereto.
It was found that the aggregate amount of develop ment rebate allowed to the Company under section 10(2)(vi b) was Rs. 2,36,470/ .
The said amount had been debited in the profit and loss account of the Company for the account ing year 1966 leaving a balance of Rs. 6,641/ only in the profit and loss account.
The Appellate Assistant Commis sioner of Income tax treated the entire sum of Rs. 2,43,111/ as the amount of accumulated profits possessed by the Company.
Finding the highest amount of advance to the assessee.
at a particular ;point of time to be aggregating to Rs. 1,83,493.70 he directed the addition of the said amount in the assessee 's income under section 2(6A)(e) of the 1922 Act.
The High Court has directed some modification in the calculation of the said amount while answering the other questions referred to it at the instance of the asses see and we need not go into their details.
The main question for our determination in this appeal is whether the aggregate of the development rebates allowed to the Company under section 10(2)(vi b) of the 1 '922 Act could be treated as accumulated profits in the hands of the Company under section 2(6A)(e).
The Income tax Acts have undergone numerous changes from time to time and various amendments have been made both in the 1922Act as also in the 1961 Act.
We shall do well to quote all the subclauses (a) to (e) of section 2(6A) of the 1922 Act.
They read as follows: "2(6A) "dividend" includes (a) any distribution by a company of accumulated profits whether capitalised or not, if such distri bution entails the release by the company to its shareholders of all or any part of the assets of the company; (b) any distribution by a company of deben tures, debenture stock or deposit certificates in any form, whether with or without interest, to the extent to, which the company possesses accumulated profits, whether capitalised or not; (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; 642 (d) any distribution by a company on the reduc tion of its capital to the extent to which the company possesses accumulated profits which arose after the end of the previous year ending next before the 1st day of April, 1933, whether such accumulated profits have been capitalised or not; (e) any payment by a company, not being a company in which the public are substantially interested within the meaning of section 23A, of any sum (whether as representing a part of the assets of the company or otherwise) by way of advance or loan to a shareholder or any payment by any such company On behalf or for the individual benefit of a shareholder, to the extent to which the company in either case possesses accumulated profits; 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.
" The expression "accumulated profits" occurring in clause (e) of section 6A, or as a matter of that in any of the other clauses, undoubtedly means profits in the commercial sense and not assessable or taxable profits liable to tax as income under the.1922 Act.
It is a well known concept of the taxation law that the term 'profits ' in the various sections of the Income tax Acts have not got the same meaning.
In the context sometimes it means the assessable profits and sometimes it means the commercial profits.
In Palmer 's Company Law, Twenty First Edition at page 662 the distinc tion between profits, divisible profits and profits avail able for dividend has been pointed out.
At the said page occurs an oft quoted classical passage from the judgment of Fletcher Moulton, L.J., in Re Spanish Prospecting Co. Ltd. (1) which runs thus: " 'Profits ' implies a comparison between the state of a business at two specific dates usually separated by an interval of a year.
The fundamen tal meaning is the amount of gain made by the business during the year.
This can only be ascer tained by a comparison of the assets of the busi ness at the two dates .
If the total assets of the business at the two dates be compared, the increase which they show at the later date as compared with the earlier date (due allowance of course being made for any capital introduced into or taken out of the business in the meanwhile) represents in strictness the profits of the busi ness during the period in question.
" Bhagwati, J. has quoted the above passage with approval in the case of E.D. Sassoon & Company Ltd. and others vs Com missioner of Income tax, Bombay City.
( '2) Almost to the same effect ,was the view (1) , 98.
(2) at page 46.
643 expressed by Mahajan, J. as he then was, in the case of Commissioner of Income tax, Bombay vs Ahmedbhai Umarbhai & Co., Bombay(1) In Commissioner of Income tax, Bombay City vs Bipinchandra Maganlal & Co. Ltd.( '2) Shah, J., as he then was, delivering the judgment on behalf of the Court while interpreting the expression "smallness of profits" occur ring in section 23A of the 1922 Act said at page 296: "A company normally distributes dividends out of its business profits and not out of its assessa ble income.
There is no definable relation between the assessable income and the profits of a business concerned in a commercial sense.
Computation of income for purposes of assessment of income tax is based on a variety of artificial rules and takes into account several fictional receipts, deductions and allowances . . .
Smallness of the profit in section 23A has to be adjudged in the light of commercial principles and not in the light of total receipts, actual or fictional.
" The same view has been expressed by this Court in Gobald Motor Service (P) Ltd. vs Commissioner of Income tax, Ma dras(3).
We think that the term "profits" occurring in section 2(6A)(e) of the 1922 Act means profits in the com mercial sense that is to say the profits made by the Company in the real and true sense of the term.
,We may just give one example.
Suppose the assessable profit of a company is Rs. 1,00,000/ out of which the Company had to pay a tax under the Income tax Act say to the extent of Rs. 30,000/ .
.Although payment of tax is not a sum deductible from the assessable profits of the Company, in the commer cial sense the Company would be left with a sum of Rs. 70,000/ only as profits.
We may add that Mr. Rajgopal could not and did not seriously dispute this proposition of law.
The gravamen of the argument of the assessee has been that development rebate deductible from the assessable profits of the Company is also.
a type of outgoing expendi ture or out of pocket cost which is deductible while ascertaining the profits of the Company in the commercial sense.
Counsel submitted that it is in the nature of a depreciation allowance and is identical with initial depre ciation; it should, therefore, be deducted from the commer cial profits of the Company as held by the Gujarat High Court in the case of Commissioner of Income tax, Bombay North vs Viramgam Mills Co. Ltd. (4).
This argument found favour with the Tribunal but was repelled by the High Court.
The point is res integra and we have to examine the correct ness of the view expressed by the High Court.
Depreciation allowance has been allowed to be deducted from the assessable .profits of an assessee under section 10(2) (vi) of the 1922 Act corresponding to section 32 of the 1961 Act.
It would appear from the report of the Taxation Enquiry Commission 1953 54 Vol.
II as to what is the nature of the depreciation allowance; vide Chapter V, page 74.
The normal depreciation provided in clause (vi) and the additional depreciation mentioned in clause (vi a) of section 10(2) of (1) 18 I.T.R. 472 at 502.
(2) 41 I.T.R. 290.
(3) (4) 43 I.T.R. 270.
644 the 1922 Act is permitted to be deducted from the 'written downvalue '.
By and large, the cost of replacements is allowed as deductions in lieu of depreciation in respect of certain assets.
By the amendments made by the Income tax Amendment Act, 1946.
, the Finance Act, 1955 and the Finance Act, 1956 certain initial depreciation was allowed in re spect of buildings newly erected or the machinery and plant newly installed.
Obviously, it was by way of an incentive for the new structures or the new installations.
The amount of initial depreciation was not deductible in deter mining the 'written down value ' although under proviso (c) it was to be taken into account in the aggregate of all allowances so as not to permit them to exceed the maximum limit provided therein.
Development rebate was provided in clause (vi b) with effect from 1st April, 1955 by the Fi nance Act of 1955.
There was an over lapping period of about two years in relation to the allowance of initial depreciation or the development rebate.
But as provided for in clause (vi) an assessee could not have ' had both even in regard to that period.
Although initial depreciation and development rebate were not identical as they differed in some material particulars, they were similar in nature as both were by way of incentive for installation of new ma chinery or plant.
The initial depreciation or the develop ment rebate was to be allowed, as the case may be; at a certain percentage of the actual cost of the machinery or the plant for the year of installation only.
It was not a recurring allowance for the subsequent years like; the allowance of the normal depreciation or the additional depreciation.
The Taxation Enquiry Commission in its report aforesaid had recommended in Chapter VII, page 98 of Vol.
II for assisting the expansion and development of :productive enterprise by allowing them a proportion of new investment in fixed assets to be charged to current costs of production thereby permitting the taxable profits to be brought down to that extent.
In the Finance Act of 1955 a provision was made to allow a development rebate of 25% of the cost of all new plant and machinery installed for business purposes instead of the then existing initial depreciation allowance of 20%.
It would thus be seen that by way of an incentive for installation of new machinery and plants initial depreciation allowance of 20% was replaced by a develop ment 'rebate of 25%.
But it was, like grant of export rebate by way of incentive to make more exports, in the nature of an incentive for setting up new machineries and plants.
We do not find any warrant for accepting the contention of Mr. Rajgopal that the initial depreciation or the develop ment rebate was allowed as 'an extra deductible allowance of business expenses in the year of installation of new machin ery for meeting the ever increasing costs of its replacement in future years.
In our opinion it was meant merely to reduce the tax liability of the assessee in order to give him an incentive to instal new machineries or plants.
The Gujarat High Court in the case of Viramgam Mills Co. Ltd. (supra) was concerned with the question as to whether the normal depreciation reserve of . 'the Company could be taken to be the accumulations of past profits within the meaning of the proviso to section 23A of the 1922 Act as it stood at the relevant time.
It held that it could not form part of the accumulated past profits as in the words of Wixon (vide Wixon 's Accounts Hand Book) it was "the estimat ed 645 expiration of asset value" or as observed by Paton in his Accountants ' Hand Book, Third edition it is an out of pocket cost as any other cost.
Says the learned author in the above book at p. 746 thus: "There is still widespread misapprehension as to the precise significance of the depreciation charge.
It is often deemed a more or less imagi nary and hypothetical :element, and is sharply contrasted with the regular "out of pocket" oper ating costs.
As a matter of fact there is nothing at all imaginary about depreciation as a cost of business operation and at bottom it is just as much 'an out of pocket cost as any other.
The deprecia tion charge is merely the periodic operating aspect of fixed asset costs, and there is no doubt as to the reality of such costs.
Far from being a non out of pocket charge depreciation represents the extreme example of prepayment." Mr. S.T. Desai, learned counsel for the Revenue drew our attention to the decision of the Calcutta High Court in Commissioner of Income tax.
Calcutta vs Sri Bibhuti Bhusan Dutt(1) and submitted that it has taken a view different from the one taken by the Gujarat High Court even in regard to the nature of normal 'depreciation allowance.
The Calcut ta case seems to be one of a property holding company, the profits of which were assessable under section 9 wherein the question of depreciation was not relevant.
It is not neces sary for us to examine in this case the exact nature of the normal depreciation allowance and whether it is deductible from the profits of a person while determining his commer cial profits.
The view expressed by the Gujarat High Court seems to be reasonably plausible and correct and for the purposes of this case we shall assume it to be so.
Yet, we do not feel persuaded to accept the argument of the assessee and equate the initial depreciation or the develop ment rebate with the normal depreciation.
In our opinion such an allowance is in no sense a deductible item of cost or expenditure in the process of settlement of the commer cial profits.
Although it does not form part of the assessable profits, undoubtedly it does form part of the commercial profits.
Tea Estate India Pvt. Ltd. vs Commissioner of Income tax, West Bengal 11 (and vice versa)(2) one of us (Khanna, J.) delivering the judgment on behalf of the Court has interpreted the, expression "accumulated profits" occur ring in clause (c) of section '2(6A) of the 1922 Act to include the amount of development rebate in the commercial sense.
It has been stated at page 794: "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 those words were a part of that clause.
There is also nothing in the language (1) (2) 646 Or Context of that clause as would warrant such a construction.
Accumulated profits would retain their character as such even though a part of them were not taxed as profits under the Act.
" The purpose of section 2 (6A) of the 1922 Act corresponding to section 2(22) of the 1961 Act is to include within the term "dividend" for the purpose of taxation certain distri butions or payments of certain items of money or the like as deemed dividend for the purpose of taxation.
Under clause (e) an advance or loan or money to a shareholder by a pri vate Company has been directed to be treated as dividend to the extent to which the Company possessed accumulated profits.
The advance or the loan, by a legal fiction, is to resemble the actual dividend.
For the purpose of distribu tion of the dividend the amount of development rebate could form part of the profits of the Company; a fortiori, it would be so far the purposes of clause (e) also.
During the course of the arguments of this appeal, our attention was directed to a new facet of the question under consideration and that is this.
In clauses (a) to (d) of section 2(6A) of the 1922 Act so also in the corresponding clauses of section 2(22) of the 1961 Act the expression "accumulated profits" is qualified by the expression "whether capitalised or not".
But the latter phrase is conspicuously absent in clause (e).
What is the purpose of this difference in the phraseology of the various clauses of sub section (6A) ? The reason is not far to seek and yet not helpful to the assessee in this case.
The profits of a Company can be capitalised in accord ance with the Articles of Association and the law.
On the capitalisation of the profits they cease to be profits in the hands of the Company.
The nature of the asset is changed although it does not make any difference in the total assets of the Company.
But profits stand transmuted and transformed into capital.
The most common example of capitalisation of profits is by issuance of bonus shares to the shareholders.
Clause (a) to (d) were intended by the Legislature to cover the cases of accumulated profits even though they may be capitalised.
But the Legislature did not intend to rope in the capitalised profits in clause (e).
We may add that though under clause (b) distribution by a Company of debentures, debenture stock or deposit certifi cates in any form in lieu of capitalised profits is to be deemed dividend within the meaning of sub section (6A), mere distribution of bonus shares after capitalising the accumu lated profits, unless the distribution entails the release by the Company to its shareholders of any part of the assets of the Company is not to be a deemed dividend.
Even under the 1961 Act distribution of bonus shares to the equity shareholders after capitalising the profits in accordance with law is not to be a deemed dividend although distribu tion of such shares to preference shareholders is.
It is thus clear that if money is paid to a shareholder of a private company by way of advance or loan after the accumu lated profits have been capitalised in accordance with the law and the Articles of Association then such payment, although it may represent a part of the assets of the Compa ny or otherwise, cannot be co related to the capitalised profits of the Company.
To the extent the profits have been capitalised the Company cannot be said to possess any accu mulated profits.
647 But the Obvious difficulty in the way of the appellant is that the accumulated profits of the Company in the year in question were never capitalised.
Mere transferring the sum of Rs. 2,36,470/ by debiting it to the profit and loss account to the development reserve account did not amount to the capitalisation of profits.
The nature of the assets in the hands of the Company did not change.
It remained profits in the hands of the Company.
According to the Dictionary of English Law by Earl ' Jowitt, Vol.
1 "capitalisation" means "the conversion of profits or income into.
capital, e.g., by resolution of a company".
Buckley on the Companies Acts, thirteenth edi tion, has pointed out at page 907 "Profits carried to re serve do not cease to be profits unless and until they are effectually capitalised".
Says the learned author at page 912 after referring to Article 128 corresponding to Regula tion 96 of Table "A" of the Indian Companies Act: "A company may, if its constitution so al lows, capitalize profits, instead of dividing them, by applying them in paying up unissued shares, or debentures or other securities, and issuing such shares or securities as fully paid to its members, thereby transferring the sum capitalized from profit and loss or reserve account to share or loan capital account.
" To the same effect is the statement of the law to be found in Palmer 's Company Law, twenty first edition page 673.
The "capitalisation of profits".
says the learned author, means "that profits which otherwise are available for distribution among the shareholders are not divided among them in cash, but that the shareholders are allotted further shares or debentures which are paid up wholly or in part out of ' those profits.
The amount paid by the company out of its divisible profits on account of these newly issued shares is known as the bonus, and the shares are referred to as bonus shares." Lord Herscheil in the case of Ann Bouch and Wil liam Bouch vs William Bouch Sprou(1) was considering as to what was the nature and substance of the transaction in question in that case.
The learned and the noble Lord said at page 398: "I think we must look both at the 'substance and form of the transaction . .
And it was obviously contemplated, and was, I think, certain that no money would, in fact, pass from the company to the shareholders, but that the entire sum would remain in their hands as paid up capi tal." And finally 'it was said at page 399: "I cannot, therefore, avoid the conclusion that the substance of the whole transaction was, and was intended to be, to convert the undivided profits into paid up capital upon newly creat ed shares.
" The Madras High Court has pointed out in Commissioner Income tax, Madras vs
K. Srinivasan and others(2), to quote the placitum only: "For the purposes of section 2(6A)(e) of the Income tax Act, 1922, "accumulated profits" include general reserves.
(1) 12 Appeal Cases, 385.
(2) 648 Unless the profit is capitalised in some form or other mere transfer of the profits to any reserve account will not take away from profits the charac ter of accumulated profits.
" In Sheth Haridas Achratlal vs Commissioner of Income tax, Bombay North, Kutch and Saurashtra, Baroda(1) Chief Justice Chagla delivering the judgment on behalf of the Bench of the Bombay High Court said at page 690: "But when we compare the language used by the Legislature in sub clauses (a), (b) and (d) and when we note the omission of the qualifying words in sub clause (c) then it is clear that the Legislature advisedly did not intend to subject to tax those accumulated profits which had been capitalised.
" It appears that the ex pression "capitalised or not": was added in clause (c) after this decision.
For the reasons stated above, we hold that the develop ment rebate reserve created by the Company by duly charging the amount of profit and loss account although liable as a deduction under the 1922Act, constituted accumulated profits of the Company Within the meaning of section 2(6A)(e).
We accordingly affirm the decision of the High Court and dis miss this appeal but in the circumstances make no orders as to costs.
V.P.S. Appeal dismissed.
| IN-Abs | Under section 2(6A)(e), Income Tax Act, 1922, dividend includes any payment by a company, not being a company in which the public are substantially interested within the meaning of section 23A, of any sum by way of advance to a share holder to the extent to which the company possesses accumu lated profits.
The appellant assessee was a shareholder in a company in which the public were not substantially interested within the meaning of section 23A.
He had withdrawn some amounts from the company 's account.
The company had been allowed devel opment rebate under section 10(2)(vi b) and that amount was debited in the profit and loss account of the company for the accounting year leaving a small balance of profit in the profit and loss account.
The Appellate Assistant Commis sioner treated the entire sum, that is, the amount allowed as development rebate and the amount of balance in the profit and loss account, as the amount of accumulated prof its possessed by the company.
Treating the withdrawals by the appellant as advances by the company to him and finding the highest amount of advance to the assessee to be within the total figure of accumulated profits as arrived at by him, he directed the addition of the advance to the asses see 's income as dividend under section 2(6A)(e) of the Act.
The Tribunal held that the development rebate was not liable to be treated as accumulated profits; but, on reference.
the High Court substantially confirmed the order of the Appel late Assistant Commissioner.
On the question whether the development rebate could be treated as accumulated profits in the hands of the company under section 2(6A)(e), the appellant contended that the develop ment rebate, being identical with initial depreciation is in the nature of depreciation allowance, and since it is de ductible from the assessable profits of the company, it is also a type of outgoing expenditure or out of pocket cost, and was therefore, deductible from the company 's commercial profits.
Dismissing the appeal, HELD: The development rebate reserve created by the company, although it does not form part of the assessable profits, undoubtedly forms part of the commercial profits and hence constituted accumulated profits of the company. within the meaning of section 2(6A)(e).
[648D] (1) The term 'profits ' in taxation law varies in its meaning according to the context.
The expression 'accumu lated profits ' occurring in section 2(6A) means profits in the commercial sense that is profits in the real and true sense of the term and not assessable or taxable profits.
[642E] E.D. Sassoon & Company Ltd. and Others vs Commissioner of Income tax, Bombay City at page 46, Commission er of Income taX, Bombay vs Ahmedbhai Umarbhai.
& Co., Bombay 18 ITR 472 at 502, Commissioner of Income tax.
Bombay City vs Bipinchandra Maganlal & Co. Ltd. and Gobaid Motor Service (P) Ltd. vs Commissioner of Income tax, Madras followed.
(2) Although they are not identical and differ in some material particulars, initial depreciation and development rebate are similar in nature as both are by 639 way of incentive for installation of new machinery or plant.
But the initial depreciation or the development rebate is not a recurring allowance for the subsequent years like the normal depreciation allowance provided in section 10(2)(vi) or the additional depreciation provided in section 10(2)(vi a).
The normal depreciation and the additional depreciation are permitted to be deducted from the written down value.
But the amount of the initial depreciation is not deductible in determining the written down value.
[644D E] (3) Normal depreciation reserve of the company may not form part of the accumulated past profits as held in Commis sioner of Income tax, Bombay vs Viramgam .Mills Co. Ltd. But since the initial depreciation or the devel opment rebate cannot be equated with normal depreciation, it is not a deductible item of cost or expenditure in.
arriving at the commercial profits.
The initial depreciation or the development rebate is not allowed as an extra deductible allowance of business expenses for meeting the costs of replacement in future years, but they are meant merely to reduce the tax liability of the assessee for the year of installation only, in order to give him an incentive to instal new machinery or plant [645D F] (4) The purpose of section 2(6A) is to include within the term 'dividend ', for the purpose of taxation, certain dis tributions or payments as deemed dividend.
Section 2(6A)(c) provides that 'dividend ' includes any distribution to the shareholders liquidation to the extent to which the distri bution is attributable to accumulated profits.
In Tea Estate India Pvt. Ltd. vs C.I.T., W. Bengal it was held that accumulated profits in cl.
(c) include devel opment Tebate.
If for the purpose of distribution the amount of development rebate could form part of the accumu lated profits of the company, a fortiori, it would be so far the purpose of cl.
(e) also.
[646B; 645G] (5) The use of the expression 'whether capitalised or not ', as qualifying the expression 'accumulated profits ' in cls.
(a) to (d), but not in cl.
(e), shows that the legisla ture does not intend to rope in capitalised profits in el.
That is, to the extent the profits have been capita lised in accordance with the law and its Articles of Associ ation, a company cannot be said to possess any accumulated profits.
But in the present case, the accumulated profits of the company were never capitalised.
Merely transferring the sum to the development reserve account by debiting it to the profit and loss account did not amount to capitalisation of profits.
The nature of the assets did not change out continued to remain as profits.
[646E G; 647A B] Ann Bouch and William Bouch vs William Bouch Sprou (12 Appeal Cases, 385 applied.
Commissioner of Income tax, Madras vs
K. Srinivasan and others approved.
Sheth Haridas Achratlal vs Commissioner of Income tax, Bombay North, Kutch and Saurashtra, Baroda referred to.
|
ON: Criminal Appeal No. 214 of 1971.
(Appeal by Special Leave from the judgment and Order dated 27 7. 1970 of the Andhra Pradesh High.
Court in Criminal Appeals Nos. 26 and 27/69).
7 1234SCI/76 604 P. Parmeswara Rao and G. Narayana Rao for the Appellant.
A. Subba Rao for the Respondents.
This appeal by special leave is directed against a judgment of the High Court of Andhra Pradesh.
It arises out of these facts.
In Rompicherla village, there were factions belonging to three major communities viz., Reddys, Kammas and Bhatrajus.
Rayavarapu (Respondent No. 1 herein) was the leader of Kamma faction, while Chopparapu Subbareddi was the leader of the Reddys.
In politics, the Reddys were supporting the Con gress Party, while Kammas were supporters of Swatantra Party.
There was bad blood between the two factions which. were proceeded against under section 107, Cr.
In the Panchyat elections of 1954, a clash took place between the two parties.
A member of the Kamma faction was murdered.
Consequently, nine persons belonging to the Reddy faction were prosecuted for that murder.
Other incidents also ' took place in which these warring factions were involved.
So much so, a punitive police force was stationed in this village to keep the peace during the period from March 1966 to September 1967.
Sarikonda Kotamraju, the deceased person in the instant case, was the leader of Bhatrajus.
In order to devise protective measures against the onslaughts of their opponents, the Bhatrajus held a meeting at the house of the deceased, wherein they resolved to defend themselves against the aggressive actions of the respondents and their party men.
PW 1, a member of Bhatrajus faction has a cattle shed.
The passage to this cattle shed was blocked by the other party.
The deceased took PW 1 to Police Station Nekar ikal and got a report lodged there.
On July 22, 1968, the Sub Inspector of Police came to the village and inspected the disputed wail in the presence of the parties.
The Sub Inspector went away directing both the parties to come to the Police Station on the following morning so that a com promise might be effected.
Another case arising out of a report made to the police by one Kallam Kotireddi against Accused 2 and 3 and another in respect of offences under sections 324, 323 and 325, Penal Code was pending before a Magistrate at Narasaraopet and the next date for hearing fixed in that case was July 23, 1968.
On the morning of July 23, 1968, at about 6 30 a.m., PWs 1, 2 and the deceased boarded Bus No. AP 22607 at Rompicher la for going to Nekarikal.
Some minutes later, Accused 1 to 5 (hereinafter referred to as A1, A2, A3, A4 and A5) also got into the same bus.
The accused had obtained tickets for proceeding to Narasaraopet.
When the bus stopped at Nekar ikal Cross Roads, at about 7 30 a.m., the deceased and his companions alighted for going to the Police Station.
The five accused also got down.
The deceased and PW 1 went towards a Choultry run by PW 4, While PW 2 went to the roadside to ease himself.
A1 and A2 went towards the Coffee Hotel situate near the Choultry.
From there, they picked up heavy sticks and went after the deceased into the Choultry.
On seeing the accused.
P W 1 ran away towards a hut nearby.
The deceased stood up.
605 He was an old man of 55 years.
He was not allowed to run.
Despite the entreaties made by the deceased with folded hands, A 1 and A 2 indiscriminately pounded the legs and arms of the deceased.
One of the by standers, PW 6, asked the assailants as to why they were mercilessly beating a human being, as if he were a buffalo.
The assailants angri ly retorted that the witness was nobody to question them and continued the beating till the deceased became unconscious.
The accused then threw their sticks at the spot, boarded another vehicle, and went away.
occurrence was witnessed by PWs 1 to 7.
The victim was removed by PW 8 to Narasaraopet Hospital in a temporar.
There, at about 8.45 a.m., Doctor Konda Reddy examined him and found 19 in juries, out of which, no less than 9 were (internally) found to be grievous.
They were: 1.
Dislocation of distal end of proximal phalanx of left middle finger.
Fracture of right radius in its middle.
Dislocation of lower end of right ulna.
Fracture of lower end of right femur.
Fracture of medial malleolus of right tibia.
Fracture.
of lower 1/3 of right fibula.
Dislocation of lower end of left ulna.
Fracture of upper end of left tibia.
Fracture of right patella.
Finding the condition of the injured serious, the Doctor sent information to the Judicial Magistrate for getting his dying declaration recorded.
On Dr. K. Reddy 's advice, the deceased was immediately removed to the Guntur Hospital where he was examined and given medical aid by Dr. Sastri.
His dying declaration, exhibit P 5, was also recorded there by a Magistrate (PW 10) at about 8.05 p.m.
The de ceased, however, succumbed to his injuries at about 4.40 a.m. on July 24, 1968, despite medical aid.
The autopsy was conducted by Dr. P.S. Sarojini (PW 12) in whose opinion, the injuries found on the deceased were cummulatively sufficient to cause death in the ordinary course of nature.
The cause of death, according to the Doctor, was shock and haemorrhage resulting from multiple injuries.
The trial Judge convicted A 1 and A 2 under section 302 as well as under section 302 read with section 34, Penal Code and sen tenced each of them to imprisonment for life.
On appeal by the convicts, the High Court altered their conviction to one under section 304, Pt.
II, Penal Code and reduced their sentence to 'five years rigorous imprison ment, each.
Aggrieved by the judgment of the High Court, the State has come in appeal to this Court after obtaining special leave.
A 1, Rayavarappu Punnayya (Respondent 1) has, as reported by his Counsel, died during the pendency of this appeal.
This information is not contradicted by the Counsel appearing for the State.
This 606 appeal therefore, in so far as it relates to A , abates.
The appeal ' against A 2 (Respondent 2), however, survives for decision. 'The principal question that falls to be considered in this appeal is, whether the offence disclosed by the facts and circumstances established by the prosecution against the respondent, is 'murder ' or 'culpable homicide not amounting to murder '.
In the scheme of the Penal Code, 'culpable homicide ' is genus and 'murder ' its specie.
All 'murder ' is 'culpable homicide ' but not viceversa.
Speaking generally, 'culpable homicide ' sans 'special characteristics of murder ', is 'culpable homicide not amounting to.
murder '.
For the pur pose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degress of culpable homicide.
The first is, what may be called, culpable homicide of the first degree.
This is the gravest form of culpable homicide which is defined in section 300 as 'murder '.
The second may be termed as 'culpable homicide of the second degree '.
This is punishable under the l st part of section 304.
Then, there is 'culpable homicide of the third degree. ' This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades.
Culpa ble homicide of this degree is punishable under the second Part of section 304.
The academic distinction between 'murder ' and 'culpable homicide not amounting to murder ' has vexed the courts for more than a century.
The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minutae abstractions.
The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the key words used in the various clauses of sections 299 and 300.
The following comparative table will be helpful in appreciating the points of distinction between the two offences.
Section 299 Section 300 A person commits culpable homicide Subject to certain if the act by which the death exceptions culpable is caused is done homicide is murder if the act by which the death caused is done INTENTION (a) with the intention of causing death: (1) with the intention of causing death; or or (b) with the intention of (2) with the intention of causing such bodily injury causing such bodily inju as is likely to cause death; ry as the offender knows to or be likely to cause the death of person to whom the harm is caused; or (3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or 607 KNOWLEDGE (c) with the knowledge that (4) with the knowledge that the act likely to cause death.
the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of using death or such injury as is mentioned above.
Clause (b) of section 299 corresponds with cls.
(2) and (3) of section 300.
The distinguishing feature of the mens rea requi site under cl.
(2) is the knowledge possessed by the offend er regarding the particular victim being in such a peculiar condition or state of health that the intentional harm caused to him is likely to be fatal, notwithstanding the fact that ' such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition.
It is noteworthy that the 'intention to cause death ' is not an essential requirement of el.
Only the intention of causing the bodily injury coupled with the offender 's knowledge of the likelihood of such injury caus ing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause.
This aspect of cl.
(2) is borne out by illustration (b) appended to section 300.
Clause (b) of section 299 does not postulate any such knowl edge on the part of the offender.
Instances of cases falling under cl.
(2) of section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the he,art, as the case may be.
If the assailant had no such knowledge about the disease or special frailty of the victim, nor an inten tion to.
cause death or bodily injury sufficient 'in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given.
In clause (3) of section 300, instead of the words 'likely to cause death ' occurring in the corresponding el.
(b) of section 299, the words "sufficient in the ordinary course of nature" have been used.
Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death.
The distinction is fine but real, and, if over looked, may result 'in miscarriage of justice.
The differ ence between cl.
(b) of section 299 and cl.
(3) of section 300 is one of the degree of probability of death resulting from the intended bodily injury.
To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree.
The word "likely" in cl.
(b) of section 299 conveys the sense of 'probable ' as distinguished from a mere possibili ty.
The words "bodily injury. sufficient in the ordinary course of nature to cause death" mean that 608 death will be the "most probable" result of the injury having regard to the ordinary course of nature.
For cases to fall within cl.
(3), it is not necessary that the offender intended to cause death, So long as death ensues from the intentional.
bodily injury or injuries sufficient to cause death in the ordinary course of nature.
Rajwant and anr.
vs State of Kerala(2) is an apt illustra tion of this point.
In Virsa Singh vs The State of Punjab, (2) Vivian Bose j. speaking for this Court, explained the meaning ' and scope of Clause (3), thus (at p. 1500): "The prosecution must prove the following facts before it can bring a case under section 300, 3rdly '.
First, it must establish, quite objective ly, that a bodily injury is present;.
secondly the nature of the injury must be proved.
These are purely objective investigations.
It must be proved that there was an intention to inflict that particular injury, that is to say,.
that it was not accidental or unintentional or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further, and, fourthly it must be ,proved that the injury of the type just described made up of the three elements set out above was suffi cient to cause death in the ordinary course of nature.
This part of the enquiry is purely objec tive and inferential and has nothing to do with the intention of the offender." Thus according to the rule laid down in Virsa Singh 's case (supra) even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature and did not extend to the intention of causing death, the offence would be murder.
Illustration (c) appended to section 300 clearly brings out this point.
Clause (c) of section 299 and cl.
(4) of section 300 both require knowledge of the probability of the causing death.
It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses.
It will be sufficient to say that cl.
(4) of section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons being caused from his imminently dangerous act, approximates to a practical certainty.
Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.
From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is 'murder ' or 'culpable homicide not.
amounting to murder, ' on ,the facts of a case, it will ' (1) A.I.R. 1966 S.C. 1874.
(2) ; 609 be convenient for it to approach the problem in three stages.
The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another.
Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in section 299.
If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of section 300, Penal Code is reached.
This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of murder ' contained in section 300.
If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder ', punishable under the first or the second part of section 304, depending.
respectively, on whether the second or the third Clause of section 299 is applicable.
If this question is found in the positive, but the case comes, within any of the Exceptions enumerated in section 300, the offence would still be 'culpable homicide not amounting to murder ' punishable under the First Part of section 304, Penal Code.
The above are only broad guidelines and not cast iron imperatives.
In most cases, their observance will facilitate the task of the court.
But sometimes the facts are so inter twined and the second and the third stages so tele scoped into each other, that it may not be convenient,to give a separate treatment to the matters involved in the second and third stages.
Now let us consider the problem before us in the light of the above enunciation.
It is not disputed that the death of the deceased was caused by the accused, there being a direct causal connec tion between the beating administered by A 1 and A 2 to the deceased and his death.
The accused confined the beating to.
the legs and arms of the deceased, and therefore, it can be said that they perhaps had no "intention to cause death" within the contemplation clause (a) of section 299 or cl.
(1) of section 300.
It is nobody 's case that the instant case falls within el.
(4) of section 300.
This clause, as already noticed, is designed for that class of cases where the act of the offender is not directed against any particular individual but there is in his act that recklessness and risk of immi nent danger, knowingly and unjustifiably incurred, which is directed against the man in general, and places the lives of many in jeopardy.
Indeed, in all fairness, Counsel for the appellant has not contended that the case would fall under el.
(4) of section 300.
His sole contention is that even if the accused had no intention to cause death, the facts estab lished fully bring the case within the purview of cl.
(3) of section 300 and as such the offence committed is murder and nothing less.
In support of this contention reference has been made to Andhra vs State of Rajasthan(1) and Rajwant Singh vs State of Kerala (supra).
As against this, Counsel for the respondent submits that since the accused selected only non vital parts of the body of the deceased, for (1) A.I.R. 1966 S.C. 148.
610 inflicting the injuries, they could not be attributed the mens rea requisite for bringing the case under clause (3) of section 300; at the most, it could be said that they had knowl edge that the injuries inflicted by them were likely to cause death and as such the case falls within the third clause of section 299, and the offence committed was only "culpa ble homicide not amounting to murder", punishable under section 304, Part 11.
Counsel has thus tried to support the reason ing of the High Court.
The trial Court, 'as 'already noticed, had convicted the respondent of the offence of murder.
It applied the rule in Virsa Singh 's case (supra).
and the ratio of Anda vs State and held that the case was clearly covered by clause Thirdly of section 300.
The High Court has disagreed with the trail Court and held that the offence was not murder but one under section 304, Pt.
The High Court reached this conclusion on the following reasoning: (a) "There was no premeditation in the attack.
It was almost an impulsive act".
(b) "Though there were 21 injuries, they were all on the arms and legs and not on the head or other vital parts the body." (c) "There was no compound fracture to result in heavy haemorrhage; there must have been some bleeding".
(which) "according to PWI might have stopped with in about half an hour to one hour." (d) "Death that had occurred 21 hours later, could have been only due to shock and not due to haemorrhage also, as stated by PW 12. who conducted the autopsy.
This reference is strengthened by the evidence of PW 26 who says that the patient was under shock and he was treating him for shock by sending fluids through his vein.
From the injuries inflicted the accused therefore could not have intended to cause death.
" (e) "A1 and A2 had beaten the deceased with heavy sticks.
These beatings had resulted in fracture of the right radius, right femur, right tibia, right fibula, right patalla and left tibia and dislocation of. , therefore considerable force must have been used while inflicting the blows.
Accused 1 and 2 should have therefore inflicted these injuries with the knowledge that they are likely, by so beating, to cause the death of the deceased, though they might not have had the knowledge that they were so imminent ly dangerous that in all probability their acts would result in such injuries as are likely to cause the death.
The offence . is therefore culpable homicide falling under . section 299, I.P.C. punishable under section 304 Part II and not murder.
" 611 With respect we are unable to appreciate and accept this reasoning.
With respect, to be inconsistent, erroneous and largely speculative,It appears to us To say that the attack was not premeditated or pre planned is not only factually incorrect but also at war with High Court 's own finding that the injuries were caused to the deceased in furtherance of the common intention of A 1 and A 2 and therefore, section 34, I.P.C. was applicable.
Fur ther, the finding that there was no compound fracture, no heavy haemorrhage and the cause of the death was shock, only, is not in accord with the evidence on the record.
The best person to speak about haemorrhage and the cause of the death was Dr. P. section Sarojini (PW 12) who had conducted the autopsy.
She testified that ,the cause of death of the deceased was "shock and haemorrhage due to multiple in juries".
This categorical opinion of the Doctor was not assailed in cross examination.
In the post mortem examina tion report exhibit P 8, the Doctor noted that the heart of the deceased was found full of clotted blood.
Again in injury No. 6, which also was an internal fracture, the bone was visible through the wound.
Dr. D.A. Sastri, PW 26, had testified that he was treating Kotamraju injured of shock, not only by sending fluids through his vein, but also blood.
This part of his statement wherein he spoke about the giving of blood transfusion to the deceased, appears to have been overlooked by the High Court.
Dr. Kondareddy, PW 11, who was the first Medical Officer to examine the injuries of the deceased, had noted that there was bleeding and swelling around injury No. 6 which was located on the left leg 3 inches above the ankle.
Dr. Sarojini, PW 12, found fracture of the left tibia underneath this injury.
There could therefore, be no doubt that this was a compound fracture.
P.W. 11 found bleeding from the other abraded injuries, also.
He however found the condition of the injured grave and immediately sent an information to the Magistrate for recording his dying declaration.
PW 11 also advised immediate removal of the deceased to the bigger Hospital at Guntur.
There, also, Dr. Sastri finding that life in the patient was ebbing fast, took immediate two fold action.
First, he put the patient on blood transfusion.
Second, he sent an intimation for recording his dying declaration.
A Magistrate (PW 10) came there and recorded the statement.
These are all tell tale circumstances which unerring by show that there was substantial haemorrhage from some of the injuries involving compound fractures.
This being the case, there was absolutely no reason to doubt the sworn word of the Doctor, (PW 12) that the cause of the death was shock and haemorrhage.
Although the learned Judges of the High Court have not specifically referred to the quotation from page 289, of Modi 's book on Medical Jurisprudence and Toxicology (1961 Edn.) which was put to Dr. Sarojini in cross examination, they appear to have derived support from the same for the argument that fractures of such bones "are not ordinarily dangerous"; therefore, the accused could not have intended cause death but had only knowledge that they were likely by such beating to cause the death of the deceased.
It will be worthwhile to extract that quotation from Mody, as a reference to the same was made by Mr. Subba Rao before us, also.
612 According to Mody: "Fractures are not ordinarily dangerous unless they are compound, when death may occur from ,loss of blood, if a big vessel is wounded by the split end of a fractured bone.
" It may be noted, in the first place, that this opinion of the learned author is couched in too general and wide language.
Fractures of some vital bones, such as those of the skull and the vertebral column are generally known to be dangerous to life.
Secondly, even this general statement has been qualified by the learned author, by saying that compound fractures involving haemorrhage, are ordinarily dangerous.
We have seen, that some of the fractures under neath the injuries of the deceased, were compound fractures accompanied by substantial haemorrhage.
In the face of this finding, Mody 's opinion, far from advancing the conten tion of the defence, discounts it.
The High Court has held that the accused had no inten tion to cause death because they deliberately avoided to hit any vital part of the body, and confined the beating to the legs and arms of the deceased.
There is much that can be said in support of this particular finding.
But that find ing assuming it to be correct does not necessarily take the case out of the definition of 'murder '.
The crux of the matter is, whether the facts established bring the case within Clause Thirdly of section 300.
This question further narrows down into a consideration of the two fold issue :.
(i) Whether the bodily injuries found on the deceased were intentionally inflicted by the accused ? (ii) If so, were they sufficient to cause death in the ordinary course of nature ? If both these elements are satisfactorily established, the offence will be 'murder ', irrespective of the fact whether an intention on the part of the accused to cause death, had or had not been proved.
In the instant case, the existence of both these ele ments was clearly established by the prosecution.
There was bitter hostility between the warring factions to which the accused and the deceased belonged.
Criminal litigation was going on between these factions since long.
Both the factions had been proceeded against under section 107, Cr.
The accused had therefore a motive to beat the deceased.
The attack was premeditated and pre planned, although the interval between the conception and execution of the plan was not very long.
The accused had purchased tickets for going further to Narasaraopet, but on seeing the deceased, their bete noir, alighting at Nekarikal, they designedly got down there and trailed him.
They selected heavy sticks about 3 inches in diameter, each, and with those lethal weapons, despite the entreaties of the deceased, mercilessly pounded his legs and arms causing no less than 19 or 20 injuries, smashing at least seven bones.
mostly major bones, and dislocating two more.
The beating was administered in a brutal and reckless manner.
It was pressed home with an unusually fierce, cruel and sadistic determination.
When the human conscience of one of the shocked bystanders spontaneously cried out in protest as to why the accused were beating a human being as if he were a buffalo, the only echo it could draw from the assailants, 613 a minacious retort, who callously continued their malevolent action, and did not stop the beating till the deceased became unconscious.
May be, the intention of the accused was to cause death and they stopped the beating under the impression that the deceased was dead.
But this lone circumstance cannot take this possible inference to the plane of positive proof.
Nevertheless, the formidable weapons used by the accused in the beating, the savage manner of its execution, the helpless state of the unarmed victim, the intensity of the violence caused, the callous conduct of the accused in persisting in the assault even against the protest of feeling bystanders all, viewed against the background of previous animosity between the parties, irresistibly lead to the conclusion that the in juries caused by the accused to the deceased were intention ally inflicted, and were not accidental.
Thus the presence of the first element of Clause Thirdly of section 300 had been cogently and convincingly established.
This takes us to the second element of Clause (3).
Dr. Sarojini, PW 12, testified that the injuries of the deceased were cumulatively sufficient in the ordinary course of nature to cause death.
In her opinion which we have found to be entirely trustworthy the cause of the death was shock and haemorrhage due to the multiple injuries.
Dr. Sarojini had conducted the post mortem examination of the deadbody of the deceased.
She had dissected the body and examined the injuries to the internal organs.
She was therefore the best informed expert who could opine with authority as to the cause of the death and as to the suffi ciency or otherwise of the injuries from which the death ensued.
Dr. Sarojini 's evidence on this point stood on a better footing than that of the Doctors (PWs.
11 and 26) who had externally examined the deceased in his life time.
Despite this position, the High Court has not specifically considered the evidence of Dr. Sarojini with regard to the sufficiency of the injuries to cause death in the ordinary course of nature.
There is no reason why Dr. Sarojini 's evidence with regard to the second element of Clause (3) of section 300 be not accepted.
Dr. Sarojini 's evidence satisfacto rily establishes the presence of the second element of this clause.
There is therefore, no escape from the conclusion, that the offence committed by the accused was 'murder ', notwith standing the fact that the intention of the accused to cause death has not been shown beyond doubt.
In Anda vs State of Rajasthan (supra), this Court had to deal with a very similar situation.
In that case, several accused beat the victim with sticks after dragging him into a house and caused multiple injuries including 16 lacerated wounds on the arms and legs, a hematoma on the forhead and a bruise on the chest.
Under these injuries to the arms and legs lay fractures of the right and left ulnas, second and third metacarpal bones on the right hand and second metacar pal bone of the left hand, compound fractures of the right tibia and right fibula.
There was loss of blood from the injuries.
The Medical Officer who conducted the autopsy opined that the cause of the death was shock and syncope due to multiple injuries; that all the injuries collectively could be sufficient to cause death in the ordinary course of nature, but individually none of them was so sufficient.
614 Question arose whether in such a case when no signifi cant injury had been inflicted on a vital art of the body, and the weapons used were ordinary lathis, and the accused could not be said to have the intention of causing death, the offence would be 'murder ' or merely 'culpable homicide not amounting to murder '.
This Court speaking through Hidayatullah J. (as he then was), after explaining the comparative scope of and the distinction between sections 299 and 300, answered the question in these terms: "The injuries were not on a vital part of the body and no weapon was used which can be described as specially dangerous.
Only lathis were used.
It cannot, therefore, be said safely that there was an intention to cause the death of Bherun within the first clause of section 300.
At the same time, it is obvious that his hands and legs were smashed and numerous bruises and lacerated wounds were caused.
The number of injuries shows that every one joined in beating him.
It is also clear that the assailants aimed at breaking his arms and legs.
Looking at the injuries caused to Bherun in furtherance of the common intention of all it is clear that the injuries intended to be caused were sufficient to cause death in the ordinary course of nature, even if it cannot be said that his death was intended.
This is suffi cient to bring the, case within 3rdly of section 300." The ratio of Anda vs State of Rajasthan (supra) applies in full force to the facts of the present case.
Here, a direct causal connection between the act of the accused and the death was established.
The injuries were the direct cause of the death.
No secondary factor such as gangrene, tetanus etc., supervened.
There was no doubt whatever that the beating was premeditated and calculated.
Just as in Anda 's case, here also, the aim of the asailants was to smash the arms and legs of the deceased, and they succeeded in that design.
causing no less than 19 injuries, including fractures of most of the bones of the legs and the arms.
While in Anda 's case, the sticks used by the assailants were not specially dangerous, in the instant case they were unusually heavy, lethal weapons.
All these acts of the accused were pre planned and intentional, which, considered objectively in the light of the medical evidence.
were sufficient in the ordinary course of nature to cause death.
The mere fact that the beating was designedly con fined by the assailants to the legs and arms, or that none of the multiple injuries inflicted was individually suffi cient in the ordinary course of nature to cause death, will not exclude the application of Clause 3rdly of section 300.
The expression "bodily injury" in Clause 3rdly includes also its plural, so that the clause would cover a case where all the injuries intentionally, caused by the accused are cumula tively sufficient to cause the death in the ordinary course of nature, even if none of those injuries individually measures upto such sufficiency.
The sufficiency spoken of in this clause.
as a|ready noticed, is the high probability of death in the ordinary course of nature, and if such suffi ciency exists and death is caused and the injury causing it is intentional, the case would fail under Clause 3rdly of section 300.
All the conditions which are a pre requisite for the applicability of this clause have been established and the offence committed by the accused in the instant case was 'murder '.
615 For all the foregoing reasons, we are of opinion that the High Court was in error in altering the conviction of the accused respondent from one under section 302, 302/34, to that under section 304, Part II, Penal Code.
Accordingly we allow this appeal and restore the order of the trial Court convicting the accused (Respondent 2 herein) for the offence of murder, with a sentence of imprisonment for life.
Respondent 2, if he is not already in jail shall be arrested and committed to prison to serve out the sentence inflicted on him.
P.B.R. Appeal allowed.
| IN-Abs | In the scheme of the Penal Code, 'culpable homicide ' is genus and 'murder ' its specie.
All 'murder ' is 'culpable homicide ' but not vice versa.
Speaking generally, 'culpable homicide ' sans 'special characteristics of murder ', is 'culpable homicide not amounting to murder '.
For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide.
The first is, what may be called, culpable homicide of the first degree.
This is the gravest form of culpable homicide, which is defined in section 300 as 'murder '.
The second may be termed as 'culpable homicide of the second degree '.
This is punishable under the 1st part of section 304.
Then there is 'culpable homicide of the third degree '.
This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades.
Culpable homicide of this degree is punishable under the second Part of section 304.
[606B D] Clause (b) of section 299 corresponds with cll.
(2) and (3) of section 300.
The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the intentional harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition.
The 'intention to cause death ' is not an essential requirement of clause (2).
Only the intention of causing the bodily injury coupled with the offender 's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause This aspect of clause (2) is borne out by illustration (b) appended to section 300.
[607C D] Instances of cases failing under clause (2) of section 300 can be where the assailant causes death by a first blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be.
If the as sailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given.
Clause (b) of section 299 does not postulate any such knowledge on the part of the offender.
[607E F] In Clause (3) of section 300, instead of the words 'likely to cause death ' occurring in the corresponding clause (b) of section 299, the words "sufficient in the ordinary course of nature" have been used.
The distinc tion between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death, is fine but real, and, if overlooked, may result in miscarriage of justice.
The difference is one of the degree of probability of death resulting from the intended bodily injury.
The word "likely" in section 299(b) conveys the sense of of 'probable ' as distinguished from a mere possibility.
The words bodily injury . sufficient in the ordinary course of nature to cause death ' mean that death will be the 'most proba ble ' result of the injury, having regard to the ordinary course of nature.
[607G H] 602 For cases to fail within clause (3), it is not necessary that the offender intended to cause death, so long as death ensues from the intentional bodily injury or injuries suffi cient to cause death in the ordinary course of nature.
[608B] Clause (c) of section 299 and clause (4) of section 300 both require knowledge of the probability of the act causing death.
Clause (4) of section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons being caused from his immi nently dangerous act, approximates to a practical certainty.
Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.
[608F G] Whenever a court is confronted with the question whether the offence is 'murder ' or 'culpable homicide not amounting to murder ', on the facts of a case, it will be convenient for it to approach the problem in three stages.
The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another.
Proof of such casual connection between the act of the accused and the death, leads to the, second stage for, considering whether that act of the accused amounts to culpable homicide as defined in section 299.
If the answer to this.
question is prima facie found in the affirm ative, the stage for considering the operation of section 300, Penal Code, is reached.
This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of 'murder ' containd in section 300.
If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to mur der ', punishable under the first or the second part of section 304, depending, respectively, on whether the second or the third clause of section 299 is applicable.
If this question is found in the positive, but the case comes within any of the Exceptions enumerated in section 300, the offence would still be 'culpable homicide not mounting to murder ', punishable under the First Part of section 304, Penal Code.
[608H; 609A C] Rajwant and anr.
vs State of Kerala AIR 1966 SC 1874, Virsa Singh vs The State of Punjab ; and Andhra vs State of Rajasthan AIR 1966 S.C. 148 followed.
In the instant case the prosecution alleged that in furtherance of political feuds of the village the accused followed the deceased in the bus when he went to a neigh bouring place, chased him when he got off the bus, and indiscriminately pounded the legs and arms of the deceased, who was 55 years old, with heavy sticks.
The deceased succumbed to his injuries on the following morning.
The trial court held that the case was covered by clause 'thirdly ' of section 300 and convicted them under section 302 and section 302 read with section 34.
Indian Penal Code.
In appeal, the High Court altered the conviction to one under section 304 Part II; on ' the grounds that (i) there was no premeditation in the attack; (ii) injuries were not on any vital part of the body; (iii) there was no compound fracture resulting in heavy haemorrhage; (iv) death occurred due to shock and not due to haemorrhage and (v) though the accused had knowledge while inflicting injuries that they were likely to cause death, they might no( have had the knowledge that they were so imminently dangerous that in ' all probability their acts would ' result in such injuries as are likely to came the death.
In appeal to this Court the appellant State contended that the case fell under section 300(3) I.P.C., while the accused sought to support the judgment ' of the High Court.
603 Allowing the appeal.
HELD: (1) It is not correct to say that the attack was not premeditated or preplanned.
The High Court itself found that the injuries were caused in furtherance of the common intention of the respondents, and that therefore section 34 was applicable.
[611B] (2) The High Court may be right in its finding that since the injuries were not on vital parts, the accused had no intention to cause death but that finding assuming it to be correct does not necessarily take the case out of the definition of 'murder '.
The crux of the matter is whether the facts established bring the case within clause 'thirdly ' of section 300.
This question further narrows down into a con sideration of the two fold issue; (i) whether the bodily injuries found on the deceased were intentionally inflicted by the accused ? and (ii) If so, were they sufficient to cause death in the ordinary course of nature ? If both these elements are satisfactorily established, the offence will be 'murder ', irrespective of the fact whether an reten tion on the part of the accused to cause death, had or had not been proved.
[612 C E] In the instant case, the formidable weapons used by the accused in the beating the savage manner of its execution, the helpless state of the unarmed victim, the intensity of the violence caused, the callous conduct of the accused in persisting in the assault even against the protest of feeling by standersall, viewed against the background of previous animosity between the parties, irresistibly lead to the conclusion that the injuries caused by the accused to the deceased were intentionally inflicted, and were not accidental.
Thus the presence of the first element of clause 'thirdly ' of section 300 had been cogently and convincing ly established.
[613 B C] (3) The medical evidence shows that there were compound fractures and that there was heavy haemorrhage requiring blood transfusion.
Such injuries are ordinarily dangerous.
[613D] (4) The medical evidence clearly establishes that the cause of death was shock and haemorrhage due to multiple injuries which were cumulatively sufficient to cause death in the ordinary course of nature.
[612B C] (5) The mere fact that the beating was designedly con fined by the assailants to the legs and arms or that none of the multiple injuries inflicted was individually sufficient in the ordinary course of nature to cause death, will not exclude the application of clause 'thirdly ' of section 300.
The expression 'bodily injury ' in clause 'thirdly ' includes also its plural, so that the clause would cover a case where all the injuries intentionally caused by the accused are cumula tively sufficient to cause the death in the ordinary course of nature.
even if none of those injuries individually measures upto such sufficiency.
The sufficiency spoken of in this clause, is the high probability of death in the ordinary course of nature, and if such sufficiency exists and death is caused and the injury causing it is intention al, the case would fail under clause 'thirdly ' of section 300.
All the conditions which are a pre requisite for the ap plicability of this clause have been established and the offence committed by accused in the instant case was 'mur der '.
[614G H] There is no escape from the conclusion that the offence committed by the accused was murder notwithstanding the fact that the intention of the accused to cause death has not been shown beyond doubt.
[613F]
|
Appeal No. 219 of 1954.
On appeal from the Judgment and Order dated the 4th day of April 1952 of the Madras High Court in Civil Miscellaneous Petition No. 8302 of 1950.
V. K. T. Chari, Advocate General of Madras (R. Ganapathy Iyer and P. G. Gokhale, with him) for the appellant.
R. Kesava lyengar, (M. section K. Iyengar, with him) for the respondent.
October 21.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
This appeal raises a question of considerable importance as to the rights of holders of darmila or post settlement inams of portions of a village under the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (Madras Act XXVI of 1948), hereinafter referred to as the Act.
The subject matter of this appeal is an one sixteenth share in the village of Karuppur situated within the ambit of the Zamindari of Ramanatha puram.
The holders of this ancient Zamindari were, during the 18th Century, the virtual rulers of that part of South India, and were known as Sethupathis or the Lords of Rameswaram and the adjacent isles and seas.
In 1757 Muthu Vijaya Ragunatha, the then Rajah of Ramanathapuram, made a grant of the whole of the village of Karuppur to a number of persons for various charitable purposes.
In 1802, the estate was permanently settled, and an istimrari sanad was issued in favour of the Rajah.
Before that date, the donees under the grant of 1757 representing an one sixteenth share had abandoned the village, and in consequence, the inam had eo extanti been resumed.
At the permanent settlement, this one sixteenth part was included in the assets of the 909 Zamindari, and taken into account in fixing the peishkush thereon.
Subsequent to the permanent settlement, on some date which does not appear on the record, Rani Mangaleswari, the then holder of the Zamindari, made a fresh grant of the one sixteenth part which had been resumed, to the inamdars who held the remaining 15/16th portion of the village under the grant of 1757.
On 31 12 1863 the Inam Commissioner confirmed the grant of 1757, and issued an inam certificate in respect of the 15/16th portion of the village.
The position, therefore, when the Act was passed was that while a 15/16th portion was held by the inamdars under a pre settlement grant confirmed by the British Government, the remaining one sixteenth portion was held under post settlement grant made by the proprietor of the estate.
The Act came into force on 19 4 1949.
Under section 1(4) of the Act, certain sections thereof were to come into force at once and the other sections on such date as the Government might by notification appoint in respect of any zamindari, under tenure, or inam estate.
In exercise of the powers conferred by this section, the appellant issued a notification on 22 8 1949 bringing the Act into force as regards the Ramanathapuram estate from 7 9 1949.
Among the villages mentioned as comprised in the Zamindari was "Karuppur (part)" described as an under tenure.
It is common ground that the part referred to in this notification is the one sixteenth part, which forms the subject matter of this appeal.
The respondent who represents the holders of this inam filed the application out of which the present appeal arises, under article 226 of the Constitution for a writ of certiorari quashing the notification dated 22 8 1949 as ultra vires.
The ground of attack was that under section 1 (3) of the Act, the State had power to notify only what would be estates as defined in section 3(2) of the Madras Estates Land Act 1908 (Madras Act I of 1908), and that the part of the village of Karuppur included in the notification was not an estate as defined in that section.
Section 3(2) of Act I of 1908, so far as is material, is as follows; 910 "Estate" means (a) any permanently settled estate or temporarily settled zamindari; (b) any portion of such permanently settled estate or temporarily settled zamindari which is separately registered in the office of the Collector; (c) any unsettled palaiyam or jagir; (d) any inam village of which the grant has been made, confirmed or recognised by the British Government, notwithstanding that subsequent to the grant, the village has been partitioned among the grantees or the successors in title of the grantee or grantees.
* * * * (e) any portion consisting of one or more villages of any of the estates specified above in clauses.
(a), (b) and (c) which is held on a permanent under tenure".
The contention of the respondent was that as the grant in question related only to a fraction of a village, it could not be notified as an under tenure, as under section 3 (2) (e) an under tenure would be an estate only if it related to a whole village or villages.
The appellant conceded that the inam in question was not an under tenure as defined in section 3 (2) (e), as it comprised only part of a village, but contended that even though it was not in itself an estate, it was, nevertheless, part of the Zamindari of Ramanathapuram, being a post settlement grant of portion of a village comprised therein, and that when that estate was notified, the entirety of it including the inam in question must vest in the Government under section (b) of the Act.
The respondent demurred to this contention.
In addition, he raised the further contention that even if post settlement minor inams were within the operation of the Act, they would be protected by section 20 of the Act, which runs as follows: "20(1) In cases not governed by sections IS and 19, where, before the notified date, a landholder has created any right in any land (whether by way of lease or otherwise) including rights in any forest, 911 mines or minerals, quarries, fisheries or ferries, the transaction shall be deemed to be valid; and all rights and obligations arising thereunder, on or after the notified date, shall be enforceable by or against the Government: Provided that the transaction was not void or illegal under any law in force at the time: Provided further that any such right created on or after the 1st day of July 1945 shall not be enforceable against the Government, unless it was created for a period not exceeding one year: Provided also that where such right was created for a period exceeding one year, unless it relates to the private land of the landholder within the meaning of section 3, clause (10), of the Estates Land Act, the Government may, if, in their opinion, it is in the public interest to do so, by notice given to the person concerned, terminate the right with effect from such date as may be specified in the notice, not being earlier than three months from the date thereof".
The argument of the respondent was that a post settlement minor inam would be a right in land created by a landholder falling within section 20, that the notification of the estate under section 1(3) would not ipso facto divest the inamdar of his title to the lands, and that he would be entitled to hold them subject to any action that might properly be taken by the State under section 20.
The learned Judges of the Madras High Court agreed with the appellant that post settlement minor inams fell within the operation of the Act; but they accepted the contention of the respondent that they were governed by section 20 of the Act.
As it was common ground that the State had not proceeded under that section, they held that the notification was ultra vires, and accordingly quashed the same in so far as it related to the inam forming part of Ka ruppur village.
The appellant applied to the High Court for leave to appeal to this Court against this decision, and though the value of the subject matter was far below the appealable limit, the learned Judges granted a certificate under article 133(1)(c) on the 912 ground that the question involved was one of great public importance.
That is how the appeal comes before us.
Two questions arise for decision in this appeal: (1) Are post settlement minor inams within the operation of Madras Act XXVI of 1948? (2) If they are, are they governed by section 20 of the Act? On the first question, the appellant does not contend that the inam in question is in itself an estate as defined in section 3(2) of the Madras Estates Land Act and liable as such to be notified under the Act.
His contention is that when the Zamindari of Ramanathapuram was notified and there is no dispute that it was validly notified, as it was a permanently settled estate falling within section 3(2) (a) of the Madras Estates Land Act minor post settlement inams of lands within the Zamindari would vest in the State as part of the Zamindari under section 3(b) of the Act.
Section 3(b) is, omitting what is not material, as follows: "With effect on and from the notified date and save as otherwise expressly provided in this Act. . . . the entire estate.
shall stand transferred to the Government and vest in them, free of all encumbrances".
The point for decision is whether post settlement minor inams are parts of the estate out of which they were granted.
If they are, then they will vest in the Government under section 3(b).
If they are not, they will remain unaffected by the notification of the parent estate.
The status of holders of these inams had been the subject of considerable divergence of judicial opinion in the Madras High Court.
To appreciate this, reference must be made to the following definition of 'landholder ' in section 3(5) of the Madras Estates Land Act: "Landholder" means a person owning an estate or part thereof and includes every person entitled to collect the rents of the whole or any portion of the estate by virtue of any transfer from the owner or his predecessor in title or of any order of a competent 913 Court or of any provision of law".
Leaving out the inclusive portion of the definition as not relevant to the present question, it will be seen that owners of parts of an estate would also be landholders.
The question then arose for decision whether darmila minor inamdars were landholders as defined in section 3 (5) of the Estates Land Act.
If they were.
, the tenants would acquire occupancy rights under section 6, and proceedings against them could be taken only in the revenue courts and not in the civil courts, and in general, the rights and obligations of the inamdar and the tenants would be governed by the provisions of the Madras Estates Land Act.
One view was that as the inamdars had to pay quit rent or jodi to the grantors, their status could not be that of owners and therefore they could not be said to own parts of an estate.
The contrary view was that the inamdars were in substance owners of the lands granted to them, and that the liability to make a fixed annual payment did not detract from their character as owners, and they would be landholders owning parts of an estate.
In view of this conflict of opinion, the question was referred to the decision of a Full Bench in Brahmayya vs Achiraju(1), which held by a majority that minor darmila inamdars were landholders as defined in section 3(5) of the Estates Land Act.
This decision was based both on the ground that the inamdars were in the position of owners of parts of an estate and that they were also persons entitled to collect rent, within the inclusive portion of the definition.
In Narayanaraju vs Suryanarayudu(2), the question whether the grantee of a portion of a village subsequent to the settlement was a landholder as defined in section 3(5) came up for decision before the Privy Council.
After reviewing the authorities and the conflicting views expressed therein, the Board agreed with the opinion expressed by the majority of the learned Judges in Brahmayya vs Achiraju (1), and held that the grantee of a post settlement minor inam would be a landholder on both the grounds mentioned in their (1) Mad. 716.
(2) [1939] 66 I.A. 278. 914 judgments.
They discarded "the doctrine that so long as the zamindar reserves any interest, however insignificant, the permanent grantee from him cannot be the owner", and observed that the words "part of the estate" occurring in the definition must be given their prima facie meaning.
The Board felt greater difficulty in accepting the view that the inamdar was a landholder entitled to collect rent within the inclusive portion of the definition.
But they expressed themselves satisfied on either ground that "the Full Bench decision of 1922 represents a careful and reasonable solution of a stubborn ambiguity in the Act, and that it ought not now to be overruled having regard to the time which has elapsed and to the character of the interests affected thereby".
Thus, it was settled law in Madras at the time when Act XXVI of 1948 was passed that minor darmila inamdars were owners of parts of an estate.
Construing section 3(b) in the light of the law as then accepted, when a notified estate vests in its entirety in the State under that provision, a minor darmila inam which forms part of it must also vest in it.
Sri R. Kesava lyengar, learned counsel for the respondent, argued that decisions on section 3(5) of 'the Madras Estates Land Act on the meaning of the word 'landholder ' as defined therein, could not be usefully referred to for construing the true scope of section 3(b) of Act XXVI of 1948, as the definition in the Madras Estates Land Act was only for pur poses of settling the rights of landlords and tenants, and would be irrelevant for determining the rights of the inamdar as against the State.
But the ground of ,the decision in Brahmayya vs Achiraju(1) and Narayanaraju vs Suryanarayudu(2) is that the grantee of the inam is in the position of an owner of the part of the estate granted to him, and that would be relevant when the controversy is as to his true status, whether the dispute is between the landlord and the tenant or between the inamdar and the State.
If the inamdar is owner in relation to his tenants, it would be illogical to hold that he is not that, in relation to (1) Mad. 716.
(2) [1939] 66 I.A. 278.
915 the State.
The question is, in our opinion, concluded by section 2(8) of Act XXVI of 1948 which defines a landholder as including a darmila inamdar, and that is a statutory recognition of the doctrine laid down in Brahmayya vs Achiraju(1) and Narayanaraju vs Suryanarayudu(2) that darmila inamdars are owners ,of parts of an estate.
The result then is that when the darmila inam does not relate to the entire village but only to a fraction of it, it must be held to retain its character as part of the estate in the hands of the inamdar, and when the estate is notified under section 1 (4) of the Act, the inam will vest in the State under section 3(b).
It is next argued for the,, respondent that the Act ,makes no provision for award of compensation to minor darmila inamdars and that as a statute is not to be construed as taking away the proper" of any person unless there is a provision for payment of compensation therefor,, these.
inams should be held to be outside the operation of the Act Reference was made in this connection to section 45 of the Act under which the compensation payable in respect of an impartible estate and Ramanathapuram is one is to be apportioned after payment of debts among the members of the family.
It is said that under this section the respondent would have no right to share in it.
This contention is clearly erroneous.
The material provisions relating to the award of compensation ,are sections 25, 27, 37 and 44.
Under section 25, the compensation is to be determined for the estate as a whole and not separately for each of the interests therein.
Section 27 lays down bow the basic income in the case of zamindaris is to be fixed.
Under section 27(i), it has to include one third of the gross annual ryotwari demand in respect of all lands in the estate and under section 27(iv) "one third of the average net annual miscellaneous revenue derived from all other sources in the estate specified in section 3 (b) ".
Thus, the income from the lands comprised in the minor inam which is a part of the estate is included in the total income of the zamindari.
Under section (1) Mad. 716.
(2) (1939] 66 I.A. 278.
116 916 37, the compensation payable in respect of an estate is calculated in terms of the basic income on the scale prescribed therein.
Section 44 enacts that the Tribunal is to "apportion this compensation among the principal landholder ' and any other persons whose rights or interests in the estate stand transferred to the Government under section 3(b)".
There cannot be any doubt on these provisions that the darmila minor inamdar is a person who is entitled to claim compensation for the transfer of his portion of the estate to the Government.
Then comes section 45 on which the respondent bases his contention.
That applies only to the distribution of the compensation determined under section 44 as payable to the principal landholder, when he is the holder of an impartible estate.
It leaves untouched the rights of minor darmila inamdars to claim compensation under section 44.
The contention of the respondent that the Act provides no compensation to them, and that they should therefore be held to fall outside the Act must accordingly be rejected.
(2)That brings us on to the second question whether a post settlement minor inam is a right in land created by a landholder within the intendment of section 20 of the Act.
At the very outset, it seems somewhat inconsistent to hold that a darmila minor inam is part of an estate, and also that it is governed by section 20.
If it is part of an estate, it must automatically vest in the Government under section 3(b).
But if it falls within section 20, the title to it will continue to stand in the inamdar with a right in the Government to take action under the third proviso, subject to the conditions laid down therein.
It was argued for the respondent that section 3 operates on its own terms only "save as otherwise expressly provided herein", and that section 20 was such a provision.
It is somewhat difficult to follow this argument, because if section 20 applied to darmila minor inams, then they could never fall within the operation of section 3(b).
And how is this result to be reconciled with the conclusion that they are parts of 917 the estate, and that the inamdar is a landholder for purposes of the Act? But it is argued for the respondent that the words "rights in land created by landlord" are of the widest import and would take in darmila minor inams.
The point for decision is whether this contention is correct.
We start with this that a darinila minor inamdar is a landholder as defined in section 2,(8) of the Act, and he is that, by reason of his being the owner of a part of the estate.
Can such a person be held to be one who has obtained a right in the land from the landholder within section 20? The Act makes a clear distinction between estates held by landholders and rights and interests held by other persons in or over estates.
Section 3(b) enacts that when there is a notification under section 1(4), the entire estate shall stand transferred to the Government and vest in it.
We have held that the part of the estate belonging to a darmila inamdar would vest in the Government.
Section 3(c) provides that on notification all rights in or over the estate shall cease and terminate.
Section 3(b) and section 3(c) deal with two distinct matters which may respectively be described in broad terms as ownership of the estate and rights in or over estate not amounting to ownership, and these two categories are mutually exclusive.
Now, turning to section 20, it protects rights in land by way of lease or otherwise created by the landholder before the notified date.
In this context, and having regard to the distinction between estates under section 3(b) and rights over estates under section 3(c), the rights mentioned in section 20 can only refer to the rights dealt with in section 3(c), and not to ownership which is within section 3(b).
When, therefore, the transaction for which protection is claimed under section 20 is one which vests ownership of the estate or a portion thereof in the transferee, it will fall outside the section.
In other words, section 20 has no application to transactions by which a person becomes a landholder by reason of ownership of even a part of the estate being transferred to him, and that being the character of a, darmila minor inam it is not pro 918 tected by section 20.
There are also indications in the language of section 20 pointing to the same conclusion.
Section 20(2) provides that the persons whose rights are terminated under the proviso to section 20(1) shall be entitled to compensation having regard to the value of the right which is terminated and the unexpired portion of the period for which the right is created.
These words are more appropriate to connote rights which are to be exercised for specified periods, such as lease or contract for the exploitation of mines or forests for a term than "ownership of the estate".
There is one other consideration, which lends support to this conclusion.
The object of the Act was to establish direct relationship between the State and the tillers of the soil, and to abolish all intermediate tenures.
In Madras, the rights and obligations of intermediate tenure holders were regulated by the Madras Estates Land Act, and under that Act the intermediaries consisted not merely of the holders of the estates as defined in section 3(2) of that Act but also holders of post settlement minor inams as settled by decisions of the highest authority.
If the purpose of the Act is to be fully achieved, it would be necessary to abolish not merely estates as defined in section 3(2) of the Madras Estates Land Act but also darmila minor inams.
But if the contention of the respondent is to be accepted, it is only the estates mentioned in section 3(2) that will, on notification, vest in the Government and not the minor inams.
These will continue to be held by the inamdars under section 20 until they are terminated in accordance with the proviso therein, and survive as islets in the landscape even after the parent estates have dis appeared from the scene.
The legislation must to this extent be held to have failed to achieve its purpose.
And this is not all.
If the contention of the respondent is correct, then the minor inamdars will not merely be unaffected by the Act but will actually be better off for it.
Under section 3(a) of the Act, the Madras Estates Land Act stands repealed on and from the notified date, and as it is by virtue of this 919 Act that the tenants became entitled to occupancy rights, the inamdars would, on notification, be free to eject tenants, and settle their own terms with them.
We cannot accede to a contention which results not merely in the frustration of the object of the Act but further produces consequences, the reverse of what were intended.
On the other hand, the contention of the appellant that minor inams fall outside section 20 and would vest straightaway in the State under section 3(b) will have the effect of extinguishing the rights of the inamdars, and enabling the State to issue ryotwari pattas to the tenants in occupation.
We prefer to accept this contention, as it fully effectuates the intention of the legislature.
In the result, we must hold that the one sixteenth portion of the village of Karuppur forming a darmila inam will vest in the Government under section 3(b) of the Act, and that the only right of the inamdars is to share in the compensation under the terms of the Act.
The petition of the respondent in so far as it relates to this inam must be dismissed.
This appeal is accordingly allowed, and in accordance with the terms of the certificate granting leave, the appellant will pay the costs of the respondent in this Court.
The parties will bear their own costs in the court below.
| IN-Abs | At the time of passing of the Madras Estates (Abolition and Conversion into Ryotwari) Act (Madras Act XXVI of 1948), a 15/16th portion of village Karuppur situated within the Zamindari of Ramanathapuram was hold by the inamdars under a pre settlement grant confirmed by the British Government, the estate being permanently settled in 1802.
The remaining one sixteenth portion was held by the holders of darmila or post settlement inams made by the proprietor of the estate.
In exercise of the powers conferred by section 1(4) of the Madras Act XXVI of 1948 the State of Madras issued a notification dated 22nd August 1949 bringing the Act into force as regards the Ramanathapuram estate from 7th September 1949, the latter Zamindari including one sixteenth part of Haruppur village.
The respondent the holder of the one sixteenth inam contended that under section 1(3) of the Madras Act XXVI of 1948 the State of Madras bad power to notify only what would be estates as defined in section 3(2) of the Madras Estates Land Act I of 1908 and that one sixteenth part of the village of Karuppur included in the notification was not an estate as defined in that section and the notification was therefore ultra vires.
Held (repelling the contention) that when the darmila inam does not relate to the entire village but only to a fraction of it, it must be held to retain its character as part of the estate in the hands of the inamdar and when the estate is notified under section 1(4) of the Madras Act XXVI of 1948 the inam will vest in the State under section 3(b) of the Madras Act XXVI of 1948 and therefore one sixteenth portion of the village of Karuppur forming a darmila inam will vest in the State.
Under the provisions of the Madras Act XXVI of 1948 the darmila minor inamdar is entitled to claim compensation for the transfer of his portion of the estate to the Government.
115 908 Darmila minor inam is not protected by section 20 of the Act.
Brahmayya vs Achiraju ([1922] I.L.R. and Nara yanaraju vs Suryanarayudu ([1939] 66 I.A. 278), referred to.
|
Civil Appeal No. 1643 of 1968.
(From the Judgment and Order dated 19 8 1965 of the Allahabad High Court in CiVil Misc.
Writ No. 5475/64).
A.K. Sen and E.C. Agarwala, for the appellants M/s. J.P. Goyal & Pal Singh, for respondents Nos. 1 7.
The Judgment of the Court was delivered by KHANNA, J.
This appeal on certificate is against the order of Allahabad High Court whereby that Court dismissed in limine the writ petition filed by the appellants, seeking a writ of certiorari to quash the order dated June 15, 1964 of the Settlement officer and the order dated September 17, 1964 of the Deputy Director of Consolidation of Holdings.
The dispute between the parties relates to khata No. 50.
The appellants raised objection before the consolida tion authorities on the ground that they along with the respondents were joint tenants in Khatas Nos. 150, 369 and 391.
The Consolidation Officer rejected the claims of the appellants in respect of khatas Nos. 369 and 391.
He, howev er, held that the appellants were joint tenants along with the respondents in khata.
No. 150.
The respondents went up in appeal against the order of the Consolidation Officer in so far as had held that the appellants were joint tenants in khata No. 150 Cross objections were filed by the appellants in respect of the disallowance of their objection regarding khata Nos. 369 and 391.
The 637 cross objections of the appellants were dismissed by the Settlement Officer on the ground that they were barred by time.
So far as khata No. 150 is concerned, the Settlement Officer held that the appellants were not joint tenants in that khata.
The appeal filed by the respondents was conse quently allowed and the objection filed by the appellants before the Consolidation Officer was dismissed in toro.
The order of the Settlement Officer in this respect is dated June 15, 1964.
The appellants then went up in revision, but the revision was dismissed by the Deputy Director of Consolidation as per order dated September 17, 1964.
The appellants thereafter filed the writ petition for a writ of certiorari to quash the orders dated June 15, 1964 and September 17, 1964.
The said petition, as stated above, was dismissed.
We have heard Mr. Sen on behalf of the appellants and Mr. Goyal behalf of the respondents and are of the opinion that there is no merit in this appeal.
The question with which we are concerned is whether the appellants are joint tenants in khata No. 150 along with the respondents.
In this respect we find that the Settlement Officer examined the entries in the revenue records.
It was found that so far as the land in dispute is concerned, it was held in Fasli 1280 by Hriday Singh, who was the common ancestor of the parties.
In 1307 Fasli, Himmat Singh, an 'ancestor of the appellants and Suraj Mall, an ancestor of the respondents, jointly held that land.
Subsequent to that, the land in dispute was held exclusively by the respondents and their ancestors.
The Settlement Officer inferred from these circnmstances that subsequent to 1307 Fasli, there was some partition between the parties or some other arrangement similar to partition, as a result of which the land in dispute 'fell to the share of the respondents.
As this finding of the Settlement Officer is essentially a finding of fact and was arrived at after consideration of the relevant entries in the revenue records, the same cannot be interfered with in a writ petition.
It may be that some other view, and what according to Mr. Sen was a better view, could have been arrived at on the facts, but the position in law is clear that the High Court in a writ petition cannot interfere with a finding of fact as long as that finding is based upon the relevant circumstances and is not shown to be perverse.
We find no such infirmity in the finding arrived at by the Settlement Officer.
The finding was not also interfered with when the appellants went up in revision before the Deputy Director of Consolidation.
The High Court in the circumstances cannot be said to be in error in dismissing the writ petition in limine.
We may add that Mr. Goyal during the course of arguments has not disputed the proposition that the respondents are not entitled to any share in the land which is exclusively held by the appellants and is recorded exclusively in their.
names in the revenue records of 1346 Fasli.
As a result of the above, the appeal fails and ' is dismissed, but in the circumstances with no order as to costs.
S.R. Appeal dis missed.
| IN-Abs | The appellants raised an objection be.fore the consoli dation authorities claiming joint tenancy with the respond ents in respect of khatas 150, 369 and 391, which was re jected except in respect of khata 150.
The respondents filed an appeal against the orders relating to khata 150.
The appellants filed cross appeals in respect of khata 369 and 391 and cross objection in respect of khata No. 150.
The Settlement Officer rejected the cross appeals as time barred and allowed the respondents ' appeal holding that the appellants were not joint tenants in khata No. 150.
Since the revision before the Deputy Director of Consolidation failed, the appellants filed a writ petition for a writ of certiorari, which was dismissed in limine.
Dismissing the appeal by certificate, the Court, HELD: The position in law is clear that the High Court in a writ petition cannot interfere with a finding of fact as long as that finding is based upon the relevant circum stances and is not shown to be perverse.
In the instant case, the finding of the Settlement Officer is essentially .a finding of fact and was arrived at after consideration of the relevant entries in the revenue re cords; the finding was not also interfered with in revision and the.
same cannot be interfered with in a writ petition.
[637F G]
|
: Criminal Appeal No. 254 of 1976 (Appeal by Special Leave from the Judgment and Order dated 8 12 1975 of the Gujarat High Court in Crl Appeal No. 557 of 1976).
L.C. Goyal for the Appellant.
G.A. Shah and Miss Radha Rangaswamy for the Respondent.
The Judgment of the Court was delivered by KRISHNA IYER, J.
Judicial summitry, when the subject of dispute is re appraisal of evidence even on the sophisticat ed ground of misappreciation, has to submit itself to cer tain self restraining rules of 627 processual symmetry.
The trial Court directly sees the witnesses testify and tests their veracity in the raw.
The appellate Court, enjoying co extensive power of examination, exercises it circumspectly, looks for errors of probative appraisal, oversight or omission in the record and makes a better judgment on the totality of materials in the light of established rules of criminal jurisprudence.
As the case ascends higher, forensic review is more rarefied.
Such being the restrictive approach, the Supreme Court cannot be persuaded, without stultifying the system of our judicature, to go over the ground of reading the evidence and interpret ing it anew so as to uphold that which appeals to it among possible alternative views.
If there is perversity, miscarriage of justice, shocking misreading or gross misap plication of the rules, procedural and substantive, we interfere without hesitation.
Of course, other exceptional circumstances also may invoke our review jurisdiction.
These prefatory observations have become necessary since, usually appellants, hopefully slurring over these jurisdic tional limitations, argue the whole way before us as if the entire evidence is at large for de novo 'examination.
Such a procedure has been attempted in the present case and, for reasons just mentioned, we arc disinclined to rip open the depositions to re discover whether the evidence is reliable or not.
A single survivor figures as the appellant before us, from among four persons who were tried by the Sessions Court, Baroda, for .offences punishable under sections 302 read with section 34 IPC and section 135 of the Bombay Police Act.
Accused 3 and 4 secured acquittal before the Sessions Court and accused 2 won his appeal before the High Court.
Concurrent findings of guilt notwithstanding, the first accused has secured special leave by jail appeal.
Shri L.C. Goyal, appearing as amicus curiae, has urged before us that the appellant is entitled to acquittal like the re.st of the accused.
The few facts, to explain why we make short shrift of this case, may be narrated.
The murderous episode, preceded some days earlier by a minor incident, which took place on February 7, 1974at about 10.30 p.m.
The deceased Vasant and his friends were returning from the side of a cinema house, Krishna Talkies.
Sitting on the footpath and in keeping with the hour and the compa ny, the group took hot drinks, the deceased having consumed considerable potions.
The drunk was led by his comrades towards his house when a bunch of persons including the .four accused confronted them.
A tipsy altercation often sparks the plug of tantrums and violence.
Here the prosecution version is that accused No. 1 Baba and the deceased Vasant began the brawl with a heated verbal ex change, followed by mutual fisting but climaxed by the l st accused planting his knife on the left chest of the victim.
The others too joined in the attack, accused 2 with knife and accused 3 with fist.
The last man only shouted to incite them into giving blows.
Hardly had the victim Vasant fallen when the accused assailants took to their heels.
The injured was shortly hospitalised but soon succumbed to his wounds.
Eye witnesses testified, medical evidence was adduced and the homicide brought beyond reasonable doubt.
628 The trial court had framed charges with offences under section 302 read with section 34 IPC.
The post mortem certificate revealed two transverse incised wounds penetrating the chest cavity.
There were quite a few other incised wounds in less lethal parts of the anatomy.
However, in the opinion of the doctor all the injuries were antemortal and the chest wounds were sufficient in the ordinary course of nature to cause death.
The deceased passed away due to shock and haemorrhage caused by the stab wounds, especially on the chest.
Both the courts below have affirmed in substance the case set forth by the prosecution about the occurrence.
Concurrent findings of fact carry considerable weight at the Supreme Court level that to shake our credence is too demanding a forensic exercise.
Shri Goyal persistently drew us into the details of testimony to persuade us into a contrary conclusion from that recorded by the trial Court and, after due examination, approved by the High Court.
While the murder is the tragedy, the discovery of the murderer beyond doubt is the judicial function.
So much so, the essential enquiry turned on who the culprits were.
The learned Sessions Judge absolved accused nos.
3 and '4 of the offences on the score of absence of reliable evidence on record as regards any part played by accused nos.
3 and 4 '.
Nevertheless, he held accused nos.
1 and 2 to be guilty of jointly murdering Vasant taking the view that they 'had taken under and unfair advantage of the fact that the deceased was unarmed, and had acted in a cruel manner by inflicting 7 or '8 injuries with knives '.
The sentence that followed however was rigorous imprisonment for life on the ameliorative circumstance that the attackers had acted in the heat of passion.
The High Court,.
in fair discharge of its appellate function, sedulously studied the evidence bearing on the murder and the murderers.
Hardly any flaw in appreciation has emerged from the argument of the counsel for the appellant, in regard to the truth of the occurrence and nothing short of grave mistakes or palpable omissions can induce us to dissent from this finding.
Even so the High Court has been at great pains to screen the testimony with reference to their credibility, motivation and proba bility so that their finding may not be faulty on the score of insufficient evidence of involvement of any of the two accused.
Such a searching scrutiny yielded fruitful result for the second accused and he drew the dividend of acquittal at; the High Court level on account of mistakes of the 'might have been ' category.
We express no opinion as to whether every dubious 'maybe ' or passing hesitancy can be exalted to the level of 'reasonable doubt ' in criminal jurisprudence.
The conviction of the guilty is as much part of the administration of justice as the acquittal of the innocent.
The judicial art takes no sides where the truth is in fair measure manifest.
Anyway, accused No. 2 having been acquitted, we are concerned with the solitary, appel lant before us.
Counsel Shri Goyal pressed upon us what he regarded as a surefire contention that if there was no specific evidence of the appellant having inflicted the fatal stab on the chest he was entitled to share the 629 acquittal with the rest even if there was abundant proof of several persons including him having set upon the deceased and killed him using lethal weapons.
In the present case more than one knife was used, more than., one man was in the attacking party and more than one incised wound was inflict ed.
While we can make short work of the submission by holding, as we d9, that there is clear testimony that the chest stab which was fatal in the ordinary course was the handiwork of the appellant, we make the legal position clear that when a murderous assault by many hands with many knives has ended fatally, it is legally impermissible to dissect the serious ones from the others and seek to salvage those whose stabs have not proved fatal.
When people ' play with knives and lives, the circumstance that one man 's stab falls on a less or more vulnerable part of the person of the victim is of no consequence to fix the guilt for murder.
Conjoint complicity is the inevitable inference when a gory group animated by lethal intent accomplish their purpose cumulatively.
Section 34 IPC fixing constructive liability conclusively silences such a refined plea of extrication.
(See Amir Hussain vs State of U.P. C), Maina Singh vs State of Rajasthan(2).
Lord Sumner 's classic legal shothand for constructive criminal liability, expressed in the Miltonic verse 'They also serve who only stand and wait ' a Jortiori embraces cases of common intent instantly formed, triggering a plurality of persons into an adventure in criminality, some hitting, some missing, some spletting hostile heads, some spilling drops of blood.
Guilt goes with community of intent coupled with participatory presence or operation.
No finer juristic niceties can be pressed into service to nullify or jettison the plain punitive purpose of the Penal Code.
Counsel also argued that since three out of the four accused have secured acquittal the invocation of section 34 is impermis sible.
The flaw this submission is obvious.
The Courts have given the benefit of doubt of identity but have not held that there was only one assailant in the criminal attack.
The proposition is plain that even if some out of several accused are acquitted but the participating presence of a plurality of assailants is proved, the conjoint culpa bility for the crime is inescapable.
Not that the story of more than one person having attacked the victim is false, but that the identity of the absolved accused is not firmly fixed as criminal participants.
Therefore it follows that such of them, even if the number dwindled to one, as are shown by sure evidence to have knifed the deceased, deserve to be convicted for the principal offence read with the constructive provision.
We therefore hold that the appeal deserves to be and is hereby dismissed.
We appreciate the unsuccessful but industrious enthusiasm of Shri L.C. Goyal who has served as amicus curiae.
Before parting with this case we may draw attention to a sociological thought.
There is evidence in the case of high spirits and consumption of alcohol.
Intoxicating beverages subvert sobriety and (1) A.I.R. 1975 Sc7 2211.
(2) ; 630 the drinking habit which begins with enjoyment of exuberance escalates into consumption of intemperate potions by tempt ing degrees ultimately holding the bacchanalian votary captive.
The deleterious nexus between alcohol and violent crime is fairly obvious and these days, when drunken delicts and delinquencies are alarmingly on the increase, the State must be doubly concerned to control intoxicating liquors as part of the strategy of defusing crime explosion and as proof of bearing true faith and allegiance to article 47 of the Directive Principles of State Policy.
MR Appeal dis missed.
| IN-Abs | Four persons were tried by the Sessions COurt for of fences punishable under section 302 read with section 34 I.P.C. and section 135 of the Bombay Police Act.
Two of the accused were acquitted by the Sessions Court and one by the High Court, having been given the benefit of doubt of identity.
The appellant contended before this Court that there was no specific evidence of his having inflicted the fatal stab, and also that since three out of the four accused were acquitted the invocation of section 34 was impermissible.
The findings on the reliability of evidence were also ques tioned.
Dismissing the appeal, the Court HELD: (1) When a murderous assault by many bands with many knives has ended fatally, it is legally impermissible to dissect the serious ones from the others and seek to salvage those whose stabs have not proved fatal.
The cir cumstance that one man 's stab fails on a less or more vul nerable part of the person of the victim is of no conse quence to fix the guilt for murder.
section 34 I.P.C. fixes constructive liability in case of community of intent cou pled with participatory presence or operation, and even if some of several accused are acquitted but the participating presence of a plurality of assailants is proved, the con joint culpability for the crime is inescapable.
[629B D, F] Amir Hussain vs State of U.P.A.I.R. , Maina Singh vs Stare of Rajasthan, A.ER.
Classic legal sbortband for constructive criminal liability by Lord Sumner referred to.
(2) Only if there is perversity, miscarriage of justice, shocking misreading or gross misapplication of the rules, procedural and substantive, or other exceptional circum stances, the review jurisdiction of the Supreme Court may be invoked.
[627A C]
|
: Criminal Appeal No. 291 of 1971.
(Appeal by Special Leave from the Judgment and Order dated 19 1 1971 of the Allahabad High Court in Crl.
Case No. 412/ 70).
D.P. Uniyal and O.P. Rana, for the Appellant.
S.N. Singh, for the Respondent.
617 The Judgment of the Court was delivered by KRISHNA IYER, J.
Some cases, apparently innocent on their face and this appeal is one such may harbour beneath the surface profoundry disturbing problems concerning freedoms, the unfettered enjoyment of which is the foundation for a democracy to flourish.
The present appeal, by special leave, relates.
to the forfeiture of a book captioned 'Ramayan: A True Reading ' in English and its translation in Hindi, by the late political figure and leader of the Rationalist Movement, Periyar EVR, of Tamii Nadu, by an order of the State Government of Uttar Pradesh, purporting to be passed under section 99A of the Code of Criminal Procedure.
In the view of the appellantgovernment this book was sacrilegiously, outrageously objectionable, being 'deliberately and maliciously intended to outrage the religious feelings of a class of citizens of India, viz., Hindus by insulting their religion and religious beliefs and the publication whereof is punishable under section 295A IPC '.
This notification contained an appendix setting out in tabular form the particulars of the relevant pages and lines in the English and Hindi versions which, presumably, were the materials which were regarded as scandalizing.
Thereupon an 'application was made by the respondent who was the publisher, under section 99C of the Code, to the High Court which, by its special Bench, allowed the application and quashed the notification.
The aggrieved State has ap pealed to this Court, by special leave.
and counsel for the appellant has urged before us that the Government notifica tion does not suffer from the vice which, according to the High Court, invalidated it and that the impugned book makes a foul assault on the sacred sentiments of the vast Hindu population of the State since the author anthematised in unvarnished language the great incarnations like Sree Rama and disdainfully defiled the divinely epic figures like Sita and Janaka all of whom are worshipped or venerated by the Hindu commonalty.
Sidestepping this issue the High Court, by majority judgment, struck down the order on the short ground that 'the State Government did not state the grounds of its opinion as required in section 99A o[ the Code.
For that reason alone the petition has to be allowed and the order of forfeiture set aside in Court '.
The anatomy of section 99A falls to be studied at the thresh old so that the pathology, if any, of the impugned order may be discovered.
Shorn of phraseological redundancies (from the point raised in this case) the pertinent components of the provision, empowering forfeiture of materials manifest ing written expression by citizens, are threefold, as flow from a reproduction of the relevant parts: "99 A(1) Where (a) any newspaper, or book . or (b) any document, wherever printed, appears to the 'State Government to contain any . or any matter which promotes or is intended to promote feelings of enmity or hatred between different 618 classes of the citizens of India or which is delib erately and maliciously intended to outrage the religious feelings of any such class by insulting the religion or the religious beliefs of that class, that is to say, any matter the publication of which is punishable under section 124 A or Sec tion 153 A or Section 295 A of the Indian Penal Code, the State Government may, by notification in the official Gazette, stating the grounds of its opinion, declare every copy of the issue of the newspaper containing such matter, and every copy of such book or other document to be forfeited to Government. " The triple facets of a valid order therefore are: (i) that the book or document contains any matter; (ii) such matter promotes or is intended to promote feelings of ' enmity or hatred between different classes of the citizens.
of India; and (iii) a statement of the grounds of Government 's opinion.
Thereupon the State Government may, by notifica tion, declare every copy of the issue containing such matter to be forfeited.
Does the present notification fulfil the third requisite of legal viability or is it still born, being mortally wounded by absence of the statement of grounds ? The High Court holding this vital ingredient missing, has voided the order, but Sri Uniyal, counsel for the State, submits that though there is no express enunciation of the grounds for ' Government 's opinion, the appendix makes up for it.
He argues that the numbers of the pages and lines of the of fending publication supply both the 'matter ' and the 'grounds ', the latter being so patent that the.
omission is inconsequential.
More explicitly, the contention is that a mere reference to the matter, sufficiently particularised, functionally supplies, by implicit reading or necessary implication, the legal requirement of statement of grounds.
The office of furnishing the reason or foundation for the governmental conclusion is substantially, though not formal ly, fulfilled where the appendix, an integral part of the order, sets out self speaking materials.
When the grounds are self evident, silence is whispered speech and the law does not demand their separate spelling out as a ritualistic formality.
The counter contention is that express condi tions for barricading the fundamental freedoms of expression designedly imposed by the Code cannot be whittled down by the convenient doctrine of implication, the right being too basic to be manecled without strict and manifest compli ance with the specific stipulations of the provision.
After.
all fundamental rights are fundamental in a free Republic, except in times of national emergency, where rigorous restraints, constitutionally sanctioned, are clamped down.
We are dealing with the Criminal Procedure Code and Penal Code and these laws operate at all times.
We have therefore to interpret the law in such a manner that liberties have plenary play, subject of course to the secu rity needs of the nation, as set out in the Constitution and the laws.
619 Even so, counsel for the appellant contends that the references in the forfeited book, as indicated in the appen dix to the order, are so loudly repulsive and malevolently calumnous of Sree Rama, Sita and Janaka that the court must vicariously visualize the outraged feelings of the Hindus of Uttar Pradesh and hold that the grounds are written in the order in invisible ink.
When we assess the worth of this submission we have to notice (a) the constitutional per spective, i.e., whether the basic freedoms are sought to be legally handcuffed; and (b) the existence of alternative possibilities of popular understanding of the prescribed publication which necessitate some statement of the circum stances and the reasons which induced the government in the given conditions of ethos and otherwise to reach the opinion it has recorded.
The State, in India, is secular and does not take sides with one religion or other prevalent in our pluralistic society.
It has no direct concern with the faiths of the people but iS deeply obligated not merely to preserve and protect society against breaches of the peace and violations of public order but also to create conditions where the sentiments and feelings of people of diverse or opposing beliefs and bigotries are not so molested by ribald writings or offensive Publications as to provoke or outrage groups into possible violent action.
Essentially, good government necessitates peace and security and whoever violates by bombs or books societal tranquillity will become target of legal interdict by the State.
We propose to view the issue before us both from the textual angle and from the larger standpoint and are led to the conclusion, by an interaction of both, that the High Court was not wrong and the appeal must fail.
The various High Courts in India have had occasion to consider this question but have come to divergent conclusions.
as will presently appear.
A drastic restriction on the right of a citizen when imposed by statute, calls for a strict construction, especially when quasi penal consequences also ensue.
The imperial authors of the Criminal Procedure Code have drawn up section 99A with concern for the subject and cautionary man dates to government.
The power can be exercised only in the manner and according to the procedure laid down by the law.
Explicitly the section compels the government to look at the matter which calls for action to consider it as to the clear and present danger it constitutes in the shape of promoting feelings of enmity and hatred between different segments of citizens or as to its strong tendency or intendment to outrage the religious feelings of such segments (there are other proclivities also stated in the section with which we are not concerned for the present purpose) and, quite impor tantly, to state the grounds of its opinion.
We are con cerned with the last ingredient.
When the section says that you must state the grounds it is no answer to say that they need not be stated because they are implied.
you do not state a thing when you are expressively silent about it.
To state 'is to declare or to set forth especially in a precise, formal or authoritative manner; to say (something), especially in an emphatic way to assert ' (Random House Dictionary).
The conclusion is inescapable 8 1234SCI/76 620 that a formal authoritative setting forth of the grounds is statutorily mandatory.
If you laze and omit, the law visits the order with voidness and this the State Government must realize especially because forefeiture of a book for a penal offence is a serious matter, not a routine act to be executed with unconcern or indifference.
The wages of neglect is invalidity, going by the text of the Code.
These considerations are magnified in importance when we regard the changeover from the Raj to the Republic and the higher value assigned to the great rights of the people.
Where there is a statutory duty to speak, silence is lethal sin for a good reason disclosed by the scheme of the fasciculus.
of sections.
For section 99C enables the aggrieved party to apply to the High Court to set aside the prohibitory order and the Court examines the grounds of Government given in the order and affirms or upsets it.
The Court cannot make a roving enquiry beyond the grounds set forth in the order and if the grounds are altogether left out what is the Court to examine ? And, by this omission, careless or calculated, the valu able right of appeal to the Court is defeated.
A construc tion of the section, fraught with such pernicious conse quence and tampering with the basic structure of the statu tory remedy, must be frowned upon by the Court if the liber ty to publish is to be restricted only to the limited extent the law allows.
This reasoning is reinforced by Harnam Das vs State of U.P.(1) wherein this Court observed: "What then is to happen when the Government did not state the grounds of its opinion ? In such a case if the High Court upheld the order, it may be that it would have done so for reasons which the Government did not have in contemplation at all.
If the High Court did that, it would really have made an order of forfeiture itself and not upheld such an order made by the Government.
This, as already stated, the High Court has no power tO do under section 99 D.
It seems clear to us, therefore, that in such a case the High Court must set aside the order under section 99 D, for it cannot then be satisfied that the grounds given by the Government justified the order.
You cannot be satisfied about a thing which you do not know.
" We do not mean to say that the grounds or reasons link ing the primary facts with the forfeiter 's opinion must be stated at learned length.
That depends.
In some cases, a laconic statement may be enough, in others a longer ratioc ination may be proper but never laches to the degree of taciturnity.
An order may be brief but not a blank.
This conclusion establishes a constitutional rapport between the penal section 99A and the fundamental right article 19.
To relieve the State from the duty to state grounds of forfeiture, in the face of the words of section 99A, is to permit raptorial opportunity for use of such power over people 's guaranteed liberty.
Why do we say so ? Surely, security of the State and peace of society demand restrictions on indi vidual rights and we are the slaves of the law that we may be free.
(1) ; , 1666.
621 The fighting faith of our founding fathers respected Mills ' famous statement and Voltaire 's inspired assertion.
We quote: "If all mankind minus one were of one opin ion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind." (Mill in his essay 'on Liberty ', pp. 19 20: Thinker 's Library ed.
, Watts) "I disapprove of what you say, but I will defend to the death your right to.
say it." (Attributed to Voltaire in S.G. Tallentyre, The Friends of Voltaire, 1907) Rights and responsibilities 'are a complex system and the framers of our COnstitution, aware of the grammar of anarchy; wrote down reasonable restrictions on libertarian exercise of free doms.
Dr. Ambedkar, in the Constituent Assembly, argued that it is incorrect to say that fundamental rights are absolute and quoted from Gitlow vs New York two self speaking passages: "It is a fundamental principle, long estab lished, that the freedom of speech and of the press, which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever.
one may choose, or an unrestricted and unbridled licence that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom." X X X X X "That a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, invite to crime or dis turb the public peace, is not open to question . . " Section 99A of the Code, construed in this candescent constitutional conspectus, bears out our interpretation.
In the interests of public order and public peace, public power comes into play not because the heterodox few must be suppressed to placate the orthodox many but because every one 's cranium must be saved from mayhem before his cerebrum can have chance to simmer.
Hatred, outrage and like feel ings of large groups may have crypto violent proneness and the State, in its well grounded judgment, may prefer to stop the circulation of the book to preserve safety and peace in society.
No enlightened State, would use this power to suppress advanced economic views, radical rational criti cisms or fearless exposure of primitive obscurantism but ordered security is a constitutional value wisely to 622 be safeguarded if progressives and regressives are to peace fully coexist.
This is the spirit of section 99A of the Code.
The actual exercise will depend not on doctrinnaire logic but practical wisdom.
While the American theory of clear and present danger as the basis of restriction on fundamen tal rights does not necessarily apply in India, the illumi nating observations of Holmes J., serve to educate the administrator and Judge.
In Scheneck vs U.S.(1) Holmes J drove home the true test: "We admit that in many places and in ordinary times the defendants, in saying all that was said in the circular, would have been within their constitutional rights.
But the character of every act depends upon the circumstances in which it is done.
The law 's stringent protection of free speech, would not protect a man in falsely shouting 'fire ' in a theatre, and causing panic.
It does not even protect a man from an injunction against uttering words that may have all the effect of force.
The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evil that Congress has a right to prevent.
It is a question of proximity and degree.
" Developing this theory in a famous passage in Abrains vs U.S.(2) he said: "Persecution, for the expression of opinions, seems to me perfectly logical.
If you have no doubt of your pre mises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition.
To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises.
But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ulti mate good desired is better reached by free trade in ideas that the best test of truth is the power of the thought to get itself accepted in the compe tition of the market; and that truth is the only ground upon which their wishes safely can be carried out.
That at any rate, is the theory of our Constitution.
It is an experiment, as all life is an experiment.
" Again in Bowmen vs Secular Society Ltd.,(2) Lord Summer underscored the dynamism of liberty and safety at once luminous and, elegant, in a purple passage: (1) (1918)249 U.S.47.52=63 L.E.d.470.473 474.
(2) ; , 629=63 L. ed.
1173, 1180.
(3) , 466 7. 623 "The words, as well as the acts, which tend to endanger society differ from time to time in proportion as society is stable or insecure in fact, or is believed by its reasonable members to be open to assault.
In the present day meetings or processions are held lawful which a hundred and fifty years ago would have been deemed seditious and this is not because the law is weaker or has changed, but because, the times having changed, society is stronger than before.
In the present day reasonable men do not apprehend the dissolution or downfall of society because religion is publicly assailed by methods not scandalous.
Whether it is possible that in the future irreligious attacks, designed to undermine fundamental institutions of our society, may come to be criminal in themselves, as constituting a public danger, is a matter that does not arise.
The fact that opinion grounded on experience has moved one way does not in law pre clude the possibility of its moving on fresh expe riences in the other; nor does it bind succeeding generations, when conditions have again changed.
After all, the question whether a given opinion is a danger to society is a question of the times and is a question of fact.
I desire to say nothing that would limit the right of society to protect itself by process of law from the dangers of the moment, whatever that right may be, but only to say that, experience having proved dangers once thought real to be now negligible, and dangers once very possibly imminent to have now passed away, there is nothing in the general rules as to blasphemy and irreligion. which prevents us from varying their application to the particular circumstances of our time ni accordance with that experience.
" Such is our constitutional scheme, such the jurispruden tial dynamics and philosophical underpinnings of freedom and restraint, a delicate area of fine confluence of law and politics which judges by duty have to deal with.
The journey 's end has now arrived.
Government has the power and responsibility to preserve societal peace and to forfeit publications which endanger it.
But what is thereby prevented is freedom of expression, that promoter of the permanent interests of human progress.
Therefore, the law (section 99A) fixes the mind of the Administration to the obliga tion to reflect on the need to restrict and to state the grounds which ignite its action.
To fall here is to fault the order.
That is about all.
Before concluding, we clarify that we express no view on the merits of the book or its provocative vitriol.
It depends on a complex of factors.
What offends a primitive people may be laughable for progressive communities.
What is outrageous heresay for one religion or sect or country or time may be untouchably holy for another.
Some primitive people may still be outraged by the admonition of Swami Vivekananda : 'Our religion is in the kitchen, our 624 God is the cooking pot, and our religion is don 't touch me, I am holy ' (quoted at p. 339 by Jawaharlal Nehru in Discov ery of India).
The rule of human advance is free thought and expression but the survival of society enjoins reasonable curbs where public interest calls for it.
The balance is struck by governmental wisdom overseen by judicial review.
We speak not of emergency situations nor of constitutionally sanctified special prescriptions but of ordinary times and of ordinary laws.
A parting thought which we put to appellant 's counsel may be stated here.
If the State Government, judging by current circumstances, feels impelled to invoke section 99A against the book in question it is free to do so, subject of course to fulfilment of the requirement to state the grounds of its opinion and the operation of section 99C of the Code.
Our detailed discussion disposes of the question of law and resolves the conflict immanent or apparent in the rul ings of the various High Courts ranged against each other.
They are: Arun Ranjan Ghose vs The State of West Bengal(1); and Jwalamukhi vs State of A.P. (2) which support the view propounded by the appellant; and Mohammad Khalid vs Chief Commissioner(3); China Annamalai vs State(4) and Bennet Coleman & Co. Ltd vs State of J & K(5) which held with the Allahabad judgment under appeal.
Perhaps there is no need to discuss the ratio in each of the above cases as the rival points of view have been already covered in the earlier part of this judgment.
The possible invocation of the powers under section 99A of the Code of Criminal Procedure by various State Governments on several occasions induces us to enter a caveat.
Basic unity amidst diversity notwithstanding, India is a land of cultural contrarities, co existence of many religions and anti religions, rationalism and bigotry, primitive cults and materialist doctrines.
The compulsions of history and geography and the assault of modern science on the retreat ing forces of medieval ways a mosaic like tapestry of lovely and unlovely strands have made large and liberal tolerance of mutual criticism, even though expressed in intemperate diction, a necessity of life.
Governments, we are confident, will not act in hubris, but will weigh these hard facts of our society while putting into operation the harsh directives for forfeiture.
From Galileo and Darwin, ThOreau and Ruskin to Karl Marx, H.G. Wells, Barnard Shaw and Bertrand Russel, many great thinkers have been objected to for their thoughts and statements avoiding for a moment great Indians from Manu to Nehru.
Even today, here and there, diehards may be found in our country who are offended by their writings but no Government will be antediluvian enough to invoke the power to seize their great writings because a few fanatics hold obdurate views on them.
(1)I.L.R. (2) I.L.R. (3) AIR 1968 Delhi 18 (F.B.).
(4) AIR 1971 Madras 448 (FB).
(5) 625 A well known Mao thought aptly expresses the liberalist approach to divergent schools of philosophy: "Letting a hundred flowers blossom and a hundred schools of thought contend is the policy for promoting the progress of the arts and sciences.
" Haroll Laski, who influenced many Indian progres sives, in his 'A Grammar of Politics ' states a lasting truth: "There is never sufficient certitude in social matters to make it desirable for any govern ment to denounce it in the name of the State.
American experience of the last few years has made it painfully clear that there will never be present in constituted authority a sufficient nicety of discrimination to make R certain that the opinion attacked is one reasonably certain to give rise to present disorder.
" x x x x x x "It is no answer to this view to urge that it is the coronation of disorder.
If views which imply violence have a sufficient hold upon the State to disturb its foundations, there is some thing radically wrong with the habits of that State.
" x x x x x x x "Almost always there are rare cases in which persecution has proved successful the result of free expression is such a mitigation of the condi tion attacked as to justify its use; almost always, ' also, to prohibit free speech is to drive the agitation underground.
What made Voltaire dangerous to France was not his election to the Academy, but his voyage to England.
Lenin was infinitely more dangerous to.
Czarist Russia in Switzerland than he would have been in the Dume.
Freedom of speech, in fact, with the freedom of assembly therein implied, is at once the kathersis of discontent and the condition of necessary re form.
A government can always learn more from the criticism of its opponents than from the eulogy of its supporters.
To stifle that criticism is at least ultimately to prepare its own destruction.
" A note of circumspection.
In the current context of constitutionally proclaimed emergency, the laws have perforce to act in the narrow limits inscribed in the Emergency provisions and this decision relates to the pre Emergency legal order.
We dismiss the appeal.
| IN-Abs | The appellant Government passed an order under Section 99 A of the Cr.
P.C., for the forfeiture of a book entitled 'Ramayan: A true Reading ' in English and its translation in Hindi, by Periyar EVR, of Tamil Nadu, on the ground that the book intended to outrage the religious feelings of a class of citizens of India, namely, the Hindus.
Thereupon, an application was made by the respondent publisher of the book.
under Section 99 C of the Code to the High Court, which by its special Bench, allowed the application and quashed the notification on the ground that the State Gov ernment had failed to state the grounds of its opinion as required in Section 99 A of the Code.
The appellant contended that a specific statement of grounds by the Government, is not a mandatory requirement under Section 99 A of the Cr.
P.C., & that it can be made by implication.
Dismissing the appeal, the Court HELD: To relieve the State from the duty to state grounds of forfeiture, is to permit raptorial opportunity for use of such power over people 's guaranteed liberty.
Section 99 A says that you must state the ground and it is no answer to say that they need not be stated because they are implied.
An order may be brief but not a blank.
A formal authoritative setting forth of the grounds is statu torily mandatory.
Section 99 C .enables the aggrieved party to apply to the High Court to set aside the prohibitory order and the Court examines the grounds of Government given in the order.
The Court cannot make a roving enquiry beyond the grounds sefforth in the order and if the grounds are altogether left out, the valuable right of appeal to the Court is defeated.
[610G H, 620B C, G H] Harnam Das vs State of U.P.A.I.R. , 1666 dictum applied.
Scheneck vs
U.S. ; , 527_ 63 L.ed.
470, 473 474: Abrams vs U.S. ; , 629=63 Led.
1173, 1180; Bowmen vs Secular Society Ltd. , 466 7; Arun Ranjan Ghosh vs State of West Bengal (I.L.R. , Jwalamukhi vs State of A.P. (I.L.R. referred to.
Mohammad Khalid vs Chief Commissioner (A.I.R. 1968 Delhi 18 FB) Chinna Annamalai vs State (A.I.R. 1971 Madras 448 F.B.), Bennet Coleman & Co. vs State of J & K (1974 J & K .L.R. 591) approved.
|
vil Appeal No. 1838 of 1969.
Writ Petition Nos.
483 487 of 1974 (From the Judgment and Order dated 2nd August 1968 of the Madras High Court in Writ Petition No. 416/67).
632 Civil Appeal No. 608 of 1973 (From the Judgment and Order dated 11th April 1972 of the Madras High Court in Tax Case No. 44/72).
K.S. Ramamurthi, V. Nataraj, C. Natarajan and D.N. Gupta for the appellant/petitioners.
S.T. Desai for RR.
1 & 2 in CA 1838/69 and Writ petitions.
A. V. Rangam and Miss A. Subhashini, for respondents in CA 608/73.
S.N. Prasad, R.N. Sachthey and Girish Chandra, for R. 3 in CA 1838 of 1969 and Writ petitions.
D.N. Mukherjee, G.S. Chatterjee and D.P. Mukherjee, for respondent No. 4 in writ petitions.
S.C. Manchanda and O.P. Rana, for respondent No. 5 in Writ petitions.
M.C. Bhandare and M.N. Shroff, for respondent No. 6 in Writ petitions.
The Judgment of, the Court was delivered by RAY, C.J. These two appeals by certificate and the writ petitions turn on the question whether the contract for sale of goods was an inter State sale or an intra State sale.
The appellant is a company having its registered office at Calcutta. 'There are branches at Bombay, Delhi, Madras and Lucknow.
The main factory is at Madras.
In order to appreciate the real controversy it is neces sary to refer to the facts of one of the Civil Appeals as a pattern of transaction.
In Civil Appeal No. 1838 of 1969 Asha Metal Works of Bombay referred to as the Bombay buyer wrote to the Bombay branch of the appellant asking for lowest quotation of certain goods.
The Madras branch which has the principal factctory there for manufacture of goods was written to by the Bombay branch.
The Madras branch wrote to the Bombay branch quoting the prices F.O.R. Madras.
The Bombay branch then wrote to the Bombay buyer that the ' price was F.O.R. Madras and delivery would be ex works Madras.
The Bombay buyer thereupon placed the order with the Bombay branch.
On these facts counsel for the appellant contended that the sale was at Bombay inasmuch as the Bombay buyer placed the firm order at Bombay, payment was to be made at Bombay, railway receipt was in the name of the Bombay branch and the goods were to be delivered at Bombay.
It was emphasised that there was no contract or privity between the Madras branch and the Bombay buyer but the privity was only with the Bombay branch.
633 The only question is whether the sale was an inter State sale or a sale at Bombay.
If the movement of the goods from Madras to Bombay was an incident of or occasioned by the sale itself it would be taxable under section 3(a) of the Central Sales Tax Act.
There was not and there could not be any contract of sale between the factory of the seller appellant at Madras branch and the Bombay branch of the appellant.
It is obvi ous that the Bombay branch is the agent of the seller appel lant.
The appellant could not be the buyer as well as the seller.
The contention of the appellant is that the goods were sent by the factory at Madras branch to the Bombay branch and thereafter the goods were sold by the Bombay branch to the Bombay buyer.
The sale as well as the movement of the goods from Madras to Bhandup at Bombay was a part of the same transac tion.
The movement of the goods from Madras to Bhandup was integrated with the contract of sale for the following reasons.
The Bombay branch received the Bombay buyer 's order and sent the same to the Madras branch factory.
When the Bombay buyer asked for quotation of prices the Bombay branch wrote to the Madras branch and gave all the specifi cations and stated that the 'goods were for the Bombay buyer.
The Madras branch in reply referred to the order of the Bombay buyer and gave particulars mentioning that the price was F.O.R. Madras.
The Bombay branch thereafter wrote to the Bombay buyer reproducing all the particulars, condi tions of sale and mode of despatch as stated by the,Madras branch and further stated that the goods would be manufac tured at the Madras branch factory.
It is important to note that all prices were shown F.O.R. Madras and it was further stated that all goods would be despatched at the risk of the Bombay buyer.
It is in this context that the Bombay buyer on 27 May, 1964 placed an order with the Bombay branch accepting all the terms and conditions.
The Bombay branch placed an indent order ad dressed to the Madras branch giving all the particulars and stated the buyer 's name as Asha Metal Works, Bombay and gave the customer 's order number and the date viz., 27 May, 1964.
The goods were to be invoiced to the Bombay branch and the goods were to be despatched F.O.R. Madras.
The Bombay branch wrote to the Bombay buyer on 28 August 1964 that they had received an invoice from the factory at the Madras 'branch that some of the goods against the order of the Bombay buyer were ready for despatch.
The Bombay branch asked the Bombay buyer to give the details of des patch and insurance instructions per return of post.
The Bombay branch thereafter wrote to the Madras branch factory stating "Please despatch the equipment covered by our above ' indent by goods train to Bhandup Railway Stastion freight to pay.
The Railway Receipt and other documents to be sent to us for disposal".
The Madras branch factory despatched the goods from Madras to Bombay by goods train and gave intima tion to the Bombay 'branch.
The goods were delivered to the Bombay buyer at Bhandup through clearing agents.
634 The goods were despatched from Madras at the risk of the buyer to Bombay.
The goods were insured and insurance charges were collected from the buyer at Bombay.
The freight charged from Madras to Bombay was borne by the buyer.
The movement of the goods from Madras was an inci dent of the contract of sale.
Counsel for the appellant contended that there was no privity between the Madras branch and the Bombay buyer but that the privity was only between the Madras branch and the Bombay branch.
It was also said that the Bombay branch was an independent and separate entity and the direct contract was between the Bombay branch and the Bombay buyer and the Madras factory were not parties to the contract.
The appellant has branches at different places.
The appellant company is one entity and it carries on business at different branches.
Branches have no independent and separate entity.
Branches are different agencies.
The contract of sale is between the appellant company and the Bombay buyer.
The appellant in the present case sent the goods direct from the Madras branch factory to the Bombay buyer at Bhand up, Bombay.
The railway receipt was in the name of the Bombay branch to secure payment against delivery.
There was no question of diverting the goods which were sent to the Bombay buyer.
When the movement of goods from one State to another is an incident of the contract it is a sale in the course of inter State sale.
It does not mater in which State the property in the goods passes.
What is decisive is whether the sale is one which occasions the movement of goods from one State another.
The inter State movement must be the result of a covenant, express or implied, in the contract of sale or an incident of the tract.
It is not necessary that the sale must precede the inter State move ment in order that the sale may be deemed to have occasioned ,such movement.
It is also not necesary for a sale to be deemed have taken place in the course of inter State trade or commerce, that the covenant regarding inter State move ment must be specified in the contract itself.
It will be enough if the movement is in pursuance and incidental to the contract of sale.
When a branch of a company forward a buyer 's ,order to the principal factory of the company and instructs them to despatch the goods direct to the buyer and the goods are sent to the buyer under those instructions it would not be a sale between factory and its branch. ' If there is a conceivable link between the movement of the goods and the buyer 's contract, and if in the course of inter State move ment the goods move.
only to reach the buyer in satisfaction of his contract of purchase and such a nexus is otherwise inexplicable, then the sale or purchase of the specific or ascertained goods ought to be deemed to have been taken place in the course of inter State trade or commerce as such a sale or purchase occasioned the movement of the goods from one State to another.
The presence of an intermediary such as the seller 's own representative or branch office, who initiated the contract may not make the matter different.
Such an interception by a 635 known person on behalf of the seller in the delivery State and such person 's activities prior to or after the implemen tation of the contract may not alter the position.
The steps taken from the beginning to the end by the Bombay branch in co ordination with the Madras factory show that the Bombay branch was merely acting as the intermediary between the Madras factory and the buyer and that it was the Madras factory which pursuant to the covenant in the contract of sale caused the movement of the goods from Madras to Bombay.
The inter State movement of the goods was a result of the contract of sale and the fact that the contract emanated from correspondence which passed between the Bombay branch and the company could not make any differ ence.
For the foregoing reasons the appeals are dismissed.
The writ petitions are also dismissed.
There. will be no order as to costs.
It will be open to the appellant to apply for refund, if any, if permissible at law.
S.R. Appeals dismissed.
| IN-Abs | The appellant company having its registered office at Calcutta, with branches at Bombay, Delhi, Lucknow, has a principal factory Cum branch at Madras.
The registered office and the various branches are registered as dealers both under the Central Sales Tax Act and the local Sales Tax Acts.
The appellant company in respect of the assessment year 1965 66, did not include a sum of Rs. 21.88,540.41 in its turnover in the return filed under the Central Sales Tax Act on the ground that the turnover represented sales out side the State of Madras.
The said sale related to a Bombay buyer who placed the order with the Bombay branch of the appellant company after it was informed by the said branch in consultation with the Madras branch factory that the price was f.o.r.
Madras at the buyer 's risk and that the delivery would be ex works, Madras.
The Bombay buyer was also informed by the Bombay branch of all the particulars, condition of sale, the fact that the goods would be manufac tured at the Madras branch factory and would be supplied by the Madras Branch etc.
as advised by the Madras branch to the Bombay branch.
The respondent treated it as inter State sale under section 3(a) of the Central Sales Tax Act and issued a notice of demand whereupon the appellant filed an applica tion under article 226 of the Constitution in the Madras High Court praying for a writ of Prohibition restraining the respondents from taxing and/or including in the turnover for the purposes of assessment for the year 1965 66.
The said petition was dismissed.
Dismissing the appeals by certificate, the Court.
HELD: (1) When the movement of the goods from one State to another is an incident of the contract it is a sale in the course of inter State sale.
It does not matter in which State the property in the goods passes.
What is decisive is whether the sale is one which occasioned the movement of goods from one State to another. 'the inter State movement must be the result of a covenant, express or implied in the contract of sate or an incident of the contract.
It is not necessary that the sale must precede the inter State move ment in order that the sale may be deemed to have occasioned such movement.
It is also not necessary for a sale to be deemed to have taken place in the course of inter State trade or .commerce, that.the covenant regarding inter State movement must be specified in the contract itself.
It will be enough if the movement is in pursuance of 2nd incidental to the contract of sale.
[634D E] (2) Branches have no independent and separate entity.
Branches are different agencies.
In the instant case, the contract of sale is between the appellant company and the Bombay buyer.
[634C]
|
Civil Appeal No. 783 of 1975.
Appeal by special leave from the judgment and order dated the 9th April 1975 of the Allahabad High Court in Application No. A. 7 ion Petition No. 22 of 1974.
R K. Garg, section C. Agarwala and V. J. Francis, for the appellant.
D. Mukherjee and Pramod Swarup, for respondent No. 1.
The Judgment of the Court was delivered by SARKRIA J.
We have already announced our order in this appeal on the 2nd May 1975.
We now proceed to give our reasons therefor.
193 The appellant, Shri Ram Autar Singh Bhadauria.
Respondent No. 1 Chaudhari Ram Gopal Singh and Respondents 2 to 11 contested election, as rival candidates from U. P. Legislative Assembly Constituency (No. 293), Sarsaul.
The poll was held on 24 2 1974.
The appellant was declared elected.
The total number of votes polled was 72735.
Out of these, the appellant secured 23626 and Respondent 1, his nearest rival polled 23604, the margin being of 22 votes only.
Respondent 1 filed an election petition challenging the election of the appellant inter alia on the ground (vide para 9(1) of the petition) that the result of the election so far as the returned candidate was concerned materially affected by improper reception and rejection of votes and mistakes in counting.
It was alleged: "para 11(a).
That in a number of polling stations, the instruments supplied to the electors for the purposes of stamping on or near the symbol of the candidate to whom he intends to vote, was seal of Presiding officer which was meant to be put on the reverse of the ballot papers.
Since the electors were supplied these instruments by the Presiding officer for marking the ballot papers the electors indicated their choice by marking in the column of the petitioner with that instrument.
There were 41 such ballot papers which were clear votes for the petitioner that were illegally rejected by the Presiding officer on the ground that the electors ' choice was expressed through the instrument meant for the Presiding officer for stamping on the reverse side of the ballot papers.
Particulars of such ballot papers are given in Schedule I attached to the Election Petition.
(b) That in a number of polling stations, the electors were issued ballot papers along with the counter foil.
While issuing the ballot papers to the electors, the polling staff .
deputed there did not detach the counter foil and the electors after putting seal mark put the ballot papers along with the counter foil in the ballot box.
It was due to the mistake of the staff deputed at the polling station.
The number of some of such ballot papers are 100976, 100977, 100978, 100979, 100980, 100982, 100983 and 100984.
These ballot papers clearly indicate the votes for the petitioner but they were illegally rejected on the ground that the identity of the elector can be established.
The reason on which it was rejected was wholly illegal.
The particulars of such bal lot papers are given in Schedule IT attached to this election petition.
" In his written statement, the successful candidate stated: "65(1).
That the contents of paragraph No. 9(1) of the Election Petition are not admitted.
The result of the election in so far as the answering respondent is concerned has not been materially affected by any improper reception or 194 rejection, or by wrong arithmetical and clerical mistake in counting of votes and/or counting and acceptance of void votes in favour of the answering respondent.
In fact no improper reception or rejection or arithmetical mistake or any clerical mistake was done in favour of the answering respondent 16.
That the contents of paragraph No. 11 (a) of the petition are wrong and denied.
It is wrong to say that 41 ii ballot papers mentioned in Schedule I or any ballot paper counted in favour of the respondent No. 1 by marking with the seal of the Presiding officer.
It is admitted that the ballot papers on which unauthorised seal was found were rejected.
Some of these rejected ballot papers may be of the petitioner but most of them were of respondent No. 1 and other contesting candidates.
That the contents of para 11 (b) of the petition and Schedule II are not admitted as stated.
Only on one polling station, due to the mistake of the Presiding officer some bal lot papers were issued along with their counter foils.
The counterfoils did contain the name and signature or thumb impression of the voters attached to the ballot paper.
In these circumstances such ballot papers were rejected by the Returning officer.
It is submitted that such ballot paper were in respect of all the candidates including the respondent No. 1.
Further, no such objection was raised at the time of counting by the Petitioner or his election agent and/or his counting Agent.
That no different criteria was adopted by the Returning officer in the matter of acceptance or rejection of ballot papers and the respondent No. 1 maintains that many ballot papers in which the Electors expressed their choice in favour of the respondent No. 1 by putting the seal of the Presiding officer as supplied by the Presiding officer, were wrongly rejected during the counting by the Returning officer.
" Respondent 1 did not adduce any evidence in support of the allegations extracted above.
But on 24 2 1975, he made an application before the High Court, praying for scrutiny and recount of the ballot papers.
The allegations in para 11(a) and (b) of the election petition were reiterated in the application.
The appellant in reply filed a counter affidavit which was substantially a reproduction of his reply in the written statement.
The learned Judge of the High Court by his order, dated 9 4 1975, allowed that application and directed scrutiny and recount of ballot papers on the view that: (a) The appellant "was declared to have won by a very small margin of only 22 votes".
195 (b) "lt is not in dispute that a number of ballot papers were rejected by the Returning officer as invalid be cause the polling staff of a particular polling station forgot to detach the counter foils of a number of ballot papers.
As the counter foils contained the identity of the voters, the ballot papers were rejected for no fault of the voters, but because of negligence or incompetence on the part of the polling staff".
(c) "It is also the admitted case of the parties that a number of ballot papers were rejected because the voters cast their votes by putting their mark not with the marking instrument issued by the Election Com mission but with the marking or stamping instrument issued by the Election Commission for the use of the Presiding officers.
This happened because instead of the instrument which the polling staff should have given to a voter to put the mark showing for which candidate he wanted to vote, the polling staff by mis take handed over to the voter the stamp meant for the Presiding officer. to affix on the back of the ballot paper.
" (d) lt "The petition, the written statement, the recriminatory petition filed by the respondent (now appellant) and the reply thereto filed by the petitioner would show that this is a case in which both parties have pleaded that there was wrong reception, rejection and u counting of votes.
" It is against this order, dated 9 4 75 of the High Court that this appeal has been filed by the returned candidate after obtaining special leave.
Having heard learned Counsel on both sides, we are or opinion that the order made by the High Court for a general scrutiny and re count of all the ballot papers cast at the election, was not justified.
The returned candidate had not categorically and specifically admitted the allegations made in the election petition with regard to the improper rejection of the ballot papers.
This will be clear from a comparative reading of Paragraph 11 (a) and (b) of the petition and the answers thereto given in the written statement, which have been reproduced above verbatim.
It is to be noted that the reply of the returned candidate to the contents of the aforesaid sub paras (a) and (b) starts with a denial or a non admission.
Such a traverse is then followed by qualified and vague admissions that some ballot papers were rejected because they were not marked with the instrument meant for this purpose, or bore the names or signatures of the voters on the counter foils that remained attached to them, owing to the mistake of the Presiding Officer.
After having thus replied to the petitioner 's allegations, the returned candidate said that most of these rejected 196 ballots had been cast for him and not for the petitioner.
This was a counter assertion which was not, strictly speaking, relevant to the case set up in the petition.
Mr. Mukherjee, learned Counsel for Respondent 1 (election petitioner) has drawn our attention to the "Additional Pleas" in the written statement of the appellant.
According to Counsel it were these pleas, more than anything else, that led to the finding "that this is a case in which both parties have pleaded that there was wrong reception, rejection and counting of votes.
" We will discuss this aspect of the case a little later.
At this place it will be sufficient to say that since the returned candidate in his written statement did not specifically and fully admit all the facts alleged in Paragraph 11 (a) and (b) of the petition, the Court could not dispense with proof of those facts altogether.
For instance, in reply to the facts alleged in Para 11 (a) of the petition, the returned candidate did not admit that the instrument with which such rejected ballot papers were found stamped, was supplied by the Presiding officer.
On the contrary, the reply to sub para (a) begins with a clear traverse: "that the contents of paragraph No. 11 (a) of the petition are wrong and denied".
This denial notwithstanding, the learned Judge appears to have erroneously assumed this fact as admitted by the returned candidate.
The parties being at variance on this material point, this issue of fact was required to be proved by the party alleging lt.
Now, we come to the finding of the learned Judge as to the wrong reception and rejection of votes being a common ground between the parties.
We have catalogued this finding as ground (b) which is one of the four pillars on which the impugned order rests.
This ground, according to Mr. Mukherji, draws particulars support from the "Additional Pleas" set up in the written statement.
We do not propose to over burden this judgment by reproducing all that has been stated in Paragraph 47 to 56 of the written statement under the caption "Additional Pleas".
It will be sufficient to extract some of it by way of sample : "47.
That the Returning officer did not allow any improper acceptance or rejection against the interest or the election petitioner, rather mistakes of improper acceptance and rejection of ballot papers were done against the interests of the answering respondent.
That many ballot papers which bore the major portion of the stamp mark within the column of the Respondent No. 1 were wrongly rejected by the Returning officer at the time of counting.
That as in the case of the Election Petitioner the Ballot Papers in favour of the Respondent No. 1 with which counterfoils were attached were rejected.
In case the Hon 'ble Court finds that similar ballot papers in favour of 197 the election petitioner are to be accepted, the ballot papers in favour of the Respondent No. 1 in the same condition should also be accepted and counted as valid votes in favour of the Respondent No. 1.
That many ballot papers containing votes in favour of the Respondent No. 1. were wrongly put in the bundles of the votes in favour of the Election Petitioner.
That the bundles of ballot papers in favour of the Respondent No. 1 in fact contained more than SO ballot papers and there was thus wrong counting.
I say that the Respondent No. 1 filed application before the Returning officer on 27 2 74 but the Returning officer without considering the submissions made therein rejected it and did not order for recount.
" If we may say so with respect, in taking these Additional Pleas into account, the learned Judge completely misdirected himself.
He overlooked the fact that these Pleas were irrelevant to and beyond the scope of the enquiry into the allegations in the election petition falling under section 100(1)(d)(iii) of the Representation of the people Act, 1951.
These "Additional Pleas" were in the nature of recriminatory` pleas which could not be investigated in this election petition.
As clarified by this Court in Jabar Singh vs Genda Lal(1), the scope of the inquiry in a case under section 100(1) (d) (iii) is to determine whether any votes had been improperly cast in favour of the returned candidate or any votes had been improperly refused or rejected in regard to any other candidate.
These are the only two matters which would be relevant for deciding whether the election of the returned candidate had been materially affected or not.
At such an enquiry the burden is on the petitioner to prove his allegations.
In fact section 97(1) of the Act has no application to a case falling under section 100(1) (d) (iii).
The scope of the enquiry is limited for the simple reason that what the clause requires to be considered, is, whether the election of the returned candidate has been materially affected and nothing else.
It is true that in a composite election petition wherein the petitioner claims not only that the election of the returned candidate is void but also that the petitioner or some other person be declared to have been duly elected, section 97 would also come into play and allow the returned candidate to recriminate and raise counter pleas in support of his case, "but the pleas of the returned candidate under section 97 have to be tried after a declaration has been made under section 100 of the Act.
The first part of the enquiry in regard to the validity of the election of the returned candidate has therefore to be tried within the narrow limits prescribed by section 100(1) (d) (iii) and the latter part of the enquiry governed by section 101 (a) will have to be tried on a broader basis permitting the returned candidate to lead evidence in support of the please taken by him in his recriminatory petition; but even in such a case the 198 enquiry.
necessary while dealing with the dispute under section 101 (a) will not be wider if the returned candidate has failed to recriminate and in a case of this type, the duty of the Election Tribunal will not be to count and scrutinise all the votes cast at the election.
Moreover, in the instant case, it is a matter of controversy to be decided as to whether the recriminatory petition filed by the appellant is within time or not.
The above being the law on the point, it is clear that the learned Judge was in error in ordering general inspection and recount of the total votes polled at the election, merely because in these Additional Pleas the returned candidate also had by way of recrimination, complained of wrong reception and rejection of votes and wrong counting of votes.
The pleas at this stage could not be investigated even in the recriminatory petition filed by the returned candidate.
They were beyond the scope of the enquiry into the petitioner 's case which (as set up in Para 11 of the petition) fall under section 100(1)(d)(iii) of the Act Further, the High Court did not properly apply its mind to the question, whether on the facts alleged in Para 11 (a) and (b) of the petition assuming the same to be correct a prima facie case for improper rejection of The 50 ballot papers referred to therein, had been made out.
In other words, if the defects in these SO ballot papers were attributable to the mistakes or negligence of the Presiding officer or his staff, would it take those ballot papers out of the mischief of clauses (a) and (b) of Rule 56(2) of the Conduct of Election Rules, 1961 Rule 56 runs thus: "(1) Subject to such general or special directions, if any, as may be given by Election Commission in this behalf, the ballot papers taken out of all boxes used in a constituency shall be mixed together and then arranged in convenient bundles and scrutinised.
(2) The returning officer shall reject a ballot paper (a) if it bears any mark or writing by which the elector can be identified, or (b) if, to indicate the vote, it bears no mark at all or bears a mark made otherwise than with the instrument supplied for the purpose, or (c) if votes are given on it in favour of more than one candidate, or (d) if the mark indicating the vote thereon is placed in such manner as to make it doubtful to which candidate the vote has been given, or 199 (e) if it is a spurious ballot paper, or (f) if it is so damaged or mutilated that its identity as a genuine ballot paper cannot be established, or (g) if it bears a serial number, or is of a design different from the serial numbers, or, as the case may be, design, or the ballot papers authorised for use at the particular polling station, or (h) if it does not bear (both, the mark and the signature) which it should have borne under the provisions of sub rule (1) of rule 38; Provided that where the returning officer is satisfied that any such defect as is mentioned in clause (g) or clause (h) has been caused by any mistake or failure on the part of a Presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect; Provided further that a ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or made more than once, if the intention that the vote shall be for a particular candidate clearly appears from the way the paper is marked.
(3) to (5): . .
(6) Every ballot paper which is not rejected under this rule shall be counted as one valid vote: Clauses (a) and (b) of Rule 56(2) are referable to Rule 38 which requires every elector to whom ballot paper has been issued under Rule 38 to maintain secrecy of voting and "to make a mark on the ballot paper with the instrument supplied for the purpose on or near the symbol of the candidate for whom he intends to vote.
" Rule 38 is also relevant.
This Rule requires every ballot paper and the counterfoil attached thereto to be stamped on the back by the Presiding officer with such distinguishing mark as the Election Commission may direct.
Every such ballot paper before it is issued is required to be signed in full on its back by the Presiding officer.
Sub rule (2) requires that at the time of issuing of ballot paper, the Polling officer shall on its counterfoil record the electoral roll number of the elector and obtain his signature or thumb impression.
The object of these rules is to secure not only the secrecy of the ballot but also to eliminate chances of sharp practices in the conduct of elections.
Their requirements are therefore mandatory, and a defect arising from their non observance inexorably entails rejection of the defective ballot paper except to the extent covered by the Provisions to Rule 56(2).
200 In the case of 41 ballot papers mentioned in para 11(a), what happened was that instead of marking those ballot papers with the instrument supplied for this purpose by the Election Commission the electors concerned stamped it with the instrument meant to be used exclusively by the Presiding officer for stamping the counterfoils and lacks of the ballot papers.
The Court had to apply its mind as to whether these facts by themselves were sufficient to attract Rule 56 2 (b) ? This question would further resolve itself into two issues: (i) Was the stamping instrument with which these electors "marked" the ballot papers, given to them by the Presiding officer cr any member of his staff ? (ii) If so, could these ballot papers be deemed to have been marked with "the instrument supplied for the purpose" within the contemplation of Rules 38 and 56(2)(b) ? The first one was an issue of fact, the determination of which would depend on evidence.
The second issue would arise only on proof of tile first, and involve the question of interpreting and applying the phrase "instrument supplied for the purpose".
This phrase is capable two interpretations one narrow and literal, and the other liberal and contextual.
Without there being any proof of the fact that the stamping instrument was handed over to the 41 electors by the Presiding officer/Polling officer, a final expression of opinion on our part would be academic and premature.
It will be sufficient to reiterate that the provisions of Rules 38 and 56(2) (a) and (b) with which we are concerned in this case are mandatory and strict compliance therewith is essential.
Once it is established that the fault specified in clauses (a) or (b) of Rule 56(2) has been committed, there is no option left with the Returning officer but to reject the faulty ballot paper.
We would further make it clear that even if any such defect as is mentioned in clauses (a) or (b) of Rule 56 is caused by any mistake or failure on the part of the Returning officer or Polling Officer, the Returning officer would be bound to reject the ballot paper on the ground of such defect.
That such is the imperative of Rule 56(2) is clear from the fact that the said clauses (a) and (b) have advisedly been excluded from the first Proviso to Rule 56(2) which gives a limited discretion in the matter of rejection to the Returning officer only where the defect is of a kind mentioned in clauses (g) and (h) of this sub rule.
In the view that such Rules relating to the conduct of elections, are required to be observed strictly, we are fortified by the ratio of this Court 's decision in Hari Vishnu Kamath vs Syed Ishaque and ors.(1) In That case, voters for the House of the People in Polling Stations Nos. 316 and 317 in Sobhapur were given ballot papers with brown bar intended for the State Assembly, instead of ballot papers with green bar which had to be used for the House of the People.
The total number of votes so polled was 443, out of which, 62 were in favour of the then appellant, 301 in favour of the first respondent therein and the remaining in favour of the other candidates.
Rule 47(1)(c) of the Conduct of the Election Rules, 1951 provided that "a ballot paper contained in a ballot box shall be rejected if it bears 201 any serial number or mark different from the serial number or marks of ballot papers authorised for use at the polling station or the polling booth at which the ballot box in which it was found, was used.
" The election petitioner contended that in accordance with this rule, the ballot papers received at the two polling stations, not having the requisite mark; should have been excluded.
The returned candidate pleaded that the Returning officer had rightly accepted 301 votes be cause Rule 47 was directory and not mandatory.
It was contended that the electors were not at fault and that the wrong ballot papers were issued due to the lapse on the part of the Returning officer and that to reject the votes of the electors for the failure of the Polling officer to deliver the correct ballot papers under Rule 23 would be to disfranchise them, and that a construction which involve such a consequence should not be adopted.
This Court repelled the contention in these terms: "If the word 'shall is thus to be construed in a mandatory sense in Rule 47(1) (a), (b) and (d), it would be proper to construe it in the same sense in Rule 47(1) (c) also.
There is another reason which clinches the matter against the 1st respondent.
The practical bearing of the distinction between a provision which is mandatory and one which is directory is that while the former must be strictly observed in the case of the latter it is sufficient that it is substantially complied with.
How is this rule to be worked when the Rule provides that a ballot paper shall be rejected ? There can be no degrees of compliance so far as rejection is concerned, and that is conclusive to show that the provision is mandatory.
" The above observations are apposite.
Judged by the guiding principle enunciated therein, it can safely be said that the provisions of rule 56(2) (a) and (b) read with Rule 38, are mandatory and not merely directory.
It was contended by the learned Counsel for the respondent before us, that the Provisos to sub rule (2) of Rule 56 are only illustrative and not exhaustive, and consequently, the principles underlying these Provisos would give a discretion to the Returning Officer not to reject a ballot paper on the ground of a defect caused by mistake or negligence of the Presiding officer/or Polling officer, notwithstanding that such defect is one mentioned in clauses (a), (b), (c), (d), (e) and (f) of Rule 56(2).
This contention is not tenable.
The word 'shall ' used in the opening Part of sub rule (2) read in the context of the general scheme of this Rule shows that it is mandatory.
Sub rule (5)puts the matter beyond doubt.
It says that "every ballot paper which is not rejected under this sub rule shall be counted as one valid vote".
Rule 56 is a complete code by itself.
The Provisos to Sub rule (2) are exhaustive of the kinds of defects which the Returning officer may condone, if those defects are caused by the mistake or failure of the Polling Staff.
The first Proviso is in terms limited to defects falling under Clause 202 (g) or (h).
Neither of these Provisos appears to be attracted if the A defects is any of the defects mentioned in clauses (a) or (b).
The learned Judge of the High Court has not applied his mind as to whether the facts alleged in Paragraph 11(b) of the petition, if correct, would fall within the mischief of clause (d) of Rule 56(2).
This will necessarily require consideration of the issue whether there has been an infringement if any of the provisions of Rule 38, referable to clause (a) of Rule 56(2).
Another point in this context, for consideration will be whether the "counterfoil" can be said to be an integral part of the "ballot paper" so that any writing or marks of identification of the voter on a counterfoil issued to the voter by mistake, is to be deemed to be a defect of the nature mentioned in clause (a) of Rule 56(2).
The High Court has not at all addressed itself any of these questions.
Times out of number, this Court has pointed out that a general Scrutiny and recount of the ballot papers should not be lightly ordered.
Before making such an extraordinary order, the Court must be satisfied that all the material facts have been pleaded and proved and that such a course is imperatively necessary in the interest of justice.
In the case in hand.
the allegations in the election petition (vide Paragraph 11) are confined to 41 plus 9, total 50 votes only (vide Paragraph).
There was no foundation in the petition for ordering a general recount.
Nor could the Additional Pleas in the written statement of the returned candidate be taken into account for making an order for general inspection of the ballots, because investigation of those pleas was beyond the scope of the case alleged in Para 11 of the petition falling under section 100(1) (d) (iii) of the Act.
We have said enough.
We will close the discussion by repeating the note of caution that this Court speaking through V. Krishna Iyer J. recently sounded in Chanda Singh vs Ch.
Shiv Ram(1).
"A democracy runs smooth on the wheels of periodic and pure elections.
The verdict at the polls announced by the Returning Officers leads to the formation of Governments.
A certain amount of stability in the electoral process is essential.
If the counting of the ballots are interfered with by too frequent and flippant recounts by courts a new system is introduced through the judicial instrument.
Moreover, the secrecy of the ballot which is sacrosanct becomes exposed to deleterious prying, if recount of votes is made easy.
The general reaction, if there is judicial relaxation on this issue, may well be a fresh pressure on luckless candidates, particularly when the winning margin is only of a few hundred votes as here, to ask for a recount Micawberishly looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots.
This may tend to a dangerous disorientation which invades the democratic order by injecting widespread scope for reopen 203 ing of declared returns, unless the Court restricts recourse to recount to cases of genuine apprehension of miscount or illegality or other compulsions of justice necessitating such a drastic step." In the result we allow the appeal and set aside the order of the High Court for general scrutiny and recount of the ballot papers.
However, the High Court will have to determine, (after taking such evidence as may be necessary) inter alia, (i) whether.
the instrument which was used for marking the 41 votes (referred to in the election petition) was supplied to the voters by the Presiding officer or any other member of his Polling Staff.
If on evidence adduced, the learned Judge finds this issue in the affirmative, the further question to be considered would be (ii) whether such supply would answer the legal requirement of "instrument supplied for the purpose" in Rule 56(2) (b).
If both these issues (i) and (ii) are answered in the positive, then and then only he may proceed to inspection and recount of these votes mentioned in the petition.
Similarly, after considering the legal questions indicated above, he may order recount of the 9 votes alleged to have counterfoils attached thereto.
There appears to be no justification for ordering a general inspection of the ballots on the facts of this case.
The learned Judge shall proceed with the trial of the election petition in the light of what has been said above.
Costs to abide the event in the High Court.
P.H.P. Appeal allowed.
| IN-Abs | The appellant and respondent No. 1 and other candidates contested the election from U.P. Legislative Assembly Constituency (No. 293), Sarsaul.
The appellant secured 23626 votes and respondent No. 1 polled 23604, the margin being of 22 votes only.
Respondent No. 1 filed an Election Petition challenging the election of the appellant inter alia on the ground that the result of the election so far as the returned candidate was concerned was materially affected by improper reception and rejection of votes and mistakes in counting.
It was alleged that 41 ballot papers were rejected on the ground that the electors ' choice was expressed through the instrument meant for the Presiding officer for stamping on the reverse side of the ballot papers.
the particulars of those ballot papers were given in Schedule annexed to she Election Petition.
It was further alleged that some ballot papers were issued along with the counter foil and were therefore rejected.
The appellant in his written statement denied the allegations and stated that the result of the election was not materially affected.
Respondent No. I did not adduce any evidence in support of his allegations mentioned above but made an application before the High Court for scrutiny and recount of the ballot papers.
The High Court allowed the application and directed scrutiny and recount of ballot papers on the following grounds: (a) The appellant woo by a very small margin of 22 votes (b) It was not disputed that a number of ballot papers were rejected because the polling staff forgot to detach the counter foils on a number of ballot papers.
(c) It is also the admitted case or the parties that a number of ballot papers were rejected because the voters cast their votes by putting their mark not with the marking instrument issued by the Election Commission but with the marking or stamping instrument issued for the use of the Presiding officers.
(d) lt is clear from the petition, written statement and recriminatory petition filed by the respondent that both parties pleaded that there was wrong reception rejection and counting of votes.
The appellant filed an appeal by special Leave against the said order of the Appellate Court.
Allowing the appeal , ^ HELD : (1) The returned candidate had not categorically and specifically admitted the allegations made in the Election Petition with regard to the improper rejection of the ballot papers.
[195F G] (2) Since the appellant did not admit the allegations, the court could not dispense with proof of those facts altogether.
[196A C] (3) The Additional pleas set up in the written statements were irrelevant to beyond the scope of the enquiry into the allegations in the Election Petition falling under section 100(1)(d)(iii) of the Representation of the People Act, 1951.
These Additional pleas were in the nature of recriminatory pleas 192 which could not be investigated in this Election Petition.
The scope of the enquiry is limited for the simple reason that what the clause requires to be considered is whether the election of the returned candidate has been materially affected and nothing else.
[197C F] (4) The pleas of the returned candidate under section 97 have to be tried after declaration has been made under section 100 of the Act.
[197F G] The learned judge as in error in ordering general inspection and recount of the total votes polled at the election, merely because in these Additional Pleas the returned candidate also had by way of recrimination, complained of wrong reception and rejection of votes and wrong counting of votes.
[198B C] The High Court failed to apply its mind to the question, whether if the facts alleged in the petition were assumed to be correct a prima facie case for improper rejection of the so ballot papers was made out.
Rule 38 of the Conduct of Election Rules, 1961, requires every ballot paper and the counter foil attached thereto to be, stamped on the back by the Presiding officer with such distinguishing mark as the Election Commission might direct.
Rule 56 requires every elector to whom ballot paper has been issued to maintain secrecy of voting and making a mark on the ballot paper with the instrument supplied the purpose by the Election Commission.
The object of these rules is to secure not only the secrecy of the ballot but also to eliminate chances of sharp practices in the conduct of election.
The requirements, are, therefore.
mandatory and a defect arising from their non observance inexorably entails rejection of the defective ballot papers.
[198D F; 199G H] The High Court had to apply its mind as to whether these facts by themselves were sufficient to attract rule 56.
The High court had also to apply its mind as to whether the facts alleged in the petition, if correct, would fall within the mischief of rule 56.
[200B; 202A B] Times out of number, this Court has pointed out that a general scrutiny and recount of the ballot papers should not be lightly ordered.
Before making such as extraordinary order, the Court must be satisfied that all the material facts.
have been pleaded and proved and that such a course is imperatively necessary in the interests of justice.
In the present case.
there was no foundation in the petition for ordering a general recount.
Nor could the Additional Pleas in the written statement of the returned candidate be taken into account for making an order for general inspection of the ballots [202C E] The order of the High Court was set aside.
[203B] The High Court was directed to decide the questions mentioned in this judgment and, thereafter, decided the application of the Respondent No. 1 for recount of the specific ballot papers [203B E]
|
Civil Appeals Nos. 775 and 1107 of 1975.
(From the Judgment and order dated the 9 4 19.75 of the Allahabad High Court in Election Petition No. 24 of 1974) N. section Bindra.
K. C. Agarwala.
R. D. Uppadhaya and M. M. L. Srivastava, for the appellant in CAs 775/75.
Yogeshwar Prasad and Miss Rani Arora and Bir Bahadur Singh, for the appellant in CA 1107/75.
N. section Bindra, K. C. Agarwala, R. D. Uppadhaya and M. M. L. Srivastava, for the respondent in CAs 1107/75.
Yogeshwar Prasad, Miss Rani Arora and Bir Bahadur Singh, for respondents 1 and 2 in CAs 775/75.
The Judgment of the Court was delivered by SHINGHAL, J.
Civil Appeal No. 775 of 1975 has been filed under section 116A of the Representation of`People Act, l95l, hereinafter referred to as the Act, by Balwan Singh whose election to the Uttar Pradesh Legislative Assembly from the Sarwan Khera constituency at the general election of 1974, has been set aside by the Allahabad High Court by its judgment dated April 9, 1975.
The appellant has been.
held guilty of committing a corrupt practice under section 123(S) of the Act.
and has been disqualified for a period of six years.
this election was challenged on several grounds by an election petition filed by respondents Prakash Chandra and Jai Chandra, hereinafter referred to as the election petitioners, who were electors of the constituency.
There were several candidates at the election, but the main contestants were appellant Balwan Singh of the Bhartiya Kranti DaI (B.K.D.) who secured 34.968 votes, and Ragunath Singh, respondent No. 2 of the Congress (R) party who secured 31,008 votes.
Appeal No.1167 of 1975 is by election petitioner Prakash Chandra for setting aside the judgment on issues decided against the election petitioners.
337 The allegation regarding the commission of the corrupt practice referred to above was to the effect that the appellant, his workers, agents and supporters, with his consent hired and procured vehicles for the free conveyance of electors.
A concise statement of the mate rial facts in that respect was made in paragraph 12 of the election petition.
Particulars of the vehicles used for the free conveyance of the electors were given in Schedule III of the petition.
The appellant denied the allegation and pleaded in his written statement that none of the vehicles mentioned in Schedule III was either, procured or hired by him or his workers and agents with his consent for the purpose of carrying voters to and from the polling stations and that no such vehicle was "used for the purposes of carrying electors to and from the polling stations on the date of poll".
It was also stated that the allegations contained in sub paragraphs 12(a), 12(b) and 12(c) were not the facts required by section 83.
They were totally vague and lack ed in material particulars, and were liable to be struck off.
The High Court considered that and the other objections and stated in its order dated August 30, 1974, in regard to the objection that the names of the persons who procured or hired vehicles were not given in paragraph 12 or Schedule III, that the counsel for the election petitioner had undertaken to furnish the names.
The election tioners furnished better particulars by adding paragraph 12(d) stating that the names of the persons who hired or procured the vehicles by which the electors were "carried free of cost from their houses to the polling station" on the date of election by respondent No. 1 were given in Schedule III(l).
They save the percentage and residence of the persons named in Schedule III, as also particulars and names of the persons who hired and procured vehicles for the free conveyance of the electors, and the names of the owners of the vehicles.
An objection was then taken that such an amendment was not permissible.
The High Court rejected that objection by its order dated October 10, 1974, except that the names of two new persons were not allowed to be inserted in Schedule V, with which we are not concerned.
The High Court framed several issues, including issue No. 2 which was as follows "2.
Whether the respondent No. 1 himself, or his workers and agents with his consent, hired or procured vehicles for the free conveyance of the voters and whether the vehicles so hired and procured were used for the purpose and , .
thereby the respondent No. 1 committed corrupt practice.
" After recording the evidence of the parties, the High Court recorded its finding as follows. "My answer on issue No. 2 accordingly is that the respondent No. 2 procured tractor 9962 with trolly and hired Jeep UPW 359 and Tractor UTE 5865 with trolly and that the said vehicles were used for free conveyance of voters to Maubasta, Jaganpur and Tigain polling stations and further that the respondent No. 1 thereby committed a corrupt practice under section 123(5) of the R.P. Act." 338 It was in view of that finding that the election petition was allowed with costs, the election of the appellant was declared void, and he was disqualified as aforesaid.
That is how appeal No. 775 has arisen The other appeal No. 1 107 has been filed by election petitioner.
Prakash Chandra, as he feels aggrieved against the High Court 's findings on the other issues, but Mr. Yogeshwar Prasad has stated that he would not press that appeal.
We have therefore only Balwan Singh 's appeal for consideration.
It has been argued by Mr. Bindra on behalf of Balwan Singh, hereinatter referred to as the appellant, that the High Court ought not to have entertained the election petition as it was not verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings even though that was the clear requirement of section 83(1)(c) of the Act.
We asked the counsel to refer us to any such objection of the appellant in the triaI court, and all that he could do was to invite our attention to paragraph 5 of the application dated November 27, 1974.
That paragraph however relates to the objection regarding the defective verification of the affidavit accompanying the election petition, which is a different matter.
That is in fact the subject matter of Mr. Bindra 's second argument, and we shall deal with it separately.
The fact remains that an objection regarding the alleged defective verification of the election petition was not taken in the High Court, and it was not a point at issue there.
There is therefore no justification for allowing it to be raised here.
It is in fact significant that even though an objection was taken on November 27, 1974 in regard to the verification of the affidavit, no such objection was taken about the verification of the main election petition.
It was vaguely stated that verification of the affidavit and verification of the Schedule (i.e. Schedule III) were "at variance", but that was a different matter.
In so far as the verification of the affidavit is concerned, it would be sufficient to say that that part of it which related to the commission of the corrupt practice which was the subject matter of issue No. 2 was concerned (Schedule III) it was verified in accordance with the prescribed form (No.25 of the Conduct of Election Rules, 1961) as true to the election petitioner 's information received from the persons mentioned in it.
It was therefore quite in order.
It may be mentioned that although the High Court examined the objections of the appellant on two occasions, no objection was taken or pressed for its consideration in regard to the verification of the main election petition, its schedules or the affidavits.
An objection was raised in the appellant 's application dated November 27, 1974 that the election petition may not be tried because of defective affidavit, but it was rejected by the High Court 's order of the same date on the grounds that it was a belated objection, and the allegation of corrupt practice could not be deleted merely because of the defective form of the affidavit.
No issue was joined in respect of any such objection and it cannot be allowed to be raised for the first time in this appeal.
It has next been argued by Mr. Bindra that the High Court committed a serious error of law in allowing the election petition to be 339 amended, after the expiry of the period prescribed for its presentation, even though it did not allege that any vehicle was used for the free conveyance of any elector and did not specify the names of the persons who were alleged to have hired or procured the vehicles.
It has been urged that as the facts alleged in the petition did not bring out all the ingredients of the corrupt practice, there was no cause of action for trial.
Reference in this connection has been made to Samant N. Balakrishna etc.
vs George Fernandez and Others(1).
Hardwari Lal vs Kamal Singh,(2) Rai Narain vs Smt.
Indra Nehru Gandhi and another(3) and Vatal Nagaraj vs R. Dayanand Fagar.(4).
By the amendment in question, the election petitioners had applied for insertion of a new sub paragraph (d) in paragraph 12 of the petition as follows, "The names of the persons who hired or procured the vehicles by which the electors were carried free of cost from their houses to polling station on the date of election by respondent No. 1, his workers and agents with his consent are given in schedule III(i) of the election petition.
" Schedule III(i) gave the particulars and names of the persons who hired and procured the vehicles for the free conveyance of electors.
The High Court took note of the law that a fresh corrupt practice could not be alleged by means of an application to amend the election petition and, after referring to the decisions in Balwan Singh vs Lakshmi Narain and others(5) and Joshbhai Chunibhai Patel vs Anwar Beg A. Mirza,(6) given before and after the amendment made by Act 47 of 1966, it held that it was the requirement of the law that in addition to proving the hiring or procuring of the vehicles for the free conveyance of any elector to and from any polling station, it was a necessary particulars` to allege and prove that the vehicle was used for the conveyance of the electors.
It then noticed paragraph 9 (iii ) of the election petition which stated that the appellant, his workers, agents and supporters with his consent, hired and procured vehicles for the free conveyance of electors and committed corrupt practice as provided under sub section (S) of section 123 of the Act.
It also noticed paragraph 12 which clearly stated that the concise statement of material facts in relation to the aforesaid ground relating to the procuring and hiring of tractors, jeep and car "for free conveyance of voters to thc polling stations from their houses" were given in sub paragraphs (a) and (b).
Those sub paragraphs clearly mentioned that the vehicles had been hired and procured for the free conveyance of the electors from their houses to the polling stations on the date of poll.
Reference was also made to Schedule III of the petition for which it was stated in paragraph 12(c) of the petition that the full particulars in regard to the corrupt practice were given in it.
That schedule contained the "particulars of vehicles used for (1) ; (2) (3) ; [1972] 3 S.C.R. 811.(4) (5) ; 340 free conveyance of electors on the date of election" and contained not only the place from which the electors were conveyed, the time of conveyance, the name of the polling station.
The particulars of The vehicle, but also the names of the electors who were so conveyed and the names of the workers and agents who conveyed them.
The schedule was an integral part of the election petition, and the original election petition thus contained what was required to be stated by section 83 of the Act, and the amendment was meant to furnish some further particulars in regard to the same corrupt practice.
It is therefore futile to contend that a new corrupt practice was allowed to be inserted by the High Court 's order of amendment.
It may be pointed out that, as would appear from paragraph 12(c) of the appellant 's original written statement to the unamended election petition, he also understood the allegation in the election petition to mean that it related to the use of the vehicles for carrying the electors to and from the polling stations on the date of poll.
It will be recalled that the issues were framed on August 30, 1974, before the making of the application for leave to amend the election petition, and issue No 2 clearly raised the question whether appellant Balwan Singh, or his workers and agents with his consent, hired or procured the vehicles for the free conveyance of the voters and whether the vehicles so hired and procured "were used for the purpose.
" The appellant was therefore fully aware that the election petitioners has, inter alia, alleged the user of the vehicles also, and that was why he joined issue for the trial of that allegation.
There is thus no justification for the argument to the contrary.
We have already made a mention of issue No. 2 and the High Court 's finding thereon in favour of ' the election petitioners in respect of tractors No. as UPG 9962 and UTE 5865, and jeep No. UPW 359, for the free conveyance of electors to Naubasta, Jaganpur and Tigain` polling stations.
Mr. Bindra has challenged that finding and we shall proceed to examine his arguments in respect of the Naubasta polling station.
The election petitioners alleged in the election petition that the appellant, his workers, supporters and agents hired and procured the vehicles mentioned in Schedule III, with his consent, for the free conveyance of electors from their houses to the polling stations on the date of poll namely.
On February 26, 1974.
Particulars of the corrupt practice were given in the schedule.
It was thus stated.
in regard to Naubasta polling station, that electors were conveyed there from Bbimpur and Basehi villages, by tractor No. UPG 9962.
in a trolly.
It was specifically stated that electors Munshi Lal (P.W.2O), Ram Swarup (P.W. 13) and Misri Lal (P.W. 13) of Bhimpur, and Radhelal and Bahulal (P.W.Il) of Basehi were thus taken to Naubasta.
So also, it was stated that some of the workers and agents who conveyed the electors were Bhavwan Singh (P.W. 11) and Babu Singh of Naubasta, and Maikoo of Bhimpur.
The appellant pleaded in his written statement that the allegation was "totally incorrect and false," and that "none of the vehicles men 341 tioned in Schedule III was either procured or hired by the answering A respondent or by any of his workers and agents with his consent for the purposes of carrying voters to and from the polling station, nor any such vehicles were used for the purpose of carrying electors to and from the polling stations on the date of poll.
" It was not the case of the appellant that tractor No. UPG 9962 was taken to Naubasta polling station in some other connection, or that there was no occasion or question of hiring or procuring it as it was his own property, or that it was otherwise utilised for his election campaign or for some other work.
He merely stated that the tractor "was not used in connection with the election.
" It has been argued by Mr. Bindra that the tractor really belonged to the appellant, and that his wife was only a 'benamidar ' so that there could be no question of "hiring or procuring it whether on payment or otherwise" within the meaning of sub section (5) of section 123 of the Act.
Reliance in this connection has been placed on Surinder Nath Gautam vs Vidya Sagar Joshi( ').
That tractor No. UPG 9962 belonged to the appellant 's wife Smt.
Vimla, has been clearly admitted by him in his own statement in the High Court.
In fact, as has been stated, it was not his case in the written statement that this was not so and that it was his own property and there could be no question of hiring or procuring it.
A. U. Siddiqui (P.W.2), tax clerk of the office of R.T.O. Kanpur, has proved that the tractor was registered in the name of Smt.
Vimla Yadav, wife of appellant Balwan Singh, and that it stood in her name since May 1, 1971.
Balwan Singh 's statement shows that she was an independent candidate for being coopted as a member of the Zila Parishad.
and it appears from the statement of Vijay Kumar Singh (P. W. 5) that she was her husband 's counting agent.
It cannot therefore be urged with any justification that the tractor which belonged to her, must be deemed to belong to her husband, or that it should be inferred that she was a mere 'benamidar ' when that was not the appellant 's case anywhere.
We must therefore accept it as proved beyond doubt that tractor No. UPG 9962 belonged to the wife of the appellant and was not his own property.
There is thus no justification for contending that there could be no question or occasion for hiring or procuring it as it belonged to the appellant.
The word "procure ' has been defined in the Century Dictionary to mean "to obtain, as by request, loan, effort, labour, or purchase; get; gain, come into possession of.
" It has been defined in the Oxford English Dictionary to mean "to gain, win, get possession of, acquire." This in our view is the correct meaning of the words as used in sub section
(5) of s.123 of the Act.
It would therefore amount to "procuring" the tractor if it could be shown that the appellant obtained or got it or acquired it from his wife.
As has been stated.
the tractor did not belong to the appellant and, in that view of the matter.
it is not necessary for us to examine the correctness of the view taken by the Delhi High Court in Surinder Nath Gautam 's case (supra).
(1) 342 We shall now examine whether tractor No. UPG 9962 was used for the free conveyance of any elector to or from the Naubasta polling station on the date of the poll, and whether it was hired or pro cured for that purpose by the appellant or his agent or by any other person with his consent.
As has been stated, polling in the constituency took place on February 26, 1974.
It has been stated by Vijay Kumar Singh (P.W. S) who was the polling agent of respondent Raghunath Singh, that he saw the workers of the appellant bringing voters to Naubasta polling station in the trolly of tractor No. UPG 9962.
The tractor, according to him, carried the B.K.D. flag and the posters of that party were pasted on the trolly.
When he saw the tractor making the first trip to the polling station, he made an oral complaint to the presiding officer.
It took some time for him to come out of the polling station, and by that time the tractor had gone.
But when the tractor came for the second time, he made written complaint exhibit 4 about it to Mr. Singh who was the presiding officer, and he made an endorsement on it in his presence.
The witness has stated further that the presiding officer came out of the polling station and himself saw the tractor as well as the persons who got down from it.
Those persons, according to the witness, were assisted by the workers of the B.K.D. in standing in the queue at the polling booth.
"Parchis were given to them from the camp of the B.K.D. which also had that party 's flag and posters.
According to Vijay Kumar Singh, The tractor and the trolly made only two trips to the polling station, the second trip being at about 3.30 p.m.
The witness has stated further that the presiding officer made an enquiry on his complaint, and he must have mention ed the result of the enquiry in his diary.
He has stated further that the presiding officer saw the tractor from a distance of about 100 paces and the registration number could be read from that distance.
The witness was cross examined at length, but nothing could be brought out to discredit his testimony, except that both the witness and respondent Raghunath Singh were related to one Shashi Bhushan Singh.
That might be the reason why the witness was appointed as the polling agent of respondent Raghunath 'Singh, but that distant relationship cannot justify the argument that the witness is unreliable and his testimony should be rejected for that reason.
The statement of vijay Kumar Singh has in fact been corroborated in material particulars by the statement of M. P. Singh (P.W. 6) who was an employee of the U.P. Institute of Agricultural Sciences and was the Presiding officer of the Naubasta polling station.
He has stated that the aforesaid complaint exhibit 4 was presented to him by Vijay Kumar Singh on February 25, 1974 at 3.30 p.m. and that he made an endorsement to that effect on the complaint.
The complaint exhibit 4 was in Hindi but it ' is not disputed that its English translation reads as follows: "It is submitted that the workers of Sri Balwan Singh have brought voters in UPG 9962 tractor trolly bearing flag, and the agents of B.K.D. are setting them in queue.
It is 343 entirely illegal.
I have already spoken to you in this connection.
But no action has been taken.
Kindly taker proper action.
" M. P. Singh has stated that he came out of the polling station, as the polling agent said that he should see things for himself, and also because he was aware of paragraph 60 of the "Instruction to Presiding officers" issued by the Election Commission of India.
The witness admitted that it was the requirement of the instruction that the Presiding officer of the polling station should forward any complaint filed before him in regard to the illegal conveyance of voters to the sub divisional and other magistrate having jurisdiction, with such remarks as he could make on his "own observation and personal knowledge." He saw on coming out of the polling station that a tractor and trolly were standing at a distance of 500 or 600 yards from the polling .
station.
The witness admitted ultimately that the "tractor was standing near the camp of the B.K.D.", he "saw some persons getting down from the tractor and the trolly" and that "those who got down from the tractor were seen by me (him) going towards the B.K.D. Camp.
" It may be mentioned that the High Court allowed the counsel for the election petitioners to cross examine the witness as there was some inconsistency in the statement made by 1 him in the Court and the report (exhibit 5) made in his diary.
We shall refer to that report in a while.
It was then that the witness stated as follows: "I had read the whole of the complaint (exhibit 4) while going out.
Having seen the tractor and the trolly outside the polling station near the B.K.D. camp and having seen the persons getting down the tractor and trolly and moving towards the camp, I concluded that everything contained in the complaint (exhibit 4) was correct, and it was for this reason that I mentioned in the report (exhibit 5) that the facts of the complaint were found to be correct.
I stayed outside the polling station for hardly 5 or 6 minutes.
" The witness has therefore corroborated the statement of Vijay Kumar Singh (P.W. 5) in several material particulars.
He has thus stated that (i) complaint exhibit 4 was presented to him on February 26, 1974 at 3.30 p.m. by Vijay Kumar Singh, (ii) he read the whole of it, (iii) he came out of the polling station to see for himself whether the allegation was correct, (iv) he saw that the tractor and trolly were outside the polling station near the B.K.D. camp, (v) persons were getting down the tractor and trolly, and (vi) they were moving towards the camp.
The witness has also stated that he forwarded the complaint to the District Election officer and that he made report exhibit 5 in his diary to the following effect, "22 Serious complaint made by the candidates.
The Congress polling agent made a complaint, that B.K.D. workers were conveying voters to the polling station by a tractor and trolly. ' The fact of the complaint were found to be correct and the complaint forwarded.
" 344 M. P. Singh was cross examined in regard to the correctness of the report, but he was unable to deny its genuineness or correctness.
His explanation that he merely concluded after seeing what he has stated, that everything contained in complaint exhibit 4 was correct, but did not notice the registration number of the tractor and did not see any flag or posters on the tractor or the B.K.D. agents setting them in queue, cannot be accepted because of his statement that he went out of the polling station as he considered it necessary to see for himself whether the allegation was correct, and also because of his contemporaneous note in the diary that "the facts of the complaint were found to be correct.
" We have therefore no reason to disagree with the view taken by the High Court that the statement of M. P. Singh and documents Exs. 4 and 5 go to prove the correctness of the statement of Vijay Kumar Singh (P.W. 5).
Mr. Bindra has argued that M. P. Singh could not have seen the registration number of the tractor as it was standing at a distance of 500 or 600 yards from the polling station, and that there is no reason to disbelieve his statement to that effect.
It would be sufficient for us to say in this connection that Vijay Kumar Singh (P.W 5) has stated that the Presiding officer had seen the tractor from a distance of about 100 paces, and his statement to that effect has not been contradicted by any other witness except M. P. Singh (P.W. 6) who, as has been shown, tried to give an inconsistent statement and was allowed to be cross examined by an order of the High Court.
But even M. P. Singh has stated that he saw the tractor standing near the B.K.D. camp.
Section 130 of the Act prohibited canvassing or exhibiting any notice or sign within a distance of 100 metres of the polling station, and Mr. Bindra was unable to refer us to any requirement of the law that it was not permissible for a candidate to locate his camp at that distance.
Moreover, if it had not been possible for M. P. Singh to see the registration number of the tractor, he would not have recorded in his report exhibit 5 that the facts mentioned in the complaint (exhibit 4) were "found to be correct.
" The same is the position in regard to M. P. Singh 's statement that he did not notice whether the tractor and the trolly did or did not carry any flag or posters.
It is pertinent to point out in this connection that the complaint (exhibit 4) of Vijay Kumar Singh was that workers of the appellant had brought the voters in the tractor trolly, and it would not have been possible for him to "conclude that everything contained in the complaint exhibit 4) was correct" if he had not seen some distinguishing mark on the tractor or the trolly to connect it with the appellant.
It has been stated by Vijay Kumar Singh (P.W. S) that the persons who got down from the tractor trolly went and took "parchis" from the B.K.D. camp outside the polling station.
M. P. Singh (P.W. 6) has also stated that those who got down from the tractor were seen by him going towards the B.K.D. camp.
It is not the case of the appellant that they were not the electors of the constituency.
In fact it would not have availed him or his workers to bring those who were not the electors to the polling station.
The election petitioners stated in the petition that the names of some of the electors who were conveyed to polling station Naubasta 345 were Babu Lal (P.W. 11) and Radhey Lal '(P.W. 12) of village A Basehi, and Ram Swarup (P.W. 13), Misri Lal (R.W. 13) and Munshi Lal (P.W. 20) of village Bhimpur.
While Babu Lal, Radhey Lal, Ram Swarup and Munshi Lal have been examined by the election petitioners, Misri Lal (R.W. 13) has been examined by the appellant.
We have gone through the statement of these witnesses.
Babu Lal (P.W. 11) has stated that a tractor having a trolly came to Basehi on the date of poll carrying the flag and posters of the B.K.D. and that he travelled in it to the polling station along with others including Radhey Lal (P.W. 12), Kunji Lal, Hira, Babbu Prasad and Raghubar Dayal, and that no fare was demanded, or was paid Voluntarily.
Radhey Lal (P.W. 12) has stated much to the same effect, except that he was not asked to name the other persons who travelled with him in the trolly.
He has however stated that Babu Lal had gone with him in the trolly.
Nothing has been elicited in the cross examination to shake the testimony of these witnesses.
We have also gone through the statements of Ram Swarup (P.W. 13) and Munshi Lal (P.W. 20) of Bhimpur.
Ram Swarup has stated that a tractor and trolly carrying the flag and posters having the symbol of "Haldhar Kisan" came to Bhimpur on the date of poll and that he and Munshi (P.W. 20) and Lallu, Sukhnandan and his sons went in it to the polling station to cast their votes and that they were neither asked to pay any fare for travelling by the tractor to Naubasta nor did they voluntarily pay anything.
He has stated that he returned to the village in the same tractor, after casting, his vote.
Munshi Lal (P.W. 20) has deposed much to the same effect, and he has stated that Ram Swarup (P.W. 13) also travelled in the tractor trolly along with the other persons named by him.
The statements of these witnesses have not been shaken in cross examination.
As has been stated, Misri Lal (R.W. 13) was also named in the schedule to the election petition as the elector who was conveyed in the tractor trolly, and he has been examined on behalf of the appellant.
He has stated that there is a distance of 2 or 2 1/2 furlongs between the "abadi" of Bhimpur and the "abadi" of Naubasta, and that he went on foot to cast his vote at the polling station.
He has stated further that the persons living at Bhimpur had gone to the polling station on foot and that it was wrong to say that any tractor come to Bhimpur to transport the voters to the polling station.
The appellant has admitted that he knew Misri Lal for 3 or 4 years, and we are unable to think that the High Court erred in rejecting his statement in face of the other evidence to which reference has been made above.
It was specifically stated in Schedule III of the election petition that Bhagwan Singh (R.W.ll) and Babu Singh of Naubasta, and Maikoo of Bhimpur were the workers and agents of the appellant who conveyed the electors to the Naubasta polling station.
Of these only one Bhagwan Singh (R.W.ll) has been examined on behalf of Balwan Singh.
He has stated that it was wrong to say that he, Maikoo and 346 Babu Singh brought any 'voters in tractor trolly from Bhimpur to Naubasta, or that he got any "parchis" distributed to any voters in the queue at the polling station.
It may be mentioned that the election petitioners made it clear that Bhagwan Singh was Bhagwan Singh Thakur.
Bhagwan Singh (R.W.ll) has admitted that there r was another Bhagwan Singh in his village.
He has stated that he did not see appellant Balwan Singh during the election, in his village, that he had put the flag and poster of the Congress party at his house and that he and his sons worked for the Congress in the election.
As against this, the appellant has stated that he did go to Naubasta and talked to Thakur Bhagwan Singh there who was a sympathiser of B.K.D. It therefore appears that Bhagwan Singh (R.W.ll) cannot be said to be the worker named in the Schedule of the petition, and nothing can possibly turn on what he has stated.
It will be recalled that Vijay Kumar Singh (P.W.5) who was the polling agent of the Congress candidate at Naubasta had stated in the trial court that he had made an oral as well as a written complaint about the conveyance of voters by the workers of the appellant, to the Presiding officer.
The appellant also appointed his polling agent at the polling station, but he has not examined him in rebuttal of Vijay Kumar Singh 's statement to that effect.
We have gone through the other evidence which has been led by way of rebuttal of the allegation regarding the use of tractor No. UPG 9962 for the conveyance of electors to Naubasta polling station.
We have already dealt with the statements of Bhagwan Singh (R.W. 11) and Misri Lal (R.W.13) and have given our reasons for rejecting them as unsatisfactory.
The remaining witnesses, to whose testimony our attention has been invited by Mr. Bindra, are Vijai Pal Singh (R.W.14) and appellant Balwan Singh (R.W.34).
Vijai Pal Singh is a self condemned witness for whereas he stated that he was the polling agent of Ayodhya Prasad who contested the election as a Congress (o) candidate and did not see any tractor trolly conveying voters to Naubasta polling station although he remained present at the polling station, he admitted under cross examination that he was not a polling agent at the Naubasta polling station and had made a false statement to that effect.
In so far as Balwan Singh (R.W.34) is concerned, it will be sufficient to say that he has admitted that he did not go to Naubasta on the date of the poll.
He could not therefore disprove the evidence of the election petitioners in regard to the alleged corrupt practice.
He once ventured to state that he came to know on the "next day after polling that (his) tractor had gone to the National Sugar Institute" for transporting "seta" and "patwar", but he qualified that statement by saying that the tractor may have been sent there by his wife and that "seta" and "patwar" were obtained before February 26, 1974.
An attempt was made to examine Iqbal Bahadur Dwivedi along with the original gate pass of the Institute, but it was given up by Balwan Singh.
He cannot therefore be said to have rebutted the evidence of the election petitioners.
It may be mentioned in this connection that although the important role of conveying voters to Naubasta polling station had been assigned to Babu 347 Singh and Maikoo in the election petition, they were not examined in defence.
It may be mentioned that some witnesses of the election petitioners, namely, Babu Lal (P.W.II), Ram Swarup (P.W.13) and Munshi Lal (P.W.20) named certain persons who, according to them, travelled with them to the polling station Naubasta free of cost.
Most of those persons were summoned at the instance of the appellant, but they were not examined ultimately, and were given up.
The election petitioners have also led evidence to prove that tractor UPG 9962 was procured by appellant Balwan Singh himself for the conveyance of the electors to the Naubasta polling station.
Amarpal Singh (P.W.33) has stated in this connection that he held a diploma in motor mechanism and was running a repairing shop at Rawatpur for motors and tractors.
The appellant was known to him and asked him to do the repair work of the vehicles at the B.K.D. office at Rania for Rs. 25/ per day.
He has stated further that he went to Rania and worked there for 12 days.
One day before polling, the tractor of the appellant was brought to Rania as it had developed some defects.
Balwan Singh 's wife Smt.
Vimla and his driver were present when he was working on that tractor.
Ram Swarup Sharma, Babu Singh and the appellant came there at that time and the appellant asked the witness to complete the repairing work as early as possible, and he asked Smt.
Vimla to send the tractor to Naubasta with Babu Singh for transporting voters.
Witness has stated further that his partner Ramesh was present at that time.
Ram Swarup Sharma is dead.
Appellant Balwan Singh cited Babu Singh as a defence witness, but gave him up.
He did not examine Ramesh.
Uma Shankar (R.W.24) was examined to prove that the appellant did not have any election office at the house of Ram Swarup in Rania and no vehicle of the appellant was repaired there, but he has not stated anything about Amarpal Singh, and it is difficult to place reliance on his statement as he was admittedly a worker of the B.K.D. party in Rania.
Rania, according to the witness, had a population of some 3500 persons and it is difficult to believe that the appellant had no office there.
The appellant recorded his own statement to the effect, inter alia, that he did not employ Amarpal Singh for repairing any vehicle and did not give any instruction that Babu Singh should take the tractor for transporting voters.
No reason has how ever been assigned why Amarpal Singh should have tried to implicate the appellant falsely.
The trial Judge has placed reliance on his statement, and we see no reason for taking a different view.
Tractor UPG 9962 belonged to the appellant 's wife Smt.
Vimla, and it was alleged from the very inception, in the contemporaneous report exhibit 4, that it had been used for the conveyance of electors, some of whom were named in the Schedule to the election petition along with the names of the workers and agents who utilised the tractor for the work.
It could be expected of the appellant that he would give satisfactory particulars and details about any other use of the tractor on the date of the poll if that was within his special knowledge, but he has not done so.
On the other hand, as has been 348 shown, his attempt to prove that the tractor had been sent to the National Sugar Institute met with dismal failure.
His wife Smt.
Vimla did not even appear as a witness and no attempt was made even to examine the driver of the tractor although the appellant has stated that tractor UPG 9962 was driven by a driver whose name was Rangilal.
It is not always possible for an election petitioner to adduce direct evidence to prove that a particular vehicle was hired or procured by the candidate or his agent or by any other person with the consent of the candidate or his election agent, but this can be inferred from .
the proved circumstances where such inference is justifiable.
Reference in this connection may be made to the decisions of this Court in Bhagwan Datta Shastri vs Badri Narayan Singh and others(1) and Shri Umed vs Raj Singh and others(2).
In the present case, it has been proved by clear and reliable evidence that tractor UPG 9962 was used for the conveyance of electors to and from the Naubasta 1 ' a polling station, and r that it was so used by the workers of the appellant.
Then there is the further fact that the voters were conveyed free of cost.
It has also been proved that the tractor belonged to the appellant 's wife and he could not succeed in his effort to prove that it was used elsewhere or for some other purpose.
In these facts and circumstances, it would be quite permissible to draw the inference that the tractor had been procured, by the appellant for the free conveyance of the electors.
For the reasons mentioned above, we have no doubt that the finding of the High Court that appellant Balwan Singh procured `tractor No. UPG 9962 with trolly and that they were used for the purpose of transporting the voters to the Naubasta polling station, and he thereby committed a corrupt practice within the meaning of ' section 123(5) of the Acts.
is correct and must be upheld.
In view of this categorical finding it is not necessary for us to examine the allegation regarding the hiring or procuring of tractor No. UTE 5865 and jeep No. UPW 359 for the free conveyance of electors to two other polling stations.
It may be mentioned that in arriving at the above finding we have ' ' taken due note of the view expressed by this Court in Ram Awadesh Singh vs Sumitra Devi and others(8) in regard to the generation of factious feelings during elections and their continuance even after the election enabling the parties to produce a large number of witnesses some of whom may be seemingly disinterested, and the view expressed in Rahim Khan vs Khurshid Ahmed and others(4) that an election once held should not be treated in a light hearted manner and ' the court should insist on clear and cogent testimony compelling it to uphold the corrupt practice alleged against the returned candidate.
So also, we have noticed the view expressed in Baburao Ragaji Karem ore and others vs Govind and others(5) that the Court should (1) A.I.R. 1960 S.C. 200.
(2) ; (3) ; (4) 19751 S.C.R. 643.
(5) ; 349 examine the evidence having regard to the fact that where the electorate has chosen their candidate at an election, their choice ought not to be lightly upset.
We have also taken notice of the view expressed by Ray C.J. in Smt.
Indira Nehru Gandhi vs Raj Narain(1) that in an election contest it is the public interest, not the parties ' claims, which is the paramount concern.
Mr. Bindra has placed consider " able reliance on these decisions.
But, as has been shown, the finding of the High Court regarding the aforesaid corrupt practice is based on clear, cogent and convincing evidence and there is no justification for interfering with it.
Mr. Bindra has laid much stress on the fact that the appellant was successful at the election to the U.P. Legislative Assembly from another constituency in 1957, but his election was set aside on the round, inter alia, that he and/or his election agent and/or other persons with his consent, had committed corrupt practice, including the corrupt practice of hiring a tractor for the conveyance of electors.
He has argued that in view of this Court 's decision against him in Balwan Singh vs Shri Lakshmi Narain and others (supra) he could not possibly have taken the risk of committing another similar corrupt practice at the election in question.
The argument is based on mere conjecture and cannot disprove or rebut the clear, cogent and reliable evidence on which the appellant has been held guilty of committing the corrupt practice in this case.
Mr. Bindra tried to argue further that the High Court committed an illegality in setting aside the appellant 's election without finding that the result of the election had been materially affected thereby.
The argument is misconceived, for it is not the requirement of section 100(1) (b) which has been found to be applicable to the corrupt practice in question, that the High Court should declare the election of the returned candidate to be void only if the result of the election has r been materially affected by it.
Another argument of Mr. Bindra was that the corrupt practice in question should not have been found to have ben committed as the election petitioners did not examine themselves during the course of the trial in the High Court.
There was however no such obligation on them, and the evidence which the election petitioners were able to produce at the trial could not have been rejected for any such fanciful reason when there was nothing to show that the election petitioners were able to give useful evidence to their personal knowledge but stayed away purposely.
In the result, the appeal (Civil Appeal No. 775 of 1975) filed by Balwan Singh fails and is dismissed with costs.
The cross appeal (Civil Appeal No. 1107 of 1975) is dismissed as not pressed, but without any order as to the costs.
P.B.R. Appeal dismissed.
(1) A.I.R. 1975 S.C. 299.
| IN-Abs | The appellant 's election to the State Assembly was set aside by the High Court on the ground of corrupt practice falling under section 123(S) of the Representation of People Act.
The appellant, it was alleged, hired and procured vehicles for the free conveyance of voters.
This was however denied by the appellant.
The High Court allowed amendment of the election petition by inserting a new sub paragraph 12(d), stating that the names of the persons who hired or procured the vehicles for carrying the voters to the polling station were given in schedule lII(i) of the petition, on the view that the information given was a necessary particular to allege and prove that the vehicle was used for the conveyance of the voters.
It was contended in this Court.
(i) that the tractor in which the voters were alleged to have been carried to the polling station, was taken there in some other connection and that though the tractor was in the name of his wife as benamidar.
it really belonged to the appellant and, as such, no question or hiring or procuring it, whether on payment or otherwise, arose so as to make it fall within the purview of section 123(5) of the Act.
and (ii) that the High Court had committed a serious.
error of law in allowing the election petition to be amended after the expiry of the period prescribed for its presentation.
Dismissing the appeal, ^ HELD : The finding of the High Court that the appellant procured the tractor with trolly and used it for the purpose of transporting the voters to the polling station and thereby committed a corrupt practice within the meaning of section 123(5) of the Act is correct.
[348E] (1) (a) There is no justification for contending that there could be no question or occasion for hiring or procuring the tractor because it belonged to the appellant.
It cannot be urged that the tractor, which belonged to his wife mutt be deemed to belong to the appellant or that it should be inferred that she was a mere benamidar when that was not the appellant 's case anywhere The tractor belonged to the wife of the appellant and was not his own property [341E F1 (b) It would amount to "procuring" the tractor if it could be shown that r the appellant obtained or got or acquired the tractor from his wife The dictionary meaning of the word "procure" is "to obtain as by request loan effort, labour; get, gain, come into possession of".
This is the correct meaning of the word used in section 12(5).
[341G H] (c) It is not always possible for an election Petitioner to adduce direct evidence to prove that a particular vehicle was hired or procured by the candidate or his agent or by any other person with the consent of the candidate or his election agent, but this can be inferred from the proved circumstances where such inference is justifiable.
[348B] 336 Bhagwan Datta Shastri vs Badri Narayan Singh and others A.I.R. 1960 S.C. 200: Shri Umed vs Raj Singh and others.
R. 1975 S.C. is; Ram Awadesh Singh vs Sumitra Devi and others.
; ; Rahim Khan vs Khurshid Ahmed and others; , Baburao Ragaji Karemore and others vs Govind and others ; and Smt.
Indira Nehru Gandhi vs Raj Narain.
; referred to.
(2) It is futile to contend that a new corrupt practice was allowed to be.
inserted by the High Court 's order of amendment.
The schedule was an integral part of the election petition and the original election petition contained what was required to be stated by section 83 of the Act and the amendment was meant to furnish some further particulars in regard to the same corrupt practice When issue No. 2 was framed by the High Court, the appellant was fully aware that the election petitioners had alleged the user of the vehicles also and that was why he joined issue for the trial of that allegation.
[340B C] (3) There is no obligation on the part of the election petitioners to examine themselves at the trial in the High Court.
The evidence which they were able to produce at the trial could not have been rejected for any such fanciful` reason when there was nothing to show that the election petitioners were`able to give useful evidence to their personal knowledge but stayed away purposely [349F]
|
: Criminal Appeal No. 310 of 1971.
(Appeal by Special Leave from the Judgment and Order dated 23 4 1971 of the Allahabad High Court in Criminal Appeal No. 168/ 69 with Criminal Appln.
No. 986/69).
Frank Anthony and U.P. Singh, for the Appellant.
O.P. Rana, for the Respondent.
The Judgment of the Court was delivered by KRISHNA IYER, J.
Some exceptions disprove the rule.
Cases are legion where the proverbial proposition of litiga tive finality at the High Court level on findings of fact has been affirmed by this Court, but the exceptions which prove the.
rule are also weB established.
We must at the outset state that this case does not fit into the conventional legal mould but, nevertheless, pos sesses such strange features that our 'ultimate ' power may legitimately come into play.
690 A petty store keeper cum cashier in a rural block devel opment office (in the district of Shahjehanpur) was charged.
with misappropriation of several sums adding up to a little over Rs. 5,000/ .
The charges having been denied and the real culprit having been pointed out as the boss of the block development office, the Sessions Court received evi dence on both sides, found the testimony of the Block Development Officer (BDO, acronymically) 'completely false and unbelievable ' in regard to many of the items of embez zlement and made critical observations about his culpability in respect of many of the malversations.
We may have something to say.
about the not unusual phenomenon of the 'small fry getting caught, and the big shark breaking through the net ' in economic offences where public money is handled by public servants.
For the nonce we may content ourselves with the statement that the little official in his twenties which the accused was was acquitted of all but one charge and the misappropriation of Rs. 5,194.82 dwindled into a solitary fugitive item of Rs. 50/ for which he was punished with imprisonment for one year a fine of Rs. 300/ .
The conviction was confirmed but the sentence was reduced by the High Court.
The aggrieved appellant urges before us that the soli tary surviving item of misappropriation held proved concur rently, had, in fact, been vitiated in the process by funda mental flaws.
We will proceed briefly to narrate the epi sode and examine the tenability of the extraordinary fea tures leading to the exculpatory sequel.
The agrestic immensity of Indian backwardness is sought to be banished by developmental activities through block level infrastructures.
Jaitipur Block is one such and it has a nucleus of small officials and some rural development assistants, the hegemony being vested in the BDO.
The dramaris personae here are the accused, the stock clerk cure cashier, the BDO (PW 8) and the Panchayat Secretary (PW 7) whose magnificent salary is Rs. 50/ per mensem.
The prosecution narrative runs long but can be short if we abandon the plurality of charges and limit the facts to.
the single item of Rs. 50/ .
In skeletal brevity, there was a,Block Office in Jaitipur where a small staff worked on low salaries to stimulate rural development.
The accused was cashier and used to be entrusted in such capaci ty with sums, large and small.
The case, as originally projected, was that Rs. 5,194.82 was committed to his custo dy and the whole sum was siphoned off into his own pocket by various acts of criminal breach of trust.
Admittedly it was the duty of the accused cashier to maintain the cash book and deal with the monies.
Equally clear is the fact that the head of the office, the BDO, was duty bound 'to tally and check the dally entries of the cash book with the rele vant vouchers, to affix his signature. after 'checking the total at the end of the day '.
The block office has, on its rolls, Panchayat Secre taries drawing small salaries.
One of them is PW 7, on a monthly pay of Rs. 50/ .
Another unfortunate feature of these.
offices, as disclosed in the evidence, is that even these petty emoluments are paid irregularly pro 691 ducing both discontent and inclination for manipulation.
That public offices should be so run is not too complimen tary.
Anyway, PW 7 received his pay for December 1964 on February 22, 1965 and his pay for the later month of January 1965 he drew a few days earlier on February 15, 1965 (vide Exhibits Ka 26 and Ka 29).
These oddities in disburse ments led to the plausible plea by Asiam, the accused, that P.W. 7 not having received his pittance for the month of December 1964 even after January had come and gone, pleaded his dire need for money and received Rs. 50/ as pay for the month of January 1965 and signed a separated voucher bearing that date, viz., February I, 1965.
It is conceivable that a little man with a little pay packet, which is tantalizing ly postponed, pressurizes the cashier to pay him the small sum signing a voucher and it need not surprise us if the cashier gives in to compassion and makes the payment.
This is precisely the case of the accused.
To shore up this plea, he points out a regular entry in the cash register against the date February 1, 1965 of a payment of Rs. 50/ as salary for the month of January 1965 to P.W. 7.
Rein forcement is received from the further fact that this spe cific entry of payment the falsification of which is the foundation.
for the charge of misappropriation of Rs. 50/ is ticked and 'initialled by the BDO P.W. 8.
We have earlier referred to the practice and the obligation of this officer to tally and check the daily entries in the cash book with the relevant vouchers and then to affix the signature after checking the total at the end of, day.
Moreover he had the special responsibility, as the most responsible officer on the staff on his own showing, 'to keep the cash balance found at the end of every day in the cash chest register '.
He does not do daily physical verification of the cash but does it on a monthly basis and he keeps the key of the same, although another key is left with the cashier.
The accused 's contention that he paid the salary of Rs. 50/ to P.W. 7 on February 1, 1965 supported though it is by an entry in the Books duly initialled by the BDO presuma bly after verification with the corresponding voucher has been rejected by the Courts without advertence to these spinal circumstances by the superficial plea that P.W. 7 is seen to have been paid the salary for December 1964 on February 22, 1965 with a regular entry and a stamped voucher.
P.W. 7, when examined, denied the earlier payment on February 1, with a touch of dubious candour and owned up the payment for December supported by the stamped voucher on February 22, 1965.
A streak of mystique generates doubt in P.W. 7 's testimony because in cross examination he says: '1 do not remember as such that along with other officials the cashier would have given me the salary for the month of January 1965 for two times by mistake '.
In the next breath he corrects himself to say that he had not been paid twice.
On the strength of these materials a conviction of guilt has been rendered by both the Courts and.
be the appreciation right or wrong, we, as the final court should have held back ordinarily from temptation for reappraisal, vehement argu ment notwithstanding.
But certain grave factors, condu cive to miscarriage of justice have bulked forward to induce us to make an exception, which we will presently expatiate 692 There were nine items of misappropriation originally imputed to the accused.
All, but one, remained unproven and the guilt is now fixed on one of the inconsiderable items.
Not that the littlest sum of public money can be taken on privately with impunity but that the perspective is coloured somewhat by the substantial failure of the prosecution to make out its case regarding all the major items.
More disquieting is the fact that the Single surviving charge stands or falls on the veracity or unveracity of a solitary witness appreciated in the light of the conspectus of circumstances.
What are those circumstances ? The BDO, charged as he is with serious responsibilities including guardant functions over the finances of the institution, has sworn that he checks the daily entries in the cash book with the relevant vouchers and affixes his signature, checks the total at the end of the day and again affixes his signature.
It is a pregnant piece of evidence that there is a specific entry on February 1, 1965 in the cash book that a payment of Rs. 50/ by way of salary to P.W. 7 has been made.
The BDO has signed against the entry which means, in the ordinary course, he has verified the payment with reference to the relevant voucher.
If this be a fact, the accused has proba bly paid the salary, made the necessary entry, shown it together with the relevant, voucher to the BDO, got his signature, totalled up the figures correctly and secured the BDO 's signature over again.
The exculpatory impact of this testimony is sufficient, according to ordinary canons of criminal jurisprudence to relieve the accused of culpa bility since reasonable doubt is generated.
The sensi ble scepticism about guilt which springs from the BDO 's signature against the relevant entry is heightened by the fact that the Finance Handbook referred to by the High Court in its judgment states that it is the duty of the drawing and disbursing officer to check each and every entry of receipt and expenditure recorded in the cash book and peri odically to check physically the cash balances.
The BDO, according to the High Court, has made evasive statements to suppress certain facts and 'spoken some apparent ties '.
Startlingly enough, the Sessions Court has recorded P.W. 8, the BDO, as false and unbelievable in regard to certain other charges and gone to the further extent of concluding that four entries figuring as charges against the accused had been really made to the BDO himself 'who probably embezzled these amounts '.
The consequential acquittal of the accused on these four charges has not been disturbed.
In sum, therefore, the conclusion is irresistible that the BDO, the top officer in full financial control, had behaved irresponsibly or delinquently with regard to the funds of the block office, had been described as too mendacious to be depended and had convicted himself, of gross neglect of public duty in regard to the checking of the cash register, out of his own mouth.
If we are to attach there is no reason for a Court not to do so weight to the contemperane ous entry in the cash register coupled with the signature of the BDO the same day, as against his ipse dixit later, the accused is entitled to the benefit of reasona ble doubt.
There is likely to have been a separate voucher evidencing the payment of Rs. 50/ which is the subject of the defalcation because the BDO is not likely to have at tested the entry of that payment without checking it up with the corresponding receipt.
693 Two circumstances fall to be mentioned before the probative balance sheet can be struck.
The entry of Rs. 50/ on February 1, 1965 is seen scored off.
Who did it ? Can we guess in the dark ? Nothing on record suggests that the accused alone could have done it There is much credibil ity in the theory that with the connivance of the BDO and the clerks petty sums are quietly abstracted from the public exchequer, make believe entries are made and attest ing signatures appended by the BDO and, if the peril of detection by higher officers is apprehended, scorings, additions, alterations and the like are made.
It is common case that in the cash register there are many such cross ings, cuttings, scorings and like tamperings.
Many scape graces were perhaps party to these processes but one scape goat cannot, for that reason, get convicted in the criminal court.
In this context it is pertinent to remember that the District Accountant, after a fuller examination of the books of the block offices, has stated that the several embezzle ments have been facilitated by the laxity of the BDO who should be directed to make good the loss.
A further recom mendation by him to proceed departmentally as against the BDO and as against the Cashier is also found in the report.
Whether action had been taken against the BDO, the State 's counsel was not able to tell us.
The sole lip service to the criminality imputed is lent by PW 7.
Did he receive his salary of Rs. 50/ twice over ? Undoubtedly he was interested in denying it.
Doubt hardly exists of the fact that he got his small December salary of Rs. 50/ only in February next.
Far more likely that in such a situation he would have pressed for the payment of Rs. 50/ to be adjusted later.
Likewise, his initial ambi guity in plainly denying that he had been paid twice en hances this suspicion.
When the cash affairs of the office is in a mess, when the Chief is guilty of dereliction, when the clerks are receiving petty salaries at irregular intervals, the somewhat tainted testimony of PW 7 is fax too slender a string to hang the guilt upon, pitted as it is against the cash register entry by the BDO, apparently after consulting the payment voucher.
The accused was suspended promptly and therefore this voucher, if it did exist, must have been in the office and its non production in court is not a matter for drawing an inference against the ac cused.
We have made this unusual probative survey of the evi dence for the sole reason that the bona fides of the prose cution, leaving off bigger and going at the smaller, mixing false testimony with true seriously suspect and holding on to the conviction of the accused on no evidence, which a reasonable person reasonably instructed in the law will rely upon, is neither just nor legal.
The accused, at the time of the offence, was in his early twenties probably a neophyte or new entrant into a little racket.
Doubts there are about his complicity but that a man may be guilty is different from saying that he must be guilty.
The dividing line between the two is 694 sometimes fine, but always real.
There is undoubtedly collective.
guilt in the conjoint delinquency in the running of the block development office.
Public affairs and public funds, especially on the developmental front, require far more integrity, orderliness, activism and financial pru dence.
Its absence we regret, but the specific guilt of the particular accused not having been proved, as mandated by the law, results in his acquittal.
We accordingly allow the appeal.
The guilt finding function is over, but judges have accountability to the country to the extent matters falling within their professional examination deserve sounding the tocsin.
With this alibi we make a few observations.
The popular art of helping oneself to public money, in little bits or large slices, is an official pathology whose pernicious spell has proliferated with the considerable expansion in institutions of public welfare and expenditure for rural development.
From Kautilya 's Arthashastra to Gunnar Myrdal 's Asian Drama, the vice is writ large and the demoralising kink in the projects for criminal prosecution to eradicate these vices in public offices is that more often than not the bigger engineer of these anti social schemes figures as prosecuting witness and the smaller men in the package deal are put up as sacrificial goats.
The head escapes, the hand is chased down and, when the Court convicts, cynicism, instead of censure, is the unintended public response.
In a social system of the high and low, where the wheels of punitive processes are steered by the former, laws equal in the face quirk unequal at heart.
Crack down Crime Control itself takes its alignment from the social philosophy of the agencies of public power.
The present ease is a small symptom of a spread out disease and the State, in its highest echelons, determined to down this rocket of economic offences must launch massive, quick acting, broad spectrum prosecutorial remedies, regardless of personal positions, and leisurely procedural apparatuses, if high social dividends are to be drawn.
The mystique of ,making the dubious officer the veracity vendor in the witness box and the collaborating minion the dock dweller, is suspected as intrigue to Shelter the upper berth culprit.
Caesar 's wife, where public interest is at stake, must be above suspicion, if prosecutorial credibility is to be popular purchase.
If the nation, poised for socialism, must zero in on public office offences, what we have observed must not and surely, will not slumber as obiter sermons but serve as catalysts to crash strategies on white collar crimes.
In a developing country of scarce resources, husbanding public funds has a special onerousness.
Gross negligence, even absent mens rea, in handling the nation 's assets by those in office must be visited with criminal liability as it in flicts double injury on that voiceless, faceless, woe stricken have not community which is aplenty.
Public power, under the penal Law, must be saddled with 695 higher degree of care, if Indian jurisdiction is to fulfil its social mission through developmental legislation.
Had such a law existed, many superior officers routinely signing away huge sums or large contracts could have been alterted into better standards by potential penal consequence.
The present case is an instance in point and our parliamen tarians we hope, will harken.
M.R. Appeal allowed.
| IN-Abs | The appellant, a cashier in a rural block development office of Shahjahanpur district, was convicted for misappro priating public money.
Both the courts concurrently found that he had pocketed the sum which he claimed to have paid the Panchayat Secretary as salary.
The appellant contended that the charge against him was falsified by the voucher and regular entry of the cash register regarding the above payment, which had been ticked and initialled by the Block Development Officer, and pro duced in evidence.
Allowing the appeal, the Court HELD: (1) The proposition of litigative finality at the High Court level on findings of fact has been affirmed by this Court, but the exceptions which prove the rule are also well established.
A conviction of guilt has been rendered by both the Courts, but certain grave factors conducive to miscarriage of justice, induce us to make an exception.
The accused is entitled to the benefit of reasonable doubt owing to the contemporaneous entry in the cash register coupled with the signature of the B.D.O. the same day, as against ipsi dixit later.
[689 G, 691 H, 692 G H] (2) Our observations must serve as catalysts to crash strategies on white collar crimes.
Gross negligence, even absent mens rea, in handling public funds by those in office must hold penal consequences as it inflicts double injury on the poor masses.
[694 G H]
|
Appeal No. 799 of 1975.
From the Judgment and Order dated 31 1 75 of the Gauhati High Court, Imphal Bench in Election Petition No. 2/74.
Janardhan Sharma and Jitendra Sharma; for the appellant.
section V. Gupte Naunit Lal and (Miss) Lalita Kohli, for Respondent No. 1. 574 The Judgment of the Court was delivered by KHANNA, J.
In the mid term poll to Manipur Legislative Assembly held in February 1974, respondent No. 1 (hereinaf ter referred to as the respondent) was declared ' elected from the Patsoi Assembly constituency.
The appellant, who was one of the rival candidates, filed an election petition to challenge the election of the respondent.
The election petition was dismissed by the Gauhati High Court.
The appellant has now come up in appeal against the judgment of the High Court.
The respondent, who was a candidate sponsored by the Manipur people 's Party secured 5,033 votes, while the appellant who was Iris nearest rival secured 2,473 votes.
There were some other candidates, but we are not concerned with them.
The respondent was the Speaker of Manipur Legislative Assem bly at the relevant time.
The Assembly was dissolved in 1973.
The respondent, however continued to hold the office of the Speaker fill March 8, 1974.
The appellant chal lenged the election of the respondent on two main grounds.
One of the grounds was that the respondent being Speaker of the Assembly held an office of profit in the State Govern ment and as such was disqualified to seek election.
The other ground was that the election expenses of the respondent exceeded the prescribed limit of Rs. 2,500.
It was also stated that some of the expenses incurred by the respondent for the purpose of election had not been shown by him in the return filed by him, and as such, he was guilty of corrupt practice.
The High Court repelled all the grounds, and in the result dismissed the election peti tion.
In appeal before us Mr. Sharma on behalf of the appellant has not challenged the finding of the High Court insofar as it has held that the respondent was not disqualified from seeking election because of the fact that he held the office of the Speaker.
The appellant indeed could not challenge this finding as we find that the Manipur Legislature has now passed the Manipur Legislature (Removal of Disqualifica tions , (Amendment) Act, 1975 (Manipur Act 1 of 1975).
As a result of this amendment, a person holding the office of Speaker of Manipur Legislative Assembly shall not be dis qualified from seeking election to the Legislative Assembly of that State because of his holding that office.
The amend ing Act, according to clause (2) of section 1, shall be deemed to have come into force on February 6, 1973.
The fact that the legislature is competent to enact such a law with retrospective operation is now well established (see Kanta Kathuria v.and Smt Indira Nehru Gandhi vs Shri Rat Manak Chand Surana(1) above amending Act the respondent Narain(2).
In view of.
the above from seeking election to the respondent cannot be held to be disqualified on account of his having held the office of the Speaker of the Legis lative Assembly of Manipur on account of his having held the office of the Speaker of the Legislative Assembly.
(1) [1970] 2S.C.R. 830.
(2) 575 Mr. Sharma has assailed the finding of the High Court inso far as it has held that the election expenses of the re spondent did not exceed the prescribed limit of Rs. 2,500.
According to the return filed by the respondent, he incurred a total expense of Rs. 2,160 in connection with his elec tion.
It is urged.
by Mr. Sharma that though the respondent paid Rs. 500 to the Manipur People 's party for securing a ticket of that party, he did not show that amount in the return filed by him.
Adding that sum of Rs. 500 to the amount of Rs. 2,160 would take the expenses beyond the prescribed limit of Rs. 2,500.
The said amount of Rs. 500, we find, was paid by the respondent to Manipur People 's party on December 5, 1973.
According to an amendment made in section 77 of the Representation of the People Act, 1951 by Act 40 of 1975, every candidate at an election will either by himself or by his election agent, keep a separate and correct account of all the expenditure in connection with the election, incurred or authorised by him or by his election agent between the date on which he has been nomi nated and the date of the declaration of the result thereof, both dates inclusive.
The respondent admittedly filed his nomination on January 23, 1974.The amount of Rs. 500 was paid by the respondent on December 5, 1973 long before the date on which the respondent filed his nomination.
The said amount of Rs. 500 consequently need not have been shown in the return of expenses filed by the respondent, nor could the said amount be taken into consideration in calculating the total expenses of the respondent with a view to judge as to whether his expenses exceeded the prescribed limit.
It has not been disputed that Act 40 of 1975 by which amendment was made in section 77 of the Representation of the People Act, 1951 has a retrospective effect and was in operation at the time the election with which we are concerned was held.
Mr. Sharma has next contended before us that an amount of Rs.101/55 paise was spent for the purchase of petrol and mobil oil by the respondent in addition to the amount of Rs. 586 which was shown by the respondent to have been spent by him on the purchase of petrol and mobil oil.
According to Mr. Sharma, petrol and mobil oil worth Rs. 101/55 were purchased by the respondent from Singh & Co., Imphal during the dates January 18 to 23, 1974.
In this respect, we find that the evidence adduced by the appellant is not at all satisfactory.
Two witnesses were examined by the appellant in this connection.
One of them was the appellant himself, who came into the witness box as PW 1.
It is apparent that this witness has no personal knowledge in the matter.
The other witness examined by the appellant is R.B. Shukla, PW 21.
The evidence of Shukla shows that he sold petrol and mobil oil.
worth Rs. 101/55 paise for vehicle bearing number 194.
The respondent undoubtedly used jeep NLM 194 during the elections.
There is nothing in the record of Singh & Co. or in the evidence of PW Shukla to indicate that the petrol and mobil oil worth Rs. 101/55 paise were sup plied for jeep NLM 194 and not for another vehicle beating that number.
The respondent in the course of his deposition has denied having purchased petrol and mobil oil from Singh & Co. 576 Mr. Sharma has also assailed the finding of the High Court regarding the expenses incurred by the respondent.
on microphones.
According to the retrun filed by the respond ent, he spent Rs. 720 on that account.
The case of the appellant is that the respondent paid Rs. 1,130 to Sena Yaima Sarma, Rs. 1,180 to Lockey Sound Equipment and Rs. 1,000 to Hijam Iboton Singh for use of microphones in connection with his election.
As against that, the case of the respondent is that he hired microphone from Lockey Sound Equipment and paid Rs. 720 only to that concern in that connection.
There is no cogent evidence on the record to indicate that respondent paid anything over and above Rs. 720 on account of the use of microphones.
The High Court found that the representatives of the firms from which the microphones were alleged by the appellant to have been taken on hire by the respondent, were not examined as wit nesses and that evidence adduced in this behalf was of a most unsatisfactory character.
We find no cogent ground to take a different view.
Emphasis has been laid by Mr. Sharma upon the fact that in the return filed by the re spondent, the date of payment of Rs. 720 has been mentioned to be February 26, 1974 while according to the evidence of the respondent in the witness box, the said payment was made on March 24, 1974.
In this connection, we find that the bill of Lockey Sound Equipment for the hire charges of microphones is dated February 26, 1974.
It seems that the respondent mentioned the date of the bill in connection with that payment.
No inference adverse to the respondent, in our opinion, can be drawn from the above crepancy regarding the date of payment.
Lastly, it has been argued on behalf of the appellant that the respondent also used jeep MNS 7343 in addition to jeep NLM 194.
It is stated that the expenses incurred by the respondent on account of petrol and mobil oil for jeep MNS 7343 were not shown by him in his return.
In this respect we find there was no allegation in the election petition as originally field regarding the use of jeep MNS 7343 by the respondent.
This allegation was introduced by the appellant only as a result of the amendment of the election petition.
No documentary evidence was placed on the file by the appellant to show that the respondent used jeep MNS 7343 for the purpose of his election.
Oral evi dence was however, adduced by the appellant for this pur pose.
The High Court found the evidence adduced in this conection by the appellant to be wholly unreliable.
After hearing Mr. Sharma, we find no cogent reason to take a contrary view.
It is well established that this Court should not normally interfere in an election appeal with the High Court 's appraisement of oral evidence of witnesses unless such appraisement is vitiated by some glaring infirmity.
No such infirmity has, been brought to our notice.
Reference has been made by Mr. Sharma to first information report dated February 23, 1974 which was al leged to have been made by the respondent to the police.
No attempt was made by the appellant to bring on record the original first information report or to prove the same.
The High Court in the circumstances held that the appellant could not rely upon a copy of the said first information report.
577 Mr. Sharma then contends that the appellant in any case can rely upon the oral deposition of the respondent when he came into the witness box.
We have been taken through that deposition, and we find no warrant for the conclusion that jeep MNS 7343 was used by the respondent in connection with his election.
All that has been stated by the respondent in the course of his deposition is that on February 23, 1974 he came to know of some untoward incident at a distance of a few hundred yards away from the place of his residence.
He went in jeep MNS 7343 towards that spot and thereafter returned in that jeep from that spot.
Such stray and solitary use of the jeep for visiting the place of incident a few hundred yards away from the residence of the respond ent cannot, in our opinion be held to tantamount to the use of the jeep for election purpose.
There is no cogent evi dence to show that the jeep was used otherwise by the re spondent for attending his election meetings or for other election purposes.
As a result of the above, we dismiss the appeal.
Considering the fact that the first ground which constituted the principal weapon of attack of the appellant against the validity of the respondent 's election is not available because of the change made in law during the pendency of the appeal, we direct that the parties should bear their own costs of the appeal.
P.H.P. Appeal dismissed.
| IN-Abs | Respondent No. 1 was declared elected to Manipur Legis lative Assembly.
The appellant who was one of the rival candidates filed an Election Petition on two grounds (1) Respondent No. 1 was holding office of profit inasmuch he was the speaker of the Assembly; and (2) the Respondent No, 1 incurred election expenses in excess of what is permissi ble.
The High Court negatived both the contentions and dismissed the Election Petition.
In an appeal filed by the Election Petitioner to this Court in view of the change in law with retrospective effect the first ground was not available to the appellant in this Court.
The appellant contended (1 ) The sum of Rs. 500 paid to his party by respondent No. 1 has been wrongly excluded by the High Court from the total expenditure.
(2) The sum of Rs., 101.50 spent for the purchase of petrol and mobil oil was not shown by respondent No. 1 in his return.
(3) Respondent No. 1 spent Rs. 1180/ on the microphone.
He has, however, shown Rs. 720 only in the return.
(4) Respondent No. 1 used Jeep No. 7343 in addi tion to Jeep No. 194 and the expenses incurred on that jeep are not known.
Dismissing the appeal, HELD: It is well settled that this Court does not nor mally interfere in an election appeal with the High Court 's appraisement of oral evidence of witnesses unless such appraisement is vitiated by some glaring infirmity.
In the present case no such infirmity is shown.
The evidence led by the Election Petitioner is not cogent and sufficient to come to the conclusion that various amounts mentioned.
by him were actually spent by Respondent No. 1.
As far as the payment of Rs. 500/ is concerned, the same is admitted by respondent No. 1, but that was paid before the filing of the nomination and what the Statute requires is the expenses incurred from the date of nomination till the date of the declaration of the result.
[575 B C, 576G] Stray and solitary use of a jeep for visiting a place a few hundred yards away from the residence of the respondent where some untowards incident had taken place cannot be held tantamount to the use of the jeep for election purposes.
[577B C]
|
Appeal No. 768 of 1972.
Appeal by Special Leave from the Judgment and Order dated 24 8 71 of the Delhi High Court in R.S.A. No. 137/67.
G.N. Dikshit and R.N. Dikshit, for the Appellant.
O.P. Malhotra, S.N. Mehta, Uma Datta, Sat Pal and M. Iyengar, for the Respondent.
The Judgment of the Court .was delivered by BEG, J. Jangbir, appellant, is a tenant of a room in a house which was purchased by the respondent Mahavir Prasad Gupta on 15th May, 1956, for Rs. 1930/ shown in his sale deed as situated in "Khasra No. 203, Khewat No. 1, situated at Village Chowkri Mubarkabad, Delhi Province, within the abadi of Onkar Nagar II".
The landlord owner had filed a suit for the ejectment of the appellant and for recovery 9f rent which was dismissed by a Subordinate Judge of Delhi on 26th May, 1966 on the ground that the jurisdiction of the Civil Court was barred by the Delhi Rent Control Act, 1958, (hereinafter referred to as 'the Act ') which provided the only modes of relief for aggrieved landlords by proceeding under the Act.
The respondent landlord had alleged that the suit lay in the ordinary Civil Court and that it was governed by the provisions of the Transfer of Property Act inasmuch as the house, in which the appellant was the tenant of a room, fell outside the area to which the Act was applicable.
The short question on which the case was decided was whether the house of the respondent was situated in an area to which the Act had been applied by a notification under Section 507(a) of the Delhi Municipal Corporation Act, 1957, dated 7th January, 1960.
published in the Delhi Gazette on 17th January, 1960 read with the notification dated 12th April, 1962 under Section 1, sub.
section (2) of the Act.
published in the Gazette of India on 21st April, 1962.
672 The operative part of the notification of the Delhi Administration reads as follows: "No. F. 9/5/59 R&S In exercise of the powers conferred by clause (a) of Section 507 of the Delhi Municipal Corporation Act, 1957 (66 of 1957), the Corporation with the previous 'approval of the Central Government hereby declares that the fol lowing localities mentioned in the Schedule given below, hitherto forming part of the rural areas, shall cease to be rural area".
Thereafter, was given a schedule and then came the heading: "Shahdara Zone".
The schedule has 5 columns.
The first is for the "Serial No." The second is for the name of the "Revenue estate", which is translation of Mauza, said to be an area composed of several villages.
The third column is for the name of the actual village or colony of the Mauza.
It is headed "Name of Colony Village pro posed to be included in the urban area".
The fourth column is for what is called the "square number".
The last and the fifth column was headed: "Khasra/Killa Nos.
covered by the Colo ny/Villages".
We are.
concerned here with serial No. 7 which has the entries indicated below made under the appropriate number of each column: "1. No. 7. 2.
Chowkri Mubarakabad.
Onkar Nagar.
Lekhu Pura.
Square No. Not given.
Across "Onkar Nagar" are shown: "238, 242, 240, 234, 235, 236, 234, 231, 230 and 271"; and, across "Lekhu Pura" are shown: "215 to 217, 211,212, 199 to 203".
The notification published in the Gazette of India on 21st April, 1962, may be reproduced in toto.
It reads: "New Delhi, the 12th ' April, 1962.
G.S.R. No. 486 In exercise of powers con ferred by the proviso to sub section (2) of Section 1 of the Delhi Rent Control Act, 1958 (59 of 1958), the Central Government hereby extends all the provisions of the said Act : (a) to the areas which immediately before the 7th April, 1958, were included in the Notified Area Committee, Najafgarh and the Notified Area Commit tee, Narela; and (b) to the localties mentioned in the schedule to the notification of the Municipal Corporation of Delhi No. F 9/5/59 R&S, dated the 28th December, 1959, published in the Delhi Gazette Part IV, dated the 7th 673 January, 1960, and which by virtue of that notifi cation have formed part of the urban areas within the limits of the Municipal Corporation of Delhi.
(No. 35/8/61 Delhi I) A.V. Venkatasubban, Deputy Secretary".
The Subordinate Judge, very rightly observed that there was no dispute between the parties that Mauza Chowkri Muba rakabad was included.
within the limits of Delhi Municipal Corporation by the notification dated 7th January, 1960.
He pointed out that there was no indication of a sub diviSion of Khasra No. 203 showing that any part of it was divided or separately numbered.
The disappointed plaintiff landlord was, however, not content with so obviously correct a finding.
He appealed to the District Judge who agreed entirely with the Trial Court and also recorded a finding of fact that Khasra No. 203, situated in the Mauza or Revenue Estate of Chowkri Mubara kabad, was covered by the notifications.
It seems to us that no other inference was reasonably possible.
The plaintiff respondent seems, in a gambling spirit, to have decided to try his luck by a second appeal to the High Court.
What surprises .
us is that a learned Judge of the Delhi High Court, without considering the objects of the notifications or discussing any principle of construction of documents which could indicate that a point of law had really arisen for decision before him, decided to set aside the concurrent findings of fact, and, thereby, patently exceeded the jurisdiction of the High Court under Section 100 Civil Procedure Code.
We need hardly say that there cannot be any doubt that he did so.
We are surprised that the law laid down by this Court, and, before that, by the Judicial Committee of the Privy Council should have been so completely ignored.
By way of example we may refer to the following cases: Deity Pattabhiramaswamy vs
section Hanyamayya & Ors.
(1); Sri Sinha Ramanuja Jeer & Ors.
vs Shri Ranga Ramanuja Jeer & Anr.(2); Nedunuri Kameswaramma vs Sampati Subba Rao(3); Bhusawal Borough Municipality vs Amalgamated Electricity Co. Ltd. & Anr.(4); Secy. of State vs Rameshwa ram Devasthanam & Ors.(5);Anup Mahto vs Mira Dusadh & Ors.,(6) Sahebrao Narayanrao Deshmukh vs Jaiwantrao Yadaorao Deshmukh & Ant.(7) It is urged on behalf of the appellants that the con struction of a document is always a question of law.
Reli ance was placed upon Meenakshi Mills, Madurai vs The Commissioner of income tax, Madras,(8) and Nedunuri Kames waramma vs Sampati Subba Rao (Supra).
This Court has never laid down that inferences from contents of a documents always raise questions of law.
Indeed, in (1) A.I.R. 1959 S.C. 57.
(2) [19621 (2)S.C.R. 509.
(3) ; (4) ; (5) A.I.R. 1934 PC.
(6) A.I.R. 1934 P.C. 5.
(7) A.I.R. 1933 P.C. 171.
(8) [1956] S.C.R. 691.
674 Nedunuri Kameshwaramma 's case (supra), this Court observed (atp. 215 216): "A construction of documents (unless they are documents of rifle) produced by the parties to prove a question of fact does not involve an issue of law, unless it can be shown that the material evidence contained in them was misunderstood by the Court of fact.
The documents in this case, which have been the subject of three separate considera tions, were the Land Registers the Amarkam, and Bhooband Accounts and the Adangal Registers, to gether with certain documents derived from the Zamindari records.
None of these documents can be correctly described as a document of title, whatev er its evidentiary value otherwise".
We think that, unless interpretation of a document involves the question of application of a principle of law mere inferences from or the evi dentiary value of a document generally raises only a question of fact.
We think that, if the learned Judge of the High Court had cared to consider the provisions of law relating to the extension of the Act to urban areas.
or to bear in mind the correct principles of construction.
of documents, or, tried to appreciate the true nature of the case before him, he could not have possibly interfered with the concurrent findings of the two Courts below simply because the number of the Khasra in which the house of respond ent lay was not mentioned against both the portions of Chowki Mubarakabad but wholly against Lekhu Pura.
In so far as the assumption, from the en tries in column 5 of ' the notification, could be that the whole of No. 203 fell in Lekhupura, it was an obviously erroneous assumption.
A clerical error was the most that was indicated by such an entry.
But, even so, it left no doubt that the whole Khasra No. 203 was duly notified.
"1. (1) This Act may be called the Delhi Rent Control Act, 1958.
(2) It extends to the area included within the limits of the New Delhi Municipal Committee and the Delhi Cantonment Board and ' to such urban areas within the limits of the Municipal Corpora tion of Delhi as are specified in the first ScheduIe; Provided that the Central Government may, by notification in the Official Gazette, extend this Act or any provision thereof, to any other urban area included within the limits of the Municipal Corporation of Delhi or exclude any area from the operation of this Act or any provision thereof".
It is evident that the proviso does not require the mention of anything more than the urban area which is to be included or excluded from the limits of the Municipal Corporation, That area was suffi ciently clearly indicated by entries in columns 2 and 3 meant for ' the Revenue 675 Estate or Mauza and for the colony or the village.
It is clear from these that the whole of Mauza Chowkri Mubarakabad and the whole of Onkar Nagar and Lekhupura were meant to be notified.
The mere fact that the last column was not filled up by whoever drew up the notification in such a manner as to show precisely where each Khasra number lay did not affect the question whether the area to be included was sufficiently indicated or not.
The well known principles of interpretation applicable to such cases are: (a) Firstly, a document must be construed as a whole.
(b) Secondly, it has to be so construed as not to reduce what was meant or being done by it to a patent absurdity.
(c) Third ly, if any entry of a column appears to have been carelessly made, so as not to give a correct indi cation of what was otherwise clearly capable of being inferred from the objects and rest of the contents of such a notification, the slight error, due obviously to inadvertence, would not matter on an application of the principle: Falsa Demonstra tio non nocet.
A deliberate intention to omit a part of a Khasra number the whole of which is given in the notification of 7th January, 1960, could not possibly be inferred.
When we look at Section 507 of the Delhi Munic ipal Corporation Act, 1957, we find the relevant part runs as follows: "507.
Notwithstanding anything contained in the foregoing provisions of this Act, (a) the Corporation with the previous approv al of the Central Government may, by notification in the Official Gazette, declare that any portion of the rural areas shall cease to be included therein and upon the issue of such notification that portion shall be included in and form part of the urban areas; (b) the Corporation with the previous ap proval of the Central Government may, by notifica tion in the Official Gazette, (i) exempt the rural areas or any portion thereof from such of the provisions of this Act as it deems fit.
(ii) Levy taxes, rates, fees and other charges in the rural areas or any portion thereof at rates lower than those at which such taxes, rates, fees and other charges are levied in the urban areas or exempt such areas or portion from any such tax, rate, fee or other charge;" Thus, we find the provisions of Section 1 (2) of the Act as well as of Section 507(a) and (b) of the Delhi Municipal Corporation Act refer only to "areas" and not to mere Khasra Nos.
which are convenient divisions for the purposes of indicating what lay within each area.
The Khasra is often spoken of as the "village map".
Khasra for "abadi" areas even indicate.
the type of construction which may lie within a particular number or the use to which a piece of land was being put.
The term "urban area" or "rural area" is used for much larger units than Khasra Nos.
It would, obviously, be quite impossible to think of one particular number, within an "abadi" area, left out or 676 dropped deliberately, without any rhyme or reason, from the notifications mentioned above.
No conceivable reason has been suggested for such an omission.
Indeed, there is not even an omission the effect of which may have been helpful to the appellant.
It was only a case where the whole number is shown against one village only instead of being shown against two.
The learned High Court Judge, by basing his whole judg ment on a farfetched conjecture from supposed omission of No. 203 in column 5, against Onkar Nagar, adopted a con struction of the Notification, if that is what the learned Judge was doing, which was quite unintelligible with refer ence to the facts of the case or purposes of such notifica tions.
The learned Judge would have been well advised to rest content with the obviously correct position that what the two Courts below had done was to arrive at a pure find ing of fact as to whether a particular Khasra number con taining the house in question was included within a Mauza to the whole of which the provisions of the Act had been plain ly extended.
In view of all the facts of the case, no other conclusion was reasonably possible.
Consequently, we allow this appeal, by special leave, with costs throughout, set aside the judgment of the High Court and dismiss the plaintiff 's suit.
As no counsel appeared to hear the Judgment today 's costs are disallowed to both the parties.
S.R. Appeal allowed.
| IN-Abs | Mauza Chowkri Mubarakabad was included within the limits of Delhi Municipal Corporation Act, 1957 by a notification dated 7th January, 1960.
By a notification dated 12th April 1962, the provisions of the Delhi Rent Control Act, 1958 was extended to the localities mentioned in the schedule to the, notification dated 7th January 1960.
The respondent landlord who purchased a house situated in Khasra No. 203, Khewat No. 1 situated at village Chowkri Mubarakabad, Delhi Province within the Abadi of Onkar Nagar II, filed a suit for ejectment of the appellant tenant of a room in the said house and for recovery of rent.
The trial court and the first appellate court held that the juris diction of the civil court was barred by the Delhi Rent Control Act, 1958.
However on second appeal, a single judge of the High Court disturbed the findings of fact and re versed the judgments of the courts below.
Dismissing the appeal by special leave the Court, HELD: (i) There cannot be any doubt, that, in the in stant case, by deciding to set aside the concurrent findings of fact, ignoring the law laid down by this Court, and, before that by the judicial committee of the Privy Council, the High Court, patently exceeded its jurisdiction under section 100 .C.P.C. without considering the objects of the notifications or discussing any principle of construction of documents which could indicate that a point of law had really arisen for decision.
[673 D F] Deity Pattabhiramaswamy vs
section Hanyamayya & Ors., AIR 1959 SC 57; Sri Sinha Ramanuja Jeer & Ors.
vs Shri Ranga Ramanuja Jeer & Anr.
1962(2) SCR 509; Nedunuri Kameswaramma vs Sampati Subba Rao, 1963(2) SCR 208; Bhusawal Borough Municipality vs Amalgamated Electricity Co. Ltd. & Am '.
1964(5) SCR 905; Secy.
of State vs Rameswaram Devasthanam & Ors.
, AIR 1934 PC 112; Anup Mahto vs Mita Dusadh & Ors.
AIR 1934 PC 5 and Narayanrao Deshmukh vs Jaiwantrao Yadaorao Deshmnkh & Anr., AIR 1933 PC 171; applied (ii) The well known principles of interpretation of documents are: (a) firstly, a document must be construed as a whole; (b) secondly, it has to be so construed as not to reduce what was meant or being done by it to a patent ab surdity; and (c) thirdly, if any entry of a column.
appears to have been carelessly made, so as not to give a correct indication Of what was otherwise clearly capable of being inferred from the objects and.
rest of the contents of such a notification, the slight error.
, due obviously to inadver tance, would not matter on an application of the principle: Falsa Demonstrated non nocet." [675 B C] 671 (iii) Unless interpretation of a document involves the question of application of a principle of law, mere infer ences from or the evidentiary value of a document generally raises only a question of fact.
[674 C] Nedanuri Kameswaramma vs Sampati Subba Rao, ; ; explained.
Meenakshi Mills, Madurai vs The Commissioner of Income Tax, Madras, ; ; referred to (iv) In the instant case, it is evident that the proviso does not require the mention of anything more than the urban areas which is to be included or excluded from the limits of the Municipal Corporation.
That area was sufficiently clearly indicated by entries in columns 2 and 3 meant, for the Revenue Estate or Mauza and for the colony or the vil lage.
The whole of Mauza Chowkri Mubarakabad and the whole of Onkar Nagar and Lekhupura were meant to be noti fied.
The mere fact that the last column was not filled up in such a manner as to show precisely where each Khasra number lay did not affect the question whether the area to be included was sufficiently indicated or not.
The provi sions of Section 1(2) of the Delhi Rent Control Act as wellas of Section 507(a) and (b) of the Delhi Municipal Corporation Act refer only to "areas" and not to mere Khasra nos.
which are convenient divisions for the purpose of indicating what lay within each area.
[674 H, 675 A B, GH]
|
Appeal No. 366 of 1976 (From the Judgment and Order dated 2.12.1974 of the Karnataka High Court in Civil Writ Appeal No. 171/73).
K.N. Bhatta and M. Rangaswamy for the Appellant Mrs. Shyamla Pappu and Girish Chandra for Respondent No. 3 B.R.G.K. Achar for Respondents Nos. 1 and 2.
666 The Judgment of the Court was delivered by BEG J.
This appeal by special leave raises the question whether the State Government could, by a general direction given under Section 43(1) of the (hereinafter referred to as 'the Act ') fix the charges to be imposed upon operators of stage carriages for carrying mails as conditions of their permits.
Section 48 of the Act lays down the power of the Region al Transport Authority to grant stage carriage permits with conditions annexed thereto.
The first stage of exercise of this power is preceded by ' the quasi judicial enquiry, under Section 47 of the Act, into the matters affecting the interests of public in general.
Section 48, sub. section (1), subjecting the power to grant stage carriage permits to provisions of section 47 of the.
Act, includes what may be ' correctly characterised as the "quasi judicial" power either to grant or refuse to grant a permit after consideration of matters stated in Section 47 of the Act.
After that, we come to the power to attach conditions laid down in Sec tion 48(3), and we find: "49(3) The Regional Transport Authority, if it decides to grant a stage carriage permit, may grant the permit for a service of stage carriages of a specified description or for one or more particular stage carriages, and may, subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions, namely: . . " Out of a number of kinds of conditions which may be imposed, the xvth, given below, is relevant: "(xv) that mails shall be carried on any of the vehi cles authorised by the permit subject to such conditions (including conditions as to the time in which mails are to be carried and the charges which may be levied) as may be specified".
Now, it is contended on behalf of the appellants, that the power to attach conditions under.
Section 48(3) is also quasi judicial with which the State Government neither has nor ought to have any concern.
The conditions of permits are prescribed by statute.
It is for the authority, exer cising the power quasi judicially to grant or not to grant permits, to decide what conditions to attach or not to attach to each permit.
It is.
not, it is submitted, for the State Government to dictate any conditions to be attached.
Hence, the challenge to the Government notification dated 30th May, 1968, which directed the State Transport Authori ty, to impose the charge of certain uniform rates of freight upon operators carrying mails or postal goods in stage carriages owned by operators other than State Transport Undertakings throughout the State.
The State Transport Authority had, in its turn, issued a direction to the Re gional Transport Authorities all over the State under Section 44 (1 ) of the Act to impose, 667 duty of carrying the postal goods upon rates fixed by the Government as a condition annexed under Section 48(3) (xv) to permits.
The relevant part of Section 43 (1) of the Act enacts: "43 (1) A State Government having regard to (a) the advantage 's offered to the public, trade and industry by the above development of motor transport, and (b) the desirability of co ordinating road and rail transport, and (c) the desirability of preventing the deterio ration of the road system, and (d) the desirability of preventing uneconomic competition among motor vehicles, may, from time to time, by notification in the Official Gazette, issue directions to the State Transport Authority (i) regarding the fixing of fares and freights for stage carriages, contract carriages and public carriers;" Learned Counsel for the appellant contends that the power of the Government to issue directions relating to "freights" does not include imposition of charges for carry ing postal goods as conditions permits which the Regional Transport Authority grants in exercise of its quasi judicial powers.
The attack on the validity of the Government direc tion is thus two fold: firstly, that it falls outside the scope of Section 43(1) of the Act as charges for carrying mail are not "freight" on goods carried; and, secondly, that no directions could be given to a quasi judicial au thority as to how it should perform its functions.
So far as the first argument is concerned, we do not find much substance in it.
The term "charge" is a broad one.
As used here, it is not a technical term and has not been defined by the Act.
It has, therefore, its ordinary dic tionary meaning.
It means any amount which may be demanded as a price for the rendering of some service or as price of some goods.
The argument of the learned Counsel for the appellant that the Act uses the term "freight" to.
indicate the charge made on carriage of goods, whereas the term "fare" is used for the charge made for carrying passengers, itself rests on the assumption that the term charge is a wide one.
It includes both freights and fares.
It is true that the term "fare" is used in relation to charges made for carriage of passengers and the term freight is used for charges made for the carriage of goods.
Nevertheless, both are charges.
It may be that stage carriages are meant for the carriage of passengers.
But, as is a matter of common knowledge, they also carry the luggage of passengers.
In other words, they also carry some goods incidentally.
The mail bags in which the postal goods are sent are only a type of goods which are not so bulky as to require trucks 11 l234SCI/76 668 Or special vans.
It is possible to carry them in stage carriages together with the luggage of the passengers.
In any case, this is a condition which is probably imposed only in those areas where mail vans of the State are not found to be necessary or economical to run.
In the villages in the interior of some rural areas, there may not be so much mail to carry as to justify sending a mail van.
Therefore, power is given to the Regional Transport Authori ty to attach the condition that postal goods should be carried in stage carriages at rates fixed by the Govern ment.
The real grievance of the operators is not that they have to carry postal goods as a condition of their permits but that the rates fixed are too low.
The proper remedy for such a grievance is, as the High Court rightly pointed out, to apply to the Government for revision of rates fixed.
Coming to the second submission, we may observe that, although, there is ample authority for the proposition that the grant of stage carriage permits is a quasi judicial function, with which the State Government cannot interfere by giving directions which may impede the due performance of such functions, yet, when Section 48(3) speaks of the power to attach conditions after the decision to grant the permit, it really deals with what lies past the quasi judi cial stage of decision to grant the permit.
At that stage, the decision to grant the permit is already there and only conditions have to be attached to the permit, such as the necessity to carry postal goods on certain routes at rates fixed by the Government.
On the face of it, these rates cannot be properly determined by the Regional Transport Authority.
They have to be uniform throughout the State.
A decision on what they should be must rest on considerations of policy and on facts which are not quite relevant to the grant of stage carriage permits.
In any case, it is the State Government which has the data and the legal power, under Section 43(1).of the Act, to fix freights for carriage of postal goods in various types of carriages, mentioned there, including stage carriages.
We 'think that such charges are merely a species of freight on postal goods about which the State Government can issue appropriate directions to the State Transport Authority.
The Regional Transport Authority has only to.
annex the condition auto matically in areas where such a condition may be required to be annexed to the permits granted.
A reference to Section 59, sub.
section (3)(c) would show that acceptance of the fixed rates of fares and freights, after their notification under Section 43, becomes a condi tion which has to be automatically attached to a permit.
The Regional Transport Authority has no option on this matter.
This is what this Court held in section Srikantiah & Ors.
vs The Regional Transport Authority, Anantapur & Ors.(1) In other words, the Regional Transport Authority has to act mainly mechanically after considering matters on which it has to form an opinion and take a decision quasi judicially.
We think that there is no scope for argument that there is any interference here with the quasi judicial functions of the Regional Transport Authority.
The (1) [1971] Supp.
S.C.R. 816.
669 annexation of a condition like this is a part of the purely executive Activities of the Regional Transport Authority.
By Civil Miscellaneous Petition No. 4023 of 1976, learned Counsel for the appellant sought to add two further grounds of appeal.
These were: that, the special provisions of Section 49(3)(xv) over ride the general provisions of Section 43(I)(d) (i) on the principle of interpretation 'generalia specialibus non derogant ' : and, that, in view of the special provision of Section 48(3)(xv), the impugned notification of the State Government was ultra vires.
The second ground is what follows if the first is good.
But as we have already explained above, the first ground itself is not sound.
There is no question of any special provision over riding the general.
The provisions are complementary.
Section 48(3)(xv) is really meant to carry out the direction which can legally be given under section 43(1)(d)(i) of the Act.
Therefore, although we allow the miscellaneous applica tion and have permitted the grounds to be argued, we reject them as untenable.
For the reasons given above, we agree with the views contained in the judgment of the Karnataka High Court against which this appeal has been filed.
We hold that the impugned direction and notification by the Government was not invalid and that the Regional Transport Authority had not acted illegally in attaching the required condition to the permit.
Consequently, we dismiss this appeal with M.R. Appeal dismissed.
| IN-Abs | The State Government issued a notification u/s 43(1) , directing the State Transport Authority to impose the charge of certain uniform rates of freight upon the operators of stage carriages other than State Transport undertakings, carrying mails or postal goods.
The S.T.A. then directed the Regional Transport Authority, u/s 44(1) of the Act, to impose the duty of carrying the postal goods upon rates fixed by the Government as a condition annexed u/s 48(3)(XV) to permits.
The appellant contended that the power of the Government u/s 43(1) to issue directions relating to "freights", does not include imposition of charges for carrying postal goods as conditions of permits granted by the Regional Transport Authority.
in exercise of its quasi judicial powers.
Dis missing the appeal the Court, HELD: The State Government has the data and the legal power under Section 43(1) of the Act to fix freights for carriage of postal goods in various types of carriages mentioned there, including stage carriages.
Such charges are merely a species of freight on postal goods about which the State Government can issue appropriate directions.
[668 E] (2) Section 48(3) deals with what lies past the quasi judicial stage of decision to grant the permit.
At that stage, the decision to grant the permit is already there and only conditions have to be attached to the permit.
The Regional Transport Authority has, at this stage to act mainly mechanically after considering matters on which it has, acting quasi judicially, formed an opinion and taken a decision.
There is no interference with the quasi judicial functions as the annexation of a condition like.
this is a part of the purely executive duties of the Regional.
Trans port Authority.
[668 D E, 669 A] section Srikantiah & Ors.
vs The Regional Transport Author ity, Anantapur & Ors followed.
(3) There is no question of any special provision over riding the general.
The provisions are complementary.
Section 48(3)(XV) is really meant to carry out the direc tions which can legally be given under section 43( 1 )(d)(i) of the Act.
[669 B C]
|
Appeal No. 195 of 1954.
Appeal by special leave from the judgment and order dated the 20th May, 1953 of the CustodianGeneral of Evacuee Property, New Delhi in Revision No. 387 R/Judl/53.
Achhru Ram, (Ganpat Rai, with him) for the appellant.
C. K. Daphtary, Solicitor General of India, (Porus A.Mehta and R. H. Dhebar, with him) for respondents Nos. 1 & 2. 1955.
October 28.
The Judgment of the Court was delivered by JAGANNADHADAS J.
This is an appeal by special leave against the order of the Custodian General of Evacuee Property dated the 20th May, 1953, revising an order of the Additional Custodian of East Punjab, Delhi, dated the 20th March, 1952.
The two questions raised before us on the facts and circum stances, to be stated, are (1) whether the Custodian General had the revisional power which he purported to exercise, and (2) was the order of the Custodian General on its merits such as to call for interference by this Court.
The appellant before us, one Mrs. Indira Sobanlal, is a displaced person from Lahore.
She was the owner of a house.
at Lahore known as 5, Danepur Road.
Malik Sir Firoz Khan Noon of West Pakistan owned 766 bighas of agricultural land in a village called Punjab Khore within the State of Delhi.
An oral exchange is said to have taken place between these two.
, of the said properties, on the 10 th October, 1947.
In pursuance of that exchange Malik Sir Firoz Khan Noon is said to have taken possession of the Danepur Road House.
The appellant is also said to have been put in possession of the said agricultural lands in Punjab Khore presumably by way of attornment 1120 of tenants who were in actual cultivating possession of the lands.
Under section 5 A of the East Punjab Evacuees ' (Administration of Property) Act, 1947 (East Punjab Act XIV of 1947), as amended in 1948 and applied to the State of Delhi, such a transaction required confirmation by the Custodian.
In compliance with this section the appellant made an application on the 23rd February, 1948, to the Additional Custodian of Evacuee Property (Rural), Delhi, for confirmation of the above transaction of exchange and of the consequent transfer to her of the property in agricultural land.
In view of certain rules which came into force later and which prescribed that the application was to be in a set form furnishing certain particulars, the appellant filed an amended application dated the 14th August, 1948, furnishing the required particulars.
This application was not disposed of by the Additional Custodian, for reasons not clear on the record, until the 20th March, 1952.
On that date he passed an order confirming the exchange.
Meanwhile, however, a, proposal was put up to the Additional Custodian by his Revenue Assistant to allot agricultural lands of the village Punjab Khore, including those covered by this exchange, to a number of refugee cultivators.
The proposal was approved by the Additional Custodian on the 12th June, 1949.
In pursuance thereof a detailed allotment was made to twenty six individual allottees on the 27th October, 1949.
There is a report of the Rehabilitation Patwari dated the 27th February 1950, on the record showing that the allottees entered into possession of the land and cultivated their respective lands and settled down in the village.
After the order confirming the exchange was passed by the Additional Custodian on the 20th March, 1952, the appellant filed an application on the 5th May, 1952, asking to be placed in possession, and for a warrant of delivery of possession to be issued against the various allottees and tenants of the land.
The Naib Tehsildar recommended that possession may be given to the appellant and that the Patwari may be informed accordingly to take the necessary action in the matter.
But it does 1121 not appear from the record whether this was done, or whether possession was in fact delivered.
At this stage, a notice under section 27 of the (Central Act XXXI of 1950), appears to have been issued to the appellant by the Custodian General to show cause why the order of the Additional Custodian dated the 20th March, 1952, confirming the exchange and the further orders dated the 20th and 28th July, 1952, sanctioning mutation and other consequential and incidental orders made in connection therewith be not set aside.
This notice appears to have been issued asking the appellant to show cause on the 4th May, 1953.
The case was adjourned to the 12th May, 1953, at the request of counsel for the appellant and thereafter a more detailed notice dated the 14th May, 1953, was issued setting out the various grounds on which the previous orders were sought to be set aside.
The learned Custodian General passed the order now under appeal on the 20th May, 1953, setting aside the order of confirmation.
He directed the Custodian to decide the case after giving notice to all those who might be affected by the confirmation of this transaction.
As the earlier part of his order shows, the reference to the persons affected was to those who were allotted the lands in question by virtue of the order of the Additional Custodian of the year 1949 above referred to.
To appreciate the first question that has been raised as to the validity of the exercise of revisional powers by the Custodian General on the above facts, it is necessary to set out the course of the relevant legislative measures from time to time.
To meet the unprecedented situation of sudden migration of vast sections of population on a large scale from West Punjab to East Punjab and vice versa, leaving most of the properties which they had, moveable and immoveable, agricultural and nonagricultural, the concerned Governments bad to take wide legislative powers to deal with the situation, to set up the necessary administrative machinery, and to evolve and give effect to their policies in regard thereto from time to time.
The earliest of these legislative measures so far as we are concerned, was the East Punjab Evacuees (Administration of Property) Act, 1947 (East Punjab Act XIV of 1947), which came into force on the 12th December, 1947.
This Act was amended by the East Pun jab Evacuees ' (Administration of Property) (Amendment) Ordinance, 1948 (East Punjab Ordinance No. II of 1948) and later by East Punjab Evacuees ' (Administration of Property) (Amendment) Act, 1948, (East Punjab Act XXVI of 1948), which inserted two new sections, 5 A and 5 B I prescribing the requirement of confirmation Of transactions relating to eva cuee property and providing a right of appeal or revision therefrom.
These sections were specifically made applicable to transactions on or after the 15th August, 1947.
The above Punjab Legislative measures were extended to the State of Delhi by Central Government notifications under the Delhi Laws Act, dated the 29th December, 1947, the 28th January, 1948, and the 22nd April, 1948, respectively.
In so far as these measures applied to Chief Commissioners ' Provinces they were repealed by the Administration of Evacuee Property (Chief Commissioners ' Provinces) Ordinance, 1949, (Central Ordinance No. XII of 1949) which came into force so far as Delhi is concerned on the 13th June, 1949.
This Ordinance, in its turn, was repealed and a fresh Central Ordinance came into force in its place, applicable to all the Provinces of India except Assam and West Bengal.
That was Administration of Evacuee Property Ordinance.
, 1949, (Central Ordinance No. XXVII of 1949), which came into force on the 18th October, 1949.
This Central Ordinance in its turn was repealed and replaced by the (Central Act XXXI of 1950) which came into force on the 17th April, 1950.
It is necessary to notice at this stage that until the Central Ordinance XXVII of 1949 was passed, the Evacuee Property law was regulated by the respective Provincial Acts and were under the respective Provincial administrations.
Central Ordinance 1123 No. XXVII of 1949 provided for a centralised law and centralised administration which was continued by Central Act No. XXXI of 1950.
One of the main steps taken for such centralised administration was to create the office of Custodian General with powers of appeal and revision as against the orders of Provincial Custodians.
Section 5 of the Central Ordinance No. XXVII of 1949 authorised the Central Government to appoint a Custodian General of Evacuee Property in India for the purpose of discharging the duties imposed on him by or under the Ordinance, while the appointment of Provincial Custodians, Additional, Deputy or Assistant Custodians, was still left to the various Provincial Governments.
These provisions were continued by sections 5 and 6 of Central Act XXXI of 1950.
As regards the transactions by evacuees relating to evacuee property, the first legislative interference in East Punjab and Delhi appears to have been by virtue of East Punjab Evacuees (Administration of Property) (Amendment ') Ordinance, 1948 (East Punjab Ordinance No. II of 1948) and the East Punjab Evacuees ' (Administration of Property) (Amendment) Act, 1948 (East Punjab Act XXVI of 1948) which inserted two new sections 5 A and 5 B into the East Punjab Act XIV of 1947.
The said sections were as follows: "5 A. (1) No sale, mortgage, pledge, lease, exchange or other transfer of any interest or right in or over any property made by an evacuee or by any person in anticipation of his becoming an evacuee, or by the agent, assign or attorney of the evacuee or such person, on or after the fifteenth day of August, 1947, shall be effective so as to confer any rights or remedies on the parties to such transfer or on any person claiming under them unless it is confirmed by the Custodian.
(2) An application for confirming such transfer may be made by any person claiming thereunder or by any person lawfully authorised by him.
(3) The Custodian shall reject any application made after the thirty first day of March, 1948 or after 142 1124 the expiration of two months from the date the transaction was entered into, whichever is later.
(4) The Custodian shall hold a summary enquiry into an application, which is not rejected under subsection (3) and may decline to confirm the transaction if it appears to the Custodian that (a) the transaction was not a bona fide one for valuable consideration; or (b) the transaction is in the opinion of the Custodian prejudicial to the prescribed objects; or (c) for any other reason, to be given by the Custodian in writing, the transaction ought not to be confirmed.
(5)If the Custodian confirms the transaction, he may confirm it unconditionally or subject to such conditions and terms as he may consider proper.
(6)The Custodian, if the order is not pronounced in the presence of the applicant, shall forthwith give notice in writing to the applicant of any order passed by him under sub sections (3), (4) or (5).
" 5 B. If the original order under section 5 A is passed by an Assistant or Deputy Custodian of Evacuee Property, any person aggrieved by such order may appeal within sixty days from the date of the order to the Custodian of ]Evacuee Property who may dispose of the appeal himself or make it over for disposal to the Additional Custodian of Evacuee Property; and subject only to the decision on such appeal, if any, the order passed by the Assistant or 'Deputy Custodian of Evacuee Property, or any original or appellate order passed by the Custodian or Additional Custodian of Evacuee Property shall be final and conclusive".
It will be seen that these two sections enjoined that transfers by an evacuee or intending evacuee relating to his property from and after the 15th August, 1947, required confirmation and provided for appeal or revision from the orders passed on applications therefor and subject thereto, such orders were made final and conclusive.
The requirement as to confirmation has been substantially continued in more or less the same form by sections 25, 38 and 40 respectively of 1125 the successive legislative measures with certain modi fications which are not material for this case.
But so far as the appealability or revisability of an order passed on an application for confirmation is concerned.
, there have been changes from: time to time.
It will be seen from section 5 B of the East Punjab Act, XIV of 1947, as quoted above, that any original order passed by the Custodian or Additional Custodian is not subject to appeal or revision and it is specifically declared to be final and conclusive.
Central Ordinance No. XII of 1949 by section 30(1) (b) thereof provided for an appeal to the High Court against an original order of a Custodian or Additional Custodian or authorised Deputy Custodian but there was no provision for revision of such an order.
Under the Central Ordinance No. XXVII of 1949 the position was substantially different.
Section 24 thereof, inter alia, provided that.
any person aggrieved by an order made under section 38 (which corresponds to the previous section 5 A of the East Punjab Act XIV of 1947) may prefer an appeal in ,such manner and within such time as may be prescribed, to the Custodian General where the original order has been passed by the Custodian, Additional Custodian or an Authorised Deputy Custodian.
Section 27 thereof provided for revisional powers of the Custodian General but it was specifically confined to appellate orders and there was no power given thereunder for revision by the Custodian General of an original order passed by the Custodian.
But under Central Act XXXI of 1950 which repealed and replaced this Ordinance the position became different.
The provision for appeal under section 24 thereof was virtually the same as before, in so far as it is relevant here.
But as regards revision, however, section 27 of the Act provided for the revisional powers of the Custodian General in the following terms: "27.
(1) The Custodian General may at any time, either on his own motion or on application made to him in this behalf, call for the record of any proceeding in which any district judge or Custodian has passed an order for the purpose of satisfying him 1126 self as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks fit: Provided that the Custodian General shall not pass an order under this sub section prejudicial to any person without giving him a reasonable opportunity of being heard. . . . . . . " The question relating to the validity of the revisional powers exercised by the Custodian General in the present case arises with reference to the provisions above mentioned.
It is not disputed that Malik Sir Firoz Khan Noon was an evacuee.
Nor is it disputed that this property in Punjab Khore which was the subject matter of the exchange was evacuee property.
Though the exchange in question was alleged to have taken place on the 10th October, 1947, at a time when there was no restriction against any evacuee dealing with the property he left behind, it is indisputable that section 5 A of the East Punjab Act XIV of 1947 which has been specifically made retrospective from the 15th August, 1947, operates in respect of the present transaction also.
It, therefore, requires confirmation under the said section and under the corresponding sections in the subsequent legislative measures in this behalf.
It was in compliance with this requirement that the appellant made an application for confirmation on the 23rd February.
1948, and that a subsequent amended application was filed on the 14th August, 1948.
It is these applications that were disposed of on the 20th March, 1952, by the Additional Custodian, Delhi, by an order confirming the exchange, which has since been revised by the Custodian General on the 20th May, 1953.
The main contention of the learned counsel for the appellant is to the powers which are vested in the Custodian General to revise the original orders of the Custodian or Additional Custodian under section 27 of the Central Act XXXI of 1950 are not applicable to an order passed by the Custodian or Additional 1127 Custodian on an application made long prior to the time when the office of the Custodian General was set up and he was clothed with powers of revision.
It is urged that on the date when the application for confirmation was first made on the 23rd February, 1948, an order passed under section 5 A by the Custodian or Additional Custodian is final and con clusive under section 5 B.
It is strongly urged that the subsequent repeal and re enactment of these provisions cannot affect the right vested in the appellant to obtain a final and conclusive order from the Custodian or Additional Custodian on her application for confirmation.
Section 6 of the General Clauses Act and the Privy Council case in the Colonial Sugar Refining Co. Ltd. vs Irving(1) were relied on in support of this contention.
To determine the validity of this contention, it is necessary to trace the course of the various relevant statutory provisions from time to time which repealed the prior corresponding legislative measures and to determine the effect thereof.
The East Punjab Act XIV of 1947 was replaced by the Central Ordinance No. XII of 1949 relating to Chief Commissioners ' Provinces.
Section 40 thereof which repealed the prior Act was as follows: "40.
(1) The East Punjab Evacuees ' (Administration of Property) Act, 1947 (East Punjab Act XIV of 1947), as in force in Ajmer Merwara and Delhi, is hereby repealed.
(2)Notwithstanding such repeal, anything done or any action taken in the exercise of any power conferred by the Act aforesaid shall, in relation to the Provinces of Ajmer Merwara and Delhi, be deemed to have been done or taken in the exercise of the powers conferred by this Ordinance, and any penalty` incurred or proceeding commenced under the said Act shall be deemed to be a penalty incurred, or proceeding commenced under this Ordinance as if this Ordinance were in force on the day when such thing was done, action taken, penalty incurred or proceeding commenced".
When this Ordinance was in turn repealed by (1) 1128 Central Ordinance No. XXVII of 1949, the repealing section 55 was as follows: "55.
(1) The Administration of Evacuee Property Ordinance, 1949 (XII of 1949), as in force in the Chief Commissioners ' Provinces is here by repealed.
(2). . . . . (3)Notwithstanding the repeal by this Ordinance of the Administration of Evacuee Property Ordinance, 1949, or of any corresponding law, anything done or any action taken in the exercise of any power conferred by that Ordinance or law shall be deemed to have been done or taken in the exercise of the powers conferred by this Ordinance, and any penalty incurred or proceeding commenced under that Ordinance or law shall be deemed to be a penalty incurred or proceeding commenced under this Ordinance as if this Ordinance were in force on the day on which such thing was done, action taken, penalty incurred or proceeding commenced".
Ordinance No. XXVII of 1949 was in its turn repealed by Central Act XXXI of 1950.
This Act was amended by an Ordinance and later by an Act of, the same year.
Section 58 is the repealing provision of this Act as so amended.
The material portion thereof is as follows: "58.
(1) The Administration of Evacuee Property Ordinance, 1949 (XXVII of 1949) is hereby repealed.
(2). . . . . . (3)The repeal by this Act of the Administration of Evacuee Property Ordinance, 1949 (XXVII of 1949). . shall not affect the previous operation thereof, and subject thereto, anything done or any action taken in the exercise of any power conferred by or under that Ordinance shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act, as if this Act were in force on the day on which such thing was done or action was taken".
Thus in the transition of the Evacuee Property law 1129 relating to Delhi, from the East Punjab Act XIV of 1947 to the present Central Act XXXI of 1950, there have been three repeals.
The first two repealing provisions are in almost identical terms but the third is somewhat different.
The difference is in two respects.
(1) The provision in the previous repealing sections that "any penalty incurred or proceeding commenced under the repealed law shall be deemed to be a penalty incurred or proceeding commenced under the new law as if the new law were in force on the day when the penalty was incurred or proceeding commenced" is now omitted.
(2) The provision that "anything done or any action taken in exercise of any power conferred by the previous law shall be deemed to have been done or taken in exercise of the powers conferred by the new law as if the new law were in force on the day when such thing was done or action taken" is continued.
But it is specifically provided that this is subject to the repeal not affecting the "previous operation of the repealed law" which in the context clearly means the previous operation of the repealed law in respect of "anything done or any action taken".
The question thus for consideration is what is the result brought about by these provisions.
Before proceeding to determine it, it is desirable to consider whether section 6 of the General Clauses Act can be relied on.
The position as regards section 6 of the General Clauses Act in the case of repeal and re enactment has been considered by this Court in State of Punjab vs Mohar Singh( ') and laid down as follows at page 899: "Whenever there is a repeal of an enactment, the consequences laid down in section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears.
In the case of a simple repeal there is scarcely any room for expression of a contrary opinion.
But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention.
(1) ; , 899.
1130 The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them.
We cannot therefore subscribe to the broad proposition that section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation.
Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or con trary to the provisions of the section.
Such incom patibility would have to be ascertained from a consideration of all the relevant provisions of the new law. . . ".
In the present case sub section (3) of section 58 of Central Act XXXI of 1950 purports to indicate the effect of that repeal, both in negative and in positive terms.
The negative portion of it relating to "the previous operation" of the prior Ordinance appears to have been taken from section 6(b) of the General Clauses Act, while the positive portion adopts a "deeming" provision quite contrary to what is contemplated under that section.
Under the General Clauses Act the position, in respect of matters covered by it, would have to be determined as if the repealing Act had not been passed, while under section 58 of Central Act XXXI of 1950, the position so far as the positive portion is concerned has to be judged as if the repealing Act were in force at the earlier relevant date.
Therefore where, as in this case, the repealing section which purports to indicate the effect of the repeal on previous matters, provides for the operation of the previous law in part and in negative terms, as also for the operation of the new law in the other part and in positive terms, the said provision may well be taken to be self contained and indicative of the intention to exclude the application of section 6 of the General Clauses Act.
We are, therefore, of the opinion that the said section cannot be called in aid in this case.
Now, as to the meaning of section 58(3) of Central Act XXXI of 1950, it must be admitted that this is not free from difficulty.
This kind of provision in a 1131 repealing Act appears rather unusual.
Learned counsel for the appellant urges that the positive portion of this provision, i.e., "anything done or any action taken in exercise of any power conferred by or under, the Ordinance shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this Act were in force on the day on which such thing was done or action was taken" applies only to purely administrative matters and that his case falls within the scope of the first portion, viz., "the repeal. . shall not affect the previous operation of the (repealed) Ordinance".
His contention is that the application for, confirmation which was made by the appellant in 1948 and which remained pending until Act XXXI of 1950 came into force and superseded the earlier legislation in this behalf, had to be disposed of in accordance with sections 5 A and 5 B of the East Punjab Act XIV of 1947, as amended in 1948; that the order of confirmation passed by the Additional Custodian in such a pending application was not open to appeal or revision but became final and conclusive.
It is urged that on the filing of the application in 1948, the appellant got a vested right to have it determined under section 5 A with the attribute of finality and conclusiveness under section 5 B attaching to such determination.
According to the learned counsel this follows from the "previous operation" of the repealed law and is in consonance with the principle laid down by the Privy Council in Colonial Sugar Refining Co. Ltd. vs Irving(1).
It appears to us that these contentions are unsustainable.
Colonial Sugar Refining Co. Ltd. vs Irving(1) relates to the case of a right of appeal against an order passed or to be passed in a pending action.
Their Lordships treated the right of appeal to a superior tribunal in a pending action as an existing right and held that the suitor cannot be retrospectively deprived of it except by express words or by necessary implication.
This doctrine was affirmed by the Privy Council in Delhi Cloth & General Mills Co. Ltd. (1) 143 1132 vs
Income Tax Commissioner, Delhi(1) in its application to the converse case in the following terms: "Their Lordships can have no doubt that provisions which, if applied retrospectively, would deprive of their existing finality orders which, when the statute came into force, were final, are provisions which touch existing rights".
It may be noticed that in the case in Delhi Cloth & General Mills Co. Ltd. vs Income Tax Commissioner(1), the orders of the High Court from which appeals were sought to be filed to the Privy Council were dated the 6th January, 1926 and 12th January, 1926.
As the Indian Income tax Act stood at the time and according to the interpretation of section 66 thereof by the Privy Council in Tata Iron & Steel Co. vs Chief Revenue Authority, Bombay(2) there was no appeal to the Privy Council.
The legislature by an amendment of the Income tax Act, which came into force on the 1st April, 1926, inserted therein section 66 A and gave a right of appeal against such orders as provided therein.
In this situation the Privy Council repelled the contention that the litigant could avail himself of the new provision by pointing out the finality of the orders fought to be appealed against and referring to it as an existing right.
This is obviously so because finality attached to them.
, the moment orders were passed, prior to the new Act.
In the present case, the position is different.
The action was still pending when Central Act XXXI of 1950 came into force.
No order was passed which could attract the attribute of finality and conclusiveness under section 5 B of the East Punjab Act XIV of 1947.
Further the possibility of such finality was definitely affected by the repealing provision in Central Ordinance No. XII of 1949 and Central Ordinance No. XXVII of 1949, which specifically provided that a pending action was to be deemed to be an action commenced under the new Ordinance as if it were in force at the time and therefore required to be continued under the new Ordinances.
Each of these Ordinances provided for (1) Lahore 284.
(2) (1923] L.R. 50 I.A. 212.
1133 appeal against such an order and the second of them provided for the exercise of revisional power against an appellate order of the Custodian.
Learned counsel for the appellant contends that, even so, the finality and conclusiveness, which would have attached to an order made under section 5 A, if made before Ordinance XII of 1949 was promulgated, was affected only to the extent of its being subject to an appeal and not to revision.
But once the attribute of finality in respect of such an order is affected by subsequent legislation, it does not appear to be of consequence that it was affected first by a provision for appeal and later by provisions for appeal and revision.
It is difficult to see that such provisions, in those cir cumstances, are anything more than alterations in procedure.
However this may be, it appears to be clear that while a right of appeal in respect of a pending action may conceivably be treated as a substantive right vesting in the litigant on the commencement of the action though we do not so decide no such vested right to obtain a determination with the attribute of finality can be predicated in favour of a litigant on the institution of the action.
By the very terms of section 5 B of East Punjab Act XIV of 1947, finality attaches to it on the making of the order.
Even if there be, in law, any such right at all as the right to a determination with the attribute of finality, it can in no sense be a vested or accrued right.
It does not accrue until the determination is in "fact made, when alone the right to finality becomes an existing right as in Delhi Cloth and General Mills Co. Ltd. vs IncomeTax Commissioner(1).
We are, therefore, of the opinion that the principle of Colonial Sugar Refining Co. Ltd. vs Irving(2) cannot be invoked in support of a case of the kind we are dealing with.
Nor can this be brought under the ambit of the phrase "previous operation of the repealed law".
What in effect, learned counsel for the appellant contends for is not the "previous operation of the repealed law" but the "future operation of the previous (1) Lahore 284, (2) 1134 law".
There is no justification for such a construction.
Besides, if in respect of the pending application in the present case, the previous repealed law is to continue to be applicable by virtue of the first portion of section 58(3) the question arises as to who are the authorities that can deal with it.
The application can be dealt with by the Custodian and on appeal by the Custodian General only as functioning under the previous law.
But as such Custodian or Custodian General they have disappeared by virtue of the repeal.
It is only the second portion of section 58(3) which continues them as though the appointments were made under the new Act a position which could scarcely be controverted.
To the extent of the future operation, if any, of the repealed law they can have no function.
Indeed, a comparison of the wording of section 58 of Act XXXI of 1950 with the wording of section 6 of the General Clauses Act would show that if the legislature intended either that pending proceedings were to be continued under the previous law or that anything in the nature of vested right of finality of determination or some right akin thereto was to arise in respect of such pending proceedings, the negative portion of section 58(3) would not have stopped short with saving only the "previous operation" of the repealed law.
It would have borrowed from out of some portions of the remaining sub sections (c), (d) and (e) of section 6 of the General Clauses Act, and provided in express terms for the continuance of the previous law in respect of pending pro ceedings.
Obviously no particular sub section of section 6 of the General Clauses Act could be borrowed in toto as that would contradict the positive portion of section 58(3) of Act XXXI of 1950 and would be inconsistent with the idea underlying it.
We are,therefore, clearly of the view that the appellant cannot call in aid the principle of the case in Colonial Sugar Refining Co. Ltd. V. Irving(1), nor can his case fall within the ambit of the first portion of sub section (3) of section 58 of Act XXXI of 1950.
The next question for consideration is how the (1) 1135 second and positive portion of section 58(3) of Act XXXI of 1950 is to be understood.
This portion says that "anything done or any action taken in exercise of any power conferred by or under the (repealed) Ordinance, shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this Act were in force on the day on which such thing was done or action was taken".
To appreciate the meaning of this it is desirable to have a general idea of the scheme of the repealed Ordinance, the powers exercisable thereunder, and the nature of the things that may be done, or action that may be taken, thereunder.
The powers exercisable are to be gathered from various sections and broadly speaking fall under the follow ing categories.
To make appointments sections 5 and 6. 2.
To make enquiries sections 7, 16, 19 and 38 and to make declarations or issue notifications as a result thereof.
To make various kinds of consequential or administrative order such as those under sections 9, 10, 11, 12 and 21. 4.
To hear and dispose of appeals, reviews or revisions sections 24, 25, 26 and 27.
5.Power of the Central Government, to exempt, to give directions, to take action with regard to evacuee property, to delegate powers and to make rules sections 49, 50, 51, 52 and 53.
In addition there are provisions which bring about various consequences such as vesting in the Custodian, valid discharge by payment to the Custodian, attachment, and so forth, sections 7 (2), 8, 11, 13, 16 (3), 19 (3), 20 and 22, etc.
The above enumeration is by no means intended to be exhaustive but is merely to illustrate the scheme of the various provisions in the Ordinance with reference to which section 58 of the Act has to be understood.
There are also rules framed by virtue of section 53 of the Ordinance under which various powers may be exercised, things done, and action taken.
If section 58 (3) of Central Act XXXI of 1950 which 1136 repealed the prior Ordinance is understood with reference to the above scheme, there is no reason to confine the operation of the second portion of section 58(3) to administrative action as suggested by learned counsel for the appellant.
Broadly speaking, the second portion of section 58(3) refers to the whole range of, things that may be done, or action that may be taken, under the previous Ordinance and the rules framed thereunder, while the first portion of section 58(3) relates to the legal consequences resulting under the Ordinance or the rules from certain facts or from completed acts or things done thereunder.
Without attempting to be meticulously accurate, it may be stated in general terms, that the scheme underlying section 58(3) appears to be that every matter to which the new Act applies has to be treated as arising, and to be dealt with, under the new law except in so far as certain consequences have already ensued or acts have been completed prior thereto to which it is the old law that will apply.
In this view of section 58, the application of the appellant for confirmation pending on the date when Central Act XXXI of 1950 came into force had to be dealt with and disposed of under this Act and the order of confirmation passed in 1952 would clearly be subject to the revisional power of the Custodian General under section 27 of the said Act.
It is next contended that the revisional power cannot be exercised when there was an appeal provided but no appeal was filed, that it was open to the Assistant Custodian who appeared before the Custodian General in support of the notice for revision or to the allottees of the property in whose interest the revisional order appears to have been passed, to file an appeal under the Act as persons aggrieved.
Section 27 however is very wide in its terms and it cannot be construed as being subject to any such limitations.
Nor can the scope of revisional powers be confined only to matters of jurisdiction or illegality as is contended, because under section 27, the Custodian General can exercise revisional powers "for the purpose of satisfying himself as to the legality or 1137 propriety of any order of the Custodian".
We are thus clearly of the opinion that the contention of the learned counsel for the appellant that the exercise of revisional powers in this case by the Custodian General is without jurisdiction or is illegal, must fail.
The next question to be considered is as regards the merits of the revisional order of the Custodian General which is under appeal before us.
Learned counsel for the appellant attacked it on various grounds.
He urged that the ground on which the learned Custodian General set aside the Additional Custodian 's order, viz., absence of notice to the prior allottees is wholly untenable.
He contended that the allottees had no kind of interest in the land which entitled them to contest the application for confirmation, that they were at best only lessees for three years which was due to expire very shortly after the order of confirmation was passed by the Additional Custodian.
He pointed out that as soon as the application for confirmation was filed on the 23rd February, 1948, general notice by beat of drum and affixture in the locality and by publication in the Indian News Chronicle article was given, that the persons in possession at the time were only the previous tenants on the land, who either attorned to the appellant or left the village, that the allottees came into possession much later and pending the disposal of the confirmation proceedings and presumably subject to its result.
He also pointed out that even when the rules in this behalf came into force under Act XXXI of 1950, it was discretionary with the Custodian to give notice to persons other, than the transferor and transferee, if he considered them to be interested, and urged that since the same officer, Shri R. Dayal, made the allotment as also the confirmation, he must be taken to have exercised his discretion properly in not giving any notice to them, in view of the imminent expiry of the three years term for which they were put in possession.
It is strongly urged that having regard to the above considerations and to the categorical findings of the Custodian General himself that the 1138 transaction which was confirmed, was perfectly bona fide, the setting aside of the order of confirmation against which no appeal was filed by any one, and the consequential disturbance of the vested property rights of the appellant, was in the nature of perverse exercise of revisional power.
The learned Solicitor General appearing for the respondent contended that the finding of the CustodianGeneral about the bona fides of the transaction was only tentative, that the allottees, though provisionally placed in possession for three years had, what has come to be recognised as, a quasi permanent interest, that they had a genuine interest in opposing the confirmation sought, which related to a large tract of agricultural land, and which would reduce the pool of agricultural lands available for rehabilitation of displaced agriculturists and that confirmation of transactions relating to such land was opposed to the policy and directives of the Government and that the confirmation should not, in the circumstances, have been lightly granted by the Additional Custodian without notice to the allottees and a proper consideration of the policies and directives in this behalf.
In reply thereto learned counsel for the appellant urged that the alleged policies or directives are not relevant matters for consideration by the Custodian in these proceedings which must be taken to be quasi judicial, if not judicial, unless such policies or directives are embodied in rules made by the Central Government under section 56(2) (q) and that no such rules were prescribed by the relevant dates and that even the Custodian General himself in his order under appeal discounted the usefulness of any reference to notifications and directives for the purposes of this case.
It was also urged that the matters which could be taken into consideration are regulated by section 40(4) of Act XXXI of 1950 and that clause (c) thereof must be construed as referring to matters ejusdem generis with clauses (a) and (b) But in the view we take of the order under appeal and the course we propose to adopt, we do not wish to express any opinion on the merits of the above arguments.
1139 The order under appeal is one passed by virtue of the wide powers of revision vested in the Custodian General under section 27 of the Act.
The jurisdiction which has been challenged having been found in favour of the Custodian General, this Court would normally be slow to interfere with the order on its merits.
But with respect to the learned CustodianGeneral, his order is such that it is difficult to maintain it.
The learned Solicitor General himself has been obliged to put forward arguments in support of it which cannot be clearly gathered from the order itself.
It is also difficult together from it whether the remand to the Additional Custodian for reconsideration, after notice was a general and open remand where all questions on the merits are to be reconsidered or was only a limited remand and if so what the limitations are.
If it was meant to be an open general remand, as the concluding portion of his order seems to indicate, his definite findings on points (1) and (2) which he formulated for himself and the doubt he has expressed in his order about the usefulness of examining afresh the various notifications and directives to which his attention was drawn by the Assistant ,Custodian, would render it difficult for any Custodian on remand to consider any of those matters.
If so, the remand would appear to serve no substantial purpose.
In the circumstances, and in fairness to the learned Custodian General, the only proper course would be to set aside his order under appeal and to remit the matter back to him for fresh consideration.
On such fresh consideration he will give full opportunity to both sides for presentation of their respective points of view.
If on the rehearing, he decides to remand the case to the Custodian, he will clearly indicate what are the matters to be considered by him.
The learned Custodian General may also consider the feasibility of his dealing with the matter finally by himself, calling for a report, if need be, from the Custodian on specified matters, in order to obviate any further delay by appeal and revision in this already protracted matter.
| IN-Abs | The appellant, a displaced person from Lahore, was the owner of a house there and on the 10th of October, 1947, she arranged to have it exchanged with certain lands in a village in the State of Delhi, belonging to M, an evacuee.
On the 23rd of February, 1948, she made an application to the Additional Custodian of Evacuee Property (Rural), Delhi, for confirmation of the transaction of ex 1118 change under section 5 A of the East Punjab Evacuees ' (Administration of Property) Act, 1947, as amended in 1948 and applied to the State of Delhi.
Under section 5 B of the Act an order if passed by the Custodian or Additional Custodian would not be subject to appeal or revision, and would become final and conclusive.
But the application was not disposed of until the 20th of March, 1952, and on that date the Additional Custodian passed an order confirming the exchange.
In the meanwhile, there were changes in the law relating to evacuee property by which the East Punjab Act as applied to the State of Delhi witness repealed and re enacted, and ultimately Central Act XXXI of 1950 was passed which, among other things, conferred by section 27 revisional powers on the Custodian General.
The Custodian General issued a notice under section 27 to the appellant and, after hearing her, set aside the order of confirmation and directed the matter to be reconsidered by the Custodian.
It was contended for the appellant that the order of confirmation by the Additional Custodian was not open to revision, on the ground that on the filing of the application in 1948 the appellant got a vested right to have it determined under section 5 A, with the attribute of finality and conclusiveness under section 5 B attaching to such determination, and that the subsequent repeal and re enactment of these provisions cannot affect such a right, in view of section 6 of the General Clauses Act, and section 58(3) of Act XXXI of 1950.
Held (i) that section 6 of the General Clauses Act (X of 1897) was not applicable to the case, as section 58(3) of Act XXXI of 1950 was a self contained provision indicative of the intention to exclude the operation of section 6; (ii)that the right to a determination with the attribute of finality, assuming that such a right exist,.
;, is not a vested right and it does not accrue until the determination is in fact made, when alone it becomes an existing right.
Colonial Sugar Refining Co. Ltd. vs Irving ([1905] A.C. 369) and Delhi Cloth & General Mills Co. Ltd. vs Income Tax Com missioner ([1927] I.L.R. ; 54 I.A. 421), distinguished; (iii)that the words "the repeal shall not affect the previous operation of the repealed law" in section 58(3) of Act XXXI of 1950 cannot be construed as meaning "the repeal shall not affect the future operation of the previous law"; and (iv)that the scheme underlying section 58(3) is that every matter to which the new Act applies has to be treated as arising, and to be dealt with, under the now law except in so far as certain consequences have already ensued or acts have been completed prior to the new Act, to which it is the old law that will apply.
In view of section 58, the application of the appellant for con firmation pending on the date when Act XXXI of 1950 came into force, had to be dealt with and disposed of under this Act and the order of confirmation passed in 1952 was subject to the revisions power of the Custodian General under s, 27 of the said Act, 1119 Quaere.
Whether a right of appeal in respect of a pending action can be treated as a substantive right vesting in the litigant on the commencement of the action.
|
Civil Appeal No. 1815 1975.
(Appeal by Special Leave from the Judgment and Order dated 22 8 74 of the Kerala High Court in Appeal Suit No. 165/71).
T.C. Raghavan, N. Sudhakaran and K. Rewal Kumar, for the Appellant.
T.S. Krishnamurthy Iyer, T. Rajandra Choudhury and Mrs. V.D. Khanna, for the Respondents.
The Judgment of the Court was delivered by GOSWAMI, J.
This appeal by special leave is directed against the judgment of the Kerala High Court out of a proceeding for opportionment of compensation under the Land Acquisition Act.
Certain property measuring 2 acres 21 cents in R.S. 299/1 of Chevayur village was acquired by the Government.
The compensation which was awarded was a sum of Rs. 2859.88 including the solatium.
There were five claimants clamour ing for the compensation.
While the first claimant (herein after to be described as the appellant) claimed the entire compensation after making allowance for a small sum of Rs. 437.50 in favour of the claimants 2to 4 (hereinafter to be described as the respondents) the latter, on the other hand, claimed the entire amount minus a sum of Rs. 350/ which, according to them, was the entitlement of the appel lant.
The acquired property originally belonged in janman (freehold right) to one Vakeri Thannanone Raman Nair.
After his death the same was inherited by his heirs and legal representatives.
They assigned their Janmam right on Janu ary 14, 1967.
in favour of the appellant.
Based on such a right the appellant is now claiming the aforementioned compensation.
The earlier history of the property shows that the 'otti ' right in the land had been transferred to the Prede cessors in interest of the appellant and to those of the respondents by the daughter of Vakeri Thannanone Raman Nair and other heirs by a registered document of December 30, 1894, for a consideration of Rs. 650/ .
The document is marked as exhibit A 2.
The entire controversy between 698 the parties will turn on the construction of the above deed (exhibit A 2) as to whether it is a mortgage fir a lease.
Although, prior to the assignment of the Janman right in favour of the appellant the parties, naturally, would have been sailing on the same boat as to theft status under ' the deed, the acquisition of Janmam right by the appellant in 1967 gave, him an opportunity to part company with the respondents and to claim almost the entire compensation to the deprivation of the respondents on the acquisition of the larger estate into which the lesser estate had merged.
The respondents, therefore, threw down their gauntlet taking the position that the document exhibit A 2 evidenced a transaction of lease and they acquired tenant rights in the land.
If they succeed in this: plea, they will be entitled to almost the entire amount of compensation under the Kerala Land Reforms Act 1963 (Act 1 of 1964) and the appellant even with the Janmam right will only get a pittance.
It may be noted that the appellant, had already got his 14th share of the otti right by partition some time in 1936 and there was a partition suit in 1949 when the appellant and the respondents divided this property by metes and bounds in the course of execution of a partition decree in O.S. 32 of 1949.
We are required to construe the deed executed in the year 1894.
The deed was not drafted by a lawyer conversant with the legal implications of a mortgage or a lease but by a bond writer as perhaps was the usual practice in the fall of the last century and continuing even upto the present times.
The deed was written in Malayalam and we have an agreed translation of the document before us.
The learned Judge of the High Court being conversant with the language was natu rally in a better position to appreciate the significance in the original document placed side by side with the translat ed exhibit.
In construing a document like the one before us it is always necessary to find the intention of the party execut ing it.
The intention has to be gathered from the recitals and the terms in the entire document and from the surround ing circumstances.
How the parties or even their represen tatives in interest treated the deed in question may also be relevant.
It is also well settled that the nomenclature given to a document by the scribe or even by the parties is not always conclusive.
The word "otti", as such, used in the document, is not, therefore, of much consequence.
Before we proceed further we may turn to the contents in the document.
The deed is described as an "otti deed" executed by Nani Amma, Janmam holder and manager and several other co sharers in favour of Kesavan Nambudiri.
Next the document recites the various debts including the kanom of Rs. 100/ in respect of seven items of nilams (wet lands).
The debt owed by the executants on that date was Rs. 650/ covering all the outstanding dues upto that date and Rs. 8910 cash received on that date from the transferee.
Having recited the consideration in the deed as above the document concludes as follows : The "Mambakkad paramba (dry land).
described in the Schedule under, belonging to us in jenm (absolute) 699 right, with all the improvements therein has been demised and given to your possession for a period of 72 years, you may enjoy the paramba (dry land) with all the improvements on otti right and after adjusting the interest on otti consideration pay the purappad Rs. 3155 fixed to be paid annually and also pay the revenue in our jema and obtain receipt therefor.
On the expiry of the said period, when the otti amount is paid and the otti is redeemed, we shall pay the value of improvements then found and fixed.
We hereby assure you that to our knowledge and belief there is no other charge or liability on this property".
Apart from the document neither party adduced any evidence before the court.
From the contents of the docu ment it is clear that the consideration was predominantly past debt and only a small sum of cash was received on the date of its execution.
Possession of the land was made over to the transferee giving him the right to "enjoy" the land.
The transferee was required to appropriate the income of the property to the interest on the amount ad vanced.
The transferee was also to pay the land revenue to the credit of the transferor.
A fixed amount of Rs. 3155 was to be paid by the transfered to the transferor annually as "purappad".
This word "purappad" means "the net produce or net rent payable to the janmi after deducting interest on advances made by the tenant and the Government tax*".
The debt of Rs. 650/ will remain unpaid even after the expiry of 72 years when the said otti amount has to be repaid.
There is also an indication in the recitals that the proper ty will return to the transferor who "shall pay the value of improvements then found and fixed".
The is nothing in the recitals to show that the land was given as security for the amount of loan.
There is no right of sale of the land delivered to the transferee in case the debt is not dis charged.
On the other hand, there is a clear recital about the payment of annual rent by the transferee to the trans feror.
The trial court held the document to be a mortgage whereas the High Court held it to be a lease.
It is enough to point out that the trial court was wrong in holding that the transferee was to utilise the amount of Rs. 3 15 5 for paying the land revenue.
On the other hand, the document stated that this amount of fixed rent was to be paid annual ly in addition to the Government revenue which the transfer ee was required to pay.
This feature of payment of rent, in this case, flits the balance in favour of construing the document as a lease, coupled with the fact that the essence of a mortgage being the transfer of immovable property as security for the debt is conspicuous by its absence in the detailed enumeration of the terms.
Further, as stated earli er, there is no right to sell the property in case the debt is not repaid.
There is also nothing to show that the enjoyment of the usufruct was intended to wipe out the debt in the long period of occupation.
We find that after the expiry of the period of 72 years mentioned in the document the appellant purchased the Janmam right of the * Aiyar 's Law Lexicon of British India, 1940, page 1050.
13 1234SCI/76 700 entire property in 1967 for a sum of Rs. 1000/ which in cluded the sum of Rs. 650/ which was the consideration in exhibit A 2.
The Kerala Land Reforms Act, 1963 (Act 1 of 1964) had already been passed, by then.
It would, therefore, appear crystal clear that whoever be the janmi would be able to get only an infinitesimal sum of compensation for the property acquired and the major share, would go to the tenants in possession under the aforesaid Act.
It is not disputed that the appellant got his 1/4th share of compensa tion of the acquired property in terms of the earlier parti tion to which we have already adverted.
It was therefore, a clever act1 on the ' part of the appellant to manage to the Janmam right of the transferor in the year 1967, when per haps the proposal for acquisition of the land had already been in the air, in order that he was able to claim the remaining 3/4th share of compensation to which he would otherwise be not entitled except to an insignificant extent.
The transferors, themselves, would be in no better position after the Kerala Land Reforms Act.
When, therefore, the appellant offered to the transferors some money which the latter would not otherwise have obtained, in view of the provisions of law, the assignment of the Japnam right was made in favour of the appellant.
The transferors thus walked out of the field leaving the future contest amongst the transferees out of whom the appellant came to be the Janmi.
It is apparent that after the partition the appel lant would not stand to gain with regard to the 3/4th share of the property, which is in dispute, by accepting the document ,rs a lease since the respondents are the transfer ees in possession of this particular property.
The appel lant, therefore had cast his lot in a gamble by purchasing the Janmam right from the transferors in 1967.
There is sufficient force in the contention of the respondents that the transferors themselves treated this document as a lease for else it cannot be explained why they would have parted with their Janmam right of the entire property for Rs.1000/ , inclusive of the otti debt, if they themselves had regarded this document as an instrument of mortgage.
There is another significant feature that while there was arrangement to pay a fixed annual "purappad" to the transferor, such a sum was not intended to be utilised towards reduction of the principal debt.
It is, therefore, not possible to say that the High Court is wrong in holding that the consideration of Rs. 650/ in the deed was intended as a premium for the lease.
There is also no evidence whatsoever to indicate as to what the price of the land was to determine the proportion between the amount advanced and the value of the property.
The document taken as a whole lacks the most essential ingredient of a mortgage, namely, that the transfer of the property has to be made as a secu rity for the debt.
The High Court has also noted that since the document was of a composite character disclosing features of both mortgage and lease it must be taken as a lease.
We do not think that the High Court is correct in this view.
Indeed the High Court in a later Full Bench.
decision has not accepted this view.
(See Velayudhan Vivekanandan vs Ayyap pan Sadasivan).
(1) (1) I.L.R. [1975] 1 Kerala 166.
701 We are of opinion that when there are some mixed ele ments in an instrument disclosing features of mortgage as well as of lease, the court will have to find out the pre dominant intention of the parties executing the document viewed from the essential aspect of the reality of the transaction.
Human transactions cannot be tied to textual defini tions.
They have to respond to variable requirements under different situations and often to the dictates of the party at an advantage in the bargain.
Mortgages are not always simple, English, or usufructuary or such other types as defined in the Transfer of Property Act.
They are anomalous too and sometimes more anomalous than what is defined in the said Act.
Even so, there is one most essential feature in a mortgage which is absent in a lease, that is, that the property transferred is a security for the repayment of debt in a mortgage whereas in a lease it is a transfer of a right to enjoy the property.
We have seen that this essential feature of a mortgage is missing in the document in ques tion.
We are, therefore, unable to come to the conclusion that it is a mortgage and not a lease.
In view of the foregoing discussion, we are not able to hold that the High Court is not right in holding that the document in question is a lease and not a mortgage.
In the result the appeal is dismissed.
We will, however, make no order as to costs.
P.B.R. Appeal dis missed.
| IN-Abs | By a registered deed described as "otti deed" the otti right in a piece of land had been transferred in 1894 to the predecessors in interest of the appellant and of the re spondents by the janmi for a period of 72 years for a cer tain consideration.
The document recited various debts in respect of wet lands.
the debt owed by the executants and cash received from the transferee on that date.
Possession of the land was made over to the transferee giving him the right to enjoy the land.
The other terms of the deed were that the transferee was required to appropriate the income of the property to the interest on the amount advanced, to pay land revenue; and a fixed amount to be paid by the transferee to the transferor annually as "purappad", that is, the net produce or net rent payable to the janmi after deducting interest on advances made by the tenant and the Government tax.
In 1949 the appellant and the respondents divided the property among themselves by metes and hounds and in 1967 the appellant purchased Janman rights in the entire land from the transferors for a small sum including the otti debt with a view to become the owner and therefore a mortgagor and thus get compensation with respect to the 3/4th share also.
When the land was acquired by the Govern ment the appellant claimed the entire compensation, while the respondents contended that the otti deed wan really a lease deed and that as tenants in possession of the land they would be entitled to the entire compensation under the Kerala Land Reforms Act, 1963.
The trial court held that the document was a mortgage while the High Court held it to be a lease.
Dismissing the appeal to this Court, HELD: (1)(a) When there are some mixed elements in an instrument disclosing features of mortgage as well as of lease.
the Court will have to find out the predominant intention of the parties executing the document viewed from the essential aspect of the reality of the transaction.
[701 A] (b) In construing a document it is always necessary to find the intention of the party executing it.
The intention has to be gathered from the recitals and the terms in the entire document and from the surrounding circumstances and how the parties or even their representatives in interest treated the deed in question.
The nomenclature given to a document by the scribe or even by the parties is not always conclusive.
The word 'otti ', used in the document, is not, therefore, of much consequence.
[698 F] In the instant case the document taken as a whole lacks the most essential ingredient of a mortgage, namely, that the transfer of the property has to be made as a security for the debt.
The document stated that fixed rent was to be paid annually in addition to the Government revenue which the transferee was required to pay.
This feature of payment of rent tilts the balance in favour of construing the docu ment as a lease, coupled with the fact that the essence of a mortgage being the transfer of immovable property as securi ty for the debt is absent.
There is no right to sell the property in ease the debt is not repaid.
There is nothing to show that the enjoyment of the usufract was intended to wive out the debt in the long period of occupation.
While there was arrangement to pay a fixed annual "purappad" to the transferor, such a sum was not 697 intended to be utilised towards reduction of the principal debt.
There is sufficient force in the contention of the respondents that the transferors themselves treated this document as a lease, for else, it could not be explained why they would have parted with their Janmam right of the entire property inclusive of the otti debt if they themselves regarded this document as an instrument of mortgage.
(2) The High Court was, however, wrong in holding that where the document was of a composite character disclosing features of both mortgage and lease it must be taken as a lease.
[700 H] Later Full Bench decision in Velayudhan Vivekanandan vs Ayyappan Sadasivan, I.L.R. [1975] 1 Kerala 166, approved.
|
Appeal No. 190 of.1976.
Appeal by special leave from the judgment and order dated 8 8 1975 of the Allahabad High Court in Civil Revision No. 1004/74.
S.C. Manchanda and M.L. Jain, for the appellants.
O.P. Malhotra, N.S. Das Bahl, Y.P. Chadha and Sat Pal, for the respondent.
The Judgment of the Court was delivered by RAY, C.J.
This appeal is by Special Leave from the judgment dated 8 August, 1975 of the High Court of Allaha bad.
The appellants are defendants and the respondent is the plaintiff in suit out of which this appeal arises.
The plaintiff 's suit is for a decree for Rs. 1,30,000/ on the cause of action as laid in the plaint.
The suit was instituted sometime in the month of May, 1971.
The defendants filed written statement.
Two paragraphs of the written statement contained addi tional pleas.
Paragraph 25 states that the agreement dated 7 April, 1967 is appli 729 cable to the transactions in which the plaintiff works as stockist cumdistributor of the defendants.
The defendants further allege in paragraph 25 that the agreement is not applicable to transactions in which the plaintiff acts as a principal, In paragraph 26 the defendants/appellants in the alternative allege that even if agreement dated 7 April, 1967 is applied to the dealings in suit, plaintiff 's posi tion is merely that of an agent of the defendants and as such plaintiff is not entitled to claim any damages from the defendants for non supply of its own goods for sale through the plaintiff.
The defendants/appellants approximately 3 years after the filing of the written statement made an application for amendment of the written statement.
The proposed amendments were for deletion of paragraphs 25 and 26 and for substitu tion of two new paragraph 25 and 26.
The proposed amendment in para 25 was that by virtue of the agreement the plaintiff was appointed a mercantile agent and the plaintiff acted in that capacity in placing orders on the defendants.
The defendants further denied the allegation of the plaintiff that the plaintiff placed orders with the defendants in the plaintiff 's capacity as a purchaser.
The defendants also alleged that the plaintiff throughout acted as an agent of the defendants.
In paragraph 26 of the proposed amendment it was alleged by the defendants that being a mercantile agent and an agent of the defendants in accordance with the terms of the agreement, the plaintiff has no locus standi to file the suit.
The trial court rejected the application of the defend ants for amendment.
One of the reasons given by the trial court is that the defendants wanted to resile from admis sions made in paragraph 25 of the written statement.
The trial court said that "the repudiation of the clear admis sion is motivated to deprive the plaintiff of the valuable right accrued to him and it is against law." The trial court held the application for amendment to be not bonafide.
The High Court on revision affirmed the judgment of the trial court and said that by means of amendment the defend ants wanted to introduce an entirely different case and if such amendments were permitted it would prejudice the other side.
The decision of the trial court is correct.
The defend ants cannot be allowed to change completely the case made in paragraphs 25 and 26 of the written statement and substitute an entirely different and new case.
It is true that inconsistent pleas can be made in plead ings but the effect of substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement.
If such amendments are allowed the plaintiff will be irre trievably prejudiced by being denied the opportunity of extracting the admission from the defendants.
The High Court rightly rejected the application for amendment and agreed with the trial court.
We are told that the defendants proposed amendments to two other paragraphs of written statement.
These are para graphs 4 and l 9 730 of the written statement.
These amendments were also rightly rejected.
For the forgoing reasons the appeal must fail.
The defendants, appellants cannot be allowed to amend the writ ten statement in the manner suggested.
The two alternative pleas of the defendants as alleged in paragraphs 25 and 26 of the written statement are there.
The parties will be able to make their rival contentions on the pleadings as to the issues to be raised.
The defendants wish to raise issues on those paragraph 25 and 26.
Counsel for the plaintiff states that it is open to the defendants to apply for the framing of the issues.
They will be at liberty to do so.
The costs of this appeal will be paid by the appel lants to the respondent.
Record can be sent back to the trial court as early as possible.
S.R. Appeal dismissed.
| IN-Abs | In a suit for decree for Rs. 1,30,000/ instituted by the respondent/plaintiff in May, 1971, the appellants/de fendants filed their written statement admitting that by virtue of an agreement dated April 7, 1967, the plaintiff worked as their Stockist cum Distributor.
After three years the defendants filed an interlocutory application under Order VI, Rule 17 to amend the written statement by substi tuting paragraphs 25 and 26 with a new paragraph in which they took the fresh plea that the plaintiff was a mercantile agent cum purchaser.
The trial court rejected the said application and the High Court, in revision, affirmed the judgment of the trial court.
Dismissing the appeal by special leave the Court, HELD: It is true that inconsistent pleas can be made in pleadings.
The defendants cannot be allowed to change completely the case and substitute an entirely different and new case.
In the instant case, the effect of substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings.
but it is seeking to displace the plaintiff completely from the admissions made by the defend ants in the written statement.
If such amendments are allowed, the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants.
[729 G]
|
ivil Appeal Nos. 415 and 962 of 1976.
(Appeals by Special Leave from the Judgment and Orders dated 2 3 1976 and 21 7 1976 of the Punjab & Haryana High Court in Civil Writ Petition Nos. 561 and 1961 of 1976 respectively).
S.T. Desai, Talat Ansari and Shri Narain for J.B. Dadac hanji, for the Appellants (in both appeals).
718 M.C. Bhandare and R.N. Sachthey, for the Respondents (in both appeals).
The Judgment of the Court was delivered by UNTWALIA, J.
In these two appeals by special leave a common question of law falls for our determination, hence, they have been heard together and are being disposed of by this judgment.
The Indian Aluminium Cables Ltd., appellant No. 1 in both the appeals has got its factory at Faridabad in the State of Haryana.
It sells and supplies aluminium cables to several State Electricity Undertakings or Boards situated in the various States.
In respect of the assessment year 1962 63, the Company raised a dispute that it was not liable to pay Central Sales Tax under the , as it claimed to be exempt from inter State tax on the sales of its products to the various State Undertakings or Boards by reason of the provisions contained in section 5 (2)(a)(iv) of the Punjab General Sales Tax Act, 1948 hereinafter referred to as the Act.
The Tribunal decided the matter in favour of the assessee Company but the High Court of Punjab and Haryana answered the Sales Tax Reference made at the instance of the Revenue against the assessee.
The decision of the High Court is reported in The State vs Indian Aluminium Cable Ltd., Faridabad(1).
The matter was brought to this Court in appeal and by a decision given on April 2, 1976 the view of the High Court was af firmed and it was held that the sales 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 Punjab Act.
The decision of this Court is reported in Indian Aluminium Cables Ltd. and another vs State of Haryana(2).
The period of assessment concerning the appellant is each quarter of the year.
In respect of.all the 8 quarters of the years 1969 70 and.
1970 71, Returns were filed by the Company in time, i.e. on or before the last day of the month following the quarter concerned.
The Assessing Authority did not accept the Returns and issued notices on May 22, 1970 under section 11 (2) of the Act in respect of the 4 quarters of 1969 70 requiring the assessee Company to pro duce evidence in support of the Returns.
Since the ques tion of assessee 's liability to pay Central Sales Tax was pending in reference before the High Court the matter was not pursued by the Assessing Authority and as per the re quest of the asses.see it was kept pending.
Even though the High Court decision was given on November 5, 1973, the matter became subjudice in appeal filed in this Court.
It appears that the matter of assessment in respect of the year 1969 70 was taken up by the Assessing Authority again by issuance of a notice on September 15, 1975.
Thereupon, the Company filed Civil Writ Petition No. 561/1976 in the High Court on January 27, 1976 to quash the notice dated Septem ber 15, 1975 and to re.strain the State.
of Haryana and its Officer the Excise and Taxation Officer, Faridabad, from proceeding with the assessment.
It is said that in respect of the 4 quarters of the (2) 38 S.T.C. 108. 719 year 1970 71 notices under section 11(2) of the Act were issued for the first time by the assessing authority on January 30, 1976.
Thereupon, the Company filed in the High Court Civil Writ Petition No. 1961/1976 for reliefs simi lar to the ones asked for in the other writ petition.
According to the appellant, in the first writ petition were raised before the High Court the two main questions in the following terms: "(i) Whether the assessment proceedings with regard to assessment year 1969 70 could be proceed ed with and whether assessment order could be passed beyond a period of 5 years after the expiry of the period to which the assessment relates.
In other words, whether the Sales Tax Officer had jurisdiction to make assessment for the assessment year 1969 70 which had become time barred; (ii) Whether Central Sales Tax was payable in respect of sale of electric cables manufactured and sold by the petitioner Company to State Electricity Boards in view of the exemption granted generally under section 8(2A) of the read with section 5 (2) (a) (iv) of the Punjab General Sales Tax Act, 1948".
This writ petition was dismissed in limine by a Bench of the High Court stating "Reply has been filed.
The matter is covered in favour of the respondent by 33 STC 152.
Dismissed".
It appears by the time the second writ petition came to be filed the appellant 's liability to pay Central Sales Tax was decided by this Court in the case referred to above.
Therefore, in the second writ petition, in the main, the question raised was one of limitation as in the other writ petition.
Another Bench of the High Court dismissed this writ petition in limine on July 21, 1976.
In substance and in effect, in spite of the Full Bench decision (by the majority) of the High Court in the case of Rameshwar Lal Sarup Chand vs Shri U.S. Naurath, Excise & Taxation Officer, Assessing Authority, Amritsar and Another(1), on which Mr. S.T. Desai, learned counsel for the appellant heavily relied upon before us, neither Bench found any substance in the point of limitation raised by the Company and dismissed the two writ petitions in limine.
In our opinion the High Court was right, for the reasons to be stated hereinafter in this judgment, in not entertaining the point of limitation in spite of the full Bench decision aforesaid, as, the said decision in view of many pronouncements of this Court to be alluded to hereinafter is no longer good law.
In face of the decision of this Court in Indian Alumini um Cables Ltd. & Anr.
vs State of Haryana (supra) the ques tion of the appellant 's tax liability under the was not reagitated before (1) 15 S.T.C. 932.
720 US.
Learned counsel for the appellant, however, strenuously urged that the assessing authority could not assess the tax payable by the appellant on expiry of the period of 5 years from the end of each quarter.
The 4th quarter of the year 1969 70 expired on March 31, 1970 and the period of 5 years having expired on March 31, 1975 no assessment could be made thereafter.
In relation to the year 1970 71 even the notice for the first time was issued under section 11 (2) of the Act after the expiry of the period of 5 years in relation to the first three quarters, although it was within time apropos the last quarter.
The period of the last quar ter expired on March 31, 1971; but no assessment could be made, according to the appellant 's counsel, even in regard to the assessment year 1970 71 in respect of any quarter on the expiry of the 5 years ' period reckoning from the last date of the quarter.
Mr. M.C. Bhandare, learned counsel for the respondents submitted that although a time limit had been ' fixed in sub sections (4), (5) ,and (6) of section 11 of the Act, no time limit was fixed by the Legis lature for actions and orders to be taken and passed under sub ' sections ( 1 ), ( 2 ) and ( 3 ).
Counsel, therefore, urged that neither the issuance of any notice under section 11 (2) of the Act was beyond any period of time nor was the assessing authority under any disability of any period of limitation in passing the final order of assessment in respect of any of the quarters in question.
The alternative submission of Mr. Desai that in any view of the matter notice had to be issued under section 11 (2) and assessments had to be completed under section 11 (3) within a reasonable time was also refuted by Mr. Bhandare.
It is beyond any dispute and debate that under section 10 of the Act read along with the Rules framed thereunder, Return has to be filed by a dealer for each quarter by the last day of the following month of the quarter and admitted sales tax as per the Return has also got to 'be deposited and challan filed along with the Return.
It will be seen hereinafter from the authoritative pronouncements of this Court that the mere statutory liability of a dealer to file the Return or to pay the tax has not the effect of commence ment of any proceeding under the Act.
If a dealer does not file a Return being liable to pay tax, then action under sub section (5) or sub section (6), as the case may be, has to be taken by the Assessing Authority within the period of 5 years prescribed therein.
The expression "proceed to assess" in those two sub sections as also in sub section (4) means taking some effective step towards proceeding to make the best judgment assessment in accordance with the sub section which may be applicable.
In a given case action may be taken under section 11 A (1 ) of the Act treating the case as a case of escaped assessment within the meaning of said section.
But the assessing authority has got to.
pro ceed to assess or reassess within 5 years following the close of the year for which the turnover is proposed to be assessed or reassessed.
But in a case where the assessee has filed the Return the proceeding under the Act commences on the filing of the Return.
"If the Assessing Authority is satisfied without requiring the presence of dealer or the production by him of any evidence that the returns furnished in respect of any period are correct and complete, he shall assess the amount of tax due from the dealer on the basis of such returns" as provided for in section 11 (1 ).
The assessment under sub section(1) can be made at any time even 721 according to the Full Bench decision of the Bombay High Court in Bisesar House vs State of Bombay and Others(1), followed in Rameshwar Lal Sarup Chand(3).
But the view of the Bombay High Court on a consideration of the similar provisions of the other State Statutes that a notice under sub section (2) must be issued within the period of limita tion mentioned in other sub sections of section 11 or sec tion 11 A no longer holds good.
A notice under sub section (2) requiring the dealer to produce evidence can be issued at any time after the filing of the Return.
The expectancy of taking steps without any undue delay and within a reasonable time is an expectancy of prudence.
But legally the action cannot be nullified merely on the ground of delay in the issuance of the notice under section 11 (2).
Sub section (3) of section 11 says : "On the day specified in the notice or as soon afterwards as may be, the Assessing Authority shall, after hearing such evidence as the dealer may produce, and such other evidence as the Assess ing Authority may require on specified points, assess the amount of tax due from the dealer".
On a correct interpretation of the provision afore said what emerges as follows : (i) That the Assessing Authority shall hear the evidence produced by the dealer on the day speci fied in the notice issued under sub section (2).
(ii) It can adjourn the hearing to some other day and hear the evidence produced by the dealer on the adjourned day or days.
(iii) The Assessing Authority may require the dealer to produce further evidence on specified points on the adjourned day or days.
(iv) The Assessing Authority should assess the amount of tax due from the dealer, that is to say, pass the order of assessment, on the day on which the.
hearing ,of the evidence is completed or "as soon afterwards as may be".
"the last phrase is absent in some of the similar statutes.
It, therefor may be open to argument whether the assessment order passed under section 11(3) of the Act after undue delay of the comple tion of the hearing of the evidence produced or required to be produced by the dealer is valid or not.
But we are not concerned with the said ques tion in this case as on the facts and in the cir cumstances appearing relation to the assessment proceedings of either of the two years to produc tion of evidence by the assessee could not and has not start as yet because of the filing of the writ petitions and the appeals in the Court.
It goes without saying that the assessing authority will be well advised to complete the assessment proceedings in question as soon as it may be possible to do so after the delivery of this judgment.
(1) 9 S.T.C. 654.
(2) 15 S.T.C, 932.
722 Sub section (4) of section 11 is attracted in a case where a dealer having furnished a Return in respect of a period fails to comply with the terms of a notice issued under sub section (2).
In such a case the Assessing Authority has to take some effective step, such as issuance of a notice to the assessee intimating to him that he is proceeding to assess to the best of his judgment the amount of tax due from the dealer.
On failure of a dealer to furnish a Return in respect of any period by the prescribed date the Assessing Authority after giving the dealer a reasonable opportunity of being heard can proceed to assess to the best of his judgment the amount of tax, if any, due from the dealer.
In such a case also an effective Step such as issuance of a notice to the dealer concerned showing that the Assessing.
Authority is proceeding to assess has got to be taken within 5 years of the expiry of the period concerned.
Sub section (6) is attracted in the case of a dealer who being liable to pay tax under the Act has failed to apply for registration.
Similar steps as the ones to be taken under subsection (5),are to be taken under sub section (6) within a period of 5 years after the expiry of the concerned period.
But the Legis lature advisedly did not fix any period of limita tion for taking up of the steps or the passing of the assessment order under any of the sub sections (1), (2) or (3).
The reason is obvious.
Best judgment assessments in the circumstances mentioned in any of the sub sections (4), (5) or (6) could not be allowed to be made after the expiry of a certain reasonable time which the Legislature thought was three years previously but made it five years by Punjab Act 28 of 1965.
But where a regis tered dealer has filed the Return the assessing authority can pass the assessment order under sub section (1 ) and accept the Return filed by the dealer as correct and complete.
In such a case the formality of passing an order of assessment is to be completed without any further demand of tax from the dealer.
For the issuance of a notice under subsection (2) no time limit has been fixed, but the assessing authority must remain on its guard of taking the steps and completing the assessment as soon as it may be possible to do so.
Other wise, the risk involved may just be pointed out.
Take a case where a notice under sub section (2) is issued after the expiry or just on the verge of expiry of the period of 5 years and the dealer fails to comply with the terms of the notice.
In such a case the assessing authority may have to proceed to make the best judgment assessment under sub section (4) attracting the bar of limitation of 5 years.
But, of course, there may be a case where in spite of the failure of the dealer to comply with the terms of a notice issued under sub section (2) the assessing authority may be in a position to complete the assessment under sub section (3), treating the alleged failure of the dealer as not a real failure on his part.
We now proceed to discuss some of the relevant decisions on the points at issue.
In Bisesar House case (supra), Chagla, C.J. delivering the judgment of a Full Bench of the Bombay High Court on a consideration of the similar provisions of section 11 of the C.P. and Berar Sales Tax Act, 1947 applied the ratio of his decision in Commissioner of Income tax, Bombay City vs Natsee Nagsee & Co.(1), to a case covered by (1) 723 section 11 (2) of the Sales Tax Act.
With respect to the learned Chief Justice we say that he was not right when he said at page 669: "Section 11 (2) is in the substantial sense an initiation of fresh proceedings by the Commission er.
It is open to the Commissioner to be satisfied with what the assessee has done and pass an order under section 11 (1).
But if he is not satisfied, then he initiates fresh proceedings under section 11(2) by issuing a notice.
That undoubtedly is putting the assessee to the peril of the apprehension that as a result of the notice his tax might be enhanced.
If the principle we have laid down in Narsee Nagsee 's case 31 I.T.R. 164 is correct, then that princi ple would undoubtedly apply to the issuing of a notice under section 11(2)".
As held by this Court in the case of Ghanshyamdas vs Regional Assistant Commissioner of Sales Tax, Nagpur & others(1), even the filing of a Return by a dealer is tantamount to initiation or commencement of a proceeding under the Sales Tax Act.
The decision of the Bombay High Court in Narsee Nagsee 's case Was affirmed by a Division Bench (by majority) of this Court in Commissioner of Income tax, Bombay City Iv.
Narsee Nagsee & Co. (2).
Subba Rao, J. as he then was, delivering the majority opinion of a Constitution Bench of this Court in Ghanshyam das 's case (supra) referring to the decision of the Privy Council in Rajendranath Mukherjee vs Income tax Commission er(1), said at page 983 of 14 S.T.C. "This decision is a clear authority for the position that if a return was duly made, the assessment could be made at any time unless the statute prescribed a time limit.
This can only be for the reason that the proceedings duly initiated in time will be pending and can, therefore, be completed without time limit".
At page 987 says the learned Judge: "It is manifest that in the case of a registered dealer the proceedings before the Commissioner start factually when a return is made or when a notice is issued to him either under section 10(3) or under section 11(2) of the Act".
As rightly point ed out by Shah, J. as he then was, at page 436, if we may say so with respect, in the case of Regional Assistant Commissioner of Sales Tax, Indore vs Malwa Vanaspati and Chemical Co. Ltd.(4), section 11 (2) is a typographical error in the sentence extracted above.
In disapproval of the view of the Full Bench expressed in Bisesar House case (supra) it was reiterated at page 989 in Ghanshyamdas 's case "AS we have held that the submission of a statutory return would initiate the proceedings and that the proceedings would be pending till a final order of assessment was made on the said return, no question of limitation would arise . . .
For the foregoing reason we hold that a statutory obligation to make a return within a prescribed time does not proprio vigore initiate the assessment proceedings before the Commissioner; but the proceedings would commence after the return was submitted and would continue till a final order of assessment was made in regard to the said return".
(1) 14 S.T.C. 976 . (2) (3) (4) 21 S.T.C. 431.
724 In Narsee Nagsee 's case (supra) it has been pointed out by the majority of the Bench that a notice under section 11(1) of the Business Profits Tax Act, 1947 "must be given within the financial year which commences next after the expiry of the accounting period or the previous year which is by itself or includes the chargeable accounting period in question".
(vide page 317 of 40 I.T.R.).
It was also pointed out in that case that the words "profits escaping assessment" ' in section 14 of the Business Profits Tax Act applied equally to cases where notice had been given but had resulted in no assessment and to cases where due to inadvertence, oversight or any other reason no notice was given and therefore no assessment was made.
This Court in The State of Punjab & Others vs Tara Chand Lajpatt Rai(1), reversed the decision of the Punjab High Court in Civil Writ No. 1088/61 and following the decision of this Court in Ghanshyamdas 's case (supra) stated at page 501: "This decision is, therefore, a clear authority for the proposition that assessment proceedings commence in the case of a registered dealer either when he furnishes a return or when a notice is issued to him under section 11(2) of the present Act, and that if such proceedings are taken within the prescribed time though the assessment is fina lised subsequently, even after the expiry of the prescribed period, no question of limitation would arise".
In the case of Tarachand Lajpat Rai (supra) the dealer had filed the Returns after the expiry of 30 days from the relevant date but they were not rejected by the Department on that ground.
Notice under section 11 (2) of the Act was issued and that also was done before the expiry of period of 3 years ' as the period of limitation stood then in the other sub sections.
On the authority of Ghan shyamdas 's case it was held "the assessment pro ceedings commenced either when the respondent firm filed the returns or in any event from the date of the said notice.
Both the events, therefore, were within the prescribed time.
" The decision of the Full Bench of the Punjab High Court in the case of Rameshwar Lal Sarup Chand (supra) was merely distinguished on the ground that the question decided in Ghanshyamdas 's case did not come up for consideration in Rameshwar Lal 's case.
But we think it is high time that the decision of the Full Bench of the High Court in Rameshwar Lal 's case should be clearly and expressly over ruled now.
An identical view had been expressed by his Court reversing the decision of the Punjab High Court in Letters Patent Appeal No. 319/63 in the case of The State of Punjab and another vs Murlidhar Mahabir prasad(2).
The challenge before this Court in the case of Madhya Pradesh Industries Ltd. vs State of Maharashtra and Others(3), was whether sub section (3) of section 11A of the C.P. and Berar Sales Tax Act, 1947 was violative of Article 14 of the Constitution.
The argument was repelled and it was stated at page 402 by Hegde, J. (1) 19 S.T C:.
493 (2) 21 S.T.C. 29.
(3) 22 S.T.C. 400.
725 delevering the judgment on behalf of himself, Wanchoo, C.J. and Mitter,J.: "This Court in Ghanshyamdas 's case specifically overruled the decision of the Bombay High Court in Bisesar House case.
Therein this Court held that while s.11 (2) deals with pending proceedings, section 11A concerns itself with matters which are not pending.
This Court .further ruled that in the case of pending proceedings the Act has not pre scribed any period of limitation.
That decision proceeds on the basis that section 11 (2) and section 11A cover different fields and that they do not overlap".
Bachawat, J. speaking for himself and Ramaswami, J. went a step further and in their concurring judg ment stated at page 403: "There is no limitation for the issue of a notice under section 11 (2).
This follows from a plain, reading of section 11(2) independently of section 11A(3).
Neither section 11(2) nor sec tion 11A(3) is violative of Article 14.
A notice under section 11 (2) is issued in a pending pro ceeding, where as a notice under section 1 I A( 1 ) initiates a new proceeding.
There is a reasona ble basis for classification and differential treatment of the notices under sections 11(2) and 11A(1) for the purposes of limitation.
" The majority opinion of the Full Bench of the Punjab High Court was delivered by two judges in the case of Rameshwar lal Sarupchandra (Supra) Pandit J ave a dissenting opin ion.
It is wrong to say, as stated by the majority, that the expression "proceed to assess" and the word "assess" connote the same meaning.
The ratio of the majority opinion is chiefly based upon the decision of the Full Bench of the Bombay High Court in Bisesar House 's case which decision was not approved by this Court and must be deemed to have been overruled.
The majority we may also point out with respect, committed a mistake in appreciating the deci sion of this Court in the case of Madan Lal Arora vs The Excise and Taxation Officer ', Amritsar(1) Sarkar, J., as he then was, delivering the judgment on behalf of a Constitu tion Bench of this Court adverted to the facts of the case and stated that the registered dealer under the Punjab General Sales Tax Act had filed returns for the 4 quarters of the financial year ending on March 31, 1955 as also for the 4 quarters for the financial year ending on March 31, 1956.
In respect of each year the Sales Tax Assessing Officer served three successive notices on the dealer one on March 7, 1958, the other on April 4, 1958, and the third on August 18, 1959.
The first two notices were merely under section 11(2) of the Act.
But in the last notice which was issued after the expiry of 3 years it was stated that on the dealer 's failure to produce the docu ments and other evi dence mentioned in the notice, the case would be decided on best judgment assessment basis.
The dealer did not comply with any of the notices and challenged with success by a petition under Article 32 of the Constitution the right of the authorities to, make a best judgment assess ment.
In that connection it was (1) 12 S.T.C. 387 726 pointed out that the period of 3 years mentioned in sub section (4) of section 11 of the Act had to be counted from the expiry of the period in relation to which the returns had been filed and on expiry of the said period the author ities could not proceed to make the best judgment assess ment.
The third and the last notice given on August 18, 1959 was taken to be a notice to the dealer that the as sessing authority was proceeding to make the best judgment assessment and since this was done more than 3 years after expiry of all the 8 quarters ' in respect of the two years it was held to be without jurisdiction and the respondent was restrained from making any best judgment assessment on the petitioner for sales tax for any quarter of the financial years 1954 55 and 1955 56.
The decision of this Court in Madan Lal Arora 's(1) case justifies our apprehension which we have mentioned in the beginning of our judgment to the effect that if a dealer fails to comply with the notice issued under section 11 (2) of the Act, then in such a case, even though there may not be any time limit for issuance of a notice, but on the dealer 's failure to comply with it the assessing authority may be obliged to take recourse to sub section (4) attracting the bar of limitation of 5 years for proceeding to assess on the best judgment basis.
The majority, however, was wrong when they said at page 949 of 15 S.T.C. with reference to Madan Lal Arora 's case: "In the case before the Supreme Court, two notices were within three years and the third notice was beyond three years and their Lord ' ships held that the third notice beyond three years, the Assessing Authority had no jurisdiction to make the assessment.
If the phrase "proceed to assess" bears the meaning which the learned counsel for the State contends for, namely, that only a step towards assessment has to be taken and the assessment can be made at any time after the period of three years, their Lordships would on the basis of the two notices within the period of limitation, have come to a different conclusion and that is not what has been done.
" This was, it appears to us, clearly a mistaken reading of the judgment of this Court.
The majority in our opin ion, was also wrong in importing the period of limitation provided in sub sections (4), (5) and (6) of section 11 of the Act into sub section (3) and in holding, therefore, that an assessment under sub section (3) must also be completed within 3 years from the last date on which the return should be filed under the Act.
We are again constrained to point out that the majority of the Full Bench committed a mistake in thinking that, this Court had held in Madan Lal Arora 's case that the period of 3 years had to be counted from the last date on which the return should be filed.
The deci sion of the Full Bench of the Punjab High Court in the case of Ramashwar Lal 's case (supra) is clearly erroneous and must be over ruled.
Pandit, J. in his dissenting opinion had, by and large, taken a correct view in favour of the Revenue.
(1) 12 S.T.C. 387.
727 Lastly, we may also make a reference to a recent deci sion of this Court delivered by one of us (Untwalia, J.) in the case of Gurbaksh Singh vs Union of India & Others(1) An argument quite similar to the one advanced before us was advanced on behalf of the assessee appellant in that case before this Court.
It was argued that the period of 4 years of limitation prescribed under sub section (2a) of section 11 of the Bengal Finance (Sales Tax) Act, 1941 as extended to the Union Territory of Delhi, should be imported into the revisional and the appellate power of the authori ties conferred on them under section 20.
This argument was repelled and it was pointed out that .the legislature had not provided any period within which an order was to be made by an Appellate or Revisional authority; no such period should be imported in the exercise of the power on the basis of section 11 (2a).
Mr. Desai relied upon the penal timate paragraph of this decision in support of his conten tion that in any view of the matter notice under section 11 (2) had to be issued and the assessment completed within a reasonable time.
We do not accept this contention to be sound.
The argument as presented cannot be accepted to be correct.
In Gurbaksh Singh 's case it was not stated that the exercise of the revisional power suo moto could not be made after an undue long delay.
On such an assumption it was merely found as a fact that there was no undue delay in the suo moto exercise of the power.
In the result we do not find any merit in the appeals.
They are dismissed with costs.
Hearing fee one set only.
V.P.S. Appeals dismissed.
| IN-Abs | The appellant is an inter State dealer.
In respect of all the eight quarters of the years 1969 70 and 1970 71, the appellant filed returns in time.
In respect of the four quarters of 1969 70 the Assessing Authority did not accept the returns and issued notices under section 11(2) of the Punjab General Sales Tax Act, 1948, requiring the appellant to produce evidence in support of the returns.
Since the question of the appellant 's liability to pay central sales tax for an earlier assessment year (1962 63) was pending before the High Court, the matter was not pursued by the Assessing Authority and was kept pending.
After the High Court gave its decision against the appellant, and while the matter was pending appeal in this Court, the Assessing Authority took up the matter of assessment ' for the year 1969 70 by the issue of notice in September 1975.
The appellant thereupon filed writ petitions in the High Court to quash the proceedings.
In respect of the four quarters of the year 1970 71 notices under section 11(2) were issued by the Assessing Authority on January 30, 1976, and the appel lant filed writ petitions in the High Court for quashing those proceedings also.
All the ' writ petitions were dis missed by the High Court, In appeal to this Court, in view of the decision of this Court in appeal.
the appellant did not agitate the question of its tax liability under the Central Sales ' Tax Act.
but contended that, (i) the Assessing Authority could not assess the tax payable by the appellant on the expiry of the period of 5 years from the end of each quarter in relation to the year 1970 71 the same contention was raised even though notice under section 11(2) was within time apropos the last ' quarter; and (2) the notice under section 11(2) and assessment under section 11(3) had to be completed within a reasonable time.
Dismissing the appeals, HELD: (1) Under section 10 of the Act read along with Rules framed thereunder, the return has to be filed by a dealer for each quarter by the last day of the following month of the quarter and admitted sales tax as per the return has also got to be deposited.
Where a registered dealer has filed the return the Assessing Authority can accept the return as correct and pass the assessment order under section 11(1) If the Assessing Authority does not accept the return he may issue notice under section 11(2) asking the asses see to produce evidence in support of the return.
In such a. case the, Assessing Authority shall hear the evidence produced by the dealer on the day specified in the notice issued under sub section
(2), or adjourn the hearing to some other day and hear the evidence produced by the dealer on the adjourned day. or days.
or may require the dealer to produce further evidence on specified points on the ad journed day, or days.
The Assessing Authority should under section 11 (3), on the day on which the hearing of the evidence is completed or 'as soon afterwards as may be ', assess the amount of tax due from the dealer, that is, pass the order of assessment.
[720 E H] Section 11(4) is attracted in a case.
where a dealer having furnished a return fails to comply with the terms of a notice issued .under section 11 (2).
In such a case, the Assessing Authority has to take some effective steps, such as issuance of a notice to the assessee, within 5 years of the expiry of the period concerned, intimating to him that he is proceeding to assess the tax due from the dealer to the best of his judgment.
Under section 11(5), on failure of a dealer to furnish a return in respect of any period by the prescribed date the Assessing Authority, after giving the dealer a reasonable opportunity of being heard can, within 5 717 years after the expiry of the concerned period proceed to assess to the best of his judgment the amount of tax, if any, due from the dealer.
Sub section (6) is attracted in the case of a dealer who, being liable to pay tax under the Act, had failed to apply for registration.
Similar steps as the ones under sub section
(5) are to be taken under sub section
(6) within a period of 5 years after the expiry of the concerned period.
It is thus seen that for taking action under sub sections (4), (5) and (6) of section 11 a time limit of 5 years has been fixed by the legislature.
The reason is that best judgment assessments in the circumstances mentioned in any of the sub sections
(4), (5) oF (6) are fresh proceedings and could not be allowed to be taken after the expiry of a certain reasonable time which the legislature has fixed at 5 years.
But the legislature advisedly did not fix any period of time for taking steps or the passing of the assessment order under any of the sub sections
(1), (2) or (3).
Where a dealer files a return the proceeding under the Act commences and the issue of a notice under section 11(2) does not initiate any fresh proceedings.
A notice under section 11(2) requiring the dealer to produce evidence can therefore be issued at any time after the filing of the return.
because, when once a return is duly made, the assessment could be made at any time unless the statute prescribes a time limit.
The ex pectancy of taking steps without any undue delay and within a reasonable time is an expectancy of prudence, because, where a notice under sub section
(2) is issued when 5 years are about to expire and the dealer fails to comply with the terms of the notice the Assessing Authority may have to proceed to make the best judgment assessment under sub section
(4) and he may not be able to do so if the period of 5 years had expired by then.
[722 A G] Bisesar House vs State of Bombay & Others.
9 S.T.C. 654, and Rameshwar Lal Sarup Chand vs U.S. Nanrath Excise & Taxation Officer, Assessing Authority, Amritsar and Another 15 S.T.C. 932 overruled.
Ghanshyamdas vs Regional Assistant Commissioner of Sales Tax, Nagpur & Others 14 S.T.C. 976, The State of Panjab & Others vs Tara Chand Lajpat Rai 19 S.T.C. 493, The State of Punjab and another vs Murlidhar Mahabir Prasad 21 S.T.C. 29, Madhya Pradesh Industries Ltd. vs State of Maharashtra and Others 22 S.T.C. 400 and Madan Lal Arora vs The Excise and Taxation Officer, Amritsar 12 S.T.C. 387 followed.
(2) The case of Gurbux Singh vs Union of India is not an authority for the contention of the appel lant that the issue of the notice under section 11(2) and comple tion of assessment under section 11(3) should be within a reason able time.
In that case it was pointed out that since the legislature had not provided any period of limitation within which an order was to be made by an Appellate or Revisional Authority, the period of limitation prescribed in other sections could not be imported for the exercise of such power.
It was not stated in that case that the exercise of the revisional power suo moto could not be made even after an undue long delay.
It was merely found as a fact in that case that there was no undue delay in the exercise of the power.
[727 A D] [Obiter.
The phrase as soon afterwards as may be ' in section 11(3) may suggest that where assessment order under section 11(3) of the Act was passed after under delay after the completion of the hearing of the evidence produced 'by the dealer, the order of assessment may not be valid.
But that question does not arise in the present case.
because, the appellant has not yet produced any evidence].
|
Appeal No. 511 of 1976.
(Appeal by Special Leave from the order dated 19 8 1975 of the First Labour Court Ahmedabad in Appln. 493/75).
R.P. Bhatt, D.K. Agarwal, K. K. Jain and Bishamber Lal, for the Appellant.
710 V. M. Tarkunde, K.L. Hathi, P.C. Kapur and Miss M. Tarkunde, for the Respondent.
The Judgment of the Court was delivered by GOSWAMI, J.
A complaint was made to the Labour Court by the respondent, Mazdoor Mahajan Mandal, Baroda (briefly the union) alleging the lock out declared by the appellant to be illegal.
The appellant, Priya Laxmi Mills Ltd. (briefly the management) resisted the petition.
After examining the oral and documentary evidence the Labour Court came to the conclusion that the lock out was illegal under clauses (a) and (h) of sub section (1) of section 98 of the Bombay Industrial Relations Act, 1946 (briefly the Act).
A brief reference to the facts will be appropriate at this stage.
The present appellant purchased this textile mill from M/s. Sayaji Mills Ltd. in 1972 when it had about 2500 work men besides officers.
It is said that in 1974 the textile industry suffered adverse market conditions, accumulation of stocks, shortage of raw materials and bank credit squeeze in consequence of which the management started experiencing acute financial difficulties which were aggravated by a spate of litigation between the appellant and the previous owners.
The appellant somehow continued to pay the wages of the workmen upto February 1975 although in an irregular manner.
The mill works in three shifts.
By a notice of April 13, 1975, the management notified a lay off from the first shift of April 14, 1975, till further notice.
The lay off was in the departments of spinning, weaving, grey folding and engineering as per the lists containing the names of the workmen and the members of the staff connected therewith.
Other departments, however, were allowed to continue to work as usual.
It was mentioned in the notice.
of lay off that a workman, if eligible, shall be paid lay off compensation as provided under the law.
The permanent workmen of laid off departments who were eligible to get compensation under the law were required to present themselves in the respective departments at the start of their respective shifts and get themselves marked as "laid off".
Naturally, therefore, although, the workmen were laid off they had to attend the mill premises for being marked present at the time of the commencement of the shift in order to be able to claim lay off compensation.
In view of the mounting tension on account of irregular payment of wages for quite some time and the subsequent lay off, negotiations were also afoot between the management and the union without much headway.
According to the management the workmen refused to accept the decision of lay off and they continued to remain inside the mill premises even after getting their presence marked.
Some employees remained in the department while a large number of them collected outside the department and refused to go out of the mill premises.
It is said that the workmen started staging a 'dharna ' daily in the administra 711 tive office of the mills thereby disrupting its normal and smooth working.
This state of affairs continued from April 14, 1975, to April 21, 1975.
The workmen did not pay any head to the request of the management to leave the premises after they had been marked present.
In this background, on April 21, 1975, at about 4.00 P.M. a section of the workmen forcibly entered the Guest House No. 2, and trespassed into the living room of Shri L. Grover, Establishment Officer of the mills, dragged him out of the room and took him into the administrative office and kept him there under restraint and illegal confinement for about 24 hours.
The workmen also removed the personal belongings of Shri Grover.
They also gheraoed and kept under restraint and illegal confine ment the Deputy Executive Director, Shri V.K. Bagla, the Deputy Chief Executive (Works) Shri S.C. Gandhi and other senior officers in the mill premises with effect from 7.00 P.M. on April 21, 1975.
The officers were kept in illegal confinement without food and other basic amenities of life continuously for 21 hours.
It is said that the officers were abused and humiliated.
The workers also held out threats to their lives.
The management also referred to other alleged unruly and undisciplined behaviour of the workmen.
The officers were ultimately brought out with the help of the police authorities at about 4.00 P.M. on April 22, 1975.
The employees, however, continued 'dharna ' inside the mill premises on April 22 and the night between April 22 and April 23.
It is, thus, the management 's case that under the .circumstances mentioned above the company was compelled to declare a lock out from the first shift of April 23, 1975: It may be appropriate to set out the lock out notice dated April 23, 1975: "We hereby give notice to all concerned that a lock out is declared with effect from the begin ning of l st shift commencing at 7.00 a.m. on 23 4 1975 in our mills for the following or any of the reasons given below: (a) On or about 4.30 p.m. on 21 4 1975 a section of the workmen forcibly entered into the mill Guest House No. 2 and trespassed into the room in which Shri L. Grover, the Establishment Officer of the mills resides, dragged him out of the room and took him to the Administrative Office of the mills and kept him there under restraint and illegal confinement for about 24 hours.
The work ers also removed personal belongings of Shri Grov er.
(b) The workers gheraoed, kept in restraint and illegal confinement.
our Dy.
Executive Direc tor, Shri V.K. Bagla, Dy.
Chief Executive (Works) Shri S.C. Gandhi, and other senior officers in the mill premises with effect from 7.00 p.m. of Monday, the 21st April 75.
Those officers were kept in illegal confinement without food and other basic amenities of life continuously for 21 hours.
(c) The workers not only kept the above mentioned officers under wrongful restraint but also abused and humiliat 712 ed them.
Threats were advanced to the life of these officers and to the effect that the mill property will also be damaged.
(d) The workers employed in spinning and weaving departments including their preparatories and partly engineering department have been laid off with effect from 14 4 75.
These workmen, in stead of leaving the factory premises after lay off attendance staged dharana daily in the adminis trative office of the mills thereby disrupting its normal and smooth working.
(f) The workers have also arrested the move ment of cloth bales from mill godowns thereby disrupting the bales of the finished goods.
The lock out hereby declared will cover all the departments of the mills except the Watch and Ward and essential service which will continue to function as usual and will not be affected by this notice.
" X X X X The union denied, the various allegations made against the workmen, and stated that the lock out was carried out with a view to pressurise the union and the workmen to accept the management 's terms with regard to the mode of payment of their salary as well as the lay off arrangements introduced by the management.
Both sides produced documentary evidence as well as examined witnesses.
The management examined four witnesses whereas the union examined two witnesses on their behalf.
After examining the entire evidence the Labour Court came to the conclusion that the lockout was an illegal lock out.
Hence this appeal by special leave.
The question that falls for decision is whether the lock out in question is illegal under section 98(1)(a) of the Act.
We are not required to consider whether it is also illegal under section 98(1)(h) of the Act as referred to by the Labour Court.
According to section 98(1)(a), "a lock out shall be illegal if it is commenced or continued in cases where it relates to any industrial matter specified in Schedule III or regulated by any standing order for the time being in force".
We are not required to consider the second part of section 98(1)(a) which refers to the standing order.
Sched ule III enumerates seven items out of which we are required to consider only item 6(ii) which reads as follows : "Employment including unemployment of persons previously employed in the industry concerned".
Before we proceed further we may take note of the definition of lock out which is found in sec tion 3 (24) of the Act: " 'Lock out ' means the dosing of a place or part of a place of employment or the total or partial suspension Of 713 work by an employer or the total or partial refusal by an employer to continue to employ persons em ployed by him, where such closing, suspension, or refusal occurs in consequence of an industrial dispute and is intended for the purpose of (a) compelling any of the employees directly af fected by such closing, suspension or refusal or any other employees of his, or (b) aiding any other employer in compelling persons employed by him, to accept any term or condition of or affecting employment.
" This definition is differently worded from what is there in the .
We, however, find that in the Trade Disputes Act, 1929, lock out is similarly defined as in the present Act.
By section 2(1) of the Industrial Disputes Act, lock out "means the closing of a place of employment, or the suspension of work, or the refusal by an employer to continue to employ any number of per sons employed by him".
This Court, while interpreting the above defini tion, in Management of Kairbetta Estate, Kotesiri vs Rajamanickam and others, C) observed as follows : "Even so, the essential character of a lock out continues to be substantially the same.
Lock out can be described as the entithesis of a strike.
Just as a strike is a weapon available to the employees for enforcing their industrial demands, a lock out is a weapon available to the employer to persuade by a coercive process the employees to see his point of view and to accept his demands.
" It should, however, be made clear that lock out can be declared also for reasons similar to those described in the present notice of lock out.
In that case although it will be lock out in anoth er sense, it may not be a lock out within the meaning of section 3 (24) of the Act.
That kind of a lock out with the avowed object of preventing violence and threat to life and property may even be justified on facts in a given case.
In such a situation 'it may be difficult to prove that it is an illegal lock out since in an illegal lock out the sole object is to compel the workmen to accept the terms of the employer which the workers consid er as unreasonable and oppressive.
In the instant case although we do not approve of the Labour Court 's observations in the order to a possible effect that threats and gheraoes "are the normal behaviour when an occasion like this takes place", we cannot say that its ultimate conclusion after appreciation (1) ; 714 of the evidence is such that it may call for inter ference in an application under Article 136 of the Constitution.
The Labour Court has given a finding at paragraph 15 of the as follows : "Coming now to the other important ingredient viz. intention on the part of 'the management to compel the workers directly affected by such clos ing to accept any term or condition affecting employment, it appears that there was such an intention on the part of the management.
The opponent company, because of the financial diffi culties which they were facing wanted the workers to agree to accept lay off and also agree to accept wages not on the specified days as per the existing awards, etc.
but as and when the management could pay .
In my opinion, therefore it could be said that all the ingredients of an illegal 'lock out ' were present in this case".
The Labour Court has taken note of the fact that there was no evidence of any violence being caused to the property of the mill notwithstanding the presence of a huge crowd said to be in a riotous mood.
The tribunal also took the view that the officers were not confined in.
their rooms as such as represented but they themselves did not like to come out perhaps due to apprehension.
The Labour Court was of opin ion that the situation was not of such a grave nature which called for such a drastic step like a lock out.
The Labour Court seems to be of the further view that since the manage ment has been in continuous financial difficulties heading towards a closure and closure would have put the management under an obligation to pay compensation under section 25 FFF under the , opportunity was taken to declare a lock out on the slightest opportunity.
It is not possible for us to reappraise the evidence and come to a different conclusion on the facts in this appeal.
We are also unable to hold that the conclusions of the Labour Court are perverse or even against the weight of evidence on record.
The only question, therefore, that survives is whether on the finding of the Labour Court the lock out is illegal.
It is contended on behalf of the appellant that item 6(ii) in Schedule Iii to the Act which deals with the unemployment of persons previously employed in the industry concerned cannot govern a case of lay off.
According to counsel lay off is not unemployment since the relationship of master and servant is not snapped.
We are unable to accept this contention.
Lay off is not defined in the Act but has been defined in section (KKK) of the : " 'lay off ' (with its grammatical variations and cognate expressions ) means the failure, refus al or inability of an employer on account of short age of coal, power or raw materials 715 or 'the accumulation, of stocks or the breakdown of machinery or for any other reason to give employ ment to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been retrenched".
X X X X X Even according to the dictionary meaning, lay off means to discontinue work or activity; to dismiss or discharge temporarily.
When workers are in employment and they are laid of, that immediately results in their unemployment, howsoever temporary, and such an unemployment will clearly come under item 6(ii) in Schedule III of the Act.
It is not disputed that "unemployment" is an industrial matter as defined under section 3(18) of the Act.
Since unemployment is an industrial matter under item 6(ii) of Schedule III to the Act, the lock out which has been found by the Labour Court to have direct connection with lay of is clearly illegal under section 98(1)(a) of the Act.
In the result the appeal fails and is dis missed with costs.
P.B.R Appeal dis missed.
| IN-Abs | According to section 98(1)(a) of the Bombay Industrial Rela tions Act, 1946 a lock out shall be illegal if it is com menced.
or continued in cases where it relates to any indus trial matter specified in Schedule III, Item 6(ii).
Item 6(ii) states "employment including unemployment of persons previously employed in the industry concerned".
On account of financial and other difficulties the appellant laid off workers in some departments of the mill.
After.
a few days the management declared a lock out alleg ing that the workers gheraoed some officers in the mill, started 'dharna ' and behaved in an unruly manner.
The Labour Court, to which the dispute was referred, held that there was no evidence of violence or of gheraoes, that the situation in the mills was not of such a grave nature as called for a lock out and that the management resorted to the lock out on the slightest opportunity in order to avoid payment of compensation, since it was in continuous financial difficulties heading towards a closure and closure would have put the company under obligation to pay compensation.
Dismissing the appeal, HELD: (1) A lock out can be declared for reasons similar to those described in the present notice of lock out.
In that case although it will be lock out in another sense it may not be a lock out within the meaning of section 3(24) of the Act.
That kind of lock out with the avowed object of pre venting violence and threat to life and property may be justified on facts in a given case.
In such a situation it may be difficult to prove that it is an illegal lock out since in an illegal lock out the sole object is to compel the workmen to accept the terms of the employer which the workers consider as unreasonable and oppressive.
[713 F G] But in the instant case though the views of the Labour Court that threats and gheraoes "are the normal behaviour when an occasion like this takes place" should be disap proved, the ultimate conclusion after appreciation of the evidence was not such as would call for interference in an application under article 136 of the Constitution.
[713 H] (2) Though the Act has not defined 'lay out ', even according to the dictionary meaning, lay off means to dis continue work or activity; to dismiss or discharge tempo rarily.
When workers are in employment and they are laid off, that immediately results in their unemployment, howso ever temporary.
and such an unemployment will clearly come under item 6(ii) in Schedule III of the Act.
Since unemploy ment is an industrial matter under item 6(ii) of Schedule Iii of the Act, the lock out which had been found by the Labour Court to have direct connection with lay off is clearly illegal under section 98(1)(a) of the Act.
[715 BC]
|
Appeal No. 1726 of 1971.
(Appeal by Special Leave from the Judgment and Order dated 20 4 1971 of the Allahabad High Court in Misc.
Sales Tax Reference No. 137 of 1970).12 1234SCI/76 684 S.C. Manchanda, M.V. Goswami and O.P. Rana, for the Appellants.
The Judgment of the Court was delivered by KHANNA, J.
This is an appeal by special leave against the judgment of Allahabad High Court whereby the High Court answered the following question referred to it under section 11 ( 3 ) of the UP Sales Tax Act (hereinafter referred to as the Act) in favour of the dealer respondent and against the revenue: "Whether the time taken by the dealer in obtaining another copy of the impugned appellate order could be excluded for the purpose of limita tion for filing revision under section 10 (1 ) of the UP Sales Tax Act when one copy of the appellate order was served upon the dealer under the provi sions of the Act ?" The matter relates to the assessment year 1960 61.
An appeal filed by the respondent against the order of the Sales Tax Officer was disposed of by the Assistant Commis sioner (Judicial) Sales Tax, Bareilly.
The copy of the appellate order was served on the dealer respondent on August 2, 1965.
The respondent, it appears, lost the copy of the appellate order which had been served upon him.
On June 15, 1966 the respondent made an application for obtaining another copy of the above order.
The copy was ready on August 17, 1967 and was delivered to the respondent on the following day, i.e. August 18, 1967.
Revision under section 10 of the Act was thereafter filed by the respondent before the Judge (Revision) Sales Tax on September 9, 1967.
Sub section (3B) of section 10 of the Act prescribes the period of limitation for filing such a revision.
According to that sub section, such a revision application "shall be made within one year from the date of service of the order com plained of but the Revising authority may on proof of suffi cient cause entertain an application within a further period of six months.
" Question was then agitated before the Judge (Revision) as to whether the revision application was within time.
The respondent claimed that under section 12(2) of the , he was entitled to excluded in computing the period of limitation for filing the revision, the time spent for obtaining a copy of the appellate order.
This contention was accepted by the Judge (Revision).
He also observed that the fact that the said copy was not required to be filed along with the revision petition would not stand in the way of the respondent relying upon section 12(2) of the .
The Judge (Revision) thereafter dealt with the merits of the case and partly allowed the revision petition.
At the instance of the Commissioner of Sales Tax, the question reproduced above was referred to the High Court.
The High Court, as stated above, answered the ques tion in favour of the respondent and in doing so placed reliance upon the provision of section 12(2) of the Limita tion Act,1963 (Act 36 of 1963) which reads as under: "(2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained 685 of was pronounced and the time requisite for ob taining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.
" It may be stated that the language of section 12(2) of the Act of 1963 is in variance with that of section 12(2) of the Indian Limitation Act,1908 (Act 9 of 1908) so far as the applicability of section 12(2) is concerned in computing the period of limitation for filing revision application.
Section 12(2) of the Indian Limitation Act, 1908 read as under: "(2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judg ment, the day on which the judgment complained of was pronounced, and the time requisite for obtain ing a copy of the decree, sentence or order ap pealed from or sought to be reviewed, shall be excluded.
" Bare perusal of sub section (2) of section 12 of the Act of 1908 would show that it did not deal with the period of limitation prescribed for an application for revision.
As against that, the language of sub section (2) of section 12 of .the
Act of 1963 makes it manifest that its provisions would also apply in computing the period of limita tion for application for revision.
There can, therefore, be no manner of doubt that in a case like the present which is governed by the Act of 1963, the provisions of sub section (2) of section 12 can be invoked for computing the period of limitation for the application for revision if the other necessary conditions are fulfilled.
It is, however, contended by Mr. Manchanda that the UP Sales Tax Act constitutes a complete code in itself and as that Act prescribes the period of limitation for filing of revision petition, the High Court was in error in relying upon the provi sions of sub section (2) of section 12 of the .
This contention, in our opinion, is wholly bereft of force.
Sub section (2) of section 29 of the reads as under: "(2) Where any special or local law pre scribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit; appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.
" There can be no manner of doubt that the UP Sales Tax Act answers to the description of a special or local law.
According to sub section (2) of section 29 of the , reproduced above, for the purpose of determining any period of limitation prescribed for any application by any special or local law, the provisions contained in section 686 12(2), inter alia, shall apply in so far as and to the extent to which they are not expressly excluded by such special or local law.
There is nothing in the U.P Sales Tax Act expressly excluding the application of section 12(2) of the for determining the period of limitation prescribed for revision application.
The conclusion would, therefore, follow that the provisions of section 12(2) of the of 1963 can be relied upon in computing the period of limitation prescribed for filing a revision petition under section 10 of the UP Sales Tax Act.
It has been argued by Mr. Manchanda that it was not essential for the dealer respondent to file a copy of the order of the Assistant Commissioner along with the revision petition.
As such, .according to the learned counsel, the dealer respondent could not exclude the time spent in ob taining the copy.
This contention is equally devoid of force.
There is nothing in the language of section 12(2) of the to justify the inference that the time spent for obtaining copy of the order sought to be revised can be excluded only if such a copy is required to be filed along with the revision application.
All that section 12(2) states in this connection is that in computing the period of limitation for a revision, the time requisite for obtaining a copy of the order sought to be revised shah be excluded.
It would be impermissible to read in section 12(2) a proviso that the time requisite for obtaining copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded only if such copy has to be filed alongwith the memorandum of appeal or application for leave to appeal or for revision or for review of judgment, when the legislature has not inserted such a proviso in section 12(2).
It is also plain that without procuring copy of the order of the Assistant Commissioner the respondent and his legal adviser would not have been in a position to decide as to whether revision petition should be filed against that order and if so, what grounds should be taken in the revi sion petition.
The matter indeed is not res integra.
In the case of J.N.Surty vs T.S. Chettyar(1), the Judicial Committee after .noticing the conflict in the decisions of the High Courts held that section 12(2) of the Indian Limitation Act, 1908 applies even when by a rule of the High Court a memo randum of appeal need not be accompanied by a copy of the decree, Lord Phillimore speaking on behalf of the Judicial Committee observed: "Their Lordships have now to return to the grammatical construction of the Act, and they find plain words directing that the time requisite for obtaining the two documents is to be excluded from computation.
12 makes no reference to the Code of Civil Procedure or to any other Act.
It does not say when the time is to be excluded, but simply enacts it as a positive direction.
If, indeed, it could be shown that in some particular class of cases there could be no object in obtaining the two documents, an argument might be offered that no time could (1) 55 I.A. 161.
687 be requisite for obtaining something not requisite.
But this, is not so.
The decree may be complicat ed, and it may be open to draw it up in two differ ent ways, and the practitioner may well want to see its form before attacking it by his memorandum of appeal.
As to the judgment, no doubt when the case does not come from up country, the practitioner will have heard it delivered, but he may not carry all the points of a long judgment in his memory, and as Sir John Edge says, the Legislature may not wish him to hurry to make a decision till he has well considered it.
" Following the above decision, it was held by a Full Bench consisting of five Judges of the Lahore High Court in the case of The Punjab Co operative Bank Ltd., Lahore vs The Official Liquidators, The Punjab Cotton Press Co. Ltd. C) that even though under the Rules and Orders of the High Court no copy of the judgment is required to be filed along with the memorandum of appeal preferred under section 202 of the Indian Companies Act from an order of a single Judge, the provisions of section 12 of the Indian Limitation Act would be attracted.
The provisions of section 12 were also held to govern an appeal under Letters Patent.
A Full Bench of the Patna High Court in the case of Mt. Lalitkuari vs Mahaprasad N. Singh(2) also held that the provisions of section 12 of the Limitation Act were applica ble to Letters Patent appeals under clause 10 of the Letters Patent.
The above decision of the Judicial Committee was followed by this Court in the case of Additional Collector of Customs, Calcutta & Anr.
vs M/s. Best & Co.(3) Similar view was expressed by this Court in the case of section A. Gaffoor vs Ayesha Beghum & Ors.(4) It is plain that since 1928 when the Judicial Commit tee decided the case of Surty (supra), the view which has been consistently taken by the Courts in India is that the: provisions of section 12(2) of the Limitation Act would apply even though the copy mentioned in that subsection is not required to be filed along with the memorandum of ap peal.
The same position should hold good in case of revision petitions ever since Limitation Act of '1963 came into force.
Lastly, it has been argued that the copy of the order of the Assistant Commissioner was served upon the respond ent, and as such,; was not necessary for the respondent to apply for copy of the said order.
In this respect we find that the copy which was served upon the respondent was lost by him.
The loss of that copy necessitated the filing of an application for obtaining another copy of the order of the Assistant Commissioner.
(1) Lahore Series 191.
(2) Patna Series 157.
; (4) CA No. 2406 of 1969 decided on August 18, 1970.
( See Unreported judgements of Supreme Court.
2. page 784).
688 In the case of State of Uttar Pradesh vs Maharaj Narain & Ors.(1) the appellant obtained three copies of the order appealed against by applying on three different dates for the copy.
The appellant filed along with the memorandum of appeal that copy which had taken the maximum time for its preparation and sought to exclude such maximum time in computing the period of limitation for filing the appeal, This Court, while holding the appeal to be within time, observed that the expression time requisite in section 12(2) of the Limitation Act cannot be understood as the time absolutely necessary for obtaining the copy of the order and that what is deductible under section 12(2) is not the minimum time within which a copy of the order appealed against could have been obtained.
If that be the position of law in a case where there was no allegation of the loss of any copy, a fortiori it would follow that where as in the present ease the copy served upon a party is lost and there is no alternative for that party except to apply for a fresh copy in order to be in a position to file revision petition, the time spent in obtaining that copy would necessarily have to be excluded under section 12(2) of the .
The High Court, in our opinion, correctly answered the question referred to it in favour of the dealer respondent and against the revenue.
The appeal fails and is dismissed.
As no one appeared on behalf of the respondent, we make no order as to costs.
M.R. Appeal dismissed.
| IN-Abs | The Assistant Commissioner (Judicial) Sales Tax, Bareil ly, disposed of the respondents ' appeal made against an order of the Sales Tax Officer.
A copy of the order was served on the respondent, but he lost it.
Later, he ob tained another copy and filed a revision petition under sectiOn 10 of the U.P. Sales Tax Act.
The same was opposed as being time barred, but the Judge (Revision) accepted the respondent 's contention that under section 12(2) of the , he was entitled to exclude the time spent in obtaining the second copy of the order, while computing the limitation period.
The question whether such exclusion was permissible, was referred to the High Court which an swered in the affirmative.
The appellant contended that the U.P. Sales Tax Act itself provided for a specific period of limitation; and therefore the was not applicable, and also that, a copy of the order was not required to be filed with the revision petition, and so the time spent in obtaining a second copy could not be excluded in computation of limita tion.
Dismissing the appeal the Court, HELD: (1 ) Where the copy served upon a party is lost and there is no alternative for that party except to apply for a fresh copy in order to be in a position to file revi sion petition, the time spent in obtaining that copy would necessarily have to be excluded under Section 12(2) of the .
State of Uttar Pradesh vs Maharaj Narain & Ors. ; followed.
[688 B C] (2) The provisions of Section 12(2) of the would apply even though the copy mentioned in that Sub section is not required to be filed alongwith the Memorandum of appeal.
The same position should hold good in case of revision petitions ever since of 1963 came into force.
1686 B, D 687 FI J.N. Surty vs
T.S. Chettyar (55 IA 161), The Punjab Co.operative Bank Ltd., Lahore vs The Official Liquidators, the Punjab Cotton Press Co. Ltd. Lahore Series 191, MT.
Lalitkuari vs Mahaprasad N. Singh Panta Series 157, Additional Collector of Customs, Calcutta & Anr.
vs M/s. Best & Co. (AIR S.A. Gaffoor vs Ayesha Beghum & Ors.
(C.A. 2406/1969 decided on 18 8 1970 Unreported Judgment of Supreme Court, 1970 Vol. 2, page 784) followed.
(3) For the purpose of determining any period of limitation prescribed for any application by any special or local law, the provisions contained in Section 12(2), inter alia.
shall apply in so far as, and to the extent to which they are not expressly excluded by such special or local law, and there is nothing in the U.P. Sales Tax Act expressly excluding the application of Section 12(2) of the .
[685 H, 686 A]
|
Appeal No. 442 of 1974.
(From the Judgment and Order dated the 17th of August, 1970 of the Punjab & Haryana High Court in Civil Writ No. 413/62).
V.C. Mahajan and O.P. Sharma, for the Appellant.
Harbans Singh, for Respondent No. 2.
The Judgment of the Court was delivered by KHANNA, J.
This is an appeal on certificate against the judgment of the Punjab 'and Haryana High Court whereby the High Court held that the appellant firm had failed to prove that it had stood dissolved on a date prior to the date of assessment, viz., March 12, 1962.
The appellant firm carries on business as commission agents of cotton and food grains.
In respect of the year 1959 60, the appellant did not submit any return under the Punjab General Sales Tax Act.
A notice was thereupon issued to the appellant firm and the 753 case was fixed for July 1, 1960.
The appellant challenged the validity of the assessment proceedings by means of a writ petition in the High Court.
The High Court during the pendency of the petition, stayed the proceedings.
Ulti mately, it seems, the writ petition was dismissed and the assessment proceedings were resumed on November 30, 1961.
Various dates were fixed thereafter.
February 17, 1962 was fixed as the final date of hearing.
On that date, intima tion was given on behalf.
of the appellant that the appel lant firm had ceased to do any work since February 1961.
It was also represented that a formal document had been exe cuted on August 8, 1961.
The assessing authority despite that intimation proceeded to make an order of assessment dated March 12, 1962.
The appellant thereupon filed anoth er petition under article 226 of the Constitution in the Punjab High Court, praying for the quashing of the assess ment order.
It was stated on behalf of the appellant that the appellant firm had been dissolved before the date of assessment order and as such, the sales tax authorities could not make an order for assessment.
The High Court dismissed the petition on the ground that the assessment proceedings had been initiated long before the alleged date of dissolution of the firm.
The appellant thereafter came up to this Court in appeal against the said decision of the High Court.
This .Court set aside the judgment of the High Court, following its decision in the case of State of Punjab vs M/s Jullundur Vegetables Syndicate.(1) The case was remanded to the High Court as no definite finding had been given by the High Court regarding the dissolution of the appellant firm and about the fact as to whether the said dissolution had taken place before the date of the order of assessment, namely, March 12, 1962.
After remand, the High Court called upon the sales tax officer to make an enquiry and submit a report on the point as to whether the appellant firm had been dissolved on August 8, 1961 as alleged by the appellant.
The sales tax officer thereafter made an enquiry and submitted a report that the appellant firm had not proved its dissolution on August 8, 1961 or before the date of assessment order.
The High Court, 'after receipt of the report, itself examined the matter and came to the conclusion that on the material on record brought by the appellant, it had not been proved that the appellant firm had stood dissolved on a date prior to March 12, 1962.
It is the correctness of the above decision of the High Court which has now been assailed before us by the appellant in this appeal.
We have heard Mr. Mahajan on behalf of the appellant and find no cogent ground to take a view different from that of the High Court.
The High Court, in the course of its judg ment, has pointed out that though the assessment order was made on March 12, 1962 a large number of hearings took place between March 8, 1961, the alleged date of dissolution and March 12, 1962.
At no hearing, was any intimation given by the appellant to the assessing authority that the firm had stood dissolved.
All that was intimated on February 17, 1962 was that the firm had ceased to do work in February 1961 and (1) 119661 2 S.C.n.
457. 754 that a formal document had been executed on August 8, 1961.
It was also not the case.
of the appellant that all the six partners of the appellant firm, had signed that document.
Another factor which weighed with the High Court was that though intimation is required to be given under section 16 of the Punjab General Sales Tax Act regarding the dissolu tion of a firm within thirty days of such dissolution no such intimation was given by the appellant firm until April 2, 1962, i.e., nearly eight months after the alleged date of dissolution.
In our opinion, the facts and circumstances referred to by the High Court throw a considerable doubt.
upon the correctness of the statement made on behalf of the appel lant firm ' that it had stood dissolved on August 8, 1961.
It has to be borne in mind that the High Court was dealing with the matter on the writ side.
In a writ petition, the SCOpe for interference with a finding of the departmental authorities is much more restricted and the court can nor mally interfere only if the finding is based upon no evi dence or is based upon extraneous or irrelevant evidence or is otherwise perverse.
The same cannot be said of the finding of the sales tax authority embodied in its report sent to the High Court in the present case.
We see no sufficient ground to interfere with the judgment of the High Court.
The appeal fails and is dismissed.
There will be no order as to costs.
| IN-Abs | In response to a notice from the assessing authority under the Punjab General Sales Tax Act that the appellant had not filed a return in respect of the assessment year 1959 60, the appellant claimed that the firm had ceased to do any work since February.
1961 and that a formal document to that effect was executed in August, 1961.
The assessing authority made an order of assessment in March 1962.
In a writ petition under Article 226 of the Constitution filed ' by the appellant; the High Court directed the Sales Tax Officer to enquire and report if the appellant firm had proved its dissolution in August 1961 or before the date of assessment order.
The Sales Tax Officer reported that it had not, The High Court itself examined the matter and came to the s.me conclusion of that reached by the Sales Tax Officer.
It also found that though intimation was required to be given under section 16 of the Act regarding the dissolution of the firm within 30 days of such dissolution no such intimation was given under April, 1962 and dismissed the writ petition.
Dismissing the appeal to this Court, HELD: (1) There is no sufficient ground to interfere with the judgment of the High Court.
The facts and circum stances referred to by the High Court throw a considerable doubt upon the correctness of the appellant 's statement that it had stood dissolved in August, 1961.
[754 D & B] (2) The High Court was dealing with the matter on the writ side.
In a writ petition, the scope for interference.
with a finding of the departmental authorities is much more restricted and the court can normally interfere only if the finding is based upon extraneous or irrelevant evidence or is otherwise perverse.
The same cannot be said of the finding of the sales tax authority embodied in its report sent to the High Court in the present case.
[754 C]
|
Appeal No. 1022 of 1975.
Appeal by Special Leave from the Judgment and Order dated ' 27 2 75 of the Gujarat High Court in Spl.
Civil Appln.
No. 767/74.
S.K. Dholakia and R.C. Bhatia, for the Appellants.
Hardayal Hardy, K.R. Nagaraja, S.K. Mehta and P.N. Puri, for Respondents 2, 4, 5, 7 10.
R.N. Sachthey, for Respondent No. 11.
The Judgment of the Court was delivered by SHINGHAL, J.
This appeal by special leave is directed against a, judgment of the Gujarat High Court dated February 28, 1975, in a writ petition filed by Smt.
T.H. Pathak and nine others, who are now arrayed as respondent Nos. 1 to 10 and will hereafter be referred to as the writ petitioners.
They were appointed as clerks or accounts ' clerks from June 19, 1963 to January 12, 1967, on a temporary basis.
in the office of the Director of Civil Supplies (Accounts), Guja rat, and were promoted to higher posts thereafter.
They claimed that there was no rule or order until March 1, 1969, requiring that appointments on their posts shall be made through the Gujarat Public Service Commission, so that their appointments were outside the purview of the Commission and were regular.
The State Government however made 679 the Gujarat Non Secretariat Clerks, Clerk typists and Typ ists (Direct Recruitment Procedure) Rules, 1970, hereinafter referred to as the Rules, on April 17, 1970, and issued instructions for their enforcement, including instructions for determination of their seniority.
That was followed by a resolution dated April 15, 1971, in which it was stated that the seniority of the candidates who were to be selected for the posts of clerks, clerk typists and typists under clause (i) (a) of rule 29, shall be determined from April 17, 1970, as if their allotment and/or appointment was from that date irrespective of the question whether they were in service or not, and that their names shall be arranged in a common seniority list in order of merit, in accordance with the principles laid down in the Rules.
The writ petition ers felt aggrieved against the provisions of the Rules and the Government instructions, as well as the seniority list which was published thereunder on April 18, 1974.
They prayed for a direction requiring the authorities concerned to treat their service as regular, for quashing the afore said resolution dated April 15, 1971, and for a direction that their seniority may be fixed on the basis of the dates on which they had joined their respective posts.
The respondents to the writ petition traversed the contentions of the writ petitioners in their replies.
The State Government stated in its reply that the writ petition ers were not recruited through proper channel even though the Centralised Recruitment Scheme was in existence and was applicable to their office with effect from January 21, 1963, that they did not come through the employment ex changes, that their appointments were by way of a stop gap arrangement pending recruitment through Centralised Re cruitment Scheme or the Public Service Commission, and that as they were "irregularly appointed" their services could be terminated at any time.
It was pleaded that it was for that reason that the Government made a provision in rule 29 of the Rules, on humanitarian considerations, to regularise the appointments in accordance with the provisions of the Rules.
It was accordingly contended that the writ petition ers could not claim seniority from the dates of their irreg ular appointments and their service.
for purposes of senior ity, could only be counted from April 17, 1970.
The High Court took the view that the Centralised Re cruitment Scheme was not applicable when the writ petition ers were appointed in the Directorate of Civil Supplies (Accounts) or in the office of the Deputy Director of Civil Supplies (Accounts), and that their posts were also not within the purview of the Gujarat Public Service Commission until March 1, 1969.
The High Court therefore held that the appointments of the writ petitioners were regular and were not required to be regularised under rule 29 of the Rules.
It held that the State 'Government had no power to issue the circular under rule 30 of the Rules for "allotment" and fixation of seniority of the writ petitioners, and the instructions contained in the resolution dated April 15, 1971 were not applicable to them.
It accordingly allowed the writ petition, struck down the seniority list dated April 18, 1974, directed the State Government and the Direc tor of Civil Supplies (Accounts) to treat the service of the writ petitioners as regular from the dates when they were 680 appointed initially, not to apply the instructions contained in the resolution dated April 15, 1971 to them, to compute their seniority from the dates of their respective initial appointments and to fix their seniority afresh on that basis.
The appellants, who claim to have been appointed regularly from the very beginning, and challenge the ap pointments of the writ petitioners as irregular, feel ag grieved, and this is how the present appeal has come up for consideration before us.
It has been argued by counsel for the appellants that the initial appointments of the writ petitioners were irreg ular and the High Court erred in taking the view that_rule 29 of the Rules was not applicable to them.
This argument has been advanced on the grounds that the office of the Director of Civil Supplies (Accounts) became a part and parcel of the Directorate of Civil Supplies and appointments to the posts to which the writ petitioners were initially appointed were therefore required to be made through the Public Service Commission, and that the Centralised Recruit ment Scheme was made applicable to those appointments in pursuance, at any rate, of the resolution dated July 9, 1964.
We find that both these contentions have been exam ined by the High Court and it has given satisfactory reasons for taking the view that this was not so.
It will be enough to say that the Dircctorate of Civil Supplies (Accounts) was not included in appendix B to the Scheme which formed part of the resolution dated November 21, 1960 by which certain posts were brought within the purview of the Public Service Commission.
It has in fact been admitted in the affidavit of K.K. Joshipura, Under Secretary to the State Government, dated September 4, 1974, that it was "true the office of the D.C.S.(A) was not under the purview of the Gujarat Public Service Commission at the time of the ap pointment of the petitioners.
" There is therefore nothing wrong with the view which has prevailed with the High Court that the Directorate did not come under the purview of the Public Service Commission until March 1, 1969.
As regards the Centralised Recruitment Scheme and the resolution of January 21, 1963, the High Court has again rightly held that the resolution applied to recruitment of clerks in district and regional offices and as the Direc torate of Civil Supplies (Accounts) was not such an office, the Scheme did not apply to it.
We have gone through the other resolution dated July 9, 1964, which modified the Scheme, but here again the High Court has rightly taken the view that merely because of use of the expression "state cadre", it could not be said that the modified scheme was made applicable to the Directorate.
We have gone through the whole of the Scheme and we have no doubt that it governed recruitment to district and regional offices, and there is no justification for the argument that it become applicable for recruitment of clerks in the Directorate of Civil Supplies (Accounts) as well.
As it is, nothing has been shown to justify the view taken by the State Government that the initial appointments of the writ petitioners were irregular and had to be regula rised in accordance with the provisions of rule 29 of the Rules.
The rule provides as follows, "29.
Notwithstanding anything contained in these rules the following eases shall be regularised in the manner shown 681 below in relaxation of their upper age, provisions of Re cruitment Rules concerned and/or rules for pre service training made by Government in this behalf to the extent indicated below : (1) (a) Persons initially recruited otherwise than through the Gujarat Public Service Commission, or Central ized Recruitment Scheme, as clerks, clerk typists or typist sin the offices to which the Rules apply, and who have ren dered not less than 2 years ' continuous service, as clerk or clerk typist or typist, as the case may be, as on 31st December, 1968 in one or more offices and who are continuing in Government service as clerks, clerk typists or typists, as the case may be, on the date of this notification or such persons whose names are kept on the Waiting List for provi sional appointment for the reason that they had to be dis charged for want of posts even though they had rendered 2 years ' continuous service as on 31st December, 1968 shall be required to appear at the special interview and/or the special typing test to be held for them for their selection for appointment to the post of clerk, clerk typist or typ ist, as the case may be.
" Then follow the other sub rules with which we are not con cerned.
The writ petitioners were initially recruited otherwise than through the Gujarat Public Service Commis sion and the Centralised Recruitment Scheme and they had rendered not less than two years ' continuous service as clerk, clerk typists or typists by December 31, 1968, but, ' as would appear from the history of their service, it could not be said that they were continuing in Government service as clerks, clerk typists or typists on April 17, 1970, which was the date of the notification of the Rules.
The State Government therefore again erred in thinking that their service was governed by rule 29(1) (a).
So when the appointments of the writ petitioners were not irregular, and they were not continuing in Government service as clerks, clerk typists or typists on April 17.
1970, rule 30 of the Rules was also not applicable to them and it was not permis sible for the authorities concerned to determine their allotment and seniority under that rule.
The view taken by the High Court is therefore quite justified and does not call for interference.
The write petitioners had put in several years of serv ice, and had received pro.motions from time to time.
Their appointments were however temporary all through.
It.ap pears that the State Government thought of ameliorating their lot for that reason and attempted to do so by making the aforesaid rule 29 of the Rules.
But, as has been shown, in doing so the State Government laboured under the impres sion that the initial appointments of the writ petitioners were irregular, and had to be regularised.
As this was not a correct premise, and as rule 29 is not really applicable to the writ petitioners for the reasons mentioned above, it would perhaps be advisable for the SLate Government to re examine the whole matter and to take appropriate action to give effect to their intention of ameliorating the lot of the writ petitioners.
That is however not a matter for this Court to decide.
The 689 High Court was therefore not justified in directing that the seniority of the writ petitioners should be computed on the basis that "their services with effect from the respective dates of their joining service as Clerks in the Directorate of Civil Supplies (Accounts) were regular and in accordance with law." As it would have been enough for the High Court to say that the State Government ,may reexamine the question of fixing the seniority of the writ petitioners and to take appropriate action to ameliorate their lot as temporary employees, the operative part of the impugned judgment of the High Court is modified to this extent.
The appeal otherwise fails and is dismissed.
In the circumstances of the case, we leave the parties to pay and bear their own costs.
P.H.P. Appeal dismissed.
| IN-Abs | The respondents Nos. 1 to 10 who were Writ PetitiOners in the High Court, were appointed as clerks between June, 1963 to January, 1967 on temporary basis and were promoted to higher posts thereafter.
They contended that at the rele vant time there was, no rule or order requiring that ap pointments to their posts shall be made through Public Service Commission.
The Gujarat Government issued Gujarat Non Secretariat Clerks, Clerk Typists and 'Typists (Direct Recruitment Procedure) Rules, 1970.
Thereafter, by resolu tion dated 15 4 1971, it was stated that seniority of the candidates who were to be selected for the posts of Clerks, Clerk typists and typists shall be determined as if their allotment or appointment was from 17 4 1970 irrespective of the question whether they were in service or not, and that their names shall be arranged in a common seniority list in order of merit in accordance with the principles laid down in the Rules.
The Writ petitioners filed a Writ Petition in the Guja rat High Court feeling aggrieved by the said 1970 Rules and the 1971 resolution.
The Writ Petitioners contended that the Government should be directed to treat their entire service as regular and that their seniority should be fixed on the basis of the dates on which they had joined their respective posts.
The State Government in its counter affidavit pointed out that the Writ Petitioners were not recruited through proper channel; that even though the centralised recruitment scheme was in existence and was applicable with effect from January, 1963, the Writ Petitioners did not come through the employment exchanges that their appointments were by way of a stop gap arrangement.
The State, however, admitted in its affidavit that the Writ Petitioners were not under the purview of the Gujarat Public Service Commission at the time of their appointment.
The State contended that the Writ Petitioners were irregularly appointed and that 1970 Rules were framed on humanitarian considerations to regularise their appointments and that, their seniority could not be counted from the dates of their appointment and could be counted only from 17th April, 1970.
The High Court came to the conclusion that the Centra lised Recruitment Scheme was not applicable when the Writ Petitioners were appointed and that the posts were also not within the purview of the Gujarat Public Service Commission until March, 1969.
The High Court therefore, held that the appointments of the petitioners were regular and were not required to be regularised under the 1970 Rules.
It also held that the State Government had no power to issue the circular under rule 30 of the Rules for allotment and fixa tion of a seniority and that the instructions contained in the resolution of 1971 were not applicable to the Writ Petitioners.
The High Court allowed the Writ Petition, struck down the seniority list, and directed the State Government and the Director of Civil Supplies to treat the services of the petitioners as regular from the dates when they were appointed initially and not to apply the instruc tions contained in the resolution of 1971 to compute their seniority.
The appellants, who claimed to have been appointed regularly from the beginning and who contend that the ap pointments of the writ petitioners were irregular filed appeal by Special Leave.
The appellants contended: 1.
That the initial appointment of the Writ Petitioners was irregular, being in violation of the centralised recruitment scheme, since the office 678 of the Director of Civil Supplies became a part and parcel of the Directorate of Civil Supplies, and that the centralised recruitment scheme was ap plicable to the recruitment of the Writ Petition ers.
The appointment to the posts held by the Writ Petitioners were required to be made through Public Service Commission, but as they were not made through P.S.C. the appointments were irregular.
Dismissing the appeal with a modification, HELD: 1.
The High Court has rightly negatived both the contentions of the appellants.
The State in its affidavit had admitted that the posts, the Writ Petitioners were not within under the purview of the Public Service Commission at the time of their appointment.
The High Court has also rightly held ' that by describing the cadre in question as a "State Cadre", it could not be said that the modified scheme was made applicable to the Directorate.
It is clear from the scheme that it governed the recruitment to the regional offices and not to the offices of the Directorate.
[680 C E, F G] 2.
Rule 29 of the 1970 Rules can apply only if the initial appointment was irregular, i.e., if the Public Service Commission was not consulted when the consultation was required and if the recruitment had not taken place through the Centralised Recruitment Scheme when it was necessary to do so.
In the ' present case Rule 29 cannot apply because the appointments of the Writ Petitioners were regular.
[681 G H] 3.
The view taken by the High Court is quite justified and does not call for interference.
[681 F] 4.
The High Court, however, was not justified in direct ing that the seniority should be counted from the respective dates of the appointment of the Writ Petitioners. 'the High Court ought to have left the matter to the State Government to re examine the question of fixing the seniority to give effect to their intention of ameliorating the lot of the writ petitioners.
[682 A B]
|
Appeal No. 1698 of 1971.
(Appeal by Special Leave from the Judgment and Order dated 8 4 1971 of the Kerala High Court in T.R.C. No. 46/69).
S.T. Desai, A.G. Meneses, Markos Vellapilly and K.J. John, for the Appellant.
K.T. Harindra Nath and K.M.K. Nair for the Respondent.
The Judgment of the Court was delivered by KHANNA, J.
This is an appeal by special leave against the judgment of the Kerala Hight Court dismissing revision petition of the petitioner against the order in appeal of the Appellate Tribunal whereby the Tribunal refused to include certain items in the sales tax registration certifi cate of the appellant.
The appellant, Travancore Tea Estates Co. Ltd., is a company incorporated in England having its registered office in London.
The appellant carries on the business of tea planting in India at Vandiperiyar in Peermade Taluk in Kerala State.
Eight tea estates are owned by the appel lant in Peermade Taluk.
To manufacture tea grown in those estates, the appellant maintains separate tea facto ries in each of those estates.
On an application made by the appellant for registration under.
the (Act 74 of 1956) (hereinafter referred to as the Act), the sales tax authorities granted registration certif icate to the appellant on January 9, 1963.
Aggrieved by the non inclusion of certain items of goods in the registration certificate the appellant filed writ petition in the Kerala High Court.
The High Court directed the Sales Tax Officer to decide the question regarding the inclusion of items in the light of the decisions of this Court in 1.
K. Cotton Spinning & Weaving Mill3 ' Co. Ltd. vs 757 The Sales Tax Officer (1) and Indian Copper Corporation Ltd. vs Commissioner of Commercial Taxes.(2) The Sales Tax Officer thereafter allowed the inclusion of some of the items of goods asked for by the appellant in the registra tion certificate but refused to include certain other goods in that certificate.
The appellant thereupon preferred appeal before` the Appellate Assistant Commissioner of Sales Tax, Kottayam, who partly allowed the appeal by di recting further inclusion of certain items.
The Appellate Assistant Commissioner however, declined to include the following items in the certificate in respect of which prayer had been made by the appellant: "1.
Fertilisers, chemicals, weedicides, insecti cides, fungicides and pesticides for use in tea cultivaton: 2. Cement and other building materials for installing and housing tea machinery and equip ments: 3.
Building materials, iron and hose pipes, sanitary fittings for use in estates and estate factories , ' 4.
Weighing and measuring and packing equipments for use in tea estates; and 5.
All other articles and things for use in manufacture and processing of sale of tea.
" The appellant then took the matter in further appeal before the Appellate Tribunal and prayed for the inclusion in the certificate of the above mentioned items.
The Appellate Tribunal did not accept the prayer of the appellant and dismissed the appeal.
Revision petition was thereupon filed by the appellant before the Kerala High Court against the order of the Tribunal.
In appeal before the High Court it was stated on behalf of the appellant in respect of the first item relating to fertilisers, chemicals, weedicides and insecticides, that they were used for cultivation of tea leaves.
The conten tion of the appellant was that the growing and manufacturing of tea constituted one integrated process and therefore the items of goods required for growing tea should be deemed to be goods intended for use in the manufacture of tea within the meaning of section 8(3)(b) of the Act.
This contention had also been advanced by the appellant earlier before the Tribunal but the Tribunal rejected this contention as in its view "the legislature has not included production by agriculture as one of the operations for which goods can be purchased under section 8 of the ".
The Tribunal further held that merely because the agricultural, process of the company is connected with the process of manufacture, production of tea did not form part of the manufacture and processing of tea.
The High Court disa greed with this reasoning of the Tribunal and observed that the expression "in the manufacture of goods" in section 8(3) (b) of the Act normally encompasses the entire process carried on by the dealer of converting the raw material into finished goods.
In the opinion of the High Court, the growing of tea leaves (1) 16 S.T.C. 563.
(2) 16 S.T.C. 259.
758 was so integrally connected with the manufacture of tea that it could reasonably be taken as a part of the process of manufacturing tea.
This circumstance, however, in the opin ion of the High Court, by itself was not sufficient to make the goods eligible for inclusion in the registration certif icate.
The High Court accordingly observed: "Under rule 13 read with section 8(3) (b) the use of the goods in the manufacture or processing of goods for sale will not be a sufficient ground for inclusion in the certificate.
The further requirement is that the goods must be for use as raw materials or processing materials or machinery, plant, equipment, tools, stores, spare parts, accessories, fuel or lubricants.
The first item, namely, fertilisers, chemicals, insecticides, etc.
in our opinion cannot fall within the category of a raw material or processing material or machinery etc.
The learned counsel for the company sought to contend that fertilisers, chemicals etc.
would come within file category of stores mentioned in section 8(3)(b) and that as such it is eligible for specification in the certificate.
We are unable to agree with this submission.
The word 'stores ' in the context in which it appears in rule 13 has to be necessarily goods intended for use in the manu facture or processing of goods for sale and it is not possible to hold that fertilisers, chemicals, weedicides, insecticides etc.
can come within this category.
They are not in any way directly con nected with the manufacturing or processing of tea.
As pointed out earlier, the expression 'in the manufacture ' can take within its compass only processes which are directly related to the actual production.
As such the claim for inclusion of this item in the Sales Tax Registration Certifi cate cannot be supported.
" The prayer of the appellant regarding items (2), (3) and (4) was also disallowed in the light of the observations of this Court in the case of 1.
K. Cotton Spinning & Weaving Mills Co. Ltd. (supra).
Item No. (5), in the opinion of the High Court, was too vague and indefinite to deserve inclusion in the certificate.
In the result the revision petition was dismissed.
Before dealing with the contentions advanced, it may be useful to refer to the relevant provisions.
Section 7 of the Act makes provision for registration of dealers.
Section 8 of the Act deals with rates of tax on sales in the course of inter State trade or commerce.
Clause (b) of sub section (1) of that section provides that every dealer, who in the course of inter State trade or commerce 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 3 per cent, of his turnover.
The percentage before July 1, 1966 was two.
Sub section 3(b) reads as under: "(3) The goods referred to in clause (b) of sub section (1) 759 (b) are goods of the class or classes specified in the certificate of registration of the registered dealer purchasing the goods as being intended for re sale by him or subject to any rules made by the Central Government in this behalf, for use by him in the manufacture or processing of goods for sale or in mining or in the generation or distribution of electricity or any other form of power;" The Central Sales Tax (Registration and Turnover) Rules, 1957 have been framed by the Central Govern ment.
Rule 13 of the rules reads as under: "13.
The goods referred to in clause (b) of sub section (3) of section 8 which a registered dealer may purchase, shall be goods intended for use by him as raw materials, processing materials, machinery, plant, equipment tools stores, spare parts, accessories, fuel or lubricants, in the manufacture or processing of goods for sale, or in mining, or in the generation of electricity or any other form of power.
" The question with which we are concerned in this appeal is whether the items of goods in respect of which prayer of the appellant for being included in the registration certif icate was refused, answer to the description of goods as given in the above rule.
Mr. Desai on behalf of the appellant has not pressed the case of the appellant in respect of item No. (5) which was found by the High Court to be vagne and indefinite.
He has also not made any sub missions in respect of items (2) and (3) relating to Cement and building materials.
The main contention of Mr. Desai has related to item No. (1) pertaining to fertilisers, chemi cals, weedicides, insecticides, fungicides and pesticides for use in tea cultivation.
According to the learned coun sel, cultivation and the growing of tea leaves was so inte grally connected with the manufacture of tea that it could be taken to be part of the process of manufacturing tea.
As fertilisers and othergoods mentioned in item (1) were needed for tea clutivation, the same should, according to the learned counsel, be held to be intended for use in the manufacture or processing of tea for sale.
Regarding item (4), the case of the appellant is that though weighing equipment used in the factories has been allowed to be included in the certificate, the weighing equipment used for the purpose of cultivation has not been included in the certificate.
The weighing equipment to be used for culti vation should also, it is urged, be included in the certifi cate.
The above contentions have been controverted by Mr. Narendra Nath, and he has urged that neither the goods mentioned in item No. (1) nor the weighing equipment needed for cultivation are directly, connected with the process of manufacturing tea.
After giving the matter our earnest consideration, we are of view that the contention of Mr. Narendra Nath is well founded.
760 Rule 13 has been the subject matter of two.
decisions of this Court In the case of Indian Copper Corporation (supra), the assessee was a dealer engaged both in mining operations of copper and iron ore and the manufacturing of finished products from the ore for sale.
This Court held that the two processes being inter dependent, it would be impossible to exclude vehicles which are used for removing from the place where the mining operations were concluded to the factory where the manufacturing process started, from the registration certificate.
The expression "goods intended for use in the manufacturing or processing of goods for sale" was held to include such vehicles as were intended to be used for removal of processed goods from the factory to the place of storage.
The mere fact that there is a statutory obligation imposed upon the owner of the factory or the mine to maintain hospital facilities would not, in the opinion of this Court, supply a connection between the goods and the manufacturing or processing of goods or the mining opera tions so as to make them goods intended for use in those operations.
The expression "intended to be used".
it was further held, cannot be equated with "likely to facilitate" the conduct of the business of manufacturing or of process ing goods or of mining.
In J. K. Cotton Spinning & Weaving Milis Co. Ltd. (supra) the appellant manufactured for sale cotton tex tiles, tiles and other commodities.
Certain items of goods in the certificate of registration of the appellant were deleted by the sales tax authorities on the ground that they had been earlier erroneously included in the ' certificate.
This Court in that context dealt with the scope and ambit of section 8(3) (b) of the Act read with rule 13.
It was held that the expression "in the manufacture of goods" in section 8(3)(b) should normally encompass the entire process car ried on by the dealer of converting raw materials into finished good 'section Where any particular process is so inte grally connected with the ultimate production of goods that, but for that process, manufacture or processing of goods would be commercially inexpedient, goods required in that process would fail within the expression "in the manufacture of goods.
" It was further held that the process of design ing might be distinct from the actual process of turning out finished goods.
But there was no warrant for limiting the meaning of the expression "in the manufacture of goods" to the process of production of goods only.
The expression "in the manufacture" was held to take in within its compass all processes which are directly related to the actual production.
Drawing and photographic materials directly related to the actual production of goods were held to be goods intended for use "in the manufacture of goods".
Build ing materials, including lime and cement, not required in the manufacture of tiles for sale was, however, held to be not raw material in the manufacture or processing of goods or even as "plant".
We may now turn to the present case.
The question which essentially arises for determination is whether fertilisers and other goods mentioned in item No. (1) are intended for use by the appellant as equipment or stores in the manufac ture or processing of tea meant for 761 sale, as urged on behalf of the appellant.
The contro versy between the parties has centred round the point as to whether fertilisers and other goods mentioned in item No. (1) can be said to be goods intended for use in the manufac ture or processing of tea meant for sale.
So far as this question is concerned, we find that the growing and plucking of tea leaves from the plants and the processing of those leaves in the factories are parts of a continued activity.
The assertion of Mr. Desai that the tea leaves would lose their value unless they are processed in the factory soon after they are plucked is not being questioned.
It does not, however, follow from that that the cultivation of tea plants and the growth of tea leaves is not something distinct from the manufacturing process to which tea leaves are subjected in the factories.
The fact that the time lag between the plucking of tea leaves and their being subjected to manufac turing process in the factories is very little would not detract from the conclusion that the cultivation and growth of tea plants and leaves is something distinct and separate from the manufacturing process to which those leaves are subjected in the factories for turning them into.
tea meant for sale.
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 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 of the Income tax Rules, 1922 and rule 8 of the Income tax Rules, 1962 prescribe 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 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 ele ment or component (see Tea Estate India (p.) Ltd. vs Commis sioner of Income tax(1).
Fertilisers and the other goods mentioned in item No. (1) are intended for use not in the manufacturing process in respect of tea meant for sale, they are essentially needed for the cultivation and growth of tea plants and leaves.
There is no direct relationship between use of fertilisers and other goods mentioned in item No. (1 ) and the manufac turing process in respect of tea meant for sale.
What is meant by manufacture of tea is clear from pages 863 4 of Vol.
21 of Encyclopedia Britannica (1965 Edition) wherein it is observed: "Black and green teas result from different manufactur ing processes applied to the same kind of leaf.
After plucking, the leaf is withered by being spread on bamboo trays in the sun, or on withering tats within doors.
The process takes 18 to 24 hours.
Next it is rolled.
by hand or by machines.
The object of rolling is to break 762 the leaf ceils and liberate the juices and enzymes sealed within.
The roll may last as long as three hours.
Then it is taken to the roll breaker and green leaf sifting machine and after that fermented in baskets, on glass shelves or on cool cement floors under damp cloth for 4 or 41/2 hours.
The firing process (drying) follows, in pans or baskets or in firing machines.
It takes 30 to 40 min.
The difference between black tea and green tea is the result of manipula tion.
Green tea is manufactured by steaming without fermen tation in a perforated cylinder or boiler, thus retaining some of the green colour.
Black tea is allowed to ferment after being rolled and before firing.
In the case of black tea the process of fermentation, or oxidation, reduces the astringency of the leaf and, it is claimed, developes the colour and aroma of the liquor.
In making green tea, the fermentation process is arrested by steaming the leaf while it is green and by light rolling before drying.
" The cultivation and growth of tea plants and leaves cannot, in our opinion, be comprehended in the expression "in the manufacture or processing of goods for sale".
Cultivation and growth of tea plants no 'doubt results in the production of raw material in the form of green tea leaves which are ultimately processed into tea meant for Sale, but such cultivation and growth are in the very nature of things prior to the manufacturing process and do not answer to the description of manufacture and processing of tea meant for sale.
There is a vital difference between an agricultural operation and a manufacturing process, and the same should not be lost sight of.
What is needed for being used purely in an agricultural operation cannot be held to be goods required for use in a manufacturing process.
We are, therefore, of the opinion that the appellant was not entitled to get fertilisers and other goods mentioned in item No. (1 ) included in the registration certificate.
The same reasoning would also hold good in respect of weigh ing machine used not in the factories but in the tea fields.
appeal consequently fails and is dismissed with coats.
V.P.S. Appeal dismissed.
| IN-Abs | Section 8 of the , deals with rates of tax on sales in the course of inter State trade or commerce.
Section 8(1)(b) provides that every dealer, who in the course of inter State trade or commerce sells to a registered dealer goods of the description referred to in sub section
(3) shall be liable to pay tax at 3% of his turnover.
Section 8(3)(b) refers, inter alia to goods of the class or classes specified in the certificate of registration of the registered dealer purchasing the goods as being intended for re sale by him, or subject to any rules made by the Central Government in this behalf,, for use by him in the manufac ture or processing of goods for sale.
Rule 13 of the Cen tral Sales Tax (Registration and Turnover) Rules, 1957, framed under the Act, provides that the goods referred to in section 8(3)(b) which a registered dealer may purchase shall be goods intended for use by him inter alia as raw materials and processing materials in the manufacture or processing of goods for sale.
The appellant owned tea estates in the respondent State and was also maintaining factories for the manufacture of tea.
It prayed for inclusion in its Certificate of regis tration, ( 1 ) fertilisers, chemicals, weedicides, insec ticides, fungicides and pesticides for use in tea cultiva tion; and (2) weighing and measuring and packing equip ments for use in tea estates.
The Department refused to include them and the Tribunal and the High Court confirmed the orders.
In appeal to this Court it was contended that, (1) cultivation and the growing of tea leaves was so integrally connected with the manufacture of tea that it could be taken to be a part of the process of manufacturing tea, and since fertilisers etc. were needed for tea cultivation, the same should be held to.
be intended for use in the manufacture or processing of tea for sale; and (2) since weighing equipment used in the factories had been included in the certificate, the weighing equipment used for the purpose of cultivation should similarly be included.
Dismissing the appeal, HELD: (1) The goods in item (1) are intended for use not in the manufacturing process in respect of tea meant for sale but are only needed for the cultivation and growth of tea plants and leaves.
There is no direct relationship between the use of fertilisers etc.
and the manufacturing process and hence, they were rightly not included in the registration certificate.
[761 G] (a) Cultivation and growth of tea plants result in the production of raw material in the form of green tea leaves which are ultimately processed into tea meant for sale.
But such cultivation and growth are, in the very nature of things, prior to the manufacturing process and do not answer to the description of manufacture and processing of tea meant for sale.
There is a vital difference between an agricultural operation and a manufacturing process.
What is needed for use purely in an agricultural operation cannot be held to be required for use in a manufacturing process.
[762 D] (b) The fact that the time lag between the plucking of tea leaves and their being subjected to the manufacturing process is very little would not detract 756 from the conclusion that the cultivation and growth of tea plants is distinct and separate from the manufacturing process.
[761 C] (c) Rule 24 of the Income Tax Rules, 1922, and r. 8 of the Income Tax Rules, 1962, prescribe 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 the manufacturing process in the factory, thus recognis ing the difference between the agricultural income which is yielded in the form of green leaves purely by the land over which tea plants are grown, and the non agricultural income which is the result of subjecting the green leaves plucked to a particular manufacturing process.
[761 E] (2) The same reasoning holds good in respect of weighing machines used, not in the factories but, in the tea fields.
[762 E] J.K. Cotton Spinning & Weaving Mills Co. Ltd. vs The Sales Tax Officer 16 STC 563.
and Indian Copper Corporation Ltd. vs Commission of Commercial Taxes 16 STC 259 fol lowed.
Tea Estate India (P) Ltd. vs Commissioner of Income tax referred to.
|
Appeal No. 621 of 1976.
Appeal by Special Leave from the Judgment and Order dated 12.1.1976 of the Allahabad High Court in Civil Misc.
Writ Petition No. 7183 of 1975, Appellant in person.
V.P. Raman, Addl.
and Girish Chandra, for respondent No. 1.
Yogeshwar Prasad, Lalji Sinha and Miss Rani Arora, for respondent No. 5.
The Judgment of the Court was delivered by CHANDRACHUD, J.
Respondent 1, the Union of India, established the Locomotive Component Works at Varanasi in 1956 for manufacturing component .parts of locomotives.
That manufactory merged in 1961 with the Diesel Locomotive Works, The appellant, S.K. Chandan, who was serving with the Westeren Railway as a Chargeman was transferred in 1963 to the Diesel Locomotive Works in the grade of Rs. 375 475 which he was holding at the time of his transfer as a member of the Class III service.
The question which arises in this appeal concerns the claim of the appellant to be promoted to Class II service.
In 1975 the appellant filed the present writ petition in the Allahabad High Court asking for the writs of Certiorari and Mandamus.
We arc now concerned with the grant of the latter writ only by which the appellant prayed, inter alia, that respondent 1 be directed to hold selections to Class II service in accordance with the "Advance Correction Slip 70.
" This particular prayer was rejected by the High Court by 787 its judgment dated January 12, 1976 on the view that rules contained in Slip 70 did not govern the promotion of Class III employees to Class II.
Aggrieved by the aforesaid decision the appellant has filed this appeal by special leave of this Court.
The leave is restricted to the ques tion whether the promotion of Class III employees to Class II is governed by Slip 70.
Paragraph 105 of the Indian Railway Establishment Code (Vol.
I) divides railway services into two categories gazet ted and non gazetted.
Services in Classes 1 and II are gazetted whereas those in Classes 111 and IV and the Serv ices of the Workshop Staff are designated as nongazetted.
Paragraph 157 of the Code confers on the Railway Board "full powers to make rules of general application to non gazetted railway servants under their control.
" Acting in pursuance of this power, the Railway Board has framed rules which are to be found in the "Indian Railway Establishment Manual." Chapter i of those rules deals with questions relating to recruitment, training, confirmation and reemployment.
Chapter II which is headed "Rules governing the promotion of subordinate staff ' consists of two sections, 'A ' and 'B '.
Section 'A ' deals with "Promotion to Class II posts" while section 'B ' contains "Rules governing the promotion of subordinate staff.
Chapter ' III is headed "Rules regulating seniority of non gazetted railway servants." Originally, Chapter III contained rules 301 to 323.
The Advance Correction Slip No. 70, also issued by the Railway Board in exercise of its powers under Paragraph 157 of the Railway Establishment Code, substituted a new rule 301 for the existing rule and it introduced five new rules in Chapter III, namely rules 324 to 328.
The contention of the appellant which requires examination in this appeal is that his promotion to Class II is governed by the rules introduced by Slip No. 70 which came into force on March 11, 1973.
The appellant, who argued his own case before us with quite industry and plausibility, did not dispute that rules 324, 323, 327 328(1) and 328(3) have no application to this case.
Rule 326(2) which prescribes deemed dates of trans fers would apply but has been concededly compiled with, the appellant having no grievance in regard to the fixation of the deemed date of his transfer to the Diesel Locomotive Works.
Keeping these provisions apart, the question boils down to the applicability of rules 301 and 328(2), (4) and (5).
The appellant 's argument that the rules introduced by Advance Correction Slip 70 govern his right to promotion to Class II is plainly misconceived.
In the first place, the rules introduced by Slip No. 70 were made by the Railway Board in exercise of its powers under Paragraph 157 of the Railway Establishment Code which empowers it to make rules of general application to "Non gazetted railway servants" under its control.
Though the Railway Board has the power to make rules governing both gazetted and non gazetted railway servants, the rules expressed to be made under Paragraph 157 cannot in the very 788 nature Of things be intended to apply to gazetted railway servants or to govern the promotion of non gazetted railway servants to gazetted posts.
But this is a small point because if the Railway Board has the power to make rules in regard to both gazetted and non gazetted railway servants, the signification of a limited source of power cannot whit tle down the effective exercise of that power, if the rules can reasonably be construed to cover both the gazetted and non gazetted categories.
The true reason Why it is impossible to accept the appellant 's contention that his promotion to Class II is governed by the rules introduced by Slip No. 70 is that Chapter II, section A, of the Indian Railway Establishment Manual in terms prescribes rules governing the promotion of subordinate staff to Class II posts.
The heading of Chap ter II is: "Rules governing the promotion of subordinate staff" and section A of that Chapter bears (he Sub heading "Promotion to Class II posts." Rule 201 which is the first of the Rules occurring in section A of Chapter II, provides "The following provisions shall apply in respect of promotion of non gazetted class III staff employed on Indian Railways or other Railway administrations to class II posts other than those in Railway Protection Force organization." Rule 202 'prescribes conditions of eligibility, rule 203 deals with the size of panels of selection, rule 204 with the constitution of the 'selection boards, rule 205 with the procedure to 'be adopted by selection boards and rules 206 and 207 with the currency and formation of panels.
These seven rules constitute a Code of rules governing the promo tion of the non gazetted Class III staff to Class II posts.
other than those in the Railway Protection Force.
In view of the fact that the Railway Board has framed these specific rules for the promotion of Class III staff to Class II posts, it seems to us difficult to accept that the rules introduced by Slip No. 70 would also govern the same subject matter.
The Advance Correction Slip No. 70 introduced amendments to Chapter III and not to Chapter II of the Manual.
Chapter III deals with rules regulating seniority of non gazetted railway servants and it is in regard to that class of rail way servants .that the Railway Board made new, provisions through Slip No. 70.
The provisions contained in Chapter III, including the provisions newly introduced by Slip No. 70, are very clearly designed to govern the seniority and promotion of non gazetted servants within the non gazetted categories of posts.
The non gazetted railway service con sists of Class III and IV employees and of the Workshop staff.
Within each of these three classes there may be different grades of railway servants and the rules in Chapter III are intended to govern the inter se seniority and the promotion of a railway employee from one category of non gazetted post to another category of a non gazetted post.
The 789 rules in Chapter HI cannot therefore govern the promotion of non.gazetted railway servants to gazetted posts.
Since the appellant is working as a non gazetted employee in Class III, his promotion to a gazetted post in Class II would be governed by Chapter II, section A, and not by Chapter III of the Railway Establishment Manual.
Rule 301 of Chapter III, as introduced by Slip 70, provides terms that the rules contained in the particular Chapter lay down general principles that may be followed for determining the seniority of non gazetted railway servants and that rules 324 to 328 of that Chapter shall apply for the purpose of determining the seniority and promotion of non gazetted employees of the Diesel Locomotive Works.
The appellant relied very strongly on rule 328(2) which provides that selections and promotions made in the Diesel Locomotive Works from 1 8 1961 to the date on which Slip No. 70 came into force, namely March 11, 1973, shall not be valid.
He urges that this provision casts an obligation on the Railway Board to recall all promotions made from amongst Class III servants to Class H posts from August 1 1961 to March , 1973 and that therefore those who are already promoted to gazetted posts ought to be demoted and a fresh panel must be formed for selection to Class II posts from amongst employees working in Class III posts.
The infirmity of this argument is that Chapter III applies only to non gazetted servants and to their inter se promotion and therefore the words "promotions made in the Diesel Locomo tive Works" which occur in rule 328(2) must be construed as meaning" promotions made in the Diesel Locomotive Works from one category of non gazetted post to another category of non gazetted post".
The same answer would effectively meet the contention of the appellant that the words "promotion to the higher grades" occurring in paragraph 328(4) mean promo tion to a Class II post.
The words "promotion to the higher grades" must in the context mean promotion to any of the higher grades in the non gazetted category.
Rule 123( '3) of Chapter I, Section B, Railway Establishment Manual, defines "grades" as sub divisions of a class, each bearing a differ ent scale of pay.
If the grievance of the appellant who holds a non gazet ted post in Class III, at all is or can be that he has not been promoted to Class II, he must show that the railway administration has violated some provision contained in Chapter II, section A, of the Railway Establishment Manual.
It is useless and irrelevant for him to show that the provisions of Chapter III introduced by Advance Correction Slip No. 70 have not been complied with by the administra tion.
None of the rules introduced by that slip governs the promotion of a Class III employee to a Class II post.
The High Court was accordingly right in refusing to issue a writ of mandamus directing the railway administra tion to apply the provisions of Chapter III in the matter of the appellant 's promotion to a Class II post.
The appellant has filed a civil miscellaneous petition (7990 of 1976) complaining of adverse entries in his Service record and of the 790 fact that he has been superseded in the matter of promotion.
These very grievances were made by him in the High Court but he lost on those points.
While granting special leave to appeal, this Court refused to consider the correctness of the High Court 's findings on those issues.
The leave being restricted to the question as regards the application of rules introduced by Advance Correction Slip No. 70.
the appellant cannot be permitted to raise questions which must be taken as finally decided under the judgment of the High Court.
For these reasons the appeal fails but there will be no order as to costs.
S.R. Appeal dismissed.
| IN-Abs | Chapter 11 of the Indian Railway Establishment Manual deals with "Rules governing the provision of subordinate staff and Section A thereof deals with "promotion to class II posts.
" The Railway Board by virtue of its power vested by para 157 of the Indian Railway Establishment Code, introduced w.e.f.
March 11, 1973, an "Advance Correction Slip No. 70" substituting a new rule 301 and introducing new rules 324 to 328.
Chapter III deals with the rules regulat ing seniority of non gazetted Railway servants and the new rule 328(2) provided that selections and promotions made in the Diesel Locomotive Works from August 1, 1961 to March 11, 1973 shall not be valid.
The appellant, a member of the class III service serving with the Western Railway as a chargeman was transferred to the Diesel Locomotive Works in 1963 and was given .the benefits of deemed dates of transfer as provided for in Rule 326(2).
The appellant filed a writ petition in the Allahabad High Court praying for a writ of mandamus ,on the strength of the "Advance Correction Slip No. 70" praying for a direction to the respondent to hold selections to class 1I service.
The application was rejected holding that the rules contained in Slip No. 70 did not govern the promo tion of class III employees to class Dismissing the appeal by ' special leave the court, HELD: 'Though the Railway Board has the power to make rules governing both gazetted and non gazetted Railway servants, the rules expressed to be made under paragraph 157 cannot, in the.
very nature of .things, be intended to apply to gazetted Railway servants or to govern the promotion of non gazetted Railway servants to gazetted posts.
If the Railway Board has the power to make rules in regard to both gazetted and non gazetted Railway servants, the significa tion of a limited source of power cannot whitle down the effective exercise of that power if the rules can reasonably be construed to cover both the gazetted and non gazetted categories.
[787 H, 788 A B] (2) None of the rules introduced by Slip No. 70 govern the promotion of a class III employee to a class II post.
The amendments were made to.
Chapter III dealing with rules regulating seniority of non gazetted Railway servants.
It is in regard to that class of Railway servants that the Railway 786 Board made new provisions.
The provisions contained in Chapter III including provisions newly introduced by Slip No. 70, are very clearly designed to govern the seniority and promotions of non gazetted servants within the non gazetted categories of posts.
Chapter 11 Section A of the Manual in terms prescribes rules governing the promotion of subordinate staff to class II post.
In view of the fact that the Railway Board has framed seven specific rules in Chapter II for the promotion of class III staff to class ii post, the contention that the rules introduced by Slip No. 70 would also govern the same subject mater cannot be ac cepted.
In the instant case, since the appellant is working as a non gazetted employee in class III, his promotion 10 a gazetted post in class 1I would be governed by Chapter II, Section A and not by Chapter III of the Railway Establish ment Manual.
[788 F H, 789 A] (3) The words "promotions made in the Diesel Locomo tive Works" which occur in Rule 328(2) must be construed as meaning 'promotions made in the Diesel Locomotive Works from one category of non gazetted post to another category of non gazetted post.
" The words "promotion to the higher grades" occurring in para 328(4) mean promotion to a class II post.
The words promotion to the higher grades must, in the context mean promotion to any of the higher grades in the non gazetted category.
The contention that Rule 328(1) casts an obligation on the Railway Board to recall all promotions made from amongst class III servants to class II posts from August 1, 1961 to March 11.
1973 is misplaced.
[789 B C]
|
Appeal No. 704 of 1975.
(Appeal by Special Leave from the Judgment and Order dated 11 11 1974 of the Andhra Pradesh High Court in Writ Appeal No. 596/73).
P.P. Rao and T.V.S.N. Chari, for the Appellants.
Subbarao, for the Respondents.
The Judgment of the Court was delivered by GUPTA, J.
This appeal by special .leave arises out of a writ petition made by the respondents before us in the Andhra Pradesh High Court questioning the inclusion in the list of Deputy Tehsildars eligible for promotion to the post of Tehsildar of the names of 63 persons, impleaded as re spondents Nos. 4 to 66 in the writ petition.
These 63 persons were working as Upper Division Clerks in the erst while State of Hyderabad when, on November 1, 1956, the State of Andhra Pradesh was formed.
The State Government in consultation with the Government of India issued an order on April 7, 1960 stating that the first stage promotion of the employees of the erstwhile Government of Hyderabad, that is, promotion to posts one stage above those held by them prior to November 1, 1956, would be governed by the Hyderabad Cadre and Recruitment Rules for promotion which were ap plicable to them before that date, but subsequent promotions after the first stage of promotion would be governed by the relevant rules in force in the newly formed State.
By virtue of this order the aforesaid 63 employees were promot ed to the post of Deputy Tehsildar which was the first stage promotion for them.
Later, this order dated April 7, 1960 was made a statutory rule, namely, rule 42(h)(i) of the Andhra Pradesh State and Subordinate Services Rules which came into force on March 7, 1962.
The Andhra Pradesh Civil Services (Executive Branch) Special Rules Revenue Depart ment, hereinafter referred to as the Special Rules, were made on July 17, 1952 but mane effective retrospectively from November 1, 1956.
These Rules cover two categories of service; we are concerned here with category 2 Tahsildars.
Rule 4(a) of the rules says inter alia that the qualifica tions of a candidate for appointment to the post of Tahsil dar shall be as specified in the annexure to the rules.
The annexure provides 704 that a Tahsildar recruited by transfer from the category of Deputy Tahsildars must be a permanent Deputy Tahsildar or an approved probationer in the category of Deputy Tahsildars and should have exercised the powers of a Magistrate of the third class and also of the second class for a period of six months in each capacity.
Only those candidates who have passed a criminal judicial test can be invested with magis terial powers under the orders in force. ' Under rule 4(a) the State Government has to prepare in consultation with the Public Service Commission a list of persons eligible for appointment as Tahsildars, and no Deputy Tahsildar is eligi ble for appointment as Tahsildar unless his name is included in such list.
The two respondents before us were directly recruited to the post of Deputy Tahsildar in the year 1962 and completed their period of probation in 1965.
Both of them were de clared as approved probationers in 1965 and were invested with the powers of a Magistrate of the third class, and then of the second class. 'They became eligible for appoint ment as Tahsildars on November 14, 1966 and June 18, 19 69 respectively.
The respondents and the said 63 Deputy Tahsildars all belong to the Telengana area of the State.
The 63 erstwhile employees of the Government of Hyderabad did not have the opportunity to acquire the qualifications prescribed by rule 4(a) of the Special Rules on their promotion as Deputy TahsiIdars.
The Government felt that they should not be left out of consideration for appointment as Tahsildars and asked the Public Service Commission to consider the names of such Deputy Tahsildars for inclusion in the lists of eligi ble candidates assuring the Public Service Commission that the Government would relax the requirement as to qualifica tion in favour of such Deputy Tahsildars provided they were otherwise found suitable by the Commission.
The Public Service Commission accordingly included the names of these 63 employees in batches in the lists prepared for the years 1965, 1966, 1968 and 1969.
By an order dated June 30, 1971 the Governor of Andhra Pradesh relaxed the provisions of rule 4(a) of the Special Rules relating to the qualifica tions required of Duty Tahsildars for being appointed as Tahsildars in favour of these 63 employees and requested the Board of Revenue to make appointments to the post of Tahsil dar in the Telengana area according to the order in which the names had been indicated in the panels for the aforesaid years against the vacancies.
The order traces the back ground of facts and states the reasons for relaxation of rule 4(a) of the Special Rules in the case of these employ ees.
The material part of the order is as follows: "The Government have had under consideration for sometime past the preparation of panels of Tahsil dars of the Telengana Region.
According to Rules 4(a) read with the Annexure thereto of the Andhra Pradesh Civil Service (Executive Branch) Special Rules, a candidate for appointment to the category of Tahsildars by transfer should, in addition to the other qualifications, be a permanent Deputy Tahsildar or an approved probationer in the catego ry of 705 Deputy Tahsildars of the Andhra Pradesh Revenue Subordinate Service by the 1st July of the year to which the list relates and should have exercised 11I class and II class Magisterial powers respec tively for a period of six months each.
According to the orders in force, only those candidates who have passed the criminal judicial tests can be invested with Magisterial powers.
Allotted offi cers from Telengana for whom promotion to the category of Deputy Tahsildars constitutes the first stage of promotion after 1 11 1956 (viz. Upper Division Clerks), are governed by the Hyderabad cadre and Recruitment Rules for appointment as Deputy Tahsildars.
There is no probation pre scribed in the Hyderabad Cadre and Recruitment Rules for II Grade Clerks (Upper Division Clerks) on their promotions to the post of Deputy Tahsil dars.
Therefore, the question of their becoming approved probationers in the category of Deputy Tahsildars does not arise.
Further, the Hyderabad cadre and Recruitment Rules do not lay down that the II Grade Clerks (Upper Division Clerks) should pass the Criminal Judicial Test as a condition precedent for promotion to the category of Deputy Tahsildars and, therefore, those who did not pass the said tests could have had no opportunity of exercising magisterial powers while working as Deputy Tahsildars.
In the circumstances it was felt that it would be unfair to exclude such per sons from consideration for promotion to the cate gory of Tahsildars on the ground that they were not ,approved probationers and/or had not exercised magisterial powers.
The Public Service Commission was therefore, requested to consider the names also of the Deputy Tahsildars of the Telengana Region of the above category for inclusion in the panels for the respective years, regardless of whether or not they possessed the above qualifications, with an assurance that the Government would be prepared to relax the rules relating to above requirements in favour of the candidates who would be otherwise found suitable by the Commission." Rule 4(a) of the Special Rules was relaxed by the Governor in favour of the aforesaid Deputy Tahsildars in exercise of the power conferred by rule 47 of the Andhra Pradesh State and Subordinate Services Rules.
Rule 47 reads as follows: "47.
Relaxation of rules by the Governor.
No rule made under the proviso to article 309 of the Constitution of India or continued under article 313 of the Constitution shall be construed to limit or abridge the power of the Governor to deal with the case of any class or category of person for being appointed to any civil post, or of any person serving in a civil capacity under the Government of Andhra Pradesh in such manner as may appear to him to be just and equitable: Provided that, where any such rule is ap plicable to the case of any person or a class of persons, the cases shall not 706 be dealt with in ,any manner less favourable to the person or class of persons than that provided by that rule.
" The respondents before us filed a writ petition for quashing the order dated June 30, 1971 insofar as it relates to the said 63 employees who were impleaded as respondents Nos. 4 to 66 in the writ petition.
The writ petitioners complained that as a result of the order their claims for appointment to the post of Tahsildar had been passed over in favour of unqualified persons, and the petitioners asked for a direction on the Government of Andhra Pradesh, the Board of Revenue, and the Andhra Pradesh Public Service Commis sion, who are the appellants before us, to include the names of the petitioners in the panel for the years 1968 and 1969, as the case may be, and fix their seniority at the appropri ate places which they would have occupied had they been promoted at the relevant time.
The learned Judge who heard the writ petition allowed the same and directed that the claims of the petitioners for inclusion of their names in the panels from the respective dates 'they had acquired the requisite qualifications, should be considered on merits.
It was held that rule 47 of the Andhra Pradesh State and Subordinate Services Rub did not confer any power to relax a rule retrospectively as had been done by the order dated 'June 30, 1971.
It was further held that under rule 47 power was given to the Governor personally to relax the rules and the impugned order dated June 30, 1971 which was passed nor by the Governor really but by the Government of Andhra Pradesh was, as such, invalid.
In the Letters Patent appeal preferred by the State, a Division Bench affirmed the Judgment of the single Judge.
The view taken by the High Court that the power con ferred by rule 47 of the Andhra Pradesh State and Subordi nate Services Rules is exercisable by the Governor personal ly is based on the Judgment of this Court in Sardari Lal vs Union of India & ors.
(1) But Sardari .Lal 's case has been overruled by the later decision of this Court in Shamsher Singh vs State of Punjab, (2) and counsel for the respond ents rightly conceded that the impugned order cannot be assailed on this ground after Shamsher Singh 's case.
The real question that requires to be decided in this appeal is whether rule 47 permits relaxation of any rule with retrospective effect.
Before proceeding to consider this aspect, it is necessary to dispose of one small point raised on behalf of the appellants that the impugned order was not really retrospective but prospective in operation because it was only from the date of the order that the inclusion of the names of the said 63 employees in the panels for the different years was regularised.
The order made on June 30, 1971 relaxed rule 4(a) of the Special Rules in the case of these employees to validate the panels for the years 1965, 1966, 1968 and 1969.
The impugned order thus regularized the inclusion of the names in the panels which was done long before the order was made.
The order is therefore clearly retroactive and not prospective in opera tion.
Rule 47 of the Andhra Pradesh State and Subordinate Services (1) ; (2) (1975) I S.C.R. 814.
707 Rules gives power to the Governor to relax the rigour of the general rules in such manner as may appear to him to be just and equitable.
To show that rule 47 giving such wide power to the Governor is not unique of its kind, counsel for the appellants referred to similar provisions in several other Service Rules like, rule 13 of the Secretary of State 's Services (Medical Attendance) Rules, 1938, rule 10 of the Indian Administrative ServiCe (Pay) Rules.
1954, rule 15 of the Indian Police Service (Probation) Rules, 1954, rule 10 of the Indian Police Service (Pay) Rules, 1954, and rule 10(b), proviso, of the Indian Forest Service (Appointment by Competitive Examination) Regulations, 1967.
Clearly, the power under rule 47 is to be exercised in the interest of justice and equity.
It is not difficult to see that the occasions for :acting under rule 47 may well arise after the attention of the Government is drawn to a case where there has been a failure of justice.
In such cases justice can be done only by exercising the power under rule 47 with retro spective effect, otherwise the object and purpose of the rule will be largely frustrated.
The view we take finds support from the decision of this Court in R.P. Khanna & Ors.
vs S.A.F. Abbas & Ors.
C) In that case the Court was dealing with rule 3(3)(b) of the Indian Administrative Service (Regulation of Seniority) Rules, 1954 which lays down that the year of allotment of an officer who was ap pointed to the Service by promotion shall be the year of allotment of the junior most among the officers who entered the service by direct recruitment who officiated continuous ly in a senior post from a date earlier than the date of commencement of such officiation by the former.
The second proviso to the rule states that a promotee shall be deemed to have officiated continuously in a senior post prior to the date of inclusion of his name in the select list pre pared in accordance with the requirements of the Indian Administrative Service (Appointment by Promotion) Regula tions, if the period of such officiation prior to that date was approved by the Central Government in consultation with the Union Public Service Commission.
Overruling a conten tion raised on behalf of the direct recruits that it was not open to the State to make a retrospective declaration with regard to posts being made equivalent to senior posts, this Court observed: "From the point of view of workability of the rule as well as the circumstances and the condi tions of service it may not always be practicable to make such prospective declaration.
It is only when the Government has found that it is necessary or desirable to declare such posts equivalent to senior posts that the Government will do so.
That will be usually possible after the Government will have considered several factors, namely, finance, structure of the service, the personnel fit for undertaking the post.
Normally, the promotees obtain promotion from the State Civil Service after long service.
That is why rule 3(3)(b) of the Regulation of Seniority Rules is designed to arrive at a fair adjustment of the competing claims of the direct recruits and the promotees.
To hold that a promotee could not get the benefit of officiation unless the post was declared as equivalent to a senior cadre post before the promotee was appoint (1) f19721 3 S.C.R. 548.
708 ed to officiate might defect the policy of the Government.
A promotee may be officiating continuously for a long period and his name may be included in the select list after some time.
Again a person who officiates continuously for a long time may thereafter be not included in the select list.
Such a person might deprive a person who would otherwise be found suitable for appointment by promotion after similar officiation in a similar post.
It is only when the State Government finds that it is desirable to declare the post equivalent to a senior post inter alia by reason of the effi ciency of the person which has entitled him to promotion that the consequential necessity .arises for giving him that senior post by requisite decla ration of a senior post.
A retrospective declara tion therefore is in the scheme of things practical as well as reasonable.
" Counsel for the respondents drew our attention to the words "for being appointed" in rule 47 to contend that the rule was meant to be applied only prospectively.
According to counsel the rule when it says that nothing in the general rules shall limit or abridge the power of the Governor to relax the rigour of these rules in the case of any class or category of persons "for being appointed to any civil post", it contemplates an appointment in future.
We do not think that this contention has any force.
The words "for being appointed" in the context in which they appear do not neces sarily refer to a future appointment.
The validity of an appointment to any civil post may be questioned after the appointment has been made and there is nothing to rule 47 to indicate that the Governor in exercise of power under this rule cannot deal with such a case, if this was required in the interest of justice and equity.
It appears that after the Judgment of the Division Bench of the High Court was delivered on November 11, 1974, by a notification dated November 25, 1974 the provision in the Special Rules setting out the qualifications required for the post of Tahsildar was amended by adding a proviso saying that "the requirement in regard to being an approved proba tioner and the exercise of powers of a Magistrate shall not apply in respect of those Deputy Tahsildars in the Telengana area for whom promotion to the category of Deputy Tahsildar was or is the first stage of promotion after the 1st Novem ber 1956".
The notification states that the amendment shall be deemed to have come into force on the 1st June, 1961.
The amendment thus appears to cover the case of the said 63 Deputy Tahsildars.
However, the rule as amended does not arise for consideration in this appeal which directed against the judgment of the High Court passed on the rule as it stood prior to the amendment and we do not express any opinion on the amended rule.
The appeal is allowed, the Judgment of the High Court is set aside and the writ petition is dismissed.
In the circumstances of the ease we make no order as to costs.
| IN-Abs | The respondent filed a Writ Petition in the High Court questioning the inclusion in the list of Deputy Tahsildars eligible for promotion to the post of Tahsildars of the names of 63 persons who were impleaded as respondents 4 to 66, in the Writ Petition.
The 63 persons were working as Upper Division Clerks in the erstwhile State of Hyderabad.
The State Government in consultation with the Government of India issued an order on 7 4 1960 stating that the first stage promotion of the employees of the erstwhile Government of Hyderabad should be governed by the Hyderabad Cadre and Recruitment Rules for promotion which were applicable to them before that date.
The subsequent promotions after the first stage of promotion would be governed by the relevant rules in force in the newly formed State.
By virtue of this order the aforesaid 6 employees were promoted to the post of Deputy Tahsildars which was the first stage promotion for them.
In 1962, Andhra Pradesh Civil Services (Coopera tion Branch ) Special Rules were framed, but were made effective retrospectively from 1st November, 1956.
Under rule 4(a) the State Government has to prepare in consulta tion with the Public Service Commission a list of persons eligible for appointment as Tahsildars.
The 63 erstwhile employees of the Government of Hyderabad did not have the opportunity to acquire the qualifications prescribed under rule 4(a) of the Special Rules on their promotion as Deputy Tahsildars.
The Government felt that they should not be left out of consideration for appointment, as Tahsildars and asked the Public Service Commission to consider the names of such Deputy Tahsildars for inclusion in the list of eligible candidates assuring the Public Service Commission that the Government would relax the requirements as to qualification in favour of such Deputy Tahsildars provided they were otherwise found suitable by the Commission.
By order dated 30 6 1971 the Governor relaxed the provisions of rule 4(a) of the Special Rules in exercise of powers under section 47 of the Andhra Pradesh State and Subordinate Services Rules 1962.
The respondents filed a Writ Petition for quash ing the order dated 30 6 1971 in the High Court.
The re spondents contended that as a result of the said order their claims for appointment to the posts of Tehsildar had been passed.
over in favour of unqualified persons.
The High Court allowed the Writ Petition.
The High Court held that rule 47 did not confer any power to relax a rule retrospec tively.
It was also held that under rule 47 power was given to Governor personally and therefore the exercise of it by the Governor was invalid.
In an appeal by special leave the appellant contended: 1.
That rule 47 did not confer any power to relax a rule retrospectively.
The power was given to the Governor personally to relax the rules and since the impugned order was not passed by the Governor but by the Govt.
of Andhra Pradesh it was invalid.
Allowing the appeal, HELD: 1.
The view taken by the High Court that the power conferred by rule 47 is exercisable by the Governor personally is based on the judgment 703 in Sardarilal vs Union of India, [1971] 3 S.C.R. 461.
The said decision stands overruled by the later decision of this Honble Court in Shamsher Singh vs State of Punjab, ; [706 E F] 2 Rule 47 empowers the Governor to relax the general rules in such manner as may appear to him to be just and equitable.
It is clear that power under rule 47 is to be exercised in the interest of justice and equity.
It is not difficult to see that the occasion for acting under rule 47 arises after the attention of the Government is drawn to a case where there has been a failure of justice.
In all these cases justice can be done only by exer cising the power under rule 47 with retrospective effect otherwise the object and purpose of the rule will be largely frustrated.
Such a provision is not unique and is to be found in several statutory rules.
[707 A C] R.P. Khanna & Ors.
vs S.A.F. Abbas & Ors., ; , followed. '
|
ppeal (Civil Appeal No. 57 of 1950) from a judgment and decree of the High Court of Judicature at Bombay dated 1st April, 1948, in Appeal No. :365 of 1947 reversing a judgment of the Joint Civil Judge at Ahmedabad, dated 14th October, 1947, in Suit No. 174 of 1945.
B. Somayya (Jindra Lal, with him) for the appel lants.
C.K. Daphtary (Sri Narain Andley, with him) for the respondents.
February 23.
The judgment of the Court was deliv ered by MAHAJAN J.
The appellants are owners of a property known as "Bharat Bhuvan Theatre" at Ahmedabad.
The respond ents are the lessees of the said theatre.
The term of the lease was to expire on the 2nd 222 December, 1945, unless the lessees gave to the land lords three months previous notice in writing of their intention of exercising their option of renewal of the lease for a further period of two years.
On the 13th December, 1945, the appellants filed the suit out of which this appeal arises for ejectment of the respondents and for recovery of certain amounts.
This suit was decreed on the 14th October, 1947, on the following findings: (1) that the respondents had not exercised the option of the renewal of the lease according to the stipulations contained in the lease, (2) that they had committed breaches of the terms of the lease, and (3) that they were not protected by the Rent Restriction Act.
An enquiry was directed into the amount of mesne prof its.
The respondents filed an append in the High Court against the decree of the Joint Civil Judge on the 10th November, 1947.
The appeal was heard by a Bench of the High Court (Weston and Dixit JJ.) on the 26th February, 1948, and was decided on the 1st April, 1948.
The judgment and decree of the Joint Civil Judge were reversed and the plaintiff 's suit was dismissed.
The High Court affirmed the finding of the trial court on the first point and held in agreement with it that the respondents had not proved that they gave three months previous notice in writing to the appellants for renewal of the lease as required by clause 4 (2) of the lease.
It reversed the finding of the trial Judge on the point that the respondents had committed breaches of the terms contained in clause 2 (20) of the lease.
Finally, it reached the conclusion that although the decree appealed from was right on the date it was made, yet in view of the altered circumstances created by reason of coming into operation of Act LVII of 1947 the appellants were not enti tled to recovery of possession of the suit premises.
Being aggrieved by the judgment of the High Court, the appellants obtained a certificate and filed an appeal in this court on the 7th March, 1949, and it is now before us for decision.
It was contended before the High Court that the appeal being in the nature of a rehearing, it should be 223 decided in accordance with the provisions of Act LVII of 1947 which came into force on the 13th February, 1948, and not in accordance with the provisions of the Act in force at the time when the decree was passed by the trial court.
In other words, the contention was that there having been a change in the law after the date of the decree passed by the trial Judge and before the appeal was heard, the rights of the parties should be determined in accordance with the law as it stood on the date of the hearing of the appeal.
The High Court gave effect to this contention and set aside the decree made for ejectment of the respondents.
Learned counsel for the appellants challenged the deci sion of the High Court before us on three grounds: (1) that assuming that the appeal had to be decided by the High Court in accordance with the provisions of Act LVII of 1947, the provisions of that Act had no application to pending ap peals which had been excluded from its ambit; (9,)that Act LVII of 1947 had been amended by Bombay Act III of 1949 and that the appeal pending in this court should be decided in accordance with the provisions of the amended Act which excluded pending appeals from the purview of Act LVII of 1947; and (3) that the High Court wrongly reversed the trial court 's finding that the respondents had committed breaches of the terms contained in clause 2 (20) of the lease.
The learned counsel for the respondents besides controverting the contentions raised on behalf of the appellants contended that both the courts had erred in holding that the respondents had not proved that they exer cised the option of renewal of the lease according to the stipulations contained therein.
In our opinion, the decision of the appeal depends solely on the construction of sections 12 and 50 of Act LVII of 1947.
The question to decide is whether the Bombay Rents, Hotel and Lodging House Rates Control Act, LVII of 1947, which was enacted on the 19th January, 1948, and which came into force on the 13th February, 1948, has applica tion to 29 224 pending appeals or whether its retrospective effect is limited to cases mentioned in section 50 of the Act.
The point whether the option of renewal was exercised according to the covenants of the lease is concluded by a concurrent finding of fact and nothing that Mr. Daphthary said in support of his contention in any way shakes that finding.
The case must therefore be decided on the assump tion that the respondents did not exercise the option given to them under the lease for its renewal.
We are also not impressed with the argument of the learned counsel for the appellants that the High Court wrongly reversed the finding of the trial Judge on the point that the respondents commit ted breaches of the terms of the tease.
We should not howev er be taken to concur in all the reasons given by the High Court for reversing that finding.
Whether the High Court was right in holding that the provisions of Act LVII of 1947 have application to appeals pending at the time when that Act came into force; the answer to this question depends on the construction to be placed on sections 12 and 50 of Act LVII of 1947.
Section 12 of the Act is in these terms: " (1) A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act.
(2) No suit for recovery of possession shall be insti tuted by a landlord against a tenant on the ground of non payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the .
(3) No decree for eviction shall be passed in any such suit if, at the hearing.
of the suit, the tenant pays or tenders in court the standard rent or permitted increases then due together with the costs of the suit.
225 Explanation In any case where there is a dispute as to the amount of standard rent or permitted increases recovera ble under this Act the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in sub section (2), he makes an application to the court under sub section (3) of section 11 and thereafter pays or tenders the amount or rent or permitted increases specified in the order made by the court.
" This is the substantive section giving protection to the tenant against ejectment.
Section 50 which occurs in dealing with miscellaneous matters is the repeal section.
It repeals the Act of 1939 and the Act of 1944, and while repealing these statutes it provides as follows: "Provided that all suits and proceedings (other than execution proceedings and appeals) between a landlord and a tenant relating to the recovery or fixing of rent or posses sion of any premises to which the provisions of apply and all suits and proceedings by a manager of a hotel or an owner of a lodging house against a lodger for the recovery of charges for, or possession of, the accommodation provided in a hotel or lodging house situate in an area to which applies, which are pending in any Court, shall be transferred to and continued before the courts which would have jurisdiction to try such suits or proceed ings under this Act, and thereupon all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings.
Provided further that (a) every order passed or act done by the Control lers under of the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944, and every order or act deemed to have been passed or done under that Part shall be deemed to have been passed or done under this Act; and (b) all proceedings pending before the Controllers under Part IV of that Act shall be transferred to and continued before the Controllers appointed under this 226 Act as if they were proceedings instituted before the Con trollers under this Act" The High Court held that section 50 merely provided for transfer of pending suits and proceedings to courts given jurisdiction under the Act to hear them and that from its ambit execution proceedings and appeals were excluded be cause no question could arise of their being transferred from one court to another and that an appeal being a contin uation of the suit and in the nature of a re hearing, the provisions of section 12 should be applied to pending ap peals.
The opinion expressed by the Division Bench on the construction of sections 12 and 50 of the Act was questioned in Nilkanth vs Rasiklal (J), and the matter was referred to a Full Bench.
The Full Bench overruled the decision reached by the Division Bench on the construction of section 50 and observed that it was clear that in terms the provi sions of the new Act and the rules made thereunder are made to apply only to such suits and proceedings which are trans ferred under the provisions of this section and that its retrospective effect is confined to what is expressly stated in section 50 of the Act.
We are in respectful agreement with the view expressed by the Full Bench.
On a plain reading of the language of sections 12 and 50 it seems clear to us that the Act was given retrospective operation only to a limited extent and execution proceedings and appeals were excluded from this effect and were to be governed by the provisions of the law in force at the time when the decrees were passed.
The concluding words of section 50 "and there upon all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings" fully bear out this construction.
Mr. Daphthary contended that the whole object of section 50 was to make provision for transfer of pending cases to courts which were given jurisdiction under the Act to hear them and the section did not concern itself with the extent of the retrospective operation of the Act, and that section 12 of the Act which gives protection to tenants should (1) A. I. R. 227 be construed as having retrospective effect.
In our opinion this contention is not sound.
Section 50 cannot be de scribed as a section providing merely for transfer of pend ing cases to courts having jurisdiction to deal with them.
It is on the other hand a" repeal" section in the new stat ute.
It repeals the two earlier statutes, and while repeal ing them it provides that the repeal shall not affect "executions and appeals" and that the provisions of the Act shall apply to all pending suits which shall be transferred to the courts having jurisdiction to hear them under section 28 of the Act.
We are also inclined to agree with the view of the Full Bench that section 12 is in terms prospective and not retrospective.
Sub section (2) clearly relates to suits which may be instituted after the Act comes into force.
It cannot apply to suits which were already pending when the Act was put on the statute book.
Sub section (3) which gives the right to the tenant to pay or tender the rent at the hearing of the suit only applies to those suits which may be instituted after the Act comes into operation because it in terms states "in such suit" and not "in any suit".
"Such suit" can only be a suit referred to in subsec tions (2) and (3) of section 12.
The result therefore is that, in our opinion, the High Court erroneously applied the provisions of Act LVII of 1947 to the appeal in this case and was wrong in allowing it on that basis.
In this view of the case it is unnecessary to deal with the alternative argument of the learned counsel that this appeal should be decided in accordance with the provisions of Act III of 1949.
We accordingly set aside the decree of the High Court dismissing the plaintiff 's suit and restore the decree of the trial Judge decreeing the plain tiff 's suit with costs.
Appeal allowed.
| IN-Abs | The Bombay Rents, Hotel and Lodging House Rates Control Act, LVII of 1947, which came into force on the 13th Febru ary, 1948, has no application to appeals which were pending at the time when the Act came into force.
Its retrospective effect is limited to cases mentioned in section 50 of the Act, that is to say, to suits and proceedings which were trans ferred under the provisions of the said section to the courts having jurisdiction under the Act.
Section 12 of the said Act is in terms prospective and not retrospective in effect.
Sub section (2) relates to suits which may be instituted after the Act comes into force and sub section
(3) also only applies to such suits.
Nilkanth vs Rasiklal (A.I.R. approved.
|
ons Nos. 354 to 359, 362, 370 to 385, 387 to 469, 471 to 475, 477 to 479) 482 to 486, 488) 490, 491 , 493 to 497, 502, 503, 510, 511 to 521, 525, 527 to 529, 535 to 563, 570, 572 to 575, 577 to 584, 586 to 588, 592 to 595, 597, 600@ 602, 603, 606 to 610, 613 to 619, 624, 626 to 634, 637 to 645, 653, 654, 656 to 659, 661, 662, 668, 672, 675, 679, 684 to 688 of 1954 and I to 14, 17, 20, 21, 25 to 27, 35 to 37, 45, 47, 49, 52, 55 to 57 and 61 to 66 of 1955.
Petitions under Article 32 of the Constitution for the enforcement of fundamental rights.
Dr. Bakshi Tek Chand, (O. C. Chatterjee and K. L. Mehta, with him) for 'the petitioners in Petitions Nos. 354, 362,382 to 385, 511 to 516, 519, 537, 308 541, 543 to 547, 550, 553, 556, 558 to 562, 570, 573 to 575, 582 to 584, 587, 588, 593 to 595, 597, 602, 603, 607 to 609, 613, 614, 616 to 619, 626, 628, 631 to 633, 637, 640 to 642, 644, 645, 653, 657 to 659, 661, 662) 6795 684 to 688 of 1954 and 2 to 7, 9 to 14, 21, 25 to 27, 35, 37, 45, 47, 49, 52, 55) 57, 63 and 65 of 1955.
H. L. Mordia and K. L. Mehta for the Petitioners in Petitions Nos.
55 and 65 of 1955.
Frank Anthony and K. L. Mehta, for the Petitioners in Petitions Nos.
56 and 64 of 1955.
U. M. Trivedi, (K. L. Mehta, with him), for the Petitioners in Petitions Nos.
615 of 1954 and 20 of 1955.
R. K. Rastogi and K. L. Mehta, for the Petitioner in Petition No. 634 of 1954.
K. L. Mehta, for the Petitioner in Petition No. 36 of 1955.
Dr. Bakshi Tek Chand, (O. C. Chatterjee and Naunit Lal, with him), for the Petitioners in Petitions Nos.
356 to 359, 370, 372, 373, 374, 376 to 378, 380,, 389, 390, 393 to 400, 415, 4175 463, 469, 482, 484, 521, 563, 577, 578, 586, 592, 606, 610, 627 and 656 of 1954.
Achhru Ram, (Naunit Lal, with him) for the Petitioner in Petition No. 391 of 1954.
Naunit Lal, for the Petitioners in Petitions Nos.
355, 371, 375, 379, 416, 455, 468, 483, 485, 488, 491, 493 to 497, 517, 525, 529, 538, 540, 542 and 551 of 1954.
Dr. Bakshi Tek Chand, (Ganpat Rai, with him), for the Petitioners in Petitions Nos. 381, 387, 388, 402 to 410, 412, 413, 418 to 423; 425, 426, 428 to 454, 456 to 459, 464 to 466, 477, 478, 486, 503, 510, 520, 548, 552, 557, 572, 580, 600, 624, 639, 668 of 1954 and 8 and 17 of 1955.
N. C. Chatterjee, (Ganpat Rai and section K. Kapur, 309 with him), for the Petitioners in Petitions Nos. 462, 536, 549, 579, 630, 638 and 654 of 1954.
U. M. Trivedi, (Ganpat Rai, with him), for the Petitioners in Petitions Nos. 629, 643, 672 of 1954 and 66 of 1955.
Achhru Ram, (Ganpat Rai, with him), for the Petitioner in Petition No. 424 of 1954.
Frank Anthony and Ganpat Rai, for the Petitioners in Petitions Nos. 401, 414) 460) 5023 518, 535 and 539 of 1954.
section K. Kapur and Ganpat Rai, for the Petitioners in Petitions Nos. 411 and 675 of 1954.
R. K. Rastogi and Ganpat Rai, for the Petitioners in Petitions Nos.
427 and 461 of 1954.
O. C. Chatterji and Ganpat Rai, for the Petitioner in Petition No. 62 of 1955.
J. B. Dadachanji and Rajinder Narain, for the Petitioners in Petitions Nos. 473, 479, 490, 527, 528, 554 and 581 of 1954 and Nos. 1 and 61 of 1955.
C. L. Aggarwal and Rajinder Narain, for the Petitioners in Petitions Nos: 471, 472, 474 and 475 of 1954.
K. P. Gupta, for the Petitioners in Petitions Nos. 467 and 555 of 1954.
section C. Isaacs, (section D. Sekhri, with him), for the Petitioner in Petition No. 392 of 1954.
K. section Hajela, Advocate General for the State of Rajasthan and G. section Pathak, (Daulat Ram Bhandari, Porus A. Mehta, P. G. Gokhale and Kan Singh, with them), for the Respondent (State of Rajasthan) in all the petitions.
April 15.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
These are applications under Article 32 of the Constitution impugning the validity of the Rajasthan Land Reforms and Resumption of Jagirs Act No. VI of 1952, hereinafter referred 310 to as the Act.
The history of this legislation may be briefly stated.
On 20 8 1949 the Government of India appointed a Committee presided over by Sri C. section Venkatachar to examine and report on the jagirdari and land tenures in Rajputana and Madhya Bharat, the object avowedly being to effect land reforms so as to establish direct relationship between the State and the tillers of the soil and to eliminate all intermediaries between them.
By its report dated 18 12 1949 the Committee recommended inter alia the resumption of jagirs and payment of rehabilitation grants in certain cases.
(Vide report, page 62).
The question of legislation on the subject was taken up by the Government of Rajasthan in 1951, and eventually a Bill called the Rajasthan Land Reforms and Resumption of Jagirs Bill was prepared, and on 31 12 1951 it was approved by the Rajpramukh and reserved for the consideration of the President.
On 21 1 1952 the President with held his assent from the Bill, and in communicating this decision, the Deputy Secretary to the Government of India informed the Rajasthan Government that if certain amendments were made in the Bill as presented and a fresh Bill submitted, the President would be willing to reconsider the matter.
In accordance with these suggestions, a fresh Bill was prepared in the Ministerial Department incorporating certain amendments, and it was approved by the Rajpramukh on 8 2 1952, and reserved for the consideration of the President, who gave his assent to it on 13 2 1952.
By notification issued on 16 2 1952 the Act came into force on 18 2 1952.
Section 21 (1) of the Act provides that: "As soon as may be after the commencement of this Act, the Government may by notification in the Rajasthan Gazette, appoint a date for the resumption of any class of jagir lands and different dates may be appointed for different classes of jagir lands".
Acting under this provision, the State of Rajasthan issued notifications resuming the jagirs specified therein, whereupon petitions under Article 226 of the Constitution were filed by the persons aggrieved challenging the validity of the Act.
These petitions were 311 heard by a Full Bench of the Rajasthan High Court, which held overruling the contentions of the petitioners, that the Act was valid.
(Vide Amarsingh vs State of Rajasthan(1).
The present applications have been filed under article 32 impugning the Act on the following grounds: I.The Rajpramukh had no competence to enact law, and the Act in question is therefore not a valid piece of legislation.
The Bill was not prepared by the Rajpramukh as required by article 212 A(2), and therefore the law was not validly enacted.
Resumption is not one of the topics of legislation enumerated either in the State list or in the Concurrent List in the Seventh Schedule of the Constitution, and the Act is therefore ultra vires the powers of the State.
The Act does not provide for adequate compensation; nor is there any public purpose involved in it, and so it contravenes article 31(2) It is discriminatory, and therefore contravenes article 14.
And the legislation is not saved by article 31 A, because the lands resumed are neither estates nor jagirs nor grants similar to jagirs, inams or muafi This contention is special to some of the petitioners, and has reference to the specific properties held by them.
V. The properties sought to be resumed are not jagirs as defined in the Act, and the notifications under section 21 in so far as they relate to them are illegal.
This again is a special contention urged in some of the petitions.
These contentions will now be considered seriatim.
On the first question as to the competence of the Rajpramukh to enact the law, it is necessary to notice the events which led up to the formation of the State of Rajasthan and the constitution of the Rajpramukh as its head.
During the 12th and 13th Centuries, the Rajput rulers who were then reigning (1) A.I.R. 40 312 over various parts of Hindusthan were compelled by pressure from the victorious Muhammadan invaders to retreat to the regions to the southwest guarded by the Aravali Hills and interspersed with deserts which if less hospitable were also less vulnerable, and there established several independent kingdoms.
The period which followed the foundation of these States was marked by incessant wars, the powerful Sultans of Delhi making determined efforts to subjugate the Rajput princes and the latter offering stubborn and more or less successful resistance thereto.
The annals of Rajputana especially of this period, present a story of heroic deeds of men and women and are among the most inspiring and fascinating chapters in the history of this country.
The Moghul Emperors who established themselves later saw the wisdom of conciliating the Rajput rulers, and recognised their position as Chiefs getting in return an acknowledgment of their suzerainty from them, and a promise to send troops in support of the Imperial arms whenever required.
When the power of the great Moghul waned and the British established themselves as masters of this country, they in their turn recognised the Rajput princes as Sovereigns, and entered into treaties with them during the Period between 1803 to 1818.
(Vide Aitchison 's Treaties, Volume III).
By these treaties, the British Government accepted their status as independent rulers reserving to themselves Defence, External Relations and Communications and such other matters as might be agreed upon.
The relationship thus created was one of "subordinate union" as it was termed by Mr. Lee Warner, the princes being recognised as Sovereigns and they acknowledging the suzerainty of the British.
(Vide Protected Princes of India,, Chapter VI).
On 15 8 1947 India became independent, and the paramountcy of the British Crown over the States ceased.
The question then arose as to the status of the ruling Chiefs.
It was soon realised by them that in the larger interests of the country and in their own, they could not afford to keep out of the Indian Union and must throw in their lot with it.
The 313 problem of fitting them within the framework of the Indian Constitution was beset with considerable difficulties.
The number of States which had been recognised as independent prior to 15 8 1947 was 552 excluding Hyderabad, Junagadh and Kashmir.
While a few of them were sufficiently large to be able to function as separate States, many of them were too small to be administered as distinct units.
While some of them had representative forms of Government others had not, the rulers being the sole authority: executive, legislative and judicial.
The solution which was adopted by the Government of India was that while the bigger States were continued as independent units of the Union, the smaller States were, where they formed islets within a Province, merged within that Province, and where they were contiguous, integrated together so as to form a new State called the Union.
One of the Unions thus newly formed was Rajasthan.
There were at that time 18 independent rulers functioning over different parts of Rajasthan.
Nine of them, rulers of Banswara, Bundi, Dungarpur, Jhalawar, Kishengarh, Kotah, Pratapgarh, Shahpura and Tonk entered into an agreement in March 1948 merging their States in a single unit called the United State of Rajasthan.
The ruler of Mewar joined this Union on 18 4 1948, and the rulers of Jaipur, Jodhpur, Bikaner and Jaisalmere on 30 3 1949.
The rulers of Alwar, Bharatpur, Dholpur and Karauli who bad formed themselves on 18 3 1948 as Matsya Union dissolved that Union and acceded to the Rajasthan Union on 15 5 1949.
With that, the full strength of the State of Rajasthan was made up.
The constitution of the United State of Rajasthan as it finally emerged is to be found in the Covenant entered into by the 14 rulers on 30 3 1949.
As the authority of the Rajpramukh to enact the impugned legislation was founded on this Covenant, it is necessary to refer to the material provisions thereof bearing on the question.
Under Article II, the Covenanting States agreed "to unite and integrate their territories in one State with a common executive legisla 314 ture and judiciary, by the name of the United State of Rajasthan".
Article VI(2) provides that the ruler of each Covenanting State shall "make over the administration of his State to the Rajpramukh, and thereupon all rights, authority and jurisdiction belonging to the ruler which appertain or are incidental to the Government of the Covenanting States shall vest in the United State and shall thereafter be ex ercisable only as provided by this Covenant or by the Constitution to be framed thereunder.
Article VII (3) provides: "Unless other provision is made by the Act of the Legislature of the United State, the right to resume Jagirs or to recognise succession, according to law and custom, to the rights and titles of the jagirdars shall vest exclusively in the Rajpramukh".
Them comes article X(3) which is as follows: "Until a Constitution so framed comes into operation after receiving the assent of the Rajpramukh, the legislative authority of the United State shall vest in the Rajpramukh, who may make and promulgate Ordinances for the peace and good Government of the State or any part thereof, and any Ordinance so made shall have the like force of law as an Act passed by the legislature of the United State".
Article X(3) was subsequently modified by substituting for the words "Until a Constitution so framed comes into operation after receiving the assent of the Rajpramukh", the words "Until the Legislative Assembly of Rajasthan has been duly constituted and summoned to meet for the first session under the provisions of the Constitution of India".
This modifi cation was necessitated by the fact that the idea of convening a Constituent Assembly for framing a Constitution for the State as contemplated in article X (1) was dropped, and the Constitution as enacted for the Union of India was adopted.
This amendment, however, is of a formal character, and does not affect the substance of the matter.
Then, there is article XIX under which the Rajasthan Government was to act "under the general control of and comply with such particular directions, 315 if any, as may from time to time, be given by the Government of India".
These are the material provisions of the Constitution which was in force in the United State of Rajasthan before the Constitution of India came into operation on 26 11 1950.
Article 385 of the Constitution enacts: "Until the House or Houses of the Legislature of a State specified in Part B of the First Schedule has or have been duly constituted and summoned to meet for the first session under the provisions of this Constitution, the body or authority functioning immediately before the commencement of this Constitution as the legislature of the corresponding Indian States shall exercise the powers and perform the duties conferred by the provisions of this Constitution on the House or Houses of the Legislature of the State so specified".
It is the contention of the respondent that the Rajpramukh was by reason of article X(3) of the Covenant "the authority functioning immediately before the commencement of the Constitution as the Legislature" of Rajasthan, and that he could under article 385 exercise the powers which the Legislature of the State could.
It is conceded by the petitioners that at the time of the impugned legislation.
no House of Legislature had been constituted and summoned, and that to that extent the requirements of that Article are satisfied; but their contention is that on a true construction of the articles of the Covenant the Rajpramukh was not an authority functioning as Legislature within the meaning of article 385, and further that article VII(3) of the Covenant imposed a prohibition on his power to enact a law of the kind now under challenge, and that the prohibition had not been abrogated by the Constitution.
The question then is which was the body or authority which was functioning as the Legislature of the United State of Rajasthan under the terms of the Covenant.
Article X(3) expressly provides that the legislative authority of the State shall vest in the Rajpramukh.
The meaning of this provision is clear and unambigu 316 ous; but it is argued for the petitioners that it is con trolled and cut down by the expression "Ordinance" in article X(3) and by the terms of article VII(3) and of article XIX.
It is contended by Mr. N. C. Chatterjee that the legislative authority of the Rajpramukh was only to "make and promulgate Ordinance" that it is a limited power conferred on him to be exercised in case of emergency pending the constitution of popular legislature, and that accordingly he was not a "legislative authority" for the purpose of article 385.
But this is to import into the word "Ordinance" what it connotes under the Government of India Act, 1935 or the Constitution of India.
Sections 42 and 88 of the Government of India Act conferred on the Governor General and the Governor respectively power to promulgate ordinances when the Legislature was not in session.
Similar power is conferred on the President and the Governors by articles 123 and 213 of the Constitution.
That is a legislative power exercisable by the head of the State, when it is not possible for the Legislature to exercise it.
But the United State of Rajasthan had then no Legislature, which had yet to be constituted, and therefore in its context, the word "Ordinance" in article X (3) cannot bear the meaning which it has under the Government of India Act or the Constitution.
It should be remembered that before the formation of the United State, the Covenanting rulers enjoyed sovereign rights of legislation in their respective territories; and under article VI (2) (a), they agreed to surrender those rights and vest them in the United State.
It was therefore plainly intended that the State of Rajasthan should have plenary.
legislative authority such as was formerly exercised by the rulers; and where was it lodged, if not in the Rajpramukh? If we are to construe article X(3) in the manner contended for by the petitioners, then the anomalous result will follow that there was in that State no authority in which the legislative power was vested.
This anomaly would disappear if we are to construe "Ordinance" as meaning law.
That indeed is its etymological meaning.
According to the Concise Ox 317 ford Dictionary, "to ordain" means "to decree, enact"; and "Ordinance" would therefore mean "decree, enactment".
In Halsbury 's Laws of England, Volume XI, page 183, para 327 it is stated that when the Governor of a colony which has no representative assembly enacts legislation with the advice and consent of the State council, it is designated ordinance or law.
That clearly is the sense in which the word is used in article X(3), and that is placed beyond doubt by the words which follow, that the Ordinance is to have "the like force of law as an Act passed by the Legislature of the United State".
It was next urged that under article VII(3) the Rajpramukh was given authority to resume jagirs only in accordance with law and custom, that he had no authority to enact a law for the resumption of jagirs on grounds other than those recognised by law and custom, that section 22 of the Act provided that the resumption was to take effect notwithstanding any jagir law which as defined in section 2(d) includes also custom, that such a law was directly opposed to what was authorised by article VII(3), that the legislative powers conferred under article X (3) must be exercised subject to the restrictions under article VII(3), and that the Act was therefore beyond his competence.
This contention is, in our opinion, untenable.
The words "according to law and custom" cannot be held to qualify the words "right to resume jagirs", because they are wedged in between the words "right to recognise succession" and the words "to the rights and titles of Jagirdars", and must be construed as qualifying only "the right to recognise succession to the rights and titles of Jagirdars".
But this may not, by itself, be of much consequence, as the power to resume provided in this article is what the grantor possesses under law and custom.
The real difficulty in the way of the petitioners is that article VII(3) has reference to the power which rulers of States had as rulers to resume jagirs, and what it provides is that it should thereafter be exercised by the Rajpramukh.
That power is purely an executive one, and has nothing to do with the legislative power of the ruler, which 318 is specially provided for in article X(3).
The fields covered by the two articles are distinct and separate, and there can be no question of article VII(3) operating as a restriction on the legislative power under article X(3).
Indeed, article VII(3) expressly provides that it is subject to any legislation on the subject, whereas article X(3) is not made subject to article VII(3).
Even if the petitioners are right in their contention that article VII(3) imposes a limitation on the powers of the Rajpramukh, that would not, in view of article 385, derogate from the power of the Rajpramukh to enact the present law.
The scope of that article is that the body or authority which was functioning before the commencement of the Consti tution as the Legislature of the State has first to be ascertained, and when once that has been done and the body or authority identified, the Constitution confides to that body or authority all the powers conferred by the provisions of the Constitution on the House or Houses of Legislature of the State.
These powers might be wider than what the body or authority previously possessed or they might be narrower.
But they are the powers which are allowed to it under article 385, and the extent of the previous authority is wholly immaterial.
The contention that the Act is incompetent by reason of article VII(3) of the Covenant must accordingly fail.
It was next argued that the powers of the Rajpramukh under article X(3) were subject to the general control of the Government of India under article XIX, and that he could not therefore be regarded as legislative authority for the purpose of article 385.
We see no force in this contention.
Article 385 provides that the authority which was to exercise legislative powers in the interim period under that Article should be the authority which was functioning as the Legislature of the State before the commencement of the Constitution.
It does not further require that that authority should have possessed absolute and unlimited powers of legislation.
It could not be, and it was not, contended that the effect of article XIX 319 was to vest the legislative authority of the State in the Government of India, and that being so, the Rajpramukh was the legislative authority of the State, whatever the limitations on that authority.
it was finally contended that article 385 has no application to the present case, because under article 168 the Legislature is to consist of both the Governor and one or more Houses, that article 238(7) extends article 168 to Part B States substituting the Rajpramukh in the place of the Governor, that accordingly the Rajpramukh cannot by himself constitute the Legislature, and that when article 385 refers to the body or authority functioning as Legislature, it could only refer to both the Rajpramukh and the House functioning in conjunction.
Support for this contention was sought in the terms of article 212 A(1) of the Constitution (Removal of Difficulties) Order No. 11, which excluded in relation to Part B States only the first proviso to article 200, but not the body of it.
If this contention is sound, then article 385 must be treated as a dead letter as regards such of the Part B States as had no House of Legislature.
But, in our opinion, this contention is untenable, because article 385 refers not to Legislatures under the Constitution but to the body or authority which was functioning as the Legislature of the State before the commencement of the Constitution., and article 238(7) is, under the Constitution (Removal of Difficulties) Order sub ject to article 385.
Nor can any argument be founded on the exclusion of the first proviso to article 200 but not of the body of that article under article 212 A (1), because it lays down the procedure to be followed when a Bill has been passed by a Legislative Assembly or Legislative Council of a State, and is by its very terms inapplicable when there is no House of Legislature.
The contention of Mr. Frank Anthony that the non inclusion of the body of article 200 among the articles excluded from application to Part B States under article 212 A(1) imposes by implication a limi tation on the power of the Rajpramukh to enact laws unless they are passed by Legislative Assemblies is 320 not supported by anything in the article, and must be rejected.
We must accordingly bold that the Rajpramukh had legislative competence to enact the law under challenge.
II.The second contention that has been pressed by the petitioners is that the Rajasthan Land Reforms and Resumption of Jagirs Bill was not prepared by the Rajpramukh as required by article 212 A(2), and that the Act was therefore not validly enacted.
The facts material for the purpose of this contention are that the Bill was first prepared in the Ministerial Department in accordance with the rules framed under article 166(3) for the "convenient transaction of the business of the State".
It was approved by the Council of Ministers on 27 12 1951 and sent to the Rajpramukh with the following note by the Secretary: "The Bill is submitted for gracious approval and signature and for reserving it for the consideration of the President".
Then there is firstly an endorsement "approved" signed by the Rajpramukh and dated 31 12 1951, and then follows another endorsement, "I hereby reserve this Bill for the consideration of the President" similarly signed and dated.
On 21 1 1952 the President endorsed on the Bill, "I withhold my assent from the Bill".
Thereafter, a fresh Bill was prepared and submitted to the Rajpramukh on 6 2 1952 with the following note by the Chief Secretary: "The Bill as finally agreed to is now submitted to His Highness the Rajpramukh for his approval and for reserving the same for the consideration of the President".
The Rajpramukh gave his approval on 8 2 1952, and by a further order he reserved the Bill for the consideration of the President who gave his assent on 13 2 1952.
Now, the question is whether on these facts the requirements of article 212 A(2) have been complied with.
Article 212 A(2) was enacted by the Constitution (Removal of Difficulties) Order No. 11, and is as follows: 321 "The Rajpramukh or other authority exercising the legislative powers in any such State as aforesaid under article 385 shall prepare such Bills as may be deemed necessary, and the Rajpramukh shall declare as respects any Bill so prepared either that he assents to the Bill or that he withholds assent therefrom or that he reserves it for the consideration of the President".
The contention of the petitioners is that as the Bill was prepared by the Ministers and not the Rajpramukh, article 212 A(2) had been contravened, and that, in consequence, the law had not been properly enacted.
It is conceded that under this article the Rajpramukh has not himself to draft the Bill, and that be might delegate that work to others.
But they insist and in our opinion, rightly that questions of policy which are of the essence of the legislation should at least be decided by him, and that even that had not been done in the present case.
They rely strongly on the statements in the affidavit of Sri Joshi, the Jagir Commissioner, that the Bill was drafted in the Ministerial Department in accordance with the rules framed under article 166(3), approved by the Council of Ministers and sent on to the Rajpramukh for his assent.
These allegations, they con tend, preclude any supposition that the Rajpramukh had any part or lot in the settlement of the policies underlying the Act, and the Bill must be held therefore not to have been prepared by him.
Taking it that such are the facts, what follows? Only that at the inception the Bill was not prepared by the Rajpramukh.
But that does not conclude the question whether there bad been compliance with article 212 A(2), unless we hold that it was not open to the Rajpramukh to adopt a Bill prepared by the Ministers as his own, or if it was open, he did not, in fact, do so.
It cannot be disputed that whether a Bill is in the first instance prepared by the Rajpramukh or whether he adopts what had been prepared by the Ministers as his own, the position in law is the same.
That has not been disputed by the petitioners.
Their contention is that such adoption 322 should be clearly and unequivocally established, and that the records do not establish it.
It was argued that when the Bill was sent to the Rajpramukh, he was not called upon to apply his legislative mind to it but to merely assent to it on the executive side; that when the Rajpramukh endorsed his approval he was, as admitted by Sri Joshi, merely assenting to it, that assent implied that the Act assented to was not that of the person assenting, and that therefore there was nothing to indicate that the Rajpramukh had adopted the Bill prepared by the Ministers as his own.
It was argued by Mr. Agarwala that when the word " approve" was used in the Constitution as in articles 146 and 147, it signified that there were two authorities, one of which was authorised to confirm or sanction what the other had authority to do, and that when the latter was not authorised to do the act, there could be no approval of it by the former; and he also relied on the statement of the law in Corpus Juris, Volume I, page 1365 that the word 'approve ' does not mean the same thing as 'adopt '.
The fallacy in this argument lies in isolating the word "approved" from out of its setting and context and interpreting it narrowly.
It will be noticed that under article 212 A (2) the Rajpramukh has to do two distinct acts: Firstly he has to prepare the Bill, and secondly leaving out of consideration the first two alternatives, namely, assenting to, or with holding assent from, the Bill as not material for the present discussion he has to reserve it for the consideration of the President.
When he himself prepares the Bill, he has, in order to comply with article 212 A(2) merely to reserve it for the consideration of the President.
In such a case, no question of approval to the Bill by him can arise, but when the Bill has not been prepared by him, he has firstly, if he thinks fit, to adopt it before he could pass on to the second stage and reserve the Bill for the consideration of the President; and the very purpose of his endorsing his approval on the Bill is to show that he has thought fit to adopt it.
There is no provision in article 212 A(2) for the Rajpramukh approving of a Bill, and in 323 the context, therefore, an endorsement of approval on the Bill must signify its adoption by him.
We are unable to follow the subtle distinction sought to be made by Mr. Frank Anthony between the Legislative mind of the Rajpramukh and his executive mind.
If it is open to the Rajpramukh to adopt a Bill prepared by his Ministers, the only matter that will have to be considered is whether, in fact, he did so.
And when the Bill is produced with an endorsement of approval under his signature, the question must be held to be concluded, and any further discussion about the legislative or executive state of mind of the Rajpramukh must be ruled out as inadmissible.
It must be mentioned in this connection that Mr. Pathak for the respondent took up the position that the function of the Rajpramukh at the stage of preparation of the Bill was purely executive, and that it became legislative only when he had to decide whether he would assent to the Bill or withhold his assent therefrom, or reserve it for the consideration of the President, and that by leaving it to the Ministers to prepare the Bill there had been no violation of article 212 A(2).
We are unable to agree with this contention.
When a Bill has been passed by the Legislative Assembly of a State, article 200 enacts that it shall be presented to the Governor who is to declare whether he assents to it or withholds his assent therefrom, or reserves it for the consideration of the President.
When there is no Legislative Assembly in a State, the matter is governed by article 212 A(2), and there is substituted under that article in the place of the passing of the Bill by the Legislature, the preparation thereof by the Rajpramukh, and then follows the provision that he has to declare whether he assents to or withholds his assent from the Bill or reserves it for the consideration of the President.
The position under article 212 A(2) has thus been assimilated to that under article 200, the preparation of the Bill by the Rajpramukh taking the place of the passing of the Bill by the Legislative Assembly, and the one is as much a legislative function as the other.
One other contention attacking the Act on the 324 ground of procedural defect may now be considered.
It was argued by Mr. Trivedi that under the proviso to article 201, the President bad no power to return a Money Bill for further consideration by a House of Legislature, that his order dated 21 1 1952 returning the Rajasthan Land Reforms and Resumption of Jagirs Bill for further consideration was ultra vires as it was a Money Bill, that the subsequent presentation of the Bill to him on 8 2 1952 was unauthorised, and that the impugned Act had therefore not been duly passed.
This argument is clearly erroneous.
Under article 212 A(1), the proviso to article 201 has no application to those Part B States where there was no House of the Legislature; and we are unable to follow the argument of the learned counsel that even so, the limitation imposed by the proviso is implicit in the body of the article itself.
Moreover, the order of the President dated 21 1 1952 is not one returning the Bill for further consideration by the House but one refusing assent.
It is true that the Deputy Secretary sent a communication to the Rajasthan Government suggesting some amendments.
But this does not alter the character of the order of the President as one withholding assent.
And finally the Bill which was submitted again to the President for consideration on 6 2 1952 was a fresh Bill, the previous Bill having been modified as regards the scales of compensation.
The contention, therefore, that the Act is bad for non compliance with article 212 A(2) or for other procedural defects must be rejected.
We may now consider the third contention of the petitioners that the Act in so far as it provides for resumption of jagir lands is ultra vires the powers of the State Legislature, as it is not one of the topics mentioned either in List II or List III of the Seventh Schedule to the Constitution.
The contention of the respondent is that the Act is in substance a law relating to acquisition, and is covered by Entry No. 36 in the State List.
On the other hand, the petitioners maintain that the subject matter of the legislation is what it avows itself to be, viz., resumption of jagirs, that resumption is in law totally different from 325 acquisition, and that the Act is therefore not covered by Entry No. 36.
We agree with the petitioners that resumption and acquisition connote two different legal concepts.
While resumption implies that the person or authority which resumes the property has pre existing rights over it, acquisition carries no such implication, and in general, while the effect of resumption is to extinguish the interests of the person whose property is resumed, that of acquisition is to vest that interest in the acquirer.
But the question still remains whether the impugned Act is one for acquisition of jagirs or for their resumption; and to determine that, we must see what the pith and substance of the legislation is, the name given to it by the Legislature not being decisive of the matter.
The provisions of the Act relating to resumption may now be noticed.
Chapter V deals with resumption of jagir lands.
Section 21 authorises the State to issue notifications for resumption of jagirs, and section 22(1) enacts: "As from the date of resumption of any jagir lands, notwithstanding anything contained in any existing jagir legislation applicable thereto but save as otherwise provided in this Act, (a) the right, title and interest of the jagirdar and of every other person claiming through him . in his jagir lands including forests, etc . shall stand resumed to the Government free from all encumbrances".
Section 22(1)(g) is as follows: "the right, title and interest of the jagirdar in all buildings on jagir lands used for schools and hospitals not within residential compounds shall stand extinguished, and such buildings shall be deemed to have been transferred to the Government".
Section 23 exempts certain properties from the operation of section 22, and provides that they are to continue to belong to the jagirdars or to be held by them.
Chapter VI deals with compensation.
Section 26(1) enacts: 326 "Subject to the other provisions of this Act, the Government shall be liable to pay every jagirdar whose Jagir lands are resumed under section 21 such compensation as shall be determined in accordance with the principles laid down in the second schedule".
Chapter VII prescribes the procedure for the determination of compensation and for payment of the same.
The second Schedule to the Act contains the principles on which compensation is to be determined.
That was the scope of the Act as it was passed in 1952.
In 1954 certain amendments were introduced by Act No. XIII of 1954, the most important of which was the provision for payment of rehabilitation grant in accordance with the principles enacted in Schedule III to the Act.
Now, the contention of the petitioners is that the basic assumption on which the Act is framed is that jagirdars have no right of property in the lands themselves, but that they possess some ancillary rights in relation thereto, that the State is therefore entitled to resume the lands without compensation, and that it is sufficient to pay for the ancillary rights.
These, it is argued, were the views expressed by the Venkatachar Committee in its Report on Land Tenures in Rajasthan, and they formed the basis of the impugned Act.
Thus, it is pointed out that the Committee had held that "jagirs are not the property of the jagirdars" (vide page 47, para 5), that ' 'if the jagir system is abolished, jagirdars would not be entitled to any compensation on the ground of the jagirs being private property", and that "even though jagirs are not pro perty. . . those rights which have in many cases been enjoyed for centuries have acquired around them an accretion of rights by long custom and prescription which are entitled to due recognition", and that a rehabilitation grant might be given to the jagirdars.
(Page 47, para 6).
It is contended that it is these views that have been adopted in section 22 of the Act, and that when section 22 (1) (a) declares that the right, title and interest of the jagirdars shall stand resumed, it could not mean that these rights are acquired by the State, because acquisition implies that the 327 properties acquired belong to the person from whom they are acquired, whereas the basis of the legislation was that the jagirdars bad no property in the lands, and there could be no acquisition of what did not belong to them.
Reference is made by way of contrast to the language of section 22(1) (g) under which certain buildings standing on jagir lands presumably constructed by jagirdars should stand transferred to the Government and not resumed as under section 22 (1) (a).
This argument proceeds on an inadequate appreciation of the true nature and scope of the right of resumption under the general law and of the power of resumption which is conferred on the State by the impugned Act.
Under the law, a jagir could be resumed only under certain circumstances.
It can be resumed for breach of the terms of the grant, such as failure to render services or perform the obligations imposed by the grant.
It can be resumed for rebellion or disloyalty or for the commission of serious crimes.
And again, jagir was originally only a life grant and when the holder died.
, it reverted back to the State and succession to the estate was under a fresh grant from the State and not by inheritance, even when the successor was the heir of the deceased holder.
The right to resume jagirs within the limits aforesaid was founded on grant and regulated by general law.
To exercise that right, there was no need to enact any legislation.
It was a right which every ruler of the Covenanting State had as a grantor, and that right had become vested in the Rajpramukh under article VII(3) of the Covenant.
The contention of the petitioners that resumption was not an acquisition would strictly be accurate, if the resumption was in exercise of the power conferred by that article.
But the resumption for which the Act provides is something different from the resumption which is authorised by article VII(3).
It was a resumption not in accordance with the terms of the grant or the law applicable to jagirs but contrary to it, or in the words of section 21 "notwithstanding anything contained in 42 328 any existing jagir law applicable thereto".
It was a resumption made not in enforcement of the rights which the rulers had as grantors but in exercise of the sovereign rights of eminent domain possessed by the State.
The taking of properties is under the circumstances, in substance, acquisition notwithstanding that it is labelled as resumption.
And this conclusion becomes irresistible when regard is had to the provisions for payment of compensation.
Section 26(1) imposes on the Government a liability to pay compensation in accordance with the principles laid down in the second Schedule, and as will be presently shown, it is not illusory.
The award of compensation is consistent only with the taking being an acquisition and not with its being a resumption in accordance with the terms of the grant or the law applicable to it, for in such cases, there is no question of any liability to pay compensation.
It was argued for the petitioners that the provision for the payment of rehabilitation grant was an indication that what was paid as compensation was in reality ex gratia.
But the rehabilitation grant was in addition to the compensation amount, and it was provided by the amendment Act No. XIII of 1954.
Nor are we impressed by the contention that the Act had adopted the findings of the Venkatachar Committee that the jagirs were not the properties of the jagirdars, and that no compensation need be paid for them.
Under section 22(1)(a), what is resumed is expressly the right, title and interest of the jagirdar in his jagir lands, and provision is made for payment of compensation therefor.
Moreover, the opinions in the report of the Venkatachar Committee on the rights of the jagirdars are clearly inadmissible for the purpose of deciding what the pith and substance of the impugned legislation is.
That must be decided on an interpretation of the provisions of the statute, and that decision cannot be controlled or guided by the opinions expressed in the report.
Reading the provisions of the Act as, a whole, it is abundantly plain that what was meant by resumption was only acquisition.
Indeed, if the Act purported to be one for 329 acquisition of jagirs, its provisions could not have been different from what they are.
Such being the true character of the legislation, not much significance could be attached to the use of the word "resumption" in the Act.
It should be remembered that the State has a reversion in jagir lands, and when it takes them back in accordance with the terms of the grant or the law applicable thereto, its action is properly termed resumption.
When the statute enacted a law authorising the taking of jagir lands, it is natural that it should have adopted the same term, though the resumption was not made on any of the grounds previously recognised as valid.
In view of the peculiar relationship between the jagirdar and the State, it cannot be said that the word "resumption" is inadmissible to signify acquisition.
Section 22(1)(a) further enacts that the lands shall stand resumed "to the Government", which words are more appropriate for acquisition by the Government than resumption simpliciter.
It was also contended for the respondent that the Act is one relating to land and land tenures, and that it would fall under Entry No. 18 in the State List: "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 was argued that the heads of legislation mentioned in the Entries should receive a liberal construction, and the decision in The United Provinces vs Atiqa Begum(1) was quoted in support of it.
The position is well settled and in accordance therewith, it could rightly be held that the legislation falls also under Entry No. 18.
But there being an Entry No. 36 specifically dealing with acquisition, and in view of our conclusion as to the nature of the legislation, we hold that it falls under that Entry.
IV.Now we come to the contentions special to some of the petitioners that with reference to the (1) , 134, 330 properties held by them the impugned Act is not saved by article 31 A, and that it is void as being in contravention of articles 14 and 31(2) of the Constitution.
On this contention, two questions arise for determination: (A) Is the impugned Act in so far as it relates to the properties of the petitioners within the protection afforded by article 31 A? (B) And is the Act bad as infringing articles 14 and 31(2) of the Constitution? IV(A).
On the first question, the contention of the petitioners is that the properties held by them are neither `estates 'nor 'Jagirs ' nor 'other similar grants, ' within article 31 A, and that therefore the impugned Act falls, quoad hoc, outside the ambit of that article.
At the threshold of the discussion lies the question as to the precise connotation of the words "jagir or other similar grant" in article 31 A, and to determine it, it is necessary to trace in broad outline the origin and evolution of the jagir tenure in Rajasthan.
It has been already mentioned that during the period of the Muhammadan invasion the Rajput princes of Hindusthan migrated to Rajputana and founded new kingdoms.
The system of land tenure adopted by them was that they divided the conquered territories into two parts, reserved one for themselves and distributed the other in blocks or estates among their followers.
In general, the grantees were the leaders of the clan which had followed the King and assisted him in the establishment of the kingdom or his Ministers.
Sometimes, the grant was made as a reward for past services.
The lands reserved for the King were called Khalsa, and the revenue therefrom was collected by him directly through his officials.
The lands distributed among his followers were called jagirs and they were generally granted on condition that the grantee should render military service to the rulers such as maintaining militia of the specified strength or guarding the passes or the marches and the like.
The extent of the grant would depend on the extent of the obligations imposed on the grantee, and it would be such as would enable the grantee to maintain himself and the troops from out of the 331 revenues from the jagir.
It was stated by Mr. Pathak that the grants would in general specify the amount of revenue that was expected to be received from the jagir, and that if the jagirdar received more, he was under an obligation to account to the State for the excess.
And he quoted the following passage in BadenPowell on Land Systems of British India, Volume 1, page 257 as supporting him: "While a strict control lasted, the jagirdar was bound to take no more than the sum assigned; and if more came into his hands, he had rigidly to account for the surplus to the State treasury".
This statement has value only as throwing light on the jural relationship between the State and the jagirdar, for it does not appear that it was ever observed in practice.
It may be deduced from the foregoing that all the lands of the State must fall within one or the other of the two categories, Khalsa or jagir, and that the essential features of a jagir are that it is held under a grant from the ruler, and that the grant is of the land revenue.
Some of the incidents of the jagir tenure have been already touched upon.
It was a life grant and succession to it depended on recognition by the ruler.
It was impartible, and inalienable.
But in course of time, however, grants came to be made with incidents annexed to them different from those of the jagirs, Some of them were heritable, though impartible; a few of them were both heritable and partible.
While originally the jagirs were granted to the Rajput clansmen for military service the later grants were made even to non Rajputs and for religious and charitable purposes.
These grants were also known as jagirs.
"The term 'jagir ' is used", it is observed in the Report of the Venia tachar Committee, page 18, para 2, "both in a generic and specific sense.
In its generic sense it connotes all non khalsa area".
The stand taken by the petitioners in their argument was also that the word 'jagir ' bad both a wider and a narrower connotation.
Thus, after quoting from the Rajputana Gazetteer the passage that "the rest of 332 the territory is held on one of the following tenures, viz, Jagir, Jivka, Sansan, Doli, Bhum, Inam, Pasaita and Nankar" (Vide Erskine 's Rajputana Gazetteers, Volume III A, Chapter XIII Land Revenue and Tenures), Sri Amar Singh who presented the case of his father Zorawar Singh, a leading Bhoomichara of Mallani, with conspicuous ability, argued that jagir was used in the passage in its specific sense, and that in its generic sense, it would comprise all the other tenures mentioned above.
In the impugned Act also, jagir land is defined in section 2(h) as meaning "any land in which or in relation to which a jagirdar has rights in respect of land revenue or any other kind of revenue and includes any land held on any of the tenures specified in the First Schedule", and in the Schedule ' jagir is mentioned as the first of the items.
It also appears that in the laws enacted in the States of Rajputana to which our attention has been drawn, the word `jagir 'is generally used in its extended meaning.
Thus, both in its popular sense and legislative practice, the word 'jagir ' is used as connoting State grants which conferred on the grantees rights "in respect of land revenue".
(See section 2(h) of the Act.) It was argued that though the extended definition of jagirs in section 2(h) of the impugned Act might govern questions arising under that Act, the word 'jagir ' in article 31 A must be construed as limited to its original and primary meaning of a grant made for military service rendered or to be rendered, and that accordingly other grants such as maintenance grants made in favour of near relations and dependents would not be covered by it.
We do not find any sufficient ground for putting a restricted meaning on the word 'jagir ' in article 31 A.
At the time of the enactment of that article, the word had acquired both in popular usage and legislative practice a wide connotation, and it will be in accord with sound canons of interpretation to ascribe that connotation to that word rather than an archaic meaning to be gathered from a study of ancient tenures.
Moreover, the object of article 31 A was to save legislation which was directed to the abolition of intermediaries so as to 333 establish direct relationship between the State and the tillers of the soil, and construing the word in that sense which would achieve that object in a full measure, we must hold that jagir was meant to cover all grant under which the grantees bad only rights in respect of revenue and were not the tillers of the soil.
Maintenance grants in favour of persons who were not cultivators such as members of the ruling family would be jagirs for purposes of article 31 A. We may now proceed to consider the contentions of the several petitioners with reference to the specific properties held by them, and they may be grouped under two categories: (1) those relating to the tenures on which the properties are held, and (2) those relating to particular properties.
Under category (1) fall the estates held by (a) Bhomicharas of Marwar, (b) Bhomats of Mewar, (c) Tikanadars of Shekhwati, and (d) Subeguzars of Jaipur.
(1)(a) Bhomicharas: This is the subject matter of Petitions Nos.
462, 579, 630, 638 and 654,of 1954.
The Bhomichara tenure is to be found in Jaisalmere, in Shekhawati in Jaipur and in Marwar.
(Vide Report of the Venkatachar Committee, page 19, para 13).
But we are concerned here only with the Bhomichara tenure in the State of Marwar.
Its history goes back to the year 1212 A.D. when the clan of Rathors led by Rao Siaji, grandson of King Jayachander of Kanouj invaded Rajputana, subjugated the territories now known as Mallani, Yeshwantpura and Sanchora and established itself there.
Some two centuries later, a section of the Rathors beaded by Biram Deo who was the younger brother of Mallinath, the ruling prince of Mallani, expanded eastwards, and established the kingdom of Jodhpur.
The elder branch which continued in Mallani, Yeshwantpura and Sanchora gradually sank in power.
The descendants of Mallinath went on partitioning the lands treating them as their personal properties and the principality thus came to be broken up into fragments, and its holders became weak and disunited.
Their internecine disputes led to the intervention of Jodhpur which had grown to 334 be a powerful kingdom, and they were compelled to accept its ruler as their suzerain and to pay him an annual tribute of Rs. 10,000 called "Foujbal".
Thereafter, they continued to hold lands subject to the payment of this tribute, and came to be known as Bhomicharas.
The area continued to be distracted by disputes and dissensions among its leaders, and fell into so much anarchy and confusion that in 1835 the British had to intervene to restore order.
It should be remembered that they had entered into a treaty of alliance with Jodhpur in 1818, and their intervention was presumably by virtue of their obligations under the treaty.
Thereafter, the territory was put under the charge of a British superintendent and latterly of the Resident at Jodhpur.
The annual tribute was, during this period, collected by the British and paid to the Jodhpur State.
Writing on the status of the Bhomicharas during this period, Major Malcolm remarked in his report dated 1849 thus: ". though the British Government had established a claim to the District themselves, consequent on having reduced them to order and obedience, it was willing, out of kindness and consideration to His Highness, to waive its just rights and to acknowledge His Highness as entitled to sovereignty over those districts, and the tribute they might yield.
In 1891 the British withdrew from the administration of the Province, and handed it over to the Maharajah of Jodhpur who thereafter continued to govern it as part of his Dominions.
On these facts, it is contended by Mr. N. C. Chatterjee and Shri Amar Singh that Bhomicharas are not holders of jagirs or other similar grants within the meaning of article 31 A, because a jagir could be created only by grant by the ruler, and that the petitioners could not be said to hold under a grant from Jodhpur, because they had obtained the territory by right of conquest long before Jodhpur established its suzerainty, and even prior to its foundation as a State, and that though they lost their political independence when Jodhpur established its overlord 335 ship, they had not lost their right to property, that their status was that of semi independent chiefs, not jagirdars, and that "Foujbal" was paid by them not on account of land revenue but by way of tribute.
We agree with the petitioners that a jagir can be created only by a grant, and that if it is established that Bhomichara tenure is not held under a grant, it cannot be classed as a jagir.
We do not base this conclusion on the ground put forward by Mr. Achhru Ram that the word 'jagir ' in article 31 A should be read ejusdem generis with 'other similar grants ' because the true scope of the rule of ejusdem generis is that words of a general nature following specific and particular words should be construed as limited to things which are of the same nature as those specified and not its reverse, that specific words which precede are controlled by the general words which follow.
But we are of opinion that it is inherent in the very conception of jagir that it should have been granted by the ruling power, and that where there is no grant, there could be no jagir.
This, however, does not mean that the grant must be express.
It may be implied, and the question for decision is whether on the facts of this case a grant could be impiled.
What then are the facts? We start with this that the ancestors of the petitioners acquired the lands in question by conquest and held them as sovereigns.
Then Jodhpur came on the scene, imposed its sovereignty over them,and exacted annual payments from them, what was their status thereafter? In Vajesingji Joravar Singji and others vs Secretary of State(1) Lord Dunedin observed: "When a territory is acquired by a sovereign State for the first time that is an act of State.
It matters not how the acquisition has been brought about.
It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognised ruler.
In all cases the, result is the same.
Any inhabitant of (1) [1924] L.R. 51 I.A. 357, 360.
43 336 the territory can make good in the municipal Courts established by the new sovereign only such rights, as that sovereign has, through his officers recognised.
Such rights as he had under the rule of predecessors avail him nothing".
Vide also the judgment of the Privy Council in Secretary of State vs Sardar Rustam Khan(1).
Applying these principles when Jodhpur as a sovereign State imposed its sovereignty over the territory, and permitted the ex rulers to continue in possession of their lands on payment of an annual sum, the position is that there was, in effect, a conquest of the territory and a re grant of the same to the ex rulers, whose title to the lands should thereafter be held to rest on the recognition of it by the ruler of Jodhpur.
It may be noted that both in Vajesingji Joravar Singji and others vs Secretary of State(1) and Secretary of State vs Sardar Rustam Khan(1) the question was whether a subject of the former State could enforce against the new sovereign the right which he had against the former ruler, and it was held that he could not.
But here, the claimants are the representatives of the former rulers themselves, and as against them, the above conclusion must follow a fortiori.
As already stated, it is as if the Maharajah of Jodhpur annexed all the territories and re granted them to the former rulers.
They must accordingly be held to derive their title under an implied grant.
It is argued that notwithstanding that the Bhomicharas had acknowledged the sovereignty of the ruler of Jodhpur, his hold over the country was slight and ineffective, and even the payment of "Foujbal" was irregular, and that in substance therefore they enjoyed semi sovereign status, and that their relationship to the Jodhpur ruler resembled that of the rulers of Native States to the British Crown.
We are unable to accept this argument.
The status of a person must be either that of a sovereign or a subject.
There is no tertium quid.
The law does not recognise an intermediate status of a person being partly a sovereign (1) [1941] L.R. 68 I.A. 109.
(2) [1924] L.R. 51 I.A. 357,360.
337 and partly a subject, and when once it is admitted that the Bhomicharas had acknowledged the sovereignty of Jodhpur their status can only be that of a subject: A subject might occupy an exalted position and enjoy special privileges, but he is nonetheless a subject; and even if the status of Bhomicharas might be considered superior to that of ordinary jagirdars, they were also subjects.
The contention that the relationship between Bhomicharas and Jodhpur was of the same kind as that which subsisted between the rulers of Native States and the British Crown is untenable.
Whether those States could be recognised as sovereign on the well accepted principles of international law was itself a question on which juristic opinion was adverse to such recognition.
(See Mr. Lee Warner, Protected Princes of India, 1894 Edn., Chapter XIII, sec.
150, pages 373 376).
But those States at least had each a distinct persona with a ruler who possessed executive, legislative and judicial power of a sovereign character; but the Bhomicharas had ceased to have a distinct person.
There was no State with a ruler acknowledged as its head, but a number of persons holding lands independently of each other.
This is what Major Malcolm remarked of them in his report in 1849: "It is uncertain how long the Rawats of Kher continued to exercise any control over the rest of the Chiefs, or to be considered as the head of a principality; but at the period when we first become acquainted with them, all traces of such power had long ceased and each Chief of the principal families into which the tribe is divided, claimed to be independent".
When the British handed over the administration of the territory to the State of Jodhpur in 1891, it was in recognition of its rights as sovereign, and on the footing that Bhomicharas were its subjects.
It is true that in the agreement by which the British handed over the administration they inserted a condition that the appointment of the chief officers for Mallani and imposition of any new tax or cess other than Foujbal by the State of Jodhpur should be made 338 with the approval of the Resident or Agent to the Governor General of Rajputana, but that was a matter between the high contracting parties, and did not affect the status of the Bhomicharas.
On the other hand, it emphasises that they were themselves without any semblance of independence.
That the status of the Bhomicharas was that of subjects will also be clear from the subsequent course of legislation in Marwar.
In 1922 an Excise Act was passed for the whole of Marwar including this area.
On 24 11 1922 "The Marwar Court of Wards Act, 1923" was passed, and that applied to the estates of Bhomicharas.
In 1937 rules were framed for the maintenance of the wives of jagirdars, and Bhomicharas also were subject to that Act.
In 1938 the Marwar Customs Act was passed, and that applied to these territories.
In 1947 rules for assessment of rents on jagir estates were passed and they applied to lands held on Bhomichara tenure.
There was again a Customs Act in 1948, and it applied to the whole of Marwar including this area.
In 1949 a Tenancy Act was passed, and that applied to the Bhomicharas.
It is thus plain that the State of Marwar was exercising full legislative control over the Bhomichara area.
This alone is sufficient to differentiate the position of the petitioners from that of the rulers of the Native States.
The British Government never exercised legislative authority over those States.
In the argument before us, Sri Amar Singh conceded the authority of the State of Marwar to legislate for Mallani.
But he contended that the definition of jagirdars as including Bhomicharas in the several Acts .referred to above was only for the purpose of those Acts, and bad no bearing on their true status, and referred to the provisions of the Marwar Encumbered Estates Act, 1922, where the word 'jagir ' is defined as excluding Bhomicharas.
But the question is not whether the petitioners are jagirdars by force of the definition in those Acts, but whether their status is that of subjects of Jodhpur, and the only inference that could be drawn from the course of legislation above noticed is that their status Was that of 339 subjects, and if that is their position, and if they are allowed to continue in possession of lands held by their ancestors as sovereigns, it could only be on the basis of an implied grant, and that is sufficient to attract the operation of article 31 A to their estates.
It was also contended for the respondent that even if on the facts aforesaid a grant from the State could not be implied and the status of the petitioners was different from that of jagirdars, that status had at least been modified by section 169 of the Marwar Land Revenue Act No. XL of 1949, which had the effect of putting them in the same position as State grantees, and that therefore their tenure fell within the operation of article 31 A either as a jagir or other similar grant.
Section 169 runs as follows: "The ownership of all land vests in His Highness and all Jagirs, Bhoms, Sasans, Dolis or similar proprietary interests are held and shall be deemed to be held as grants from His Highness".
Under this section, all lands in the State vest in the Maharajah and all proprietary interests therein are deemed to be held under a grant from him.
It cannot be disputed that it is within the competence of the Legislature in the exercise of its sovereign powers to alter and abridge rights of its subjects in such manner as it may decide, subject of course to any constitutional prohibition.
In Thakur Jagannath Baksh Singh vs United Provinces(1) which was cited by Mr. Pathak as authority in support of the above propo sition, it was held by the Privy Council that a law of the State curtailing the rights which a talukdar held under a sanad from the Crown was intra vires.
This decision was followed by this Court in Raja Suriya Pal Singh vs The State of U. P. and Another(1).
But these cases are not exactly in point, because the present contention of the respondent arises only on the hypothesis that the petitioners did not hold under a Crown grant express or implied.
But the proposition for which Mr. Pathak contends is itself not open to exception, and it must be held that it was competent (1) (2) , 340 for the legislative authority of Marwar to define and limit the rights which the petitioners possessed in Bhomichara lands.
It was also contended by Mr. Pathak that if the effect of the legislation was to impress on the tenure the character of a grant, that would be sufficient to attract article 31 A, the argument being that a grant like a contract could be not merely express or implied but also constructive.
He quoted the following statement of the law in Halsbury 's Laws of England, Volume VII, page 261, para 361: "Contracts may be either express or implied, and of the latter there are two broad divisions, the term 'implied contract ' in English law being applied not only to contracts which are inferred from the conduct or presumed intention of the parties, of which examples have already been given, but also to obligations imposed by implication of law, quite apart from and without regard to the probable intention of the parties, and sometimes even in opposition to their ex pressed or presumed intention.
Strictly speaking, the latter class, or constructive contracts, as they are sometimes called, are not true contracts at all, since the element of consent is absent, but by a fiction of law, invented for the purposes of pleading, they are regarded as contracts, and will be treated here as such".
It must be observed that the Indian law does not recognise constructive contracts, and what are classed under that category in the statement of the law in Halsbury 's Laws of England would be known as quasicontracts under the Indian Contract Act.
It will be more appropriate to term grants which are the creatures of statutes as legislative grants.
We, however, agree with the respondent that for the purpose of article 3 1 A, it would make no difference Whether the grant is made by the sovereign in the exercise of his prerogative right or by the Legislature in the exercise of its sovereign rights.
They were both of them equally within the operation of that article.
The question then is, assuming that the Bhomicharas did not prior to the enactment of Marwar Act No. XL of 341 1949 hold the lands as grantees from the State, whether they must be deemed to hold as State grantees by force of section 169 of that Act; and that will depend on whether they fall within the purview of that section.
The language of the section, it will be admitted, is general and unqualified in its terms, and would in its natural sense include them.
But it is argued for the petitioners that they are outside its scope, because 'jagir ' in that article must be interpreted in a specific sense as otherwise there was no need to mention tenures like Bhom, Sasan and Dolis, which would be jagirs in a generic sense, and that further Bhomicharas could not be brought within the category of similar proprietary interests, because in the context 'similar interests ' must mean interests held under a grant.
Having considered the matter carefully, we are not satisfied that there is any ground for cutting down the scope of the section in the manner contended for by the petitioners.
We are of opinion that by long usage and recognition and by the legislative practice of the State Bhomicharas had come to be regarded as jagirdars, and that their tenure is a jagir within the intendment of section 169.
In the Gazetteer of Mallani by Major Walter published prior to 1891 the Bhomi charas are referred to as jagirdars.
(Vide page 94).
In the official publication called Brief Account of Mallani, the title given to the history of Bhomicharas is "Brief history of the jagirdars".
In Sir Drake Brockman 's Report of the Settlement Operations, 1921 to 1924, he refers to the Bhomichara jagir as "survival from a time antecedent to the establishment of the Raj".
Turning next to legislation in Marwar, its general trend was to include Bhomicharas in the definition of jagirdars.
Vide section 3(1) of the Marwar Court of Wards Act, 1923; rule 4 of rules regulating claims for maintenance by ladies against jagirdars, 1937.
In the Customs Act, 1938, section 64 and Appendix E refer to the Bhomicharas as jagirdars of Mallani.
In Marwar Tenancy Act No. XXXIX of 1949, section 3(9) defines landlord as including a "Bhomichara jagirdai,", and in view of the fact that 342 both this Act and Act No. XL of 1949 were part of a comprehensive scheme of legislation, that both of them came into force on 6 4 1949 and that section 4 (I 1) of Act No. XL of 1949 enacts that the words and expressions used therein are to have the same meaning as in Act No. XXXIX of 1949, it would be safe to assume that the word 'jagir ' was used in section 169 as including Bhomichara tenures.
It was argued that section 171 classifies jagirs as listed jagirs and scheduled jagirs, that there is an enumeration thereof in schedules I and 11 of the Act, and that no estate held on Bhomichara tenure was mentioned therein, and that that was an indication that it was not intended to be included in section 169.
But section 171 does not exhaust all the jagirs or similar proprietary interests falling within section 169.
The scheme of the Act is that for purposes of succession and partition, jagirs are divided into three groups, scheduled jagirs, listed jagirs and other jagirs.
Scheduled jagirs are those which are governed by the rule of primogeniture.
Section 188 and the following sections lay down the procedure for settling succession to them.
Listed jagirs are those which are held by co heirs but are impartible, and section 131 provides that they should not be partitioned but that the income therefrom should be divided among the co sharers.
Then there is the third category of jagirs which devolve on heirs under the ordinary Hindu law, and are partible.
Section 172 applies to these jagirs.
As the Bhomichara tenure descends like personal property and is divisible among the heirs, it will be governed by section 172, and cannot find a place in the schedule of listed or scheduled jagirs.
It was contended that the Act was one to declare and consolidate the law, and that such an Act should not be construed as altering the existing law; further that clear and unambiguous language was necessary before a subject could be deprived of his vested rights, and that in case of doubt the statute should be construed so as not to interfere with the existing rights; and the statements of law from Maxwell on Interpretation of Statutes, 10th Edition, pages 20 and 24 343 and Craies on Statute Law, 5th Edition, pages 106, 107 and Ill were quoted in support of the above propositions.
These rules of construction are well settled, but recourse to them would be necessary only when a statute is capable of two interpretations.
But where, as here, the language is clear and the meaning plain, effect must be given to it.
It must also be added that the Act is one not merely to consolidate the law on the subject but also to amend it.
On the language of the section, therefore, we must hold that Bhomichara tenure is comprehended within the term 'jagir ' in section 169.
We are also of opinion that it will, in any event, be "similar proprietary interests" within the language of the section.
It is argued that the only feature common to jagirs, Bhoms, Sasan and Dolis is that they are held under grant, and that therefore "similar proprietary interests" must mean interests acquired under a grant.
It is true that Bhom, Sasan and Doli are held under grant from the State.
(Vide Rajasthan Gazetteer, Volume III A, Chapter XIII); but section 169 enacts that the proprietary interests to which it applies, shall be held or deemed to be held as grant from His Highness.
The word "deemed" imports that in fact there was no grant, and therefore interests which were held otherwise than under a grant were obviously intended to be included.
Therefore, if Bhomichara is a proprietary interest, it cannot be taken out of the section because its origin was not in grant.
In the result, it must be held to fall within section 169, and therefore within the operation of article 31 A.
The respondent further contended that Bhomichara tenure was also an estate as defined in section 4(iii) of Act No. XL of 1949 and that therefore it fell within the purview of article 31 A. Under section 4(iii), "estate" means a mahal or mahals held by the same landlord.
Section 4(v) defines mahal as any area not being a survey number which has been separately assessed to land revenue; and 'land revenue ' is defined in section 4(iv) as "any sum payable to the Govern 44 344 ment on account of an estate or survey number and includes rekh, chakri and bhombab".
It is common ground that the annual payment which is made by the Bhomicharas to the estate is the sum of Rs. 10,000 called "Foujpal".
The petitioners contend that this amount is really in the nature of tribute and not land tax.
If it is a military cess, it is difficult to say that it is revenue paid on account of land.
It is argued for the respondent that Bhomicharas are allowed to continue in possession of the land only on condition that they pay this amount annually and that it is therefore payment made in respect of lands held by them.
If this contention is right, every tribute must per se be held to be land revenue, and that appears to us to be too wide a proposition.
Mr. Pathak relied on the description of this amount in the Administration Report of 1883 1884 in Hindi as "Kar" "Tax ' but that is not decisive of the true character of the payment.
The petitioners also contend that even if Foujbal is revenue, there has been no separate assessment of the mahals to it, as what is paid is a consolidated sum of Rs. 10,000 for an area of the extent of 36,000 sq.
miles comprised in 550 villages and held by different holders.
It appears from the Gazetteer of Mallani by Major Walter at page 94 that the Foujbal amount has been apportioned among the several holders, and it is contended for the respondent that as this apportionment has been communicated to the Jodhpur Durbar and accepted by it and acted upon, there has been separate assessment of revenue.
In the view taken by us that Bhomichara is a jagir or other similar grant within the meaning of article 31 A, we do not think it necessary to express any opinion on the above contentions, especially as the materials placed before us are meagre.
In the result, it must be held that the legislation in so far as it relates to Bhomichara tenure is protected by article 31 A. (1)(b) Bhomats: This tenure is to be found in Mewar, and of this, the Report of the Venkatachar Committee has the following: "In Mewar those holding on the Bhom tenure 345 may be classed under two groups, namely, the Bhomats who pay a small tribute to the State and are liable to be called for local service and Bhumias who pay a normal quit rent (Bhum Barar) and perform such services as watch and ward of their villages, guarding the roads, etc." (vide page 19, para 10).
Earlier, the Report had stated that Bbom tenure was to be found in Jodhpur, Mewar and Bundi, and that its holders were always Rajputs.
The origin of Bhom tenure is thus stated by Tod in his Annals and Antiquities of Rajasthan: "It is stated in the historical annals of this country that the ancient clans had ceased on the rising greatness of the subsequent new divisions of clans, to hold the higher grades of rank; and had, in fact, merged into the general military landed proprietors of this country under the term bhumia, a most expressive and comprehensive name, importing absolute identity with the soil: bhum meaning 'land These Bhumias, the scions of the earliest princes, are to be met with in various parts of Mewar These, the allodial tenantry of our feudal system, form a considerable body in many districts, armed with matchlock, sword, and shield All this feudal militia pay a quit rent to the crown, and perform local but limited service on the frontier garrison; and upon invasion, when the Kher is called out, the whole are at the disposal of the prince on furnishing rations only.
They assert that they ought not to pay this quit rent and perform service also; but this may be doubted, since the sum is so small".
I, pp. 195 197).
It would appear from this account that the position of the Bhumias in Mewar is in many respects similar to that of Bhomicharas in Marwar.
They represent presumably a section which had occupied the territory by conquest at an earlier stage and when later the rulers of Chittoor and Udaipur established their sovereignty over Mewar, they were allowed to continue in possession of their lands as subjects of the new State.
Their position is not even as strong as that of the Bhomicharas of Marwar, because it was a condition of the tenure under which they held that 346 they had to render military service when called upon and also to pay quit rent.
Their title to the lands is thus referable to an implied grant from the State, and their tenure would be jagir even in its stricter connotation.
It was further contended by Mr. Pathak that whatever status the Bhomats might have had prior to the Mewar Government Kanoon Mal Act No. V of 1947, the effect of that enactment was to modify it and to reduce them to the position of grantees from the State in respect of those tenures, and that article 31 A would accordingly apply.
The relevant provisions of this Act are sections 27, 106 and 116.
Section 27 enacts that all lands belong to His Highness, and that no person has authority to take possession of any land unless the right is granted by His Highness.
Section 106 (1) occurs in Chapter XI which is headed: "The rights of jagirdars, Muafidar, and Bhumias in Tikana jagir, muafi and Bhom lands", and enacts that a "Tikanadar jagirdar, muafidar or Bhumia shall have all such revenue rights in the lands comprised in his jagir, muafi or Bhom under this Act, as are granted to him by His Highness".
Then follow provisions relating to succession and transfer of their tenures by jagirdars, muafidars or Bhumias.
Section 116 provides that the jagir or bhom is liable to be forfeited in the events specified therein.
The argument of the respondent is that under these provisions the ownership of the lands vests in the Maharajah and the tenures mentioned therein including the Bhom are held as grants under him.
It was argued by Mr. Frank Anthony that under section 4(2) of the Act the lands are divided into two categories, one category comprising jagirs, muafi and Bhom and the other Khalsa lands, that section 27 applies only to Khalsa lands, and that section 106(1) applies to grants which may thereafter be made by the State, and that the rights of the persons who held jagirs, muafi or Bhom before this Act were unaffected by it.
We are unable to accede to this contention.
No statute was needed to declare the rights of the sovereign over Khalsa lands, Nor was resort to legis 347 lation necessary to define the rights of the future grantees of those lands, because that could be done by inserting appropriate terms in the grants.
The language of the enactment read as a whole leaves no doubt in our mind as to what the legislature intended to do.
It declared the State ownership of lands, both Khalsa and non Khalsa lands and defined the rights of the holders of the non Khalsa lands; and the result of that law was clearly to impress on the Bhom tenure the characteristics of grant.
It must accord ingly fall within the operation of article 31 A either as jagir or as other similar grant.
It was next contended by the petitioners that the Kanoon Mal Act No. V of 1947 was void, because on 23 5 1947 a Constitution had been established in Mewar which provided that "no person shall be deprived of his life, liberty, or property without due process of law, nor shall any person be denied equality before the law within the territories of Mewar".
(Article XIII, Clause 1), and that Act No. V of 1947 which came into force on 15 11 1947 was void as being repugnant thereto.
Article 11(1) of the Constitution itself provides that the Maharajah shall exercise "all rights, authority and jurisdiction which appertain to or are incidental to such sovereignty except in so far as may be otherwise provided for by or under this Constitution or as may be otherwise be directed by Shriji", and when Shriji (the Maharajah) enacted Act No. V of 1947, it must be taken that he had in the exercise of sovereign authority abrogated the Constitutional provisions enacted earlier.
The authority which enacted the Constitution on 23 5 1947 being His Highness himself, any Act passed subsequently by the same authority must be taken to have repealed or modified the earlier enactment to the extent that it is inconsistent with the later.
It does not also appear that the Constitution was ever put into force.
It is not known whether any Legislature was constituted under the Constitution, or any other step taken pursuant thereto; and though acquiescence is not a ground for giving effect to a law which is ultra vires, it is not without significance that the validity of Act 348 No. V of 1947 was not challenged on the ground that it was repugnant to the Constitution dated 23 5 1947 until the present petitions were filed.
There is no substance in this belated contention, and it must be rejected.
Mr. Frank Anthony appearing for some of the Mewar petitioners contended that their status was that of Chiefs with semi sovereign powers, and that it could not be said that they held the lands under grants from the State.
He referred to certain kowls and agreements brought about by the British Government between their ancestors described therein as Chiefs and the Maharajah of Udaipur, providing for their jointly drawing up a code of law subject to ap proval by the Political Agent and for the settlement in future of all civil and criminal cases in accordance therewith, (vide Aitchison 's Treaties, Vol.
III, pp. 33 and 35) and for compensation being awarded to them for taking over their right to manufacture salt (vide Aitchison 's Treaties, Vol.
III, pp. 38 to 42).
He argued that the payments made by them to the State were not revenue but their contribution for purposes of common defence, and that that had not the effect of reducing their status as feudatory chiefs to that of subordinate tenure holders.
Certain observations in Biswambhar Singh vs The State of Orissa and others(1) were relied on as supporting this contention.
We have had considerable difficulty in following this argument, as it was general in character and unrelated to specific tenures or the claims of individual petitioners.
The kowls which were relied on as showing that their status was not that of subordinates are not conclusive of the matter, because the value to be attached to them would depend on the previous status of the Chiefs with whom they were entered into, and no materials have been placed before us as to what that was.
Two hypotheses are possible: they were the successors, either of the conquerors who had occu pied the territory earlier than the foundation of the Udaipur Raj in which case they would be Bhoms and their rights would be identical with those of (1) ; ,870.
349 Bhomats, or of the Rajput clansmen who followed the ruling dynasty of Mewar and obtained estates as rewards for their service in the establishment of the kingdom, in which case the grants would clearly be jagirs.
The facts forming the background of the agreements as narrated in Aitchison 's Treaties, Vol.
III, pp. 10 to 13 are that for sometime prior to the treaty which was entered into by the Maharajah of Udaipur with the British in 1818, the authority of the Government of Mewar was rather low.
Taking advantage of it, tile neighbouring States had occupied most of its territories, and the Chiefs had also become lax in the performance of their obligations to the Durbar.
This led to considerable friction between the Maharajah and the Chiefs and after the conclusion of the treaty in 1818, the Political Agent Mr. Tod, with a view to restore good relationship between the Maharajah and his Chiefs, prevailed upon them to settle their differences, and the kowls relied on by Mr. Anthony are the outcome of his efforts.
These kowls read in the background of the facts stated above unmistakably establish that the position of the Chiefs had previously been that of grantees from the State, subject to certain obligations.
If so, the agreements did not bring about a change in that status.
They merely provided for the carrying out of the obligations arising out of that status.
On this basis, the properties held by them would be jagirs even according to the original and narrow sense of that word; and in fact, they are so described in the very kowls relied on by Mr. Frank Anthony.
(Vide Aitchison 's Treaties, Volume III, page 35, article 29).
They are clearly within article 31 A.
The respondent also contended that the pro perties held by the Chiefs would be estates as defined in article 31 A. That would prima facie appear to be so; but it is unnecessary to express any opinion on the question, as the resumption would be protected by article 31 A on the ground that it related to jagirs or other similar grants.
(1)(c) Tikanadars of Shekhwati: The northern section of Jaipur forming the trans Aravali region of the State is known as Shekhwati.
It consists of large 350 estates known as Panchpana Singhana, Sikar, Udaipurwati, Khandela and others.
These estates are known as Tikanas and their holders as Tikanadars.
The petitioner in Petition No. 424 of 1954 is one of them, his estate being the Tikana of Malsisar and Mandrela in Panchpana Singhana.
His contention is that he is a ruler with semi sovereign status subject only to the obligation to render military service and to pay tribute called Maumla to the State of Jaipur, that be is accordingly a Maumlaguzar and not jagirdar, and that he is not a grantee from the State.
The history of these estates is narrated in great detail by Mr. Wills in his report on "The Land Tenures and Special Powers of Certain Tikanadars of Jaipur State, 1933".
To state it briefly, these estates originally formed part of the Khalsa lands of the Moghuls.
During the period of their decline, King Sawai Jai Singh who ruled over Jaipur from 1700 1743 with great distinction acquired them from the Moghul Emperors on izara, and in his turn granted them on sub leases or izaras to various persons mostly his clansmen, on condition that in addition to the payment of izara amount fixed they should render military service to the rulers.
Subject to these obligations they were entitled to collect revenues from the villages comprised in the izara and maintain themselves.
In course of time, when the hold of the Moghul Empire on the outlying territories became weak, the Jaipur rulers assumed practically sovereign powers over the izara lands, which came to be regarded as part of the royal domain.
There was a corresponding rise in the status of the sub lessees who continued in possession of the estate as permanent grantees.
Towards the end of the 18th Century when the power of Jaipur waned and its authority weakened, the holders of these estates in Shekhwati attempted in their turn to shake off their allegiance to Jaipur, asserted an independent status in themselves, and began to seize the territories belonging to the State.
Before their plan succeeded, Jaipur concluded a treaty with the British which recognised its position as sovereign of the whole State 351 including Shekhwati.
"The first duty urged on the Maharaja after the conclusion of the treaty was the resumption of the lands usurped by the nobles, and the reduction of the nobles to their proper relation of subordination to the Maharaja.
Through the mediation of Sir David Ochterlony Agreements were entered into in 1819 similar to those made at Udaipur.
The usurped lands were restored to the Maharajah and the nobles were guaranteed in their legitimate rights and possession".
(Aitchison 's Treaties, Vol.
III, p. 55).
Even after the conclusion of the agreement of 1819 there were disputes between the Maharajah and the Chiefs in respect of various matters, such as the right of the ruler to revise the amount payable by the Tikanadars and the right of the latter to minerals and to customs; but this did not affect the nature of the relationship established between them under the agreement of 1819.
Thus, the true position of the Tikanadars is that they got into possession of the properties as izaradars under the rulers of Jaipur, improved that position latterly and became permanent holders of the estates and were eventually recognised as chiefs subordinate to the Maharajah.
They were not like the Bhomicharas of Marwar or the Bhumias of Mewar the previous conquerors and occupants of the territory before they were subjugated by Jaipur, as erroneously supposed by Col. Tod; nor were they the clansmen of the ruling dynasty who assisted in the establishment of the Raj.
They derived their title to the properties only under grants made by the rulers of Jaipur, and even if their estates could not be considered, as they shaped themselves, as jagirs, they were at least " other similar grants" within article 31 _A.
That was the view which the State took of their position.
Section 4(15) of the Jaipur State Grants Land Tenures Act No. I of 1947 defines "State grant" as including a jagir, muamla, etc.
Muamla is, as already stated, the amount payable by the Tikanadars of Shekhwati to the ruler of Jaipur.
Section 4 (7) defines an estate as meaning "land comprised in a State grant".
45 352 According to this definition, the properties in question would be 'estate ' as defined in article 31 A of the Constitution.
The Matmi Rules of 1945 provide for recognising succession to State grants, and they include Muamlaguzars.
(Vide Part III in Appendix A).
Describing the tenures in the non Khalsa area, the Administration Report of Jaipur 1947 1948 states that "Muamla is the grant of an interest in land for which a fixed amount is payable under a settlement arrived at with the State".
(Vide page 35).
The position taken up by the petitioner both in the petition and in the opening argument that his status is that of an independent Chieftain holding the properties by right of conquest and not under grant cannot therefore be maintained.
In his reply, however Mr. Achhru Ram shifted the ground, and contended that the ancestors of the petitioner having come in as izaradars, the impugned Act had no application to him, as izara is not one of the tenures mentioned in the first schedule to the Act.
But Muamla is mentioned as item 6 in the schedule, and that is the name under which the tenure of the petitioner is known.
It must accordingly be held that his lands are within the purview of article 31 A. (1) (d) Subeguzars: The question as to the status of subeguzar is raised in Petitions Nos. 471, 472 and 473 of 1954.
The petitioner in Petition No. 473 of 1954 is the holder of the estate of Isarda in Jaipur.
It is stated that in the beginning of the 18th Century his ancestor Mohansinghji migrated from Bagri, settled in the hilly regions at Sarsop, built a fortress at Isarda and established an independent principality.
In 17 51 the ruler of Isarda acknowledged the suzerainty of the Maharaja of Jaipur who, in turn, "recognised the ancestor of the petitioner as Subeguzar", subject to a liability to pay tribute every year to Jaipur.
(Vide para 2 of the petition).
The result of this arrangement was, as in the case of Bhomicharas, to put the Chieftain in the position of a grantee from the State, and that is also the position under the Jaipur State Grants Land Tenures Act No. I of 1947 Section 4(15) includes within the definition of 'grant 353 " suba" tenure, and the Matmi Rules of 1945 also apply to this tenure.
(Vide Appendix A, Part III).
While the tenure is called 'Sube ', its holder is called not Subedar which has a different meaning but Subeguzar.
In the Administration Report of Jaipur 1947 48, Sube is described as follows: "Suba is a tenure peculiar to Nizamat Sawai Madhopur.
It is analogous to the istimrar tenure in other parts of the State.
The subeguzars pay a fixed annual amount for the grant held by them".
(Vide p. 35).
The position therefore is that the petitioner who is admittedly a subeguzar holds under a grant from the State and falls within article 31 A.
It was argued that the family of the petitioners had always enjoyed a special distinction in that the adoption of the ruling house of Jaipur was always made from among the members in this family.
That, however, would not affect the status of subeguzars who must be held to be grantees from the State.
A special contention was raised with reference to 12 villages which are stated to have been purchased in 1730 by Raja Jaisingh the then holder of Isarda for a sum of Rs. 20,000; and it was argued that these villages at least could not be treated as held under grant from the State.
Isarda was a new State founded by Mohansinghji, and its area was extended from time to time by incorporation of fresh villages, and when in 1751 the Chief acknowledged the suzerainty of Jaipur and held the estate as subeguzar under him, that title must have related to the entire estate including these villages, and there is therefore no ground for treating them differently from the rest.
It must be mentioned that this contention was raised only in the reply statement.
It must be overruled.
Petitions Nos. 471 and 472 of 1954: The petitioner in Petition No. 471 of '1954 is the Tikanadar of Jhalai.
In para 2 he admits that he is styled as a subaguzar, and for the reasons given in Petition No. 473 of 1954 his estate must be held to fall within article 31 A.
But it is argued that the Tikana consists of 18 villages, and that only two of them are held as 'Sube '.
354 But what is the case put forward in the petitions as regards the other villages? The schedule to the petition mentions that four of them are held as maintenance grants, and two as muafi.
They are clearly within article 31 A.
As regards the others, there is no specific case put forward as to the nature of their tenure.
But it is admitted that the Tikana is a permanently settled estate paying a fixed annual reve nue of Rs. 1,681, and it is therefore an estate both under section 4(7) of the Jaipur State Grants Land Tenures Act No. I of 1947 and article 31 A.
This decision will also govern Petition No. 472 of 1954 in which the petitioner owns the village of Bagina as "subeguzar" and the village of Siras as jagirdar.
(2)We now come to the second category of cases wherein the contention is that the particular properties held by the petitioners do not fall within the purview of article 31 A. (a)Petitions Nos. 391 and 417 of 1954: Petition No. 391 of 1954 relates to the estate of Yeshwantgarh in the State of Alwar.
It was settled on 11 8 1941 by its then ruler on his son for maintenance.
The grant is described in the deed as jagir, and the Gazette Notification dated 25 8 1941 publishing it states: "We are also faced with the problem of arranging for our second Maharaj Kumar, a Jagir, which, in the matter of size and powers, should be on a much higher footing than the existing Jagirs.
Accordingly with the object of creating a new Jagir for him, we have today gifted to him in perpetuity and from generation to generation, all the villages included in the Thikana of Thana together with all other properties enjoyed by the deceased Raja Sahib during his lifetime.
This new Jagir shall remain free from liability for rates and cesses for all time, and shall also never be required to maintain any horses".
In 1944 some more villages were added to this grant, and the resumption relates to all these properties.
The contention of Mr. Achhru Ram for the petitioner is that the grant is not an estate under the law relating to land tenures in Alwar, and that it is outside article 31 A. Under section 2(a) of the Alwar 355 State Revenue Code, `estate ' means "an area for which there is a separate record of rights or which is treated as such under orders of His Highness ' Government".
It is stated by the petitioners that there has been no separate record of rights in the State of Alwar, and that therefore there could not be an estate as defined in the Code.
The respondent, however, does not admit this, and contends that, in any event, the grants are jagirs and are therefore within article 31 A.
The question is whether the grant is a jagir.
The deed dated 11 8 1941 describes it as a jagir, and so does the Gazette Notification publishing it; and that is also how the estate is described by the petitioner himself Section 3(3) of the Alwar State Jagir Rules, 1939 defines jagir as meaning "grant of land or money granted is such by His Highness or recognised as such by His Highness".
Section 2(k) of the Alwar Revenue Code defines "assignee of land revenue" as meaning "a Muafidar or a Jagirdar".
Thus, all the requirements of a Jagir are satisfied, and the grant would fall within the scope of article 31 A.
It was next argued that even if the grant was a jagir within article 31 A, the rights of the petitioner in it could not be resumed under section 22(1)(a) of the Act, inasmuch as what could be resumed under that section was not the jagir lands, but the right, title and interest of the jagirdars therein, and that the petitioner was not a jagirdar as defined in section 2(g) of the Act, as be had not been recognised as a jagirdar as required therein.
This contention was also raised by the petitioners, whose properties would not be jagirs in the specific sense of the word, but would fall within the extended definition of that word under section 2(h) as including the several tenures mentioned in the first schedule to the Act.
The contention is that while their estates would be jagirs within the inclusive portion of the definition, they themselves would not be jagirdars as defined in the Act, because they were recognised not as jagirdars but as holders of the specific tenures enumerated in that schedule, and that therefore their interests could not be resumed under section 22(1) (a) even 356 though their estates might be notified as jagirs.
In other words, for the section to apply, there must not merely be an estate which is a jagir but also a holder who is a jagirdar.
It is conceded that this contention, if accepted, would render Chapter V providing for resumption inoperative except as regards jagirs in the specific sense and mentioned as item I in the first schedule to the Act.
But it is argued that it is a case of casus omissus, and that it is not within the province of this Court to supply it.
But the definition of jagir in section 2(h) is, as provided therein, subject to any contrary intention which the context might disclose; and when section 22 (1) (a) enacts that on the resumption of jagir lands the rights of the jagirdar in the lands should cease, it clearly means that the holders of jagirs are jagirdars for the purpose of the section.
There cannot be jagirs without there being jagirdars, and there fore the word 'jagirdar ' in section 22 (1) (a) must mean all holders of jagirs including the tenures mentioned in the schedule to the Act.
Section 20 exempts from the operation of the Chapter properties whose incomes are utilised for religious purposes.
Those properties would be held on tenures such as Sasan, Doli and so forth which are enumerated in the schedule.
There was no need for exempting them under section 20 if the Legislature did not understand them as falling within the operation of section 22(1)(a), and they would fall under that section only if the word 'jagirdar ' is interpreted as meaning all persons who hold properties which are jagirs as defined in the Act.
In the result, the resumption must be held to be valid.
Petition No. 417 of 1954 relates to properties in Alwar, and the contention raised therein is the same as in Petition No. 391 of 1954, that they are not an estate within article 31 A.
But the petitioner describes himself in the petition as the "proprietor jagirdar of the jagir known as Garhi", and states in para (9) that his jagir is unsettled and pays neither revenue nor tribute, and the prayer in para 21(3) is that the State should be restrained by an injunction from interfering with the rights of the petitioner.
as jagirdar.
357 In view of these allegations, it is idle for him now to contend that the properties do not fall within article 31 A. (b) Petitions Nos. 401, 414, 518, 535 and 539 of 1954: The properties comprised in these petitions are situated wholly or in part in the former State of Bikaner, and the contention raised with reference to them is that they are not estates according to the law of Bikaner, and are therefore outside article 31 A. Section 3(1) of the Bikaner State Land Revenue Act No. IV of 1945 defines 'estate ' as meaning an area (a) for which a separate record of rights has been made, or (b) which has been separately assessed to land revenue or would have been assessed if the land revenue bad not been released, compounded for or redeemed.
Section 28 of the Act provides for record of rights, and section 45 enacts that "all land, to whatever purposes applied and wherever situated, is liable to the payment of land revenue to His Highness ' Government".
Then there are provisions for assessment of land revenue.
It is argued for the petitioners that the record of rights as contemplated by section 28 has not been made, and that the lands have not been assessed to revenue, nor has it been released, com pounded for or redeemed, and that therefore the properties are not estates within section 3(1) of the Bikaner Act No. IV of 1945.
The contention of the respondent is that they are, at any rate, jagirs, and so fall within article 31 A.
The preamble to the Act proceeds on the basis that whatever is not Khalsa is jagir land.
In three of the Petitions Nos. 414, 518 and 535 of 1954 the properties are described in the schedule as jagirs and the petitioners as jagirdars.
In Petitions Nos. 401 and 539 of 1954 there are no such admissions, there being no schedules to the petitions.
But in the petitions for stay of notification filed in all the above petitions, it is alleged that "notification under the impugned Act with respect to the jagir of the petitioners has not yet been made".
(Vide para 16).
ID view of these admissions, we are unable to accept the contention of Mr. Frank Anthony based on the narration in Tod 's Annals of Rajasthan, 358 Volume II, pp. 25, 26, 140 and 141 that the properties of the petitioners are not jagirs.
(c)Petition No. 634 of 1954: In this petition there are 192 petitioners, some of whom are from Kishangarh.
The special contention urged as regards the petitioners from Kishangarh is that their properties are not estates according to the law of Kishangarh, and that they are therefore outside article 31 A. Rule 4(1) of the Jagir Rules for the Kishangarh State, 1945, defines a 'jagirdar ' as a person who has been granted a village or land as jagir by the Durbar in consideration of his past and future services, and Rule 5 classifies jagirdars into five categories.
The argument of the petitioners is that they have not been shown to fall within any of these categories.
Not merely is this contention not distinctly raised in the petitions, but it is admitted in para 1 that "the petitioners ' properties are known as Jagirs, Bhoms, Muafi, etc." which will clearly bring them within the operation of article 31 A.
In the schedule to the petition also, the petitioners are described as jagirdars, and the particular villages held by them are noted as jagir villages.
The contention that they do not fall within article 31 A must be rejected.
It is stated that the 128th petitioner, Pratap Singh, does not make any payment in respect of his estate, and that it is not a jagir.
If that is so, then on the admission extracted above, it must be muafi, and will be within article 31 A. (d)Petition No. 536 of 1954: The petitioner is the holder of an estate in Mewar known as Bhaisrodgarh Tikana, and he alleges that there was a dispute between Rawat Himmat Singhji the then holder of the estate, and the Maharajah of Udaipur, and that it was settled in March 1855 through the mediation of the then Agent to the Government, Sir M. Montgomery, and that under the terms of the settlement, the Tikana was recognised as the exclusive property of the holder.
The agreement itself has not been produced, and it could not, even on the allegations in the petition, have had the effect of destroying the character of the estate as a jagir grant.
Moreover, 359 this estate is mentioned as item 8 in the list of jagirs mentioned in the schedule under section 117 in Mewar Act No. V of 1947, and that by itself is sufficient to bring it within article 31 A. (e)Petition No. 672 of 1954: The petitioner is a Bhumia holding an estate called "Jawas".
Its history is given in "Chiefs and Leading Families of Rajputana", page 36, and the argument of Mr, Trivedi based on it is that the Chiefs of Jawas occupied a special position as feudatories, and that they could not be considered as grantees.
But their position is not different from that of the other Bhomats, and indeed it is admitted in para 14 that the lands are comprised in the Bhomat area.
This estate is expressly included in the schedule under section 117 in Mewar Government Kanoon Mal Act No. V of 1947 being item No. 25 and is within article 31 A. (f)Petitions Nos. 483, 527, 528 and 675 of 1954 and 1 and 61 of 1955: The question that is raised in these petitions is whether grants made for maintenance are 'jagirs or other similar grants ' falling within the purview of article 31 A.
In Petition No. 483 of 1954 the grant was made by the ruler of Uniaara, and in Petition No. 528 of 1954 by the then ruler of Katauli before it was merged in the State of Kotah.
We have held that maintenance grants would be jagirs according to their extended connotation, and they are therefore within article 31 A. In Petition No. 527 of 1954 the grant was made in favour of certain members of the Ruling House of Jaipur.
According to the respondent, they were illegitimate issue called Laljis, and the grants were made for Lawazma and Kothrikharch, which expressions mean maintenance of paraphernalia and household expenses.
(Vide the Administration Report of Jaipur 1947 1948, page 36).
The grant in favour of the 33rd petitioner in Petition No. I of 1955 and the 17th petitioner in Petition No. 61 of 1955 are similar in character.
Apart from the general contention that maintenance grants are not within article 31 A, the further argument of Mr. Dadachanji on behalf of these 46 860 petitioners is that Lawazma and Kothrikharch are tenures not mentioned in the first schedule to the Act, and that the resumption of these lands was therefore without the authority of law.
But these expressions meaning maintenance expenses are indicative of the purpose of the grant and are not descriptive of the tenure.
A grant can both be a jagir and a maintenance grant, and the fact that it was granted for Lawazma and Kothrikharch does not militate against its being a jagir.
It was suggested that the question whether Lawazma and Kothrikharch are tenures different from those mentioned in the schedule to the Act might be left open and that the right of the petitioners to establish their contention in other proceedings may be reserved.
That would undoubtedly be the proper course to adopt when the point for determination is not whether the Act itself is uncon stitutional and void, but whether the action taken under it was authorised by its provisions.
But then, there are no allegations in the petition that the properties were held under a tenure, which is outside the schedule to the Act.
On the other hand, some at least of the petitions proceed on the footing that the estates are jagirs.
In Petition No. 675 of 1954 the petitioner is the Raj Mata of the ruler of Tonk.
She was receiving a monthly allowance of Rs. 762/ for her maintenance and in lieu of it, the village of Bagri with its hamlets, Anwarpura and Ismailpura, was granted to her by resolution dated 6 3 1948.
Being a maintenance grant it will be a jagir, and that is the footing on which the petition is drafted.
Mr. section K. Kapur who appeared for the petitioner put forward a special con tention that the Government was estopped from resuming the lands.
The facts on which this plea is founded are that on 28 11 1953 the Secretary to the Government wrote to the Collector of Tonk that the petitioner was not to be disturbed in her enjoyment of the jagir for her lifetime.
In a later communication dated 24 11 1954, however, addressed to the petitioner, the Government expressed its inability to stay resumption, and the argument is that the res 361 pondent is estopped from going back on the assurance and undertaking given in the letter dated 28 11 1953.
We are unable on these facts to see any basis for a plea of estoppel.
The letter dated 28 11 1953 was not addressed to the petitioner; nor does it amount to an assurance or 8undertaking not to resume the jagir.
And even if such assurance had been given, it would certainly not have been binding on the Government, because its powers of resumption are regulated by the statute, and must be exercised in accordance with its provisions.
The Act confers no authority on the Government to grant exemption from resumption, and an undertaking not to resume will be invalid, and there can be no estoppel against a statute.
One other contention advanced with reference to this petition might be noticed.
It was argued that under rule 2(f) in schedule II, no compensation is awarded in respect of the abadi lands, which remain in the possession of the jagirdar, whereas, if they are sold, the income from the sale proceeds is taken into account.
This, it was argued, is discriminatory.
The principle underlying this provision is that compensation is to be fixed on the basis of the income which the properties produce, and that while abadi lands in the hands of the jagirdar yield no income, if they are sold the sale proceeds are income producing assets.
Whether this principle of assessing compensation is open to attack is another question, and that will be considered in its due place.
(g)Petitions Nos. 371, 375, 379, 416) 455 and 461 of 1954: These petitions raise in general terms the contention that the properties to which they relate are not estates as defined in article 31 A. Petition No. 371 of 1954 relates to the estate of Doongri in Jaipur, and it is contended that it is not an estate because the liability of the holder is only to pay Naqdirazan, and it is argued that this is not revenue.
Naqdirazan is money commutation for the obligation of maintaining a specified number of horses.
This is clearly a grant for military service, and will be a jagir, and that is admitted in para I where the 362 petitioner is described as the jagirdar of Doongri and in para 9 where it is stated that the jagir is unsettled.
The prayer is that an injunction might be issued restraining the State from interfering with the rights of the petitioner as jagirdar.
It is also alleged in para 19 of the stay petition that "the whole family is to be supported from this jagir".
Article 31 A clearly applies.
Petition No. 375 of 1954 relates to the estate of Renwal, and the special contention raised is that the petitioner pays no revenue but only Naqdirazan.
But he describes himself in para 1 as jagirdar of Renwal, admits in para 9 that it is a jagir, and claims relief in para 21(3) on that footing.
The properties are clearly jagirs within article 31 A.
The petitioner in Petition No. 379 of 1954 is also stated to be holding the estate on payment of Naqdirazan.
He describes himself as owner of the properties in Khera as jagirdar, admits in paras 9, 14, 16 and 19 that the estate is a jagir, and prays for an injunction restraining the State from interfering with his rights as jagirdar.
His estate is clearly within article 31 A. Petition No. 416 of 1954 relates to an estate called Sanderao.
The payment made by the holder is called Rekchakri, and the contention is that this is not revenue.
But it is admitted in paras 1, 2, 9 and 21(3) of the petition that the properties are jagir lands.
Petition No. 455 of 1954 relates to properties in Mewar.
There are 13 petitioners, and it is argued that the payments made by them called chakri chatund and Bhom barad are not revenue, and their properties are not estates.
But they admit that they are "owners as petty jagirdars" of the properties mentioned in the schedule, and this statement is followed by others which also contain clear admissions that the estates are jagirs.
(Vide paras 12, 17(e), 19 and 21(3) of the petition and paras 16 and 19 of the stay petition).
In Petition No. 461 of 1954 the petitioner admits that he holds ten villages as jagirs, seventeen as istimrar and two as muafi.
Istimrar is one of the tenures mentioned in the first schedule to the Act, and is item No. 2 therein, and that would be "other similar grant" 363 within article 31 A, while jagir and muafi are expressly included therein.
In conclusion, we must hold that the petitioners have failed to establish that the impugned Act, in so far as it relates to properties held by them, is not within the protection of, ' article 31 A. IV.
(B) We may now consider the contention of the petitioners that the Act is bad on the ground that the compensation provided therein is inadequate.
The provisions of the Act bearing on this matter may now be reviewed.
second schedule to the Act lays down the principles on which compensation has to be assessed.
Rule 2 enacts how the gross income is to be ascertained, and enumerates the several heads of income which are to be included therein, and rule 4 mentions the deductions which are admissible.
Rule 4(3) provides that 25 per cent.
of the gross income may be deducted for "administrative charges inclusive of the cost of collection, maintenance of land records, management of jagir lands and irrecoverable arrears of rent"; and there is a proviso to that rule that "in no case shall the net income be computed at a figure less than 50 per cent.
of the gross income".
Under rule 5 compensation payable is seven times the net income calculated under rule 4.
Rule 6 provides that any compensation paid to the jagirdar for customs duties during the basic year shall continue to be payable.
Under section 26(2) the compensation amount carries interest at 21 per cent.
from the date of resumption, and under section 35 it is payable in instalments.
Under section 35(A) the payment may be made in cash or in bond or partly in cash and partly in bond.
In addition to this, there is provision for the payment of rehabilitation grant on the scale mentioned in schedule III.
The complaint of the petitioner is that the compensation provided by the rules is inadequate, being far less than the market value of the estate, that rule 2 takes into account only the income which was being actually received from the properties and omits altogether potential income which might arise in future, as for example, from vacant house sites and unopened 364 mines; and reliance was placed on the decision of this Court in State of West Bengal vs Bela Banerjea(1) where it was held that the compensation guaranteed under article 31(2) was just compensation, equivalent of what the owner had been deprived of.
But we have held that the impugned Act is protected by article 31 A, and that article enacts that no law providing for acquisition of properties falling within its purview is open to attack on the ground that it violates any of the provisions of Part III.
It was held by this Court in State of Bihar vs Maharajadhiraja Sir Kameshwar Singh(1) and Visveshwar Rao vs The State of Madhya Pradesh(1) that an objection to the validity of an Act relating to acquisition of property on the ground that it did not provide for payment of compensation was an objection based on article 31(2), and that it was barred when the impugned legislation fell within articles 31(4), 31 A and 31 B.
It was further held in Raja Suriya Pal Singh vs The State of Uttar Pradesh(1) that when the acquisition was of the whole estate, it was not a valid objection to it that the compensation was awarded on the basis of the income actually received, and that nothing was paid on account of properties which did not yield an income.
It is argued that the compensation payable under the rules is so inadequate as to be illusory, and that the Act must be held to amount to a fraud on the Constitution.
We are unable to agree with this contention.
Under the Act, the jagirdar is entitled to compensation equal to seven years ' net income, and in addition to it he is awarded rehabilitation grant which may vary from 2 to 11 times the net income.
Under section 18 of the Act he will also be allotted a portion of the khudkhast lands in the jagir, the extent of the allotment being proportionate to the total extent thereof.
He is also to get compensation for loss of customs.
The utmost that can be said of these provisions is that the compensation provided thereunder is inadequate, if that is calculated on the basis of the market value of the properties.
But that (1) ; (3) (2) (4) 365 is not a ground on which an Act protected by article 31 A could be impugned.
Before such an Act could be struck down, it must be shown that the true intention of the law was to take properties without making any payment, that the provisions relating to, ' compensation are merely veils concealing that intention, and that the compensation payable is so illusory as to be no compensation at all.
(Vide State of Bihar vs Maharajadhiraja Sir Kameshwar Singh of Darbhanga and others(1).
We are clear that this cannot be said of the provisions of the impugned Act, and the contention that it is a fraud on the Constitution must, in consequence, fail.
It was argued by Mr. Achhru Ram that the impugned Act suffered from a fundamental defect in that it treated all the 41 tenures classed as jagirs in the schedule as of the same character, and on that basis laid down the same principles of compensation for all of them.
It is argued that these tenures differ widely from one another as regards several incidents such as heritability, partibility and alienability, and that different scales of compensation should have been provided suitably to the nature and quality of the tenure.
There is considerable force in this con tention.
But this is an objection to the quantum of compensation, and that is not justiciable under article 31 A. We may add that even if it was open to the petitioners to go behind article 31 A and to assail the legislation on the ground that the compensation awarded was not just, they have failed to place any materials before us for substantiating that contention, and on this ground also, the objection must fail.
It was also argued that there was no public purpose involved in the resumption, and that therefore article 31(2) had been contravened.
This again is an objection which is barred by article 31 A; and even on the merits, the question is concluded against the petitioners by the decision of this Court in State of Bihar vs Maharajadhiraja Sir Kameshwar Singh of Darbhanga (1) , 946 948. 366 and others(1) that legislation of the character of the present is supported by public purpose.
It was next urged that the provisions of the Act offend article 14 and are therefore bad.
Even apart from article 31 A which renders such an objection inadmissible, we are satisfied that it is without substance.
The contention of the petitioners is that the Act according to its title is one to provide for resumption of jagir lands, not all of them; that section 21 provides that the Government "may appoint a date for the resumption of any class of jagir lands", which means that under this section it is not obligatory on it to resume all jagirs, and that it would be within its powers in resuming some of them while leaving others untouched, and thus the Act is discriminatory.
The provisions of this Act bearing on this question are sections 20 and 4.
Section 20 enacts that "the provisions of this Chapter apply to all jagirs except jagirs the income of which is utilised for the maintenance of any place of religious worship or for the performance of any religious service".
We have held that the Act confers no power on the Government to grant exemption.
All the jagirs therefore are liable to be resumed under section 20, no option being left with the Government in the matter.
Section 4 of the Act enacts that all jagir lands become liable to pay assessment from the commencement of the Act, and the liability of the jagirdar to pay tribute also ceases as from that date.
There cannot therefore be any doubt that it was the intention of the Legislature that all jagir lands should be resumed under section 21.
It was also urged that under section 21 the State is authorised to resume different classes of jagir lands on different dates, and that must result in the law operating unequally.
This provision was obviously dictated by practical considerations such as administrative convenience and facilities for payment of compensation ' and cannot be held to be discriminatory.
It was held by this Court in Biswambhar Singh vs The State of Orissa and others(1) that a similar (1) (2) ; , 855.
367 provision in the Orissa Estates Abolition Act No. I of 1952 was not obnoxious to article 14.
The objection must accordingly be overruled.
Petitions Nos.
629 and 643 of 1954: These are petitions by jagirdars of Mewar, and the special contention urged on their behalf by Mr. Trivedi is that their jagirs had been taken possession of by the State in 1949 under section 8(A) of the Rajasthan Ordinance No. 27 of 1948, that by its judgment dated 11 12 1951 the High Court of Rajasthan had held that that enactment was void under article 14, that that judgment had been affirmed by this court in The State of Rajasthan vs Rao Manohar Singhji(1), that the present Act came into force on 8 2 1952, and that the Government having wrongly taken possession of the jagirs in 1949 under the provisions of the Ordinance, instead of returning them to the petitioners notified them first under section 21 of the Act, and thus managed to continue in possession, and that in the result, these jagirdars had been treated differently from the jagirdars in other States of Rajputana to whom sec tion 8(A) did not apply and article 14 had been contravened.
There is no substance in this contention.
The Mewar jagirdars having lost possession under a legislation which has been held to be void, the rights which they had over the jagirs until the date of the present notifications would remain unaffected, and no unequal treatment could result therefrom.
And, moreover, the present Act makes no discrimination in the matter, as it applies to all the jagirs in Rajasthan.
There is no ground, therefore, for holding that the Act in any manner contravenes article 14.
V. It now remains to deal with the contention of some of the petitioners that even if the impugned Act is valid, their estates do not fall within its mischief, and that their resumption is therefore unauthorised (a) Petition No.392 of 1954 The subject matter of this petition is the estate of Khandela in the former State of Jaipur.
By a deed of the year 1836, it (1) ; 47 368 was settled by the Maharajah of Jaipur on Raja Abayasingh and Raja Lakshmansingh on izara istimrar on an annual assessment of Rs. 80,001.
The present petitioner is the successor in interest of Raja Abayasingh, and is entitled to three fifths share in the estate.
The contention that is urged on his behalf by Mr. Isaacs is that the Act does not apply to him, because be is neither a Jagirdar nor a holder of any of the tenures mentioned in schedule I to the Act.
The history of this estate is set out in Mr. Wills 's Report at pp.
75 79.
Khandela was an ancient principality held by the members of the Raisalot family as Mansubdars under the Moghul Emperor.
In 1725 Sawai Jaisingh of Amber obtained an izara of Khandela from the Moghul Emperor, and the Raisalot holders became subordinate to him.
In 1797 the Raisalot family lost possession of the estate, which became incorporated in the Khalsa lands of Jaipur, and administered as such till 1812.
Thereafter, it was leased to the Chieftain of Sikar and others on short Term leases till 1836 when the grant under which the petitioner claims was made.
The occasion for the grant was that there were negotiations for marrying a princess of the Bikaner royal family to the ruler of Jaipur, and the Bikaner Durbar insisted that the Khandela estate should be restored to the Raisalot family.
Though the marriage itself did not eventually materialise, the princess having in the meantime died, the negotiations which had been going on with the Jaipur State for the handing over of the Khandela estate to its old holders resulted in the izara of 1836.
Now the question is whether the grant of 1836 was that of a jagir.
It was clearly not a grant for services rendered or to be rendered, nor was there an assignment of any right to collect revenue.
The grantees were to enjoy the income from the lands and pay a fixed annual amount to the Durbar.
It is true that the estate had some of the incidents of a jagir tenure attached to it.
It was impartible, it was inalienable, and in matters of succession it was governed by the Matmi Rules.
All this did not affect the true character of the grant which was both in name and in 369, substance a permanent lease and not a jagir.
Mr. Pathak contends that even if what was granted under the deed was not a jagir, it was at least a grant of istimrari tenure, which is item 2 in schedule I to the Act.
This argument is mainly founded on certain, ' proceedings which were taken with reference to the Khandela estate during the years 1932 to 1939.
The occasion for these proceedings was a dispute between the Thikanadars of Shekhwati and the Durbar with reference to their respective rights, and the status of the Izaradars of Khandela also came up for investigation.
There was an enquiry and report by Mr. Wills in 1933, and on that report the matter was again in vestigated by a Committee which submitted its report in 1935.
Therein, it was held on an examination of all the materials that the status of the holders of Khandela differed from that of other Thikanadars, who paid Muamla and claimed semi independent status as "Muamlaguzars", that they held merely as istimrar Izaradars under a " permanent and specific izar" and not as istimrar Muamlaguzars, that the grant of Mal, Sayer, Bhom and Kuli habubayat under the deed did not add to their status as Izaradars.
(Vide para 5).
This report was accepted by the Maharajah of Jaipur on 14 4 1939.
Mr. Pathak contends that the effect of the finding of the Committee that the grantees held as istimrar Izaradars was to bring them within item 2 of schedule I to the Act, and that therefore the resumption is within the Act.
But the report emphasises that the grantee held as "istimrar Izaradar" and not as "istimrar Muamlaguzar", and in the context the word "istimrar" has reference not to the character of the tenure but its duration as permanent.
The precise nature of the tenure called 'istimrari ' is thus set out in Venkatachar 's Report: "Permanently quit rented estates and lands These are denoted by various terms as Dumba, Chukota, Suba and Istimrari.
Of these the Istimrari tenure merits some attention.
The largest number of Istimrari estates in Rajasthan lies in Ajmer Merwara 370 which area is outside the scope of this report.
The original tenure of the Istimrari estate in Ajmer is exactly like the Jagirs in Rajasthan.
None of the Ajmer estates ever paid revenue till 1755, but were held on condition of military service. . .
Under British rule, the estate holders were made liable to pay an annual fixed and permanent quit rent and were converted into Istimrari tenure holders".
(Page 22, para 24).
"This quit rent or fixed revenue is a nominal assessment, not related to the income from the holding, but with the condition of confirmation of grant; the amount is invariable.
This class of persons are known as 'Istimrardars" '.
(Page 24, para 36).
It is clear from the above that the essential features of istimrari tenure are that the lands are assessed to a nominal quit rent and that is permanent.
The amount of Rs. 80,001 fixed as assessment under the deed of 1836 cannot be said to be a nominal amount, and as found in the report of the 1933 Committee, it was not a permanent assessment.
It cannot therefore be held that what was created by the deed of 1836 was istimrari tenure.
It was argued for the respondent that Khandela was clearly an estate as defined in article 31 A, that the policy of the law was to abolish all intermediaries, and that section 2(h) should be so construed as to comprehend all holders of intermediate tenures.
The answer to this is that whatever the legislature intended, effect can be given only to its expressed intention, and that the definition of "jagir" in section 2(h) is not sufficiently wide to catch the petitioner.
The notification under section 21 in so far as it relates to the properties held by the petitioner under the izara of 1836 must be held to be not within the purview of the Act and therefore unauthorised.
(b)Petition No. 427 of 1954: Three villages, Haripura, Khata and Niradun, are comprised in this petition.
Lands in Haripura belonged to certain Bhumias of Jaipur.
The petitioner acquired them under a number of purchases, the last of them being in 1915.
Bhom tenure is item 17 in schedule I to the Act, and 371 these lands would therefore be within the purview of the Act.
It is argued by Mr. Rastogi that as the petitioner had acquired lands from the Bhomias long prior to the Act his rights in them could not retrospectively be affected by subsequent legislation.
We are unable to see where the question of retrospective operation comes in.
If Bhom is a tenure and that is what it is under the first schedule to the Act, and if the intention of the Legislature was to bring it within the operation of the Act, then the only question to be considered is whether the particular properties notified under the Act are held under that tenure.
And if that is answered in the affirmative, the Act would clearly apply, and it would make no difference in the result that the holder derived title to them by purchase and not by inheritance.
On the admission of the petitioner that the lands notified belonged to his vendors as Bhom, the Act will clearly apply.
With reference to the lands in the village of Khata, the contention of the petitioner is that it is held on izara tenure, and that it is therefore outside schedule I to the Act.
This village is a Thikana in Shekhwati, and though the estates in that area were originally held on izara, they had, as already stated, risen to the status of jagirs and had been recognised as such.
This village is stated to have been granted for maintaining horses, and is really a Mansab jagir and must be held to be covered by item 1 in schedule I. The village of Niradun is stated to be held as Javad, and the contention is that it is not one of the tenures mentioned in schedule I to the Act.
The respondent contends that Javad is not the name of any tenure, and that it means only a sub grant.
In the petition it is not stated that Javad is a tenure; nor is there a mention of its incidents.
The word 'javad ' is not noticed either in Wilson 's Glossary or in Ramanatha Iyer 's Law Lexicon.
In the Jagir Rules of Kishangarh, section 4(xiii) defines 'javad ' as "a jagir con fiscated by or reverted to the State", and that has reference to the practice of making a grant of a small portion of the jagir to the 'jagirdar when it is confiscated or to the members of the family when it 372 reverts back to the State.
We are satisfied that there is no tenure called Javad, and it will not assist the petitioner whether Javad is a sub grant or a grant of jagir of the nature mentioned in section 4(xiii) of the Kishangarh Rules.
We may add that this contention was raised by the petitioner in a supplemental statement.
(c) Petition No. 468 of 1954: The petitioner is the holder of an estate known as Jobner.
He contends that he is a Mansubdar and not a jagirdar, and that his tenure is not included in schedule I to the Act.
During the Moghul administration persons to whom assignments of land revenue were made subject to an obligation to maintain horses for Imperial service were called Mansubdars.
The petitioner states that Akbar the Great granted three paraganas, Narayana, Kolak and Jobner, to his ancestors as Mansub for maintaining 1000 horses, that in 1727 they came under "the subordination of the Amber Durbar" which was the name of the State prior to the foundation of Jaipur in 1728, and that they had continued to hold the estate thereafter as Mansubdars and not as jagirdars.
But the grant will clearly be a jagir as there is an assignment of land revenue for the rendering of military service, and Mansub is only another name for a jagir.
It is classified as a jagir in the Jaipur Administration Report 1947 1948, page 35, and even though the Report has not the force of legislation, it is valuable as showing that Mansub is recognised as a jagir.
The estate is therefore covered by item I in schedule 1.
With reference to one of the villages forming part of this estate, Jorpura, a special contention was put forward by Mr. Naunit Lal that it was dedicated for worship of the Devi, and was therefore within the exemption enacted in section 20.
A document is also produced in support of this claim.
The respondent claims that under this deed the grant is not in its entirety in favour of the Deity, but the petitioner disputes it.
This is not a question which can be determined in this petition.
It will be open to the petitioner to establish in appropriate proceedings that the 373 village or any portion thereof is within the exemption of section 20 of the Act.
(d) Petitions Nos. 474 and 475 of 1954: In 1948 the Maharajah of Jaipur granted to the petitioners, who are his sons, the Thikanas of Bhagwatgarh and Mangarh consisting of 20 villages revenue free.
Now, the contention that has been urged before us in these and other similar petitions is that in the first schedule to the Act.
, only Thikanas of Dholpur are mentioned, being item 11, and that therefore Thikanas in other States are excluded.
But the expression 'Thikanadar ' is a honorific and 'Thikana ' does not, except in Dholpur, mean anything more than an estate and that estate can as well be a jagir.
The petitioners, in fact,, admit in their petitions that they are jagirdars.
The grant is clearly a jagir, and falls within item I in the schedule.
(e) Petition No. 488 of 1954: The petitioners are interested in two of the villages, Dadia Rampur and Tapiplya comprised in the izara of Khandela of the year 1836, which forms the subject matter of Petition No. 392 of 1954, and their title rests on Chhut Bhayas or sub grant from the izaradar.
Their rights are therefore precisely those of the izaradars, and for the reasons given in Petition No. 392 of 1954 these petitioners must succeed.
(f) Petition No. 36 of 1955: The properties to which this petition relates are held as "Sansan" which is one of the tenures mentioned in the first schedule being item 25, and would therefore fall within the operation of section 21.
The contention of the petitioner is that they are dedicated for the worship of Lord Shiva and Goddess Shakti, and that he is a Brahmacharan utilising the income from the lands for the above religious service.
The properties comprised in the grant are said to be of a small extent, and the dedication is not improbable.
There has been no denial by the respondent of the allegation in the petition, and on the materials placed before us, we have come to the conclusion that the dedication pleaded by the petitioner has been established, and that the 374 properties are within the exemption enacted in section 20.
To sum up: The impugned Act is not open to attack either on the ground that the Rajpramukh had no legislative competence to enact it, or that the procedure prescribed in article 212 A for enactment of laws had not been followed.
The Act is, in substance, one for acquisition of property, and is within the legislative competence of the State, and it is protected by article 31 A.
But the notification is bad as regards properties comprised in Petitions Nos.
392 and 488 of 1954, as izaras are not within the impugned Act.
The properties mentioned in Petition No. 36 of 1955 are dedicated for religious services, and are exempt under section 20 of the Act.
Appropriate writs will issue in these three petitions.
In Petition No. 468 of 1954 the right of the petitioner to claim exemption under section 20 for the village of Jorpura on the ground that it is dedicated for worship of the Deity is reserved, and the petition is otherwise dismissed.
All the other petitions will stand dismissed.
The parties will bear their own costs in all the petitions.
| IN-Abs | The Bill which came to be enacted as the Rajasthan Land Re forms and Resumption of Jagirs Act was prepared in the Ministerial Department of the Government of Rajasthan.
It was approved by the Rajpramukh on 8 2 1952, and reserved for the consideration of the President, who gave his assent to it on 13 2 1952.
By notification issued on 16 2 1952, the Act came into force on 18 2 1952.
In pursuance of section 21(1) of the Act, the State of Rajasthan issued notifications resuming the jagirs specified therein, whereupon petitions under article 226 of the Constitution were filed by the persons aggrieved challenging the validity of the Act before the Rajasthan High Court.
The petitions were dismissed and thereupon they filed petitions before the Supreme Court under article 32 of the Constitution of India, impugning the Act.
They contended inter alia that the Rajpramukh had no competence to enact the law, that the Bill was not prepared by the Rajpramakh as required by article 212 A(2), that resumption was not one of the topics of legislation enumerated either in the State List or in the Concurrent List in the Seventh Schedule of the Constitution and that the Act was therefore ultra vires the powers of the State, that the Act did not provide for adequate compensation nor was there any public purpose involved in it and therefore it contravened article 31(2), and that as the Act was discrimi natory it contravened article 14.
There were some special contentions that the Act was not saved by article 31 A, because the lands resumed were neither estates nor jagirs nor grants similar to jagirs, inams or muafi and that some of the properties sought to be resumed were not jagirs as defined in the Act and therefore the notifications under section 21 of the Act in so far as they related to them were illegal.
39 304 Held that, (1) the Rajpramukh was competent to enact the im pugned law, under article 385, as he was the authority functioning immediately before the commencement of the Constitution as the legislature of Rajasthan under article X (3) of the Covenant of the United State of Rajasthan.
The expression "Ordinance" in article X (3) must be construed as meaning "Law".
Article VII (3) of the Covenant has reference to the executive power which the Rulers had to resume jagirs and does not operate as a restriction on the legislative powers under article X (3).
The Legislature of the corresponding State mentioned in article 385 refers not to the legislature under the Constitution, but to the body or the authority which was functioning as the legislature of the State before the commencement of the Constitution and under article X (3) of the Covenant of the United State of Rajasthan, that authority was the Rajpramukh.
Article 385 does not require that that authority should have had absolute and unlimited powers of legislation.
If it was functioning as the legislative authority before the Constitution, it would, under the article, have all the powers conferred by the Constitution on the House or Houses of legislature of the States.
(ii) Article 212 A(2) which provides that the Rajpramukh should prepare the Bill, does not require that he should himself draft it.
It is sufficient if he decides questions of policy which are of the essence of the legislation.
It is open to the Rajpramukh to adopt a Bill prepared by his ministers and the only matter that will have to be con sidered is whether in fact he did so.
There is no provision in article 212 A(2) for the Rajpramukh approving of a Bill and an endorsement of approval on the Bill prepared in the ministerial department must therefore signify its adoption by him.
When the Bill is produced with an endorsement of approval under his signature, the question must be held to be concluded and any further discussion about the legislative or executive state of mind of the Rajpramukh must be ruled out as inadmissible.
(iii) The impugned Act is not ultra vires the powers of the State Legislature as the subject matter of the legislation is in substance acquisition of properties falling under entry 36 of List II of the Seventh Schedule.
Resumption and acquisition connote two different concepts, but whether the impugned Act is one for acquisition of jagirs or for their resumption must be determined with ref erence to the pith and substance of the legislation, the name given to it by the legislature not being decisive of the matter.
The resumption for which the Act provides is not in enforcement of the rights which the Rulers had to resume jagirs in accordance with the terms of the grant or the law applicable to it, but in exercise of the sovereign rights of eminent domain possessed by the State.
Under the circumstances, the taking of the properties is in substance acquisition notwithstanding that it is labelled as resumption.
The payment of compensation to the Jagirdars is consistent only with the taking being an acquisition and not resumption in 305 accordance with the terms of the grant or the law applicable to it.
Though the legislation also falls under entry 18 of List II of the Seventh Schedule, there being an entry 36 dealing with acquisition, it must be held that the Act falls under that entry and is valid.
(iv) The word 'jagir ' connoted originally grants made by Rajput Rulers to their clansmen for military services rendered or to be rendered.
Later on grants made for religious and charitable purposes and even to non Rajputs were called jagirs, and both in its popular sense and legislative practice, the word jagir came to be used as connoting all grants which conferred on the grantees rights in respect of land revenue, and that is the sense in which the word jagir should be construed in article 31 A.
The object of article 31 A was to save legislation which was directed to the abolition of intermediaries so as to establish direct relationship between the State and the tillers of the soil.
Construing the word in that sense which would achieve that object in full measure, it must be held that jagir was meant to cover all grants under which the grantees had only rights in respect of revenue and were not tillers of the soil.
Maintenance grants in favour of persons who were not cultivators such as members of the ruling family would be jagirs for purposes of article 31 A. (v) Bhomicharas.
The Bhomicharas are the representatives of Rajput Rulers who conquered the. country and established their sovereignty over it in the thirteenth century.
Later on the Ruler of Jodhpur imposed his sovereignty over the territory but permitted the previous rulers to continue in possession of the lands on payment of an annual sum.
The question was whether they held the lands as jagirs.
Held that, there could be a jagir only by grant by the Rul ing power but that such a grant need not be express, and could be implied and when the Ruler of Jodhpur imposed his sovereignty over the territory of the Bhomicharas but recognised their possession of the lands, it is as if there was annexation by him and re grant to them of these lands.
Vajesinghji Joravar Singji and Others vs Secretary of State [(1924) L.R. 51 I.A. 357] and Secretary of State vs Sardar Bustam Khan [(1941) L.R. 68 I.A. 109], referred to.
Though the Bhomicharas enjoyed large powers, their status was only that of subjects.
The status of a person must be either that of a sovereign or a subject.
There is no tertium quid.
The law does not recognise an intermediate status of a person being partly a sovereign and partly a subject.
And when once it is admitted that the Bhomicharas had acknowledged the sovereignty of Jodhpur, their status can only be that of a subject.
Even if the Bhomicharas did not prior to the enactment of the Marwar Land Revenue Act XL of 1949 hold the lands as grantees 306 from the State, they must be deemed to have become such grantees by force of section 169 of the Act which provides that all lands in the State vest in the Maharajah and all proprietary interests therein are deemed to be held under a grant from him.
The Bbomicharas bad by long usage and recognition and by the legislative practice of the State come to be recognised as jagirdars and their tenure is a jagir within the intendment of section 169.
For the purposes of article 31 A, it would make no difference whether the grant is made by the sovereign in the exercise of his prerogative right or by the legislature in the exercise of its sovereign rights, Grants which are the creatures of statutes called legislative grants are equally within the operation of that article.
Bhomicharas are, accordingly, within the operation of article 31 A. (vi) The position of Bhumias in Mewar is similar to that of Bhomicharas in Marwar and in addition it was a condition of the terms on which their title to the lands was recognised by the rulers of Chittoor and Udaipur, that they had to render military service when called upon and also pay quit rent.
Their title to the lands therefore rested on an implied grant and their tenure would be jagir even in its stricter sense.
Section 27 of the Mewar Government Kanoon Mal Act (V of 1947) enacts that all lands belong to His Highness and that no person has authority to take possession of any lands unless the right is granted by His Highness.
Section 106 (1) of the Act declares that a Tikanadar, Jagirdar, Muafidar or Bhumia shall have all such revenue rights in the lands comprised in his jagir, muafi, or Bhom under this Act, as are granted to him by His Highness".
The effect of these provisions was to impress on the Bhom tenure the charac teristics of a grant.
Article 13, Clause (1) of the Constitution of Mewar provided that, "no person shall be deprived of his life, liberty or property without due process of law, nor shall any person be denied equality before the law within the territories of Mewar".
It was contended for the petitioners that the impugned Act was void as contravening the above provisions.
Held that, as the authority which enacted the Constitution of Mewar was His Highness, it could be repealed or modified by the same authority, and the impugned Act must be held to have repealed the Constitution to the extent that it was in consistent with it.
(vii) The Tikanadars of Shekwati got into possession of lands as ijaradars or lessees and were subsequently treated as jagirdars.
Their tenure was, if not jagirs, at least other "similar grants" within article 31 A.
It is included in Schedule I to the impugned Act as item 6.
The nature of the tenures of lands held by Subeguzars, Mansubdars, maintenance holders (Lawazma and Kothrikarch), Tikanadars and of Naqdirazan, Sansan grants, etc., considered, 307 (viii) The Khandela estate was granted in 1836 on a permanent lease.
The definition of jagir in section 2(h) includes the tenures mentioned in Schedule I to the Act and Istimrari tenure is item 2 therein.
The question was whether the Istimrar ijara was within item 2.
Held that, the essential features of Istimrari tenure are that the lands are assessed to a nominal quit rent, and that it is permanent.
The amount of Rs. 80,001 fixed as assessment under the deed of 1836 cannot be said to be nominal.
The grant is, therefore, not an Istimrari tenure, but a permanent Izara.
(ix) Objections raised as to the validity of the Act on the ground that it did not provide for payment of compensation, that there was no public purpose involved in the resumption and that therefore it contravenes article 31(2) or that the provisions of the Act offend article 14, are barred by the provisions of article 31 A of the Constitution.
Even apart from article 31 A, the impugned Act must be held to be supported by public purpose and is not in contravention of article 31(2).
Nor is there a contravention of article 14, as under the Act all jagirs are liable to be resumed, no power having been conferred on the Government to grant exemption.
State of Bihar vs Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Others ([1952] S.C.R. 889) and Biswambhar Singh vs The State of Orissa and Others ([1954] S.C.R. 842), referred to.
The true scope of the rule of ejusdem generis is that words of a general nature following specific and particular words should be construed as limited to things which are of the same nature as those specified and not its reverse, that specific words 'which precede are controlled by the general words which follow.
|
Appeal No. 761 of 1976.
(Appeal by Special Leave from the Judgment and Order dated 28 5 1976 of the Karnataka High Court in Writ Appeal No. 665/75 ).
CIVIL APPEAL No 'section 845 854 of 1976.
(Appeals by Special Leave from the Judgment and Order dated 28 6 1976 of the Karnataka High Court in Writ Appeal Nos.
247, 237, 241,243 246, 248 and 250/76 respectively.) S.V. Gupte, S.B. Wad, A.K. Ganguli and Mrs. Jayashree wad, for the Appellants in all the Appeals.
M.P. Chandrakantraj Urs and B.R.G.K. Achar, for Respond ents 1 to 3 in CA 761/76.
Narayan Nettar, for Respondent 4 in CA.
No. 761/76.
A.K. Sen, M.P. Chandrakantraj Urs and Narayan Nettar, for the respondents in CA.
No. 845/76.
M.P. Chandrakantaraj Urs and Narayan Nettar, for Re spondents 1 3 in CAs 846 849/76.
B.R.G.K. Achar for Respondent 1 in CAs.
850 854/76.
M.P. Chandrakantaraj Urs and Narayan Nettar, for Re spondents 1 3 in CAs.
850 854/76.
Narayan Nettar for Respondent 7 in CAs.
845 846/76.
The Judgment of the Court was delivered by BHAGWATI, J.
This group of appeals raises a common question of law affecting Senior Health Inspectors on deputation with the Municipal Corporation of the City of Bangalore (hereinafter referred to as the Corporation).
The facts giving rise to the appeals are identical and may be briefly stated as follows.
The appellants are Senior Health Inspectors in the Karnataka State Civil Service.
It seems that prior to 3rd March, 1971, when the City of Bangalore Municipal Corpora tion Services (General) Cadre and Recruitment Regulations, 1971 (hereinafter referred to as the Cadre and Recruitment Regulations) came into force, the practice 793 of the Corporation was to have one half of the cadre of Senior Health inspectors manned by deputation of Senior Health Inspectors from the Karnataka State Civil Service and in accordance with this practice, the appellants were taken on deputation by the Corporation from the Karnataka State Civil Service.
While the appellants were working as Senior Health Inspectors on deputation, the Corporation passed a resolution dated 30th December, 1974 approving the report of the Commissioner that sixteen Senior Health Inspectors, including the appellants, who were working under the Corpo ration on deputation should "be absorbed in the interest of work if they are :willing on then ' own pay and accept their seniority as Juniors to the Senior Health Inspectors of the Corporation.
" It is the case of the appellants that on the same day, immediately :after the passing of this Resolution, they addressed a communication to the Mayor of the Corpora tion intimating to him that they were willing to be absorbed as Senior Health Inspectors under the Corporation on their own pay and with ranking below the Senior Health Inspectors of the Corporation.
The factum of this communi cation was disputed by the Corporation as well as by the State Government, but in the view we are taking, it will not be necessary for us to examine this question.
continue further with the narration of facts, the Corporation sent the Resolution dated 30th December, 1974 to the State Gov ernment for according its sanction and the State Government by an order dated 6th May, 1975 accorded sanction "to the Corporation 's resolution dated 30th December, 1974 regarding the absorption of the Senior Health Inspectors" mentioned the Resolution under section 89 of the City of Bangalore Municipal Corporation Act, 1949 (hereinafter referred to as the Act).
The term of the Corporation in the meantime came to an end and since fresh elections were not held to elect the members of the Corporation, an administrator was ap pointed ' by the Government to manage the affairs of the Corporation.
The administrator requested the State Government to defer implementation of the proposal contained in the Resolution dated 30th December, 1974 since the perma nent officials of the Corporation were considerably dis turbed by this proposal as it prejudicially affected their chances of promotion by reason of the absorption of sixteen deputationist Senior Health Inspectors from the Karnataka State Civil Service.
The State Government on the basis of the communication addressed by the Administrator in this behalf passed another order dated 25th August, 1976 with drawing the sanction accorded under the earlier order dated 6th May, 1975.
The appellants being prejudicially affected by the withdrawal of the sanction.
preferred writ petitions in the High Court of Karnataka contending that as soon as the State Government gave its sanction on 6th May, 1975 to the Resolution of the Corporation dated 30th December, 1974, they were absorbed as permanent employees of the Corporation and they ceased to be Government servants and the State Government thereafter had no authority to withdraw the sanction granted by it under the earlier order dated 6th May, 1975 and the subsequent order dated 25th August 1975 was invalid and inoperative.
These writ petitions came up for hearing before a Single Judge of the High Court who rejected them by a judgment dated 22nd September, 1975.
The appellants thereupon preferred appeals under section 4 of the Karnataka High Court Act.
794 1961, but the appeals 'were unsuccessful and they were rejected by a Division Bench of the High Court by a judgment dated 28th May, 1976.
Hence the present appeals by the appellants with special leave obtained from this Court.
The principal question which arises for determination in these appeals is whether the appellants who are Senior Health Inspectors mentioned in the Resolution of the Corpo ration dated 30th December, 1974 became permanent employees of the Corporation and ceased to be Government servants as soon as the State Government passed the order dated 6th May, 1975 according its sanction to the Resolution of the Corpo ration.
There can be no doubt that if the effect of the Government order dated 6th May, 1975 was to snap the status of the appellants as Government servants and to absorb them as permanent employees of the Corporation, the State Govern ment could not thereafter by its unilateral action reverse the process and annihilate the relationship of employer and employee between the Corporation and the appellants and restore their status as Government servants.
The main issue which, therefore, falls for determination is as to what legal effect flowed from the Government order dated 6th May, 1975: did it have the effect of absorbing the appellants as permanent employees of the Corporation with simultaneous termination of their employment as Government servants ? To answer this issue it is necessary to refer to a few relevant provisions of the Act and the Cadre and Recruitment Regula tions.
The provisions in regard to the establishment of the Corporation are to be found in sections 84 to 95 of the Act.
Section 84 provides for appointment of a Health Officer, an Engineer, a Revenue Officer and other heads of departments working under the Commissioner while section 85 deals with special superior appointments.
We are not concerned with either of these two sections since Senior Health Inspectors do not fall within the categories of officers dealt with in these two sections.
Section 86 provides that if a. vacancy occurs in any office specified in sections 84 and 85 or in any office under the Corporation the maximum monthly salary of which exceeds two hundred and fifty rupees, the Corporation shall, subject to the confirmation of the Gov ernment, within two months of the date of occurrence of the vacancy, appoint a duly qualified person to hold such of fice.
The office of Senior Health Inspector is undoubtedly an office the maximum monthly salary of which exceeds two hundred and fifty rupees and therefore, a vacancy in that office is liable to be filled by the Corporation, subject to confirmation by the Government, under this section.
Sections 87 and 88 are not material for our purpose and we need not pause to consider them.
Section 89 says that, subject to the provisions of sections 84, 85, 86 and 88, appointments to the Corporation establishment shall be made by the Corpo ration if the maximum monthly salary of the office exceeds two hundred and fifty rupees.
It is clear on a conjoint reading of sections 86 and 89 that it is the Corporation which is entitled to make appointment to the office of Senior Health Inspector and such appointment is subject to confirmation by the Government.
Then comes section 90 which provides that the Commissioner shall from time to time lay before the Standing Committee 795 a Schedule setting forth the designations and grades of officers and servants who should in his opinion constitute the Corporation establishment and embodying his proposals in regard to salaries, fees and allowances payable to them and the Standing Committee may either approve or amend such Schedule as it thinks fit and shall lay it before the Corpo ration and the Corporation shall then sanction such Schedule with or without modifications and may also from time to time amend it at the instance of the Commissioner and the Stand ing Committee.
There is a proviso to this section which says that no new office shall be created without the sanction of the Government, if the maximum monthly salary exceeds two hundred and fifty rupees.
This proviso, however, has no application in the present case, since the Schedule sanc tioned by the Corporation set out the office of Senior Health Inspector and the absorption of the appellants as Senior Health Inspectors on the Corporation establishment did not involve the creation of any new office which was not already enumerated in the Schedule.
Section 91 provides that no officer or servant shah be entertained on the Corporation establishment unless he has been appointed under section 84, 85, 86 or 88 or unless his emoluments are included in the Schedule sanctioned under section 90.
But this section also does not stand in the way of the absorption of the appel lants as Senior Health Inspectors on the Corporation estab lishment, since they are purported to be absorbed by the Corporation by its resolution dated 30th December, 1974 and the Government Order dated 6th May, 1975 is tantamount to confirmation of such absorption and hence section 86 is complied with and the office and emoluments of Senior Health Inspector are also included in the Schedule sanctioned under section 90.
The other sections dealing with the establish ment of the Corporation are not material except section 94 which confers power on the Standing Committee to frame regulations in respect of the Corporation establishment in regard to various matters.
It will, therefore, be seen that there is nothing in the Act which debarred absorption of the appellants as permanent employees of the Corporation under the Corporation Resolution dated 30th December, 1974 read with the Government Order dated 6th May, 1975.
But the argument of the State Government and the Corpo ration was, and this argument found favour with the Division Bench of the High Court, that until the Cadre and Recruit ment Regulations were amended, it was not competent to the Corporation to absorb the appellants as permanent Senior Health Inspectors on the establishment of the Corporation and the Resolution of the Corporation dated 30th December, 1974, though sanctioned by the Government by its order dated 6th May, 1975, was not effective to bring about absorption of the appellants as permanent employees of the Corporation with simultaneous termination of their service as Government servants.
This argument requires consideration of some of the relevant provisions of the Cadre and Recruitment Regula tions.
The Cadre and Recruitment Regulations were framed under sections 7, 84, 85, 88 and 94 of the Act and they were sanctioned by the State Government under section 94(g) of the Act and they came into force with effect from 3rd March, 1971 being the date on which they were published in the Government 19 1234SCI/76 796 Gazette.
Regulation 3 laid down the method of recruitment and minimum qualifications for recruitment to various posts enumerated in the Schedule.
One of the posts enumerated in the Schedule was the post of Senior Health Inspector and it was provided in Column 2 of the Schedule that the method of recruitment to the post of Senior Health Inspector shall be: "50% by promotion from the Cadre of Junior Health Inspectors of the Corporation, 50% by deputation from the State Directorate of Health Services.
" The Cadre and Recruitment Regulations thus recognised only two modes of recruitment to the post of Senior Health Inspector, namely, promotion from the cadre of Junior Health Inspectors and deputation from the State Directorate of Health Services and one half of the cadre was to be drawn from each of these two sources.
No other mode of recruitment could be resorted to by the Corporation under the Cadre and Recruitment Regulations.
it is difficult to see how in the face of this provision which has admittedly statutory effect, the posts of Senior Health inspector could be filled in by absorption of deputationist Senior Health Inspectors from the Karnataka State Civil Service.
Senior Health In spectors from the State Directorate of Health Services could only be on deputation to the extent of one half of the number of posts of Senior Health Inspectors on the Corpora tion establishment and they could not be absorbed as perma nent Senior Health Inspectors under the Corporation without violating the aforesaid statutory provision.
This statu tory provision does not contemplate any Senior Health Inspectors on the establishment of the Corporation who are drawn from the State Directorate of Health Services other wise than on deputation and to absorb Senior Health Inspec tors from the State Directorate of Health Services as perma nent employees of the Corporation (otherwise than on deputa tion), would be plainly contrary to its express mandate.
It was, however, contended on behalf of the appellants that when they were absorbed as permanent Senior Health Inspec tors on the establishment of the Corporation, they were already in the cadre of Senior Health Inspectors under the Corporation, filling 50% of the posts and their absorption as permanent Senior Health Inspectors did not constitute fresh entry into the cadre so as to require compliance with the Cadre and Recruitment Regulations.
The position, accord ing to the appellants, was similar to that of an employee Who is initially OffiCiating in a pOSt in a cadre and is subsequently confirmed in the post.
This contention, we do not think, is well founded.
It is only by way of deputation that Senior Health Inspectors from the State Directorate of Health Services can find place in the Cadre of Senior Health Inspectors on the establishment of the Corporation.
Not only their entry but also their continuance in the cadre of Senior Health Inspectors on the Corporation establishment depends on their being on deputation.
There is no scope under the Cadre and Recruitment Regulations for their ab sorption as permanent Senior Health Inspectors under the Corporation.
In fact, it is impermissible to do so.
The category of Senior Health Inspectors, who are regular em ployees of the Corporation, can be drawn only by promotion from Junior Health 797 Inspectors and that too, to the extent of only one half the number of posts.
It is, therefore, obvious that without amendment of the Cadre and Recruitment Regulations permit ting appointment and absorption is really nothing but appointment of Senior Health Inspectors drawn from the State Directorate of Health Services as permanent Senior Health Inspectors under the Corporation, the appellants could not be absorbed as permanent Senior Health Inspectors on the Corporation establishment.
The conclusion must irresistibly follow that the Resolution of the Corporation dated 30th December, 1974 read with the Government order dated 6th May, 1975 did not operate to put an end to the status of the appellants as Government servants and to create the relationship of master and servant between the Corporation and the appellants and in the circumstances, it was competent to the State Government to pass the Order dated 25th August, 1975 withdrawing the sanction granted by it under the earlier Order dated 6th May, 1975.
This view taken by us renders it unnecessary to consider whether the communication dated 30th December, 1974 was addressed by the appellants to the Mayor of the Corporation expressing their willingness to be absorbed as Senior Health Inspectors under the Corporation on the terms set out in the Resolution dated 30th December, 1974.
Even if any such communication was sent, it could have no legal effect because, as already pointed out by us.
the appellants could not be absorbed as permanent Senior Health Inspectors under the Corporation, unless and until the Cadre and Recruitment Regulations were first amended so as to permit such absorption.
The appeals are accordingly dismissed, but in the pecul iar facts and circumstances of the ease, we make no order as to costs.
| IN-Abs | The City of Bangalore Municipal Corporation Services (General) Cadre and Recruitment Regulations, 1971, framed under the City of Bangalore Municipal Corporation Act, 1949, came into force on 3rd March,1971.
In accordance with the ' practice of the Corporation prevailing before that date to have one half of the cadre of Senior Health Inspec tors manned by deputation of Senior Health Inspectors from the Karnataka State Civil Service, the appellants were taken on deputation by the Corporation from the Karnataka State Civil Service.
In 1974, the Corporation passed a resolution that the appellants would be absorbed by the Corporation if they were willing to accept their ranking as juniors to the Senior Health Inspectors of the Corporation, and the State Government accorded its sanction to the resolution of the Corporation as required by the Act.
But coming to know that the chances of promotion of the permanent officials of the Corporation would be prejudicially affected by such absorp tion, the State Government withdrew its sanction accorded earlier.
The appellants preferred writ petitions for quashing the withdrawn but the High Court dismissed the petitions.
In appeal to this Court, it was contended that the appellants became permanent employees of the Corporation and ceased to be Government servants as soon as the State Gov ernment accorded sanction to the Resolution of the Corpora tion and that therefore, the State Government could not, thereafter, by its unilateral action, reverse the process and annihilate the relationship of employer and employee between the Corporation and the.
appellants and restore their status as Government servants.
Dismissing the appeals, HELD : (1) The Resolution read with the Government sanction did not operate to put an end to the status of the appellants as government servant and to create the rela tionship of master and servant between the Corporation and the appellants, and therefore, it was competent to the State Government to withdraw the sanction accorded earlier; and this would be so irrespective of whether the appellants expressed their willingness to be absorbed as SeniOr Health Inspectors by the Corporation or not.
[797 BC] (a) Regulation 3 of the Regulations which were in force when the Resolution was passed by the Corporation recognised only two modes of recruitment to the post of Senior Health Inspectors namely, by promotion from the cadre of Junior Health Inspectors and by deputation.
Therefore, to absorb Senior Health Inspectors from the State Directorate of Health Services as permanent employees of the Corporation would be plainly contrary to the express mandate of this statutory provision.
[796 C & F] (b) It could not be urged that because they were already on deputation in the cadre of Senior Health Inspectors under the Corporation, their absorption as permanent Senior Health Inspectors did not constitute fresh entry into the cadre so as to require compliance with the Regulations.
Not only 792 their entry but also their continuance in the cadre of Senior Health Inspectors on the Corporation establishment depended on their being on deputation, because, it is only by way of deputation that Senior Health Inspectors from the State Directorate of Health Services can find place in the cadre of Senior Health Inspectors on the establishment of the Corporation Since absorption is appointment, without amendment of the Regulations permitting appointment of Senior Health Inspectors drawn from the State Directorate of Health Services as permanent Senior Health Inspectors under the Corporation, the appellants could not be absorbed on the Corporation Establishment.
[796 G H]
|
Appeal Nos.
1616 1621 69 Appeals from the Judgment and Order dated 16th/l9th of Jun& 1967 of the Bombay High Court in S.C.A. Nos.
1971/64, 115:, 216, 343, 345 and 579/65 and CIVIL APPEAL NOS.
1411 1413/69 Appeals from the Judgment and Order dated 16 6 67 of the Bombay High Court in S.C.A. Nos.
1971/64, 115 and 345/65.
M. Natesan, A.K. Sen (In CA 1412/69), Nannit Lal and Lalita Kohli In CAs.
1616 1621/69 and Respondents in CAs.
1411 1413/ 69.
M.H. Phadke, M.N. Shroff for Respondents In CAs.
16161621/69 and for Appellants in CAs.
1411 1413/69.
The Judgment of the Court was delivered by BEG, J.
There are nine appeals before us, after certifi cation of fitness of the cases for appeals to this Court, directed against orders governed by the same judgment of a Division Bench of the High Court of Maharashtra disposing of Writ Petitions relating to four groups of lands, which were sought to be acquired under the provisions of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act ').
A notification dated 11th October, 1963, under ' Section 4 of Act, was published in the Maharashtra Government Gazette with regard to the first group.
The public purpose recited in the notification was "development and utilisation of said land as a residential and industrial area".
The noti fication goes on to state: "AND WHEREAS the Commissioner, Bombay Division, is of the opinion that the said lands were waste or arable lands and their acquisition is urgently necessary, he is further pleased to direct under sub section (4) of Section 17 of the said Act, that the provisions 01; Section 5 A of the said ' Act shall not apply in respect of the said land".
Thereafter, a notification was issued under section 6 of the Act on 19th December, 1963, followed by notices under Sec tion 9(3) and (4) the Act.
With regard to the second group of lands, identically similar notifications under Section 4 together with identi cally worded.
declarationcure direction, under section 17(4) of the Act, were issued on 13th June, 1965.
As proceedings with regard to land comprised in this group were not fol lowed up by notification under section 6 of the Act.
it was conceded by Counsel, in the course of arguments on behalf of the State in the High Court, that the proceedings had: become invalid.
769 We arc, therefore, not concerned with lands in this. ' group in the appeals now before us: Nevertheless, it is not devoid of significance that the terms of the notification under section 4(1) and the declaration cure directions, under section 17(4) of the Act, in this group are also identical with those in the first two groups.
This cer tainly suggests that directions under section 17(4) could have been.
mechanically issued in all the groups in identi cal terms without due application of mind t0 the factual requirements prescribed by law.
The third group of land was also the subject matter of identically similar notifications under section 4 of the.
Act dated 13th June, 1964, together with identically worded declarations cum directions under section 17(4) of the Act.
This land was notified under section 6 of the Act on 28th September, 1964, followed by the notice under section 9; sub sections (3) and (4) of the Act on 28th October, 1964.
With regard to the land= in the fourth group, a notifi cation under Section 4 01 ' the Act took place on 13th Novem ber, 1963, in substantially the same terms as those in the other three groups; but, there was no direction under sec tion 17(4) of the Act.
Consequently, the appellant filed his objection ' on 9th January, 1964.
Later, a notification under section 6 of the Act on 13th July, 1964, was accompa nied by identically worded vague declaration of urgency under section 17(4) of the Act.
This strange course of action suggests that notification under section 17(4) was probably made only to save the botheration of the inquiry begun under section 5A of the Act which should and could have been concluded quite easily before 13th July, 1964.
In Writ Petitions before the High Court, the submission that no public purpose existed was not pressed in view of the decision of this Court in Smt.
Somavanti & Ors.
vs The State of Punjab & Ors.
U ') In Shri Ramtanu Co operative Housing Society Ltd. & Anr.
vs State Maharashtra.
& Ors.(2) acquisition of land for development of industrial areas and residential tenements for persons to live on industrial estates was held to be legally valid for a genuinely public purpose.
This ground, therefore, need not detain us, although file appellants, who are owners of the properties acquired, have formally raised it also by means of the six appeals filed by them (Civil Appeals Nos.
161 '6 1621 of 1969).
In agreement with the High Court, we hold that notification under section 4(1) of the Act were valid in all these cases.
The real question which has been argued before us is raised by the State of Maharashtra in its three appeals Nos. 1411 to 1413 of 1969, against the view taken by a Division Bench of the Bombay High Court in its judgment dated 16th June, 1967.
It had held that, although notifications under section 4( 1 ) of the Act were valid, yet, the Government of Maharashtra had not discharged its burden of showing facts constituting the urgency which impelled it to give declara tionscum directions under section 17(4) of the Act dispens ing with the (1)[1963] 2 SCR 774 (2) ; at 723 770 enquiries under section 5A of the Act, Therefore, actions taken pursuant to those declarations under section 17(4) of the Act were held to be invalid and quashed.
The result was that parties were relegated to the position they could take up in the absence of declarations under section 17(4) of the Act in the cases decided by the High Court.
The correctness of this view is assailed before us.
The case of the State of Maharashtra is stated as fol lows in the affidavit filed by the Special Land Acquisition officer: "I deny, the allegation that the urgency clause has been applied without any valid reason.
I respectfully submit that whether an urgency exists or not for exercising the powers under section 17(1) of the Act is a matter solely for the determination of the State Government or the Com missioner.
Without prejudice to this, respect fully submit that as mentioned in the impugned Notifications, the 3rd Respondent formed the opin ion that the said lands were urgently acquired for the public purposes mentioned therein, and, accord ingly, he was pleased to so direct under the provi sions of Section 17(4) of the Act.
" The respondent No. 3 referred to in the affidavit is the Commissioner of Bombay Division.
It is significant that, in the affidavit filed in reply to the assertions of peti tioners, denying the existence of such urgency as to attract the provisions of section 17(4) of the Act.
the position primarily taken up, on behalf of the State of Maharashtra, was that the existence of the urgency is not a justiciable matter at all left for determination by Courts.
After that, there is a bare submission stating the alternative case that the 3rd respondent had formed the opinion that the said lands were urgently required for the public purpose mentioned therein.
But, no facts or particulars are stated to which the mind of the Commissioner could have been ap plied in forming the opinion that the situation called for declarations cum directions, under section 17(4) of the Act, to dispense with inquiries under section 5A of the Act in these cases.
It is important to.
remember that the mind of the officer or authority concerned has really to be directed towards formation of an opinion on the need to dispense with the inquiry under Section 5A of the Act.
It is true that, in such cases, the formation of an opinion is a subjective matter, as held by this Court re peatedly with regard to situations in which administrative authorities have to form certain opinions before taking actions they are empowered to take.
They are expected to know better the difference between a right or wrong opinion than Courts could ordinarily on such matters.
Neverthe less, that opinion has to be based upon some relevant mate rials in order to pass the test which Courts do impose.
That test basically is: was the authority concerned acting within the scope of its powers or in the sphere where its opinion and discretion must be permitted to have full play? Once the Court comes to the conclusion that the authority concerned was acting within the scope of its powers and had some materiaL, however 771 meagre, on which it could reasonably base its opinion, the Courts should not and will not interfere.
There might, however, be cases in which the power is exercised in such an obviously arbitrary or perverse fashion, without regard to the actual and undeniable facts, or, in other words, so unreasonably as to leave no doubt whatsoever in the mind of a Court that there has been an excess of power.
There may also be cases where the mind of the authority concerned has not been applied at all, due to misunderstanding of the law or some other reason, what was legally imperative for it to consider.
The High Court had put its point of view in the following words: "When the formation of an opinion or the satisfaction of an authority is subjective but is a condition precedent to the exercise of a power, the challenge 'to the formation of such opinion or to such satisfaction is limited, in law, to three points only.
It can be challenged, firstly, on the ground of malafides; secondly, on the ground that the authority which formed that opinion or which 'arrived at such satisfaction did not apply its mind to the material on which it formed the opinion or arrived at the satisfaction; and, third ly, that the material on which it formed its opin ion or reached the satisfaction was so insuffi cient that no man could reasonably reach that conclusion.
So far as the third point is con cerned, no Court of law can, as in an appeal, consider that, on the material placed before the authority, the authority was justified in reaching its conclusion.
The Court can interfere only in such cases where there was no material at all or the material was so insufficient that no man could have reasonably reached that conclusion.
It is not necessary to refer to the authorities which lay down these propositions because they have by now been well established in numerous judgments and they are not in dispute before us at the Bar.
In this case, however, there is no challenge on any of these three grounds.
The dispute in this case therefore narrows down to the point as to the burden of proof.
In other words, the dispute is whether it is the petitioner who has to bring the material before the Court to support his contention that no urgency existed or whether, once the peti tioner denied that any urgency existed, it was incumbent upon the respondent to satisfy the Court that there was material upon which the respondents could reach the opinion as mentioned in section 17(4).
" On the evidence before it, the High Court recorded its conclusions as follows: "In the case before us the petitioner has stated in the petition more than once that the urgency clause had been applied without any valid reason.
The urgency clause in respect of each of the said two notifications concerning the lands m groups Nos. 1 and 2 is contained in the relative section 4 772 notification itself.
The public purpose stated in the notification is 'for development and utiliza tion of the said lands as an industrial and resi dential area '.
To start with, this statement itself vague, in the sense that it is not clear whether the development and utilization of the lands referred to in that statement was confined to the lands mentioned in the schedule to the Notification or it applied to a. wider area of which such lands formed only a part.
So far as the affidavit in reply is concerned, no facts whatever are stated.
The affidavit only states that the authority, i.e., the Commissioner of the Bombay Division, was satisfied t,hat the possession of the said lands was urgently required for the purpose of carrying out the said development.
Even Mr. Setal vad conceded that the affidavit does not contain a statement of facts on which the authority was satisfied or on which it formed its opinion.
It is, therefore, quite clear that the respondents have failed to bring on record any material what ever on which the respondents formed the opinion mentioned in the two notifications.
The notifica tions themselves show that they concern many lands other than those failing in the said first and third groups.
It is not possible to know what was the development for which the lands were being acquired, much less is it possible to know what were the circumstances which caused urgency in the taking of possession of such lands.
We have held that the burden of proving such circumstances, at least prima facie is on the respondents.
As the respondents have brought no relevant material on the record, the respondents have failed to dis charge that burden.
We must, in conclusion, hold that the urgency provision under section 17(4) was not validly resorted to".
It has been submitted on behalf of the State that we need decide nothing more than a simple question of burden of proof in the cases before us.
We do not think that a question relating to burden of proof is always free from difficulty or is quite so simple as it is sought to be made out here.
Indeed, 'the apparent simplicity of a question relating to presumptions and burdens of proof, which have to always viewed together, is often deceptive.
Over simplification of such questions leads to erroneous statements and misapplications of the law.
Our Evidence Act is largely a codification, with certain variations, of the English law of evidence, as it stood when Sir James Fits James Stephens drafted it.
Therefore, in order to fully grasp the significance of its provisions we have to sometimes turn to its sources in English ' law which attained something resembling clarity only by stages.
In Woolmington vs Director of Public Prosecu tions(1), Lord Sankey pointed out that rules of evidence contained in early English cases are quite confusing.
He observed: "It was only later that Courts began to discuss such things as presumption and onus".
He also said that "the word onus is used indifferently throughout the books.
(1) ; 773 sometimes meaning the next move or step in the process of proving and sometimes the conclusion".
In Phipson on Evidence (11th Edn.) (at page 40, paragraph 92), we find the principles stated in a manner which sheds considerable light on the meanings of the relevant provisions of our Evidence Act: "As applied to judicial proceedings the phrase 'burden of proof ' has two distinct and frequently confused meanings: (1) the burden of proof as a matter of law and pleading the burden, as it has been called, of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt; and (2) the burden of proof in the sense of adducing evi dence.
" It is then explained: "The burden of proof, in this sense, rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue. 'It is an ancient ' rule rounded on considerations of good sense, and it should not be departed from without strong reasons '.
It is fixed at the begin ning of the trial by the state of the pleadings, and it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings place it, and never 'shifting in any circumstances whatever.
If, when all the evidence, by whomsoever introduced, is in, the party who has this burden not discharged it, the decision must be against him".
The application of rules relating to burden of proof in various types of cases is thus elaborat ed and illustrated in Phipson by reference to decided cases (see p. 40, para 93): "In deciding which party asserts the affiramative, regard must of course be had to the substance of the issue and not merely to its grammatical form, which latter the pleader can frequently vary at will, moreover a negative alle gation must not be confounded with the mere tra verse of an affirmative one.
The true meaning of the rule is that where a given allegation, whether affirmative or negative, forms an essential part of a party 's case, the proof of such allegation rests on him; e.g. in an action against a tenant for not repairing according to covenant, or against a horse dealer that a horse sold with a warranty is unsound, proof of these allegations is on the plaintiff, so in actions of malicious prosecution, it is upon him to show not only that the defendant prosecuted him unsuccessfully, but also the absence of reasonable and probable cause: while in actions or false imprisonment, proof of the existence of reasonable cause is upon the defendant, since arrest unlike prosecution, in prima facie a tort and demands justification.
In bailment cases, the bailee must prove that the goods were lost without his fault.
Under the Courts (Emergency Powers) Act 1939, the burden of proving that the defendant was unable immediately to satisfy the judgment and that inability arose from circumstances attributa ble to the 774 war rested on the defendant.
But it would seem that in an election petition alleging breaches of rules made under the Representation of the People Act, 1949, the Court will look at the evidence as a whole, and that even if breaches are proved by the petitioner, the burden of showing that the elec tion was conducted substantially in accordance with the. law does not rest upon the respondent.
Where a corporation does an act under 'statutory powers which do not prescribe the method, and that act invades the rights of others, the burden is on the corporation to show that there was no other practi cal way of carrying out the power which would have that effect".
Turning now to the provisions of our own Evi dence Act, we find the general or stable burden of proving a case stated in section 101 as follows: "101.
Whoever desires any Court to give judgment as to any legal right or liability depend ent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person".
The principle is stated in section 102 from the point of view of what has been sometimes called the burden of leading or introducing evidence which is placed on the party initiating a proceeding.
It says: "102.
The burden of proof in a suit or pro ceeding lies on that person who would fail if no evidence at all were given on either side".
In practice, this lesser burden is discharged by merely showing that there is evidence in the case which supports the case set up by the party which comes to Court first, irrespective of the side which has led that evidence.
An outright dismissal in limine of a suit or proceeding for want of evidence is thus often avoided.
But, the burden of establishing or general burden of proof is heavier.
Sometimes, evidence coming from the side of the respondents, in the form of either their admissions or conduct or failure to controvert, may strengthen or tend to support a petitioner 's or plaintiff 's case so much that the heavier burden of proving or establishing a case, as distinguished from the mere duty of introducing or showing the existence of some evidence on record stated in section 102, is itself discharged.
Sufficiency of evidence to discharge the onus probandi is not, apart from instances of blatant perversity in assessing evi dence, examined by this Court as a rule in appeals by special leave granted under Article 136 of the Constitution.
It has been held that the question whether an onus probandi has been discharged is one of fact (see: AIR 1930 P.C. p. 90).
It is gener ally so.
"Proof", which is the effect of evidence led, is defined by the provisions of section 3 of the Evidence Act.
The effect of evidence has to be distinguished from the duty Or burden of showing to the Court 775 what conclusions it should reach.
This duty is called the "onus probandi", which is placed upon one of the parties, in accordance with appropriate provisions of law applicable to various situations, but, the effect of the evidence led is a matter of inference or a conclusion to be arrived at by the Court.
The total effect of evidence is determined at the end of a proceeding not merely by considering the general duties imposed by sections 101 and 102 of the Evidence Act but also the special or particular ones imposed by other provisions such as sections 103 and 106 of the Evidence Act.
Section 103 enacts: "103.
The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person".
And, section 106 lays down: "106.
When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him".
In judging whether a general or a particular or special onus has been discharged, the Court will not only consider the direct effect of the oral and documentary evidence led but also what may be indirectly inferred because.
certain facts have been proved or not proved though easily capable of proof if they existed at all which raise either a pre sumption of law or of fact.
Section 114 of the Evidence Act covers a wide range of presumptions of fact which can be used by Courts inthe course of.
administration of justice to remove lacunae in the chain of direct evidence before iL It is, therefore, said that the function of a presumption often is to "fill a gap" in evidence.
True presumptions, whether of law or of fact, are always rebuttable.
In other words, the party against which a presumption may operate can and must lead evidence to show why the presumption should not be given effect to.
If, for example, the. party which initiates a proceeding or comes with a case to Court offers no evidence to support it, the presumption is that such evidence does not exist.
And, if some evidence is shewn to exist on a question in issue, but the party which has it within its power to produce it, does not, despite notice to it to do so,.
produce it, the natural presumption is that it would, if produced, have gone against it.
Similarly, a presumption arises from failure to discharge a special or particular onus.
The result of a trial or proceeding is determined by a weighing of the totality of facts and circumstances and presumptions operating in favour of one party as against those which may tilt the, balance in favour of another.
Such weighment always takes place at the end of a trial or proceeding which cannot, for purposes of this final weighment, be split up into disjointed and disconnected parts simply because the requirements of procedural regularity and logic, embodied in procedural law, prescribe a sequence, a stage, and a mode of proof for each party tendering its evidence.
What is weighed at the end is one 776 totality against another and not selected bits or scraps of evidence against each other.
Coming back to the cases before us, we find that the High Court had correctly stated the grounds on which even a subjective opinion as to the existence of the need to take action under section 17(4) of the Act can be challenged on certain limited grounds.
But, as soon as we speak of a challenge we have to bear in mind the general burdens laid down by sections 101 and 102 of the Evidence Act.
It is for the petitioner to substantiate the grounds of his challenge.
This means that the petitioner has to either lead evidence or show that some evidence has come from the side of the respondents to indicate that his challenge to a notification or order is made good.
If he does not succeed in discharging that duty his petition will fail.
But, is that the position in the cases before us ? We find that, although the High Court had stated the ques tion before it to be one which "narrows down to the point as to the burden of proof", yet, it had analysed the evi dence sufficiently before it to reach the conclusion that the urgency provision under section 17(4) had not been validly resorted to.
The High Court had remarked that the public purpose itself was vaguely stated, although it could not, in its opinion, be challenged on that ground.
As we have already indicated, the purpose was sufficiently specified to be, prima facie, a legally valid purpose.
We do not think that the vagueness of the purpose, as stated in the notification under section 4 (1 ), really affected the judgment of t, he High Court so much as the absence of facts and circumstances which could possibly indicate that this purpose had neces sarily to be carried out in such a way as to exclude the application of section 5A of the Act.
The High Court had rightly referred to the absence of any statement of circum stances which could have resulted in such urgency that no enquiry under section 5A of the Act could reasonably be held.
The High Court had relied on the following passage from Barium Chemicals Ltd. vs Company Law Board(1): " .
An action, not based on circumstances suggesting an inference of the; enumerated kind will not be valid.
In other words, the enumeration of the inferences which may be drawn from the circumstances, postulates the absence of a general discretion to go on a fishing expedi tion to find evidence.
No doubt the formation of opinion is subjective but the existence of circumstances relevant to the inference as the sine qua non for action must be demon strable.
If the action is questioned on the ground that no circumstances leading to an inference of the kind contem plated by the section exists, the action might be exposed to interference unless the existence of the circumstances is made out .
Since the existence of circumstances ' is a condition funda mental to the making of an opinion, the existence of the circumstances, if questioned, has to be proved at least prima facie.
It is not sufficient to assert that the circumstances (1) ; to 309. 777 exist and give no clue to what they are because the circum stances must be such as lead to conclusions of certain definiteness".
The High Court also cited the following passage from the judgment of Spens, CJ., in King Emperor vs Sibnath Banerjee(1), which was relied upon on behalf of the State to contend that it was the duty of the petitioners to remove the effect of a recital in an order showing that conditions precedent to the exercise of a power had been fulfilled: "It is quite a different thing to question the accuracy of a recital contained in a duly authenticated order, particularly where that recit al 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 inaccuracy be accepted by a Court as establish ing that the necessary condition was fulfilled.
The presence of the recital in the order will place a difficult burden on the detenu to produce admissi ble evidence sufficient to establish even a prima facie case that the recital is not accurate.
If, however, in any case, a detenu can produce admis sible evidence to that effect, in my judgment the mere existence of the recital in the order cannot prevent the court considering such evidence and, if it thinks fit, coming to a conclusion that the recital is inaccurate".
The High Court opined that the presumption of regularity, attached to an order containing a technically correct recit al, did not operate in cases in which section 106 Evidence Act was applicable as it was to the cases before us.
We do not think that we can lay down such a broad general propo sition.
An order or notification, containing a recital, technically correct on the face of it, raises a presumption of fact under section 114 illustration (e) of the Evidence Act.
The well known maxim of law on which the presumption, found is illustration (e) to section 114 of Evidence Act is: "Omain prae sumunt ur rite esse acta" (i.e. all acts are presumed to have been rightly and regularly done).
This presumption, however, is one of fact.
It is an optional presumption.
It can be displaced by circumstances indicat ing that the power lodged in an authority or official has not been exercised in accordance with the law.
We think that the original or stable onus land down by section 101 and section 102 of the Evidence Act can not be shifted by the use of section 106 of the Evidence Act, although the particular onus of proving facts and circumstances lying especially within the knowledge of the official who formed the opinion which resulted in the notification under sec tion 17(4) of the Act rests upon that official.
The recit al, if it is not defective, may obviate the need to look further.
But, there may be circumstances in the case which impel the Court to look beyond it.
And, at that stage, section 106 Evidence Act can be invoked by the party assail ing an order or notification.
It is most unsafe in such cases for the official or authority concerned to rest content with non disclosure of facts especially with (1)[1944] E.C.R 1 at 42.
778 in his or its knowledge by relying on the sufficiency of a recital.
Such an attitude may itself,justify Further judi cial scrutiny.
In Sibnath Banerjee 's case (supra) also, facts which led an authority to pass a detention order could be said to lie especially within its knowledge.
If there could be certain facts, in Sibnath Banerjee 's ease (supra), winch Sibnath Banerjee as well as the official making the order kneW, it could, similarly, be urged that, in the cases before us some facts could be known to both sides.
We do not think that the principle laid down in Sibnath Banerjee 's case (supra) can be circumvented by merely citing section 106 of the Evidence Act as the High Court did.
We think that the total ity of circumstances has to be examined, including the recitals, to determine whether and to what extent each side had discharged its general or particular onus.
It has been repeatedly laid down that the doctrine of onus of proof becomes unimportant when there is sufficient evidence before the Court to enable it to reach a particular conclusion.
The principle of onus of proof ' becomes important in cases of either paucity of evidence or in cases where evidence given by two sides is so equivalanced that the Court is unable to hold where the truth lay.
In the cases before us, if the total evidence, from whichever side any of it may have come, was insufficient to enable the petitioners to discharge their general or stable onus, their petitions could not succeed.
On the other hand, if, in addition to the bare assertions made by the petition ers, that the urgency contemplated by section 17(4) did not exist, there were other facts and circumstances, including the failure of the State to indicate facts and ' circum stances which it could have easily disclosed if they exist ed, the petitioners could be held to have discharged their general onus.
We think that the ,matter, is not so simple as to capa ble of decision on an examination of a mere recital in the order or notification as was, urged on behalf of the State of Maharashtra.
Indeed, even if a recital in a notifica tion is defective or does not contain the necessary state ment that the required conditions have been fulfilled, evidence can be led to show that conditions precedent to the exercise of a power ' have been actually fulfilled.
This was clearly laid down by this Court in Swadeshi Cotton Mill 's case (supra), where Wanchoo, J. speaking for the Constitution Bench of this Court said: "The difference between a case where a gener al order contains a recital on the face of it and one where it does not contain such a recital is that in the latter case the burden is thrown on the authority making the order to satisfy the Court by other means that the conditions precedent were fulfilled, but in the former case the Court will presume the regularity of the order including the fulfilment of the conditions precedent and then it will be for the party challenging the legality of the order to show that the recital was not correct and that the conditions precedent were not in fact 779 complied with by the authority: (see the observa tions of Spens C.J. in King Emperor vs Sibnath Banerjee(1) which were approved by the Privy Coun cil in King Emperor vs Sibnath Banerjee"(2).
This Court also said there: "Our conclusion therefore is that where certain conditions precedent have to be satisfied before a subordinate authority can pass an order, (be it executive or of the character of subordi nate legislation), it is not necessary that the satisfaction of those conditions must be recited in the order itself, unless the statute requires it, though, as we have already remarked, it is most desirable that it should be so, for in that case the presumption that the conditions were satisfied would immediately ' arise and burden would be thrown on the person challenging the fact of satis faction to show that what is recited: is not cor rect.
But even where the recital is not there on the face of the order, the order will not become illegal ab initio and only a further burden is thrown on the: authority passing the order to satisfy the Court by other means that the condi tions precedent were complied with.
In the present case this has been done by the filing of an affidavit before us.
" It is also clear that, even a technically correct recit al in an order or notification stating that the conditions precedent to the exercise of a power have been fulfilled may not debar the Court in a given case from considering the question whether, in fact, those conditions have been ful filled.
And, a fortiori, the Court may consider ,red decide whether the authority concerned has applied its mind to really relevant facts.
of a case with a view to determining that a condition precedent to the exercise of a power has been fulfilled.
If it appears, upon an examination of the totality of facts in the case, that the power conferred has been exercised for an extraneous or irrelevant purpose or that the mind has not been applied at all to the real object or purpose of a power, so that the result is that the exer cise of power could only serve some other or collateral object, the Court will interfere.
In Raja Anand Brahma Shah vs State of U.P. & Ors.
,(3) a Constitution bench of this Court held: "It is true that the opinion of the State Government which is a condition for the exercise of the power under section l 7(4) of the Act, is subjec tive and a Court cannot normally enquire whether there were sufficient grounds or justification for the opinion formed by the State Government under section 17(4).
The legal position has been explained by the Judicial Committee in King Emperor vs Shibnath Banerjee (72 [1944]F.C.R. 1,42.
(2)[1945]F.C.R, 195,216 17.
[1967]1 S.C.R. 373 at .381.
234SC1/76 780 I.A. 241) and by this Court in a recent case Jaichand Lal Sethia vs State of West Bengal & Ors.
(Criminal Appeal No. 110 of 1968 decided on July, 1966 [1966] Suppl.
S.C.R.)But even though the power of the State Government has been formulated under section 17(4) of the Act in subjective terms the expression of opinion of the State Government can be challenged as ultra vires in a Court of Law if it, could be shown that the State Government never applied its mind to the.
matter or that the action of the State Government is malafide If therefore in a case the land under acquisition is not actual ly waste or arable land but the State Government has formed the opinion that the provisions of sub s.(1) of section 17 are applicable the Court may legiti mately draw an inference that the State Government did not honestly form that opinion or that in forming that opinion the State Government did not apply its mind to the relevant facts bearing on the question at issue.
It follows therefore that the notification, of the State Government under section 17(4) of the Act directing that the provisions of section 5A shall not apply to the land is ultra vires".
In Brahma Shah 's case (supra), a condition precedent to the application of section 17(4) was held to be unsatisfied inasmuch as the land in respect of which the proceeding was taken was found to be forest land which could not be classified as "arable or waste land".
Learned counsel for the State relied strongly on the judgment of this Court in I. G. joshi Etc.
vs State of Gujarat & Anr.
(1) where this Court had pointed out how, in Sibnath Banerjee 's case (supra), the initial burden of the petitioner, arising from a prima facie correct order had been repelled by an affidavit filed by Mr. Porter, Additional Home Secretary on behalf of the State, showing that the mind 'of the authority concerned had not been independently applied to the require ments of law but a routine order had apparently been passed on materials supplied by the Police.
We have carefully considered the following observa tions made by this Court in I. G. Joshi 's case (supra) after noticing facts of Sibnath Baner jee 's case (supra) (at p. 278): "The High Court, having before it allega tions, counter allegations, and denials, dealt first with the legal side of the matter.
Then it readily accepted the affidavits on the side of Government.
If it had reversed its approach it need not have embarked upon (what was perhaps unnecessary) an analysis of the many principles on which onus is distributed between rival parties and the tests on which subjective opinion as distin guished from an opinion as to the existence of a fact, is held open to review in a court of law.
As stated already there is a strong presumption of regularity of official acts and added thereto is the (l) [1968]2 S.C.R. 267.
781 prohibition contained in article 166(2).
was not called upon to answer the kind of affidavit which was filed with the petition because bare denial that Govt.
had not formed an opinion could not raise an issue.
Even if Govt.
under advice offered to disclose how the matter was dealt with, the issue did not change and it was only this.
Whether any one at all formed an opinion and if he.did whether he had the necessary authority to do so.
The High Court having accepted the affidavits that Raval and Jayaraman had formed the necessary opinion, was only required to see if they had the competence.
The High Court after dealing with many matters held that they had".
In I. G. Joshi 's case (supra), it appears to us that the principal round of attack on a notification, was that it was not duly authenticated in accordance with the require ments of Article 166 and the Rules ' of Business.
The notification was held not to have been vitiated on the grounds on which it had been assailed.
It was observed that the High Court, after considering the evidence, was satisfied, on the evidence produced before it, that the required opinion had been formed even though it was not necessary for the Government in view of the presumption of regularity attached to official acts.
to produce anything more than the notification.
We do not find that any of the matters placed before us ' now was in issue there.
On the other hand, this.
Court held, on that occasion, that the mere assertion of the petitioner that the Government had not formed an opinion about the need for action under section 17(4) of the Act "could not raise an issue".
We do not think that we need express any opinion here on the question whether such an assertion can or cannot even raise a triable issue.
All we need say is that a triable issue did arise and was decided by the High Court in the cases now before us.
This issue was whether the conditions precedent to exercise of power under section 17(4) had been fulfilled or not.
We think that such a question can only be decided rightly after determining what was the nature of compliance with the conditions of section 17(4) required by the Act.
We think that section 17(4) cannot be read in isolation from sections 4(1) and 5A of the Act.
The immediate purpose of a notification under section 4(1 ) of the Act is to enable those who may have any objections to make to lodge them for purposes of an enquiry under section 5A of the Act.
It is true that, although only 30 days from the notification under section 4(1) are given for the filing of these objec tions under section 5A of the Act, yet, sometimes the pro ceedings under section 5A are unduly prolonged.
But, considering the nature of the objections which are capable of being successfully taken under section 5A, it is diffi cult to see why the summary enquiry should not be concluded quite expeditiously.
In View of the authorities of this Court, the existence of what are prima facie public pur poses, such as the one present in the cases before us, cannot be successfully challenged at all by objectors.
It is rare to find a case in which.
objections to 782 the validity of a public purpose of an acquisition can even be stated in a form in which the challenge could succeed.
Indeed, questions relating to validity of the notification on the ground of malafides do not seem to US to be ordinari ly open in a summary enquiry under section 5A of the Act.
Hence, there seems to us to be little difficulty in completing enquiries contemplated by section 5A of the Act very expeditiously.
Now, the purpose of section 17(4) of the Act is, obvi ously, not merely to confine action under it to.
waste and arable land but ,also to situations in which an inquiry under section 5A will serve no useful purpose, or, for some overriding reason, it should be dispensed with.
The mind of the Officer or authority concerned has to be applied to the question whether there is fan urgency of such a nature that even the summary proceedings under section 5A of the Act should be eliminated.
It is not just the existence of an urgency but the need to dispense with an inquiry under section 5A which has to be considered.
Section 17(2) deals with a case in which an enquiry under section 5A of 'the Act could not possibly serve any useful purpose.
Sudden change of the course of a river would leave no option if essential communications have to be maintained.
It results in more or less indicating, by an operation of natural physical forces beyond human control, what land should be urgently taken possession of.
Hence, it offers no difficulty in applying section 17(4) in public interest.
And, the particulars of '.
what is .obviously to be done in public interest need not be concealed when its validity is questioned in a Court of justice.
Other cases may raise questions involving consideration of facts which are especially within the knowledge of the authorities concerned.
And, if they do not discharge their special burden, imposed by section 106 Evidence Act, without even disclosing a sufficient reason for their abstention from disclosure, they have to take the consequences which flow from the non production of the best evidence which could be produced on behalf of the State if its stand was correct.
In the case before us, the public purpose indicated is the development of an area for industrial and residential pur poses.
.This in itself, on the face of it, does not call for any such action, barring exceptional circumstances, as to make immediate possession, without holding even a summary enquiry under section 5A of the Act, imperative.
On the other hand, such schemes generally take sufficient period of time to enable at least summary inquiries under section 5A of the Act to be completed without any impediment whatso ever to the execution of the scheme.
Therefore, the very statement of the public purpose for which .the land was to be 'acquired indicated the absence of such urgency, on the apparent facts of the case, as to require the elimination of an enquiry under 'section 5A of the Act.
Again, the uniform and set recital of a formula, like a ritual or mantara, apparently applied mechanically to every case, itself indicated that the mind of the Commissioner concerned was only applied 783 to the question whether the land was waste or arable and whether its acquisition is urgently needed.
Nothing beyond that seems to have been considered.
The recital itself shows that the mind of the Commissioner was not applied at all to the question whether the urgency is of such a nature as to require elimination of the enquiry under section 5A.of the Act.
If it was, at least the notifications gave no inkling of it at all.
On the other hand, its literal mean ing was that nothing beyond matters stated there were con sidered.
All schemes relating to development of industrial and residential areas must be urgent in the context of the country 's need for increased production and more residential accommodation.
Yet, the very nature of such schemes of development does not appear to demand such emergent action as to eliminate summary enquires under section 5A of the Act.
There is no indication whatsoever in the affidavit filed on behalf of the State that the mind of the Commis sioner was applied.
at all to the question whether it was a case necessitating the elimination of the enquiry under section 5A of the Act.
The recitals in the notifications, on the other hand, indicate that elimination of the enquiry under section 5A of the Act was treated as an automatic consequence of the opinion formed on other matters.
The recital does not say at all that any opinion was formed on the need to dispense with the enquiry under section 5A of the Act.
It is certainly a case in which ' the recital was atleast defective.
The burden, therefore, rested upon the State to remove the defect, if possible, by evidence to show that some exceptional circumstances which necessitated the elimination of an enquiry under section 5A of the Act and that the mind of the Commissioner was applied to this essen tial question.
It seems to us that the High Court correctly applied the provisions of section '106 of the Evidence Act to place the burden upon the State to prove those special circumstances.
although it also; appears to us.
that the High Court was not quite correct in stating its view in such a manner as to make it appear that some part of the initial burden of the petitioners under sections 101 and 102 of the Evidence Act had been displaced by the failure of the State, to discharge its duty under ' section 106 of the Act.
The correct way of putting it would have been to say that the failure of the State to produce the evidence of facts espe cially ' within the knowledge of its officials, which rested upon it under section 106 of the Evidence Act, taken together with the attendant facts gnu circumstances, includ ing the contents of recitals, had enabled the petitioners to discharge their burdens under sections 101 and 102 of the Evidence Act.
We may also observe that if, instead of prolonging litigation by appealing to this Court, the State Government had ordered expeditious enquiries under section 5A of the Act or even afforded the petitioners some opportunity of being heard before acting under section 17(4) of the Act, asking them to show cause why no enquiry under section 5A of the Act should take place at all, the acquisition proceed ings need not have been held up so long.
In fact, we hope that the acquisition proceedings have not actually been held up.
784 On the view we take of the cases before us, we find no force in either the appeals by the owners of land or in those preferred by the State of Maharashtra.
Consequently, we dismiss all the nine appeals before us.
The parties will bear their own costs.
P.B.R. Appeals dismissed.
| IN-Abs | Certain lands were sought to be acquired by the State Government under the provisions of the Land Acquisition Act, 1894, the public purpose stated being the development and utilisation of the lands as a residential and industrial area.
Identical notifications under section 4 were issued in all the cases.
In one group of lands, declarations that the provisions of section 5A shall not apply in respect of the lands were issued under section 17(4).
With respect to a second group, declarations under section 17(4) were issued but were not fol lowed up with the section 6 notification.
With respect to a third group no notification under section 17(4) was issued but after the petitioners filed objections, the section 6 notifica tion was issued accompanied by the declaration of urgency under 8.
17(4).
The owners of the land sought to have the proceedings quashed on the grounds that, (1) there was no public pur pose, and that (2) there was no urgency justifying the notification under section 17(4) and dispensing with the enquiry under section 5A.
The High Court held that, (1) the notifications under section 4(1) were valid, and that (2) the State had not discharged its burden of showing facts constituting the urgency which impelled it to issue the declarations under section 17(4) dis pensing with the enquiry under section 5A, and, therefore, those declarations were invalid, and that the parties were rele gated to the position they could take up in the absence of declarations under section 17(4).
Both sides appealed to this Court.
In the appeals by the State, it was contended by the appellant State that the burden of proving that there was No. urgency was on the owners of the. lands.
Dismissing all the appeals, HELD: (1) The notifications under 8.
4(1) of the Act were valid in all the cases.
[769 G] (2) (a) The rules regarding burden of proof are set out in the .
Section 101 of the Evi dence Act lays down that whoever desires any Court to, give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist, and section 102 provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
Section 103 provides that the burden of proof as to any particular fact lies on that person who wishes the 'Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
Section 106 lays down that when any fact is especially within the knowledge of any person the burden of proving that fact is upon him.
Section 114 of the Evidence Act covers a wide range of presumptions of fact which can be used by the Courts in the course of administration of justice to remove lacunae in the chain of direct evidence before it.
[774 C E; 775 C E] (b) The result of a trial or proceeding is determined by a weighing of the totality of facts, circumstances and presumptions operating in favour of one party as against those which may tilt the balance in favour of another.
Such weighment always takes place at the end of a trial or pro ceeding which cannot, for purposes of this final weighment be split up into disjointed and disconnected parts.
What is weighed at the end is one totality against another and not 17 1234SCI/76 764 selected bits or scraps of evidence against each other.
Such total effect of evidence is determined at the end of a proceeding not merely by considering the general duties imposed by sections 101 and 102 but also by the special or par ticular ones imposed by other provisions such as sections 103 and 106.
In judging whether a general or particular or special onus has been discharged the Court will not only consider the 'direct effect of the oral and documentary evidence led but also what may be indirectly inferred because certain facts have been proved or not proved though easily capable of proof if they existed at all and such proof of other facts may raise either, a presumption of law or fact.
The party against which a presumption may operate can and must lead the evidence to show why the presumption should not be given effect to.
If the party which initiates the proceed ing or comes with a case to Court offers no evidence in support of it.
the presumption is that such evidence does not exist and if some evidence is shown to exist on a ques tion in issue but the party which has it within its power to.
produce it does not, despite notice to do so, produce it, the natural presumption is that it would, if produced, have gone against it.
Similarly, a presumption arises from failure to discharge a special or 'particular onus.
The doctrine of onus of proof becomes unimportant when there is sufficient evidence before the Court to enable it to reach a particular conclusion in favour of or against a party.
The principle of onus of proof becomes important in cases of either paucity of evidence or where evidence given by two sides is so equivalenced that the Court is unable to hold where the truth lay.
The question whether an onus probandi has been discharged is one of fact.
Sufficiency of evidence to discharge the onus probandi is not examined by this Court as a rule in appeals by special leave granted under article 136 of the Constitution,.
but placing an onus where it did not lie may be.
so examined in appropriate cases.
[775 H; D G; 778 C D; 774 G] Swadeshi Cotton Mills Co. Ltd. vs The State of U.P. & Ors. ; 434 and Raja Anand Brahma Shah vs State of U.P. & Ors.
; at 381 referred to.
I. G. Joshi etc.
vs State of Gujarat & anr.
; held inapplicable.
(c) Section 17(4) of the Land Acquisition Act has to be read with sections 4(1) and 5A of the Act.
The immediate purpose of a notification under section 4(1) of the Act is to enable those who may have any objections to lodge them for purposes of an enquiry under section 5A.
Considering the nature of the objections which are capable of being successfully taken under section 5A, the enquiry should be concluded quite expedi tiously.
The purpose of section 17(4) is obviously not merely to confine action under it to waste and arable land but also to situations in which an enquiry under section 5A will serve no useful purpose, or, for some overriding reason, it should be dispensed with.
The mind of the officer or authority con cerned has to be applied to the question whether there is an urgency of such a nature that even the summary proceedings under section 5A of the Act should be eliminated.
It is not just the existence of an urgency but the need to dispense with an inquiry under section 5A which has to be considered.
[781 G H; 782] (d) Even a technically correct recital in an order or notification stating that the conditions precedent to the exercise of a power have been fulfilled may not debar the Court in a given case from considering the question whether, in fact, those conditions have been fulfilled.
And, a fortiori the Court may consider and decide whether the authority concerned has applied its mind to really relevant facts of a case with a view to determining that a condition precedent to the exercise of a power has been fulfilled.
If it appears upon an examination of the totality of facts in the case, that the power conferred has been exercised for an extraneous or irrelevant purpose or that the mind has not been applied at all to the real object on purpose of a power, so that the result is that the exercise of power could only serve some other or collateral object, the Court will interfere.
[779 E F] (e) The High Court was wrong in the present case in laying down a general proposition that the presumption of regularity attaching to an order containing a technically correct recital did not Operate in cases in which section 106, Evidence Act, was applicable.
An order or notification containing a recital technically correct on the face of it raises a presumption of fact under section 114, illustration 765 (e) That presumption is based on the maxim omain praesumun tur rite esse acta, that, is, all acts are presumed to have been rightly and regularly done. 'This presumption, however, is one of fact.
It is an optional presumption which can be displaced by circumstances indicating that the power lodged in an authority or official has not been exercised in ac cordance with tile law.
The totality of circumstances has to be examined including the recitals to determine whether and to what extent each side had discharged its general or particular onus.
[777 E F] (f) The High Court had, however, correctly stated the limited grounds on which even a subjective opinion as to the existence of the need to take action under section 17(4) of the Act can be challenged, namely, main fides, no application of mind and total want of material on which the opinion is formed.
Therefore, it is for the petitioner to substantiate the grounds of his challenge under sections 101 and 102.
That is, the.
petitioner has to either lead evidence or show that some evidence has come from the other side to indicate that his challenge to a notification or order is made good.
If he does not succeed in discharging that duty his petition will fail.
[776 B C] In the present case, in addition to the bare assertions of the owners of the land that the particular urgency contem plated 'by section 17(4) did not exist there were other facts and circumstances including non disclosure of any facts and circumstances which could easily justify the use of section 17(4) and which could have been disclosed if they existed; and, therefore, the petitioners should be held to have discharged their general onus under section 101 of the Evidence Act.
Thus the High Court was right in quashing the notifications under section 17(4).[778 E] (g) In the present case, the public purpose.
was suffi ciently specified to he prima facie a legally valid purpose.
The High Court thought it vague; but, that did not really affect the judgment of the High Court so much as the total absence of facts and circumstances which could possibly indicate that this purpose.
necessarily to be carried out in such a way as to .exclude the application of section 5A of the Act.
Therefore, a .triable issue did arise in these cases and was decided by the High Court.
This issue was whether the conditions precedent to exercise of power under section 17(4) had been fulfilled or not.
Such a question can only be decided rightly after determining what was the nature of compliance with the conditions of section 17(4) re quired by the Act.
[776 D E] (i) The public.
purpose indicated is.
the development of an area for industrial and residential purposes.
This, in itself, did not make the taking of immediate possession imperative without holding even a summary enquiry under section 5A.
On the other hand, the execution of such .schemes generally take sufficient period of time to enable at least summary inquiries under section 5A of the Act to be completed without any impediment to the execution of the scheme.
(ii) All schemes relating to development of industrial and resi dential areas must be urgent in the context of the.
coun try 's need for increased production and more residential accommodation.
Yet, the very nature of such schemes of development does not appear to demand such emergent action as to eliminate summary enquiries under section 5A. (iii) There is no indication whatsoever in the affidavit filed on behalf of the State that the mind of the Commissioner was applied at all to the question whether it was a case necessitating the elimination of the enquiry under section 5A.
The recitals in the notification on the contrary indicate that elimination of the enquiry under section 5A was treated as an automatic consequence of the opinion formed on other matters.
The recital does not say at all that any opinion was formed on the need to dispense with the enquiry under section 5A. [782 G; 783 C D] The burden, therefore, rested upon the State to remove the defect, if possible, in recitals by evidence to show that some exceptional circumstances existed which necessi tated the elimination of an enquiry under section 5A and that the mind of the Commissioner was applied to this essential question.
[783 E] (h) The High Court has thus correctly applied the provi sions of section 106 of the Evidence Act to place the burden upon the State to prove those special circumstances, although the High Court was not quite correct in stating that 766 some part of the initial burden of the petitioners under sections 101 and 102 of the Evidence Act had been displaced by the failure of the State to discharge its duty under section 106 of the Act.
The correct way of putting it would have been to say that the failure of the State to produce the evidence of facts especially within the knowledge of its officials, which rested upon it under section 106 of the Evidence Act, taken together with other evidence and the attendant facts and circumstances, including the contents of recitals, had enabled the petitioners to discharge their burdens under sections 101 and 102 Of the Evidence Act in these particular cases.
[783 F G] ARGUMENTS For the Appellant: It was urged on behalf of the appellant State that the High Court was in error in placing the burden of proof on the State.
Reliance was placed on the decision of the Su preme Court in ; (pages 432, 433 and 434).
In particular it was urged that where a statute prescribes something as a condition precedent for the exercise of statutory power, and there is a recital of existence of that condition in the notification then it is presumed that the statutory condition exists and it is for the ' other side to bring material before the Court to show that recital is not supported on any evidence or is made malafide.
Similarly, in ; Raja Anands case the very scope of section 17(4) was discussed and the State relied on the observations at page 381 indicating the scope of judicial review original petitioners have not brought their case within the grounds mentioned in this case.
The Barium Chemicals case and other cases cited can be easily distinguished on the ground that the statutory re quirements for the exercise of particular power, for example under section 237 of the Companies Act are differently worded where certain circumstances are required to be present.
The Land Acquisition Act does not require the existence of any such circumstances.
Besides, a decision of the Supreme Court has clearly indicated the scope of judi cial review in [967] 1 S.C.R. 373 and the respondents have not shown why any different view should not be taken.
Cases like ILR 67 Gujarat 620, AIR 1964 Punjab 477 and ILR 1970 Cuttack 21 can be easily distinguished.
There specific allegations were made by the petitioners giving reasons as to why they challenged the notifications.
In reply thereto the State was bound to bring the material to negative those charges.
In the present case if such allega tions were made by the writ petitioners the State would have certainly placed all the necessary materials to negative those allegations.
In the absence of any such allegation the correct rule to apply was the one stated in ; & 433.
Apart from this it may be noticed that by amending paragraph XVI (ARP) was introduced which made some effort to make concrete allegations regarding the invalidity of the notification under section 17(4).
The ' substance of these allegations is that out of the whole area which is to be acquired urgency clause has been applied only to some areas and, therefore, petitioners prayed that an inference of ' exercise of powers in a casual and lighthearted manner should be drawn.
To this averment, and since such concrete allegation was made a concrete reply has been given by the State in para 6 at Record Page 55 explaining why some lands were selected for urgency clause and why some notifications were issued earlier and why others came to be issued later.
It is not open to.
the respondents to enlarge their attack on grounds other than those which are stated in para.
16A. Lastly it was urged that the satisfaction under section 17(4) is not subjective satisfaction but must be an objec tive test because section 17(4) should be deemed to be controlled by section 17 sub sections 1 and 2.
In the first place such a, contention was never raised in the High Court.
Secondly, there are number of decisions of the Supreme Court where the opinion which is to be formed on section 17(4) is held to be subjective satisfaction.
Thirdly, 767 the contention does not interpret complete provisions of section 17(1), 17(2) and 17(4).
It is submitted under section 17(1) and 17(2) on one ' hand ,and the power under 17(4) are two separate and independent powers which can be exercised at different stages of the Land Acquisition pro ceedings.
Vide AIR 1970 Allahabad 151 Hakim singh versus State of Uttar Pradesh, under 17(1) possession can be taken without there being an award under section 11 but there has to be a publication of a notice under section 9(1) and also a notification under section 6 preceded by an inquiry under section 5(a).
In such cases and the cases covered by 17(2) the urgency may be determined on an objec tive basis but the whole purpose of section 17(4) is to dispense with an enquiry under section 5(a) which is to be followed again by a notification under section 6 and for such a purpose all that is required is that in the case of any land in the opinion of the appropriate Government the provision of sub section 1 or sub section 2 are applica ble.
In other words the lands must be either waste of arable lands (which is, of course to be determined objec tively) but so far as the question of urgency is concerned it is the opinion that the Government has to form and that is not to be established by any objective test but its subjective satisfaction.
For the Respondents: The Appellant (the State of Maharashtra) tried to argue that lack of bonafides were not argued in the Court below.
In the pleadings of the Respondents (the writ petitioners) it was urged at pages 10 and 11 of the record that in fact it is significant that in some cases the lands which are sought to be acquired for the same purpose vis a vis for development and utilisation of the land as industrial and residential area the urgency clause has not been applied.
It was further stated at page 11 that the power under Section 17(4) has 'been exercised in casual and light heart ed manner .
without there being any proper application of mind to the condition requisite for the exercise of that _power.
The said point was argued before the High Court and the High Court dealt with the same at pages 61 to 70 of the record.
It was argued before this Honble Court that the circumstances under Section 17(4) is not subjective satis faction but an objective test since Section 17(4) is con trolled by Section 17(1) and (2).
It was further argued that the Government never applied its mind nor did it place before the High Court any material to show that there was any urgency with respect to some of the lands and no urgency in respect to the others.
It is admitted that the lands in all these cases were acquired for the same purpose inter alia for the development and utilisa tion of the said lands as an industrial and residential area.
It was further argued that the burden of proof on the facts of these cases would be on the State since the reasons for urgency are only in the knowledge of the authority issuing the Notification.
The cases cited by the Counsel for the State have no application since in those cases the petitioners could establish that the impugned notification was not bona fide.
In this case the respondent, land owners, had in their Writ Petitions specifically raised the question that the authority had not applied its mind and treated it light heartedly 'and the Notification was not bona fide.
The State however did not place any material before the Court to show that the authority had applied its mind or there was any clue to the urgency.
The respondents have 'been deprived of their right to prefer objections under Section 5A of the Act and those objections are to be filed within 30 days.
The notifications in this case have been made at the interval of months and even more than a year.
The notification under Section 17(4) was made with respect to some lands and it was not made with respect to other.
The State has not satisfactorily ex plained the reasons for this.
From all these facts and circumstances the respondents argue that the notification under 768 Section 17(4) was not bonafide and the authority had not applied its mind, and the High Court was right in setting aside the said notification.
|
Civil Appeal No. 1695 of 1968.
Appeal by Special Leave from the Judgment and Order dated 4/5 9 67 of the Mysore High Court in W.P. No. 1416/65.
V.P. Raman, Addl.
, S.K. Mehta and Girish Chandra for the Appellant.
H.R. Datar and N. Nettar, for the Respondent.
The Judgment of the Court was delivered by SHINGHAL, J.
This appeal by special leave is directed against the judgment of the High Court of Mysore dated September 4/5, 1967.
The High Court was moved by the State of Mysore under article 226 of the Constitution for quashing the demand notice dated July 21, 843 1962 issued by the Inspector of Central Excise for the payment of Rs. 2,465.91 as excise duty on the products despatched by the State 's Implements Factory.
The demand was made with reference to the newly inserted item 26AA in the First Schedule to the , hereinafter referred to as the Act.
That item was added to the Schedule by the Finance Act of 1962, and it was claimed by the Central Excise Department that, on the date of the amendment, the State Government was in possession of some stock of iron and steel products, namely, flats, squares and rods in its factory, which had been obtained from their manufacturers when they were not excisable arti cles.
The precise claim of the Excise authorities was that the duty became payable on those articles by virtue of the newly inserted item 26AA because the aforesaid stock of iron and steel products was used for the manufacture of agricul tural implements like 'mamties, pickaxes, 'sledge hammers, shovels and ploughs.
The Assistant Collector of Central .Excise explained in his letter dated June 19, 1962, that the agricultural implements which were manufactured in the State 's Implements Factory fell within the purview of item 26AA as they were forged or extruded during the process of manufacturing the agricultural implements.
It was con tended that the demand was justified because the aforesaid iron and 'steel products, out of which the agricultural implements were manufactured, had not borne any excise duty at all.
An appeal was preferred to the Collector of Central Excise against the demand, but without success.
A revision was taken to the Central Government under the provisions of the Act, but it was also dismissed.
That was why the State Government applied to the High Court for quashing the demand and for setting aside the appellate order of the Collector and the revisional order of the Central Government.
The Central Government traversed the claim of the State Government on the ground that as the rods and bars, which were held in stock by the State 's Implements Factory, were "pre excise stock", and as they were put to further process by forging them into shovels, spades and other agricultural implements, they became liable to duty .
until the "pre excise stock" held by the factory on April 24, 1962, was utilised and converted into forged implements and was cleared from the factory.
It was also urged that the peti tion was not maintainable in the High Court as it raised a dispute between the Government of India and the State Gov ernment within the meaning of article 131 of the Constitu tion.
The High Court rejected both the contentions of the Central Government and quashed the impugned demand notice and the appellate and the revisional orders.
That is why the Union of India has preferred the present appeal.
It is not in controversy that the claim for the levy of excise duty was based on sub sections (1) and (1A) of sec tion 3 of the Act which read as follows, "3(1) There shall be levied and collected in such manner as may be prescribed duties of excise on all excisable goods other than salt which are produced 4 1338SCI/76 844 or manufactured in India and a duty on salt manufactured in, or imported by land into, any part of India as, and at the rates, set forth in the First Schedule.
(1A) The provisions of sub section (i) shall apply in respect of all excisable goods other than salt which are produced or manufactured in India by, or on behalf of, Government, as they apply in respect of good 's which are not produced or manufactured by Government.
" It is therefore quite clear, and is not in dispute before us, that the claim for the levy of excise duty in question could be justified only if it could be shown that excisa ble goods (other than salt) were produced or manufactured in the Implements Factory of the State Government.
It was however admitted in the counter affidavit of the Senior Superintendent of Central Excise as follows, "In the case of the petitioner, since the rods and bars held in stock by the Imple ments.
Factory were pre excise stock and since those rods and bars were put to further proc ess by forging the same into shovels, spades and other agriCultural implements etc.
, they became liable to duty and therefore, duty was demanded on such forged articles during the period that is till such quantities of the bars and rods as were in stock with the facto ry on 24 4 62 were utilised and converted into forged implements and cleared from the facto ry.
" This makes it quite clear that the rods and bars in question were not "produced or manufactured" in the State Govern ment 's implements Factory.
They could not therefore be subjected to the levy of excise duty.
It is true that the rods and bars were utilised for the manufacture of agricul tural implements like shovels and spades; but those agricul tural implements were not of the description specified in item 26AA of the First Schedule with reference to section 3 of the Act.
It is admitted by Mr. Raman that agricultural implements were not included in the First Schedule to the Act and were not excisable articles.
This appears to be so because they are the basic tools of trade by which a vast majority of the citizens of the country earn their livelihood.
There could therefore be no question of levying any excise duty on shovels and spades or other agricultural instruments 'manu factured by the Implements Factory of the State Government and, as has been shown, the rods and bars which formed the pre excise stock of the factory had not been manufactured by the Implements Factory.
Section 3 of the Act could not therefore be invoked to levy excise duty merely on the ground that the "pre excise stock" of rods and bars was utilised for the purpose of manufacturing agricultural instruments.
There is therefore nothing wrong with the view which has prevailed with the High Court in this respect.
845 Mr. Raman tried to argue that the High Court erred in not applying article 131 of the Constitution to the contro versy even though the writ petition was barred thereunder as it fell exclusively within the jurisdiction of this Court under article 131 of the Constitution as a dispute between the Government of India and the State of Mysore.
The argu ment is however futile because there is nothing on the record to show that there was any such dispute between the Central and the State Governments.
As the High Court has pointed out, the Union of India was made a party to the writ petition merely because it had dismissed the revision appli cation of the State Government.
There is thus no merit in this appeal anti it is dismissed with costs.
M.R. Appeal dis missed.
| IN-Abs | The respondent State of Mysore runs an implements Factory.
The first schedule to the , was amended whereby item No. 26AA was inserted by Finance Act, 1962.
On the date when the said amendment came into force the respondent had in his stock, certain iron rods and bars.
After ,the amendment, however, the rods and bars were put through a further manufacturing process and were converted into shovels, spades and other agricultural implements which were not covered by schedule 1.
The Central Excise Inspector issued a demand notice in respect of the said rods and the bars on the ground that they were excisable.
The respondent contended that no excise duty was payable on the said articles because when the amendment came into force, they were already in the stock of the respondent and that they were not manufactured after the amendment came into force.
The contention of the respondent was negatived by the authorities under the Act.
The Writ Petition filed by the respondent under Article 226, was allowed.
Dismissing the appeal by Special Leave, HELD: 1.
Under Section 3 of the Act the excise duty is payable on articles produced or manufactured.
It was admit ted in the counter affidavit of the appellant that the rods and bars were not produced or manufactured in the implements factory of the respondent.
The goods which were made out of the rods and bars were admittedly not excisable goods.
The appeal was dismissed as the goods were not liable to excise duty.
[844 E H] 2.
The contention that the High Court could not have decided the matter in view of the provisions of Article 131 of the Constitution was negatived on the ground that there was nothing on regard to show that there was any dispute between the Central and the State Governments.
The Union of India was made a party merely because it had dismissed the revision application of the State Government.
[845 A B]
|
Civil Appeal No. 1773 of 1971.
(From the Judgment and order dated 20 2 1970 of the Allahabad High Court in Civil Misc.
Writ Petition No. 2943/69) S.C. Manchanda and O.P. Rana, for the Appellants.
V.S. Desai, P.B. Agarwala and B.R. Agarwala, for the Respondents.
838 The Judgment of the Court was delivered by JASWANT SINGH, J.
This appeal by certificate which is directed against the judgment and order dated February 20, 1970, passed by the High Court of Judicature at Allahabad in writ petition No. 2943 of 1969 raises two interesting ques tions viz. ( 1 ) whether carbon paper is paper falling within the purview of the word 'paper ' as used in serial No. 2 of Notification Ng.
ST 3124/X 1012(4) 1964 dated July 1, 1966, issued by the Governor of Uttar Pradesh in exercise of the power vested in him under section 3 A of the U.P. Sales 'Fax Act, 1948 (U.P. Act No. XV of 1948) so as to be liable to sales tax at the point and at the rate specified in the Schedule to the Notification and (2) whether ribbon is an accessory or a part of the typewriter.
It appears that the respondent which is a company incor porated under the Indian Companies Act dealing in carbon paper, typewriter, ribbon, stepler machines and stepler pins, despatches the said goods from its head office at Bombay to its branch office at Kanpur wherefrom sales there of are effected in the State of Uttar Pradesh.
During the course of the assessment proceedings for the assessment year 1956 57, the respondent claimed that carbon paper not being paper falling within the ambit of Entry No. 2 of the Schedule to the aforesaid Notification but a specialised article used for copying purposes, its turnover had to be assessed at the rate of 2 per cent prescribed for unclassi fied goods and not at the rate of 6 paise per rupee i.e. 6% prescribed in the aforesaid Notification.
The respondent further claimed that ribbon being an accessory anti not a part of the typewriter, its turnover could not be subjected to sales tax at the rate of 10% prescribed inter alia for typewriters and parts thereof by Notification No. ST 1738/X I012 1963 dated June 1, 1963.
The Sales Tax Officer, (Section IV), Kanpur, did not accede to the conten tions of the respondent and holding that carbon paper re mained paper even after going through certain chemical processes and that ribbon was a part of the typewriter, taxed the turnover of carbon paper for the period commencing from July 1, 1966, to the end of March, 1967 at 6% and that of ribbon at 10%.
He, however, taxed the turnover of carbon paper for the period April 1, 1966 to June 30, 1966 at 2%.
The validity and correctness of this order in so far as it related to the levy of tax on carbon paper at 6% and ribbon at 10% was challenged by the respondent by means of the aforesaid writ petition before the High Court at Allahabad which by its aforesaid judgment and order allowed the same and quashed the levy.
Hence this appeal.
Appearing in support of the appeal, Mr. Manchanda has assailed the reasoning and approach of the High Court and has vehemently urged that carbon paper does not lose its character as paper even after being subjected to chemical processes and that ribbon is not an accessory but an essen tial part of the typewriter.
We have carefully considered the submission made by Mr. Manchanda but find ourselves unable to accept the same.
839 It is well settled that a word which is not defined in an enactment has to be understood in its popular and commer cial sense with reference to the context in which it occurs.
In Attorney General vs Winstanley (1), Lord Tenterden started as follows: "Now, when we look at the words of an Act of Parliament, which are not applied to any particular science or art, we are to construe them as they are understood in common language.
" In Grenfell vs Commissioners of Inland Revenue (2) Pollock, J, pointed out: "As to tile construction of the Stamp Act, I think it was very properly urged that the statute is not to be construed according to the strict or technical meaning of the language contained in it, but that it is to be construed in its popular sense, meaning, of course, by the words 'popular sense ' that sense which people conversant with the sub ject matter with which the statute is dealing would attribute to it." The word 'paper ' admittedly not having been defined either in the U.P. Sales Tax Act, 1948 or the Rules made thereunder, it has tO be understood according to the afore said well established canon of construction in the sense in which persons dealing in and using the article understand it.
It is, therefore, necessary to know what is paper as commonly or generally understood.
The said word which is derived from the name of reedy plant papyrus and grows abundantly along the Nile river in Egypt is explained in 'The Shorter Oxford English Dictionary (Volume 2) (Third Edition) as "a substance composed of fibres interlaced into a compact web, made from linen and cotton rags, straw, wood, certain grasses, etc., which are macrated into a pulp, dried and pressed; it is used for writing.
printing, or drawing on, for wrapping things in, for covering the interior of wails, etc.
" In 'Encyclopaedia Britannica ', (Volume 13), (15th Edition), 'paper ' has been defined as the basic material used for written communication and the dissemination of information.
" In the Unabridged Edition of "The Randon House Dicition ary of the English Language", the word 'paper ' has been defined as "a substance made from rags, straw wood ' or other fibrous material, usually in thin sheets, used to bear writing or printing or for wrapping things, decorating walls etc.
" From the above definitions, it is clear that in popular parlance, the word 'paper ' is understood as meaning a sub stance which is used for bearing, writing, or printing, or for packing, or for drawing on, or for decorating, or cover ing the walls.
Now carbon paper which is manu (1) [1831] 2 Dow & Clark 302=(1901) ; (2) at 248.
840 factured by coating the tissue paper with a thermo setting ink (made to a liquid consistency) based mainly on wax, non drying oils, pigments and dyes by means of a suitable coat ing roller and equalising rod and then passing it through chilled rolls cannot be used for the aforesaid purposes but is used.
according to 'The Randon House Dictionary of the English Language ' between two sheets of plain paper in order to reproduce on the lower sheet that which is written or typed on the upper sheet i.e. making replicas or carbon copies cannot properly be described as paper.
It will be well at this stage to refer to a few deci sions which confirm our view.
In Kilburn & Co. Ltd. vs Commissioner of Sales Tax U.P., Lucknow(I) a Bench of Allahabad High Court while examining the very same entry in the Notification with which we are concerned in the instant case and holding that "Ammonia paper and ferro paper used for obtaining prints and sketches of site plans are not paper us understood generally and, therefore, will not come within the expression 'paper other than hand made paper ' as used in Notification No. ST 3124/X 1012(4) dated 1st July, 1966, issued under section 3 A of the U.P. Sales Tax Act, 1948" observed : "The word 'paper ' has not been defined in the Act or the Rules, and, as such, it has to be given the meaning which it has in 'ordinary parlance.
Paper, as understood in common parlance, is the paper which is used for printing.
writing and packing purposes.
" In Sree Rama Trading Company vs State of Kerala(2) the High Court of Kerala after a good deal of research held that cellophane is not paper coming within entry 42 in the First Schedule to the Kerala General Sales Tax Act, 1963, as it stood at the time relevant to the year 1966 67.
In State of Orissa vs Gestetner Duplicators (P) Ltd.(3) the HIgh Court of Orissa held that stencil paper was not paper within the meaning of serial No. 7 A of the Schedule to the Notification issued by the State Government under the first proviso to section 5(1) 'of the Orissa Sales Tax Act, 1947 and that sale of stencil paper was, therefore, not taxable at the rate of 7 per cent but is exigible to tax at the rate of 5 per cent.
In Commissioner of Sates Tax, U.P, vs
S.N. Brothers(1) this Court while upholding the decision of the Allahabad High Court which held that 'food colours ' and 'syrup es sences ' arc .edible goods while 'dyes and colours and compo sitions thereof and 'scents and perfume ' did not seem prima facie to connote that they are edible goods observed: (1) 31 S.T.C. 625.
(2) 28 S.T.C. 469.
(3) 33 S.T.C. 333.
(4) 31 S.T.C. 302. 841 "The words 'dyes and.
colours ' used in entry No. 10 and the words: scents and perfumes ' used in entry No. 37 have to be construed in their own context and in the sense, as ordinarily understood and attribut ed to these words by people usually conver sant with and dealing in such goods.
Simi larly, the words "food colours" and "syrup essences", which are descriptive of the class of goods the sales of which are to be taxed under the Act, have to be construed in the sense in which they are popularly understood by those who deal in them and who purchase and use them.
" Bearing in mind the ratio of the above mentioned decisions, it is quite clear that the mere fact that the word 'paper ' forms part of the denomination of a specialised article is not decisive of the question whether the article is paper as generally understood. 'the word 'paper ' in the common parlance or in the comercial sense means paper which is used for printing, writing or packing pur poses.
We are, therefore, clear of opinion that Carbon paper is not paper as envisaged by entry 2 of the aforesaid Notification.
Regarding ribbon also to which the above mentioned rule construction equally applies, we have no manner of doubt that it an accessory and not a part of the typewriter (unlike spool) though it may not be possible to use the latter without the former.
Just as aviation petrol is not a part of the aero plane nor diesel is a part of a bus in the same way, ribbon is not a part of the type writer though it may not be possible to type out any matter without it.
The very same question with which we are here confronted came up for decision before the High Court of Mysore in State of Mysore vs Kores (India)Ltd.
(1) where it was held: "Whether a typewriter ribbon is a part of a typewriter is to be considered in the light of what is meant by a typewriter in the commer cial sense.
Typewriters are being sold in the market without the typewriter ribbons and therefore typewriter ribbon is not an essen tial part of a typewriter so as to attract tax as per entry 18 of the Second Schedule to the Mysore Sales Tax Act, 1957.
" For the foregoing reasons, we do not find any force in this appeal which is dismissed but in the circumstances of the case without any order as to costs.
M.R. Appeal dismissed (1) 26 S.T.C. 87.
| IN-Abs | The Governor of U.P. issued a Notification under Section 3 A of the U.P. Sales Tax Act, 1948, and the Sales Tax Officer (Section IV) Kanpur, ordered the respondent company to pay tax on the turnover of ' carbon paper at 6%, and that of ribbon at 10%, as per entry 2 of the Notification.
The respondent challenged the order in a writ petition before the High Court.
contending that carbon paper was not 'paper ' with the meaning of entry 2 and its turnover was therefore to be assessed at the rate of 2% prescribed for unclassified goods, and that 'ribbon ' being an accessory and not a part of the typewriter, could only be taxed at the rate of 6% and not 10%.
The High Court allowed the writ and quashed the levy.
The appellant contended that carbon paper does not lose its character as paper in spite of being subjected to chemi cal processes, and that ribbon is not an accessory but an essential part of the typewriter.
Dismissing the appeal the Court, HELD :(1) A word which is not defined in an enactment has to be understood in its popular and commercial sense with reference to the context in which it occurs.
It has to be understood according to the well established canon of construction in the sense in which persons dealing in and using the article understand it.
[839 A B] Attorney General vs Winstanley (1831) 2 Dow & Clark 302:(1901) ; , and Grenfell vs Commissioner of Inland Revenue (1876)1 exhibit D. 242 at p. 248 applied.
(2) The word 'paper ' is understood as meaning a sub stance which is used for bearing writing or printing, or for packing.
or for drawing on.
or for decorating, or covering the wails.
Carbon paper cannot be used for these purposes but is used for making replicas or carbon copies, and cannot properly be described as paper.
[839 G, 840 A B] K. Kilburn & Co. Ltd. vs Commissioner of Sales Tax, U.P. Lucknow (31 S.T.C. 625), Sree Rama Trading Company vs State of Kerala (28 S.T.C. 469).
state of Orissa vs Gestetner Duplicators (P) Ltd. (33 S.T.C. 333 ) Commissioner of Sales Tax, U.P.v.
S.N. Brothers (31 S.T.C. 302) applied.
(3) The above mentioned rule of construction equally applies to ribbon.
an accessory and not a part of the typewriter, though it may not be possible type out any matter without it.
[841 D E] State of Mysore vs Kores (India) Ltd. (26 S.T.C. 87) ap proved.
|
il Appeal.
No. 1745 of 1968.
(Appeal by Special Leave from the Judgment and Order dated 13 10 1967 of the Punjab and Haryana High Court in Civil Writ No. 1113 of 1966).
O.P. Sharma, for the appellants.
section K, Mehta, K.R. Nagaraja and P.N. Puri, for the Respond ents, The Judgment of the Court was delivered by BEG, J.
The State of Punjab has come up by special leave against the judgment of a Division Bench of the High Court o[ Punjab & Haryana allowing the Writ petition of the respondents who, it is admitted by the State, are teachers of the Junior Vernacular grade working, on the dates on which they filed the Writ petition, as "promotees" in the senior vernacular grade temporarily but had not been con firmed there.
It appears that the only difference between the junior vernacular cadre and the senior vernacular cadre is that those who teach lower classes were placed in the "junior" cadre and those who teach higher classes were in the "senior vernacular cadre".
But, for some reason, working in senior vernacular cadre was considered a promotion.
After consideration of the whole position, the two grades were integrated by the Government from 1st October.
1957, with retrospective effect, under the Punjab Educational Service 833 (Provincialised Cadre) Class III Service Rules, 1961.
This meant that the Government recognised that both the cadres should be really considered as one and that there were no acceptable grounds for a differentiation.
Nevertheless, it appears that the names of the petitioners were dropped from the junior vernacular cadre as they had been working for more than the probationary period in the senior vernacular cadre.
It is urged that it must be deemed that they were confirmed in the senior vernacular cadre automatically.
However, they had to be "probationers" in the senior cadre for such a result to enure.
We fail to see how they become "probationers" there.
Curiously, the prospects of those who were not considered "promoted" to the senior vernacular cadre and were junior to the petitioners respondents in that cadre, improved as they were offered opportunities of being taken in a "selection grade".
But, no such opportunities were offered to the petitioners on the ground that they had been removed from the junior vernacular cadre.
The names of the petitioners respondents had been automatically dropped from the cadre in which they held their liens having been appointed there initially permanently.
The High Court of Punjab & Haryana held that the peti tioners respondents are entitled to the benefit of their substantive posts, which were still in the junior vernacular cadre, as they were never confirmed in the senior vernacular cadre whatever may be the sentimental satisfaction of being considered as persons "promoted" to and working in the "senior vernacular cadre".
Subsequent events showed that those who are junior to the petitioners, and, for that reason, did not get the opportunity of serving in the "senior" cadre, had better opportunities offered to them without any reasonable ground of discrimination between the two cadres except that the petitioners were seniors and could consider themselves "promoted" because they had been performing the duties of teachers of the "senior" cadre.
The petitioners, after discovering that those who were junior to them and had, therefore, not been given the oppor tunity of serving in the senior vernacular cadre, had a better opportunity of moving into the selection grade, which had not been offered to them, applied for this very opportunity as they still continued in their substantive posts which were in the junior vernacular cadre.
They took up the correct position that they had merely been officiat ing in the senior vernacular cadre but their right places were in the junior vernacular cadre.
The mere fact that they worked in the senior cadre for longer periods than proba tioners would could not give them the status of either more probationers or persons Confirmed in the senior vernacular cadre.
They could not, for that reason alone, be deprived of the benefits of their substantive appointments in the junior vernacular cadre.
Hence, their Writ Petitions were allowed and they were afforded all the benefits which would have accrued to them as members of the junior vernacu lar cadre to which they did not really cease to belong.
Moreover, as already pointed out, the Government had itself considered the position and had integrated the two cadres into one with retrospective effect from 1st October, 1957.
834 The position of the petitioners appears to us to be fully covered by the following rules contained in the Punjab Civil Services Rules Volume I: "3.10.
Unless in any case it be other wise distinctly provided the whole time of a Government servant is at the disposal of the Government which pays.
him and he may be employed in any manner required by proper authority, without claim or additional remu neration, whether the services required of him are such as would ordinarily be remunerated from Union or State revenues, or from the revenues of a local fund.
Substantive Appointment and Lien.
(a) Two or more Government serv ants cannot be appointed substantively to the same permanent post at the same time.
(b) A Government servant cannot be appointed substantively except as a temporary measure, to two or more permanent posts at the same time.
(c) A Government servant cannot be appointed substantively to a post on which another Government servant holds a lien.
Unless in any case it be otherwise provided in these rules, a Government servant on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired on any other post.
Unless his lien is suspended under rule 3.14 or transferred under rule 3.16, a Government servant holding substantively a permanent post retains a lien on that post (a) while performing the duties of that post; (b) while on foreign service, or holding a temporary post, or officiating in another post; (c) during joining time on transfer to another post, unless he is transferred sub stantively to a post on lower _pay, in which case his lien is transferred to the new post from the date on which he is relieved of his duties in the old post; (d) except as provided in Note below while on leave; and (e) while under suspension.
(a) A competent authority shall suspend the lien of a Government servant on a permanent post which he 835 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 Government servant would hold a lien, had his lien not been suspended under rule.
(b) A competent authority may, at its option, suspend the lien of a Government 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 trans ferred, whether in a substantive or officiat ing capacity, to a post in another cadre, and if in any of these cases there is 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) or (b) of this rule, a Government servant 's lien on a tenure post may, in no circumstances, be suspended.
If he is appointed substantively to another permanent post, his lien on the tenure post must be terminated.
(d) If a Government servant 's lien on a post is suspended under clause (a) or (b) of this rule, the post may be filled substantive ly, and the Government 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 re vives.
(e) A Government servant 's lien which has been suspended under clause (a) of this rule shall revive as soon as he ceases to hold a lien on a post of the nature specified in sub clause (1), (2) or (3) of that clause.
(f) A Government servant 's lien which has been suspended under clause (b) of this rule shall revive as soon as he ceases to be on deputation out of India or on foreign service or to hold a post in another cadre: Provided that a suspended lien shall not revive because the Government servant takes leave if there is reason to believe that he will, on return from leave, continue to be on deputation out of India or on foreign service or to hold a post in another cadre and the total period of absence on duty will not fall short of three years or that he will hold substantively a post of the nature specified 'in sub clause (1 ), (2) or (3) of clause (a).
(a) Except as provided in clause (c) of this rule and in note under rule 3.13, a Government servant 's 836 lien on a post may, in no circumstances, be terminated, even with his consent, if the result will be to leave him without a lien or a suspended lien upon a permanent post.
(b) In a case covered by sub clause (2) of clause (a) rule 3.14 the suspended lien may not, except on the written request of the Government servant concerned, be terminated while the Government servant remains in Government service.
(c) Notwithstanding the provisions of rule 3.14(a).
the lien of a Government serv ant holding substantively a permanent post shah be terminated on his appointment substan tively to the post of Chief Engineer of the Public Works Department.
Subject to the provisions of rule 3.17, a competent authority may transfer to another permanent post in the same cadre the lien of a Government servant who is not performing the duties of a post to which the lien relates, even if that lien has been suspended.
" According to the rules set out above, the lien of the petitioners in the junior vernacu lar cadre was retained by them and it could not be suspended by the mere fact that they were performing the duties of teachers working in ' the senior vernacular cadre.
Nothing beyond this was disclosed by the facts of these cases.
The definition of a probationer, given in rule 2.49 is as follows: "2.49.
Probationer means a Government servant employed on probation in or against a substantive vacancy in the cadre of a depart ment.
This term does not, however, cover a Government servant who holds substantively a permanent post in a cadre and is merely appointed on probation ' to another post".
Learned Counsel for the State was unable to substantiate the submission that the petitioners respondents were merely probationers the senior vernacular cadre and not really persons whose substantive posts were in the junior vernacu lar cadre, appointed to perform the duties of persons put in another cadre.
Their duties in the senior cadre involved teaching somewhat higher classes.
This additional experience could not reasonably be looked up as a disquali fication for the selection grade.
The High Court had, therefore, given the petitioner respondents the benefits of the cadre on which their names should have been retained.
Moreover, this is not a question which can arise again as the two different cadres have been merged with retrospective effect from 1st October, 1957.
It meant that they were enti tled to be considered for the selection grade, and, if they satisfy the requirements for selection to get the benefits of it.
Consequently, we dismiss this appeal with costs.
M.R. Appeal dis missed.
| IN-Abs | The respondents, teachers of the Junior vernacular cadre, Punjab, were promoted to the senior vernacular cadre temporarily.
After the expiry of their probationary period, they were not confirmed, but continued to work in the senior cadre and their names were dropped from the junior vernacu lar cadre.
Mean while, other teachers, junior to the re spondents in the junior cadre were offered better opportuni ties of being taken in a "selection grade".
The respondents filed a writ petition in the High Court contending that they were entitled to the opportunity of moving into the selection grade, as they were neither probationers nor confirmed members but were only officiating in the senior cadre while retaining their substantive places and liens in the junior cadre.
The High Court allowed the writ.
Dismissing the appeal the Court.
HELD: The state was unable to substantiate the submis sion that the petitioners respondents became probationers in the senior vernacular cadre.
According to the rules, their lien in the junior vernacular cadre was retained by them, and, it could not be suspended by the mere fact that they were performing the duties of teachers working in the senior vernacular cadre.
[836 D E]
|
Appeal No. 111 of 1971.
(Appeal by Special Leave from the Judgment and Decree dated 30 8 1968 of the Mysore High Court in Regular Appeal No. 165/57) Sachin Chaudhuri and Narayana Nettar, for the Appellant.
K. Sen, K.N. Bhatt and K.R.D. Karanath, for the Re spondent through L.Rs.
338SCI/76 892 The Judgment of A.N. Ray, C.J. and P.N. Shinghal, J. was delivered by Shinghal, J.M.H. Beg, J. gave a separate Opin ion.
SHINGHAL, J.
This appeal by special leave arises out of the judgment of the High Court.
of Mysore dated August 30, 1968, upholding the order of District Judge, South Kanara, dated November 9, 1956.
By that order the District Judge set aside the decision.
of the Board of Commissioners for Hindu Religious Endowments, Madras, hereinafter referred to as the Board, that the institution known as Sri Manjuna tha temple at Dharmasthal, Puttur Taluk, South Kanaka district, was a 'temple ' as defined in clause (12) of sec tion 9 of the Madras Hindu Religious Endowments Act, 1926 (Madras Act II of 1927), hereinafter referred to as the Act.
The Commissioner under the Madras Hindu Religious and Char itable Endowments Act feels aggrieved because the impugned judgment has the effect of taking the temple out of the control provided by the Act.
The respondent in this appeal was the "supplemental" petitioner before the District Judge and was brought on record on the death of Manjayya Heggade who was the original petitioner in the petition under sub section (2) of section 84 of the Act.
The controversy relates to the Manjunatha temple, in Dharmasthal, which is now the name ' of a village in Belthan gady taluk of South Kanara district of Tamil Nadu.
The original name of the village was Mallarmadi.
The locality in which the temple is situated was called Kukya Kudume, but it came to be known as Dharmasthal after the visit of Sri Vadiraja Swamiar of Sode Mutt, Udipi, in the 16th century, to which reference will be made in a while.
It is not in dispute that, even according to the Heggade, Dharmasthal has a number of institutions including the following main institutions, 1.
Nelleyadi Beedu, 2.
Chandranatha Basthi, 3.
Manjunatha temple, 4.
Ammanvaru temple, and 5.
Heggadeship.
These institutions have been shown in exhibit A 59 which is said to be a rough sketch of the Dharmasthal.
It is also not in dispute before us that "Daivas" were first estab lished in Nolleyadi Beedu, by an ancestor of Heggade who was a Jain, and were worshiped there.
Heggade began to give charity to persons of all religions, and the institution became well known and travellers began to visit it in large numbers.
It is the common case of the parties that Sri Vadiraja Swamjar of Sode Mutt, Udipi, who was a Sanyasi, happened to pass that way and was invited by Heggade to stay there.
The Swamiar however refused to accept food there on the ground that it was "Bhuta Kshetra".
Heggade felt very sorry as the great Sanyasi was starving in his house.
It is said that Heggade thereupon arranged to instal the idol of Sri Manjunatha in the "garbagriha.
" The Swamjar was ap peased and performed the first "pooja" in that temple, which thereafter came to 893 be known as Dharmasthal.
This is said to have happened in the sixteenth century and is, at any rate, said to be the origin of the Manjunatha temple in the Dharmasthal campus.
The Board started proceedings under section 84(1) of the Act to decide whether Sri Manjunatha temple was a temple as defined in clause (2) of section 9 of the Act.
Heggade urged before the Board, inter alia, that all the institu tions in Dharmasthal formed a single unit representing a private institution, that it had been rounded by his ances tors on their own private land, that there was no dedication to the Hindus and they could not claim any right of worship, that Dharmasthal was Jain in character, that it was a charitable but not a religious institution, that his status was not akin to that of a mere trustee and that "Heggadeship" was intimately and inseparately connected with the Dharmasthal institution and Manjunatha temple.
The Board made an enquiry and reached the conclusion that Manjunatha temple was a separate entity and was the most important institution and that it was not the private property of the Heggade.
I also held that it was not a Jain institution, but was a Hindu temple, and that it was a religious and not merely a charitable institution for its charity was connected with the temple.
The Board also held that the public had used the temple freely ever since its foundation.
It accordingly decided that Manjunatha was a temple as defined in the Act even though its trusteeship vested in Heggades who were Jains.
As has been stated, an application was made by Manjayya Hegde to the District Judge, under sub section (2) of sec tion 84 of the Act for setting aside the Board 's decision.
It was specifically pleaded in that application that the entire institution known as Dharmasthal was a "composite" institution and that his ancestors always claimed that the Manjunatha Devaru, its properties and deities belonged to them personally and that its 'patta ' stood in their names from time immemorial.
On that basis, it was pleaded further that as the properties were outside the scope of the enquiry under section 84 of the Act, the Act "did not apply and the Board had no jurisdiction to hold an enquiry under section 84.
" A counter affidavit was flied on behalf of the Board in which it was pleaded that Manjunatha temple of Dharmasthal was "an independent entity being a separate temple, owning its own property and having separate income.
" It was pleaded further that there were properties in the name of the deity of the Manjunatha in Mysore State and other places.
The District Judge did not frame any issued but formulated some points for determination including the points whether Manjunatha Devaru was only a part of the institution known as Dharmasthal, and not a separate insti tution in itself, and whether the provisions of the Act did not apply to it ? He recorded the evidence and heId that Manjunatha temple was one of the 3 or 4 shrines maintained from the income of the institution known as Dharmasthal, Heggade was a component part of the institution.
the temple stood on the private land of Heggade, the Manjunatha shrine was a Hindu institution but it was so mixed up and connected with other Jain institutions that it was practically impos sible to separate it, and that Dharmasthal was a happy blending of charity and religion.
The District Judge held further that the Manjunatha shrine was the private 894 temple of the Heggade, it had not been dedicated to the Hindu public, and it was not used by the public as of right.
The District Judge did not decide whether the shrine of Ammanvaru and other deities was a Jain institution.
He accordingly held that though the Manjunatha shrine may be a Hindu shrine, it was private property of the Heggade and the provisions of the Act were not applicable to it.
The Dis trict Judge accordingly set aside the order of the Board dated March 9, 1949.
The Commissioner filed an appeal to the High Court against that judgment of the District Judge dated November 9, 1956.
One of the main questions presented for determina tion before the High Court was whether "all the institu tions" of Dharmasthal formed a single composite institution.
It was not in dispute before the High Court that, apart from the question of Manjunatha temple being an adjunct to the composite Dharmasthal institution, the temple was not an institution at all.
Even the Heggade did not deny the exist ence of Manjunatha temple as an institution and took the specific plea in his affidavit dated July 22, 1949 that the Manjunatha Deity "is a private institution belonging to the Heggade.
" The High Court examined the "crucial question" whether Manjunatha was a temple within the definition of the Act and whether it was a "Religious Endowment" under section 9(11).
It held that the Manjunatha temple was an adjunct to the composite institution of Dharmasthal and according to the customs and usages of the institution that temple could not be separated from the rest of the institution, that Dharmasthal was both a religious and charitable institution, that Manjunatha was a deity worshipped both by the Hindus and the Jains in accordance .with their respective faiths and that it was neither an exclusively Hindu deity nor an exclusively Jain deity.
The High Court referred to the pleadings and the evidence and held that the institution was rounded by a Jain, its administration remained exclusively Jain since its inception, and that as Jains also worshipped along with Hindus, it could not be inferred that there was an implied dedication to the Hindus exclusively.
The High Court thus hold that the temple was not a temple as defined in the Act, and it was therefore not necessary to examine the question whether it was a private temple of the Heggade.
In the result, the High Court took the view that the Act did not apply to the institution and the Board had no jurisdic tion over it.
It therefore dismissed the appeal with costs.
The Commissioner has obtained special leave, and this is how the appeal has come up here for consideration.
As the controversy in this case relates to the applica bility of the Act to the Manjunatha temple, it will be convenient to examine its relevant provisions.
The preamble of the Act states, inter alia, that it is meant to provide for the better administration and gover nance of "certain Hindu religious endowments" described in it.
Section 2 makes it clear that the Act applies "to all Hindu public religious endowments".
Private religious endowments are therefore outside its scope.
Then there is an Explanation to the following effect, 895 "Explanation, for the purpose of this Act, Hindu public religious endowments do not include Jain religious endowments.
" The effect of the section therefore is to exclude not only private religious endowments, but also Jain religious endowments and it is around the provisions of section 2 that the controversy in this case has centred.
The exclusion of Jain religious endowments has been emphasised by section 3(b) which empowers the Local Government to remove the exclusion and extend the provisions of the Act, and the Rules framed thereunder, to Jain religious endowments, subject to such restrictions and modifications as may be considered proper.
As no such extension has been notified, the Act does not cover Jain religious endowments.
It is confined to Hindu religious "endowments" and will not be applicable where there is no such endowment at all.
The expression "Religious endowment" or "Endowment" has been defined in clause (ii) of section 9 as follows, "(11) 'Religious endowment ' or 'Endow ment ' means all property belonging to, or given or endowed for the support of maths or temples or for the performance of any service or charity connected therewith and includes the premises of maths or temples but does not include gifts of property made as personal gifts or offerings to the head of a math or to the archaka or other employee of a temple.
" It follows that "all property" belonging to, or given or endowed for the support of a temple or for the performance of any service or charity connected with the temple will constitute its endowment, including the premises of the temple.
It would therefore be necessary to examine whether there is evidence to prove any such endowment in respect of Sri Manjunatha temple.
In this connection it will be neces sary to examine which property, if any, was endowed to the temple, and by whom, and which, if any, could be said to be the premises of the temple to the exclusion of all other temples ? The expression "Temple" has been defined by clause (12) of section 9 in these terms ' "(12) 'Temple ' means a place, by whatev er designation known, used as a place of public worship and dedicated to, or for the benefit of, or used as of right by, the Hindu community, or any section thereof, as a place of religious worship.
" The definition thus emphasises that only those temples will fall within the purview of the Act which are places of "public religious worship" and are "dedicated" to, or for the benefit of, or are used "as of right" by the Hindu community.
It may be mentioned in this connection that, as has been stated, the District Judge has held that although the Manju natha temple may be a Hindu temple, it is the private temple Of the Heggade and is not a temple expressly dedicated to Hindus or a temple which could be 896 said to have been used or resorted to by the Hindu public as of right.
The High Court has, on appeal, held on the other hand, that Manjunatha is neither an exclusively Hindu deity nor an exclusively Jain deity and that it is not therefore a temple as defined in the Act.
It has therefore not examined the other question whether it is a public or a private temple.
As regards the property of the temple, the High Court has held that it is an "adjunct" to the composite institution consisting of Hindu and Jain Gods and Daivas worshipped by Hindus and Jains.
Counsel for the parties have argued at length on the questions whether Manjunatha temple is an exclusively Hindu temple and whether it is a place of public religious worship dedicated to or used as of right by the Hindu community as a place of religious worship.
There is considerable evidence for deciding these questions, but even if it were assumed that the answer to these questions should be in the affirma tive, that would not be decisive, of the controversy, for the other question would still remain whether it is an "endowment"? It will be recalled ' that by virtue of section 2, the Act applies only to Hindu public religious "endow ments.
" The definition of "Religious endowment" and "Endowment" in clause (11) of section is common.
Accordingly, the questions which arise for consideration in this connection are whether the temple has property belonging to, or given or endowed for its support or for the performance of any service or charity connected therewith.
It has not been disputed before us, and is in fact beyond controversy, that there is considerable movable and immovable property of the Dharmasthal as a whole i.e. the entire complex or campus consisting of Nelleyadi Beedu, Chandranath Basthi, Manjuna tha temple, Ammanvaru temple and the Heggadeship.
But the question is whether there is any such property exclusively of the Manjunatha temple so as to constitute a Hindu reli gious endowment for purposes of section 2 of the Act ? It will be recalled that it is not in dispute here that it were the "Daivas" who were first established in Nelleyadi Beedu and were worshipped there by an ancestor of Heggade who was a Jain.
The High Court has in fact found that it has been clearly established by the evidence on the record that the institution was rounded by a Jain and that ever since its inception its administration has remained in the hands of a Jain, namely, the Heggade.
So when Vadiraja Swamjar of Sode Mutt, Udipi, came there as mentioned earli er, there was only worship of Jain "Daivas" and of "no God".
This is to be found in the report (exhibit A 108) of T. Narayan Nambiyar in the matter of the Manjunatha temple, which was taken in evidence and has been relied upon by the High Court.
It was at the instance of the Swamiar that the idol of Manjunatha was brought and installed in the "garbagriha" and it was he who performed the first 'pooja '.
It was therefore the Swamjar who was responsible for the installa tion of the Manjunatha idol, which was a 'lingam ', in a campus where there were shrines of Devas like Nelleyadi Beedu, the Chandranatha Basthi and several other buildings.
It could not therefore be said that the mere installation of the idol of Manjunatha brought into existence any such property as 897 could be said to belong to that deity or given or endowed for the support of its temple or for the performance of any service or charity connected therewith.
There is, on the other hand, evidence to show that all the buildings and institutions of the Dharmasthal, which was the composite name of the entire campus or complex consist ing of the buildings mentioned in plan exhibit A 59, were situ ated in the land belonging to the Heggade, and of which he held a 'patta '.
This is evident from exhibit A 103 which is a certified copy of the statement of Kumara Heggade dated July 31, 1820, which appears to have been read in evidence with the consent of the parties.
To the same effect is the statement of U. Seetharamayya dated October 12, 1954 who was acquainted with Dharmasthal since 1908.
As it is, the Manjunatha temple does not have even a separate "prakaram".
The shrine of Ammanvaru is in close proximity of the Manju natha temple and within the same "prakaram".
It has not been disputed before us that, as has been stated by U. Seetharamayya, P.W. 2, its important deities are Kalarahu, Kalarhayi, Kumaraswami and Kanya Kumari some of which, at any rate, are the same as the Jain deities worshipped in Nelleyadi Beedu and Badinade both of which are admittedly Jain institutions.
Moreover, Kanya Kumari in Ammanvaru shrine cannot be said to be Parvati, the consort of Shiva, for M. Govinda Psi R.W. 12, who claims to have studied Hindu and Jain religions and was examined on behalf of the Board, has stated that Parvati and Kanya Kumari are "not identical".
The shrine of Annappa Daiva is also situated within the common "prakaram".
The existence of the shrines of Ammanvaru and Annappa Daiva in the same "prakaram" as the Manjunatha temple therefore shows that Manjunatha temple cannot even claim to have any exclusive premises of its own so as to constitute an endowment within the meaning of clause (11 ) of section 9 of the Act.
The High Court has found it as a fact that the shrine of Manjunatha is an "adjunct" to the composite institution of Dharmasthal and according to the customs and usages of the said institution, the shrine of Sri Manjunatha cannot be separated from the rest.
In arriving at this conclusion the High Court has taken into consideration those facts which have been established by the evidence on the record.
It will be sufficient to make a brief reference to the follow ing 14 facts 'which have been mentioned by the High Court, (i) All the shrines in Dharmasthal were rounded by the Heggade who was a Jain.
(ii) All the shrines are situated in close proximity on "wrag" lands of which the 'patta ' is in the name of Heggade.
(iii) The rituals of all the shrines are interconnected.
(iv) All places of worship participate in the installa tion of the Heggade (Exs.
A 58 and A 108).
(v) The 'pooja ' is reciprocal e.g. whenever there is an important ceremony in Maniunatha shrine, special 'pooja ' has to be performed in Chandranatha Basthi which is a Jain institution (exhibit A 108).
898 (vi) All 'prasadam ' is normally given only from Amman varushrine and not from Manjunatha temple, (P. Ws. 3, 4 and 5).
(vii) The festivals, including that relating to "makara shankranti", of all the shrines, are common (P.W.2 and exhibits A 69 and A 70).
(viii) All offerings are made and received for the entire institution and not for any particular deity (Exs.
A 69, A 70 and A 108), and the public do not make any distinc tion in making the offerings and whatever is given is for Dharmasthal as a whole (exhibit A 108).
(ix) On Heggade 's death, 'pooja ' is ' stopped in all institutions until ' purification (exhibit A 108).
(x) "Hoilus" or complaints are made to Dharmasthal as a whole ' and 'prasadam ' is given to the complainants from Ammanvaru shrine Ex A 72).
(xi) Chandranatha Basthi, which is a Jain institution, is closely interlinked with aH the other institutions in Dharmasthal.
(xii) The paraphernalia of "Daivas" (who are Jain dei ties) is kept in Manjunatha and Ammanvaru shrines (exhibit A 108).
(xiii) There is extraordinary unity of interest between the Heggade and Dharmasthal (Exs.
A 107 and A 103) and no distinction is made between the office of Heggade and the deities (exhibit A 104).
(xiv) The deities which had been installed before the installation of the 'lingam ' in the Manjunatha temple con tinued to enjoy their previous importance (exhibit A 105) and Dharmasthal could not be said ' to have been dedicated to Manjunatha but to the earlier deities.
To the above may be added the following further facts, (i) The entire income of all the institutions consti tutes one common fund from which the expenses of all the shrines and the Heggade are: met (Report exhibit B 2 of R.W. 3).
(ii) The vast charity which is undertaken was in exist ence even before the installation of the 'lingam ' in Manju natha shrine (P.W. 3).
(iii) While the 'lingam ' was installed in Manjunatha temple by Vadiraja Swamjar of Sode Mutt, Udipi, as an exclu sively Hindu God, in its present "garbagriha" which exclu sively contains that 'lingam ' and has no non Hindu God, the Jain Daivas have continued to be worshipped side by side, in the adjacent Ammanvaru shrine.
Even in the presence of the Swamiar, the Heggade was present at the time of worship and offered 'Kanikam ' (R.W. 9).
Whosoever went to Dharmasthal, whether a Hindu or a Jain worshipped Manjunatha and the other deities and Daivas alike (exhibit A 108).
(iv) It may be that Brahmins perform 'pooja ' in Manjuna tha temple, but that is done in the presence of the Heggade (R.W. 11) who also worships Manjunatha and controls all the institutions as one integral Dharmasthal.
(v) The Jain shrine of Anna Daiva is also within the same 'prakaram ' in which the temples of Manjunatha and Ammanvaru are ' situated.
899 It therefore appears that the High Court was justified in taking the view that Manjunatha temple is part and parcel of the composite institution known as Dharmasthal and is so inseparably connected with it that it is its integral part.
It cannot therefore be held that the Manjunatha temple is an "endowment" within the meaning of clause (11 ) of section 9 of the Act for it has not been proved that any property belongs to it, or has been given or endowed for its support or for the performance of any service or charity connected therewith, or that it has any such premises of its own as could be said to form its own endowment.
It would follow from what has been said above that even if 'the Manjunatha temple is assumed to be a place used, as of right, for public religious worship by Hindus, it could come under the purview of the Act only if it could be estab lished that it was a 'religious endowment ' within the meaning of section 2, but this has not been proved to be so.
On the other hand it appears that the present institution of Dharmasthal was originally a Jain religious and charitable institution to which property was endowed by the ancestors of the present Heggade who was himself a Jain.
It was that endowment which spread and gained more and more importance over the years because of the offerings made largely by Hindu and Jain devotees and worshippers.
But it has not been established that there is any endowment which could be said to belong exclusively to Manjunatha temple.
Even if any such endowment was made by some one in the name of Manjuna tha temple, (as stated by K.C. Nambayar R.W. 3), it was taken to be an endowment for the entire institution known as Dharmasthal and was treated as such.
The Manjunatha temple cannot therefore be said to be a Hindu religious endowment within the meaning of section 2.
The provisions of the Act are not applicable to it, and the Board clearly erred in holding otherwise.
It has been argued by Mr. Chowdhary for the appellant that generally speaking Hindus include Jains.
According to him, the underlying assumption in the Act is that Jains are also Hindus, and that the fact that Jains also worship in a Hindu temple will not detract from the fact that it is a Hindu temple as it is not necessary that a Hindu temple should be a place exclusively for Hindu public religious worship.
Reference in this connection has been made to The All India Sai Samaj (Registered) by its President D. Bhima Rao, Mylapore vs The Deputy Commissioner for Hindu Reli gious and Charitable Endowments (Administration) Depart ment, Madras 34, and others, ( 1 ) The State of Madras by the Secretary, Revenue Department, Madras and another vs The Urumu Seshachalam Chettiar Charities, Tiruchirapalli, by its Board of Trustees and others,(2) and section Kannan and others vs The All India Sai Samaj (Registered) by its President, D. Bhima Rao, Mylapore(3).
It will be sufficient to say that what section 9(12) of the Act requires by way of definition of a 'temple ' is that for purposes of the Act a 'temple ' should be dedicated for public religious worship, as of right, and it would not detract from its character as such if Jains also worship there.
The argument of Mr. Chowdhary is, however, (1) (2) (3) 900 futile because, as has been mentioned, the provisions of the Act will not be attracted to the Manjunatha temple in the absence of any evidence to prove the existence of an endow ment for it.
It has next been argued by Mr. Chowdhary that unless the temple of Manjunatha could be shown to be a Jain endowment it would come within the definition of 'temle ' in the Act.
This argument has only to be stated to be rejected because, as has been shown, there is no evidence to show that there is any endowment for the Manjunatha temple as .such, and the temple is a part and parcel of Dharmasthal which came to be endowed in the facts and circumstances mentioned above.
An ancillary argument has been made that an infer ence of Hindu endowment for the benefits of the public should be drawn from the facts that the deity belongs to the Hindu Trinity, the architecture of the temple is that of a Hindu temple, the rituals are performed by Brahmins ac cording to Hindu form of worship and honey is used for "abhisheka" which is contrary to the Jain form of worship.
We have already assumed that the temple possesses the char acteristics which make it a Hindu temple, but even so there is no justification for the argument that there is any endowment for it as such.
Then it has been argued by Mr. Chowdhary that Manjunatha temple is not an "adjunct" to the composite institution of Dharmasthal for it is the most important temple in the campus.
It has been urged that mere common management .and control cannot justify the argument that Manjunatha temple is an inseparable part of the Dharmasthal It is not neces sary to examine this argument once again, for we have given our reasons for taking a contrary view.
Another argument of Mr. Chowdhary is that formal dedica tion of the endowment to the temple of Manjunatha was not necessary and that its user by the Hindus as of right would be enough to prove the initial dedication.
Reliance for the argument has been placed on B.K. Mukherjee on the Hindu Law of Religious and Charitable Trusts.
third edition, page 27, which makes a mention of the rituals to be observed when a donor wants to consecrate a temple and establish a deity in it.
It may be that, in a given case, it may be difficult to prove the original dedication because of the lapse of con siderable time but, in the present case it would not be possible to conclude that there was any such dedication because there is nothing to show how Vadiraja Swamiar, who installed the 'lingam ' in Manjunatha temple, could be said to be a donor when the property did not belong to him, In the view, we have taken, we find no force in this appeal and it is hereby dismissed with costs.
BEG, J. I agree with the order proposed by my learned brother Shinghal.
But, I would like to indicate my own reasons in this case for reaching this conclusion.
The following facts appear from the petition filed on 22nd July, 1949, by the Heggade or trustee of the Manjunatha temple, and from affidavits and other documents filed either in support or in opposition to it, in the Court of the District Judge of South Kannara, in proceed 901 ings under Section 84(2) of the Madras Hindu Religious Endowments Act of 1927, (hereinafter referred to as 'the Act '): In 1926, the Manjunatha temple was exempted by a Government notification from the operation of the provisions of the Madras Hindu Religious Endowments Act 1923.
On 28th June, 1945, the Board, which had been set up under Section 10 of the Act of 1927, informed the Heggade that it was examining the position afresh whether the exemption which had been granted in 1926 should be withdrawn.
After due enquiry the Board had moved the Government on 26th October, 1945, to cancel the exemption and it was cancelled by the Government on both December, 1945, under the provisions of Act 2 of 1927.
On 7th February, 1946, the Heggade had made an application to the Government to review the cancellation.
Thereupon, the Government directed the Board to enquire into the whole question again.
That enquiry before the Board took place on 27th July, 1946.
The Board gave its decision on 9th March, 1949, holding that the temple was covered by the provisions of the Act.
It was in circumstances stated above that the Heggade had made an application before the District Judge after the coming into force on May 15, 1946, of the amending of Act 10 of 1946.
The whole proceeding before the District Judge took place as a fresh and original trial in the course of which detailed oral and documentary evidence was produced in support of the respective cases by the two sides to the dispute which were: the Heggade of the Jain Dharamas thala, of which the temple was said to be a part, and the Board of Commissioners under the Act (probably substituted by the Commissioner after the repeal of the Act and its substitution by other enactments on the subject).
There was no argument before us on the question whether the proceedings were governed by the provisions of the Act before its amendment in 1946 or its provisions as they stood after the amendment.
But, it appears to me that the case proceeded on the footing that the amended Act, which had come into force before the Heggade had petitioned to the District Judge, governed the rights of the parties and the scope of the enquiry.
The question whether the Institution known as Dharmasthala included the Manjunatha temple or whether Manjunatha temple could be said to have a separate legal entity of its own as an Institution seems to me to be covered by the provisions of Section 84 as they stood both before the amendment in 1946 and after it was amended in 1946.
An appeal to the High Court, however, lay under the amended provisions only, There was no objection to the appeal to the High Court on the ground that the unamended provisions did not contain such a right.
Here, I may, for the purpose of clarifying the exact scope of the enquiry out of which the case now before us by special leave has arisen, reproduce the provisions of Section 84 of the Act both before and after its amendment in 1946.
The unamended provisions of Section 84 read as follows: "84(1) If any dispute arises as to whether an institution is a math or temple as defined in this Act or whether a temple is an excepted temple, such dispute shall be decided by the Board.
902 (2) Any person affected by a decision under sub section (1) may, within one year, apply to the Court to modify or set aside such decision, but, subject to the result of such application, the order of the Board shall be final".
After the amendment by Act X of 1946, Section 84 reads as follows: "84(1) If any dispute arises as to (a) whether an institution is a math or temple as defined in this Act, (b) whether trustee is a hereditary trustee as defined in this Act or not, or (c) whether any property or money endowed is a specific endowment as ' defined in this Act, or not.
Such dispute shall be decided by the Board and no Court in the exercise of its original jurisdiction shall take cognizance of any such dispute.
(2) Any person affected by a decision under sub section (1), may within six months apply to the Court to modify or set aside such decision.
(3) From every order of a District Judge, on an application under sub section (2), an appeal shall lie to the High Court within three months from the date of the order.
(4) Subject to the result of an applica tion under subsection (2) or of an appeal under Sub section (3), the decision of the Board shall be final.
(Substituted by Madras Act X of 1946)".
The case of the Heggade or the managing trustee was far from consistent.
He took up the following positions: firstly, that the temple was "private" and not a public temple and was exempt from the provisions of the Act for that reason; secondly, that the temple was a Jain institution, or, an integral part of it, and, therefore, excluded from the purview of the Act; and, thirdly, that the temple, even if it was to be deemed to be a Hindu temple, as a place at which the Hindu public could worship as of right, was really not separable from the larger Jain institution, so that, irrespective of the character of worship or the beliefs of the worshippers at the temple, it was not an institution which could be viewed separately from the Dharamasthala or be held to be just a Hindu temple as an "institution '.
The Board considered the Heggade 's case to be "that the Institu tion is a unique institution where a Hindu temple was round ed and managed by a Jain family".
A subtle distinction was thus made between the temple as a place of worship and as a part of a larger Jain institution.
Although, I am doubtful of the correctness of this distinction, on facts, yet, for the reasons given below, I do not consider this to be a fit case for interference with the findings of the High Court, accepting the correctness of this distinction, on the par ticular facts of the case before us.
903 It seems to me that the question whether the Manjunatha temple could be described as a Hindu temple as defined by the Act, could be conclusively answered by a reference to a number of admissions of the Heggade and his witnesses.
Indeed, the exemption of the temple from the provisions of the Act by the State Government in exercise of its powers under Section 3(1) of the Act, could be sought by the Heg gade only on the assumption that the temple constituted a Hindu religious endowment which ought to be exempted from the operations of the provisions of the Act.
If it was exempt by virtue of a statutory provision from the provi sions of the Act, as a Jain institution, there was no need for an order to exempt it.
The scope of proceedings which have come up before us seems to go no further than resolu tion of certain disputes.
They may, however, involve making of certain declarations.
The origin of the temple was said to be given in a document containing a statement of 1806, 'by the then Dharmasthala Heggade, produced by the managing Heggade, which runs as follows: "There was formerly a woman called Amoo Devi Ballalthi placed there by the favour of God to perform the ceremonies.
The God 's name was Durga Amba Kallarkie, but was subsequently changed to Kanya Kumari.
God appeared to the woman in a dream and revealed himself to her telling her he would remain in her house and 'she should therefore procure a bed and a light for him to perform ceremonies, also that she should build another house near to his to perform ceremonies in and that her children and heirs should accordingly succeed her.
Under this arrangement, the temple shall ever flourish.
As related before, the God in the shape of a woman revealed himself to Ballalthy and the Ballalthy acted accordingly.
In the 1396 Sahvahanam, the Peer of Udipi, Wadirajas wamy, arrived at Dharmasthala where the Bal lalthy ordered him to prepare his dinner and on the next day to leave the place.
The Peer replied: "This is the residence of Devil.
I must establish God in it before I eat my din ner".
On this, the Ballalthy consulted he God in her sleep, who appeared and encouraged her, desired her to give the Peer whatever was required and told her he would establish the Kuddera God there saying 'you will tell this to the Peer who on hearing it will eat his dinner '.
When I bring the God from Kuddera you will have a place prepared on the left hand side for his residence and a Brahmin appointed to perform ceremonies.
"On the same evening the Manjunatha (Kudder God) was brought and a house built and he was lodged in it on the next morning, this was all seen.
The Ballalthi informed the Peer of this.
He accordingly came and after dining departed.
Sometime afterwards the Ballalthy built a house on the right hand side and made it the residence of the God and Brahmins were ap pointed to perform ceremonies to both.
The old God (viz., that of the Ballalthy) some time afterwards told the Ballalthy he had appointed the devil Kulataya to preside over the offerings and therefore she must build a house for him, 904 to expend all the religious offerings proper ly, should any dispute arise, proper investi gations were to be made. 'Some delay being made in the collection of the offerings by Kulataya, Annappa, another Devil was fixed, for whom another residence was built and four people were chosen to superintend the chari ties which the offerings admitted of. ".
As the Board observed, it appeared that Sri Manjunatha idol was installed on the occasion of Vadirajaswamy of Udipi 's visit to the Dharmasthala.
This was taken to be the introduction of the worship of God as opposed to that of the Devil.
Sri Manjunatha was the installed God.
It was as serted that this was in accordance with Jain beliefs.
It was said that God spoke through the Heggade who acted as the oracle and used to answer questions put to him by devotees at special sessions arranged for this purpose.
It was, however, clear that Hindus in general were not prohibited from worshipping at this temple.
They had worshipped here long enough freely and publicly to acquire the right to worship as members of the Hindu public in general.
This right, I think, could not now be denied to them whatever be its origin.
After an elaborate discussion of the nature of beliefs and worship, the Board had concluded: ". it is clear that Shri Manjunatha Temple, Dharmasthala, Puttur Taluk, South Kanara District is a 'temple ' as defined in Madras Act II of 1927 and we decide accordingly".
When the matter went up before the District Judge under Section sub.
section (2) of the Act, the District Judge, after discussing the evidence, recorded his conclusion as follows: "Therefore it appears to me that taking into consideration all these circumstances the claim of the petitioner that this Shri Manju natha Shrine though it may be a Hindu one in his private temple seems to be well founded and it is not a temple which is either ex pressly dedicated to the Hindu public or which has been used or resorted to by the Hindu public as of right".
It is difficult for me to understand where the District Court found the law which requires "express" dedication for use by the Hindu public or why he thought that the public had not acquired a right to worship.
Its findings, at any rate, carried with them the implication that, although there was a dedication, it was for "private" purposes.
I find it difficult to conceive of such a transaction.
Dedication to a deity necessarily implies a cessation of individual human ownership.
The dispute was then taken to the High Court of Mysore, which reached the conclusion, after a detailed discussion of the whole evidence: "If, 'Sri Manjunatha ' were a Hindu deity exclusively and not a deity worshipped by the Jains as well, it is inconceivable that the name 'Manaya ' should be found among 9 Jains also.
In our opinion, Sri Manjunatha is a deity worshipped 905 both by the Hindus as well as the Jains in accordance with their respective faiths and it is neither an exclusively Hindu deity nor an exclusively Jain deity".
It then stated its views as follows: "Since the institution is not a 'Temple ' as defined in the Act, the further question whether it is a private temple of Nellyadi Beedu family as contended by the Neggade does not arise for determination.
The proceedings before the Board and the Court below are under the Act.
In view of our finding that the Institution is not a 'temple ' under the Act, the Board has no jurisdiction over the Institution.
Having held that the Act has no application to the Institution and the Board has no jurisdiction over it as contended by the Heggade, the Court below should have desisted from giving any finding on the ques tion whether it is a private temple of Nellya di Beedu family.
We express no opinion on the said issue".
The High Court 's view seemed to be that there was a "dedication" but for mixed purposes Outside the Act.
Jain beliefs, as distinct from generally held and accepted Hindu beliefs, the origin and nature of the endowments, the estab lished practices and customs relating to management of the temple, the receipt and disbursement of income of what was held to be a single institution called Dharmasthala, had been taken into account by the High Court in order to decide whether "the institution" is a "temple" as defined in the Act or something more.
Its opinion seemed to be that the real question to be decided here was not whether there was a temple, as defined by the Act, but whether the temple, which existed there, was an inseparable part and parcel of a Jain institution which was outside the Act, or, it was an insti tution which, taken by itself, was covered by the Act.
If the temple was, so to speak, a mere appendage of the larger multi purposed institution, all the parts of which were managed as a single entity, the temple could not, in the opinion of the High Court, be "the institution".
Although, I am prepared to accept the High Court 's findings on questions of fact, I do not find it possible to agree with the High Court 's view that, if a place of worship is open to both Jains and Hindus in general, or, has a mixed character, it is not a temple within the meaning of that term as defined in Section 9, sub.
section (12) of the Act.
All that Section 9, sub.
section (12) requires is that it should be a place of worship either dedicated for the benefit of or used as of right by the Hindu community or a section thereof as a place of religious worship.
The word exclusively is not there at all so as to justify any exclusion of a place of worship from the definition of a temple on the ground that the place of worship is not confined to worship, as a matter of right, to either Hindus as members of the general public or to any section of Hindus.
The Act does not define the term "Hindu".
This word has had a fairly wide connotation.
In origin, it indicated people living in the Indus region.
It is only by subsequent usage and extension of meaning 906 that the word acquired a religious, and, therefore, in this sense, a more limited significance.
But, in some contexts, the term.
"Hindu", even today, stands for Indians in gener al.
In foreign countries all Indians are sometimes described as "Hindus".
Even as a term used for Indians professing a particular type of beliefs, which are presumed to have an indigenous origin, it is wide enough to include Jains and Sikhs.
Hence, this is the meaning given to the term Hindu in the Hindu Succession Act.
In a statute deal ing with religious endowments, the term, even though not defined, may be presumed to stand for people of this country with certain religious beliefs held or forms of religious worship practised by people of this country originally.
But, this would also embrace a very wide sector of the public.
And, in any event, there is nothing whatsoever in the definition of "temple" by the Act to justify the infer ence that Jains or any other group of person must be exclud ed from worship before it can be a "temple".
For reasons given above, I am unable to read into the defi nition of the word, "temple", given in the Act, the idea of excluding from the benefits of the Act temples open for worship to Hindus of all sects and beliefs.
This means that a place of worship where Jains, as a section of Indian citizens, even when distinguished by their special doctrines and practices from the rest of the Hindus, worship together with Hindus of other sects, could not be a temple outside the Act.
All that the Act requires is that Hindus in gener al, or even a section of Hindus, should be able to worship there as of fight.
This requirement is, in my opinion, satisfied by Shri Manjunatha temple on the findings of the High Court which I accept, not without hesitation, as correct.
The view I have taken above is, however, not enough, in my opinion, to dispose of an issue under section 84(1)(a) of the Act.
It has to to borne in mind that the issue to be decided under Section 84(1)(a) of the Act is whether an "institution" is a math or temple as defined in the Act.
It is not whether a particular place is a temple, in the sense that it is set apart for worship by the Hindu public in general or a section of it.
It is whether an "institution" itself is a temple as defined by the Act.
The term temple has been defined in section 9(12) of the Act as follows : "9(12) 'Temple ' means a place, by what ever designation known, used as a place of public religious worship and dedicated to, or for the benefit of, or used as of right by, the Hindu community or any section thereof, as a place of religious worship".
It, therefore, becomes necessary, in order to decide a dispute under section 84(1)(a) whether a particular place is a temple as contemplated by the Act.
But, that is not enough for the decision of the whole issue to be decided under Section 84(1)(a) of the Act.
For that purpose, atten tion has to be also directed towards deciding the question whether the "institution" to be considered is a temple and nothing more.
If the temple, as a place of worship, is an integral part of an institution, so that it is not separable as an institution, in itself, the mere fact that there is a 'temple ', as defined by the Act, where 907 Hindu members of the public worship as a matter of right, will not do, In such a case, the "institution" is not the temple,although a temple can, by itself, be an institution.
The term "institution" is not defined in the Act of 1927, although, in the more elaborate provisions of Madras Hindu Religious and Charitable Endowments Act XXII of 1959, there is now definition of the term "religious institution" as well showing that this concept is wider than that of a temple.
If, therefore, there is a distinction between the mean ings of "temple" merely as a place of worship, as defined in Section 9(12), and a "temple" as an institution, as there seems to me to be, an authority deciding the issue whether it is an "institution", as contemplated by Section 84(1)(a) of the Act, will have to consider whether the history, the beliefs lying at the inception and sought to he propagated, the forms of worship meant to be kept alive, the prevalent customs and practices, the exact nature and process of the endowments connected with the institution, the established rules for its management, the objects to be carried out by those in charge of the endowment, taken together, would justify the inference that a particular "temple", as defined by the Act, is also a separate or separable institution by itself or is just an integral and organically inseparable part of an institution or organisation outside the Act.
These wider aspects, which may not appear to be relevant at first sight, seem quite necessary to consider when we close ly examine the nature of the issue contemplated by Sec tion 84(1)(a) of the Act and decided by the High Court.
In the case before us, the findings of the High Court show that the institution or organisation of which Manjuna tha temple is an inseparable part, is predominantly Jain in character.
On such a finding, it would be exempt from the operation of the Act by reason of the explanation to section 2 excluding Jain "religious endowments" from the benefits of the Act.
It may be that very good grounds could be given for holding that the temple is a separable or separate entity dedicated, by user, for worship by Hindus in general, without restriction of worship by Jains only as a matter of right.
But, as two views seer, to be reasonably open on the question whether it is such a separate or separable insti tution or entity: I do not consider it fit to be reopened by us under Article 136.
A consideration of the property which belongs to or is "endowed for the support of maths or temples or for perform ance of any service or charity connected therewith and includes the premises of maths or temples" may also become necessary so as to determine the character of an endowment as a part of the "institution" and the process by which it took place.
The institution endowed, on the findings of the High Court, being more than or wider than the Manjunatha temple, is not just a Hindu temple although a temple, by itself, could be such an institution if it were a separable entity.
The origin and process of dedication is not always found embodied in a document.
Where the dedication itself is evidenced by a document, its objects, such as they may be can be determined by interpreting the document which makes the task of the authorities deciding the question generally easier.
There are, however, many cases in 8 1338SCI/76 908 which dedication or endowment of property for a particular purpose has to be inferred from immemorial user of a property in a particular manner or from the conduct of a party, such as permission to build a road for use by the public or permission to bury the dead on a piece of land.
The last.
mentioned type of case may also give rise some times to an estoppel against the owner of the land.
Cases where an inference of "dedication" results from what may be considered immemorial user or a kind of permissible user giving rise to an estoppel, because others have spent money or done 'some act on the strength of 'a licence or permission to use the land for a particular purpose, are not uncommon in our country.
They should not, as Lord Macnaghten hinted in Bholanath Nundi vs Midnapore Zemindary Co. Ltd.,(1) be complicated by resorting to the peculiar English notions of dedication, when he said: "It appears to their Lordships that on proof of the fact of enjoyment from time immemorial there could be no difficulty in the way of the Court finding a legal origin for the right claimed.
Unfortunately however (in the lower Courts) the question was over laid, and in some measure obscured, by copious references to English authorities and by the application of principles or doctrines, more or less refined, rounded on legal conceptions not altogether in harmony with Eastern no tions".
After quoting the passage, set out above, Lord Radcliffe, in Lakshmindhar Misra & Ors.
vs Rangalal & Ors.
,(2) pointed out (atp. 58) about such dedications in English law: "But dedication is only known to English law as something equivalent to an irrevocable licence granted by the owner of soil to the use of the public.
Dedication of a piece of land to a limited section of the public, such as the inhabitants.
of a village, is a claim unknown in law, and evidence limited to such special user would not justify a finding of dedication: see Poole vs Huskinson, ; (63 R.R. 782), Hildrath vs Adam son; , ; (125 R.R. 794).
Berrnondsey vs Brown, It was explained in Lakshmidhar Misra 's case (supra) that the doctrine of lost grant originated in English law "as a technical device to enable title to be made by prescription despite the impossibility of proving immemorial user".
Prescription by a convention,was deemed to start in 1189, when Normans conquered England.
The real basis of such rights in English law seemed to be prescription.
In this very case, differences were pointed out between a dedication and a customary right enjoyed by people of a locality to use a particular piece of land on certain occa sions.
It was indicated here that a. dedication, by pre sumed lost grant, in English law, unlike.
customary rights, which (1) 31 I.A. 75.
(2) A.I.R. 1950.
P.O. 56.
909 may become attached to land, postulates a grantee and the creation of an estate.
Although certain essential or basic prerequisites of a valid trust in English law, such as the three reasonable certainties laid down by Lord Eldon in Knight vs Knight(1) that of the obligation to be carried out, that of the subject matter or of property affected by it, and that of the object to be served or the persons to be benefited are required in this country too for valid endow ments no less than they are in England, yet, valid dedica tions can be inferred, under our law__, without showing compliance with at least some of the technical requirements of English law.
Dedications in Hindu law do not require acceptance of property dedicated for a religious or a public purpose.
In Monohar Ganesh V. Lakhmiram(2), a rule of Hindu law coming down from ancient times was thus stated: "A Hindu who wishes to establish a religious or charitable institution may, according to his law, express his purpose and endow it, and the ruler will give effect to the bounty or at least protect it so far, at any rate, as is consistent with his own Dharma or conception of morality".
Neither a document nor express words are essential for a dedication for a religious or public purpose in our country.
Such dedication may ' be implied from user permitted for public and religious purposes for sufficient length of time.
The conduct of those whose property is presumed to be dedicated for a religious or public purpose and other.
circumstances are taken into account in arriving at the inference of such a dedication.
Although religious ceremo nies of Sankalpa and Samarpanam are relevant for proving a dedication, yet, they are not indispensable (see: B.K. Mukherjee on the "Hindu Law of Religious.
and Charitable Trusts" Third Edn.
1970 p. 80).
The question of an implied dedication by user by the public is particularly important in cases like the one before us where a claim that a trust is private or sectarian in nature is set up against a wider claim on behalf of the general public.
In Deoki Nandan vs Murlidhar(3), this Court said: "the distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof.
While in the former the bene ficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment".
In B.K. Mukherjea 's Tagore Law Lectures on the Hindu Law of Religious and Charitable Trusts (1970) (3rd edition), we find the following passage at page 143: (1) ; (2) 1. , 263; (3) ; 910 "In cases where no express dedication is proved, the character 'of the endowment must always be a legal inference from proved facts.
As in the case of highways, long user is.
undoubtedly a material element from which an inference of dedication may arise.
If the public have been in the habit of worshipping in the temple in an open and unconcealed manner, for a long period of time, and were never denied any access to it, that would be a strong evidence of dedication.
With regard to period of user, no hard and fast rule has been laid down. 'There is no minimum which must be fulfilled, and there is no maximum which compels the inference '.
Each case would depend upon its own circumstances.
Besides user by the public, conduct of the founder and his descendants is also relevant, and if they in fact held out the temple to be a public temple, a very strong presumption of dedica tion would arise".
Cases are also cited there where reliance had been placed upon circumstances such as the structure or the location of a temple outside a private residence or dwelling so as to be exposed to public view and ' worship by members of the gener al public to infer dedication for the public.
In Pujari Lakshmana Goundan vs Subramaniya,(1) the question for determination was whether a Hindu temple round ed between 1841 and 1856 had been dedicated for use by the public by its founder who had executed no deed showing this.
But, the founder, Lakshmana Goundan, was shown to have in stalled an idol at his house and allowed Brahmins and Hindus to worship the idol as if it was a public place of worship.
The Hindu public was admitted free of charge, though only on certain days in the week, in the greater part of the temple, and, in one part only on payment of a fee, and, in the inner shrine, not at all.
It appears that the income from offer ings and fees was spent by the Pujari founder on the temple and the idol as well as on himself.
Nevertheless their Lordships of the Privy Council held that Lakshmans Goundan, having held out and represented u:, the Hindu public that the temple was for their benefit, the inference was irre sistible that had dedicated the temple for use by the public.
In B.K. Mukharji 's Lectures (supra), the facts of this case have been cited as an example of an application of the principle of estoppel.
Our law reports abound with similar cases where dedication by founders or owners is inferred or presumed, irrespective of their own religious persuasions, from ' the purposes for which a piece of proper ty has been used for long enough.
In some cases the ele ments of an estoppel are present.
But, the basis of such dedications seems, in many cases of this type, to be, strictly speaking, nothing more than a presumption from certain ' facts.
Perhaps we could describe it, in most cases of this sort, as a "deemed dedication" although it must not be confused with a fiction.
It is, after all, an inference from facts which must exist and lead to the con clusion deduced.
(1) 911 In view of tiffs well established doctrine .of.
implied endowment of property, by its long user for a particular religious or public purpose.
, based on a presumed consent of the owner, I do not think that the High Court could be held to have reached a wrong conclusion even if it has inferred that, whatever be the origin of the Manjunatha temple, it had become a separate institution with an endowment of its own consisting at least of the land over which the temple had been built, 'the building, and the idol installed with free access to it by the Hindu public in general which made offerings even though Jains also worship there.
Neverthe less, in view of the discussion of a good deal of evidence of the peculiar composite character of the institution known as Dharmasthala, and, bearing in mind our general rule of practice that we do not disturb findings of the final Court of fact where two views are possible, I do not propose to differ from the conclusion reached by the High Court that the temple was not a separate institution.
The Manjunatha temple, on the findings of the High Court, which we are upholding, had become an accretion or growth on the body, if one may so .out it, of the institution known as Dharmastha la, even though it could be removed from that body by a surgical operation.
It is not for us to say, on the find ings before us, whether a situation has arisen in which a surgical operation may be called for.
Such an opinion can only be given upon the results of a more thorough investiga tion 'into the objects of the institution, its properties, the sources of its income, and the manner in which they are utilised than we have before us.
The question which troubles me, however, is whether a religious 'institution or even that part of it to which members of the public make .contributions, through their offering and gifts, is to be left entirely uncontrolled by authorities specially appointed by the State in order to see that such income or donations are not misused or are uti lised for the purposes for which they are meant.
It seems to me that religious beliefs, professions, and practices, which have a powerful hold over the minds and feelings of the people, particularly in our country, should not be permitted to become mere cloaks for exploiting the credu lity of the simple minded and the ignorant and unsophisti cated.
When a religious institution becomes a means of obtaining money or material benefits, in the form of offer ings or donations or gifts, as it generally does, from members of the public, a danger of its misuse can only be effectively averted.
by appropriate supervision.
It seems to me that this is the whole purpose of the Act. 'The income from the public, through a religious institution, seems to me to bring in that secular aspect which justifies interference by State authorities through adequate supervi sion.
However, these are matters which so far as religious endowments, such as the one before us, held to be predomi nantly Jain, for the reasons given by the High Court, are concerned, the State Government can take into account in deciding whether it 912 should exercise its powers under Section 3(2) of the Act, to extend the benefits of the Act to them, or, if necessary, to amend the Act.
The District Court did not specifically frame or try any issue on the question whether any endowment existed at all.
It had framed the following points for determination: "( 1 ) Is the Sri Manjunatha 'Devaru only a part of the institution known as Dharmasthala and not a separate institution in itself?.
(2) Is the Dharmasthala a charitable institution? (3) Is the Dharmasthala and in particular the Manju natha Devaru not an exclusively Hindu place of worship ? If not do not the provisions of the Hindu Religious Endowments Act apply? (4) Is the Manjunatha Devaru a private place of wor ship.
(5) Is the order of the Board dated 9th March 1949 liable to be set aside?" The High Court also did not give the finding that no endowment whatsoever exists.
The extent of property cov ered by any endowment was also not really investigated as to issue was flamed on it.
Atleast the structure of the temple with the idol installed and the ground upon which the temple stands must be deemed to be dedicated even though these may not, for purposes of management, form separable units.
The High Court took the view that the dispute falling under Section 84(2)(a) could be disposed of by deciding issues or points numbered 1 and 3 only.
The District Court had chosen to resolve the principal dispute that arose by deciding issue No.4.
Other questions were treated as merely subsidiary or even unnecessary to decide.
I have tried to indicate above what seemed to me to be the real nature of the proceedings in the course of which a dispute covered by Section 84(1)(a)of the Act arose and also the principles on which such a dispute should, in my opin ion, be resolved, although I do not consider it necessary, in exercise of the special powers of this Court under article 136 to interfere with the High Court 's findings of fact; because I think that the powers of the Government which is not even a party, acting under Section 3 of the Act, are not restricted by decisions given by Courts in resolving a dispute covered by Section 84(1) of the Act.
All that the Government was bound to do under Section 3 of the Act was to consult the Board.
The Madras Hindu Religious and Charita ble Endowments Act of 1959, which contains the law governing the subject today, has section 2 relating to a general power to extend the provisions.
of the Act to Jain public reli gious institutions and endowments as a mater of policy, irrespective of the. character of management, whether good or bad and Section 3, for the extension of the provisions of the Act to particular.
Jain religious 913 and charitable institutions, in cases of mismanagement, after due inquiry.
These powers are not, in any way, affected by the dispute which has been brought before us under the provisions of an Act repealed long ago.
For the reasons given above, I concur with the order proposed by my learned brother Shinghal that this .appeal be dismissed and parties be left to bear their own costs throughout.
V.P.S. Appeal dismissed.
| IN-Abs | Section 9(12) of the Madras Hindu Religious Endowments Act, 1926, defines 'temple ' as a place, by whatever designa tion known, used as a place of public worship and .dedicated to, or for the benefit of, or used as of right by the Hindu community, or any section thereof, as a place of religious worship Section 9(11) provides that all property belonging to, or given or endowed to the support of a temple or for the performance of any service or charity connected with the temple will constitute its endowment, including the premises of the temple.
Section 2 provides that the Act applies to all Hindu public religious endowments.
The Section, the Explanation to the section, and section 3(b) shown that Hindu public religious endowments ' do not include private endow ments and Jain religious endowments.
Dharmasthal, in which the temple in dispute was situate has a number of institutions which were under the management of a person known as Heggade who was a Jain.
The Religious Endowments Board, after an enquiry, held that the Act ap plied to the temple.
On application made under section 84(2), the District Judge held that it was a private temple, and that, therefore, the Act did not apply to it.
On appeal, the High Court did not .consider whether it was a private temple, but held that the temple was an adjunct to the composite insti tution of Dharmasthal, that, according to the customs and usages of the institution, the temple could not.be separated from the rest.
of the institutions, that Dharmasthal was both a religious and charitable institution, that the deity in the temple was worshipped both by .the Hindus and the Jains in accordance with their respective faiths, that the deity was .neither an exclusively Hindu deity not an exclu sively Jain deity, that the institution.
of Dharmasthal was rounded by the Jain, that its administration remained exclu sively Jam since its inception, that it could not be in ferred that there was an implied dedication to the Hindus exclusively, and that therefore the temple, was not a temple as defined in the Act, and that the Act did not apply to it.
The High Court also held that its property was also an adjunct to the composite institution consisting of Hindu Gods, Jain Gods and Daivas, worshipped by Hindus and Jains.
Dismissing the appeal by special leave to this Court, HELD: (Per A.N. Ray, C.J., and P.N. Shinghal, J): (1) Section 9(12) of the Act only requires that the temple should be dedicated for public religious worship, as of right by Hindus, but it would not detrace from its char acter of a temple as such if Jains also worship there.
The pro visions of the Act will however not be attracted to it in the absence of and evidence to prove the existence of an endowment for it, as the Act applies only to Hindu public religious endowments.
[899 H, 900 A] (2) The evidence in the case shows that the institution of Dharmasthal was originally a Jain religious and charita ble restitution to which property was endowed by the ances tors of the present Heggade who was himself a Jain.
It was that endowment which spread and gained more and more impor tance over the years because of the offerings made largely by Hindu and Jain devotees and worshippers.
A lingam was installed in the temple by a Hindu Sanyasi only in the 16th century; but, it has not been established that there is any endowment which could be said to belong exclusively to the temple.
Even if any such 890 endowment was made by some one in the name of the temple it was taken to be an endowment for the entire institution known as Dharmasthal and was treated as such.
The temple cannot therefore be said, to be a Hindu religious endowment within the meaning of section 2 and the provisions of the Act are not applicable to it.
[896 F H: 897 A] (3) The evidence also shows that the temple is part and parcel of the composite institution known as Dharmasthal and is so inseparably connected with it that it is its integral part, and it cannot therefore be held to be an endowment within the meaning of section 9(11).
It has not been proved that any property belongs to the temple or has been given or endowed for its support or for the performance of any serv ice or charity connected therewith, or that it has any such premises of its own as could be said to form its own endow ment.
The mere installation of the idol in the temple could not be said to bring into existence any such property as could be said to belong to the deity or given or endowed for the support of its temple or for the performance of any service or charity connected therewith.
The temple does not have even a separate prakararn.
The shrine of the adja cent shrine is in dose proximity of the temple and within the same prakaram.
The existence of other shrines of Jain Daivas in the same prakaram as the temple, therefore, shows that this temple cannot even claim to have any exclusive premises of its own so as to constitute an endowment within the meaning of section 9(11) of the Act.
[897 A, F] (4) In a given case, it may be difficult to prove the original dedication because of the lapse of considerable time and its user by Hindus as of right may be enough to prove an initial dedication.
But, in the present case, it would not be possible to conclude that there was any such dedication because there is nothing to show how the Hindu Sanyasi, who installed the lingam in the temple in the 16th century, could be.
said to be a donor when the property did not belong to him.
[900 ,F G] (5) The facts that the temple was not shown to be a Jain endowment, and hat it possesses the characteristics of a Hindu temple will not make, any difference because, there is no evidence to show that there is any endowment ' to the temple, as such, and the temple is a part and parcel of Dharmasthal.
[900 A_B] Per Beg, J. (1) In order to decide a dispute under section 84(1)(a) it is necessary to.
decide whether a particular place is a temple as contemplated by the Act.
But, that is not enough for the decision of the whole issue to be decided.
For that purpose attention has also to be directed towards deciding the question whether the institution to be considered is a temple and nothing more.
If the temple, as a place of worship, is an integral part of an institution so that it is not separable as an institution in itself, the mere fact that there is a temple as defined by the Act, where Hindu members of the public worship as a matter of right, will not go.
In such a case, the institution is not the temple, although a temple can by itself, be an institution.
There is thus a distinction between the meanings of temple ' merely as a place of worship as defined in section 9(12) and a 'temple ' as an institution.
It is therefore, necessary to consider the history, the beliefs underlying at the inception and sought to be propagated the forms of worship meant to be kept alive, the prevalent customs and practices, the exact nature and process of the endowments connected with the institution, the established rules for its management, the objects to be carried out by those in charge of the endow ment, and whether all these taken together justify the inference.
that a particular temple, as defined by the Act, is also a separate or separable institution by itself, or is just an integral and organically inseparable part of an institution or an organisation outside the Act, [903 A B, 906E,H 907 A C] (2) A consideration of the property which belongs to or is endowed for the support of temples or for performance of any service or charity connected therewith including the premises of temples may also become necessary so as to determine the character of an endowment as a part of the institution and the process by which it took place. [907 F G] (3) The origin ,and process of dedication is not always found embodied in document.
Where the dedication itself is evidenced by a document, its objects, 891 such as they may be, can be determined by interpreting the document.
There are, however, many cases in which dedica tion or endowment of property for a particular purposes has to be inferred from immemorial or long user of a property in a particular manner or from the conduct of a party.
Neither a document nor express words are essential for a dedication for a religious or public purpose in our country.
Although religious ceremonies of Sankalpa and Samarpanam are relevant for proving a dedication, yet, they are not indis pensable.
[907 G H; 908 A B] Bholanath Nandi vs Midnapora Zamindary Co. Ltd. 31 I.A. 75, Lakshmidhar Misra & Ors.
vs Rangalal & Ors.
AIR 1950 PC 56, Manohar Gandhi vs Lakhmiram, ILR @ 263, Deoki Nandan vs Murlidhar, [1956] S.C.R. '756 and Puajri Lakshmana Goundan vs Subramaniya referred to.
All that section 9(12) requires is that the place should be a place of worship either dedicated for the benefit of or used as of right by the Hindu community or a section thereof as a place of religious worship.
The word 'exclusively ' is not there at all so as to justify any exclusion of a place of worship from the definition of a temple on the ground that Jains worship together with Hindus of 'other sects.
But, the issue to be decided is whether the 'institution ' is a temple as defined in the Act.
It is not whether a particu lar place is a temple, in the sense that it is set apart for worship by the Hindu public in general or a section of it, but it is whether an institution itself is a temple as defined by the Act.
[905; D G, 906 F H, 907 A D].
(5) In the present case, the findings of the High Court show that the institution or organisation of which the temple is an inseparable part, is predominantly Jain in character.
In view of the well established doctrine of implied endowment of property, by its long user for a par ticular religious or public purpose, based on a presumed consent, it could be said that the temple had become a separate institution with an endowment of its own consisting at least of the land over which the temple had been built, the building and the idol installed with free access to it by the Hindu public in general which made offerings even though Jains also worship there.
But, in view of the general rule of practice under article 136 of the Constitution that this Court does not disturb findings of the final court of fact where two views are possible, this Court would not differ from the conclusion reached by the High Court that the temple was not a separate institution.
On such a finding it would be exempt from the operation of the Act by reason of the Explanation to section 2 excluding Jain religious endowments from the benefits of the Act.
[905 E H, 907 D F] (6)In the present case, neither the District Judge nor the High Court had given any findings whether any endowment whatsoever of the temple existed.
The extent of property covered by an endowment was also not really investigated as no issue was framed on it.
At least the structure of the temple with the idol installed and the ground upon which the temple stands must be deemed to be dedicated even though these may not for purposes of management, form separable units.
When a religious institution becomes a means of obtaining money or material benefits, in the form of offer ings or donations or gifts, as it generally does, from members of the public, a danger of its misuse can only be effectively averted by appropriate supervision.
The powers of the Government, .under the relevant Act to extend the provisions of the Act to Jain public religious institutions which are not affected by the dispute brought before the Court, are however, adequate to deal with such situation.
[912 A H, 913A]
|
Appeal No. 1947 of 1975.
Appeal by Special Leave from the Judgment and Order dated 9 10 1975 of the Gujarat High Court in Special Civil Application No. 1339/75.
V.M. Tarkunde, P.H. Parekh, Miss Manju Jatley and (Miss) Mardk Tarkunde, for the Appellants.
D.V. Patel and M.N. Shroff, for Respondent No. 1.
K.L. Hathi and P.C. Kapur, for Respondent No. 2. 879 The Judgment of the Court was delivered by GUPTA, J.
The first appellant is an association of the manufacturers of Mangalore pattern roofing tiles in south Gujarat area, the other appellant, a partnership firm, is a member of the association.
The question that falls to be determined in this appeal by special leave is whether entry 22 added by the Gujarat Government by notification dated March 27, 1967 to Part 1 of the Schedule to the covers Mangalore pattern roofing tiles.
Entry 22 reads as follows; "Employment in potteries Industry.
Explanation: For the purpose of this entry potteries industry includes the manufacture of the following articles of pottery, namely: (a) Crockery (b) Sanitary appliances and fittings (c) Refractories (d) Jars (e) Electrical accessories (f) Hospital ware (g) Textile accessories . (h) Toys (i) Glazed Tiles" We may also refer to certain other provisions of the Minimum wages Act which3 provide the context to the question arising for decision.
Section 2(g) defines "scheduled employment" as meaning "any employment specified in the Schedule or any process or blanch of work forming part of such employment".
The schedule is in two parts.
which relates to employment in agriculture only As not relevant for the purpose of this appeal.
Section 3 authorises the appropri ate Government to fix or revise the minimum rates of wages payable to employees in scheduled employments.
Section 5 prescribes the procedure for fixing and revising minimum wages.
In fixing minimum rates of wages in respect of any scheduled Section 5 prescribes the procedure for fixing and revising minimum wages.
In fixing minimum rates of wages in respect of any scheduled.
employment for the first time or in revising the rates so fixed, the appropriate Government must either appoint committees to hold, neces sary enquiries and advise it in this regard, or publish its proposals in the matter for the information of persons .likely to be affected thereby.
The Government will fix or revise the minimum rates of wages after consid ering the advice of the committees or the representations received in regard to the proposals published, as the case may be.
Section 7 empowers the appropriate Government also to appoint an advisory board for coordinating the work of the committees appointed under section 5, and advising the Government generally in the matter of fixing and revising minimum rates of wages.
Section 19 880 authorises the Government to appoint Inspectors for the purposes of the Act, Sections 22 and 22 A lay down the penalties for paying to an employee any amount less than what is due to him under the Act, or contravening any provi sion of the Act or any rule or order made thereunder; the punishment may extend to imprisonment for six months with a fine of Rs. 500/ .
Under section 27 the appropriate Gov ernment after giving by notification in the official gazette not less than three months ' notice of its intention to add to either Part of the Schedule any employment in respect of which it is of opinion that minimum rates of wages should be fixed, add such employment to the schedule by another notification and the schedule in its application to the State concerned shall be deemed to be amended accordingly.
Before proceeding to consider the rival contentions, we may briefly state the facts in the background.
On November 13, 1966 the Gujarat Government issued a notification under section 27 declaring its intention to add "employment in potteries industry" with an 'Explanation ' to of the Schedule to the Minimum wages Act, and by notification dated March 27, 1967 the entry was added as entry No. 22.
Later a committee was appointed under sec tion 5 (1 ) to fix minimum rates of wages in potteries industry.
The committee submitted its recommendations some time in 1968.
It appears from the letter dated July 10, 1968 addressed to the Government by the advisory committee forwarding its report that the Committee had not taken into consideration roofing tiles in the recommendations made.
By a notification dated January 8, 1969 the Government fixed the minimum rates of wages in respect of potteries industry on the basis of the committee 's report.
On March 25, 1970 a proceeding was started against the second appellant on the complaint of an Inspector alleging that the partners of the firm had failed to.
produce for his examination the muster roll and the wages Register.
The appellant was acquitted by the magistrate who held that entry 22 did not cover roofing tiles and as such the Act was not applicable to the industry of the accused.
The State preferred an appeal to, the High Court against the order of acquittal.
The High Court affirmed the acquittal on merits but observed that the manufacture of roofing tiles was included in entry 22.
In 1974 the Gujarat Government appointed another committee under section 5 ' of the Act to revise the minimum wages in potteries industry.
This time the committee treated the manufacture of roofing tiles as included in item 22 and sent its report to the Government.
On May 12, 1975 the State Government issued a notification accepting the recommenda tions of the committee and gave effect to the revised rates from the next day, i.e. May 13, 1975.
The appellants filed a writ petition in the Gujarat High Court challenging the validity of the notification dated May 12, 1975.
By its order dated October 9, 1975 the High Court dismissed the writ petition on the view that "Mangalore pattern roofing tiles manufactories would be covered ' within the entry".
This is how the scope of entry 22 arises for consideration in this appeal.
The question turns on a true construction of the Explanation to entry 22 which says that for the purpose of this entry potteries industry "includes" the manufacture of the nine "articles of pottery" 881 specified therein.
Pottery in a wide sense will take in all objects that are made from clay and hardened by fire, from crude earthen pots to delicate porcelain.
Mr. Patel appear ing for the respondent, State of Gujarat, contends that the Explanation indicates that potteries industry in entry 22 is intended to cover all possible articles of pottery includ ing Mangalore pattern roofing tiles.
Referring to the well known use of the word 'include ' in interpretation clauses to extend the meaning of words and phrases occur ring in the body of the statute, Mr. Patel submits that the Explanation, when it says that potteries industry 'in cludes ' the nine named objects, what is meant is that it includes not only these objects but other articles of pot tery as well.
It is true that 'includes ' is generally used as a word of extension, but the meaning of a word or phrase is extended when it is said to include things that would not properly fall within its ordinary connotation.
We may refer to the often quoted observation of Lord Watson in Dilworth vs Commissioner of Stamps, (1) that when the word 'include ' is used in interpretation clauses to enlarge the meaning of words or phrases in the statute "these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import but also those things which the interpretation clause declares that they shall include".
Thus where 'includes ' has an extending force, it adds to the word or phrase a meaning which does not naturally belong to it.
It is difficult to agree that 'includes ' as used in the Explanation to entry 22 has that extending force.
The Explanation says that for the purpose of entry 22, potteries industry includes the manufacture of the nine "articles of pottery" specified in the Explanation.
If the objects specified are also "articles of pottery", then these objects are already comprised in the expression "potteries industry".
It hardly makes any sense to say that potteries industry includes the manufacture of articles of pottery, if the intention was to enlarge the meaning of potteries industry in any way.
We are also unable to.
agree with Mr. Patel that the articles specified in the Explanation may have been men tioned out of abundant caution to emphasize the comprehen sive character of the entry, to indicate that all rarities of pottery are included therein.
argument, though more plausible, does not also seem acceptable '.
It is possible that one might have doubts.
whether things like refractories or electrical or textile accessories would pass under the description pottery as that word is used in common parlance, but the Explanation also mentions crockery and toys regarding which there could be hardly any doubt.
The inclusion in the list of objects which are well recognised ' articles of pottery makes it plain that the Explanation was added to the entry not by way of abundant caution.
The contention of Mr. Tarkunde for the appellants is that the articles mentioned in the Explanation were intend ed to be exhaustive of the objects covered by entry 22.
According to Mr. Tarkunde if the legislature wanted to bring within the entry all possible articles of pottery then there was hardly any point in mentioning only a few them by way of Explanation.
To this Mr. Patel 's reply is that it (1) (1899) A.C. '105 106. 882 is well known that where the legislature wants to exhaust the significance of the term defined, it uses the word 'means ' or the expression 'means and includes ', and that if the intention was to make the list exhaustive, the legisla ture would not have used the word 'includes ' only.
We do not think there could be any inflexible rule that the word 'include ' should be read always as a word of extension without reference to the context.
Take for instance entry 19 in the schedule which also has an Explanation .containing the .word 'includes '.
Entry 19 is as follows: "Employment in any tobacco processing establishment, not covered under entry No. 3.
Explanation.
For the purpose of this entry, the expression "processing" includes packing or unpacking, breaking up,.
sieving, thrishing, mixing, grading, drying, curing or otherwise treating the tobacco (including tobacco leaves and stems) in any manner.
" Entry 3 to which entry 19 refers reads: "Employment in any tobacco (including bidi making) manufactory.
" It is clear from the Explanation to entry 19 that there could be no other way or manner of "processing" besides what is stated as included in that expression.
Though include ' is generally used in interpretation clauses as a word of enlargement, in some cases the context might sug gest a different intention.
Pottery is an expression of very wide import, embracing all objects made of clay and hardened by heat.
If it had been the legislature 's inten tion to bring within the entry all possible articles of pottery, it was quite unnecessary to add an Explanation.
We have found that the Explanation could not possibly have been introduced to extend the meaning of potteries indus try or the articles listed therein added ex abundanti caute la.
It seems to us therefore that the legislature did not intend every thing that the potteries industry tums out to be covered by the entry.
What then could be the purpose.
of the Explanation ? The Explanation says that, for the purpose of entry 22, potteries industry 'includes ' manufac ture of the.
nine articles of pottery named therein.
It seems to us that the word 'includes ' has been used here in the sense of 'means ', this is the only construction that the word can bear in the.
context.
In that sense it is not a word of extension, but limitation; it is exhaustive of the meaning which must be given to potteries industry for the purpose of entry 22.
The use of the word 'includes ' in the restrictive sense is not unknown.
The observation of Lord Watson in Dilworth vs Commissioner of Stamps,(1) which is usually referred to on the use of 'include ' as a word of extension, ' is followed by these lines: "But the word 'i nclude ' is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expres sions defined.
It may be equivalent to 'mean and include ', and in that case it may afford an ( 1899)A.C. 105 106 883 exhaustive explanation of the meaning which, for the pur poses of the Act, must invariably be attached to these words or expressions".
It must therefore be held that the manufac ture of Mangalore pattern roofing tiles is outside the purview of entry 22.
The appeal is allowed with costs against respondent No. 1, dated May 12, 1975 in so far as it applies to the Manga lore pattern roofing tiles is quashed.
The members of the first appellant are permitted to withdraw any sum they had deposited in the Gujarat High Court pursuant to the order of this Court made on April 2, 1976.
M.R, Appeal allowed.
| IN-Abs | By a Notification issued under the , the Government fixed the minimum rates of wages in respect of potteries industry, on the basis of a committee 's report.
Later, proceedings were started against the second appellant, a partnership firm .manufacturing
Mangalore type roofing tiles, on the complaint of an inspector alleging that the partners of the firm had failed to produce their muster roll and the wages register for his examination.
The Magistrate acquitted the appellant holding that Entry 22 did not cover roofing tiles.
The High Court affirmed the ac quittal on merits, but opined that manufacture of roofing tiles was included in the potteries industry.
The appellants contended that the Articles mentioned in the explanation were exhaustive of the objects covered by entry 22, and did not cover roofing tiles, while the re spondent State contended that the Explanation "includes" not only the objects mentioned therein, but other articles like roofing tiles.
Allowing the appeal, the Court, HELD: (1) The word "includes" is generally used as a word of extension, but has been used here the sense of means '; this is the only construction that the word can.
bear in the context.
In that sense it is not a word of extension, but limitation; it is exhaustive of the meaning which must be given to potteries industry for the purpose of Entry 22.
[882 G H] Dilworth vs Commissioner of Stamps applied.
(2) The manufacture of Mangalore pattern roofing tiles is outside the purview of Entry 22.
The explanation could not possibly have been introduced to extend the meaning of potteries industry or the articles listed therein added ex abundanti cautela.
[882 D F; 883 A]
|
Civil Appeal Nos. 416 of 1973 and 572 of 1974.
(From the Judgment and Decree dated 22 12 1972 of the Allahabad High Court in F.A. No. 465/54 connected with F.A. 65/55).
A. K. Kirty, Yogeshwar Prasad, S.K. Bagga, Mrs. section Bagga Miss Rani Arora for the Appellant (in CA.Facts No. 416/73 and Respondent No. 1 in CA. No. 572/_74).
G.B. Pal, R.K. Mehta, Pramod Swarup and Miss Uma Mehta for the Appellants (in CA 572/74 and Respondents 1 3 in CA.No. 415/73).
B. Sen, S.M. Jain, Indra Makwana and Sushil Kumar Jain for Respondents 5/2, 5/3 and 6 (in CA.No. 416/73).
S.T. Desai, Rajinder Singh and S.K. Dhingra for Respond ents 7 & 8 (in CA.No. 416/73).
The Judgment of the Court was delivered by JASWANT SINGH, J.
These two appeals by certificates granted under Article 133 of the Constitution which are directed against the common judgment and decree dated Decem ber 22, 1972 of the High Court at Allahabad in two connected Civil First Appeals Nos. 465 of 1954 and 65 of 1955 pre ferred against the judgment and preliminary decree of the Second Additional Civil & Sessions Judge, Agra, dated April 5, 1954, in suit No. 76 of 1949 shah be disposed of by this judgment.
The facts material for the purpose of these appeals are: The appellant in Appeal No. 416 of 1973 and respondent No. 1 in appeal No. 572 of 1974, Seth Loonkaran Sethiya, (hereinafter referred to for convenience as 'the plain tiff ') is a financier living and carrying on business in Agra.
Respondents Nos. 1 to 3 in the first appeal and appellants Nos. 1 to 3 in the second appeal viz. Ivan E. John, Maurice L. John and Doris Marzano, grandsons and grand daughter of one A John, are partners of the regis tered, firm called 'John & Co. '.
There are three spinning mills and one flour mill at Jeoni Mandi, Agra, which are compendiously described as 'John Mills '.
Originally, the members of the John family were the exclu sive owners of all these mills which have been in existence since the beginning of the current century.
In course of time, some strangers acquired interest therein and by the time the present lis commenced, the following became the joint owners thereof to the extent noted against their names : 1.Ivan E. John, Maurice L. John and Doris Marzano, appellants Nos. 1 to 3 in Appeal No. 572 of 1974 and respondents Nos. 1 to 3 in .Appeal No. 416 of 1973 Partners of the firm 'John & Co. ', appellant No. 4 in Appeal No.572 of 1974 and respondent No. 4 in Appeal No. 416 of 1973:11/40th share.
2. Seth .Munilal Mehrs (respondent No. 6 in appeal No. 416 of 1973 and respondent No. 9 in Appeal No, 572 of 1974).and Hiralal Patni (respondent No. 5 in Appeal No. 416 of 197.
3, 'deceased 'and now represented by respondents Nos, 5/1 to 5/7 i3 the 'said appeal and represented by respondents Nos. 2 to 8 in Appeal No. 572 of 1974):19/40th share 3.Gambhirmal Pandya (P) Ltd. part ner in M/s. John Jain Mehra & Co,: 8/40th share .
4.Ivan E. John: 2/40th share Having run into financial difficulties, M/s John & Co. were driven to tap various sources for raising loans for their business and other requirements.
By virtue of the deed of agreement (Exn. 1321 ) dated June 14, 1947, they entered into a financial agreement with Sethira & Co., a partnership firm of the plaintiff and Seth Suganchand.
Under this agreement which was originally meant to last for five months but which was allowed to remain in force even after 'the expiry of that period Sethiya & Co. undertook to advance to M/s John & Co. funds to the extent of Rs. 8,00,000/ on the security of yarn and to act as sole selling agents of the latter.
On January 29, 1948, the Collector, Agra, attached moveable and immoveable properties of the mills pursuant to a certificate issued for reali zation of income tax dues for the years 1943 to 1945 out standing against M/s John &Co. which exceeded Rs. 20 lakhs.
On February 5, 1948, the Collector, Agra, appoint ed Ivan E. John, Maurice L. John and Doris Marzano as custo dians for running the mills.
On February 9, 1948, the aforesaid agreement (Exh. 1321) dated June 14, 1947, with Sethiya & Co. which continued to remain in operation beyond its original term was renewed upto the end of April, 1948, by agreement (Exh. 1320).
This agreement gave an option to the partners of Sethiya & Co. to allow it to continue in force until their dues were 857 paid in full by M/s John & Co. These financial agreements with Sethiya & Co. did not prove adequate to meet the mone tary requirements of M/s John & Co. Accordingly on the same day i.e. on February 9, 1948, they entered into another agreement (Exh. 1319) with the proprietory concern of the plaintiff carrying on business under the name and style of 'M/s. Tejkaran Sidkaran ' whereby the latter agreed to advance certain amounts to them against mortgage of cotton, its products and bye products which might be in their stock from time to time during the continuance of the agreement.
By this agreement, M/s John & Co. also undertook to pay to M/s Tejkaran Sidkaran a sum of Rs. 2,09,245 9 10 which, on going into the accounts, was found to be due to the latter in respect of the supply of cotton.
Nearly five months thereafter i.e. on July 6, 1948 the aforesaid partners of M/S. John & Co. succeeded in obtaining another financial accommodation from Sethiya & Co. vide agreement Exhibit 168: Exhibit A 1.
By this deed, the financiers agreed, for the efficient working of the mills, to advance loan, as and when required, upto the limit of Rs. 25 1/2 lakhs to the partners of M/s John & Co. on condition that they i.e. the financiers would have a floating and prior charge for all monies due to them for the time being including the amount due to them on the date of the agreement and all monies which they might choose to advance under the agreement, on all business assets including stores, coal, oil process etc of the aforesaid three spinning mills.
Describing himself as the sole proprietor of the firm 'Sethiya & Co.; and 'M/s. Tejkaran Sidkaran '.
Seth Loonkaran Sethiya flied in the Court of the Civil Judge, Agra on April 18, 1949 an original suit, being suit No. 76 of 1949 against M/s. John & Co. ' and its aforesaid partners (hereinafter referred to as 'the defendants first set ') as also against Munnilal Mehra, Hiralal Patm and Gambhirmal Pandya and M/s John.
Jain Mehra & Co., (hereinafter referred to as 'the defendants second set ') for recovery of Rs. 21,11,500/ with costs and pendente lite and future interest by sale o.f .the assets of M/s John & Co. and for permanent injunction re straining the defendants first set from committing any branch of the aforesaid agreement dated July 6, 1948 as also for declaration that he had a prior and floating charge on all the business assets of M/s John.& Co.
The suit was later on amended by the plaintiff with the permission of the trial Court.
By his amended petition of plaint, the plain tiff sought a decree against the defendants first set as also against the defendants second set.
The case of the plaintiff was that Mr. Ivan E. John, Mr. Maurice L. John and Doris Marzano who were part owners of the aforesaid three spinning mills and a flour mill as also certain other properties and had been carrying on their business and running the mills under the name and style of John & Co. being heavily indebted and in urgent need of money to pay arrears of income tax as well as other dues and to carry on day to day business of the milks approached him time and again for finances, loans etc.for the aforesaid purposes, that he 'lent considerable sums of money under various agreements executed by the defendants first set in his favour and in favour of the firm 'M/s Tejkaran Sidkaran of which he was the sole owner and in that of Sethiya & Co.; that on or about July 6, 1948 all accounts between his 858 firm 'Sethiya & Co. ' and defendants first set were gone into and after a full scrutiny thereof, a settled amount of Rs. 12,72,000/ was found to be due to Sethla & Co. from the defendants first set upto June 30, 1948; that this amount as admitted and accepted by the defendants first set and was as such debited in their account books and was also acknowl edged by them in the subsequent agreement entered into by them with him; that the aforesaid settlement, the de fendants first set solicited further financial help from him to run the mills and to meet their pressing liabilities which was acceded to by him on the terms and conditions set out in the agreement dated July 6, 1948 (Exh. 168); that by this agreement, he agreed inter alia to advance requisite funds to the defendants first set (for carrying on the business of the mills 'and payment of the claims of Raja Ram Bhawani Das and to meet other liabilities) up to the limit of Rs. 20 lakhs inclusive of the aforesaid amount admittedly found due to him from the defendants first set on the date of the agreement and to make a further advance of a sum of Rs. 5,50,000/ on the security of business assets and stocks other than bales of yarn and cotton; that it was also stipu lated that he would have a floating and prior charge for the entire amount due to him on the date of the agreement on all the business assets including stores, coal, oil process etc of all the three spinning mills of the defendants first set and that he would be paid interest at the rate 6 per cent per annum from date of including liability in respect of each individual item besides commission at the raw of 1 per cent on all sales of products of the three spinning mills whether sold directly or otherwise during the currency of the agreement and a luther commission at the rate of 12 per cent on value of all the purchases of cotton required for consumption of the three spinning mills and godown rent as might be agreed.
The plaintiff further averred that it was specifically agreed between him and the defendants first set that the agreement would be in operation for the minimum period of one year and would also continue to be in force thereafter until the entire amount due to him from the defendants first set was fully paid up.
The plaintiff further averred that the accounts of business done by him under the name of M/s Tejkaran Sidkaran with the defendants first set were gone into and finally the defendants first set admitted that a sum of Rs. 17,79,100/ was due from them to his firm 'M/s Tejkaran Sidkaran ' and that under their written authority, he transferred the above liability to his firm 'Sethiya & Co. ' and thus all accounts of the defendants first set with him were amalgamated in one account i.e. of Sethiya & Co. and the account of his firm 'M/s Tejkaran Sidkaran ' with the defendants first set was squared up and closed.
The plaintiff further averred that the defendants second set including Hiralal Patni, the ex financier of the John Mills who had not despite best efforts succeeded in securing possession of the mills as co proprietor thereof entered into partnership with the defendants first set under the name and style of M/s John Jain Mehra & Co. and mali ciously induced them to commit breaches of the agreement dated July 6, 1948 by forcibly turning out his representa tives who used to remain incharge of the stocks, stores, coal, waste etc of the mills and making them enter into a finance agreement contrary to the terms of the agreement with his firm.
The plaintiff also alleged that the defendants first set had at the instigation of the defendants second set unjustifiably closed the business of John & Co. 859 and were colluding with the latter who were guilty of misap propriation and conversion of the goods over which he had a prior and floating charge.
The plaintiff also averred that on April 4, 1949, accounts were again gone into between him and the defendants first set and a sum of Rs. 47,23,738/4/9 were found due to him from them; that agreement dated July 6, 1948 between him and the defendants first set still subsisted and would continue to subsist till July 6, 1949 and thereafter at his option till all his dues were paid up; and that a sum of Rs. 21,11,500/ was due to him from the defendants first set as per Schedule A of the plaint which both sets of the defendants were liable to pay.
The statement of account as contained in Schedule A annexed to the plaint was as follows: Rs. a. p. "1.
Settled balance on 4th April, 1949 according to accounts books of the def endants.
(The accounts upto 4th April, 1949 were fully gone through and se ttled by both the parties and confirmed by the defendants by making nec essary entries in their books 45,74,980 10 1 2.
Plaintiff 's charges of commission, interest, godown rent etc., according to the terms of the agreement and duly checked by the defendant 's accountant and chief Account officer as detailed below: From 13th October to 31st October, 1948 14,516 13 6 From 1st November to 12th December 33,783 4 3 From 13th December to 12th January 1949 34,100 3 3 From 13th January to 12th February, 1949 38,716 12 3 From 13th February to 12th March, 1949 27,632 9 2 Total 1,48,749 10 8 9th April, 1949 paid to Mahalaxmi Oil Mills through Kirpa Narayan advocate and others .
8,708 5 0 10th April 1949 paid to Bishambar Nath & Co. (for Cotton supplied to John & Co.) 1,57,005 3 0 Charges from 13th March to 12th April, 1949 62,804 12 3 Total 49,52,2489 0 9th April, 1949: Proceeds by sale of 5731 bales of yarn sold by defendants as per their authorities 28,40,748 9 0 Balance 21,11,500 0 0 Twenty one lacs, eleven thousand five hundred only.
5 /338SCI/76 860 The suit was contested by both sets of defendants on various grounds.
Defendants first set inter alia pleaded that there was no 'settlement of accounts between them and the plaintiff as alleged by the latter; that 'the accounts were liable to be reopened as they were tainted with fraud, obvious mistakes etc., and that on a true and correct ac counting a large sum of money would be found due to them; that though the plaintiff and Seth Sugan Chand (who owned Indra Spinning and Weaving Mills and had a covetous eye on John Mills) had obtained various documents, agreements, vouchers, receipts etc.at various times from them, the same were of no legal value as they were secured by the former by practising undue influence, fraud, coercion and misrepresentation.
It was further pleaded by the defendants that :the plaintiff had illegally and contrary to the agreement dated July 6, 1948 debited them with huge amounts which were not really due to them.
It was further pleaded by the said defendants that the cotton supplied to them by the aforesaid financiers was of inferior quality and the amounts charged by them in respect thereof were exorbitant and far in excess of the prevailing market rates.
The said defendants further pleaded that though under the terms of the agreement dated February 9, 1948 no commission on sales and purchases had been agreed to be paid by them to the financiers still they had been debited with huge amounts on that account and likewise though simple interest had been stipulated in the said agreement compound interest with monthly rests had been debited to their account which was not at all justified.
The said defendants also disputed their liability to pay certain items of expenditure like demurrage, wharfage etc.which had been debited to their account.
It was also pleaded by the said defendants that the plaintiff had no floating or prior charge on any of their stocks, stores etc.nor could any such charge be claimed by him in law; that the suit was barred by the provisions of Section 69 of the Part nershlp Act and that the agreement dated July 6, 1948 which was insufficiently stamped could not form the basis of the suit.
In the written statement filed by them the defendants second set denied the allegations and insinuations made against them by the plaintiff and raised a number of techni cal and other pleas.
They also pleaded that the plaintiff alone .was not entitled to file the suit concerning the firm M/s. Sethiya as it did not belong to his joint Hindu family but was a partnership firm.
The trial court framed as many as 21 issues and on a consideration of the evidence adduced by the parties it held inter alia that the suit as brought by the plaintiff was maintainable; that though the plaintiff had failed to prove that the dissolution of the partnership between him and Seth Sugan Chand took place on June 30, 1948, and no alternate date of dissolution subsequent to June, 30, 1948, had been set up by him, it was evident from the record that the dissolution took place some time after July 30, 1948, and before the institution of the suit; that the suit being one for recovery of the assets due to a dissolved partnership firm from a third party was not barred by Section 69 of the Partnership Act; that Seth Sugan Chand was not a necessary party to the suit; that agreement dated July 6, 1948, was duly stamped and that no undue influence etc.was exercised by the 861 plaintiff on the defendants first set in relation to the execution of the agreements between Sethiya & Company and the defendants first set.
The ,trial court also held that there was no accounting on April 4, 1949, as alleged by the plaintiff and that both the plaintiff and the defendants first set committed a breach .of agreement dated July 6, 1948.
The breach committed by the defendants first set according to the trial court lay in their unjustifiably handing over possession to M/s. John Jain Mehra & Co. of the goods on which the plaintiff held a charge thereby furnish ing him with a cause of action against both sets of defend ants.
The trial court also held that under clause 13 of the agreement dated July 6, 1948, a charge in favour of the plaintiff was created in respect of the entire business assets including stock in trade, stores, coal, oil etc.lying inside the three spinning mills which were being run by John & Company; that defendants first set utilised con sumed and otherwise dealt with the goods which were burdened with the floating charge from July 6, 1948, to April 13, 1949, when John & Co. ceased to be a going concern and there was a final rupture between the plaintiff and the defendants I st set and the plaintiff 's floating charge got fixed or crystalised.
It also found that defendants second set were not entitled to prior charge on the properties of John & Co. existing on April 13, 1948, and were liable to satisfy the plaintiff 's claim as despite notice of his floating charge they consumed, converted and misappropriated stocks and stores and other business assets of the defendants first set.
Finally, the trial court held the plaintiff to be entitled to a decree for Rs. 18,00,152/ against both sets of defendants but rejected his claim for specific perform ance and injunction.
It accordingly passed a preliminary decree against both the sets of defendants on April 5, 1954 directing them to deposit the said amount in Court within the prescribed time and in default, gave the plaintiff a right to apply for a final decree for the sale of all the business assets, goods, stocks, stores etc.of the three spinning mills as mentioned in the operative portion of its judgment.
The decree also gave a right to the plaintiff to apply for a personal decree against the defendants first set and the defendants second set for the balance of his claim in case the net sale proceeds of the said property were found insufficient to discharge his claim.
Aggrieved by the said judgment and decree of the trial court, the plain tiff preferred an appeal, 'being first appeal No. 465 of 1954, before the High Court at Allahabad claiming the following reliefs : "(a) A decree for a further sum of Rs. 64,082/3/5 by which amount his claim was reduced by the trial (b) Such rate of interest as he might be entitled to on the aforesaid sum of Rs. 64,082/3/5 under the agreement dated July 6, 1948; (c) Interest on the sum already decreed at the rate agreed to under the agreement dated July 6, 1948; (d) Injunction in terms of para 47(b) of the plaint and specific performance of the agreement dated July 6, 1948; 862 (e) Costs of the appeal and costs which the lower court wrongly disallowed or deducted and also interest on the costs already award ed; (f) A decree for sale of the shares of the defendants in the machinery over which he had a charge.
" M/s John Jain Mehra & Co., of which the defendants first set too were partners, also preferred an appeal against the aforesaid judgment and decree of the trial court, being first appeal No. 65 of1955, praying that the decree passed by the trial court in favour of the plaintiff be set aside and the suit dismissed with costs throughout.
The High Court allowed both the appeals No. 465 of 1954 and No. 65 of 1955 partially by its aforesaid judgment dated December 22,1972, holding inter alia that no fraud, undue influence, coercion or misrepresentation was prac tised by the plaintiff on the defendants first set in con nection with the execution of agreement dated February 9,1948, or agreement dated July 6,1948 (which is the basis of the suit); that the agreement dated July 6,1948, was neither insufficiently stamped nor did it require registra tion; that though it appeared that the deed of dissolution dated July 22, 1948, was prepared for the purpose of the case, there was sufficient evidence on the record to indi cate that Seth Suganchand had withdrawn from the partnership carried on under the name of Sethiya & Co. with effect from June 30, 1948, and had nothing to do with the transaction evidenced by the agreement dated July 6,1948, which was entered into by the plaintiff as the sole proprietor of Sethiya & Co., that the entire rights and liabilities flowing from the agreement dated July 6, 1948 having become the rights and liabilities of the plaintiff alone and the suit not being one for recovery of dues of a dissolved partnership firm arising out of a cause of action which accrued before the dissolution of the firm, neither Seth Suganchand was a necessary party to the suit, nor was the suit barred under section 69 of the Partnership Act; that the alterations in the deed of agreement dated July 6, 1948 pointed out by the defendants were not material alterations and did not render the agreement void; that the plaintiff had a floating charge over the business assets of John & Co., that it was the defendants first .set and not the plaintiff who committed breach of the agreement by wrongful ly delivering possession of the charged goods on or after April 13, 1949 i.e. after ceasing to be a going concern to M/s. John Jain Mehra & Co. a partnership firm of which the defendants first set became a constituent part by virtue of agreement dated April 11, 1949 that despite the knowledge of the aforesaid prior charge, M/s John Jain Mehra & Co. illegally intermeddled with the charge goods and used them for their own business; that the plaintiff 's floating charge on the assets of the defendants first set valuing Rs. 13,25,000/ became crystallised on April 13,1949 when on default of the defendants first set, he intervened by bring ing the suit to recover all his out standings by sale of the charged properties; that the charge of the plaintiff having become crystallised, as indicated above, the defendants first and second set held the properties as trustees and were liable to make them 863 available to the plaintiff for recovery of his dues; that keeping in view the legal position as well as the nature of the transactions involved, the practice of courts and the fact that the litigation between the parties had been suffi ciently protracted, it would be reasonable to award pendente lite as well as future simple interest from the date of the decree to the date of actual payment or realization at the rate of 4 per cent per annum on the principal sum adjudged; that though keeping in view the facts that no balance was struck on April 4, 1949 in the Rokar (Exh. 179) of Sethiya & Co. and the auditor 's report which showed that no specific figure was mutually agreed upon on accounting on that date, it could not be said that accounts were finally settled between the parties on April 4, 1949, the defendants first set had failed to point out which entry in the charts (Exh. 6103 to 6112) produced by the plaintiff was wrong; that Rs. 49,35,925/5/7 were advanced by Sethiya & Co. to the defend ants first set under the agreement dated July 6, 1948, from the date of its execution to the date of the suit; that a sum of Rs. 11,17,000/ was due to old Sethiya & Co. from the defendants first set upto June 30, 1948 under the agreements dated June 14, 1947 and February 9, 1948; that Rs. 1,55,000/were advanced by Sethiya & Co. on July 3, 1948 to the defendants first set for purchase of the share of Beni Madho; that in accordance with the obligation undertaken by it under para 1 (8) of the agreement dated July 6, 1948, Sethiya & Co. paid, on the basis of transfer voucher (Exh. 3039) dated February 28, 1949, drawn by the defendants first set, a sum of Rs. 17,79,100/ to Tejkaran Sidkaran in full satisfaction of the amount due to the latter under the agreement dated February 9, 1948; that whereas the aggregate of the debit items came to Rs. 82,47,380/15/4, the aggre gate of the credit items came to Rs. 71,13, 712/6/6 leaving a balance of Rs. 11,33,668 and paise 55 which the defend ants first set were liable to pay to the plaintiff; that since the receivers appointed by the court at the instance of the plaintiff after the institution of the suit were able to secure possession of the charged properties that existed prior to April .11, 1949 and it had not been estab lished that there was a removal from the mills ' premises of the said properties or dissipation thereof because of the aforesaid conversion and detention, the plaintiff was not entitled to the decree for money against the defendants second set; that the plaintiff could, no doubt, proceed against the charged goods which were in the custody of the receivers for recovery of his dues but as No. property on which he held a charge or on which his floating charge crystallised had remained in the custody of the defendants second set after the appointment of the receivers, no li ability for his dues could be fastened on them nor could he obtain a decree for specific performance against them.
In the result, in modification of the decree passed by the trial Court, the High Court passed a preliminary decree for Rs. 11,33,668.55 with proportionate costs and pendente lite and future interest from the date of the decree to the date of the actual payment or realisation at the rate of 4 per cent per annum on the principal sum of Rs. 10,87,674.05 in favour Of the plaintiff and against the defendants first set but dismissed the suit with costs as against the defendants second set.
The High Court made it obligatory for the defendants 864 first set to pay or deposit in Court the aforesaid sum of Rs. 11,33,668.55 together with interest within six mouths of the passing of the decree failing which it held the plaintiff entitled to apply for a final decree for sale of all the business assets, goods, movables, stocks, stores etc.mentioned in the inventory of Shri P.N. Raina, Commissioner, and the receivers ' inventories.
The High Court further directed that if the net sale proceeds of the said property were found insufficient to satisfy the plaintiff 's aforesaid amount, he would get a personal decree against defendants 1 to 3 for the balance of his claim remaining due after scale.
The High Court also directed that a sum of Rs. 28, 662/9/ . the sale proceeds of cotton waste over which the plaintiff had charge and which was in deposit with the Bank in the Court 's ac count would also be utilised towards the satisfaction of the aforesaid amount decreed in the plaintiff 's favour.
It is against this judgment and preliminary decree that the present appeals are directed.
We have heard counsel for the parties at length and gone through the entire record relevant for the purpose of the appeals before us.
As per contentions of the counsel, the following main questions arise for our determination : (1) Whether the first 'sethiya & Co. ' (of which the plaintiff and Seth Suganchand were partners) was dissolved with effect from June 30, 1948, as claimed by the plaintiff ?
(2) Whether the agreement dated July 6, 1948, was entered into by the plaintiff with the defendants first set as a sole proprietor of Sethiya & Co. or was it entered into by his as a partner of Sethiya & Co. '?
(3) Whether the suit is barred by section 69 of the Partnership Act ?
(4) Whether Seth Suganehand was a necessary party to the suit ?
(5) Whether any material alterations were made in the aforesaid agreement dated July 6, 1948, which rendered it void ?
(6) Whether the suit which was based upon accounts stated or settled could be dealt with in the manner in which it has been done ?
(7) Whether in addition to the imposition of burden on the charged business assets etc.of John & Co. for satisfaction of the decretal amount, the defendants second set could be saddled with any liability in that behalf ?
We shall take up these question seriatim.
Questions Nos. 1 & 2.
: As these two questions are inextricably linked up, they have to be dealt with together.
865 According to the plaintiff, the firm Sethiya & CO., which was formed by him in partnership with Seth Sugan chand for the specific purpose of providing money against pledge of goods to the defendants first set and to act as their sole selling agents and which consequently entered into financial agreements with the said defendants vide exhibits 1321 and 1320 on June 14, 1947, and February 9, 1948, respectively was dissolved with effect from June 30, 1948, and thereafter he alone carried on dealings with the said defendants in the name: of Sethiya & Co. and M/s Tejkaran Sidkaran as their sole proprietor and as such, the agreement (Exh. 168) dated July 6, 1948, was entered into by him with the said defendants as the sole proprietor of Sathiya & Co. On the contrary, the defendants assert that the firm 'Sethiya & Co. ' was in existence on July 6, 1948, and thereafter as well.
Let us examine the material on the record and see which of these contentions is correct.
While the plaintiff relied in support of his contention upon the deed of agreement (Exh. 168) dated July 6, 1948 and the deed of dissolution dated July 22, 1948 produced by him, the defendants strongly relied upon Exhibit A 1 and cer tain other documents.
A close scrutiny of these documents and other evidence adduced in the case clearly negatives the contention of the plaintiff and goes a long way to support the assertion of the defendants.
It would be noted that in the preamble of Exh.A 1 which is admittedly a counter part of Exh. 168, the word 'partner ' occurs after the word 'Sethiya ' and before the word 'of ' and in conso nance with its preamble, Exh.A 1 has been signed by the plaintiff, Seth Loonkaran Sethiya, as a partner of M/s Sethiya & Co. Now though the word 'partner ' occurring in the preamble of Exh.has been scored out, it has not been initialled either by the plaintiff or by any one of the partners of John & Co. It is also significant that while affixing his signatures on Exh. 168 and its counterpart Exh.A 1 the plaintiff described himself as a partner of M/s Sethiya & Co, The contention of the plaintiff that his partnership with Seth Suganchand came to an end with effect from June 30, 1948, and the agreement dated July 6, 1948 was entered into by him with the defendants first set as the sole proprietor of Sethiya & Co. is further falsified by the dissolution deed dated July 22, 1948, itself produced by him before the trial Court on December 13, 1949 which would have passed muster if the defendants had not been vigilant.
It seems that on seeing this deed written partly on an impressed stamp paper of Rs. 10/ which was not in use in July, 1948, the suspicion of the defendants about the spurious character of the deed was aroused and they hastened to make an application requesting the trial court that in view of the fact that the deed appeared to have been 'anti dated and manufactured for the purpose of the case ', the stamp papers on which it was written be sent to the officer in charge, India Security Press, Nasik, for examina tion and report as to when the said stamp papers were issued for sale from the press.
The reaction of the plaintiff to this application and his subsequent conduct in relation to the investigation sought to be made to get at the truth regarding the date of issue of the aforesaid impressed stamp Paper and consequently regarding the alleged dissolution of the firm 'Sethiya & Co. ' is revealing.
It is amazing that the 866 simple request made by the defendants which should have been readily agreed to by the plaintiff if he had been innocent was stoutly opposed by him.
The circumstances in which the so called deed of dissolution of partnership dated July 22, 1948, and the report dated February 27, 1950, of the Assistant Master, India Security Press, Nasik disclosing that 'the first high value (Rs. 10/ ) impressed stamp in the type of water marked paper as used in the document dated July 22, 1948,was printed in his Press on November 23, 1948, and as such couldnot have been, existence on July 22, 1948 the alleged date of execution of the document disap peared is very intriguing It is also remarkable that when during the cross examination of the plaintiff on March 29, 1950, in connection with the issue relating to the bar of section 69 of the Partnership Act the defendants wanted to make use of the aforesaid report from the India Security Press, Nasik, and it came to light that the report and the original deed of dissolution set up by the plaintiff were missing, the plaintiff came forward with an amusing applica tion stating therein that "in the interest of the early disposal of the case, he undertakes not to rely on that document in the suit and to argue the case without that.
The manner in which the plaintiff behaved when the defend ants attempted to have the duplicate copy of the aforesaid report of the Assistant Master,India Security Press obtained by the Court proved is no less interesting.
A reference to the minutes of proceedings of the trial Court shows that after the Court had, at the request of the de fendants and with the consent of the plaintiff 's counsel, passed the order on May 21, 1950, for issuing a commission to Nasik for examination of the said officer of the Press in respect of the aforesaid report about the impressed stamp paper, the plaintiff made an application for stay of that order and on Jully 4, 1950, his counsel, Shri Walter Dutt, made the following statement : ,lm15 "The court may for the purpose of deciding the issue under section 69, Partnership Act take into consideration the fact that the "document purporting to be a dissolution deed executed between the partners of Sethiya & Co. is not genuine although this fact is not admitted by the plaintiff and the court may therefore, discard such portions of the oral evidence of both plaintiff and Seth Suganchand as it considers would be rendered unreliable if the view be taken that the document in question was a fabricated one and the court may presume that the document was not executed on the date on which it purports to be executed.
" On a consideration therefore of the totality of the tell tale facts and circumstances especially the aforesaid description of the plaintiff as partner of Sethiya & Co. in the preamble and at the food of Exh.A 1 and Exh. 168, the clumsy attempt made to obliterate the aforesaid description in the preamble of Exh. 168.the execution of a part of the so called deed of dissolution of partnership dated July 22, 1948 on the aforesaid non judicial impressed stamp Paper of the denomination of Rs. 10/ which was not in existence on July 22, 1948, the 867 resistence offered by the plaintiff to the defendants ' application requesting the Court to call for a report from the India Security Press, Nasik, about the data of issue of the said stamp Paper, the aforesaid report No. 780/26 dated February 27, 1950 of the India Security Press, Nasik, that Rs. 10/ non judicial impressed stamp paper which had been used for part execution of the aforesaid deed of dissolution had not been printed before November 23, 1948, the disappearance of the said deed of dissolution of partnership of Sethiya & Co. set up by the plaintiff and the report of the Assistant Master of the India Security Press, Nasik, the defendants ' endeavour to ' have the dupli cate copy of the aforesaid report of the India Security Press, Nasik about the impressed stamp paper of the denomi nation of Rs. 10/obtained by the Court proved and the plain tiff 's frentic efforts to thwart the attempt firstly by making an application stating therein that he would not rely on the aforesaid deed of dissolution dated July 22, 1948, secondly, by making an application for stay of the order passed by the trial Court regarding issue of a commission to Nasik for formally proving the report of the India Security Press and thirdly, by asking his counsel, Shri Waiter Dutt to make the above quoted statement strongly incline us to think in agreement with the subdued findings of the trial Court that the aforesaid deed of dissolution was fabricated by the plaintiff with the dishonest intention of playing a fraud on the Court and gaining an undue advantage over the defendants.
In addition to the facts and circumstances set out above, the debit of items of Rs. 1,55,000/ and Rs. 1, 68, 552/12/6 to the account of the partnership firm 'Sethiya & Co. ' on July 3, 1948, and July 10, 1949, respectively and issue by the plaintiff of cheques No. BL 003628 dated July 16, 1948 (Exh.B 11)for Rs. 1,55,000/ , No. BL 003634 dated July 16, 1948 (Exh. B 12) for Rs. 25,000/, No. BL 004636 dated July 20, 1948 (Exh. B 13) for Rs. 73,000/, No. BL 003630 dated July 9, 1948 (Exh. B 14) for Rs. 10,000/ , No. BL 003635 dated July 17, 1948 (Exh. B 15) for Rs. 16,500/ , No. 'BL 003632 dated July 10, 1948 (Exh. B 16) for Rs. 1,30,000/ , and No. BL 003633 dated July 10, 1948 (Exh. B 17) for Rs. 1,68,552.14/6 as partner of Sethiya & Co. also go to demolish the theory of dissolution of the firm ' 'S ethiya & Co. ' on June 30, 1948 which the plaintiff sought to build up on sandy foundations and furnish as eloquent proof of the fact that the firm was very much in existence when the agreement (Exh. 168) dated July 6, 1948, came into being.
It has also to be borne in mind that service by post or advertisement in some paper of notice about the retire ment of a partner from a partnership firm on persons who are in know of the existence of the firm and have been carrying on dealings with it is of utmost importance to prevent them from assuming that the partnership continues.
In the in stant case, it is manifest from the evidence educed by the plaintiff himself that neither he nor Seth Suganchand gave notice in writing to the defendants first set that the latter had retired from Sethiya & Co. with effect from June 30, 1948.
The evidence also makes it clear that the con cerned persons and the general public were 868 not informed about the retirement of seth Suganchand from the partnership firm 'Sethiya & Co. ' by publication of a notice in some paper.
The absence of these notices further belie the plea of the plaintiff regarding dissolution of the partnership firm 'Sethiya & Co. ' on June 30, 1948.
That the plaintiff 's story regarding dissolution of the firm 'Sethiya & Co. ' is a complete myth also receives strong support from the fact that although approximately Rs.1,1 0,000/ are admitted by Seth Suganchand to be due to him from the partnership not a farthing appears to have been paid to him nor any document acknowledging the liability appears to have been passed on to him.
The letter (Exh. 21) addressed to the Manger, Bank of Bikaner Ltd., Agra, intimating to him that Seth Suganchand had withdrawn from the partnership of Sethiya & Co. on which strong reliance is placed on behalf of the plaintiff is not helpful to him as it was not sent to the Bank before July 20, 1948.
The alleged dissolution of the partnership between Seth Suganchand and the plaintiff not having been established, it can be safely presumed in view of the above circumstances that the partnership between them continued to subsist at least upto July 20, 1948.
We are accordingly of the opin ion that the firm 'Sethiya & Co. ' was not dissolved with effect from June 30, 1948, as claimed by the plaintiff, and that the agreement dated July 6, 1948, was entered into by the plaintiff with the defendants first set not as the sole surviving proprietor of Sethiya & Co. but as a partner of the firm 'Sethiya & Co. ' Question No. 3: For a proper determination of this question, it is necessary to refer to section 69 of the Partnership Act, 1932, the relevant portion whereof is reproduced below for ready reference : "69."(1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm.
(2) No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of of Firms as partners in the firm.
(3) The provisions of sub sectiOns (1) and (2) shall apply also to a claim of set off or other proceeding to enforce a right arising from a contract, but shall not effect (a) the enforcement of any fight to sue for dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm, or . " 869 A bare glance at the section is enough to show that it mandatory in character and its effect is to render a suit by a plaintiff in respect of a right vested in him or acquired by him under a contract which he entered into as a partner of an unregistered firm whether existing or dissolved, void.
In other words, a partner of a erstwhile unregistered part nership firm cannot bring a suit to enforce a right arising out of a contract falling within the ambit of section 69 of the Partnership Act.
In the instant case, Seth Suganchand had to admit in unmistakable terms that the firm 'Sethiya & Co. ' was not registered under the Indian Partnership Act.
It cannot also be denied that the suit out of which the appeals have arisen was for enforcement of the agreement entered into by the plaintiff as partner of Sethiya & Co. which was an unregistered firm.
That being so, the suit is undoubtedly a suit for the benefit and interest of the firm and consequently a suit on behalf of the firm.
It is also to be borne in mind that it was never pleaded by the plain tiff, not even in the replication, that he was suing to recover the outstandings of a dissolved firm.
Thus the suit was clearly hit by section 69 of the Partnership Act and was not maintainable.
Question No. 4: It would be noticed that the present suit has been brought by the plaintiff alone and in spite of the objection raised on behalf of the defendants, he did not care to implead Seth Suganchand who was a necessary party to the suit.
Assuming without holding therefore, that section 69 of the Partnership Act did not apply to the present case, the plaintiff could not in any event maintain the suit for recovery of the aforesaid amount (which was made up of items, some of which were admittedly due to the old Sethiya & Co.) without impleading Seth Suganchand.
Question No. 5 : Before proceeding to determine this question it would be well to advert to the legal position bearing on the matter As aptly stated in paragraph 1378 of Volume 12 of Halsbury 's Law: of England (Fourth ' Edition) "if an alteration (by erasure, interli neation, or other wise) is made in a material part of a deed, after it execu tion, by or with the consent of any party to or person entitle, under it, but without the consent of the party or parties liable under it, but without the consent of the party or parties liable under it, the deed is rendered void from the time of the alteration so as to prefer the person who ' has made or authorised the alteration, and those claim ing under him, from putting the deed in suit to enforce against an party bound by it, who did not consent to the alteration, any obligation, covenant, or promise thereby undertaken or made.
A material alteration, according to this authoritative work, is on which varies the rights, liabilities, or legal position of the parties a ascertained by the deed in its original state, or otherwise varies the legal effect of the instrument as originally expressed, or reduces to certainty some provision which was originally unascertained and a such void, or which may otherwise prejudice the party bound by the deed as originally executed.
870 The effect of making such an alteration without the consent of the party bound is exactly the same as that of cancelling the deed.
" To the same effect are the observations made by the Privy Council on Nahtu Lal & Ors.vs Musarnat Gomti and Ors.(1).
Now a comparison of Exh.A I (produced by the defendants first et) with Exh. 168 (produced by the plaintiff)would show that besides the obliteration of the word 'partner ' from the preamble as stated above, the plaintiff made two other alterations in Exh.
Originally, the second proviso to sub clause (8) of clause 1 of the agreement stood as given in Exh.A 1 ran thus: "The payment for purchase of cotton will be made on the first (underlining is ours) day of its receipt in the mills of the partners.
" In Exh 168, however, the word 'first ' has been changed into 'tenth ' thus making it read as "the payment for pur chase of cotton will be made on the tenth (underlining is ours) day of its receipt in the mills of the partners.
" The third alteration is no less important.
As would be evident from Exh.A 1, sub clause (3) of clause 12 of the agreement as actually drawn up between the parties read as follows : "A commission of Rupee one percent on value of all sales of products of the above three spinning mills, viz. yarn, and newar, whether sold directly by the partners or otherwise but delivered and produced during the currency of this agreement." After the alteration, the clause has been made to read as follows on Exh.168 : "A commission of Rupee one percent on value of all sales of products of the above three spinning mills, viz. yarn, and newar, whether sold directly by the partners or otherwise but delivered or produced during the currency of this agreement.
" As a result of the last change, the word 'and ' has been substituted by the word 'or '.
As the above mentioned alterations sub stantially vary the rights and liabilities as also the legal position of the parties, they cannot be held to be anything but material alterations and since they have been made without the consent of the defendants first set, they have the effect of cancelling the deed.
Question No. 5 is, therefore, answered in the affirmative.
(1) A.I.R. 1940 P.C. 160.
871 Question No. 6 The plaintiff 's suit, as already indi cated, was for a specific and ascertained sum of money on the basis of settled account.
The courts below have con currently found that there was no settlement of account on April 4, 1949, as alleged by the plaintiff.
After this finding, it was not open to them to make out a new case for the plaintiff which he never pleaded and go into the ac counts and pass a decree for the amount which they consid ered was due from the defendants first set to the plaintiff.
They should have, in the: circumstances, either dismissed the suit or passed a preliminary decree fox accounts di recting that the books of account be examined item by item and an opportunity allowed to the defendants first set to impeach and falsify either wholly or in part the accounts on the ground of fraud; mistakes, inaccuracies or omissions for it is well settled that in case of fraud or mistake, the whole account is affected and in surcharging and satisfying the accounts, errors of law as well as errors of fact can be set right.
By adopting the latter course indicated by us, the defendants first set would have got a fair and adequate opportunity of scrutinizing the accounts and showing whether they were tained with fraud, mistake, inaccuracy or omission or of showing that any item claimed by the plaintiff was in fact not due to him.
Question No. 7 : The High Court has for cogent reasons held that the goods on which the burden of charge lay being available for the satisfaction of the liabilities, if any, under the agreement dated July 6, 1948, the defendants second set could not be held personally liable for payment of the decretal amount.
The opinion expressed by the High Court is correct and we see no warrant or justification to interfere with the same.
In view of the foregoing, we have no hesitation in holding that as material alterations have been made by the plaintiff in the agreement dated July 6, 1948 (which is the basis of the suit) rendering it void and as the bar of section 69 of the Partnership Act clearly applies to the case, the suit is clearly untenable and has to be dismissed.
the result, Appeal No. 572 of 1974 is allowed and the suit out of which it arose is dismissed.
Consequently, Appeal No. 416 of 1973 fails and is dismissed.
In the circumstances of the case, parties are left to Pay and bear their own costs of these appeals.
C.A. 572/74 allowed.
P.H.P. C.A. 416/73 dismissed.
| IN-Abs | Messrs.John & Co. were in financial difficulties and, therefore, entered into a financial agreement with Sethia & Co. a partnership firm of the plaintiff and Seth Sugan Chand.
On 6th July, 1948 Messrs. John & Co. obtained anoth er financial accommodation from Sethia & Co. Messrs. Tejka ran Sidhkaran had also given some advances to Messrs. John & Co. The liability to the firm of Messrs. Tejkaran Sidhkaran was transferred to Sethia & Co. Seth Loonkaran Serbia filed a suit against John & Co. and his partners (defendants first set) as well as Messrs. John, Jain, Mehra & Co. and its partners.
(defendants second set) for recovery of Rs. 21,11,500/ with costs and future interest and for a declaration that the plaintiff had a prior and floating charge on all the business assets of Messrs. John & Co. It was alleged by the plaintiff that the defendants (second set) entered into partnership with the defendants (first set ) under the name and style of Messrs. John Jain, Mehra & Co and maliciously induced them to commit breach of the agreement dated 6 7 1948 by forcibly turning out his representatives who used to remain in charge of the stocks, stores.
coal, waste, etc., of the mills and making them enter into a financial agreement contrary to the terms of the agreement with his firm.
The plaintiff also alleged that accounts were again settled on 4 4 1949 and a sum of Rs. 47,23,738/ was found due to him from the defend ants.
The defendants (first set) contended that there was no settlement of accounts; that the accounts were tainted with fraud and obvious mistakes and that on a true and correct accounting a large sum of money would be found due to them; that the plaintiff and said Sugan Chand obtained various documents, agreements, vouchers, receipts etc., and that the same were of no legal value as they were secured by the former by practising undue influence, fraud, coercion and misrepresentation; that the plaintiff had illegally and contrary to the agreement dated 6 7 1948 debited them with huge amounts which were not really due to them; that the cotton supplied by the plaintiff was of inferior quality and that the rates charged were exorbitant.
It was also denied that the plaintiff had floating or prior charge on any of their stocks, stores, etc; that the suit was barred by the provisions Of section 69 of the Partnership Act and that the agreement dated 6 71948 which was insufficiently stamped could not form the basis of the suit.
The defendants.
(second set) also denied the claim of the plaintiff.
The Trial Court held that the suit was maintainable; that the firm of Messrs. Sethia & Co. was dissolved before the institution of the suit; that the suit being one for the recovery of the assets due to a. dissolved partnership firm from a third party, was not barred by section 69 of the Partnership Act: that Seth Sugan Chand was not a necessary party to the suit; that the agreement dated 6 7 1948 was duly stamped and that no undue influence etc., was exercised by the plaintiff on the defendants; that there was no ac counting on 4 4 1949 as alleged by the plaintiff and that both the plaintiff and the defendants (first set) committed a breach of the agreement dated 6 7 1948.
The Trial Court also held that a charge was created in favour of the plain tiff in respect of the entire business assets and that the defendants (second set) were liable to satisfy the plain tiff 's claim.
The Trial Court decreed the plaintiff 's suit to the extent of Rs. 18,00,152 but rejected his claim for specific performance and injunction.
The Trial Court accord ingly passed a preliminary decree against both the sets of defendants directing them to deposit 854 the said amount in the court within the prescribed time and in default gave the plaintiff a right to apply for a final decree for the sale of all the business assets, goods, stocks, stores, etc.
The decree also gave a right to the plaintiff to apply for a personal decree against the defend ants for the balance of his claim in case the net sale proceeds of the property of the firm were found insufficient to discharge his claim.
The plaintiff filed an appeal in the High Court of Allahabad and the defendants also filed an appeal against the judgment of the Trial Court.
The High Court allowed both the appeals partially holding that no fraud, undue influence, coercion or misrepresentation was practised by the plaintiff; that the agreement dated 6 7 1948 was neither insufficiently stamped nor did it require registration; that the deed of dissolution dated 22 7 1948 was prepared for the purpose of the case but there was sufficient evidence on the record to indicate that said Sugan Chand had withdrawn from the partnership carried on in the name of Serbia & Co. with effect from 30 6 1948; that Seth Sugan Chand was not a necessary party to the suit; that the suit was not barred.
by section 69 of the Partnership Act; that the alterations in the deed dated 6 7 1948 were not material alterations and did not render the agreement void; that the plaintiff had a floating charge over the business assets of John & Co.; that it was defendants (first set) and not the plaintiff who committed breach of the ' agreement.
The High Court, there fore, passed a preliminary decree for Rs. 11,33,668/ in favour of the plaintiff and against the defendants (first set) but dismissed the suit with costs as against the de fendants (second set).
The High Court granted certificate under Article 133 in both the appeals.
Dismissing the plaintiff 's appeal and allowing the appeal of the defendants (first set) held: (1) Section 69 of the Partnership Act is mandatory in character and its effect is to render a suit by a plaintiff in respect of a right vested in him or acquired by him under a contract which he entered into as a partner of an unregistered firm, whether existing or dissolved, void.
[869 A] (2) A partner of an erstwhile unregistered partnership firm cannot bring a suit to enforce a right arising out of a contract failing within the ambit of section 69 of the Partnership Act.
The suit out of which the appeals arise was for enforcement of the agreement entered into by the plaintiff as partner of Serbia & Co. It was never pleaded by the plaintiff not even in his replication that he was suing to recover the outstanding of a dissolved firm.
Thus the suit was clearly hit by section 69 ' and was not main tainable.
[869 B C] (3) A close scrutiny of the document and other evidence clearly negatives the plaintiff 's claim that the firm was dissolved with effect from 30th June 1948.
[865 C] (a) The agreement dated 6th July 1948 itself is signed by the plaintiff as a partner and the, expression partner also appears in the body of the agreement.
[865 D] (b) The alleged deed of dissolution dated 22nd July 1948 between the plaintiff and Seth Sugan Chand was prepared on a stamp paper printed in the Government Press in November, 1948.
The said Dissolution Deed was, therefore, clearly fabricated by the plaintiff.
The plaintiff signed various cheques in July, 1948 as the partner of Sethia & Co. [865 F H; 866 A C; 867 F] (c) No service by post or advertisement in the newspaper about the dissolution was given either by the plaintiff or by Seth Sugan Chand.
[867 F] (4) Seth Sugan Chand was a necessary party to the suit and in spite of the objections raised on behalf of the defendants the plaintiff did not care to implead ' Seth Sugan Chand.
The suit was bound to fail on that ground also.
[869 D E] (5) A material alteration in a document without the consent of a party to, it has the effect of cancelling the deed.
[870 A] Volume 12 of Halsburys Laws of England (Fourth Edition) referred to.
855 Nathu Lal & Ors.
vs Musammat Gomti & Ors.
(A.I.R. relied on.
In the present case there were many material alterations of the document.
The material alterations, therefore have the effect of cancelling the deed in question.
[870 B D] (6) The plaintiff 's suit was for a specific and ascer tained sum of money on the basis of settled account.
The Courts below found concurrently that there was no settlement of account as alleged by the plaintiff on 4th April 1949.
After that it was not open to the courts below to make out a new case for the plaintiff which he never pleaded.
The courts be.low could have either dismissed the suit or passed a preliminary decree for accounts directing that the books of account be examined item by item and an opportunity allowed to defendants to impeach and falsify the accounts.
[871 A C]
|
Appeal No. 155 of 1971.
(Appeal by Special Leave from the Judgment and Order dated 24 3 1975 of the Andhra Pradesh High Court in Appeal No. 19/72).
B.V. Subrahmanyam and A. Subba Rao, for the Appellant.
A. K. Sen, K.R. Chaudhary, Miss Nihar Saha and Mrs. Veena Devi Khanna, for the ReSpondent.
The Judgment of the Court was delivered by BEG, J.
This is a defendant 's appeal by special leave against the judgment of the High Court of Andhra Pradesh decreeing, with costs, the claim of the plaintiffs respond ents, the Andhra Pradesh State Electricity Board and the Andhra Pradesh State Government for Rs. 3,34,443.77 as arrears of electricity charges said to be due from the Vijayawada Municipal Council in respect of amounts which were shown in its books as payable to it by consumers of electricity.
The plaintiff 's claim flowed from the terms of the Andhra Pradesh (Andhra Area) Electricity Supply Undertaking (Acquisition) Act 15 of 1954 (hereinafter refered to as 'the Act '), the provisions of which were applied to the electric ity undertaking of the appellant Municipal Council with effect from 22nd December, 1961,.
by the Government of Andhra Pradesh.
The rights of the State were transferred to the Andhra Pradesh Electricity Board the co plaintiff re spondent.
The amounts claimed were shewn in the books of the Council 's electricity undertaking on the date of its acquisition as due to it from direct consumers of electric ity to whom it used to sell electricity supplied to it in bulk.
The "Electricity undertaking" was taken over by the Government by an order under Section 4 (1 ) of the Act.
This section provided: "4.
Power of Government to take over any undertaking : (1 ) The Government may, in respect of any undertaking not taken over by them before the commencement of this Act, by order in writing, declare that it shall vest in them on the 848 date specified therein, such date not being earlier than four months from the date of the declaration :" The Municipal Council was the licensee from whom the "undertaking", as a commercial concern, was taken over.
A licensee is de fined by section 2(j) to mean: " . a person licensed under part II of the Electricity Act to supply electricity energy, or a person who has obtained sanction under section 28 of that Act to engage in the business of supplying electricity and in relation to an undertaking taken over.or an undertaking which has vested in the Government under section 4 the person, who was the licen see at the time the undertaking was taken over or vested in the Government, as the case may be, and includes the successorin interest of any such person;" The State Electricity Board stepped into the shoes of the licensee on behalf of the State, to discharge all the existing obligations of the licensee, arising out of past transactions, and, for this reason, became entitled to the benefits of all contracts, whether they had accrued in the past or were to arise in future, which existed at the time of the taking over of the undertaking.
The effect of the "taking over" of an undertaking and the vesting the rights and liabilities of the former licensee in the State, by operation of law, was indicated by sections 5 and 6 of the Act.
Section 5 provided for compensation to be paid on one of three alternative bases specified in this provision.
The licensee could opt for one of the three bases.
The provisions of section 6(2) of the Act give the consequences of vesting.
Section 6(2) of the Act enacts: "6(2) (a) If compensation is payable in respect of an undertaking under Basic C, only the property, rights liabilities and obliga tions specified herein shall vest or be deemed to have vested in the Government on the vest ing date : (i) all the fixed assets of the licensee and all the documents relating to the under taking; (ii) all the rights, liabilities and obligations of the licensee under hire pur chase agreements, if any, for the supply of materials or equipment made bonafide before the vesting date; (iii) all the rights, liabilities and obligations of the licensee under any other contract entered into bona fide before the vesting date, not being a contract relating to the borrowing or lending for money.
(b) All the assets specified in clause (a) (i) shall vest or shall be deemed to have vested in the Government free from any debts, mortgages or similar obligations of the licen see or attaching to the undertaking. 849 Provided that such debts, mortgages or obligations shall attach or shall be deemed to have attached to the. compensation.
payable under this Act for the assets".
A glance at clause (2) (a) (iii) of section 6 indicates that it clearly provides for the vesting of "all the rights liabilities and obligations of the licensee" under contracts entered into "before the date of vesting".
Therefore, we find no merit in the objection, on behalf of the Municipal Council, that past dues of consumers of electricity, shown in the books of Vijayawada Municipal Council, could not vest in the State Government, in a case in which basis C is applicable for compensation.
The compensation provided by Section 5(3)(vi) applicable to basis 'C ' takes in "the book value of all intangible assets to the extent such value has not been written off in the books of the licensee".
The result ' is that "the aggregate value" of all items speci fied in section 5(3), including items falling under sub clause (vi), became payable as compensation to the licensee on principle 's specified in the Act.
The learned Counsel for the appellant has placed a great deal of reliance on the provi sions of Section 10(2)(b) (iii), which are applicable to cases of compensation payable on basis 'C '.
Section 10 gives a list of deduc tions from compensation.
One of the items of this ,deduction is found in section 10(2)(b)(iii) which lays down: "all sums paid by consumers by way of security deposit and arrears of interest due thereon on the vesting date, in so far as they have not been paid over by the licensee to the Government, less the amounts which according to the books of the licensee are due from the consumers to the licensee for energy supplied by him before that date;" The provision set out above is sought to be made the corner stone of the arguments of the learned Counsel for the Appel lant Municipal Council, although this very provision was held by the High Court to be decisive against the appel lant 's case that the amounts shown as due from the consumers of the licensee for energy supplied before the vesting date were claims for amounts which the Vijayawada Municipal Council was entitled to appropriate as they must be deemed to be exempted from the effects of vesting of rights and obligations of the undertaking in the State.
It is true, as the learned Counsel for the Municipal Council points out, that only those rights and liabilities and obligations which are specified in section 6(2) (a) are to vest in the State Government.
But, the contention based on alleged non specification of the claims of the licensee against direct consumers to whom it used to supply electric ity over looks, the sweep of section 6(2) (a) (iii), already indicated above, which will cover all rights and liabilities under contracts entered into bona fide before the date of vesting.
It is not possible to assert that the rights of the Municipal Council to realise arrears of dues from the consumers will not be transferred to the State Government when they are covered by the specific language of section 6(2) (a) (iii).
The 850 explicitly wide language used dispenses with the need to specify by enumerating all items which are covered by it.
That is the very object of such language.
We have also indicated how section 5(3)(vi), meant for application to basis 'C ', mentions all intangible rights shewn in the books of the licensee.
This also supports the interpretation we place on section 6(2)(a)(iii) and on the wide ambit of the specification here which must, obviously, not conflict with section 5(3)(vi).
We are, therefore, completely unimpressed by arguments based on supposed non specification of the claims of the former licensee under taking against consumers to whom it had supplied electricity in the past and against which it had claims which vested, from the specified date, in the State Government.
Learned Counsel 's argument, on the meaning of Section 10(b) (iii), is really meant to reinforce the argument indicated above, based on alleged non specification of the claims of the Municipal Council as a licensee for supplying electrici ty to consumers.
If the meaning of relevant provisions of section 5 and 6 is clear, we do not think that any assist ance could be derived ' by the appellant Municipal Council from the provisions of section 10(2)(b)(iii) unless these clearly conflicted with the other provisions.
If, however, two interpretations were possible of these provisions, we should, we think, prefer the one which is in harmony with the clear meanings of the terms of section 5(3), read with section 6(2) (a) of the Act as indicated above.
This is the salutary rule of construction resting upon the doctrine that a statute, like any other document, must be read as a whole to extract its meaning and intendment correctly.
Learned Counsel for the appellant submits that the exclu sion by section 10(2)(b)(iii) of the amounts which, accord ing to the books of the licensee, "are due from the consum ers to the licensee for energy supplied by him before that date" (i.e. the date of vesting), from the ambit of deduc tions from compensation, necessarily implies that these amounts can be appropriated by the appellant Municipality.
'We are, quite unable to see how this inference follows from an exclusion from items of deduction from compensation.
A deduction from an item of compensation may, if there was nothing else to furnish a clue as to its meaning, imply that it was not being compensated for because the party whose rights were acquired was retaining the item.
But, an exclusion from an item of deduction from compensation itself could, according to its natural meaning, only indicate that this was being done because this was an item which is cov ered by the compensation provided for and to be paid.
A close examination of section 10(2)(b)(iii) wilt show that it is meant for security deposits and arrears of inter est due on them which are generally held in trust by the licensee so as to be ultimately returned to the consumers, if the dues of the consumers have been met without resorting to the amounts deposited.
They are used for a deduction of dues where these have not been paid; We know that these deposits are required so as to cover claims from defaulting consu 851 mers in order to avoid the trouble of litigating to enforce them.
If these deposits have not been made over by the licensee to the Government, they will be claimable by the depositors from the licensee.
Hence, it seems fair to deduct them from any item of compensation as these deposits are not meant to be kept by the licensee.
They do not constitute profits of the business or price for anything supplied or payment for services rendered or an asset out of which liabilities of the licensee may be met.
If, howev er, there are any amounts shewn in the books o[ the licensee as due from the consumers of energy supplied before the date of vesting, they would become realisable by the Govt.
Hence, the amounts for which deductions from items of compensation will have to be made is reduced by the amounts which are due from consumers to the licensee for energy supplied by the licensee before the date of vesting as they become the claims realisable by the successor in interest of the licensee.
Therefore, the High Court 's interpretation was, obviously, correct.
This provision supports the case of the respondents rather than that of the former licensee Municipal body.
It is very difficult to see how it supports the appellant 's case.
It appears that no question was raised before 'the High Court as to the nature of the obligation incurred by the Municipal Council to pay the amount claimed apart from its right to appropriate the amount itself as part of the assets which had, it was asserted, not vested in the State Govern ment.
An attempt was, however, made before us to confuse it with the payment made by the Municipal Council itself to the Government for the bulk supply of electricity used, inter alia, for street lighting and other purposes by the Council itself.
But, no question was raised in the plead ings to indicate that the plaintiff 's claim included these past dues.
We do find that the licensee had set up certain reasons for its inability to realise certain amounts from the consumers.
We do not know what all these reasons precisely were or whether the licensee, was really unable to realise them for any of these reasons.
But, ground No. 1 of the special leave petition shows that the Municipal Council had Rs. 9 lakhs with it in deposit for the recovery of the claims not realised from which it proposed to deduct the amounts claimable towards dues and to.
appropriate them itself.
The ground runs as follows: "In the instant; case the learned trial judge found that there was a deposit of 3 lakhs of rupees with the Vijayawada Municipal ity and the Vijayawada Municipality by virtue of section 10(2)(b)(iii) is certainly entitled to adjust and by virtue of section 10(2)(b)(iii) of the Act 15 of 1964, the Government can deduct that security from out of compensation less the amount due to the licensee from its consumers upto the vesting date.
" We may also mention that it was not argued on behalf of the Municipal Council that what was vested in the Government was only the right to realise the claims itself and not an amount of money which the Municipal Council had actually realised or could have realised if 852 it took steps to make realisations.
On the other hand, ground No. 1 of the grounds of appeal quoted above, shows that the case of the Municipal Council was simply that it is 'entitled to deduct amounts claimed from whatever may be the amounts in deposit be cause.
the claims against the consumers had vested in the Municipal Council and not in the Government.
We think that legal questions of interpretation of the Act, to which the learned Counsel for the parties rightly con fined their arguments, apart from some at tempts to raise questions outside the plead ings which could not succeed, were rightly answered by the High Court when it held that the relevant provisions, if correctly inter preted, meant that the claims for dues on electricity supplied at enhanced rates, the validity of which had been unsuccessfully challenged by some consumers in certain other proceedings initiated before filing of the suit now before us, had vested in the State Government.
Consequently, we affirm the judgment and decree of the High Court and dismiss this appeal with costs.
V.P.S. Appeal dismissed.
| IN-Abs | Section 4 of the Andhra Pradesh (Andhra Area Electricity Supply Undertaking (Acquisition) Act, 1954, empowered the Government to declare that an electricity undertaking of the licensee Municipal Council shall vest in Government on a specified date.
Section 5 provides for compensation to be paid on one of three alternative bases, A, B or C set out in the Act.
Where compensation is on the basis 'C ',, it in cludes under section 5(3)(vi) the book value of all intangible assets to the extent such value has not been written off in the books of the licensee; and section 6(2)(a) mentions the items that would vest in the State Government.
Section 6(2)(a)(iii) relates to all the rights, liabilities and obligations of the licensee under any other contract entered into bona fide, not being a contract relating to the borrowing or lending for money.
Section 10(2) (b)(iii) lays down that the Government may deduct from the compensation all sums paid by consumers by way of security deposit and arrears of interest due thereon on the vesting date, in so far as they have not been paid over by the licensee to the Government, less the amounts which according to the books of the licensee are due from the consumers to the licensee for energy supplied to such consumers before that date.
In the present case, the State Government made a decla ration regarding the vesting of the Electricity Undertaking of the appellant in the State Government, and transferred its rights to the respondent Electricity Board.
Certain amounts were shown in the books of the appellant as due to it from consumers.
The respondent claimed those amounts and flied a suit against the appellant for their recovery.
The trial court dismissed the suit, but the High Court allowed the appeal.
In appeal to this Court, it was contended that past dues from the consumers would not vest in the respondent as they were not specifically mentioned in section 6(2)(a); and that under section 10(2)(b)(iii) the appellant was entitled to deduct and appropriate the amounts due from consumers for supply of electricity from their security deposits.
Dismissing the appeal to this Court, HELD: (1) The explicitly wide language used in section 6(2)(a)(iii) dispenses with the need to specify all items which are covered by it; and, arrears of dues from consumers are covered by the wide language of the clause.
[850 A] (2)(a) Section 10(2)(b)(iii) is meant for security deposits and arrears of interest due on them which are generally held in trust by the licensee so as to be ulti mately returned to the consumers,.
if the dues of the con sumers have been met without resorting to the amounts depos ited.
They are used for a deduction of dues from deposits where these have not been paid.
If these deposits have not been made over by the licensee to the Government, they will be claimable by the depositors, and, therefore, they are deducted from the compensation.
If however, there are any amounts due shown in the books of the licensee as duo from the consumers of energy they would become realisable by the Government under section 6(2)(a)(iii).
It is for this reason that the deduction of security 847 deposit from compensation is reduced by the amounts which are due from consumers to the Undertaking for energy sup plied by the Undertaking before the date of vesting as they become the claims realisable by the successor in interest of the Undertaking.
An exclusion from an item of deduction from compensation could only indicate that this was being done because this was an item which is covered by the compensation provided for and to be paid.
[850 A] (b) In .the present case, the only contention of the appellant was that the right to appropriate the amount of dues did not vest in the respondent but that the amount had vested in the appellant.
It was not argued on behalf of the appellant that what was vested in the Government was only the right to realise the dues from the consumers and not to recover from the appellant the amount which the appellant had actually realised or could have realised.
(3) The High Court 's interpretation of section 10(2)(b)(iii) must be accepted as a correct interpretation because it is in harmony with the meaning of the terms of section 5(3)(vi) read with section 6(2)(a) of the Act.
[851C]
|
Appeal No. 136 of 1953.
Appeal by Special Leave from the Judgment and Order dated the 4th day of May 1949 of the High Court of Judicature at Patna in Appeal from Appellate Decree No. 1918 of 1947 against the Decree dated the 23rd day of July 1947 of the Subordinate Judge, Arrah in Appeal No. 137 of 1946 arising from the Decree dated the 29th March 1946 of the Court of the 2nd Munsif at Arrah in Suit No. T. section 120 of 1943.
R. C. Prasad, for the appellant.
section P. Varma, for the respondent.
187 1955.
April 7.
The Judgment of the Court was delivered by JAGANNADHADAS J.
This is an appeal by leave granted under article 136(1) of the Constitution against the second appellate judgment of the High Court of Patna.
It relates to the office of Pujari and Panda of a famous temple in the town of Arrah in the State of Bihar, known as the temple of Aranya Devi and Killa Ki Devi.
The appellant before us a woman brought this suit claiming joint title to the office along with the defendant and as such entitled to perform the Puja either by herself or through her Karinda and to get a half share in the income of offerings of the said Asthan.
It is the admitted case that this office belongs to the family of both the parties and that the duties of the office were being jointly performed by the defendant and his deceased brother, Rambeyas Pande, and that they were enjoy ing the emoluments jointly.
The plaintiff the widow of Rambeyas Pande claims to have succeeded to her husband 's share in this property and bases her suit on the said claim.
In the written statement the defendant raised three main defences, two out of which are (1) the plaintiff was not the legally wedded wife of his brother, Rambeyas Pande, and (2) during the life time of Rambeyas Pande, there was a division between them with reference to the office of Pujari and Panda belonging to this family in respect of two temples (a) at Arrah and (b) at Gangipul, that the office of pujari at Gangipul was given to the plaintiff 's husband and that the temple of Aran Devi at Arrah was given to the defendant and that since then, i.e., for about 11 years prior to the date of the suit, the plaintiff 's husband had no connection with the office of Pujari in this temple nor with the receipt of any offerings therein.
Both these contentions were found against the defendant by the trial court as well as by the first appellate court and they have become conclusive.
The further and third defence raised by the defendant was that the property in suit, viz., the office of Pujari and Panda of the templet cannot be inherited by a female, The contention 188 is set out in the following terms in the written statement: "The plaintiff is not at all entitled to the office and the post of Pujari and Panda of Arun Devi and she is not entitled to get 1/2 share or any share in the income and offering of the said Asthan, nor has she got any right to perform Puja as a Panda personally, or through her karinda and to get the income, etc.
This is against the custom and usage and practice and also against the Sastras.
The property in suit is such as cannot be inherited by a female".
It is the question thus raised which has got to be con sidered in this appeal.
The trial Court held against this contention in the following terms: "No authority has been cited nor any custom proved to show that, female cannot inherit a property of this nature".
The first appellate Court also affirmed this view as follows: "The defendant 's objection that the plaintiff being a female is not authorised to hold the office of a priest of the Aranya Debi temple is not borne out by any evidence or material on the record.
There is nothing to show that by reason of her sex she is debarred from holding this office either by religion, custom or usage.
Moreover admittedly she holds the office at the Gangi temple".
On the findings arrived at by the trial court and the first appellate court, the plaintiff got a decree as prayed, for declaring her right to half share in the office and for recovery of mesne profits on that footing.
On second appeal to the High Court, the learned Judges went into the question at some length and were of the opinion that "the plaintiff being a female is not entitled to inherit the priestly office in question and her claim to officiate as a priest in the temple by rotation cannot be sustained.
The declaration sought for by her that she is entitled to the office of Pujari cannot, therefore, be granted".
They held, however, "that she is not debar red from being entitled to be maintained out of the estate of her, husband which, in 189 the particular case, happens to be no other than the emoluments attached to the priestly office in the shape of offerings made to the deity which office was undoubtedly hereditary".
They further held that "she will be entitled to receive from the defendant half the amount of the offerings in lieu of her maintenance" and they varied the decree of the trial court accordingly.
The short question that arises, therefore, for consideration in this appeal is whether a Hindu female is entitled to succeed to the hereditary priestly office of a Pujari and Panda held by her husband in a temple and to receive the emoluments thereof.
This is a question about which there has been some diff erence of opinion in the decided cases.
It requires close examination.
That religious offices can be hereditary and that the right to such an office is in the nature of property under the Hindu Law is now well established.
A Full Bench of the Calcutta High Court in Manohar vs Bhupendra(1) has laid this down in respect of Shebaitship of a temple and this view has been accepted by the Privy Council in two subsequent cases in Ganesh vs Lal Behary(2) and Bhabatarini vs Ashalata (3).
In a recent judgment of this Court reported as The Com missioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar(4) this view has been reiterated and extended to the office of a Mahant.
On the view that Shebaiti is property, this Court has also recognised the right of a female to succeed to the religious office of Shebaitship in the case reported as Angurbala vs Debabrata(5), where the question as to the applicability of Hindu Women 's Right to Property Act to the office of Shebaitship came up for consideration.
On the same analogy as that of a Shebaiti right, the right of a hereditary priest or Pujari in a temple must also amount to property where emoluments are attached to such an office.
Indeed, some of the decisions which have recognised the Shebaiti right as property appear to be cases where the Shebaiti (1) A.I.R. 1932 Calcutta 791.
(2) (1936] L.R. 68 I.A. 448.
(3) [1943] L.R. 70 I.A. 57.
(4) ; (5) 190 right combines the priestly office of a Pujari of the idol with the office of the manager of the temple, who in South India, is known by the name of Dharmakarta.
As early as in Mitta Kunth Audhicarry vs Neerunjun Audhicarry(1), it was recognised that hereditary priestly office in a family is property liable to partition.
A number of other decisions to be noticed in the later part of this judgment recognise this position.
The learned Judges of the High Court in their judgment in the case under appeal, have attempted to distinguish the present case from that of the case of the Shebaitship and have come to the conclusion that while in respect of Shebaiti right a woman may succeed by heirship, she is not entitled to such succession in respect of the right of a Panda and Pujari.
But in making this distinction they do not negative the idea that the right to the office of the Pujari itself is property to which a female could succeed, but for her supposed disqualification.
The disqualification is said to arise with reference to the duties attached to this office, and it is said that in this respect it differs from the office of a Shebait.
Now there can be no doubt that while in one sense the right to such a religious office is property it involves also substantial elements of duty.
As has been stated by this Court in Angurbala vs Debabrata(2) and in The Commissioner, H. R. E., Madras vs Sri Lakshmindra Thirtha Swamiar(3) "both the elements of office and property, of duties and personal interest are blended together (in such offices) and neither can be detached from the other".
It must also be recognised that in respect of such offices especially where they are attached to public institutions, the duties are to be regarded as primary and that the rights and emoluments are only appurtenant to the duties.
See the observations of Justice Page in Nagendra vs Rabindra(4) at pages 495 and 496 and that of Justice Sadasiva Aiyar in Sundarambal vs Yogavanagurukkal(5) at page 564, as also of Mukherjea on 'Endowments (1) [1875] XIV B.L.R. 166.
(2) (1951] S.C.R. 1125.
(3) ; (4) A.I.R. 1926 Calcutta.490.
(5) A.I.R. 1915 Madras 561.
191 (1952 Edn.) page 201.
If, therefore, it is found that the recognition of a female 's right to succeed to the hereditary office of Pujari in a temple held by her husband is incompatible with due discharge of the duties of the office, her right to succeed must be negatived.
The correct approach to a question of this kind has been laid down by the Privy Council in a case which relates to a Mohammadan religious office but would equally be applicable to a Hindu religious office.
In Shahar Bano vs Aga Mahomed Jaffer Bindaneem(1) their Lordships, after noticing the View taken by the learned Judges of the Calcutta High Court, that "there is no legal prohibition against a woman holding a mutwalliship when the trust, by its nature involves no spiritual duties such as a woman could not properly discharge in person or by deputy" approved this view of the High Court and said "it appears to their Lordships that there is ample authority for that proposition".
The question, therefore, that requires consideration in the present case is whether the office of the Pujari and Panda in a temple involves such duties as could not be discharged by a female in person and if so, whether she is also incompetent to get the same discharged by a deputy.
Now for this purpose it is desirable to have a clear idea of the duties of a Pujari in an ordinary Hindu temple.
A Pujari has to perform the prescribed daily worship of the image as well as the special worship of a periodical nature on particular occasions and for prescribed festivals during the year.
In Ramabrahma Chatterjee V. Kedar Nath Banerjee Justice Sir Asutosh Mookerjee indicated the daily routine of worship in the following passage: "The normal type of continued worship of a consecrated image consists of the sweeping of a temple, the process of smearing, the removal of the previous day 's offerings of flowers, the presentation of fresh flowers and water, and other like practices.
It is sufficient to state that the deity is, in short, conceived as a living being and is treated in the same way as the (1) [1906] L.R. 84 I.A. 46, 53.
(2) A.I.R. 1923 Calcutta 60, 62.
192 master of the house would be treated by his humble servant.
The daily routine of life is gone through with minute accuracy; the vivified image is regaled with the necessaries and luxuries of life in due succession, even to the changing of clothes, the offering of cooked and uncooked food, and the retirement to rest".
In Saraswati 's Hindu Law of Endowments(1) the nature of the daily worship of a consecrated idol in a temple is set out at pages 134 and 135 in detail.
It must be recognised that the daily worship differs according to the tenets and usages of the religious sect for which the temple is intended and the idol is consecrated.
But whatever may be the details of the worship and the variations therein, there can be no doubt that the ministration of various services involving personal touch of the idol, and, often enough, the recitation of religious hymns inclusive of Vedic hymns are amongst the normal and essential features of a Pujari 's duties, at any rate in temples where the worship is conducted according to the Shastras.
It is also undisputed that according to Hindu Shastras the functions of a Pujari can be performed only by certain limited classes and involves special qualifications and that these classes may vary with the nature of the institution.
Now, whatever may have been the position in early times, of which there is no clear historical evidence, it appears to have been well established in later times that a female, even of the recognised limited classes, cannot by herself perform the duties of a Pujari.
Even at a time when the institution of temple worship had probably not come into general vogue, the incapacity of a woman to recite Vedic texts, to offer sacrificial fire, or to perform sacramental rites, is indicated in certain texts of Manu.
(See Sacred Books of the East, Manu, Vol. 25, pages 330 and 437, Chapter 9, section 18 and Chapter 11, section 36).
Whether it is on the basis of these texts or for some other reason, her incapacity to discharge, in person, the duties of the Pujari appears to have been well (1) The Hindu Law of Endowments by Pandit Prannath Saraswati, T.L.L., 1892.
(1897 Edn.).
193 settled in later times as appears from the following text from Brihan Naradiya Purana quoted in Saraswati 's Hindu Law of Endowments at page 136.
"Women, those uninvested with the sacred thread, (i.e. the members of the Dvija class before the initiation ceremony has been performed for them), and Sudras are not competent to touch images of Vishnu or Siva.
A Sudra, one uninvested with the sacred thread, a woman or an outcaste, having touched Vishnu or Siva, goes to hell".
This passage, in terms, refers to the images of Vishnu and Siva but it may reasonably be assumed, in the absence of any evidence to the contrary, that in practice the incapacity of a female to discharge the duties of a Pujari by herself extended, at any rate, to all public temples where an image of whatever form had been consecrated and installed according to the Shastras.
Indeed, all the cases on the subject have assumed this incapacity of the female.
The point of controversy has been whether she is also incompetent to get the duties discharged by employing a qualified substitute.
If her competence in this behalf is recognised and can be accepted there is no reason why she should not be held entitled to succeed to the office.
Thus the really important question for consideration in this case is whether the duties of the Pujari '8 office can be got done by a substitute and if so is there any particular reason or clearly established usage, against a female employing such a substitute and thus becoming entitled to the office.
In early Hindu society a priestly office could have relation only to the performance of various kinds of Vedic rituals and sacrifices either of a daily and routine nature or of a periodical and special nature.
In theory a Brahmin is to perform such functions for himself by himself, while persons of other classes ,should get them done through qualified Brahmin,s.
On principle a, priest in the Hindu concept is chosen as such with reference to his personal qualities and competence.
The system of hereditary priesthood however, with the possibility of persons not fully 25 194 competent, succeeding to or occupying such an office, appears to have come into vogue from fairly early times.
It appears, however, that from the very nature of the situation, the temporary discharge of the priestly function by a substitute in the place of the hereditary priest was a matter of inevitable necessity since the Hindu Shastras recognised temporary and casual disqualifications like that of butt and death pollution.
But there does not appear to be any indication in the early books of any general practice about the functions of priestly office being discharged by proxies.
In comparatively later days, however, there is clear indication of such a practice.
In Saraswati 's Hindu Law of Endowments at page 56, it is stated that in the Padma Purana and other treatises incapacitated persons are directed to have the worship performed through Brahmins.
This statement is with reference to the performance of service of an idol and has presumably reference to the incapacity of persons occupying a priestly office.
In Colebrooke 's translation of the Digest of Hindu Law on Contracts and Successions with a commentary by Jagannatha Tercapanchanana (4th Edition, published by Higginbotham & Co., Madras, 1874), Vol.
I, Book II, Chapter III, Section 11, pages 360 to 381 deal with the topic of partnership among priests jointly officiating at holy rites.
A perusal thereof and particularly of placita 28 to 44 containing citations from various Smrutis with Jagannatha 's commentary thereon, clearly indicate that the institution of hereditary priestship, became established by that date and that the performance of such priestly functions by substitutes had definitely come into vogue.
Various rules are propounded as to the sharing of remuneration between the substitute priest and the hereditary priest when the former happens to perform the functions in the place of the latter.
It is to be noticed that these passages from Jagannatha 's Digest refer in terms only to priestly office by way of officiating at holy rites, i.e., sacrifices and other Vedic or Shastric functions but do not in terms refer to the discharge of a priest 's duties in relation to the worship of an idol in a temple.
195 This is all the more remarkable because by the date of Jagannatha 's Digest the institution of worship of consecrated idols in temples had become long since fairly established.
The probable explanation is that Jagannatha 's Digest is a commentary on selected texts mostly of the various Smrutis from which he quotes and that in the days of the Smrutis the temple worship does not appear to have come sufficiently into vogue.
The historical origin and growth of temple worship has been fully dealt with in Saraswati 's Hindu Law of Endowments and has been also noticed in the referring judgment in Annaya Tantri vs Ammaka Hengsu(1).
It is pointed out therein that according to Hindu sentiment the performance of the duties of an Archaka or Pujari for an idol has been considered sinful and it required inducements by way of liberal grants of land and promise of substantial perquisites to attract competent persons for the office of Pujari or Archaka.
This, in course of time and with the change in social conditions and economic values, rendered the offices of Panda and Pujari in almost all the famous shrines in India, a lucrative affair, and has enabled the hereditary priests to get the functions discharged by paid substitutes and themselves enjoy a substantial margin of income.
Here just in the same way as the patronage of the kings or the society may have been a great incentive to the development of the system of discharge of hereditary priestly functions by substitutes in relation to sacrificial and Vedic religious rites, the phenomenal development and worship of idols in temples and the substantial emoluments which in course of time rendered the discharge of priestly office lucrative must have brought into vogue the employment of substitutes for performance of the duties of the priests not only for sacrificial or other religious rites but also for temple worship.
Whether and how far this practice is permitted by the Shastras is not the question before us.
But it cannot be denied and is indeed a matter of common knowledge, that at the present day, hereditary priestly offices are, as often as not, performed by proxies, (1) A.l.
P, 1919 'Madras 598 (F,B.).
196 the choice of proxy being, of course, limited to a small circle permitted by usage.
The question for consideration of the courts is, whether, in this state of things, a female is to be excluded from succession to the hereditary office of Pujari on account of her well recognised personal disqualification to officiate as such Pujari for the Shastrically installed and consecrated idols in the temples and whether she is to be denied the capacity to retain the property by getting the priestly duties efficiently discharged through a competent substitute.
The only basis for the alleged denial is a passage from Jagannatha 's Digest which is as follows: (Vide Vol. 1, page 379, commentary under placitum 43).
"Wives and others, disqualified by sex for the performance of holy rites, cannot appoint a substitute; as defiled person cannot perform a solemn act ordained by the Vedas, therefore wives have no property in the office of priest".
Now apart from the question whether this passage can be taken to be sufficiently authoritative, there has been some difference of opinion as to the correct import thereof.
In Sundarambal Ammal vs Yogavanagurukkal(1) this passage has been relied upon by Justice Sadasiva Aiyar as showing that women are incompetent to discharge the functions of a priest even through a substitute and that, therefore, they have no right of succession to the office.
The learned Judges of the High Court in the present case have also relied on it.
In Annaya Tantri vs Ammaka Hengsu(2), Justice Seshagiri Aiyar in his referring judgment has referred to this passage and was of the opinion that it does not express a specific view.
In Ganapathi Iyer on Hindu and Mahomedan Endowments (2nd Edn.) the learned author while commenting on this very passage says as follows at page 453 of his book: "Jagannatha there considers the question whether wives and others have a title to the succession to this priestly office.
As usual with the discussions of (1) A.I.R. 1915 Mad.
(2) A.I.R. 1919 Mad.
598 (F.B.).
197 Jagannatha it is difficult to say what his final opinion is.
But we should certainly think that Jagannatha 's opinion is that women can inherit doing the duties through a substitute, but enjoying the emoluments attached to that office".
It appears on a careful consideration of the disputed passage with reference to its context, that this view ' of the learned author is correct.
In any case the passage cannot be definitely relied upon as an authority for the contrary view.
The discussion in connection with which this passage occurs in the commentary is under placitum No. 43 in Section II of Chapter III, Book II, which is a text from Narada relating to hereditary priests.
The statement relied on occurs at a place where there is an attempt to reconcile the disqualification of the female to discharge the functions of a hereditary priest, and the recognition of her right to succeed to all property including a hereditary office.
The relevant portions of the discussion are herein below set out: "It is doubted whether wives and others have a title to this succession, although the partition founded on the admission of a right vesting in Agraharicas and other officiating priests, ought to be similar to the partition of inheritance in general.
As the wife 's title to succession, on failure of heirs in the male line as far as the great grandson, will be declared under the head of Inheritance, what should reverse her title in this instance? It should not be argued, that the wife can have no right to the village, because as a woman, she is disqualified for the performance of holy rites, and because the wives of agraharicas and others are totally incapable of receiving tila delivered as a gift to priests.
The tila may be received, and the rites be performed, through the intervention of a substitute.
Let it not be argued, that, were it so, a property in the sacrificial fee and regular dues would vest in the substitute.
The wife may have the benefit of property acquired by the substitute, as a sacrificer has the benefit of rites per formed by an officiating priest.
However, there is this difference: the sacrificer acquires merit from rites 198 performed by an officiating priest, and none is ever acquired by the intermediate performer of the rites; but if the duty of the officiating priest.
be performed by a substitute, property in the sacrificial fee is at first vested in the substitute, and through him, in the widow entitled thereto.
It is alleged, that there is no authority for this construction.
* * * * The text which ordains that "a person unable to act shall appoint another to act for him", is the foundation of this construction: but the property of an outcaste, or other person disqualified for solemn rites, is absolutely lost, in the same manner with his right to the paternal gold, silver, and the like.
This will be explained in the fifth book on Inheritance.
Wives and others, disqualified by sex for the performance of holy rites, cannot appoint a substitute: as a defiled person cannot perform a solemn act ordained by the Vedas: therefore wives have no property in the office of priest".
At the end of the discussion there is the following significant passage: "Therefore the difficulty is thus reconciled; women are entitled to that only for which they are qualified.
In regard to the assertion, that women, being disqualified, cannot appoint a substitute, this must be understood: being disqualified for solemn acts ordained by the Vedas, they cannot appoint a substitute for such acts; but, qualified for worldly acts, nothing prevents their appointment of a substitute for temporal affairs: and the right should devolve on the next in succession, under the text quoted in another place (Book 5, vs 477) and because women are dependent on men.
Grain and similar property may be consumed by a woman entitled to the succession; but gold, silver, and the like, should be preserved: if she cannot guard it, let it be entrusted to her husband 's heir, as will be mentioned under the title of inheritance.
Here, since a woman cannot preserve the office, it should be executed by her husband 's daughter 's son, or other heir: but the produce 199 should be enjoyed by the woman.
However, should the daughter 's son be at variance with his maternal grandmother, it may be executed by another person: he is not entitled to his maternal grandfather 's property, if that grandfather leave a wife: and should the maternal grandmother litigate, it must be amicably adjusted".
The concluding portion seems rather to indicate that the more categorical passage underlined above and relied upon is in the nature of an objection which is being answered and that the final conclusion is the recognition of a right to succeed by getting the duties of the office performed by the next male in succession.
The learned Judges of the High Court have in fact noticed this concluding passage but have missed its correct import.
It is desirable now to consider how this question stands with reference to the decided cases in the various High Courts.
A fairly substantial number of cases appear in the reports of the Madras High Court.
One of the earliest decisions is that of the Madras Sadar Diwani Adalat in Seshu Ammal vs Soundaraja Aiyar(1) wherein it was held, following the opinion of the Sadar Court Pandits, that a woman was disqualified by reason of her sex from inheriting the office of Acharya purusha but the same Pandits ' opinion distinctly recognises that religious offices like those of an Archaka or Pujari can be held by a female, by her getting the duties thereof performed through a competent male substitute.
In Tangirala Chiranjivi vs Rama Manikya Rao Rajaya Lakshmamma(2) it was stated that there was no basis for the assumption that a minor, a female, or a person unlearned in the Vedas, will lose the right to service in the temple and that the onus will be on the person who alleges the dis qualification to prove it.
The learned Judges categorically asserted (apparently as being a matter within general knowledge and experience) that "service in temples is being performed by proxies".
In Ramasundaram Pillai vs Savundaratha Ammal(3) the learned Judges say as follows: (1) [1863] M.S.D.A. 261.
(2) A.I.R. 1915 Madras 505(1).
(3) A.I.R. 1915 Madras 725.
200 "It is undeniable that this and other High Courts have in numerous cases acted on the assumption (which was not questioned) that women could hold religious offices and get the duties performed by proxy".
They further say "It may be that the parties concerned are so accustomed to the idea of female office holders with proxies that it has usually not occurred to them to question the legality of such a state of affairs and that in the absence of contest, the Courts have somewhat too readily assumed it to be legal without requiring proof of a valid custom in support of it".
In Rajeswari Ammal vs Subramania Archaka(1) the learned Judges state as follows: "We are of the opinion that a female is not, under Hindu law or custom, disqualified from succeeding to a hereditary religious office and getting such duties as she may be disqualified by reason of her sex from performing, performed by proxy".
The only dissentient view against this current of authority in the Madras High Court was that of Justice Sadasiva Aiyar in Sundarambal Ammal vs Yogavanagurukkal (2) .
He expressed a strong opinion that the practice of allowing the priestly office to be performed by a substitute excepting for merely temporary occasions or casual purposes, is wholly opposed to public policy and that it should not be recognised.
In a later judgment in Annaya Tantri vs Ammaka Hengsu(3) relating to the same topic be (Justice Sadasiva Aiyar) stated as follows: "It is notorious that the deputy is usually chosen on the principle of a Dutch auction.
The man who agrees to allow the widow to retain the largest portion of the emoluments of the office and to receive the least as his own remuneration is given the place of the deputy".
The learned Judge pointed out that "such a practice was mischievous and that even (1) A.I.R. 1917 Madras 963(2).
(2) A.I.R. 1915 Madras 561.
(3) A.I.R.1919 Madras 598 (F.B.). 201 if it was sanctioned by usage it ought not to be recognised by courts".
There is certainly force in this comment.
But in a matter of this kind where there is no express prohibition in the texts for the performance of the duties of the Pujari 's office by the appointment of substitutes and where such an office has developed into a hereditary right of property, the consideration of public policy cannot be insisted to the extent of negativing the right itself.
In such a situation what has to be equally emphasised is the duty aspect of the office and to insist, on the superior authorities in charge of the temple exercising vigilantly their responsibility by controlling the then incumbent of the priestly office in the exercise of his rights (or by other persons having interest taking appropriate steps through court), when it is found that the services are not being properly or efficiently performed.
In view of the peculiar nature of such offices as combining in them both the element of property and the element of duty, it cannot be doubted that superior authorities in charge of the institutions or other persons interested have this right which may be enforced by appropriate legal means.
In Raja Peary Mohan Mukherji vs Manohar Mukherji(1) the Privy Council has recognised that notwithstanding the personal interest of a Shebait in respect of his office, the performance of the duties thereof has got to be safeguarded and that he can be removed where he has put himself in a position in which the obligation of his office can no longer be faithfully discharged.
So far as the Madras High Court area is concerned, the controversy has been settled by the Full Bench case in Annaya Tantri vs Ammaka Hengsu(2) where the view taken by Justice Sadasiva Aiyar was specifically overruled on the ground that "there were numerous decisions of the Madras High Court in conformity with the decisions of the other High Courts by which the widow and the daughter and the daughter (1) [1921] L.R. 48 I.A. 258.
(2) A.I.R. 1919 Madras 598 (F.B.).
26 202 of the last male Archaka are held entitled in accordance with the established user to succeed to the office of Archaka discharging his duties by deputy and to transmit it to their heirs, who as male heirs are preferred to female, and will generally be competent to perform the duties in person".
These decisions of the Madras High Court seem to recognise both the factum and validity of the usage as one that has been accepted by the courts not only within its own jurisdiction but also within the jurisdiction of the other High Courts.
It is urged, however, that there is no such usage that can be definitely said to be established with reference to the decisions of the other High Courts.
As regards the other High Courts doubtless the actual cases appearing in the reports about this point are not many.
In the Bombay High Court one of the earliest decisions is the case in 1866 of Keshavbhat bin Ganeshbhat vs Bhagirhibai kom Narayanbhat(1) where the learned Judges say as follows: "With respect to the objection, that a Hindu female cannot perform the duties which attach to the office for the maintenance of which the allowance was granted, it may be observed that the defendant had not proved the existence of any usage in conformity with his allegations.
The claim in question in that case was to an annual allowance paid from the Government Treasury to the members of a family for the maintenance of certain religious services at the temple of Mahadev at Baneshvar near Poona.
In Sitarambhat et al vs Sitaram Ganesh(2) the head note shows as follows: "Semble, that an hereditary priestly office descends in default of males through females".
This is apparently the assumption on which that judgment appears to have proceeded though the matter does not appear to have been specifically so decided.
In Calcutta one of the early cases is Poorun Narain Dutt vs Kasheessuree Dosee(3).
There it was recognised that a woman can succeed to a priestly (1) 3 B.H.C.R., A.C.J. 75.
(2) 6 B.H.C.R.
A.C.J. 250.
(3) 203 office and the contention to the contrary was over.
ruled on the ground that the lower appellate court found the same as a fact on the evidence and that no one but the defendant had raised the contention.
In Joy Deb Surma vs Huroputty Surma(1) the same question was raised, viz., whether according to Hindu law a woman can succeed to the priestly office and reliance appears to have been placed for that contention on the passage from Colebrooke 's Digest already above referred to.
In view of this contention the learned Judges remitted the case to the lower court for deter mination of the question whether with reference to any particular custom or rule of Hindu law a woman is entitled to succeed to the priestly office.
In that case it was the office of the Dolloi of the temple.
It does not appear what the finding received was and how this matter was finally decided.
In Radha Mohun Mundul vs Jadoomonee Dossee(2) their Lordships of the Judicial Committee quoted with apparent approval the following passage from the judgment of the trial Court: "They (the members of the family) merely say that as the said properties are of a debuttur character, they are not susceptible of division among the shareholders; and that since the plaintiff is a childless widow, she is not competent to carry on the service of the gods.
That the properties in question do not admit of any partition among the co sharers is a fact which must be admitted by me; but I do not see any reason why a widow of the family should be incapacitated from superintending the service of the gods.
It is not urged by the defendants that any such rule has been laid down in the family, and that under it the widows have been excluded from the above superintendence.
On the other hand, among the Hindoos, persons belonging to no other caste except that of Brahmins can perform the service of a god with his own hands, that is, worship the idol by touching its person.
Men of other castes simply superintend the service of the gods and goddesses established by them selves, while they cause their actual worship to be (1) (2) 204 performed by Brahmins.
Thus, when persons of the above description can conduct the service of idols in the above mentioned manner, why should not the widows of their family be able to carry on worship in a similar way?. . . . . .
Consequently, there is nothing to prevent the Court from finding that the plaintiff has a right to hold possession of the debutter properties enumerated by the defendants in the 12th paragraph of their written statement, and to superintend the service of the gods conjointly with the other co sharers".
In Mahamaya Debi vs Haridas Haldar(1) it has been recognised that according to custom the palas of Kalighat shrine in Calcutta are heritable and that it was immaterial whether the heir is a male or a female.
This must necessarily have involved the recognition of the capacity of the female to get the worship performed by a male substitute who is to be taken from a limited class.
As has been already noticed, the reported cases dealing with this matter outside the Madras High Court do not appear to be many.
At any rate, no others have been brought to our notice dealing with this question directly, though there are many cases relating to the question of succession to the office of Shebait and the performance of duties thereof by proxy, which is a matter distinguishable from a case relating to the office of Pujari or Archaka simpliciter.
The paucity of decided cases in the reports of the other High Courts may very well be due to what has been pointed out in one of the Madras cases, viz., that the practice of females succeeding to this office and getting the duties thereof performed by a substitute was so common and well recognised that it has not been seriously contested and brought up to the Courts.
Further the institution of private family temples and the endowments of large and substantial properties for the Deb seva in such temples though somewhat uncommon in South India is fairly common in Bengal and some other States.
In view of the Dayabhaga system of law of succession prevalent in Bengal and the very much larger number (1) A.I.R. 1915 Calcutta 161(2).
205 of occasions for wives and daughters succeeding to a sonless coparcener in Dayabhaga joint families, the practice of females succeeding to the priestly office and of getting the duties performed by other members of the family as proxies in their places must, by the very situation, have been common in these areas.
The case reported in Jalandhar Thakur vs Jharula Das(1) is a case relating to Shebait 's (priest 's) office in the Singheswar temple of Bhagalpur and the facts therein show that there was unquestioned female succession to the office.
It is a clear indication of the prevalence of the usage of female succession to priestly office in the State of Bihar from which the present case arises.
A careful review, therefore, of the reported cases on this matter shows that the usage of a female succeeding to a priestly office and getting the same performed through a competent deputy is one that has been fairly well recognised.
There is nothing in the textual Hindu law to the contrary.
Nor can it be said that the recognition of such a usage is opposed to public policy, in the Hindu law sense.
As already pointed out the consideration of public policy can only be given effect in the present state of the law, to the extent required for enforcing adequate discharge of the duties appurtenant to the office.
Subject to the proper and efficient discharge of the duties of the office, there can be no reason either on principle or on authority to refuse to accord to a female the right to succeed to the hereditary office held by her husband and to get the duties of the office performed by a substitute excepting in cases where usage to the contrary is pleaded and established.
In the present case such a usage was pleaded by the defendant in his written statement but no evidence of it was given.
Indeed as pointed out by the first appellate Court, the plea that there has been a partition of the offices of the two temples and the implied recognition of the plaintiff 's right to the office of the other temple at Gangupal appears to indicate the contrary usage.
We are accordingly of the opinion (1) A.I.R. 1914 P.C. 72. 206 that the claim of the plaintiff appellant is made out and that she is entitled to succeed.
The discussion above is more germane to the case of a public temple wherein the idol has been Shastrically installed and consecrated and the worship is in accordance with the Shastras.
There is nothing on the record to show whether the temple in this case falls within this category.
If, however, the temple is a private one or the idol therein is not one Shastrically consecrated, the case in favour of the plaintiff is much stronger and her right cannot be seriously challenged.
At this stage, it is desirable to mention one other matter.
In the present case the emoluments attached to the office are stated to be the daily and other offerings made to the deity at the worship by the visiting devotees.
Both the parties to this case have come up to Court on the common footing that it is this which constitutes the emoluments.
Whether and how far such votive offerings can be appropriated by a Pujari for his emoluments if the temple is a public institution, (i.e., not a private family temple) and whether any usage in this behalf is valid is a matter which does not arise before us in this case.
In the result, the appeal must be allowed with costs throughout and the decree of the trial court must be restored.
| IN-Abs | Though a female is personally disqualified from officiating as a Pujari for the Shastrically installed and consecrated idols in the temples, the usage of a Hindu female succeeding to a priestly office and getting the same erformed through a competent deputy has been well recognised and it is not contrary to textual Hindu Law nor opposed to public policy.
Subject to the proper and efficient discharge of the duties of the office being safeguarded by appropriate action when necessary, a Hindu female has a right to succeed to the hereditary priestly office of a Pujari and Panda held by her husband and to get the duties of the office performed by a substitute except in cases where usage to the contrary is pleaded and established.
Quaere: Whether and how far votive offerings can be appropriated by a Pujari for his emoluments if the temple is a public institution, (i.e., not a private family temple) and whether any usage in this behalf is valid.
Case law and the relevant texts reviewed.
Judgment of the High Court of Patna reversed.
|
Appeal No. 1360 of 1975.
(From the Judgment and Order dated 12 3 1975 of the Punjab & Haryana High Court in Regular First Appeal No. 315/64).
V.M. Tarkunde, E.C. Agrawala and Miss N. Tarkunde for the, appellant.
Bishan Narain, and Mrs. Urmila Sirur for respondent No. 1.
Hardev Singh and R.S. Sodhi, for Respondent No. 2.
The Judgment of the Court was delivered by CHANDRACHUD, J.
Sardar Gobinder Singh Sibia who was possessed of a large estate died on December 15, 1954 at the age of about 70. 927 He had taken two wives, Gulab Kaur and Dalip Kaur.
The story of his life follows the familiar pattern the pretext of a disagreement with the unwanted wife, special favours for the favourite and jealous rivalries between the children born of the two.
The following pedigree will facilitate a better under standing of the issues involved in me case : Tara Singh Sibia : Ratan Singh : : Gulab Kaur Gobinder Singh Dalip Kaur (Plaintiff) (Died 15 12 1954) pre deceased her husband) (Died 1959) : : : : : Jaswant Kaur . . . . (Appellant) Guraprakash Kaur Gurbachan Sin gh pre deceased his fat her) Joginder Kaur (Died 1971 ) : : Arrit Kaur = Surjit Inder Singh Palvinder Kaur (Respondent1) (Defendant) (Respondent 5) (Died 1968) : : : Gobinder Singh Surinder Singh Gopal Inder Singh (Respondent 2) (Respondent 3) (Respondent 4) After the birth of the appellant Jaswant Kaur, Gulab Kaur started living or as the story goes, was compelled to live with her parents.
Dalip Kaur had given birth to a daughter Guraprakash Kaur and a son Gurbachana Singh.
Gurbachan died during the life time of his father Gobinder Singh, leaving behind his widow Joginder Kaur who died in 1971.
Gurbachan Singh and Joginder Kaur gave birth to two children, a son Surjit Inder Singh and a daughter Palvinder Kaur.
Surjit Inder Singh died in 1968 leaving behind a widow Amrit Kaur and three sons.
On May 22, 1956 which was about a year and a half after the death of Sardar Gobinder Singh, his widow Gulab Kaur filed a suit in forma pauperis claiming maintenance @ Rs. 1000/ per month or in the alternative a one half share in the properties left by her husband.
Her co wife 's grandson Surjit Inder Singh was the defendant to the suit.
He filed his written statement on January 5, 1957 contending that the plaintiff had deserted her husband and that she was neither entitled to maintenance nor to any share in his estate.
On these pleadings the trial court struck issues in the suit on February 1, 1957.
At the end of her evidence on August 17, 1957 the plaintiff gave up her claim for maintenance and stated that she wanted a one half share in her husband 's estate.
The hearing of the suit was adjourned by the learned trial Judge to August 24, for recording defendant 's evi dence.
928 In the meanwhile, on.
August 20, the defendant filed an application asking for permission to produce a will stated to have been made by Sardar Gobinder Singh, on November 26, 1945.
The learned District Judge, Sangrur, who was then seized of the suit rejected that application and refused to allow the defendant to amend his written statement.
That order was, however, set aside in revision by the Punjab.
High Court which directed the trial court to allow the defendant to amend Iris written statement and to produce his father 's alleged will.
On March 8, 1958 the defendant amended his written statement contending that by the will, his father had left almost the entire property to him and that the plaintiff Gulab Kaur was not entitled to any share in the property under the will.
In June, 1958 the plaintiff filed a formal application seeking leave to amend her plaint giving up her claim for maintenance and asking for a one half share in the properties of her deceased husband.
Fresh issues were thereafter framed on the basis of the amended pleadings.
On March 10, 1959 the plaintiff died and her daughter, Jaswant Kaur, who is the appellant before us, was brought on the record as her legal representative.
The suit was tried eventually by the learned Senior Sub Judge, Sangrur, who by his judgment dated June 29, 1964 decreed it.
The learned Judge held that the defendant who set up the will had failed to prove that it was the last will and testament of his grand father Gobinder Singh and alternatively, that even on the assumption that the will was proved, it must be deemed to have been revoked on account of certain dispositions made by the testator after the making of the will.
This alternative conclusion that the will stood revoked by implication is clearly unsupportable and the appellant, who disputes the will, did not urge that consideration before us.
The revocation of an unpriviledged will is an act only a little less solemn than the making of the will itself and has to comply with statutory require ments contained in section 70 of the Succession Act.
Holding that the defendant had failed to discharge his onus of proving the will, the trial court granted to the plaintiff a decree for a one half share in the properties of her husband.
In doing this, the Court relied on "overwhelm ing documentary evidence" showing that according to the custom by .which the parties were governed, a sonless widow was entitled to a one half share in the estate of her hus band, as an equal sharer with the male progeny born of a co wife.
That the parties were governed in this matter by customary law was "openly conceded" in the trial court, the point of dispute being restricted on this point to 'the question as to what in fact was the custom.
It was common ground before us that if the will goes, the plaintiff will be entitled to a half share in the estate of her husband Gobinder Singh.
Aggrieved by the judgment of the trial court, the de fendant Surjit Inder Singh filed First Appeal No. 315 of 1964 in the High Court of Punjab and Haryana.
During the pendency of the appeal, the defendant died on October 22, 1968 and his widow Amrit Kaur, her three sons, and his sister Palvinder Kaur were brought on the record as his legal representatives.
They are respondents 1 to 5 to this appeal.
By its judgment dated March 12, 1975 the High Court set aside the judgment 929 the trial court, allowed the appeal and dismissed the plaintiff 's suit.
The High Court has held, or appears to have held, that the will was duly established.
Since the will excludes the plaintiff as a sharer in the testator 's estate, the suit had to fail, custom or no custom.
This appeal by special leave is directed against the judgment of the High Court.
The defendant who is the principal legatee and for all practical purposes the sole legatee under the will, is also the propounder of the will.
It is he who set up the will in answer to the plaintiff 's claim in the suit for a one half share in her husband 's estate.
Leaving aside the rules as to the burden of proof which are peculiar to the proof of testamentary instruments, the normal rule which governs any legal proceeding is that the burden of proving a fact in issue lies on him who asserts it, not on him who denies it.
In other words, the burden lies on the party which would fail in the suit if no evidence were led on the fact alleged by him.
Accordingly, the defendant ought to have led satis factory evidence to prove the due execution of the will by his grand father Sardar Gobinder Singh.
In cases where the execution of a will is shouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant.
What, generally, is an adver sary proceeding becomes in such cases a matter of the court 's conscience and then the true question which arises for consideration is whether the evidence led by the pro pounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator.
It is impossible to reach such satisfication unless the party which sets up the will .offers a 'cogent and convinc ing explanation of the suspicious circumstances surrounding the making of the will.
There is a long line of decisions bearing on the nature and standard of evidence required to prove a will.
Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar vs
B.N. Thirnmajamma & Others.
(1) The Court, speaking through Gajendragadkar J., laid down in that case the following positions : 1.
Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters.
As in the ease of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
Since section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by section 63 of the Evidence Act, one attesting witness at least has .been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence.
Unlike other documents, the will speaks from the death o[ the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed.
(1) [1959] Supp.
I S.C.R. 426.
930 This aspect introduces an element of solemnity in the deci sion of the question whether the document propounded is proved to be the last will and testament of the testator.
Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
Cases in which the execution of the will is surround ed by suspicious circumstances stand on a different footing.
A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he re ceives a substantial benefit and such other circumstances raise suspicion about the execution of the will.
That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disin herited because the testator might have had his own reasons for excluding them.
The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
It is in connection with wills, the execution of which is surrounded by suspicious circumstance that the test of satisfaction of the judicial conscience has been evolved.
That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
If a caveator alleges fraud, undue influence, coer cion etc.
in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execu tion ' of the will may raise a doubt as to whether the testa tor was acting of his own free will.
And then it is a part of the initial onus of the propounder to remove all reasona ble doubts in the matter.
We will now set out briefly the provisions of the will which is dated November 26,1945.
The will consists of 9 paragraphs, by the first of which the testator appointed Sardar Kesho Ram, a Judge of the High Court of Patiala, and Sardar Bahadur Ranjit Singh a contractor of Delhi, as execu tors.
By paragraph 2 the testator bequeathed the whole of his property, movable and immovable, to his grandson Surjit Inder Singh who is the defendant in the present suit.
By paragraph 3 the testator gave to his wife Dalip Kaur a life interest in a house at Simla, called Kenilworth.
The testator provided by paragraph 4 that if the house was later acquired by the Government or was sold by himself Dalip Kaur would be entitled to receive from his estate a sum equal to the compensation fixed in the acquisition proceedings or equal 931 to the sale price.
The amount was to be deposited in ap proved securities, Dalip Kaur being entitled only to the interest thereon.
On her demise, the house or the amount in deposit was to vest absolutely in the defendant.
Para graph 5gave to Dalip Kaur the right of residence in a part of the house.
at Sangrur, paragraph 6 gave to her the right to use during her life time the jewellery and orna ments and paragraph 7 states expressly that she will have no right to alienate any of the properties in which she was given a life interest.
Paragraph 8 provides that Dalip Kaur had the right to live jointly with the defendant but in case there were differences between them, she would be entitled to receive from him an annual sum.
of Rs. 5,000 for her maintenance.
This amount was to constitute a charge on a land at Karmsar, District Lyallpur.
Paragraph 9 of the will recites that the plaintiff Gulab Kaur had given birth to a daughter Jaswant Kaur in 1898, that Jaswant Kaur was married happily in 1913 to Sardar Gurbax Singh Mansahia, that after Jaswant Kaur 's marriage Gulab Kaur started misbehaving and left for her parents ' house, taking jewellery worth about Rs. 50,000 with her.
It is further stated .in paragraph 9 that Gulab Kaur was "leading her life in a way which would not bear mention here" and that therefore she did not de serve to get any allowance at all from the testator 's property.
The defendant was however directed to pay to her a monthly sum of Rs. 50 for her maintenance provided that she lived in a part of the house at Sangrur and her conduct remained worthy of the Sibia family.
Paragraph 9 expressly mentions that Gulab Kaur would have no right to any share in the testator 's property.
The testator, Sardar Gobinder Singh, was a man of property and occupied a high position in society.
By a modest estimate, the property which he disposed of by his will was of the value of rupees ten to fifteen lakhs.
A registered power of attorney (EX. D/2) which he had executed seven months before the will on April 6.
1945 shows that he owned extensive movable and immovable properties, had a bank account in several banks and that various legal pro ceedings to which he was a party were pending in "all the States of British India".
Gobinder Singh describes himself in the power of attorney as a "big biswedar" and says that he had "a large business to attend to".
The evi dence of Kartar Singh, Gurcharan Singh and Teja Singh (P.Ws. 4, 5 and 6) shows that Sardar Gobinder Singh owned over 15000 bighas of land, several houses and several cars in cluding a Rolls Royce.
sardar Ratan Singh, the father of Gobinder Singh, was the President of the Council of Regency .in the erstwhile State of Jind, while Gobinder Singh himself held "distinguished and responsible posts" in Jind such as the Nazim, the Private Secretary to the Mahara ja and a Minister in his government.
It is the will of a man of such affluence and social status which has to be judged in this case.
It is not as if the burden of proof varies with the riches and social pres tige of the testator but habits of life arc prone to vary with the means of the man and the privileged few who happen to occupy a high place in the social hierarchy have easy access to competent legal advice.
Normally therefore, a genuine will of a propertied man.
well positioned in society too.
does not suffer from 932 the loopholes and infirmities which may understandably beset an humbler testamentary instrument.
Circumstances are too numerous to mention which throw a cloud of suspicion on the making of the will by Gobinder Singh.
The will is alleged to have been made on November 26, 1945 but it did not see the light of day till August 20, 1957.
Being an ambulatory document, it may be granted that there may be no occasion for anyone to know of its existence until the death of the testator on December 15, 1954.
But it is ununderstandable that a document by which property worth lakhs of rupees was disposed of should have remained a closely guarded secret from the whole world of intimate friends and relatives, nay, from the sole legatee himself, for over 21/2 years after the testator 's death.
The testa tor had left behind him a large property and along with it a large amount of litigation which makes it impossible to believe that upon his death in December 1954, no one both ered to go through his papers which would reflect the state and extent of his property.
The explanation of the defend ant that he hit upon the will by chance while going through some papers of his grand father is therefore patently lame and unacceptable.
There is an ominous significance in the date on which the defendant applied for production of the will in the present suit.
By her suit which was filed on May 22, 1956 the plaintiff Gulab Kaur had originally asked for mainte nance ' and in the alternative for a one half share in the estate of her husband.
Under the Punjab customary law by which the parties were governed, the plaintiff, being a sonless widow.
was entitled to an equal share in the proper ty of her husband.
along with the male progeny born from a co wife.
But the customary .law gave to the sonless widow only a limited and not an absolute interest in the estate of her husband.
The , 30 of 1956.came into force on June 17, 1956 which explains why the plaintiff at the end of her evidence on August 17, 1957 expressly gave up her claim for maintenance and restricted her demand in the suit to a one half share in her husband 's estate.
So long as the plaintiff was entitled only to maintenance or to a limited interest in her husband 's property, the defend ant was content to meet that claim by raising pleas like desertion and misconduct The passing of the Hindu Succes sion Act changed the entire complexion of the suit, raising at least a reasonable apprehension ' that on account of the provisions of that Act the plaintiff would become an abso lute owner of a part of her husband 's estate.
By section 8 of the Act, the widow becomes an heir to the husband 's estate on intestate succession, along with other heirs mentioned in Class I of the Schedule.
And by section 14(1), any property possessed by a female Hindu whether acquired before or after the Act becomes her absolute property subject to the provisions of sub section (2) which would have no application in the instant case.
By reason of section 14, the provisions of the Act have generally an overriding effect on custom and usage.
On August 17, 1957 the plaintiff 's evidence was over and the suit was ad journed to August 24 for defendant 's evidence.
In the meanwhile, on August 20, the defendant filed an application stating 933 that he had accidentally discovered a will made by the plaintiffs husband Gobinder Singh and asking for permission to produce that will.
The defendant has not stated why he suddenly thought of examining his grand father 's papers in between the conclusion of the plaintiff 's evidence on the 17th and the 20th of August.
His case is one of a purely providential discovery and neither in the application for production of the will nor in his evidence did he give the haziest details of the discovery.
We are surprised that the High Court should have so readily accepted the story that the defendant stumbled across the will.
The will has been typed out on both sides of a single foolscap paper and is obviously drafted by a lawyer.
No evidence at all has been led as to who drafted the will and who typed it out.
The will uses some trite legal jargon but it does not show where it was executed and contains no description whatsoever of any of the extensive properties bequeathed to the defendant.
The will has been attested by two persons called Dinshaw H.M. Framjee and Pali Ram.
It is intriguing that a person in the position of Sardar Gobinder Singh should choose these two strangers as attesting witnesses to a very solemn and important document.
Dinshaw Framjee was a trader in Simla and Pali Ram was his servant.
Framjee has stated in his evidence that he did not remember where Gobinder Singh used to stay in Simla, that he did not know for how long he was staying in Simla before the attestation of the will, that he was unable to state whether he had met Gobinder Singh after the attestation of the will and that he was unable to give the approximate time of the day when the will was attested forenoon, afternoon or evening.
Framjee was sure about one thing only, that he had not attested the will at night.
He attempted to say that he was on friendly terms with the testator 's family but he was unable to give even the approximate ages of the testator 's son and daughter.
Under the stress of cross examination, he had to admit eventually that he knew nothing about the testator,s family or family affairs.
Pali Ram, the other attesting witness, did ' not remember the date or the year of the execution of the will but said that it was probably executed in 1945.
He did not know the testator and was a total stranger to him.
Whereas Framjee stated that the will was attested in 'his business premises which were on the ground floor, Pali Ram says that Framjee sent for him from the business premises to his residence, which was on the upper floor.
The utter improbability of the testator accosting these two strangers for getting his will attested and the funda mental contradictions in their evidence render it impossible to hold that they attested the will at the instance of the testator as alleged.
A man of importance that the testator was, he could not ever have left the validity of his will to depend on the unpredictable attitude of unknown elements like Framjee and Pali Ram.
Pali Ram claims to have read the will before attesting it.
It iS not known why.
if he knew that the property 934 was bequeathed to the defendent, he did not, at least after the testator 's death, inform the defendant of the existence of the will.
By the will the testator appointed Sardar Kesho Ram, a Judge of the High Court of Patiala and one Sardar Bahadur Ranjit Singh as executors.
Both of these persons were fortunately available for giving evidence but neither of them was examined in the case.
Normally, executors are not appointed without their consent or at least without a prior consultation with them.
Respondent 1, the defendant 's widow, is the daughter of the executor Ranjit Singh.
The marriage was performed during the testator 's life time and we find it hard to believe that he would not disclose even to Ranjit Singh that he had made a will appointing him as one of the executors and that Ranjit Singh 's son in law, that is to say the testator 's grandson, was the sole legatee under that will.
The will is unnatural and unfair in more than one re spect.
At the time that the will is alleged to have been made, the testator had a daughter Guraprakash Kaur who was born of Dalip Kaur and a daughter in law Joginder Kaur, being the widow of the testator 's predeceased son Gurbachan Singh who was also born of Dalip Kaur.
Gurbachan Singh and Joginder Kaur gave birth to the defendant Surjit Inder Singh and to a daughter Palvinder Kaur.
The will contains not even a fleeting reference either to the testator 's daughter or the widowed daughter in law or to the grand daughter Palvinder Kaur.
It is urged that all of these persons were happily placed in life and it was therefore needless for the testator to provide for them.
If that be so, it was usually unnecessary to refer to the appellant Jaswant Kaur who also, it is common ground, has been married happily.
The plaintiff Gulab Kaur has been wholly excluded as an heir of the testator for the supposed reason; that She had brought disgrace to the Sibia family and that her behaviour was such as would not even 'bear mention in the will.
Not only that no evidence was led to show any misconduct on the part of Gulab Kaur but the evidence of Jaswant Kaur (P.W.2) shows that for about 7 or 8 years prior to 1956 Gulab Kaur had lost her eyesight.
One of the issues in the suit namely, issue No. 2, arising from the original pleadings was whether the plaintiff was disentitled to maintenance for the reason that she had deserted her husband.
The judgment of the trial court shows that the defendant led no evidence in support of that issue and that during the course of arguments, the defendant 's counsel did not press the partic ular issue.
The plaintiff on the other hand led evidence in rebuttal and accepting that evidence the trial court rejected the contention that she had deserted her husband.
it seems to us difficult to believe that a person in the position of section Gobinder Singh who was possessed of a large estate, would disinherit so many of his near rela tives including his wife Gulab Kaur and shower his bounty on the grandson, to the exclusion of everyone else.
935 Quite a few other circumstances can be mentioned which raise a grave suspicion as regards the making of the will but the circumstances enumerated above are, tin our opinion, sufficient to discard the will.
The defendant in his evidence has offered no explanation of any of these.
cir cumstances.
He has totally failed to discharge the heavy onus which lay on him of explaining the suspicious circum stance surrounding the execution of the will and of estab lishing that the document which he propounded was the last will and testament of his grand father Gobiner Singh.
Learned counsel for ' the respondents contends that the defendant did not offer any explanation of these suspi cious circumstances because the will was not challenged in the trial court on the ground that its execution was shroud ed in suspicion.
It is impossible to accept this conten tion because even the learned District Judge who had reject ed the defendant 's application for production of the will and the consequent amendment of the written statement had observed in his order dated September 13, 1957 that it was inconceivable that the defendant did not know about the will and that the possibility of :its being forged cannot be excluded.
This itself was sufficient notice to the defendant as to the nature of the burden which he had to discharge.
Counsel for the defendant also contended that the testator must have kept the will a closely guarded secret because if the will was published, Gulab Kaur and her daughter would have created some trouble.
This argument, in the context of the various facts adverted to above, has to be rejected.
The testator might have wished to keep the will a secret from Gulab Kaur and her daughter but it is impossible to appreciate that he would frustrate the very object of making the will by suppressing it from the defend ant and from the executors, one of whom was highly placed and the other of whom is the defendant 's father in law.
Frankly, though with respect, it surprises us that the High Court should have accepted the will as genuine.
It observes: "It is evident from the above evidence that there are no suspicious circumstances about the execution or the contents of the will.
" We could have understood if the High Court were to say that the defendant had given a valid explanation of the suspicious circumstances surrounding the execution of the will.
But to say that there is nothing in the case to excite the court 's suspicion and to accept the will as genuine on that premise is wholly ununderstandable.
The High Court does not refer to a single circumstance out of the many that we have discussed and the operative part of the judgment just recites a few facts mechanically as if there could possibly be no answer to the validity of the will.
The High Court has not referred in its judgment even in passing to the rule as to the burden of proof which applies to testamentary proceedings.
If only it had taken the trouble of looking at the decision of this Court in Iyengar 's case, which is copiously extracted in the judg ment of the Trial Court, it would have realized what its true duty was in the case.
936 For these reasons we allow the appeal, set aside the judgment of the High Court and restore that of the trial court.
The appellant will be entitled to recover from the respondents the costs of this Court and of the High Court.
P.H.P. Appeal allowed.
| IN-Abs | section Gobinder Singh Sibia was possessed of a large estate valued at about Rs.15 lacs at the time of his death in the year 1954.
He had two wives Gulab Kaur and Dalip Kaur.
Dalip Kaur predeceased him leaving a son and a grandson named Surjit.
After the death of section Gobinder Singh, Gulab Kaur filed a suit for maintenance, claiming alternatively a one half share in the estate left by her husband.
Surjit contested the said suit.
After the institu tion of the suit, the , came into force on June 17, 1956 upon the plaintiff giving up her claim for maintenance and restricting her suit to a half share in her husband 's estate, the defendant made an appli cation for amending his written statement and pleaded that section Gobinder Singh had executed a will in the year 1945 bequeathing practically the entire estate in his favour and leaving a small life interest in favour of the plaintiff.
The amendment application was flied in March, 1958, after the plaintiff 's evidence was over.
The Trial Court decreed the plaintiffs suit and .held that the plaintiff was enti tled to a half share in the estate left by Gobinder Singh and that the defendant had failed to prove the will.
In an appeal flied by the defendant the High Court set aside the Judgment of the Trial Court and dismissed the plaintiff 's suit.
The High Court held that will was duly established.
Allowing the appeal, Held: (a) In cases where the execution.of a will is shrouded i.n.
suspicion its proof ceases to be a simple lis between the plain tiff and the defendant.
What generally is an adversary proceeding becomes in such cases a matter of the court 's conscience.
The presence of suspicious circumstances makes the initial onus heavier and, therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court the propounder must remove all legitimate suspicions before the document can he accepted as the last will of the testator.
[929 C F, 930 C D] (b) A will has to be proved like any other document by applying the usual test of the satisfaction of the prudent mind.
[929 F] (c) Since section 63 of the Succession Act requires a will to be attested it cannot be used as an evidence until at least one of the attesting witnesses is examined, if available.
[929 G] (d) Unlike other documents the will speaks from the death of the testator and, therefore, the maker of the will is never available for deposing as to the circumstances in which the will was executed.
That circumstance intro duces a certain amount of solemnity in proof of testamentany instruments.
[929 H, 930 A] R. Venkatachala lyengar vs
B.N. Thimrnajamma & Others [1959] Supp. 1 S.C.R. 426, followed.
The testator was a man of property and occupied a high position in society.
A genuine will of such a person is not likely to suffer from the loop holes and infirmities which may beset an humbler testamentany instrument.
[931 D, H,932 A] 3.
The following circumstances throw a cloud of suspi cion on the making of the will by Gobinder Singh: 926 (i) The will is alleged to have been made in 1945 but it did not see the light of the day till 1957.
It is unacceptable that a document by which property worth lacs of rupees was disposed of could have remained a closely guarded secret from intimate friends and relatives and from the sole legatee him self for over 21/2 years after the testator 's death.
[932 A B] (ii) The testator had left behind him a large property and along with it large amount of litigation which makes it impossible to believe that upon his death no one bothered to go through his papers.
The explanation of the defendant that he stumbled upon the will by chance while going through some papers of his grandfather is patently lame and unacceptable.
[932 B D] (iii) The defendant came out with the theory of will after the of 1956 came into force as a result of which the plaintiff would become an absolute owner of the property that would fall to her share as the heir of her husband.[932 G H, 933 A B] (iv) The will was typed Out on both sides of a single foolscap.paper and was obviously drafted by a lawyer.
No evidence was led as to who drafted the will and who typed it out.
[933 B C] (v) The will was attested by two persons, both of whom were strangers to the testator 's family and neither of whom could give a proper account of the execution of the will.
In fact they contradicted each other.
[933 C H] (vi) The two persons who are alleged to have been appointed executors were not exam ined, though available.
Normally, the execu tors are not appointed without their consent or consultation.
[934 A C] (vii) The will is unnatural and unfair.
[934 C] (viii) The will does not make mention of many of the near relations and descendants of the testator.
[934 D F] (ix) The plaintiff was excluded as an heir of the testator for the supposed reasons that she had brought disgrace to the Sibia family and that her behaviour was such as would not even bear a mention in the will.
No evidence was led on the misconduct of the plaintiff.
[934 F G] (x) The defendant in his evidence did not offer any explanation any of the suspicious circumstances.
[934 G] 4.
The High Court merely recited a few facts mechanical ly and without going into the suspicious circumstance accepted the will as genuine.
The High Court did not apply the rule as to the burden of proof which governs the testa mentary proceedings, as set out in the decision of this Court in lyengar 's case to which reference was made in the Trial Court 's Judgment.
[838 F H]
|
Appeal No. 343 of 1974.
(Appeal by special leave from the Judgment and Order dated 11 9 1973 of the Allahabad High Court (Lucknow Bench) in Spl.
Appeal No. 118/71).
D. Mukherjee and C.P. Lal for the appellant.
Akhtar Hussain, S.N. Prasad and D.N. Misra, for the respondent The Judgment of the Court was delivered by GUPTA, J.
Colvin Taluqdars ' College in Lucknow, run by a society registered under the Societies Registration Act, imparts education at the following different stages: (i) Pre basic i.e., nursery classes.
(ii) Junior basic, called primary stage, from class I to V. (iii) Senior basic i.e., Junior high school stage from class VI to VIII, and 958 (iv) Higher secondary stage, called high school stage classes IX and X. (b) Intermediate stage Classes XI and XII In the beginning the college had no pre basic or junior basic classes and started with class VI; classes I to V and nursery classes were opened later.
The respondent was appointed an assistant teacher in the basic section of the college in 1961.
Following certain incidents involving her, she was suspended on or about August 20, 1970.
and ultimately her services were terminated by the managing committee of the college some time in October 1970.
She flied a writ petition in the High Court at Allahabad (Luc know Bench) alleging inter alia that the order terminating her services was mala fide and made in violation of the regulations framed under the (U.P.) Intermediate Education Act, 1921.
She asked for a writ of certiorari quashing the order of suspension and the order terminating her services, and a writ of mandamus directing the opposite parties to pay the full salary and emoluments due to her.
The president of the managing committee of the college, the principal, the head mistress of the basic section and the committee of management were impleaded as opposite parties 1, 2, 3, and 4 respectively.
The writ petition was dismissed by a single Judge of the High Court on a preliminary ground that none of the opposite parties was a public authority and the impugned orders suspending her and terminating her services were not made in the exercise of any statutory function.
On appeal a Division Bench of the High Court took the view that the basic section of the college was an integral part of the college and held that the managing committee of the college was a statutory body constituted under the Interme diate Education Act and governed by the regulations framed thereunder.
The Division Bench therefore found the writ petition maintainable and remanded the case to the single Judge to be decided on merits.
The Intermediate Education Act, 1921, as its long title shows, is an Act for the establishment of a Board of High School and Intermediate Education.
The preamble says that it was enacted because it was expedient to establish a Board to take the place of the Allahabad University in regulating and supervising the system of High school and Intermediate education in the United Provinces, and to prescribe courses therefore.
Section 2 of the Act defines, among other terms, Board.
Institution, and Recognition.
Board means the Board of High School and Intermediate Education.
Institution means the whole of an institution or a part thereof, as the case may be.
Recognition means recognition for the purpose of preparing candidates for admission to the Board 's examination.
Admittedly, Colvin Taluqdars ' College is a recognised institution.
Section 7 which defines the powers of the Board, after enumerating certain specific powers, states that the Board will have the power "to do all such other acts and things as may be requi site in order to further the objects of the Board as a body constituted for regulating and supervising High School and Intermediate Education".
The powers mentioned in section 7 all relate to High school and Intermediate classes.
Sec tion 16 A lays down that for every recognised institution there shall be a scheme of administration which must provide, among other matters, for the constitution of a committee of management.
Section 16 B and section 16 C deal with the preparation of the scheme of administration.
Section 16 D authorises the Director of Uttar Pradesh to cause inspection of a recog nized institution from time to time and order the removal of any defect found on inspection.
Sections 16E, 16F and 16G provide for the qualifications and the conditions of service of the teachers Of a recognized institution.
Thus all these sections are confined in their application to recog nized institutions only.
Regulations have been framed under the Act in respect of matters covered by section 16 A to section 16 G. Regulations 31 to 45 in Chapter III of the Regulations deal with the subject of punishment, enquiry and suspension of the employees of a recognized institution.
It is said that the suspension and dismissal of the respond ent was not in accordance with these regulations.
It seems clear from the provisions set out above that they all relate to recognized institutions; recognition is by the Board for the purpose of preparing candidates for admission to the Board 's examination, and Board means the Board of High School and Intermediate Education.
The basic section of a school cannot therefore be part of a recognized institution.
We are unable to agree with the view taken by the Division Bench of the High Court that the basic section is an integral part of the institution and there fore must be governed by the provisions of the Intermediate Education Act, 1921.
A school by extending its operation to fields beyond that covered by the Act cannot extend the ambit of the Act to include in its sweep these new fields of education which are outside its scope.
The case of the appellants on this point appears from the counter affidavit filed by them in answer to the writ petition.
It is said that "the college is running the Basic Section independently and is neither registered by the Government nor affiliated by any local body and neither any grant in aid is being taken by the department to run this section accordingly.
The college has its own rules and regulations to conduct the Basic Section.
" It is not correct to think that since the college has to have a committee of management as required by section 16 A, a managing committee that looks after the affairs of the Basic Section of the college must also be functioning as a statutory body discharging duties under the Intermediate Education Act and governed by the Regulations framed thereunder.
The Division Bench sought support for the view it had taken from some provisions in the Education al Code of Uttar Pradesh but, as pointed by the learned single Judge, the Code is only a compilation of the various administrative rules and orders relating to educational institutions in the State and has no statutory force.
For the reasons stated above, it must be held that the appel lants were not discharging any statutory function in making the impugned orders affecting the respondent.
The appeal is accordingly allowed, the Judgment of the Division Bench is set aside and that of the Single Judge restored.
There will be no order as to costs.
M.R. Appeal al lowed.
| IN-Abs | The respondent, an assistant teacher in the basic sec tion of the Colvin Taluqdar 's college, Lucknow, was suspend ed and then removed from service, by the managing committee of the college.
She flied a writ petition in the High Court challenging her dismissal order, contending that it violated the regulations framed under the (U.P.) Intermediate Educa tion Act, 1921.
The appellants contended that the col lege was running the basic Section independently and without any affiliation or grants from the Government or any local body, and that the said Act did not apply.
The Single Judge of the High Court dismissed the Writ petition as none of the opposite parties was a public au thority.
An appeal was allowed by a Division Bench of the High Court on the ground that the basic Section was an integral part of the college and was run by a Managing Committee constituted under the Intermediate Education Act.
Allowing the appeal the Court, HELD: The provisions of the Act relate to recognized institutions; recognition is by the Board for the purpose of preparing candidates for admission to the Board 's examina tion; Board means the Board of High School and lntermedi ate Education.
The basic section of a college cannot there fore be part of a recognised institution.
It is not correct to think that since Section 16A of the Act requires a college to have a committee of management, a managing committee that looks after the affairs of the basic section of the college must also be functioning as a statutory body discharging duties under the Act and governed by the regula tions framed thereunder.
An institution by extending its operation to fields beyond that covered by the Act cannot extend the ambit of the Act to include in its sweep, these new fields of education which are.
outside its scope.
[959 C G]
|
ivil Appeal Nos.
248 251 of 1976.
(Appeals by Special Leave from the Judgment and Order dated 28 11 1975 of the Andhra Pradesh High Court in Writ Petitions Nos.
1195 1198/75).
CIVIL APPEALS Nos.
934 936 of 1976.
(Appeals by Special Leave from the Judgment and Order dated 28 11 1975 of the Andhra Pradesh High Court in Writ Petitions Nos.
3931, 3944 and 4029/75).
CIVIL APPEALS No. 693 of 1976.
(Appeal by Special Leave from the Judgment and Order dated 28 11 1975 of the Andhra Pradesh High Court in Writ Petition No. 6790/74).
Soli Sorabji and K.J. John for the Appellant (CAs 248 251/76).
A. Subba Rao for the Appellant (CAs.
934 936/76).
Babul Reddy and K.J. John for the Appellant (CA.
693/76).
Niren De, Attorney General for India, P.P. Rao, D.V. Sastry and T.V.S.N. Chari for the Respondents (in CAs.
248 251/76 and CAs.
934 936/76).
T.V.S.N. Chari for the Respondent (In CA No. 693/76).
The Judgment of the Court was delivered by JASWANT SINGH, J.
This batch of appeals by special leave which are directed against three separate judgments of the High Court of Andhra Pradesh at Hyderabad dismissing three sets of writ petitions Nos.
1195 to 1198 of 1975,3931, 3944 and 4929 of 1975 and 6790 of 1974 filed by the.
appel lants to challenge certain orders of the sales tax authori ties made in respect of re determination of their ' turnover for certain years under the Andhra Pradesh General Sales Tax Act, 916 1957 (hereinafter referred to as 'the Act ') shah be disposed of by this judgment, as they raise a common question as to whether the excise duty deposited directly in a State treas ury or a sub treasury by the purchasers of the Indian made foreign liquor called 'Indian liquor ' before removing the said liquor from a distillery and the countervailing duty remitted directly to a State Treasury or a sub treasury by the purchasers of the aforesaid specie of liquor before removing it from a bonded warehouse can properly be said to form part of the turnover of .he manufacturer and of the owner of the bonded warehouse respectively and as such liable to sales tax under the Act.
The circumstances which have given rise to these appeals lie in a short compass and may be briefly stated: The appel lants in the first two sets of Appeals Nos. 248 to 251 of 1976 and 934 to 936 of 1976 carry on the business of manu facture of 'Indian liquors ' in their distilleries estab lished in Andhra Pradesh under licences issued to them by the Commissioner of Excise under the Andhra Pradesh Excise Act, 1968 (Act 17 of 1968) and the rules made thereunder and sell their finished products to the wholesale dealers who in turn sell them to retail dealers.
Under Rule 76 of the Andhra Pradesh Distillery Rules, 1970 removal of any liquor manufactured or stored without prepayment of the excise duty specified in rule 6 is forbidden.
Rule 77 of the Rules prohibits issue of any liquor until its quantity and strength have been duly verified by the distillery officer.
Rule 579 of the Rules authorises the distillery officer on payment of excise duty to grant a distillery pass for remov al of the liquor fit for human consumption to the persons specified in the said rule including a person holding a licence for sale of liquor by wholesale or retail.
Under Rule 81 of the Rules, every application for a distillery pass for removal of liquor has to be addressed in writing to the distillery officer and has to be accompanied by a challan in original for payment of excise duty therefor and a general or special permit for the purpose of removal of the liquor.
Rule 82 of the Rules enjoins the distillery officer upon tender of cash payment of excise duty by the applicant to fill up the challan for presentation with the cash at a treasury or sub treasury of the district in which the distillery is situate, and the applicant for distillery pass to present the treasury receipt in token of his having made payment of the duty where after the distillery officer has to affix the said receipt to the counterfoil of form D 6.
Rule 83 of the Rules casts responsibility upon an applicant for a distillery pass to, make a correct calcula tion and full payment of the excise duty upon the liquor desired to be removed.
Rule 84 of the Rules requires, the distillery officer to issue the liquor under a pass in form D 6 sending a duplicate ' thereof to the Excise Superintend ent of the district of destination on being satisfied that the applicant is entitled under the Rules to remove the liquor and has made payment of the requisite excise duty.
Accordingly every buyer of the Indian liquor from either of the 'appellants ' distilleries during the years in ques tion obtained the distillery pass for release of the liquor after making payment of the excise duty and presented the same at the concerned distillery whereupon bill of sale or invoice was prepared by the distillery showing the price of the liquor.
The said bill did not include 917 the excise duty paid by the buyer.
The appellants ' books of accounts also did not contain any reference regarding the excise duty paid by the purchasers in the manner stated above.
The appellants paid the sales tax in full as per final assessments made by the sales tax authorities under the Act.
it appears that after the completion of the assessments of the sales tax under the Act for the years in question, the Commercial Tax Officer felt that there had been a failure to include the excise duty paid on the aforesaid liquors vended by the appellants in their taxable turnover.
Accordingly, acting under the provisions of section 14(1) of the Act, the Commercial Tax Officer issued notices in February, 1975 to the appellants in the afore said first two sets of appeals to show cause why the assess ments be not reopened.
Aggrieved by the said action of the Commercial Tax Officer, the appellants filed writ petitions Nos.
1195 to 1198 of 1975 and 3931, 3944 and 4929 of 1975 in the High Court of Andhra Pradesh challenging the said notices which, as already stated, were dismissed by the High Court.
The appellant in Appeal No. 693 of 1976 is a firm which is a licensed wholesale dealer in liquors and owner of a bonded warehouse under the Andhra Pradesh Indian Liquor (Storage in bond) Rules, 1969 where it stores or deposits Indian Liquors such as whisky, brandy.
gin etc.
imported by it from various States outside the State of Andhra Pradesh without prepayment of countervailing duty or other fee and issues the same according to the rules to its customers.
The modus operandi of the appellant is that it makes a bill for the value of the liquor required by an intending purchaser, who thereafter pays the requisite countervailing duty in his own name and the Excise Officer incharge of the bonded warehouse grants him a pass entitling him to remove the liquor from the warehouse.
According to the appellant, it gets only the price of the liquor from its buyers.
For the assessment year 1971 72, the Commercial Tax Officer, Hydera bad III by its order dated August 16, 1972 included the amount representing the countervailing duty paid by the purchasers in respect of the Indian liquors in bond which was not included in the bills of sale issued by the appel lant.
On appeal, the Assistant Commissioner by its order dated March 26, 1973 deleted from the turnover of the appel lant the item pertaining to the excise duty paid directly by the purchasers holding that the excise duty so paid by the purchasers did not, in the circumstances, form part of the turnover of the appellant.
Sometime thereafter, the Sales Tax Appellate Tribunal by its order dated August 5, 1974 passed in T.A. Nos. 331 of 1973 and 5 of 1974 upheld the assessment made under similar circumstances by the Commer cial Tax Officer, Vijayawada, on the turnover of M/s Shaw Wallace & Co. Thereupon the Deputy Commissioner, Commer cial Taxes, Hyderabad by virtue of the power vested in him under section 20 of the Act issued the impugned notice dated October 9, 1974.
to the appellant calling upon it to show cause why the order passed by the Assistant Commissioner, Commercial Taxes on March 26, 1973 should not be set aside and the original assessment order of the Commercial Tax Officer dated August 16, 1972 restored.
The appellant was also required to file objections and adduce evidence in support thereof within 7 days from the date of receipt of the impugned notice, 918 Aggrieved by the notice, the appellant flied a petition being petition No. 6790 of 1974 before the High Court of Andhra Pradesh.
seeking issue of an appropriate writ, order or direction declaring that the appellant was not liable to pay sales tax on excise duty paid by the purchasers in their own names and restraining the Deputy Commissioner, Commercial Taxes, Hyderabad, respondent in the appeal from taking further proceedings in pursuance Of the said notice.
The said petition having been dismissed, the appellant has, as already stated, come up in appeal to this Court.
At the hearing of these appeals, Mr. Sorabji and the other counsel appearing on behalf of the appellants have assailed the aforesaid Judgments and orders of the High Court by urging in the first instance that the view taken by the High Court about the nature and character of excise duty and countervailing duty is not correct.
They have also after trying in vain to argue for considerable length of time that on the true construction of the Andhra Pradesh Excise Act, 1968, the Andhra Pradesh Distillery Rules, 1970, the Andhra Pradesh Foreign and Indian Liquor Rules, 1970 and the Andhra Pradesh Indian Liquor (Storage in bond) Rules, 1969, a manufacturer of Indian liquors and an owner of a bonded warehouse are not primarily responsible for payment of the excise duty or countervailing duty, as the case may be, contended that a manufacturer and owner of the bonded ware house are not solely responsible for payment of the said duties and a purchaser of the liquor who obtains a distill ery pass or a werehouse pass and transport permit is also legally responsible for payment therefor and if he does pay the duty, it is something which he does in discharge his own statutory liability and not something which he does for or on behalf or for the benefit of the manufacturer or the owner of the bonded warehouse.
They have alternative ly contended that on a true construction of the expression 'turnover ' as defined in section 2(1) (s) of the Act, the determinative factor is the total amount set out in the bill of sale as consideration for the sale of the liquor and since the excise duty or the countervailing duty was direct ly paid by the purchasers to the excise authorities and did not at all form part of the consideration for the sale of the said liquor as set out in the bills of sale, it was not permissible for the sales tax authorities to assess the turnover by roping therein something which was not set out in the bills of sale as consideration for the sales.
They have lastly contended that in any event as the excise duty or the countervailing duty was at no time charged by the appellants for anything done in respect of the liquors sold but was charged by the excise authorities before removal of the liquors under the Andhra Pradesh Excise Act, 1968 and the rules made thereunder, it could not constitute a part of the turnover and taxed under the Act.
Although some controversy was sought to be raised by counsel for the appellants regarding the nature and charac ter of the excise duty and countervailing duty but as rightly pointed out by the learned Attorney General, the matter has been put beyond doubt by the decisions of this Court.
In R.C. Jail vs Union of India(I) after a review of the authorities bearing on the matter, it was held by this Court as follows : (1) [1962] supp.
3 S.C.R. 436.
918 'The excise duty is primarily a duty on the production or manufacture of goods produced or manufactured within the country.
Subject always to the legislative competence of the taxing authority, the said tax can be levied at a convenient stage so long as the character of the impost is not lost.
The method of collection does not affect the essence of the duty but only relates to the machinery of collection for administrative convenience.
" Again In re Sea Customs Act(1) it was ob served: "The question with respect to excise duties was considered by this Court in the case of Amalgamated Coal fields Ltd. vs Union of India (A.I.R.
After considering the previous decisions of the Federal Court In re.
The Central Provinces and Berar Sales of Motor and Lubricant Taxation Act (1939 F.C.R. 18); The Province of Madras vs M/s Boddu Paidanna and of the Judicial Committee of the Privy Council in Governor General in Council vs Province of Madras , this Court observed as follows at p. 1287: "With great respect, we accept the principles laid down by the said three deci sions in the matter of levy of an excise duty and the machinery for collection thereof.
Excise duty is primarily a duty on the produc tion or manufacture of goods produced or manufactured within the. country.
It is an indirect .duty which the manufacturer or producer passes on to the ultimate consumer, that is, ultimate incidence will always be on the customer.
Therefore, subject always to the legislative competence of the taxing authority, the said tax can be levied at a convenient stage so long as the character of the impost, that is, it is a duty on the manufacture or production, is not lost.
The method of collection does not affect the essence of the duty, but only relates to the machinery of collection for administrative convenience.
" This will show that the taxable event in the case of duties of excise is the manufacture of goods and the duty is not directly on the goods but on the manufacture thereof.
We may in this connection contrast sales tax which is also imposed with reference to goods sold, where the taxable event, is the act of sale.
Therefore, though both excise duty and sales tax are levied with reference to goods, the two are very different imposes; in one case the imposition is on the act of manufacture or production while in the other it is on the act of sale.
In neither case therefore can it be said that the excise duty or sales tax is a tax directly on the goods for in that event they will really become the same tax.
It would thus appear 'that duties of excise partake of the nature of indirect taxes as known to standard works on economics and are to be distinguished from direct taxes like taxes on property and income." (1) ; 919 It is, therefore, clear that excise duty is a duty on the production or manufacture of goods produced or manufac tured within the country though as observed by one of us (Khanna, J.) in A.B. Abdul Kadir & Ors.
vs State of Kerala(1) laws are to be found which impose a duty of excise at stages subsequent to the manufacture or production.
The position with regard to the nature and character of countervailing duty has equally been made clear in a number of decisions of this Court.
In Kalyani Stores vs The State of Orissa & Ors.(2) which was followed in M/s Mohan Meakin Breweries Ltd. vs Excise & Taxation Commissioner, Chandigarh & Ors.
(2), Shah, J. (as he then was) observed: "This brings us to the consideration of the meaning of the expression "countervailing duties" as used in Entry 51, List 1I 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 coun ter balance; to avail against with equal force or virtue; to compensate for something or serve as an equivalent of or substitute for: see Black 's Law Dictionary, 4th Edn.
This would suggest that a countervailing duty is imposed for the purpose of counterbalancing or to avail against something with equal force or to compensate for something as an equiva lent.
Entry 51 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 consump tion where the goods are manufactured or produced in the State.
If 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 to 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 manu facture to the taxing State.
It seems, therefore, that countervailing duties are meant to equalise the burden on alcoholic liquors imported from outside the State and the burden placed by excise duties on alcohol ic 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 counter balancing duties of excise levied on the goods manufactured in the State will not arise.
It may, therefore, be accepted that countervail ing duties can only be levied if similar goods are actually produced or manufactured in the State on which excise duties are being levied.
" (1) [1976] 3 s.c.c. 219.
(2) ; (3) ; 921 Having seen that a provision can be inserted in the excise law for collection of the excise duty at a stage subsequent to the manufacture or production of the excisable article, we shall now proceed to examine the main contentions raised by counsel for the appellants.
We have first to see as to how far the contention of counsel for the appellants that apart from a manufacturer of Indian liquors and an owner of a bonded warehouse (who in our opinion cannot but be regard ed as primarily responsible for payment of excise duty and countervailing duty respectively in view of sections 21, 28 & 65 of the Andhra Pradesh Excise Act, 1968, and rules 3, 4, 5, 6, 67 & 76 of the Andhra Pradesh Distillery Rules, 1970, and condition No. 9 of the Distillery Licence granted under rule 5 of these Rules; rules 5 & 10 of the Andhra Pradesh Indian Liquor (Storage.
in bond) Rules, 1969, conditions Nos. 7 & 10 of the licence granted in form B.W. 1 under rule 5(2).
the phraseology of the application for receipt of liquor into the bounded warehouse prescribed by rule 9(2) and the terms of the counterpart agreement required to be executed by a licensee of an Indian liquor bonded warehouse under rules 3(2) and 5(2) of these Rules) the buyers of the said liquors are also liable under the law for payment of the aforesaid duties can be sustained.
For a proper deter mination of this question, it is necessary to recall the provisions of the Andhra Pradesh Distillery Rules, 1970 which have been set out in the earlier part of this judg ment.
The said rules particularly rules 79, 81, 82, 83 and 84 lend a good deal of support, in our opinion, to the contention of counsel for the appellants and make every intending buyer of the Indian liquor liable for payment of the excise duty before obtaining the distillery pass and lifting the quantity mentioned therein from 1he distillery.
Accordingly agreeing with counsel for the appellants we hold that intending purchasers of the Indian liquors who seek to obtain distillery passes are also legally responsible for payment of the excise duty which is collected from them by the authorities of the Excise Department.
The position in regard to the countervailing duty is not,however dear though rule 10(1) of the Andhra Pradesh Indian Liquor (Storage in bond) Rules, 1969 and rules 5(2) and 17 of the Andhra Pradesh Foreign and Indian Liquor Rules, 1970 enable the intending buyers of Indian liquors to remove the same from a bonded warehouse on payment of the said duty, to the excise authorities.
This is not, however, sufficient to dispose of the matter.
The real and pivotal question that requires to be determined is whether the excise duty or the countervailing duty, as the case may be.
paid directly to the excise authorities of the State or deposited directly in the State exchequer in respect of the Indian liquor by the buyers thereof before removing it from any of the aforesaid dis tilleries or the warehouse can be said to form part of the taxable turnover of the appellants as according to section 5 of the Act which is the charging section sales tax is required to be paid by the appellants on their turnover of the year.
It will be useful at this stage to advert to the definitions of the words 'turnover ' and 'sale ' as given in clauses (s) and (n) of sub section (1) of section 2 of the Act.
Shorn of unnecessary details, these definitions run as under: 922 "turnover" means the total amount set out in the bill of sale (or if there is no bill of sale, the total amount charg ed) as the consideration for the sale or purchase of goods (whether such consideration be cash, deferred payment or any other thing or value) including any sums charged by the dealer for anything done in respect of goods sold at the time of or before the delivery of the goods and any other sums charged by the dealer, whatever be the description,name or object thereof . .
. . . . "sale" with all its grammatical varia tions and cognate expressions means every transfer of the property in goods by one person to another in the course of trade or business, for cash, or for deferred payment, or for any other valuable consideration. .
In the instant case, it is not disputed that excise duty or countervailing duty paid directly to the excise authorities by the purchasers of Indian liquors before removal thereof from the distilleries or the bonded warehouse on the strength of the distillery and warehouse passes was not included in the bills of sale as the consideration for the sales, but 1hat alone, according to the Attor ney General, is not determinative of the matter.
He has invited our attention to the second part of the definition of the word 'turnover ' as set out above and has strenuous ly urged that as in addition to the price of the liquor set out in the bills of sale as consideration for the sales, other sums charged by the dealer at the time of or before the delivery of the goods also form part of turnover, and according to the well estab lished canon of construction, a taxing stat ute has to be interpreted reasonably so that there is no evasion of the tax, the phrase 'any sums charged by the dealer ' occurring in the aforesaid definition of the word 'tur nover ' must be 'construed as meaning any item of expense including the excise duty or the countervailing duty to which the buyers were put by the manufacturers of the liquors or the owner of the bonded warehouse.
We find our selves unable to accept the construction sought to be put by him as it is opposed to the plain meaning of the said phrase.
It will be advantageous here to refer to the decisions of this Court in.
A.V. Fernandez vs The State of Kerala(1) where Bhagwati, J. speaking for the Bench after quoting the observations made by Lord Russell of Killowen in Inland Revenue Commissioners vs Duke of Westminster(2) which were approved by the Privy Council in the Bank of Chettinad vs Income Tax Commissioner(3) observed: "It is no doubt true that in construing fiscal statutes and 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 Revenue satisfies the Court that the case fails strictly within the provi sions 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 (1) ; (2) [19361 A.C.I, 24.
(3) A.I.R. 1940 P.C. 183. 923 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.
We must of necessi ty, therefore, have regard to the actual provisions of the Act and the rules made thereunder before we can come to the conclu sion that the appellant was liable to assess ment as contended by the Sales Tax Authori ties.
" Bearing in mind the principle set out in A.V. Fernan dez 's case (supra) the phrase 'any sums charged by the dealer ' has to .be understood in its ordinary popular sense.
So construing the phrase, it means "what is demand ed and collected or received by the dealer." In the instant cases, the excise duty or the countervailing duty has, as already stated, not been charged or received by the dealer but has been charged by the excise authorities and deposited directly by the buyers of the liquor in the State exchequer.
It is, therefore, difficult to hold that excise duty or ' countervailing duty was charged by the appellants.
The reason for inclusion of tax or a duty in the turn over was explained in two decisions of this Court bearing the same cause title viz. Messrs George Oakes (Private) Ltd. vs The State of Madras & Ors.
(12 S.T.C. 476) and (13 S.T.C. 98).
In the first of these cases, it was observed : "Under the definition of turnover the aggre gate amount for which goods are bought or sold is taxable.
This aggre gate amount includes the tax as part of the price paid by the buyer.
The amount goes into the common till of the dealer till he pays the tax.
It is money which he keeps using for his business till he pays it over to Government.
Indeed, he may turn it over again and again till he finally hands it to Government.
" In the other decision, Hidayatullah, J. (as he then was) said: "In laws dealing with sales tax, turn over has, in England and America also, been held to include the tax.
The reason for such inclusion is stated to be that the dealer who realises the tax does not hand it over forth with to Government but keeps it with him, and turns it over in his business before he parts with it.
Thus, the tax becomes,for the time being, a part of the circulating capital of the tradesman, and is turned over in his business.
Again, it was said that the price paid by the purchaser was not so much money for the article plus tax but a composite sum.
Therefore, in calculating the total turnover, there is nothing wrong in treating the tax as part of the turnover, because "turnover" means the amount of money which is turned .over in the business." In the instant cases, the excise and countervailing duties did not go into the common tills of the appellants and did not become a part of their circulating capital.
We are, therefore, of the view that the 9 1338SCI/76 924 Sales Tax authorities were not competent to include in the turnovers of the appellants the excise duty and the counter vailing duty which was not charged by them but was closed by and paid directly to the excise authorities by the buyers of the liquors as stated above.
The Full Bench decision of the High Court of Andhra Pradesh in The Government of Andhra (Now Andhra Pradesh) vs East India Commercial Co. Ltd.(1) relied upon by the Revenue is clearly distinguishable.
In that case, it was the actual collection of certain sums as dharamam or charity by the dealer from the purchasers on the occasion of the sales that made the learned Judges to hold that they constitute part of the turnover.
In Messrs George Oakes (Private) Ltd. 's case (supra) also, the tax in question was collected by the registered dealer.
We have, therefore, no hesitation in holding that the excise duty and the countervailing duty paid directly by the buyers of the Indian liquors as stated above did not consti tute a part of the turnovers of the appellants.
For the foregoing reasons, we allow the appeals and set aside the impugned judgments and orders.
In the circum stances of the case, we leave the parties to pay and bear their own costs of these appeals.
P.B.R. Appeals al lowed.
(1) 8 S.T.C. 114.
| IN-Abs | Section 2(1)(s) of the Andhra Pradesh General Sales Tax Act, defines 'turnover" to mean the total amount set out in the bill of Sale as the consideration for the sale or purchase of goods including any sums charged by the dealer for anything done in respect of goods sold at the time of or before the delivery of the goods.
The appellants in the first two sets of appeals are manufacturers of Indian liquors.
A buyer of Indian liquor from the distilleries pays, in the first instance, the excise duty in the Treasury and obtains a distillery pass for the release of liquor.
On presentation of the distill ery pass an invoice is prepared by the manufacturers showing the price of liquor.
Neither invoice.
nor the account books of the manufacturers show the excise duty paid by the purchasers.
Under the system in vogue in the second set of appeals, the appellant who is the owner of a bonded warehouse pre pares a bill for the liquor required by the purchaser who pays the countervailing duty in the Treasury in his own name and obtains a pass from the excise authorities for the removal of the liquor from the warehouse.
In both the, cases the Sales Tax Authorities included the excise duty in the taxable turnover of the appellants.
The High, Court dismissed the writ petition of the appel lants impugning the orders of the Sales Tax Officers.
Allowing the appeal, HELD: (1) Excise duty and countervailing duty paid directly by the buyers for the Indian liquors did not con stitute a part of the turnovers or, the appellants.
[924 C] (2) The phrase 'any sums charged by the dealer ' occur ring in the definition of 'turnover ' has to be understood in its ordinary popular sense.
So construed, it means what is demanded and collected or received by the dealer.
[923 B] In the instant case the excise duty or the countervail ing duty has not been charged or received by the dealer but has been charged by the excise authorities and deposited directly by the buyers of the liquor in the State exchequer.
It cannot be said that the excise duty or the countervailing duty was charged by the appellants.
In M/s. George Oakes (Private) Ltd. vs The State of Madras & Ors., this Court held in relation to the definition of turn over that the aggregate amount includes the tax as part of the price paid by the buyer; the amount goes into the common till of the dealer till 'he pays the tax; it is the money which he keeps using for his business till he pays the tax; it is the money which he keeps using for his busi ness till he pays it over to Government; it becomes a part of the circulating capital of the tradesman and is turned over in his business.
Secondly the price paid by the pur chaser was not so much money for the cause turnover means the amount of money which is turned over in the busi ness.
[923 E G] 915 In the instant case the excise and the countervailing duties did not go into the common tills of the appellants and did not become a part of their circulating capital.
The Sales tax authorities were not competent to include in the turn overs of the appellants the excise duty and the countervail ing duty which was not charged by them but was charged by and. paid directly to the excise authorities by the buyers of the liquors.
[924 A] A. V. Fernandez vs The State of Kerala ; followed.
R.C. Jail vs Union of India [1962] Supp.
3 S.C.R. 436, Sea Customs ACT ; , A B. Abdul Kadir & Ors.
vs State of Kerala , Kalyani Stores vs The State of Orissa & Ors. ; & M/s Mohan Megkin Brewaries Ltd. vs Excise & TaxatiOn Commisisoner, Chandigarh & Ors. ; referred to.
Messrs George Oakes (Private) Ltd. vs The State of Madras & Ors.
(122 S.T.C. 476) and (13 S.T.C. 98) referred to and distinguished.
The Government of Andhra (now Andhra Pradesh) vs East India Commercial Co. Ltd. (8 S.T.C. 114) distinguished.
|
: Criminal Appeal No, 385 of 1976.
(From the Judgment and Order dated 22 12 1975 of the Gujarat High Court in Crl.
Appeal No. 180/74) N.N. Keswani & Ramesh N. Keswani for the appellant.
K.H. Kazi & M.N. Shroff for the Respondent.
The Judgment of the Court was delivered by BHAGWATI, J.
This appeal, by special leave, is directed against an order passed by the High Court of Gujarat setting aside the acquittal of the appellant and directing that he, along with other accused, be retried not only for the of fence of consumption of liquor of which he was acquitted but also for the offence of possession of liquor punishable under section 66(1)(b) of the Bombay Prohibition Act, 1949.
The question arising for determination is a short one, but in order to appreciate it, it is necessary to state the. facts giving rise to the appeal.
The appellant, original accused No. 2, was at all mate rial times working as District Health Officer in District Amreli in the State of Gujarat.
He was, according to the prosecution, found of liquor and whenever he used to go out of Amreli in connection with his duties, he used to partici pate in drinking parties.
On 3rd August, 1972, he visited Kodinar, a town situate in the District of Amreli and late in the evening of that day, he attended a drinking party which was arranged by accused No. 1 in his agricultural farm situate at a place called Ghantwad about 50 Kms.
away from Kodinar.
Besides accused Nos. 1 and 2, six other persons who were arraigned as accused Nos.
3 to 8 were also present at the drinking party.
On receiving information about the drinking party, the District Magistrate and the District Superintendent of Police along with other police officers and panch witnesses raided the agricultural farm where the drinking party was in progress.
The raid was carried out at about 00.30 hrs.
after midnight and on seeing the police, the appellant and the other accused tried to run away but they were apprehended.
The raiding party, also found five glasses and two empty bottles, all smelling of liquor, twelve empty soda water bottles and one full ' bottle con taining liquor and these articles were seized by the raiding party in the presence of the panch witnesses and the panch nama was prepared.
The appellant and the other accused were thereafter taken to the Amreli hospital where their blood was taken by the Civil Surgeon for the purpose of carrying out 874 the necessary test for determining the presence of alcohol.
The analysis of the blood revealed that, in the case of the appellant, the concentration of alcohol in the blood was more than 0.05 per cent weight in volume while in the case of the other accused, it was less than 0.05 per cent.
On these facts, the appellant and the other accused were charge sheeted before the Judicial Magistrate, Kodinar.
The charge against accused No. 1 was that he possessed as well as consumed liquor in contravention of the provisions of the Act and was, therefore, guilty of offences punishable under section 66(1)(b), while the charge against the other ac cused, including the appellant, was that they were guilty of consuming liquor in contravention of the provisions of the Act and were hence liable to be punished for the offence under section 66(1) (b) of the Act.
The learned Judicial Magistrate accepted the evidence in regard to the concentra tion of alcohol in the blood of the accused, but taking the view that breaches of certain rules in the Bombay Prohibi tion (Medical Examination and Blood Test) Rules, 1959 were committed in taking the blood of the accused, the learned Judicial Magistrate acquitted the accused including the appellant of the offence of consuming liquor under section 66 (1 ) (b).
The learned Judicial Magistrate also acquitted accused No. 1 of the offence of possessing liquor under section 66(1)(b) on the ground that it was not proved by the prosecution beyond reasonable doubt that he was in posses sion of liquor.
The State preferred two appeals against the order of acquittal passed by the learned Judicial Magistrate.
Both the appeals were heard by a Single Judge of the High Court any they were disposed of by a common judgment.
The High Court did not examine whether the order passed by the learned Judicial Magistrate acquitting the appellant and the other accused of the offence of consuming liquor was right or wrong nor did it consider whether the acquittal of ac cused No. 1 for the offence of possessing liquor was correct or incorrect.
But, taking the view that there was no dis tinction between the case of accused No. 1 on the one hand and that of the appellant and accused Nos. 3 to 8 on the other so far as the charge of possession of liquor is con cerned, the High Court held that, on the material on record, the learned Judicial Magistrate should have flamed a charge against the appellant and accused Nos.
3 to 8 not only for the offence of consuming liquor but also for the offence of possession of liquor as in the case of accused No. 1.
The High Court observed: "Whenever "Drinking Parties" are detect ed by the police, it is the imperative duty of the prosecution to allege that all the partic ipants of the same are charged with the "possession" of liquor in contravention of the provisions of law contained in Sec.
66(1 )(b) of the B 'bay Prohibition Act, 1949.
It may be emphasised that in such cases, "possession" of liquor does not only necessarily mean actual, physical or conscious possession of the owner or the occupant of the premises".
In such cases of "Drinking Parties", it is always open to a participant to stretch his hand and to take the liquor in question for his own use and consumption.
But, in all such cases of 875 "Drinking Parties", the Court must be satis fied that the attendant circumstances should clearly indicate that the accused persons are the participants in a "Drinking Party".
In the case before me, why should the accused persons, during the night hours, having gath ered together go to a distant farm house ? Why should they be found with the aforesaid articles ? Why should they create a situa tion as a result of which a constable had to jump over a wall ? Why should they try to run away when they Were apprehended by the respon sible officers for Amreli ? In such circumstances, it is the duty of the prosecution to see that all the partic ipants are charged with the commission of the offence viz. of possessing liquor in contra vention of the provisions contained in Sec.
66(1)(b) of the B 'bay Prohibition Act, 1949.
" The High Court, on this view, set aside the order of acquittal in 'its entirety without examining its correctness and remanded the case to the learned Judicial Magistrate with a direction to try the appellant and the other accused not only on the charge of consuming liquor but also on the further charge of possession of liquor.
Accused Nos. 1 and 3 to 8 did not challenge the correctness of this order made by the High Court, but the appellant impugned it by prefer ring the present appeal with special leave obtained from this Court.
The impugned Order made by the High Court consists of two parts.
One part set aside the order of acquittal and directed retrial of the appellant on the charge of consuming liquor while the other directed that the appellant and accused Nos.
3 to 8 'should also be tried on the further charge of possession of liquor.
The appellant attacked both parts of the Order and the contention urged by him in sup port of the appeal was a two fold one.
The first limb of the contention was that the order setting aside the acquit tal of the appellant for the offence of consuming liquor and directing retrial of the appellant for that offence was improper, since it was not competent to the High Court in appeal to set aside the order of acquittal and direct retri al, unless it_found that the acquittal was wrong.
Here in the present case, the High Court did not even consider whether the acquittal of the appellant was correct or not and without finding that the acquittal was erroneous, pro ceeded to set aside the acquittal and direct retrial.
This, according to the appellant, was impermissible for the High Court to 'do and it was said that the order setting aside the acquittal must, therefore, be reversed and the acquittal restored.
The second limb of the contention related to that part of the impugned order which directed that the appellant and accused Nos.
3 to 8 should be retried not only on the charge of consuming liquor but also on the further charge of possession of liquor.
The argument of the appellant under this head of contention was that in the appeal, the High Court was confined merely to a consideration of the question whether the acquittal of the appellant for the offence of consuming liquor was right or wrong and it was, not compe tent to the High Court 6 1338SCI/76 876 to frame a new charge for possession of liquor and direct trial of the appellant and the other accused on such now charge.
These were the twin grounds on which the order made by the High Court was challenged on behalf of the appellant.
Now, there can be no doubt that there is great force.
in the first part of ' the contention of the appellant.
The learned Judicial Magistrate acquitted the appellant of the offence of consuming liquor.
The State preferred an appeal against the acquittal and manifestly, in this appeal, the acquittal could not be set aside unless the High Court, on a consider ation of the evidence, came to the conclusion that the acquittal was wrong.
It was not competent to the High Court to set aside the acquittal without finding that it was erroneous.
The High Court, however, did not even care to examine whether the acquittal was right or wrong, but merely because it took the view that a further charge should have been framed against the appellant and accused Nos.
3 to 8, it set aside the acquittal and directed retrial of the appellant and the other accused.
This was plainly and indubitably wrong and the: order setting aside the acquittal must, therefore, be quashed.
But from that it does not necessarily follow that the acquittal must be restored.
The High Court having failed to consider the merits of the acquittal,.
the matter would have to go back to the High Court for the purpose of deciding whether on the evidence on record, the acquittal was justified or not.
The appeal being directed against the correctness of the acquittal, the High Court would have to determine whether on merits, the acquittal should be maintained or reversed.
We must, there fore, quash that part of the order of the High Court which set aside the acquittal of the appellant for the offence of consuming liquor and remand ' the case to the High Court for disposing of the appeal against the acquittal of the appel lant on merits.
That takes us to the second limb of the contention directed against the order of retrial on the further charge of possession of liquor.
It is true that originally when the case was tried before the learned Judicial Magistrate, there was no charge against the appellant and accused Nos.
3 to 8 for the offence of consuming liquor and the appeal of the State was also directed 'only against their acquittal for ,the offence of consuming liquor.
But there can be no doubt that if, while hearing the appeal, the High Court found that, on the material before .him, the learned Judicial Magistrate should have framed a further charge against the appellant and accused Nos.
3 to 8 but he failed to do so, the High Court could certainly direct the learned Judicial Magistrate to frame such further charge and try the appel lant and accused Nos. 3 to 8 on such further charge.
The High Court could legitimately in the exercise of its juris diction, set right the error committed by the learned Judi cial Magistrate in not flaming a proper charge.
Here, the High Court, on a consideration of the material which was before the learned Judicial Magistrate, came to the conclu sion that this material warranted the framing of a further charge against the appellant and accused Nos.
3 to 8 for possession of liquor and it, therefore, directed that the case should go back to the learned judicial Magistrate and he should try the appellant and accused Nos.
3 to 8 on 877 such further charge.
The High Court clearly had jurisdic tion to make such an order.
But then, the complaint made on behalf of the appellant was that the material before the learned Judicial Magistrate did not justify the framing of a charge against the appellant and accused Nos.
3 to 8 for possession of liquor and hence the order directing their trial on such further charge was not justified.
This is, however, a complaint on facts and we do not see any reason why we should, in the exercise of our extra ordinary juris diction under Article 136 of the Constitution, entertain such a complaint.
It is true that there are certain obser vations made by the High Court which are a little too wide but it cannot be gained that even a person who participates in a drinking party can in conceivable cases be guilty of the offence of possession of liquor.
Suppose a person is found at a drinking party and he has a glass with him with liquor in it at the time when the raid is carried out, would it not be correct to say that he was at the relevant time in possession of liquor ? The liquor in his glass would be liquor in his possession.
But at the same time it would not be correct to say that merely because a participant in a drinking party can stretch his hand and take liquor for his use and consumption, he can be held to be in possession of liquor.
The question is not whether a participant in a drinking party can place himself in possession of liquor by stretching his hand and taking it but whether he is actu ally in possession of it.
Possession again must be distin guished from custody and it must be conscious possession.
If, for example, a bottle liquor is kept by.
some one in the car or house of a person without his knowledge, he cannot be said to be in possession of the bottle of liquor.
It can not, therefore, be laid down as an absolute proposition that whoever is present at a drinking party must necessarily be guilty of the offence of possession of liquor and must be charged for such offence.
Whether an accused is in posses sion of liquor or not must depend on the facts and circum stances of each case.
Here in the present case, the prose cution will have to establish at the trial by leading satis factory evidence that the appellant and the other accused were in possession of liquor as else the prosecution on the charge of possession of liquor will fail.
The order direct ing trial of the appellant and the other accused for the offence of possession of liquor must, therefore, be main tained, but we think it would be desirable if this trial is taken up after the disposal of appeal by the High Court in regard to the acquittal of the appellant for the offence of consuming liquor.
We accordingly allow the appeal in part and reverse that part of the 'order of the High Court which set aside the acquittal of the appellant for the offence of consuming liquor and remand the case to the High Court for disposing of the appeal against the acquittal of the appellant on merits, but so far as the other part of the order directing trial of the appellant and the other accused on the charge of possession of liquor is concerned, we do not see any reason to interfere with the same and we accordingly reject the appeal in so far as it is directed against that part of the order.
S.R. Appeal partly allowed.
| IN-Abs | Section 66(1)(b) of the Bombay Prohibition Act 1949 makes any person liable for punishment on conviction for the offence of "consuming, using, possessing or transporting any intoxicant or hemp." Section 66(2)(b) prescribes a statutory limit of 0.05 percentage of alcohol in the veinous blood taken from the accused.
In summary case Nos. 798 and 799 of 1972 before the Judicial Magistrate 1st Class, Kodi nar, Gujarat State, the appellant/accused No. 2 along with six others was charged with consumption of liquor while accused No. 1, the owner of an agricultural farm, where a drinking party took place was charged with the offence of possessing liquor.
h spite of the fact that the percentage of alcohol present in the veinous blood taken from the body of accused No. 2 was more than the statutory limit, in view.
breaches of certain statutory rules, in Bombay Prohibi tion (Medical Examination and Blood Test) Rules, 1959, the appellant/accused No. 2 was acquitted along with accused 3 to 8 in whose cases the percentage was less than the statu tory limit.
Accused No. 1 was also acquitted for lack of evidence on the charge of possession of liquor.
In the State appeal, taking the view that in a drinking party there should always be a further charge of possession of liquor, the High Court without examining the correctness of the findings of fact leading to the acquittals, set aside the orders of acquittal in respect of all and 'ordered retrial.
On appeal by special leave, the Court, HELD: (i) In a State appeal against acquittal, the acquittal should not be set aside unless the High Court on a consideration of the evidence.
comes to the. conclusion that the acquittal was wrong.
In the instant case, the High Court did not even consider whether the acquittal of the appellant was correct or not and without finding that the acquittal was erroneous proceeded to set aside the.
acquit tal and direct retrial.
It 'was not competent to the High Court to set aside the acquittal without finding that it was erroneous.
Setting aside the acquittal order and ordering retrial merely because.
it took the view that a further charge should have been framed against the appellant and accused No. 3 to 8 was plainly and indubitably wrong.
[876 B D] (ii) If while hearing an appeal, the High Court, finds that, on the material before it, a further charge should be framed, the High Court can legitimately, the exercise of its jurisdiction set right the error committed by the trial court in not framing a proper charge.
[876 G H] 873 (iii) In the exercise of extra ordinary jurisdiction under Article 136 of the Constitution, the Supreme Court would not ordinarily entertain a complaint on facts.
[877 B] (iv) Possession is distinguishable from custody and it must be conscious possession.
Whether the accused is in possession of liquor or not must depend on the facts and circumstance of each case.
[877 D]
|
Appeal No. 154 of 1976.
(From the Judgment and Order dated 16 12 1975 of the Judicial Commissioner 's Court, Goa, Daman and Diu in Election petition No. 2/74).
V.M. Tarkunde and Shri Natgin for the Appellant.
Hardayal Hardy, S.K. Mehta and P.N. Puri for the Respondent.
The Judgment of the Court was delivered by KHANNA, J.
This appeal by Dr. Wilfred D 'Souza is against the judgment of learned Judicial Commissioner Goa whereby be dismissed.
election petition filed by the appel lant to declare the election of Francis Menino Jesus Ferrao respondent to the Goa Legislative Assembly to be void and to declare instead the appellant to be duly elected.
The appellant and the respondent were the two candi dates who sought election to the Goa Legislative Assembly from Benaulim Assembly constituency in the by election caused by the death of Vassuudev Garmalkar.
Polling took place on June 9, 1974 and the counting of votes on June 10, 1974.
After the first count, the Returning Officer found that the total number of valid votes cast in favour of the appellant was 4,656 and of those cast in favour of the respondent was 4,654.
234 ballot papers were rejected.
The respondent then applied for recounting of the votes and the said application was granted.
As a result of recounting, it was found that the appellant had secured 4,651 valid votes, while the respondent had secured 4,652 valid votes.
Seven ballot papers were rejected.
It may be mentioned that at the time of recounting 234 votes which had been earlier rejected in the first count were not taken into account.
Soon after the recount the appellant made an application for a second recount.
This application was granted and the recount took place on the following day, i.e., June 11, 1974.
As a result.of the second recount the appellant was found to have secured 4,650 valid votes while the respondent was found to have secured 4,652 votes.
One ballot paper was rejected.
At the time of second recount the ballot papers which had been rejected at the time of the initial counting and the first recount were not taken into account.
In the result the respondent was declared elected.
The appellant thereafter filed the present petition on July 15, 1974.
Besides the ground with which we are concerned in this appeal, the appellant challenged the election of the re spondent on the following two grounds: "(1) that in the first and second recount the Returning Officer illegally accepted .in favour of the returned candidate, some votes which he ought to have rejected, and rejected some votes in favour of the appellant which he ought to have accepted under law; (2) that the failure of the Returning Officer to re scrutinize the rejected votes in the first and second recounts is illegal" In respect of the above two grounds, objec tion was taken by the respondent that there was non compliance with the statutory require ments of section 83(1)(a) of the Representa tion of the People Act, 1951 (hereinafter referred to as the Act) inasmuch as the appel lant had not set out the material facts re garding those allegations.
Learned Judicial Commissioner as per order dated March 22, 1975 held that the appellant had failed to give material particulars in respect of the said two grounds.
The petition in that respect was held to have not disclosed a cause of action.
It was also held that the appellant was not entitled to an order of the court for re counting the polled votes.
The appellant, it may be stated, filed a petition seeking spe cial leave of this Court against the above order but that petition was dismissed on July 31, 1975.
The only ground which survives and with which we are concerned in this appeal is given in para 9 of the petition.
The same reads as under: "The petitioner further submits that the scrutiny and counting of the tendered votes is absolutely necessary in this case, consid ering the fact that the respondent has been declared the returned candidate after securing in his favour only 2 votes more than the petitioner and the fact that the tendered votes are 10, and that the non counting of such votes may materially affect the result of the election, in so far as it concerns the respondent, by the improper reception of votes originally polled by persons other than those who tendered their votes.
The petitioner, therefore, submits that the votes initially and improperly received should be removed and the tendered votes should be accepted and counted instead.
" The appellant accordingly asserted that the result of the election of the respondent had been materially affected by the improper reception, refusal and rejection of votes.
Prayer made by the appellant was that the 'election of the respondent be declared void and the appellant be declared to be duly elected.
The petition was resisted by the respondent, and in reply to para 9 of the petition the respondent submitted that no recount was justified 945 or required in law merely because of the returned candidate having secured only two votes more than the defeated candi date.
The respondent denied that the tendered votes were cast by genuine voters.
Issue No. 7 which is the only issue relating to the allega tion in para9 reads as under: "Whether the petitioner proves that the vote or votes were initially improperly received, and should be removed and in their place tendered vote or votes should be taken into account.
" The Judicial Commissioner in his order dated March 22, 1975, while holding that no material particulars had been given in the petition in respect of the other two grounds of the election petition, found that regarding the allegation about tendered votes material facts had been given and a cause of action had been disclosed.
An application was filed on April 4, 1975 after the above order on behalf of the appellant praying for a direc tion to the District Election Officer to send all the papers mentioned in rule 92 of the Conduct of Election Rules, 1961 to the court.
In reply to that application the respondent stated that the court should, before sending for the said papers, call upon the appellant "to make out a prima facie case by undertaking to examine all the persons who have cast the tendered votes and producing some of them and proving that they had cast the tendered votes and that they are the true votes." Learned Judicial commissioner after refer ring to the case of Rameshwara Nand vs Madho Ram(1) and some other cases, passed order dated September 11, 1975, the material part of which reads as under: "In the present case the tendered votes are only ten and I see no reason why the petitioner should be allowed to break the principle of secrecy, particularly because the necessity of knowing for whom the voters have cast their vote does not arise now.
The petitioner will have to establish his case before he succeeds in this petition.
He will have, therefore, to produce all his evidence before the counting is done.
I therefore order that the petitioner shall produce before the Court all the evi dence on which he relies.
I also order that the District Election Officer be asked to produce the election papers mentioned in rule 92(2) of the Conduct of Election Rules, 1961 before this Court.
" The appellant thereafter examined two witnesses, Joa quine Rodrigoes (PW 1) and Vina Farnandes (PW 2).
These two witnesses, according to the appellant, had marked tendered ballot papers at the time of polling.
Trunks containing election papers were also sent to the court by the Election Registration Officer.
As the keys of those trunks were not available, those trunks were broken open in the presence of the parties.
A Panchnama of the packets contained in those (1) A.I.R. 1968 Punjab 173.
trunks was then prepared.
Some of the packets having connection with the tendered ballot papers were opened after the conclusion of the evidence of the two witnesses examined by the appellant.
The case was thereafter argued and the election petition was dismissed.
In the judgment under appeal, learned Judicial Commissioner examined the evidence of the two witnesses produced by the appellant.
According to the testimony of these two witnesses, when they went to the polling booth, they were told that someone else had already cast their votes.
When these witnesses stated that they had not .voted, they were each given a paper for marking in favour of the candidate of their choice.
They then marked that paper and handed over that paper to the persons present there.
Learned Judicial Commissioner took the view that the evidence of these witnesses did not relate to tendered ballot papers but to the ordinary ballot papers.
The appel lant as such was held to have failed to prove his case.
In the result, the election petition was dismissed.
In appeal before us, Mr. Tarkunde on behalf of the appellant has argued that the evidence of the two witnesses examined on behalf of the appellant relates to the tendered ballot papers marked by them and that the finding of the Judicial Commissioner to the contrary is not correct.
As against that, Mr. Hardy on behalf of the respondent has canvassed for the correctness of the view taken by the Judicial Commissioner.
Before dealing with this aspect of the matter, we think it opposite to deal with the legal position relating to tendered votes.
Rule 42 of the Conduct of Election Rules, 1961 relates to tendered votes and reads as under: "42.
Tendered votes. (1) If a person repre senting himself to be a particular elector applies for a ballot paper after another person has already voted as such elector, he shall, on satisfactorily answering such ques tions relating to his identity as the presid ing officer may ask, be entitled, subject to the following provisions of this rule, to mark a ballot paper (hereinafter in these rules referred to as a 'tendered ballot paper ') in the same manner as any other elector.
(2) Every such person shall, before being supplied with a tendered ballot paper, sign his name against the entry relating to him in a list in Form 15.
(3) A tendered ballot paper shall be the same as the other ballot papers used at the polling except that (a) such tendered ballot paper shall be serially the last in the bundle of ballot papers issued for use at the polling sta tion; and 947 (b) such tendered ballot paper and its counterfoil shall be endorsed on the back with the words 'tendered ballot paper ' by the presiding officer in his own hand and signed by him.
(4) The elector, after marking a ten dered ballot paper in the voting compartment and folding it, shall, instead of putting it into the ballot box, give it to the presiding officer, who shall place it in a cover spe cially kept for the purpose." Perusal of the above rule makes it clear that the occasion for marking tendered ballot paper would arise if a person representing himself to be a particular elector applies for a ballot paper after another person has already voted as such elector.
The person so applying would then be ques tioned regarding his identity by the presiding officer and, in case he gives satisfactory answer, he would be supplied a tendered ballot paper which would then be marked by the aforesaid person.
Such person is also required to sign his name against the entry relating to him a list in form 16.
The tendered ballot papers shall be the same as other ballot papers used at the polling, except that it would be serially the last in the bundle of ballot papers issued for used at the polling station.
The words "tendered ballot paper" have to be endorsed on the back of the tendered ballot paper and its counterfoil by the presiding officer in his own hand and has to be signed by him.
The tendered ballot paper, it is further provided, is not to be put in the ' ballot box but is to be kept in a separate cover.
According to clause (6) of rule 56 of the Conduct of Elec tion Rules, no cover containing tendered ballot papers shall be opened at the time of the counting of the votes and no such tendered ballot papers shall be counted.
The Represen tation of the People Act, 1951 as well as the above rules are, however, silent on the point as to what use would be made of the tendered ballot papers and how they would affect the result of the election.
Learned counsel for the parties are, however, agreed that such tendered ballot papers, even though excluded from consideration at the time of counting of votes after the poll, can be taken into account in proceedings to challenge the validity of the election of the returned candidate provided certain conditions are fulfilled.
We agree with the learned counsel for the parties in this respect, and find that this position of law is supported by two English decisions, Borough of St. Andrews(1) and The Stepney Divi sion of the Borough of Tower Homlets(2) as also by.two Indian decisions, Kalicharan Singh vs Ramcharitar Rai Yadava & Ors(3) and A.K. Subbarava Gounder vs
G. Palanisami Gounder & Ors.(4) Before, however, a tendered ballot paper can be taken into account during the proceedings of election peti tion, evidence would have to be led on the following two points: (1) The person who cast the initial vote as a voter on a particular serial number in the electoral roll was someone other than the genuine voter mentioned at that number.
(1)4 Omelly & Hardcastle 32, (2) Omelly & Hardcastle 34.
(3) (4) (2) It was such genuine voter who marked the tendered ballot paper.
So far as the first point is concerned, the evidence of the genuine voter that he had not cast such initial vote would normally and in the absence of any circumstance casting doubt regarding its veracity be sufficient.
Once the above two points are proved, the following consequences would follow: (a) The court would exclude the vote initially cast by the person other than the genuine voter from the number of votes of the candidate in whose favour it was cast; and (b) The court would further take into account the tendered ballot paper in favour of the candidate in whose favour it is duly marked.
It may also be mentioned that the proper occasion for scrutinising tendered ballot papers would normally arise only when the difference between the number of votes polled by the candidate declared elected and his nearest rival is so small that there is a possibility of that difference being wiped out and the result of election being thus materially affected if the court takes into account the tendered ballot papers and excludes from consideration the corresponding votes which were cast by persons other than the genuine voters.
The present election petition would have to be decided in the light of the legal position set out above.
We have been taken through the evidence on record and are of the view that the evidence of the two witnesses examined by the appellant is sufficient to prove that their evidence relates to tendered ballot papers.
Each of these witnesses has deposed that when she arrived at the polling booth, she was told that someone else had cast her vote.
When these witnesses persisted that they had not cast their votes, each of them was supplied with a paper which she marked.
Both the witnesses were emphatic that they had not.
put their votes in the ballot box and that they handed them over to the persons present at the polling booth.
A very significant circumstance which shows that the evidence of these witnesses relates to tendered ballot papers and not to the ordinary ballot paper is the fact that there is actual reference to them in Form No. 15 which relates to list of tendered votes.
The packet containing Form No. 15, it needs to be mentioned, was opened after the close of the evidence of these two witnesses.
The name of Joaquina Rodrigues is mentioned in Form No. 15.
The fact that the name mentioned in the electoral roll is Rodrigues Joaquina Domingos and not Joaquina Rodrigues is not very material because the name of the father of the witness is Domingos.
So far as Vina Fernandes (PW 2) is concerned, Form No. 15 does not mention her name but only gives the serial number of the tendered ballot paper.
The counterfoil of the tendered ballot paper however, makes it clear that it re lates to serial No. 244 of electoral roll, part No. 12.
The said serial number of the electoral roll pertains to Vina Fernandes.
It 949 appears that some of the formalities which were required to be observed in connection with tendered ballot papers were not complied with by the presiding officer, e.g., he did not note on the back of the counterfoil of the tendered ballot paper that it related to tendered ballot paper.
The parties, however, cannot be made to.
suffer because of any such omission on the part of the presiding officer.
The evidence of the two witnesses examined on behalf of the appellant can also not be discarded on the ground that they have not deposed about their having affixed two thumb impressions instead of one thumb impression.
As mentioned above, the reference to those two voters in Form No. 15 relating to tendered ballot papers goes a long way to show that it were these two witnesses who marked the tendered ballot papers.
Their evidence also shows that they did not cast the initial votes which were cast in their names.
Learned Judicial Commissioner in this case did not record any evidence on behalf of the respondents and pro ceeded to decide the cast after the evidence of the witness es of the appellant had been recorded and after the box containing the relevant necessary papers had been opened and those papers were examined.
In view of the fact that the appellant has adduced prima facie proof in respect of two of the ten dered ballot papers, the Judicial Commission er, in our opinion, should now call upon the respondent to adduce his evidence.
The evidence of the respondent would be confined not merely to the two tendere ballot papers in respect of which the appellant has adduced evidence but can also relate to some or all of the other eight tendered ballot papers in respect of which the appellant has not adduced any evidence After the said evidence is examined, learned Judicial Commissioner would decide the matter in the light of the legal position relating to tendered ballot papers as set out above.
We accordingly accept the appeal, set aside the judgment of the learned Judicial Commissioner and remand the case to him for fresh decision after recording the evidence of the respondent in accordance with law as ex plained above.
The parties in the circumstances shall bear their own costs of the appeal.
We are conscious of the fact that the election matters should be dis posed of as soon as possible and that the remand of the case would have the effect of further prolong ing the matter, yet looking to the face of the case, we find no escape from the conclusion of remand.
Learned Judicial Commissioner, we are sure, would try to expedite the dispos al of the case.
| IN-Abs | Rule 42, Conduct of Election Rules, 1961, shows that the occasion for marking tendered ballet paper would arise if a person representing himself to be a paticular elector ap plies for a ballot paper after another person has already voted as such elector.
The person so applying, would then be questioned by the presiding officer regarding his identi ty, and in case he gives a satisfactory answer, he would be supplied a tendered ballot paper which would then be marked by such person.
has to sign his name against the entry relating to him in a list in Form 15, prescribed under the Rules.
The tendered ballot paper shall be the same as other ballet papers used at the polling, except that it would be serially the last in the bundle of ballot papers issued for use at the polling station.
The words 'tendered ballot paper ' have to be endorsed on the back of the ten dered ballot paper and its counterfoil by the presiding officer in his own hand and has to be signed by him.
The tendered ballot paper is not to.
be put in the ballot box, but is to be kept in a separate cover.
According to r. 56(6) no cover containing tendered ballot papers shall be opened or counted at the time of the counting of the votes.
But even though the tendered ballot papers are thus excluded at the time of counting they can be taken into account in proceedings to challenge the validity of the election of the returned candidate provided, ( 1 ) the person who cast the initial vote as a voter on a particular serial number in the electoral roll was someone other than the genuine voter mentioned at that number; (2) it was such genuine voter who marked the tendered ballot paper; and (3) the difference between the number of votes polled by the candidate declared elected and his nearest rival is so small that there is a possibility of that difference being wiped out and the result of the election being materially affected.
In such a case, the Court would exclude the vote initially cast from the number of votes of the candidate in whose favour it was cast; and take into account the tendered ballot paper in favour of the candidate in whose favour it is duly marked.
In the present case, the appellant and respondent were two candidates for election to a Legislative Assembly, and the respondent was declared elected having secured just two votes more than the appellant.
The appellant challenged the respondent 's election and contended that there were ten tendered votes and that they should be counted, after remov ing the votes initially and improperly cast.
At the trial of the election petition, the appellant examined on his behalf two witnesses, who had, according to the appellant, marked tendered ballot papers at the time of the polling.
The trial court however, took the view that the evidence of the two witnesses did not relate to tendered ballot papers but related to ordinary ballot papers, and dismissed the election petition.
Allowing the appeal to this Court, and remanding the case to the trial Court HELD: (1) The evidence of the two witnesses of the appellant is sufficient to prove that their evidence relates to tendered ballot papers.
Even though some of the formal ities which were required to be observed in connection with the tendered ballot papers were not complied with by the presiding officer, as for example, he did not note on the back of the counterfoil of the tendered ballot paper that it related to tendered ballot paper, the parties cannot 943 be made to suffer for such an omission.
The evidence of the two witnesses cannot also be discarded on the ground that they have not deposed about their having affixed two thumb impression instead of one.
[948 F G] (2) In view of the fact that the appellant has adduced prima facie proof in respect of the two tendered ballot papers the trial court should now call upon the respondent to adduce his evidence.
The respondent 's evidence need not be confined to the two tendered ballot papers but may relate to some or all of the other eight tendered ballot papers in respect of which the appellant has not adduced evidence.
The trial court should thereafter decide the matter in the light of the legal position.
[949 D] Borough of St. Andrews (4 Orielly & Hardcastle 32), The Stepney Division the Borough of Tower Homlets (4 Orielly & Hardcastle 34), Kalicharan Singh vs Ramcharitar Raj Yadava & Ors.
and .4.
K. Subharava Gounder vs
G. Pala nisami Gounder & Ors.
referred to.
|
Appeal No. 870 of 1968.
(From.the Judgment and Order dated 22.11.1967 of the Madhya Pradesh High Court in Second Appeal No. 436/64.
G.L. Sanghi and D.N. Misra for the appellant.
P.H. Parekh (amicus curiae) for the respondents.
The Judgment of the Court was delivered by KRANNA, J.
This appeal by special leave is against the judgment of the Madhya Pradesh High Court affirming on second appeal the decision of the trial court and the first appellate court whereby suit for possession of the land in dispute had been decreed in favour of the plaintiff re spondent against the defendant appellant.
Laxmi Dayal died in 1952 leaving the lands in dispute and some other properties.
He was succeeded by his two widows, Shantibai and Bindumati.
In 1954 Chandanbai, widow of brother of Laxmi Dayal, filed civil suit No. 34A of 1954 against Shantibai and Bindumati in respect of the property left by Laxmi Dayal.
During the pendency of that suit, a deed of partition was executed by Shantibai, Bindumati and Chandanbai, as a result of which each one of them was stated to have become full owner of the property which fell to her share.
The partition deed was got registered and necessary mutation entries were made in accordance with that deed.
On September 8, 1955, Shantibai made a will of the property which fell to her share as a result of partition,.
in favour of the plaintiff respondent.
The suit filed by Chandanbai was disposed of on February 18, 1956 in terms of partition deed dated January 13, 1955.
Shantibai died on May 29, 1956.
The respondent filed the present suit against Bindu mati defendant appellant for possession of the land in dispute on the allegation that he (the respondent) had taken possession of the land in dispute in pursuance of the will executed in his favour by Shantibai.
The appellant was stated to have relinquished her right of survivorship in the land which fell to the share of Shantibai.
The appellant, it was further pleaded, had taken forcible possession of the land in dispute.
The suit was resisted by the appellant on the ground that she had not relinquished her right of survivorship in the land which fell to the share of Shantibai.
Shantibai, it was further averred, had no right to dispose of the said land by will.
The trial court accepted the contention of the respondent and decreed his suit.
The decision of the trial court was affirmed on appeal by the first appellate court and by the High Court in second appeal.
The first question which arises for consideration in this appeal is whether the appellant relinquished her right of survivorship in the property which fell to the share of Shantibai as a result of the deed of partition dated January 13, 1955.
In this respect we find that each 990 of the three executants stated in that deed that none of them would have any right or claim over the property that fell to the share of other shareholders in partition.
it was further stated in the deed: "Every shareholder may get the property fallen to her share, mutated and may take possession thereof and thus may become abso lute owner thereof. 'Every shareholder may get her name separately mutated in Patwari 's papers.
She may sell it.
If other sharehold er claim it, it will be contrary to law . .
By taking our respective share from the entire property in the parti tion we become separate from the entire property.
" When she came into the witness box, the appellant admitted that their object in making the partition was that they would be able to dispose of their separate lands in any way they liked.
The appellant also stated that as a result of partition, each one of the executants of the deed of partition became exclusive owner of the property that fell to her share.
In the face of the recitals in the deed of partition and the admissions made by the appellant in the witness box, we find no reason whatsoever to disturb the finding of the courts below that the appellant had relin quished her right of survivorship in the property which fell to the share of Shantibai.
Sanghi on behalf of the appellant, however, contends that it is not permissible in Hindu law for a widow to give up her right of survivorship in the property which fails to the share of the co widow even as a result of an agreement.
This contention, in our opin ion, is devoid of force and runs counter to the decision of this Court in the: case of Karpagathachi & Ors.
vs Nagarathipathachi.(1) As observed in that case, "under the Hindu law as it stood in 1924, two widows inheriting their husband 's proper ties took together one estate as joint tenants with rights of survivorship and equal benefi cial enjoyment.
They were entitled to en force a partition of those properties so that each could separately possess and enjoy the portion allotted to her, see Dhuowan Deen Dobey vs Myna Baee(2), Gauri Nath Kakaji vs Gaya Kuar(3).
Neither of them could without the consent of the other enforce an absolute partition of the estate so as to destroy the right of survivorship, see Commissioner of Income tax vs Smt.
Indira Balakrishna(4).
But by mutual consent they could enter into any arrangement regarding their respective rights in the properties during the continuance of the widow 's estate, and could absolutely divide the properties, so as to preclude the right of survivorship of each of the portion allotted to the other see Ramakkal vs Ramasami Naichan (5),, Sudalai Ammal vs Gomathi Ammal(6).
Likewise, two daughters succeeding to their father 's estate as joint (1) ; (2) (3) (1928)L.R. 55 I.A. 299.
(4) ; ,517.
(5) Mad, 522, (6) , 991 tenants with rights of survivorship could enter into a similar arrangement, see Kailash Chandra Chuckerbutty vs Kashi Chandra Chuck erbutty (1), Subbammal vs Lakshmanu Iyer(2), Ammani Ammal vs Periasami Udavan.(a) Such an arrangement was not repugnant to section 6(a) of the .
The interest of each widow in the properties inherited by her was property, and this property together with the incidental right of survivorship could be lawfully trans ferred.
Section 6(a) of the prohibits the transfer of the bare chance of the surviving widow taking the entire estate as the next heir of her hus band on the death of the Co widow, but it does not prohibit the transfer by the widow of her present interest in the properties inher ited by her together with the incidental right of survivorship.
The widows were competent to partition the properties and allot separate portions to each, and inciden tal to such an allotment, each could agree relinquish her right of survivorship in the portion allotted to the other.
" There is nothing in the decision of Smt.
Indira Balakr ishna (supra) which stands in the way of any mutual arrange ment between the cowidows, the effect of which would be to preclude the right of survivorship of each to the portion allotted to the other.
The question which actually arose for decision in that case was whether the three widows of a deceased person could have the status of an association of persons within the meaning of section 3 of the Indian In come tax Act, 1922.
This question was answered in the negative.
While discussing this question, this Court observed that though the widows take as joint tenants, none of them has a right to enforce an absolute partition of the estate against the other so as to destory the right of survivorship.
The question as to whether the right of survivorship could be relinquished as a result of mutual agreement did not arise for consideration in that case.
This question was dealt with in the case of Karpagathachi (supra) and it was held after noticing the decision in Smt.
Indira Balakrishna 's case (supra) that such relinquishment of the right of survivorship was permissible as a result of mutual arrangement.
Lastly, it has been argued by Mr. Sanghi that even though Shantibai became entitled to dispose of during her life time the property which fell to her share as a result of the deed of partition, she could not bequeath the same by means of a will.
This submission too.
is devoid of force, and we agree with Mr. Parekh who argued the case amicus curiae that the power of Shantibai to make a will in respect of the property in dispute was co extensive with her power to transfer it inter vivos.
The question as to what effect the will would have on the right of the male rever sioner, if any, of Laxmi Dayal need not be gone into in this case.
So far as Bindumati appellant is concerned, we have no doubt that in the light of the arrangement contained in the deed of partition dated January 13, 1955 she cannot resist the (1) cal.
(2) , (3) (1923) 45 M.L.I. 1. 992 claim of the plaintiff respondent who is a legatee under the will of Shantibai.
To hold otherwise would be tantamount to permitting the appellant to assert her right of survivor ship in the property which fell as a result of partition to the share of Shantibai even though the appellant has relin quished such right of survivorship.
The appeal consequently fails and is dismissed.
As no one appeared on behalf of the respondent, we make no order as to the costs of the appeal.
P.H.P. Appeal dismissed.
| IN-Abs | One Lakshmi Dayal died in 1952 leaving behind two wid ows, appellant and Shantibai.
In 1954, Chandanbai widow of brother of Laxmi Dayal filed a suit against the appellant and Shantibai in respect of the. properties left by Lakshmi Dayal.
During the. pendency of the said suit, the appel lant, Shantibai and Chandanbai executed a partition deed alloting different properties to each one of the widows.
The partition deed was registered and necessary mutation entries were made.
The suit filed by Chandanbai was dis posed of in terms of the Partition Deed.
In September.
1955, Shantibai made a will in favour of the respondent and she died on 29 5 1956.
After her death, the appellant took forcible possession of the suit land from the respondent.
The respondent, therefore, filed a suit against the appel lant for possession of the land in dispute.
The Trial Court, the first Appellate, Court and the High Court in Second Appeal came to the conclusion that the appellant had relinquished her right of survivorship in lands which fell to the share of Shantibai and, therefore, decreed the respondefts suit.
In an appeal by Special Leave the appellant contended: 1.
The appellant did not relinquish her right of survivorship.
It is not permissible for a Hindu co widow.
to give up her right of survivorship even by an agreement.
Even if right of survivorship can be given up during the lifetime of the widows con cerned, the property could have been trans ferred inter vivos but could not have been disposed of by a will.
Dismissing the appeal, HELD: 1.
It is clear from the Partition Deed and the evidence of the appellant herself that she had relinquished her right of survivor ship.
The findings of all the courts below to the effect that the appellant relinquished her right of survivorship are correct.
[990 B C] 2.
It is permissible under Hindu Law for a co widow to relinquish by agreement her right of survivorship ' in the property which falls to the share of the other widow.
[990 G] Karpagathachi & Ors.
vs Nagarathipathachi ; followed.
Bhuowan Deen Doobey vs Myna Baee ; Gauri Nath Kakaji vs Gaya Kaur (1928) LR 55 IA 299 re ferred.
Commissioner of Income Tax vs Smt.
Indira Balakrishna ; , 517 distinguished.
Ramakkal vs Ramasami Naichan Mad.
522, Sudalai Ammal vs Comathi Ammal ; Kailash Chandra Chuckerbutty vs Kashi Chandra Chuckerbutty Cal.
339; Subbammal vs Lakshmana Iyer ; Ammani Ammal vs Perissemi Udayan re ferred to. 3.
The power of a co widoW to execute a will in respect of the property falling to her share in the partition with the other co widows is co extensive with her power to trans fer it inter vivos. 989
|
Appeal No. 1177 of 1975.
(From the judgment and order dated 10 10 1974 of the Kerala High Court in Civil Revision Petition No. 734/74).
K.T. Harindranath, and K.M.K. Nair, for the appellants.
T.C. Raghavan and P.K. Pillai, for the respondent.
The Judgment of the Court was delivered by RAY, C.J.
This appeal is by special leave from the judg ment dated 10 October, 1974 of the High Court of Kerala.
The respondent in the High Court challenged the order of the Land Board directing him to surrender 8.78 acres of land.
The High Court declared on a revision petition that the respondent was not liable to surrender the lands speci fied in the order of the Land Board.
The respondent flied a statement under section 85(a) of the Kerala Land Reforms Act 2964 hereinafter called the Act and showed there that the statement related to the family consisting of himself, his wife and children.
Two of his children were minors on 1 January, 1970.
The ceiling area allowed under section 82(1) of the Act for a family consisting of two or more but not more than five members is 10 standard acres which should not be less than 12 and more than 15 ordinary acres in extent.
On this footing the respondent would be entitled to have not less than 12 acres on the notified date, namely, 1 January, 1970.
He was found to have a total area of 28.38 acres.
He alone was the owner of all the lands.
Out of 28.38 acres 3.87 acres were ex empted under section 81.
Excluding 3.87 acres and another 12 acres for the ceiling area the excess land was 12.51 acres.
A statement showing the determination was served on him and his wife.
They were asked to file objections.
Two of the respondent 's children a daughter and a son who were minors on 1 January 1970 attained majority in 1971 and 1973 respectively.
On 28 March, 1974 the respondent executed three deeds of gift transferring a total extent of 12.83 acres to his three children.
To the eldest of them a daughter, who was a major on 1 January, 1970 he transferred 3.84 acres.
To the second daughter who became a major in 1971 he transferred 3.85 acres and to his son who became a major in 1973 he transferred 5.14 acres.
The respondent flied an objection on 5 April, 1974 stating that he and his wife who were the remaining members of the statutory family did not hold more than the ceiling area available to the family and therefore he was not liable to surrender any excess land.
The Land Board recog nised the gift to the eldest daughter who was a major on 1 January 1970 and required the respondent to surrender 8.78 acres which was the subject matter of the other two deeds of gift.
The respondent 's contention which was accepted by the High Court was repeated here.
The contentions were these.
The donees were not minors on the date of the gift.
There fore, the son and the daughter would not constitute members of the family.
Section 82 of the Act only fixes the.
ceil ing area.
The ceiling is 5 acres for an unmarried person of a family consisting of one sole surviving member.
The ceiling is 6 acres for a family of two to five members, 12 acres for a family of more than 5 members, 10 acres in creased by one acre for each member in excess of 5 etc.
The respondent emphasises that the status or nature of the person or the family is relevant.
If a person is a single member family on the relevant date, he cannot claim a larger ceiling on the ground that he became a two member or five member family later.
Under section 83 of the Act the notified date is 1 January, 1970.
This notified date is relevant only for fixing such ceiling.
Section 83 does not say that the particular person or family loses its title to the excess land on that date.
Section 84 of the Act has two parts.
The first part contains body of the section.
The second part contains exceptions.
Therefore, it is said by the respon 963 dent that all voluntary transfers of excess land failing in the body of the section shall be deemed to be transfers calculated to defeat the provisions of the Act and shall be invalid.
The gifts in the present case are said by the respondent to fall under the last exception of section 84 of the Act and it is said that the transaction is saved by the last exception.
The respondent further contends that on 1 November, 1972 the Amendment 'Act 17 of 1972 deleted two exceptions in section 84 of the Act with effect from 16 August, 1968.
The two deleted exceptions were first a transfer on account of natural love and affection and second a transfer in favour of a religious charitable or educational institution.
The Amendment Act of 1972 added an exception with effect from 16 August 1968.
The exception is a transfer by way of gift in favour of his son or daughter, or the son or daughter of his predeceased 'son or daughter by any person owning or holding land in excess of the ceiling area.
The respondent contends that in the present case the two impugned gifts to a daughter and son respectively, and, therefore, they come directly under the newly added excep tion introduced by Act 17 of 1972 and the exception is deemed to be effective from 16 August, 1968.
The respond ent further contends that section 85 and section 85A of the Act lay down the procedure for surrendering the excess land.
Section 86 of the Act vests the excess land in the Government.
The vesting happens both on the determination of the extent and other particulars of the lands, the ownership or possession or both of which is or are to be surrendered.
The respondent contends that until then namely the vesting of the land the owner of the land i.e. the respondent in this case is the legal owner and his ownership or possession is not diverted.
He can therefore deal with the land in legal valid manner.
A gift under the last exception not being hit by the invalidity contemplated by section 84 of the Act is a valid gift, which the respondent was competent to make.
The respondent contends that it is incorrect to say that a gift coming within the last exception of section 84 is ineffective after 1 January, 1970 inasmuch as such a contention will make section 84 a dead letter after 1 Janu ary, 1970.
It is said that it could not have been the intention of the legislature which added the exception only on 1 November, 1972.
The exceptions introduced by the Amendment Act of 1972 to section 84 are three.
The first is partition.
The second is transfer to a person who has been a tenant from 27 July 1960 up to the date of transfer.
The third is a transfer to a son or a daughter or a grandson or grand daughter by a predeceased son or daughter.
The respondent submits that the intention of the legislature is that in all these cases a person can transfer until he is divested of his ownership under section 86.
The respondent further contends that the scheme of the Act and of the Amendment Act of 964 1972 regarding gift is this.
Until 16 August 1968 a gift to any person is valid if the gift was out of natural love and affection.
After that date namely the amendment Act of 1972 only gifts to sons daughters and grand children of prede ceased children are valid.
It is said that there is nothing in the Act which says that an owner like the respondent cannot deal with his land in a lawful and valid manner as long as he is the owner thereof or as long as ownership is vested in him.
Section 87 of the Act says that where any person acquires any land after the date notified under section 83 by gift, purchase, mortgage with possession, lease, surrender or any other kind or transfer inter vivos or by bequest or insistence or otherwise and in conse quence thereof the total extent of land owned or held by such person exceeds the ceiling area, such excess shall be surrendered to such authority as may be prescribed.
Section 87 according to the respondent indicates that after the notified date 1 January, 1970 valid gifts are possible, as such gifts are saved by exceptions to section 84.
The Kerala Land Reforms Act Of 1964 came into force on 1 April 1964.
On 1 January, 1970 the Kerala Land Reforms Act as amended by Act 35 of 1969 came into force.
The respond ent made gifts of his excess land on 28 March, 1974.
On 5 April, 1974 the Land Board served notice on the respondent saying that ' the gifts were invalid and directed the re spondent to surrender the excess Land in excess of the ceiling area as found on 1 January, 1970.
On behalf of the State it is contended that the view taken by the Single Judge in the present case has been over ruled by a Division Bench of the Kerala High Court in a decision reported in It is also said by the appel lant that the decision of the Division Bench is affirmed by the Full Bench of the Kerala High Court in the Judgment reported in Section 82 of the Act lays down the principles governing the fixation of the land ceiling area in respect of differ ent categories of persons.
Section 83 of the Act states that with effect from the notified date no person shall be entitled to own or hold or to possess under a mortgage lands in the aggregate in excess of the ceiling area.
Sec tion 84 of the Act provides that all voluntary transfers effected after the publication of the Kerala Land Reforms Bill 1963 in the Gazette, namely, 15 September 1963, other wise that in certain modes specified in section 84, shall be deemed to be transfers calculated to defeat the provisions of the Act and shall be invalid.
Section 85(1) lays down that if any person owns or holds land in excess of the ceiling area on the notified date, such excess shall be surrendered as provided in the section.
Section 86 lays down that on determination by the Land Board of the extent and other particulars of the lands to be surrendered by the person under section 85 the ownership or possession or both, as the case may be, of the lands shall vest in the Govern ment free from any encumbrance.
Section 87 deals with cases where persons have acquired lands after the notified date by transactions inter vivos, such as gift, purchase, mortgage with possession 965 lease, surrender or by bequest, or inheritance etc.
and in consequence thereof the total extent of land owned or held by such person exceeds the ceiling area, such excess lands should also be surrendered to the prescribed authority and that such land shall also vest in the Government under section 86.
These provisions in the Act establish the dominant legislative intent of the imposition of the ceiling on land holdings and the consequential obligation to surrender lands owned or held in excess of the ceiling area on the noti fied date, namely, 1 January 1970.
The legislature noticed the possibility that after the proposal to introduce the Kerala Land Reforms Bill 1963 published in the Gazette on 15 August, 1963, there might be transactions of transfers with a view to circumventing the provisions of the contem plated legislation.
It is to meet the said situation that.
section 84 of the Act lays down that all such voluntary transfers that have taken place subsequent to the date of publication of the Bill, namely, 15 August 1963, otherwise than in the limited modes specified in the said section, shall be deemed to be transfers calculated to.
defeat the provisions of the Act and shall be invalid.
It is apparent that section 84 was enacted with a view to making the provi sions of sections 83 and 85 effective.
For purposes of calculation of the ceiling area and the determination of the extent of the excess land to be surrendered by persons account will be taken not merely of the land actually owned and possessed by him on the notified date, namely, 1 January 1970, but also of land voluntarily transferred by him subsequent to the date of publication of the Bill in the Gazette on 15 August 1963 by transactions not falling within the certain categories mentioned in section 84.
Section 84 prohibits persons from transferring their excess lands after 15 August, 1963 except as provided in that section.
The effect of sections 83 and 85 has been noticed by this Court in the decision dated 20 August, 1976 in Civil Appeals No. 907 909 of 1974 and Civil Appeals No. 1354 and 1355 of 1975 (State of Kerala & Ors.
vs Philomina(1).
It has been held there that the prohibition against ceiling area under section 83 of the Act and the surrender of the excess land under section 85 of the Act are both to be determined with reference to the position as on the noti fied date under section 83 of the Act.
The crucial date for determining and surrendering the surplus land is 1 January 1970 and not any earlier date.
Transfers which have been effected between 15 August 1963 and 1 January 1970 will be treated as valid provided they come within the excepted categories enumerated in section 84 of the Act.
The lands covered by such valid transfers will be treated as properties belonging to.
the transferors on the notified date for purposes of determining a ceiling area and the extent of excess land to be surren dered by him.
In respect of transfers effected after 1 January 1970 the ceiling area applicable to a person and the extent of his liability to (1) ; 966 surrender, which became crystallised on 1 January 1970, will determine the excess land to be surrendered.
The obligation to surrender the excess land owned or possessed by person as on 1 January 1970 cannot be affected by voluntary transfers even of the excepted varieties mentioned in section 84 of the Act subsequent to the notified date.
The transferor will continue to be liable to surrender to the Government the full extent of the excess land that was in his posses sion as on 1 January 1970.
The High Court erred in holding that the respondent was not to surrender the land.
The appeal is accepted for the foregoing reasons and the judgment is set aside.
Parties will pay and bear their own costs.
P.H.P. Appeal allowed.
| IN-Abs | The respondent held 28.4 acres of land and, therefore, filed a return under Section 85(a) of the Kerala Land Re forms Act, 1964.
In the return, he showed his family as consisting of himself, his wife and 3 children.
Section 84 of the Act provided that all voluntary transfers effected after publication of the Kerala Land Reforms Bill, 1963, except certain transfers which were excepted shall be deemed to be transfers calculated to defeat the provisions of the Act and invalid.
The Act was amended by Act 35 of 1969 ' which came into force on 1 1 1970.
By virtue of the said amendment, 1 1 1970 was declared as the notified date.
Section 83 provides that with effect from the notified date no person shall be entitled to own, hold or to possess land in excess of certain acres of land.
Section 85(1) provides that any person holding land in excess on notified date shall surrender the excess.
Section 85 and 85A are the sections laying down the procedure for surrender of the excess land.
Section 86 provides that on determination of the excess land under section 85 the same will vest in the State.
On 1 1 1970, the respondent had one major child and two minor children.
One minor child attained the age: of majority in 1971 and another attained majority in 1973.
In March, 1973, 3 gift deeds were executed one in favour of each one of the children.
The respondent was called upon to hand over the excess land on.
the ground that the transfers executed after 1 1 1970 in favour of the children who were minor on 1 1 1970 will be ignored and the land will be treated as land owned by the respondent.
The respondent filed his objections and contended that he and his wife were the only members of the family and that if the transfers were excepted he did not hold land in excess of the ceiling.
The Land Board came to the conclusion that out of the 28.4 acres of land held by respondents 3.9 acres were exempted under section 81 and that the land measuring 3.8 acres gifted to the major child was a valid gift and in addition the respondent was entitled to hold 12 acres of land.
He came to the conclusion that the respondent was holding excess land to the extent of 8.78 acres.
The respondents filed a Revision Petition in the High Court which allowed the same.
In an appeal by Special Leave the respondent contended: (1) Section 83 is relevant only for fixing ceiling.
It does not say that a person or a family loses his title on the notified date.
(2) Donees were not minors on the date of gift.
That would not constitute the members of the family.
961 (3) Gifts in the present case are saved by the last exception to section 84 which permit ted gifts to any person out of natural love and affection or, at any rate, they are saved by Amendment Act 17 of 1972 by which the exception to Section 84 was made effective from 16 8 1968, in favour of transfers by way of gifts in favour of son or daughter or other near relations.
(4) Sections 85 & 85A lay down the proce dure ' for surrendering the excess land.
Section 86 vests the excess land in the State.
The vesting takes place after the procedure under sections 85 and 85A is over and till then the respondent was the legal owner and could have and in fact validly gifted the land in question.
The appellants contended: (1) The gifts made after 1 1 1970 were not saved by exception to section 84.
(2) The view taken by the Single Judge has been over ruled by a Division Bench and Full Bench of the same High Court.
Allowing the appeal, HELD: (1,) The provisions of the Act dearly establish the dominant legislative intent of the imposition of the ceiling on laud holdings and the consequential obligation to surrender laud owned or hold in excess of the ceiling area on the notified date, namely, 1 1 1970.
Section 84 was enacted because the Legislature anticipated transfers with a view to.
circum vent the provisions of law.
Transfers between 15 8 1963 and 1 1 1970 ' will be valid if within the exceptions provided by section 84.
Transfers made after 1 1 1970 even of the excepted varieties are to be ignored and obligation to surrender the excess land on 1 1 70 cannot be excepted by voluntary transfers made subsequent to.the notified date.
[964 G H, 965 C D] (2) Notified date is 1 1 1970.
That is the relevant date for fixing ceiling.
Subse quent changes in the constitution of family are irrelevant [965 H]
|
Civil Appeal Nos.
1739 1740 of 1968.
(From the Judgment and Decree dated 14 2 1967 of the Delhi High Court in Regular First Appeal Nos.
5 D, and 54 D of 1958).
969 V. section Desai and Girish Chandra, for the Appellant.
Sachin Chaudhary, B.P. Maheshwar and Suresh Sethi, for the Respondent No. 1 in (CA.
1739/68) and for Respondent No. 2 in 1739/68) and Respondent No. 1 in (CA.
No. 1740/68).
A. K. Sen and D. Goburdhan, for Respondent No. 2 in (CA.
No. 1740/68).
The Judgment of the Court was delivered by SHINGHAL, J.
, These two appeals by certificate have been consolidated by an order of this Court dated April 15, 1969.
They are directed against a common judgment of the Delhi High Court dated February 14, 1967, in Regular First Appeals Nos.
5 D and 54 D of 1958, by which the judgment and decree of the trial court dated January 13, 1958 have been set aside with costs throughout.
As this has resulted in the dismissal of the suit raised by the Union of India, it has filed the present appeals.
The facts giving rise to the appeals are quite simple.
Harjas Rai Malhotra, defendant No. 3, is the father of Krishan Lal Malhotra, defendant No. 2.
The liability of defendant No. 3 to income tax and super tax for the as sessment year 1947 48, was fixed Rs. 1,25,090/11/ in March, 1952.
A demand was made for its payment, but he neglected to meet it and a certificate was issued on October 8, 1952 to the Collector of Delhi for its recovery as ar rears of land revenue.
The Collector was asked to attach house No. 15, Keeling Road and house No. 9, Hailey Road in New Delhi, of defendant No. 3.
Both the houses were attached on October 13, 1952.
Meanwhile, defendant No. 3 appealed against the order of assessment.
The Appellate Assistant Commissioner allowed the appeal on May 12, 1953, set aside the assessment and directed a fresh assessment.
The order of fresh assessment was made on November 30, 1953 and the incometax demand was reduced to Rs. 1,05,769.13.
The as sessments for 1944 45 and 1948 49 were completed on March 28 and 31, 1953, respectively, raising a tax demand for Rs. 1,94,738.15.
A recovery certificate was issued to the Collector for the same on May 4, 1953 and the house at No. 15, Keeling Road was again attached on August 6, 1953.
We are not concerned with the house at No. 9, Hailey Road, for the controversy before us relates to house No. 15, Keeling Road, hereinafter referred to as the house.
That house had been ostensibly purchased by defendant No. 2 in December, 1946 for Rs. 60,000/ .
He filed an application objecting to the attachment on the ground that the house belonged to him, but the Collector dismissed the objection holding that the house belonged to defendant No. 3.
Defend ant No. 2 did not appeal against that order and did not question it by a suit.
Thus far, the facts are not in dispute.
970 It was alleged in the plaint that the house was pur chased by defendant No. 3, "benami", in the name of his son defendant No. 2, out of his "own funds drawn from his bank account" and that 'the "full beneficial ownership, right, title and interest in the said property has always belonged and continues to this day to belong to the 3rd defendant.
" The plaintiff alleged further that during the pendency of his appeal to the Appellate Assistant Commissioner against the assessment which had been made in March 1952 for 1947 48 and the assessment proceedings for 1944 45 and 1948 49, defendant No. 3 "in collusion and conspiracy with the 2nd defendant and certain other persons, and with the view, intent and purpose of defeating and delaying his creditors including the plaintiff, had recourse to diverse ways and means" as detailed in the plaint.
He was thus alleged that, in February 1953, defendants Nos. 2 and 3 and five other persons purported to form a limited company known as Moksh Builders and Financiers Ltd., hereinafter referred to as the Company, which was arrayed as defendant No. 1 in the suit, with an authorised capital of Rs. 5,00,000/ divided into 5000 shares of Rs. 100/ each.
There were 7 subscribers to the Memorandum and the Articles of Association of the Compa ny and each of them took 10 shares, Soon after the Appel late Assistant Commissioner made his aforesaid order dated May 12, 1953 for fresh assessment of the income tax liabili ty of defendant No. 3, a sale deed dated May 25, 1953 was brought into existence whereby defendant No. 2 "purported to convey" the house to defendant No. 1 for Rs. 1,00,000/ of which Rs. 90,000/ were payable in the shape of shares in the Company, Rs. 8,000/ payable to Sunrise .Investors Ltd. and Rs. 2000/ in cash.
The plaintiff pleaded that "these transactions were all sham, colorable, and effected and entered into with the active aid, instigation and advice of the 3rd defendant and to subserve and carry out the object of placing his property, viz., No. 15, Keeling Road out of the reach of his creditors".
It was further urged as fol lows, "The consideration mentioned in the sale deed of 25th May, 1953 was illusory.
In effect and substances the 2nd defendant pur ported to sell a house to the I st defendant in which company in return was to become a holder of shares .
of controlling interest, the shares being the alleged price.
, Except for the legal fiction of the I st defendant Company being juristic person the 'sale was by the vendor to himself.
None of these de vices and subterfuges could divest the 3rd ', defendant of his ownership of the property in question.
The 1st defendant company by its_promoters directors and office bearers was fully aware of all the facts of the case, including the true state of the title to the property No. 15, Keeling Road, the highly embarrassed financial circumstances of the 3rd defendant the facts that he owed to the plain tiff" alone taxes to the amount of several lakhs of rupees etc.
The 1st defendant is not a purchaser in good faith for consideration of the said property or without notice of the title of the 3rd defendant.
On the other hand the sale deed dated 25th May, 1953 to the 1st defendant was executed by the name lender the 2nd defendant at the instance of the true owner of 971 the 3rd defendant with intent to defeat or delay the latter 's creditors, and is voidable at the option of any of such creditors includ ing the present plaintiff.
" Defendant No. 1 objected to the attachment of the house for the realisation of the arrears of income tax of defend ant No. 3.
The Additional Collector allowed the objection by a summary inquiry, and the Chief Commissioner dismissed the appeal on April 1, 1954.
Both those officers, according to the plaintiff, proceeded on "prima facie considerations" and left the parties to seek their redress in the civil court.
With these specific averments the,plaintiff raised its suit seeking leave to sue on behalf and for the benefit of itself and the other creditors, if any, of defendant No 3.
It prayed for a declaration that (i) the sale deed dated May 25, 1953 was void as against the plaintiff and all other creditors of defendant No. 3, and (ii) the house is and continued to be owned by defendant No. 3.
In the alterna tive, the plaintiff prayed for a declaration that the shares allotted to defendant No. 2 belonged to defendant No. 3.
It also prayed for a declaration that it was entitled to pro ceed against the "properties which may be declared to be of 3rd defendant 's" by attachment and sale to realise the tax arrears due from him.
A prayer was made for setting aside the orders of the Additional Collector and the Chief Commis sioner on the objection petition of defendant No. 2.
Defendant No. 3 did not appear to contest the suit in spite of personal service and the trial court made an order on April 15, 1955 to proceed against him ex parte.
Separate written statements were filed by the Company and defendant No. 2 The Company took the plea, inter alia, that it had been genuinely and properly formed and that it was a bona fide purchaser for value and the "transaction was quite real and genuine".
It denied that the sale deed dated May 25, 1953, was executed at the instance of defendant No. 3, or that it was intended to defeat or delay his creditors.
P was pleaded that defendant No. 2 was the rightful owner of the house which he had rightfully purchased with "his own money (Rupees 10,000/ ' by cheque No. 32920 dated 14.11.1946 on the New Bank of India Ltd., New Delhi drawn by his mother K. Rani and Rs. 50,000/ paid in cash before Sub Registrar)".
The Company also pleaded that the transaction of sale in its favour was without notice of any body else 's claim and was binding.
Defendant No. 2 filed a short written statement stating that he was the owner of the house having purchased it with "his own money".
He pleaded that he had paid Rs. 10,000/ by cheque on New Bank of India Ltd., New Delhi, and Rs. 50,000/ were paid before the SubRegistrar.
He pleaded further that he had no knowledge of the Collector 's order and that his order, if any, was ex parte.
As regards the Company, defendant No. 2 pleaded that it was a real and genuine Company and that out of his shares worth Rs. 90,000/ he had sold shares worth Rs. 74,000/ .
12 1338SCI/76 972 The trial court found that the house was purchased "benami" in the name of defendant No. 2, by defendant No. 3 with his own money and that the sale of the house to the Company by defendant No. 2, was "sham and was effected in order to defeat or to delay the creditor of defendant No. 3 and that defendant No. 1 had no real existence.
" The trial court therefore granted a decree declaring that the sale deed dated May 25, 1953 was void as against the plain tiff and all other creditors, if any, of defendant No. 3 and that the House" is and continues to be owned by the 3rd defendant and that the plaintiff is entitled to proceed against the said properties by way of attachment and sale to realise the tax arrears due from him.
" The trial court set aside the orders dated October 9, 1953 of the Additional Collector on the objection petition of defendant No. 2 and of the Chief Commissioner dated April 1, 1954.
As the High Court has set aside the judgment ' and decree of the trial court, the present appeals have been filed by the plaintiff as aforesaid.
We shall refer to the findings of the High Court as and when necessary.
The main point in controversy was whether the house was purchased by defendant No. 3 'benami ' in the name of defend ant No. 2? This was the subject matter of issue No. 1 in the trial court.
We have made a reference to the plaintiff 's plea that the purchase was "benami" and payment was made out of the funds of defendant No. 3, which were drawn by him from his own account.
As has been mentioned, defendant No. 3 did not care to appear and contest the suit even though he was served and knew the nature of the plaintiff 's claim and the basis thereof.
Defendant No. 2 appeared at the trial and pleaded that he purchased the property "with his own money".
The source of the money was within his special knowledge, but it will be recalled that he contended himself by pleading that Rs. 10,000/ were paid by him by a cheque and Rs. 50,000/ were paid before the Sub Registrar.
We have made a reference to the plea of the Company in this respect.
It is no body 's case that the sale of the house to defendant No. 2 was fictitious and that the title of the transferor was not intended to pass.
What we have to examine is whether the title, on sale of the house in Decem ber 1946, was transferred to defendant No. 3, who was.
the real purchaser, and not to defendant No. 2, who was only the ostensible transferee and was no more than a "benamidar".
It has been held in Gangadara Ayyar and others vs Subrarnania Sastrigal and others(1) that "in a ease where it is asserted that an assignment in the name 011 one person is in reality for the benefit of another, the real test is the source whence the consideration came" It is also necessary to examine in such eases who actually has enjoyed the benefits of the transfer.
Both these tests were applied by this Court in Meenakshi Mills, Madurai vs The Commissioner of IncomeTax Madras.(2) It is therefore necessary, in the present case, to (1) A I.R. (2) ; 973 find out the source of the consideration for the. transfer, as also to find out who has been in enjoyment of the bene fits of the transaction.
It is equally well settled that, although the onus of establishing that a transaction is 'benami ' is on the plaintiff, 'where it is not possible to obtain evidence which conclusively establishes or rebuts the allegation, the case must be dealt with on reasonable proba bilities and legal inferences arising from proved or admit ted facts.
" The burden of proof is, however not static, and may shift during the course of the evidence.
Thus while the burden initially rests on the party who would fail if no evidence is led at all after the evidence is recorded, it rests upon the party against whom judgment would be given if no further evidence were adduced by 'either side, i.e. on the evidence on record.
As has been held by this Court Kalwa Devadattam and others vs The Union of India and oth ers(1) that where evidence has been led by the contesting parties on the question in issue, abstract considerations of onus and out of place, and the truth or otherwise of the case must.
always be adjudged on the evidence led by the parties.
This will be so if the court finds that there is no difficulty in arriving at a definite, conclusion.
It is therefore necessary to weigh the evidence in this case and to decide whether, even if it were assumed that there was no conclusive evidence to establish or rebut the "benami" allegation, what would, on a careful assessment of the evi dence, be a reasonable probability and a legal inference from relevant and admissible evidence.
The sale in question was admittedly made in December 1946.
Defendant No. 2 had admitted in his statement date May 29, 1957 that he was born in 1928.
He was therefore 18 years old at that time.
His father (defendant No. 3) was also alive at that time, and it is not his case that he (defendant No. 2) had any money ' of his own, for he has stated that he got Rs. 10,000/ from his mother and Rs. 50,000/ from his grandfather to constitute the sum of Rs. 60,000/ for which he purchased the house.
It is however a significant fact that the defendant No. 2 did not disclose any such source of the money in his written state ment dated April 15, 1955.
It took ,him two years to come out with such a case.
He was given an opportunity, during the course of his cross examination, to explain the omission regarding the disclosure of the source of the sum of Rs. 50,000/ in his written statement, but he contented himself by saying that he could not give "any reason as to why he (I) omitted to mention in the written statement about receipt of Rs. 50,000/ from ' his (my) grandfather".
Similarly he failed to explain why he did not mention in his written statement that the cheque for Rs. 10,000/ was drawn by his mother.
It is true that there is a mention in document exhibit D1 that out of the sum of Rs. 60,000/ "a sum of Rs. 10,000/ has already been paid to the vendor by the vendee by cheque No. 32920 dated November 14, 1946, on the New Bank of India Ltd., New Delhi," but it is again signifi cant that while the document states that the payment of Rs. 10,000/ was made by (1) ; 974 the vendee (defendant No. 2) 'by the aforesaid cheque, he has stated in the trial court that the cheque for Rs. 10,000/ was issued by his mother, in favour of the vendor.
He was not able to explain the discrepancy: and merely stated that his written statement (which did not disclose the source and the name of the person who drew the cheque for Rs. 10,000/ ) was correct.
If it had been a fact that defendant No. 2 really obtained a cheque for Rs. 10,000/ from his mother, in the vendor 's name, and, if it was not really a cheque drawn by his father, there was nothing to prevent him from establishing that f. act with reference to the counter foil of his mother 's cheque book or her account with the bank.
The defendant has also not stated whether he repaid the money to his mother and, if so, when, or whether it was a gift to him and, if so, why, when she had another son also.
As it is, it cannot be said that defendant No. 2 has been able to establish that it was he who paid the sum of Rs. 10,000/ to the vendor.
According to the written statement of defendant No. 2, the balance of Rs. 50,000/ was paid before the Sub Regis trar.
He has stated that about 7 or 8 days before his death, his grandfather Sohna Mal (who died in October 1946) paid him Rs. 50,000/ ' after taking.
out the money which was "lying underneath his pillow.
" He could not however stand the test of cross examination, for he could not state where the money was kept by his grandfather and whether, he at all had a bank account.
The High Court did not care to examine the reliability of the defendant 's evidence regarding the source from which he received Rs. 60,000/ even though it was an important question and had been examined by the trial court with reference to all the other evidence on the record including the statement of Amar Nath Sharma D.W.3.
We find that there is no reason for us to disagree with the trial court 's view in the matter, based on the parol evi dence on the record.
In arriving at this conclusion, we have not relied on that part of the trial court 's judgment where it has made a reference to the admission of defendant No. 3, for we shall deal with them separately.
The reason able preponderance of probability therefore is that defendant No. 2 has failed to establish the source of the consideration of Rs. 60,000/ even though it was art impor tant fact within his special knowledge.
He could not therefore be said to be the real owner of the house.
It is also an important fact that defendant No. 2 has failed, to prove that he enjoyed the benefit of the sale.
He claimed that he had shown the rent of the house in his income tax returns, but he did not produce any rent note.
Even the tenant who was 9aid to be living in the house on the date of the sale, has not been examined.
While the trial court has examined this aspect of the controversy, the High Court has missed it altogether.
The High Court went by the view that statement exhibit P. 1 of defendant No. 3, the income tax return of defendant No. 3 showing the house as his property, his statement of account and the assessment order for the year 1948 49 showing the same, were not admissible 975 in evidence against defendant No. 2 and that there was no evidence either of the plaintiff or the defendants on which a finding as to the "benami" nature Of the transaction could be based.
That decision is obviously based on a misap preciation of the law relating to "benami" transactions for, as has been stated, it was necessary to find out whether it was defendant No. 3 who had enjoyed the benefit of the transaction.
Moreover, the finding of the High Court is against the evidence on the record, and must be set aside.
We have therefore no hesitation in holding that the purchase of the house was "benami" and that its ostensible owner defendant No. 2 was not the real owner but was a "benamidar.
" The ancillary question is as to who was the real owner of the house for whom defendant No. 2 was the "benamider"?.
We have not taken the admissions of defendant No. 3 into consideration so far, but they have a direct bearing on the question now before us.
lie recorded a state ment exhibit P. 1 dated August 12, 1950 before Puran Chand P.W. 1, Income tax Officer, which has been proved by the wit ness.
It has been stated there as follows, "I purchased 15 Keeling Road on 12.12.46 for Rs. 60,000/ in the name of my son (Major Krishan Lal).
This money was paid out of my bank accounts and I have shown the details and payments from my bank pass books.
" 0 Then there is document exhibit P. 6 which is a copy.
of the personal account of defendant No. 3.
It was filed in connection with the return of his income tax for 1947 48.
An attempt was made to argue that the document had not been proved or marked as an exhibit.
We have seen the original document and we have no doubt that the whole of it was tendered in evidence and was marked as exhibit P. 6.
The identity of the document has been established by the state ment of Puran Chand P.W. 1 that the scribbling on it was made by him.
The document has therefore been proved beyond doubt.
It shows that it was defendant No. 3 who spent Rs. 60,000/ on "property" in that assessment year.
Both exhib its P. 1 and P. 6 go to prove that the house was purchased by defendant No. 3 out of his own funds in the name of his son defendant No. 2 who, it will be recalled, was admittedly only 18 years old at that time and did not have any money of, his own.
Moreover defendant No. 3 showed the income accruing from the house as his own income in his return for the years 1947 48 and 1948 49.
Counsel for the respondents have urged for the exclusion of these admissions.
The main attack was that they were admissions of a co defendant and were not admissible against defendant No. 2.
As has been stated, we have not taken them into consideration as evi dence against that defendant.
There is however no force in the other argument that they are not admissible in evidence against defendant No. 3 as he was not confronted with them in the, trial court and they were not adverse to the inter est of their maker at the time when they were made.
It has 976 been held by this Court in Bharat Singh and another vs Bhagirath(1) that an admission is substantive evidence of the fact admitted, and that admissions duly proved are "admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions.
" In taking.this view this Court has noticed the decision in Ajodhya Prasad Bhargava vs Bhawani Shanker Bhargava and another(2) also.
The point has been considered and answered as follows in Wigmore on Evidence, Volume IV, 1048 (at page 3), "The theory of the Hearsay rule is that an extra judicial assertion is excluded unless there has been sufficient opportunity to test the grounds of assertion and the credit of the witness, by cross examination by the party against whom it is offered (post, 1362); e.g. if Jones had said out of court.
"The party opponent Smith borrowed this fifty dollars", Smith is entitled to an opportunity to cross examine Jones upon that assertion.
But if it is ,Smith himself who said out of court, I borrowed this fifty.
dollars, cer tainly Smith cannot complain of lack of opportunity to cross examine himself before his assertion is admitted against him.
Such a request would be absurd.
Hence the objection of the Hearsay rule falls away, because the very basis of the rule is lacking, viz, the need and prudence of affording an opportunity of crossexamination.
" Moreover, the defendant No.3 had full opportunity,. to appear and defend himself, but he did not do so and the case proceeded against him ex parte.
The plaintiff even tried to examine him as his own witness, but his appearance could not be secured in spite of the prayer for the issue of summonses and a warrant.
There is therefore force in the argument to the contrary.
So also, there is no force in the argument that the aforesaid admissions or statements of defendant No. 3 could not be read against him as they were not adverse to his interest when made.
There is no such requirement of the Evidence Act and the argument is untenable as it unreasona bly restricts the opportunity to prove the true state of affairs on the party 's own showing and to demolish his subsequent claim as self contradictory.
This point has also been dealt with in Wigmore on Evidence, 1048 (at page 4) in this way, "It follows that the subject of an admission is not limited to facts against the party opponent 's interest at the time of making it.
No doubt the weight of credit to be given to such statements is increased when the fact stated is against the person 's interest at the time; but that circumstance has no bearing upon their admissibility.
On principle, it is plain that the probative reason why a party opponent 's utterance is sought to be used against him is ordinarily the reason noted above, in par.
(1)b,.
viz. that it exhibits (1) ; (2) A.I.R. 1957 All. 1. 977 an inconsistency with his present claim, thus tending to throw doubt upon it, whether he was.
at the time .speaking, apparently in his own favour or against his own interest. ' The contrary view, has been characterised by Wigmore as "a fallacy.
in the fullest sense.
" Another argument which has been advanced against the admissibility of the aforesaid admissions of defendant No. 3 is that they could be evidence only in terms of section 33 of the Evidence Act.
That argument is also quite untenable because section 33 deals with statements of persons who cannot be called as witnesses, and does not restrict or override the provisions relating to admissions in the Evidence Act.
The High Court also committed a similar error of law in its impugned judgment.
The aforesaid admis sions of defendant No. 3 are therefore satisfactory evidence to prove.that he himself was the owner of the house and his son, defendant No. 2 was merely a "benamidar" for him.
It would thus appear that the finding of the trial court on issue No. 1 which dealt with the question whether the house was purchased by defendant No. 3 "benami" in the name of defendant No. 2, was correct and should be restored as the High Court 's finding to the contrary has been viti ated by the substantial errors of law mentioned above.
The other important question is whether the sale of the house in favour of the Company (defendant No. 1 ) was a sham transaction and was effected to defeat and delay the creditors of defendant No. 3.
This was the subject matter of issue No. 2 and the trial court 's finding in affirmative has not even been examined by the High Court.
We find that the admitted facts of the case are by themselves sufficient to show that the finding of the trial court is justified and does not call for any interference.
Defendant No. 3 was assessed to income tax for a sum of Rs. 1,25,090/11/ for assessment year 1947 48 in March 1952.
Defendant No. 3 failed to pay that amount on demand and a recovery certificate was issued on October 8, 1952.
The house was therefore attached on October 13, 1952.
Defendant No. 2 raised an objection, and prayed for the release of the house.
The Collector rejected the objection on March 3,.
No appeal, or other remedy was sought against .that order.
The Appellate Assistant Commissioner however allowed the appeal of defendant No. 3 against the assessment of income tax and ordered a fresh attachment by his order dated May 12, 1953.
In the meantime, the Company was incorporated in February, 1953.
The assessment of incometax for the years 1944 45 and 1948 49 was completed in March 1953 raising the tax demand to Rs. 1,94,735.15, and a recovery certificate was issued on May 4, 1953.
It was in these circumstances that defendant No. 2, who had failed to obtain an order for the release of the house as aforesaid, has tened to sell it to the Company 22 on May 25, 1953.
As has been stated, a fresh recovery certificate was issued to the Collector on May 4, 1953 and the house was again attached on August 6, 1953.
These facts speak for themselves and are quite sufficient to justify the trial court 's finding that sale of the house to the Company was a sham transaction and arose out of the anxiety to save the house some how from sale for realisation of the income tax.
The Company was in fact dominated by defendant No. 2 and his close relations and did not even pay the sale price in cash.
It is also significant that the shares of the other 'relations were insignificant.
Moreover the.
Company could not lead evidence to show that it was able to transact any substantial business whatsoever.
We have therefore no reason to disagree with the trial court 's finding that the Company was formed just to transfer the house to it in an effort to save it from attachment and sale for realisation of the income tax arrears of defendant No. 3.
The finding of the trial court on the issue is quite correct and the High Court committed a serious error of law in not examining this aspect of the matter at all even though it had a great bearing on the controversy.
In the result, we are constrained to allow the appeals.
The impugned judgment and decree of the High Court dated February 14.
1967 are set aside and the decree of the trial court is restored with costs throughout one hearing fee.
V.P.S. Appeals allowed.
| IN-Abs | The appellant (plaintiff) filed a suit on behalf of and for the benefit of itself and of other creditors against the respondents (3 defendants) and prayed for a declaration that,, (1) the sale deed of the house in dispute by the 2nd defendant in favour of the 1st defendant was void as against the plaintiff and all other creditors of the 3rd defendant; and (2) that the house was and continued to be owned by the 3rd defendant.
The house was sold in the name of the 2nd defendant for Rs. 69,000.
He is the son of the 3rd defend ant who was alleged to be the real purchaser.
As the 3rd defendant failed to pay the arrears of income tax due from him the house was attached as his property.
The 2nd defendant raised an objection but the objection was reject ed.
The 3rd defendant filed an appeal against the assess ment of income tax and while the appeal was pending before the Appellate Assistant Commissioner, the 2nd and 3rd de fendants, and five other persons formed a limited company, namely, the 1st defendant.
The Appellate Assistant Commis sioner allowed the 3rd defendant 's appeal and ordered a fresh assessment of his income, and the Income Tax Officer made a fresh assessment.
Soon after the 2nd defendant purported to convey the house of the 1st defendant for Rs. 1,00,000 of which Rs. 90,000/ were payable to the 2nd de fendant in the shape of shares in the company.
The house was again attached for recovery of the tax due from the 3rd defendant.
The 1st defendant objected to that attachment.
The objection was allowed and the parties were referred to the Civil Court for.
redress and the suit was filed.
The trial court decreed the suit, but the High Court, in appeal, set aside the judgment.
Allowing the appeal to this Court, HELD: The evidence disclosed that the 3rd defendant 'was the owner of the house, and his son, the 2nd defendant, was merely a benamidar for him; and that the 1st defendant Company was formed just to transfer the house to it in an effort to save it from attachment and sale for realisation of the income tax arrears of the 3rd defendant.
[978 A C] (a) In a case where it is asserted that an assignment in the name of one person is in reality for the benefit of another, it is necessary to find out the source whence the consideration came, and to examine who actually was enjoying the benefits of the transfer.
[907 F G] Gangadara Ayyar and others vs Subramania Sastrigal and others (A,I.R. referred to Meenakshi Mills, Madurai vs The Commissioner of In come tax, Madras [(1956) S.C.R. 691] followed.
(b) Although the.
onus of establishing.
g that a transaction is benami is on the plaintiff, where it is not possible to obtain evidence which conclusively establishes or rebuts the allegation.
, .the case must be dealt with on reasonable probabilities and legal inferences arising from proved.
or admitted facts.
While the burden initially rests on the party who would fail if no evidence is led at all, after the evidence is recorded, it rests upon the party against whom judgment would be given if no further evidence were adduced by either side.
Thus, the burden of proof is not static, and may shift during the course of the trial Where the 968 entire evidence has been led by the contesting parties on the question in issue, abstract considerations of onus are out of place, and the truth or otherwise of the case must always be.
adjudged on the evidence: led by the parties.
It is therefore necessary to weigh the evidence in this case and to decide whether.
even if it were assumed that there was nO conclusive evidence to establish or rebut the benami allegation, what would, on a careful assessment of the evidence, be a reasonable.
probability and a legal inference from relevant and admissible evidence.
[973 A D] Kalwa Devadattam and two Others vs The Union of India and others ; followed.
In the present case, the 2nd defendant, at the time of the sale, was just 18 years old, and did not have any money of his own.
His father the.
3rd defendant was alive.
The High Court did not examine the reliability of the 2nd defendant 's evidence regarding the source.
from which he received the sum of Rs. 60,000/ even though it was an important question and had been examined by the trial court with reference to the entire evidence on record.
The rea sonable preponderance of probability on the evidence is, that the 2nd defendant had failed to establish the source of the consideration of Rs. 60,000/ even though it was an important fact within his special knowledge.
[973 E H] (d) The 2nd defendant had also failed to prove that he enjoyed the benefit of the sale.
[974 G] In order to find out whether the 3rd defendant was enjoying the benefit of the transaction, the finding of the High Court was clearly against the evidence on record.
The admissions contained in the records before the Income Tax Officer proved that the house was purchased by the 3rd defendant out of his own funds in the name, of his son, the 2nd defendant, and that the 3rd defendant was enjoying the income accruing from.
it as his own income.
[975 E F] (f)(i) The admissions by the 3rd defendant were substan tive evidence of the facts admitted and such admissions, duly proved, were admissible evidence irrespective of wheth er the party making them appeared in the witness box or not, and whether that party when appearing as a witness was confronted with those statements in case a statement con trary to those admissions was made.
They were taken into consideration against the 3rd defendant and not against the 2nd defendant.
[975 H, 976 A B] Bharat Singh and another vs Bhagirath ; , followed.
(ii) There is no requirement of the Evidence Act that unless the admissions were adverse to his interests when made, they could not be read against the person making them.
[976 F] (iii) The contention that the evidence of the admissions is admissible only in terms of section 33 of the Evidence Act was untenable because that section deals with statements of persons who cannot be called as witnesses and does not restrict or override the provisions relating to admissions in the Evidence Act.
[977 A C] (g) The 2nd defendant, who had failed to obtain an order for the release of the house from attachment when it was first attached, hastened to sell the house when the assess ment proceedings were pending before the Income tax De partment.
The 1st defendant Company was in fact dominated by the 3rd defendant and his close relations, it did not even pay the sale price.
in cash, and there was no evidence ' to show that it was able to transact any substantial busi ness.
Therefore, the sale of the house in favour of the 1st defendant was a sham transaction and was effected only to defeat and delay the creditors of the 3rd defendant.
[978 A B]
|
Civil Appeal No. 984 of 1975.
Appeal by Special Leave from the judgment and Order dated the 10th February 1975 of the Andhra Pradesh High Court in W.A. No. 752 of 1974.
P. Ramachandra Reddy, Advocate General, A.P., P. P. Rao and V. Seetharaman, for the appellant.
R. C. Raghavan, G. Vedanta Rao and B. Kanta Rao, for the respondent.
The Judgment of the Court was delivered by BHAGWATI, J.
The short question that arises for determination, in this appeal is whether a person whose parents belonged to a Scheduled Caste before their conversion to Christianity can on conversion or reconversion to Hinduism, be regarded as a member of the Scheduled Caste so as to be eligible for the benefit of reservation of seats for Scheduled Castes in the matter of a admission to a medical college.
The parents of the respondent originally professed Hindu religion and belonged to Madiga caste which is admittedly a caste deemed to be a Scheduled Caste in the State of Andhra Pradesh as specified in Part I of the Schedule to the Constitution (Scheduled Castes) Order, 1950.
They were both converted to Christianity at some point of time 1048 which does not appear clearly from the record, but it was the case of the respondent in his Writ Petition that he was born after their conversion.
This was also the assumption on which the arguments proceeded before the High Court and before us, too.
The counsel or the respondent expressed his readiness to argue the case on the same assumption, namely, that the respondent was born after the conversion of his parents, or, in other words, he was born of Christian parents.
It appears that in the State of Andhra Pradesh, for the purpose inter alia of admission to medical college, converts to Christianity are treated as belonging to backward class and, therefore, when the respondent applied for admission to Gandhi Medical College in 1973, he described himself as a member of a backward class.
But he did not succeed in getting admission.
Thereupon he got himself converted to Hinduism on 20th September, 1973 from Andhra Pradesh Arunchatiya Sangham stating that he had renounced Christianity and embraced Hinduism after going through Suddhi ceremony and he was thereafter "received back into Madiga caste of Hindu fold".
On the strength of this certificate, claiming to be a` member of Madiga caste, the respondent applied for admission to Guntur Medical College and on the basis that he was a member of a Scheduled Caste, he was provisionally selected for admission.
But subsequently he was informed by the Principal of the Medical College that his selection was cancelled as he was not a Hindu by birth.
The Principal apparently relied on Note (b) to clause (C) of rule 2 of the Rules issued by the Government of Andhra Pradesh under GO Rt.
No. 1315 dated 4th December, 1973 for admission to the M.B.B.S. Course in Government Medical Colleges for the Academic year 1973 74.
This Note was in the following terms: "No candidate other than Hindu including a Sikh can claim to belong to Schedule Castes.
No candidates can claim to belong to the Scheduled Caste except by birth.
" The respondent thereupon preferred a writ petition in the High Court of Andhra Pradesh challenging the validity of cancellation of his admission on the ground that Note (b), which required that a candidate, in order to be eligible or a seat reserved for Scheduled Caste, should belong to a Scheduled Caste by birth, went beyond the scope of the Constitution (Scheduled Castes) order, 1950 and was, therefore, void and the Principal was not entitled to cancel his admission on the ground that he was not a Hindu or a member of a Scheduled Caste by birth.
This ground of challenge was accepted by a Single Judge of the High Court and on appeal, a Division Bench of the High Court also took the same view.
In fact, it was conceded before the Division Bench by the learned Government Pleader appearing on behalf of the State that Note (b) was repugnant to the provisions of cl.
(3) of the Constitution (Scheduled Castes) order, 1950, since the only requirement of that clause was that in order to be a member of a Scheduled Caste, person should be professing Hindu or Sikh religion and it did not prescribe that he should be a Hindu by birth.
The State did not succeed in obtaining leave to appeal from the High Court and hence it preferred a special leave petition to this Court.
When the special leave petition came up for hearing, there was no decision of 1049 this Court dealing with the question as to whether a convert or reconvert to Hinduism can become a member of a Scheduled Caste and of so, in what circumstances and hence we granted special leave to the State, on the State agreeing that whatever be the result of the appeal, the admission of the respondent will not be disturbed and that the State will, in any event, pay the costs of the respondent.
It may be pointed out that since then a decision on this question has been rendered by a Bench of three judges of this Court to which we shall refer later.
It is clear on a plain reading of clause (4) of article 15 that the State has power to make special provision for scheduled Castes and in exercise of this power, the State can reserve seats in a medical college for members of Scheduled Castes without violating article 1 S or cl.
(2) of article 29.
The expression 'Scheduled Castes ' has a technical meaning given to it by cl.
(24) of article 366 and it means "such castes, races or tribes or parts or groups within such castes, races or tribes as are deemed under article 341 to be Scheduled Castes for the purposes of this Constitution.
" The President in exercise of the power conferred upon him under article 341 has issued the Constitution (Scheduled Castes) order, 1950.
paragraphs (2) and (3) of this; order are material and they read as follows: "2.
Subject to the provisions of this order, the castes, races or tribes or parts of or groups within caste or tribes specified in Part I to XIII of the Schedule to this order shall, in relation to the States to which these parts respectively relate, be deemed to be scheduled castes so far as regards members thereof resident in the localities specified in relation to them in those Parts of that Schedule.
Notwithstanding anything contained in Paragraph 2, No. person who professes a religion different from the Hindu or the Sikh religion shall be deemed to be a member of a Scheduled Caste.
" F The Schedule to this Order in part I sets out the castes, races or tribes or parts of or groups within castes or tribes which shall in the different areas of the State of Andhra Pradesh be deemed to be Scheduled Castes.
One of the castes specified there is Madiga caste and that caste must, therefore, be deemed to be a Scheduled Caste.
But by reason of c].
(3), a person belonging to Madiga caste would not be deemed to be a member of a Scheduled Caste unless he professes Hindu or Sikh religion at the relevant time.
It is not necessary that he should have been born a Hindu or a Sikh.
The only thing required is that he should at the material time be professing Hindu or Sikh religion.
Now, Note (b) was interpreted by the Principal of the Medical College to require that a candidate, in order to be eligible for a seat reserved for Scheduled Castes, should be a Hindu by birth.
This interpretation was plainly erroneous because what Note (b) required was not that a candidate should be a Hindu by birth but that 1050 he should belong to a Scheduled Caste by birth.
But even this requirement that a candidate in order to be eligible for a reserved seat should be a member of a Scheduled Caste by birth went beyond the provision in cl.
(3) of the Constitution (Scheduled Castes order.
1950 and was rightly condemned as void and no reliance was placed upon it on behalf of the State.
The principal argument advanced on behalf of the State was that when the respondent was converted to Hinduism, he did not automatically become a member of the Madiga caste, out it was open to the members of the Madiga caste to accept him within their fold and it was only if he was so accepted, that he could claim to have become a member of the Madiga caste.
There was no evidence in the present case, contended the State, showing that the respondent, on his conversion to Hinduism, was accepted as a member of the Madiga caste by the other members of that caste and, therefore, he was not at the time of his application for admission a member of a Scheduled caste Now, before we proceed to consider this contention, it is necessary to point out that there is no absolute rule applicable in all cases that whenever a member of a caste is converted from Hinduism to Christianity, he loses his membership of the caste.
This question has been considered by this Court in C. M. Arumugam vs section Rajgopal and it has been pointed out there that ordinarily it is true that on conversion to Christianity, a person would cease to be a member of the caste to which he belongs, but that is not an invariable rule.
It would depend on the structure of the caste and its rules and regulations.
There are some castes, particularly in South India, where this consequence does not follow on conversion, since such castes comprise both Hindus and Christians.
Whether Madiga is a caste which falls within this category is a debatable question.
The contention of the respondent in his writ petition was that mere are both Hindus and Christians in Madiga caste and even after conversion to Christianity, his parents continued to belong to Madiga caste and he was, therefore, a member of Madiga caste right from the time of his birth.
It is not necessary for the purpose of the present appeal to decide this question.
We may assume that, on conversion to Christianity, the parents of the respondent lost their membership of Madiga caste and that the respondent was, therefore, not a Madiga by birth.
The question is: could the respondent become a member of Madiga caste on conversion to Hindusim ? That is a question on which considerable light is thrown by the decision of this Court in C. M. Arumugam vs section Rajgopal (supra).
The main question which arose for decision in C. M. Arumugamr vs section RaJgopal (supra) was whether section Raigopal, who belonged to Adi Dravida caste before his conversion to Christianity, could, on reconversion to Hinduism once again become a member of the Adi Dravida caste.
This Court, after examining the question on principle and referring to the decided cases, pointed out that the consistent view taken in this country since 1886 was that on reconversion to 1051 Hinduism, a person can once again become a member of the caste in which he was born and to which he belonged before conversion to another religion, if the members of the caste accept him as a member.
This Court observed that there was no reason, either on principle or on authority, which should compel it to disregard this view which has prevailed for almost a century and lay down a different rule on the subject and concluded that on reconversion to Hinduism, section Rajgopal could once again revert to his Adi Dravida caste, for he was accepted by the other members of the caste.
The reasoning on which this decision proceeded is equally applicable in a case where the parents of a person are converted from Hinduism to Christianity and he is born after their conversion and on his subsequently embracing Hinduism, the members of the caste to which the parents belonged prior to their conversion accept him as a member within the fold.
It is for the members of the caste to decide whether or not to admit a person within the caste.
Since the caste is a social combination of persons governed by its rules and regulations, it may, if its rules and regulations so provide, admit a new member just as it may expel an existing member.
The only requirement for admission of a person as a member of the caste is the acceptance of the person by the other members of the caste, for, as pointed out by Krishnaswami Ayyangar, J., in Durgaprasada Rao vs Sudarsanaswami,"in matters affecting the well being or composition of a caste, the caste itself is the supreme judge".
(emphasis supplied).
It will, therefore, be seen that on conversion to Hinduism, a person born of Christian converts would not become a member of the caste to which his parents belonged prior to their conversion to Christianity, automatically or as a matter of course, but he would become such member, if the other members of the caste accept him as a member and admit him within the fold.
This view would have ordinarily required us to find whether, on the material on record, it could be said to have been established by the respondent that, on conversion to Hinduism, he was accepted as a member of Madiga caste by the other members of that caste, for it is only if he was so accepted that he could claim to be a member of a Scheduled Caste.
But it is not necessary for us to undertake this inquiry because, as already pointed out, it has been agreed by the State that, whatever be the result of this appeal, the admission of the respondent will not be disturbed.
We accordingly dismiss the appeal with costs in favour of the respondent.
P.H.P. Appeal dismissed.
| IN-Abs | The parents of the respondent originally professed Hindu religion and belonged to Madiga caste which is a scheduled caste, in the Andhra Pradesh as specified in the schedule to the Constitution (Scheduled Castes) order, 1950.
Respondent 's parents were converted to Christianity and thereafter the respondent was born.
The respondent got himself converted to Hinduism renouncing Christianity.
Thereafter, he applied for admission to Guntur Medical College on the basis that he was a member of a Scheduled Caste.
He was provisionally selected for admission but subsequently was informed by the principal the College that his selection was cancelled as he was not a Hindu by birth.
The Principal relied on Note (b) to Clause of rule 2 of the Rules issued by the Government of Andhra Pradesh for admission to the M.B.B.S. course in Government Medical College.
The said note provides that no candidate other than Hindu can claim to belong to Scheduled Caste.
It further provides that no candidate can belong to Scheduled Caste except by birth.
The respondent filed a Writ Petition in the High Court challenging the validity of Note (b) as going beyond the scope of the Constitution (Scheduled Castes) order, 1950.
The respondent succeeded before the learned single Judge as well as the Division Bench of the High Court.
In fact, it was conceded by the appellant before the High Court that note (b) was repugnant to the said order.
Dismissing the appeal by Special Leave, ^ HELD: 1.
It is clear on a plain reading of clause 4 of Article 15 that the State has power to make special provision for scheduled castes and in exercise of its power the State can reserve seats in a Medical College for members of Scheduled Castes without violating Article 15 or Article 29(2).
Article 366(24) defines Scheduled Castes to mean such castes, races or tribes as are deemed under Article 341 to be scheduled castes.
The President in exercise of the powers conferred upon him under Article 341 has issued Constitution (Scheduled Castes) order 1950.
Madiga caste is included in the schedule to the said order.
The said order itself, however, provides that no person who.
professes a religion other than Hindu or Sikh shall be deemed to be a member of a scheduled caste.
It, however, does not require that the should have been born a Hindu or a Sikh.
The only thing required is that at the material time he should profess Hindu or Sikh religion.
The requirement of the note that a candidate in order to be eligible for a reserved seat should be a member of a Scheduled Caste by birth went beyond the said order and was rightly condemned as void.
[1049B H, 1050A] 2.
There is no absolute rule applicable in all cases that whenever a member of a caste is converted from Hinduism to Christianity he loses his membership of the caste.
It would depend upon r the structure of the caste and its rules and regulations.
There are some castes, 1047 particularly ill South India, where this consequence does not follow on conversion since such castes comprise both Hindus and Christians.
Whether Madiga caste falls in this category is a debatable question.
For the purposes of the present appeal it is not necessary to decide the contention of the respondent that there are both Hindus and Christians in Madiga caste and even after conversion to Christianity his parents continued to belong to Madiga caste.
[1050 C F] 3.
A similar question about the effect of re conversion was decided by this Court in the case of C. R. Arumugam vs section Rajagopal.
In that case this Court laid down that there is no reason to hold that a person on reconversion to Hinduism cannot once again become a member of the caste in which he was born and to which he belonged before conversion to another religion.
The reasoning on which this decision proceeded is equally applicable will a cause where the parents of a person are converted from Hinduism to Christianity and he is born after their conversion and on his subsequent embraching Hinduism, the members of the caste to which the parents belong prior to their conversion accept him as a member within the fold.
It is for the members of the caste to decide whether or not to admit a person within the caste.
Since the caste is a social combination of persons governed by its rules and regulations, it may, if its rules and regulations so provide, admit a new member just as it may expel an existing member.
The only requirement for admission of a person as a member of the caste is the acceptance of the reason by the other members of the caste.
On conversion to Hinduism a person would not become a member of the caste to which his parents belonged prior to their conversion, automatically or as a matter of course but he would become such member if the other members of the caste accept him as a members and admit him within the fold.
[1050G, 1051B E] There is nothing on record to show whether the respondent was accepted by Madiga caste.
However, it is not necessary to undertake this enquiry because it has been agreed by the appellants that whatever be the result of the appeal, the admission of the respondent would not be disturbed.
[1051 FG]
|
ivil Appeal Nos.
313 315 1974.
From the Judgment and Order dated 8 8 1972 of the Jammu and Kashmir High Court in Civil First Appeals Nos. 46 to 48 of 1972.
Naunit Lal, for the Appellant.
V.C. Mahajan and R.N. Sachthey, for the Respondent.
The Judgment of the Court was delivered by BEG, J.
These are three appeals by certification against the judgment of a Division Bench of the High Court of Jammu & Kashmir, allowing appeals from the judgment of a learned single Judge.
938 Jammu and Kashmir Government had filed three applications under section 20 of .the
Jammu & Kashmir Arbitration Act, 2002, to refer disputes arising out of three agreements between it and the appellant Company to arbitration under the arbitration clauses of agreements between the parties.
The applications had been dismissed by the learned single Judge on the ground that the arbitration clause was, in each case, a part of an agreement which was not duly executed in accordance with the provisions of Section 122(1) of the Constitution of Jammu & Kashmir which correspond to those of Article 199(1) of the Constitution of India.
The Division Bench had allowed the appeals of the Conservator of Forests, Jammu Circle, after holding that the provisions of section 122(1) of the Constitution of Jammu & Kashmir could not be said to have been infringed if contracts were signed by the Conservator of Forests in compliance with an order of the Government.
The main stay of the case of the appellant company was an instruction or rule contained in "The book of the Finan cial Powers" which reads as follows: " 'section 13.
The power to sanction or cancel the terms of instruments, leases, agreements is delegated in the follow ing cases: section Nature of power To whom delgated.
Extent No. 1 2 3 4 X X X X X X 9.
To sell forest produce Chief Conser Upto Rs. 7000/ and to enter into con vator of forest in value in tract for the same each case provided the highest tender conservators of upto Rs.3000/ in forests each case provided the highest tender is accepted.
Divisional upto Rs.1000/in each forest case provided the officer highest tender is accepted.
The Division Bench observed that this rule existed prior to the coming into force of the Constitution of Jammu and Kashmir.
It may also be pointed out that this rule deals with the power to "sanction or cancel" leases, agreements and other instruments which was delegated to the officers mentioned there with limitation on their powers specified there.
But, the Constitutional provision, relied upon on behalf of the appellant, relates to the manner of the execu tion of the formal 939 document containing the contract after its sanction.
It is true that the contract could not be executed without the sanction.
Nevertheless, if the sanction could be either expressly or impliedly given by or on behalf of the Govern ment, as we think it could, and, if some acts of the Govern ment could fasten some obligations upon the Government, the lessee could also be estopped from questioning the terms of the grant of the sanction even where there is no written contract executed to bind the lessee.
In the case before us, we have agreements from which the appellant company has derived benefits.
And, there are contracts validly executed on behalf of the Government of Jammu & Kashmir by the Conservator of Forests.
It is true that, if the appellant could take up the legal plea that the contracts were not duly executed, in accordance with section 122(1) of the Constitution of Jammu & Kashmir, it could urge that they did not have any effect at all as contracts whatever other legal consequences its acts or conduct may have had.
But, this does not mean that, if a party obtains benefits on the understanding that it would abide by certain conditions, as the appellant company had done, it could not be compelled to observe those conditions, such as the condi tion to refer disputes to arbitration.
However, in the instant case, we need not go into that question because the plea of a violation of Section 122(1) of the Jammu & Kashmir Constitution is itself not sustainable for the reasons indicated below.
As the Division Bench of the High Court had pointed out, there was a Government order and notification of 23rd February, 1957 which reads as follows: In exercise of the powers conferred by sub section (1) of Section 122 of the Consti tution, the Sadar i Riyasat is pleased to direct that the under mentioned contracts and assurances of property made in the exercise of the executive powers of the State may be executed on his behalf by various Officers subject to any limit fixed by Government rules and orders as follows: VI.
In the Department of Development: (1) Agreements relating to Forest Leases and appropriation of forest products: By the secretary to Government, Chief Conser vator, Conservators of Forests and Divisional Forest Officers".
The three leases, containing the arbitration clauses which the appellant wants to avoid, were executed on 27th Febru ary, 1963, and 28th February, 1963, and 19th March, 1963, after the notification mentioned above.
The leases were duly signed by Conservators of Forests, who were expressly authorised, without any limits imposed on the valuation of the leases, to sign and execute them on behalf of the Gov ernment.
The delegation of power made prior to the Jammu 10 1338SCI/76 940 and Kashmir Constitution related to grants of sanction and their cancellation.
It did not expressly refer to powers to execute leases which is a separate matter.
The notification of 1957, however, is specifically related to the execution of formal documents including leases.
Hence, it will cover the three leases before us even if the former rules relating to the limits of the authority of Forest Officers to give or cancel certain sanctions could be said to be in existence at all after the enactment of the new Constitution of Jammu & Kashmir and the notification of 23rd February, 1957, cited above.
We may mention that, as has been indicated in the separate judgment of the learned Chief Justice of the High Court, the Jammu & Kashmir Government had tried to remove the doubts it entertained about the validity of past leases executed by the Conservator of Forests.
It, therefore, passed two orders: one of 14th April, 1965, and the other of 29th April, 1971.
The order of 14th April, 1965, ran as follows: "In supersession of previous orders regarding signing of lease agreement it is ordered that the Conservator of Forests will sign agreements relating to all cases of For ests leases and appropriation of forest products and Chief Conservator of Forests will act as the arbitrator as provided under C1.
44 of the Agreement.
By order of the Government of Jammu & Kashmir.
Sd/ Bharat Bhushan Secre tary to Govt.
Forests Department".
The order of 29th April, 1971, runs as fol lows: "Government Order No. FST 31 dated 14 4 65 shall bedeemed to have taken effect from 29 1 63 and all actions taken by the Conser vators of Forests in executing the lease agreements by virtue of the said order are hereby regularised.
By order of the Government of Jammu & Kashmir.
Sd/ R.C. Bhargava, Secretary to Government, Agricultural Department".
The learned Chief Justice had observed that these orders, purporting to ratify the leases which were valid, did not have any legal effect whatsoever and were unneces sary.
If there had been any question to be decided as to whether the Government had sanctioned the leases, its ac tions, apart from the execution of leases, could be consid ered.
But, once there has been a valid execution of leases by duly authorised officers, the documents would be the best evidence of sanction also.
That was one of the objects of.
prescribing a formal mode of execution of instruments on behalf of the Government apart from the need to protect its interests against mala fide and other unauthorised acts of its servants or agents as indicated by this Court in Mulam Chand vs State of Madhya Pradesh(1) 1) [1968] 3S.C.R. 214.
941 In the cases before us the only question which needed decision was whether formal execution of the leases by duly authorised officers had been proved.
We are of opinion that the Conservator of Forests was, for the reasons given by us, duly authorised to execute the leases.
Accordingly, we affirm the orders of the Division Bench so that matters in dispute between the parties could be validly referred to Arbitration under the appropriate clauses of the agreements.
These appeals are, therefore, dismissed with costs.
Civil Miscellaneous Petition No. 8573 of 1975 for interim orders is also dismissed as infructuous.
S.R. Appeals dismissed.
| IN-Abs | All the three applications filed by the respondent state for a reference to an arbitrator under section 20 of the Jammu & Kashmir Arbitration Act, 2002 were dismissed by a single judge of the Jammu & Kashmir High Court on the ground that the arbitration clause was, in each case, a part of an agreement which was not duly exercised in accordance with the provisions of action 122(1) of the J&K constitution which correspond to those of article 299(1) of the Constitution of India.
But the Division Bench allowed the appeals hold ing that if contracts were signed by the Conservator of Forests in compliance with an order of the Government, the provisions of Section 122(1) of J&K constitution could not be said to have been infringed.
" Dismissing the appeals of the appellant company by certifi cates the Court.
HELD : It is true that the contract could not be execut ed without the sanction.
Nevertheless, if the sanction could be either expressly or impliedly given by or on behalf of the Government, as it.could, and, if some acts of the Government could fasten some obligations upon the Govern ment, the lessee could also be estopped from questioning the terms of the grant of the sanction even where there is no written contract executed to bind the lessee.
[938 G H, 939 A] But, once there had been a valid execution of lessee by duly authorised officers, the documents would be the best evidence of sanction also.
That was one of the objects of prescribing a formal mode of execution of instruments on behalf of the Government apart from the need to protect its interest against mala fide and other unauthorised acts of its servants or agents.
[940 G H] Mulamchand vs State of Madhya Pradesh, ; , applied.
In this case the contracts were executed by duly autho rised officials under Government 's orders.
|
Appeal No. 1762 of 68.
(Appeal from the Judgment and Decree dated 18 5 1967 of the Calcutta High Court in Appeal from Original Decree No. 183/56).
980 G.L. Sanghi and Girish Chandra, for the Appellant.
Purushottam Chatterjee and Sukumar Ghose, for the respond ent.
The Judgment of the Court was delivered by RAY, C.J.
This appeal by certificate is from the judgment dated April 11, 1968 of the High Court at Calcutta.
The respondent filed this suit against the appellant in the High Court at Calcutta and claimed Rs. 76,691 2 0 with interest or in the alternative Rs. 78,204 8 4.
The respond ent 's case in short is that the respondent delivered to the defendant appellant pursuant to several orders from time to time goods described as Mac Intyre Sleeves and other goods.
The respondent alleged in the plaint that the appellant "wrongfully purported to reject the Mac Intyre Sleeves" supplied by the respondent.
The respondent further alleged that the rejection was unlawful inasmuch as the rejection was after lapse of reasonable time.
The respondent claimed the sum mentioned in the plaint as reasonable price of the goods.
The alternative case of the respondent is that the plaintiff respondent was entitled to the sum for supply of Mac Intyre Sleeves because the same were not supplied gratu itously.
The appellant denied in the written statement that there was any enforceable contract, and, therefore, the respondent was not entitled to sue for price of the goods delivered.
The appellant took the plea bar of the suit that there was no contract in compliance with section 175 of the Gov ernment of India Act, 1935.
The appellant pleaded to.
the alternative case of the respondent by alleging that the goods were lawfully rejected because the goods were found not to be of the correct description and quality.
The appellant further denied that the rejected goods were re tained after lapse of reasonable time without intimating the rejection.
At the trial the respondent found that the claim for the sum of money as price of goods could not be sustained be cause of lack of enforceability of contract.
The respondent therefore sought to make the appellant liable to compensate the respondent by reason of provisions contained in section 70 of the Indian Contract Act.
Counsel for the appellant raised the plea at the trial that there.
was ' no foundation in the plaint for any case under section 70 of the Indian Contract Act.
The three ingredients to support the cause of action under section 70 of the Indian Contract Act are these: First, the goods are to be delivered lawfully or anything has to be done for another person lawfully.
Second, the thing done or the goods delivered is so done or delivered "not intending to do so gratuitously".
Third, the person to whom 'the goods are delivered "enjoys the benefit thereof".
It is only when the three ingredients are pleaded in the plaint that a cause.
of action is constituted under section 70 of the Indian Contract Act.
981 If any plaintiff pleads the three ingredients and proves the three features the defendant is then bound to make compensa tion in respect of or to restore the things so done or delivered.
The allegation in the plaint in the present case was as follows.
"In any event the plaintiff is entitled to the said sum of Rs. 26,248 7 0, and Rs. 50,442 11 0 with interest for the said Mac Intyre Sleeves, Copper Strips and Stay Shackles for the same were not supplied gratuitiously".
The plaint lacked the two other essential features to constitute a cause of action under section 70 of the Indian Contract Act.
These were that the respondent delivered the goods lawfully to the appellant and that the appellant enjoyed the benefits thereof.
The Court should not have allowed the respondent to go to trial in the present case with a Claim under section 70 of the Indian Contract Act in the absence of proper pleadings.
In view of the fact that parties went to trial and issues were raised on claims under section 70 of the Indian Con tract Act and the litigation went through the course of trial and appeal we do not desire to non suit the respondent at this stage.
The trial court held that the goods were not properly rejected.
But the trial court also held that the wordings of the rejection memos negatived any case of enjoyment of benefit.
The trial court said that the documents show that the goods were not utilised or used by the appellant and the appellant disclaimed interest in the goods.
The trial court also found that the respondent accepted the goods.
The findings are inconsistent.
The trial court held that the appellant offered to restore the goods to the respondent but the respondent refused to take them back.
The trial court dismissed the suit.
When the trial court found that the goods were accepted there could be no question of restora tion.
The trial court should have decreed the suit.
The Division Bench on appeal held that the goods were accepted by the appellant.
The Division Bench held that title to the goods passed and if title passed then the whole context of section 70 of the Indian Contract Act would be irrelevant.
The judgment of the Division Bench is con fused.
The Division Bench treated the case of the respond ent to be "a claim for damages for wrongful rejection".
Under the Sale of Goods Act when there is any enforceable contract the seller may claim for price of goods sold or damages for non acceptance.
The present case could not be supported on the footing of any enforceable contract giving rise to damages for non acceptance or wrongful rejection.
The reasoning of the Division 'Bench in allowing the claim is erroneous.
The evidence in the present case as found by the trial court is that the signatures of Rodericks and Francis on the challans indicate acceptance of the goods, and, ,therefore, the rejection is wrongful.
The finding of the trial court that there was acceptance of the goods obviously repels any plea of rejection of the goods.
The error of the trial court was that it found the goods were accepted and yet dismissed the suit on the rea soning that the appellant 982 offered to restore the goods.
The error of the Division Bench was in decreasing the suit not _on the principles of section 70 of the Indian Contract Act but 'on damages for non acceptance of goods on the footing of unenforceable contract for sale of goods.
In view of the fact that there was acceptance of the goods no question of restoration arises.
Counsel for respondent argued that restoration under section 70 of the Indian Contract Act meant that the defendant would have to restore the goods to the plaintiff by delivering the same to the plaintiff.
This contention of the plaintiff respondent is utterly unsound.
As long as there is intimation by the defendant to the plaintiff that the plaintiff can take back the goods the defendant evinces intention of restoration.
In the present case no question of restoration arises be cause of the acceptance of the goods.
The respondent in view of the trial court and the Divi sion Bench of the High Court allowing the respondent to go on with the claim under section 70 of the Indian Contract Act became entitled to compensation for the goods accepted.
The High Court found that the respondent had received a sum of Rs. 7,602 0 0 out of the claim of the claim under sec tion 70 of the Indian contract Act and the respondent has been given a decree for Rs. 69,069 1 0 we order that the parties will pay and bear their own costs in this appeal.
We specify the period of two months for payment of the aforesaid sums of money Rs. 76,671 1 0.
The High Court gave a decree for the sum of Rs. 69,069 1 0.
For the foregoing reasons there will be a decree for Rs. 69.0169 1 0.
The High Court awarded half costs of the trial and full costs of the appeal.
We do not wish to disturb those two orders for costs.
In view of the fact that there was no proper case pleaded to support Appeal dismissed.
| IN-Abs | In a suit for the recovery of price of "Mac Intyre Sleeves, "supplied to the appellant, but alleged to have been wrongfully ' rejected after a considerable time, the respondent/plaintiff sought to make the appellant/defendant liable to compensate by reasons of provisions containing in Section 70 of the Indian Con tract Act.
The trial Court found that the goods were accepted and it dismissed the suit on the reasoning that the appellant offered to restore the goods.
But .on appeal, the Division Bench decreed the suit, not on the principles of Section 70 of the Contract Act, but treating the case of the respondent to be a claim for dam ages for wrongful rejection and for non acceptance of goods on the footing of uninforceable contract for sale of goods".
Dismissing the appeal by certificate the.
Court, HELD: (1) The three.
ingredients to support the cause of action undersection 70 of the Indian Contract Act are: First, the goods are to be delivered lawfully or anything has to be done for another person lawfully.
Second, the thing done.
or the ' goods delivered is so, done or delivered "not intending to do so gratuiously".
Third, the person to whom the goods are delivered "enjoys the benefit thereof".
It is only when the three ingredients are.
pleaded in the plaint that a cause of action is constituted under section 70 of the India Contract Act.
If any plaintiff pleads three ingredients and proves the three features the defendant is then bound to make compensation in respect .of or to re store the things so done or delivered.
[980 G H, 981 A] (2) Courts should not allow the parties to go to trial in the absence of proper pleadings.
In the instant case, the Court should not have allowed the respondent to go to trial with a claim under section 70 of the Indian Contract Act.
[981 B C] (3) When parties went to trial and issues were raised on claims and the litigation also went through the. course of trial and appeal, non suiting for want of proper plead ings at the appellate stage, by the Supreme Court is not desirable.
[981 C] (4) Restoration under section 70 of the Indian Contract Act does not mean restoration of "goods by actual delivery".
Intimation to take back the goods rejected evinces intention of restoration.
[982 B C]
|
ivil Appeal No. 2111 of 1969.
(Appeal by Special Leave from the Judgment and Order dated 26 9 1968 of the Madhya Pradesh High COurt in Civil Revision No. 711/66).
V.S. Desai, P. C. Bhartari and D. N. Misra for the Appel lants.
B.N. Lokur and Rameshwar Nath for the Respondents.
1018 The Judgment of the Court was delivered by SHINGHAL, J.
This appeal by special leave is directed against the judgment of the Madhya Pradesh High Court dated September 26, 1968 setting aside the appellate order or the Second Additional District Judge, Indore, dated Octo ber 29, 1966 and remitting the matter to the Municipal Commissioner for a fresh determination of the annual value of the building.
The building in question is known as "Viram Lodge", on Ravindra Nath Tagore Marg, Indore.
It belongs to the respondent and has been used by them as a hotel.
The annual gross rental value of the building was determined at Rs. 6600/in 1956.
It was revised by the Assessment Officer on June 3, 1965 and was raised to Rs. 43,405.20.
The respondents filed objections to the valuation, but the Municipal Commissioner fixed the annual value at Rs. 43,405.20.
He held that, in view of the "non obstante" clause in section 138(b) of the Madhya Pradesh Municipal Corporation Act, 1956, hereinafter referred to as the Act, there was no justification for the .argument that the rental value of the premises could not be fixed at a rate higher than the standard rent under section 7 of the Madhya Pradesh Accommodation Control Act, 1961.
An appeal was taken to the Second Additional District Judge, but without suc cess.
The respondents then filed an application for revi sion, which was allowed by the impugned judgment of the High Court dated September 26, 1968.
This is how the present appeal has arisen at the instance of the Municipal Corporation and its officers.
Section 138 of the Act prescribes the mode for determin ing the annual value of any land or building for purposes of assessing it to property tax.
Clause (a) of the section deals with the annual value of land, and it is not the case of the parties that it has any bearing on the controversy.
Clause (b) prescribes the mode of determining the annual value of a building and reads as follows, "(b) the annual value of any building shall notwithstanding anything contained in any other law for the time being in force be deemed to be the gross annual rent at which such building, together with its appurtenances and any furniture that may be let for use or enjoyment therewith might reasonably at the time of assessment be expected to be let from year to year, less an allowance of ten per cent for the cost of repairs and for all other expenses necessary to maintain the building in a state to command such gross annual rent.
" There are two explanations to the clause.
It is nobody 's case that they have any bearing on the short point in con troversy before us.
Clause (c) of the section prescribes that if the gross annual rent of a building cannot be deter mined under clause (b), the annual value of the building shall be determined according to that clause.
If is 1019 not in controversy before us that the Viram Lodge was never let on rent, and is being run as a hotel by its owners, the present respondents, so that the .question of fixing its standard rent under section 7 of the Madhya Pradesh Accommodation Control Act, 1961, has not arisen.
It has argued that, even so, the reasonable rent contemplated by section 138(b) of the Act cannot exceed the standard rent to be fixed under the aforesaid section 7.
It has thus been 'urged that it was incumbent for the Municipal Commissioner to determine the annual value of the building on the same basis on which its standard rent was required to be fixed under section 7.
Reliance in this connection has been placed on the deci sions of this Court in The Car oration of Calcutta vs Smt.
Padma Debi and others,(1) Corporation of Calcutta vs Life Insurance Corporation of India(2) Guntur Municipal Council vs Guntur Town Rate Payers 'Assiciation(3) New Delhi Munici pal Committee vs M.N. Soi and another.(4) As has been stated, clause (b) of section 138 of the Act provides that the annual value of any.
building shall "notwithstanding anything contained in any other law for the time being in force" be deemed to be the gross annual rent for which the building might "reasonably at the time of the assessment be expected to be let from year to year.
" While therefore the requirement of the law is that the reasonable letting value should determine the annual value of the building, it has also been specifically provided that this would be so "notwithstanding anything contained in any other law for the time being in force".
It appears to us that it .would be a proper interpretation of the provisions of clause (b) of section 138 of the Act to hold that in a case where the standard rent of a building has been fixed under section 7 of the Madhya Pradesh Accommodation Control Act, and there is nothing to show that there has been fraud or collusion, that would be its reasonable letting value, hit, where this is not so, and the building has never been let out and is being used in a manner where the question of fixing its standard rent does not arise, it would be permis sible to fix its reasonable rent without regard to the provisions of the Madhya Pradesh Accommodation Control Act, 1961.
This view will, in our opinion, give proper effect to the non obstante clause in clause (b with due regard to its Other provision that the letting value should be "rea sonable".
We have gone through the decision in Padma Debi 's case (supra).
There the premises were on rent and section 127(a) of Calcutta Municipal Corporation Act, 1923, did not con tain a non obstante clause.
That the section provided, inter alia, was that the annual value shall be deemed to be the gross annual rent at which the land or building might at the time of assessment "reasonably be expected to let from year to year." This Court examined the significance of the word "reasonable" and held that it would be incongruous to . (1) ; (2) [1971] 1 .C.R. 248.
(3) ; (4) ; 15 1338SC1/76 1020 consider fixation of rent beyond the limits fixed by penal legislation as reasonable.
That view was taken with refer ence to the provisions of the Rent Control Act which pena lised the taking of a higher rent, and also ' made it irrecoverable.
While, therefore, we are in agreement with the view taken in Padma Debi 's case (supra) that it would not be reasonable to consider fixation of rent beyond the limits fixed by the Rent Control Act as reasonable, it would not be a proper interpretation of section 138(b) of 'the Act to ignore the significance of its non obstante clause altogether.
That is why we have taken the view that it would be a fair and reasonable interpretation of section 138(b) to hold that as no standard rent has been fixed so far in respect of the Viram Lodge, the Municipal Commis sioner was justified in adopting another suitable criterion for determining the annual value of the building.
There is in fact nothing in the Act to.
make it obligatory for the Commissioner to follow the provisions of the Madhya Pradesh Accommodation Control Act in spite of the non obstante clause and to limit the annual value to any standard rent that the building might fetch under that Act.
We have also gone through Corporation of Calcutta vs Life Insurance,Corporation of India (supra).
That was also a case where the premises had been let out on rent.
The standard rent had also been fixed, and that was why Padma Debi 's case (supra) was held to be applicable.
So also, Guntur Municipal Council vs Guntur Town Rate Payers ' Association (supra) was a case where the premises.were on rent and there also Padma Debi 's case was held to be applicable even though the standard rent had not been fixed, because it was held that there was nothing to prevent the authorities concerned from ascertaining the fair rent by keeping in view the principles which had been laid down for its determination under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960.
Section 82(2) of the Madras District Municipalities Act, which governed that case, did not contain a non obstante clause.
Much the same was the position in M.N. Soi 's case which related to a house in New Delhi, of which rate had to be assessed under the provisions of the Punjab Municipal Act, 1911.
The High Court did not properly appreciate the differ ence between the wordings of section 127 of the Calcutta Municipal Corporation Act, 1923, and section 138(c) of the Act, and committed an error in thinking that this was virtu ally similar to Padma Debi 's case.
We find that the High Court has taken the view that a full hearing was not given to the respondents at the time of fixing the annual value of the Viram Lodge and that the valuation was based on "no principle".
Here again, the High Court was clearly in error because we find from the judgment of the Second Additional District Judge, dated October 29, 1966, that the counsel for the respondents 1021 was given "ample opportunity" by the Municipal Commissioner to represent his case before him.
He has also stated that the Assessment Officer paid due regard to all the relevant circumstances which had a bearing on the determination of the reasonable letting value of the building.
Counsel for the respondents has in fact not found it worth his while to argue either that such a hearing was not given, or that all the relevant factors were not taken into consideration in determining the annual letting value of the premises.
In the result, the appeal is allowed and the impugned judgment of the High Court dated September 26, 1968, is Set aside.
The appellants will however pay the costs of the respondents as stipulated in the order of this Court grant ing the special leave.
P.H.P. Appeal al lowed.
| IN-Abs | The respondents are the owner of a building known as Viram Lodge.
They run a hotel in the said building.
The annual gross rental value of the.
building was determined at Rs. 6,600/ in 1956.
It was revised to Rs. 43,405/ by the Assessment Officer in 1965.
Section 138(b) of the Madhya Pradesh Municipal Corporation Act, 1956, provides that notwithstanding anything contained in any ,other law for the time being in force, the annual value of any building shall be deemed to be the gross annual rent at which such building might be reasonably at the time of assessment be expected to let from year to year at the time of the less an allowance of 10 per cent for repairs etc.
The respondent challenged the valuation on the ground that the rental value of the premises could not be fixed at a rate higher than the stand ard rent under section 7 of the Madhya Pradesh Accommoda tion Control Act, 1961.
The Municipal Commissioner negatived the respondents ' contention.
An appeal filed by the respondents to the Additional District Judge also failed.
The High Court however allowed the Revision filed by the respondents.
Allowing the appeal by Special Leave held: 1.
In the.
present case the building in ques tion was never let on rent and is being used by the owners as a hotel.
[1019 A] 2.
On a proper construction of section 138(b) where the standard rent of a building has been fixed under section 7 of the Accommodation Control Act, and there is nothing to show that there has been fraud or collusion that would be its reasonable letting value but where the building has never been let out the question of fixation standard rent does not arise.
In that case it would be permissible to fix its reasonable rent without regard to the provi sions of Madhya Pradesh Accommodation Control Act.
This view gives proper effect to the nonobstante clause in section 138(b).
[1019 D F] The Corporation of Calcutta vs Smt.
Padma Debi and others ; , Corporation of Calcutta vs Life Insurance Corporation of India , Guntur Municipal Council vs Guntur Town Rate Payers ' Association ; and New Delhi Municipal Committee vs M.N. Soi and another ; , distinguished.
|
ivil Appeal Nos.
446 449 of 1976.
Appeals by Special Leave from the judgment and Orders dated.
14 1338SCI/76 1004 7 4 1969 and 25 1 1972 of the Bombay High Court (Nagpur Bench) In S.T.R. Nos.
17 to 20 of 1964 and CIVIL APPEAL NOS.
450453 OF 1976.
V. p. Raman, Addl.
General for India, S.B. Wad and M. N Shroff for Appellants in CAs.
450 to 453/76.
G.L. Sanghi, A. section Bobde, M.L. Vaidya, V.A. Bobde, A. G. Meneses, J.B. Dadachanji, K.J. John, O.C. Mathur and Ravind er Narain for the Respondents in CAs.
446 449/76 and Appel lants in (2.
450 453/76 The Judgment of the Court was delivered by BEG, J.
The eight appeals before us by special leave arise out of four Sale "Tax References, under Section 23(1) of the Central Provinces and Berar Sales Tax Act, 1947, (hereinafter referred to as 'the Act ').
Five of these were decided by a Division Bench of the Bombay High Court.
As it answered the main question determining liabili ty to pay the sales tax under the Act against the State, there are four appeals against it by the State.
The sixth question, which was one of law only, was referred by the Division Bench to a Full Bench, and, this was determined in favour of the State.
There are, therefore, four appeals by the assessee against the Full Bench decision.
M/s. Central Provinces Manganese Ore Co. Ltd., the assessee, has its Head Office in London.
It carries on business on an extensive scale.
It owns 22 manganese ore mines in Madhya Pradesh from where manganese ore, after being excavated, is sent mostly abroad through different ports.
The Company is a registered dealer under the Act.
It used to enter into contracts at places outside Madhya Pradesh for the despatch of what came to be known, in the special parlance of this company 's business, as "Oriental Mixture" But the contracts contain specifications only of strengths of manganese ore to be supplied with permissible percentages of other ingredients as admixtures.
The term "Oriental Mixture" was evidently employed by the Company itself to describe a particular type of conglomerate which the unloading at one place of Various types of manganese ore produced.
The required average consistency or strength of manganese ore specified in the contracts, which did not contain a reference to any "Oriental Mixture", was said to be obtained in the course of this mechanical process of transportation when various grades of manganese ore were heaped together.
These grades of manganese ore were trans ported, in railway wagons, from one or more mines, and, it appears that the order in which trucks were.loaded in goods trains and unloaded was also so,arranged that the mixture came into existence, as described above, in the mere process of unloading at the port.
1005 But, this procedure did not seem to involve a process of "Manufacture", as that term is ordinarily understood, to which the assessee could be said to have subjected its manganese ore.
The case of the assessee company was that the "Oriental Mixture" as a taxable commodity came into existence only after the ores got mixed up in the process of unloading and not before so that it could not be taxed as "goods in exist ence" in Madhya Pradesh at the time when ,contracts relating to these goods were made.
Other questions ,appear to be subsidiary.
Nevertheless; we have to consider them 'before coming to the crucial question which is: Is the process described above one of "manufacture" so that a new kind of goods, known as "Oriental Mixture", came into existence at the port where manganese ore trucks were unloaded? As the High Court pointed out, the periods involved in the four references before it were not governed by the provisions of the Constitution.
Reference No. 17 of 1964 for the period 1st January, 1947 30th September, 1947.
Reference No. 18 of 1964 for the period 1st October, 1947 to 31st December, 1948.
Reference No. 19 of 1964 for the period 1st January, 1949 to 31st December, 1949.
Reference No. 20 of 1964 for the period 1st January, 1950 to 25th January, 1950.
We, therefore, agree with the High Court 's view that Article 286 of the Constitution, which is not retrospective in operation, could not help the assessee merely because it was there at the time of assessment.
The next question to be considered, which was referred to the Full Bench, flows from Explanation (II) to Section 2(g) of the Act which was amended by the C.P. & Berar Sale Tax (Amendment) Act No. XVI of 1949, came into force on 11th April, 1949.
Hence, the law, as found after the amending Act, could apply, .if valid, only to the last two refer ences.
But, the question which arose, on the assumption that the amendment was ineffective, was whether the unamended law could be applied at all after the purported amendment.
Section 2(g) of the Act, with its two explanations, before it was amended, may be reproduced here in toto.
It reads as follows: "2(g) 'sale ' with all its grammatical variations and cognate expressions means any transfer of property in goods for cash or deferred payment or other valuable considera tion, including a transfer of property in goods made in course of the execution of a contract, but does not,include a mortgage, hypothecation, charge or pledge: Explanation (I): A transfer of goods on hire purchase or other installment system of pay ment ' shall, notwithstanding 1006 that the seller retains a title to any goods as security for payment of the price, be deemed to be a sale; Explanation (11): Notwithstanding anything to the contrary in the Indian , the sale of any goods which are actually in the Central Provinces and Berar at the time when the contract of sale as define in that Act in respect thereof is made, shall wherever the. said contract of sale is made, be deemed for the purpose of this Act to have taken place in the Central Provinces and Berar".
Section 2 of the Amending Act of 1949 provid ed: 2.
In section 2 of the Central Provinces and Berar Sales Tax Act 1947 (hereinafter referred to as the said Act), (a) in clause (g) for Explanation (I1) the following shall be substituted : Explanation (I1) : Notwithstanding anything to the contrary in the Indian , the sale or purchase of any goods shall be deemed for the purposes of this Act, to have taken place in this province, wherever the contract of sale or purchase might have been made "(a) if the goods were actually in this province at the time when the contract of sale or purchase in respect thereof was made, or (b) in case the contract was for the sale or purchase of future goods by descrip tion, then, if the goods are actually produced or found in this Province at any time after the contract of sale or purchase in respect thereof was made".
The submission made on behalf of the assessee, which was accepted by the High Court was that, as the amendment did not receive the assent of the Governor General under Section 107 of the Govt.
of India Act, it was void.
It was, howev er, also urged, on behalf of the assessee, that a repeal of the previously existing section did not require the assent of the Governor General at all.
The argument was that the original provision was validly repealed, but, as no substi tution of the new provision could take place, because the assent of the Governor General was not obtained, only the repeal survived.
The result of accepting such a submission would be that the substitution will have to be split up into two distinct enactments; firstly, a repeal of the original section 2(g) of the Act; and, secondly, the substitution of the new provision for the repealed one.
The assessee 's argument was that two processes, one of repeal and another of substitution, are necessarily implied in such an amend ment as the one before us.
It was urged that both had received the assent of the Governor, but, since the substi tuted provision alone required the assent of the Governor General, which was not obtained, a repeal, which was assent ed to by the Governor, stood on its own separate footing.
Thus, the result was said to be a repeal simpliciter without the enactment of the fresh provision meant to replace it.
1007 It was submitted that the High Court, after finding the substituted provisions of section 2(g) of the Act to be invalid, had erred in holding that the repeal was also ineffective.
It was contended that such a view resulted in attributing to the legislature an intention contrary to that which it had unmistakably expressed by repealing the una mended provision.
It was urged that the repeal, which was clearly intended, must be held to be valid.
assessment periods.
Of course, this argument assumes that the repeal and the new ' enactment are separate.
In Shriram Gulabdas vs Board of Revenue, Madhya Pradesh & Ant.
the province, is not ultra vires the Provision Legislature.
We must make it clear that our answer to this question is in the affirmative, free from considerations arising under Article 286.
We have shown that the necessary power to make the unamended Explanation did exist in the State Legisla ture; but we have also made it clear that by virtue ' of Article 286 the Explanation can no longer be enforced because under the present Constitution the sales tax can only be col lected at the market and where the goods are delivered for consumption.
We may also state that the amended Explanation II is not validly enacted because it makes drastic changes in the rules as found in the without obtaining the ' assent of the Governor General.
The effect of the amended Explanation going out would be to rehabilitate the old Explanation as it existed because the amendment being unconstitutional will fail to work any change in the law (See the opinion given by one of us, Hidayatullah, J., in Laxmibai vs The State (I.L.R. , 608, 610 (F.B.)".
No question relating to the enforcement of the Sales tax by any collection to be made after the Constitution came into force was raised the cases before us.
This was held to be the correct position in the case of Shriram Gulabdas (Supra).
It was also clearly held there that the 'result of the invalidity of the amended explana tion was to leave the law unaltered as it stood before the amendment.
We approve of this pronouncement made long ago on this very question.
It was urged on behalf of the assessee that the case of Shriram Gulabdas (supra) contained what was merely an obser vation with regard the "rehabilitation" of the preexisting law as that question was no directly under consideration there
It was also submitted that this observation must be deemed to have been over ruled by subsequent pronouncements of this Court.
(1) (1952) 3 S.T.C. 343.
1008 The passage cited above by us occurs in answering the fifth question considered there which was framed as follows: "(v) Whether Explanation II to clause (g) of Section 2, which makes an agreement of sale taxable even though the sale may have taken placed outside the Province, ultra vires of the Provincial Legislature ?" Other questions framed indicate that it was not only the validity of the provision, both before and after its amend ment, which was directly considered and pronounced upon, but the application of the concept of sale under the unamended law and its effects were also under consideration.
We think that the view that the unamended law was in operation was not a mere obiter dictum.
It was necessary to decide that question before other questions could be determined.
We give out own reasons below for accepting the correctness of the view taken then.
The following passage was also cited from Koteswar Vittal Kamath V.K. Rangappa Baliga & Co. (at p. 509): "Learned counsel for the respondent, however, urged that the Prohibition Order of 1119 cannot, in any case, be held to have continued after 8th March, 1950, if the prin ciple laid down by this Court in Firm A.T.B. Mehtab Majid & Co. vs State of Madras, (1963) Supp.
2 SCR 435 (AIR 1963 SC 928) is applied.
In that case, rule 16 of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939, was impugned.
The Court held that the ' new Rule 16(2) was invalid because the provisions of that.
rule contra vened the provisions of Article 304(a) of the Constitution.
Thereupon, it was urged before the Court that, if the impugned rule be held to be invalid, the old Rule 16 gets revived, so that the tax assessed on the basis of that rule will ' be good.
The Court rejected this submission by holding that : 'Once the old rule has been substituted by the new rule, it ceases to exist and it does not automatically get revived when the new rule is held to be invalid '.
On that analogy, it was argued that, if we hold that the Prohibition Order of 1950 was invalid, the previous Prohibition Order of 1119 cannot be held to be revived.
This argument ignores the distinction between supersession of a rule, and substitution of a rule.
In the case of (1963) Supp. 2 SCR 435 (AIR (supra), the new Rule 16 was substituted for the old Rule 16.
The process of substitution consists of two steps.
First, the old rule is made to cease to exist, and, next, the new rule is brought into existence in its place.
Even if the new rule be in valid, the first step of the (1) ; 509: ; 47.1009 old rule ceasing to exist comes into effect and it was for this reason that the Court held that, on declaration of the new rule as in valid, the old rule could not be held to be revived".
In the above mentioned passage, this Court merely explained the argument which was ac cepted in the case of firm A.T.B. Mehtab Majid & Co. vs State of Madras(1).
After doing so, it distinguished the facts in Koteswar 's case (supra), relating to an alleged substitution of one Prohibition Order by a subsequent order which was found to be invalid.
It recorded its conclusion as follows (at p. 509): "In the case before us, there was no substitution of the Prohibition Order of 1950 for the Prohibition Order of 1119.
The Prohibition Order of 1950 was promulgated independ ently of the Prohibition Order of 1119, and because the provisions of law it would have had the effect of making the Prohibition Order of 1119 inoperative if it had been a valid order.
If the Prohibition Order of 1950 is found to be void ab initio, it could never make the Prohibition Order of 1119 inopera tive".
The argument before us is that since the word "substi tuted" is used in the amending Act of 1949, it necessarily follows that the process embraces two steps.
One of repeal and another of the new enactment.
But, this argument is basically different from the argument which prevailed in Koteswar 's case (supra) where a distinction was drawn be tween a "substitution" and "supersession".
It is true that, as the term substitution was not used there, the old rule was not held to have been repealed.
Nevertheless, the real basis of that decision was that what was called supersession was void ab initio so that the law remained what it would have been if no such legislative process had taken place at all.
It was held that the void and inoperative legislative process did not affect the validity of the pre existing rule.
And, this is precisely what is contended or by the State before us.
In the case before us although the word "substitution" is used in the amending Act, yet the whole legislative process termed substitution was itself abortive.
of India Act, was lacking.
Such ineffectiveness was the very reason why, in the case of Sriram Gulabdas (supra), it was held that the previous law stood unaffected by the attempted legislation called substitution.
Moreover, the case of Shriram Gulabdas (supra) is a direct authority on the very provisions now before us.
Other cases cited are on very different legislative provisions.
We do not think that the word substitution necessarily or always connotes two severable steps, that is to say, one of repeal and another of a fresh enactment even if it implies two steps.
Indeed, the natural meaning of the word "substitution" is to indicate that the process cannot be split up into two pieces like this.
If the process de scribed as substitution fails, it is totally ineffective so as to leave intact what was sought (1) [1963] Suppl.
2 S.C.R. 435. 1010 to be displaced.
That seems to us to be the ordinary and natural meaning of the words "shall be substituted".
This part could not become effective without the assent of the Governor General.
The State Governor 's assent was insuffi cient.
It could not be inferred that, what was intended was that, in case the substitution failed or proved ineffective, some repeal, not mentioned at all, was brought about and remained effective so as to create what may be described as a vacuum in the statutory law on the subject matter.
Pri marily, the question is one of gathering the intent from the use of words in the enacting provision seen in the light of the procedure gone through.
Here, no intention to reveal, without a substitution, is deducible.
In other words, there ' could be no repeal if substitution failed.
The two were a part and parcel of a single indivisible process and not bits of a disjointed operation.
It could not be said that what the Legislature intended.
or what the Governor had assented to consisted of a separate repeal and a fresh enactment.
The two results were to follow from one and the same effective Legislative process.
The process had, therefore, to be so viewed and interpreted.
Some help was sought to be derived by the citation of B.N. Tewari vs Union of India & Ors.,(1) and the case of Firm A.T.B. Mehtab Majid & Co vs State of Madras (supra).
Tewari 's case (supra) related to the substitution of what was described as the "carry forward" rule contained in the departmental instruction which was sought to be substituted by a modified instruction declared invalid by the Court
It was held that when the rule contained in the modified in struction of 1955 was struck down the rule contained in a displaced instruction did not survive.
Indeed, one of the arguments there was that the original "carry forward" rule of 1952 was itself void for the very reason for which the "carry forward" rule, contained in the modified instructions of 1955, had been struck down.
Such a doctrine applies in a case where a judgment of a Subordinate Court merges in the judgment of the Appellate Court or an order reviewed merges in the order by which the review is granted.
Its application to a legislative process may be possible only in cases of valid substitution.
The legislative intent and its effect is gathered, inter alia, from the nature of the action of the authority which func tions.
It is easier to impute an intention to an executive rule making authority to repeal altogether in any event what is sought to be displaced by another rule.
The cases cited were of executive instructions.
The procedure for enactment is far more elaborate and formal.
A repeal and a displacement of a Legislative provision by a fresh enactment can only take place after that elaborate procedure has been followed in toto.
In the case of any rule contained in an executive instruction.
(1) ; 1011 on the other hand, the repeal as well as displacement are capable of being achieved and inferred from a bare issue of fresh instructions on the same subject.
In Mehtab Majid & Co 's case (supra) a statutory role was held not to have revived after it was sought to be substi tuted by another held to be invalid.
This was also a case in which no elaborate legislative procedure was prescribed for a repeal as it is in the case of statutory enactment of statutes by legislatures.
In every case, it is a question of intention to be gathered from the language as well as the acts of the rulemaking or legislating authority in.the context in which these occur.
A principle of construction contained now in a statutory provision made in England since 1850 has been: "Where an Act passed after 1850 repeals wholly or partially any former enactment and substitutes provision for the enactment repealed, the repealed enactment remains in force until the substituted provisions come into operation".
(See: Halsbury 's Laws of England, Third Edn.
; Craies on "Statute Law", 6th Edn. p.386).
Although, there is no corresponding provision in our General Clauses Acts, yet, it shows that the mere use of words denoting a substitution does not ipso facto or automatically repeal a provision until the provision which is to take its place becomes legally effective.
We have, as explained above reached the same conclusion by considering the ordi nary and natural meaning of the term "substitution" when it occurs.
without anything else in the language used or in the context of it or in the surrounding facts and circumstances to lead to another inference.
It means, ordinarily, that unless the substituted provision is there to take its place, in law and in effect, the pre existing provision continues.
There is no question of a "revival".
This question of interpretation was referred separately to the Full Bench of the Bombay High Court which drew a distinction between the two meanings of the word "substitut ed"; firstly, where it involved a direction as to what would have to be removed or repealed simultaneously with another as to what was to be substituted, so as to involve two directions and secondly where the "substitution" merely carried one direction to modify .
It is difficult to see how a single direction to one direction to modify.
It is difficult to see how a single direction to substitute would be effective without implying in it another to remove 'what was to be displaced.
Perhaps more simply and correct ly stated, the difference between two meanings of the word "substituted" is one 'where it stands for two separable legislative process and another where it stands for one total or completed legislative procedure, including the assent of the Governor General, which would be covered by the words "shall be substituted".
The Full Bench came to the conclusion that, in the context in which the words directing substitution occur, they do not imply that in the event of the failure of the amendment, taken as a whole a repeal would survive.
To be able to "Survive" a repeal 1012 had first to come into existence.
In the situation before us no repeal came into legal existence.
The real question for determination is always one of the meaning of words used in a purported enactment in a particu lar context.
We think that the Full Bench of the High Court correctly held that there was no repeal of the existing provision when "substitution", by means of an amendment, failed to be effective.
It had also rightly distinguished some of the cases cited before it on the ground that, in those cases, the process for substitution was interpreted to necessarily imply both a repeal and re enactment out of which only the repeal which took place had survived when the re enactment proved abortive.
On the question whether the particular goods existed in Madhya Pradesh at all at the time of the contracts, so that the contract could be said to be referable to them, the High Court had observed: " . the question was whether Oriental Mixture was present in the former State of Madhya Pradesh when the contracts of sale in respect of Oriental Mixture were made by the applicant company.
On this point, which was purely a question of fact, the decision of the second appellate authority was final and that decision was that Oriental Mixture in the form in which the contracts to sell that commodity were made was present in the State of Madhya Pradesh at the time when those contracts were made.
Therefore, that point was not open for decision before the Tribunal and it is not necessary to dilate on the facts relating to that question".
It also said: "In Commissioner of Sales Tax, Eastern Division, Nagpur vs Hesenali Adamji & Co. (1959) (10 STC 297), there was no evidence that at the date when the agreement for sale was made, the particular logs delivered there under were in Central Provinces in the shape of logs at all, and a standing tree which was in existence at the date of the agreement of sale and out of which the logs were later on prepared cannot be said to be the form of the commodity in respect of which the agree ment of sale was made.
The Tribunal relied on the observations in the Judgment of the Su preme Court at page 310 which are to the effect that the goods must, at the date of the contract, be there in the taxing State in the form in which they are agreed to be sold.
In that case, the agreement of sale can be said to be in respect of those goods.
Here, as found by the second appellate authority, ore in the form of Oriental Mixture was present in the taxing State when contracts of sale in re spect of Oriental Mixture were made by the Head Office of the applicant company".
After giving the findings set out above, on the question whether the. goods existed in the State of Madhya Pradesh when they were sold and, whether the contracts were refera ble to these goods, the High Court 1013 proceeded to consider the question whether "Oriental Mix ture" itself had come into existence in Madhya Pradesh or at the port where the goods forming the "Oriental Mixture" became mixed up in the process of unloading and transporta tion.
Apparently, what the High Court had meant by its earlier findings was not that the "Oriental Mixture" was in existence in Madhya Pradesh, but that the ingredients which went into its composition existed in Madhya Pradesh at the time when the contracts were made.
It had finally reached the conclusion that the Mixture itself was formed at the port where the ingredients were unloaded.
We are unable to accept the High Court 's reasoning that, while the goods which went into the composition of the "Oriental Mixture" existed in Madhya Pradesh when the contracts were made, yet, they were not taxable in Madhya Pradesh because ' the "Oriental Mixture" came into existence at the port.
In other words, it held that a mere mixture of goods, even if it occurs in the process of unloading, converts the goods, which existed in Madhya Pradesh and were transported to the port, into separately identifiable commercial commodity Known as "Oriental Mixture".
As already mentioned above, this term is not used in the contracts but is a term employed by the firm itself to indicate the specifications contained in the contracts of goods ordered.
It is difficult to see what process of manufacture is gone through so as to bring a new category or genus of commercial goods into existence at the port.
The High Court had relied on cases where raw tobacco subjected to various processes, such as sprinkling of jag gery juice or water on it and allowing it to ferment for some time before cutting it up and packing it, was held to become a new commodity.
These cases were: The State of Madras vs Bell Mark Tobacco Co. C); The State of Madras vs Swasthik Tobacco Factory(2); Anwarkhan Mehboob Co. vs The State of Bombay (Now Maharashtra) & Ors.
Reliance was also placed on behalf of the assessee on Shaw Wallace & Co. Ltd. vs The State of Tamil Nadu(4), where it was held that goods were actually subjected to a process of manufacturing when chemical fertilisers and fillers like "China clay", "gypsum", and other ingredients, were mixed at a "mixing works" of a company, by means of shovels, so as to conform to a particular formula.
It was held there by this Court that the resulting product was a commercially distinct commodity.
Several cases of manure mixtures are referred to in the case.
Now, ' in the case of manure mixtures, made out of different ingredients, at a "mixing works", it can per haps be said that a chemical process is gone through.
In any case, the product which came into existence was known and sold as a separate commercial commodity in the mar ket.
It required a process to be gone through at what were known as mixing works of the company to convert it into that commodity.
On the other hand, in the case before us, it seems to us that what has been "manufactured" by the asses see is the same "Oriental Mixture" (1) (1967) 19 S.T.C. 129.
(2) (1966) 17 S.T.C. 316.
(3) (1960) 11 S.T.C. 698.
(4) (1976) 3 S.T.C. 522.
1014 only if the term "manufacture" can be employed at all to anything done by the assessee.
What is to be determined is whether there has been the manufacture of a new product which has a separate commercially current name in the mar ket.
The mere giving of a new name by the seller to what is really the same product is not the "manufacture" of a new product.
There is, it appears to us, no new process of the manufacture of goods at all by the assessee before us.
Again, cases in which logs of wood were cut in order to convert them into planks [e.g.
Shaw Bros & Co. vs The State of West Bengal(1)] could be of no assistance in the case before us.
That too could be a process of "manufacture".
The High Court had also made a passing reference to Nil giri Ceylon Tea Supplying Co. vs The State of Bombay(2), a case decided by the Bombay High Court, where different brands of tea, purchased in bulk and "without application of any mechanical or chemical process", were mixed so as to conform to a particular mixing formula, but this mixture was held not to constitute a fresh commodity as neither process ing nor alteration of the ingredients of the tea in any manner had taken place.
We think that the similarity of the process to which goods sold were subjected in this case seems to make the reasoning adopted in this case more prop erly applicable to the cases before us than any other found in other cases mentioned above.
The ingredients were not even shown to have got so mixed up as to become inseparable.
As already mentioned above, this is a case in which the term "Oriental Mixture" was nothing more than a name given by the appellant company itself to the goods which were in the State of Madhya Pradesh at the relevant time and sent from there specially in order to satisfy the specifications given in the contracts.
The goods get mixed up in the process of unloading.
The mere fact that the specifications in the contracts are satisfied when they get mixed up is not a good enough ground for holding that a new product has been manufactured.
They could no more constitute a new commodity than parts of some machinery sent by its manufacturer to a purchaser outside a State, so that the buyer has to just fit in the various parts together, becomes a new commodity when the parts are fitted in.
The mere fitting up of parts or a mixture of goods, without employing any mechanical or chemical process of manufacture, could not, we think, result in a new commod ity.
We, therefore, answer the following six questions before the High Court as follows: Q. 1.
Was the Tribunal right in holding that, although the assessment order was made after the Constitution of India came into force, Article 286 was thereby not contravened, because such order related to a period prior to 26.1.1950? (1) (1963) 14 S.T.C. 878.
(2) (1959) 10 S.T.C. 500. 1015 Ans.
Yes, The provisions of Article 286 were not contravened.
Was the Tribunal right in holding that Explanation (II) to Section 2(g) as was origi nally embodied in the Sales Tax Act, 1947, got restored on the Statute book because of the unconstitutionality of the substituted Expla nation enacted in the Sales Tax (Amendment) Act, 1949 ? Ans.
There is no question of restoration of unamended explanation (II) to Section 2(g) as the purported amendment itself did not take effect.
Hence, the unamended provision stood as it was before the attempted amendment.
The question framed rests on a misconception that there was something to be restored.
As nothing was taken away, nothing was there to be restored.
And, there was nothing added or substituted.
Does the Tribunal 's decision not contra dict the true meaning of the language "sale of any goods which are actually in the Central Provinces and Berar at the time when the contract of sale as defined in that Act in respect thereof is made", as occuring in Explanation (II) to section 2(g) of the Sales Tax Act, with reference to "in respect thereof" is reference to "specified or ear marked" goods which are actually present in the taxing State when the contracts are made ? Ans.
This is a question of fact as to what contracts specify and whether those goods were taxed, on which the finding already recorded are enough to dispose it off against the assessee.
In any case, was the Tribunal right in its interpretation, application and use of the provisions of original Explanation (II) to section 2(g) of the Sales Tax Act even as they were ? Ans.
Was the Tribunal right in assuming the law to be that the existence of ingredients of ores in the taxing State in question, which were sufficient if and when mixed in the due proportion for yielding different varieties of standard mixtures contracted for by the over seas buyers, was in law enough to attract the tax ? Ans.
There is no question of assuming any thing.
It was only manganese ore of different grades which was unloaded at the port and gives the name of "Oriental Mixture" because the ingredients got mixed up automati cally in transportation and satisfied certain specifications.
No new commodity was produced in this process.
Was the Tribunal right in holding that the Sales Tax Authorities had found as a fact that the goods consisting of oriental mixture 1016 were in the Madhya Pradesh State when the contracts in respect of these goods were made ? Ans.
Before we part with the case we may observe that the questions could have been much more lucidly and simply and less culmsily stated.
The appeals of the assessee company against the decisions of the Full Bench are dismissed.
The appeals of the State of Maharashtra against the judgment of the Division Bench are allowed.
Parties will hear their own costs.
V.P.S. Appeals dismissed.
| IN-Abs | Section 2(g) of the Central Provinces and Berar Sales Tax Act, 1947 defines 'sale ' and Explanation II to the sub section provides that notwithstanding anything to the contrary in the Indian , the sale of any goods which are actually in the State at the time when the contract of sale, as defined in that Act in respect thereof is made, shall, wherever the contract of sale is made, be deemed for the purpose of this Act to have taken place in the State.
The Amending Act of 1949 substituted for this Explanation another Explanation but as the amend ment did not receive the assent of the Governor General under section 107 of the Government of India Act, 1935, it was void.
The assessee owned manganese ore mines in the State and was entering into contracts at places outside the State for the despatch abroad of manganese ore through different ports.
The contracts contained specifications of strengths of manganese ore to be supplied with permissible percentages of other ingredients an admixtures.
The assessee arranged for the transport of various grades of menganese ore in railway wagons from one or more of the mines, and the order in which trucks were loaded and unloaded was so arranged that the required average consistency or strength of manganese ore specified in the contracts was obtained in the course of such unloading.
The assessee described the par ticular type of conglomerate as 'Oriental mixture. ' The assessee contended (1) that the original Explanation II was validly repealed by the Amending Act and since no sub stitution of the new provision had taken place, only the repeal survived, and that, therefore neither the old una mended provision nor its replacement were in operation, with the result that the Sales after the date of amendment were.
not subject to sales tax, and (2) even assuming that the unamended provision was in force, 'Oriental Mixture ', as a taxable commodity came into existence only after the ores got mixed up in the process of unloading and not before so that, its sale could not be taxed as 'goods which are actu ally in the State ', at the time when contracts: were entered into.
The High Court on a reference held the first contention against the assessee and the second in favour of the asses see.
Both sides appealed to this Court.
Dismissing the appeals of the assessee and allowing the appeals of the State.
HELD: (1) As the period involved is preconstitution period, article 286 of Constitution, which is not retrospective in operation would not help the assessee even though the as sessment was after the Constitution came into force.
[1007 F] (2) There was no repeal of the existing Explanation when 'substitution ' by means of the amending Act failed to be effective and so the sale could be taxed under it.
[1012 A B] (a) The question is one of gathering the intent from the use of words in the enacting provisions seen in the light of the procedure gone through, and from the nature of the action of the authority which functions, [1010 B] 1003 (b) The word 'substitution ' does not necessarily or 'always connote two severable steps, one of repeal and another of a fresh enactment, even if it implies two steps.
The natural meaning of the word 'substitution ' is to indicate that the process cannot be so split up.
If the process described as substitution fails, it is totally ineffective so as to leave in tact what was sought to be displaced.
It could not be inferred that; what was intended was that in case the substitution failed or proved ineffec tive, some repeal, not mentioned at all, was brought about and remained effective so as to create what may be described as a vacuum in the statutory law on the subject matter.
The term 'substitution ' when it occurs without anything else in the language used or in the context of it or in the sur rounding facts and circumstances, means, ordinarily, that unless the substituted provision is there to take its place, in law and in effect, the preexisting provision continues.
[1009 H, 1010 A G] (c) In the present case, the whole legislative process termed substitution was abortive.
because, it did not take effect for want of the assent of the GovernorGeneral.
Considering the actual procedure, even if the Governor had assented the substitution, yet the amendment would have been effective as a piece of valid legislation only when the assent of the Governor General had also been accorded to it.
It could not be said that what the Legislature intended or what the Government had assented to consisted of a separate repeal and a fresh enactment.
The two results were to follow from one and the same effective legislative process.
[1010 CD] (d) It is easier to impute an intention to an executive rule making authority to repeal altogether, in any event, what is sought to be displaced by another rule, because the repeal as we11 as replacement are capable of being achieved and inferred from a bare issue of fresh instructions on the same subject.
In the case of a legislative provision sought to be amended by a fresh enactment, the procedure for enact ment is far more elaborate and formal.
A repeal and a replacement of a legislative provision by a fresh enactment can only take place after such elaborate procedure has been followed in toto.
Even the analogy of a merger of an order into another which was meant to be its substitute could only where there is a valid substitute.
[1011 C F, 1012 A B] Koteswar Vittal Kamath vs
K. Rangappa Balica & Co. AIR 1969 SC & 509 ; @ 47 Firm .A.T.B.
Mehtab Majid & Co. vs State Madras [1963] Suppl.
2, SCR 435 and B.N. Tewari vs Union of India & Ors. ; explained.
Shriram Gulabdas vs Board of Revenue, Madhya Pradesh & Anr.
(1952) 3 STC 343 @ 367 approved.
The present case is not one of mixing various ingre dients at a 'mixing works ', and the product which comes into existence being sold as a separate commercial commodity in the market.
The goods got mixed up in the process of un loading without employing any mechanical or chemical process of manufacture.
The mere fact that the specifications in the conrtacts were satisfied when they got so mixed up is not a good enough ground for holding that a new product has been manufactured.
The mere giving of the new name 'Orien tal mixture by the assessee to.
what is really the same product is not the manufacture of a new product.
[1013 A D, G H, 1014 A B] The Stale of Madras vs Bell Mark Tobacco Co. (1967) 19 STC 129, The State of Madras vs Swasthik Tobacco Factory (1966) 17 STC 316 and Anwarkhan Mchboob Co. vs The State of Bombay (Now Maharashtra) & Ors.
(1960) 11 STC 698 and Shaw Bros & Co. vs The State of West Bengal (1963) 14 STC 878 referred to.
Shaw Wallace & Co. Ltd. vs The State of Tamil Nadu (1976) 37 STC 522 explained.
Nilciri Ceylon Tea Supplying Co. vs The State of Bombay (1959) 10 STC 500 approved.
|
Appeal No. 1528 of 1971.
(Appeal by Special Leave from the Judgment and Order dated 23 11 1970 of the Madras High Court in Tax case No. 398/7C (Revision No. 260/70) S.T. Desai and T.A. Ramachandran, for the ,Appellant.
V.P. Raman, .Addl.
Solicitor General for India.
A.V. Rangan and Miss A. Subhashini, for the Respondent.
The, Judgment of the Court was delivered by KHANNA, J.
This appeal by special leave is against the judgment of the Madras High Court Whereby.
the High Court dismissed the petition flied by the appellant under section 38 of the Tamil Nadu General Sales Tax Act, 1959 (hereinaf ter referred to as the State Act).
The matter relates to the assessment year 1960 61.
The appellant firm is a dealer in cotton yarn.
The appellant bought yarn from local dealers and manufacturers and, in turn, sold that yarn by way of inter State sale.
Sales tax under the State Act on the yarn purchased by the appellant had been paid by those manufacturers and dealers.
The inter State sales of yarn made by the appellant were as sessed to tax under the (hereinafter referred to as the Central Act) in the hands of the appel lant.
The appellant claimed refund of the tax amounting to Rs. 16,769.96 paid under the State Act in respect of the yarn sold by it in the course of inter State trade in ac cordance with section 15(b) of the Central Act and the proviso to section 4 of the State Act read with rule 23 of the Tamil Nadu General Sales Tax Rules, as these provisions stood at the relevant time.
The Additional Commercial Taxation Officer admitted the claim of the appellant for refund of the tax only in respect of the sum of Rs. 5,562.59 and rejected the claim in respect of the balance On appeal the Additional Appellate Assistant Commissioner allowed refund of a further sum of Rs. 3,204.73 and rejected the claim regarding the balance of Rs. 8,002.64.
On second appeal the 952 Appellate Tribunal relying upon the decision of the Madras High Court in M.A. Khader & Co. vs Deputy Commercial Taxa tion Officer(1), rejected the claim of the appellant for the balance of Rs. 8,002.64.
At the instance of the State representative, the Tribunal further held that the appellant was not entitled to get refund of the amount of Rs. 5,562.59 and Rs. 3,240.73 in respect of which relief had been granted by the Appellate Assistant Commissioner.
The appellant thereafter preferred revision petition to the Madras High Court under section 38 of the State Act.
The High Court dismissed the said petition after observing that the princi ple laid down in the case of M.A. Khader & Co. (supra) would apply to the facts of this case.
The appellant hereafter came up in appeal to this Court by special leave.
Before dealing with the point of controversy, it may be apposite to refer to the material provisions of law, 'as they stood at the relevant time.
A number of goods have been declared under section 14 of the Central Act to be of special importance.
in inter State trade or commerce.
Cotton yarn is one of those goods.
Section 15 of the cen tral Act at the relevant time read as under: "15.
Restrictions and conditions in regard to tax on sale or purchase of declared goods within a State.
Every sales tax law of a State shall, in so far as it imposes or authorises the imposition of a tax on the sale or purchase of declared goods, be subject to the following restrictions and conditions, namely : (a) the tax payable under that law in respect of any sale or purchase of such goods inside the State shall not exceed two per cent of the sale or purchase price thereof, and such tax shall not be levied at more than one stage; (b) where a tax has been levied under that law in respect of the sale or purchase inside the State of any declared goods and such goods are sold in the course of inter State trade or commerce, the tax so levied shall be refunded to such person in such manner and subject to such conditions as may be provided in any law in force in that State.
" Section 4 of the State Act reads as under: "4.
Tax in respect of declared goods.
Notwithstanding anything contained in section 3, the tax under this Act shall be payable by a dealer on the sale or purchase inside the State of declared goods at the rate and only at the point specified against each in .the
Second Schedule on the turnover in such goods in each year, whatever be the quantum of turnover in that year: Provided that where a tax has been levied under this section in respect of the sale or purchase of declared goods and such goods are sold in the course of inter State trade (1) 25 section
T.c. 104.
953 or commerce the tax so levied shall be refund ed to such person in such manner and subject to such conditions as may be prescribed.
" According to the Second Schedule to the Stale Act, the tax on cotton yarn but excluding cotton yarn waste shall be one per cent at the point of the first sale in the State.
Clauses (1) to (3) of rule 23 of the Madras General Sales Tax Rules, 1959 read as under: "23.
(1) The tax levied under section 4 in respect of the sale or purchase inside the State of any goods specified therein shall, if such goods are sold in the course of inter State trade or commerce, be refunded in the manner and subject to the conditions pre scribed in this rule to the dealer who has made the inter State sale and has paid the tax under the , in respect of such sale.
(2) Every ;such dealer who claims a refund under this rule shall within the time allowed in sub rule (3) submit to the assess ing authority a statement in Form A 4.
(3) The statement referred to in sub rule (4) shall be submitted to the assessing authority not later than three months.
from the date on which the dealer paid the Central sales tax due on the transaction in respect of which he claims refund of the State sales tax: Provided that the assessing authority may condone delays up to a period of fourteen days in the submission of the statement, if he is satisfied that the dealer had sufficient cause for not submitting the statement within the said period.
" In appeal before us, Mr. Desai on behalf of the appel lant has assailed the judgment of the High Court and has urged that in accordance with clause (b) of section 15 of the Central Act, the proviso to section 4 of the State Act and rule 23 of the Madras General Sales Tax Rules, the sales tax under the State Act in respect of yarn which was the subject matter of inter State sale, should have been paid to the appellant.
The High Court, according to the learned counsel, was in error in holding to the contrary.
As against that learned Additional Solicitor General has can vassed for the correctness of the view taken by the High Court.
There is in our opinion considerable force in the contention advanced by Mr. Desai.
Section 15 of the Central Act, as it existed at the relevant time, contemplates that every State law in so far as it imposes or authorises the imposition of tax on sale or purchase of declared goods, would be subject to the re striction and condition that the tax payable under that law in respect of any sale of purchase of such goods inside the State shall not exceed two per cent of the sale or purchase price thereof and such tax shall not be levied at more than one stage.
954 Clause (b) of that section has a direct bearing, and accord ing to that clause, where tax has been levied under the State law in respect of sale or purchase of declared goods which are subsequently sold in the course of inter State trade or commerce, the tax so levied shall be refunded to such person in such manner and subject to such conditions as may be prescribed in any law in force in that State.
Section 4 of the State Act has been cnacted in conformity with section 15 of the Central Act.
The proviso to that section deals with the refund of the sales tax levied under the State Act in respect of declared goods when such goods arc sold in the course of inter State trade or commerce.
According to that proviso, where a tax has been levied under section 4 in respect of the sale or purchase of declared goods and such goods are sold in the course of inter State trade or commerce, the amount of tax shall bc re funded to such person in such manner and subject to such conditions as may be prescribed.
In pursuance of this provi so, the State Government has framed rule 23 of the Madras General Sales Tax Rules, 1959.
According to clause (1) of that rule, the refund of the sales tax has to be made to the dealer who makes the inter State sale and who has paid the sales tax under the Central Act in respect of such sale.
Clause (3) of the rule provides that statement shall be submitted to the assessing authority by the aforesaid dealt not later than three months from the date on which the dealer pays the tax under the Central Act.
It may be stated that the Madras General Sales Tax Rules, 1959 had to be placed on the table of both the Houses of the State, legislature under sub section (5) of section 53 of the State Act.
In the face of clause (b) of section 15 of the Central Act, the proviso to section 4 of the State Act and rule 23 of the Madras General Sales Tax Rules, we have no doubt in our mind that it is the appellant who is entitled to get the refund of the sales tax levied under the State, Act in respect of the goods in question because it was the appel lant who sold the goods in the course of inter State trade and paid the sales tax under the Central Act on that ac count.
The High Court in turning down the claim of the appellant relied upon its earlier decision in the case of M. A. Khader & Co. (supra).
Perusal of the facts of that case would show that the assessee therein sought a writ of certi orari to quash the assessment made under the Central Act in respect of transactions which were admittedly interState sales.
The question of asking for the refund of the sales tax paid under the State Act did not arise directly in that case.
There were no doubt some observations in the course of that judgment, according to which refund of the sales tax can be claimed only by the person who himself has earlier paid that tax, and not by a person who has not himself paid such tax.
So far as those observations are concerned, we are of the opinion that the emphasis in the word "re funded" as used in clause (b) of section 15 of the Central Act and the proviso to section 4 of the State Act is on repayment of the amount.
A word can have many meanings.
To find out the exact connotation of a word in a statute, we must look to the context in which it is used.
The context would quite often provide the .key to meaning of the word and the sense it should carry.
Its setting would give colour to it and provide cue to the intention of the legislature 955 in using it.
A word, as said by Holmes, is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used.
The context in which the word "refunded" is used shows that such repayment need not be to the person who initially paid the tax.
It is indeed for the State legislature to specify the person to whom such amount is to be repaid either in the statute enacted by it or to make a provision for that pur pose in the rules.
The State legislature has made it Clear in the proviso to section 4 of the statute that provision in this respect would be made in the rules.
The rules which have been framed leave no doubt that the amount has to be paid to the dealer who sells the goods in the course of inter State trade and who has paid the tax under the Central Act in respect of such sale.
There is also no anomaly in paying the amount of the sales tax under the State 'Act to a dealer who sells de clared goods in the course of inter State trade, even though he did not himself pay the tax under the State Act in re spect of those goods.
The reason for that is that the price charged from such dealer by the person from whom he pur chases the goods would normally take into account the sales tax paid by the seller.
Assuming that there was some ambiguity in the languages of clause (b) of section 15, as it existed at the relevant time, the matter is made clear by the amendment made in the Central Act by the Central Sales Tax (Amendment) Act, 1972 (Act No. 61 of 1972).
As a result of the amendment, clause (b) of section 15 of the Central Act reads as under: "(b) Where a tax has been levied under that law in respect of the sale or purchase inside the State of any declared goods and such goods are sold in the course of inter State trade or commerce, and tax has been paid under this Act in respect of the sale of such goods in the course of inter State trade or commerce, the tax levied under such law shall be reimbursed to the person making such sale in the course of inter State trade or commerce in such manner and subject to such conditions as may be provided in any law in force in that State." The amended provision makes it plain beyond any pale of controversy that the tax levied under the State Act in respect of declared goods has to be reimbursed to the person making sale of those goods in the course of inter State trade or commerce in such manner and subject to such condi tions as may be provided in the law in force in that State.
According to the notes explaining the different clauses appended to the statement of objects and reasons of the Bill which emerged as the amending Act, the amendment made in clause (b) makes it Clear that local sales tax would be reimbursed to the person making the sale in the course of inter State trade and commerce.
The amendment made in clause (b) can thus be taken to be an exposition by the legislature itself of its intent contained in the earlier provision.
We are not impressed by the argument of the learned Additional Solicitor General 11 13 3 85CI/76 956 that the amendment made in clause (b) was intended to mark a departure from the position in law as it existed before the amendment.
The fact that the amendment of clause (b) of section 15 was not like some other provisions given retro spective effect, would not materially affect the position.
As already mentioned above, the legislature as a result of the amendment, Clarified what was implicit in the provisions as they existed earlier.
An amendment which, is by way of clarification of an earlier ambiguous provision can be useful aid in construing the earlier provision, even though such amendment is not given retrospective effect.
We may refer in this context to observations on page 147 of Craies on Statute Law (Sixth Ed.) which read as under: " . in Cape Brandy Syndicate vs I.R.C.(1) Lord Sterndale M.R. said: 'I think it is clearly established in Att.
Gen. vs Clarkson, supra, that subsequent legislation may be looked at in order to see the proper construction to be put upon an earlier Act where that earlier Act is ambiguous.
I quite agree that subsequent legislation if it pro ceeded on an erroneous construction of previ ous legislation cannot alter that previous legislation; but if there be any ambiguity in the earlier legislation, then the subsequent legislation may fix the proper interpretation which is to be put upon the earlier '.
" Looking to all the facts, we are of the view that the appel lant firm is entitled to be paid the amount of sales tax levied under the State Act in respect of the goods sold by it in the course of inter State trade provided the appellant has paid the sales tax under the Central Act in respect of those sales.
We accordingly accept the appeal, set aside the judgment of the High Court and order that the appellant firm be paid the amount of sales tax levied under the State Act in respect of the goods sold by it in the course of inter State trade provided the appellant has paid the sales tax under the Central Act in respect of those sales.
The appellant shall be entitled to recover its costs both in this Court as well as in the High Court from the respondent.
P.B.R. Appeal al lowed.
(1) at P. 156.
| IN-Abs | Section 15(a) of the as it existed at the rele ant time enacted that tax in respect of any sale or purchase of declared goods inside the State shall not be levied at more than one stage.
According to cl.
(b) if these goods were subsequently sold, in the course of inter state trade, the tax to levied shall be refunded to such person as prescribed in the State law.
The proviso to section 4 of the Tamil Nadu General Sales Tax Act and r. 23 of the Rules provide for the refund of the sales tax in the type of cases mentioned in section 15(b).
The appellant bought cotton yarn from local dealers and sold it by way of inter_state sale.
It paid the State sales tax and claimed refund under section 15 (b)of the Central Act.
It succeeded in part at each of the different stages; but on second appeal for the balance, the Appellate Tribunal re jected the appellant 's claim and held that it was not enti tled to any refund including the relief granted by the Appellate Assistant Commissioner.
The High Court rejected its revision petition.
Allowing the appeal, HELD: (1) The appellant firm is entitled to be paid the amount of sales tax levied under the State Act in respect of the goods sold by it in the course of inter State trade provided the appellant has paid the sales tax tinder the central Act in respect of those sales.
[956 E] (2) The proviso to section 4 of the State Act read with the rules leaves no doubt that the amount has to be paid to the dealer who sells the goods in the course of inter State trade and who has paid the tax under the Central Act in respect of such sale.
[955 B] (3)(a) There is no anomaly in paying the amount of the sales tax under the State Act to a dealer who sells declared goods in the course of inter State trade even though he did not himself pay the tax under the State Act in respect of those goods.
The reason for that is the price charged from such dealer by the person from whom he purchased the goods would normally take into account the sales tax paid by the seller.
[955 C] (b) The case of M. A. Khader & Co. vs Deputy Commer cial Taxation officer 25 S.T.C. 104 followed by the High Court is distinguishable on facts.
The question of asking for refund of the sales tax paid under the State Act did not arise directly in that case.
The emphasis in the word 'refunded ' as used in section 15(b) of the Central Act and the proviso to section 4 of the State Act.
on repayment of the amount.
[954 G] (4) (a) A word can have many meanings.
To find out the exact connotaon of a word in a statute, one should look to the context in which it is used.
The context would quite often provide the key to meaning of the word and the sense it should carry.
Its setting would give.
colour to it and provide due to the intention of the legislature in using it.
In the instant case the context in which the word "refund ed" is used shows that such repayment need not be to the person who initially paid the tax.
[954 H] 951 (b) The amended provision makes it plain beyond doubt that the tax levied under the State Act in respect of declared goods has to be reimbursed to the person making sale of those goods in the course of inter State trade or commerce in such manner and subject to such conditions as may be provided in the law in force in that State.
Accord ing to the notes on clauses appended to the statement of objects and reasons of the Bill the amendment made in cl.
(b) makes it clear that local sales tax would be reimbursed to the person making the sale in the course of inter State trade and commerce.
The amendment made in cl.
(b) can thus be taken to be an exposition by the legislature itself of its intent contained in the earlier provision.
[955 G] (c) The fact that the amendment of cl.
(b) of section 15 was not like some other provisions given retrospective effect, would not materially affect the position.
The legislature as a result of the amendment clarified what was implicit in the provisions as they existed earlier.
An amendment which is by way of clarification of an earlier ambiguous provision can be useful aid in construing the earlier provi sion even though such amendment is not given retrospective effect.
[956 B]
|
Appeal No. 1830 of 1975.
Appeal by Special Leave from the Judgment and Order dated 10 9 75 of the Delhi High Court in Civil Writ Petition No. 475/75.
Soli Sorabjee, Ravinder Narain, Talat Ansari and Shri Narain, for the Appellants.
V.P. Raman, Addl.
for India, S.K. Mehta and Girish Chandra, for the Respondent.
The Judgment of the Court was delivered by RAY, C.J.
This appeal is by special leave from the judgment dated 10 September 1975 of the Delhi High Court.
984 The appellant is a manufacturer of dry battery cells.
In October 1969 the appellant received a consignment of ten metric tons of manganese dioxide.
The Assistant Collector levied duty on the consignment under Tariff Item 28.
The appellant preferred an appeal.
The Appellate Collector confirmed the order of the Assistant Collector.
The appel lant thereafter made an application to the Revisional Au thority.
The Revisional Authority held that the goods should be assessed under Tariff Item 26 and ordered refund of duty.
The appellant asked for refund and sent reminders to Customs Authorities for refund.
On 3 October 1974 the appellant gave a notice under section 80 of the Civil Procedure Code for institution of a suit for recovery of refund.
On 10 February 1975 a notice under Section 131(3) of the referred to as the Act was.
given to the appellant for revision of the order of refund.
The appellant impeached the aforesaid notice dated 10 February 1975.
The notice inter alia stated that "since the goods 'were processed ore, not meant for extraction of metallic manganese they ceased to qualify as an 'ore ' within the normally accepted sense of the term as in item 26 Indian Customs Tariff.
The notice thereafter said "It, therefore, appears to the Government that the appellate order does not appear to be sustainable.
Therefore, in exercise of the powers under section 131(3) of the the Government of India proposes to annul the order in Appeal No. 590 593/1972 passed by the Appellate Collector of Cus toms, Calcutta".
The appellant made an application under Article 226 and moved the Delhi High Court.
The appellant in the applica tion asked for a writ in the nature of prohibition restrain ing the "Opposite party" thereto from taking any proceeding pursuant to the impugned notice.
The appellant also asked for a writ of certiorari to quash the notice.
The appellant also asked for a writ of mandamus not to withhold the excess duty paid by the petitioner and ordered to be refund ed.
The contention of the appellant was that the power of suo motu revision under section 131(3) of the Act in so far as it relates to a case of non levy or short levy of duty must be exercised within the period of limitation prescribed in section 131(5) of the Act.
In short, the appellant 's contention is that the power of suo motu revision contained in section 131(3) of the Act is subject to the provisions contained in section 131(5) of the Act.
The provisions contained in section 131(3) of the Act at3 as follows: "The Central Government may of its own motion annual or modify any order passed under section 128 or section 130.
" 985 The provisions contained in section 131(5) of the Act are as follows : "Where the Central Government is of opinion that any duty or customs has not been levied or has been short levied, no order levying or enhancing the duty shall be made under this section, unless the person affected by the proposed order is given notice to show cause against it within the timelimit speci fied in section.
" Section 28 of the Act provides for notice for payment of duties not levied, short levied or erroneously refunded.
Under section 28 when any duty has not been levied or has been short levied or erroneously refunded, the proper offi cer may, within six months from the relevant date, serve notice on the person chargeable with the duty which has not been levied or which has been short levied or to whom the refund has erroneously been made, requiring him to show cause why he should not pay ' the amount specified in the notice.
Counsel for the appellant extracted the provisions contained in sections 28 and 131 (3) and 131 (5) of the Act in support of the contention that any notice for suo motu revision by the Central Government in so far as it relates to a case of non levy or short levy of duty must be given within the period of six months from the date of levy.
Counsel for the appellant further contended that if the Government wanted to revise orders for refund on the ground that there should not be any refund, it would also be a case of short levy, and, therefore, the limitation of six months as provided in section 28 of the Act should apply.
Broadly stated Counsel for the appellant submitted that section 28 of the Act is a substantive provision relating to notice for non levy or short levy and section 131(3) of the Act is a procedural section and power under section 131(3) of the Act cannot be exercised in such a manner as to render section 28 of the Act nugatory.
The alternative contention of Counsel for the appellant is that power under section 131(3) of the Act is to be exercised within a reasonable time and the periods mentioned in section 131 of the Act supply the yard stick or give an indication of what is reasonable time.
The Delhi High Court held that all the objections which the petitioner wishes to raise to the notice, including the objections raised in the writ petition, should be raised before the Central Government.
The Delhi High Court, there fore, directed the Government to give a hearing to the appellant and further held that the Government should con sider all the objections.
The Delhi High Court went on to say that the decision of the Government should be taken within three months unless the appellant himself took ad journment and caused delay in the disposal of the case.
The Delhi High Court also said that if any money was to be refunded, .it should be refunded within two months from the date of the decision.
The provisions contained in section 28 of the Act speak of non levy, short levy and erroneous refund.
The provi sions state that notice 986 of non levy, short levy or erroneous refund should be given within six months from the relevant date.
Section 28(3) states what the "relevant date" means.
In the case of duty not levied, the "relevant date" is the date on which the proper officer makes an order for the clearance of the goods.
In a case where duty is provisionally assessed under section 18 of the Act, the relevant date is the date of adjustment of duty after the final assessment.
In a case where duty has been 'erroneously refunded, the relevant date is the date of refund.
any other case, the relevant date is the date of payment of duty.
The Additional Solicitor General contended that the provisions in section 28 of the Act indicated that any notice with regard to non levy, short levy or erroneous refund, require the person to show cause why he should not pay the amount specified in the notice.
This being the case of erroneous refund, the Additional Solicitor General con tended that the limitation would be six months from the date of actual refund.
The order dated 20 April 1972, which is described as the order of refund, was as follows : "I, therefore, allow the appeals and direct that the goods be re assessed under Item 26 of the Indian Customs Tariff and the consequential refund of duty granted.
" It may be stated here that Tariff Item 26 speaks of duty on metallic ore and Tariff Item 28 speaks of duty on Chemi cal and Pharmaceutical products.
The appellant succeeded in appeal in obtaining an order of refund.
It is an admitted feature of the case that refund has not in fact been made.
Counsel for the appellant contended that even if refund has not been made, the date of refund will be the relevant date and six months.
would be calculated from 20 April 1972, when refund was ordered and, therefore, the notice dated 10 February 1975 will be hit by the provision of limitation of six months from the relevant date.
The contention of the appellant is wrong.
It is only where refund has in fact been made and money has been paid, the relevant date will be six months from the date of actual payment for refund.
The contention of the appellant that refund will also be a case of short levy is not correct.
Section 28 speaks of three kinds of errors in regard to duties.
One is non levy, the second is short levy and the third is erroneous refund.
Levy is linked to assessment.
Section 17th of the Act speaks of assessment order.
In the process of assessment two kinds of errors may occur.
One is non levy and the other is short levy.
Refund is dealt with in section 27 of the Act.
The expression "erroneously refunded" means re funded by means of an order which is erroneously made.
These are three categories of errors in regard to duties.
The notice under section 28 of the Act speaks of demand for money to pay back and the notice is required to be given within six months from the relevant date.
In the case of erroneous refund, it would be six months from the date of actual refund.
If no refund has in fact been made, limita tion cannot be said to arise inasmuch as the relevant date under section 28 in the ease of erroneous refund 987 speaks of the date of refund.
The order dated 20 April 1972 granted refund.
Grant of refund is not actual refund.
Chapter XV contains sections 128 to 131 Of the Act.
Chapter XV speaks of Appeals and Revision.
Section 128 relates to appears, Section 130 deals with powers of revi sion of Board.
Section 131 speaks of revision by Central Government.
Revision can be asked for by the persons aggrieved by any order passed under section 128, or any order passed under section 130.
Section 131(2) provides limitation of six months for an application made under section 131(1) of the Act.
Once the provisions contained in section 131(3) are attracted, the Central Government may of its own motion annul or modify any order passed under section 128 or section 130.
This provision is the power of Central Government to annul or modify any order.
This power is exercised by the Central Government suo motu.
Of course the power is to be exercised on giving notice to the person concerned.
The provisions contained in section 131(5) of the Act speak limitation only with regard to non levy or short levy.
It is significant that section 131(5) does not speak of any limitation in regard to revision by the Central Government of its own motion to annul or modify any order of erroneous refund of duty.
The provisions contained in section 131(5) with regard to non levy or short levy cannot be equated with erroneous refund inasmuch as the three categories of errors in the levy are dealt with separately.
The appellants prayers for writs of Certiorari and mandamus are misconceived.
There is no order either judicial or quasi Judicial which can attract certiorari.
No mandamus can go because there is nothing which is required to be done or for borne under the Act.
The issue of the notice in the present case requires the parties to represent their case.
There is no scope for mandamus to do any duty or act under the statute.
A writ of prohibition cannot be issued for the obvious reason that the Central Government has jurisdiction to revise.
For the foregoing reasons, the appeal is dismissed.
The Central Government will hear the appeal on merits.
In view of our conclusion that there is no bar of limitation in the present case it will not be open to the parties to take any plea of limitation.
The Central Government will hear the matter as expeditiously as possible.
In case the Cen tral Government will hold that the order of refund is valid, the Central Government will pay the amount.
We specify the period of two months from the date of the order as the period during which payment will be made.
The parties will pay and bear their own costs.
S.R. Appeal dismissed.
| IN-Abs | The appellant succeeded before the revisional authority and obtained the orders of refund of duty levied and col lected on the consignment of ten metric tonnes of Manganese dioxide.
As no action was taken, the appellant gave a notice on October 3, 1974 u/s 80 C.P.C. for institution of a suit for recovery of refund.
On February 10, 1975 the respondent gave a notice u/s 131(3) of the to the appellant for suo motu revision of the order of the refund.
The Writ Petition filed in the Delhi High Court, impeaching the said order was dismissed directing the appel lant to raise all objections including those raised in the Writ Petition before the Central Government.
Dismissing the appeal by special leave, the Court Held: (1) section 28 of the speaks of three kinds of errors in regard to duties.
One is non levy, the second is short levy, and the third is erroneous refund.
Levy is.
linked to assessment.
In the process of assessment two kinds of errors may occur.
One is non levy and the other is short levy.
The expression "erroneously refunded" means refunded by means of an order which is erroneously made.
[986 F G] (2) section 131 (5) of the does not speak of any limitation in regard to revision by the Central Government of its own motion to annul or modify any order of erroneous refund of duty.
The provisions contained in Section 131(5) with regard to non levy or short levy cannot be equated with erroneous refund in as much as the three categories of errors in the levy are dealt with in section 28.
[987 D E] (3) Notice u/s 28 of the speaks of demand for money to pay back and the notice is required to be given within six months from the relevant date.
In the case of erroneous refund, it would be six months from the date of actual refund.
If no refund has in fact been made limita tion cannot be said to arise inasmuch as the relevant date u/s 28 in the case of erroneous refund speaks of the date of refund.
In the instant case the impugned order dated 20, April 1972 granted refund.
Grant of refund is not actual refund.
[986 G H, 987 A]
|
Appeal No. 508 of 1976.
(Appeal by Special Leave from the Judgment and Order dated 27 10 1975 of the Delhi High Court in Civil Revision No. 115/75).
S.N. Andley, Urea Dutta and T.C. Sharma, for the appellant.
K.C. Agarwala and M.M.L. Srivastava, for the respondent.
The plaintiff respondent ,alleged to be a regis tered partnership firm filed a suit on 25th April, 1974, through Smt.
Pushpa Mittal, shown as one of its partners, for the recovery of Rs. 21,265.28 as principal and Rs. 7655/ , as interest at 12% per annum.
according to law and Mercantile usage, on the strength of a cheque drawn by the defendant on 12th May, 1971, on the State Bank of India, which, on presentation, was dishonoured.
The plaintiff alleged that the cheque 1061 was given as price of goods supplied.
The defendant appel lant firm admitted the issue of the cheque by its Managing partner, but, it denied any privity of contract with the plaintiff firm.
The defendant appellant had its own version as to the reasons and purposes for which the cheque was drawn.
The suit was instituted under the provisions of Order 37 Civil Procedure Code so that the defendant appellant had to apply for leave under Order 37, Rule 2, of the Code to defend.
This leave was granted unconditionally by the Trial Court after a perusal of the cases of the two sides.
Order 37, Rule 3, Civil Procedure Code lays down: "( 1 ) The Court shall, upon application by the defendant give leave to appear and to defend the suit, upon affidavits which dis close such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application.
(2) Leave to defend may be given uncondi tionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise as the Court thinks fit".
A learned Judge of the High Court of Delhi had on a revision application under Section 115 Civil Procedure Code interfered with the order of the Additional District Judge of Delhi granting unconditional leave, after setting out not less than seven questions on which the parties were at issue.
The learned Judge had, after discussing the cases of the two sides and holding that triable issues arose for adjudication, nevertheless, concluded that the defences were not bona fide.
He, therefore, ordered: "For these reasons I would allow the revision petition and set aside the order of the trial Court.
Instead I would grant leave to the defendant on their paying into Court the amount of Rs. 21,265.28 together with interest at the rate of 6 per cent per annum from the date of.
suit till payment and costs of the suit (Only court fee amount at this stage and not the lawyer 's fee).
The amount will be deposited within two months.
There will be no order as to costs of this revision".
The only question which arises before us in this appeal by special leave: Could the High Court interfere, in exercise of its powers under section 115, Civil Procedure Code, with the discretion of the Additional District Judge, in granting unconditional leave to defence to the defendant appellant upon grounds which even a perusal of the order of the High Court shows to be reasonable ? Santosh Kumar vs Bhai Mool Singh(1), was a case where a cheque, the execution of which was admitted by the defend ant, had been dishonoured.
The defendant had set up his defences for refusal to pay.
(1)[1958] SCR 1211 1215.
1062 This Court noticed the case of Jacobs vs Booth 's Distill ery Company(1), where it was held that, whenever a defence raises a really triable issue, leave must be given.
Other cases too were noticed there to show that this leave must be given unconditionally where the defence could not be shown to be dishonest in limine.
This Court observed there (at p. 1215): "The learned Counsel for the plaintiff respondent relied on Gopala Rao vs Subba Rao (AIR , Manohar Lal vs Nanhe Mal (AIR , and Shib Karan Das vs Mohammed Sadiq (AIR 1936 Lah. 584).
All that we need say, about them is that if the Court is of opinion that the defence is not bona fide, then it can impose conditions and is not tied down to refusing leave to.
defend.
We agree with Varadachariar J. in the Madras case that the Court has this third course open to it in a suitable case.
But, it cannot reach the conclusion that the defence is not bona fide arbitrarily.
It is as much bound by judicial rules and judicial procedure in reaching a conclusion of this kind as in any other matter", On general principles, relating to the exercise of jurisdiction of High Courts under section 115, Civil Proce dure Code, several cases were cited before us by Mr. Andley: M.L. Sethi vs
R.P. Kapur(2); The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad & lint.
vs Ajit Prasad Tarway, Manager, (Purchase & Stores), Hindustan Aeronautics Ltd., Balanagar, Hyderabad(3); D.L.F. Housing & Construction Co. Pvt.
Ltd. New Delhi vs Sarup Singh & Ors.
(4); Milkhiram (India) Pvt. Ltd. & Ors.
vs Chamanlal Bros.(5) We need not dilate on the well established principles repeatedly laid down by this Court which govern jurisdiction of the High Courts under section 115 C.P.C.
We think that these principles were ignored by the learned Judge of the High Court in interfering with the discretionary order after a very detailed discussion of the facts of the case by the learned Judge of the High Court who had differred on a pure question of fact whether the defences could be honest and bona fide.
Any decision on such a question, even before evidence has been led by the two sides, is generally hazard ous.
We do not think that it is fair to pronounce a cate gorical opinion on such a matter before the evidence of the parties is taken so that its effects could be examined.
In the case before us, the defendant had denied, inter alia, liability to pay anything to the plaintiff for an alleged supply of goods.
It is only in cases where the defence is patently dishonest or so unreasonable that it could not reasonably be expected to succeed that the exercise of discretion by the Trial Court to grant leave unconditionally may be, (1) (2) ; (3) (4) ; (5) AIR 1965 SC 1698.
1063 questioned.
In the judgment of the High Court we are unable to find aground of interference covered by Section 115 C.P.C.
In Smt.
Kiranmoyee Dassi & Anr.
vs Dr. J. Chatterjee(1), Das.
J., after a comprehensive review of authorities on the subject, stated the principles applicable to cases covered by order 17 C.P.C. in the form of the following propositions (at p. 253): "(a) If the Defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the Defendant is entitled to unconditional leave to defend.
(b) If the Defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the Defendant is entitled to unconditional leave to defend.
(c) If the Defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he has a defence, yet, shews such a state of facts as leads to the infer ence that at the trial of the action he may be able to establish a defence to the plaintiff 's claim the Plaintiff is not entitled to judg ment and the Defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security.
(d) If the Defendant has no defence or the defence set up is illusory or sham or practi cally moonshine then ordinarily the Plaintiff is entitled to leave to sign judgment and the Defendant is not entitled to leave to defend.
(e) If the Defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the Plain tiff is entitled to leave to sign judgment, the Court may protect the Plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise se cured and give leave to the Defendant on such condition, and thereby show mercy to the Defendant by enabling him to try to.
prove a defence".
The case before us certainly does not fall within the class (e) set out above.
It is only in that class of case that an imposition of the condition to deposit an amount in Court before proceeding further is justifiable.
, 253.
1064 Consequently, we set aside the judgment and order of the High Court and restore that of the Additional District Judge.
The parties will bear their own costs.
Appeal allowed.
| IN-Abs | The appellant issued the respondent a cheque which was dishonoured.
The respondent alleged that the cheque was the consideration for goods supplied.
The appellant admitted issuing the cheque but denied by privity of contract.
The respondent filed a suit under order 37 C.P.C., and the appellant applied for the required leave to defend, which was granted by the trial Court unconditionally.
On revision under section 115 C.P.C., the High Court held that triable issues arose for adjudication.
, but, it considered the defence to be dishonest.
If allowed the revision petition and gave conditional leave to defend on the ground that the defences were not bona fide.
Allowing the appeal, the Court HELD: It is only in cases where the defence is patently dishonest or so unreasonable that it could not reasonably be expected to succeed that the exercise of discretion by the Trial Court to grant leave unconditionally may be questioned.
In other cases, it is not fair to pronounce a categorical opinion on such a matter before the evidence of the parties is taken so that its effects could be examined.
High Court 's interference under sec.
115 C.P.C. with the correct exercise of its discretion by the trial Court was patently erroneous.
11062 Santosh Kumar vs Bhai Mool Singh ; at 1215, Jacobs vs Booth 's Distillery Co. followed.
Kiranmoyee Dassi and another vs Dr. J. Chatterjee ,at 253) distinguished.
M.L. Sethi vs
R.P. Kapur ; The Managing Director (MIG) Hindustan Aeronautics Ltd. Bulana gar, Hyderabad & A nr.
vs A Ajit Prasad Tarway, Manager (Purchase and Stores).
Hindustan Aeronautics Ltd. Balanagar, Hyderabad (AIR ; D.L.F. Housing & Construction Co. Pvt. Ltd., New Delhi vs Sarup Singh & Ors.
[1970] 2.
S.C.R. 368; and Milkhiram (India) (P) Ltd. and Ors.
vs Chamanlal Bros. (AIR 1965 SC 1998) referred to.
|
Civil Appeal No. 1798 of 1968.
(From the Judgment and Decree dated 16.6.1966 of the Bombay High Court in Appeal No. 13/62) V.S. Desai & M.N. Shroff for the appellants.
A.G. Ratnaparkhi, for the respondent.
The Judgment of the Court was delivered by RAY, C.J.
This appeal by certificate is from the judgment dated 16 June, 1966 of the High Court at Bombay (Nagpur Bench).
The respondent filed this suit against the State claim ing that the order dated 1 March, 1955 in Revenue case declaring Gajanan Maharaj Sansthan of Mangrul Dastagir to be a public trust be set aside.
The plaint was filed under section 8 (1) of the Public Trust Act (M.P. Public Trusts Act 1951) against the State of Madhya Pradesh and the Regis trar of Public Trust, Amraoti.
It is admitted by the parties that no notice under section 80 of the Code of Civil Procedure was given.
The defendants took the plea that the suit was liable to be dismissed by reason of no notice under section 80 of the Code of Civil Procedure having been given. 994 The Additional District Judge by his order dated 26 March, 1957 held a notice under section 80 of the Code of Civil Procedure was necessary and the suit was not maintain able and ordered the dismissal of the Suit.
The respondent filed an appeal.
The learned Single Judge agreed with the view of the Additional District Judge.
A Letters Patent Appeal was filed.
The matter was placed before a Full Bench.
The Full Bench held that the provisions of section 80 of the Code of Civil Procedure had No. application to a suit filed under section 8 of the Madhya Pradesh Public Trusts Act, 1951 (hereinafter referred to as the Act).
This Court in Sawai Singhai Nirmal Chand vs Union of India(1) held that notice under section 80 is necessary for setting aside orders of attachment and sale of property.
The provisions contained in section 8 of the Act indi cate that the suit contemplated there is against the Public Officer in his official capacity within the meaning of section 80 of the Code of Civil Procedure.
The provisions of section 80 of the Code of Civil Proce dure are express, explicit and mandatory.
See Bhagchand Dagadusa vs Secretary of State for India in Council and others(2).
The Registrar in the present case held it to be a public trust.
The declaration sought for in this suit is that this is not a public trust.
The High Court was wrong in holding that the suit under section 8 of the Act cannot be regarded as a suit against the Government.
The Full Bench held that neither the Government nor the Registrar was competent to give any relief to any person who felt aggrieved by the order of the Registrar.
The following provisions of the Act are important to be noticed.
The Collector shall be the Registrar of Public Trusts in respect of every public trust the principal office or the principal place of business of which is situate in his district.
Within three months from the date on which section 4 comes into force in any area or from the date on which a public trust is created, the working trustee of every public trust shall apply to the Registrar having jurisdiction for the registration of the public trust.
On receipt of an application the Registrar shall make an inquiry as contemplated in section 5 of the Act.
The Regis trar then shall record his finding with reasons.
The Regis trar shall cause entries to be made in the register.
Any person aggrieved by any finding of the Registrar may within six months from the date of the publication of the notice institute a suit in a civil court to have such finding set aside or modified.
In every such suit, the civil court shall give notice to the State Government through the Regis trar, and the State Government, if it so desires, shall be made a party to the suit.
All monies belonging to a public (1) ; (2) 54.I.A. 338.
995 trust shall be kept in a Scheduled Bank.
No sale, mortgage, exchange or gift of any immoveable property and no lease for a period exceeding seven years in the case of agricultural land or for a period exceeding three years in the case of non agricultural land or a building belonging to a public trust, shall be valid without the previous sanction of the Registrar.
The Budget of every public trust where the gross annual income of which exceeds one thousand rupees shall be submitted to the Registrar.
The Registrar shall have powers to enter on and inspect or cause to be entered on and in spected any property belonging to a public trust, or to call for any return, statement, account or report as contem plated in section 22 of the Act.
If the Registrar finds any defects in the administration of the public trust the Registrar may require the working trust as to submit an explanation.
The Registrar has power as contemplated in section 26 of the Act to direct the trustee to apply to court for directions in certain cases.
If the trustee fails to do so the Registrar shall himself make an application.
The State Government may make rules for the purposes men tioned in the Act.
These provisions indicate that the Registrar is a Public Officer.
The word? "act purporting to be done in official capacity" have been construed to apply to non feasance as well as to misfeasance.
The word "act" extends to illegal omissions.
See Prasaddas vs Bennerjee(1).
No distinction can be made between acts done illegally and in bad faith and acts done bona fide in official capacity.
See Bhagchand Dagadusa 's case (supra).
Section 80 of the Code of Civil Procedure therefore is attracted when any suit is filed against a Public Officer in respect of any act pur porting to be done by such Public Officer in his official capacity.
The language of section 80 of the Code of Civil Proce dure is that a notice is to be given against not only the Government but also against the Public Officer in respect of any act purpoting to be done in his official capacity.
The Registrar is a Public Officer.
The order is an act purport ing to be done in his official capacity.
In the present case, the suit is to set aside the order made by a Public Officer in respect of an act done in the discharge of his official duties.
Therefore, notice under section 80 of the Code of Civil Procedure was required.
For the foregoing reasons the judgment of the High Court is set aside.
Parties will pay and bear their own costs.
M.R. Appeal al lowed.
| IN-Abs | The respondent filed this suit against the order of the Registrar of Public Trust, Amraoti, declaring the Ganjanan Maharaj Sansthan of Mangrul Dastagir to be a public trust.
The Additional District Judge 's order dismissing the suit, was Upheld in appeal by the Single judge of the High Court on account of the respondent 's failure to serve a notice under section 80 C.P.C.
Allowing a Letters Patent Appeal, a Full Bench of the High Court held that section 80 C.P.C. was not applicable to suits filed under section 8 of the (M.P.) Public Trusts Act, 1951.
Allowing the appeal, the Court HELD: Section 8 of the Act indicates that the suit contem plated there is against the public officer in his official capacity within the meaning of Section 80 of the Code of Civil Procedure.
The words "Act purporting to be done in official capacity" apply to non feasance as well as to misfeasance.
No distinction can be made between acts done illegally and in bad faith and acts done bonafide in offi cia1 capacity.
[994 C, 995 D] Sawai Singhai Nirmal Chand vs Union of India ; referred to.
Bhagchand Dagadusa vs Secretary of State for India in Coun cil and others , Prasaddas vs Bennerjee I.L.R. , applied.
|
Appeal No. 1118 of 1973.
(From the Judgment and Order dated 30 3 1973 of the Rajasthan 'High Court in Election Petition No. 5/72).
B.L. Bhargava, S.N. Bhargava, S.K. Jain, I. Makwana and S.M. Jain, for the Appellant.
G.N. Lodha, J.S. Rustogi and S.S. Khanduja for the Respond ent.
The Judgment of the Court was delivered by CHANDRACHUD, J.
In the general elections to the Rajasthan 'Legislative Assembly held in March 1972 from the Ganganagar constituency, the respondent who was sponsored by the Samyukt Socialist Party defeated the appellant, a Congress (R) candidate, by over 22000 votes.
The appel lant filed Election petition No. 5 of 1972 in the Rajasthan High Court challenging the election of the respondent on the ground of corrupt practices committed by him and his election agent Bhragirath Singh.
The petition having been dismissed the election petitioner has filed this appeal under section 116A of the Representation of the People Act, 1951.
We are concerned in this appeal with two corrupt prac tices said to have been committed by the respondent.
It is alleged, firstly, that a pamphlet (exhibit 1 ) was distributed by the respondent and his election agent in a meeting held on February 23, 1972 at Nehru Park, Ganganagar.
The second corrupt practice alleged against the respondent is that several copies of a weekly newspaper called "Patal Shakti" dated February 27, 1972 containing a scurrilous editorial were distributed by the respondent and his election agent at a meeting of the Socialist 'Party held a, Public Park, Ganganagar on the 27th.
4 The editorial is also said to have been read out in the meeting by one Vijay Kumar Talwar.
The allegations con tained in the editorial and in the pamphlet (exhibit 1) to which the editorial refers are indisputably defamatory of the appellant.
The editorial (exhibit 2) contained in the Patal Shakti is alleged to have been written at the instance of the respondent and in a manner, paid for by him.
This appeal had come up for hearing on August 6, 1975 when by consent of parties two additional issues were remit ted by this Court to the High Court, with liberty to the parties to lead evidence on those issues.
The first issue was whether the pamphlet (exhibit 1) was .printed at the in stance and with the consent of respondent and whether the payment for that pamphlet was made by his election agent Bhagirath Singh.
The second issue remitted to the High Court was whether the editorial (exhibit 2) in Patal Shakti was read over in the meeting of February 27, 1972, by Vijay Kumar Talwar in the presence of the respondent.
By its judgment dated April 8, 1976, the High Court after consider ing the fresh evidence led by the parties held in favour of the respondent on both the issue.
Those findings are chal lenged by the appellant in this appeal.
The appeal is devoid of substance and this we feel constrained to say in spite of a careful argument advanced on behalf of the appellant by Shri M.B.L. Bhargava.
In view of some of the fundamental circumstances to which we will presently refer, it is unnecessary to discuss fully the evidence of each one of the witnesses examined by the par ties on the two corrupt practices attributed to the respond ent.
It is a matter of common occurrence in election peti tions that parties manage to collect a large volume of oral evidence in support of the allegations of corrupt practice.
Very often, the allegations are concocted and are attempted to be established with the evidence of partisan witnesses.
On rare occasions when the allegations are true untrue evidence is led to strengthen the charges.
Several witnesses were examined by the appellant for proving that in a meeting held on February 23, 1972 the pamphlet (exhibit 1) was distributed by the respondent and his election agent.
We agree with the learned counsel for the appellant that the High Court should not have brushed aside the evidence of those witnesses on the mere ground that they belonged to the same party as the appellant or were otherwise interested in his success in the election.
Interested witnesses are not necessarily false witnesses though the fact that the witness has a personal interest or stake in the matter must put the court on its guard.
The evidence of such witnesses must be subjected to a closer scrutiny and indeed the court may in a given case be justi fied in rejecting that evidence unless it is corroborated from an independent source.
But the reasons for corrobora tion must arise out of the context and texture of evidence.
Even interested witnesses may be interested in telling the truth to the court and therefore the court must assess the testimony of each important witness and indicate its reasons for accepting or rejecting it.
A broad and general comment that a particular witness is an election agent of a candi date and cannot therefore be relied upon is not a judicial assessment of evidence.
5 Evidence can be assessed only after a careful analysis.
Since the High Court has, by and large, rejected the evi dence led by the appellant on the omnibus ground that the witnesses are interested, we have gone through the relevant evidence with the help of the respective counsel.
It is on a careful consideration of that evidence that we reached the conclusion that it is impossible to accept the allega tion of corrupt practice made against the respondent.
The first allegation against the respondent is that he and his election agent Bhagirath Singh distributed the pamphlet (exhibit 1) in a meeting held on February 23, 1972 at the Nehru Park, Ganganagar that meeting was addressed by the Prime Minister and over a lakh of people were present.
It is fantastic to think that on the heels of such a largely attended meeting convened under the auspices of the rival party, the respondent and his election agent would be so foolish as to distribute a scandalous pamphlet of the type in issue.
It is also difficult to believe that none of the recipients of this highly defamatory document took any action after receiving it.
In a town seized by election fever, the poll being just a few days ahead, it is impossi ble that even rival partymen looked at the incident with such cool unconcern.
Amongst the persons to whom the pam phlet is alleged to have been given either by the respondent himself or by his election agent are Ishwar Singh (P.W. 7) and Arjun Singh (P.W. 20).
Ishwar Singh was.
an Additional District Magistrate whereas Arjun Singh was.
the Circle Officer.
Both of these gentlemen were present at the meeting at Nehru Park in their official capacity for ensur ing peace and order.
It strains one 's credulity to believe that the respondent 'and his election agent would take the imprudent risk of distributing the pamphlet to these high Government officers.
Neither Ishwar Singh nor Arjun Singh was able to produce a copy of the pamphlet nor indeed did either of them take any steps whatsoever after the alleged receipt of the Pamphlet.
Bhagirath Singh, the election agent of the respondent, is an advocate by profession while the respondent had won three consecutive Assembly elections in 1962, 1967 and 1972.
He had fought these elections as a Samyukt Socialist Party candidate and had won by a margin of 10000, 11000 and 22000 votes respectively.
It is impossible in the very nature of things that these two old hands would, so openly and incontrovertibly, lend an easy ground for the success of a possible election petition.
The additional issue on which a finding was called for by this Court is whether the payment for the pamphlet was made by Bhagirath Singh.
It is amusing that in spite of a fresh opportunity accorded by this Court to the appellant to prove his case, what he did was to lead evidence to make nonsense of the additional issue.
Instead of showing that.
the charges of printing.
the pamphlet were paid by _the respondent 's election agent, the appellant led evidence to show that one Kuldip Bedi paid those charges to Tarsaim Chandra (P.W. 24) who is alleged to have printed the pam phlet.
Tarsaim Chandra did not produce any receipt for the payment and offered the flimsy explanation that he had given his printing press for running to a person called Mehar Singh who had not returned to him the records of the press.
The appellant had cited Kuldip Bedi as a witness but did not examine 6 him and the appellant 's counsel conceded fairly that there is no evidence on the record to show that Kuldip Bedi bears any connection with the respondent.
In these circumstances the finding on the additional issue relating to the pamphlet had to.
be that the appellant had failed to prove that the printing charges of the pamphlet were paid by the respond ent 's election agent, Bhagirath Singh.
Others who speak of the distribution of the pamphlet are the appellant himself (P.W. 1 ), Khetpal ( P.W. 10), Gulab Rai (P. W. 11), Devi Datt (P.W. 12), Nathuram (P.W. 13) and Madan Lal Kanda (P. W. 16) besides of course Ishwar Singh, the Additional District Magistrate (P.W. 7) and Arjun Singh the Circle Officer (P.W. 20).
The evidence of these witnesses has been rejected by the High Court and for reasons which we have mentioned above we feel that the High Court was perfectly justified in refusing to place reliance on the evidence of these interested witnesses who told an utterly incredible story to the court.
Accordingly, the charge that the respondent and his election agent dis tributed the pamphlet (exhibit 1) must fail.
Coming to the second charge of corrupt practice, the case of the appellant is that the editorial which appeared in the "Patal Shakti" of February 27 was written at the instance of the respondent and that the issue of the news paper was read and distributed at a meeting of the Socialist Party which was held at Public Park, Ganganagar, on the 27th itself.
The matter contained in the editorial is highly defamatory and we entertain but little doubt that anyone who reads the editorial would carry an ugly impression of the appellant 's political image.
But the question for decision is whether the respondent is responsible for the publica tion and whether as stated in additional issue No, 2 which was remanded to the High Court, the editorial was read over by Vijay Kumar Talwar in the meeting of the 27th in the presence of the respondent.
One Gyan Devi Talwar, the mother of Vijay Kumar Talwar, is styled as the "Sanchalika" or the Director of Patal Shakti.
Raj Kumar Sethi is said to be the Chief Editor of the weekly, while Vijay Kumar Talwar is an Assistant Editor.
Learned Counsel for the appellant has naturally placed great reliance on the evidence of Raj Kumar Sethi (PW. 5) who, being the Chief Editor of the newspaper, should be in the best position to know whether the defamatory matter which appeared in the issue of February 27 was inserted at the instance.
of the respondent.
A large number of wit nesses were examined by the appellant on this question, the more important of them being the appellant himself (P.W. 1), Raj Kumar Sethi (P.W. 5), Madan Lal Kanda (P.W, 10), Radhey Shyam (P.W. 17), Om Prakash (P.W. 18), Harbeant Singh (P.W. 21), Banwari Lal (P.W. 22) and Avinash (P.W. 23).
These witnesses, we feel no doubt, have concocted an utterly false story as will be transparent from the following cir cumstances.
On February 18, 1972 a meeting of about 300 Congress workers was held in the Block Congress Committee, Gangana gar.
The proceedings of that meeting are recorded in the minutes, exhibit A/24, which 7 were produced by Kesho Ram Garg (P.W. 12), who has been the Secretary of the Congress Committee since 1975.
The appellant 's counsel objected to the admissibility of the document but no such objection having been taken in the trial court, we are unable to entertain it here.
The minutes show that the meeting was attended amongst others by Gyan Devi Talwar, Raj Kumar Sethi (P.W. 5), Madan Lal Kanda (P.W. 16), Om Prakash (P.W. 18), Harbeant Singh (P.W. 21), Banwari Lal (P.W. 22), Chand Ram Sherwal, one of the Assistant Editors of Patal Shakti and by Manphool Singh an ex Deputy Minister in Rajasthan who is the brother of the appellant.
The meeting resolved unanimously to support the candidature of the appellant.
In this context it is diffi cult to believe that the newspaper of which Gyan Devi Talwar was the Director and Raj Kumar Sethi is its Chief Editor could possibly be persuaded to print and publish an editori al so highly defamatory of a candidate in whose success they were so keenly interested.
The second circumstance which has an important bearing on this question is that on Febru ary 20, 1972 Gyan Devi Talwar had called a meeting of Trade Union Workers for supporting the appellant 's candida ture.
That meeting was attended, amongst others, by Raj Kumar Sethi and Vijay Kumar Talwar, the main speaker being Gyan Devi herself.
The weekly, 'Patal Shakti ' was started on the eve of the elections on January 26, 1972 the object of starting the journal being obviously to undertake an election campaign on behalf of the Congress (R) candidates.
Seeing that persons closely connected with the journal had taken a prominent part in the appellant 's election campaign, it is absurd to think that 'these very persons would be parties to the printing and publication of the editorial.
Raj Kumar Sethi says in his evidence that the respondent paid him 200 rupees as the price of the publication and this is attempted to be corroborated by the production of the counterfoil of a receipt showing that the newspaper had received 200 rupees from the respondent on the 27th.
The receipt, however, apart from being otherwise uninspiring says that the amount was paid for charges of an advertise ment.
The argument of the appellant 's counsel that the editorial was in the nature of an advertisement in favour of the respondent is too naive for our acceptance.
Besides, it is not likely that the respondent would pay Rs. 200 under a receipt and create evidence against himself to show that he was a party to the defamatory publication.
Raj Kumar Sethi has perjured himself on several impor tant points.
In his enthusiasm to support the cause of the appellant, he said his evidence 'that copies of the news paper were distributed in a meeting held at Nehru Park.
The election petition speaks of a meeting in Public Park and it is common ground that the two places are distinct and separate.
Raj Kumar Sethi 's sense of honour can be as sessed in reference to the fact that a creditor had to file a suit for a paltry sum of Rs. 450 against him and after a decree was passed in that , suit execution proceedings had to be commenced to recover the amount.
8 It is alleged by the appellant that on seeing 'the editorial he sent a letter, exhibit 8, on the 27th itself to Raj Kumar Sethi asking him to explain at whose instance the editorial was published.
Raj Kumar wrote a reply (exhibit 3) on the very next day stating that the editorial was published at the instance of the respondent and that the respondent had asked him to publish the editorial on his responsibili ty.
Both exhibit 3 and exhibit 8 are got up documents prepared for supporting the appellant 's case that the editorial was published at the instance of the respondent.
We have already indicated that in the very nature of things it is impossible that Raj Kumar Sethi, Gyan Devi Talwar and Vijay Kumar Talwar who were interested in the success of the appellant would permit a publication, so highly defamatory of the appellant.
There is an extremely interesting aspect of this matter to which we must refer.
During the pendency of the election petition on October 23, 1972 Raj Kumar Sethi made an affi davit stating that he was an active member of the Congress, that he had supported the appellant in the elections held in 1972, that the letter (exhibit 3) was sent by him to the appel lant on the insistence of the appellant and that it was utterly false that the respondent had asked him to publish the editorial.
Confronted by this affidavit, to which his attention was pointedly drawn in cross examination, he trotted out the story that his lawyer, Kesho Ram Garg, had taken the affidavit from him by making a misrepresentation that the document was a deed of compromise.
Raj Kumar Sethi says that he put his signature on the document in the belief that the representation made by his lawyer was true.
In one part of his evidence he said that he had put his signature on the document voluntarily, believing in the representation made by his lawyer.
Quite a different version was given by him later that he was forced to sub scribe to the document.
How false the story is can be judged from the fact that Kesho Ram Garg, who is alleged to have deceived him, was still representing him in the execu tion petition filed against him.
The witness had the temerity to write a letter, exhibit A/3, to the Chief Justice of Rajasthan complaining that an affidavit was obtained from him by fraud and misrepresentation.
It is obvious that the witness was pliable and could for consideration be made to say different things at different times.
The evidence of the appellant Birbal Singh suffers from equally serious infirmities.
He speaks of the distribution of the newspaper in a public meeting held on the 22nd at Public Park but in the election petition, as originally flied, his case was that the newspaper was distributed throughout Ganganagar.
The election petition also mentioned that the editorial was read at the meeting but the allega tion that it was distributed to several hundred persons is a later improvement.
The meeting at which the newspaper was distributed was held under the auspices of the Socialist Party which renders it unlikely that the appellant had at tended the meeting.
And if the appellant was present it the meeting, it seems to us strange that even after noticing that he defamatory matter which had appeared in the morn ing 's editorial was being freely distributed, he left the meeting without a protest.
It is interesting that the appellant did not say in his exami nation in chief that he attended the particular meeting in which the newspaper was distributed.
It occurred to him for the first time in his cross examination to say that he was present at the meeting and was an eye witness to the distribution of the newspaper.
exhibit 5, which is a draft of the editorial, is said to be in the hand of Chand Ram Sherwal, an Assistant Editor of Patal Shakti.
Chand Ram was not examined in the case.
Chand Ram was present in the meeting of the 18th February which unanimously supported the candidature of the appel lant.
This makes it difficult to believe that he would write.
out the draft so highly defamatory of the appellant.
Why Vijay Kumar Talwar who was also interested in the appel lant 's election and who is the son of the Director of the newspaper should sign the draft is more than we can under stand.
The evidence of the other witnesses like Madan Lal Kanda, Radhey Shyam, Om Prakash, Harbeant Singh, Banwari Lal and Avinash can carry the matter no further except perhaps to show that not one or two but several witnesses conspired to create false evidence to show that the editorial which appeared in the Patal Shakti of February 27, 1972 was written at the instance of the respondent and that Vijay Kumar Talwar read it out in a public meeting.
Accordingly, we are in entire agreement with the High Court that no reliance can be placed on the testimony of the witnesses examined by the appellant to prove the charges of corrupt practice against the respondent.
Not only are the charges not proved beyond a reasonable doubt, but we are of the opinion that there is no substance whatsoever in the charges.
Consequently, we confirm the judgment of the High Court and dismiss the appeal with costs.
P.H.P. Appeal dismissed.
10 MUNICIPAL CORPORATION OF DELHI V. SURESH CHANDRA JAIPURIA & ANR.
November 3, 1976 [A. N. RAY, C.J., M.H. BEG AND JASWANT SINGH, JJ.] Civil Procedure Code Sec.
115 Concurrent decisions on question of interference by High Court, whether justified section 41 (h) application.
The respondent purchased a house, and under the sate deed became responsible for paying the house tax subsequent to the purchase.
On his failure to pay the same, the appel lant corporation started proceedings against him for the realisation of dues.
In the course of a suit for permanent injunction, the respondent 's application for an interim injunction was rejected by two courts.
On further appeal, the High Court granted him interim injunction on the ground that there was a prima facie case even though agreeing with the appellate court that the balance of convenience was against such grant.
Allowing the appeal the Court HELD: 1.
Section 41 (h) of the , lays down that an injunction, which is a discretionary equitable relief, cannot be granted when an equally effica cious relief is obtainable in any other usual mode or pro ceedings except in cases of breach of trust.
[13E F] 2.
While exercising its jurisdiction under section 115 the High Court is not competent to correct assumed erroneous findings of fact.
The High Court had itself erred plainly both in holding that the courts below had not taken a cor rect view of the prima facie case which existed here and that the question of balance of convenience was irrelevant.
[12C D, 13F G] 3.
High Court had overlooked legally possible grounds of interference under section 115 C.P.C. [14 A B] Baldevdas Shivlal & Anr.
vs Filmistan Distributors (India) P. Ltd. & Ors. ; ; D.L.F. Housing and Construction Co. P. Ltd. New Delhi vs Sarup Singh & Ors., ; ; The Managing Director (MIG) Hindustan Aeronotics Ltd. Balanagar, Hyderabad & Anr.
vs Ajit Prasad Tarway, Manager (Purchase and Stores) Hindustan Aeronotics Ltd. Balanagar, Hyderabad, ; applied.
M/s Mechelec Engineers & Manufacturers vs M/s Basic Equipment Corporation ; referred to.
Dewan Daulat Ram Kapur vs New Delhi Municipal Committee & Anr.
ILR 1973 (1) Delhi 363 distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1202 of 1976.
Appeal by Special Leave from the Judgment and Order dated the 21st Feb. 1975 of the Delhi High Court in Civil Revision No. 479 of 1974.
F.S. Nariman, B.P. Maheshwdri and Suresh Sethi, for the Appellant.
11 Mahendra Narain Advocate of Rajendra Narain & Co., for the Respondent.
The Judgment of the Court was delivered by BEG.
After issuing a notice to show cause why special leave should not be granted, this Court granted, on 13th October, 1976, the leave prayed for to appeal against the judgment and order of a learned Judge of the Delhi High Court.
That Court had interfered under Section 115 Civil Procedure Code, with the concurrent findings of the Trail Court and the Appellate Court in this case that, as the plaintiff could not make out a prima facie case, no interim injunction could be granted to the respondent to restrain the appellant, the Municipal Corporation of Delhi, from realising a sum of Rs. 27,216/on account of house tax from the plaintiffs pending the disposal of a suit for a perma nent injunction.
This Court directed a hearing of this appeal on 28th October, 1976.
Accordingly, the appeal is now before us.
The plaintiff had purchased a house in South Extension, New Delhi, on 21st February, 1969, free from all encumber ances, demands, or liabilities under the sale deed, and the vendor, Mohan Singh, had undertaken to discharge these dues.
It was, therefore, decided in a previous suit that the defendant appellant could not recover the whole amount sought to be recovered as house tax from him.
The respondent was absolved from liability for the period before the sale.
But, the plaintiff was liable to pay the tax for the period after the purchase.
He had also paid Rs. 6,992/ .
It appears that proceedings for realisation of dues subsequent to the purchase had then been taken by the appellant corporation.
The plaintiff 's suit for a permanent injunc tion was brought on the ground that this assessment of house tax had proceeded on an erroneous basis.
It is matter of admission between the parties that the house on which the house tax was levied had not been let to any tenant since its construction.
The Trail Court had found that, from the plaintiff 's statement of accounts of tax, it appeared that the demand which was being recovered from him was in respect of the period subsequent to 31st March.
1969 and was based on a rateable value of Rs. 37800/per annum which had been provisionally adopted subject to results of proceedings in Courts of appropriate jurisdic tion as to what the correct basis of assessment was.
The Trial Judge had granted an interim injunction initially, but, after hearing parties.
had vacated it on 18th October, 1973, as he had found that no prima facie case was made out to grant it.
On an appeal by the plaintiff, the Appellate Court, after considering all the questions raised before it, dis missed the appeal.
It gave the following finding on the question of balance of convenience raised before it: "The balance of conveniences is also in favour of the defendant.
The defendant renders services as a civic body most of the amount which it spends has to come from 12 owners of property in.the form of property taxes.
If the plaintiffs do not pay the property tax then the defendant might not be able to carry out its duty.
The plaintiffs have also been unable to show that they would suffer irreparable injury if an injunction is not granted.
to them.
If they ultimately prove that they are not liable to pay full amount demanded by the defendant as property tax then the plaintiffs could compel the defendant either to refund the amount realised in excess or to adjust the mount recovered in excess towards property tax for future years.
The plaintiffs do not suffer irreparable injury if they arc not granted the temporary injunction.
" The High Court, while agreeing with the view of the Appellate Court that the balance of convenience was in favour of discharging the interim injunction, held that, as there was a prima facie case that the assessment had been erroneously made, the principle of balance of convenience did 'not apply here.
The learned Judge thought that the principles of assessment applicable to such cases had been already laid down by the Full Bench of the Delhi High Court in Dewan Daulat Ram Kapur vs New Delhi Municipal Committee & Anr.(C) He observed: "One of the principles laid down by the Full Bench decision is theft where premises were never let at any time, Annual value be fixed in accordance with section 6(1i (A) (2) (b) or section 6(1) (B) (2) (b) by ascertaining market value of land and reasonable cost of construction.
The facts noticed above, but missed by the Courts below, prima facie establish that the property was never let out; the prima facie materials which are available, inclusive of what the D.M.C. itself had conceded, show the plaintiffs were occupy ing the property for their own use.
The plaintiffs ' case therefore, prima facie, falls within the above principle.
Failure to perceive the above had resulted in the Courts below declining to exercise jurisdiction vested in them in the manner it should have been exercised".
Hence, the learned Judge interfered and granted the interim injunction prayed for by the plaintiff.
Mr. F.S. Nariman, appearing for the appellant Corpora tion, ' points out that Dewan Daulat Ram Kapur 's case (supra) was one where premises had been let, but, in the case before us, it was a matter or admission by both sides that the premises had never been let out to a tenant.
Section 6(1) (A) (2) (b) of the Delhi Rent Control Act relates to cases where standard rent has to be fixed of residential premises let out at any time on or after 2nd June, 1944.
And, Section 6(1) (B) (2) (b) of the Delhi Rent Control Act relates to premises other than residential premises which had been let out at any time after 2nd June, 1944.
The Full Bench deci sion of the Delhi High Court in Dewan Daulat Ram Kapur 's case (supra) (1) I.L.R. 1973 (1) Delhi p.363.
13 was that it was not incumbent on the Corporation to ascer tain the hypothetical standard rent of premises in accord ance with the provisions of the Rent Act in order to fix the annual value or rateable value where premises had been let but no standard rent had been fixed and assessment was sought to be made on the basis of agreed rent.
It was also decided there that in eases before the High Court on that occasion, reasonable cost of construction as well as the market price of land to be taken into account in assessing the property tax.
It is difficult for us to, see what bearing the provi sions cited from the Delhi Rent Control Act or the Full Bench decision of the High Court could have on the case now before us.
It seems 10 us that Mr. Nariman is correct in submitting that the learned Judge of the High Court had himself misapprehended the law in holding that the Courts below had failed to.
find a prima facie case because of a misconception of law.
However as no one has appeared on the date of the final hearing on behalf of the respondent, who had appeared through Counsel to answer the show cause notice issued by this Court before granting special leave, we refrain from deciding the question whether the provisions cited by the learned Judge of the Delhi High Court have any bearing on the case before us or not.
This is a matter which will be decided in the suit itself.
We, therefore, leave it expressly open for determination.
Mr. Nariman, learned Counsel for the Corporation, is we think, on very firm ground in contending that balance of convenience could not be ignored in such cases and that the learned Judge of the High Court erred in holding that it could be.
It also seems that the attention of the learned Judge was not directed towards section 41 (h) of the , which lays down that an injunction, which is a discretionary equitable relief, cannot be granted when an equally efficacious relief is obtainable in any other usual mode or proceeding except in cases of breach of trust.
Learned Counsel for the appellant Corporation points out that there was the ordinary machinery of appeaL, under section 169 of the Delhi Municipal Corporation Act, 1957, open to the assessee respondent.
It had not even been found that the respondent was unable to deposit the necessary amount before filing the appeal.
However, we abstain from deciding the question whether the suit is barred or not on this ground.
All we need say is that this consideration also has a bearing upon the question whether a prima facie case exists for the grant of an interim injunction.
In M/s. Mechelec Engineers & Manufacturers vs M/s. Basic Equipment Corporation(D, also we found very recently that, as in the ease before us now, a learned Judge of the Delhi High Court had overlooked the principles governing interference under Section 115 Civil Procedure Code laid down by this Court in Baldevdas Shivlal & Anr.
vs Filmistan Distributors (Indict) (P) Ltd. & Ors.(2); D.L. Housing & (1) [1977] I S,C.R. 1060.
(2) ; 14 Construction Co. Pvt.
Ltd. New Delhi vs Sarup Singh & Ors(1).
; The Managing Director .(MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad & .Anr.
Ajit Prasad Tarway, Manager (Purchase & Stores) Hindustan Aeronautics Ltd., Balanagar, Hyderabad.(2).
We direct the attention of the learned Judges concerned to the law declared by this Court.
We allow this appeal and set aside the judgment and order of the Delhi High Court and restore that of the Appellate Court.
The parties will bear their own costs in this Court.
M.R. Appeal allowed.
| IN-Abs | In the Rajasthan Legislative Assembly elections held in March,1972, the respondent defeated the appellant by a margin of over 22000 votes.
The appellant filed an elec tion petition in the Rajasthan High Court challenging the election of the respondent alleging that the respondent and his election agent committed the following corrupt prac tices.
(1) A pamphlet containing defamatory and false statements touching the personal character of the appellant was distributed by the respondent and his election agent in a meeting on 23 2 72 at Nehru Park.
(2) Several copies of a Weekly newspaper called Patal Shakti dated 27 2 1972 containing a scurrilous editorial were distributed by the respondent and his election agent at a meeting of the Socialist Party held at Public Park on 27 2 1972.
The High Court dismissed the election petition filed by the appellant.
The High Court discarded the evidence of the appellant 's witnesses on the ground that they were interest ed witnesses.
This Court by consent of parties remitted the following two additional issue to the High Court with liberty to the parties to lead evidence on those issues.
(1) Whether the pamphlet was printed at the instance and with the consent of the respondent and whether the payment for that pamphlet was made by his election agent ? (3) Whether the editorial in Patal Shakti was read over in the meeting of 27 2 1972 by Vijay Kumar Talwar in the presence of the respondent.
The High Court after remand held in favour of the respondent on both the issues.
Dismissing the appeal under section 116A of the Repre sentation of the People Act, 1951, HELD: 1.
It is matter of common occurrence in election petitions that parties manage to collect a large volume of oral evidence in support of allegations of corrupt practice.
Very often, the allegations are connected and are attempted to be established with the evidence of partisan witnesses, On rare occasions when the allegations are true, untrue evidence is led to strengthen the charges.
[4D E] 2.
The High Court should not have brushed aside the evidence of the appellant 's witnesses merely on the ground.
that they belong.to the, same party as the appellant or that they were otherwise interested in his success in the 2 1458SCI/76 2 election.
Interested witnesses are not necessarily false witnesses though the fact that the witness has a personal interest or stake in the matter must put the court on its guard.
The evidence of such witnesses must be subjected to a closer scrutiny and the Court may in a given case be justified in rejecting that evidence unless it is corrobo rated from an independent source.
The reasons for corrobo ration must arise out of the context and the texture of evidence.
Even interested witnesses may be interested in telling the truth to the Court and, therefore, the Court must assess the testimony of each important witness and indicate its reasons for accepting or rejecting it.
A broad and general comment that a particular witness is an election agent of a candidate cannot therefore be relied on is not a judicial assessment of evidence.
Evidence can be assessed only after a careful analysis.
[4F H] 3.
Since the High Court rejected the evidence of the appellant on the omnibus ground that the witnesses were interested, this Court went through the relevant evidence and on a consideration of that evidence came to conclusion that it is impossible to accept the allegations of corrupt practice made against the respondent.
[5A B] 4.
The allegations that the respondent and his agent distributed the pamphlet in the meeting held at the Nehru Park was disbelieved by this Court on the following grounds: (a) The meeting was addressed by the Prime Minister and over a lakh of people were present.
It is fantastic to think that in a meeting called by the rival party which was so largely attended the respondent and his election agent would be so foolish as to distribute a scandalous pamphlet.
(b) None of the recipients of the highly defamatory document took any action after receiving it.
(c) It is impossible to accept the allegation of the appellant that the pamphlets were distributed to the Additional District Magistrate and the Circle Officers who were present at that meeting in their official capacity.
(d) Neither the Additional District Magistrate nor the Circle Officer produced a copy of the pamphlet nor did they take any action on the pamphlet.
(e) The election agent of the respondent is an advocate and the respondent had won 3 consecutive assembly elections by a good margin.
It is impossible that these two old hands would so openly and incontrovertibly lend an easy ground for the success of a possible election petition.
(f) Although the matter was remanded no proper evidence was led by the appellant.
The appellant tried to lead evidence on facts which even if proved would not decide the issue in his favour.
[5B H, 6A C] 5.
The Court negatived the appellant 's contention that the editorial was published with the consent of the respond ent or his agent for the following reasons: (a) Gyan Devi Talwar the mother of Vijay Kumar Talwar is styled as the Director of Patal Shakti.
Raj Kumar Sethi is said to be the Chief Editor of the weekly while Vijay Kumar Talwar is an Assistant Editor.
The proceedings of the meetings of the Congress workers of 18 2 1972 show that the said meeting which was called by the party to which the appellant belonged was attended amongst others by Gyan Devi Talwar, Rat Kumar Sethi, Madan Lal Kanda, Chandram Sherpal one of the Assistant Editors of Patal Shakti.
The said meeting resolved unanimously to support the candidature of the appellant.
3 (b) Gyan Devi Talwar had called a meeting of the Trade Union workers to support the appellant 's candidature.
(c) Seeing that persons closely connected with the Journal had taken a prominent part in the appellant 's election campaign, it is absurd to think that these very persons would be parties to the publication of the editorial.
(d) The receipt of Rs. 2000/ alleged to have been paid by the respondent for publication of the editorial is uninspiring.
(e) Raj Kumar Sethi has perjured himself on several important points.
(f) The letter of the appellant alleged to have been addressed to the editor and the reply of the editor are got up documents prepared for supporting the appellant 's case that the editorial was published at the instance of the respondent.
(g) Raj Kumar Sethi was pliable and could for consideration be made to say different things at different times.
(h) The evidence of the appellant suffers from serious infirmities.
(i) The evidence of the other witnesses only shows that several witnesses conspired to create false evidence.
[6E H, 7A H, 8A H, 9A C]
|
Appeal No. 1 of 1976.
Appeal by Special Leave from the Judgment and Order dated 23 5 1975 of the Allahabad High Court in First Appeal No. 392/ 64.
Shana Bhushan, V.P. Goel and Subodh Markendeya, for the Appellant.
L.N. Sinha, Solicitor General of India and O.P. Rana, for the Respondent No. 1.
Bal Kishan Gaur and Amlan Ghosh, for Respondent No. 2.
Yogeshwar Prasad and Rani Arora, for Respondent No. 3.
The Judgment of the Court was delivered by KRISHNA IYER, J.
Two principal submissions, whose implications ' perhaps are of profound moment and have public impact, have been, at wide ranging length, urged in this appeal by certificate, by Shri Shanti Bhushan, for the appellant/defendant and, with effective brevity, controvert ed by the Solicitor General, for respondent/1st plaintiff.
The two focal points of the controversy are: (a) Is the appeal to the High Court by the State 1st plaintiff at all competent, entitlement as a 'party aggrieved ' being absent, having regard to the provisions of the U.P. Zamindari Aboli tion and Land Reforms Act, 1950 (U.P. Act 1 of 1951) (for short, the Act) ?; and (b) Is it sound to conceptualise 'area appurtenant to buildings ' in section 9 of the Act so nar rowly as has been ' done by the High Court ? There were two plaintiffs the State of Uttar Pradesh and the Gaon Sabha of Bedpura claiming common but alternative reliefs.
The suit was for injunction or ejectment, on title, of the sole defendant who was the quondam zamindar of the 'estate ' which is the 'subject matter of the suit.
The trial Court dis missed the suit whereupon the 2nd plaintiff dropped out of the litigation, as it were, and the State alone pursued the matter by way of appeal against the decree.
The High Court partially allowed the appeal and the aggrieved defendant is the appellant before us.
An expose of the facts may now be given to the extent necessary for explaining the setting of the contention between the parties.
The State of Uttar Pradesh extin guished all zamindari estates by the Act and implemented a scheme of settlement of lands with intermediaries, tenants and others by first vesting all estates in the State and empowering it to vest, divest and re vest flora time to time according to flexible needs and ad hoc requirements, the same estate 's in Gaon Sabhas or other local authorities.
Settlement of trees, buildings and other specified items in the intermediaries was also part of the agrarian reform.
A skeletal picture of the legislation may now be projected.
But, before that, a short sketch of the actual dispute may illumine the further discussion.
The suit lands were part of an estate owned and.pos sessed by the defendant zamindarini.
The statutory conse quence of the abolition of all zamindaris by force of section 4 is spelt out in section 6, to wit, the 1075 cesser of the ownership of the zamindar and vesting of title and possession in the State.
By a notification under section 117(1) of the Act the area of lands was vested by the State in the 2nd plaintiff Gaon Sabha.
The legislative nullifica tion notwithstanding, the defendant who had been conducting a lucrative bi weekly cattle fair, the best in the district, persisted in this profitable adventure strengthened by section 9 of the Act which settles in the intermediary all buildings and area appurtenant thereto.
This resulted in possessory disputes between the Gaon Sabha and the defendant proceed ings under section 145 upholding the latter 's possession and the present suit for declaration of title and consequential injunction or ejectment.
The estate, which is the site of the rural cattle mar ket, has a large number of trees on it, a temple in one plot, a (veterinary) clinic in another and quite a number of cattle stands and other auxiliary structures which are facilities for the bovine display and transaction of business.
Taking advantage of the provisions of the Act, the defendant successfully claimed before the High Court that the trees and the two plots with the shrine and the oushadhalaya should be deemed to have been settled with her.
Her ambitious demand, based on some provisions which we will presently X ray more carefully, was that the entire estate with all the buildings thereon was enjoyed as a unum quid and th.e vacant lands were as much necessary for the mean ingful running of the cattle fair as the structures them selves.
To dissect and detach the buildings from the vacant spaces was to destroy the functional wholeness of the serv ice rendered.
In short, the large intervening areas sur rounding the chabutras and other edifices were essential adjuncts or appurtenant lands which, together in their original entirety, should be settled under section 9 of the Act with the erstwhile intermediary viz., the defendant.
The High Court declined to go the whole hog with the defendant but granted the plea to the limited degree of giving all the structures and a space of 5 yards running round each 'build ing '.
In the view of the Court hats, bazars, and melas could not be held by a private owner under the scheme of the Act and reliance on the conduct of the cattle market as an indicator of 'appurtenant ' area was, therefore, impermissi ble.
The suit was decreed pro tanto.
The Gaon Sabha, when defeated in the trial Court, discreetly stepped out of the risks of an appeal but the Government, first plaintiff, claiming to be gravely ag grieved, challenged the dismissal of the suit and was faced with the plea that the land having vested in the Gaon Sabha, on the issue of the notification under section 117 (1 ) of the Act, .the
State had no surviving interest in the property and, therefore, forfeited the position of a person ag grieved, who alone could competently appeal against a de cree.
This contention, negatived by the High Court. has been reiterated before us with resourceful embellishments and that, logically, is the first question of law falling for our decision and is the piece de resistance, if we may say so, in this appeal.
If the 1st plaintiff 's entire interests, by subsequent plenary vesting in the 2nd plain tiff, have perished, the former cannot, as of right, appeal under section 96 C.P.C. Survival after death is unknown to 1076 real property law and suits, without at least apprehended injury, are beyond the ken of the procedural law.
To put it in a nutshell, has the State current interest in the estate, sufficient to sustain an appeal ? The anatomy of the Act, so far as this dispute is con cerned, needs to be ' set out and alongside thereof, the exercises in statutory construction necessary to resolve the two legal disputes.
The Act had for its primary object, as testified by its Preamble, the extinction of intermediary rights viz., zamindaris and the like.
The goal of the legislation must make its presence felt while the judicial choice of meanings of words of ambiguous import or plurality of significations is made.
Section 4 is the foundational provision, the very title deed of the State; and it runs, to read: "section 4.
Vesting of estates in the State. (1 ) As soon as may be after the commence ment of this Act, the State Government may, by notification, declare that, as from a date to be specified, all estate situate in the Uttar Pradesh shall vest in the State and as from the beginning of the date so specified (herin after called the date of vesting), all such estates shall stand transferred to and vest except as hereinafter provided, in the State free from all encumbrances.
(2) It shall be lawful for the State Government, if it so considers necessary, to issue, from time to time, the notification referred to in sub section (1) in respect only of such area or areas as may be specified and all the provisions of sub section (1), shall be applicable to.
and in the case of every such notification." Section 6 sets out the legal consequences of such vesting more specifically.
We may extract the provision: "6.
Consequences of the vesting of an estate in the State.
When the notification under section 4 has been published in the Gazette then, notwith standing anything contained in any contract or document or in any other law for the time being in force and save as otherwise provided in this Act, the consequences as hereinafter set forth shall, from the begining of the date of vesting, ensue in the area to which the notification relates, namely (a) all rights, title and interest of all the intermediaries (i) in every estate in such area including land (cultivable or barren), grove land, forests whether within or outside village boundaries, trees (other than trees in village abadi, holding or grove), fisheries, tanks, ponds, water channels, fernes, pathways, abadi sites, hats, bazars and meals other than hats, bazars and melas held upon land to which clauses (a) to (c) of sub section (1) of Section 18 apply, and 1077 (ii) in all sub soil in such estates including rights, if any in mines and miner als, whether being worked or not; shall 'cease and be vested in the State of Uttar Pradesh free from all encumbrances; * * * * Reading the two sister sections together, certain clear conclusions emerge.
Emphatically, three things happened on the coming into force of the Act.
By virtue of section 4 the right, title and interest of all intermediaries in every estate, including hats, bazars and melas, stood terminated.
Secondly, this whole bundle of interests came to be vested in the State, free from all encumbrances, the quality of the vesting being absolute. 'Thirdly, one and only one species of property in hats, bazars and melas was expressly excluded from the total vesting of estates in the State, viz., such as had been held on lands to which section 18(1)(a) to (c) ap plied.
Section 9, at this stage, needs to be read since it is geared to the nationalisation of zamindaris by providing for settlement, under the State, of some kind 's of landed interests in existing owners or occupiers.
Section 9 states: "Private wells, trees in abadi and buildings to be settled with the existing owners or occupiers thereof All wells, trees in abadi, and all build ings situate within the limits of an estate, belonging to or held by an intermediary or tenant or other person, whether residing in the village or not, shall continue to belong to.
or be held by such intermediary, tenant or persons, as the case may be,, and the site, of the wells or the buildings which are appurte nant thereto: shall be.
deemed to.
be settled with him by the State Government on such terms and conditions as may be prescribed" A close up of this section is called for since the basic plank of the defendant 's case is the claim to the whole set of plots as building and appurtenant area of land statutori ly settled with her.
If she is such a settlee, the substan tive merit of the plaintiff 's title fails.
We will examine this aspect after a survey of the sections relevant to the locus standi of the State is done.
So we shift to Chapter VII which relates to Gaon Sabhas vesting by the State of resumed estates in them and the limitations and other conditions to which it is subject.
Attributed legal personality by s.3, the Gaon Sabhas are bodies corporate which, under the various provisions of Chapter VII, have been invested with legal viability right to own and hold property, to transfer and otherwise deal with movables and immovables and manage their landed assets through the executive agency of Land Management Com mittees.
This comprehensive 'proprietary personality of the Sabha is indisputable but unhelpful for our purpose.
1078 The controversy before us comes into focus when we read section 117 (1), (2) and (6), all the limbs being taken as belong ing to a legally living corporate body.
Section 117, cls.
(1) and (2), provide: "117.
Vesting of certain lands etc., in Gaon Shabhas and other local authorities. (1 ) At any time after the publication of the notification referred to in Section 4, the State Government may, by general or special order to be published in the manner pre scribed, declare that as from a date to be specified in this behalf, all or any of the following things, namely * * * * * (v) hats, bazars and melas except hats, bazars, and melas held on land to which, the provisions of clauses (a) to (c) of sub sec tion (1) of section 18 apply or on sites and areas referred to in section 9, and * * * * * which had vested in the State under this Act shall vest in the Gaon Sabhas or and other local authority established t.or the whole or part of the village in which the said things are situate, or partly in one such local authority (including a Gaon Sabha) and partly in another: Provided that it shall be lawful for the State Govern ment to make the declaration aforesaid subject to such exceptions and conditions as may be specified in the notifi cation.
(2) Notwithstanding anything contained in this Act or in any other law ' for the time being in force, the State Government may, by general or special order to be published in the manner prescribed in the Gazette, declare that as from a date to be specified in this behalf, all or any of the things specified in clauses (i) to (vi) of sub section (1) which alter their vesting in the State under this Act had been vested in a Gaon Sabha or any other local authority, either under this Act or under section 126 of the Uttar Pradesh Nagar Mahapalika Adhiniyam 1959 (U.P. Act II of 1959) shall vest in any other .local au thority (including a Gaon Sabha) established for the whole or part of the village in which the said things are situated.
" Section 117(6) injects a precarious does into the system of estates vested in Gaon Sabhas by sub s.(1) and goes on to state: "117(6).
The State Government may, at any time, by general or special order to be published in the manner prescribed, amend or cancel any declaration or notification made in respect of any of the things aforesaid. ' whether 1079 generally or in the case of any Gaon Sabha or other local authority, and resume such thing and whenever the State Government so resumes any such thing, the Gaon Sabha or other.
local authority, as the case may be, shall be enti tled to receive and be paid compensation on account only of the development, if any, effected by it in.
or over that thing: Provided that the State Government may, after such resumption, make a fresh declara tion under sub section (1) or sub section (2) vesting the thing resumed in the same or any other local authority (including a Gaon Sabha) and the provisions of sub sections (3), (4) and (5) as the case may be, shall mutatis mutandis, apply to such declaration.
* * * * * Before moving further, we may glance at a group of sections which have more than peripheral impact on the legal equation between Government and Sabha visa vis estates vested in the latter by the former.
Section 119 carves out a power for the State Government to take away hats, bazars and melas vested in a Gaon Sabha and transfer them to a zilla parishad or other authority.
Sections 122A and 122B create and regulate the Land Management Committee which is to administer the estates vested in the Sabha and section 126, quite importantly, gives the power to the State Government to issue orders and directions to the Management Committee.
Pausing here for an instant, let us look back on the status of the State which, through its Executive branch, vests a resumed estate in a Gaon Sabha, retaining power, at any time, and without conditions or even compensation (save for actual developmental work done), to divest the land so vested and make it over to another like local authority.
In such a situation where the State remains the legal master with absolute powers of disposition over the land vested pro tempore in a particular Gaon Sabha, can it be postulated that it has no legal interest in the preservation of that over which it has continuous power of operation, creation and deprivation? Government, despite vesting estates in Gaon Sabhas on the wholesome political princi ple of decentralisation and local self government, has and continues to have a constant hold on these estates, may be like a brooding omnipotence descending, when it chooses, to take away what it had given possession of to a Sabha.
This is plainly present legal interest in Government and a sort of precarium tenans in the Sabha, notwithstanding the illu sory expression 'vesting ' which may mislead one into the impression that an absolute and permanent ownership has been created.
An overview of these legal prescriptions, makes one sceptical about the statutory ideology of autonomous village self government since, so far as estates are concerned, these Sabhas have been handcuffed and thrown at the mercy or mood of the State Government.
The pragmatics of the Act has reduced Gaon Sabhas to obedient 1080 holders, for the nonce, of the limited bounty of estates vested in them a formal, fickle, homage to article 40 of the Constitution! Shri Shanti Bhushan did draw our attention to certain cousin statutes and other 'remotely related provisions but the soul of his submission does not suffer by their omission in the discussion.
We pass on to the spinal issues agitat ed before us.
Locus standi The estates first vest in the State.
The fulfilment of the purpose of the Act, the setting in which the corner stone for the statutory edifice is laid and the categorical language used, especially 'free from all encumbrances ', leave no doubt in our minds, nor was it disputed before us, that this initial vesting is absolute and inaugurates the scheme of abolition.
The consequence of vesting articulated by section 6 only underscore this conclusion.
What next ensues.
when the State Government, acting under s.117(1), notifies a further vesting in a Gaon Sabha is the cardinal question.
Does the State retain a residu ary legal interest, sufficient to make it a 'person ag grieved ', competent to challenge in appeal an adverse de cree? And can the State canvas for the position that a proprietary right persists in it albeit its act of vesting the same estate earlier in a local authority? Does the key word 'vest ' connote and denote divergent things in the same section and Act visa vis Government and the Gaon Sabha? Had drafting skills been better, this unlovely ambiguity could have been avoided.
But courts have no choice but to take the text as it is.
Zeroing in on the relevant provisions, we are inclined to concur with the High Court.
With certi tude one may assert that the State has that minimal interest to follow the proprietary fortunes of the estate so as to.
entitle it to.
take legal action to interdict its getting into alien hands.
The legislative project and the legal engineering visua lised by the Act are clear and the semantics of the words used in the provisions must bend, if they can, to subserve them.
To be literal or be blinkered by some rigid canon of construction may be to miss the life of the law itself.
Strength may be derived for this interpretative stand from the observation in a recent judgment of this Court(1) "A word can have many meanings.
To find out the exact connotation of a word in a statute, we must look to the context in which it is used.
The context would quite often provide the key to meaning of the word and the sense it ' should carry.
Its setting would give colour to it and provide a cue to the inten tion of the legislature in using it.
A word, as said by Holmes, is not a crystal, trans parent and unchanged; it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used." (1) Thiru Manickaru & Co. vs The State of Tamil Nadu.
[1977] 1 S.C.R. 950.
1081 In the instant case the Act contemplates taking over of all zamindari rights as part of land reform.
However, instead of centralising management of all estates at State level, to stimulate local self government, the Act gives an ena bling power not obligatory duty to make over these estates to Gaon Sabhas which, so long as they are in their hands, will look after them through management committees which will be under the statutory control of Government under s.126.
Apart from management, No. power is expressly vested in the Sabhas to dispose of the estates absolutely.
The fact that as a body corporate it can own and sell property does not mean that the estates vested in a Sabha can be finally sold away, in the teeth of the provisions striking a contrary note.
For, under s.117(6), if, for any reasons of better management or other, the State (Government is but the operational arm of the State and cannot, as contended, be delinked as a separate entity, in this context) the.
State thinks fit to amend or cancel the earlier vesting declara tion or notification, it can totally deprive the Sabha of, and resume from it, any estate.
This plenary power to emasculate or extinguish the Sabha 's right to the estate is tell tale.
True, this cut back on the amplitude of the vesting is not an incident of the estate created but is provided for by the Act itself.
Even so, we have to envi sion, in terms of realty law, what are the nature and inci dents of the interest vested in the Sabha full ownership divestible under no circumstances or partial estate with the paramount interest still surviving in praesenti in the State ? It is reasonable to harmonize the statutory provisions to reach a solution which will be least incongruous with legal rights we are cognisant of in current jurisprudence.
Novelty is not a favoured child of the law.
So it is right to fix the estate created by s.117 into familiar moulds if any.
Such an approach lends to the position that the vesting in the State was absolute but the vesting in the Sabha was limited to possession and management subject to divestiture by Government.
Is such a construction of 'vesting ' in two different senses in the same section, sound ? Yes.
It is, because 'vesting ' is a word of slippery import and has many meanings.
The context controls the text and the purpose and scheme Project the particular semantic shade or nuance of meaning.
That is why even definition clauses allow themselves to be modified by con textual compulsions.
So the sense of the situation suggests that in s.117(1) of the Act "vested in the State ' carries a plenary connotation, while 'shall vest in the Gaon Sabha ' imports a qualified disposition confined to the right to full possession and enjoyment so long as it lasts.
Lexico graphic support is forthcoming, for this meaning.
Black 's Law Die 1082 tionary gives as the sense of 'to vest as 'to give an imme diate fixed right of present or future enjoyment, to clothe with possession, to deliver full possession of land or of an estate, to give seisin '.
Webster 's III International Dic tionary gives the meaning as 'to give to a person a legally fixed immediate right of present or furture enjoyment '.
The High Court has sought some Engilsh judicial backing(1) for taking liberties with strict and pedantic construction.
A ruling of this Court(2) has been aptly pressed into service.
There is thus authority for the position that the ex pression 'vest ' is of fluid or flexible content and can if the context so dictates, bear the limited sense of being in possession and enjoyment.
Indeed, to postulate vesting of absolute title in the Gaon Sabha by virtue of the declara tion under s.117(1) of the Act is to stultify s.117(6).
Not that the legislature cannot create a right to divest what has been completely vested but that an explanation of the term 'vesting ' which will rationalise and integrate the initial vesting and the subsequent resumption is prefera ble, more plausible and better fulfils the purpose of the Act.
We hold that the State has title to sustain he action in ejectment.
Aside from this stand, it is easy to take the view that the 1st plaintiff is a person I aggrieved and has the competence to carry an appeal against the dismissal of the suit.
Of course, he who has a proprietary right, which has been or is threatened to be violated, is surely an 'ag grieved person '.
A legal injury creates a remedial right in the injured person.
But the right to a remedy apart, a larger circle of persons can move the court for the protec tion of defence or enforcement of a civil right or to ward off or claim compensation for a civil wrong, even if they are not proprietarily or personally linked with the cause of action.
The nexus between the lis and the plaintiff need not necessarily be personal although it has to be more than a wayfarer 's allergy to an unpalatable episode. 'A person aggrieved ' is an expression which has expanded with the larger urgencies and felt necessities of our times.
Processual jurisprudence is not too jejune to respond to societal changes and challenges: "Law necessarily has to carry within it the impress of the past traditions, the capacity to respond to the needs of the present and enough resilience to cope with the demands of the future.
A code of law, especially in the social fields, is not a document for fastid ious dialectics; properly drafted and rightly implemented it can be the means of the order ing of the life of a people.
"(3) (1) Richardson vs Robertson (1862) 6 L R 75; & .Hiride vs Chorlton (1866) 2 CP 104, 116.
(2) Fruit & Vegetable Merchant 's Union vs The Delhi Improvement Dust, ; (3) Address by Khanna 1.
at the Birth Centenary of Sir Tej Bahadur Sapru d/16 10 76 at Allahabad.
1083 The classical concept of a 'person aggrieved ' is delin eated in Re : Sidebotham ex p. Sidebotham (1880 14 Ch.D. 258).
But the amplitude of 'legal grievance ' has broadened with social compulsions.
The State undertakes today activ ities whose beneficiaries may be the general community even though the legal right to the undertaking may not vest in the community.
The State starts welfare projects whose effective implementation may call for collective action from the protected group.
or any member of them.
New movements like consumerism, new people 's organs like harijan or mahila samajams or labour unions, new protective institutions like legal aid societies operate on the socio legal plane, not to beat 'their golden wings in the void ' but to intervene on behalf of the weaker classes.
Such burgeoning of collec tive social action has, in turn, generated gradual processu al adaptations.
Test suits, class actions and representa tive litigation are the beginning and the horizon is ex pending, with persons and organisations not personally injured but vicariously concerned being entitled to.
invoke the jurisdiction of the court for redressal of actual or imminent wrongs.
In this wider perspective, who is a 'person aggrieved '? Dhabolkar gives the updated answer: "The test is whether the words 'person ag grieved ' include a person who has a genuine grievance because an order has been made which prejudicially affects his inter ests '." (p. 315) "American jurisprudence has recognised, far instance, the expanding importance of consumer protection in the economic system and permit ted consumer organisations to.
initiate or intervene in actions, although by the narrow rule of 'locus standi ', such a course could not have been justified (see p. 807 New York University Law Review, Vol. 46, 1971).
In fact, citizen organisations have recently been compaigning for using legal actions for pro tection of community interest, broadening the scope of 'standing ' in legal proceedings (see p. 403 Boston University Law Review, Vol.51. 1971).
In the well known case of Attorney General of the Gambia vs Peirra Sarr N. 'Jie 1961 A.C. 617), Lord Denning observed about the Attor ney General 's standing thus: " .
The words 'person aggrieved ' are of wide import and should not be subjected to a restrictive interpretation.
They do not in clude, of course, a mere busy body who is interfering in things which do not concern him; but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests." (p. 324 325) Where a wrong against community interest is done, 'no locus standi ' will not always be a plea to non suit an interested public body chasing the wrong doff in court.
In the case before us, Govern 1084 ment, in the spacious sense of 'person aggrieved ' is comfortably placed.
Its, right of resumption from the Gaon Sabha, meant to be exercised in public interest, will be seriously jeopardised if the estate slips into the hands of a trespasser.
The estate belonged to the State, is vested in the Gaon Sabha for community benefit, is controlled by the State through directions to the Land Management Commit tee and is liable to be divested without ado any time.
The wholesome object of the legislature of cautiously decen tralised vesting of estates in local self governing units will be frustrated, if the State, the watchdog of the whole project, is to be a helpless.
spectator of its purposeful bounty being wasted or lost.
It must act, out of fidelity to the goal of the statute and the continuing duty to sal vage public property for public use.
Long argument is otiose to make out a legal grievance in such a situation of peril and, after all, the star of processual actions pro bono publico has to be on the.
ascendant in a society where supineness must be substituted by activism if the dynamic rule of law is to fulfil itself. 'Locus standi ' has a larger ambit in current legal semantics than the accepted, individualistic jurisprudence of old.
The legal dogmas of the quiet past are no longer adequate to.
assail the social injustices of the stormy present.
Therefore, the State, in the present case, is entitled to appeal under section 96 of the Code of Civil Procedure.
The second, and from a practical point of view equally potent ground of defence, is that 'appurtenant ' space envelops the whole area around the buildings and the suit for recovery of possession deserves to be dismised in toto.
Let us examine this submission.
Section 9 of the Act obligates the State to settle (indeed, it is deemed to be settled) with the intermediary certain items in the estate.
That provision has been set out earlier.
The short enquiry is whether the entire land is 'appurtenant ' to the buildings.
The contention of the defendant flows along these lines.
The structures accepted by the High Court as 'buildings ' within the scope of section 9 were part of a cattle fair complex.
Even the mandir and the oushadalya fitted in to the hat total and the integrity of the whole could not be broken up without violating the long years of common enjoyment.
It would also be, a double injury: (a) to the defendant; and (b) to the community.
The hat or mela could not be held by the defendant if the land were snatched away and the Government could do.
nothing on a land without the buildings belonging to the defendant.
Maybe there is some sociological substance in the: presenta tion but the broader purpose of the ' section cannot be sacrificed to the marginal cases .like the. present.
The larger objective is to settle with the former intermediary only.
such land as is strictly appurtenant to buildings, all the rest going to the State for implementation of the agrarian reform policy.
The key to the solution of the dispute lies in ascer taining whether land on which the cattle fair was being held was appurtenant to the buildings or not on the strength of its use for the hat.
The Solicitor General made a two pronged attack on the defendant 's proposition.
1085 Firstly, he argued that hats, bazars and melas were a dis tinct interest in the scheme of Indian agrestic life and agrarian law.
This right had been virtually nationalised by the Act and only the State or the Gaon Sabha.
save where section 18(a) to (c) otherwise provided, could hold a 'fair.
A ruling by this Court on an analogous subject lends support to this contention (See State of Bihar vs Dulhin Shanti Devi: AIR 1967 SC 427 relating to Bihar Land Reforms Act).
The heated debate at the bar on this and allied aspects need not detain us further also because of our concurrence with the second contention of the Solicitor General that the large open spaces cannot be regarded as appurtenant to the terraces, stands and structures.
What is integral is not necesarily appurtenant.
A position of subordination, something incidental or ancillary or dependant is implied in appurtenance.
Can we say that the large spaces are subsidi ary or ancillary to or inevitably implied in the enjoyment of the buildings qua buildings? that much of space required for the use of the structures as such has been excluded by the High Court itself.
Beyond that may or may not be necessary for the hat or mela but not for the enjoyment of the chabutras as such.
A hundred acres may spread out in front of a club house for various games like golf.
But all these abundant acres are unnecessary for nor incidental to the enjoyment of the house in any reasonable manner.
It is confusion to miss the distinction, fine but real.
"Appurtenance ', in relation to a dwelling, or to a school, college . includes all land occupied therewith and used for the purpose thereof (Words and Phrases Legally Defined Butterworths, 2nd edn).
"The word 'appurtenances ' has a distinct and definite meaning .
Prima facie it imports nothing more than what is strictly appertaining to the subject matter of the devise or grant, and which would, in truth, pass without being specially mentioned:Ordinarily, what is necessary for the enjoyment and has been used for the purpose of the building, such as easements, alone will be appurtenant.
Therefore, what is necessary for the enjoy ment of the building is alone covered by the expression 'appurtenance '.
If some other purpose was being fulfilled by the building and the lands, it is not possible to contend that those lands are covered by the expression 'appurte nances '.
Indeed 'it is settled by the earliest authority, repeated without contradiction to the latest, that land cannot be appurtenant to land.
The word 'appurtenances ' includes all the incorporeal hereditaments attached to the land granted or demised, such as rights of way, of common . but it does not include lands in addition to that granted '.
(Words and Phrase, supra).
In short, the touchstone of 'appurtenance ' is dependence of the building on what appertains to it for its use as a building.
Obviously, the hat, bazar or mela is not an appurtenance to the building.
The law thus leads to the clear conclusion that even if the buildings were used and enjoyed in the past with the whole stretch of vacant space for a hat or mela, the land is not appurtenant to the prin cipal subject granted by section 9, viz., buildings.
This conclustion is inevitable, although the contrary argument may be ingenious.
What the High Court has grant ed, viz., 5 yards of 1086 surrounding space, is sound in law although based on guess work in fact.
The appeal fails and is dismissed but, in the circumstances, without costs.
P.B.R. Appeal dismissed.
13.385CI/76 GIPF.
INDEX ACCOMPLICE: Whether a pointer an accomplice [See Representation of the People Act.] . 525 ACCUSED PLEADED GUILTY If lesser sentence could be awarded.
Murlidhar Meghraj Loya etc.
vs State of Maharashtra etc.
. 1 ADMISSIONS: admissibility in evidence [See Evidence Act] . 967 ADMINISTRATION OF EVACUEE PROPERTY ACT, 1950 S.40(4) (a) and rule 22 Scope of, section 10(2) (n) out of the funds in his possession meaning of.
Custodian of Evacuee Property vs Smt.
Rabia Bai . 255 ALTERNATE REMEDY Whether a bar to writ jurisdiction under article 226 of the Constitution under Art 226 of the constitution.
. 64 [See Constitution of India, 1950] . 64 ANDHRA PRADESH (ANDHRA AREA) Electricity Supply Undertaking(Acquisition) Act (Andhra 15of 1954), Ss. 5(3)(vi), 6(2)(a) (iii) and 10(2)(b)(iii) Amounts due to undertaking from consumers prior to vesting in State If can be recovered by State from the licence.
Vijayawada Municipal Council vs Andhra Pradesh State Elec tricity Board and Anr.
. 846 ANDHRA PRADESH GENERAL SALES TAX ACT, 1957 Excise and countervailing duty paid by the buyers directly into the Treasury Neither the invoice nor books of the assessee (manufacturer) show the excise duty Excise duty.
If fails under "any sums charge by the dealer" occurring in the definition of "turnover".
M/s Mc Dowell & Company Ltd. etc.
vs Commercial Tax Office VII Circle Hyderabad etc.
APPEAL AGAINST ACQUITT OF AN OFFENCE OF CONSUMING LIQUOR Mem because the High Court took view that a fur ther charge "possession of liquor" she have been framed setting aside the acquittal without find whether the order of acquittal erroneous and ordering re t is bad Bombay Prohibition A 1949 (Bern.
XXV Sec.
66(1) r/w Sec.
378 Criminal Procedure Code (Act 11 of 1974) 1973.
Patel Jethabhai Chatur vs State of Gujarat , Contract between lay parties not be thwarted by narrow pedal and legalistic interpretatic Intendment of parties regarding validity of arbitraror 's appointment, whether material.
Union of India vs M/s D.M. R. &Co .
ATTESTING WITNESS [See Succession Act] BENAMI TRAINSACTION Pr of Benami nature.
Union of India vs Moksh Buil and Financiers and Ors.
BIHAR AND ORISSA EXC ACT, 1951 as amended Amending Acts of 1970 and 1 Ss. 22 and 29 Power of State 2 to auction exclusive privilege to vend liquor Nature of payment received.
Lakhan Lal etc.
vs The State of Orissa and Ors.
BIHAR ELECTRICITY DUTY ACT, 1948 (As amended) S.3(2) (e) Scope of.
Damodar Valley Corporation vs State of Bihar and Ors.
. 118 HAR LAND REFORMS ACT, 1950 Ss. 4(a) and 10 Lessee of nines If a tenure holder or intermediary under the Act.
Sone Valley Portland Cement Co. Ltd. vs The General Mining Synidicate (P) Ltd. 359 BOMBAY INDUSTRIAL RELATIONS ACT, 1946 section 98(1)(a) schedule III item 6(ii) Scope of Workmen laid off Lock out de clared later alleging unruly behaviour Lockout if illegal.
priya Laxmi Mills Ltd. vs Mazdoor Maharan Mandal, Baroda . 709 BOMBAY PROHIBITION ACT, 949 (Bom.
XXV) Sec.
66(1)(b).
[See Appeal against acquittal] . 872 BOMBAY PROVINCIAL MUNICIPAL CORPORATIONS ACT, As applied in Gujarat (Bom.
59 of 1949), S.284N Applicability of .5A, Land Acquirition Act.
Farid Ahmed Abdul Samad and Anr.
vs The Municipal Corpora tion of the City of Ahmedabad and Anr.
. 71 BOMBAY RENT, HOTEL AND LODGING HOUSE RATES ACT, 1947 Sub.
Section 13(1)(B) Suit for eviction on the grond of bonafide and personal need of a landlord Whether right to sue survives to his heirs Requirement of firm in which landlord is a partner whether his requirement Whether decree passed in favour of landlord can be disturbed on his death.
Shantilal Thakordas and Ors.
vs Chimanlal Maganlal Telwala . 341 5(4A) Indian Easements Act 1882 Sec.
52 62(c) Revocation of licence by efflux of time Presiden cy Small Causes Courts Act 1882 Sec. ' 47 Effect of filing of application for eviction Meaning of licence under a Subsisting agreement Interpretation of statutes Practice.
D.H. Manjar & Ors.
vs Waman Laxman Kudav .
.403 BOMBAY VILLAGE PANCHAYAT ACT (BOM.
6 OF 1933) S.89 'House ' if includes 'building '.
Tata Engineering & Locomotive Company Ltd. vs Gram Panchay at pimpri Waghere.
. 306 BURDEN OF establishing urgency under the .
Land Acquisition Act [See Land Acquisition Act] . 763 CENTRAL CIVIL SERVICE (CLASSIFICATION, CONTROL AND APPEAL) Rules, 1965 Scope of Rules applicable only when disciplinary proceedings are taken.
Union of India and Anr.
K.S. Subramanian . 87 1.
2(b) 9 Andhra Pradesh General Sales Tax Act 1957, Central Government selling foodgrains and fertilisers, whether a dealer Profit motive, if relevant Whether State carried on business.
Joint Director of Food, Visakapatham vs The State of Andhra Pradesh.
. 59 3 2.
section 15(b) Scope of Assessee bought declared goods and paid States Sales Tax Sale by way of inter state sale If entitled to refund of State Sales Tax.
Thiru Manickam and Co. vs The State of TamilNadu .
.950 3.
(74 of 1956) section 8(3)(6) and Central Sales Tax (Regulation and Turnover) Rules, 1957, r. 13Goods used in the manufac ture or processing of goods for sale Scope of Fertilizers used for growing tea plants, if could be included in goods used in the manufacture of tea for sale.
Travancore Tea Estates Co. Ltd. vs State of Karnataka & Ors. 755 4.
(74 of 1956) S.9(1), proviso Scope of.
M/s Karam Chand Thapar and Bros. (Coal Sales) Ltd. vs State of Uttar Pradesh and Ant.
. 25 CHARGE Fresh charge on appreciation of evidence can be ordered to be framed by the High Court in exercise of its appellate jurisdiction Criminal Procedure Code (Act.
II of 1974), 1973 Secs.
386(a), 464(I) and 462(2)(a).
Patel Jethabhai Chatur vs State of Gujarat . 872 CITY OF BANGALORE MUNICIPAL CORPORATION SERVICES (GENERAL) CADRE AND RECRUITMENT REGULATIONS 1971, Reg.
3 'Absorption of Senior Health Inspectors by Corporation contrary to provi sions in Reg.
3 Effect of.
C. Muniyappa Naidu etc.
vs State of Karnataka & Ors.
CITY OF MYSORE IMPROVEMENT ACT, 1903, Ss. 16, 18 and 33(1) Relevant date for determining market value for purposes of compensation, what is.
Special Land Acquisition Officer City Improvement Trust Board, Mysore vs
P. Govindan.
. 549 CIVIL SERVICE 1.
Powers of relaxation Whether rules can be made retro spectively Andhra Pradesh State and Subordinate Serv ices Rules 1962 Rule 47 Andhra Pradesh Civil ' Services (Co operation Branch) Government of Andhra Pradesh and Ors.
vs Sri D. Janardhana Rao and Anr. 702 2.
Seniority Irregular recruitment Regularisation Appointments through Public Service Commission Recruitment through centralised recruitment scheme.
P.C. Patel and Ors.
vs Smt.
T.H. Pathak and Ors.
. 677 CODE OF CIVIL PROCEDURE Res Judicata, whether invocable in subsequent stage of same proceedings.
Y.B. Patel and Ors.
vs Y. L. patil . 320 2.
Ss. 79 and 80, suit for compensation against railway administration whether impleading Union of India as a party necessary.
State of Kerala vs The General Manager, Southern Railway Madras.
. 419 3.
S.80 Whether applicable to suits filed under s.9(1) of the (M.P.) Public Trusts Act, 1951.
State of Maharashtra & Anr.
vs Shri Chartder Kant . 993 4.
S.115 Jurisdiction of High Court to interfere with the Trial Court 's discretionary order, when exercisable.
4 M/s Mechelec Engineers & Manu facturers vs M/s Basic Equipment Corporation. 1060 5.
(Act 5 of 1908) Order VI r/w Order, XIV, rule 1(5) Courts should not allow parties to go to trial in the absence of proper pleadings.
Union of India vs Sita Ram Jaiswal . 979 6.
(Act v of 1908) Order V], Rule 17.
[See Pleadings] . 728 7.
Act V of 1908 Section 11 Principle of res judicata Applicability when gratuity was awarded in a previous proceedings under the Payment of Wages Act i.n the teeth of the clear provision of Rule 8.01 Scope of Rule 8.01.
Andhra Pradesh State Road Transport Corporation Hyderabad vs Venkateswara Rao etc.
. . 248 CODE OF CRIMINAL PROCEDURE 1908 1.
Whether Magistrate has jurisdiction to recall dismissal order made u/s 203 Application for recalling dismissal order, whether amounts to fresh complaint.
Bindeshwari Prasad Singh vs Kali Singh . 125 2.
S.99 A Scope of Whether 'Statement of grounds ' a mandatory provision.
State of Uttar Pradesh vs Lalai Singh Yadav . 616 3.
(Act 2 of 1974)Ss.
235 and 465 Scope of.
Santa Singh vs The State of Punjab . 229 4.
(Act II of 1974), 1973 section 378.
[See Appeal against ac quittal] . 872 5.
(Act 2 of 1974) S.494 Prosecution applying for with drawal of prosecution Principles to be considered by Court in granting consent.
State of Orissa vs Chandrika Mohapalra & Ors. 335 COMPULSORY RETIREMENT Compulsory retirement made in public interest under the Government of lndia Decision No. 23 dated 30th November 1962 below Fundamental Rule 56 (later substituted as a new rule FR 56(i) Mere reference to a non subsisting rule does not invalidate the order when retirement is in public interest and bona fide.
Mayconghoan Rahamohan ,Singh vs The Chief Commissioner(Administration) Manipur and Ors.
. 1022 2.
[see Constitution of India] . 128 CONDONATION OF DELAY in applying for renewal of stage permits under the Motor Vehicles Act.
[See Motor Vehicles Act] . 503 CONDUCT OF ELECTION RULES 1961, rr.
42 and 56(6) .
Tendered ballot paper, what is and use of.
Dr. Wilfred D 'Souza vs Francis Menino Jesus Ferrao . 942 CONSTITUTION OF INDIA 1. article 14 Combines Seniority Scheme introduced by the Reserve Bank of India to equalise opportunities of confirma tion and pro motion of Clerks Some Clerks affected ad versely by unforseen circumstances if violative of equal opportunity clause Right of State to integrate Cadres and lay down principles of seniority.
Reserve Bank of India & Ors.
N. C. Paliwal & Ors.
. 377 5 2.
articles 14, 16 Civil Service Seniority Direct Re cruits and promotees Quota Whether roster implicit Bene fit of service Words and Phrases "As far as practicable." N.K. Chauhan and Ors.
vs State of Gujarat and Ors.
. 1037 3. article 15(4) Reservation of seats for socially and educa tionally backward classes in educational institutions Annual family income test if valid.
Kumari K.S. Jayasree and Anr.
vs The State of Kerala and Anr.
. 194 4. article 19(6)(ii) and 269(g): [See ] . 59 5. article 3IA(1) Second Proviso article
31(b) Meaning of right conferred 9th Schedule Whether different ceiling can be imposed for different persons Whether second proviso to article 31(A)(1) imposed a feter on the legislative competence Gujarat Agricultural Land Ceiling Act 1961 (Gujarat Act 27 of 1961) Section 2 (21), 6.
Hasmukhlal Dahayabhai and Ors.
vs State of Gujarat & Ors.
. 103 6.
article 131 Disputes between State and Union Jurisdic tion of High Court Charge of Excise Duty Condition of Whether an article manufactured or produced before the levy is imposed is excisable.
Union of India vs State of Mysore . 842 7.
article 136 Practice and Procedure Whether a Court of Criminal Appeal Whether can interfere with concurrent findings of fact Interference when grave and substantial injustice.
Dalbir Kaur and Ors.
vs State of Punjab .
.280 8.
article 226 High Court if could interefere with the Appellate orders of Income Tax Appellate Tribunal under article 226.
Income Tax Officer, Lucknow vs M/s S.B. Singbar Singh and Sons and Anr.
.214 9.
article 226 When alternative remedies available, whether writ petition maintainable.
G. Sarana vs University of Lucknow and Ors.
. 64 10. article 226, whether concurrent findings of facts by the Revenue Authorities, can be reopened in writ petition.
Y.B. Patel and Ors.
vs Y. L. Patil . 32 11.
article 235 Disciplinary action over subordinate judiciary Governor If bound by the recommendation of the High Court Consultation with State Public Service Commis sion If warranted by article 235.
Baldev Raj Guliani and Ors.
vs The Punjab & Haryana High Court and Ors.
. 425 12.
article 288(2) Scope of.
Damodar Valley Corporation vs State of Bihar and Ors.
. 118 13.
articles 309, 310 and 311 Scope of article 310 Visa Vis articles 309 and 311.
Union of India and Anr.
vs K. section Subramanian . 87 14.
article 311 Termination of services of temporary servant Protection of Article when applicable.
State of U. P. vs Ram Chandra Trivedi . 462 15.
article 311(2), violation of Penalty of compulsory retirement Hyderabad Civil Service (Classification, Control and Appeal Rules,) reasonable opportunity of defence at the stages of enquiry and punishment 6 Consideration of extraneous matters in recommendation of penalty by High Court Chief Justice, whether valid.
State of Andhra Pradesh vs S.N. Nizamuddin Ali Khan . 128 CONTEMPT OF COURT ACT (ACT NO.
70 OF 1971) Ss.
2(b) 10 and 12(1) read with Article 215, Constitution of India Remitting the punishment awarded after accepting the apolo gy, tendered by the contemnor and ordering him to pay the cost of paper books, whether valid Whether endorsing to the Registrar a copy of the wireless message, addressed to the State Counsel for information only amounts to contempt.
Arun Kshetrapal vs Registrar, High Court, Jabalpur & Anr. 98 2.
1971, S.19(1)(b) Finding of committal of contempt is basis of acceptance of apology Judge exposing himself to public controversy cannot shelter behind his office.
Ram Pratap Sharma and Ors.
vs Daya Nand and Ors.
CONTRACT OF SALE OF GOODS Whether interstate or intra state Sale.
[See sale] . 631 CORRUPT PRACTICE: [See Election] .
.490 COSTS: tax matters when there is conflict among High Courts.
[See Practice] . 9 , Ss. 28, 131(1)(3) and (5): [See Limitation] .
.983 DEALER: Whether Central Government selling foodgrains and ferti lizers a dealer.
[See ] .
DELEGATION OF POWERS TO OFFICERS for execution of contracts under s.122(1) of Jammu & Kashmir Constitution Contracts containing arbitration clause validity executed on behalf of the Government cannot be questioned on the plea of violation of section 122(1.).
Timber Kashmir (P) Ltd. etc.
vs Conservator of Forests, Jammu and Ors.
. 937 DEVELOPMENT REBATE Whether dividend when withdrawn.
[See Income Tax Act] . 638 DIRECTORATE GENERAL OF TECHNICAL DEVELOPMENT (CLASS II POSTS) RECRUITMENT (AMENDMENT) RULES, 1974, Rule 2, inter pretation of whether officer on special duty in the same grade as Development Officers.
section Ramaswamy vs Union of India and Ors. 221 DISCIPLINARY ACTION : Over subordinate judiciary by High Court.
[See Constitution of India] .
DISMISSAL ORDER, recall of [See Code of Criminal Procedure] . 125 DOCTRINE OF WAIVER Bar of waiver, whether applicable to later grievance against 'bias. ' G. Sarana vs University of Lucknow and Ors.
ELECTION Representation of the People Act, 1951 Sec.
123(2) Sec.
100(1)(b) Corrupt practice Undue influ ence Conduct of Election Rules 1961 Rules 39(2) Ballot paper containing mark on the reverse of the symbol 7 Can be rejected as invalid Charge of Corrupt practice If of quasi criminal nature Degree of proof Interference with appreciation of evidence by High Court Whether elec tion result can be lightly interfered with.
M. Narayana Rao vs
G. Venkata Reddy & Ors. 490 ELECTRICITY ACT 1910 Section 22B Electricity Supply Act.
1948 Sections 18, 49 and 79(j) Whether section 49 invalid for excessive delegation Whether Electricity Board can reduce the quota of consumption if the State Government has done so Board having determined the quota, whether can further reduce it Whether Board can fix the quota with out framing regulations Practice and Procedure Whether appellant can be allowed to raise a new question of facts for the first time.
Adoni Cotton Mills etc.
vs The Andhra Pradesh State Electricity Board and Ors.
.133 EMPLOYEES ' STATE INSURANCE ACT, 1948 Sec.
61 If debars grant of sick leave If the Act deals with all aspects of sickness.
The Alembic Glass Industries Ltd. Baroda and Ors.
vs The Workmen and Ors. 80 ESCAPED ASSESSMENT [See Income Tax ] . 207 ESTATE DUTY ACT (34 of 1953) 1.
Ss. 2(15), 9 and 27 Scope of.
Controller of Estate Duty, Gujarat vs Shri Kantilal Trikam lal .
S.5 Land covered with wild.
and natural forest growths of agricultural land.
Controller of Estate Duty, Kerala v V. Venugopala Verma Rajah . 346 3.
S.10 Gift of property the deemed to be part of the State of deceased doner.
Controller of Estate Duty, Keral vs M/s R.V. Vishwanathan and Ors.
. 64 EVIDENCE ACT (1 of 1872) 1.
Ss. 17 and 33 Evidence of admission Admissibility.
Union of India vs Moksh Builder and Financiers and Ors.
. 96 2. S.43 and Code of Civil Procedure (Act 5 of 1908) 0.41 r. 2 Admission of Judgments in land acquisition preceedings an additional evidence.
The Land Acquisition Officer, City Improvement Trust Board vs H. Narayaniah etc.
3. S.68 Discharge of onusproban by propounder when execut ic of will surrounded by suspicious circumstances.
Seth Beni Chand (since dead) no by 1. rs.
vs Smt.
Kamla Kunwar and Ors.
. 57 4.
116 Whether tenant cadeny the landlord 's title.
Sri Ram Pasricha vs Jagannat and Ors.
FINAL LIST, when may be set asid by Court.
Union of India vs Dr. R.D. Nanjia and Ors.
FINDINGS OF FACT [See Constitution of India] . 32 FIRST INFORMATION REPORT delay in lodging.
[See Penal Code] . 280 FUNDAMENTAL RULE 56(j): [See Compulsory retirement] . 1025 GENERAL CLAUSES ACT 189 ' Section 3(42) Meaning of per son Whether legislatur 8 bound to follow definition in General Clauses Act.
Hasmukhalal Dayabhai and Ors.
vs State of Gujarat and Ors. etc.
. 103 OLD CONTROL RULES, 1963, whether includes smuggled gold within their ambit.
Triveni Prasad Ramkaran Verma State of Maharashtra . 519 GRATUITY, entitlement to whether a former employee of he Nizam 's State Railway can claim gratuity aS of right in addition to provident Fund Government of Hyderabad Railway establishment Code, 1949, Rule . 01, 8.02, 8.05, 8.12, 8.13, .15, 8.16, 8.17 and 8.19 read with para 17 Chapter VII interpretation of.
Andhra Pradesh State .Road
Transport Corporation, Hyderabad vs Venkateswara .Rao.
GUJARAT MUNICIPALITIES 1963, section 38 (10)(b)(i) "act as Councillor" ScoPe of President of the Municipality applying or lease of land If debarred taking land on lease General power of supervision conferred on the President If resident should be deemed to have acted within the meaning of 38(1)(b)(i) when lease was ranted to him by the Chief officer.
Rustamji Nasorvanji Danger vs shri Joram Kunverji Ganatra and Ors.
. 884 HINDU LAW If a co widow can relinquish ght of survivorship Whether after relinquishment, a widow an dispose of property by will.
Rindumati Bai vs Nrarbada ' Prasad .
.988 RELIGIOUS ENDOWMENT Hindu temple forming part of a Jain Institution When may be treated as a Hindu religious endow ment.
Commissioner of Hindu Religious & Charitable Endowments Mysore vs Sri Ratnavaram Heggde (deceased) by 1.
.889 IDENTIFICATION PARADE: [See Penal Code] . 280 INCOME TAX ACT 1922 1.
S.2.(4) When can single and isolated sale be a busi ness transaction within the meaning of Onus probandi on the Taxation Department Initial purchase with intention of advantageous sale Earning profit on delivery of goods not necessary.
Dalmia Cement Ltd., vs The Commissioner of Income Tax, New Delhi.
. 5 54 2.
(11 of 1922) Ss. 2 (6A)(e) 'and 10(2) (vi b) Development rebate treated as accumulated profits Withdrawal of amount by shareholder from Company 's account if withdrawal can be treated as dividend since amount withdrawn is within accumulated profits.
P.K. Badiani vs The Commissioner of Income Tax, Bombay .
.638 3.
S.9 Irrevocable rent If could be deducted from income from property of only one year Exemption If could be given only once.
Commissioner of Income Tax, Lucknow vs Shri Madho Parsad Jatia.
. 202 2(1) to Sec.
23A(1) Meaning of investment Companies, whether restricted to shares stocks and other securities or used in contradistinction with manufacturing processing and trading operations Indian Companies 87(f) Companies Act 1956 Sec.
372(11).
Nawn Estates (P) Ltd. vs C.I.T., West Bengal . 798 5.
23A and 35(1) Whether income tax officer has power under section 35(1) to rectify an order passed under section 23A. Commissioner of Income Tax, Kanpur.
vs M/s. J.K. Commercial Corporation Ltd. etc. 512 for partition and disruption of the Hindu Undivided family disallowed by I.T.O. Appeal under the Act filed against the orders of.
I.T.O. also dis missed No reference under the Act challenging the Tribu nal 's order dismissing the appeal was taken, but subse quentiy got a preliminary decree for partition passed by the civil court during the pendency of the apPeal Whether t he Income Tax Authorities are bound by the subsequent parti tion decree of the civil court.
Narendra kumar J. Madi vs Commissioner of Income Tax, Guja rat 11, Ahmedabad . 112 7.
Ss. 34 and 42, Income Tax Act (43 of 1961) section 147 and Income Tax Rules, 1922, r. 33 corresponding to r. 10 of 1962 Rules One 0 f t he met hods mentioned in corresponding to r. 10 of 1962 Rules One of the methods mentioned in r. 33 applied for assessment Higher tax liability if another method in rule adopted If a case of income escaping as sessment.
Commissioner of Income Tax, West Bengal 1, Calcutta vs Simon Carves Ltd. 207 8.
section 5(2) Non resident company receiving income outside India Income if accrued in India.
84SCI/77 The Performing Right Socio)Ltd.
& Anr.
vs The Commr.
Income Tax and Ors.
. 1 INDUSTRIAL DISPUTES A( 1907 Sec.
2(00) Meaning of trenchment Can termination service by efflux of time cover by the expression retrenchment Hindustan Steel Ltd. vs The p siding Officer, Labour.
Court Orissa and Ors.
. 6 legal practioners can appear before the Tribunal Whether Secs.
36(1) an 36(2) is controlled by section '36(4) Pradip Port Trust, Pradip Their Workmen . 5 INTER STATE SENIORITY [See State 's Reorganisation Act] .
INTERPRETATION 1.
Amendment of a section could be used to interpret earlier provision in the Act.
Sone Valley Portland Cem Co. Ltd. vs The General Mini Syndicate (P) Ltd. 3 2. "Refund meaning of Subsequent amendment of Section If could. be used to interpr earlier ambiguous provision.
Thiru Manickam & Co. vs Sic of Tamil Nadu . 9 3. "should" contained in a clause "should" possesses a post graduate degree and requist experience whether mandato ry or directory "Post gradual Meaning of.
Juthika Bhattacharya The State of Madhya prad and Ors.
. 4 4.
Contract of.
[See ] INTERPRETATION OF DOCUMENTS Principles application 10 to interpretation of document Notifications Nos.
F. 9/5/59 R & S published in gazette dt.
17 1 60 u/s 507 of the Delhi Municipal Corporation Act, 1957 (66 of 1957) and Notifica tion GSR 486 u/s 1(2) of Delhi Rent Control Act, 1958 (59 of 1958) gazetted on 21 4 62 Whether the whole of Mauza Chowkri Mubarakbad and whole of Onkar Nagar and Lekhpura were meant to be notified.
Jangbirv.
Mahavir Prasad Gupta . 670 INTERPRETATION OF STATUTES [See Bombay Rents/ Hotel and Lodging House Rates Control Act, 1947] .
Estate Duty Act and other taxing statutes Principles.
Controller of Estate Duty, Gujarat vs Shri Kantilal Trikam lal Expressions not being terms of art whether to be construed in technical sense or ordinary popular sense as used by businessmen Legislative history as guide to construction Genesis and development of law as key to interpretation Whether English decisions useful guides or construction of analogous provisions, fundamental concepts and general principles.
Nawn Estates (P) Ltd.
C.I.T., West Bengal . 798 Provision in Act substituted by another Amending provision avoid Effect.
State of Maharashtra vs The Central Provinces Manganese Ore Co. Ltd. 1002 Rules as an aid Use of Statement of objects and reasons.
Tata Engineering & Locomotive Company Ltd. vs Gram Panchayat Pimpri Waghere.
. 306 6.
Statute when retrospective.
K. Eapen Chacko vs The Provident Investment Co. P. Ltd. 1026 7.
When a statute could be read retrospectively.
State of Kerala vs philomina etc.
& Ors.
. 273 JAMMU & KASHMIR CONSTITUTION, section 122 [See Delegation of Powers] . 937 Admission of judgments in Land Acquisition proceedings.
[See Land Acquisition] . 178 JURISDICTION 1. of High Courts to interfere with the trial Court 's discretionary order.
[See C.P.C.] . 1061 2. of High Court under article 226 to interfere with orders of the Income Tax Appellate Tribunal.
[See Constitution of India ] . 214 KARNATAKA LAND REFORMS ACT, 1961, Ss. 107 and 133 'Whether applicable to land unauthorisedly held after expiry of lease.
Corporation of the City of Bangalore vs
B.T. Kampanna .
KARNATAKA RECRUITMENT OF GAZETTED PROBATIONERS (Class I and 11 Posts appointment by competitive examination) Rules, 1966 R. 9 read with Part IV of Schedule II Scope of Awarding block marks in interview If violative of the Rule.
State of Karnataka and Anr.
vs M. Farida & Ors.
. 323 KERALA LAND REFORMS ACT 1.
1963 section 84 Scope of interpretation When a statute could be read retrospectively.
11 State of Kerala and Ors.
vs Philomina etc.
and Ors.
. 273 2.
1964 Secs.
81, 83, 84, 85, 85A and 86 Voluntary trans fers made after notified date whether valid.
State of Kerala and Ors.
vs K.A. Gangadharan . 960 3.
(Kerala 1 of 1964) as amended in 1969 and 1971, Secs.
3(1), 50A, 52, 73, 108, 125 and 132(3) Scope of.
K. Eapen Chacko vs The Provident Investment Co. P. Ltd. 1026 LAND ACQUISITION ACT 1.
City of Bangalore Improvement Act, 1945, Ss. 16, 18 and 27 Notification under Ss. 16 and 18 on different dates Date for determining market .value for awarding compensation for acquisition of land.
The Land Acquisition Officer, City Improvement Trust, Board vs 11.
Narayaniah etc. 178 Ss.
5A, 6 and 17(4) Burden of establishing urgency On whom lies.
Narayan Govind Gayate etc.
vs State of Maharashtra . 763 3.
(1 of 1894) s.6A If mandatory Effect of non compliance in case of beneficial schemes.
Farid Ahmed Abdul Samad and Anr.
vs The Municipal Corpn.
of the City of Ahmedabad and Anr.
LEGAL ENTITY [See Railways Act, 1890] .
.419 LIMITATION 1.
for rectification under the U.P. Sales Tax Act, 1948, section 22.
[See U.P. Sales Tax Act, 1948] .
Period of limitation in respect of suo moto revision by Central Government to annul or modify any order of erroneous refund of duty when begins Customs Act, , 131(1)(3)(5) scope of.
Geep Flashlight Industries Ltd. vs Union of India & Ors.
.983 LIMITATION ACT 1.
1963 Ss. 5 and 29(23) If applicable.
Mohd. Ashfaq vs State Transport Appellate Tribunal M.P. and Ors. 563 2.
whether applicable to revision petitions filed under section 10, U.P. Sales Tax Act.
Time spent in obtaining second copy of.
impugned order, whether to be excluded in computing limitation period for filing revi sion petitions.
Commissioner of Sales Tax, U.P. vs Madan Lal and Sons Ba reilly.
MADHYA pRADESH MUNICIPAL CORPORATION ACT 1956Sec.
138(b) Madhya Pradesh Accommodation Control Act Sec.
7 Must rental value under the Municipal Act follow the standard rent under Accommodation Control Act When premises let out When used by owner.
Municipal Corporation, Indore, and Ors.
vs Smt.
Ratna Prabha ana Ors.
. 1017 MADHYA PRADESH PUBLIC TRUSTS ACT 1951s.
9(1): [See Code of Civil Procedure] . 993 MADRAS GENERAL SALES TAX ACT 1959, Schedule 11, items 7(a and (b) If ultra vires.
M/s. Guruviah Naidu and Sons etc vs State of T.N. and Anr.
State Government reserved certain areas for exploitation of minerals in public sector If had the power to do so.
State Governments If could reject application of private persons.
Amritlal Nathubhai Shah and Ors.
vs Union Government of India and Anr . 372 2.
S.30A Scope of.
State of Bihar and Anr.
vs Khas Karampura Collieries Ltd. etc. 157 , Entry 22 Explanation of Schedule, construction of word includes Whether ,potteries Industry includes manufacture of Mangalore pattern roofing tiles.
The South Gujarat .Roofing
Tiles Manufacturers Associations and Ant.
vs The State of Gujarat and Anr . 878 MONOPOLY OF BUS ROUTES Whether permitting the existing private operators to operate till the date of expiry of their permits creates a monopoly.
Sarjoo Prasad Singh vs The State of Bihar and Ors. 661 MOTOR VEHICLES ACTS 1939 1.
section 43(1) State Government can direct imposition of fiscal rates on stage carriage operators for carrying mails as condition of permit Ss. 48(3) and 59(3)(c) such direc tions do not interfere with quasi judicial functions of Regional Transport Authority.
Special provisions of section 48(3) (XV) do not override general provisions of section 43(1)(d)(1).
Sree Gajana Motor Transport Co. Ltd. vs The State of Karna taka and Ors.
. 665 Motor Vehicles Rules, 1951 Rule 108(c) Whether considerations in Sec.47 for grant of stage permits to be mentioned in the order.
Ikram Khan vs State Transport Appellate Tribunal and Ors.
. 459 3. S.58(2) proviso Delay in.applying for renewal of exist ing permit If could be condoned Chapter IVA If a self contained code Renewal application under section 68F(ID) Whether section 57 applicable.
Mohd. Ashfaq vs State Transport Appellate Tribunal U.S. and Ors. 563 of 'Whether there should be a finding on each and every separate objection raised.
Sarjoo prasad Singh vs The State of Bihar and Ors. 661 MURDER: Distinction between S.299 and 300 I.P.C. [See Penal Code] . 601 NECESSARY PARTY: [See Civil Procedure Code] . 419 NEW CASE Courts ' Whether can make a [See Partnership Act] . 583 NEW DELHI HOUSE RENT CONTROL ORDER 1939 C1.
Standard rent of house fixed in 1944 Rateable value enhanced on the basis of rent received in 1966 Whether rating should be correlated to actual income.
New Delhi Municipal Committee vs
M.N. Soi and Anr.
NEW PLEA [See Adoni Cotton Mills vs Andhra Pradesh State Elec tricity Board] . 133 NOLLES PROSEQUE: Principle to be followed by court (See Criminal Procedure Code Act 2 of 1974) .
.335 13 OTHER RIGHTS in Explanation 2 to section 2(15) meaning of.
Controller of Estate Duty, Gujarat vs Shri Kantilal Trikam lal . 9 PARTNERSHIP ACT Whether mandatory Whether suit can be filed by unregistered firm Dissolution of firm Suit by a 'partner of erstwhile unregistered firm, If other partners of erstwhile firm necessary parties Materi al alterations in a document Effect of Suit for Specific and ascertained amount Whether court can make out new case and grant partial relief on another basis.
Loonkaran Setia etc.
vs Ivan E. Johan and Ors.
. 853 PENAL CODE S.34 Specific evidence for infliction of fatal wound not required Community of intent with participatory presence fixes constructive liability.
Harshadsingh @ Baba Pahalvansingh Thakura vs The State of Gujarat . 626 2.
Ss. 299 and 300 Culpable homicide not amounting to murder and murder Distinction Tests to be applied in each case S.300 Thirdly I.P.C. Scope of.
State of Andhra Pradesh vs Rayavarapu Punnayya and Anr.
.601 3.
Section 302 Non examination of eye witnesses Interest ed witnesses Meaning of Necessity of examining independent witnesses Motive Delay in lodging F/R and despatch to Magistrate Identification parade, necessity of.
Dalbir Kaur and Ors.
vs State of Punjab . 280 PLEADINGS 1.
Amendments to Amendment to the pleadings to introduce an entirely different case, under the guise of permisible inconsistent pleas which is likely to cause prejudice to the other side cannot be allowed Civil Procedure Code (Act V of 1908) Order VI Rule 17.
M/s Modi Spinning and Weaving Mills Co. Ltd. and Anr.
vs M/s Ladha Ram and Col .
.728 2.
Under section 70 of the Contract (Act 9) of 1872 Ingre dients necessary to be pleaded.
Union of India vs Sita Ram Jaiswal.
. 979 POSSESSION "Possession" to attract criminal liability must be "conscious possession".
Patel Jethabhai Chatur vs State of Gujarat . 872 POWERS OF OFFICER to rectify an order passed u/s 23A [See Income Tax Act] . 512 POWER TO AUCTION exclusive privilege to vend liquor [See Bihar and Orissa Excise Act.
.811 PRACTICE 1.
Costs in tax matters when there is conflict among High Courts Controller of Estate Duty, Gujrart vs Shri Kantilal Trikamalal . 2.
Duty of High Court when there is conflict between deci sions the Supreme Court Upsetting concurrent findings of fact second appeal Propriety.
State of U.P .
vs Ram Chandrs Trivedi . 46: 3.
Duty of High Court where there, is conflict between the view expressed by Divisional bench and larger benches of the Supreme Court.
Union of India and Anr.
K.S. Subramanian.
Non suiting for want of proper pleadings at the appellate stage by the Supreme Court when parties went to trial and issues were raised and the litigation went through the course of trial and appeal is not desirable.
Union of India vs Sita .Ram Jaiswal . 979 5.
Supreme Court will not entertain a complaint on facts and interfere with a finding of facts by the appellate Court under Article 136 of the Constitution of India.
Patel Jethabhai Chatur vs State of Gujarat . 872 PRACTICE AND PROCEDURE 1.
Further plea taken in the affidavit rejoinder to the writ petition shall not be allowed to be agitate Sarjoo Prasad Singh vs The State of Bihar and Ors. 861 2.
High Court 's duty to give reasons even in cases of sum mary dismissal.
Shankar Gopinath Apte vs Gangabai Hariharrao Patwardhan . 411 3.
Interference with findings on reliability of evidence only in exceptional circumstances.
Harshadsingh@ Baba pahalvansingh Thakur vs The State . 626 5.
Re appraisal of evidence by Supreme Court in spite of concurrent findings of fact, proper when miscarriage of justice has occurred.
Mohammad Aslam vs State of Uttar Pradesh . 689 Whether High Court can direct a Minister to be impleaded as a party and file his personal affidavit.
State of Punjab ana Anr.
vs Y.P. Duggal and Ors.
. 96 PREVENTION OF CORRUPTION ACT, and 5(1)(d) Sec.
5(2) Misappropriating Govt.
funds.
Retaining Govt.
Funds by a Govt.
Servant Evidence Act, Sec.
154 When can witness be declared hostile Can evidence of a hostile witness be accepted Evidence Act Sec. 105 Onus of proving exceptions in IPC on accused Degree of proof Criminal Trial Effect of non examination of materi al witness Conviction on evidence of a solitary witness Whether adverse inference can be drawn against accused for not leading evidence Onus of prosecution Pre sumption of innocence.
Rabindra Kumar Dey vs State of Orissa .
.439 PREVENTION OF FOOD ADULTERATION ACT 1910.
1. section 16 Proviso Scope of.
Murlidhar Meghraj etc.
vs State of Maharashtra etc.
. 1 2. sec.
16(1) (a) (2) (1) 2(1) (c) 2(1) (j) 2(1) Preven tion of Food Adulteration of Rules.
Rules 23, 28 and 29 Can conviction be based on sole testimony of Food Inspector Can an article fail under clause (j) and (i) of Sec.
2(i) Are they mutually exclusive or overlapping When rules are silent about colouring material can use of dye be punished Do provisions of Probation of Offenders Act apply to offences under the Prevention of Food Adulteration Act.
Prem Ballab and Anr vs The State (Delhi Admn.) . 592 PRIVITY OF CONTRACT When a company has severa branches and there is a contract between the buyer and one of the branches, the contract of sale is between the company and the buyer.
English Electric Company of India 1Ltd.
vs The Deputy Commercial Tax Officer and Ors.
. 631 15 PROBATION OF OFFENDERS ACT, 1958 Applicability to cases under POFA [See Prevention of Food Adulteration Act, 1950] . 59 PROCEDURE When a court of appeal can interfere in the lower court 's Judgment.
Padma Uppal etc.
vs State of Punjab and Ors.
. 329 PROMOTIONS Right to promotion Whether promotion of class III employees to Class is governed by "Advance Correction Slip No. 7)" introducing w.e.
f. March, 11, 1973, new rules 324 to 328 and substituting a new rule 301 in Chapter III of the Indian Railway Establishment Manual Scope and applica bility of Rules 301 and 328 (2) (4) and (5) S.K. Chandan vs Union of India and Ors.
. 785 PROPERTY right to dispose of by will by a widow [See Hindu Law] .
PROVIDENT FUND Illegal payment of gratuity in the past will not affect legal claims to Provident Fund.
Andhra Pradesh State Road Transport Corporation, Hyd.
P. Venkateswara Rao etc. 248 PUNJAB GENERAL SALES TAX ACT (Punjab Act 46 of 1948), section 11(2) Notice under Whether should be issued within a par ticular period.
The Indian Aluminium Ltd. & Anr.
vs The Excise and Taxa tion Officer and Anr.
.716 PUNJAB CIVIL SERVICE RULES, Vol.
1 Rules 2.49 and 3.10 to 3.16 Junior Vernacular Cadre teachers officiating in senior vernacular cadre enti tled to benefit of their substantive post .
State of Punjab and Ors.
v, Labh Ram and Ors.
. 832 RAILWAYS ACT, 1890 section 3(6), Railway Administration, whether a separate legal entity.
State of Kerala vs The General Manager.
S.R. Madras .
.419 RAILWAYS ESTABLISHMENT CODE Para 157 Whether the para graph empowers the Railway Board to make rules for the gazetted Railway servants Construction of para 157.
S.K. Chandan vs Union of India and Ors.
785 RAILWAY ESTABLISHMENT MANUAL Whether Rule 328 (2) providing for the invalidity of promotions made in the Diesel Locomotive Works from August 1, 1961 to March 11, 1973 casts an obligation on the Railway Board to recall all promotions and to form a fresh panel Meaning of "Promotion made in the Diesel Locomotive Works in Rule 328 (2) and promotion to the higher grades in Rules 328(4)".
S.K. Chartdan vs Union of India and Ors.
.785 RATEABLE VALUE (See New Delhi House Rent Control Order) . 731 REAPPRAISAL of Evidence by Supreme Court.
(See Practice and Procedure) . 689 REASONABLE OPPORTUNITY See Constitution of India . 128 2. to be heard.
(See State 's Reorganisation Act) .
.827 REHABILITATION ACT, 1954 section 14(1) (b) "Such cash balances Meaning of.
16 Custodian of Evacuee Property, vs Smt.
Rabia Bai .
.255 .
Election petition Not accompanied by impugned pamphlet If liable to be rejected Printer If could be called an accom plice Failure to send pamphlet to District Magistrate as required by section 127 A(2) If makes the printer an accom plice.
Thakur Virendra Singh v .
Vimal Kumar . 525 See.
15, 21, 22, 23"Preparation and revision of electoral roll Amendment, transposition or deletion of entries in electoral roll Provision of Sec.
23, if mandatory Repre sentation of the People Act, 1951 Every person on elec toral roll whether entitled to vote even if name not brought in accordance with law Sec.
100(1) See.
123(1) (A) Bribery Proof of Quasi criminal in nature inter ference with appreciation of evidence by High Court, Bihar and Orissa Act, Ramji Prasad Singh vs Ram Bilas Jha and four Ors.
.741 .
section 9A Contract signed as President, Gram Panchayat Rejection of nomination paper If valid Improper rejection If courts could give relief under section 100(1) (c).
Jugal Kishore Patnaik vs Ratnakar Mohanty .
Incurring expenses in excess of what is per missible Interference by this Court with appreciation of evidence by High Court.
Nangthomban Ibomeha Singh vs Leisanghem Chandramoni Singh and Ors, . 573 RES JUDICATA.
(See Civil Procedure Code). 320 RETRENCHMENT Meaning of (See industrial Disputes Act) . 586 RETROSPECTIVITY.
service rules.
(See Civil Service) .
REVISION suo moto limitation for (See Limitation) . 983 RIGHT OF MANAGEMENT Hindu Law Joint Hindu Undivided family Whether a junior member of the family can act as Karta with the consent of all the other members, if the senior member gives up his right.
Narendra Kurnar J. Modi vs Commissioner of Income Tax Gujarat 11.
Ahmedabad . 112 RIGHT TO PLEAD by legal Practitioners before the Labour Tribunal.
(See IndustriaI Disputes Act). 537 RIGHT TO SUE by the heirs (See Bombay Rents Hotel and Lodging House Rates Control Act, 1947) . 341 RIGHT TO SUE for eviction by a co owner.
(See West Bengal Premises Tenancy Act, 1956) .
SALE Contract for sale of goods, whether inter State sale or intraState sale Ingredients Central Sales Tax Act Section 3(a).
English Electric Company of India Ltd. vs The Deputy Commercial Tax Officer and Ors.
. 631 SALES REORGANISATION ACT (37 of 1956) section 115 Oppertunity to hear after final inter state seniority list is prepared 17 after giving opportunity to aggrieved officers to make representation against provisional list If should be given.
Union of India vs Dr. R.D. Nanjiah and Ors. 827 SALES TAX Central Provinces Bear Sales Tax Act, 1947 section 2(g) Expln.
II Goods within States at the time of contract of sale, mixed up outside state and the mixture sold 'sale ' if taxable.
State of Maharashtra etc.
vs Central Provinces Manganese Ore. Co. Ltd. 1002 2.
Supply of crude oil by Oil and Natural Gas Commission from Assam to refinery of Indian Oil Corporation in Bihar Supply under directions of Government at price fixed, by Government If inter state sale liable to Central Sales Tax.
Oil and Natural Gas Commission vs State of Bihar and Ors. 364 SECOND APPEAL 1 Disturbance of concurrent finding of fact without consid ering the objects of the notification or discussing any principle of construction of documents which could indicate that a point of law had really arisen for a decision is patently exceeding the jurisdiction of the High Court Civil Procedure Code (Act V) 1908, section 100.
Jangbir vs Mahavir Prasad Gupta . 670 2.
Propriety of upsetting concurrent findings in (See Practice) . 462 SENIORITY 1.
Direct recruits of Promotees.
(See Constitution of India) . 1037 2.
When recruitment irregular.
(See Civil Service) . 677 SENIORITY SCHEME Right of State to lay down principles of seniority (See Constitution of India) . 377 SENTENCE Judicial Jurisdiction to soften the sentence in economic crimes and food offences.
(See ) . 1 SICKNESS BENEFIT (See ) . 80 SOLE WITNESS conviction based on (See Prevention of Corruption Act) .
SPECIAL RULES 1962 Rule 4.
Government of A.P. and Ors.
vs Shri D. Janardhana Rao Anr.
. 702 SUCCESSION ACT, 1925 Sec.
6" legal will Genuineness of Suspicious circumstances Burden of proof Degree of proof.
Jaswant Kaur vs Amrit Kaur and Ors.
. 925 2. 1975, section 63 (c), Attesting witness defined.
Seth Beni Chand (Since dead now by 1. rs.
vs Smt.
Kamh Kunwar and Ors.
. 578 SUMMARY DISMISSAL Court 's duty to give reasons.
(See Practice and Procedure) .
.411 SUSPENDED OFFICER REINSTATED AND LATER COMPULSORILY RETIRED Effect of If order of suspension merge with order of reinstatement.
Baldev Raj Guliani and Ors.
vs The Punjab & Haryana High Court and Ors, . 42 18 SUSPENSION ORDERS Whether merges with order of Retirement (See Suspended Officer) .
.425 TERMINATION of services of temporary servants.
(See Constitution of India) . 462 TRANSFER OF PROPERTY ACT (4 of 1882) section 53A, Indian Easements Act (5 of/882) section 60(b) and Indian Contract Act (9 of 1872) section 221 Scope of.
Shankar Gopinath Apte vs Gangs bai Hariharrao Patwardhan . 411 U.P. INTERMEDIATE EDUCATION ACT, 1921 Whether the basic section of a college is within the scope of.
Commissioner, Lucknow Division and Ors.
vs Kumari Prem Lata Misra. 957 U.P. SALES TAX ACT, 1948 section 3 A, Notification issued under Rule for constructing words Whether carbon paper is taxable as 'Paper ' Whether ribbon is accessory or part of typewriter.
State of Uttar Pradesh vs M/s Kores (India) Ltd. 837 section 22 Order of rectification passed within 3 years of orginal order, but served beyond 3 years /f barred by limitation.
M/s Karam Chand Thapar and Bros. (Coal Sales ) Ltd. vs State of U.P. and Anr.
. 25 U.P. ZAMINDARI ABOLITION AND LAND REFORMS ACT, 1950, Section 117 Scope of State vests lands in Gaon Sabha Suit for eject ment .Goan
Sabha did not appeal State If had locus standi.
Maharaj Singh vs State of Uttar 5.
Pradesh and Ors. 1072 UNION AND STATE DISPUTES (See Constitution of India) . 842 VOLUNTARY TRANSFERS (See Kerala Land Reforms Act) .
.960 WEALTH TAX ACT (27 of 1957) S.2(e)(i) Agricultural Lands, What are Tests for determining.
Commissioner of Wealth Tax, A.P. vs Officer in charge (Court of Wards ) Paigah.
. 146 WEST BENGAL PREMISES TENANCY ACT (f) Whether one of the co owners can file suit for eviction without impleading other co owners Whether a co owner, an owner for the purpose of an eviction suit Stage for raising objection about frame of suit.
Sri Ram Pasricha vs Jagannath and Ors. 395 WILL genuineness of legal will degree of proof.
(See Succession Act, 1925) . 925 WORDS AND PHRASES 1.
"As far as Practicable" (See Constitution of India) . 1037 2.
"House, if it concludes buildings".
(See Bombay Village Panchayat Act) . 306 3.
"Other rights" in Explanation 2 to section 2(15) of the Estates Duty Act, meaning of.
(See "Other rights") . 9 4. "Out of the funds in his possession" and "such cash balances".
Meaning of Custodian of Evacuee Property vs Smt.
Rabia Bai .
.255 5.
See "Person" meaning of General Clauses Act) . 103 19 6.
"Post graduate" Meaning of (See Interpretation) .
.477 7.
"restoration" in Section 70 of the Contract Act, meaning of.
union of India vs Sita Barn Jaiswal . 979 8.
"Substituted" meaning of.
State of Maharashtra etc.
vs The General Provinces Manganese Ore. Co. Ltd. 1002 9.
Vest Persons aggrieved Appurtenance meaning of.
Maharaj Singh vs State of Uttar Pradesh and Ors. 1072 WRIT JURISDICTION High Court cannot interfere with a finding .of fact based upon relevant circumstances and when it is not shown to be perverse The Constitution of India, Article 226.
Khazan Singh Ors.
vs Hukan Singh and Ors.
. 636 WRIT JURISDICTION OF THE HIGH COURT Scope for interference with findings of depart.
mental authorities.
Mis Khushiram Behari Lal and Co. vs The Assessing Authority Sangrur Anr.
. 752 M 184 SCI/77 2500 9 8 77 GIPF.
| IN-Abs | By virtue of section 4 of the U.P. Zamindari Abolition & Land Reforms Act, 1950, the right, title and interest of all the intermediaries in every estate including hats, bazars and melas stood terminated and vested absolutely in the State.
Section 9 provides ' that all wells, trees in abadi and all buildings situate within the limits of an Estate, belonging to an intermediary, shall continue to belong to or be held by such intermediary and the site of the buildings which is appurtenant thereto, shall be deemed to be settled with him by the State Government.
Section 117(1) empowers the State Government to vest lands in Gaon Sabhas or other local authorities.
Under section 117(6) the State Government has power to resume from a Gaon Sabha the lands vested in it.
By a notification under section 117(1 ) the State Government vested the land in the village in the Gaon Sabha.
On the estate in dispute, the defendant who was the quondam zamindar, had been conducting a cattle fair.
The estate had on it, among others, a few structures.
The plaintiffs ' (the State and the Gaon Sabha) suit for eject ment of the defendant from the estate was dismissed by the trial court.
The Gaon Sabha, however, did not appeal; but the State went in appeal to the High Court as 'a person aggrieved '.
The High Court negatived the defendants conten tions that as a result of the notification under section 117(1) the land having vested in the Gaon Sabha, the State Government had no locus standi and that it was not a person aggrieved, but allowed the defendant to keep all the struc tures and a space of 5 yards running round each building.
Dismissing the appeal, HELD: (1) The State has title to sustain the action in ejectment.
The Government, despite vesting the estates in Gaon Sabhas has, and continues to have, a constant hold on these estates, when it chooses, to take away what it had given possession of to a Gaon Sabha.
This is plainly 'present legal interest ' in the Government and a sort of precarium tenans in the Sabha.
[1082 D; 1079 F G] (a) The Act contemplates taking over of all zamindari rights as part of land reform.
Instead of centralising management of all estates at State level, the Act gives an enabling power to make over these states to Gaon Sabhas.
Apart from management, no power is expressly vested in the Sabhas to dispose of the estates absolutely.
If the State thinks fit to amend or cancel the earlier vesting declara tion or notification it can totally deprive the Sabha of, and resume from it, any estate.
The vesting in the State was absolute but the vesting in the Sabha was limited to possession and management subject to divestiture by Government.
Such a construction of vesting in two different senses in the same section is sound because the word 'vest ' has many meanings.
The sense of the situation suggests that in section 117(1) 'vested in the State ' carries a plenary conno tation, while 'shall vest in the Gaon Sabha ' imports a qualified disposition confined to the right to full posses sion and enjoyment so long as it lasts.
To postulate vesting of absolute title in the Gaon Sabha by virtue of the declaration under section 117(1) is to stultify section 117(6).
[1081 A C; F G] 1073 (b) The State is 'a person aggrieved '.
He, who has a proprietary right, which has been or is threatened by violation, is an 'aggrieved person '.
The right to a remedy apart, a larger circle of persons can move the court for the protection of defence or enforcement of a civil right or to ward off or claim compensation for a civil wrong, even if they are not proprietarily or personally linked with the cause of action.
The nexus between the lis and the plain tiff need not necessarily be personal.
A person aggrieved is an expression which has expanded with the larger urgen cies and felt necessities of our time.
[1082 E F] (c) The amplitude of 'legal grievance ' has broadened with social compulsions.
The State undertakes today activi ties whose beneficiaries may be the general community even though the legal right to the, undertaking may not vest in the community.
The State starts welfare projects whose effective implementation may call for collective action from the protected group or any member of them.
Test suits, class actions and representative litigation are the begin ning and the horizon is expanding with persons and organi sations not personally injured but vicariously concerned being entitled to invoke the jurisdiction of the court for redressal of actual or imminent wrongs.
[1083 A C] Dhabolkar ; followed. 'Locus standi ' has a larger ambit in current legal semantics than the accepted, individualistic jurisprudence of old.
Therefore, the State, in the present case, is entitled to appeal under section 96 of the= Code.
of Civil Procedure.
[1084 D] (2) Where a wrong against community interest is done, 'no locus standi ' will not always be a plea to non suit an interested public body chasing the wrongdoer in court.
In the instant case the Government is the 'aggrieved person '.
Its right of resumption from the Gaon Sabha, meant to be exercised in public interest will be seriously jeopardised if the estate slips into the hands of a trespasser.
The estate belonged to the State, is vested in the Gaon Sabha for community benefit, is controlled by the State through directions to the Land Management Committee and is liable to be divested.
The wholesome object of the legislature of cautiously decentralised vesting of estates in local self governing units will be frustrated, if the State is to be a helpless spectator of its purposeful bounty being wasted or lost.
[1083 H; 1084 A B] (3)(a) The touchstone of 'appurtenance ' is dependence of the building on what appertains to it for its use as a building.
Obviously the hat, bazar, or mela is not an appurtenance to the building.
Even if the buildings were used and enjoyed in the past with the whole.
st.retch of.vacant space for a hat or mela, the land is not appurte nant to the principal subject granted by section 9, namely, buildings.
[1085 G] (b) The larger objective of section 9 is to settle with the former intermediary only such land as is strictly appurte nant to buildings, all the rest going to the State.
for implementation of the agrarian reform policy.
[1084 G] (c) The large open spaces cannot ,be regarded as appurtenant to the terraces, stands and structures.
What a integral is not necessarily appurtenant.
A position of subordination, something incidental or ancillary or depend ent is implied in appurtenance.
That much of space required for the use of the structures as such has been excluded by the High Court itself.
Beyond that may or may not be necessary for the hat or mela but not for the enjoyment of the chabutras as such.
[1085 B C] (d) 'Appurtenance ' in relation to a dwelling, includes all land occupied therewith and used for the purposes there of.
The word 'appurtenances ' has a distinct and definite meaning.
Prima facie it imports nothing more than what is strictly appertaining to the subject matter of the devise or grant.
What is necessary for the enjoyment and has been used for the purpose of the building, such as easement, alone will be appurtenant.
The. word 'appurtenance ' in cludes all the incorporeal hereditaments attached to the land granted or demised such as rights of way, but does not include lands in addition to that granted.
[1086 D E] (e) What the High Court has granted viz., 5 yards of surrounding space is sound in law.
[1086 H] 1074
|
: Civil Appeal No. 789 of 1975.
(Appeal by Special Leave from the Judgment and Order dated 25.2.1975 of the Allahabad High Court in Civil Misc.
Writ No. 3756 of 1971).
E.C. Agarwala, for the Appellant.
B. Datta, for Respondent No. 2.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave involves a pure question of law regarding inheritance to the proper ty of one Karua.
Briefly put, the case of the appellant was that the disputed Khata was recorded in the name of Karua the son of Madhua who died leaving behind his widow Kasturi and his son Karua.
He had two brothers Khushi Ram and Lekhraj who claimed to be the next reversioners.
It is obvious that on the death of Madhua, Kasturi as the widow got half share in the property and the other half went to Karua.
The dispute seems to have arisen on the death of Karua when two rival claims were put forward, one by Kasturi who contended that she was entitled to inherit as mother of Karua, whereas Khushi Ram averred that as Kasturi had married Lekhraj she should be divested of her interest and excluded from inheritance as a result of which the property would pass on to Khushi Ram and Lekhraj in equal shares 26 as next reversioners.
The appellant also denied the fact that Kasturi had remarried Lekhraj.
The first Court of the Consolidation Officer negatived the claim of Kasturi and directed mutation to be made in the name of Khushi Ram under the provisions of the U.P. Consolidation of Holdings Act.
The present appellant filed an appeal before the Settlement Officer, Etah Camp, at Aligrah, against the decision of the Consolidation Officer who reversed the finding of the Consolidation Officer and held that as the re marriage of Kasturi with Lekhraj had not been proved, the appellant Kasturi was entitled to be recorded in the revenue papers.
Against this decision there was a revision by Khushi Ram before the Deputy Director of Consolidation who set aside the order of the Settlement Officer and restored that of the Consolidation Officer.
The Deputy Direct.
or of Consolidation held that there was abundant evidence to prove that Kasturi had re married Lekhraj and therefore, in law she would be excluded from inheriting the property and was not entitled to be mutated in respect of the Khata in question.
The appellant thereupon unsuccessfully filed a writ petition before the High Court and hence this appeal before this Court.
Learned counsel for the appellant has argued this appeal on the basis of the facts proved in this case.
He has not, and could not, assail the finding of fact arrived at by the Deputy Director of Consolidation which was the last revi sional court in this case.
Before proceeding to determine the point in controversy, it may be necessary to state the admitted facts.
In the first place it is not disputed that the claim of Kasturi was made after the death of Karua.
By that time Kasturi as the widow of Madhua had already inherited half the share.
So the dispute centered round the share of Karua alone.
The finding of fact arrived at by the Deputy Director of Consolidation that Kasturi had remar ried Lekhraj cannot be disturbed.
In fact there was some controversy regarding the dates of the death of Madhua or the re marriage of Kasturi with Lekhraj.
The position however, seems to have been set at rest by the evidence of the respondent himself who deposed that Madhua died about 10 years from the date of deposition which would take us to the year 1960.
The witness further admits that Kasturi remarried Lekhraj 2 or 3 years after Madhua 's death which would take us to 1963.
The respondent further deposes that Karua died 11/2 years from the date of deposition which fixes the death of Karua in the year 1970.
These dates are important to show that inheritance of both Karua and Kasturi would be governed by the provisions of the Hindu Succession Act which had come into force even during the lifetime of Madhua.
We may now examine the contentions raised by counsel for the appellant.
Counsel submitted that assuming that Kasturi had remarried Lekhraj she had acquired an absolute interest in the property and no question of divestment of the property could arise in view of the provisions of the Hindu Succession Act.
Secondly, it was argued that Kasturi in the instant case put forward her claim for inheritance not as widow of Madhua but as mother of Karua,.
because it was the property of Karua which was in dispute.
In the view that we take in the present appeal, it is not necessary at all to 27 decide as to whether or not Kasturi would be disinherited or divested of the property even after having acquired an absolute interest under the Hindu Law.
This is a moot question and not free from difficulty.
We will, however, assume for the sake of argument that as wife of Madhua Kasturi might be divested of her interest on her remarriage with Lekhraj.
It is plain, however, in this case that the dispute arises over the property of Karua and qua Karuna 's property, Kasturi claimed inheritance not as a widow of her husband Madhua but as the mother of Karua.
The Deputy Director off Consolidation seemed to think that the bar of inheritance would apply to a mother as such as to a widow and on this ground he refused to accept the claim of the appellant.
Learned counsel for the respondents supported the stand taken by the Deputy Director of Consolidation.
We are, however, unable to agree with the view taken by the Deputy Director of Consolidation which appears to be contrary to the written text of the Hindu Law.
Mulla in his 'Hindu Law ', 14th Edn, while describing the incidents of a mother regarding inheritance under clause (iii) ob served at p. 116 as follows: "(iii) Unchastity and remarriage Unchastity of a mother is no bar to her succeeding as heir to her son, nor does remarriage constitute any such bar.
" A large number of authorities have been cited in support of this view.
We find ourselves entirely in agreement with this view.
Our attention has not been invited to any text of the Hindu Law under which a mother could be divested of her interest in the property either on the ground of unchas tity or re marriage.
We feel that the application of bar of inheritance to the Hindu widow is based on the special and peculiar, sacred and spiritual relationship of the wife and the husband.
After the marriage, the wife becomes an absolute partner and an integral part of her husband and the principle on which she is excluded from inheritance on re marriage is that when she relinquishes her link with her husband even though he is dead and enters a new family, she is not entitled to retain the property inherited by her.
The same, however, cannot be said of a mother.
The mother is in an absolutely different position and that is why the Hindu Law did not provide that even the mother would be disinherited if the remarried.
In these circumstances we are satisfied that the view of the Deputy Director of Consolidation is legally erroneous.
The High Court erred in not interfering with it even though a pure question of law was involved and has failed to exercise jurisdiction vested in it by law.
As the case is a very old one and does not require any further investiga tion, we do not propose to remand the case to the High Court.
For these reasons, therefore, the appeal is allowed, the orders of the High Court and the Deputy Director of Consoli dation are set aside, and the order of the Settlement Officer directing the mutation of the name of Kasturi is restored.
In the circumstances of this case, there will be no order as to costs.
M.R. Appeal allowed.
| IN-Abs | On the demise of Karuna, there were two rival claims for inheritance to his property.
One by the appellant who claimed it as his widowed mother, ' and the other by his father 's brother who contended that the appellant had remarried and was thereby barred from succeeding as Karuna 's heir.
After the consolidation officer had decided against her, and the settlement officer, Etah Camp, Aligarh, in her favour, the Deputy Director of Consolidation decided a revision petition against the appellant holding that her remarriage excluded her from the inheritance.
Thereafter, the appellant unsuccessfully filed a writ petition before the High Court.
Allowing the appeal, the Court HELD: Kasturi claimed inheritance not as a widow of her husband Madhua but as the mother of Karua.
We are entirely in agreement with the view that "unchastity of a mother is no bar to her succeeding as heir to her son, nor does her remarriage constitute any such bar".
Under the Hindu law, the bar of inheritance would not apply to a mother, as it would to a widow.
[27B D] 'Hindu Law ' 14th Edn. clause iii) p. 116 followed.
|
iminal Appeal No. 42 of 1955.
On Appeal by Special leave from the Judgment and Order dated the 8th October 1954 of the Bombay High Court in Criminal Appeal No. 315 of 1954 arising out of the Judgment and Order dated the 6th January 1954 of the Court of the 4th Presidency Magistrate, Bombay in Cases Nos.
639 40/P 1955.
H. J. Umrigar, J. B. Dadachanji and Rajinder Narain for the appellant.
Porus A. Mehta and P. G. Gokhale for the respondent.
October 14.
The Judgment of the Court was delivered by BHAGWATI J.
The accused No. 1, the Appellant before us, and accused Nos. 2, 3 and 4 were charged that they, at Bombay, between about June 1950 and November 1950, were parties to a criminal conspiracy by agreeing to do certain illegal acts, to wit: Firstly, 882 that they used as genuine forged bills of entry which included bills of entry Exhibit Z; Secondly, that they ,heated the Deputy Chief Controller of Imports, Bombay, by fraudulently I and dishonestly inducing him to deliver to the firm of J. Sobhraj & Co., an import licence bearing No. 248189/48 to import cycles from United Kingdom of the value of Rs. 1,98,960; Thirdly, that they cheated the Deputy Chief Controller of Imports, Bombay, by falsely and dishonestly inducing him to deliver to the firm of J. Sobhraj & Co., an import licence bearing No. 203056/48 to import watches from Switzerland of the value of Rs. 3,45,325; and Fourthly, that they cheated the Deputy Chief Controller of Imports, Bombay, by fraudulently and dishonestly inducing him to deliver to the firm of J. Sobhraj & Co., an import licence bearing No. 250288/48 to import artificial silk piece goods from Switzerland of the value of Rs. 12,11,829; and the above said illegal acts were done in pursuance of the said agreement and that they thereby committed an offence punishable under section 120 B of the Indian Penal Code.
There were also charges against all the accused under section 471 read with section 465 and section 34 and also under section 420 read with section 34 of the Indian Penal Code in respect of each of the three illegal acts aforesaid.
The learned Presidency Magistrate, 23rd Court, Esplanade, Bombay, tried all the accused for the said offences and acquitted all of them.
The State of Bombay thereupon took an appeal to the High Court of Judicature at Bombay, and the High Court reversed the acquittal of accused No. I and held him guilty of all the offences with which he had been charged including the offence under section 120 B of the Indian Penal Code.
The acquittal of accused 2, 3 and 4 was confirmed.
The High Court, even though it acquitted accused 2) 3 and 4 of the charge under section 120 B of the Indian Penal Code, was of the opinion that the deed of assignment put forward by the accused No. I in his defence was a false and fabricated document and the ,said document along with its accompaniments was 883 forged or was got forged by or with the knowledge or connivance of the accused No. 1 and his co conspirators and it was impossible to believe that this conspiracy carried out with such meticulous care could be the work of only accused No. 1.
There was no evidence on the record to warrant any inference that the accused No. I was acting in the matter in collaboration with any other 'co conspirators and the only evidence was in regard to the various acts alleged to have been done by accused 2, 3 and 4 in the matter of the conspiracy and the furtherance of the objects thereof While considering the question of sentence to be passed on the accused No. 1 who, in spite of the circumstances aforesaid, was convicted of the offence under section 120 B of the Indian Penal Code, the High Court observed that "the conspirators, whoever they were, had shown considerable ingenuity and daring in carrying out the object of the conspiracy and that it felt no hesitation in Coming to the conclusion that it was not straitened circumstances or financial difficulties which were the basis of the conspiracy but it was the greed for money on such a large scale as could never be regarded as an extenuating circumstance".
It, therefore, directed that the accused No. I should undergo rigorous imprisonment for 18 months for the offence under section 120 B of the Indian Penal Code.
The application for leave to appeal to this Court filed by accused No. 1 was rejected by the High Court.
The accused No. 1 thereupon applied for and obtained special leave to appeal against the decision of the High Court.
The special leave was, however, limited to the question of law, whether the conviction under section 120 B is maintainable in view of the fact that the other alleged conspirators had been acquitted.
The charge as framed under section 120 B of the Indian Penal Code was levelled against 4 named individuals, the accused Nos. 1) 2, 3 and 4.
It was not a charge against them and other persons unknown with the result that if accused 2, 3 and 4 were acquitted of that charge, there remained only accused No. 1 and 112 884 the question, therefore, arises for our consideration whether, under the circumstances, the accused No. I could be convicted of the offence under section 120 B of the Indian Penal Code.
Criminal conspiracy has been defined in section 120 A of the Indian Penal Code: "When two or more persons agree to do or cause to be done (i) an illegal act, or (ii) an act which is, not illegal by illegal means, such an agreement is designated a criminal conspiracy".
By the terms of the definition itself there ought to be two or more persons who must be parties to such an agreement and it is trite to say that one person alone can never be held guilty of criminal conspiracy for the simple reason that one cannot conspire with oneself.
If, therefore, 4 named individuals were charged with having committed the offence under section 120 B of the Indian Penal Code, and if three out of these 4 were acquitted of the charge, the remaining accused, who was the accused No. 1 in the case before us, could never be held guilty of the offence of criminal conspiracy.
If authority for the above proposition were needed, it is to be found in Archbold 's Criminal Pleading, Evidence and Practice, 33rd edition, page 201, paragraph 361: "Where several prisoners are included in the same indictment, the jury may find one guilty and acquit the others, and vice versa.
But if several are indicted for a riot, and the jury acquit all but two, they must acquit those two also, unless it is charged in the indictment, and proved, that they committed the riot together with some other person not tried upon that indictment.
2 Hawk.
c. 47.
section 8.
And, if upon an indictment for a conspiracy, the jury acquit all the prisoners but one, they must acquit that one also, unless it is charged in the indictment, and proved, that he conspired with some other person not tried upon that indictment.
2 Hawk.
c. 47.
section 8; 3 Chit.
Cr. L., (2nd ed.) 1141; R. vs Thompson, ; R. vs Manning, 12.
Q.B.D. 241; R. vs Plummer The King vs Plummer ([1902] 2 K.B. 339) which is 885 cited in support of this proposition was a case in which, on a trial of indictment charging three persona jointly with conspiring together, one person had pleaded guilty and a judgment passed against him, and the other two were acquitted.
It was held that the judgment passed against one who had pleaded guilty was bad and could not stand.
Lord Justice Wright observed at page 343: "There is much authority to the effect that, if the appellant had pleaded not guilty to the charge of conspiracy, and the trial of all three defendants together had proceeded on that charge, and had resulted in the conviction of the appellant and the acquittal of the only alleged co conspirators, no judgment could have been passed on the appellant, because the verdict must have been regarded as repugnant in finding that there was a criminal agreement.
between the appellant and the others and none between them and him: see Harrison vs Errington (Popham, 202), where upon an indictment of three for riot two were found not guilty and one guilty, and upon error brought it was held a "void verdict", and said to be "like to the case in 11 Hen.
4, c. 2, conspiracy against two, and only one of them is found guilty, it is void, for one alone cannot conspire".
" Lord Justice Bruce at page 347 quoted with approval the statement in the Chitty 's Criminal Law, 2nd ed., Vol.
III, page 1141: "And it is holden that if all the defendants mentioned in the indictment, except one, are acquitted, and it is not stated as a conspiracy with certain persons unknown, the conviction of the single defendant will be invalid, and no judgment can be passed upon him".
The following observations made by Lord Justice Bruce are apposite in the context before us: "The point of the passage turns upon the circumstance that the defendants are included in the same indictment, and I think it logically follows from the nature of the offence of conspiracy that, where two or more persons are charged in the same indictment with conspiracy with another, and the indictment 886 contains no charge of their conspiring with other persons not named in the indictment, then, if all but one of the persons named in the indictment are acquitted, no valid judgment can be passed upon the one remaining person, whether he has been convicted by the verdict of a jury or upon his own confession, because, as the record of conviction can only be made up in the terms of the indictment, it would be inconsistent and contradictory and so bad on its face.
The gist of the crime of conspiracy is that two or more persons did combine, confederate, and agree together to carry out the object of the conspiracy".
This position has also been accepted in India.
In Gulab Singh vs The Emperor (A.I.R. 1916 All. 141) Justice Knox followed the case of The King vs Plummer, supra, and held that "it is necessary in a prosecution for conspiracy to prove that there were two or more persons agreeing for the purpose of conspiracy" and that "there could not be a conspiracy of one".
To similar effect was the judgment in King Emperor vs Osman Sardar (A.I.R. where Chief Justice Sanderson observed that "the gist of an offence under section 120 B was an alleged agreement between the two accused and when the jury found that one of them was not a party to the agreement and acquitted him of that charge, it followed as a matter of course that the other accused could not be convicted of that charge.
The assent of both of them was necessary to constitute the agreement which was the basis of the charge".
Ratanlal in his Law of Crimes, 18th ed., page 270, has summarised the position as it emerges from the above two cases in the manner following: "Where, therefore, three persons were charged with having entered into a conspiracy, and two of them were acquitted, the third person could not be convicted of conspiracy whether the conviction be upon the verdict of a jury or upon his own confession".
The position in law is, therefore, clear that on the charge as it was framed against the accused Nos. 1, 2 3 and 4 in this case, the accused No. I could not 887 be convicted of the offence under section 120 B of the Indian Penal Code when his alleged co conspirators accused 2, 3 and 4 were acquitted of that offence.
In our opinion, therefore, the conviction of the accused No. I of the charge under section 120 B of the Indian Penal Code was clearly illegal.
The appeal of the accused No. 1 will, therefore, be allowed to the extent that his conviction under section 120 B of the Indian Penal Code and the sentence of rigorous imprisonment of 18 months awarded to him as the result thereof would be quashed.
We are not concerned here with the conviction of the accused No I of the offences under section 471 read with section 465 and also his conviction for each of the three offences under section 420 of the Indian Penal Code and the concurrent sentences of rigorous imprisonment for one year in respect of each of them passed by the lower Courts upon him in regard to the same.
These convictions and sentences will of course stand.
| IN-Abs | According to the definition of criminal conspiracy in section 120 A ' of the Indian Penal Code two or more persons must be patties, to such an agreement and one person alone can never be held guilty of criminal conspiracy for the simple reason that one cannot conspire with oneself.
Where, therefore, 4 named individuals as in the present case eye charged with having committed an offence under section 120 .B.
I.P.C. and three out of those four were acquitted of the charge, the fourth accused could not be held guilty of the offence of criminal conspiracy.
|
Appeal Nos. 1577 and 1579 of 1971.
Appeal from the judgment and Orders dated 23 3 1971 and 22 4 1971 of the Madras High Court in Writ Petitions Nos.
1088/70 and 1316/71.
K. Srinivasan, I. Subramaniam and (Mrs.) section Gopalakrish nan for the Appellants.
K. Purasaran, Advocate General for the State of Tamil Nadu, A. V. Rangam and (Miss) A. Subhashini for the Respond ents.
The Judgment of the Court was delivered by KHANNA, J.
These appeals by special leave are against the judgment of Madras High Court whereby, that court re pelled the challenge to the validity of items 7(a) and 7(b) of the Second Schedule to the Madras General Sales Tax Act, 1959 (hereinafter referred to as the State Act).
The appellants are dealers in hides and skins.
The appellants purchase raw hides and skins locally as well as in the course 'of interState trade and commerce.
The raw hides and skins are converted into dressed hides and skins and are sold either locally or.
in the course of export.
The matter relates to the assessment year 1968 69 and the dispute between the parties arises because of the inclusion in the turnover of the sale and purchase price of some of the above goods.
The appellants by means of writ petitions challenged the validity of items 7(a) and 7(b) of the Second Schedule to the State Act.
The High Court, as already mentioned, repelled the attack on the validity of those items and dismissed the.
writ petitions.
Before dealing with the contentions advanced, it may be appropriate to refer to the relevant provisions.
Section 4 of the State Act is the charging section in respect of declared goods and reads thus: "Tax in respect of declared goods.
Notwithstanding anything contained in section 3, the tax under this Act shall be payable by a dealer on the sale or purchase inside the State of declared goods at the rate and only at the point specified against each in the second schedule of the turnover in such goods in each year, whatever the quantum of turnover in that year.
" 1067 It may be mentioned that raw hides and skins as well as dressed hides and skins are declared goods under section 14(if) of the (hereinafter referred to as the Central Act).
Section 14(iii) of the Central Act reads as under: " 'It is hereby declared that the following goods are of special importance in inter State trade or commerce: . . . . . . . . . . . . (iii) hides and skins, whether in a raw or dressed state.
" Items 7(a) and 7(b) of the Second Schedule to the State Act and read as under: Items 7(a) and 7(b) of the Second Schedule to the State Act read as under : "section No. Description of goods Point of levy Rate of tax 1 2 3 4 7(a) Raw hides and skins At the point of 3 last chase in the State.
7(b) Dressed hides and At the point of 1 1/2 skins (which were 1st sale in the not subjected to State.
tax under this Act as raw hides and skins) ,, So far as validity of item 7(a) of the Second Schedule is concerned, the argument of the learned counsel for the appellant is that this would cover also inter State sales and as such is beyond the competence of the State legisla ture.
We are unable to accede to this contention as we are of the view that item 7(a) relates only to interState sales and not to inter State sales.
This is clear from the lan guage used in the item, especially the words "purchase in the State".
Assuming that the language of item 7(a) is ambiguous, it should be so construed as would sustain the constitutional validity of the said item.
Considered in this light the occasion.
for the levy of tax under the above item would arise only when there is intra State sale and not inter State sale.
Regarding from 7(b), the learned counsel for the appel lants has contended that it is violative of clause (a) article 304 of the Constitution.
The said clause reads as under: "304.
Notwithstanding anything in article 301 or article 303, the Legislature of a State may by law (a) impOse on goods imported from other States or the Union Territories any tax to which. similar foods manufactured or pro duced in that State are subject, so, however, as not to discriminate between goods 18 1338sci/76 1068 so imported and goods so manufactured or produced; and (b) . . . .
According to 'the learned counsel, 'there can be three types of sale transactions in respect of dressed hides and skins: (1 ) Dressed hides and skins imported from outside the State of Tamil Nadu.
Tanning of the aforesaid (2) Import of raw hides and skins from out side the State of Tamil Nadu and sold within that State; raw hides and skins within the State of Tamil Nadu and the sale of the same within that State as dressed hides and skins; and (3) Purchase of raw hides and skins within the State of Tamil Nadu and sale of the same within that State as dressed hides and skins after tanning those hides and skins.
It is urged that in respect of hides and skins covered by the third category, the local sales of dressed hides and skins will not be liable to tax under 'State Act as the purchase of the raw hides and skins has already been sub jected to tax under item 7(a).
Regarding hides and skins mentioned at (1) and (2) above, the local sales of dressed hides and skins would be subjected to tax at the rate of 1 1/2 per cent under item 7(b) as there was no levy of tax under the State Act in respect of those hides and skins.
Learned counsel accordingly concludes from the above that imported hides and skins are subject to tax when sold as dressed hides and skins at the rate of 11/2 per cent, whereas hides and skins purchased in raw form locally and dressed thereafter are not subject to tax under the State Act when sold as dressed hides and skins.
The contention, mother words, is that whereas dressed hides and skins sold locally but which have been made out of imported raw hides and skins are subject to tax, similar sales of dressed hides and skins made out of raw hides and skins which have suffered tax at purchase stage are not subject to tax under item 7(b) of the Second Schedule of the State Act.
Item 7(b) is therefore stated to be discriminatory and violative of article 304(a).
Reliance in this connection is placed upon two decisions of this Court in the cases of Firm A.T.B. Mehtab Majid & Co. vs The State of Madras & Anr.
(1) and A. Hajee Abdul Shukoor & Co. vs The State of Madras.(2) In the case of Mehtab this Court held that the provi sions of rule 16 of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939 discriminate between hides and skins imported from outside the State and those manufac tured or produced inside the State and therefore they con travene the provisions of article 304(a) of the Constitu tion.
Perusal of the facts of that case goes to show that the real grievance of the appellant in that case was that though there was a substantial disparity in the price of raw hides and skins and the price of dressed hides and skins, the same rate of tax was levied (1) 14 S.T.C. 355.
(2) 15 S.T.C. 719.
1069 in respect of both types of hides and skins under section 3(1) (b) of the State Act.
This is clear from the following observations in that case: "The grievance arises on account of the amount of tax levied being different on ac count of the existence of a substantial dis parity in the price of the raw hides or skins and of those hides or skins after they had been tanned, though the rate is the same under section 3(1) (b) of the Act.
If the dealer has purchased the raw.
hides or skin in the State, he does not pay on the sale price of the tanned hides or skins he pays on the purchase price only.
If the dealer purchases raw hides or skins from outside the State and tane them within the State, he will be liable to pay sales tax o, the sale price of the tanned hides or skins.
" In the case of Hajee Abdul Shukoor this Court held that Subsection (1) of section 2 of the Madras General Sales Tax (Special Provisions) Act, 1963 discriminates against imported hides and skins which were sold up to August 1, 1957.
The rate of tax on the sale of tanned hides and skins, as would appear from that judgment, was "2 per cent on the purchase price of those hides and skins in the untanned condition, while the rate of tax on the sale of raw hides and skins in the State during 1955 to 1957 is 3 pies per rupee".
The Court in this context referred to Mehtab 's case and observed: "In the earlier case, discrimination was brought about on account of sale price of tanned hides and skins to be higher than the sale price of untanned hides and skins, though the rate of tax was the same, while in the present case, the discrimination does not arise on account of difference of the price o.n which the tax is levied as the tax on the tanned hides and skins is levied on the amount for which those hides and skins were last purchased in the untanned condition, but on account of the fact that the rate of tax the sale of tanned hides and skins is higher than that on the sale of untanned hides and skins.
The rate of tax on the sale of tanned hides and skins is 2% on the purchase price of these hides and skins in the untanned condition while the rate of tax on the sale of raw hides and skins on the State during 1955 to 1957 is 3 pies per rupee.
The difference in tax works out to 7/1600th of a rupee, i.e., a little less than 1/2 naya paise per rupee.
Such a discrimination would affect the taxation up to the 1st of August, 1957, when the rate of tax on the sale of raw hides and skins was raised to 2% of the sale price.
" None of the circumstances which led this Court to strike down the relevant provisions in the above mentioned two cases exists in the present case.
In Mehtab 's case discrimi nation was found to exist because of the fact that tax was being levied at the same rate in respect of both raw hides and skins ' as well as dressed hides and skins, even though 1070 the price of dressed hides and skins was much higher.
The position was worse in the vase of Hajee Abdul Shukoor be cause in that case the sales tax was found to have been charged at a higher fate in respect of dressed hides and skins than that on the sale of raw hides and skins in spite of the fact that the price of dressed hides and skins was higher than that of raw hides and skins.
The position in the present case is materially different, for here the rate of sales tax for raw hides and skins is 3 per cent, while that for dressed hides and skins is 11/2 r cent.
It is plain that the lower rate of tax in the case of dressed hides and skins has been prescribed with a view to offset the difference between the higher price of dressed hides and skins and lower price of raw hides and skins.
No mate rial has been brought on the record to show that despite the lower rate of sales tax for dressed_ hides and skins, the imported hides and skins are being subjected to discrimina tion.
The onus to show that there would be discrimination between the hides and skins which were purchased locally in the raw form and thereafter tanned and the hides and skins which were imported from other States was upon the appel lant.
The appellant, we find, has failed to discharge such onus.
Article 304(a) does not prevent levy of tax on goods; what it prohibits is such levy of tax on goods as would result in discrimination between goods imported from other States and similar goods manufactured or produced within the State.
The object is to prevent discrimination against imported goods by imposing tax on such goods at a rate higher than that borne by local goods since the differ ence between the two rates would constitute a tariff wall or fiscal barrier and thus impede the free flow of inter State trade and commerce.
The question as to when the levy of tax would constitute discrimination would depend upon a variety of factors including the rate of tax and the item of goods in respect of the sale of which it is levied.
The scheme of items 7(a) and 7(b) of the Second Schedule to the State Act is that in case of raw hides and skins which are purchased locally in the State, the levy of tax would be at the rate of 3 per cent at the point of last purchase in the State.
When those locally purchased raw hides and skins are tanned and are sold locally as dressed hides and skins, no levy would be made on such sales as those hides and skins have already been subjected to local tax at the fate of 3 per cent when they were purchased in raw form.
As against that, in the case of hides and skins which have been import ed from other States in raw form and are thereafter tanned and then sold inside the State as dressed hides and skins, the levy of tax is at the rate of 1 1/2 per cent at the point of first sale in the State of the dressed hides and skins.
This levy cannot be considered to be discriminatory as it takes into account the higher price of dressed hides and skins compared to the price of raw hides and skins.
It also further takes note of the fact that no tax under the State Act has been paid in respect of those hides and skins.
The Legislature, it seems, calculated the price of hides and skins in dressed condition to be double the price of such hides and skins 'in raw state, To obviate and prevent any discrimination or differential treatment in the matter of levy of tax, the Legislature therefore prescribed a rate of tax for sale of dressed hides and skins which was half of that levied under item 7(a) in respect of raw hides and skins.
1071 Lastly, it has been argued that dressed hides and skins are a commodity distinct and separate from raw hides and skins and that item 7(b) of the Second Schedule makes a discrimination between 'the sales of locally processed dressed hides and skins and those imported from other States.
In this respect we find that it is not the case of the appellants that they import dressed hides and skins from other States and sell them as such in Tamil Nadu.
On the contrary, the case of the appellants is that what they _import from other States are only raw hides and skins which are thereafter tanned and sold as dressed hides and skins.
In the circumstances, it is not clear as to what grievance the appellants can have on the score that there is discrimi nation between imported dresed hides and skins and the dressed hides and skins produced and manufactured within the State.
Apart that it seems to us that even though dressed hides and skins have been treated as separate commodity, there is a clear nexus between hides and skins in raw form and those in dressed form.
So far as the Central Act is concerned, both the raw as well as the dressed hides and skins are specified together in clause (iii) of section 14.
It has to be borne in mind that it is raw hides and skins which after being subjected to processing or tanning take the shape of dressed hides and skins.
Dressed hides and skins cannot, therefore, be considered in isolation and we find no infirm ity in a legislative provision which while levying tax on the sale of dressed hides and skins takes into account the levy of tax in respect of the purchase of raw hides and skins.
Looked at in this light there appears to be no warrant for the proposition that preferential treatment has been shown to dressed hides and skins prepared from locally purchased raw hides and skins compared to the treatment accorded to imported hides and skins.
We are therefore, of the view that the attack on the validity of item 7(b) of the Second Schedule to the State Act is not well founded.
We accordingly dismiss the ap peals, but in the circumstances without costs.
V.P.S. Appeal dismissed.
| IN-Abs | Raw as well as dressed hides and skins are declared goods under .
Section 4 of the Madras General Sales Tax Act, 1959, provides that the tax shall be payable by a dealer, on the sale or purchase of declared goods inside the State, at the rate and only at the point specified in the Second Schedule to the Act, on the turnover 'in such goods.
Item 7(a) of the Schedule provides that with respect to raw hides and skins, the rate of tax shall be at 3% and the point of levy shall be at the point of last purchase in the State.
Item 7(b) provides that with respect to dressed hides and skins (which were not subjected to tax under the Act as raw hides and skins), the rate of tax shall be 1 1/2% and the point of levy shall be at the point of first sale in the State.
The appellants are dealers in hides and skins.
They purchase raw hides and skins locally as well as in the course of inter state trade and commerce, convert them into dressed hides and skins and sell them either locally or in the course of export.
The appellants challenged the validi ty of items 7(a) and 7(b).
The challenge to item 7(a) was that the item would also cover inter state sales and as such was beyond the competence of the State Legislature; and the challenge to item 7(b) was that it was violative of article 304 (a) of the Constitution on the ground that whereas dressed hides and skins sold locally, but which have been made out of imported raw hides and skins, are subject to tax under the item similar sale of dressed hides and skins made out of raw hides and skins which have been subjected to tax at the purchase stage are not subject to tax under the item.
HELD: (1) Item 7(a) relates only to intra state sales and not to inter state sales.
This is clear from the lan guage used in the item, especially the words "purchase in the State".
Assuming the language is ambiguous it should be so construed as would sustain its, constitutional validity.
[1067 F] (2) Article 304(a) does not prevent levy of tax on goods: what it prohibits is such levy of tax on goods as would result in discrimination between goods imported from other states and similar goods manufactured or produced within the State.
The object is to prevent discrimination against imported goods by imposing tax on such goods at a rate higher than that borne by local goods since the difference between the two rates would constitute a fiscal barrier and thus impede the free flow of inter state trade and commerce.
The scheme of items 7(a) and (b) is that in the case of raw hides and skins which are purchased locally in the State, the levy of tax would be at the rate of 3%.
When such locally purchased raw hides and skins are tanned and sold locally as dressed hides and skins no levy would be made on such sales, as those hides and skins have already been subjected to tax at 3% when purchased in the raw form.
On the other hand, in the case of hides and skins imported from other States in the raw form, thereafter tanned, and then sold inside the State as dressed hides and skins, the levy of tax is at 11/2%.
This levy however, cannot be considered discriminatory because the Legislature, while prescribing the rate in item 7(b) at half that levied under item 7(a) took into account the higher price of dressed hides and skins (nearly double) as compared to the price of raw hides and skins, and the fact that no tax under the State Act has been paid in respect of imported raw hides and skins.
Even though dressed hides and skins are treated as a. separate commodity there is a clear nexus between hides 1066 and skins in the raw form and those in the dressed form; and hence, there is no infirmity in the legislative provision, which, while levying tax on the sale of dressed hides and skins takes into account the levy in respect of raw hides and skins.
[1070 D H] .
The onus of showing that there would be discrimination .between raw hides and skins purchased local ly and then tanned, and raw hides and skins imported and then tanned is on the appellant, and the appellant has not discharged the onus.
[1070 C] Firm A. T. B. Mehtab Majid & Co. vs The State of Madras & Anr.
14 S.T.C. 355 and .4.
Hajee Abdul Shukoor & Co. vs The State of Madras 15 S.T.C. 719, explained and distin guished.
|
Appeal No. 1901 of 1970.
(From the Award dated 4/6.3.1970 of the Industrial Tribunal Maharashtra in Ref.
(I.T.) No. 158/67, published in Maharashtra Govt.
Gazette, Part I L dated 16 4 1970).
F.V. Kaka, F.A.K. Faisulla Bhai, O.C. Mathur and D. N Mishra for the Appellant.
F.D. Damania and B.R.Agarwala for Respondent No. 2.
Y.S. Chitale, P.H. Parekh and Miss Manjit Jelley, for Respondent No. 3.
The Judgment of the Court was delivered by GOSWAMI, J.
This appeal by special leave brings forth a rather disquieting feature of union rivalry whereby the significance of collective bargaining which is the forte of a union, is sought to be made 17 a flop.
We say this in the absence of any suggestion of mala fides or of any other ulterior motive alleged by .the contending union on time part of the rival union or its principal officer who had negotiated a certain settlement on behalf of the workmen in substitution of the award of the Industrial Tribunal out of which this appeal arose.
The appellant before us is the employer, supported, whole hog, by the Bombay General Kamgar Sabha, respondent NO.
3.Respondent No. 2 is the only contending union, viz.
,Mum baiMazdoor Sabha.
On May 18, 1967, there was a :reference by the Govern ment of Maharashtra of an industrial dispute under section 10(1)(d).of the Industrial Disputes Act to the Industrial Tribunal for adjudicating eight demands such as, wage scales, adjustment of.
increments, classification of workmen into different grades, dearness allowance, restropective effect of the claim from 1st June, 1966, gratuity, sick leave and wages for Sundays and holidays when called upon to .Work
The dispute was between the D& P Products (Private) Limited, Bombay and their workmen.
A written statement was submitted 'by the Mumbai Mazdoor Sabha (2nd respondent), claiming to represent the majority of the workmen on: July 25, 1967.
It appears that this written statement was signed by V. section Pandit as General Secretary.
The company submitted their written statement on August 17, 1967, in which; inter alia, they pleaded.
incapacity to have greater burden on account of financial position.
It was stated that the company had been making losses year after year since 1963 64 During the pendency of the dispute before the Tribunal, D & P Products (Private) Limited was amalgamated .with
Herbertsons Ltd. (the appellant) (hereinafter to be de scribed as the company) with effect from 1.10.1968 under the provisions of the" Companies Act by an order of the Bombay High ' Court dated 6th January, 1969.
The wage scales existing at the time.
of the reference were as follows : Unskilled Rs. 1.25 0.10 2.25 Semi skilled Rs. 1.50 0.15 3.00 Dearness allowance Rs. 2.16 per day.
The demand of the workmen on the other hand was as follows.
Unskilled Rs. 1.50 0.15 3.00 per day Semi skilled Rs 1.75 0.20 3.75 " " Skilled Rs. 2.50 0.30 5.50 " " Highly skilled Rs. 3.50 0.45.8.00 " " Dearness allowance "as paid to.
the Bombay Textile Oper atives".
3 1458SCI/76 18 The Tribunal (Shri R.D. Tulpule) made its award on March 4, 1970.
As regards the demand for wages and dearness allowance, the award of Tribunal was as follows : Grade I Rs Plus Revised (Unskilled) 1.30 0. 12 2.50 Textile dearness allowance.
Grade II B (Semi skilled) 1.40 0.15 3.20 do A (Semi skilled) 1 60 0.30 3.60 do Grade III 1.80 0.20 2.80 0.25 4.80 do (Skilled) The company preferred an application for special leave to this Court on May 12, 1970, against the award.
On May 25, 1970, certain consent terms for staying the award were filed by the parties without prejudice to the rights in the appeal whereby the company agreed to pay Rs. 2.50 as addi tional dearness allowance per day from October 1, 1968.
This Court admitted the special leave petition and posted the stay application for hearing on September 24, 1970, on which date in modification of the earlier stay order the parties further agreed that from 1st September, 1970, till the disposal of the appeal, the total dearness allowance would be calculated at Rs. 5/ per day irrespective of the index figures.
On February 22, 1973, the company agreed to increase the dearness allowance further by 80 paise with effect from January 1, 1973.
From June 1973 certain new developments took place.
On June 7, 1973, a letter was received by the company from the 3rd respondent, Bombay General Kamgar Sabha, stating that all the workers of the company had resigned from the 2nd respondent union (Mumbai Mazdoor Sabha) and joined the 3rd respondent union.
On June 7, 1973, the 3rd respondent sent a communication to the respondent No. 2 with a copy to the company enclosing a letter signed by the workers stating that they had resigned from the 2nd respondent union.
On June 25, 1973, the 3rd respondent sent a reminder to the company to recognise the Bombay General Kamgar Sabha.
By a letter dated 2nd/5th July, 1973, to the President, Bombay General Kamgar Sabha, who was incidentally the same V.S. Pandit who had earlier submitted the written statement in behalf of the Mumbai Mazdoor Sabha, the company granted recognition to the Bombay General Kamgar Sabha and informed the 2nd respondent of its derecognition.
On October 18, 1973, the company entered into a memorandum of settlement with the Bombay General Kamgar Sabha which was in substitution of the award which was pending appeal before this Court.
Copies of this settlement were forwarded to the Secretary to the Government of Maharashtra, Industries and Labour Department, the Commissioner of Labour, the Deputy Commissioner of Labour and the Conciliation Officer.
It is common ground that this is a settlement under section 18 (1) of the Industrial Disputes Act.
The 3rd respondent applied to this Court to be substi tuted if place of the 2nd respondent and the Other union.
The 2nd respondent 19 alone resisted the application claiming that it had still the allegiance of 50 workmen of the company.
This Court allowed the Bombay General Kamgar Sabha to be added as the 3rd respondent.
The company also submitted a petition to this Court to decide the appeal in terms of the memorandum of settlement dated October 18, 1973.
This Court on December 19, 1974, passed the following order : "The number of workmen concerned in this industrial dispute is 210.
The appellant employer and the 3rd respondent union which claims to have 193 members on its rolls have entered into a settlement.
The 2nd respondent union which claims to have about 55 members on its rolls has not yet accepted the settlement.
We think it just, therefore, to pass the same kind of preliminary order that was passed in Amalgamated Coffee Estate vs Their workmen in the following terms : "In view of the fact that admittedly a large number of workmen employed by the appellant have accepted the settlement, is it shown by the 2nd respondent union that the said settlement is not valid and binding on its members and whether the settlement is fair and just?" "The Industrial Tribunal, Maharashtra, would consider the issue and submit its finding within two months from this date.
After the finding is received, the appeal would be set down for hearing.
Parties should be allowed to lead evidence.
" When the matter went back, it appears that respondent No. 2 did not lead any evidence before the Tribunal (Shri D.L. Bhojwani).
The company and the 3rd respondent, on the other hand, examined 7 witnesses including V.S. Pandit, the President of the 3rd respondent union.
Certain documents were also filed before the Tribunal by the parties.
The Tribunal after hearing the parties in due course recorded its findings on September 9. 1975 and forwarded the same to this Court.
The findings of the Tribunal recorded are as follows : (1) Respondent 2 the Mumbai Mazdoor Sabha has been able to prove that the Disputed Settlement is not valid and binding on its members.
(2) The Disputed Settlement is incomplete to the extent mentioned above.
(3) The scheme of D.A. provided for in the Disputed Settlement in so far as it affects workmen at or just above the subsistence level is not fair, just and reasonable.
(4) The rest of the Disputed Settlement is fair, just and reasonable.
" 20 That is how this appeal has come up for bearing before us.
The first question that arises for consideration is whether the findings.
of the Tribunal are sustainable.
The appellant and respondent No. 3.
with one voice, have as sailed the findings 1 to 3 whereas the 2nd respondent has supported all the findings.
It is strenuously submitted by the 2nd respondent that there is no reason why we should interfere with the findings of fact returned by the Tribunal and relying upon these it is further contended that we should hear the appeal on the merits ignoring the settlement altogether.
Before we proceed further it is necessary to appreciate the implication of the order of this Court passed on Decem ber 19, 1974, set out earlier.
This order was passed after hearing the parties for some time when the appeal was first called for hearing on December 19, 1974.
From the recitals in the order it is apparent that the parties were prepared to abide by the settlement if the same was fair and just.
We are not prepared to accept the position, as urged by the 2nd respondent, that even if the settlement is binding on the parties executing the document, namely, the company and the 3rd respondent representing a large majority of the workmen, since the same is not binding on the members of the Mumbai Majdoor Sabha Union, howsoever small the number, under section 18 (1) of the Industrial Disputes Act, the appeal should be heard on merits.
On the other hand, we take the view that after hearing the parties this Court was satisfied when it had called for a finding of the Tribunal that if the settlement was fair and just it would allow the parties to be governed by the settlement substituting the award.
The wording of the issue sent to the Tribunal for a finding clearly shows that there was an onus on the 2nd respondent to show how many workers of the appellant were their members upon whom they could clearly assert that the settlement was not binding under section 18(1) of the Indus trial Disputes Act.
It cannot be assumed that the parties were not aware of the implications of section 18(1) of the Industrial Disputes Act when the Court passed the order of December 19, 1974.
This Court would not have sent the case back only to decide the legal effect of section 18(1) of the Industrial Disputes Act.
Since a recognised and registered union had entered into a voluntary settlement this Court thought that if the same, were found to be just and fair that could be allowed to be binding on all the workers even if a very small number of workers were not members of the majority union.
It is only in that context that after hear ing the parties the case was remanded to the Tribunal for a finding on the particular issues set out above.
The numerical strength of the members of the 2nd re spondent, who are workers of the company, would also have an important bearing as to whether the settlement accepted by the majority of the workmen is to be considered as just and fair.
In that view of the matter we are unable to appreci ate that the 2nd respondent did not choose it fit to produce evidence to show the actual number of the workers of the company having membership of the 2nd respondent.
It is rather odd that not a single worker of the company claimed before the Tribunal 21 to be a member of the 2nd respondent and to assert that the settlement was not fair and just.
This is particularly so when all the workers of the company have accepted the settlement and also received the arrears and emoluments in accordance with the same.
The Tribunal thought that the question of the quantum of membership of the 2nd respondent did not call for a finding at all in view of 1his Court 's order.
As observed above that was not a correct assumption.
On the other hand, we feel that this view of the Tribunal has led it to approach the matter in an entirely erroneous manner.
The Tribunal is, rightly enough, conscious that under section 18 (1) of the Industrial Disputes Act the settlement was binding on the company and the members of the 3rd respondent union.
Even so, the Tribunal devoted nearly half of its order in scanning the evidence given by the company and respondent No. 3 to find out whether the terms of the settlement had been explained by the President of the union to the workmen or not and whether the workers voluntarily accepted the settlement knowing all the "consequences".
This to our mind is again an entirely wrong approach.
When a recognised union negotiates with an employer the workers as individuals do not come into the picture.
It is not necessary that each individual worker should know the implications of the settlement since a recognised union, which is expected to protect the legitimate interests of labour, enters into a settlement in the best interests of labour.
This would be the normal rule.
We cannot altogeth er rule out exceptional cases where there may be allegations of mala fides, fraud or even corruption or other induce ments.
Nothing of that kind has been suggested against the President of the 3rd respondent in this case.
That being the position, prima facie, this is a settlement in the course of collective bargaining and, therefore, is entitled to due weight and consideration.
It is true that in the course of evidence given by the 'President as also by two workmen and other officers of the company the Tribunal has found certain discrepancies.
For example, the President in the course of cross examination stated that since the workers had already agreed he only tried to improve upon the settlement by negotiating .with the company for 85% and 871/2% dearness allowances instead of 80% earlier agreed to by the workers on their own.
We do not think that this admission by the President would reduce the efficacy of the settlement or affect its validity.
It may be that negotiations had been going on for some time and even some important workers had been individually approached by the management, but it is clear that the President of the union had taken upon himself the responsibility for the settlement upon which he.
on his own turn, succeeded in making some effective improvements beneficial to the Work men.
The Tribunal further made some observations that Shri Pandit was actually unaware of the consequences that would ensure to the workmen as a result of the settlement Reading the evidence of Shri Pandit as a whole.
we, however.
find "hat it cannot be said that he was unaware of the conse quences.
We are also unable to hold that he had knowingly and deliberately suppressed the fact about the importance of the consequences 22 to the workers if the settlement were accepted.
As a matter of fact it has been stated by the workmen.
who were exam ined, that Shri Pandit did mention that they would lose Rs. 12/ to Rs. 15/ in dearness allowance if the settlement superseded the award.
Mathematically this may not be correct as perhaps, on account of the rise of consumer price index, the loss in dearness allowance could have been even double the figure given by the President.
That, however, per se, does not make the settlement unfair or unreasonable.
It is found by the Tribunal that in the matter of wages the settlement has given better terms and that the same cannot be said to be unfair.
The Tribunal has stated in more than one place that the only objection to this settle ment levelled by the 2nd respondent is with regard to the quantum of dearness allowance.
While the award has given the Revised Textile dearness allowance, the settlement has substituted 86% and 871/2% of the Revised Textile allowance for the first and the second period respectively.
While the award is for one year, subject to the provisions of the Industrial Disputes Act, the settlement is for a period of three years.
Having regard to the totality of the terms of the settlement we are unable to agree with the Tribunal that the terms are in any way unfair or unreasonable.
Besides, the settlement has to be considered in the light of the conditions that were in force at the time of the reference.
It will not be correct to judge the settle ment merely in the light of the award which was pending appeal before this Court.
So far as the parties are con cerned there will always be uncertainty with regard to the result of the litigation in a court proceedings.
When, therefore, negotiations take place which have to be encour aged, particularly between labour and employer in the inter est of general peace and well being, there is always give and take.
Having regard to the nature of the dispute, which was raised as far back as 1968, the very fact the existence of a litigation with regard to the same matter which was bound to take some time must have influenced both the par ties to come to some settlement.
The settlement has to be taken as a package deal and when labour has gained in the matter of wages and if there is some reduction in the matter of dearness allowance so far as the award is concerned, it cannot be said that the settlement as a whole is unfair and unjust.
There are three categories of workers, permanent work ers, listed casual workmen and certain other casual workmen.
It is said that the third category of workmen are employed seasonally for a period of 20 days or so.
Their number is also said to be not more than 20 or 30.
The terms and conditions relating to this category of casual workmen were left, under the settlement, to be mutually decided by the parties.
It is because of this feature in the settlement that the Tribunal held that the settlement was incomplete.
We are, however, informed that as a matter of fact by mutual agreement some terms have been settled even for this third category of casual workmen.
At any rate, because no deci sion was arrived at with regard to this small number of seasonal workmen, it cannot be said that the settlement is bad on that account.
23 The Tribunal next dealt with the principles applicable in granting dearness allowance to workers.
It is while dealing with this part of the Tribunal 's award that Shri Damania for the 2nd respondent sought to make a strong plea in favour of sustaining the award by disregarding the set tlement.
According to counsel the wage level of the workers is more or less at subsistence level and, therefore, cent per cent neutralisation of the cost of living or, at any rate, 95% neutralisation should have been allowed while setting dearness allowance.
Since the Tribunal has rightly taken that settled principle into consideration and the settlement has departed from it, the same should be held as unjust and unfair to the workmen.
We should point out that there is some misconception about this aspect of the case.
The question of adjudication has to be distinguished from a voluntary settlement.
It is true that this Court has laid down certain principles with regard to the fixation of dearness allowance and it may be even shown that if the appeal is heard the said principles have been correctly followed in the award.
That, however, will be no answer to the parties agreeing to a lesser amount under certain given circumstances.
By the settlement, labour has scored in some other aspects and will save all unnecessary expenses in uncertain litigation.
The settle ment, therefore, cannot be judged on the touchstone of the principles which are laid down by this Court for adjudica tion.
There may be several factors that may influence parties to come to a settlement as a phased endeavour in the course of collective bargaining.
Once cordiality is established between the employer and labour in arriving at a settlement which operates well for the period that is in force, there is always a likelihood of further advances in the shape of improved emoluments by voluntary settlement avoiding fric tion and unhealthy litigation.
This is the quintessence of settlement which courts and tribunals should endeavour to encourage.
It is in that spirit the settlement has to be judged and not by the yardstick adopted in scrutinising an award in adjudication.
The Tribunal fell into an error in invoking the principles that should govern in adjudicating a dispute regarding dearness allowance in judging whether the settlement was just and fair.
Mr. Damania has drawn our attention to several authori ties of this Court with regard to the principles of fixation of dearness allowance including the recent decision of this Court in Killick Nixon Limited vs Killick & Allied Companies Employees Union and earnestly submitted that there is a "peremptive necessity" to grant cent per cent or at any rate 95% neutralisation of the cost of living as dearness allowance (5th principle of Killick Nixon Limited supra).
Even the Tribunal has relied upon the above decision.
But, as we have pointed out, that is not the correct way to decide whether a settlement voluntarily arrived at by the parties is just and fair.
The matter would have been abso lutely different if on the face of it the settlement was highly unconscionable or grossly unjust.
Even according to the Tribunal, the reduction of the dearness allowance to 85% and 871/2% from cent per cent is the only objectionable feature to enable it to hold that that part of the (1)[1975] Supp.
S.C.R. 453.
24 settlement is unjust and unfair.
The Tribunal found that all other terms of the settlement were "fair, just and reasonable".
It is not possible to scan the settlement in bits and pieces and hold some parts good and acceptable and others bad.
Unless it can be demonstrated that the objectionable portion is such that it completely outweighs all the other advantages gained the Court will be slow to hold a settle ment as unfair and unjust.
The settlement has to be accepted or rejected as a whole and we are unable to reject it as a whole as unfair or unjust.
Even before this Court the 3rd respondent representing admittedly the large majority of the workmen has stood by this settlement and that is a strong factor which it is difficult to ignore.
As stated elsewhere in the judgment, we cannot also be oblivious of the fact that all workmen of the company have accepted the settle ment.
Besides, the period of settlement has since expired and we are informed that the employer and the 3rd respondent are negotiating another settlement with further improve ments.
These factors, apart from what has been stated above, and the need for industrial peace and harmony when a union backed by a large majority of workmen has accepted a settlement in the course of collective bargaining have impelled us not to interfere with this settlement.
That being the position, we unhold the settlement as fair and just and order that the award of the Tribunal shall be substituted by the settlement dated October 18, 1973.
The said settlement shall be the substituted award.
The appeal is disposed of accordingly.
There will be no order as to costs.
B.P.R. Appeal dismissed.
| IN-Abs | In respect of certain demands of the workers of the appellant company an Industrial Tribunal made its award.
When the Special Leave Petition of the appellant was pending before this Court the parties filed consent terms for staying the award.
In the meantime the 3rd respondent, a Trade Union, wrote to the employer that all the workers who were members of the 2nd respondent, also a Trade Union, resigned from that union and joined the 3rd respondent. 'The employer accordingly recognised the 3rd respondent as the Trade Union representing/he workers and de recognised the 2nd respondent.
Under section 18(1) of the Industrial Disputes Act the em ployer entered into a settlement with the 3rd respondent in substitution of the award pending before this Court.
When the 3rd respondent sought to be substituted in place of the 2nd respondent in the Special Leave Petition, the 2nd re spondent resisted the application claiming that it had still the allegiance of 50 workmen of the company.
But this Court added the 3rd respondent as a respondent.
Since the 2nd respondent claimed to have some workers on its rolls as members and had not .accepted the settlement, this Court passed a preliminary order to the effect that "in view of the fact that admittedly a large number of workmen employed by the appellant have accepted the settlement is it shown by the 2nd respondent union that the said settlement is not valid and binding on its members and whether the settlement is fair and just.
" Before the Tribunal the 2nd respondent did not lead any evidence to show 'the actual number of its members.
The Tribunal recorded its finding that respondent No. 2 had been able to prove that the settlement was not valid and I bind ing on its members and was incomplete to that extent.
It was contended by 'the 2nd respondent that even if the set tlement was binding on the company and the 3rd respondent representing a large majority of workmen, it was not binding .on its members under section 18(1).
Dismissing the appeal, HELD: The settlement is fair and just.
The award of the Tribunal shall be substituted by the settlement and the settlement shall be the substituted award.
[24D] (1) (a) When this Court called for a finding of the Tribunal it was satisfied that if the settlement was fair and just it would allow the parties to be governed by the settlement substituting the award.
The Wording of the issue sent to the Tribunal for a finding clearly shows that there was an onus on the 2nd respondent to show how many workers of the appellant were its members.
Since a recognised and regis tered union had entered into.
a voluntary settlement this Court thought that if the same was found to be.
just and fair that could be allowed to be binding on all the work ers even if a very small number of workers were not mem bers of the majority union.
[20E F] (b) In the instant case the numerical strength of the members of the 2nd respondent, who are workers of the compa ny, would also have an important bearing as to whether the settlement accepted by the majority of the workmen is to be considered as just and fair.
Not a single worker of the company claimed before the Tribunal to be its member and asserted that the settlement was 16 not fair and just.
All the workers of the company had accepted the settlement and received the arrears and emolu ments in accordance with the same [20H] (2) (a) The assumption of the Tribunal that the quantum of the membership of the 2nd respondent did not call for a finding at all in view of this Court 's order is incorrect.
The Tribunal was conscious that under section 18(1) the settle ment was binding on the company and the 3rd respondent Union.
Yet it examined the question whether the workers voluntarily accepted the settlement knowing all the conse quences, which was a wrong approach.
[21B C] (b) When a recognised union negotiates with an employer the workers as individuals do not come into the picture.
It is not necessary that each individual worker should know the implications of the settlement since a recognised union.
which is expected to protect the legitimate interests of labour enters into a settlement in the best interests of labour.
[21D] (c) Prima facie this is a settlement in the course of collective bargaining and, therefore, is entitled to due weight and consideration.
[21E] (d) Having regard to the totality of the terms of the settlement it is difficult to hold that the terms are in any way unfair or unreasonable.
An adjudication has to be dis tinguished from a voluntary settlement.
By the settlement labour has scored in some aspects and saved all unnecessary expenses in uncertain litigation.
The settlement cannot be judged on the touchstone of the principles laid down by this Court for adjudication.
[22D; 23D] (3) There may be several factors that influence parties to come to a settlement as a phased endeavour in collective bargaining.
Once cordiality is established between the employer and labour in arriving at a settlement there is always a likelihood of further advance in the shape of improved emoluments by voluntary settlement, avoiding fric tion and unhealthy litigation.
This is the quintessence of settlement which courts and Tribunals should endeavour to encourage.[23E] (4) It is not possible to scan the settlement in bits and pieces and hold some parts good and acceptable and others bad.
Unless it can be demonstrated that the objectionable portion is such that it completely outweighs all the other advantages gained, the Court will be slow to hold a settle ment as unfair and unjust.
the settlement has to be accepted or rejected as a whole.
[24B] In the instant case the 3rd respondent representing the large majority of the workmen has stood by this settlement which is a strong factor difficult to ignore.
When a union backed by a large majority of workmen has accepted a settle ment in the course of collective bargaining, this Court would not interfere with the settlement.
|
Civil Appeal No. 1343 of 1969.
From the Judgment and Decree dated 17 2 1969 of the Kerala High Court in Appeal Suit No. 493 of 1966.
S.T. Desai, section Krishan Iyer and A.G. Puddisery, for the Appellant.
T.S. Krishnamoorthy Iyer, K.P.K. Menon, I. N. Shroff and R.P. Kapoor, for the Respondent.
The Judgment of the Court was delivered by RAY, C.J.
This appeal is by certificate from the judg ment dated 17 February, 1969 of the High Court of Kerala.
The respondent filed this suit against the appellant for recovery of property with arrears of rent and mesne profits and damages for waste.
The property measuring 550.37 acres consisted of 279.86 acres of planted area and the rest was unplanted area.
By a lease dated 7 October, 1950, the.
respondent leased out to the appellant the plantations together with Bungalow, quarters of what is described as "Beenachi Estate".
The lease was for a period of 12 years with effect from 1 Janu ary, 1950.
The rent for the first six years was fixed at Rs. 3600/ per annum.
The rent for the second period of six years was fixed at Rs. 4500/ per annum.
The rent was payable in advance on 1 January of each calendar year.
The respondent 's case is that since 1953 the appellant failed and neglected to pay rent fixed under the lease.
Clause 4 of the lease provided that if the rent would be in arrears and unpaid for 30 days after the same would become due it would be lawful for the lessor respondent to forfeit the lease notwithstanding the fact that the term had not expired.
The lease provided that the respondent lessor would re enter the premises in that event and the lease would cease and determine.
The respondant by notice dated 5 March, 1959 called upon the appellant to quit, vacate and deliver to the respondent vacant possession of the property.
The notice was consequent upon the wilful default of the appellant to pay rent and consequent on the several breaches of covenants as alleged in the notice.
The respondent filed the suit on 5 February, 1960.
The defendant claimed possession of the property known as the Beenachi Estate together with movable, a declaration that the lease had determined and claimed arrears of rent, mesne profits a sum of Rs. 2,20,394/ as 'damages for waste.
At the trial the appellant raised the plea that the tenancy is governed by the Malabar Tenancy Act, and, there fore, the suit is barred by Act 1 of 1957.
The respondent pleaded that the tenancy 1029 is covered by exception in section 2(1 ) of the Malabar Tenancy Act VII of 1954.
The trial Court accepted the preliminary objection of the appellant and dismissed the suit.
The High Court on appeal remanded the case tO the Subor dinate Judge for fresh trial.
The trial Court on remand decreed the suit on 25 October, 1966.
The respondent ob tained a decree for eviction with arrears of rent and dam ages amounting to Rs. 1,00,000/ for certain items and a further sum of Rs. 51,030/ for other items of damages.
The trial COurt held that in view of the proviso to section 3(1) (vii) of the Kerala Land Reforms Act I of 1964 hereinaf ter referred to as the 1964 Act a tenant having fixity of tenure under the Act as it stood on 21 January 1961 would continue to enjoy it under the 1964 Act notwithstanding the fact that the landlord might be a corporation owned or controlled by the Government of India or by any State Gov ernment in India .as provided in section 3(1) (c) of the 1964 Act.
The appellant was held by the trial Court to be disentitled to resist the prayer for eviction in 'the suit because his holding was a plantation exceeding 30 acres in extent as provided in section 3(1) (vii) of the 1964 Act.
The appellant filed an appeal.
The respondent filed cross objections.
The High Court dismissed the appellant 's appeal and allowed the cross objections of the respondent.
The High Court enhanced the damages from Rs. 1,00,000/ to Rs. 2,20,394/ and confirmed the award of Rs. 51,030/ as damages under other heads.
Counsel for the appellant contended that the High Court was in error in taking the view that the appellant was not entitled to claim fixity of tenure.
Counsel for the appellant relied on section 3(1) (vii)of the 1964 Act as amended by Act 35 of 1969.
Before the 1969 Amendment the 1964 Act provided in clause (vii) to section 3(1) that nothing in this Chapter shall apply to clauses (i) to (vii) of section 3 to the rights of persons who were entitled to fixity of tenure immediately before 21 January 1961 under any law then in force.
The aforesaid proviso was substitut ed by the Amendment Act 35 of 1969 as follows : "Provided that nothing in clauses (i)to (vii) shall apply in the cases of persons who were entitled to fixity of tenure immediately before 21 January 1961 under any law then in force or persons claiming under .such persons".
The High Court held that only rights of persons but not fixity of tenure were saved.
Counsel for the appellant contended that the effect of proviso to section 3(1) (vii) of the 1964 Act as amended in 1969 is that fixity of tenure and rights with regard to the same are both saved, and, therefore, the High Court should have held that the appellant was entitled to fixity of tenure.
The second contention of counsel for the appellant is that the High Court was in error in holding.
that under section 23 of the Malabar Tenancy Act 1929 the appellant was liable to be evicted by the landlord and that the appellant had no right to resist eviction.
1030 The contention of the appellant was that assuming the High Court was right on the above conclusion, the provisions contained in section 108 sub sections (2) and (3) of the 1964 Act as amended in.
1969 require the Court.
to apply the law retrospectively in respect of pending suits, appeals, applications, decree where dispossession had not been ef fected.
It is said by the appellant that the relevant date .for the application of these sub sections was 1 Janu ary 1970 on which, date the 1969 Amendment Act came into force.
It is contended on.
behalf of the appellant that the appellant had not been dispossessed from the property on or before 1 January, 1970, but only an order appointing Receiv er was made by the.
High Court on 17 February, 1969.
The property, therefore, according to the appellant, continued to be on lease and the order appointing Receiver could not have the affect of dispossession.
The appellant, therefore, under section 108(2) of the 1964 Act claimed to have the decree reopened for disposal in accordance with section 125(3) of the 1964 Act as amended in 1969 Section 108(2) of the 1964 Act as amended is as follows : "Any decree passed before the commencement of this section for the dispossession of a person from the land in his possession, pursu ant to which dispossession has not been af fected, may, on the application of such per son, be reopened and the matter may be dis posed of in accordance with the provisions of the principal Act as amended by this Act.
By the principal Act is .meant the 1964 Act.
Section 125(3) of the 1964 Act as amended in 1969 is as follows : "If any suit or other proceeding in ques tion regarding rights of a tenant or of a kudikidappukaran (including a question as to whether a person is a tenant or a kudikidappu karan) arises, the civil court shall stay the suit or other proceeding and refer such ques tion to the Land Tribunal having jurisdiction over the area in which the land or part there of is situate together with the relevant records for the decision of that question only".
Extracting these provisions counsel for the appellant contended that section 125(3) of the 1964 ACt as amended in 1969 indicated that all questions regarding rights of ten ants could be decided only by the Land Tribunal to which a reference has to be made.
The third contention on behalf of.
the appellant is that the 1964 Act as amended in 1969 inserted section 50A to the 1964 Act the effect of which is that notwithstanding any thing contained in any law or contract, or in any judgment, decree or order of court, a tenant.
entitled to fixity of tenure shall have the right to use his holding in any manner he thinks fit.
The 1964 Act as amended in 1969 introduced section 52 which was.
also relied on by the appellant, to show that the cultivating tenant shall have a right to cut such trees and the landlord or the intermediary shall not have the right to cut any such trees.
Section 73 of the 1964 Act which was introduced in 1969 is to the effect that the maximum amount that could be claimed by 1031 way of arrears of rent for the period ending May 1968 notwithstanding any contract, judgment or order of court is only 3 years and nothing more.
These provisions, viz., Sections 50 A, 52 and 73 which were introduced by the 1969 Amendment Act were relied on by the appellant for the purpose of showing that the appellant would be entitled to use the holding and to cut trees and the maximum arrears of rent could be claimed for a period of three years and not more.
Counsel for the appellant next contended that the trial Court was in error in finding that the holding of the appel lant is a plantation in the context of section 3(1) (viii) of the 1964 Act.
The contention on behalf of the appellant was that assuming that the trial Court was right in its conclusion as regards the area of 279.86 acres which accord ing to the respondent was the extent of coffee plantation .on the date of the lease, in respect of the remaining extent of land the appellant was entitled to fixity of tenure in view of the proviso to clause 3(1)(viii) of the 1964 Act.
The crucial date according to the appellant is 1 January 1970 when the 1969 Amendment Act came into force.
The effect of section 108(2) and (3) of the 1964 Act read with section 125(3) of the Act is according to the appellant, that the questions as to whether 'the whole or portion of the land is a plantation, whether there is fixity of tenure and whether the respondent can claim damages could all be disposed of only by the Land Tribunal.
The appellant con tended that the judgment of the High Court has, therefore, to be set aside and this Court should direct that the mat ters may be disposed ' of by the Land Tribunal.
As a corollary counsel for the appellant contended that the trial Court was wrong in holding that the appellant was liable to pay damages and in view of the provisions con tained in sections 50 A and 52 of the 1964 Act as amended in 1969 read which section 125(3) of the Act as amended all matters would be decided by the Land Tribunal.
Counsel for the appellant relied on section 108(3) of the Act which as changed by amendment in 1971 is as follows : "If in any suit, application, appeal, revision, review, proceedings in execution of a decree or other proceedings pending at the commencement of this section before any court, tribunal, officer or other authority, any person claims any benefit, right or remedy conferred by any of the provisions of the principal Act, or the principal ,Act as amend ed by this Act, such suit, application, ap peal, revision, review, proceedings in execu tion or other proceedings shall be disposed of in accordance with the provisions of the principal Act as amended by the 1971 Act.
" In short the contention of the appellant is that ' the whole proceedings in the suit and the pleas therein are to be disposed of in accordance with the provisions ' of the Act.
According to the appellant the provisions of the Act indicate that there should not be 1032 any decree for eviction and .further that the damages award ed against the appellant cannot be sustained by the provi sions of the 1964 Act as amended by Act 35 of of 1971 and Act 17 of 1972.
The appellant filed an application praying for reopen ing the decree passed by the High Court and in that behalf has invoked section 132(3) of the 1964 Act and section 108(2) of the Act as amended in 1969.
The appellant also prayed that section 108(3) as introduced in 1969 and as amended in 1971 indicates that the appeal is to be disposed of in accordance with the provisions of the appeal is as amended in 1971.
Section 132(3) of the 1964 Act is as follows : "Notwithstanding the repeal of the enactments mentioned in sub section (2) any decree passed before.
the commencement of this Act for the eviction of a tenant from his holding, pursuant to which eviction has not been effected, may, on the application of the tenant or the landlord, be reopened and the matter may be disposed of in accordance with the provisions of this Act.
" This provision according to the appellant establishes that it applies to decree passed before the commencement of Act 1 of 1964 and also pursuant to which eviction has not been effected.
In the present case, the decree was passed by the trial Court as well as by the High Court after the 1964 Act came into existence.
The decree was passed in accordance with the provisions of the 1964 Act but before the amendment in 1969.
The appellant claimed benefit of the proviso to section 3 (1) (vii)of the Act.
The benefit claimed is fixity of ten ure.
The proviso as it stood when the 1964 Act came into operation was that nothing in clauses (i) to (vii) of sec tion 3 (1) of the Act "shall affect the rights of persons who are entitled to the fixity of tenure immediately before 21 January 1961 under any law then in force".
The change Substituted by the 1969 Amendment Act is that nothing in clauses (i) to (vii) of section 3(1) of the Act "shall apply in the case of persons who were entitled to fixity of tenure immediately before 21 January 1961 under any law then in force or persons claiming under such persons".
The prevail ing law on 21 January 1961 was the Malabar Tenancy Act.
If, therefore, the appellant did not or could not have fixity of tenure on 21 January 1961 under the Malabar Tenancy Act he would not have any claim to the benefit of fixity of tenure under the 1964 Act or even under the 1964 Act as amended in 1969.
Under section 23 of the Malabar Tenancy Act a Verum pattom tenant would be liable to be evicted from his holding at the instance of his landlord if 'he intentionally commit ted acts of waste sufficient to impair materially the value or utility of the holding for the, purpose for which it was let to him or that he committed default in the pay ment of stipulated rent for more than 3 months after its due date, or allowed strangers to trespass upon the holding.
In the present case,.
the appellant has been found to be a habitual defaulter since 1952 in the payment of rent fixed under the lease of 1950 under which the 1033 appellant was let into possession of the estate.
Further the appellant has been found to be guilty of willful acts of waste before and after the institution of the suit.
The appellant has also been found to have denuded the entire tree growth in more than one half of the area of the estate.
The appellant has been found to have destroyed more than one half of the coffee planted area that had been leased to him.
It was found that the remaining part of the coffee plantation as a result of the acts of the appellant is in utterly neglected condition.
The facts circumstances of the present case as found by the courts establish that the appellant had no fixity of tenure on 21 January 1961 warranting grant of any benefit, remedy or right against eviction.
In fact, this claim was also canvassed by the appellant and found against him by the court.
The respondent in the present case is a Corporation owned or controlled by the Government of Madhya Pradesh and, is, therefore, a Government company under the Indian Companies Act.
The appellant is disentitled to claim fixity of tenure under section 13 of the Act inasmuch as under the 1964 Act and under amendment in 1969 leases of lands owned by the Government owned Companies are by section 3(1) (i) of the 1,964 Act specifically exempted from the provisions of Chap ter II of the Act.
Section 13 which is in Chapter 1I cannot therefore, be invoked by the appellant.
The right to fixity of tenure is denied to a tenant in respect of a holding owned by or belonging to a Government controlled CompanY.
The appellant is, therefore, not entitled to claim fixity of tenure under the 1964 Act as amended.
The Beenachi Estate in the present case does not come within the definition of "plantation" in section 2(44) of the 1964 Act as amended in 1969 because the extent of coffee cultivated area has been found by the court to have dwindled to a little over 110 acres in extent out of the total extent of a little over 550 acres.
Further, tapioca has been grown by the Receiver in the areas other than the coffee planted area.
Therefore, the Estate ceased to be a property princi pally planted with coffee even before 1 January 1970 when the 1969 Amendment Act came into force.
Under the lease the coffee planted area was 279.86 acres and the remaining extent of 271 acres was also intended to be extended area to be planted with coffee.
The courts have found that instead of coffee plantation the appellant deliberately committed waste during the progress of litigation in the courts by reducing the extent of coffee plantation to just 168.58 acres.
This area dwindled to little over 110 acres before 2 March 1969 when the Receiver was appointed by the High Court.
The .large extent of vacant areas within the estate was on account of deliberate devastation of the said area by denudation of tree growth during the pendency of the litiga tion in the courts.
Therefore, it"is obvious that the appellant is dis entitled to take advantage of his own wrongs so as to claim statutory benefits which are also not available to the appellant.
The property by reason of acts of waste, damage, devastation, denudation Ceased to be coffee plantation on 1 January 1970 when the 1969 Amendment came into effect.
Section 108(3) of the Act as amended in 1971 ' will permit the reopening of the decree only if a person has claims to right, benefit or 1034 remedy which has been conferred on him under the Act.
In the present case neither under the Act of 1964 nor under the 1969 Amendment Act the appellant can claim the benefit of section 50 A of the 1964 Act as amended in 1969 because the appellant willully misused the holding and caused acts of waste causing loss 'to the lessor and damage and destruction to the holding.
The High Court rightly held that under the proviso to clauses (i) to (vii) of section 3(1) of the 1964 Act the appellant had no right to fixity of tenure under the Malabar Tenancy Act.
Section 23 of the Malabar Tenancy Act con ferred a right on the landlord to evict the tenant who intentionally and wilfully committed such acts of waste as are calculated to impair materially and permanently the value or utility of the holding for agricultural purposes and who has not paid within three months after the due date, the whole or any portion of the rent due in respect of the holding.
The courts found the defendant to be guilty of wilful waste prior to the institution of the suit and during the pendency of the suit and further that the appellant committed default in payment of rent for seven years.
Therefore, the appellant was not entitled to any rights .of fixity of tenure under the proviso to clauses (i) to (vii) of section 3(1) of the 1964 Act is to be interpreted in the light of the provisions of the Malabar Tenancy Act in the present case.
The appellant invokes the provisions contained in sec tion 125(3) of the Act for the purpose of determination in accordance with the provisions of the Act benefits, rights or remedies conferred by the Act and claimed by him are fixity of tenure, remedy against eviction and remedy against payment of damages and arrears of rent.
The appellant also invokes the provisions contained in section 108(2) and (3) of the Act for the purpose of reopening of the decree and disposal of the same in accordance with the provisions of the Act on the same ground that the appellant claims bene fits, rights and remedies conferred on him by the provisions of the Act.
Counsel for the appellant relied on the Full Bench decision of the Kerala High Court in Anantha Narayana Iyer vs Pran(1) in support of the contention that by reason of the provisions contained in section 125(3) of the Act the appeals_should be disposed of in accordance with the provi sions of the Act.
Section 125 (1 ) of the Act created a bar against civil court to settle, decide or deal with the questions required to be settled by the Land Board in accordance with the provisions of the Act.
The provisions contained in section 125(1) of the Act are prospective.
Section 125 came into effect on 1 January, 1970 when the other amendments intro duced by the 1969 Amendment Act came into force.
The provi so to section 125(1) of the Act expressly states that Sec tion 125(1) of the Act shall not apply to proceedings pend ing in any court at the commencement of the Amendment Act of 1969 on 1 January, 1970.
The effect of the proviso is to carve out by way of exception what would otherwise have fallen within the provision to which it is a proviso.
It, therefore, follows that the proceedings in the present case which were pending at the commencement of the Amendment Act on 1 January, (1) 1035 1970 are saved from the operation of section 125(1) of the Act.
In short, the proceedings are to be determined by the civil court.
Section 125(3) of the Act which provides that if in any suit or other proceeding any question regarding the rights of a tenant arises the civil court shall stay the suit and refer such question to the Land Tribunal having jurisdiction over the area in which the land or the part thereof is situate for the decision of that question only.
The appel lant relied on the Kerala Full Bench decision which held that section 125(3) of the Act as amended in 1969 is retro spective, and, therefore,.
proceedings should be determined by the Land Tribunal.
The reason given by the Kerala High Court is that the suit or proceeding must be pending at the commencement of the Amendment Act 1969 before the provisions contained in section 125(3) of the Act can be applied.
The Kerala High Court has, therefore, concluded that suit or other proceeding which is pending at the commencement of the Act will be governed by section 125(3) of the Act.
This reasoning is not correct.
Section 125(3) of the Act is equally prospective.
Section 125(3) of the Act will be applied with regard to the provisions contained in section 125(1) of the Act.
Matters which will be within the mischief of section 125(1) of the Act are matters which will arise in suits or proceedings initiated and originated after the commencement of the Act.
It is unsound to suggest that pending proceedings which are excepted from the application of section 125 (1) of the Act will yet fall within section 125(1) of the Act by reference to section 125(3) of the Act.
The Kerala High Court fell into the error of overlooking the purpose of section 125(3) of the Act.
The purpose is that suit or other proceeding shall be stayed.
In the present case the appeal in this Court which was pending on 1 January 1970 is a proceeding which was pending at the commencement of the Act and was not initiated or originated at the commencement of the Act.
Therefore, the provisions contained in section 125 are not applicable in the present case.
A statute has to be looked into for the general scope and purview of the statute and at the remedy sought to be applied.
In that connection the former state of the law is to be considered and also the legislative changes contem plated by the statute.
Words not requiring retrospective operation so as to effect an existing statutory provision prejudicially ought not be so construed.
It is a well recognised rule that statute should be interpreted if possible so as to respect vested rights.
Where the effect would be to alter a transaction already entered into, where it would be to make that valid which was previously invalid, to make an instrument which had no effect at all, and from which the party was at liberty to depart as long as he pleased, binding, the prima facie construction of the Act is that it is not to be retrospective.
See Gardner vs Lucas.(1) In Moon vs Durden(2) a question arose as to whether section 18 of the Gaming Act 1845 which came into effect in August 1845 was retrospective so as to defeat an action which had been commenced in (1) (2) ; 16 1338SCI/76 1036 June, 1845.
The relevant section provided that no suit shall be brought or maintained for recovering any such sum of money alleged to have been won upon a wager.
It was held that it was not retrospective.
Parke B said "It seems a strong thing to hold that the legislature could have meant that a party who under a contract made prior to the Act had as perfect a title to recover a sum of money as he had to any of his personal property, should be totally deprived of it without compensation".
Again in Smithies vs National Union of Operative Plas terers(2) section 4 of the Trade Disputes Act, 1906 which enacted that an action for tort against a trade union shall not be entertained by any court was held not to prevent the court 's from hearing and giving judgment in.
actions of that kind begun before the passing of the Act.
It is a gener al rule that the legislature alters the rights of parties by taking away or conferring any right of action, its enact ments, unless in express terms they apply to pending ac tions, do not affect them.
But there is an exception to this rule, namely, where enactments merely affect procedure and do not extend to rights of section.
See Re Joseph Sucha & Co. Ltd.(2).
If the legislature forms a new procedure alteration in the form of procedure are retrospective unless there is some good reason or other why they should not be.
In other words, if a statute deals merely with the procedure in an action, and does not affect the rights or the parties it will be held to apply prima facie to all actions, pending as well as future.
In the present case the provisions in section 50 A, 52 and 73 of the 1964 Act as amended in 1969 were invoked by the appellant.
The appellant is disentitled from doing so by reason of Chapter II of the 1964 Act not being applicable to the lease where the lessor is a Government Company.
Further these sections came toto effect on 1 January 1970.
The sections are not retrospective but prospective in opera tion.
The appellant is not entitled to attract these sec tions.
For the foregoing reasons the appeal is dismissed with costs.
V.P.S. Appeal dismissed.
| IN-Abs | The proviso to section 3(1)(vii) of the Kerala Land Reforms Act, 1964.
provided that nothing in clauses (i) to (vii) of section 3(1) shall affect the rights of persons who are entitled to the fixity of tenure immediately before 21 January 1961 under any law then in force.
The law prevailing immediate ly before 21 January 1961, was the Malabar Tenancy Act, 1929.
Under section 23 of that Act a tenant would be liable to be evicted from his holding at the instance of h/s landlord if he intentionally committed acts of waste or defaulted in the payment of rent for more than 3 months.
The proviso was amended by 1969 Amendment Act which came into force on January 1; 1970.
The amending Act also.
inserted in the Act new Ss.
50A. 52 and 73.
Section 50A provided that a tenant entitled to fixity of tenure shall have the right to use his holding in any manner he thinks fit.
Section 52 pro vided that a cultivating tenant shall have a right to cut .trees and section 73 is to the effect that the maximum amount that could be claimed by way of arrears of rent is only for 3 years.
Section 108(2) was also amended and it provided that any decree passed before the commencement of the section for the dispossession of a person from the land in his possession may on the application.
of such person be reopened and disposed of in accordance with the provi sions of the 1964 Act as amended by the 1969 Act provided dispossession has not been affected.
Section 125(3) provid ed that if in any suit or proceeding questions regarding the rights of a tenant arose, the civil court shall stay such proceedings and refer the question to the Land Tribunal having jurisdiction over the area.
Section 132(3) provided that any decree pursuant to which eviction has not been effected may, on the application of the tenant or the land lord be reopened and the matter disposed of in accordance with the provisions of the Act.
The respondent owned about 550 acres out of which more than half was Coffee planted area.
He leased the plantation and the remaining unplanted area to the appellant in 1950 for 12 years.
Clause (4) of the lease provided that if the rent was in arrears for 30 days after it became due it was lawful for the lessor to forfeit the lease and re enter on the land.
Alleging_ that since 1953 the 'appellant had neglected to pay the rent, the respondent filed the suit claiming possession of the land, arrears of rent, and dam ages for waste.
The trial court decreed the suit in.
1966 and the decree was confirmed by the 'High Court with the enhanced damages in February 1969.
In appeal to this Court the appellant contended that he was entitled to fixity of tenure; that the unplanted area was not a plantation and 'so he was entitled to fixity of tenure therein; ,hat the pro ceedings were to be disposed of in accordance with the provisions of the 1964 Act as amended by 1969 Amendment Act.
that is.
that all questions regarding rights of tenants and landlords could be decided only by the Land Tribunal; and that the damages were awarded contrary to the 'provisions of the Act as amended.
He, therefore.
filed an application praying for reopening of the decree passed by the High Court and also contended that in view of the amendments in 1971 the appeal is to be disposed of in accordance with the provisions of the Act, as amended in 1969 and 1971.
Dismissing the appeal to this COurt,.
HELD: In the present case, the decree was passed by the trial court as ' well as by the High Court after the 1964 Act came into force but before the, 1027 1969 amendment.
The decree was correctly passed in ac cordance with the provisions of the 1964 Act, since the amendments were prospective and not retrospective.
[1036 E F] .rm60 (1) A statute has to be looked into for the general scope and purview of the statute and at the remedy sought to be applied.
In that connection the former state of law is to be considered and also the legislative changes contemplated by the statute.
Words not requiring retrospective operation so as to affect an existing statutory provision prejudicially ought not to be so construed.
It is a general rule that when the legislature alters the rights of the parties by taking away or conferring any right of action, its enactments.unless in express terms they apply to pending actions, do not affect them.
If however, a statute deals merely with procedure in an action and does not affect the rights of the parties, it will be held to apply prima facie to all actions pending as well as future.
[1033 E G] Gardner vs Lucas (1878) 3 Appeals Cases 582; Moon vs
Durden (1948) 2 Exch.22 and Smithies vs National Union of Operative Plasterers , referred to.
(2) The entire land leased out does not come within the definition of plantation, because.
the extent of coffee cultivated area has been found to have dwindled to about 100 acres out of the total extent of about 550 acres by reason of the acts of waste committed by the appellant and ceased to be a plantation even before 1 January 1970.
The appel lant, however, is disentitled to take advantage of his own wrongs so as to claim statutory benefits which were also not available to him.
[1033 A B, E G] (3) The appellant had been found to be habitual defaulter since 1952 in the payment of rent and to be guilty of wilful acts of waste before and after the institution of the suit.
He had denuded the entire tree growth in morethan one half of the area and destroyed more than one half of the coffee planted area, and the remaining part was in an utterly neglected condition.
Therefore.
under section 23.
Malabar Tenan cy Act, the appellant had no fixity of tenure on 21 Janu ary 1961, and hence was not entitled to the benefit of proviso to section 3(1) either under the 1964 Act or the 1969 Act.
[1032 G H, 1034.B D)] (4) The respondent was a Government company.
Under section 3(1)(i) of the 1964 Act, leases of lands owned by Government companies are exempted from the provisions of Chap.
Section 13, which is in Chap.
II and which provides for fixity of tenure cannot therefore be invoiced.
by the appel lant for claiming 'fixity, of tenure under the 1964 Act.
[1033 C D] (5) The appellant is disentitled from invoking sections 50A, 52 and 73 of the 1964 Act as amended in 1969 because, Chap ter 1I of the 1964 Act is not applicable to the lease since the respondent lessor iS a Government Company.
More over, these sections came into effect on 1st January 1970 and were not retrospective, but were.
prospective in.
opera tion.
[1032 A D, 1033 H, 1036 A B] (6) Sect.ion 108(3) of the Act as amended in 1971 will permit the opening of the decree only if a person has claims to a right benefit or remedy which has been conferred on him under the Act.
In the present case neither under the 1964 Act nor under the 1969 Amendment the.
appellant can claim the benefit of section 50A because he wilfully misused the hold ing and caused acts of waste causing loss to the lessor and damage and destruction to the holding.
[1033 H, 1034 A B] (7) Section 125(1) of the Act which came into force on 1 January 1970, creates bar against the civil court deciding questions required to be settled by the Land Board.
This provision is prospective.
and the proviso expressly states that the section shall not apply to proceedings pending in any court at the commencement of the 1969 amending Act.
It, therefore, follows that the proceedings in the present case which were pending at the commencement of the 1969 Amendment Act are saved from the operation of section 125(1).
Section 125(3) is equally prospective.
It will be applied with regard to the provisions contained in section 125(1) of the Act.
Matters which will be within the mischief of section 125(1) are matters which will arise in suits or proceedings initiated or originated after the commencement of the Act.
It is unsound to 1028 suggest that pending proceedings which are exempt from the application of section 125(1) will yet fall within that sub section by reference to section 125(3).
Therefore, the provisions contained in section 125 are not applicable in the present case.
[1034 G H, 1035 A E] Anantha Narayana Iyer vs Pran , over ruled.
|
Appeal No. 463/76.
(Appeal by Special Leave from the Judgment and Order dated 11/12 11 1975 of the Gujarat High Court in L.P.A. No. 113/74).
D.V. Patel, P.H. Parekh and Miss Manju Jetley for the Appellants.
M.C. Bhandare, S.P. Nayar and M.N. Shroff, for the, State of Gujarat.
R. K, Garg and S.C. Agarwala, for Respondents Nos.
5 6 and 8 11.
M.N. Shroff, for the State of Maharashtra.
The Judgment of the Court was delivered by KRISHNA IYER, J.
This is a typical 'service ' appeal, by special leave, which prompts the topical question: Is lit Wiser national policy to process disputes regarding seniori ty, promotion, termination and allied matters affecting the public services, through the docket bound, formalised, methodology of the judicature adopting its traditional, time consuming, tier upon tier system and handicapped by absence of administrative expertise, accessibility to criti cal information and other limitations on the mode and extent of relief, or, alternatively, through built in, high pow ered, but credibility wise less commanding, agencies of composite skills and processes and flexible remedial juris dictions ? 'Justice and Reform ' is a recurrent interroga tion.
Our civil services, if only the static and stratified system were transformed and the men properly oriented and activated, may well prove equal to the dynamic challenges of our times but for the pathetic phenomenon of numbers of officials being locked in long forensic battles.
This litigative pathology of the members of the public services deplorably diverts the undivided energies, sensitive under standing and people based disposition demanded of them for the fulfilment of the Nation 's Tryst with Destiny through implementation of massive 1040 and multiform developmental plans.
Hopefully, constructive thinking on impregnable, competent and quick acting (but not derobed or devalued) intra structures and procedures for improving and accelerating the system of justice to the public services is currently under way.
Now to the merits.
The briefs are big and the arguments long, but the factual matrix and the legal conflicts lend themselves to be condensed without detriment.
The competi tion between two categories of members borne on the cadre of Deputy Collectors of the State of Gujarat viz., direct recruits and in service promotees, on the issue of seniority inter se, with its futuristic career overtones, is the crunch question in this civil appeal.
The grey area of 'service jurisprudence ' covered before us encompasses sever al decisions and if 'by good disputing shall the law be well known ', there has been so much disputation of learned length at the bar that the legal points should have been more pellucid than the precedents read and re read made us feel. 'The aid of the purifying ordeal of skilled argument ' when too lapidary and finical reaches a point of no return, despite Megarry J to the contrary in Cordell vs Second Clanfield Properties Lid. (1).
Seven Deputy Collectors, arriving by direct recruitment in, and after 1963, claim to be ahead, in the gradation list, of their more numerous counterparts former mamlatdars, whose promotional incarnation as Deputy Collectors, dates back to the years 1960 63.
The title of these younger incum bents to be eider in the Civil List is primarily founded on a basic Resolution of Government of July 30, 1959 regulating recruitment to the Deputy Collectors ' cadre by the 'then Bombay State adopting a quota basis.
The Gujarat State, carved out of Bombay and formed on May 1, 1960, continued the system; and so, simplistically presented, the fate of the 'seniority ' struggle critically turns on the construc tion the Bombay Resolution of 1959 bears, the rival versions having been alternately frowned upon or favoured at the original and appellate docks of the High Court.
There are other matters of moment debated at the bar and we will pass on some of them at later stages.
In administrative and legal terms, this case is the projection of the common rivalry for promotional positions between fresh, young recruits and old, seasoned promotees, between alleged excel lence of talented youth and tasted experience of mellowed age.
Sympathies may sway either way and reasons often spring from sympathies.
To be captiously wise in retrospect may itself border on vice.
Even so, we are constrained to observe that when government orders, as here, have the flavour of law and impact upon the fundamental rights and equal opportunities of citizens, they have to be drafted with the case that legal orders deserves lest avoidable litigation should thrive for no better reason than that administrative orders or subsidiary legislation have been drawn up with a casual ness that betrays the skills of insoucience.
Law must be precise, simple, clear, comprehensive and (1) [1968] 3 All E.R. Ch.
1041 there is a duty on the law maker at every level not to injure the community by tengled webs of rules, orders and notifications whose meaning is revealed only through tran scendental meditation or constant litigation.
in a social istic pattern of society there is hardly any part of nation al life or personal life which is not affected by some legal rule or other.
When men have to look to the law from the cradle to the grave, making of even subsidiary laws demands greatest attention.
To begin with the legal beginning is best done with the Bombay Government Resolution of 1959 after giving a thumb nail sketch of the relevant service structure and other minimal particulars.
The composite Bombay State, for purposes of Revenue Administration, had been divided into Divisions which were separate units for promotional prospects, liability to transfer etc., of deputy collectors.
The routine source of recruitment to these posts used to be mamlatdars who were transferred as deputy collectors by promotion.
As early as 1939, a different recruitment policy had been evolved for picking suitable hands from the open market by direct nomi nation.
The inevitable concomitant of a plurality of recruitment categories is the evolution of a workable rule of inter se seniority.
So, by an order of 1941, the mode of determining seniority between 'nominees ' and 'promotees ' was settled.
Service, for seniority purposes, so far as direct recruits were concerned, was to run from the date of their appointment on probation and, in the case of promotee offi cers, such service was to begin with promotion in substan tive vacancies, if continued without break.
For reasons obscure, the direct recruitment scheme of infusion of fresh blood to use the usual validating vascular metaphor to invigorate the Administration, hibernated from 1950 until 1959.
However, the crucial government decision of July 30, 1959 not merely re activated the mode of direct recruitment but fixed the promotion in which recruitment from the two sources was to be made, referred to conveniently as the quota system.
The heart of the debate before us is whether a quota prescription, willy nilly, does postulate ex necessitate a rota process in practice.
We may here read the resolution itself: Deputy Collector: Recruitment of probationers GOVERNMENT OF BOMBAY REVENUE DEPARTMENT Resolution No. RTC.
1157/99153 D Sachivalaya, Bombay, 30th July 1959 Read Government Resolution No. 9313/45, dated the 6th Febru ary 1950.
Government Resolution No. 9313/45, dated the 24th July 1951.
1042 RESOLUTION: Government had for sometime under consideration the question of reviving the system of direct recruitment to the cadre of Deputy Collectors.
It has now been decided that in the interest of administration, the revival of .that system is quite necessary.
Government is accordingly pleased to cancel the orders contained in Government Resolution No. 9313/45, dated 6th February 1950 and those in Government Resolution No. 9313/45, dated the 24th July 1951, in so far as they relate to the recruitment of Bombay Civil Service Executive Branch Deputy Collectors (Upper Division) and to direct that, as far as practicable, 50 per cent of the substantive vacancies occurring in the cadre with effect from 1st January 1959 should be filled in by nomination of candidates to be selected in accordance with the Rules appended herewith.
x x x x x By order and in the name of the Governor of Bombay, G.L. Sheth Secretary to Government" We may also extract the portion from the ' annexed rules of recruitment pertinent to our purpose: "Appointment to the posts of Deputy Collector shall be made either by nomination or by promotion of suitable Mamlatdars: Provided that the ratio of appointment by nomination and by promotion shall, as far as practicable, be 50: 50." The raw materials government proceedings needed for our discussion will be complete if the 1941 Resolution also were read at this stage: "GOVERNMENT OF BOMBAY Political & Services Department Resolution No. 3283/34 Bombay Castle, 21st November, 1941.
x x x RESOLUTION: Government is pleased to direct that the following principles should be observed in determining the seniority of direct recruits and promoted Officers in the provincial services (except the Bombay services of Engineers, Class I) (i) In the case of direct recruits appointed substantively on probation, the seniority should be determined with reference to the date of their appointment on probation.
(ii) In the case of officers promoted to substantive vacancies, the seniority should be determined with reference to the (1 ) Date of their promotion to the (2) substantive vacan cies (3) provided there has 1043 been no break in service prior to their con firmation in those vacancies.
By order and in the name of the Governor of Bombay G.F.S. Collins Chief Secretary to the Govt.
of Bombay Political and Services Department" Flowing out of the fixation of the ratio between the two species of recruits and having a bearing on the issue of seniority is another Resolution of the Bombay Government (continued during the relevant period in Gujarat also by virtue of an omnibus circular of May 1, 1960) of February 3, 1960.
This step became primarily necessary on account of the Reorganisation of States and the abolition of Divisions.
The legal fiction of 'deemed dates of commencement of serv ice ' for the purpose of inter se seniority of personnel drawn from different pre Reorganisation States and from the Divisions within the State on conversion of the deputy collectors ' cadre into a State wide one has been crystal lised in this rule of February 1960.
One more clarificatory proceeding of Government, dated May 27, 1960 has loomed large in Shri Patel 's submissions, especially the Explanation portion thereof and, in a sense, it lends some push to the problematic conclusion.
We there fore read the relevant Government Circular right here: No. GSF 1060 F Government of Gujarat General Administration Department Sachivalaya, Ahmedabad, 27th May 1960 CIRCULAR Read: Government Circular No. GSF 1060, dated the 1st May 1960.
Doubts have arisen as respects the directions given under Government Circular No. GSF 1060 dated the 1st May, 1960 .
To remove any doubt in that behalf, therefore, Government is pleased to direct that the following Explanation shall be and shah be deemed always to have been added to the said circular, namely Explanation : Nothing herein shall apply to appointments of officers, authorities or persons or to the constitution of tribunals or other bodies which may be made by Government on or after the 1st May, 1960 and the condi tions of service of the officers, authorities or persons appointed or the members of the Tribunals or bodies so constituted.
By order and in the name of the Governor of Gujarat.
Sd/ V. Isvaran Chief Secretary to the Government.
" Reliance has been placed on the Explanation quoted above to emancipate Government from compliance with the Bombay rules 1044 regarding appointments of officers or their conditions of service, an aspect we will expand, if needed.
Prima facie, while we agree that the new State is not bound by adminis trative directions of the parent State and may free itself from it by appropriate steps, an unguided power is suspect and a carte blanche in doing what Government fancies with any of its servants is subversive of ordered societies.
We have no further probe to make into this Resolution in the present case and leave it at that.
The fact of the matter is that during 1959 62, no direct recruitments were made but many promotions were effected.
Afterwards, i.e., in 1963 and later, direct recruits were appointed who, contrary to their legal aspira tion, were not assigned seniority over earlier promotees of 1960 63 vintage, having regard to the factual position.
The further hope that for post 1963 recruits, dates of appoint ment, and running of service with effect therefrom, on the basis of a quota allocation and rota system telescoped into it, proved a plain dupe in the seniority list prepared by government.
The doubly chagrined direct recruits moved the High Court for relief, as stated earlier.
The anatomy, in outline, of the deputy collector 's cadre in the Gujarat Government and the grievances of the writ petitioners (respondents before us) thus emerge.
On a 50:50 basis the vacancies in the cadre are filled from two sources viz., direct recruitment and promotion from among mamlat dars.
Once appointed, their seniority gains saliency and turns on length of service, and though no specific provision to count commencement of service is made in the 1959 Resolu tion, it has been understood as set out in the 1941 Resolu tion earlier mentioned.
The contesting respondents plead for pushing down promotees, based on the strict roster system of 1: 1 going by each vacancy and demur to taking the year as a unit for adjustment of ratio.
Which view should prevail? Force, there may be, in the rival versions, indi vidual injustice there can be whichever view were accepted and precedential pushes and pressures may also be brought into play by either side if we surrender to scriptural literality of decisions of this Court and miss the thrust of the ratio therein.
In a liner sense, and within the frame of reference of leading precedents, each case has an individu ality and is a law unto itself.
Strictly speaking, the primary problem is one of fair interpretation of the basic government Resolution of 1959, illumined by the purposes and motivations of good government and unravelling the implications embedded therein, against the background of the administrative structure, service pattern and seniority principles, prevalent contemporane ously, as gleaned from the records of the case.
The milieu aids the meaning although lawyer 's law leans heavily, even lop sidedly, on judicialized lexicography.
Counsel natural ly took us through rulings bearing on the meanings of words and canons of construction which merely re stated time honoured principles and dictionary culls and did not make us any the wiser in coming nearer to a resolution of the conflict here.
Likewise, arguments galore on the connota tion of the quota system of recruitment, with abstractions, propositions and illustrations based on decided cases, were addressed to us, although we 'came out by the same door as in we went ' Common 1045 sense is the first aid in the art of interpretation.
The only sure approach that judges make when confronted by complexity in construction and necessity for rationalisation is on the lines justice Cardozo frankly stated :(1) "We may figure the task of the judge, if we please, as the task of a translator, the reading of signs and symbols given from without.
None the less, we will not set man to such a task, unless they have absorbed the spirit, and have filled themselves with a love, of the language they must read." Two groups, the promotees who came from the lesser stations of life and the direct recruits who have had better advan tages of higher education, fight for berths in the musical chair.
In such situations, while construing rules, sub conscious forces have to be excluded and objectification must be attempted.
Even so, the beautiful candour of Benjamin Cardozo whispers to us that we judges "are . ever and always listening to the still small voice of the herd, and are ever ready to defend and justify its instructions and warnings, and accept them as the nature results of our own reasoning.
This was written, not of judges specially, but of men and women of all classes.
The training of the judge, if coupled with what is styled the judicial temperament, will help in some degree to emancipate him from the suggestive power of individual dislikes and prepossessions .
" ( 2 ) Our effort in unlocking the meaning of the controversial Government Resolution of July 1959 and of other official notifications may inarticulately, minimally and unwittingly, be moulded by these broad under currents.
Other facts relevant for discussion of specific points urged and other legal issues germane to the grounds of attack and defense formulated by counsel may be filled in as and when those points are taken up by us, instead of inartistically clut tering up or en massee lugging together many government proceedings, sequences of events and clarification of difficulties following on the division of Bombay into Gujarat and Maharashtra, even at this preliminary stage.
The pivotal questions one an interpretative exercise and the other a facet of the fundamental right of equal opportunity around which revolve the other arguments may first be set out: (1) If the Gujarat Government has, by an administrative guideline or statutory rule directed that open market recruits and in service promotees will be ap pointed on a 50: 50 basis with the qualification that this principle shall be adhered to, as far as practicable, is Government free to ignore such a rule of conduct as if it were no inflexible directive, violation of which spells illegality on the appointments made, or does this clause obligate the State flatly to try and comply, but if surprise circumstances or insurmountable exigencies arise which make recourse to the rule impracticable, deviate from it without the risk of court branding such deviant appointments void? In short, how far can (1) Benjamin N. Cardozo: The Nature of the Judicial Proc ess: Yale University Press, P. 174.
(2) Cardozo (supra) pP. 175 176.
1046 administrative pragmatics influence, without invalidation, the recruitment mechanics where a narrow rider providing for imponderable exigencies written into the rule, provides for departure ? (2) Assuming there has to be a proportion of 50 50 as above indicated, how is it to be worked out ? On a rotational basis of the direct recruits inexorably getting the first, the third, the fifth and such like vacancies or as an entitlement to half the total number of vacancies arising in the cadre in a particular year or other conven tional period ? Again, does it further imply an imperative obligation on the part of Government to keep untilled all vacancies allocable to direct recruits so that they may be available to be filled up in later years with retroactive repercussions and, if such ear marked posts are, for admin istrative exigencies, filled regularly, not ad hoc, in sub stantive vacancies, not ex cadre posts by selection and promotion, they must be treated as provisional nationally filled by direct recruits who may arrive long later? And consequentially, in counting seniority, reckon their (i.e., direct recruits) deemed dates of entry as prior to those actually officiating promotee deputy collectors by importing a sort of legal fiction that the direct recruits must be allowed to count service from the date when the entitled vacancy for direct recruits arose? May be a diffusive, digressive discussion can be obviated and the focus turned on specific issues if we start with a formulation of the major points urged by Sri D. V. Patel, counsel for the appellant, hotly controverted, of course, by shri R.K. Garg for the contesting respondents.
Elimination of the minor clears the ring for the major bouts.
The appellants represent the group of promotee deputy collectors and the contestants are deputy collectors di rectly recruited.
The Gujarat State lines up with the former, more or less.
We now set out sequentially the six point propositional formulation made by Shri Patel, for the appellants, although salience suggests the third item as first and, if .we anticipate our conclusion, the last in importance.
The cornerstone of the case, as noted earlier, is the Bombay Government 's Resolution of 1959 fixing the proportion between direct recruits and promoted candidates, with an emergency escape route to jump out of the fixed ratio.
Shri Patel 's first point is that once the new State of Gujarat was formed, mere administration proceedings of he former government of Bombay State ceased to be in force proprio vigore unless Gujarat adopted or continued or otherwise modified them.
subject to statutory regulations and consti tutional limitations.
The State of Gujarat had plenary executive power, granted by the Constitution, to fill up administrative posts in any manner it chose.
The clarifi catory government Resolution of May 27, 1960 issued by the Gujarat Government becomes significant in this context as it contains in explanation which specifically provides that the adoption of the Bombay Government Resolution of 1959 does not, in any way, fetter the Gujarat Government in making appointments of officers on or after May 1, 1960 nor does the said 1959 Resolution in any manner restrict the condi tions of service of such officers.
Therefore, it is per fectly oven to the Gujarat Government to make fresh appoint ments to the posts of Deputy Collectors untremmelled by the ratio or other 1047 restrictive conditions which may be read into the Bombay Government Resolution of 1959.
In this view his clients cannot suffer even if the Bombay Resolution has been breached.
(2) Assuming that point No. 1 has no force, Shri Patel submits that the various government Resolutions of the Bombay and Gujarat Governments referred to by the parties are purely administrative directions and cannot have the binding status of statutory rules.
Therefore, no rights can be derived therefrom by the direct recruits or potential direct appointees and breach of such directives or rules cannot invalidate appointments made.
(3) On the further assumption that point No. (2) above is bereft of substance and the Government Resolutions referred to have statutory character, the very terms of the 1959 Government Resolution provide a sensible safely value, wisely anticipatory when we remember the pragmatic considerations and administrative exigencies that the slow moving apparatus of the Government of a newly formed State has to face or be puzzled with.
The 1959 Resolution which is the 'rounding document ' of the rights of the direct recruits itself states that the propor tion between the two categories is to be applied 'as far as practicable '.
Therefore, the rule is neither exception proof nor abstractly absolute but realistic and flexible true to life.
Rigidly to read the rule is surely to misread it.
Since it contemplates special situations of impracticability it is but right for the Court so to construe the Resolution, in the light of the explanation offered by the State for non recruitment directly until 1963, as to make it adminis tratively viable and reasonably workable If such an imagina tive and informed judicial insight plays upon the rule, the difficulties in making immediate recruitments from the open market by the Public Service Commission may sufficiently absolve the State from the supposed violation of Government Resolution of 1959 So viewed, the orders of promotion of the appellants are in order and unassailable.
(4) & (5) The mandate of equality ensconced in Arts 14 and 16 cannot handcuff justice by pushing down the promotees if the Sen iority List in the face of their actual service and legal appointment.
The attack based on article 16 that the roster method of filling up posts is integral to the quota system is baseless.
Quota without rotate is also reasonable and constitutional as much as quota plus rota.
The choice, both being permissible and fair, is left to the Administration, the Court not ferretting or dissecting to detect deadly traces of discrimination or unreasonableness.
(6) The assignment of "deemed dates ' of commencement of service is not unreasonable but is often adopted by Governments when integrating into a common cadre officers drawn from differ ent States or Departments or divisions.
Novel compulsions demand novel solutions and law accepts life 's expediency save where the public Vower has been obliquely exercised or unreasonableness is writ large on the face of the process.
Such a stigma being absent, the promotees cannot be dis lodged from their notches in the ladder.
We are mercifully absolved from making the discussional journey over a long mileage covering the poly pointed formu lation since two essential issues may virtually be decisive of the case.
Both sides have agreed to this abbreviation and the other grounds have dropped out of effective contest in the long course of arguments.
Enough upto the day! 1048 It is fair to state even at this stage that be the Bombay G.O. of 1959 merely administrative or really statuto ry, both the learned Single Judge and the Division Bench have head the Gujarat State bound by it.
The rule of law is tile enemy of arbitrary absolutism and the discretion to disobey is a doctrine of despotism and cannot be subscribed to by a Court merely because the state chooses to label a rule or conduct anecting the rights of others an administra tive regulation.
In a constitutional order governed by the rule of law, whim or humour, even if benignly motivated, masquerading as executive discretion is anathema to law.
When power is vested under the Constitution or other statute in the State to promulgate rules of conduct attracting oth ers, such rules must ordinarily govern the State and subject alike.
When there are service rules affecting the public services, they may either be in exercise of the executive power of the State under article 162 or rules with legislative colour framed under the proviso to article 309 of the Constitu tion.
It is fair for the Administration in a democratic system employing expanding armies of government servants, whose lot in life and career prospects will be governed by recruitment, conduct and disciplinary rules, to respect, beyond suspicion, the rule of law by exercising statutory power as distinguished from executive power, even where it has an option.
Of course, in exceptional situations, or sudden exigencies and for new experiments to be tried, the framing of statutory rules under article 309, proviso, may be postponed and executive orders immediately promulgated.
The best judge is the State Government exercising its power justly and efficiently.
For the art of government is beset with the perils of a journey through life 's jungle and textbook prescriptions can prove ruinous.
We may point to another problem.
It has often been difficult to discover whether a particular set of rules is framed under the provi so to article 309 or, in mere exercise of article 162, although it is desirable that the State makes it explicit.
We are, however, not called upon to investigate this perplexing aspect because, as stated earlier, the High Court has held that the State is bound by the Bombay G.O. of 1959.
Counsel for the appellants, Shri Patel, and counsel for the State, Shri Bhandare, have rightly acquiesed in that posi tion and proceeded with their arguments on that footing.
This point (which is the first) therefore, does not need our pronouncement.
The other points, pedentically capable of being sepa rately dealt with, highlight what we have earlier indicated as the two telling questions of law that settle the outcome of the appeal.
We will seek the tight of common sense to solve them and later test the conclusions with reference to binding rulings of this Court.
The first question that falls for considerations, there fore, is as to whether the 50:50 ratio 'as between direct recruits and promoted hands is subject to the saving clause 'as far as practicable '.
Can Government vary the ratio ? Ordinarily No. Is it permissible at all ? Probably, yes, given proof of the government 's case that it was not practicable for the State to recruit from the open market qualified persons through the specialised agency of the Public Service Commission.
The factual basis for this plea of extenuation will be examined presently but, according to Shri R.K. Garg, appearing for the contestants, 1049 even if the alibi of the State were true, it furnished no legal justification for deviation from the application of the rule.
He interpreted, 'as far as practicable ' occurring in the Government Resolution, in a very different way and submitted that to adopt the appellant 's view on this aspect was to subvert the substance and nullify the conscience of the binding Bombay Resolution of 1959.
Shri Garg argued that the language of the critical G.O. was peremptory, that for the high purpose of improving administrative efficiency a balanced mix of old experience (gained by long service) and young abilities (proved by competitive selection) was hit upon as half and half from each category and the Court could not fall for any construc tion of the words 'as far as practicable ' which would frus trate this goal of overall efficiency unless the semantic search left no other option.
Far from there being no alternative interpretation, the benignant purpose of the Resolution pressed forward to a reasonable meaning that 'as far as practicable ' related not to the tampering with the proportion of the mix but in permitting provisional varia tions or ad hoc solutions or emergency arrangements to meet a difficulty of the Administration without making formal or regular 'appointments ' to the posts meddling irrevocably with the proportion in the prescription.
Later, when direct recruits were secured, they would be entitled to their quota vacancies and commencement of seniority from the date of their appointment.
Logomachic exercises are the favourite of the forensic system but too barren to fascinate the Court and too luxuri ous, in our penury of time to indulge.
Should we chase decisions and dictionaries and finer verbal nuances with explorative industry ? The sense of the setting, the 'why ' the author whispers through his words and the warning 'not this.
not this ' that the objective understanding of the totality of the socially relevant scheme instils these light up the interpretative track alone the criss cross woods of case law and lexicons.
Led by that lodestar, we will eye the situation afresh.
In doing so, we must first set down the meaning Shri Patel suggests, and Shri Bhandare supports, and the manner in which these appellants claim that their appointments and seniority are sequestered by the saving words 'as far as practicable '.
What does 'as far as practicable ' or like expression mean, in simple anglo saxon ? Practicable, feasible, possi ble, performable, are more or less interchangeable.
A skiagraph of the 1959 Resolution reveals that the revival of the direct recruitment, method was motivated by 'the inter est of administration ' an overriding object which must cast the benefit of doubt if two meanings with equal persuasive ness contend.
Secondly, going by the text, 50% of the substantive vacancies occurring in the cadre should be filled in by selection in accordance With appended Rules. 'As far as practicable ' finds a place in the Resolution and the Rule.
In the context what does it qualify ? As far as possible 50% ? That is to say, if 50% is not readily forth coming, then less ? Within what period should be imprac ticabilitv to felt ? What is the content of impracticabi litv ' in the given administrative 'setting ? Contrariwise, can you not contend that impracticability is 1050 not a license to deviate, a discretion to disobey or a liberty with the ratio ? Administrative tone is too impor tant to be neglected but if sufficient numbers to fill the direct recruits ' quota are not readily available, substan tive vacancies may be left intact to be filled up when direct recruits are available.
Since the exigencies of administration cannot wait, expediency has a limited role through the use of the words 'as far as practicable '.
Thereby Government is authorised to make ad hoc appointments by promotion or by creation of ex cadre posts to be filled up by promotees, to be absorbed in the 50% portion falling to the promotional category in later years.
In short 'as far as practicable means, not interfering with the ratio which fulfils the interest of administration, but flexible provision clothing government with powers to meet special situations where the normal process of the government Reso lution cannot flow smooth.
It is a matter of accent and import which affords the final test in the choice between the two parallel interpretations.
We have given close thought to the competing contentions and are inclined to the view that the former is the better.
Certainly, Shri Garg is right that the primary purpose of the quota system is to improve administrative efficiency.
After all, the Indian administration is run for the service of the people and not for opportunities for promotion to a few persons.
But theories of public administration and experiments in achieving efficiency are matters of govern mental policy and business management.
Apparently, the State, having given due consideration to these factors, thought that a blended brew would serve best.
Even so, it could not 'have been the intention of government to create artificial situations, import legal fictions and complicate the composition of the cadre by deviating from the natural course.
The State probably intended to bring in fresh talent to the extent reasonably available but not at the sacrifice of sufficiency of hands at a given time nor at the cost of creating a vacuum by keeping substantive vacancies unfilled for long.
The straight forward answer seems to us to be that the State, in tune with the mandate of the rule, must make serious effort to secure hands to fill half the number of vacancies from the open market.
If it does not succeed, despite honest and serious effort, it qualifies for depar ture from the rule.
If it has become non feasible, imprac ticable and procrastinatory to get the requisite quota of direct recruits, having done all that if could, it was free to fill the posts by promotion of suitable hands if the filling up of the vacancies was administratively necessary and could not wait.
Impracticable cannot be equated with 'impossible ' nor with unplatable and we cannot agree with the learned judges of the High Court in construing it as colossally incapable of compliance.
The short test,there fore, is to find out whether the government, in the present case, has made effective efforts, doing all that it reasona bly can, to recruit from the open market necessary numbers of qualified hands.
We do not agree that the compulsion of the rule goes to the extreme extent of making government keep the vacancies in the quota of the direct recruits open and to meet the urgent needs of administration by creating ex cadre posts or making ad hoc appointments or resorting to other out of the way expedients.
The sense of the rule is that as far as possible the quota system must be kept up and, if not prac 1051 ticable, promotees in the place of direct recruits or direct recruits in the place of promotees may be inducted applying the regular procedures, without suffering the seats to lie indefinitely vacant.
The next question then is as to whether government has satisfied the Court that efforts had been made to secure direct recruits and failure to secure such hands is the explanation for resort to.
promotions of mamlatdars.
The reason for delay in making appointments of direct recruits during the year 1960, 1961 and 1962 has been set out by the State before us.
It appears that a requisition for 12 posts of deputy collectors was sent to the Gujarat Public Service Commission on October 31, 1960 but the Commission raised some linguistic queries 'regarding the requirement of ade quate knowledge of Marathi and Gujarati by the candidates.
Anyway, various points were raised from time to time in the correspondence between the Commission and Government and, eventually, the 'former held a competitive examination for the posts of deputy collectors in July 1962, declared the results in January 1963 and sent up ,its recommendations in the following February.
Government issued orders for ap pointment of the candidates so selected by the Public Serv ice Commission in May 1963.
This is a working explanation, prima facie good and not rebutted as got up.
If it is not necessary for the State Government to have recourse to recondite processes of ad hoc appointments and creation of ex cadre posts and if government has taken active steps in the direction of direct recruitment, the exception to the Government Resolution comes into operation.
Direct recruit ment ordinarily involves processing by the Public Service Commission, an independent body which functions at its own pace.
If Government had excluded the posts of Deputy Col lectors from the purview of the Public Service Commission with a view to achieve expeditious recruitment, it might have been exposed to the criticism that the normal method was being by passed with oblique motives.
Having looked at the matter from a pragmatic angle, we are ,convinced that the government did what it could and need not have done what it ordinarily should not have done.
Therefore the con clusion is inevitable although Shri Garg 's argument to the contrary is ingenious that the State had tried, as far as practicable, to fill 50% of the substantive vacancies from the open market, but failed during the years 1960 62 and that therefore it was within its powers under the relevant rule to promote mamlatdars who, otherwise, complied with the requirements of efficiency.
Now we move on to the more thorny question of quota and rota.
Shri Garg urges that the rotational mechanics is implicit in the quota system and the two cannot be delinked.
To shore up this submission he relies on what he propounds as the correct command of the rule of 'quota '.
In his view, 1: 1 simply means one direct recruit or promotee followed, vacancy by vacancy, by the other.
To maintain 'the propor tion in compliance with the quota fixture, Government must go by each post as it falls vacant and cannot circumvient this necessity by year war reckoning of vacancies and keep ing up the ratio.
The counter view put forward by Shri Parekh, for the appellant, is that 338SC1/76 1052 quota and rota are not indissolubly wedded and are separate and separable.
In the present case, according to him it is an error to import 'rota ' where the rule has spelt out only 'quota ' as a governing principle.
The Usual practice, sanctioned by rulings of this Court,is to go by the year as a unit for working out the quota.
Here a again we are not disposed to hold, having special regard to the recent decisions of this Court cited before us that 'quota ' is so the recent decisions of this where the former is expressly prescribed, interlocked with 'rota, that where the former is expressly prescribed, the latter is impliedly inscribed.
Let us logicise a little.
A quota necessarily postulates more than one source of recruitment.
But does it demand the manner in which each source is to be provided for after recruitment, especially in the matter of seniority ? Cannot quota stand independent of rota ? You may fix a quota for leach category but that fixes the entry.
The quota methodology may itself take many forms vacancy wise ratio, cadre composition wise pro portion period wise or numberwise regulation.
Myriad ways can be conceived of Rotational or roster system is a com monly adopted and easily understood method of figuring out the placement of officers on entry.
It is not the only mode in the code and cannot be read as an inevitable consequence.
If that much is logical, then what has been done here is legal.
Of course, Shri Garg 's criticism iS that mere 'qu ota ' is not viable without provision for seniority and, if nothing more is found in the rule, the quota itself must be understood to apply to each post as and when it falls to be filled.
If exigencies of administration demand quick post ing in the vacancy and one source (here, direct recruit ment) has gone dry for a while, then the proper course is to wait for a direct recruit and give him notional date of entry as of the quota vacancy and manage to keep the wheels of government moving through improvised promotions, express ly stripping such ad hocist of rights flowing from temporary occupancy.
We have earlier dealt with the same submission in a slightly different form and rejected it.
Nothing more remains to be said about it.
What follows and matters on entry into service is seniori ty which often settles the promotional destiny of the var ious brands of incumbents.
Naturally, the inter se struggle turns how best to bend the rules to one 's good account.
Shri Garg criticised the thoughtways apparent in the argu ment, backed by some rulings, that, quota being delinked from rota, annual intake is the unit for adjusting the seniority among candidates from the two sources.
This is an innovation dehors the rule, he says.
We do not think so.
The question is not whether the year being taken as the unit is the only course but whether there is anything in the rule prescribing Government taking it as the unit or prescribing some other specific unit.
It is obvious that the Resolution of 1959 is silent on how to allocate or reckon the quota as also on how to compute 'seniority and Government has a good alibi for taking the year as the unit and length of continu ous service as determining seniority.
The first is evident from the .reading of the 1959 Resolution in the light of some ruling of this Court and the second from the 1941 Resolution.
Moreover, there is nothing in the Resolution of 1959 preventing Government from treating a year as the unit.
1053 We therefore reach the following conclusions: 1.
The promotions of mamlatdars made by Government between 1960 and 1962 are saved by the 'as far as practicable ' proviso and therefore valid, Here it falls to be noticed that in 1966 regular rules have been flamed for promotees and direct recruits flowing into the pool of Deputy Collectors on the same quota basis but with a basic difference.
The saving provision 'as far as practicable ' has been deleted in the 1966 rules.
The conse quence bears upon seniority even if the year is treated as the unit for quota adjustment.
If any promotions have been made in excess of the quota set apart for the mamlatdars after rules in 1966 were made, the direct recruits have a legitimate right to claim that the appointees in excess of the allocable ratio from among mamlatdars will have to be pushed down to later years when their promo tions can be regularised by being absorbed in their lawful quota for those years.
To sim plify, by illustration, if 10 deputy collec tors ' substantive vacancies exist in 1967 but 8 promotees were appointed and two direct recruits alone were secured, there is a clear transgression of the 50: 50 rule.
The redun dancy of 3 hands from among promotees cannot claim to be regularly appointed on a permanent basis.
For the time being they occupy the posts and the only official grade that can be extended to them is to absorb them in the subsequent vacancies allocable to promotees.
This will have to be worked out down the line wherever there has been excessive representa tion of promotees in the annual intake.
Shri Parekh, Counsel for the appellants has fairly conceded this position.
The quota rule does not, inevitably, invoke the application of the rota rule.
The impact of this position is that if sufficient number of direct recruits have not been forthcoming in the years since 1960 to fill in the ratio due to them and those deficient vacancies have. been filled up by promotees, later direct recruits cannot claim 'deemed ' dates of appointment for seniority in service with effect from the time, according to the rota or 'turn, the direct recruits ' vacancy arose.
Seniority will depend on the length of contin uous officiating service and cannot be upset by later arrivals from the open market save to the extent to which any excess promotees may have to be pushed down as indicated earlier.
These formulations based on the commonsense understand ing of the Resolution of 1959 have to be tested in the light of decided cases.
After all, we live in a judicial system where earlier curial wisdom, unless competently over ruled, binds the Court.
The decisions cited 1054 before us start with the leading case in Mervyn Coutindo & Ors.
vs Collector of Customs, Bombay(1) and closes with the last pronouncement in Badami vs State of Mysore & Ors.
This time span has seen dicta go zigzag but we see no diffi culty in tracing a common thread of reasoning.
However, there are divergencies in the ratiocination between Mervyn Coutindo (Supra) and Govind Dattaray Kelkar & Ors.
vs Chief Controller of Imports and Exports & Ors.(3) on the one hand and S.G. Jaisinghani vs Union of India(4) .Bishan
Sarup Gupta vs Union of India,(5) Union of India & Ors.
vs Bishan Sarup Gupta(6) and A.K. Subbraman & Ors.
vs 'Union of India(7) on the other, especially on the rota system and the year being regarded as a unit, that this Court may one day have to harmonize the discordance unless Government wakes up to the need for properly drafting its service rules so as to eliminate litigative waste of its servants ' energies.
In Mervyn Coutindo the validity of the rotational system as applied in fixing the seniority inter se between promo tees and direct recruits fell for decision in the context of the specific rule applicable to Customs ' appraisers.
One of the principles in the circular which contained the rules related to the comparative seniority of the two categories. 'It provides ', says the Court in summarizing the rule, "that relative seniority of direct re cruits and promotees shah be determined ac cording to the rotation of vacancies between direct recruits and promotees which shall be based on the quota of reservation for direct recruitment and promotion respectively in the recruitment rules.
It was further explained that a roster should be maintained based on the reservation for direct recruitment and promotion in the recruitment rules.
Where, for example, the reservation for each method is 50 per cent, the roster will run as fol lows(1) promotion, (2) direct recruitment, (3) promotion, (4) direct recruitment, and so on.
Appointments should be made in accordance with this roster and seniority determined accordingly.
A question has been raised whether the circular of 1940 to which we have already referred survived after this circular of 1959; but in our opinion it is unnecessary to decide that question, for the circular of 1959 itself lays down that seniority shall be determined accordingly, i.e. in accordance with the rotational system, depending upon the quota reserved for direct recruitment and promotion respectively.
It is this circular which, according to the respondent, has been followed in determining the seniority of Appraisers in 1963".
, In the face of such a plain directive in the relevant rule regarding relative seniority for the solution of the problem that arises before us where such a seniority provision is absent and the relevant seniority (1) ; (2) [1976] 1 SCR 815.
(3) [1967] 2 SCR 29.
(4) ; (5) [1975] Supp.
SCR 491.
(6) ; (7) [1975] 2 SCR 979.
1055 provision is different, Mervyn Coutindo (supra) cannot be of any assistance.
That case is authority for the proposition it decides in the matrix of the special facts and rule therein.
In view of the words of the Circular 'that senior ity as between direct recruits and promotees should be determined in accordance with the roster which has also been specified . the inextricable interlinking between quota and rota springs from the specific provision rather than by way of any general proposition.
Mervyn Coutindo (Supra) cannot therefore rescue the respondents.
Nor does the refer ence to a 'service ' being divided into two parts, derived from two sources of recruitment, help Shri Garg 's clients.
The rule of 'carry forward ' struck down in T. Devadasan vs Union of India & Anr.(1) has no relevance ,to a situation where the whole cadre of a particular service is divided into two parts.
Apart from the fact that it is doubtful whether Devadasan 's case survives State of Kerala vs
N.M. Thomas & Ors.
(2) there is no application of the 'carry forward ' rule at all in fact situations where two sources of recruitment are designated in a certain proportion and shortfalls occur in the one or the other category.
In such a case, what is needed is conformity to the prescription of the proportion and No. question of carrying anything forward strictly arises.
It is true that Mervyn (Supra) does not support the year by year intake as the yardstick; but the reason is obvious the rule is specific.
Kelkar (Supra) also dealt with the ratio prescribed as between direct recruits and promotees.
Many grounds of attack were levelled there, one of which was that the rota tional system would itself violate the principle of equal opportunity enshrined in the Constitution (article 16(1) ).
The Court repelled this contention.
Of course, promotions made on an ad hoc basis confer no rights to the posts on the appointees, as was clearly pointed out in that decision.
In the instant case it is common ground that the appointments are not on a purely ad hoc basis but have been regularly made in accordance with the rules to fill substantive vacan cies except that the promotees have exceeded their quota, direct recruits being unavailable.
Kelkar (supra) stands on a different footing, and hardly advances the position advanced by Shri Garg.
Jaisinghani (Supra) which has had a die hard survival through Bishan Sarup Gupta vs Union of India(3) and Union of India & Ors.
vs Bishan Sarup Gupta(4) (if one may refer to.
the two cases flowing out of Jaisinghani (supra) in that fashion), has been referred to by both sides at the bar.
It was relied on by Mr. Garg for the strong observation of Ramaswami, J. that the absence of arbitrary power is the first essential of the rule of law upon which our constitu tional system is based.
He has also drawn attention .to the suggestion made in that decision 'to the ' government that for future years the roster system should be adopted by framing an appropriate rule for working out the quota be tween direct recruits and the promotees . '.
We may straightway state that our Constitutional system is very allergic to arbitrary power but there is nothing arbitrary made out in the present case against the government.
The second observation in (1) ; (2) ; (3) [1975] Supp.
SCR 491.
(4) ; 1056 Jaisinghani (Supra) is of a suggestion that for future years the roster system linking up quota with rota, may well be adopted by government.
It is not the interpretation of any existing rule nor laying down of a rule of law, so much so we cannot have any guideline therefrom to apply to the present case.
The Government could no doubt, if it so thought expedient, frame a specific rule incorporating the roster system so as to regulate seniority.
But we should not forget that seniority is the manifestation of official experience, the process of metabolism of service, over the years, of civil servants, by the Administration and, there fore, it is appropriate that as far as possible he who has actually served longer benefits better in the future.
More over, the search for excellence receives a jolt from the rule of equality and the State is hard put to it in striking a happy balance between the two criteria without impairment of administrative efficiency.
Broadly speaking, the Court has to be liberal and circumspect where the area is trickly or sensitive, since administration by court writ may well run haywire.
Moving on, we may start off with the statement that the last case Badami (Supra) lays down the incontrovertibly harmless principle that quotas that are fixed are inaltera ble according to governmental exigencies.
But there, unlike here, no saving provision 'as far as practicable ' existed and here post 1966 promotees have to suffer a push down where their appointments are in .excess of.
the promotee quota.
Nothing directly bearing on our controversy could be discerned by us in that decision.
Gupta I (Supra) an off shoot of Jaisinghani (Supra), proceeds on the assumption that the quota is for .a year.
Whether the rule stated so or not, that was probably the practice and there was nothing unreasonable in it.
Even if the rule as such had expired, it could, according to that decision, be followed as a guideline.
Government had to follow some guiding principle and not be led by its fancy, as each occasion arose.
Palekar, J. expressed the view of the Court thus: "When the rule is followed as a guideline and appointments made, a slight deviation from the quota would not be material.
But if there is an enormous deviation, other considerations may arise.
" In the present case, prior to 1963, there was departure from the quota system and that was sanctioned by the rule itself because of special circumstances.
For subsequent periods, if by taking the year as a unit there have been surplus promotees beyond their allocation even after taking into account impracticability of getting direct recruits upto 1966 when new statutory rules were enacted, then such spill overs, could and should, as indicated by this Court, be set off and absorbed in the later allocable vacancies, the pro tempore illegal appointments being thus regularised.
Of course, appointees on an ad hoc basis are never clothed with any rights and have to quit when the exit time arrives but here there are none.
In Gupta II(Supra) the Court ruled: 1057 "If there were promotion in any year in excess of the quota those promotions were merely invalid for that year but they were not invalid for all time.
They can be regularised by being absorbed in the quota for the later years.
That is the reason why this Court advisedly used the expression 'and onwards ' just to enable the Government to push down excess promotions to later years so that these promotions can be absorbed in the lawful quota for those years.
" Such is the essence of the two Gupta cases (Supra).
Law conceptualises anew every time life inseminates it with new needs and we have in Gupta the innovation of temporary invalidity of an appointment clinically dead but later resuscitated ? Jurisprudence burgeons from the left neces sities of society.
A.K. Subbaraman (Supra) relying on .Gupta 11 (Supra) and going further, has silenced the direct recruits with reference to the precise contention now urged by Shri Garg that rota being imbedded in the womb of the quota system their co existence could not be snapped.
While quota and rota may constitutionally co exist their separation is also constitutionally permissible, if some 'reasonable ' way, not arbitrary whim, were resorted to.
Even what is 'reasona ble ' springs from sort of reflexes manifesting social sub consciousness, as it were.
Nothing absolutely valid exists and rationality and justice themselves are relative.
Within these great mental limitations, the Court 'S observations in Subbaraman (Supra) have to be decided.
This brief and quick survey of decided cases, and the submissions considered by us in the judicial crucible, yield the following conclusions, leaving aside the question of 'confirmation ' in service which, in the Gujarat set up, leaves our controversy untouched: (a) The quota system does not necessitate the adoption of the rotational rule in practi cal application.
Many ways of working out 'quota ' prescription can be devised of which rota is certainly one.
(b) While laying down a quota when fill ing up vacancies in a cadre from more than one source, it is open to Government, subject to tests under article 16, to choose 'a year ' or other period or the vacancy by vacancy basis to work out the quota among the sources.
But once the Court is satisfied, examining for constitutionality the method proposed, that there is no invalidity, administrative tech nology may have free play in choosing one or other of the familiar processes of implement ing the quota rule.
We, as Judges, cannot strike down the particular scheme because it is unpalatable to forensic taste.
(c) Seniority, normally.
is measured by length of continuous, officiating service the actual is easily accepted as the legal.
This does not preclude a different prescription, constitutionally tests being satisfied.
1058 (d) A periodisation is needed in the case to settle rightly the relative claims of promotees and direct recruits.
1960 62 forms period A and 1962 onwards forms period.
B. Promotees regularly appointed during period A in excess of their quota, for want of direct recruits (reasonably sought but not secured and because tarrying longer would injure the administration) can claim their whole length of service for seniority even against direct recruits 'who may turn up in succeeding peri ods.
(e) Promotees who have been fitted into vacancies beyond their quota during the period B the year being regarded as the unit must suffer survival as invalid appointees acquir ing new life when vacancies in their quota fall to be filled up.
To that extent they will step down, rather be pushed down as against direct recruits who were later but regularly appointed within their quota.
On this basis, the judgment of the High Court stands substantially modified, but preparation of a new seniority list becomes necessitous.
We set aside the judgment under appeal but direct the State Government to draw up de novo a gradation list showing inter se seniority ' on the lines this judgment directs.
The subject has been pending so long that very expeditious administrative finalisation is part of justice.
Officials live in the short run even if Administra tions live in the long run.
We direct the State to act quickly.
Lack of adequate articulation of simple points regarding rotation and seniority, and the amber light shed by case law on the questions raised, warrant the direction that parties shall bear their costs throughout.
The unlovely impact of these protracted and legalistic proceedings makes us epilogue, an unusual step in a judg ment, but pathetically necessitous for the renovation of the judicial process.
Law is not a 'brooding omnipotence in the sky ' nor a sort of secretariat asoterica known only to higher officialdom.
But lengthy legal process, where administrative immediacy is the desideratum, is a remedy worse than the malady.
The fact that the present case has taken around 5 working days for oral arguments is a sad commentary on the system, which compels litigents to seek extra curial forums.
Judge Brian Mokenna was right (and the Indian judicial process needs systemic change 'since his wise words apply also to our judicature) when he said: "The fault is that the rules of our procedure which by their discouragement of written argument make possible extensively protracted hearings in open court.
Those re sponsible might think more of changing them.
In civil cases a written argument supplemented by a short oral discussion, would sometime 's save a great deal of time." To streamline and to modernise court management is a Cinderella subject in India, as elsewhere.
We conclude, by repeating what Chief 1059 Justice Warran Burger of the U.S. Supreme Court said, in 1970, in his address to the American Bar Association: "In the final third of the century we are still trying to operate the courts with fundamentally the same basic methods, the same procedures and the same machinery, Roscoe Pound said were not good enough in 1906.
In the super market age we are trying to operate the courts with craker barrel corner grocer methods and equipment vintage 1900.
" We too have miles to go for law and justice to meet.
P.H.P. Appeal allowed.
| IN-Abs | The appellants are the promotee Deputy Collectors in the State of Gujarat.
The contesting respondents are the direct recruits to the parent cadre of Deputy Collectors.
7 Deputy Collectors who are the contesting respondents in this appeal and who were directly recruited as Deputy Collectors in and after 1963 claimed that they were senior to the appellants who were the promotees promoted as Deputy Col lectors between the years 1960 and 1963 by filing a Writ Petition in the High Court.
The routine source of recruit ment to the posts of Deputy Collectors used to be Mamlatdars who were promoted as Deputy Collectors.
In 1939, direct recruitment policy was also evolved for this post.
By an order of 1941 the mode of determining seniority between direct recruits and promotees was settled.
As far as the direct recruits were concerned, their seniority was to run from the date of their appointment on probation and in the case of promotees such service was to begin with promotion in substantive vacancy if continued without break.
During the year 1950 to 1959 the direct recruitment was discontin ued.
By the Bombay Government Resolution dated 30 7 1959, the mode of direct recruitment was again started and the proportion in which the recruitment from the two sources, namely, the direct recruits and the promotees, was fixed as 50: 50 as far as practicable.
On 1 5 1960, the Bombay State was bifurcated into Gujarat and Maharashtra.
On 1 5 1960, a circular was issued by the Gujarat Government adopting the rules, resolu tions, notifications etc.
of the Bombay State.
By a further clarificatory resolution dated 27 5 1960 Gujarat Government provided that nothing contained in the circular dated 1 5 1960 shall apply to appointments of officers, authorities or persons which may be made by the Government on or after 1 5 1960.
During the year 1959 62,.no direct recruitment was made but many promotions were effected.
The Writ Peti tion filed by the direct recruits was dismissed by a learned Single judge of the High Court.
The Division Bench of the High Court, however, accepted the appeal of the con testing respondents.
In an appeal by Special Leave the appellants contended: 1.
The expression 'as far as practicable ' in the resolution of 1959 provides a sensible safety valve.
Therefore, the rule is neither exception proof nor abstractly absolute but realistic and flexibly true to life.
The mandate of equality in Articles 14 and 16 does not require pushing down the promotees in the seniority list in the fact of their actual service and legal appointment.
Rotation is not implicit in quota.
Quota without rotation is also reasonable and constitutional as much as quota with rotation.
The choice, both being permissible and fair, is left to the Administration.
The contesting respondents contended (i) The rule of law is the enemy of arbitrary absolutism and the discretion to disobey is a doctrine of despotism and cannot be sub scribed to by a Court.
1038 (ii) 'As far as practicable does not permit the State to deviate from it.
It merely authorises provisional variations or ad hoc solutions or emergency arrangements to meet the difficulty of the Administration without making formal or regular appointments to the posts in question.
(iii) Rotational system is implicit in quota.
(iv) Any deviation from rotational system is violative of Articles 14 and 16 of the Con stitution.
Allowing the appeal held: 1.
The State in tune with the mandate of the quota rule must make serious efforts to secure hands to fill half the number of vacancies from the open market.
If it does not succeed despite honest and serious effort, it qualifies for departure from the rule.
If it has become non feasible, imprac ticable to get the requisite quota of direct recruits having done all that it could, it was free to fill the Post by promotion of suit able hands, if the filling up of the vacan cies was administratively necessary and could not wait.
The sense of the rule is that as far as possible the quota system must be kept up and if not practicable promotees in place of direct recruits or direct recruits in place of promotees may be inducted applying the regular procedures without suffering the seats to lie indefinitely vacant.
[1050 F H, 1051 A] 2.
The Government sent a requisition for 12 posts of Deputy Collectors to the Gujarat Public Service Commission as early as in October, 1960.
On account of commission having raised various queries including require ments of adequate knowledge of Marathi and Gujarati, the examination could not be held during the years 1960 1962.
The expla nation given by the Government is prima facie good and not rebutted as got up.
Since the Government took active steps in the direction of direct recruitment, the excep tion to the Government Resolution comes into operation.
The Government in the present case did all that it could.
[1051 A F] 3.
Quota is not inter locked with Rota.
[1052 A] (a) The quota system does not necessitate the adoption of the rotational rule in practical application.
Many ways of working out 'quota ' prescription can be devised of which rota is certainly one.
(b) While laying down a quota when filling up vacancies in a cadre from more than one source, it is open to Government.
subject to tests under article 16, to choose 'a year ' or other period of the vacancy by vacancy basis to work out the quota among the sources.
But once the Court is satisfied, examining for constitutionality the method proposed, that there is no invalidity, administrative technology may have free play in choosing one or other of the familiar processes of imple menting the quota rule.
We, as Judges, cannot strike down the particular scheme because it is unpalatable to forensic taste.
(c) Seniority, normally, is measured by length of continuous.
officiating service the actual is easily accepted as the legal.
This does not preclude a different prescription, consti tutionality tests being satisfied.
(d) Promotees regularly appointed during period 1960 62 in excess of their quota, for want of direct recruits can claim their whole length of service for seniority.
(e) Promotees appointed in 1963 and onwards in excess of their quota should be pushed down and absorbed in vacancies in their quota during subsequent years.
[1057 E H, 1058 A C] 1039 Mervyn Coutindo & Ors.
vs Collector of Customs, Bombay [1967] 3 S.C.R. distinguished, Badami vs Stale of Mysore & Ors.
[1976] 1 S.C.R. 815 distinguished, Govind Dattaray Kelkar and Ors.
vs Chief Controller of Imports and Exports & Ors.
[1967] 2 S.C.R. 29 distinguished and doubted.
S.G. Jaisinghani vs Union of India [1967] 2 S.C.R. 703 distinguished.
Bishan Sarup Gupta vs Union of India [1975] Supp.
S.C.R. 491, Union of India vs Bishan Sarup Gupta [1975] 1 S.C.R. 104 and A.K. Subbraman & Ors.
vs Union of India [1975] 2 S.C.R. followed.
The Court directed the Government to draw up expedi tiously a fresh seniority list in the light of the observa tions made in the Judgment.
[1058 H] Obiter: (Lengthy legal process, where administrative immediacy is the desideratum is a remedy worse than the malady.
The fact that the present case has taken around 5 working days for oral arguments is a sad commentarY on the legal system.
To streamline and to modernise Court manage ment is a cinderella subject in India, as elsewhere.
We too have miles to go for law and justice to meet).
|
Civil Appeal No. 1837 of 1974.
Appeal by Special Leave from the Judgment and Order dated 4 9 74 of the Calcutta High in Civil Rule No. 5547 (N) of 1974.
Civil Appeals Nos. 1838 1842/74 Appeals by Special Leave from the Judgments and Orders dated 18 9 74, 29 7 74, 9 8 74, of the Allahabad High Court (Lucknow Bench) in Civil Writ Nos.
4398, 400, 4397 of 1974 and C.W.A. 3344/74 and W.P. No. 947/74.
Civil Appeal No. 485/75 Appeal by Special Leave from the Judgment and Order dated 24 10 74 of the Gujarat High Court in L.P.A. No. 208/74.
Civil Appeal No. 1246/75 Appeal by Special Leave from the Judgment and Order dated 1 4 75 of the Andhra Pradesh High Court in W.A. No. 900/75.
Civil Appeal No. 2041/74 Appeal by Special Leave from the Judgment and Order dated 15 10 74 of the Gujarat High Court in L.P.A. No. 205/74.
Niren De, Attorney General for India (In all appeals) Devakinandan.
(In a11 appeals) P.P. Rao (In C. As. 1245/75 and C.A. 2041/74), R.N. Sachthey for the appellants in CAs.
1837 42 of 74, 1246/75 and 2041/74 and R. 2 in C. As.
1839, 1840/74 and RR.
1 and 2 in C.A. 485/75.
33 A.K. Sen, (In CA 1837/74), I. N. Haldar (In CA 1837/74), K.K. Singhvi (In CA 2041/74), Yogeshwar Prasad; S.K. Bagga and (Mrs.) section Bagga for RR.
1, 3, 7, 11, 12 and 14 in CA 1837/74 and R. 1 in CA Nos.
1839 1841/74 and 2041./74 and RR 2 and 3 in CA.
No. 1246/75.
Yogeshwar Prasad and (Miss) Rani Arora for R. 1 in C.A. 1838 74.
Yogeshwar Prasadand (Miss) Rani Arora for R. 1 in C.A. 1842/ 74.
Ram Panjwani, Bishamber Lal, S.K. Gupta and Dayal for Appellant in CA.
485/75 and RR 5, 6 and 7 in CA 2041/74 for the Interverners in CA 1838, 1841, 2041/74 and CA No. 1246/75.
The Judgment of the Court was delivered by Ray, C.J.
The principal question in these appeal is whether the selection list for promotion of Income Tax Officers Class Service to the post of Assistant Commission ers of Income Tax is correct or not.
The selection list was prepared by the Departmental Promotion Committee on 23, 24 and 25 July, 1974.
It may be stated here that on 16 August 1972 this Court set aside the Seniority List which had been impugned in Civil Appeal No. 2060(N) of 1971 and gave directions on which the Seniority List was to be prepared.
(See Bishan Sarup Gupta vs Union of India(1).
This selection list was prepared on the basis of the seniority list approved by this Court on 16 April, 1974 in Bishan Sarup Gupta etc.
vs Union of India & Ors. etc.
The basis of the preparation of the selection list is the field of choice.
The principles for promotion to selec tion posts are set out in a Memorandum dated 16 May 1957 issued by the Central Board of Revenue.
The principles are these: First, greater emphasis should be placed on merit as criterion for promotion.
Appointments to selection posts and selection grades should be made on the basis of merit having regard to seniority only to the extent indicat ed there Second, the Departmental Promotion Committee or other selecting authority should first decide the field of choice, namely, the number of eligible officers awaiting promotion who should be considered for inclusion in the selection list provided, however, that an officer of outstanding merit may be included in the list of eligible persons even if he is outside the normal field of choice.
Third, the field of choice wherever possible should extend to five or six times the number of vacancies expected within a year.
Fourth, from among such officers those who are considered unfit for promotion should be excluded.
The re maining officers should be classified as "outstanding", "very good" and "good" on the basis of merit as determined by their respective records of service.
The selection list should then be pre (1)[1975]Supp.
S.C.R.491 (2) ; 4 1458SCI/76 34 pared by placing the names in the order of these three categories without disturbing the seniority inter se within each category.
Fifth, promotions should strictly be made from the selection list in the order in which their names are finally arranged.
The selection list should be periodi cally reviewed.
The names of those officers who have already been promoted otherwise than on a 'local or purely temporary basis and continue to officiate should be removed from the list and the rest of the names along with others who may now be included in the field of choice should be considered for the selection list for the subsequent period.
Several persons, mainly promotees from Class II to Class I as Income Tax Officers challenged in writ petitions field before several High Courts the correctness of the field of choice so determined by the Departmental Promotion Committee hereinafter referred to as the Committee on the basis of which the said selection list was prepared.
The Gujarat and the Andhra Pradesh High Courts delivered judg ments.
The other High Courts gave interim orders staying the operation of the selection list.
There are two appeals by special leave from the judgments of the Gujarat and the Andhra Pradesh High Courts.
There are also appeals by special leave from the interim orders of the High Courts because the questions involved are the same.
There were 112 vacancies of Assistant Commissioners.
The Government of India sent 336 names in the running order of seniority for consideration of the field of choice.
Out of those 336 names the Committee took 276 names in the running order of seniority.
The principal question for consideration is whether the field of choice determined by the Committee on the basis of which the Committee prepared the selection list is correct or not.
The Gujarat High Court held that the requirement of 10 years ' experience as Income Tax Officer for promotion to the post of Assistant Commissioner as laid down in the Govern ment of India letter No. C. 33(17) Admn.
I.I./49 dated 16 January 1950 prevailed while the Committee determined the field of choice and this requirement was violated because the Committee considered persons with 8 years ' experi ence for the field of choice.
The High Court further held that even if the requirement of 10 years ' experience was not a statutory rule the requirement was to be complied with in determining the field of choice unless people with such experience were not available in the seniority list of Class I Income Tax Officers.
What the High Court said was that if such people with 10 years ' experience were available in the seniority list only such people should be considered in the field of choice ignoring those in the seniority list who are senior to such persons but have less than 10 years ' experi ence as Income Tax Officers.
The second reason given by the High Court for holding the selection list to be incorrect is that under the letter dated 16 May 1957 the field of choice should have been 5 times the number of vacancies whereas the actual field of choice contained a much lesser number.
The third ground given by the High Court for holding the selec tion list 35 to be incorrect is that in the field of choice of Com mittee did not properly evaluate the merit of persons in the field of choice.
The section of persons in the selection list was to be selection on merit only and not seniority cum merit.
The fourth reason given by the High Court is that the date for determining the eligibility of officers for promotion to the post of Assistant Commissioner of Income Tax should be decided by the Committee by bearing in mind the two dates, namely, 21 December 1972 when this Court permitted provisional promotions and 29 November 1973 when Government made the second batch of ad hoc promotions, as the two terminals.
The principal contentions on behalf of the respondents are these.
First, promotions from amongst Income Tax Offi cers Class I Service to the post of Assistant Commissioner of Income Tax have to be made solely on the basis of merit.
The respondents relied on rule 18 of Chapter II(c) section 1 Vol.
II of the Office Manual in support of their contention.
Broadly stated rule 18 is that the promotion shall be strictly on merit and further that no one should ordinarily be considered for promotion unless he has com pleted at least 10 years ' service as income Tax Officer.
The respondents amplified their contention to mean that promotion to a selection post is to be made solely on the basis of merit and not on the basis of seniority cum merit.
The second contention of the respondents is that only such of the Income Tax Officers in Class I Service who had put in at least 10 years ' service as Income Tax Officers are eligible for being considered for promotion to the post of Assistant Commissioners.
This contention.
is also based on rule 18 and according to the respondents rule 18 means that the condition precedent for eligibility to be consid ered for promotion to the post of Assistant Commissioner is that an Income Tax Officer in Class I Service must have put in at least 10 years ' service as Income Tax Officer.
The respondents further contended that rule 18 was framed on 16 January 1950 and the letter dated 21 July 1950 addressed by the Central Board of Revenue to all Commission ers of Income Tax shows that the Government of India framed the rule with the approval of the Union Public Service Commission and the Ministry of Home Affairs.
The Govern ment case is that the rule was abrogated.
The respondents ' answer to the Government contention is that the entire correspondence relied on by the Government shows that the Ministry of Finance wanted to frame new rules of seniority.
The respondents also contend that the Ministry of Home Affairs gave approval to the framing of new rules of senior ity but gave No. direction with regard to the rule relating to the recruitment except stating that the said rule might be appropriately included in the relevant recruitment rules.
Therefore the respondents contend that the recruitment rule regarding 10 years ' experience continued whereas the senior ity rule stood modified in terms of the letter of M.C. Thomas dated 4 April 1964.
The respondents also rely on the affidavit dated 8 March, 1968 flied by M.C. Thomas in the Gujarat High Court in application No. 1365 36 of 1965, an affidavit of M.C. Thomas dated 21 May 1970 filed in the Delhi High Court in writ petition No. 196 of 1970, an affidavit of the respondents dated 5 August 1974 filed in the Gujarat High Court in support of the contention that the rule relating to 10 years ' service was in force at least from 21 May, 1970.
The respondents further contend that promotions to the post of Assistant Commissioners in the year 1964 and 1970 show that all promotees except 2 had completed at least 10 years ' service before being selected for promotion.
Even with regard to those two promotees the respondents submitted that both of them joined on 24 Octo ber, 1960 but they had been selected along with others in May 1960.
Therefore, those two officers were promoted along with their batch mates of May, 1960.
The third contention of the respondents is that rule 18 has the force of law.
It is said that under section 241 of the Government of India Act 1935 the Government was empow ered to make rules.
Pursuant to that power the Government of India made the rule.
The letters dated 16 January 1950 and 21 July 1950 written by the Government to the Commissioners of Income Tax referring to rule 18 were relied on by the respondents in support of their contention.
In the alterna tive, the respondents contended that the decision of the Government contained in the letter dated 16 January, 1950 was made by the Government of India in exercise of executive powers under section 8 of the Government of India Act 1935 read with item 8 of List I of the Seventh Schedule.
This order which had the backing of law was an existing law within the meaning of clause 10 of Article 366 of the Constitution.
In the further alternative the respondents contended that the rule contained in the letter dated 16 January, 1950 was incorporated in the Office Manual issued by the Government of India in exercise Of its executive power under Article 53 of the Constitution and therefore these instructions have the force of law.
It is also said by the respondents that the rule which affects promotions of the persons constitutes the conditions of service.
The fourth contention on the part of the respondents is that the use of the word "ordinarily" in rule 18 imposes an obligation on the Union Government not to consider an Income Tax Officer Class I who has not completed at least 10 years ' service as Income Tax Officer for promotion as Assistant Commissioner unless there are extraordinary circumstances.
It is said that the word "ordinarily" does not vest in the Government unfettered condition to follow or not to follow the rule.
It is also said that the use of the word "at least 10 years ' service" shows that the word "ordinarily" has been used to enable the Government to consider such of the Income Tax Officers who have put in more than 10 years ' service.
The respondents also contend that the Government proceeded on the basis that the rule relating to 10 years ' service did not exist after April 1964; and, therefore, it cannot be said that the Government departed from rule 18 because of extraordinary circum stances.
The fifth contention is that the selection has been made in complete violation of the rule framed by the Government of India for promotion to selection post as contained in the Office Memorandum 37 of the Ministry of Home Affairs dated 16 May, 1957.
This contention is expanded by submitting that the list should have contained names of at least 5 or 6 times the number of vacancies existing within a year and in view of the fact that there were 112 existing and 10 anticipated vacancies the Government of India should have sent to the Committee names of at least 560 officers.
The Committee should then have removed such names which were unfit for promotion and thereafter have classified the rest as outstanding, very good, and good on the basis of merit.
The respondents contend that the Government sent only 336 names for con sideration when the vacancies were more than 120 and the Government also ignored the rule of 10 years ' experience.
It is also said that the Committee ignored the names of 59 officers from consideration and classified only 144 officers out of the remaining 277 and prepared the list of 122 out of 144 officers.
The respondents further contend that though respondents No. 2 and 3 in Civil Appeal No. 2041 of 1974, namely, R.K. Desai and B. Srinivasan completed 10 years ' experience they were not included within the field of choice as officers senior to them had not completed 8 years of service as Income Tax Officers.
Therefore, rule 18 was violated.
The sixth contention of the respondents is that the entire selection was arbitrary and in violation of Article 16 of the Constitution.
It is said that if the rule re quiring 10 years ' experience had been followed only such of the persons who had put in 10 years ' service would have been in the field for selection.
It is said that the Government included Income Tax Officers who were direct recruits and who had put in less than 8 years ' service in the list but excluded promotees Income Tax Officers who had put in more than 8 years ' service as Income Tax Officers.
It is further said by the respondents that out of 122 per sons selected 111 are direct recruits and only 11 are promo tees.
Reference was made to the junior most person in the selection list Madan Mohan Joshi.
It is said that Madan Mohan Joshi was appointed as Income Tax Officer Class I on 5 July, 1965, and, therefore, he completed 9 years ' service at the time of selection.
The last person considered by the Committee is a direct recruit Rajeswar Rao Gnutam who was appointed on 8 July, 1966.
Again, it is said that from amongst the promotees Raghubir Singh the promotee who joined Class I Service on 1 May 1964 and had more than 10 years ' service was not placed in the field of choice.
The respondents, therefore, contend that promotee Officers who had put in more than 8 years ' service as Income Tax Officers were not included in the field of choice whereas direct recruits who had not completed 8 years ' service were in cluded in the field of choice.
The seventh contention of the respondents is that the eligibility of Income Tax Officers for the purpose of promo tion to the post of Assistant Commissioner should be consid ered either as on 21 October, 1972 or 21 March 1973 or 29 November 1973.
In support of that contention it is said that when the Government of India made an application for filling up certain posts this Court by order dated 21 Decem ber 1972 permitted the Government to fill in the posts on ad 38 hoc basis from amongst the eligible officers on the basis of continuous, length of service in Class I. Accordingly, by orders dated 21 March 1973, and 29 November, 1973, 59 and 48 officers respectively were promoted on ad hoc basis.
These officers were to, be replaced by regular selection.
The seniority list was confirmed by this Court by judgment dated 16 April 1974.
The respondents, therefore, contend that the Committee had to regularise aforesaid 107 promo tions, and the regularisation had necessarily to be done from the dates of original promotions on ad hoc basis.
It is said in this context that the eligibility of officers for the purpose of promotion must be considered either on 21 December 1972 or on 21 March 1973 or on 29 November, 1973.
The respondents also submit that the eligibility has refer ence to the date of vacancy and therefore only such of the persons who had the qualified service on the date of vacancy ought to be considered by the Committee.
Reliance was placed on the observations of this Court in Bishan Sarup Gupta 's case(1) that after the finalisation of the seniority list the department should consider the cases of all eligi ble officers for promotion on the basis of their records as on the date when they ought to have been considered by selection but who were not so considered.
The first question for consideration is whether the rule of 10 years ' experience was modified to 8 years ' expe rience.
The correspondence between the Central Government and the Union Public Service Commission between 30 January 1963 and 26 June 1969 shows that the principle for promotion as Assistant Commissioner is that no Income Tax Officer should ordinarily be considered unless he has completed 8 years ' service as Income Tax Officer.
The proposal for this change from 10 years to 8 years emanated from the Finance Ministry.
The Home Ministry stated that the rule does not strictly relate to the seniority rules in respect of As sistant Commissioners of Income Tax and should thus be included in the relevant Recruitment Rules, that is, Rules for selection for the post of Assistant Commissioner of Income Tax.
The Union Public Service Commission as will appear from the letter dated 31 May, 1963 agreed subject to proposed modification regarding the seniority of Assistant Commissioners of Income Tax.
It thus appears that the Finance Ministry, the Home Ministry and the Union Public Commission concurred with the change from the requirement of experience for 10 years to that of 8 years.
The requirement of 10 years ' experience as laid down in the letter dated 16 January, 1950 and the Office Manual published ' in 1955 thus came to be modified.
The only thing which is to be noticed is that no Rules under Article 309 were made.
The change from 10 years to 8 years ' experience was recorded by means of correspondence as an administrative instruction.
It is explicable that the letter dated 16 January, 1950 as well as the Office Manual published in 1955 was an administrative instruction.
The change from 10 years to.
8 years ' experience was not only given effect to in the field of choice but also, recog nized in the Committee meetings of September 1968, April/May 1970 and February, 1972.
In September 1968, 16 persons were over 9 years ' experience (1) [1975] supp.
S.C.R.491,506 39 but less than 10 years ' experience.
None of these persons was however selected to be placed on the selection list.
In April/May 1970, 14 persons were over 9 years experience but less than 10 years ' experience, and 24 persons were over 8 years ' experience only.
Out of those only 7 who were all over 9 years ' experience were selected to be placed in the selection list.
In 1972 the Committee considered 25 persons over 9 years ' experience but less than 10 years ' in experi ence, and 27 persons over 8 years ' experience.
Out of these only 10 persons who were all over 9 years ' experience were selected to be placed in the selection list.
In the Committee meeting of July, 1974 the selection list prepared did not have any person except 4 emergency commissioned officers who had less than 9 years ' experience.
The last person in the seniority list selected was M.M. Joshi bearing No. 967 in the seniority list.
8 years ' experience as a working rule for promotion was publicly announced by the Minister in Parliament on 11 June 1971.
It is rightly said by the Attorney General that administrative instructions are followed as a guide line on the basis of executive policy.
It is not necessary to put the same on record in so many words.
In Bishan Sarup Gupta vs Union of India & Ors.
1975 Supp.
SCR 491 when the quota rule which was statutory ceased to have statutory effect after 5 years but the Government followed the principles as a guide line it was upheld by this Court in the application of the principle from 1957 to 15 January, 1959.
In the present case the requirement of 8 years was not only followed as a guide line in practice but was also recorded in the correspondence between the Finance and the Home Ministries.
The High Court said that the requirement of 8 years ' experience was to be included in the appropriate Recruitment Rules and until that was done the High Court held that 10 years ' experience held the field.
The High Court failed to consider the true effect of the correspondence between the finance and the Home Ministries and the Union Public Service Commission.
The Ministry of Finance by its letter dated 30 January 1963 stated that the condition of 8 years ' service for promotion was proposed to be retained.
The Home Minis try by its letter dated 20 February, 1963 pointed out that the requirement of 8 years ' experience for promotion did not strictly relate to seniority rules relating to Assistant Commissioners of Income Tax and should be delinked from such rules and should be appropriately included in the relevant Recruitment Rules.
Thus the Home Ministry and the Union Public Service Commission agreed in principle to the re quirement of 8 years ' experience and the Finance Ministry in practice changed the requirement of 10 years ' to 8 years ' experience.
The letter of the Finance Ministry proposing the retention of the requirement of 8 years experience was only in Grade I.
The minimum experience in Grade I proposed by the Board was approved by the Secretary as well as the Minister.
The High Court referred to the affidavits filed by M.G. Thomas in other proceedings.
In one of the affidavits affirmed by Thomas 40 on 8 March 1968 and referred to by the High Court in Special Civil Application No. 1365 of 1965 in the Gujarat High Court in paragraph 5 thereof Thomas said as follows: "The Depart mental Promotion Committee which met sometime in August, 1949 recommended that no officers should be promoted as Assistant Commissioners of Income Tax until he had worked for not less than 10 years as Income Tax Officers.
The Government of India agreed with the recommendation of the Departmental Promotion Committee that it was necessary in the interest of efficiency that the Assistant Commissioner of Income Tax should at least have 10 years of service as Income Tax Officer so that for the post ok Assistant Commissioner of Income Tax matured and seasoned officer may be obtained.
For arriving at the decision, the Govern ment of India was also influenced by the recommendation of Income Tax Investigations Commission".
The High Court also referred to paragraph 9 in the said affidavit of Thomas where he said as follows: "It can thus be seen that the seniority rules for Assistant Commissioner of Income Tax were mainly framed due to the situation created by the introduction of Income Tax Service Class I on an All India basis and the requirement of a minimum period of 10 years of service (later on reduced to.
8 years ' service) (as a requi site condition for promotion) this requirement of minimum service resulted in a senior Income Tax Officer who had not completed the required length of service being passed over by a junior Income Tax officers, who had completed the. required service.
To safeguard the interest of such senior Income Tax Officer rule 1 (iii) (b) meaning thereby 10 years ' rule was introduced which enabled the senior officers to regain their seniority on subsequent promotion".
The High Court also referred to the affidavits of Thomas in Civil Writ Petition No. 196 of 1970 in the Delhi High Court.
M.G. Thomas was an Under Secretary in the Ministry of Finance in 1964.
In the affidavit affirmed by Thomas in Writ Petition No. 196 of 1970 in the Delhi High Court he dealt with paragraph 39 of the petition of Bishan Sarup Gupta where it was said that paragraph 18, of section 1, Volume 1 of the Office Manual clause (b) mentioned about the eligibility of 10 years of minimum service before an Income Tax Officer would be considered for promotion to the post of Assistant Commissioner.
The High Court said that Thomas in his affidavit in reply had admitted the said statements and concluded that of 8 years ' rule had been introduced Thomas would not have missed to mention the same in his affidavit.
The High Court also referred to two features.
First, that it was not a proposal of anew rule of 8 years in place of existing rule of 10 years; secondly, it was an assumption that the existing rule prescribed the minimum period of 8 years ' service.
The High Court further referred to the Delhi High Court proceedings in Writ Petition No. 196 of 1970 where Counsel for the Union said that the Government expected new rules to be framed under Article 309 to limit the field of choice to those who had 8 years ' service to their credit as Income Tax Officers.
The High Court read this argument of counsel for the Union in the High Court to concede that no change in the rule of 10 years ' service as Income.
Tax Officer was made so as to reduce the period from 10 years to 8 years.
41 The Central Board of Revenue as appears in No. F. 1/19/60 Ad.
II at a meeting on 2 May, 1959 approved the idea of laying down the.
minimum period of service uniformly for the three wings of the Central Board of Revenue for purposes of determining the eligibility of officers for promotion.
It was decided that before an officer was promoted to a higher post he must have put in a period of minimum service as follows: For promotion to Deputy Collector/Assistant Commissioner (Grade Rs. 1000 1400) minimum service pre scribed was 8 years ' service in Class I posts.
For promo tion to Collector (Grade Rs. 1300 1600) the minimum serv ice prescribed was 12 years in Class I post out of which at least two years should be in the grade of Deputy Collector.
For promotion to.
the post of Collector (Grade Rs. 1600 1800) the minimum service prescribed was 14 years in Class I posts provided that for promotion as Collector of Central Excise (scale Rs. 1600 1800) the officers should have worked at least two years in the scale of Rs. 1300 1600.
For promotion to Collector Grade I/Commissioner Grade I (scale Rs. 1800 2000) the minimum service prescribed was 16 years in Class I posts.
For promotion to Selection Grade posts of Collectors/Commissioners the minimum service prescribed was 20 years in Class I posts.
The Secretary in the note mentioned that he would prefer the alternative of keeping the rule and relaxing it in suitable cases.
This note of the Secretary shows that he preferred the retention of the rule in the other 4 grades, namely.
Collector Grade Rs. 1300 1600, Collector Grade Rs.1600 1800, Collector Grade I/Commissioner Grade I Grade Rs.1800 2000 and Selection Grade Posts of Collectors/ Com missioners.
That is apparent from the fact that the Board suggested the retention of minimum service in Grade 1(Assistant Commissioners) but not in the other four grades including the Selection Grade.
The Minister preferred the deletion of the rule about Selection Grade.
Thus the mini mum experience in Grade I proposed by the Board was approved by the Secretary as well as the Minister.
The minutes of the meeting of the Central Board of Revenue of 22 October 1960 show that the Board of Revenue decided 'that the minimum service of 8 years in Class I Service may be prescribed in the case of Deputy Collector/Assistant Commissioners (Grade Rs.1100 1400).
The affidavit evidence of Thomas shows that the minimum period of 10 years was later reduced to 8 years.
The affi davit does not show that the requirement of 10 years ' serv ice was maintained.
In the Delhi High Court proceedings Bishan Sarup Gupta in his petition made reference to cer tain administrative instructions.
Thomas in answer to those paragraphs did not have any occasion to say anything otherwise.
Further counsel for the Union in the Delhi High Court merely stated that the Government was expecting rules to be framed under Article 309.
This does not mean that the requirement of 8 years ' experience as an administrative practice did not prevail.
The High Court was in error in treating the affidavit evidence of Thomas in other proceed ings as a statement of fact that 8 years ' rule had not been introduced.
This affidavit evidence in other proceedings is torn 42 out of context and is misread by the High Court without going into the question as to whether such affidavit evi dence is admissible in evidence.
It is apparent that the entire affidavit evidence as well as the submission on behalf of the Union is that the requirement of 10 years ' experience be replaced by 8 years.
Administrative practice as indicated in the Department Promotion Committee meetings and the Minister 's statement in Parliament supported that contention of the Union.
It is a question of construction of correspondence as to whether 10 years ' rule was replaced by 8 years ' rule.
The fact that no rules under Article 309 were framed does not detract from the position that the previous administrative instruction of 10 years ' experience was modified to 8 years ' experience.
It was suggested on behalf of the respondents that the various affidavits and documents asserted that the require ment of 10 years ' experience had been abrogated and it was not open to the Government to take the stand that require ment of 10 years ' rule was modified or changed.
The conten tion is without any substance because the consistent posi tion on behalf of the Union has always been that the re quirement of 10 years ' experience was modified to 8 years and the Gujarat High Court considered the question whether 10 years ' experience was abrogated or modified.
The second question is whether the requirement of 10 years ' experience was a statutory rule.
The High Court held that the requirement of 10 years ' experience is not a statutory rule.
Counsel for the respondents contended that the requirement of 10 years ' experience is statutory because the letter dated 16 January 1950 is by the Government of India and the Government of India has authority to frame rules and one of the letters dated 21 July, 1950 referred to it as a formal rule.
The contention is erroneous because there is a distinction between statutory orders and adminis trative instructions of the Government.
This Court has held that in the absence of statutory rules executive orders or administrative instructions may be made.
(See Commissioner of Income Tax Gujarat vs
A. Raman & Company(1).
The letter dated 16 January 1950 written by an Under Secretary in the Ministry of Finance does not prove that the requirement of 10 years ' experience for promotion to the post of Assistant Commissioner was a rule made by the Gover nor General or any person authorised by him under section 241 (2) of the Government of India Act, 1935.
Furthermore, there is no basis for any authentication under section 17 of the 1935 Act in the letter of 16 January, 1950.
In the preface to the Manual published in 1955 it is specifically stated that Vol.
I of the Manual contains statutory rules and Vol.
II contains administrative instructions.
The requirement of 10 years ' experience is in Vol.
II of the Manual.
In S.G. Jaisinghani vs Union of India & Ors.(2) it is stated at pp.
717 718 that the quota fixed by the Government in its letter dated 18 October, 1951 must be deemed to be fixed in exercise of the statutory (1) (2) ; 43 power under Rule 4 of the Recruitment Rules.
There is no such statutory rule under which the letter of 16 January, 1950 was written, Counsel on behalf of the respondents contended that the requirement of 10 years ' experience laid down in the letter dated 16 January, 1950 had the force of law because of Article 313.
Article 313 does not change the legal charac ter of a document.
Article 313 refers to laws in force which means statutory laws.
An administrative instruction or order is not a statutory rule.
The administrative in structions can be changed by the Government by reason of Article 53(1)(a) itself.
The High Court said that even if the requirement of 10 years ' service is not statutory, it is binding on the Gov ernment and is a condition of service.
Counsel for the respondents contended that the word "ordinarily" in the rule imposes an obligation on the Government not to consider any Income Tax Officer with less than 10 years ' experience for promotion except in extraordinary circumstances.
The requirement of 10 years ' experience on the face of it con fers a discretion on the authorities to consider Income Tax Officers if according to.
the authorities the circumstances so require.
What the circumstances are or should be are left entirely to the decision of the authorities.
The Central Board of Revenue by a letter dated 21 July, 1950 a few months after the letter dated 21 July, 1950 a few months after the letter dated 16 January, 1950 which spoke of 10 years ' experience stated that the insistence on a minimum period of experience, cannot be regarded as affecting the conditions of service.
In the letter dated 21 July, 1950 it was said that the requirement as to 10 years ' experience is sufficiently elastic and all Income Tax Officers with more than 9 years ' experience could be considered for promotion.
The letter dated 21 July, 1950 was referred to by this Court in Union of India vs Vasant Jaygram Kamik & Ors(1).
It appears in that case that in November, 1951 the case of officers who had completed 9 years ' gazetted service were considered and the Committee further decided to consider for promotion in the near future officers who had completed 8 years of service before 31 December, 1951.
In 1953 officers who had completed 8 years ' service were considered for promotion.
The expression "ordinarily" in the requirement of 10 years ' experience shows that there can be a deviation from the requirement and such deviation can be justified by reasons.
Administrative instructions if not carried into effect for good reasons cannot confer a right.
(See P.C. Sethi & Ors.
vs Union of India & Ors.
The requirement of 10 years ' experience cannot be considered by itself.
It is to be read along with administrative instructions of 16 May, 1957.
The reason is that the requirement of 10 years ' experience is for being considered for promotion.
In para graph 2 of the letter of 16 May, 1957 containing the said instructions it is said that the Committee should first decide the field of choice.
namely, the number of eligible officers awaiting promotion who should be considered to be included in the seniority list provided that an officer of outstanding merit may be included in the list even.if he is outside the normal List.
(1) ; (2) ; 44 For the foregoing reasons our conclusions are these: First 10 years ' experience was modified to 8 years ' experi ence.
Second there was no statutory rule requiring 10 years ' experience.
Third the facts and circumstances merit ed the exercise of discretion which was bona fide exercised by determining the field of choice.
Fourth there was no deviation from 10 years ' experience because of the modifica tion to 8 years ' experience.
Fifth there could not be insistence on 10 years ' experience as conditions of service.
The next question is what should have been the field of choice.
The two groups of Income Tax Officers in Class I, namely, the direct recruits and the promotees have always found that the field of choice has been prepared strictly on the basis of running seniority in the seniority list of Income Tax Officers Class I.
In the three decisions of this Court relating to these officers Jaisinghani 's case, Bishan Sarup Gupta 's case and Bishan Sarup Gupta 's case (supra) it will be seen that since 1962 there has been a long fight between direct recruits and promotees mainly in respect of seniority list of income Tax Officers Class I.
This strug gle regarding seniority would have hardly any meaning unless the two groups fought to gain higher positions in the Seniority List only for the purpose of being in the field of choice for consideration for promotion to the post of As sistant Commissioner.
if this was not so and if only a cer tain number of years ' requirement was the only consideration for being in the field of choice, this requirement would have.
been fulfilled in any case without a higher place in the seniority list.
From 1963 the field of choice has always been in a running order of seniority.
This has been the administrative practice for over 10 years.
There were 112 vacancies and 10 anticipated vacancies in 1974.
The Committee was to make a select panel of 122 offi cers.
If the field of choice has to be prepared on the basis of running seniority, and if 10 years ' experience had been adhered to, there would not have been more than 95 officers in the field of choice although the number of vacancies was 122.
This fact alone will entitle the author ities to deviate from the rule of 10 years ' experience.
By reason of the violation of the quota rule since 1952 benefiting the promotees this Court issued the mandamus in Jaisinghani 's case (supra).
The collapse of the quota rule and seniority rule from 16 January, 1959 led to the judgment of this Court dated 16 August 1972 in Bishan Sarup Gupta 's case (supra).
The introduction of the roster system of 1 direct recruit and 1 promotee being placed alternately in the order of seniority with effect from 16 January, 1959 was upheld by this Court in the judgment dated 16 April, 1974 in Bishan Sarup Gupta 's case (supra).
As a result oF the seniority list being upheld by this Court by the deci sion dated 16 April, 1974 many promotees lost their earlier places in the Seniority List.
This Court on 16 April, 1974 in Bishan Sarup Gupta 's case (supra) at page 114 of the report said "In the case before us in the absence of a rule determining inter se seniority between the two classes of Income Tax Officers, there is really no integration of the service, which is unavoidably necessary for the purpose of effective promotions.
One cannot speak 45 of promotions from a cadre unless it is fully integrated.
" There was a change in the seniority list from what prevailed at least in 1952.
The requirement of 10 years ' experience could not be given effect to in such a changed situation and the expression "ordinarily" would hardly apply to such a changed situation without destroying the integration and restoring to the promotees the position which they had enjoyed in the past with the Quota Rule and the Seniority Rule and which they lost as a result of the last decision of this Court dated 16 April, 1974.
If the respondents ' contention that the field of choice shall be restricted to 10 years ' experience only and the field of choice should have been at least five times the number of vacancies, the result would have been that out of 560 persons in the field of choice, 474 persons would have been promotees and 86 persons would have been direct re cruits and the last direct recruit in the seniority list would have been No. 873 and No. 874 to No. 1922 would have been all promotees.
If the above basis suggested by the respondents were followed 429 persons all direct recruits and all senior officers in the seniority list would have been ignored in the field of choice.
That would be unjust, unfair and upsetting the decision of this Court dated 16 April, 1974.
In the letter of 16 May 1957 it is stated that the field of choice wherever possible should extend to 5 or 6 times the number of vacancies expected within a year.
The letter contained administrative instructions from the Home Ministry generally to all Ministries and was not meant specially for the Board of Revenue.
These administrative instructions have been changed in the matter of promotions from Income Tax Officers to Assistant Commissioners at least from 1963 by the administrative practice of having in the field of choice generally three times the number of vacancies.
In the Committee meeting held on 16 March, 1963 the Committee considered the names of first 33 eligible Income Tax Offi cers in order of existing seniority for 11 vacancies.
In the meeting of the Committee held on 26 and 27 August, 1963 the Committee decided to consider the cases of 30 officers in order of seniority for 10 vacancies.
In the Committee meeting held on 3 March, 1964 the Committee considered for 21 vacancies the names of 60 persons in order of seniority.
At the Committee meeting held on 5 and 7 December, 1964 for 18 vacancies the Committee decided to consider the cases of 60 officers in order of seniority,.
At the meeting held on 4 July, 1965 the Committee considered 60 Income Tax Officers in order of seniority for promotion to 20 vacancies.
At the Committee meeting held on 4 and 6 December, 1965 the Commit tee considered 122 persons in order of seniority for 45 vacancies.
In December, 1965 the Committee considered 114 senior most Income Tax Officers and 48 were promoted as Assistant Commissioners.
At the meeting held on 17 May, 1966 the Committee considered the case of 65 officers and approved the promotion of 48 officers.
At the meeting held on 16 and 17 September, 1968 the Committee considered 240 persons for promotion to 90 posts.
In September, 1968 the Committee considered the cases of 16 officers who had less than 10 years ' experience.
The Committee in February 1969 considered 61 persons for 20 posts.
In September, 1969 the Committee considered 105 persons for promotion to 35 posts.
46 There is a note made by Thomas in the month of February, 1970 in F. No. 20/2170 Ad.
VI to the effect that if officers with less than 8 years ' service and their juniors are ex cluded from the list of officers to by considered by the Committee for 90 vacancies arising during the year only 193 officers will be available.
This is said to be less than three times the number of vacancies but this could not be helped unless junior officers are considered over the head of their seniors.
The number of such juniors officers with 8 years ' service is also limited, namely, 11.
In the circum stances, the selection was made from 193 officers.
In April, 1970 the Committee had to select 80 persons for promotion.
They desired that 240 names should normally be considered.
The Members however stated that the.
Ministry had already furnished the names of 193 eligible officers and there were no more eligible officers who could be consid ered.
The Committee accordingly considered those 193 offi cers in order of seniority.
In April and May 1970 the Committee considered the cases of 38 persons with less than 10 years ' experience.
In 1972 there were 84 vacancies and 10 more vacancies were likely to arise.
Therefore for 94 selection posts the field of choice should normally have been 3 to 5 times the number of vacancies.
It was found that there should have been at least 300 officers.
There were 213 officers with 8 years ' experience.
There were some promotees with more than 8 years ' experience but they were junior to the direct recruits.
As the direct recruits had not completed 8 years ' service their juniors were not considered for promotion over them.
In the background of these facts and circumstances it was not possible to have 5 or 6 times the number o.f vacan cies in the field of choice for the simple reason that the Committee required 8 years ' experience for promotion to the post of Assistant Commissioner.
If the field of choice had to be based on running seniority the Committee could rightly only have 276 officers in the field of choice in the present case.
The next question is whether the Committee evaluated the merit of persons in the field of choice.
The High Court held that in the field of choice the evaluation of merit of persons was not properly done.
The decision of the High Court is wrong for the following reasons.
The letter dated 16 May, 1957 indicates that the Committee was first to decide the field of choice.
The cardinal feature which is to be kept in the forefront is that the field of choice is based on running seniority in the seniority list and evalua tion of merit does not come into picture for deciding the field of choice.
Paragraph 3 of the said letter states that those in the field of choice who are considered unfit should excluded from consideration.
Under paragraph 4 of the letter evaluation of the remaining officers on the basis of merit has to be done by classifying the officers under three different categories,namely, 'outstanding ', 'very good ' and 'good '.
Paragraph 4 of the letter states that the selection list is to be prepared by placing the names of officers in the said three categories, without disturbing the seniority inter se within each category.
47 In the present case in view of 112 actual vacancies the Government sent 336 names for the field of choice, that is, three times the number of vacancies.
Since 1963 the Commit tee has been receiving from the Government the names of persons forming three times the number of vacancies.
The 336 names sent by the Government were in the running order of seniority between S.M. Islam No. 155 in the seniority list and R.N. Dave No. 1186 in the seniority list.
Under paragraph 2 of the letter dated 16 May, 1957 it is the function of the Committee to decide the field of choice.
The Committee proceeded on the basis of 8 years ' experience and thus could not possibly have in the field of choice any name from No. 1131 onwards because every alternate number thereafter had less than 8 years ' experience.
The Committee stopped at No. 1123.
The Committee at the meeting held on 23, 24 and 25 July 1974 assessed the merits of 145 persons in order of seniori ty first.
After such assessment the Committee found three officers No. 1, 30 and 109 in the list as not yet fit and excluded them.
The Committee also excluded 4 officers whose findings were in sealed cover or whose reports were not yet complete (No. 2, 3, 6 and 138 in the Committee List).
These 7 officers were excluded from further consid eration for the selection list.
In accordance with para graph 3 of the letter 16 May, 1957 the Committee considered the remaining 138 officers and assessed their merits and put them in three categories.
The Committee found only one officer "outstanding", namely No. 16 in the list, 114 offi cers "very good" and 7 Scheduled Castes/Scheduled Tribes officers were 'good '.
These 7 Scheduled Castes and Sched uled Tribes officers were No. 21, 24, 26, 90, 91, 93 and 94 in the list.
The respondents contended that these 7 Sched uled Castes/Scheduled Tribes officers should have been given a grade higher than the grade assessed by the Committee because of the Home Ministry Instructions dated 11 July, 1968.
The respondents ' contentions are incorrect for these reasons.
In paragraph 2 of the Home Ministry instructions dated 26 March, 1970 on the subject "Concessions to Sched uled Castes and Scheduled Tribes in posts filled by promo tion Class I Services/ posts" it was laid down inter alia that the Scheduled Castes/Scheduled Tribes officers, who were senior enough in the zone of consideration for promo tion so as to be within the number of vacancies for which the selection list has to be drawn, would be included in that list provided they are not considered unfit for promo tion.
In paragraph 1 of these instructions, reference was made to the Home Ministry instructions dated 11 July, 1968.
It would be found from those instructions as 'also the Home Ministry instructions dated 26 March, 1970 that the July, 1968 instructions applied in the case of promotions from Class III to Class II and Within Class II and from Class II to the lowest rank or category to Class I but had no appli cation in respect of promotion within Class I.
The Committee found No. 16 to be 'outstanding ', 114 (No. 2 to 115) 'very good ' and 7 Scheduled Castes/Scheduled Tribes officers 'good. ' and they were to be included in the selection list vide Home Ministry instructions dated 26 March, 1970.
The Committee next assessed the merit of the rest of the 276 officers to ascertain whether 48 any of them was 'out standing '.
If any one among these remaining officers was not found 'outstanding ' but was only 'very good ' he would not come within the selection list because the selection list was prepared, after evaluating the merits of the officers on the basis of seniority in the seniority list in accordance with the fetter dated 16 May, 1957.
Paragraph 4 of that letter was followed by the Committee along with the Home Ministry instructions.
It would not be necessary for the Committee after having con sidered 145 to put the others in the category of 'very good ' when the Committee assessed their merits and found them to be not 'outstanding '.
After 122 senior officers were as sessed and the Committee found that no other officers junior to them could be assessed to the higher category namely, 'outstanding ' it would be fruitless exercise to find out who among these officers were very good ' or 'good ' or 'not yet fit '.
The reason is obvious.
Those in the selection list of 122 who had been found to be 'very good ' could not be supplanted by others who were 'very good ' Only 'outstand ing ' persons who would be junior to the category of 122 'very good ' would surpass the category of 'very good '.
Therefore the Committee rightly considered the cases only to find ' out whether there was any one outstanding and the Committee found none of them to be 'outstanding '.
The Government sent the names of 336 officers in the running order of seniority.
Out of 336 the Committee found 276 to be fit for the field of choice.
The Committee found 1 'outstanding ', 114 'very good ' and 7 Scheduled Castes/Tribes 'good '.
The respondents contended that the rest 59 were not at all considered by the Committee.
This contention is not acceptable for these reasons.
From No. 1131 in the seniority list every alternate number was an officer with less than 8 years ' experience.
Under the letter of 16 May 1957 it is the Committee and not the Gov ernment which decides the field of choice.
When the Commit tee found according to the running seniority No. 1131 onwards could not be in the field of choice the Committee did not put the names of the 59 officers in the field, of choice.
The question of the evaluation of the merits of these 59 officers did not, therefore, arise because first the seniority list was Considered by the Committee and second the Committee took into consideration only those who were in the seniority list and fulfilled 8 years ' experi ence.
It is wrong to hold that because the Government sent the names of 336 persons for consideration by the Committee the field of choice consisted of 336 persons.
The field of choice is to be determined by the Committee.
The Committee considered 276 names as fit to be included in the field of choice.
It is erroneous to suggest that there were 336 names in the field of choice.
The field of choice consist ed.
of 276 names as determined by the Committee whose juris diction it was to determine.
The Committee considered upto No. 1123 in the seniority list to be in the field of choice.
Officers from 1124 to 1130 were not included by the Commit tee either because they had retired or joined the Indian Administrative Service and in any event no complaint has been made on their behalf.
The Committee found that from 49 No. 1131 onwards every alternate officer had not completed 8 years ' service and therefore they could not be put in the field of choice according to the Committee.
The contention of the respondents that there were 336 officers in the field of choice and the Committee did not consider all the 336 persons unmeritorious.
The respondents next contended that persons bearing No. 877, 879, 881 and 883 in the seniority list had been put on the selection list although they had less than 8 years ' experience.
There is no substance in the ' contention for the following reason.
These 4 officers were taken on the ground that they were ex military officers recruited to the Income Tax Department in 1968 and were deemed to have been recruited in 1964 by virtue of the Ministry of Home Affairs Notification dated 4 October, 1967.
Another submission was made on behalf of the respondents that after the Committee had put different persons in three categories 'outstanding ', 'very good ' and 'good ' the Commit tee should have further evaluated the merit of all officers inter se within each of the said three categories.
This submission is contrary to the specific provision of para graph 4 of the letter dated 16 May, 1957.
Further within the category of 'very good ' there could not be any further intra specific assessment of those who were 'very good '.
A criticism was made by the respondents that the assess ment was to be only on merit and not seniority cure merit.
This contention is wrong.
Paragraph 2 of the letter of 16 May, 1957 states that the field of choice is to be decided by the Committee.
No question of merit arises in deciding the field of choice.
The field of choice is only on the basis of running seniority.
The question of merit arises after the field of choice is decided.
The selection was correctly done strictly on merit in accordance with para graphs 3 and 4 of the letter dated 16 May. 1957.
The Commit tee decides the field of choice in the running order of seniority.
The Committee excludes names from the field of choice who are considered unfit for promotion.
The remaining officers are classified as 'outstanding ', 'very good ' and 'good ' on the basis of merit.
The selection list is pre pared by placing the names in the order of these three categories.
That inter se seniority of officers in the selection list under each category is not disturbed.
These are the instructions in the aforesaid letter.
It will thus be. seen that seniority is the sole criterion for determin ing the field of choice in the running order of seniority and merit is the sole criterion for putting the officers in the selection list in each category according to merit.
Finally the contention of the respondents is that the date for determining the eligibility of officers for promo tion to the posts as Assistant Commissioners should have been decided by the Committee by bearing in mind the two dates namely, 21 December 1972 and 29 November 1973.
21 December 1972 is the date when this Court permitted the Union Government to make ad hoc promotions.
21 March 1973 and 29 November 1973 are the two dates when the Central Board of Direct Taxes promoted 59 and 48 officers respec tively.
This Court in the order dated 21 December, 1972 stated that the Government would be entitled to appoint people in order of seniority determined according to the date 5 1458SCI/76 50 Of continuous officiating appointment in Class I subject to the suitability which would be decided by the Central Board or Direct Taxes.
This order was made without prejudice to the contentions of the parties or their rights in the ap peals.
Pursuant to the interim order of this Court the Government made two orders dated 21 March 1973 and 29 Nov ember 1973 provisionally promoting 59 and 48 officers re spectively.
In each of the Government orders it is specifi cally stated as follows: "The above promotions are purely ad hoc and have been made on the basis of the suitability as decided by the Central Board of Direct Taxes in terms of directions issued by this Court in their order dated 21 December 1972.
These promotions will not confer any claim for continued "officiation" (sic) in the grade of Assistant Commissioner of Income Tax or for seniority in that grade.
Appointments against these posts will eventually be made on the basis of the revised list of seniority of Income Tax Offices Class I as finally approved by this Court and on selection by a duly constituted Departmental Promotion Committee to be convened in accordance with the prescribed procedure.
The promotions ordered will not establish any claim for eligibility or for selection on merit by a proper ly constituted Departmental Promotion Committee when the same is convened".
It is manifest from the order of this Court and the two orders made by the Government pursuant to this Court 's order that these 107 promotions were purely provisional or ad hoc and were made by the Central Board of Direct Taxes and not by the Committee which is the authority for determining promotions.
Further these provisional promotions were not made in conformity with the letter of 16 May 1957.
It is distinctly stated in the aforesaid two Government orders that appointments against these posts will eventually be made on the basis of revised seniority of Income Tax Offi cers Class I as finally approved by this Court and on selec tion by a duly constituted Departmental Promotion Committee to be convened in accordance with the prescribed procedure.
On 9 February 1973 the Income Tax Officers (Class I) Service (Regulation of Seniority) Rules, 1973 were made under Article 309 See Bishan Sarup Gupta 's case (supra).
The revised seniority list of Income Tax Officers Class I was made on the basis of the Income Tax Officers (Class I) Service (Regulation of Seniority) Rules, 1973 and was ap proved by this Court on 16 April, 1974.
See Bishan Sarup Gupta 's case (supra).
The selection list was made by the Committee after it met on 23, 24 and 25 July, 1974.
Under paragraph 2 of the letter dated 16 May, 1957 the Committee was to decide the field of choice by including therein eligible officers awaiting promotion.
This means that whether an officer is eligible or not should be decided with reference to the date of the Committee meeting.
This has always been done at all the Committee meetings.
The respondents contended that the regularisation of 107 promotees had to be done from the date of original promo tions on ad hoc basis.
In this connection, the respondents relied on the observations of this Court in Bishan Sarup Gupta 's case (supra) at p. 506 of the report.
The observa tions relied on are that after the fresh seniority 51 list is made in accordance with the directions given by this Court in Bishan Sarup Gupta 's case (supra) it would be open to any direct recruit or promotee to point out to the de partment that in the selection made to the post of Assistant Commissioner from 1962 onwards he, being otherwise eligible, is entitled on account of the new seniority given to him to be considered for promotion to the post of Assistant Commis sioner.
The observations of this Court in Bishan Sarup Gupta 's case (supra) are that if as a result of the fresh seniority list it is found that any officer was eligible for promotion to the post of Assistant Commissioner on account of his place in the new seniority list, the department might have to consider his case for promotion on his record as on the date when he ought to have been considered, and if he would be selected his position will be adjusted in the seniority list of Assistant Commissioners.
The object is to see that the position of such a person is not affected in the senior ity list of Assistant Commissioners because he is actually promoted later pursuant to the new seniority list, although according to the new seniority list itself he should have been promoted earlier.
The observations do not mean that although the Committee can meet for the selection of offi cers for promotion to the post of .Assistant Commissioner only after the seniority list is approved by this Court, the selection would be deemed to be made at the time when a vacancy in the post of Assistant Commissioner occurred and the eligibility of officers for selection will be determined by such deemed date of selection.
No employee has any right to have a vacancy in the higher post filled as soon as the vacancy occurs.
Government has the right to keep the vacancy unfilled as long as it chooses.
In the present case, such a position does not arise because of the controversy between two groups of officers for these years.
The seniority list which is the basis for the field of choice for promotion to the post of Assistant Commissioner was approved by this Court on 16 April, 1974.
Promotions to the post of Assist ant Commissioners are on the basis of the selection list prepared by the Committee and are to be made prospectively and not retrospectively.
For the foregoing reasons the judgments and orders appealed against are set aside.
The selection list made by the Departmental Promotion Committee forming the subject matter of these appeals is held to be correct, lawful and valid.
Parties will pay and bear their own costs.
V.P.S. Appeals allowed.
| IN-Abs | The Government of India, in 1950, framed a rule for promotion of an Income Tax Officer as Assistant Commis sioner and it was published as rule 18 in Vol.
I1 of the Office Manual published in 1955.
The rule provided that promotion shall be strictly on merit and that no one should ordinarily be considered for promotion unless he has com pleted at least ten years service as Income Tax Officer.
In 1957, a memorandum was issued by the Central Board of Reve nue containing the following principles for proration of Income Tax Officers Class I as Assistant Commissioners.
Greater emphasis should be laid on merit as a criterion.
The Departmental Promotion Committee should first decide the field of choice, namely, the number of eligible officers awaiting promotion who should be considered for inclusion in the selection list.
An officer of outstanding merit may be included in the list even if he is outside the normal field of choice.
The field of choice wherever possible should extend to 5 to 6 times the number of vacancies expected.
From among such officers those who are considered unfit for promotion should be excluded and the remaining should be classified as 'outstanding ' very good ' and 'good ' on the basis of merit as determined by their respective records" of service.
The selection list should then be prepared by placing the games in the order of these three categories without disturbing the seniority inter se within each category.
Promotions should strictly be made from such selection list in the order in which the names are finally arranged.
The selection list should be periodically reviewed removing from the list names of persons who have been promoted and including fresh names.
On 16th August 1972 this Court set aside the seniority list in the first Bishan Sarup Gupta case [1975] Supp.
SCR 491 and gave directions for preparing a fresh list.
On 21 December 1972, the Government applied to this Court for making ad hoc promotions and the court permitted them to do so.
Accordingly, in March 1973 and November 1973 the Board promoted 59 and 48 Income Tax Officers respectively as Assistant Commissioners.
It was distinctly stated in those two orders that the ad hoc appointments made against those posts were provisional and that the appointments eventually be made on the basis of the revised seniority list of Income Tax Officers Class I as finally approved by this Court, and on selection by a duly constituted Depart mental Promotion Committee in accordance with the prescribed procedure.
In February 1973, the Income Tax Officers (Class I) Service (Regulation of Seniority) Rules, 1973, were made and a revised seniority list of Income Tax Officers Class I was made on the basis of those rules.
The list as well as the Rules were approved in the second Bishan Sarup Gupta Case ; From such seniority list the Depart mental Promotion Committee made a selection list in July 1974, for proration of Income .Tax
Officers, Class I, as Assistant Commissioners.
There were 112 vacancies and the Government sent 336 names in the running order of seniority for consideration of the field of 29 choice.
The Committee followed the instructions in the 1957 Memorandum an.d found 276 to be fit for the field of choice, assessed the merits of 145 persons in order of seniority, found one officer outstanding, 114 very good, and 7 Sched uled Castes/Tribes officers good, according to the instruc tions.
The Selection list was challenged in various High Courts.
Two of the High Courts held in favour of the peti tioners and the other High Courts gave interim orders stay ing the operation of the Selection List.
In appeals by the Union of India to this Court, the respondents sought to support the judgments in their favour on the following contentions : (1) The requirement in the rule regarding 10 years experience was not abrogated as contended by the Government and the affidavits field in the various proceedings on behalf of the Union as well as the petitioners show that the 10 year rule was in force and was followed (2) Rule 18 has the force of law under the Government of India Act, 1935, and hence is existing law within the mean ing of article 366(10) of the Constitution and also because it was incorporated in the Office Manual issued by the Govern ment of India in exercise of its executive power under article 53.
(3) The rule constitutes one of the conditions of serv ice and, therefore, should be followed.
(4) The rule imposes an obligation on the Union Govern ment to Consider 'ordinarily ' only Officers of ten years service, but the selection list was prepared in violation of the rule in that officers of 8 years experience were considered.
(5) The selection has been made in complete violation of the principles set out in the 1957 memorandum and was entirely arbitrary.
(6) The promotion should be considered as on 21 December 1972 when the Government applied to this Court for permis sion to make ad hoc appointments, and on the two dates when the Government actually made 107 (59 1 48) ad hoc promotions and it Was the duty of the Committee to regularise the 107 promotions as from the dates of the original promotion and to consider the eligibility of an officer for promotion as on those dates, and this not having been done.
the selection list was illegal being contrary to the observations in the first Bishan Sarup Gupta 's case.
Rejecting these contentions of the respondents, allowing the appeals, and upholding the Selection List, HELD: (1)(a) The requirement Of 10 years experience in r. 18 was modified to 8 years experience.
The correspond ence between the Finance Ministry and Home Ministry and the U.P.S.C. shows that there was concurrence with the change.
The High Court was in err, or when it said that the require ment of 8 years experience must first be included in the appropriate recruitment rules and that until that was done 10 years experience held the field.
8 years experience as a working rule for promotion was publicly announced by the Minister in Parliament.
Administrative instructions are followed as a guide line on the basis of executive policy.
The requirement of 8 years was followed as a guide line in practice in 1968, 1970 and 1972.
The requirement was thus not only modified but was given effect to.
[39F] (b) The High Court was in error in treating the affida vit evidence of an officer of the Government, in other proceedings, as a statement of fact that the 8 years rule had not been introduced.
This affidavit evidence is torn out of context and is misread by the High Court without going into the question as to whether such evidence is admissible.
The entire affidavit evidence as well as the submissions made on behalf of the 'Union Government is that the requirement of 10 years experience is replaced by one of 8 years.
It is a question of construction of.
the correspondence as to whether the 10 years rule was replaced by 8 years rule.
The fact that no rules under article 309 were 30 framed does not detract from the position that previous administrative instruction of 10 years experience was modi fied to 8 years experience.
The various affidavits and documents show that the consistent position on behalf of the Union has always been that the requirement of 10 years experience was modified to one of 8 years.
[41H; 42A B] (2) The rule is not a statutory rule.
[42D] (a) The contention that because Government of India has authority to frame rules the letter of 16th January 1950 in which the rule was framed should, therefore, be treated as a formal ' rule is erroneous since there is a distinction between statutory orders and administrative instructions of the Government.
The change was recorded by means of correspondence as an administrative instruction. 'In the absence of statutory rules, executive orders or administra tive instruction may be made.
[42E F] Commissioner of Income Tax Gujarat vs A. Raman & Compa ny. , referred to.
(b) The letter of 16th January 1950 written by an Under Secretary in the Ministry of Finance does not prove that it is a rule made by the Governor General or any person autho rised by him under section 241(2), Government of India Act, 1935.
Furthermore, there is no basis for any authentication under section 17 of the 1935 Act in the letter.
[42G] (c) In the preface to the Office Manual published in 1955 it is specifically stated that Vol.
I contains statuto ry rules and Vol.
II, in which r. 18 occurs, contains only administrative instructions.
[42G] S.C. Jaisinghani vs Union of India & ors.
[1967] 2 S.C.R. 70, referred to.
(d) Article 313 refers to laws in force which mean statutory laws.
An administrative instruction or order is not a statutory rule or law.
The administrative instruc tions can be changed by the Government by reason of article 63(1).
Article 313 does not change the legal character of a document.
[43B] (3) The High Court erred in holding that the 10 year rule is a condition of service.
The word "ordinarily" in the rule does not impose an obligation on the Government not to consider any Income Tax Officer with less than 10 years experience, for promotion.
The rule on the face of it, confers a discretion on the authorities to consider Income Tax Officers of lesser years experience if the circumstances so require, and whether such circumstances exist should be left to the decision of the authorities.
Even the Central Board of Revenue, in a letter written a few months after the rule was framed, stated that the insistence of a minimum period of experience cannot be regarded as affecting the conditions of service.
In that letter.
it was stated that the requirement of 10 years experience is sufficiently elastic and all Income Tax Officers with more than 9 years experience could also be considered for promotion.
This letter was referred to by this Court in Union of India vs Vasant Jayarama Karnik [43C F] (4) It cannot be said that there is a deviation from the requirement of 10 years experience in preparing the Selec tion list.
That requirement was modified to one of 8 years experience.
The expression 'ordinarily ' in the rule shows that there can be deviation and such deviation can be justi fied by reasons.
Administrative instructions if not carried into effect for good reasons, cannot confer a right.
[43G] P.C. Sethi & ors.
vs Union of India & Ors.
[1975] 3 S.C.R. 201, referred to.
(5) The facts and circumstances in the present case merited the exercise of discretion which was bona fide exercised by determining the field of choice and from 1963, the field of choice has always been in a running order of seniority.
31 (a) There were, in the present case,112 vacancies and 10 anticipated vacancies and the Departmental Promotion Commit tee was to make a panel of 122 officers.
If the field of choice has to be prepared on the basis of running seniority and if 10 years experience had been adhered to, there would not have been more than 95 officers in the field of choice although the number of vacancies was 122.
This fact alone entitled the authorities to deviate from the rule of 10 years experience.
[44E F] (b) The requirement of 10 years experience could not be given effect to also because in the second Bishan Sarup Gupta case, this Court had directed that the two classes of Income Tax Officers, direct recruits and promotees, should first be fully integrated before determining inter se sen iority.
The expression 'ordinarily ' would hardly apply to such a changed situation without destroying the integration.
If the respondents ' contention that the field of choice shall be restricted to 10 years experience only and the field of choice should have been at least 5 times the number of vacancies the result would have been that out of 560 persons in the field of choice 474 persons would have been promotees and only 86 persons would have been direct recruits and 429 senior officers, who were direct recruits, would have been ignored.
That obviously would be unjust and unfair and also contrary to the decision of this Court in the second Bishan Sarup Gupta 's case.
[47BC] (c) As a result of administrative instructions issued, at least since 1963, for promotion of Income Tax Officers as Assistant Commissioners, the administrative practice is to take the field of choice generally of 3 times the number of vacancies.
The evidence shows that in the circumstances of this case, it was not possible to have 5 or 6 times the number of vacancies in the field of choice.
[46E] (d) The High Court was wrong in holding that in the field of choice, the evaluation o{ merit of persons was not properly done.
The 1957 Memorandum requires that the field of choice is based on running seniority and evaluation of merit does not come into picture for deciding the field of choice.
The question of merit comes in only in the preparation of the selection list.
Seniority is the sole criterion for determining the field of choice and merit is the sole crite rion for putting the officers in the Selection list.
[46G] In present case, the instructions in the 1957 memoran dum were strictly followed.
(e) The 7 Scheduled Caste/Tribes officers were not entitled to a grade higher than the grade assessed by the Committee, because, the Home Ministry instructions, regard ing concessions to Scheduled Castes and Tribes applied in the case of promotions from Class III to Class II and within Class II and from Class II to the lowest rank of Class I, but had no application in respect of promotion within Class I. [47E] (f) After 122 senior officers were assessed and 114 were found to be 'very good ', they could not be supplanted by other who were also 'very good '.
Only 'outstanding ' persons who would be junior to the 122 could surpass them.
There fore, the Committee rightly considered the cases of the officers remaining out of the 276 only to find out whether there was any one 'outstanding" as it would be a fruitless exercise to find out who among them was 'very good '.
[48B] (g) The contention of the respondents that the officers remaining out of the 336 sent up, were not at all considered by the Committee is not also acceptable.
When the Committee found, according to running seniority, that certain persons beyond a certain number could not be in the field of choice, the Committee did not put the names in the field of choice.
The question of the evaluation of their merits did not, therefore, arise.
It is wrong to hold that because the Government sent the names of 336 persons the field of choice consisted of all 336 persons.
The field is to be determined by the Committee and the Committee rightly con sidered 276 names as fit to be included.
[48F] 32 (h) There is no substance in the contention that 4 of the officers had less than 8 years experience, because, they were ex military officers recruited by virtue of a notifi cation of the Ministry of Home Affairs.
[49B C] (i) The contention that after putting the officers in the three categories they should further be evaluated on merit inter se within each category is contrary to the specific provision of the 1957 memorandum, and further, there could not be any further intra specific assessment of those who are already considered to be "very good".
[49D] (6) The date for determining the eligibility of officers has nothing to do with the dates on which ad hoc appoint ments were permitted and ad hoe appointments were, in fact, made.
The observations Of this Court in the first Bishan Sarup Gupta case, are that if as a result of the fresh seniority list, it is found that any officer was eligible for promotion on account of his place in the new seniority list, the Committee might have to consider his case as on the date when he ought to have been considered and his position adjusted in the seniority list of Assistant Commis sioners.
The observations did not mean that although the Committee can meet only after the seniority list is approved by this Court, the selection would be deemed to be made at the time when a vacancy in the post occurred and the eligi bility of officers for seleCtiOn should be determined by such deemed date of selection.
No employee has any right to a vacancy in the higher post as soon as the vacancy occurs.
The Government has a right to keep it unfilled as long as it chooses.
The seniority list which is a basis for the field of choice for promotion was approved by this Court on 16th April 1964 in the second Bishan Sarup Gupta case.
Promo tions to the post of Assistant Commissioners are on the basis of the Selection List prepared by the Committee and are to be made prospectively and not retrospectively.
[51 C D]
|
ivil Appeal Nos.
1853(A) and 1854 of 1971.
Appeal from the Judgment and Order dated the 18th April, 1969 of the Madras High Court Madras in Tax Cases Nos. 18 and 19 of 1966.
V.S. Desai, J. Ratnamurthi and M.N. Shroff, for the Appel lant.
T.A. Ramachandran, for Respondent.
The Judgment of the Court was delivered by KHANNA, J.
This judgment would dispose of two civil appeals Nos.
1853(A) and 1854 of 1971 which have been filed on certificate by the Commissioner of Income tax against the judgment of Madras High Court (reported in answering the following two questions referred to it in two references under section 66(1) of 79 the Indian Income tax Act, 1922 in the affirmative in favour of the assessee and against the revenue: "1.
Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that for computing the reduction in rebate under Para D of Part II to the First schedule to the Finance Act, 1959 (in R. A. No. 169 of 1965 66) and of Finance Act, 1958,(in R.A. No. 168 of 1965 66) in the composition of profits of the year from which the dividend had been declared should be looked into, and 2.
Whether the Appellate Tribunal was right in law in holding that the paid up capital of the assessee company should be proportionately reduced for the purpose of reducing the rebate in Corporation Tax in the manner directed.
" The matter relates to the assessment of the respondent company for the assessment years 1958 59 and 1959 60.
For sake of convenience we may set out the facts relating to the assessment year 1958 59.
It is the common case of the parties that the decision about that year would also govern the point of controversy relating to the other year.
The assessee is a private limited company.
In the previous year ending on December 31, 1957 relevant for the assessment year 1958 .59, it declared a dividend of Rs. 99.000.
Its paid up capital was Rs. 1,65,000.
The total income of the assessee company was determined at Rs. 73,255 made up as under: Rs. Business Nil Other sources 26,554 Capital gains 46,701 Total income 73,255 As the dividend of Rs. 99,000 declared by the assessee company was in excess of 6 per cent of the paid up capital of the company, the Income tax Officer worked up the super tax payable by the. assessee as under: RS.
Corporation tax @ 50 % on Rs. 26,554 13,277 less rebate @ 30 % on Rs. 26,554 7,966.20 Reduction in rebate Up to 6%0 of the paid up capital 9900 .
Nil 6% to 10% of the paid up capital in 6600 @ 10% 660.00 Balance at 20% 82500 @ 20% 1,65,00.00 17,160.00 Balance carried forward to next year 9,193.80 The assessee company objected to the above computation of the super tax and took the matter in appeal to the Appel late Assistant Commissioner.
It w.as urged on behalf of the assessee that the dividend of Rs. 99,000 declared during the year ending 1957 was 80 out of the profits of the previous year which ended on December 31, 1956.
According to the assessee, the dividend income determined for the assessment year 1957 58 was Rs. 1,74,196 which included capital gains to the extent of Rs. 1,10,105.
The dividend of Rs. 99,000, it was urged, should be apportioned between the capital gain of Rs. 1,10,105 and the other income of Rs. 64,091 after taking into account the tax payable thereon.
The assessee computed the figures as under: Rs. Capital receipts not assessable 44,279 Capital gains is assessed less tax 75,423 Other income less tax 22,492 1,42,194 The assessee claimed that rebate should be reduced only with reference to the sum of Rs. 15,659 being proportionate part of the dividend declared during the previous year ending on December 31, 1957 which had come out of the other income assessed to income tax and super tax in the assessment year 1957 58.
The figure of Rs. 15,659 was arrived at by the assessee as under: 99,000 x 22,492 1,42, 194 The Appellate Assistant Commissioner accepted in princi ple the assessee 's contention that the components of the dividend should be considered with reference to the profits of the previous year.
He, however, computed proportionate dividend at a higher figure by including the capital gains of Rs. 75,423 with the sum of Rs. 22,492 as shown below: Rs. Net available profits attributable to assessed income (22,492 75,423) 97,915 Net available profits 1,42,194 Dividends declared 99,000 97,915 99,000 Proportionate dividend: =68,171 1,42,194 The Appellate Assistant Commissioner retained the paid up capital at Rs. 1,65,000 as per balance sheet with out apportionment on the basis of taxed and non taxed in come.
The department took the matter in appeal to the Appel late Tribunal.
The Tribunal dismissed the appeal hold ing that the "previous year" under Explanation (iii) to Paragraph D of Part II to the First Schedule to the Finance Act, 1958, refers only to the previous year out of the profits of which the dividends were declared and therefore the composition of the profits and gains of the company out of which dividends were declared had to be looked into for working out the proportion under Explanation (iii) to Para graph D of Part II to the First Schedule to the Finance Act of 1958.
At the instance of the Commissioner, the questions reproduced above were thereafter referred to the High Court.
81 In appeal before the High Court, it was argued on behalf of the revenue that dividends having been distributed during the accounting year relevant to the assessment year in question, it is that year alone which has to be taken into consideration for calculating the supertax under the appro priate Finance Act.
The fact that such profits were trace able to the profits earned during the year prior to the accounting year, according to the submission, was not of significance and had to be ignored for the purpose of work ing out the quantum of rebate in such super tax made avail able in the Finance Act.
It was accordingly urged that the year of distribution, namely, the accounting year, is the only basis for the calculation of the rebate.
As against that, it was submitted on behalf of the assessee that it would be unreal if the years in which the profits had been admittedly earned was to be ignored and reliance was placed for calculation of rebate on the ministerial act of distri bution.
The High Court, while answering the questions referred to it in favour of the assessee and against the revenue, observed us under: "If, therefore, 'distribution ' is thus to be understood as a ministerial act resulting from the indoor management of the company, can that be the sine qua non to decide the question of quantum of rebate to which the company would be entitled under a particular Finance Act? If the year in which distribution is to be effected is considered for purposes of the Finance Act and for the determination of the quantum of rebate, then it would result in a notional implementation of the benefit contemplated by the legislature to a company in the nature of a rebate and would not amount to a realistic approach of such a vital problem connected with the finances of the company.
It may be that in any particular year when distribution of dividends have been made, the paid up capital might have been reduced or increased, as the case may be.
Is that paid up capital going to be taken as the basis for working out the relative benefits or disadvantages to be enjoyed or suffered by a company? We are of the view that it is neither the intention of the legislature, nor could it be said to be a reasonable inference of the provisions thereto.
In fact, the Explanation to the Fi nance Act, 1958, which elucidates the term 'paid up capital ', gives the key to the interpretation of the word 'distribution '. 'Paid up capital ' means the paid up capital of the company on the first day of the previous year relevant for the assessment year ending on 31st March, 1959.
It is, therefore, clear that the paid up capital of the company during the assessment year cannot be said, for purposes of Paragraph D of Part II of the First Schedule to the Finance Act, 1958, to.
be the paid up capital of the year in which the profits arose and from which dividends were distributed during the assessment year.
" Before dealing with the contentions advanced, it may be appropriate to refer to the relevant provisions.
According to.
section 55 of the Indian income tax Act, 1922, in addi tion to the income tax 7 1458SCI/76 82 charged for any year there shall be charged, levied and paid for that year in respect of the total income of the previ ous year of any individual, Hindu undivided family, company, local authority, unregistered firm or other associ ation of persons, not being a registered firm, or the part ners of the firm or members of the association individually, an additional duty of income tax (in this Act referred to as super tax) at the rate or rates laid down for that year by a Central Act.
Clause (b) of section 2 of the Finance Act, 1958 (Act No. 11 of 1958) provides, inter alia, that subject to the provisions of subsections (2) and (3) with which we are not concerned, for the year beginning on the first day of April 1958. "(b) super tax shall, for the purposes of section 55 of the Indian Income tax Act, 1922 (XI of 1922) (hereinafter referred to as the Income tax Act), be charged at the rates specified in Part II of the First Schedule.
" We are concerned in the present case with Paragraph D of Part II of the First Schedule to the Finance Act, 1958.
The relevant part of the above paragraph reads as under: RATE OF SUPER TAX In the case of every other company, RATES OF SUPER TAX On the whole of the total income . . . 50%: Provided that , (i) . . . (ii) a rebate at the rate of 40 per cent on so much of the total income as consists of dividends from a subsidiary Indian company and a rebate at the rate of 30 per cent on the balance of the total income shall be allowed in the case of any company which satisfies condition (a) but not condition (b) of the preceding clause; (iii). . .
Provided further that, (i) the amount of the rebate under clause (i) or clause (ii) shall be reduced by the sum, if any, equal to the amount or the aggregate of the amounts, as the case may be, computed as hereunder: . . . . . (c) in addition, in the case of a company referred to in clause (ii) of the preceding proviso which has distributed to its shareholders during the previous year dividends in excess of six per cent of its paid up capital, not being dividends payable at a fixed rate 83 (A) in the case of a company which is not such as is referred to in sub section (9) of section 23A of the Income tax Act : on that part of the said dividends which exceeds 6 per cent, but does not exceed 10 per cent of the paid up capital; at the rate of 10% on that part of the said dividends which exceeds 10 per cent of the paid up capital; at the rate of 20% Explanation.
For the purpose of this paragraph (i) . . . . (ii) . . . . (iii) where any portion of the profits and gains of the company is not included in its total income by reason of such portion being exempt from tax under any provision of the Income tax Act, the 'paid up capital ' of the company, the amount distributed as dividends (not being dividends payable at a fixed rate), the amount representing the face value of any bonus shares and the amount of any bonus issued to the shareholders shall each be deemed to be such proportion thereof as the total income of the company for the previous year bears to its total profits and gains for that year other than capital receipts, reduced by such allowances as may be admissible under the Income tax Act which have not been taken into account by the company in its profit and loss account for that year.
" In appeal before us Mr. Desai on behalf of the appel lant has urged that dividend having been distributed during the accounting year relevant to the assessment year in question, it is the profits and gains of that year alone which should be taken into consideration for calculating the rebate in the levy of super tax.
The fact that such divi dend was distributed out of the profits earned in the years prior to that was, according to.
the learned counsel, irrelevant.
Particular stress in this context has been laid upon the language of clause (iii) of the Explanation con tained in Paragraph D of Part II of the First Schedule to the Finance Act,1958.
As against that, Mr. Ramachandran who has argued the case amicus curiae has canvassed for the correctness of the view taken by the High Court.
We have set out above the relevant part of Paragraph D of Part II of the First Schedule to the Finance Act, 1958.
The language in which the above paragraph is couched is so complex and is hedged in with so many exceptions and provi sos that it can hardly be regarded as a model of clari ty in legislative draftsmanship.
Paragraph D initially prescribes the rate of super tax at 50 per cent on the total income of the company.
The first proviso then makes 84 provision for rebate in the assessment of the super tax.
The rebate for a company like the respondent with no income in the form of dividend from a subsidiary company is to be at the rate of 30 per cent.
The second proviso carves out reduction in the rebate.
Clause (c) of that proviso sets out the formula for calculating that reduction at a sliding scale in case the amount of distributed dividend exceeds 6 per cent of the paid up capital.
There then follows a third proviso but we are not concerned with that.
At the end comes the Explanation consisting of three clauses.
For the purpose of the present case, the relevant clause is (iii).
The said clause makes provision in cases which fall within its ambit for a further reduction in the reduction mentioned above.
To put it in other words, the paragraph seeks to prescribe the rate of super tax.
It then proceeds to grant some relief to the tax payer in the levy of .
super tax.
It thereafter makes a cut in that relief.
Finally, it prescribes a cut in that cut.
The intelligence of even those with legal background gets staggered in this continu ous process of carving exceptions to exceptions.
It seems more like a conundrum, baffling the mind and requiring special acumen to unravel its mystique.
One can only wonder as to how the ordinary tax payers, most of whom are laymen, can keep abreast of such laws.
Yet the maxim is that every one is presumed to know the law.
The one redeeming feature is that the above pattern was given up after 1959.
From 1960 to 1964 there was another pattern.
Since 1965 the charge of super tax has been discontinued and the rates of income tax have been so increased as to absorb fully the former levy of super tax.
The fate of these appeals, as would appear from the above, depends upon the wording of clause (iii) of the Explanation.
The said clause contemplates, inter alia, that in calculating the amount deemed to have been distributed as dividends, certain proportion of the amount actually dis tributed has to be taken into.
account.
The said clause, shorn of the portions with which we are not concerned, reads as under: Where any portion of the profits and gains of the company is not included in its total income by reason of such portion being exempt from tax under any provision of the Income tax Act, . the amount distributed as dividends . . shall. be deemed to be such proportion thereof as the total income of the company for the previous year bears to its total profits and gains for that year other than capital receipts, reduced by such allowances as may be admissible under the Income tax Act which have not been taken into account by the company in its profit and loss account for that year.
The above clause provides a formula which has to be applied for determining the amount of dividends which shall be deemed to have been distributed in considering the quantum of rebate for assessing the super tax payable by a company.
The occasion for applying this formula is indi cated by the opening lines of the clause and arises when any portion of the profits and gains of the company 85 is not included in its total income by reason of such por tion being exempt from tax under the provisions of the Income tax Act.
Once such an occasion arises, we have to apply the formula contained in the tatter part of the clause.
According to that formula, the amount distributed as dividends shall be deemed to be such proportion thereof as the total income of the previous year bears to its total profits and gains for that year other than capital re ceipts, reduced by certain allowances with which we are not concerned.
The words "for the previous year" and "for that year" indicate that in finding for the purpose of rebate the amount of dividends which shall be deemed to have been distributed, we have to look to the figure of total income and the amount of profits and gains other than capital receipts of the company reduced by certain allow ances in the previous year alone and not earlier years.
Clause (iii) introduces a fiction with regard to the amount of dividends which shall be deemed to have been distributed.
Such a fiction can operate only within the limits prescribed by the language of the statute creating that fiction.
The language used in clause (iii) points to the conclusion that the taxing authorities have to take into account the company 's total income and the profits and gains other than capital receipts reduced by certain allowances only in the previous year, i.e., the year in which the dividend was distributed.
The fact that those profits and gains accrued in years prior to the previous year and in cluded portions which were exempt from tax under the provi sions of the Income tax Act would not be of much relevance as the language of the clause requires the taxing authori ties to look to the position of profits and gains in the previous year alone.
We would, therefore, modify the answer given by the High Court to question No. (1) and answer the aforesaid question in the negative.
The correct answer, in our opinion, should be that for computing the reduction in rebate under Paragraph D of Part II of the First Schedule to the Finance Act, 1958 the position of profits and gains as it existed in the previous year should be taken into account and not in the years prior to that.
No arguments have been addressed before us on the answer to question No. (2).
We accordingly accept the appeals, set aside the judg ment of the High Court and answer question No. (1) in the negative as indicated above.
The parties in the circum stances shall bear their own costs in this Court and in the High Court.
M.R. Appeals allowed.
| IN-Abs | The Income tax officer took into account the respond ent 's entire dividend income of the year ending December 30, 1957, while calculating the super tax payable by it for the assessment year 1958 59.
In appeal against the computation the respondent contended before the Appellate Assistant Commissioner that the dividend income included profits earned during the previous years, and that rebate should be reduced only with reference to the proportionate part of the dividend declared during 1957 which had come out of the other income assessed to income tax.
and super tax in the assessment year 1957 58.
The respondent 's contention was accepted in principle.
The Department 's appeal was dis missed by the Appellate Tribunal.
The matter was then referred to the High Court under section 66(1) of the Indian Income Tax Act, 1922, and decided in favour of the assessee.
Allowing the appeals the Court, HELD: For computing the reduction in rebate under para graph D of Part II of the First Schedule to the Finance Act, 1958, the position of profits and gains as it existed in the previous year should be taken into account and not in the years prior to that Clause (iii) introduces a fiction with regard to the amount of dividends which shall be deemed to have been distributed.
The taxing authorities have to take into account the company 's total income and the profits and gains other than capital receipts reduced by certain allow ances only in the previous year, i.e., the year in which the dividend was distributed.
The fact that those profits and gains accrued in years prior to the previous year and in cluded ' portions which were exempt from tax under the provi sions of the Income tax Act would not be of much relevance.
[85 A D]
|
Civil Appeal No. 1166 of 1976.
Appeal by Special Leave from the Judgment and Order dated the 16th September, 1976 of the Madhya Pradesh High Court in Misc.
Petition No. 1004 of 1974.
M.N. Phadke, S.Q. Hasan and A.C. Ratnaparkhi for the appellant.
Ram Panjwani, H.S. Parihar and 1.
N. Shroff for Respond ent.
No. 1.
Niren De, Attorney General, Rameshwar Nath and Y.B. Desai, for Respondent No. 6.
The Judgnent of the Court was delivered by RAY, C.J. This appeal is by special leave from the judgment dated 16 September, 1976 of the High Court of Madhya Pradesh.
87 The appellant made an application under Articles 226 and 227 of the Constitution in the High Court and impeached the order dated 21 September 1974 whereby the Government dis missed the appellant 's objections against Scheme No. 9 M relating to Road Transport Nationalisation.
The appellant also impeached the Scheme as published in the Gazette on 11 October, 1974.
The High Court held that in view of the fact that Chap ter IV A of the (hereinafter re ferred to as the Act) is included as Entry 125 in the Ninth Schedule to the Constitution the appellant could not chal lenge the Scheme.
The High Court erred in holding that it was not open to the appellant to challenge the Scheme.
The Attorney General rightly and fairly said that the judgment of the High Court could not be supported on that ground.
The High Court failed to appreciate that though Chapter IV A of the Act is not open to any constitutional challenge it is open to any aggrieved person to challenge any Scheme on the ground that it is not a valid Scheme as required by the provisions of Chapter IV A of the Act.
Scheme No. 9 M relating principally to Jabalpur Sagar and Damoh Hatta routes was published by the State Transport Undertaking in the State Gazette on 15 November, 1963.
The Scheme was approved and finally published in the State Gazette on 12 February 1965.
Under the Scheme which came into force with effect from 2 April, 1965 Jabalpur Sagar and Damoh Hatta portions of the routes were reserved for exclusive operation by the State Transport Undertaking.
The portions Sagar Bhopal, Rehli Garhakota, Hatta Panna, Ka tangi Majhouli and Damoh Chhatarpur via Hirapur were kept for joint operation with existing permit holders with the condition that the permit holders with existing permits were not to pick up passengers from and to any station lying between Nohta Abhana Garhakota or any other two stations on Jabalpur Sagar road and Damoh Hatta and vice versa.
The Transport Authorities granted fresh permits cover ing Abhana Garhakota portion treating it to be a portion of joint operation with others.
This action of the Transport Authorities was found to be destructive of the true inten tion of Scheme No. 9 M. It thus became necessary to modify Scheme No. 9 M.
The proposal was then placed before the Board of the State Transport Undertaking referred to hereinafter as the Under taking by, the General Manager.
The Board of the Undertak ing considered the matter at its meeting held on 20 August 1973 and passed Resolution No. 8354approving the proposal modifying Scheme No. 9 M.
The Board 'Resolution directed inclusion of Sagar Rehli Garhakota Jabalpur and Patharia Damoh routes for exclusive operation by the State Corpora tion.
The Board directed that the Scheme giving the de tails should be placed before the Board for its approval.
In this background Scheme No. 9 M giving details was prepared and the proposal was placed before the Board of the Undertaking at the meeting held on 88 29 November, 1973.
The Board of the Undertaking approved the proposal by Resolution No. 1395 and authorised conse quential action.
Scheme No. 9 M was published in the Official Gazette on 7 December 1973.
The Scheme was thereafter considered by the Special Secretary to the State Government in exer cise of powers under section 68D of the Act.
Under section 68D of the Act persons contemplated in the Act might file objections and the State Government would hear objections and then approve or modify the Scheme.
The State Government on 21 September 1974 approved the Scheme after having heard the objections.
The approved Scheme was notified in the State Gazette dated 11 October 1974.
The approved Scheme came into force with effect from 19 November, 1974.
Scheme No. 9 M as approved, after hearing objections, provided in clause (2) that the State Road Transport Serv ices would be provided on the routes of Jabalpur, Sagar and Bhopal regions.
In clause (2) of the Scheme 25 routes are set out.
Route No. 2 is Jabalpur Bhopal via Patan, Tenduk heda, Damoh, Rehli, Sagar and Raisen.
Route No. 3 is Jabalpur Sagar via Katangi and Damoh.
Route No. 4 is Jabal pur Sagar via Patan, Tendukheda, Damoh and Rehli, Route No. 20 is Sagar Patharia.
In clause (4) of Scheme No. 9 M it is said that no person other than the Undertaking will be permitted to provide Roard Transport Services on the routes or portions thereof specified in clause (2) except as provided in clause (5).
In clause (5) it is stated that all Road transport Services will subject to the provisions made in the subsequent clauses, namely, No. (6) and (7) be provided by the Undertaking exclusively on JabalpurSagar via Katangi, Damoh and Damoh Hatta via Bangnon roads covering portions of the routes specified in clause (2).
The routes which the Under taking will operate in conjunction with others are (1) Jabalpur patan Tendukheda Abhana, (2) Damoh Patera Hatta Panna, (3) Damoh Hirapur Tikamgarh and (4) Damoh Hirapur Chhatarpur portions of the routes specified in clause (2).
In clause (7) of the Scheme is set out a list of permits granted by the Regional Transport Authorities and modified as indicated therein.
In Item No. 20 of the list is set out the name of United.
Transport and in Items 22 and 23 is set out the name of S.S.M. Trading Company, Society.
The route of Damoh jabalpur via Abhana, Patan which was in the name of United Transport Company was modified to remain operative on the route of Abhana Jabalpur via Tendukheda, Patan.
The route of Sagar Jabalpur via Reihli, Gerhakota, Abhana, Tejgarh, Patan which had been given to S.S.M. Trad ing Company was modified to Abhana Jabalpur via Tendukheda, Patna.
It, therefore, appears from the Scheme that the routes (1) Jabalpur Patan Tendukheda Abhana, (2) Damoh Patera Hatta Panna, (3) Damoh Hirapur Tikamgarh, (4) Damoh Hirapur Chhattarpur were to be operated by the Undertaking in conjunction with existing permit holders.
89 The appellant under section 68D of the Act preferred objections to the Scheme.
The objections were four in number.
First the Scheme is mala fide as it is intended "to avert (sic) issuance of permits on these routes to private operators".
Second the Scheme is published without the undertaking forming the requisite opinion under section 68C of the Act.
Third the Scheme is discriminatory.
Two permits of the appellant are proposed to be curtailed where as 14 permits on Sagar Rehli Garhakota route have been left over.
Fourth the Scheme does not fulfil the four fold tests in section 68C of the Act.
The Government heard the objections.
The State Secre tary rejected the objections and approved the Scheme on 21 September 1974.
The State Secretary held that no mala fide was proved.
He also rightly held that nationalisation of Road Transport Service would result in the legal effect of stoppage of issue of permits on the routes mentioned in the Scheme.
In short, nationalisation of routes cannot be said to be mala fide.
The State Secertary found that the under taking considered the Scheme and formed the requisite opin ion under Section 68C of the Act.
The State Secretary found that there was no discrimination.
There was nothing to prove that similarly situated operators were treated dif ferently.
There was no proof that the undertaking knew of the existence of the alleged permit of the appellant or of others.
The State Secretary also found that the operators on Sagar Garhakota Patharia route were operating because it was not taken for exclusive operation.
In other words, the Scheme does not concern the route on which the 14 operators are alleged t0 be plying.
The State Secretary also found that the four purposes in section 68C of the Act were ful filled.
The appellant repeated some of the objections to the Scheme raised before the State Secretary and added new ones.
The appellant 's contentions here were these.
First Scheme No. 9 M which was finalised was not the opinion formed by the undertaking.
Second the appellant asked for resolution of the undertaking dated 20 August 1973 and this was not given.
Therefore, no opportunity was given to the appellant to raise objections under section 68D of the Act.
Third, Scheme No 9 M does not fulfil the four fold purposes, name ly, providing (a) efficient, (b) adequate, (c) economical and (d) properly coordinated road transport service as mentioned in section 68C of the Act.
Fourth curtailment of route Sagar Rehli Garhakota is contrary to clause (5) of the Scheme.
Chapter IV A of the Act contains sections 68 A to 68 I.
These provisions in Chapter IV A are under the heading "Special provisions relating to State Transport Undertak ings".
The Scheme recites that the Undertaking formed the opinion that for purposes of providing efficient, adequate, economical and properly coordinated road transport service provided in clause (2) of the Scheme, it is necessary in the public interest that the road transport service in relation to the said routes should be run and operated by the Undertaking in accordance with the Scheme.
There is thus in 90 trinsic evidence inherent in the Scheme that the Undertaking formed the opinion for the Scheme.
The State Secretary rightly rejected the contention of the appellant which was repeated here.
It appears from the order of the State Secretary who heard the objections of the appellant against the Scheme that the Secretary never made an order directing the Under taking to produce the resolution dated 20 August, 1973.
In the writ petition filed by the appellant in the High Court the appellant stated in paragraph 19 that the State Secretary instead of directing the Undertaking to produce these documents only observed that the Undertaking might think over the request adding that he might himself call for the said documents, if thought necessary.
It also appears from the judgment of the High Court that the proceedings before the State Secretary indicated that the appellant 's case was argued without any insistence on the. production of the resolution.
The High Court also noticed that the State Secretary made no such direction.
The fact that he made no such direction shows that he found it possible to give the decision without production of it.
The contention of the appellant is without any merit.
The State Secretary rightly held that the four fold purposes indicated in section 68C of the Act are estab lished.
This Court in Capital Multipurpose Cooperative Society Bhopal & Ors.
vs The State of M.P. & Ors(1), said that the right of a person to object to the Scheme is to be confined only to the four grounds, namely, that the Scheme did not provide (a) efficient, (b) adequate, (c) economical and (d) properly coordinated transport services.
The Scheme in the present case amply establishes that it fulfils the four purposes mentioned in the Act.
It has to be ' remembered that the Scheme in clause (2) as well as in clause (5) mentions the exclusive operation of the Undertaking on these routes in the public interest.
A mere allegation that the Scheme does not fulfil the purposes does not amount to any allegation and far less any proof.
The appellant laid emphasis on the contention that the appellant 's permits in respect of the portion Garhakota to Sagar via Rehli ought not to have been curtailed because the route was not reserved for exclusive operation by the State Transport Undertaking under clause (5).
It is a matter of policy as to what routes should be curtailed for the opera tion of the Scheme.
Courts do not judge such policy deci sions.
The appellant 's permits on the Garhakota Rehli Sagar routes expired on 26 and 30 September, 1976.
The appellant has been granted fresh temporary permit on the route which is of conjoint operation.
This temporary permit was granted to the appellant on 25 September, 1976.
The appellant has taken advantage of it.
It has to be shown that unless the appellant is allowed to operate on Sagar Rehli Garhakota route the Scheme will not be efficient, adequate, economical and properly coordi nated.
The appellant did not allege and substantiate the case.
This case cannot be entertained also for the reason that it is idle to suggest that the appellant will have not only Abhana Jabalpur via Tendukheda Patan route but also SagarRehli Garhakota route as of right.
(1) ; 91 It is not only competent but also conscionable that a Scheme for nationalisation can be complete or partial.
The efficiency as well as adequacy of the Scheme is advanced by such policy decisions of complete or partial nationalization of routes.
See H.C. Narayanappa & Ors, vs The State of Mysore & Ors.
C) Under section 68D of the Act the only scope for objection is whether the Scheme is efficient and adequate and not whether exclusion is complete or partial.
Objections axe confined only to the four grounds of effi ciency, adequacy, economy and proper coordination of road transport service.
Exclusion can be attacked only on these four grounds.
There was never any objection to the Scheme on exclusion related to any of these grounds.
The State Secretary in his order, on hearing the objections, rightly said that the Sagar Rehli Garhakota Patharia route is not to be taken for exclusive operation because there is no mention at all of the route.
The Scheme in clause (5) has specifi cally mentioned which routes are for operation by the State Transport Undertaking in conjunction with others.
The exclusion of the appellant from route on which the appellant had earlier operated cannot be said to challenge efficiency, adequacy, economy or proper coordination.
For these reasons the appeal is dismissed.
In view of the order of the High Court as to costs parties will pay and bear their own costs.
M.R. Appeal dis missed.
| IN-Abs | The Government of Madhya Pradesh proposed to pass scheme No. 9 M; regarding the nationalisation of road transport.
The scheme was approved and notified in the State Gazette, after the appellant 's objections made under section 68D of the , had been heard.
The appellant flied a writ petition in the High Court challenging the Government 's rejection of his objections, and also impeach ing the scheme as published in the gazette.
The High Court dismissed the petition holding that, as Chapter IV A of the Act has been included as Entry 125 in the Ninth Schedule to the Constitution, the scheme cannot be challenged.
Dismissing the appeal the Court, HELD: 1.
Though Chapter IV A of the Act is not open to any constitutional challenge, it is open to any aggrieved person to challenge any scheme on the ground that it is not a valid scheme as required by the provisions of Chapter IV A of the Act.
[87 C D] 2.
Under section 68D of the Act the only scope for objection is whether the scheme is efficient and adequate and not whether exclusion is complete or partial.
[91 A B] Objections are confined only to the four grounds of efficiency, adequacy, economy and proper coordination of road transport service.
There was never any objection to the Scheme on exclusion related to any of these grounds.
[90 D E] Capital Multipurpose Co operative Society Bhopal and Ors.
vs The State of M.P. & Ors. ; , ap plied.
H.C. Narayanappa & Ors.
vs The State of Mysore & Ors., ; , referred to:
|
Appeal No. 1753 of 1968 Appeal by Special Leave from the Judgment and Order/Decree dated the 6th September, 1967 of the Calcutta High Court in Appeal from Appellate Decree No. 689 of 1964) S.C. Majumdar and G.S. Chatterjee for the Appellant.
Sukumar Ghose for Respondents 1 3.
The Judgment of the Court was delivered by KRISHNA IYER, J.
This appeal, by special leave, from the judgment of a Single Judge.
of the Calcutta High Court, raises a single legal issue with human overtones.
The State of West Bengal is the appellant at this the fourth and final deck of the judicial pyramid, having won the case as the 5th defendant at the earlier stages of the litigation but lost in the High Court.
The question, shortly put, is whether the vesting of estates in the State under ss.3, 4 and 5 of the West Bengal Estates Acquisition Act, 1953 (West Bengal Act I of 1954) (abbreviated for reference hereinafter as the Act) extinguishes the right of cattle grazing enjoyed by villagers in the grasslands of such estates on the. ground that such right amounts to 'incumbrance ' within s.2(h) of the Act.
The facts An estate in village Vadurerpati Madhabpur in the dis trict of Hooghly was among those vested in the State on a notification under s.4 of the Act, free from all encum brances as provided in ss.4 and 5.
The Plaintiffs respond ents are some of the denizens of the said village and, in this representative action, claim that the agrarian communi ty there have always enjoyed the right of pasturage over the suit estate and pray for the relief of injunction restrain ing the 5th defendant appellant from interfering with the exercise of the right to graze, as enjoyed before.
The State, however, denies the survival of such a right even if it did exist on the score that the fatal impact of s.5 has terminated all incumbrances on the estate and the right to graze cattle belonging to the villagers is but an "incum brance ' as defined in s.2(h) of the Act.
Thus the bone of contention between the parties is whether the collective claim of the villagers to graze their cattle on an estate vested in the State under the Act falls within the defini tion of 'incumbrance '.
If it does, the suit deserves to be dismissed but, if it does not, the High Court 's view is correct and the case has to be sent back for consideration on the merits.
We may mention, for completeness ' sake, that defendants 1 to.
4 are persons in whom the estate has been allegedly settled by the State, although this position is not clear or perhaps is denied by the State itself.
73 The issue, in a nut shell, is as to what is an 'incum brance '.
But this question, in the light of the definition which we will presently reproduce, resolves itself into two issues which will be self evident as we read the provision: "2(h) In this Act unless there is anything repugnant in the subject or context. x x x (h) 'incumbrance ' in relation to estates and rights of intermediaries therein does not include the rights of a raiyat or of an under raiyat or of a non agricultural tenant, but shall, except in the case of land allowed to be retained by an intermediary under the pro.visions of section 6, include all rights or interests of what ever nature, belonging to intermediaries or other persons, which relate to lands comprised in estates or to the produce thereof.
" And so the two gut questions are: (i) whether a right to graze cattle in the estate of another falls within the sweep of the comprehensive expression 'all rights or interests of whatever nature '; and (ii) whether the members of a village as a collective, though fluctuating body, are covered by the words 'intermediaries or other persons '.
While the two courts at the ground and first floor level decided the two points above mentioned in favour of the State, the High, Court, after a long and discursive discus sion, the labyrinthine course of which need not be traversed by us, reached the conclusion that the right in question was a public right belonging to an unspecified and varying group not a specific private interest vesting in specified persons and therefore left untouched by sections 3 to 5 and uncovered by s.2(h).
Is that view sustainable on a correct construction of the provision? Putting a literal and teleological construction on the definition of 'incumbrance ' we have hardly any doubt that the legislature has used language of the widest amplitude ' to cast the net wide and to catch all rights and interests whatever be their nature.
Indubitably, the right to graze cattle in .an estate is a restrictive interest clearly falling within the scope of the provision.
Indeed, so designedly limitless an area of rights and interests of whatever nature is included in the special definition of 'incumbrance ' for the purposes of the Act, that to deny the 'familiar rurally enjoyed right of pasturage as covered by it is to defeat, by judicial construction, the legislative intendment.
Likewise, there is no substance in the conten tion that the collective, though uncertain, body of villag ers cannot be brought within the expression 'or other persons '.
The connotation of those words in the context is 'intermediaries or persons other than intermediaries '.
This embraces all persons other than intermediaries and the villagers 74 who seek to exercised the right of grazing over the inter mediaries ' lands are plainly 'other persons '.
There is no warrant for the limited signification imputed to those words by counsel for the respondent when he argues that they refer to particular, definite and known individuals.
An unwarranted narrowing of meaning cannot be attributed where there is no contextual compulsion or fulfilment of statutory purpose thereby gained.
On the other hand, the great socio economic objective of the Act argues itself.
If it is to be successful as a land reform measure, the pre condition is that the estates must vest the intermediaries ' entire rights fully not moth eaten by carving out many little interests out of the plenary ownership of the State.
This intendment is further manifest from sections 4 and 5 which we set out below along with section 3: "s.3.
The provisions of this Act shall have effect notwithstanding anything to the contrary contained in any other law or in any contract express or implied or in any instrument and notwithstanding any usage or custom to the contrary: x x x x "s.4.(1) The State Government may from time to time by notification declare that with effect from the date mentioned in the notification, all estates and the rights of every intermediary in each such estate situated in any district or part of a district specified, in the notification, shall vest the State free from all incumbrances.
X X X "s.5(1) Upon the due publication of a notification under section 4, on and from the date of vesting (a) the estate and the rights of intermediaries in the estates, to which the declaration applies, shall vest in the State free from all incumbrances; in particular and without prejudice to the generality of the provisions of this clause, every one of the following rights which may be owned by an intermediary shall vest in the State, namely: x x x x According to ss.4 and 5, the vesting shall be 'free from all incumbrances '.
In short, from the perspective of land reform objectives, a specious meaning is derived by the definition in s.2(h).
Ordinarily, the Court cannot cut down the definitional amplitude given in the statute and we see no valid reason for departing from this golden rule.
The end product of this discussion is that the appeal must be allowed and, the suit dismissed.
Even so, we have been taken on a conducted tour by counsel on both sides more or less covering and controverting the points which have appealed to the High Court.
Shri Ghose, for the respondent, pressed before us a contention based on rural economics which has considerable force in a general 75 way, but has none from the legal angle.
India lives in her villages not in her cities.
This truth has been highlight ed by the Father of the Nation, but insufficiently remem bered by our law makers.
The agrarian community, with a cattle economy, rates high in the agrestic scheme the right of pasturage and so it is a human problem for the villagers and their very life if the State snatches the valuable right of pasturage which makes the village economy viable, in the name of.
estate 'abolition, without providing alternative village commons.
While we are moved by this submission and feel that this is an unintended consequence of comprehen sive vesting of estates in the State, we have only to ob served that the State, in our expectation, should, mindful of its welfare obligation, consider this facet of the prob lem and try to provide grazing grounds in villages where the impact of the Act has deprived the community of the right of pasturage.
Even if the consequence of abolition of intermediary rights leads to a baneful by product from the economic point of view, we,as Judges, are functionally committed to construction of the statute in the terms the legislature has cast it.
In this context our non legal reaction to the loss of grazing rights by the villagers is reinforced by the obser vations of Sarada Charan Mitra in his Tagore Law Lectures, 1895, on the Land Law of Bengal.
He observed at p.495 (II Edition): "Pasturage is, in the large majority of cases in this country, public, in the sense that they belong to or are capable of being used by a community or classes of individuals in a village.
Such rights are necessary for the preservation of society.
" x x x x "To an agricultural population, pasture land is of the utmost importance and there is seldom a village in Bengal 'which has not a large piece of land attached to it for the grazing of cattle belonging to its inhabitants.
" The High Court judgment comments: "He (Justice Sarada Charan Mitra) then refers to Verse 237, Chapter VIII in Manu and also refers to Yajnavalkya.
Hence such customary right has been recognised in India from very early times.
" Our conclusion cannot therefore be deflected by the unfortunate deprivation, especially because we part with this judgment hopefully, counsel for the appellant having assured the Court that these observation will be communicat ed to his client.
This simplistic disposal of the disputed points may not be fair to the High Court, especially because the learned Judge has, in an avoidably erudite survey of Indian and English authorities considered two vital issues.
He has discussed at some length the plurality of legal issues: What is the nature, in terms of welt known interests or rights in or over property, of the right of pasturage ? Is it an easement under the Indian Easements Act or the Indian Limitation Act ? Is it profit a prendre and, if so, does it become a right or in 76 terest within section 2(h) of the Act ? Can an easement or right of common pasturage be claimed by a fluctuating body of persons the villagers ? Is such a customary right recog nised in Indian Law ? The learned Judge has followed up the discussion on these points with a further eloborate examination of one other principal issue and two subsidiary points which, may be expressed in his own words: "The question is whether customary right 'enjoyed ' by the villagers is a right belonging to other persons relating to the land compensed in the estate or to the produce thereof.
This leads to the consideration of two matters: (a) whether the villagers are other persons within the meaning of section 2(h) of the Estates Acquisition Act; and (b) whether such customary right 'belongs ' to the villagers or to any individual in the village.
" We have been taken on a lengthy tour (as we have already mentioned) of these areas of law by counsel on both sides but we do not think it necessary to cover them in this judgment at any length.
The conclusion of the learned Judge is that a grazing right or right of pasturage subject to the local requirements of a valid custom, is local law in India.
English and Indian decisions and other text book citations have been referred to by the High Court and read before us, but whether such a customary right iS law or not it cannot affect the question before us for the simple reason that s.3 of the Act expressly says that the provisions of the Act 'shah have effect notwithstanding anything to the contrary contained in any other law . and notwithstanding any usage or custom to the contrary. ' Undoubtedly, the plenary vesting of the entire rights of the intermediary under sections 4 and 5 is cut down by a customary right which reduces the ambit of the intermediary right and therefore is con trary to the provisions of ' s.5.
Moreover, when ss.4 and 5 declare unmincingly that the vesting shall be free from all incumbrances, a customary right of grazing which clearly is an incumbrance runs counter to this clause.
Certainly the definition of 'incumbrance ' cannot take in a right or inter est unless it is in favour of intermediaries, or other persons.
The learned Judge has considered whether villag ers constitute a corporation or person, whether fishermen in a body living in a village can be said to be persons.
He has also reasoned that since no compensation is paid by the State under the Act for the taking of the customary rights 'such provision for vesting would be void under the Constitution '.
Section 161, 183 of the Bengal Tenancy Act and ss.2(p), 5(aa)and 6(h) have all been considered in a learned chain of reasoning.
Reliance has also been placed on rulings and text books.
As earlier ' stated, we are disinclined to delve into the details of this discussion.
The villagers are clearly 'other persons ' and none of the ruling cited before us or referred to by the learned Judge has considered this point.
especially in the context of the extremely wide language used in section 2(h) of the Act.
It is inconsequential to say that the customary right is law.
Equally unhelpful is the finding that the right to graze vested in villagers is a public or quasi public right.
Even if it is, once it falls within the definition of 'incumbrance ' paring down the totally of intermediaries ' rights.
section 3 hits it down.
77 The conclusion is irresistible that the State 's defence is impregnable.
The appeal therefore deseves to be allowed and the suit dismissed which we do, directing the parties to bear their costs through out.
Once again we hark back to the human factor of taking away an invaluable right of humble villagers viz., the right of pasturage and feel confident that a Welfare State, deeply concerned with preservation of.
village economy, will not hesitate to provide fresh pastures.
for the preservation of agrestic life and agricultural prosperity.
| IN-Abs | Certain estate in a village was acquired under the West Bengal Estates Acquisition Act, 1953.
Section 3 of the said Act provides that the provisions of that Act shall have effect notwithstanding anything to the contrary contained in any other law or contract expressed or implied or any in strument or any usage or custom.
Section 4 authorities the State Government by a notification to declare that all estates and the rights of every intermediary in each such estate shall vest in the State free from all encumbrances.
Section 5 provides that on publication of such a notifica tion the estates to which the declaration applies shall vest in the State free from all encumbrances.
Section 2(h) defines an encumbrance as under: " 'incumbrance ' in relation to estates and rights of intermediaries therein does not include the rights of a raiyat or of an under raiyat or of a nonagricultural tenant, but shall, except in the case of land allowed to be retained by an intermediary under the provisions of section 5, include all rights or interests of whatever nature, belonging to intermediaries or other persons, which relate to lands comprised in estates or to the produce thereof.
" The respondents, some of the villagers, filed a suit against the appellant in a representative action claiming that the agrarian community in the village has always been enjoying the right of pasturage over the suit estate and that the said right survived in spite of the notification under the Act.
The appellants contended that no such right survived after the publication of the notice and in any event, even if such a right amounted to an incumbrance it came to an end by virtue of section 5 of the Act.
According to the respondents the said right was not an incumbrance within the meaning of the said Act and according to the appellant it was an incumbrance.
The suit and the appeal filed by the respondents were dismissed.
The High, Court, however, allowed the Second Appeal filed by the respondents.
Allowing the appeal by Special Leave, HELD: (1) The great socio economic objective of the Act if it is to be successful as a land reform measure requires that all the rights must vest fully in the State.
[74A C] (2) From the perspective of land reform objective, a specious meaning is derived by the definition of incum brance.
Ordinarily the court cannot cut down the defini tional amplitude given in the statute and there is no reason for departing from the said golden rule.
The Legislature used the expression incumbrance in its widest amplitude to cast the net wide so as to catch all rights and interest whatever be their nature.
[74C G] (3) There is no substance in the contention of the respondent that the collective, though uncertain body of villagers cannot be brought within the expression "or other persons".
The expression "intermediaries or persons other than intermediaries" embraces all persons, and the villagers who seek to exercise the right of grazing over the interme diaries ' lands are plainly "other persons".
[73 G H] (4) The conclusion of the High Court that the grazing right is a customary right does not carry the case of the respondents any further because the provisions of section 3 operate notwithstanding any usage or custom to the contrary.
[76 D F] 72 The Court observed that the present appeal raises a human problem and as 'grazing ' right is an important aspect of agrestic life the State should try to provide alternative grazing grounds to villagers when such rights are taken away [76A C]
|
Appeal No. 333 of 1969.
(Appeal by Special Leave from the Order dated the 22 8 1968 the Punjab and Haryana High Court in L.P.A. No. 427 of 1968).
B. Sen and H.K. Puri, for the appellant S.K. Mehta, P.N. Puri and K.R.Nagaraja.
for respondent No. 5.
The Judgment of the Court was delivered by BEG, J.
This appeal by special leave is directed against the judgement of a Division Bench of the High Court of Punjab & Haryana.
dismissing in litnine an appeal against a judgment and order of a 123 learned single Judge of that Court by which a Writ Petition made to the High Court had been granted.
We have been taken through the very detailed judgment of the learned single Judge where all the relevant facts are considered in detail.
The questions which have been raised before us are: firstly, whether the learned single judge was justified in considering the facts of the case and recording certain findings of fact without having even the advantage ' of the record of the proceedings of the Deputy Chief Settle ment Commissioner, and other officers who had given certain other findings in favour of the appellant; secondly, whether the learned single Judge 's findings of fact are correct; and, thirdly, whether any such apparent error was disclosed in the proceedings of the authorities acting under the Refugees Rehabilitation and Settlement Act as to justify interference by the High Court.
It was urged that a mistake apparent on the face of the record has to be one which does not necessitate delving deep into facts on record to discov er it after a re examination of questions of fact which ought to be left to the authorities empowered to give these findings.
It is true that the High Court does not sit as a Court of appeal to substitute its own judgment for that of the authorities which are empowered to give their decisions in such cases.
Apart from jurisdictional errors, the High Court may correct errors apparent on the face of the record.
An error to be apparent must, according to a rough test laid down by this Court in S.L. Hedge & Ors.
vs M.B. Tirumale(1), be one which does not take prolonged arguments to bring it to the surface.
These propositions are quite well estab lished.
It is, however, also a settled rule of practice of this Court not to interfere with the exercise of discretionary powers of High Courts under Article 226 of the Constitution merely because two views are possible upon the facts of a case.
Furthermore, in order to induce this Court to inter fere under Article 136 of the Constitution the the question must involve at least a matter of public or general importance or the injustice suffered by an individual due to an error of law should be so gross as to touch the con science of this Court in which case it would be deemed to be one of more than private importance.
The case before us is one of a competition between two auction purchasers of the same property put up for sale at two different auctions by the Managing Officer, Amritsar.
The first was in favour of the respondent Smt.
Rup Kaur, held on 20th August, 1959, and the second in favour of.
Beant Singh, the appellant, held on 10th May, 1961, on the assumption that the first auction could be cancelled.
The broad material facts, apparent from the original official record, which is now before us, are stated below.
At the auction sale on 20th August, 1959, held by the Managing Officer, Amritsar, Rup Kaur 's bid of Rs. 32,000/ , being the highest, was accepted and this fact was communi cated to her by a letter dated (1) [1960] (1) S.C.R. 890.
124 11th September, 1959, sent through her son and general attorney M.S. Grewal.
This letter was in the following terms: "Dear Sir/Madam, I am to inform you that your bid for Rs. 32,000/(Rupees thirty two thousands only) in respect of property No. B XII 18 S 14 (Portion I and III) Hide Market Amritsar has been accepted as per terms and conditions of the auction.
You have executed an indemnity bond in lieu of the earnest money due from you for adjustment against the compensation admissible on your verified claim(s).
For this purpose please furnish if you have not already done at the time of auction the registration number of your compensation application, so as to reach this office within seven days of the issue of this letter.
In case you intend to associate any other claimants with you in the purchase of the above mentioned property you should also submit affidavits of association duly completed by you and by each of your asso ciates, as per specimen attached to this office within the period specified above.
The balance of the purchase money, if any, found due from you, after scrutiny of your compensation application and that of your associates will be communicated to you in due course.
Yours faithfully, Sd/ District Rent & Managing Officer, Amri tsar".
The above mentioned letter showed that the contesting re spondent being a displaced person had executed an indemnity bond and had to furnish some information so that adjustment of the compensation due to her may be made against the amount which she had to deposit.
What was that information? On the margin of the front page of this letter is a partial ly illegible writing running from top to bottom of the printed full scap sheet on the original record. With some difficulty the following part only can be read: "You are required to submit the following documents regarding provi sional possession within seven days from the receipt of this letter failing which your case wilt be . " After "will be" nothing is found written.
It is disputed between the parties whether this writing in hand of the margin existed on the letter received by Smt.
Rup Kaur 's attorney.
Howev er, even looking at the copy on the original record, the meaning is not at all intelligible.
If it existed, it could only confuse and not enlighten the recipient as to what was to be done.
An order was then passed, on 8th March, 1961, which runs as follows: 125 "ORDER, Smt.
Roop Kaur through her attorney Shri M.S. Grewal the auction purchaser of unit No. B.XIII 18 S 14 (Portion I and III) Hide Market Amritsar has failed to deposit the balance sale price amounting to Rs. 28,000/ in spite of issue of registered notice for 2 1 61.
Her bid is, therefore, cancelled and earnest money forfeited.
Settlement Officer Jullndur may be requested to deduct Rs. 3200/ as earnest money out of CA No. P/J/I0110.
The applicant may be informed accordingly and property disposed of in the next sale programme.
Announced.
Dated 8 3 61.
Sd/ Distt.
Rent & Managing Officer, Am ritsar".
This order does not state that parties were duly heard.
It is disputed whether the notice mentioned in it, alleged to have been sent to Smt.
Rup Kaur on 18 12 1960 asking her to.
appear on 2 1 1961, was received by the contesting respond ent. ' Even if the learned Single Judge 's finding that it was not received at all by her were not correct, the time fixed for her appearance was too short.
Furthermore, the allega tion that she had been called upon, presumably by the letter dated 11 9 1959 to deposit Rs. 28,000/ was, on the face of it, untrue.
Despite a report in her favour by the Regional Settlement Commissioner, who investigated the facts and reported to the Chief Settlement Commissioner, that she had not been properly served, justice was denied to her by the Chief Settlement Commissioner on 26 6 1963.
The learned single Judge had examined the facts and pointed out other obvious illegalities at earlier stages showing that provisions of Rules 90 and 92 and 105 of the Displaced Persons Compensation & Rehabilitation Rules 1955 were not complied with in cancelling the sale.
According to Rup Kaur, who filed some application on 9th May, 1961, when she learnt what had happened, she had also filed an appeal against the order of 8th March, 1961, and made a request for extension of time for payment of the balance of the purchase money, but, on 14th June, 1961, the following order was passed by the Assistant Settlement Commissioner on her appeal: "This is an appeal against the order of Distt.
Rent & Managing Officer Amritsar dated 8 3 61 whereby he cancelled the appellants bid and forfeited the earnest money on account of his failure to deposit the balance price of property No. B. XIII 18 S 14 (Portion I & III) Hide Market Amritsar purchased by him at the open auction within the specified time.
For all intents and purposes this appeal is for extension of time to deposit the balance purchase price.
126 Extension of time is an administrative matter for which no judicial action is called for.
Dismissed.
Inform the appellant accordingly".
The learned Single Judge pointed out that the above mentioned order of the Appellate authority was also void for contravening the provisions of Rule 105 as interpreted by a Full Bench of the High Court of Punjab in Hira Lal Kher vs The Chief Settlement Commissioner, New Delhi(1), so that it was the duty of the Settlement Commissioner, to fix a date for hearing and to inform the 'appellant it was not discharged.
Apparently, the appeal was decided without informing the contesting respondent Smt.
Rup Kaur when her appeal would be heard.
Rule 105, which was thus contra vened, provides: "105.
Provisions of Order XLI of the Code of Civil procedure apply to appeals and revisions.
Except as otherwise expressly provided in the Act or in these rules, the procedure laid down in order XLI of the Code of Civil Procedure 1908 (Act V of 1908) shall,.
so far as may be applicable, apply to the hearing and disposal of ap.peals and revisions and the Act".
Furthermore, extension of time was not just an "adminis trative matter".
The question whether Rup Kaur had made out a case for it or not should have been quasi judicially considered and decided.
Indeed, if provisions of the Civil Procedure Code were applied to these appeals and extension of time was only a relief sought, the discretion to grant it or refuse it had to be judicially and judiciously exercised.
The order was made on an apparently wrong assumption.
The learned single Judge had restored the position to what it was when the letter dated 11th September, 1959, was received by M.S. Grewal, the son and general attorney of Rup Kaur, and had directed the Managing Officer to proceed in accordance with Law.
After having heard Learned Counsel for both sides at some length, we are not satisfied that any injustice has been done to the appellant who will, no doubt, get back whatever money he may have deposited.
We think, that, in the circumstances of the case, it could not be said that the learned single Judge 's conclusion, that provisions of Rule 90 had not been complied with in dealing with the case of Rup Kaur, who had suffered injustice, was erroneous.
The learned Judge had stated his conclusion as follows: "A mere reading of the above quoted provision shows that one of the conditions precedent entitling the Rehabilitation Authorities to cancel the sale and to forfeit the initial deposit is the service on the auction purchaser of a notice specified in sub rule (11), sub rule (12) or sub rule (13) of rule.
The petitioner admittedly complied with the requirement of the notice under sub rule (12) of rule 90 (Annexure "F") and no notice in terms of the requirements of subrule (13) of rule 90 was ever admittedly issued to or (1) 127 served on the petitioner.
In these circumstances, the Rehabilitation Authorities has no jurisdiction whatsoever for cancelling the sale in favour of the petitioner on account of alleged non payment of the balance of the purchase price and for forfeiting the initial deposit made by her.
In this view of the matter, the impugned orders cancelling the sale in favour of the petitioner and forfeiting her initial deposit are wholly without jurisdiction and cannot possibly be sustained.
Errors of law in the orders of the Chief Settlement Commissioner and the order Rehabilitation Authorities are apparent on their face inasmuch as the said orders have been passed in absolute ignorance of the statutory provisions referred to above".
We, therefore, see no reason to interfere with the view taken by the High Court.
Consequently, we dismiss this appeal.
But, in the circumstances of the case, the parties will bear their own costs.
M.R. Appeal dis missed.
| IN-Abs | The property under dispute was put up for sale at two different auctions by the Managing Officer, Amritsar.
The Rehabilitation authorities cancelled the bid of the first auction purchaser Smt.
Rup Kaur, holding that she had failed to deposit the sale price in spite of issuing her a regis tered notice, and at the.
second auction the appellant 's bid was accepted.
In a petition filed under article 226, a Single Judge of the High Court found the findings of facts to be erroneous and the impugned order void, and granted a writ in favour of Smt.
Rup Kaur.
On appeal, the decision was upheld by a Division Bench of the High Court.
Dismissing the appeal the Court, HELD: (1) The High Court does not sit as a court of appeal to substitute its own judgment for that of the au thorities which are empowered to give their decisions, but apart from jurisdictional errors, the High Court may correct errors apparent on the face of the record.
An error to be apparent must be one which does not take prolonged arguments to bring it to the surface.
The Single Judge 's conclusion that provisions of Rule 90 of the Displaced Persons Compensation and Rehabilitation Rules, 1955, had not been complied with, was not erroneous.
[123C D. 126E F] S.L. Hegde & Ors.
M.B. Tirumale [1960] (1) SCR 890, ap plied Hiralal Kher vs The Chief Settlement Commissioner New Delhi , referred to.
(2) It is a settled rule of practice of this Court not to interfere with the ' exercise of discretionary powers of High Courts under article 226 of the Constitution merely be cause two views are possible upon the facts of a case.
For interference by this Court, the question must involve at least a matter of public or general importance or the injus tice suffered by an individual due to an error of law should be so gross as to touch the conscience of this Court in which case it would be deemed to be one of more than private importance.
[123E F]
|
: Criminal Appeal No. 388 of 1976.
Appeal by Special Leave from the Judgment and Order dated the 26th & 27th July, 1976 of the Bombay High Court in Criminal Appeal No. 930/74.
Gobind Das, A.K. Mathur and A.K. Sharma for the Appellant.
M.N. Shroff for Respondent.
M.C. Bhandare, (Mrs.) Sunanda Bhandare, M.S. Narasimhan, K.C. Sharma and H.R. Khanna for both the parties.
The Judgment of the Court was delivered by KRISHNA IYER, J.
This criminal appeal, by special leave, raises a few questions of law under the (Act XXXV.
II of 1954) (for short, the Act), ingeniously urged by the appellants, a firm and its two partners, although the plea of 'guilty ' entered by the appellants before the trial court possibly as part of a 'plea bargaining ' which misfired at the appellate level makes short shrift of the exculpatory and extenuatory arguments urged by his counsel before us.
At the end of the weary forensic exercise we gathered what should have been told us first viz., that when the three accused were exam ined and charges read out they pleaded guilty, which would have abbreviated the hearing here had we known it earlier.
We proceed on the footing that the facts set out in the charge are true, that being the net price of a plea of guilt.
At this stage, the particulars and the setting of the prosecution facts need to be narrated.
On October 2, 1973 the Food Inspector of Nasik visited the small restaurant of the 'first accused firm at about 8.30 a.m., found a few litres of milk kept for sale and enquired about the quality of the milk.
He was told by accused NO. 3 (a partner Of the business, the other partner being his brother, accused No. 2) that it was cow 's milk.
Thereupon, he bought 660 mls of such milk from accused No. 3.
The statutory formalities under the Act were complied 104 with and one of the three sealed bottles was sent to the public Analyst from whom the report was received that (a) the milk was not cow 's but buffalo 's milk; (b) the fat deficiency was 16.3% and the milk contained 17.8% of added water.
A prosecution ensued, the Food Inspector was exam ined and cross examined and a charge was framed after the accused were questioned and their written statements filed into Court.
The charge read: "That you (accused nos.
1, 2 & 3) on or about the 2nd day of October 1973 at 8.30 a.m., at Nasik stored for sale adulterated buffalo milk with 16.3% of fat deficiency and 17.8% added water and also 'misbranded it as cow milk, and thereby committed an offence punishable under section 7(i) (ii) and 16(i) (A) (ii) within my cognisance.
" This charge elicited a plea of 'guilty ' from all the three accused.
Of course, each added that he did not sell 'raw milk ' and that the two brothers jointly ran the shop as a firm, that the said business was a small one where tea, milk and other articles were supplied, that the whole family, fifteen strong, lived on the paltry profits from the petty restaurant and so a lenient view be taken on sentence.
They further pleaded, in extenuation, that their servant pur chased the milk from the bazar, reported that it was cow 's milk and that it was on that basis that the accused told the Food Inspector that what was being sold was cow 's milk.
The trial Court, acting on the plea of guilt, convicted all the accused but viewed the offence as a somewhat venial devia tion where the adulteration, being only of water 'was not injurious to human health ' After adverting to a prior conviction of A 3 for a food offence, the Magistrate merci fully declined to apply the Probation of Offenders Act! The Magistrate observed in conclusion: 'It is necessary to give accused nos.
2 and 3 one more chance to improve themselves and do honest business '.
The firm, accused No. 1, was punished with.fine, accused nos.
2 and 3, the partners, also were ' punished under section 7(1) (ii) read with section 16(1) (e) (1) of the Act, each being sentenced to a fine of Rs. 500/ .
Even here, we may permit ourselves the stern remark that there is pathos and bathos in this manner of magisterial indulgence when society is the victim and the stakes are human health and, perhaps, many lives! It must be remem bered that the mandate of humanist jurisprudence is some times harsh.
The State appealed for enhancement of the sentence and the High, Court acceded and quashed the trial Court 's sen tence in allowance of the appeal and enhanced the punishment to.
six months ' imprisonment plus fine of Rs. 500/ each, the firm itself (A ) being awarded a fine only.
The basic factor which led to enhancement of the sen tence by the High Court was that, in the High Court 's view, the benefit of proviso (1) to section 16(1) stood repelled, and so the minimum sentence set by the statute was obligatory.
The learned Magistrate 's 'kindly ' eye overlooked this compulsive provision.
105 Wide ranging defences were valiantly urged by the appellants before us but without merit.
For, once a person pleads guilty and the Court accepts it, there is no room for romantic defences and irrelevant litanies based on the business being the mainstay of a large family, both broth ers, the only bread winners, being jailed, bazaar coming milk brought by the servant unwittingly turning out to be buffaloes ' milk and what not.
How can a factual contention of innocence survive a suicidal plea of guilt or tell tale contrition wash away the provision for minimum sentence ? Therefore, what is permissible is the sole legal submission that the offence falls under the proviso (i) to section 16(1) which, if good, relieves this Court from imposing the com pulsory minimum sentence of six months ' imprisonment if sound grounds therefore exist.
The desperate appellants, undaunted by one of them having been strained by a prior conviction for a food offence, half heartedly flirted with the misericordious submission that the Probation of Offend ers Act be applied to the economic offenders.
The futile plea has to be frowned off, being more a gamble in foolhardy courage than one showing fidelity to precedents or fairness to forensic proprieties.
We state it to reject it so that like delinquents may not repeat it later in similar circum stances.
True, petty milk vendors and poor victuallets, young apprentices in adulteration offences, trivial crimi nals technically guilty and others of their milk, especially when rehabilitation is feasible or repetition is impossible and the social circumstances promise favourable correctional results,_ may call, the compassionate attention of the Court to the provisions of the probation law unless Parliament pre empts its application by express exclusion (The law in this regard has since been tightened up).
Equally true, that a few guileless souls in the dock, scared by the some times exaggerated legal finality given to public analysts ' certificates and the inevitable incarceration awaiting them, may enter into that dubious love affair with the prosecution called 'plea bargaining ' and get convicted out of their own mouth, with a light sentence to begin with, running the risk of severe enhancement if the High Court 's revisional vigilance falls on this 'trading out ' adventure.
This Court has animadverted on this vice of 'plea bargaining ' in Mur lidhar vs State of Maharashtra(1).
Maybe, something like that happened here.
as was urged before us by Shri Gobind Das for the appellants, relying, as he did, on the circum stances that the accused had cross examined the prosecution witness as if he were innocent, added a rider to his plea of guilt and sown the seeds of a valid defence even as he was asking for mercy in punishment.
We do not explore the deeper import of the quasi compounding element or something akin to it, except to condemn such shady deals which cast suspicion on the integrity of food inspectors and the admin istration of justice.
This preliminary screening leaves for consideration only one legal plea for paring down the sentence plus adventi tious detection of another, built on the shortfalls in a slipshod certificate issued by the public analyst.
The sentencing scheme of the Act is this.
The offences under section 16(1) are classified in a rough and ready way and while all of them (1) 106 are expected to be viewed sternly carrying a standard prison sentence, a few of them are regarded as less serious in certain situations so that the Court, for socially adequate, individually ameliorative reasons,may reduce the punishment to below the statutory minimum.
The proviso (i) to s.16(1) takes care of this comparatively lesser class which may, for easy reference, be called 'proviso offences '.
This dichotomy of food crimes throws the burden on the Court of identifying the category to which the offence of the accused belongs.
This Court has earlier held and to this we will later revert that even if the offence charged falls under both the categories i.e, proviso offences and others, there being admittedly, some overlap in the definition the delin quent earns the severer penalty.
In this view, to earn the eligibility to fall under the proviso to section 16(1), the appellant must establish not only that his case falls posi tively under the offences specified in the said proviso but negatively that his facts do not attract any of the non proviso offences in section 16(1).
Adulteration of food is so dangerous and widespread and has so often led to large human tragedies, sudden or slow, insidious or open, that social defence compels casting of absolute liability on the criminal, even if the particular offence is committed with an unsuspecting mens.
To take risks in the name of very gullible dealers or very ignorant distributors, when the consequences may spell disaster on innocent victims, few or many, is legislative lackadaisical conduct, giving the wildest hostage to fortune.
So it is that mens rea is excluded and proof of actus reum is often enough.
The story of small restauranteurs unwittingly vending milk, as is alleged here, is irrelevant to culpability.
To quantum of sentence, personal circumstances may be relevant, subject to the minimum set.
But the perti nent query is, does the exception to the minimum set out in the proviso apply here ? Section 16(1 ) and proviso (i) may now be set out for facility of discussion: "16(1) If any person (a) whether by himself or by any other person on this behalf . or stores, sells or distributes any article of food (i) which is adulterated or misbranded or the sale of which is prohibited by the Food (Health) authority in the interest of public health; * * * * * * he shall, in addition to the penalty he may be liable under the provisions of section 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to six years, and with fine which shall not be less than one thousand rupees: 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 107 adulterated under sub cl.
(1) of clause (i) of section 2 or misbranded under sub clause (k) of clause (ix) of that section * * * * * the Court may for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term 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.
" The key legal issue, as earlier indicated, is as to whether proviso (i) to section 16(1) takes in the offence in question.
Eligibility to the commiserative consideration set out in the said proviso depends on whether the adulteration of the article of food is of the species exclusively covered by sub cl.
(1) of section 2(i) or it is 'mis branded ' under subcl.
(k) of cl.
(ix) of that section.
We say 'exclusively ', for reasons which have been set out in Murlidhar(1).
One of us, in that ruling, has argued: "5.
It is trite that the social mission of food laws should inform the interpretative process so that the legal blow may fall on every adulterator.
Any narrow and pedantic, literal 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 jurisprudence must depart from the old canons, which make indulgent 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 Section 2(1).
Sub clause (a) of Section 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 formal evidence of representations or prejudice as stated in the section does not merit consideration being a quibble over a trifle.
" x x x x "9.
Judicial compassion can play upon the situation only if the offence is under sub clause (i) of clause (a) of Section 16(1) and the adulteration is one which falls under subclause (1) of clause (i) of Section 2.
Secondly, the proviso also applies if the offence is under sub clause (ii) of clause (i), that is to say, the offence is not one of adulteration but is made up of a c ontravention of any of the other provisions of the Act or of any rule made thereunder.
In the present (1) 108 case we have already found that the accused is guilty of an offence of adulteration of food under Section 2(i) (a).
Therefore, proviso (ii) is out.
Proviso (i) will be attracted, according to Shri Bhandare, if Section 2 (i) (1) applies to the species of adulteration committed.
In our view, the only sensible understanding of proviso (i) is that the judicial jurisdiction to soften the sentence arises if the offence of adulteration falls only under sub clause (1) of clause (i) of Section 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 discarded 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 reference and obscrurity is overdue.
Be that as it may, in the present case Section 2(i) (a) applies and Section 16(1)(a) has been breached.
Therefore the proviso cannot be applied in extenuation and the conviction of the High COurt has to be upheld.
" A similar reasoning has found favour with this Court (two of us were party thereto) in Prem Ballab vs State (Delhi Admn.)(1).
If the advantage of proviso (i) to section 16(1) is liable to be forfeited by the offence falling under any other definition in section 2 than 2(i) (1) or 2(ix) (k), the judicial focus turns on whether, in the present case, any other sub clause of section 2(i) or section 2(ix) is attracted.
The High Court has .taken the view that other sub clauses of section 2(i) than section 2(i) (1) apply and therefore the appellant is Out of Court in invoking the proviso to section 16(1).
There was much argument that addition of water to milk did not amount to 'adulteration ' within the meaning of section 2(i), (b) or (c) or (d).
Plausible submissions were made in that behalf by Shri Govind Das but obviously we do not agree.
However, the details of the debate at the bar can be skirted because the appellants, inescapably, fall under section 2(ix) (c) which reads: "2(ix) (c): 'misbranded ' an article of food shall be deemed to be misbranded if it is sold by a name which belongs to another article of food.
" Indisputably, what was sold was 'buffalo 's milk '.
Indeed, the Public Analyst 's Report indicates that what was seized and analysed was 'buffalo 's milk ', misbranded as cow 's milk an offence under section 2(ix) (C) of the Act and accused No. 2, Kisan Trimbak, has admitted, with a laconic 'no ', in answer to the question as to whether he had anything to say about the Report of the Public Analyst.
The third accused has followed suit.
The charge framed specifically mentions the offence under section 7(2) bearing on misbranding and the plea is one of 'guilt '.
Moreover, the evidence of P.W. 1, Food Inspector, also goes to show that the food sold was stated to be cow 's milk.
Misbranding, in the (1) Criminal Appeal No. 287 of 1971 decided on 15 9 76, 109 present case, cannot be and is not contended to be one under section 2(ix) (k) which deals with labelling in accordance with the requirements of the Act or the Rules.
That is not the offending sale in the present case which is one of lobbing off buffalo 's milk as cow, s milk.
The narrow point that survives is whether 'cow 's milk ' is an article of food different from 'buffalo 's milk ', so that the sale of one by using the name which belongs to the other can be said to attract section 2(ix) (c).
While 'milk ' is a generic term, the identity of the article of food.
is de pendent on the source.
'Cow 's milk ', 'buffalo 's milk ', 'goat 's milk ', camel 's milk ' 'horse 's milk ', 'donkey 's milk ' are all different from each other and are ' consumed by different sections of people, sometimes for ailment, some times for improving health and, in the case of 'horse 's milk ' for exhilaration and nourishment.
Shortly put, they are different articles of food and the name of one cannot be appropriated for the other by a seller without being tracked down by section 2(ix)c).
The housewife is a competent interpreter of statutes dealing with household articles; the consumers ' understanding of the expressions used in legislation relat ing to them is an input in judicial construction.
Law, in no branch, is an absolute abstraction or sheer mystique; it regulates the business of life and so its meaning must bear life 's impress.
Thus viewed 'cow 's milk ' is different from 'buffalo 's milk ' and misbranding is complete.
And worse, the species of misbranding is that under section 2(ix) (c).
Thus the conviction under 'section 16(1) (a) ' and the exclu sion of the proviso (i) are justified, subject to what we have to say about the Public Analyst 's Report and the criticism levelled thereon which bears on the guilt of accused No. 2.
A material circumstance which has been pressed before us not as a commisserative but as an absolvatory circum stance, is that only one of the accused (accused No. 3), according to the prosecution, was present when the misbrand ed article was sold to the Food Inspector and that accused No. 2 could not be found guilty of sale of a misbranded article of food by reading into the situation section 17 (1).
The short argument is that the liability of a partner of the firm, when another partner has committed the offence, de pends on the application of section 17 (1 ) or (2) of the Act.
Section 17(2) makes the absent accused vicariously guilty if 'it iS proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of the other partner '.
In the present case, there is no evidence led by the prosecution in proof of this requirement of mens rea against accused No. 2.
Which means that section 17(2) is inapplicable to create liability against accused No. 2.
Even so, section 17(1) may apply, if the absent accused is in charge of or responsible for the conduct of the business of the firm, the temporary absence of a partner at the time of the offending act being immaterial.
In the present case.
both the brothers have been in charge of the business and so the substantive part of section 17(1) will apply unless the proviso salvages the second accused.
This provi so reads: "Provided that nothing contained in this sub section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without 110 iris knowledge or that he exercised all due diligence to prevent the commission of such offence.
" If the accused concerned is absent at the time of the com mission of the offence and circumstances are eloquently such as to lead to the clear inference that there was no proof of scienter regarding the commission of the particular offence, knowledge being absent, immunity from conviction for that offence follows.
In the instant case, the 2nd accused was absent at the time the milk was sold.
Furthermore, the quantity of milk in the shop was bought from the bazar by the servant in the shop.
The crucial fact which ropes in the accused for the offence of 'mis branding ' under section 2(ix)(c) is that the article, when sold, was represented to be 'cow 's milk '.
This was an adventitious representation made on the spot by the third accused on his own, so far as the evidence discloses.
It is not as if the business of the brothers was to palm off buffalo 's milk as cow 's milk on unwary buyers.
Had there been a well grounded suggestion that this sharp practice had been resorted to more than once we would unhesitatingly have inferred knowledge of the misbranding even on the part of the absent partner.
Such is not the case and so the 2nd accused is entitled to acquittal on this charge.
Counsel for the appellants correctly criticised the inadequacy of the Public Analyst 's certificate.
Had there been a plea of 'not guilty ' we might have been forced to scrutinize how far the perfunctoriness of the Public Analyst has affected the substance of his conclusions.
It is not enough to give a few mechanical data.
It is more pertinent to help the court with something more of the process by which the conclusion has been arrived at.
We need not probe the matter further, notwithstanding the decisions reported in two English cases (cited before us)(1) because the plea of 'guilty ' silences the accused.
We accordingly dismiss the appeal, although we leave it to the State Government, having regard to the fact that the trade is petty, that the adulteration has not been shown to be by any noxious substance and that the harm done has not been of any magnitude, to consider whether it should exer cise the power of clemency to remit the sentence by three months so that it may be in tune with the provisions of the Act as recently amended.
These observations notwithstand ing, as aforesaid, the appeal stands dismissed.
V.P.S. Appeal dis missed.
(1) [1869] 1 Q.B.D. 202 & ,482.
| IN-Abs | Section 16(1)(a)(i) of the , provides inter alia that, if any person whether by himself or by another person on his behalf stores or sells any article of food, which is adulterated or misbrand ed,he shall, in addition to the penalty he may be liable under section 6, be punishable which imprisonment for a term which shall not be less than 6 months, etc.
The first proviso to the sub section provides that if the offence is under sub clause (i) of clause (a) and is with respect to an article of food which is adulterated under section 2(i)(1) or misbranded under section 2(ix)(k), the Court may, for any ade quate and special reasons, impose a sentence of imprisonment for a term less than 6 months.
Section 17(1) provides that where an offence under the Act has been committed by a firm every person who at the time the offence was committed was incharge of or responsible for the conduct of the business of the firm shall be deemed to be guilty of the offence.
The proviso to the sub section states that nothing contained in the sub section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent its commission.
Under section 17(2) notwithstanding anything contained in sub section
(1) where an offence under the Act has been committed by a firm and it is proved that the offence has been committed with the consent or connivance or is attributable to any neglect on the part of a partner, such partner shall be deemed to be guilty of the offence.
In the present case accused 2 and 3 were partners carry ing on the business of a small restaurant (accused 1).
The Food Inspector visited the restaurant and noticing some milk kept for sale enquired about its quality.
Accused 3 told him that it was cow 's milk.
The 2nd accused was then not present in the restaurant.
The Food Inspector then bought some of the milk from the 3rd accused and sent it to the Public Analyst after complying with the statutory formali ties.
The Public Analyst reported that the milk was buffa lo 's milk, that there was deficiency of fat and that the milk contained added water.
The three accused were charged with the offence punishable under section 7(i) and (ii) and section 16(1A)(ii).
They pleaded guilty and were sentenced to pay a fine.
On appeal by the State, the High Court, holding that the accused cannot invoke the proviso to section 16(1)(a)(i) enhanced the sentence on the 2nd and 3rd accused to the minimum term of imprisonment of 6 months.
Dismissing the appeal to this Court, HELD: (1) The Probation of Offenders Act is not applica ble to the accused in the circumstances of the case.
[109 G] (2) Addition of water amounts to adulteration within the meaning of section 2 (i) (b) (c) or (d).
[108 E] (3) To earn the eligibility to the benefit of the provi so to section 16(1)(a)(i) the accused must establish not only that his ease fails positively under the offences speci fied in the said proviso, but negatively, that his acts do not attract any of the non proviso offences in section 16(1).
The application of the proviso depends on whether the adultera tion or misbranding of the article is of the species exclu sively covered by section 2(i)(1) or section 2(ix)(k).
In judicial construction, the consumers ' understanding of legislative expressions is relevant and so viewed, 'Cow 's milk ' is different from 'buffalo 's milk '.
The misbranding therefore falls under section 2(ix)(c) which provides that an article shall be deemed to be misbranded if it is sold by a name which belongs to another article of food, 103 and does not fall under section 2(ix)(k).
Therefore, the exclu sion of the first proviso and the conviction of all the accused under section 16(1)(a) are justified.
[106 C; 107C; 109D] Murlidhar vs State of Maharashtra and Prem Ballabh vs State (Delhi Admn.) Criminal Appeal No. 287 of 1971 decided on 15 9 76, followed.
(4) The 2nd accused however is not guilty of selling the misbranded article.
The liability of a partner depends on the application of section 17(1) or (2).
Section 17(2) is not applicable to the absent 2nd accused as there is no evidence to prove the required mens rea set out in the sub section.
Though section 17(1) applies, the second accused would not be guilty of this charge because of the proviso to that sub section.
The evidence shows that the second accused was absent at the time of the sale, that the milk was bought from the bazar by the servant in the restaurant and that it was not as if the two accused were palming off buffalo 's milk and Cow 's milk, but the particular representation by the 3rd accused was an adventitious One, made by him on his own on the spot.
[109E F; 110 B] [The Public Analysts report should not be prefunctory giving a few mechanical data.
It should help the Court with something more of the process by which his conclusion has been arrived at].
|
217 of 1955.
Under article 32 of the Constitution of India for the enforcement of Fundamental Rights.
N. C. Chatterjee, (Vir Sen Sawhney and Ganpat Rai, with him), for the petitioners.
Lal Narain Sinha, (Bajrang Sahai and section P. Verma, with him), for respondent No. 2. 1955.
October 28.
The Judgment of the Court was delivered by IMAM J.
The petitioners have filed this application under article 32 of the Constitution claiming that the buildings and lands as set out in the Schedule annexed to the petition and marked "A" (hereinafter referred to as the disputed properties) did not vest in the State of Bihar under the provisions of the 990 Bihar Land Reforms Act 1950 (hereinafter referred to as the Act).
Petitioner No. I in his individual capacity was at one time the owner, of the disputed properties which lie within Touzi No. 28 of the Collectorate of Hazaribagh.
On the 29th of December, 1947 petitioner No. I as owner leased out the disputed properties to a Company known as Mineral Development Ltd. (hereinafter referred to as the Company).
The Company took possession of the disputed properties and has been paying rent.
On the 7th of April, 1949 petitioner No. I in his individual capacity executed a deed of settlement whereby he transferred the disputed properties to three trustees, namely, himself and petitioners 2 and 3.
The Company has been paying rent to the trustees since then.
The Act came into force on the 25th of September, 1950.
On the 3rd of November, 1951 the State Government issued a notification under section 3(1) of the Act declaring that the estate of petitioner No. I in his individual capacity specified therein had passed to and become vested in the State.
On the 26th of October, 1953 a notice under section 4(h) of the Act was issued by the Collector to the Company, and on the 4th of March, 1954 the State Government issued a notification under section 3(1) of the Act purporting to vest in the State the properties covered by the above mentioned deed of settlement and another deed of settlement with which we are ' not concerned.
The Company instituted a title suit No. 33 of 1951 against the State of Bihar in the Court of the Subordinate Judge, Hazaribagh basing its claim on a mining lease executed by petitioner No. I in his individual capacity the genuineness of which was challenged by the State.
Petitioner No. I in his individual capacity was made a party to this suit.
The Company also instituted a title suit No. 9 of 1954 against the State of Bihar to which petitioner No. I in his individual capacity was made a party challenging the legality of the issue of notice dated 26 10 1953 under section 4(h) of the Act.
On the 11th of November, 1954 the State of Bihar filed title suit No, 53 of 1954 to which the Company, 991 petitioner No. I in his individual capacity, the three trustees and others were made parties.
By this suit the State of Bihar challenged the genuineness of the lease in favour of the Company and the deed of settlement in favour of the trustees.
The real question for determination is, what vested in the State on the publication of the notification under section 3 and by virtue of the provisions of section 4(a) of the Act? According to Mr. Chatterjee the disputed properties did not vest in the State, whatever else may have.
Having regard to the definition of "estate" in the Act, if anything vested in the State on the publication of a notification it was the land comprised in the notified estate.
Although the disputed properties stood on the land in the notified estate, they did not vest in the State, because the definition of "estate" speaks of land only and not of any building on it.
The notification under section 3 was a mere declaration and actual vesting took place under section 4(a).
On the date of vesting the disputed properties were not used as office or cutchery for the collection of rent of the notified estate of petitioner No. 1, who had parted with his right, title, and interest therein long before the Act was enacted and the publication of the notification under section: 3.
Mr. Sinha on behalf of the State of Bihar, on the other hand, contended that on a perusal of the provi sions of sections 4, 5 and 7 of the Act, it would appear that the Act contemplated something more than the ' land in an estate vesting in the State and the disputed ' properties could and did vest in the State on the publication of the notification under section 3.
In our opinion, it is of little consequence in the present case whether the notified estate vested in the State by reason of the publication of the notification under section 3 or by virtue of the provisions of section 4 of the Act, because in either case a vesting did take place.
Although the word land is used in the definition of "estate", the provisions of sections 4, 5 and 7 show the necessary intention to include something more than the land when an estate vests in the State.
Under section 4(a) it is not only the 992 estate but also buildings of a certain description and other things which vest in the State absolutely on the publication of a notification under section 3.
Under sections 5 and 7 the buildings mentioned therein also vest in the State, because the buildings in question are deemed to be settled by the State with the intermediary in possession.
This could only be on the supposition that these buildings vested in the State and the person in possession held the same as settlee under the State.
In the present case on the date of the publication of the notification under section 3 the disputed properties were said to be in the possession of the Company as lessee and the petitioner No. I had no right, title or interest therein as he had transferred his lessor 's reversion to trustees by a deed of settlement.
We may assume, therefore, that on the date of publication of the notification the disputed properties were not used primarily as office or cutchery for the collection of rent of the notified estate of petitioner No. 1 It.
becomes, therefore, necessary to interpret the word "used" occurring in section 4(a).
It is to be noticed that this clause of section 4 does not expressly state that a building used primarily as office or cutchery for the collection of rent must be so used at the date of the publication of the notification.
In this clause the words "used primarily as office or cutchery for the collection of rent of such estate" must be read in the light.
of the provisions of section 4(h) where similar words are employed.
Under section 4(h) the Collector has the power to make inquiries in respect of any transfer of any kind of interest in any building used primarily as office or cutchery for the collection of rent of such estate, if the transfer had been made at any time after the first day of January, 1946.
If on due inquiry the Collector is satisfied that such transfer was made with the object of defeating he provisions of the Act or causing loss to the State or obtaining higher compensation, then the Collector may, after giving notice to the parties concerned and hearing them and with the previous sanction of she State Government, annul the transfer and dis 993 possess the person claiming under it.
These provisions clearly indicate that if any building was used primarily as office or cutchery for the collection of rent and such building had been transferred after the first day of January, 1946, the transfer could be annulled if the circumstances mentioned in section 4(h) had been established.
That is to say, under. ' these provisions the use to which the building was put previous to its transfer after the first day of January, 1946 and not thereafter was what the Collector was concerned with and not to what use it had been put after its transfer after the first day of January, 1946.
To hold otherwise would be to make the provisions of section 4(h) meaningless.
When a proprietor transfers any such building ' it necessarily follows that the building thereafter was not used by him as office or cutchery for the collection of rent of his estate.
If the transfer was made before the first day of January, 1946 the provisions of section 4(h) would not apply and such a transfer would not be liable to be annulled and the building so transferred would not vest in the State on the date of the publication of the notification covering the estate on which such building stands.
If, on the other hand, this transfer was made after the first day of January, 1946, a building comprised in a notified estate, which was used immediately previous to the date of the transfer primarily as office or cutchery for the collection of rent of such estate the transfer would be liable to be annulled under section 4(h) and it would vest absolutely in the State on the publication of the notification and the provisions of section 4(a) must be read accordingly.
It would be unreasonable to construe the provisions of section 4(a) in the way suggested by Mr. Chatterjee.
The scheme of the Act has to be borne in mind and the provisions of sections 4(a) and 4(h) have to be read together.
The petitioners had not asserted in their petition that the disputed properties were not used as office or cutchery for the collection of rent of the notified estate of petitioner No. I before the first of January, 1946 or before the lease in favour of the Company.
On behalf 994 of the State, on affidavit, it has been stated that the disputed properties were all along used as cutchery before the creation of the lease and that they were not being used in connection with any mining operation.
In our opinion, if as a result of the inquiry under section 4(h) the transfer of the disputed properties by the petitioner No. I is annulled the disputed properties must be regarded as having vested in the State, because they were used as office or cutchery for the collection of rent previous to the transfers made by the petitioner No. 1.
It was next contended that section 4(h) is ultra vires the Constitution, because it imposed an unreasonable restriction on the fundamental right of the petitioners to realize rent from the Company, as the transfer in its favour was imperilled by the notice issued to it under section 4(h).
No appeal or review was provided in the Act against the order of the Collector issuing notice or an order of annulment made by him.
The Collector was left with absolute power to annul a transfer and to dispossess a person in possession thereunder.
Section 4(b), however, does direct the Collector to give reasonable notice to the parties concerned and to bear them.
Such annulment or dispossession which he may order, must be with the previous sanction of the State Government and he is compelled to do so on terms which may appear to him fair and equitable.
The power is, therefore, not quite so absolute or arbitrary as suggested.
Assuming, however, that the Collector has very wide powers, it is to be remembered that section 4(h) is a part of the law of acquisition of estates as enacted by the Act and is an integral part of the machinery by which acquisition of an estate takes place.
The Act is a valid law of acquisition and its whole purpose may be defeated unless there was some such provision as contained in section 4(b).
The Act being a law for acquisition of estates the question of it or section 4(h) of it imposing any unreasonable restriction on the fundamental rights of the petitioners does not arise.
In any event the Act including sect ton 4(h) is protected by article 31 A of the Constitution.
The petition is accordingly dismissed with costs.
| IN-Abs | On the 29th of December, 1947, petitioner No. 1 executed a lease to C (a company) of certain properties consisting of lands and buildings comprised in the estate belonging to him.
Subsequently, in 1949 he executed a deed of settlement whereby he transferred the properties to three trustees, namely, himself and petitioners 2 and 3.
Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950) came into force on the 25th of September, 1950, and on the 3rd of November, 1951, the State of Bihar issued a notification under section 3(1) of the Act declaring that the estate of petitioner No. 1 had passed to and become vested in the State.
A notice under section 4(h) of the Act was issued by the Collector to C and on the 4th of March, 1954, the State Government issued a notification under s.3(1) purporting to vest in the State the properties in question.
It was contended for the petitioners that the buildings standing on the land comprised in the notified estate did not vest in the State, on the ground (1) that the estate of the petitioner No. 1 did not vest in the State under section 3 of the Act but by virtue of the provisions of section 4, (2) that the definition of "estate" in the Act speaks of land only and not of any building on it, (3) that on the date of vesting, the buildings were not used as office or cutchery for the collection of rent of the notified estate within the meaning of section 4(a), and (4) that section 4(h) is ultra vires the Constitution as it imposes an unreasonable restriction on the fundamental right of the petitioners to realise rent from the company.
Held, that (1) whether the estate of petitioner No. I vested in the State by reason of the publication of the notification under section 3 or by virtue of the provisions of section 4 was of little consequence as in either case a vesting took place; (2) although in the definition of "estate" the word land is used and there is no mention of the word building, the provisions of sections 4, 5 and 7 show the intention of the legislature to include some 989 thing more than merely the land of a notified estate as vesting in the State.
Under section 4(a), buildings of a certain description and other things vest in the State absolutely on the publication of a notification under section 3.
Under sections 5 and 7, the buildings mentioned therein are deemed to be settled by the State with the intermediary and this could only be an the supposition that the buildings vested in the State, the intermediary being a settlee under the State; (3) sections 4(a) and 4(h) must be read together.
Under section 4(h), the use to which the building was put previous to its transfer after the first day of January, 1946, and not thereafter was what the Collector was concerned with and not to what use it had been put after its transfer after the first day of January, 1946.
If a transfer was made after the first day of January, 1946 of a building comprised in the notified estate which was used immediately previous to the date of transfer primarily as office or cutchery for the collection of rent of such estate the transfer would be liable to be annulled under section 4(h) and the building would vest absolutely in the State on the publication of the notification and the provisions of section 4(a) must be read accordingly; and (4) the Collector 's powers under section 4(h), wide as they are, are not quite so absolute or arbitrary as suggested.
section 4(h) is a part of a validly enacted law of acquisition of estates and is an integral part of the machinery by which acquisition of an estate takes place.
The Act or section 4(h) of it imposing any unreasonable restriction on the fundamental right of the petitioners, therefore, does not &rise.
The Act including section 4(h) of it, is protected by article 31 A of the Constitution.
|
Appeal No. 2206 of 1968.
From the Judgment and Order dated the 29 3 1968 of the Rajasthan High Court in D.P. Civil W.P. No. 257/68.
S.M. Jain, for the appellant B. Dutta, for respondent No. 1 Miss Maya Rao, for respondents Nos. 2 5.
The Judgment of the Court was delivered by KHANNA, J.
This appeal on certificate is against the order of the Rajasthan High Court dismissing in limine the petition under articles 226 and 227 of the Constitution of India, field by the appellant against the ' Union of India, the State of Rajasthan and two others, praying for quashing the demand made from the appellant in respect of royalty.
The appellant took on lease 180 acres of land from the Government"of Rajasthan on June 18, 1962 for the purpose of mining gypsum ore for a period of 20 years.
Section 9(2) of the Mines and Minerals (Regulation and Development),Act, 1957 relates to.
royaltries in respect of mining leases.
According to that provision, the holder of a mining lease granted on or after the commencement 138 of the said Act shall pay royalty in respect of any mineral removed or consumed by him or by his agent, manager, employee, contractor or sub lessee from the leased area at the rate for the time being specified in the Second Sched ule in respect of that mineral.
The Second Schedule provides at item No. 13 the rate on which royalty, etc., in re spect of gypsum is to be paid.
According to that item at the relevant time, royalty would .be at the rate of Rs. 1.25 per tonne of gypsum containing 85 per cent and above CaSO42H20 and at the rate of 75 paise per tonne of gypsum containing less than 85 per cent of CaSO42H20.
Royalty was demanded from the appellant in respect of gypsum won by him at the rate of Rs. 1.25 per tonne.
The case of the appellant, however, is that the gypsum which was won by him contained less than 85 per cent of CaSO42H20.
As against that, the stand taken by the respondents is that the appellant failed to furnish.
the analysis reports from a standard laboratory to show that gypsum won by him contained less than 85 per cent CaSO42H20.
Revision filed by the appellant against the decision of the Rajasthan Government to charge royalty at the rate of Rs. 1.25 per tonne was dismissed by the Central Government.
The High Court dismissed the writ petition on the ground that it involved determination of disputed questions of fact.
It was also observed that the High Court should not in exercise of its extraordinary jurisdiction grant relief to the appellant when he had an alternative remedy.
After hearing Mr. Sobhagmal Jain on behalf of the appellant, we see no cogent ground to take a view different from that taken by the High Court.
There cannot, in our opinion, be any doubt on the point that the extent of purity of the gypsum won by the appellant is a question of fact.
It has also been brought to our notice that after the dismissal of the writ petition by the High Court, the appellant has filed a suit, in which he has agitated the same question which is the subject matter of the writ petition.
In our opinion, the appellant cannot pursue two parallel remedies in respect of the same matter at the same time.
Mr. Sobhagmal points out that the suit brought by the appellant has been dismissed in default and that an applica tion for the restoration of the suit has been filed in the trial court.
Learned counsel for the.
respondents state that they would not oppose the application for restoration of the suit.
We, therefore, dismiss the appeal but with no order as to costs.
M.R. Appeal dismissed.
| IN-Abs | The appellant had leased some land from the Government of Rajasthan for mining gypsum.
A dispute .arose between the parties regarding the rate of royalty payable by the appel lant.
The appellant 's revision petition against the les sor 's decision to charge at the higher rate was dismissed by the Central Government and then his writ petition was dis missed by the High Court on the grounds that the matter involved determination of disputed questions of fact, and that an alternative remedy has been availed of by the appel lant.
Dismissing the appeal the Court,.
HELD: The extent of purity of the gypsum won by the appellant is a question of fact. 'Furthermore, after the dismissal of the writ petition the appellant has filed a suit, in which he has agitated the same question which is the subject matter of the writ petition.
The appellant cannot pursue two parallel remedies in respect of the same matter at the same time.
|
il Appeal No. 1936.
of 1972.
Appeal by Special Leave from the Judgment and Order dated the 2nd and 3rd day of August, 1971 of the Bombay High Court in Second Appeal No. 1064 of 1970.
V.M. Tarkunde, S.B. Wad, (Mrs.) J. Wad and AMiss) Manek Tarkunde for the Appellant.
D. V. Patel, S.C. Pratap and P.H. Parekh for Respondent No. 1 M.N. Shroff for respondent No. 2.
This appeal by special leave is directed against the judgment of the High Court of Bombay dated August 2/3, 1971 by which the plaintiff 's suit for declara tion and injunction has been dismissed.
The plaintiff is an association of hoteliers and restaurant keepers doing business within the, local limits of Sangli Municipality in the State of Maharashtra.
Under the provision of the Prevention of Food Adulteration Act, 1954 hereinafter referred to as 'the Act ' and the rules framed thereunder by the Maharashtra Government the members of the plaintiff association were required to take a licence for the business conducted by them.
The Municipality insisted that the members of the plaintiff Association should pay two sets of fees one under item 1 and another under items 3 to 8 of Appendix (1) to the Schedule.
These fees were demanded by the Municipality on the ground that the members were both manufacturers and retail dealers and were, therefore, liable to pay fees in both these capacities.
The Appendix (1) to the Schedule was a part of the rules framed by the Maharash tra Government under section 24 of the Act.
The plaintiff, howev er, contended that the members of the plaintiff Association were not liable to pay two fees as they were essentially retail dealers and would have to pay fees under items 3 to 8 of.
the appendix because they could not be said to be either wholesale dealers or manufacturers.
The plaintiff also 141 claimed a declaration that the Municipality had no right to charge two fees from the plaintiff and also prayed.
for an injunction restraining the Municipality from doing so.
There was a prayer for refund of Rs. 3,990/ being the excess amount realised by the Municipality from the plain tiff.
The suit was resisted by the Municipality on the ground that under the rules framed by the Maharashtra Gov ernment, the Municipality was legally entitled to levy two sets of fees from the plaintiff as indicated above.
The suit was dismissed by the Trial court of the Joint Civil Judge, Junior Division, Sangli, who held that the plaintiff was not entitled to the declaration sought for and neither to, the refund as the Municipality was fully justified in realising the two sets of fees from the plaintiff.
Against this decision the plaintiff went up in appeal to the Extra Assistant Judge, Sangli who by his judgment dated August 27, 1970 reversed the judgment of the Trial Court and decreed the plaintiff 's suit holding that the plaintiff was entitled to the declaration sought for as the Municipality.
was not entitled to realise two sets of fees under Appen dix (1) referred to above.
learned Judge also passed a decree for refund of Rs. 3,990/ in favour of the plaintiff.
The Sangli Municipality went up in second appeal to the High Court of Bombay which ultimately succeed ed and the High Court, agreeing with the view taken by the Trial Court, dismissed the plaintiff 's suit.
Thereafter the plaintiff obtained special leave from this Court and hence this appeal.
As seen above, the facts of this case .lie within a very narrow compass and the point involved is a pure question of law which depends upon the interpretation of certain provi sions of the Act and the Rules made by the Maharashtra Government.
Before, however, analysing the provisions of the Act and the Rules made thereunder it may be necessary to, state a few admitted facts.
It is not disputed that the appellant is an Association of hoteliers and restaurant keepers who are engaged in preparing eatables and other articles of food and selling the same to their customers.
It is also not disputed that by and large, the members of the plaintiff association prepare the articles in a part of the premises where the hotel or restaurant is situated and after preparing the eatables they sell the same to the customers visiting those places.
There was some controversy on the question as to the import and ambit of the word "manufac ture", but counsel for the appellant did not dispute seri ously, and rightly, that for the purpose of this case the preparation of the articles of food would be included within the ambit of the term "manufacture".
In these circumstances, therefore, we need not dilate on this point any further.
Mr. V.M. Tarkunde, learned counsel for the appellant, submitted that as.
the main business of the members of the plaintiff association was retail sale of the articles pre pared by them, they were essentially retail sellers and they could be charged fees only in this capacity.
It is thus contended that the case of the appellant would clearly fall within the ambit of items 3 to 8 of Appendix (I).
It was vehemently argued that by no stretch of imagination could the 142 association 's members be charged fees as manufacturers or wholesale dealers in view of the nature of their trading activity.
The plaintiff also placed reliance on a communi cation by the Director of Health to the Municipal Council expressing his opinion that the Municipality was not justi fied in realising two sets of fees from the plain . tiff 's members and that they were liable to pay fees only under items 3 to 8 of Appendix (1).
This, however, was merely an opinion of an Officer and would not carry any weight when we are interpreting the statutory provisions of the Act and the Rules.
On the other hand, Mr. D.V. Patel appearing for the respondent Municipal Council submitted that the trading activity of the appellant 's members and two separate capaci ties one as manufactures and another as retail dealers, and, therefore, the Municipality was entitled to realize fees on both these counts.
It was further argued by Mr. Patel that if the Municipality was not allowed to realise fees from the appellant 's members as manufacturers, the Food Inspector appointed by the Municipality would have no jurisdiction to inspect the premises and check the articles manufactured by them for the purpose of sale.
We have given our anxious and careful consideration to the arguments of both the parties and we are clearly of the opinion that the argument of learned counsel for the appel lant is well founded and must prevail.
To begin with, the Rules framed by the Maharashtra Government which were pub lished in the Maharashtra Government Gazette dated April 26, 1962, as amended upto date, define "manufacturer" thus: " 'manufacturer ' means a person engaged in manufacturing any article of food for the purpose of trade;" "Retail dealer" is defined thus: " 'retail dealer ' means a dealer in any article of food, other than a wholesale dealer;" "Wholesale dealer" has been defined as the person engaged in the business of sale or storage for sale or distribution of any article of food for the purposes of resale.
Appendix ( 1 ) runs thus: "Schedule of Licence Fees chargeable under Section 24(2) of , for licensing certain trades.
143 Appendix (1) Fees for the grant or renewal of a licence.
[See rule 5(3) and (4A)] Sr.
Fresh Renewal No. Category Licence of Licence 1 2 3 4 Rs. Rs. 1.
Wholesale dealer or manufacturer or both (other than those covered by Appendix (2) 30 20 2.
Hawker or itinerant vendor or both 3 1 3.
Retail dealer with annual turnover upto Rs. 1,000 3 1 4.
Retail dealer with annual turnover exceeding Rs.1,000 but not exceeding Rs. 5,000 5 2 5.
Retail dealer with annual turnover exceeding 5,000 but not exceeding Rs. 10,000 10 3 6.
Retail dealer with annual turnover exceeding Rs.10,000 but not exceeding Rs.15,000 15 5 7.
Retail dealer with annual turnover exceeding Rs.15,000 but not exceeding Rs. 25,000 20 10 8.
Retail dealer with annual turnover exceeding Rs.25,000 25 15 There cannot be the slightest doubt that the. word "manufac turer" as defined in el.
(d) of r. 2 had been used in the widest possible sense so as to, include not only manufac ture through a laboratory process but also preparation of an article of food.
In our opinion, however liberally the word "manufacture" may be construed, it will not in clude the trading activity of persons, the dominant nature of which is to supply articles of food prepared or produced by them to their customers.
In other words, where the bulk of food articles sold by the restaurant keepers are prepared by them in what may be reasonably called a part of the premises of the restaurant where the articles are sold, the preparation of manufacture of those articles is incidental or ancillary to the retail sale, the dominant purpose of the trading activity being sale of food articles by retail.
We, therefore, think that the words. "wholesale dealer" or "manufacturer" in item 1 of Appendix (1) will not apply to hoteliers and restaurant keepers whose main business is to conduct retail sale of their articles prepared by them in what may be termed a part of the same premises.
It was, however, argued by Mr. Patel that if this view is taken, it would debar the Food Inspector from inspecting the premises where the articles of food are prepared and checking the same inasmuch as under the conditions of the licence, the Food Inspector his to maintain certain stand ards and norms and comply with certain conditions in the process of preparation of the articles.
We are, however, unable to find any provision in the Act which in any way prevents the Food Inspector from making routine inspection and cheek of persons whe 144 ther licensed or not.
This will be clear from an analysis of the various provisions of the Act which we shah show presently.
It seems to us that the Food Inspector being a creature of the parent statute, namely, the being referred to as 'the Act ' has got an independent statutory status, whose duties and functions are defined by the Act itself.
The powers of the Food Inspector are derived from and flow from the statute itself.
It is a different matter that under the Rules framed by the Government of a State the food Inspector may be entrusted with certain additional duties but that does not take away the statutory powers possessed by the Food Inspec tor.
To begin with, section 2(xi) of the Act defines "premises" thus: " 'premises ' include any shop, stall, or place where any article of food is sold or manufactured or stored for sale;" A perusal of this definition would manifestly reveal that "premises" include any place where any article of food is sold or manufactured or stored irrespective of the question whether the manufacturer or the seller is licensed or not.
The word "premises" does not contain any limitation so as to confine it only to those premises which are licensed.
Section 7 of ,the Act contains an express prohibition pre venting any person from manufacture or sale of any adulter ated article of food.
The relevant provision of section 7 runs thus: "No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute (i) any adulterated food; (ii) any misbranded food; (iii) any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of the licence; (iv) any article of food the sale of which is for the time being prohibited by the Food (Health Authority in the interest of public health; (v) any article of food in contravention of any other provision of this Act or of any rule made thereunder, or (vi) any adulterant.
" This provision also does not contain any restriction of limitation and takes within its fold any person whether licensed or not who manufactures, stores or sells any adul terated food.
Clause (iii) of section 7 no doubt makes sale of any article of food without a licence an offence but clause (i) is independent of clause (iii).
Clause (iv) 145 of section 7 authorises the Food (Health) Authority to prohibit the sale of any article of food in the interest of public health.
Section 9 of the Act is the provision for appoint ment of Food Inspectors and may be extracted thus: "9.
Food Inspectors. (1) The Central Government or the State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications to be Food Inspectors for such local areas as may be assigned to them by the Central Government or the State Government, as the case may be: Provided that no person who has any financial interest in the manufacture, import or sale of any article of food shall be appointed to be a food inspector under this section.
(2) Every Food Inspector shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code and shall be officially subordinate to.
such authority as the Government appointing him may specify in this behalf.
" Section 10 of the Act contains the powers, duties and func tions of the Food Inspectors.
The relevant portion of this statutory provision may be extracted thus: "10.
Powers of Food Inspectors. (1 ) A food inspector shah have power (a) to take samples of any article of food from (i) any person selling such article; (ii) any person who.
is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee; (2) Any food inspector may enter and inspect any place where any article of food is manufactured, or stored for sate, or stored for the manufacture of any other article of food for sale, or exposed or exhibited for sale or where any adulterant is manufactured or kept, and take samples of such article of food or adulterant for analysis; (4) If any article intended for food appears to any food inspector to be adulterated or mis branded, he may seize and carry away or keep in the safe custody of the vendor such article in order that it may be dealt with as hereinafter provided and he shall, in either case, take a sample of such article and submit the same for analysis to public analyst; 11 1458SCI/76 146 It would be seen that sub sections
(2) and (4) of section 10 clearly empower the Food Inspector without any restriction or limi tation to enter and inspect any place where any article of food is manufactured, or stored for sale, or exposed or exhibited for sale and inspect the article for the purpose of finding out whether or not the article is adulterated.
Sub section (4) of section 10 empowers the Food Inspector even to seize any adulterated or misbranded article and carry away the same and keep it 'in safe custody.
It is, therefore, clear whether an activity is licensed or not, the place where the activity is carried on is always subject to in spection by the Food Inspector under the provisions of section 10.
Section 16(1) clauses (c) and (d) particularly provide for penalties and punishment for any person who prevents a Food Inspector either from taking a sample or from exercis ing any power conferred on him by the Act.
Thus it is plain that the question of a trader obtaining a licence or not has absolutely nothing to do with the statutory duties which a Food Inspector has to perform and any person whether he is licensed or not would be liable to penalties under the Act if he tries to prevent or interfere in the due discharge of the duties by the Food Inspector.
Section 23 of the Act is the provision which empowers the Central Government to make rules in order to carry out the provisions of the Act.
Clause (c) of section 16(1) provides for laying down special provisions for imposing rigorous control over the production, distribution and sale of any article and clause (g) authorises the Central Government to define the conditions of sale or conditions for li cence of sale of any article of food in the interest of public State Government to make rules for the purpose of giving effect to the provisions of the Act.
Clause (a) of sub section
(2) of section 24 empowers the State Government to define the powers and duties of the Food (Health) Authority.
The section also contains provisions for levy of a fee.
It is under this provision that the Maharashtra Rules were made by the Government.
The Central Rules, namely, the Prevention of Food Adulteration Rules, 1955, framed under section 23 of the Act also contain provisions defining the duties of a Food Inspector.
The relevant part of r. 9 of the Central Rules may be extracted thus: "9. Duties of Food Inspector.
It shall be the duty of the food inspector (a) to inspect as frequently as may be prescribed by the Food (Health) Authority or the local authority all establishments licensed for the manufacture, storage or sale of an article of food within the area assigned to him; (f) to make such enquiries and inspections as may be necessary to detect the manufacture, storage or sale of articles of food in contravention of the Act or rules framed thereunder; (h) when so authorised by the health officer, having jurisdiction in the local area concerned or the Food (Health) Authority, to detain imported packages which he has reason 147 to suspect contain food, the import or sale of which is prohibited; Thus it is clear that apart from the wide powers given to the Food Inspector by the statute itself, even the Central Rules framed by the Central Government confer additional powers on the Food Inspector.
The Maharashtra Rules referred to above do not contain any provision which in any way runs counter to either the Central Rules framed by the Central Government or the provisions of the Act.
The rules merely contain certain additional provisions regarding the condi tions of licence and certain other additional duties to be performed by the Food Inspectors.
Thus an analysis of these provisions would plainly reveal that the Food inspector does not derive his powers from the Rules regulating licence of a trader, but the fountain of his authority flows from the, statutory provi sions itself.
There is no provision in the Rules which in any way prevents or interferes with the discharge of the duties of a Food Inspector.
The power to inspect and check is a plenary power which has been conferred on the Food Inspector by the statute itself and no rule made by the Government can ever interfere with this power.
In these circumstances, it is difficult to accede to the contention of Mr. Patel that unless the members of the plaintiff association are licensed as manufacturers also, it will not be possible for the Food Inspector to inspect and check the premises where the articles are prepared.
The Act is a social piece of legislation meant to control and curb adul teration of articles of food and being in the interest of public health it has to be liberally construed and no limi tations can be inferred on the powers of the Food Inspector whose primary duty is to see that the 'adulterated articles are neither manufactured, nor stored, nor sold.
For these reasons, therefore, the main contention of Mr. Patel on this score is overruled.
The contention of counsel for the respondent regarding powers of the Food Inspector may be tested from another angle of vision on the touchstone of practical reality.
Suppose a particular State Government does not choose to frame any Rules at all under the provisions of the parent Act (the ), can it be argued with any show of force that in such cases the Food Inspector would become absolutely powerless and wholly ineffective The answer must be in the negative, because it is manifest that the duties and functions of the Food In spector spring from the parent statute and are not in any way co related to the additional duties provided for in the Rules which may be framed by the State Government.
Thus even from this point of view, the argument put forward by the respondent fails.
Coming now to.
the Appendix (1),itself, it would appear that item 1 and items 3 to 8 postulate two different contin gencies.
Item 1 takes within its fold wholesale dealer or manufacturer or both.
There is no mention of a retail dealer in this item.
Thus before a trader falls within the purview of item 1 of Appendix (1), it must be shown that he is either a wholesale dealer or a manufacturer or both.
We have already pointed out that where the dominant nature of the trading activity of a 148 person is neither that of a manufacturer nor as a wholesale dealer, but he is engaged in retail sale ', item 1 would have no application.
The mere fact that the trader prepares the articles for the purpose of selling the same to his customers would not make him either a wholesale dealer or a manufacturer.
In the first place, the appellant 's members cannot be wholesale dealers because there is nothing to show that they deal in articles for the purpose of re sale.
On the other hand, the nature of their trading activity is one of retail sale.
In these circumstances the case of the appellant clearly falls within items 3 to 8 of Appendix (1).
The High Court was, therefore, in error in taking the view that the case of the appellant was covered both by item 1 as also items 3 to 8 of Appendix (1) and was, therefore, not justified in reversing the judgment of the Extra Assistant Judge.
On a consideration, therefore, of the facts and circum stances of the case, we are clearly of the opinion that in the instant case the members of plaintiff association who are mostly restaurant keepers conducting the business of retail sale, the preparation of the articles being merely an ancillary activity, are liable to pay .the licence fee under items 3 to 8 of Appendix (1) and not under item 1 of the Appendix (1) to the Schedule.
The plaintiff is, therefore, entitled to the declaration sought for and is also entitled to the refund of Rs. 3,990/ .
We, therefore, allow this appeal, set aside the judgment of the High Court, decree the plaintiff 's suit and restore the judgment and decree of the Extra Assistant Judge.
In the peculiar circumstances of this case, there will be no order as to costs.
P.B.R. Appeal allowed.
| IN-Abs | Rule 2(d) of the Maharashtra Prevention of Food Adul teration Rules.
1962 defines a manufacturer as a person engaged in manufacturing any article of food for the pur poses of trade.
Clause (e) defines a. "retail dealer" as a dealer in any article of food other than wholesale dealer and cl.
(g) defines a "wholesale dealer" as a person engaged in the business of sale or storage for sale or distribution of any article of food, for the purposes of resale.
Fees payable by a wholesale dealer or manufacturer for the grant or renewal of a licence are prescribed in item 1 and those payable by a retail dealer in items 7 and 8 of Appendix 1.
Members of the appellant association, who are hoteliers and restaurant keepers prepare articles of food in a part of their respective premises and sell them to the customers visiting them.
The respondent municipality charged from members of the association licence fee both under item 1 and items 7 and 8 of Appendix 1 on the ground that each of them is both a manufacturer and a retail dealer.
The appellant 's suit for declaration that the municipality had no right to charge two sets of fees from the members who are essentially retail dealers and for refund of excess amount realised by the municipality was dismissed by the trial court.
The first appellate court allowed the appellant 's appeal: but the High Court on further appeal by the municipality re stored the order of the trial court.
Allowing the appeal to this Court.
HELD: The High Court was in error in holding that the members of the association were covered both by item 1 as also by items 3 to 8 of Appendix 1.
Members of the appellant association are liable to pay licence fee under items 3 to 8 of Appendix (1) and not under item 1.[148 B C] 1 (a) Item 1 took within its fold a wholesale dealer or manufacturer or both.
It does not mention of a retail dealer.
Before a trader falls within the purview of item 1 it must be shown that he is either a wholesale dealer or a manufacturer or both.
Where the dominant nature of the trading activity is neither that of a manufacturer nor a wholesale dealer but is a retail sale, item 1 would have no application.
The fact that the trader prepares the articles for selling them to his customers would not make him either a wholesale dealer or manufacturer.
[147H; 148 A B] (b) The words 'wholesale dealer ' or 'manufacturer ' in item 1 will not apply to hoteliers and restaurant keepers whose main business is to conduct retail sale of their articles prepared by them in a part of their premises.
[143G] (c) The word 'manufacturer ' as defined in r. 2(d) had been used in the widest possible sense to include not only manufacture through a laboratory process but also prepara tion of an article of food.
However liberally the word 'manufacturer ' is construed, it will not include the trading activity of persons the dominant nature of which is to supply articles of food prepared or produced by them to their customers.
[143E] 140 2(a) There is no force in the contention that unless the members of the Association are licensed as manufacturers the Food Inspector cannot enter for inspection any premises where the articles are prepared.
The question of a trader obtaining a licence has nothing to do with the statutory duties of a Food Inspector.
The Food Inspector does not derive his powers from the rules regulating licence of a trader, but his duties spring from the statutory provisions.
There is no provision in the rules which in any way prevents or interferes with the discharge of his duties.
[147C E; 146C] (b) Apart from the wide powers given to the Food Inspec tor by the Statute, Rules framed by the Central Government confer additional powers on the Food Inspector.
The Maha rashtra Rules do not contain any provision which in any way runs counter to either the Central Rules or the Act.
The rules merely contain certain additional provisions regarding the conditions of licence and additional duties to be per formed by the Food Inspector.
[147B] (c) Even assuming that a particular State Government did not frame any rules under the Act it cannot be said that the Food Inspector would be absolutely powerless and cannot exercise effective control.
His duties and functions spring from the parent statute and are not in any way corre lated to the additional duties provided for in the rules framed by the State Government.
[147G]
|
Civil Appeals Nos.
1121 1125 of 1975.
From the Judgment and Order dated the 31st March 1975 of the Punjab and Haryana High Court in Civil Writ Petition Nos.
5948, 6115, 6736, 6779 and 6780 of 1974.
Hardev Singh and R. section Sodhi for the Appellant.
section K. Bagga and (Mrs.) section Bagga for Sole Respondent in CA 1121 R 1 in CAs.
1122 1125/75.
The Judgment of the Court was delivered by CHANDRACHUD, J.
These appeals arise out of a decision rendered by a Full Bench of the Punjab High Court in various writ petitions filed by the students of the Punjab University, who were disqualified for adopting unfair practices in the examinations.
Most of them had copied from a common source.
By a majority of 2 to 1, the High Court by its Judgment dated March 31, 1975 set aside the decisions of a Committee appointed to inquire into the charges against the erring students.
The judgment of the majority rests solely on the 69 view that despite the circumstance that two members of the Committee formed the quorum the impunged decisions were vitiated by the fact that only 2 and not all the 3 members of the Committee participated in the proceedings.
Aggrieved by the majority judgment of the High Court, the Punjab University, Chandigarh, has filed these appeals by a certificate granted by the High Court on the ground that the appeals involve a substantial question of law of general importance which requires to be determined by this Court.
The respondents to these appeals were detected in the use of unfair means by the supervisory staff at different examinations held by the Punjab University.
The Deputy Registrar of the University issued notices to the respondents calling upon them to submit their replies to a questionnaire.
Respondents denied having used unfair means in the examinations but their explanation having been found to be unsatisfactory, the charges were referred for inquiry and decision to the Standing Committee which was appointed to deal with cases of misconduct and use of unfair means at the University examinations.
The Standing Committee consisted of Shri G. L. Chopra, a retired Judge of the High Court, Shri Ajmer Singh, an advocate who was formerly a Minister of the Punjab Government, and Shri Jagjit Singh, the Registrar of the University.
The Standing Committee was appointed by the Syndicate of the University under Regulation 31 of the Punjab University Calender, 1973, Volume II.
In a meeting dated August 17, 1971 the Syndicate passed a Resolution that two members shall form the quorum for the meetings of the Standing Committee appointed under Regulation 31.
In everyone of the meetings, only two out of the three members of the Standing Committee were present.
Respondents appeared before the Standing Committee which, on a consideration of their statements came to the unanimous conclusion that the respondents had adopted unfair means in the examinations.
By the impugned decisions they were disqualified for varying terms.
It is not alleged that the Standing Committee had committed breach of any of the procedural provisions or of the rules of natural justice.
We may also mention in passing that none of the respondents took any objection during the inquiry that it was not competent to only two members of the Standing Committee to inquire into the charges.
Before the High Court also, the sole ground on which the decisions of the Standing Committee were challenged was that the decisions were without jurisdiction inasmuch as all the three members of the Standing Committee had not taken part in the meetings in which the decision to disqualify the respondents was taken.
The Punjab University, Chandigarh, was set up under the East Punjab Ordinance 1947, which was later replaced by the Punjab University Act, 1947.
By section 8 of the Act the supreme authority of the University vests in the Senate consisting of the Chancellor, the Vice Chancellor, ex officio Fellows and Ordinary Fellows.
Section 1 1(2) of the Act provides inter alia that the Senate shall exercise its powers in accordance with the statutes, rules and regulations for the 70 time being in force.
Section 20 of the Act provides that the Executive Government of the University shall vest in the Syndicate consisting of the Vice Chancellor as Chairman, the Directors of Public Instruction Punjab, Haryana and Chandigarh, the Director of Education, Himachal Pradesh, and not less than 12 or more than 15 ex officio or ordinary Fellows elected by various Faculties.
Section 31(1) of the Act provides for the framing of Regulations and states that the Senate, with the sanction of the Government, may from time to time make regulations consistent with the Act for providing for all matters relating to the University.
Section 31 (2) enumerates matters regarding which regulations can be made and they include the conduct of students, the procedure to be followed at meetings of the Senate, Syndicate and Faculties and the quorum of members to be required for the transaction of business.
Acting under the power conferred by section 31, the Senate of the Punjab University framed regulations in consultation with the Government, which include regulations relating to the use of unfair means in examinations.
These regulations are contained in Chapter II of the Punjab University Calendar, 1973, Volume II.
The decision of these appeals turns on the construction and meaning of regulations 31 and 32.1 of Chapter II which read thus: "31.
The Syndicate shall appoint annually a Standing Committee to deal with cases of the alleged misconduct and use of unfair means in connection with examination; 32.1.
When the Committee is unanimous, its decision shall be final except as provided in 32.2.
If the Committee is not unanimous the matter shall be referred to the Vice Chancellor who shall either decide the matter himself or refer it to the Syndicate for decision".
The constitution of the Standing Committee is indisputably within the powers of the Syndicate under Regulation 31.
No exception can therefore be taken to the appointment of the Standing Committee by the Syndicate and indeed no objection was at any stage taken in that behalf.
Equally clear seems to us the position that the Syndicate which had the power to appoint the Standing Committee had the incidental power to fix the quorum for the meetings of the Standing Committee. 'Quorum ' denotes the minimum number of members of any body of persons whose presence is necessary in order to enable that body to transact its business validly so that its acts may be lawful.
It is generally left to committees themselves to fix the quorum for their meetings and perhaps, if the Syndicate had not fixed the quorum it might have been competent to the Standing Committee itself to devise its day to day procedure including the fixation of quorum But that is going one step ahead, for here the quorum was fixed not by the Standing Committee but by the Syndicate itself which appointed the Standing Committee and which indubitably had the right to appoint the Committee under Regulation 31.
We are unable to see any valid reason for which the fixation of quorum for the 71 meetings of a Committee appointed by the Syndicate can be said to be beyond the powers of the Syndicate.
It is wholly inappropriate in this connection to draw on the constitution of judicial tribunals as a parallel because, if by law such a tribunal must consist of 3 members there is no jurisdiction in the tribunal to fix a smaller quorum for its sittings.
A court is not a committee and if by law any matter is required to be heard, say by a bench of three Judges, there is no power in those three Judges to resolve that only two of them will form a quorum.
In fact, quorum is fixed for meetings of committees and not for the sittings of courts.
In the instant case the Syndicate had the right to fix the number of persons who would constitute the Standing Committee and by fixing the quorum at 2, it did no more than provide that though the Standing Committee may be composed of 3 persons, any 2 of them could validly and effectively transact the business of and on behalf of the committee.
Putting the matter a little differently, the Syndicate nominated 3 persons to be members of the Standing Committee but resolved that any 2 of them would validly constitute the Standing Committee for the time being to dispose of any business which comes before it.
Great reliance was placed by the respondents both in the High Court and before us on Regulation 32.1 which we have set out above, in support of the contention that the decision of the Standing Committee was without jurisdiction since all the members of the Committee had not participated in the various decisions.
By Regulation 32.1, if the Standing Committee is unanimous in its decision, the decision is final except as provided in Regulation 32.2; if the committee is not unanimous, the matter has to be referred to the Vice Chancellor who can either decide the matter himself or refer it to the Syndicate for its decision.
It is urged on behalf of the respondents that the possible dissent of the 3rd member, were he present, would have necessitated a reference to the Vice Chancellor who might not agree with the majority opinion, which shows that no sanctity can attach to a decision rendered by less than the whole body of 3 members of the Standing Committee.
This argument is purely hypothetical and besides, it overlooks that the fixation of quorum for the meetings of a committee does not preclude all the members of the committee from attending the meetings.
By the quorum, a minimum number of the committee must be present in order that its proceedings may be lawful but that does not mean that more than the minimum are denied an opportunity to participate in the deliberations and the decisions of the committee.
Whenever a committee is scheduled to meet, due notice of the meetings has to go to all the members of the committee and it is left to each individual member whether or not to attend a particular meeting.
Every member has thus the choice and the opportunity to attend every meeting of the committee.
If any member considers the matter which is to be discussed or determined in a particular meeting as of such importance that he must make his voice heard and cast his vote, it is open to him and indeed he is entitled to attend the meeting and make his presence felt.
Though a faint attempt was made in these appeals for the first time to suggest that the notice of the meetings 72 of the Standing Committee was not served on all the 3 members of the committee we are satisfied that such a notice was in fact given and someone or the other of the 3 members chose to remain absent at the meetings of the Standing Committee.
There is, therefore, no warrant for the hypothesis that had the third member attended the meetings he would have dissented from the decision of the 2 other members so as to necessitate a reference to the Vice Chancellor under Regulation 32.1.
Apart from this consideration, we are unable to agree that anything contained in Regulation 32.1 can affect the power of the Syndicate to fix the quorum for the meetings of the Standing Committee.
If the quorum consists of 2 members, any 2 out of the 3 members can perform the functions of the Standing Committee, though the committee may be composed of 3 members.
When Regulation 32.1 speaks of the committee being unanimous, it refers to the unanimity of the members who for the time being are sitting as the committee and who, by forming the quorum can validly and lawfully discharge the functions of the committee and transact all business on behalf of the committee.
If only 2 members out of the 3 who compose the Standing Committee have participated in the business of any particular meeting, the question to ask under Regulation 32.1 is whether there is unanimity amongst those two members.
If they are unanimous their decision is final.
If they differ, the matter has to be referred to the Vice Chancellor.
Thus, the fixation of quorum neither makes Regulation 32.1 a dead letter nor does it affect its application or utility.
With respect, we are unable to appreciate the reasoning of the majority that "The manner in which Regulation 32.1 has been framed leaves no doubt that the consideration of the question of students ' misconduct and the use of unfair means in examination by them has been placed at a high pedestal" and that therefore "there is no escape from the conclusion that the consideration of the case of a student against whom there are allegations of misconduct or of use unfair means in an examination, has to be by all the members of the Standing Committee and not by some of them and that any decision of the Syndicate to the contrary would he violative of the letter and spirit of Regulation 32.1.
" The fixation of quorum by the Syndicate violates neither the letter nor the spirit of that Regulation.
The majority Judges were therefore in error in holding that Regulation 32.1 "clearly negatives the fixation of a quorum and makes it incumbent that the decision must be taken by the full Committee" for the reason that "In a way, this regulation fixes the quorum at the number of members originally appointed".
The learned Judges read far more into Regulation 32.1 than there is in it and we see no warrant for construing that regulation as fixing the quorum at the number of members originally appointed to the committee.
Regulation 32.1 is aimed at conferring finally on decision of the committee if they are unanimous and at leaving the validity and propriety of a dissenting decision to the judgment of the Vice Chancellor who can deal with the matter himself or refer it to the decision of the Syndicate.
Regulation 3 2.1 does not even remotely attempt to fix the 73 quorum.
That is not its purpose, and it sounds strange that the Regulation, by a circuitous method, should fix the quorum at the full complement of members.
Quorums are seldom so fixed and were it intended that the entire committee must decide every case, Regulation 31 could appropriately have said so.
We share the deep concern voiced in the dissenting opinion of Sandhawalia J. that there was no justification for ignoring the stream of precedents which had consistently recognised the validity of decisions taken by 2 members of the Standing Committee.
In Bharat Indu vs The Punjab University and another(1), Regulation 19 which was the precursor of and was identical with Regulation 32.1 came before the Punjab High Court.
By a closely considered judgment, Dua J. who spoke for the Bench specifically rejected the argument accepted by the two learned Judges in the instant case.
In Miss Manjinder Kaur vs The Punjab University (Civil Writ No. 3516 of 1972, decided on March 30, 1973), the same contention was repeated on behalf of the students and once again it was considered and rejected.
It is quite true that judicial consistency is not the highest state of legal bliss.
Law must grow, it cannot afford to be static and theretore Judges ought to employ an intelligent technique in the use of precedents.
Precedents, as observed by Lord Macmillan, should be "stepping stones and not halting places".(2) But, Justice Cardozo 's caution should not go unheeded that the weekly change in the composition of the court ought not to be accompanied by changes in its rulings.
The language of the Regulations called for no review of established precedents.
Nor indeed is there any fear of unfairness if only 2 members decided the cases of students accused of adopting unfair practices in the examinations.
In such cases it is so much better that the law is certain.
In the result we allow the appeals, set aside the decision of the majority and uphold that of the minority Judge.
The writ petitions filed by the respondents will consequently stand dismissed but there will be no order as to costs.
S.R. Appeal allowed.
| IN-Abs | Regulations 31 and 32.1 of the Punjab University Calendar, 1973, Volume II are as under: "31.
The Syndicate shall appoint annually a standing committee to deal with cases of the alleged misconduct and use of unfair means in connection with examinations; 32.1.
When the committee is unanimous, its decision shall be final except as provided in S.32.2.
If the Committee is not unanimous, the matter shall be referred to the Vice Chancellor who shall either decide the matter himself or refer it to the Syndicate for decision".
By virtue of the powers vested in the syndicate, the Punjab University appointed a standing committee under Regulation 31 consisting of a retired high court judge, an Advocate who was formerly a minister of State of Punjab & the Registrar of the University.
It also resolved, by its Resolution dated 17th August 1971, that two members shall form the quorum for the meetings of the standing committee appointed under Regulation 31.
For adopting unfair practices in the examination, respondents were disqualified by the Committee, in all the sittings of which, only two out of the three members were present.
The respondents contended by their writ petitions that the decisions of the Standing Committee were without jurisdiction in as much as all the three members of the Standing Committee had not taken part the meetings in which the decisions to disqualify them were taken.
By a majority of 2 to 1, the High Court set aside the decisions taking the view that despite the circumstance that two members of the committee formed the quorum, the impugned decisions were vitiated by the fact that only 2 and not all the 3 members of the committee participated in the proceedings.
Allowing the appeals by certificate, the Court, ^ HELD: (1) The Constitution of the Standing Committee is indisputably within the powers of the Syndicate under Regulation 31.
The Syndicate which had the power to appoint the Standing Committee had the incidental power to fix the quorum for the meetings of the Standing Committee. 'Quorum ' denotes the minimum number of members of any body of persons whose presence is necessary in order to enable that body to transact its business validly so that its acts may be lawful.
It is wholly inappropriate to draw on the Constitution of judicial tribunals as a parallel.
In the instant case, the syndicate by nominating 3 persons to be members of the Standing Committee, but by resolving that 2 of them would validly constitute the standing committee, did no more than provide that though the Standing Committee may be composed of 3 persons, any 2 of them could validly and effectively transact the business of and on behalf of the Committee.
[70 E F, 71 A C] (ii) By the quorum, a minimum number of members of the committee must be present in order that its proceedings may be lawful, but that does not mean that more than the minimum are denied an opportunity to participate in the deliberations and the decision of the committee.
There is no 68 warrant for the hypothesis that had the third member attended the meetings he would have dissented from the decision of the 2 other members so as to necessitate a reference to the Vice Chancellor under Regulation 32.1.
[71 F G 72 AB] (iii) When Regulation 32.1 speaks of the committee being unanimous, it refers to the unanimity of the members who for the time being are sitting on the committee and who, by forming the quorum can validly and lawfully discharge the functions of the Committee.
The fixation of quorum neither makes Regulation 32.1 a dead letter nor does it affect its application or utility.
The fixation of quorum by the Syndicate violates neither the letter nor the spirit of that Regulation.
[72 C D, E, F] (iv) Regulation 32.1 is aimed at conferring finality on decisions of the committee if they are unanimous and at leaving the validity and priority of a dissenting decision to the judgment of the Vice Chancellor who can deal with the matter himself or refer it to the decision of the Syndicate.
Regulation 32.1 does not even remotely attempt to fix the quorum.
That is not its purpose, and it sounds strange that the Regulation, by a circuitous method, should fix the quorum at the full complement of members.
Quorums are seldom so fixed and were it intended that the entire committee must decide every case, Regulation 31 could appropriately have said so.
[72 G H, 73 A] It is quite true that judicial consistency is not the highest state of legal bliss.
Law must grow, it cannot afford to a static and therefore, judges ought to employ an intelligent technique in the use of precedents.
But the language of the Regulations called for no review of established precedents.
Nor indeed is there any fear of unfairness if only 2 members decided the cases of students accused of adopting unfair practices in the examinations.
In such cases, it is so much better that the law is certain.
[73 C D, E] Bharat Indu vs The Punjab University & Anr.
ILR [1967] 2 Punjab & Haryana 198; Miss Manjinder Kaur vs The Punjab University (Civil Writ No. 3516/72 dt.
30 3 1973 decided by the Punjab High Court (approved).
|
Appeal No. 127 of 1976.
(Appeal by Special Leave from the Judgment and Order dated the 20.8.1975 of the Allahabad High Court (Lucknow Bench) at Lucknow in Civil Writ Petition No. 1062 of 2974).
G.N. Dikshit and S.K. Bisaria, for the Appellant.
D. Goburdhan, for the Respondent.
The Judgment of the Court was delivered by GUPTA, J.
This appeal by special leave arises out of a proceeding under the Uttar Pradesh Urban Buildings (Regula tion of Letting, Rent and Eviction) Act, 1972 (referred to hereinafter as the Act).
On September 11, 1973 the appel lant applied under section 16(1)(a) for allotment of a part of house No. 98, Lokmanganj, Lucknow.
He was in fact in occupation of this portion of the building when he made the application: according to the appellant he had been inducted as a tenant by a person representing that he was the owner of the house,though really he was himself a tenant.
On November 24, 1973 the first respondent also applied for alloting the house to him.
Subsequently there were two more applicants for the house.
The Area Rationing Officer (Rent Control) by his order dated June 4, 1974 allotted the accom modation to the first respondent.
The appellant before us preferred an appeal to the District Judge, Lucknow, who on August 7, 1974 allowed the appeal, set aside the order of allotment made in favour of the first respondent and remand ed the case to the Area Rationing Officer (Rent Control) to be decided afresh in accordance with law.
The District Judge pointed out that the Area Rationing Officer (Rent Control) had ignored altogether rule 11 of the Rules framed under the Act which required that in the matter of allotment the principle "first come first served" should be followed.
The District Judge overruled a contention raised on behalf of the first respondent that the appel lant 's application for allotment was not maintainable as he was an unauthorised occupant within the meaning of the Act of the building in question.
The appellate authority held that there was no provision in the Act which bars an unau thorised occupant from applying for an allotment.
On a writ petition filed by the first respondent, the Allahabad High Court quashed the order of the District Judge and restored the order made by the area Rationing Officer (Rent Control) alloting the house to the first respondent on the view that rule 11 requiring "first come first served" prin ciple to be followed was applicable only to persons similar ly situated, and an unauthorised occupant could not be "placed in the same situation as others who were in need of accommodation".
According to the High Court the princi ple "first come first served" was" not intend to be applied mechanically and not in such a manner as to frustrate the object of the Act".
The correctness of the view taken by the High Court is in challenge before us.
It is necessary to refer briefly to the relevant provi sions of the Act and the rules framed thereunder.
The Act, as its long title shows, is a statute "to provide, in the interest of the general public, for the 10 1458SCI/76 130 regulation of letting and rent of, and the eviction of tenants from, certain classes of buildings situated in urban areas, and for matters connected therewith".
Chapter III of the Act which contains provisions regulating letting in cludes section 11 to section 19.
Section 11 lays down that No. person shall let any building except in pursuance of an allotment order issued under section 16.
Section 12 states inter alia that a landlord or a tenant of a building shall be deemed to have ceased.
to occupy the building or part thereof if he has allowed it to be occupied by any person who.
is not a member of his family.
The appellant and the tenant of the building who inducted him there axe not members of the same family.
Section 13 provides that no person shall occupy a building or part thereof which a landlord or tenant has ceased to occupy except under an order of allotment made under section 16 and that if a person "so purports to occupy" he shall be deemed to be an unauthorised occupant such building or part.
Under section 16(1)(a) the District Magistrate may make an order requiring the landlord to let any building which is or has fallen vacant or is about to fall vacant or a part of such building to any person specified in the order.
An order made by the District Magistrate under this provision is called an allot ment order. 'District Magistrate ' as defined in section 3(c) includes an officer authorised by the District Magis trate to exercise all or any of his powers under the Act.
An order under section 16 is appealable under section 18.
Section 41 authorises the State Government to make rules to carry out the purposes of the Act.
Rule 10 of the Rules framed under the Act prescribes the procedure for allotment.
The District Magistrate is required to maintain a register of applications for allotment of buildings.
The applica tions are to be classified according to the priority catego ries specified in rule 11 and they must be registered in the order they are received.
The register is prepared afresh for every calendar year and applicants who are unable to secure allotment by the end of an year and whose applica tions were not rejected as not maintainable are entitled to apply by the 15th of January of the succeeding year for renewal of their applications and they retain their original relative priority.
Sub rule (5) of rule 10 provides that no building shall ordinarily be.
allotted to the persons or for the purposes specified in clauses (a), (b) and (c) of the sub rule.
Sub rule (6) lays down inter alia that a person who is deemed to have ceased to occupy a building within the meaning of section 12(1)(b) shall not be allotted that or any other residential building for a period of two years from the date of such deemed cessation.
Rule 11 which fixes the order of priorities in allotment of residential buildings states in sub rule (1) that: "In making allotment of a residential building, .the following order of priorities shall be observed: Firstly, for public purposes; Secondly, for accommodating a person against whom an order has been passed for eviction under Section 21, not being a tenant referred to in Explanation (1) to Section 21(1), or a decree has been passed in a suit filed with the permission of the District Magistrate under section 3 of the old Act (or such suit or application is pending) and who or 131 members of whose family do not own or hold as tenants any other residential building in the same city, municipality, town 'area or notified area; Thirdly, for accommodating others; and in each of the above categories subject to the provisions of sub rule (2), the principle "first come, first served" shall be followed.
" As intending allottees the appellant and the first re spondent both come within the third category.
If the principle 'first come first served ' is to be followed in choosing between them, the appellant 's applica tion for allotment being earlier in point of time should have preference unless there is any valid ground for reject ing his claim.
We are not concerned in this appeal about the existence of any such ground; the District Judge had remitted the case to the Area Rationing Officer (Rent Con trol) for a fresh decision in accordance with law following the 'first come first served ' principle.
The High Court thought that the appellant being in unauthorised occupation of the building within the meaning of section 13 was not entitled to apply for allotment of the premises to him.
It does not however appear from the Judgment of the High Court that there is any provision in the Act which disentitles such unauthorised occupants from applying for allotment.
The appellant is not one of the persons to whom no building is ordinarily to be allotted under sub rules (5) and (6) of rule 10.
The High Court refers to sub rules (4) and (5) of rule 11 to show that the principle first come first served ' does not apply in all circumstances.
Sub rule (4) gives overriding powers to the District Magistrate to make an allotment out of turn in favour of a person who in occupy ing any accommodation proposed to be requisitioned under the Uttar Pradesh Temporary Accommodation Requisition Act, 1947 and to whom alternative accommodation is required to be provided under that Act.
Sub rule (5) which is expressly made subject to the other sub rules of rule 11 states that it should be ensured that no person shall be allotted a building which carries so little rent that he is able to get a residence on payment of rent which is less than ten per cent of his salary or other income, after taking into con sideration the house rent allowance allowed by his employer.
Both these sub rules are quite irrelevant for the present purpose.
Therefore, assuming that sub rules (4) and (5) are exceptions to the 'first come first served ' principle, the appellant 's application for allotment cannot be thrown out unless there was some provision prohibiting unauthorised occupants from applying for allotment.
The High Court thinks that an unauthorised occupant cannot be "placed in the same situations as others who are in need of accommoda tion" and that the principle 'first come first served ' "has to be applied amongst person of the same category who are similarly situated".
The High Court has not mentioned any provision of the Act to justify the view it has taken, nor any such provision has been referred to by counsel for the first respondent which disables an unauthorised occupant from applying for an allotment.
The disability, the High Court infers from the object of the Act.
The 132 object of the Act has to be gathered from its provisions and we have not found anything in the Act which disentitles an unauthorised occupant to ask for an allotment.
In our opinion the High Court was in error in quashing the order of the District Judge.
The appeal is accordingly allowed.
The judgment of the High Court is set aside and that of the District Judge dated August 7, 1974 is restored.
There will be no order as to costs.
P.H.P. Appeal allowed.
| IN-Abs | In September, 1973, the appellant applied under section 16(1)(a) of the U.P. Urban Buildings (Regulation of letting, rent and eviction) Act, 1972 for the allotment of a part of a house, which was actually occupied by him.
According to the appellant, he was included as a tenant by a person representing himself to be the owner but who in fact was a tenant.
In November, 1973, the first respondent also ap plied for allotment of the said premises.
The Area Ration ing Officer allotted the premises to the first respondent.
The District Judge allowed the appeal filed by the appel lant, set aside the order of allotment in favour of the first respondent and remanded the case to the Rationing Officer to be decided afresh in accordance with law.
The District Judge pointed out that the Area.
Rationing Officer had ignored altogether rule 11 of the Rules framed under the Act which required that in the matter of allotment the principle 'first come first served ' should be followed.
The District Judge also negatived the contention of the first respondent that the appellant 's application was not main tainable since he was an unauthorised occupant.
The Court held that there was no provision in the Act which bars an unauthorised occupant from applying for an allotment.
In a wit petition filed by the first respondent the High Court quashed the order of the District Judge and restored the order made by the Area Rationing Officer.
Section 11 of the Act provides that no person shall let any building except in pursuance of an allotment order issued under section 16.
Section 13 provides that no person shall occupy a building or part thereof which a landlord or tenant has ceased to occupy except under an order of allotment made under section 16.
Under section 16 the District Magistrate is empowered to make an order requiring the landlord to let any building which is or has fallen vacant or is about to fall vacant or a part of such building to any person specified in the order.
An order under sec tion 16 is appealable under section 18.
In exercise of powers conferred by section 41 of the Act, the rules have been framed by the State Government.
Rule 10 prescribes the procedure for allotment.
It provides that the application should be entered in the register after classifying them according to the priority of the categories.
Rule 10 further provides that a building shall not.be allotted to a person who is deemed to have ceased to occupy a building for a period of two years from the date of such deemed cessation.
Rule 11 fixes order of priorities in allotment of residen tial buildings and it further provides that in each of the categories the principle 'first come first served ' shall be followed.
Al1owing the appeal, HELD: (1) The High Court in its judgment has not men tioned any provision in the Act which dissentitles unautho rised occupants from applying for allotment.
Rules 10(5) & (6) provide that certain persons should not ordinarily be allotted a promises; the appellant does not fall within those categories.
[131D E] 2.
The High Court infers the disability of an unautho rised occupant from applying for an allotment from the object of the Act.
The object of the Act has to be gathered from its provisions.
There is nothing in the Act which disentitles an unauthorised occupant from applying for an allotment.
[131H, 132A] 129
|
vil Appeal No. 1948 of 1968 '.
Appeal from the Judgment and Order dated the 21st Sept., 1967 of the Mysore High Court in W.P. No. 1168/65.
S.V. Gupte with S.S. JavaIi and B. Dutta for the appellant.
N. Nettar and K.R. Nagaraja, for respondents.
166 The Judgment of the Court was delivered by KRISHNA IYER, J.
Two short legal issues both apparently devoid of merit were urged unsuccessfully before the High Court and repeated, with a somewhat similar fate, before us, ii we may anticipate our conclusion.
A Judgment of affirma tion may usefully be an abbreviation and so, we shall brief ly deal with Shri Gupta 's twin submissions on behalf of the appellant writ petitioner.
The appeal is by special leave and the subject matter is land compulsorily acquired under the City of Bangalore Improvement Act 1945 (for short the Improvement Act) (Mysore Act V of 1945).
A concise narration of the necessary facts may conven iently be compressed into a paragraph or two.
The appellant purchased two portions of section No. 211 within the District of Bangalore from two persons Giliteppa and Nanjappa during the pendency of land acquisition proceedings under the Improvement Act.
These proceedings were for acquisition of land in section No. 211 for making a lay out plan for a building colony.
This limited objective was completed after due formalities were complied with and thereafter the land was made over to the Housing Board whose statutory responsibili ty is to implement housing schemes.
We are told that houses have been built on the land already although there is some doubt as to whether 5 acres out of the total extent still remain vacant.
If the contentions of the appellant are sound the whole scheme will be shot down, a disaster a socially conscious court should try to avert unless com pelled by fundamental legal laws.
What, then, are the alleged vital weaknesses in the acquisition proceedings which vitiate them altogether ? Firstly, a technicality technically countered; and secondly, a compassionate consideration which has no invalidatory effect.
The appellant has urged before us that Section 16(2) of the Improvement Act has a mandatory requirement that service of notices shall be effected on "every person whose name appears in the . . in the land revenue register as being primarily liable to pay the property tax or land revenue assessment on. . land which it is proposed to acquire in executing the scheme" . .
This perempto ry mandate has not been complied with and that is the first vital flaw pressed before us.
The second contention is based upon Section 15 (3 ) of the Improvement Act whereunder every improvement scheme "may provide for the construction of buildings for the accommodation of the poorer and working classes, including the whole or part of such classes to be displaced in the execution of the scheme." This provision, it is argued.
clothes the appellant, in his capacity as a displaced person with a right to allotment of land for construction of a building for his own residence.
We will presently consider these two submissions seriatim.
To make short work of the first point we may straightway state that the obligation under section 16(2) is to serve notices on persons whose names appear in the land revenue register as being primarily liable to pay the land revenue assessment.
The complaint made is that the predecessors of the appellant Giliteppa and Nanjappa were.
167 entitled to notice under this provision and 'that they had not been so given.
Of course, there is no affidavit from these two vendors of the appellant that they have not re ceived any notice.
Apart from that the burden is on the appellant to prove that his vendors were persons whose names were borne on the land revenue register.
This is a question of fact but the moot point debated before the High Court was what in law was the land revenue register.
Cer tainly notice has been given to Khatedars.
The return of the respondents states that "notified Khatedars were notified of the acquisition".
exhibit R I produced alongwith the return shows one Somayaji as the Khatedar, not the vendors of the appellant.
This disputed point was investi gated by the High Court with a thoroughness and intimate acquaintance with the local revenue laws which elicits our appreciation.
Considering the documentary evidence adduced and the authoritative revenue laws bearing on the subject and scanning the meaning of the entries in the extracts before Court, the learned Judges reached the conclusion that the Khatta produced by the appellant was "a mere tentative compilation of information transmitted to the Revenue De partment by the Inams Abolition Department" and not "Khetwar Patrak" which was the land revenue register within the meaning of section 16(2) of the Improvement Act.
The High Court concluded: "We are of the opinion 'that the land revenue register to which section 16(2) refers is no other than the register of lands the Khetwar Patrak, and, that register is not the Khatta which is something very different." Further, on, after full discussion the Court crystallized its conclusions thus: "Even though a person may be an occupant in the sense in which that word has to be understood, so long as it is not proved that his name appears in the land revenue register, at the material point of time, we should not pronounce against the validity of the acquisition or the publication of a declaration under section 18 on the slender foundation of insufficient material such as the certified copy of a tentative Khata which we have referred." Indeed, the appellant produced some wrong documents but the Court was too cute to be misled as is evident from its observation: "It emerges from the discussion so far made that that land revenue register is no other than the register of lands or the Khetwar Patrak which has to be maintained in form No. 1 which is set out in volume 2 of the Mysore Village Manual at page 8(a), and, we do not have before us either that register of lands or a certified copy of it and no exlplanation has been offered to us as to why the petitioner did not obtain a copy of that register or produce it." After hearing Shri Gupte at some length we are not disposed to be dislodged from the finding painstakingly recorded by the High Court.
The first point, therefore, fails.
168 The only other point seriously pressed before us by Shri Gupte is that under section 15(3) there is an obligation on the part of the Board of Trustees to provide a plot to the displaced appellant.
There is nothing in Section 15(3) of the Improvement Act which warrants.
such a compulsive duty or creates a right to claim a plot.
Of course, the Board may consider providing some land for the persons from whom acquisitions have been made.
This is a beneficient consideration, not a necessary obligation.
That this is so clear also from the rules for the allotment of sites.
Rule 10 settles the principle for selection of applicants for allotment of sites.
Rule 10(1) reads: "10.
Principles for selection of applicants for allotment of sites. (1) The Board shall consider the case of each applicant on its merits and shall have regard to the following principles in making selection and fixing the priority for allotment : (i) applicants whose lands or houses have been acquired by the Board provided they are otherwise qualified for allotment; (ii) the status of the applicant, that is, whether he is married or single and has dependent children; (iii) the income of the applicant and his capacity to purchase a site and build a house thereon for his residence; (iv) the number of years the applicant has been waiting for allotment of a site and the fact that he did not secure a site earlier though he is eligible and had applied for a site.
" The facts before us are that the lands acquired have already been transferred to the Housing Board and houses have al ready been built at least on a substantial part of the land.
All that we can say, at this stage, is that having regard to the compassionate factor that the appellant 's lands have been acquired and he has perhaps been displaced from the entirety of his building sites, it should be a fair gesture on the part of the Housing Board if there are vacant lands still avail able the order of stay granted by this Court is strongly suggestive of some land being still available as not built upon to consider 'the claim of the appellant, if he applies within three months from today for allotment of a site for a house, subject, of course, to his eligibility for allotment and other criteria for comparative evaluation of claims prescribed by the rules in this behalf.
It follows that beyond this is not for the Court to direct and less than this is not fair play to the appellant.
The High Court had gone into the question of delay disentitling the appellant in maintaining his writ petition.
In the view that we have already taken on the merits of the substantive points, we are not 169 called upon to consider the deadly effect of the delay such as there is between the dates of the acquisition notifica tion and the institution of the writ petition.
The appeal is dismissed but having consideration for the conspectus of circumstances present in this case we direct that the par ties will bear their own costs throughout.
P.H.P. Appeal dismissed.
| IN-Abs | The appellant purchased the land in question from Gili teppa and Nanjappa during the pendency of the land acquisi tion proceedings under the city of Bangalore Improvement Act 1945.
The acquisition was for building a house colony by the Housing Board whose statutory responsibility is to implement housing schemes.
The appellant challenged the acquisition before the High Court by filing a writ petition.
The High Court dismissed the writ petition.
In an appeal by special leave the appellant contended : 1.
There was non compliance with the mandatory requirement of section 16(2) of the Act which requires the service of notice on "every person whose name appears in the Land Revenue Register as being primarily liable to pay the property tax or land revenue".
Section 15(3) 'provides that the main scheme may provide for the construction of buildings for the proper and working classes including the whole or part of such classes to be displaced in the execution of this scheme.
The appellant whose land is acquired being displaced is entitled to allotment of land for construction of a building.
for his own residence.
Dismissing the appeal, HELD: (1) The High Court on evidence rightly held that in the revenue register the names of predecessors in title of Giliteppa and Nanjappa were shown and that he was given due notice.
The document produced by the appellant was not the revenue register as contemplated by section 16(2).
[167A C, F]: ' (2) Section 15(3) does not impose a compulsory duty or a right in appellant to Claim a plot.
It is clear from rule 10 made under the Act that the person displaced by the acquisition may be accomodated.
However, this is a benefi cient consideration and not a necessary obligation.
[168A C] [The Court observed that in case any land is available, and if the appellant fulfils the other criteria prescribed by the rules the respondent may consider his claim.]
|
Appeal No. 2061/1971.
(From the Judgment and Order dated the 13th May, 1970 of the Allahabad High Court in Civil Misc.
Writ No. 1249 of 1970).
S.C. Manchanda and O.P. Rana, for the Appellant.
J. Ramamurthi, (amicus curiae) for Respondents.
The Judgment of the Court was delivered by 134 KHANNA, J.
This appeal on certificate is against the judgment of Allahabad High Court whereby the High Court accepted petition under article 226 of the Constitution of India filed by the respondent and quashed the recovery proceedings initiated by the appellant.
The respondent firm was assessed to sales tax under the U.P. Sales Tax Act, 1948 (hereinafter referred to as the Act) for the assessment year 1958 59.
The respondent went up in appeal and the tax demand was reduced in appeal.
On revision filed by the respondent the total demand of sales tax was further reduced.
The respondent made various payments towards the amount of tax found due from him.
The sales tax authorities initiated proceedings for ' recovering ' the balance of the tax and realising interest at the rate of 18 per cent from February 1, 1964 on part of the tax demand.
These recovery proceedings were challenged by the respondent by means of writ petition on the ground that a fresh notice of demand should have been issued to him in respect of the amount as reduced in appeal and revision.
Unless that was done, the respondent could not be treated as a default er.
The liability for payment of interest of the respond ent was also questioned.
The High Court accepted the first contention and quashed the recovery proceedings.
We have heard Mr. Manchanda on behalf of the appel lant.
No one appeared on behalf of the respondent.
Mr. Ramamurthi, however, argued the case amicus curiae.
After giving the matter our consideration, we are of the opinion that the judgment under ' appeal cannot be sustained.
Two questions arise for determination in this appeal.
The first question is whether the respondent is liable to pay interest on the amount due from him as sales tax.
The answer to this question, in our opinion, should be in the affirmative in view of the provisions of sub section (1A) of section 8 of the Act.
The aforesaid sub section as also sub section (1) and (8) of that section read as under: "8.
Payment and recovery of tax. (1) The tax assessed under this Act shall be paid in such manner and in such instalments, if any, and within such time, not being less than fifteen days from the date of service of the notice of assessment and demand as may be specified in the notice.
In default of such payment, the ,,whole of the amount then remaining due shall become recoverable in accordance with sub section (8).
(1 A) If the tax payable under sub section (1) remains unpaid for six months after the expiry of the time specified in the notice of assessment and demand or, the commencement of the Uttar Pradesh Bikri Kar (Dwitiya Sanshodhan) Adhiniyam, 1963, whichever is later, then, without prejudice to any other liability or penalty which the de faulter may, in consequence of such non payment, incur under this Act, simple interest at the rate of eighteen per cent for annum shall run on the amount then remain 135 ing due from the date of expiry of the time specified in the said notice, or from the commencement of the said Adhiniyam, as the case may be, and shall be added to the amount of tax and be deemed for all purposes to be part of the tax: Provided that where as a result of appeal, revision or reference, or of any other order of a competent court or authority, the amount of tax is varied, the interest shall be recalculated accordingly.
Provided further that the interest on the excess amount of tax payable under an order of enhancement shall run from the date of such order if such excess remains unpaid for six months after the order . (8) Any tax or other dues payable to the State Government under tiffs Act, or any amount of money which a person is required to pay to the assessing authority under sub section (3) or for which he is personally liable to the assessing authority under sub section (6) shall be recoverable as arrears of land revenue.
" This Court considered the above provisions in the case of Haji Lal Mohd. Biri WOrks vs State of U.P.(1) and held that the liability to pay interest under section 8(1 A) is auto matic and arises by operation of law.
It was further ob served in that case that .it is not necessary for the sales tax officer to specify the amount of interest in the recov ery certificate.
We may add that there is no dispute in the present case that the notice of assessment and demand was served upon the assessee respondent.
The respondent cannot, therefore, escape liability for payment of interest.
The second question which arises for consideration is whether it was necessary for the sales tax authorities to issue a fresh notice of demand to the respondent after the tax assessed by the sales tax officer was reduced on appeal and further reduced on revision.
So far as this question is concerned, we find that sub section (9) has been added in section '8 of the Act by the U.P. Sales Tax (Amendment) Act (3 of 1971).
The aforesaid sub section reads as under: "(9) Notwithstanding anything contained in sub section (1) and (1 A) and notwithstanding any judgment, decree or order of any court, tribunal or other authority, where any notice of assessment and demand in respect of any tax or other dues under this Act is served upon a dealer by an assessing authority and an appeal, revision or other proceeding is filed in respect of such tax or dues, then (a) where as a result of such appeal, revision or proceeding the amount of such tax or other dues is enhanced, the assessing authority shall serve upon the dealer a fresh notice only in respect of the amount by which such tax or other dues are enhanced and any proceeding in relation (1) 32 S.T.C. 496.
136 to the amount specified in the notice already served upon him before the disposal of such appeal, revision or other proceeding may be continued from the stage at which it stood immediately before such disposal; (b) where as a result of such appeal, revision or other proceeding the amount of such tax or other dues is reduced, (i) it shall not be necessary for the assessing authority to serve upon the dealer a fresh notice; (ii) if any recovery proceedings are pending, the assessing authority shall give intimation of the fact of such reduction to the Collector who shall thereupon take steps for the recovery of only the reduced amount.; and (iii) any proceedings initiated on the basis of the notice or notices served upon the dealer before the disposal of such appeal, revision or other proceeding, including any recovery proceedings may be continued in relation to the amount so reduced from the stage at which it stood immediately before such disposal; (c) no fresh notice shall be necessary in any case where the amount of the tax or other dues is not varied as a result of such appeal, revision or other proceeding.
" It is apparent from clause (b) of sub section (9) that where as a result of appeal, revision or other proceedings the amount of the tax or other dues is reduced, it shall not be necessary for the assessing authority to serve upon the dealer a fresh notice.
The Allahabad High Court has also taken the same view in the case of Firm Parshuram Rameshwar Lal vs State of U.P.(3) In view of the above, we accept the appeal, set aside the judgment of the High Court and dismiss the writ petition filed by the respondent.
The parties in the circumstances shall bear their own costs throughout.
P.H.P. Appeal al lowed.
| IN-Abs | The respondent firm was assessed to sales tax under the Uttar Pradesh Sales Tax Act 1948 for the assessment year 1958 59.
On an appeal filed by the respondent the quantum of tax was reduced.
On a revision filed by the respondent made various payments towards the amount of tax found due from time to time. 'the Revenue initiated proceedings for recovering the balance of the tax and realising interest at the rate of 18 per cent.
The Revenue did not issue any fresh notice of demand after the tax was reduced but origi nally demand notice for the entire sum for which the re spondent was assessed was issued.
In a Writ Petition filed by the assessee the High Court quashed the recovery proceedings on the ground that a fresh notice of demand should have been issued to the respondent in respect of the amount as reduced in appeal and the revi sion.
Allowing the appeal by special leave, HELD: (1) Section 8 of the Act was amended by adding sub section (9) thereto by U.P. Sales Tax Amendment Act (3 of 1971).
The said sub section provides that notwithstand ing any judgment, decree etc.
where any notice of assessment and demand in respect of any tax or other dues is served upon a dealer by an Assessing Authority and where as a result of appeal or revision filed by the assessee the amount of tax is reduced it shall not be necessary for the Assessing Authority to serve upon the dealer a fresh notice.
The High Court judgment was, therefore, erroneous.
[135F, H, 136 A E] Firm Parshuram Rameshwar Lal vs State of U.P. 33, STC 540 approved.
(2) Section 8(1A) of the Act provides for payment of interest at the rate of 18 per cent on the tax amount re maining due from the expiry of the time specified in the notice of demand, till the.
date of payment.
The court in Haji Lal Mohammad vs State of U.P. has held that the li ability to pay the interest under section 8(IA) is automatic and arises by operation of law and that it is not necessary to mention the amount of interest in the recovery certifi cate.
[134 E H, 135 A E] Haji Lal Mohd. Biri Works vs State of U.P., 32 STC 496 followed.
|
: Criminal Appeal No. 411 of 1976.
Appeal by Special Leave from the Judgment and Order dated the 22nd April, 1975 of the Delhi High Court in Crimi nal Revision No. 258 of 1974.
Frank Anthony and D. Gobrudhan for the Appellant.
R.N. Sachthey `(Not present) for Respondent No. 1.
G.S. Vohra, S.K. Gambhir and K.L. Taneja for Respondent No. 2.
The Judgment of the Court was delivered by SHINGHAL, J.
This appeal of Smt.
Parmeshwari Devi, by special leave, arises from the judgment of the Delhi High Court dated April 22, 1975 dismissing her application for revision of the order of the Additional Sessions Judge of Delhi dated August 29, 1974, confirming the order of a Metropolitan Magistrate of Delhi dated August 8, 1974.
The facts giving rise to the appeal are quite simple and may be shortly stated.
A complaint was filed by respondent N.L. Gupta on behalf of Smt.
Patashi Devi for the commission of offences under sections 181, 182, 193, 197, 199, 200, 465, 466 and 471 of the Indian Penal Code by Nand Kishore, Ghanshyam Das and Sanwar Mal.
It was alleged that Smt.
Patashi Devi had one fifth share in the firm of M/s Gupta Electric and Machinery.
Stores of which Smt.
Parmeshwari Devi (the present appellant), Smt.
Dropadi Devi and Madan Lal Gupta were the other partners.
According to the complaint, the business of the firm was mainly looked after by Smt.
Parmeshwari Devi 's husband Mohan Lal and accused No. 1 who was here brother.
Patashi Devi and two other partners "retired" from the business on April 1, 1968 without settling the accounts.
Patashi Devi asked Mohan Lal and accused No. 1 who was her brother Smt.
Patashi settling accounts.
Accused No. 2 filed an attested copy of a deed of dissolution, alleged to be signed by Smt.
Patashi Devi, in the office of the Registrar of Firms on November 14, 1968, along with an intimation of the dissolution of the firm which also purported to be signed by her.
The complainant filed an application under section 94 of the Code of Criminal Procedure, 1898, hereinafter. referred to as the Code, for a direction to the accused to file the original deed of dissolution.
The accused however stated in the court that they were employees of the firm and the document was not in their possession.
The complainant then made another application on .March.
28, 1974 under section 94 with a prayer that Smt.
Parmeshwan Devi may be directed to produce the document.
The court made an order on March 28, 1974 summoning Smt.
Parmeshwan Devi, with the document.
She stated in her reply that she did not know anything about the document and that after her husband 's death the com plainant had taken away all the records of the firm.
She stated further that she was a 'Pardanashin ' 12 1458SCI/76 162 lady living in Calcutta and need not be summoned in the court.
The Metropolitan Magistrate thereupon made order dated August 8, 1974 as follows, "In my view when a person is summoned to attend the Court it is desirable that such summoned person attends and made statement on oath that he is not in the possession of the documents summoned, so that the court may take further steps to secure the production of the documents as envisaged u/s 96 Cr.
P.C. Merely sending a reply through an Advt.
that the document is not in his possession is not sufficient compliance of the order.
The request of the Ld. counsel for Parmeshwari Devi that a commission may be issued for recording the statement of Smt.
Parmeshwari Devi cannot be granted as the case is already getting old and issuance of a commission would mean undesirable delay of the case.
The counsel for Smt.
Parmeshwari Devi Shri C.L. Mala is now requested to intimate Smt.
Parmeshwari Devi forthwith to attend this court and produce the document if in her possession on 30th August, 1974.
The Ld. counsel for Parmeshwari Devi has also stated that Smt.
Parmeshwari Devi is prepared to file an affidavit even to say that she is not in the possession of the documents summoned but in my view this also does not serve the purpose as calling of Smt.
Parmeshwari Devi in the court and recording her statement on an oath will give a chance to the court to put her a few questions for satisfying itself regarding the whereabouts of the document in question.
" As has been stated, Smt.
Parmeshwari Devi 's applications for revision of this order have been dismissed by the Additional Sessions Judge and the High Court and this is how she has come in appeal to this Court.
It will be recalled that it was the complainant who made an application under section 94 of the Code stating that as the deed of dissolution of the partnership was essential for the trial of the case, Smt.
Parmeshwari Devi may be directed to produce it.
Parmeshwari Devi was not a party to the case, and no reason whatsoever was given in the application why the document was likely to be in her possession or power beyond stating that the accused had stated in their reply the earlier application under section 94 that they were employees of the firm and were not in possession of the document, and she was the widow of the late Mohan Lal Gupta.
The Magistrate therefore "summoned" her "with the document" by his order dated March 28, 1974 which is not, however, the subject matter of controversy before us.
The question is whether the subsequent order of the Magistrate dated August 8, 1974 is according to law by which Smt.
Parmeshwari Devi has been directed to attend the court so that if she made a "statement on oath" that she is not in possession of the document, the court may get a chance to "put her a few questions for satisfying itself regarding the whereabouts of the documents ? 163 Chapter VII of the Code deals, inter alia, with process to compel the production of documents.
Sub section (1 ) of section 94, which deals with summons to produce any docu ment, merely authorises the court to issue a summons to the person in whose possession or power such document is be lieved to be, requiring him to "attend and produce it, or to produce, it, at the time and place stated in the summons." According to sub section (2) a person required under the section merely to produce a document shall be deemed to have complied with the requisition if he "causes such document . to be produced instead of attending person ally to produce the same".
There is nothing in the chapter to provide that the person who appears in the court, in pursuance of its summons under sub section (1) of section 94, thereby becomes a witness and can be examined and cross examined by the court although he has not been cited as a witness in the proceedings.
Even if a person produces the document for which a summons has been issued to him, section 139 of the Evidence Act clearly provides that he does not thereby become a witness by the mere fact that he produces it, and he cannot be cross examined unless and .until he is called as a witness.
So when Smt.
Parmesh wari Devi filed a reply to the application of the complain ant under section 94 of the Code stating that she did not know anything about the deed of dissolution and it was not in her possession, the utmost that the Magistrate could do was to issue a search warrant under sub section (1 ) of section 96 if he had reason to believe that she will not or would not produce the document as required by the summons.
It was also permissible for the Magistrate to order a search of Smt.
Parmeshwari Devi 's house under section 98 of the COde if it appeared to him that the requirements of that section had been fulfilled.
But there is no provision in the Code under which the court could record her statement on oath, on her inability to produce the document, or "put her a few questions for satisfying itself regarding the where abouts of the document.
" In the facts and circumstances of the case, no further action is in fact called for against the appellant.
The Additional Sessions Judge and the High Court went wrong in taking a contrary view.
It has been argued that the order of the Magistrate dated August 8, 1974 was an interlocutory order and the power of revision conferred by sub section (1) of section 397 of the Code of Criminal Procedure, 1974, could not be exercised in relation to it by virtue of sub section (2).
The Code does not define an interlocutory order, but it obviously is an intermediate order, made during the prelimi nary stages of an enquiry or trial.
The purpose of sub section (2) of section 397 is to keep such an order outside the purview of the power of revision so that the enquiry or trial may proceed without delay.
This is not likely to prejudice the aggrieved party for it can always challenge it in due course if the final order goes against it.
But it does not follow that if the order is directed against a person who is not a party to the enquiry or trial, and he will have no opportunity to challenge it after a final order is made affecting the parties concerned, he cannot apply for its revision even if it is directed against him and adverse ly affects his rights.
164 A somewhat similar argument came up for consideration before this Court in Mohan Lal Magan Lal Thacker vs State of Gujarat(1).
The controversy there centred round the meaning of article 134(1) (c) of the Constitution and the Court examined the meaning of the words "final" and "interlocuto ry".
It was held that the meaning "had to be considered separately in relation to the particular purpose for which it is required" to be interpreted.
No single test can be applied ' to determine whether an order is final or interloc utory.
Then it has been held by this Court in that case as follows ' "An interlocutory order, though not conclusive of the main dispute may be conclusive as to the subordinate matter with which it deals.".
It may thus be conclusive with reference to the stage at which it is made, and it may also be conclusive as to a person, who is not a party to the enquiry or trial, against whom it is directed.
As has been shown, the order of the Magistrate dated August 8, 1974 was not according to law and it adversely affected the appellant, who was not a party to the enquiry or trial, as it was solely directed against her.
As is obvious, she could have no opportunity to challenge it after the making of the final order, and such a belated challenge would have been purposeless for it would have given her no relief.
So in so far as the appellant is concerned, the order of the Magistrate could not be said to be an interlocutory order and the revisional courts erred in raising the bar of sub section (2) of section 397 against it.
We have gone through Dhola and others vs State(2) and The Central Bank of India Ltd. vs Gokal Chand(3) cited by Mr. Vohra.
Dhota 's case related to the grant of ball, and Gokal Chand 's case related to a right of appeal under sec tion 38(1) of the Delhi Rent Control Act against an order made inter partes.
They cannot therefore avail the respond ent in this case.
For the foregoing reasons, the appeal is allowed and the impugned orders of the High Court dated April 22, 1975 and of the Metropolitan Magistrate dated August 8, 1974 are set aside.
V.P.S. Appeal al lowed.
(1) ; (2) (1975) Crl.
L.J. (1) 1274.
| IN-Abs | Section 94(1), Cr. P.C., 1898, which deals with summons to produce any document, authorises the court to issue a sum mons to the person in whose, possession or power such docu ment is believed to be, requiring him to attend and produce it.
or to produce it at the time and place stated in the summons.
According to sub s.(2) a person required merely to produce a document shall be deemed to have complied with the requisition if he causes such document to be produced in stead of attending personally to produce it.
In the present case, during a criminal trial, the complain ant flied art application under section 94, for a direction to the accused to produce a document.
The accused stated that the document was not in their possession.
The complainant then made another application under the section praying that the appellant may be directed to produce the document.
The appellant was not a party to the case and no reason .whatso ever was given by the complainant in the application why the document was likely to be in appellant 's possession or power.
The Magistrate then passed an order summoning the appellant with the document.
The appellant, in her reply, professed ignorance of the document and stated that as she was a "pardanashin" lady she may not be sumoned to court.
The Magistrate thereupon passed another order directing her to attend the Court so that if she made a 'statement on oath ' that she was not in possession of the document, the Court may get a chance to put her a few questions for satis fying itself regarding the whereabouts of the document.
The appellant 's revision petitions against the order to the District Court and High Court were dismissed.
Allowing the appeal to this Court, HELD: (1) There is nothing in the Criminal.
Procedure Code providing that the person who appears in Court, in pursuance of a summons under section 94(1), becomes a witness and can be examined and cross examined even though he has not been cited as a witness.
Section 139, Evidence Act, also pro vides that if a person produces the document for which a summons has been issued to him, he does not thereby become a witness and that he cannot be cross examined until he is called as a witness.
All that the Magistrate could do was to issue search warrants under section 96(1) or section 98 if the, requirements of those sections were satisfied.
The Court could not therefore record the appellant 's statement on oath on her inability to produce the document, or put her a few questions for satisfying itself regarding its whereabouts.
[163C E] (2) The order, which was thus not according to law adversely affected the appellant who was not a party to the enquiry or trial.
Obviously she could have no opportunity to challenge it at the end of the trial, and such belated challenge would also be purposeless.
Therefore, the order could not be said to be an interlocutory order and the revisional courts erred in raising the bar of section 397(3), Cr.
P.C. 1974.
[164C D] Mohan Lal Magan Lal Thacker vs State of Gujarat ; , followed.
|
Appeal No. 1043 of 1976.
Appeal by Special Leave from the Judgment and Order dated 9 3 1976 of the Allahabad High Court in Civil Misc., Petn.
No. 6938/74.
K.P. Kapur and A.L. Trehan, for the appellant.
S.C. Agrawal and M.M.D. Srivastava, for respondent No. 2.
The Judgment of the Court was delivered by GOSWAMI, J.
This appeal by special leave is by the tenant (to be described hereinafter as the appellant) and is directed against the judgment of the High Court of Allahabad in a writ petition at his 171 instance which was dismissed.
The District Judge, Dehradun, who had earlier dismissed his appeal, has been impleaded as respondent No. 1.
The facts may briefly be stated: The appellant is admittedly the tenant under the 2nd respondent (to be described herinafter as the respondent) in respect of two rooms of House No. 11, Rajput Road, Dehradun.
This house has four rooms of which only two rooms are in occupation of the appellant.
The other two rooms are in occupation of the respondent whose two sons stay there; the eider one living with his wife.
The respondent is an old lady with an ailing husband and wants to have vacant posses sion of the two rooms so that the entire family can reside at the same place.
With that end in view, on June 22, 1972, the respondent filed an application under section 3 of the United Provinces (Temporary) Control of Rent and Eviction Act, 1947 (U.P. Act No. III of 1947) for permission to bring a suit against the appellant for his eviction on the ground of bona fide personal requirement.
During the pendency of this application before the Rent Control and Eviction Offi cer, the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972 (U.P. Act No. 13 of 1972) (hereinaf ter to be referred to as the Act) came into force with effect from July 15, 1972, repealing the earlier Act of 1947 with certain savings as mentioned in section 43 of the Act.
As a consequence of enforcement of the Act the proceedings under section 3 that were pending under the earlier Act converted into one under section 21 of the new Act (U.P. Act No. 13 of 1972).
The prescribed authority (The Additional District Magistrate) rejected the application.
The respond ent then preferred an appeal to the District Judge, Dehra dun, who allowed the same on the ground of bona fide re quirement relying on the sole ground that Explanation (iv) to section 21(1) of the Act was applicable to the facts of the case.
The appellant being aggrieved by the order of 'the District Judge preferred a writ application before the High Court which, as stated earlier, was disallowed.
Before we deal with the question of law raised in this appeal we may note the findings of fact reached by the District Judge.
The District Judge found as follows : "It will appear that the house in question is a residential building.
It has been built for residential purposes and is being primarily used therefor.
Simply because the tenant is also carrying on the business of tailoring in one of the rooms will not convert it into non residential building.
The landlady is admittedly occupying the remaining portion thereof.
" Even the prescribed authority at the first instance had observed as follows in his order : "I have inspected the demised premises situated at 11, Rajpur Road, Dehradun in the presence of both the parties.
On inspection it was found that disputed house is one building fin which one portion is in the possession of the respondent tenant.
The one portion of the building is in the occupation of the applicant for residential purposes.
The respondent has two small rooms and a very small courtyard.
Out of those two rooms each one is about 8 wide and 8 long, there is a tailoring shop of the respondent.
The other room is being used for residential purposes.
The applicant has two rooms of the same size and one additional courtyard.
" The question that arises for consideration is whether Explanation (iv) of clause (1) of section 21 of the Act has been correctly held to be applicable by the District Judge and the High Court to the facts as found.
Explanation (iv) of section 21 (1) reads as follows : "In the case of a residential building (iv) the fact that the building under tenancy is a part of a building the remaining part whereof is in the occupation of the landlord for residential purposes, shah be conclusive to prove that the building is bona fide required by the landlord.
" It is submitted by the appellant that the building under tenancy is not a residential building and, therefore, the condition precedent to the application of Explanation (iv) is absent in this case.
According to counsel since the tenant is admittedly running a tailoring shop in one of the two rooms under his occupation the house ceases to be a residential building.
We are unable to accept this submission.
The appellant has only two small rooms in which he resides with his wife, two young sons and one daughter and although he may have a tailoring shop in one of his rooms it is not unlikely that that very room is utilised as bed room for one or two mem bers of his family at night.
The fact that he runs a tai loring shop in one of the rooms is not sufficient to convert what otherwise to all intents and purposes is a residential building into a non residential building.
The tests for application of Explanation (iv) are as follows : (1) the building should be a residential building; and (2) the landlord must be in occupation of a.part of the building for residential purposes, the other part being in the occupation of the tenant.
If the above two tests are fulfilled in a case it will furnish under the law a conclusive proof that the building is, bona fide, required by the Landlord.
There is no need for the landlord to establish any other requirement.
Expla nation (iv) provides a conclusive and irrebuttable presump tion of bona fide requirement once the conditions mentioned therein are established.
The two tests are fulfil.led in this case on the findings of fact as noted above.
We are of opinion that the District 173 Judge was right in his finding that Explanation (iv) of section 21 (1) was applicable which view was also later upheld by the High Court.
The High Court was, therefore, right in dismissing the writ application.
We may observe that we are not required to consider, in this appeal, the effect of the Amendment Act 28 of 1976, which came into force on July 5, 1976, whereby Explanation (iv) was omitted; nor has any argument been advanced in that connection.
There is no merit in this appeal which is dismissed.
We will, however, make no order as to costs.
The appellant may continue in possession of the suit premises till 30th April, 1977.
He shall hand over vacant and peaceful posses sion thereof on May 1, 1977, to the respondent.
M.R. Appeal dis missed.
| IN-Abs | The appellant was a tenant occupying two rooms in the residential house of respondent No. 2.
He used one room for living purposes and the other as a tailoring shop.
The landlady brought a suit for his eviction on the ground of personal requirement.
but the same was dismissed by the District Magistrate.
An appeal to the District Judge Dehra dun was allowed, and Explanation (iv) to section 21(1) of the U.P. Urban Buildings (Regulation of Letting, Rent and Evic tion) Act, 1972 was held applicable.
The view was upheld by the High Court in petition filed by the appellant who con tended that due to his shop the house under tenancy had ceased to be a residential building and that Explanation (iv) was not applicable.
The High Court rejected the peti tion.
Dismissing the appeal, the Court HELD: Explanation (iv) provides a conclusive and irre buttable presumption of bona fide requirement once the conditions mentioned therein are established.
The tests for application of Explanation (iv) are as follows: (1) The building should be a residential building; and (2) The landlord must be in occupation of a part of the building for residential purposes, the other part being in the occupation of the tenant.
If the above two tests are fulfilled in a case, there is no need for the landlord to establish any other requirement.
[172F H] (2) The fact that a tailoring shop is run in one of the rooms is not sufficient to convert what otherwise to all intents and purposes is a residential building, into a non residential building.
[172E F]
|
Civil Appeal Nos.
1805 to 1808 of 1968.
Appeal from the Judgment and Decree dated the 24th May, 1963 of the Allahabad High Court in Special Appeals Nos.
108 to 111 of 1963.
R.S. Gae, (in CA.
1805/68) and 1.
John, for the Appel lants in all the Appeals.
Ex parte, for Respondents in all the appeals.
192 The Judgment of the Court was delivered by RAY, C.J.
These four appeals by certificate raise two questions.
First, whether the provisions of section 108 of the are mandatory in regard to transfer of shares.
Second, can.a company having been served with notice of attachment of shares.
register transfer of shares in contravention of the order of attachment.
The appellant Mannalal Khetan and the respondents Kedar Nath Khetan and Durga Prasad Khetan are members belonging to two branches of the Khetan Family.
The respondent Lakshmi Devi Sugar Mills Private Ltd. is a private company.
It was incorporated on 7 April 1934 under the Indian Companies Act, 1913.
The Khetan family held shares in the respondent company and in two other companies Maheshwari Khetan Sugar Mills Private Ltd. and Ishwari Khetan Sugar Mills Private Ltd. the shares stood in the names of (1) M/s. Ganeshnarayan Onkarmal Khetan, (2) M/s. Sagarmal Hariram Khetan, (3) Sri Mannalal Khetan and (4) Sri Radhakrishna Khetan.
The members of the Khetan family did partnership business at various places.
Civil Suit No. 337 of 1948 was filed in the Bombay High Court for dissolution of the part nership and for taking the accounts.
On 3 July 1953 the Official Receiver of the Bombay High Court was appointed Receiver of the properties of the partnership firms.
There were large income tax arrears and other tax li abilities outstanding against the firms and individual partners.
For the realisation of the income tax dues the Income Tax Department issued in 1950 a notice under section 46(5)(a) of the Indian Income Tax Act, 1922 requiring the respondent company to pay any amount due to the firm of Ganesh Narayan Onkarmal or its partners to that department.
On 16 June, 1953 a Receiver was appointed by the Collec tor of Bombay in execution of the tax recovery certificate issued by the Income Tax Officer section VI Central Bombay.
Subsequently under orders of the Bombay High Court the Receiver appointed by the Collector of Bombay took over papers of the dissolved firm from the Receiver appointed by the Bombay High Court.
The Receiver appointed by the Collector of Bombay also took possession of shares standing in the names of M/s. Sagarmal Hariram Khetan, Sri Mannalal Khetan and Sri Radhakrishna Khetan along with blank transfer deeds signed by them.
The Additional Collector of Bombay issued to the Collec tor of Deoria two certificates under which on 8 March 1954 and 18/31 October 1955 certain shares of the respondent company belonging to the Khetans were attached under Order 21 Rule 46 of the Code of Civil Procedure.
On 31 July, 1957 the members of the Khetan family entered into agreement among them for exchange of blocks of shares held by them in the respondent company and other.
companies in settlement of their differences and disputes.
These agreements provided for 193 transfer of shares in the respondent company and in the Maheshwari Khetan Sugar Mills Private Ltd. belonging to Sugarreal Hariram and Ganesh Narayan Onkarnath groups to which the appellants belonged to the group of Kedarnath Khetan to which respondents 1 and 2 belonged.
These trans fers were in lieu of shares in Ishwari Khetan Sugar Mills Private Ltd. to be transferred by the group of respondents 1 and 2 to the group of the appellant.
It is significant to notice that the agreements recited that the shares in the respondent company were under attachment of the Income Tax authorities, and, therefore, they could not be immediately transferred.
The agreement was that as soon as the transfer of the shares became permissible or if the Income Tax au thorities so permitted, transfers as agreed and contemplated would be effective.
On 8 April, 1958 and 3 October, 1959 the Board of Direc tors of the respondent company passed a resolution for transfer of the shares belonging to the appellant group to the group of respondents No. 1 and 2.
These resolutions were passed on the applications made on behalf of respond ents No. 1 and 2 and others of their group.
The shares were thereafter entered in the respondent company 's register in the names of respondents No. 1 and 2 and others of their group.
On 14 January, 1962 the appellant along with Kamla Prasad Khetan and Mataden Khetan gave notice to respondent No. 1 and Durga Prasad Khetan that the shares of the Ishwari Khetan Sugar Mills Private Ltd. which were under attachment of the Income Tax authorities had been sold by the Addition al Collector of Bombay on 23 September, 1961.
The notice stated that the agreements had become impossible of per formance and the consideration of reciprocal promises disap peared.
The notice further stated that the powers of attor ney executed in favour of the respondent company by the appellant in respect of their shares in the Maheshwari Khetan Sugar Mills Private Ltd. and Laxmi Devi Sugar Mills Private Ltd. were revoked and cancelled.
The notice con cluded by saying that the respondents had no right, authori ty, or power to act on behalf of or in the name of the appellants in pursuance of the said power of attorney.
By another notice dated 14 January, 1962 the appellants informed the respondent company that the transfer of shares in the company 's register had been made illegally and with out authority because no proper instruments of transfer duly stamped and executed by and/or on behalf of the appellants were delivered to the respondent company and that the shares were under attachment by the Collector of Deoria for recov ery of income tax arrears on the certificate issued by the Additional Collector of Bombay.
The notice to the respond ent company also said that certain shares in blank transfer forms were in possession of the Receiver appointed by the Additional Collector of Bombay in the income tax recovery proceedings.
The notice concluded by stating that the respondent company was informed that the alleged transfer of shares from the names of the appellants as well as the deletion of their names from the register was illegal and void.
Respondent No. 1 and Durga Prasad Khetan contended in answer to the notice that the appellant had no right, title or interest in the 14 1458SCI/76 194 shares mentioned in the notice, that the shares had not been transferred but had been transmitted subject to the orders of the Income Tax authorities under section 46(5)(a) of the Income Tax Act, and that the shares of the Ishwari Khetan Sugar Mills Ltd. were sold by the Additional Collector of Bombay in recovery of the income tax arrears in spite of.
the protests lodged by the respondent and that the power of attorney in respect of the shares could not be cancelled by the appellant.
The respondents denied that the transfers were illegal and without authority.
In this background the appellant on 17 July, 1962 filed a petition in the High Court of Allahabad under section 155 of the referred to as the Act against the respondents.
The appellant contended first that the trans fers of all the shares in the respondent company 's register were illegal because the transfers were without any proper instrument of transfer.
The appellant also contended that the transfers were in contravention of the mandatory provi sions of section 108 of the Act and articles of the respond ent company.
The second contention of the appellant was that no legal transfer of the 'shares in question should have been made because at the time of the alleged transfer the shares had been surrendered along with blank transfer forms to the Receiver appointed by the Collector of Bombay in execution proceedings for recovery of the income tax dues.
The appellant also alleged that other shares had been attached by the Collector of Deoria in pursuance of the two certificates issued by the Collector of Bombay under Order 21 Rule 46 of the Code of Civil Procedure.
The learned Single Judge directed the. respondent company to , rectify the register of its members by remov ing the names of respondents No. 1 and 2 and ' to restore the names of the original share holders.
The learned Single Judge rejected the contention of the respondents that it was a case of transmission of shares.
The learned Judge said that the transmission of shares occurred only by operation of law and this was a case of transfer by voluntary act of the parties which could not amount to transmission.
The learned Judge also held that although the transferees di vested themselves of all powers and control in respect of the shares in question by executing irrevocable powers of attorney in favour of the transferees, mere transfer of control did not amount to transfer of possession.
The learned Judge further held that the agreements to which reference has already been made were not instruments of transfer and the transfer of shares which were under attach ment in pursuance of the certificate issued by the Addition al Collector under Order 21 Rule 46 of the Code of Civil Procedure was illegal and void.
The transfer of the shares which had been surrendered to the Receiver appointed by the Collector of Bombay was also held by the learned Judge to be bad on the same ground.
The respondents preferred an appeal.
The Division Bench of the High Court set aside the order passed by the Company Judge and dismissed the applications of the appel lant.
The Division Bench held that the provisions contained in section 108 of the Act were directory and not mandatory.
The Division Bench also held that the provisions of section 64 of the Code of Civil Procedure and Order 21 Rule 46 195 prevailed over the prohibitory order contained in Form 18 in Appendix E of Schedule I of the Code.
The Division Bench held that the appointment of the.
Receiver did not divest a party of his right to property and the mere fact that shares were handed over to the Receiver with blank in struments of transfer did not make any difference.
The provision contained in section 108 of the Act states that "a company shall not register a transfer of share 's . unless a proper instrument of transfer duly stamped and executed by or on behalf of the transferor and by or on behalf of the transferee . . has been deliv ered to the company along with the certificate relating to the shares or debentures . . or if no such certifi cate is in existence along with the letter of allotment of the shares".
There are two provisos to section 108 of.
the Act.
We are not concerned With the first proviso 'in these appeals.
The second proviso states that nothing in this section shall prejudice any power of the company to register as shareholder or debenture holder any person to whom the right to any shares in, or debentures of, the company has been transmitted by operation of law.
The words "shall not register" are mandatory in character.
The mandatory charac ter is strengthened by the negative form of the language.
The prohibition against transfer without complying with the provisions of the Act is emphasised by the negative lan guage.
Negative language is worded 10 emphasise the insist ence of compliance with the provisions of the Act.
(See State of Bihar vs Maharajadhiraj Sir Kameshwar Singh of Darbhanga & Ors.(1), M. Pentiah & Ors.
vs Muddala Veeramal lappa & Ors.
(2) and Additional District Magistrate, Jabal pur vs Shivakant Shukla(3).
Negative words are clearly prohibitory and are Ordinarily used as a legislative.
device 'to make a statutory provision imperative.
In Raza Buland Sugar Co. Ltd. vs Municipal Board Rampur(4) this Court referred to various tests for finding out when a provision is mandatory or directory.
The purpose for which the provision has been made, its nature, the intention of the legislature in making the provision, the general inconvenience or injustice which may result to the person from reading the provision one way or the other, the relation of the particular provision to other provisions dealing with the same subject and the language of the provi sion are all to be considered.
Prohibition and negative words can rarely be directory.
It has been aptly stated that there is one way to obey the command and that is com pletely to refrain from doing the forbidden act.
Therefore, negative, prohibitory and exclusive words are indicative of the legislative intent when the statute is mandatory.
(See Maxwell on Interpretation of Statutes 11th Ed.
p. 362 seq.; Crawford Statutory Construction, Interpretation of Laws p. 523 and Seth Bikhraj Jaipuria vs Union of India(5).
(1) , 988 89.
(2) ; , 308.
(3) [1976] Supp.
S.C.R. 172.
(4) ; (5) ; , 893 94.
196 The High Court said that the provisions contained in section 108 of the Act are directory because non compliance with section 108 of the Act is not declared an offence.
The reason given by the High Court is that when the law does not prescribe the consequences or does not lay down penalty for non compliance with the provision contained in section 108 of the Act the provision is to be considered as directory.
The High Court failed to consider the provision contained in section 629(A) of the Act.
Section 629(A) of the Act pre scribes the penalty where no specific penalty is provided elsewhere in the Act.
It is a question of construction in each case whether the legislature intended to prohibit the doing of the act altogether, or namely to make the person who did it liable to pay the penalty.
Where a contract, express or implied, is expressly or by implication forbidden by statute, no court will lend its assistance to give it effect.
(See Mellis vs Shirley(1).
A contract is void if prohibited by a statute under a penalty, even without express declaration that the contract is void, because such a penalty implies a prohibition.
The penalty may be imposed with intent merely to deter persons from entering into the contract.
or for the purposes of revenue or that the contract shall not be entered into so as to be valid at law.
A distinction is sometimes made between contracts entered into with the object of committing an illegal act and contracts expressly or impliedly prohibited by statute.
The distinction is that in the former class one has only to look and see what acts the statute prohibits; it does not matter whether or not it prohibits a contract; if a contract is made to do a prohibited act, that contract will be unenforceable.
In the latter class, one has to consider not What act the statute prohibits, by what contracts it prohibits.
One is not concerned at all with the intent of the parties, if the parties enter into a prohibited contract, that contract is unenforceable.
(See St. John Shipping Corporation vs Joseph Rank(").
See also Halsbury 's Laws of England Third Edition Vol. 8, p.141).
It is well established that a contract which involves in its fulfilment the doing of an act prohibited by statute is void.
The legal maxim 'A pactis privatorum publico juri non derogatur means that 'private agreements cannot alter the general law.
Where a contract, express or implied, is expressly or by implication forbidden by statute, no court can lend its assistance to give it effect.
(See Mellis vs Shirley L.B.) (Supra).
What is done in contravention of the provisions of an Act of the Legislature cannot be made the subject of an action.
If anything is against law though it iS not prohibited in the statute but only a penalty is annexed the agreement is void.
In every case where a statute inflicts a penalty for doing an act, though the act be not prohibited, yet the thing is unlawful, because it is not intended that a statute would inflict a penalty for a lawful act.
Penalties are imposed by statute for two distinct pur poses (1) for the protection of the public against fraud, or for some other object of public policy; (2) for the purpose of securing .certain sources of (1) (2) 197 revenue either to the state or to.
certain public bodies.
If it is clear that a penalty is imposed by statute for the purpose of preventing something from being done on some ground of public policy, the thing prohibited, if done, will be treated as void, even though the penalty imposed is not enforceable.
The provisions contained in section 108 of the Act are for the reason indicated earlier mandatory.
The High Court erred in holding that the provisions are directly.
Some of the shares were attached by the Collector of Deoria pursuant to two certificates issued by the Collector of Bombay.
Other shares were surrendered along with blank transfer forms to the Receiver appointed by the Collector .of
Bombay in execution proceedings.
Order 21 Rule 46 of the Code of Civil Procedure lays down that in the case of shares in the capital of a corpora tion the attachment shall be made by a written order prohib iting in the case of the share, the person in whose name the share may be standing from transferring the same.
In the present case, in addition to the prohibition issued under Order 21 Rule 46 a separate prohibitory order was issued to the company in Form No. 18 in Appendix E of the First Sched ule of the Code of Civil Procedure.
Therefore, the company by registering the transfer of 'shares was obviously permit ting the transfer and such action on the part of the company being in violation of the prohibition is contrary to law.
Shares which had not been attached but had been surren dered to the Receiver appointed by the Collector of Bombay came from the possession of the Receiver in the partnership suit.
The Receiver in the partnership suit took possession of the shares along with blank transfer forms in the year 1953.
When the Receiver held the scrips and the transfer forms it was not open to the persons in whose names the shares originally stood to exercise rights of ownership in respect thereof or to transfer their ownership to anyone else.
For the foregoing reasons we set aside the decision of the High Court.
The order of the learned Single Judge dated 5 March, 1963 is restored.
There will be no order as to costs.
P.B.R. Appeal allowed.
| IN-Abs | Section 108 of the provides that a company shall not register transfer of shares unless a proper instrument of transfer duly stamped and executed by or on behalf of the transferor and by or on behalf of the transferee has been delivered to the company along with the share certificate.
The appellants and the respondents were members of a family.
The family held shares in a company, and in addi tion, the members were doing partnership business.
To realise large sums of income tax dues from the firms and individual partners, the Income tax Department issued no tices to the company to pay to that department any amount due to the firm or its partners.
A receiver appointed by the Collector took possession of the appellants ' shares along with duly signed blank transfer deeds.
Later shares belonging to the family.
in the company were attached under O. 21, r. 46, C.P.C.
In the meantime the appel lants in settlement of their accounts with the respondents agreed for transfer of certain shares to the respondents as soon as the transfer became permissible.
At the instance of respondents 1 and 2, however, the company, by a resolution, transferred the appellants ' shares to the respondents.
The appellants gave notice to the respondents that the shares under attachment of the Incometax Department had been sold by the Collector and that the transfers were illegal and void.
The respondents contended that it was not a case of transfer but one of transmission.
In a petition under section 155 of the the appellants contended that tie transfer was in contravention of the mandatory provisions of section 108 and that the shares had been attached by the Collector under O. 21, r. 46 C.P.C. A single Judge of the High Court held the transfer to be illegal and void.
On appeal a Division Bench held that the provisions of section 108 were directory and not mandatory and that the provisions of section 64, C.P.C. and O. 21, r. 46 pre vailed over the prohibitory order contained in Form 18 in Appendix E of Schedule I of the C.P.C. but that the attach ment and appointment of Receiver did not divest a party of his right to his property.
Allowing the appeal, HELD: The provisions of section 108 of the are mandatory and the High Court erred in holding that they were directory.
[197B] (1)(a) The words "shall not register" are mandatory in character.
The mandatory character is strengthened by the negative form of the language which is used to emphasise the insistence of compliance with the provisions of the Act.
Negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statutory provision imperative.
(See State of Bihar vs Maharjdhiraja Sir Ka meshwar Singh of Darbhanga & Ors.
at pp.
988 89; M. Pentiah & ors.
vs Muddalal Veeramallappa & Ors. ; at p. 308 and Additional District Magis trate, Jabalpur vs Shivaknant Shukla [1976] Supp S.C.R. 172 followed.
[195D E] 191 (b) The tests for finding out when a provision is manda tory or directory are: the purpose for which the provision has been made, its nature, the intention of the legislature in making the provision, the general inconvenience or injus tice which may result to the person from reading the provi sion one way or the other, the relation of the particular provision to other provisions dealing 'with the same subject and the language of the provision.
Prohibition and negative words can rarely be directory.
Negative, prohibitory and exclusive words are indicative of the legislative intent when the statute is mandatory.
[195F G] Raja Buland Sugar ' Co. Ltd. vs Municipal Board, Rampur ; and Seth Bikhral Jaipuria vs Union of India ; at pp.
89394, followed.
(2) (a) In holding that section 108 is directory and not mandatory for the reason that non compliance with the sec tion was not declared an offence, the High Court failed to consider the provisions of section 629 A of the Act which pre scribes a penalty where no specific penalty is provided in the Act.
It is a question of .construction in each case whether the legislature intended to prohibit the doing of the act altogether or merely to make the person who did it liable to pay the penalty.
[196B] (b) A contract is void if prohibited by a statute under a penalty, even without express declaration that the contract is void, because such a penalty implies a prohibi tion.
If a contract is made to do a prohibited act, that contract will be unenforceable.
If a contract is expressly or implied by prohibited by statute one has to see not what acts the statute prohibits but what contracts it prohibits.
One is not concerned with the intent of the parties.
[196C E] St. John Shipping Corporation vs Joseph Rank [1957] 1 Q.B. 267, referred to.
(c) The maxim a pactis privatorum publico juri non derogatur means that private agreement cannot alter the general law.
What is done in contravention of the provi sions of an Act of Legislature cannot be made the subject of action.
[196F] Mellis vs Shitlay L.B. referred to.
(d) In every case where a statute inflicts a penalty for doing an act, though the act be not prohibited, yet the thing is unlawful because it is not intended that a statute would inflict a penalty for a lawful act.
[196G] (e) If a penalty is imposed by statute for preventing something being done on some ground of public policy, the thing prohibited, if done, will be treated as void, even though the penalty imposed is not enforceable.
[197A] In the present case in addition to the prohibition issued under O. 21, r. 46, a separate prohibitory order was issued to the company in Form 18 in Appendix E of the First Schedule of the C.P.C. Therefore, the company by registering the transfer of shares was obviously permitting the transfer and such action being in violation of the prohibition is contrary to law.
[]97D] (3) When the receiver held the scrips and the transfer forms, it was not open to the owners to exercise rights of ownership or to transfer their ownership to anyone else.
[197F]
|
: Criminal Appeal No. 282 of 1971.
(Appeal by Special Leave from the Judgment and Order dated 12 4 1971 of the Allahabad High Court in Criminal Appeal No. 1909/68).
S.K. Mehta, for the appellants.
D.P. Uniyal and O.P. Rana, for the respondent, 233 R.L. Kohli, for the Intervener.
The Judgment of the Court was delivered by FAZAL ALI, J.
It is a peculiar feature of our criminal law that where a trespasser has succeeded in taking recent wrongful possession of the property vested in the public for common enjoyment, the members of the village or the real owner are not entitled in law to throw out the trespasser but have to take recourse to the legal remedies available, and if any member of the public tries to secure public property from the possession of the trespasser he is normal ly visited with the onerous penalty of law.
This is what appears to have happened in this appeal by special leave in which the appellants appear to have got themselves involved in an armed conflict with the prosecution party resulting in the death of the deceased, injuries to some of the prosecu tion witnesses and injuries to three of the accused them selves.
The prosecution case in short is that on July 18, 1966, at about 7 30 to 8 00 in the morning when Ram Khelawan and his companions were removing weeds from the paddy crop sown by them in the field which included a portion of the Chak Road which had recently been encroached by the complainants ' party and amalgamated with their fields, Ram Ratan and Ram Samujh armed with lathis and Din Bandhu and Ram Sajiwan carrying a ballam and Biroo respectively entered the field of Ram Khelawan with their bullocks and insited on passing through the field along with their bullocks, which according to them was a public road.
The complainants protested against the highhanded action of the party of the accused on which Ram Ratan exhorted his companions to assault the deceased Murli as a consequence of which Ram Sajiwan as saulted Murli in the abdomen with his Biroo as a result of which MurIi sustained serious injuries and fell down in the field and ultimately succumbed to the injuries.
The other members of the complainants ' party, namely, Ram Khela wan Manohar Sarabjit, Mewa Lal and Satrohan were also assaulted by Ram Ratan and his party.
Soon after the occurrence Rameshwar Pathak, a police officer, who happened to be present at the spot recorded the statement of P.W. 1 Ram Khelawan which was treated as the F.I.R. and after conducting the usual investigation submitted a chargesheet against all the accused persons who were put on trial before the Sessions Judge, Barabanki.
The Learned Sessions Judge acquitted the accused Din Bandhu and convicted the appellant Ram Sajiwan under section 302 I.P.C. Ram Ratan and Ram Samujh were convicted under sections 326/34 I.P.C. and sentenced to eight years ' rigorous imprisonment.
Three appellants Ram Ratan, Ram Sajiwan and Ram Samujh were further convicted under section 447 I.P.C. to three months ' rigorous imprisonment and under sections 324/34 I.P.C. to two years 'rigorous imprison ment under each of the two counts.
and under sections 323/34 I.P.C. to six months ' rigorous imprisonment and ordered that all the sentences shall run concurrently.
The accused persons filed an appeal before the High Court of Allahabad which was also dismissed and thereafter they obtained spe cial leave of this Court and hence this appeal before us.
234 The defence of the accused was that shortly before the occurrence proceedings for consolidation of holdings had taken place in the village as a result of which the Revenue authorities provided a Chak Road which passed through plot Nos. 853, 854, 864, 823 and 887.
This Chak Road was meant to boa public road to enable the.
residents of the village to pass through this road with their cattle.
This road happened to be adjacent to the field of Ram Khelawan P.W. 1 and he took undue advantage of the proximity of the road and encroached upon the same and amalgamated it with his cultiv able field.
The accused persons wanted t0 assert their lawful right over the Chak Road and it was the prosecution party which was the aggressor and started assaulting the accused as a result of which three persons on the side of the accused received serious injuries.
The accused, there fore, assaulted the deceased in self defence.
Even other wise, the accused pleaded innocence.
Both the courts below have come to a concurrent finding of fact that the occurrence took place as alleged by the prosecution and that the accused persons were the aggressors and had opened the assault on the deceased.
The Trial Court has also the High Court have concurrently found, on a full and complete appreciation of the evidence., that although the place of occurrence was a part of the Chak Road, yet the complainant Ram Khelawan had encroached on the same and some time before the occurrence had brought the land under culti vation over which he had grown paddy crop.
The evidence of the Sub Inspector who visited the spot clearly shows that he found paddy crop grown at the height of 4 or 6 digits.
The learned counsel for the appellants has not been able to show that the concurrent finding of fact arrived at by the Ses sions Judge and the High Court on this point is in any way not borne out by the evidence.
The learned counsel for the appellants submitted two points before us.
In the first place, he submitted that the finding of the High Court impliedly shows that the accused were trying to, assert their lawful right over the Chak Road which was wrongfully occupied by the complainant and was in possession of the villagers.
The accused, therefore, had every right to throw out the complainants ' party who were trespassers by force.
The accused were, therefore, acting in the exercise of their right of private defence of person and property and were.
justified in causing the death of the deceased, particularly in view of the serious injuries received by three of the party of the accused.
Reliance was placed, particularly on the Injury Reports of Ram Samujh, Harnam and Ram Ratan.
It appears that Ram Samujh received two injuries one being a lacerated wound 3 cm X 3/4 cm X 1 cm deep on the posterior part of head and a contusion on the right side of the head, while Harnam had four contusions and Ram Ratan had two.
lacerated wounds in the region of the ear, one punctured wound in the left forearm and one contusion.
It was submitted that in view of the serious injuries, some of which were inflicted by sharp cutting weapons, it would not be said that the appellants had exceeded their right of private defence.
The argument is no doubt attractive, but on closer scrutiny we find that it is not tenable.
In view of the clear finding of the High Court and the Sessions Judge that the land in dispute was in the settled possession of the complainant Ram Khelawan 235 who rightly or wrongly encroached upon the road and convert ed it into his cultivable land the accused had no right to throw the complainant by force.
In fact the Sessions Judge found thus: "There is also no doubt that from the evidence on record adduced by the prosecution and the defence, it appears that the Chak Road, if any was existing, was encroached upon by Ram Khelawan and his family members.
So far as the question whether the Chak Road was encroached upon, there was hardly any discrepancy between the statements of the prosecution witnesses and the defence.
It has been admitted by Ram Khelawan P.W. 1 that before the occurrence Ram Rattan and several other villagers whose Chaks are situated in the east of Ram Khelawan Chak used to say that he had encroached upon the Chak Road, and that in the absence of that Chak Road, from where they should take their bullocks to their Chaks.
. . .From these admissions also it is amply proved that in fact there was a Chak Road but it was later encroached upon by the complainant Ram Khelawan.
" The High Court also found: "It is thus clear that assuming that the consolidation authorities had formed a Chak Road adjoining the Chak of Ram KheIawan, it had been taken possession of by Ram Khelawan included in his Chak ploughed by him and paddy crop had been sown therein.
It is thus obvi ous that Ram Khelawan had established his possession over the land where the incident took place and had been in peaceful possession thereof for 2 to 3 weeks at least before the occurrence took place.
" It is well settled that a true owner has every right to dispossess or throw out a trespasser, while the trespasser is in the act or process of trespassing and has not accom plished his possession, but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner.
In such circumstances the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies available under the law.
In view of the clear finding of the High Court that the complainant Ram Khelawan even after encroachment had established his possession over the land in dispute for two to three weeks before the occur rence, for the purpose of criminal law, the complainant must be treated to be in actual physical possession of the land so as to have a right of private defence to defend his possession even against the true owner.
While it may not be possible to lay down a rule of universal application as to when the possession of a trespasser becomes complete and accomplished, yet, as this Court has indicated recently, one of the tests is to find out who had grown the crop on the land in dispute.
In Puran Singh & Others vs State 236 of Punjab(1), this matter was comprehensively considered and on of us (Fazal Ali, J.) who spoke for the Court observed as follows: "We, however, think that this is not what this Court meant in defining the nature of the settled possession.
It is indeed difficult to lay down any hard and fast rule as to.
when the possession of a trespasser can mature into a settled possession.
But what this Court really meant was that the posses sion of a trespasser must be effective, undis turbed and to the knowledge of the owner or without any attempt at concealment.
For instance a stray or a casual act of possession would not amount to settled possession.
There is no special charm or magic in the word 'settled possession ' nor is it a ritualistic formula which can be confined in a strait jacket but it has been used to mean such clear and effective possession of a person, even if he is a trespasser, who gets the right under the criminal law to defend his property against attack even by the true owner . . .
Thus in our opinion the nature of possession in such cases which may entitle a trespasser to exercise the right of private defence of property and person should contain the following attributes: (i) that the trespasser must be in actual physical possession of property over a sufficiently long period; (ii) that the possession must be to the knowledge either express or implied of the owner or without any attempt at concealment and which contains an element of animus pros sendie.
The nature of possession of the tres passer would however be a matter to be decided on facts and circumstances of each case; (iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced in by the true owner; and (iv) that one of the usual tests to determine the quality of settled possessions, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop.
If the crop had been grown by the trespasser, then even the true Owner has no right to destroy the crop grown by the trespasser and take forcible possession, in which case the tres passer will have a right of private defence and the true owner will have no right of private defence.
" In this case there is a clear finding of the High Court and the Sessions Judge that the complainant Ram Khelawan had encroached upon the land in dispute, had converted it into culturable field and had grown paddy crop which the com plainants ' party was trying to weed out on the day when the occurrence took place.
In these circumstances, therefore, the complainant was undoubtedly in posses (1) [1975] Supp.
S.C.R. 299.
237 sion of the land and the appellants had no right to commit trespass on the land and engage the complainants in a seri ous fight.
As the complainant Ram Khelawan was in peaceful possession of the land to the knowledge of the appellants, he was in law entitled to defend his possession.
The com plainant, therefore, was fully justified in protesting to the accused when they tried to pass through his field and caused damage to the paddy crop by forcibly taking the bullocks through the field.
In these circumstances the appellants who were undoubtedly the aggressors and had opened the.
assault could not claim any right of private defence either of person or property.
For these reasons, therefore, we agree with the finding of the High Court that the accused are not entitled to claim the right of private defence, nor can it be said that in causing the murderous assault on the deceased they had merely exercised their right of private defence of property.
It is true that the appellants were trying to exercise their lawful right over a portion of the land which had been left apart as a public road for the use of villagers by the Revenue authorities, but as a complaint had already been filed before the Pan chayat the appellant should have allowed the law to take its course instead of taking the law in their own hands by making an armed trespass into the property.
However, there can be no doubt that there was no common intention on the part of all the accused to cause the death of the deceased Murli or to cause grievous injuries to him which was an individual act of the appellant Ram Sajiwan.
The other appellants Ram Rattan and Ram Samujh, therefore, cannot be convicted under sections 325/34 I.P.C. Another point canvassed before us by counsel for the appellant was that although three persons on the side of the accused had sustained serious injuries, the prosecution has not given any explanation which shows that the origin of the prosecution is shrouded in mystery.
This contention is also without any substance.
The evidence of the eye witnesses examined by the prosecution clearly shows that some of them were also armed with lathis and sharp cutting weapons, and they have also stated that they wielded their weapons when the accused attached the complainants ' party and that this was done in selfdefence.
In view of the injuries on the person of the deceased and the prosecution witnesses, name ly, Manohar, Sarabjit, Mewa Lal, Satrohan and Ram Khelawan, there can be No. doubt that there was a mutual fight.
Thus in the instant case, the prosecution has given sufficient explanation for the injuries sustained by the accused per sons and the prosecution case cannot be thrown out on this ground.
Lastly it was submitted that so far as Ram Sajiwan was concerned the evidence given by the eye witnesses regarding the manner of the assault is inconsistent with the medical evidence.
In this connection reliance was placed by counsel for the: appellants on the evidence of the Doctor which is to the effect that the injury on the deceased Mufti was undoubtedly caused by a Biroo but it could have been caused only if the Biroo after being struck in the abdomen was rotated.
Much capital has been made out of this admission made by the Doctor,but on a close scrutiny we find that this circumstance is not sufficient 238 to put the prosecution out of court.
There is clear and consistent evidence of the eye witnesses that the deceased had been assaulted in the abdomen and this fact has been accepted by the two courts concurrently that the deceased Murli was assaulted by Ram Sajiwan with a Biroo.
The medi cal evidence clearly shows that the deceased had an injury in the abdomen which could be caused by a Biroo.
The exact manner in which the Biroo was pierced in the abdomen of the deceased could not have been observed by the witnesses, particularly in view of the mutual fight.
Since the injury could be caused if the Biroo was rotated after being pierced, it must be presumed in the circumstances that the assailant must have rotated the Biroo after having pierced it in the abdomen of the deceased, otherwise the injuries could not have been caused to the deceased.
In these cir cumstances, therefore, we are not able to agree with counsel for the appellants that the assault on the deceased by Ram Sajiwan is in any way inconsistent with the medical evi dence.
For these reasons, therefore, we find ourselves in agreement with the High Court that the prosecution has proved its case against this accused beyond reasonable doubt.
The injuries caused by the other appellants on the person of Manohar, Sarabjit, Mewa Lal, Satrohan and Ram Khelawan have been proved by the eye witness whose evidence has been accepted by the High Court as also the Sessions Judge.
We see no reason to interfere with the assessment of the evidence by the two Courts.
The only point that remains for consideration is as to the exact offence committed by the appellants.
In the first place, once it is held that the appellants had no right of private defence of person of property, appellant Ram Sajiwan cannot escape conviction under section 302 I.P.C. simpliciter, because the injury caused by him to the deceased was suffi cient to cause the death of the deceased.
The appellant Ram Sajiwan was rightly convicted under section 302 I.P.C. and as the minimum sentence is life imprisonment we cannot do anything about the sentence either.
We would like to observe, howev er, that the facts, of the case do raise some amount of sympathy for the accused Ram Sajiwan who was really trying to assert his lawful right against the complainant who was a trespasser.
The appellant was fighting for a just and righteous cause though not in a strictly lawful manner.
If the appellant had succeeded he would have been able to secure the right over the Chak Road which was left by the Revenue authorities for the benefit of the villagers.
These considerations, therefore, may weigh with the Government for considering the question of remitting a portion of the sentence imposed on the appellant Ram Sajiwan and the learned counsel appearing for the State has assured us that these considerations would be conveyed to the Government.
So far as the other appellants are concerned, as the object of the appellants was merely to assert a supposed or bona fide claim of right, it cannot be said that they had any common intention to cause grievous hurt.
In these circumstances, therefore, the charge under sections 326/34 I.P.C. must necessarily fall.
The conviction under section 447 I.P.C. as also that under sections 324/34 and 323/34 I.P.C. cannot be interfered with in view of the evidence of assault made by the appellants on the 239 witnesses Ram Khelawan, Manohar, Sarabjit, Mewa Lal, Satro han with their respective weapons.
Having regard to the fact that the appellants made a concerted attack either with a Biroo or lathis respectively on the aforesaid prosecution witnesses they had undoubtedly a common intention to cause simple hurt to these witnesses.
For these reasons, therefore, we would affirm the con victions and sentences passed on the appellant Ram Sajiwan but allow the appeal of the other appellants viz. Ram Rattan and Ram Samujh to this extent that their convictions and sentences under sections 326/34 I.P.C. are set aside, but their convictions and sentences under sections 324/34, 323/34 and 447 I.P.C. will stand.
If the appellants have already served out their sentences they may be released.
M. R. Appeal dismissed.
| IN-Abs | The complainant Ram Khelawan had illegally encroached upon a portion of a public road and grown a paddy crop on it.
A complaint against him was pending before the Panchay at.
He was in peaceful possession of the land to the knowl edge of the appellants who nevertheless went armed and tried to exercise their right over the public road, by passing through the field with their cattle and thereby damaging the crop.
The complainants protested and a fight ensued, as a result of which, one of the complainants ' party died and injuries were received by both sides.
The appellants plead ed the right of private defence of property and person, which they had exceeded, but were concurrently found guilty by both, the Trial Court and the High Court.
Dismissing the appeal the Court, HELD: (1) A true owner has every right to dispossess or throw out a trespasser while he is in the act or process of trespassing but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner.
In such circumstances the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies under, the law.
[235 F G, 236 A] Puran Singh & Ors.
vs State of Punjab [1975] Supp.
S.C.R. 299, applied.
The Court further observed: It is a peculiar feature of our criminal law that where a trespasser has succeeded in taking recent wrongful possession of the property vested in the public for common enjoyment, the members of the village or the real owner are not entitled in law to throw out the trespasser but have to take recourse to the legal remedies available, and if any member of the public tries to secure public property from the possession of the trespasser he is normally visited with the onerous penalty of law.
[233 A B] (2) The complainant Ram Khelawan was in peaceful posses sion of the land to the knowledge of the appellants and he was in law entitled to defend his possession.
The appel lants who were the aggressors and had opened the assault, could not claim any right of private defence either of person or property.
[237 A B]
|
306 of 1954.
Under Article 32 of the Constitution for the enforcement of Fundamental Rights.
Kundan Lal Mehta and B.R.L. Iyengar, for the petitioner.
C.K. Daphtary, Solicitor General of India (Porus A. Mehta and R. H. Dhebar, with him) for the respondent.
October 28.
The Judgment of the Court was delivered by JAGANNADHADAS J.
This is an application under article 32 of the Constitution which arises under the following circumstances.
The petitioner, Sadhu Ram, purchased from one Imam ud Din, a muslim evacuee, 43 Bighas 14 Biswas of agricultural land comprised in Khasra Nos.
2135 to 2139, 2158, 2159, 21715 2204 and 2206 with Shamlat rights in village Kaithal, District Karnal, Punjab.
The sale deed was executed on the 6th September, 1947, and registered on the 9th September, 1947, before Imam ud Din left for Pakistan.
The consideration therefor was Rs. 3,000 and as much as Rs. 2,700 thereof appears to have been paid by the petitioner to the vendor before the Sub Registrar.
Possession also was transferred on the execution of the sale deed.
Mutation was made by the revenue authorities on the 23rd January, 1948.
East Punjab 1115 Evacuees ' (Administration of Property) Act, 1947 (East Punjab Act XIV of 1947) came into force on the 12th of December, 1947.
It was amended by East Punjab Evacuees ' (Administration of Property) (Amendment) Ordinance, 1948 (East Punjab Ordinance No. II of 1948) which came into force on the 16th January, 1948.
This gave place to East Punjab Evacuees '(Administration of Property) (Amendment) ' Act, 1948 (East Punjab Act XXVI of 1948) which came into force on the 11th April, 1948.
By these amendments a new section, section 5 A, was inserted in the East Punjab Act XIV of 1947.
It will be seen that these amendments were subsequent to the date of the execution and registration of the sale deed and the transfer of possession thereof.
Section 5 A, so far as it is relevant for our present purpose, is in the following terms: "5 A. (1) No sale, mortgage, pledge, lease, exchange or other transfer of any interest or right in or over any property made by an evacuee or by any person in anticipation of his becoming an evacuee, or by the agent, assign or attorney of the evacuee or such person on or after the fifteenth day of August, 1947, shall be, effective so as to confer any rights or remedies on the parties to such transfer or on any person claiming under them unless it is confirmed by the Custodian.
(2)An application for confirming such transfer may be made by any person claiming thereunder or by any person lawfully authorised by him".
This section purports to be retrospective.
Hence an application for confirmation was made by the petitioner on the 23rd March, 1948.
The Assistant Custodian, Karnal, on being satisfied about the genuineness of the transaction, recommended confirmation.
But the Additional Custodian, Jullundur, by his order dated the 11th February, 1953, rejected the application for confirmation acting on the Custodian General 's circular dated the 9th March, 1950, under which a policy of not confirming transactions relating to agricultural property was enunciated.
This was 1116 affirmed by the Assistant Custodian General on an application to him for revision.
Learned counsel for the petitioner relies on the fact that his transaction which, on enquiry, was held to be genuine, was entered into.
before the East Punjab Act XIV of 1947 was enacted and before the amendment thereof by insertion of section 5 A came into operation.
He contends that the retrospective operation of section 5 A in such circumstances amounts to deprivation of his property, without any compensation and is, therefore, hit by article 31 of the Constitution.
Whatever may have been the position if this matter had to be dealt with much earlier, it seems doubtful whether any such contention can be raised by the petitioner before us, on this date, in view of the recent Constitution (Fourth Amendment) Act, 1955, which has come into force on the 27th April, 1955.
It is unnecessary, however, to base our decision on this ground.
It appears to us clear that section 5 A cannot be read as a legislative provision depriving the owner of his property.
There can be no doubt that so far as transactions subsequent to the date of amendment are concerned, if is nothing more than a restriction on the transfer of property by the owner thereof.
Any transferee in such a situation takes the property subject to the requirement of confirmation.
The case would then, be one which falls under article 19 of the Constitution and not under article 31.
There can be no doubt that having regard to the purpose and policy underlying the law relating to Evacuee Property and the abnormal conditions which arose from and after the 15th August, 1947, the requirement of confirmation with reference to transactions affecting Evacuee Property cannot but be considered a reasonable restriction.
If this requirement was in essence not a deprivation but a restriction in respect of future transactions, there is no reason for treating it as deprivation by virtue of its having been given retrospective effect, such retrospectivity being within the competence of the appropriate legislature.
The retrospectivity commencing from the 15th August, 1947, is 1117 also not only reasonable but called for in the circum stances, which occasioned the Evacuee Property laws.
In this case the petitioner is deprived of his bargain and incurs consequential loss, Dot by virtue of any unconstitutional law but by reason of the quasi judicial order of the Custodian declining to confirm the transaction.
The contention of the learned counsel for the petitioner that any fundamental right of his has been violated must, therefore, be rejected.
Learned counsel next urges that the action of the Custodian in basing his decision on some circular of the Custodian General is illegal and that it is not relevant material under section 5 A.
It is enough to say that even if this contention be correct, this does not raise any question of violation of fundamental rights.
If this is the sole ground, this application is misconceived.
This petition accordingly fails and is dismissed but in the circumstances without costs.
| IN-Abs | The applicant purchased certain agricultural lands from a Muslim evacuee.
The sale deed was executed, registered and possession was delivered to the applicant in September, 1947, before the East Punjab Evacuees ' (Administration of Property) Act of 1947 came into operation on the 12th of December, 1947.
By subsequent amendments a new section, section 5 A, was inserted into the Act with retrospective effect from the 15th of August, 1947, rendering transactions in respect of evacuee property ineffective unless confirmed by the Custodian.
The applicant applied for confirmation.
The Assistant Custodian recommended such confirmation but the Additional Custodian, acting in terms of a circular issued by the Custodian General enunciating a policy of non confirmation with regard to agricultural lands, refused to confirm the applicant 's purchase and this order was affirmed by the Assistant Custodian General in revision, It was contended on behalf of the applicant, inter alia, that the retrospective operation of section 5 A of the Act was in effect a deprivation of property without compensation and was hit by article 31 of the Constitution.
Held that 9.
5 A of the East Punjab Evacuees ' (Administration of Property) Act though retrospective in operation does not amount to deprivation of property in respect of past transactions and is valid.
, In respect of future transactions the requirement of con 1114 firmation is clearly a restriction and not a deprivation.
Such restriction was also reasonable having regard to the purpose and policy of the Evacuee Property Law.
The requirement of confirmation being thus in essence only a restriction and not a deprivation, retrospectivity in the operation of that restriction does not make it deprivation.
That the applicant 's loss was occasioned not by any unconstitutional law but by a quasi judicial order of the Custodian refusing confirmation and, consequently, his contention that any fundamental right had been violated must be rejected.
That even if the contention that the order was itself illegal being based on irrelevant material be correct, that did not by itself raise any question of violation of any fundamental right and would be no ground for an application under article 32 of the Constitution.
|
ivil Appeal No. 501 of 1976.
Appeal by Special Leave from the Judgment and Order dated the 28th April, 1975 of the Delhi High Court in Civil Revision No. 186 of 1975.
Hardayal Hardy, S.K. Bagga, (Mrs.) section Bagga, (Miss) Yesh Bagga and K.K. Mittal for the Appellant.
Bikramjit Nayar, B.P. Maheshwari and Suresh Sethi for Respondent.
The Judgment of the Court was delivered by BHAGWATI, J.
This is an unfortunate litigation where a widow has been kept out of her monies for over six years by reason of wrong application of law by the courts.
Much of the travail of the widow could have been avoided if the courts had taken a common~ sense view of the law instead of adopting a rather technical and unimaginative approach.
The facts giving rise to this litigation are few and may be briefly stated as follows.
The respondent is the owner of a residential quarter bearing No. 1/20 situate at Old Rajendra Nagar, New Delhi.
He wanted a loan for the purpose of repaying an earlier debt and he, therefore, approached the appellant and as a result of negotiations between them, an agreement dated 27th September, 1967 was entered into 184 between the parties.
This agreement recited that a sum of Rs. 7500/was lent and advanced by the appellant to the respondent and it provided that in lieu of interest on his amount of Rs. 7500/ , the respondent would give to the appellant a portion of his residential quarter (hereinafter referred to as the premises) for temporary residence.
The agreement went on to say, and we are setting out the precise terms of the agreement since they are material for the decision of the controversy between the parties: "On, the expiry of two years as stated above the second party shall give one month 's notice in writing to the first party for the said room.
If after the expiry of two years fixed period, the first party wants to pay the amount he shall give one month 's notice in writing to the second party.
When the first party repays the above stated loan to the second party, then the second party shall vacate the room etc.
under temporary residence and give it to the first party.
If the first party pays the amount of Rs. 7500/ and the second party does not give possession of the room etc.
under her use, then the second party shall be liable to pay Rs. 110/ per month as damages.
If the first party does not pay the amount of Rs. 7500/ to the second party on the expiry of the two years period, the first party will not be entitled to recover damages of Rs. 110/ per month from the second party and the second party shall be entitled to take legal proceedings against the first party and also if the first party pays the amount of Rs. 7500/ and the second party does not give possession, the first party shall be entitled to take the legal proceedings regarding vacation of the room etc.
under the use of the second party.
" Pursuant to the agreement, the respondent handed over pos session of the premises to the appellant and the appellant started occupying the same against interest on the loan of Rs. 7500/ advanced by her to the respondent.
The period of the agreement expired on 27th September, 1969 and according to the terms of the agreement, the.
respondent could thereafter repay the loan of Rs. 7500/ to the appellant and claim back possession of the premises from her.
The case of the respondent was that he addressed a notice dated 26th August, 1969 to the appellant and tendered a ;sum of Rs. 7500/ to her in repayment of the loan, but the appellant refused to accept the same.
The 'respondent also addressed another notice dated 4th May, 1970 to the appellant but this notice also had no effect on her.
The respondent thereupon filed Suit No. 123 of 1973 in the Court of Sub Judge, 1st Class, Delhi seeking to recover possession of the premises from the appellant.
The appellant did not appear to contest the suit and it was decreed ex parte by a judgment dated 22nd May, 1973.
The learned subJudge passed a decree for possession of the premises in favour of the respondent but added the following rider: 185 "The plaintiff is ordered to tender the amount of Rs. 7500/ to the defendant within a period of 30 days from today in cash.
If the defendant refuses to accept the money, it should be deposited in the Court with notice to the defendant within the aforesaid period.
" Now, it appears that prior to the filing of this suit by the respondent, the appellant had filed a suit against the respondent for recovery of the loan of Rs. 7500/ advanced by her to the respondent.
The respondent had filed his defence to the suit and various grounds were taken by him, one of which was that the claim was barred by limitation.
This suit was pending on 22nd May, 1973 when the ex parte decree was passed against the appellant.
The respondent had obviously no desire and perhaps not even capacity to repay the loan of Rs. 7500/ to the appel lant and he, therefore, preferred an application for review under Order XLVII, Rule 1 of the Code of Civil Procedure seeking deletion of the direction given by the learned Sub Judge requiring him to deposit the sum of Rs. 7500/ .
The respondent contended that since the appellant has already filed a suit against him for recovery of the amount of Rs. 7500/ ' and he was resisting the suit inter alia on the ground of limitation, it was not competent to the learned Sub Judge to.
give such a direction for deposit of the amount of Rs. 7500/ and the giving of such direction was clearly an error of law apparent on the face of the record.
The respondent also claimed review on the ground of discov ery of new and important matter in the shape of Suit No. 123 of 1973 filed by the appellant against him.
The learned Sub Judge, by a judgment dated 3rd August, 1973 allowed the review application and held that the direction for deposit ing the amount of Rs. 7500/in court should be deleted from the ex parte decree passed against the appellant.
The result was that the respondent became entitled to recover possession of the premises from the appellant without paying to the appellant or .depositing in court the amount of Rs. 7500/ in repayment of the loan.
Now, unfortunately this order allowing the review appli cation was made by the learned Sub Judge without issuing notice to the appellant.
That was obviously bad and, there fore, on the application of the appellant, the learned Sub Judge had to set aside the order and reheat the review application.
The same order was, however, once again made by the learned Sub Judge after hearing the appellant and the direction requiring the respondent to deposit the sum of Rs. 7500/ in court was deleted on the ground that such direc tion nullified the effect of the ex parte decree for posses sion and forced the respondent to admit the claim of the appellant for repayment of the sum of Rs. 7500/ , which, according to the respondent, was time barred.
The appellant being aggrieved by the order allowing the review application, preferred a revision application to the High Court of Delhi under section 115 of the Code of Civil Procedure.
Mr. Justice Avadh Behari, who heard the revision application, took the view that the order allowing the review application was appealable and 'hence the revision application was not competent, but on the alternative view that the revision application lay before the High Court, 186 he proceeded to consider whether the review had been rightly granted and held that the respondent having brought a simple suit for possession, the learned Sub Judge had no jurisdiction to impose a condition requiring him to deposit the sum of Rs. 7500/ , particularly when the appellant 's suit for recovery of the same was pending in that very court and that under the terms of the agreement, all that he was required to do was to tender the sum of Rs. 7500/ and since that was done by him and the appellant had refused to accept the same, he was entitled to a decree for possession.
The learned Judge accordingly dismissed the revision applica tion.
That led to the filing of the present appeal with special leave obtained from this Court.
When the hearing of 'the appeal commenced a contention of a preliminary nature was advanced on behalf of the re spondent and it was that since the order of the learned Sub Judge impugned in revision before the High Court was an order allowing the review application, it was appealable under XLIII, rule 1.
(s) of the.
Code of Civil Procedure and hence no revision was competent to the High Court under section 115 of the Code of Civil Procedure and the High Court was right in rejecting the revision application.
Now, there can be no doubt that under section 115 of the Code of Civil Procedure a revision application can lie before the High Court from an order made by a subordinate court only if no appeal lies from that order to the High Court.
The words of limitation used ' in section 115 are "in which no appeal lies thereto" and these.
words clearly mean that no appeal must lie to the High Court from the order sought to be revised, because an appeal is a much larger remedy than a revision application and if an appeal lies, that would afford sufficient relief and there would be no reason or justification for invoking the revisional jurisdiction.
The question, therefore, here is whether an appeal against the order made by the learned Sub Judge allowing the review application lay to the High Court.
If it did, the.
revision application would be clearly incompetent.
Now Order XLIII, Rule 1.
cI. (s) undoubtedly provides an appeal against an order allowing a review application, but the order allowing the review application in the present case was made by the learned SubJudge, and hence an appeal against it lay to the District Court and ' not to the High Court, and, obviously, since no appeal lay against the order of the learned Sub Judge to the High Court, the revision application could not be rejected as incompetent.
The preliminary contention must.
in the circumstances, be decid ed against the respondent.
That takes us to the merits of the appeal and the ques tion which arises for consideration on merits is whether the direction requiring the respondent to deposit the sum of Rs. 7500/ in court as a condition of recovery of possession of the premises from the appellant was erroneous in law so as to justly its deletion on review.
determination of this question turns on the true interpretation of the agree ment between the parties.
If we turn to the agreement it is clear that the loan of Rs. 7500/ was advanced by the appel lant to the respondent for a period of two years and in lieu of interest on 187 the amount of the loan, the respondent handed over the possession of the premises to the appellant and the appel lant was entitled to occupy the same free of rent.
We have already set out the relevant portions of the agreement and it appears clearly from those provisions that the re spondent was not entitled to repay the amount of the loan and demand recovery of possession of the premises from the appellant before the expiry of the period of two years.
It was only of the expiration of the period of two ' years that the respondent was entitled to repay the amount of the loan and if he wanted to do so, he was required to give one month 's notice in writing to the appellant and on such repayment, the appellant was bound to hand over vacant possession of the premises to him.
If, despite the repay ment of the amount of the loan by the respondent, the appel lant failed to hand over vacant possession of the premises to the respondent, she was liable to pay damages at the rate, of Rs. 110/ per month.
But if for any reason the respondent failed to repay the amount of the loan on the expiry of the period of two years, he could not claim to recover any damages from the appellant.
Clearly the obliga tion of the appellant to hand over vacant possession of the premises to the respondent was concurrent with the obliga tion of the respondent to repay the amount of loan to the appellant and the respondent could not claim possession of the premises from the appellant without making repayment of the amount of the loan.
It the respondent tendered a sum of Rs. 7500/ to the appellant in repayment of the amount of the loan and yet the appellant refused to accept the same, the appellant might incur liability to pay to the respondent damages for wrongful use and occupation of the premises, but the respondent could not say that he was exonerated from the obligation to repay the amount of the loan and was entitled to recover possession of the premises without making repay ment of the amount of the loan.
The respondent could seek to recover possession of the premises from the appellant only ion condition of making repayment of the loan, because the two obligations were mutual and concurrent and were required to be simultaneously performed and one could not get delinked from the other by reason of any refusal on the part of the appellant to accept the tender of Rs. 7500/ from the respondent.
We may in this connection refer to the following passage from the judgment in Dixon vs Clark(1) when it said: "In action of debt and assumpsit, the principle of the plea of tender, in our apprehension is, that the defendant has been always ready (toujoure prist) to perform entirely the contract on which the action is rounded; and that he did perform it, as far as he was able, by tendering the requisite money; the plaintiff himself precluded a complete performances, by refusing to receive it.
And, as in ordinary cases, the debt is not discharged by such tender and refusal, the plea must not only go on to.
allege that the defendant is still ready (incore prist) but must be accompanied by a profort in curiem of the money tendered.
If the defendant can maintain this plea, although he ,will not thereby (1) 188 bar the debt (for that would be inconsistent with uncore prist and profort in curiem) yet he will answer the action.
in the sense that he will recover judgment for his costs of defence against the plaintiff in which respect the plea of tender is essentially different from that of payment of money into court.
And, as the plea is thus to constitute an answer to the action, it must, we conceive, be dificient in none of the requisite qualities of a good plea in bar.
This decision has been quoted with approval in Leaks on Contracts, 8th Ed.
at page 663 and it establishes beyond disputation that merely because the plaintiff or the defend ant has tendered the amount due and payable by him and such tender has been wrongly refused by the other party, it does not absolve the first named party from its obligation to make payment of the amount and where the obligation to make payment of the amount is concurrent with the obligation to hand over possession, the claim for recovery of possession must be accompanied by payment or deposit of the amount.
The respondent was, therefore, clearly bound to pay or deposit the amount of loan as a condition of recovery of possession of the premises from the appellant.
We may point out that in fact, in the present case, there was no valid tender of the sum of Rs. 7500/ by the respondent to the appellant.
The case of the respondent was that he tendered the sum of Rs. 7500/ in cash to the appel lant on 26th August, 1969 but the appellant refused to accept the sum.
Now ', we will assume for the purpose of argument that this case of the respondent is factually correct and that he did tender the sum of Rs. 7500/ in cash to the appellant on 26th August, 1969, but this was obvious ly not a valid tender, because under the terms of the agree ment the respondent could repay the amount of the loan to.
the appellant only on the expiry of the period of two years and the date of the agreement being 27th September, 1967, the period of two years expired on 26th September, 1969.
The respondent could not validly tender the sum of Rs. 7500/ to the appellant in repayment of the amount of the loan until 27th September, 1969 and the tender made by him on 26th August, 1969 was clearly invalid.
It may be noted that it was not the case of the respondent that he made any fresh tender to the appellant on or after 27th September, 1969 and hence the conclusion must inevitably follow that the respondent did not at any time make a valid tender to the appellant of the sum of Rs. 7500/ .
Now, if the re spondent did not at any time validly tender payment of the sum of Rs. 7500/ to the appellant, the appellant obviously did not become liable to hand over possession of the prem ises to the respondent and a fortjori no claim for damages for wrongful use and occupation of the premises could be sustained by 'the respondent against the appellant.
It was pointed out to us on behalf of the respondent that he had already filled.
suits against the appellant for damages or compensation for wrongful use and occupation of the premises and one of the suits, namely Suit No. 800 of 1975 had been decreed by the Sub Judge, 1st Class and Civil Appeal No. 9 of 1975 preferred by the appellant against it had been dismissed by the 189 Additional District Judge, Delhi on the basis that the respondent had made a valid tender of the sum of Rs. 7500/ to the appellant and since the appellant had refused to accept the same, she was in wrongful use and occupation of the premises from the date of the tender and was, therefore, liable to pay compensation to the respondent from that date.
This is true, but it cannot preclude us from laying down what we think to be the correct legal position on a proper interpretation of the agreement between the parties.
More over, this decision is under appeal before the High Court.
But, apart from that, we do not think this decision is correct, because, on the view we have taken, the respondent was not entitled to tender the sum of Rs. 7500/ to the appellant before 27th September, 1969 and even if a tender was made by him on 26th August, 1969 as alleged by him, the appellant was entitled to refuse to accept the same and she did not become liable to hand over vacant possession of the premises to the respondent or to pay compensation to the respondent in respect of her occupation of the premises.
It is only if the respondent made a valid tender of the sum of Rs. 7500/ to the appellant on or after 27th September, 1969 that the appellant would be liable to hand over vacant possession of the premises to the respondent and since that did not happen in the present case, there was no obligation on the appellant to deliver possession of the premises to the respondent.
The respondent was not entitled to claim possession of the premises from the appellant unless he paid or deposited the sum of Rs. 7500/ in court in repayment of the amount of the loan.
The High Court as well as the learned Sub Judge were, therefore, in error in allowing the review application and ordering that the direction requiring the respondent to pay to the appellant or to deposit in court a sum of Rs. 7500/ in repayment of the amount of the loan should be deleted.
It was a correct and valid direc tion and it was rightly introduced in the original ex parte decree passed by the learned Sub Judge.
We accordingly allow the appeal, set aside the order allowing the review application passed by the learned Sub Judge as also the order of the High Court rejecting the revision application.
The original ex parte decree for possession together with the direction requiring the re spondent to pay or deposit the sum of Rs. 7500/ in court will stand, but since possession of the premises has already been taken over by the respondent in pursuance of the ex parte decree for possession, we direct that the respondent do pay to the appellant the sum of Rs. 7500/together with interest thereon at the rate of 9 per cent per annum from the date when possession of the premises was taken by the respondent up to the date of payment.
The respondent will pay to the appellant costs of the appeal as also costs of the review application before the Sub Judge and the revision application before the High Court.
P.B.R. Appeal allowed.
| IN-Abs | The appellant and the respondent entered into an agreement by which the appellant advanced money to the respondent and the respondent in lieu of interest thereon gave a portion of his house for residence to the appellant for a period of two years.
The other terms were that if after the expiry of the two year period, the respondent wished to repay the amount, he should give one month 's notice in writing; that if after the payment of the sum, the appellant would not vacate the house, she would be liable to pay damages and that if the respondent did not repay the amount on the expiry of the two year period, he would not be entitled to recover dam ages.
The respondent alleged that before the expiry of the two year period on September 27, 1969, he addressed a notice to the appellant and tendered repayment of the loan which she refused to accept.
The respondent 's suit for recovery of possession of the premises was decreed ex parte with an order that he should tender payment to the appellant and that if she refused to accept the money, it should be depos ited in the court.
The appellant, on the other hand, filed a suit for recovery of the loan in which the respondent contended that the claim was barred by limitation.
The respondent filed a review application before the Subjective contending that the order directing deposit of money in the court was clearly an error apparent on the face of the record.
Allowing the review application, the Sub Judge or dered the deletion of the direction for depositing the money in court.
The appellant filed a revision application in the High Court against the order can the review application.
The High Court held that since the order allowing the review application was appealable, the revision application was not competent, but on the alternative view that the revision application lay before the High Court, it held (a) that the Sub Judge had no jurisdiction to impose a condition requir ing deposit of the loan money.
particularly when the suit for recovery of the money was pending before the same court and (b) since the respondent tendered the money to the appellant, but it was refused, he was entitled to a decree for possession.
Allowing the appeal, HELD: (1) Order XLIII r. 1(s) of the Code of Civil Procedure, provides an appeal against an order allowing a review application.
Since the order allowing the review application was made by a Sub Judge, the appeal against it lay to the District Court and not to the High Court and since no appeal lay against the order of the Sub Judge to the High CoUrt: the revision application could not be re jected as incompetent.
[186F] Under section 115 C.P.C. a revision application cart lie before the High Court from an order made by a subordinate court only if no appeal lies from that order to the High Court.
The words of limitation used in that section, name ly, "in which no appeal lies thereto" clearly mean that no appeal must lie to the High Court from the order sought to be revised because an appeal is a much larger remedy than a revision application and if an appeal lies that would afford 183 sufficient relief and there would be no reason or justifica tion for invoking the revisional jurisdiction.
[186D E] (2) The High Court and the Sub Judge were in error in allowing the review application.
The direction requiring the respondent to pay the loan to the appellant or to depos it it in the court was a correct and valid direction and was rightly introduced in the original ex parte decree.
The courts below were in error in ordering its deletion.
[189 E] (3) Merely because one party has tendered the amount due and payable by him and such tender has been wrongly refused by the other party.
does not absolve the first party from its obligation to make payment and where the obligation to make payment is concurrent with the obligation to hand over possession, the claim for recovery of possession must be accompanied by payment or deposit of the amount.
[188C] Dixon vs Clark E.R. 919, referred to.
In the instant case, the respondent could not validly tender the amount to the appellant ha repayment of the loan until September 27, 1969 and the tender made on August 26, 1969 was clearly invalid.
If the respondent did not at any time validly tender payment to the appellant, she was not liable to hand over possession of the premises and no claim for damages for wrongful use could be sustained against her.
The respondent was not entitled to possession unless he paid or deposited the money in court in repayment of the loan.
The respondent could seek to recover possession of the premises only on condition of making repayment of the loan because the two obligations were mutual and concurrent and were required to be simultaneously performed and one could not get delinked from the reason of the refusal on the appellant 's part to accept the tender of money.
[188E H]
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